[Federal Register Volume 77, Number 244 (Wednesday, December 19, 2012)]
[Rules and Regulations]
[Pages 75045-75057]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30289]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 229
[Docket No. FRA-2009-0094, Notice No. 5]
RIN 2130-AC39
Locomotive Safety Standards
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; response to petitions for reconsideration.
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SUMMARY: This document responds to eight petitions for reconsideration
received in relation to FRA's final rule, published on April 9, 2012,
which revised the existing regulations containing safety standards for
locomotives. In response to the petitions, this document amends and
clarifies certain sections of the final rule.
DATES: Effective Date: The rule is effective December 19, 2012.
FOR FURTHER INFORMATION CONTACT: Charles Bielitz, Office of Safety
Assurance and Compliance, Motive Power & Equipment Division, RRS-14,
Federal Railroad Administration, 1200 New Jersey Avenue SE.,
Washington, DC, (202) 493-6314 (email charles.bielitz@dot.gov), or
Michael Masci, Trial Attorney, Office of Chief Counsel, Federal
Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC,
(202) 493-6037 (email michael.masci@dot.gov).
SUPPLEMENTARY INFORMATION:
I. Background
On February 22, 2006, FRA presented, and the Railroad Safety
Advisory Committee (RSAC) accepted, the task of reviewing existing
locomotive safety needs and recommending consideration of specific
actions useful to advance the safety of rail operations. The RSAC
established the Locomotive Safety Standards Working Group (Working
Group) to handle this task. The Working Group met twelve times between
October 30, 2006, and April 16, 2009. The Working Group successfully
reached consensus on the following locomotive safety issues: locomotive
brake maintenance, pilot height, headlight operation, danger markings
placement, load meter settings, reorganization of steam generator
requirements, and the establishment locomotive electronics requirements
based on industry best practices. The full RSAC voted to recommend the
consensus issues to FRA on September 10, 2009, which were incorporated
into the notice of proposed rulemaking (NPRM) issued in this proceeding
on January 12, 2011. See 76 FR 2199. The specific regulatory language
recommended by the RSAC was amended slightly for clarity and
consistency. FRA independently developed proposals related to remote
control locomotives, alerters, and locomotive cab temperature, issues
that the Working Group discussed, but ultimately did not reach
consensus. Id. Many comments were submitted to the public docket in
response to the NPRM. The comment period closed on March 14, 2011, and
after considering the public comments FRA issued a final rule on April
9, 2012. See 77 FR 21312.
In accordance with the provisions of Executive Order (E.O.) 13563,
the final rule also modified the existing Locomotive Safety Standards
based on what was been learned from FRA's retrospective review of the
regulation. E.O. 13563 requires agencies to review existing regulations
to identify rules that are overly burdensome, and when possible, modify
them to reduce the burden. As a result its retrospective review, FRA
determined that reductions in the burdens imposed on the industry could
be achieved by modifying the regulations related to periodic locomotive
inspection and locomotive headlights. FRA continues to believe that the
modifications related to periodic locomotive inspection and locomotive
headlights that are contained in the final rule do not reduce railroad
safety.
Following publication of the final rule, parties filed petitions
seeking FRA's reconsideration of some of the final rule's requirements.
Petitioners included: The American Association for Justice (AAJ), the
Association of American Railroads (AAR), the Central Railway MFG (CRM),
D. P. Honold (Honold), David Lombardi (Lombardi), Paul, Reich & Myers,
P.C. (PRM), Wabtec Corporation (Wabtec), and the ZTR Equipment
Management (ZTR). The petitions filed by these parties principally
relate to the following subject areas: locomotive electronics;
locomotive alerters; remote control locomotives; periodic inspection of
locomotives; preemption of State law; and, locomotive diesel exhaust.
In addition to the issues raised in the petitions, FRA has determined
that clarification or modification of the final rule is needed with
respect to placement of the air flow method (AFM) indicator calibration
date on the Form 6180-49A; the duration of the remote control
locomotive (RCL) audio indication; and the date by which railroads and
vendors must notify FRA regarding electronic locomotive control
products that are under development. This document responds to all the
issues raised in the petitions for reconsideration and clarifies and
amends certain sections of the final rule in response to some of the
issues raised in the petitions and clarifies certain other final rule
requirements.
II. Issues Raised by Petitions for Reconsideration
In response to the petitions for reconsideration, FRA is modifying
the Locomotive Safety Standards final rule related to: Sec. 229.303,
Applicability of the Locomotive Electronics; Sec. 229.305, Definition
of New or Next-Generation Locomotive; Sec. 229.140(d), Locomotive
Alerters; Sec. 229.15(b)(4), RCL Conditioning Run; Sec.
229.15(a)(12)(xii), RCL Audio Indication; and, Sec. 229.23(b)(2)
Mechanical Inspection. FRA respectfully refers interested parties to
the agency's section-by-section analysis of the final rule and the NPRM
for a full discussion of those aspects of the rulemaking that remain
unchanged. See 76 FR 2199 and 77 FR 21312. The following is a
discussion of each of the issues raised in various petitions for
reconsideration. These discussions should be read in conjunction with
the specific section-by-section analysis that identifies the specific
modifications or clarifications being made to the text of the final
rule.
A. Locomotive Electronics
Several of the petitions request clarification or revision of
certain requirements related to locomotive electronics. FRA's responses
to each of the requests that were made in the petitions are provided in
this discussion and the specific regulatory changes or modifications
are discussed in the section-by-section analysis. For discussion
purposes, the responses have been grouped into seven general
categories: (1) Responsibility and Applicability, (2) Definitions, (3)
Safety Analysis, (4) Appendix F, (5)
[[Page 75046]]
Confidentiality and Other Product Development Issues, (6) Small
Businesses, and (7) Training.
1. Responsibility and Applicability
AAR's petition recommends that FRA ``place responsibility for
compliance [with the locomotive electronics requirements that are
contained in part 229, subpart E (Locomotive Electronics Requirements)]
on the suppliers instead of the entities merely purchasing products.''
According to the AAR, it ``is illogical to hold railroads responsible
for compliance [with the Locomotive Electronics Requirements] for
products they do not produce;'' and, it is ineffective to ``hold
railroads responsible for products developed by other companies since
individual railroads will not have the complete picture of problems or
developments associated with the products.''
FRA declines to adopt the AAR's recommendation to place
responsibility for compliance with the Locomotive Electronics
Requirements with only the suppliers and denies this portion of AAR's
petition. The purpose of the Locomotive Electronics Requirements is to
ensure that safety critical electronic locomotive control systems,
subsystems, and components are designed, operated, and maintained to
promote the safe functioning of these systems. FRA believes that both
the railroads and suppliers play an important role in ensuring the
safety of these systems and that both need to be responsible for
properly fulfilling their respective roles.
The final rule provides that a railroad shall develop a Safety
Analysis (SA) of each product created in conjunction with safety-
critical electronic control systems, subsystems, and components, See
Sec. 229.301(a)-(b). Section 229.7(b) of the existing regulation
provides that, ``any person (including but not limited to a railroad;
any manager, supervisor, official, or other employee or agent of a
railroad; any owner, manufacturer, lessor, or lessee of railroad
equipment, track, or facilities; any independent contractor providing
goods or services to a railroad; and any employee of such owner,
manufacture, lessor, lessee, or independent contractor)'' who violates
any requirement of part 229 or of the Locomotive Inspection Act or
causes the violation of any such requirement can be subject to civil
penalties to the same extent as the railroad. Thus, the onus of
responsibility for ensuring safety compliance does not lie solely on
the railroads. Compliance is a responsibility shared between the
railroads, suppliers, manufacturers, and contractors to ensure the safe
handling and functioning of locomotives for industry employees and the
public.
For enforcement purposes, FRA retains the authority to determine
which entity is more culpable for non-compliance related to a specific
product and focus enforcement efforts on that entity or a group of
entities. The determination would be based on a fact specific analysis
that weighs each entity's role in the non-compliance. However, FRA
retains the authority and discretion to hold each and every entity
responsible for non-compliance, as provided for in Sec. 229.7(b).
While FRA does acknowledge that the supplier will most likely
prepare the initial SA for the product, it is the railroad that makes
the final determination of where, when, and how a supplier's product is
used. The supplier may, or may not, be fully aware of the manner in
which the product is used, nor can it ensure that a product is being
used within the design limitations laid out for the product. If, for a
given product, the railroad always utilizes the supplier's product
within the design limitations as laid out in the SA, implements all of
the suppliers design changes as they occur, and does not implement
third-party changes that are outside the scope of the SA, then no
action would be required by the railroad. The SA would either remain
unchanged as in the first case, or would have been updated by the
supplier or third-party in the later cases when the supplier or third-
party implemented the product change.
Only the railroad would know if they choose not to implement all
product design changes specified by a manufacturer, choose to implement
additional third party changes to the supplier's product, or choose to
use the product in a manner not foreseen in the supplier's SA. If such
choices are made by a railroad, the railroad would responsible for
ensuring the safety of the product. To comply with these requirements,
the railroad may choose to make the changes to the SA to address the
changes themselves, it may have the supplier revise the SA to account
for the railroad's actions, or it may have a third-party revise the SA
to address the differences between the railroad's actual use and the
suppliers design use.
Section 229.307(a) of the final rule requires that the railroad
develop the SA for a product prior to its use. The railroad is not
prohibited from delegating authority for creating or modifying the SA.
While a supplier may have contractual obligations to a railroad for
providing and maintaining a product that meets a minimum level of
safety designated by the railroad, it is ultimately the railroad that
makes the determination to: accept or reject the product; place the
product in use; and, maintain the product in such a manner to ensure
the safety and integrity of the product. FRA recognizes the possibility
exists that a supplier may discontinue support for its product for any
number of reasons. For example, the supplier may leave the market
place. Such an action by a supplier does not preclude the railroad from
continuing to operate and maintain the product despite the lack of a
responsible supplier. In such a situation, while the railroad remains
responsible for the SA, there is no requirement that it modify the SA
as provided for in the regulation, electing to have the changes made by
a third-party. It is only in the situation where there is no vendor or
third-party available that the railroad alone must execute necessary
changes to the SA.
Similarly, Sec. 229.309(a) of the final rule places responsibility
on the railroad for product changes that are accepted by a railroad. As
with Sec. 229.307(a), Sec. 229.309(a) does not prohibit the railroad
from delegating responsibility for the SA changes to the supplier or a
third party designated by the railroad. FRA recognizes that the
supplier is in the best position to aggregate reported product failures
and safety hazards. However, the individual railroads that are using
the product are in the best position to note the occurrence of a
product failure. During operation, when a safety hazard exists, it is
also the railroad that is utilizing the product that is best able to
determine what immediate actions are necessary to ensure the safety of
the crews and public pending final resolution of the problem by the
supplier.
Suppliers and other parties are required to aggregate and report
problems associated with a product to the railroads, so the railroads
may determine what the appropriate course of action is to take in their
specific circumstances. See Sec. 229.309(b) and (c). Suppliers that
fail to make these reports to the potentially affected railroads are
potentially subject to enforcement action by FRA. FRA believes that
actions by suppliers and other parties that amount to hidden recalls
are unacceptable. Such actions place individual railroads in an
untenable position.
FRA also discourages duplicate submissions of SAs for the same
product. There is no requirement to submit a SA to FRA unless one is
specifically requested by FRA. Indeed, Sec. 229.311(a) was clearly
intended to not require action by FRA. The SA is
[[Page 75047]]
assumed to have been reviewed and approved by the railroad. FRA does
not believe the requirement that the railroad review and approve the SA
to be especially onerous, and believes that it reflects what would be
appropriate risk mitigation actions by the railroad. FRA finds it
extremely unlikely that a railroad would knowingly use a supplier
product without understanding the potential hazards and limitations of
a product--information that would be specifically detailed in the SA.
FRA also believes that the railroad will maintain the SA for the life
of the product's use on the railroad. The information in the SA will
provide a written record of a products design and safety limitations
and hazards to all personnel not intimately involved with the initial
acquisition.
In its petition, Wabtec requests that the final rule be changed to
eliminate Sec. 229.303(c). According to Wabtec, the railroad and the
supplier should not be responsible for evaluating whether products or
product changes will result in degradation of safety, or a material
increase in safety-critical functionality. FRA believes that it is the
responsibility of the railroad and the supplier to evaluate all
products with regards to their safety functionality irrespective of the
presence or lack of a prior formal SA as required by this regulation.
Product changes must be evaluated to determine if they change the level
of safety provided, and if the change is such that it results in
degradations in safety, or an increase in safety functionality, the
product should be formally evaluated and documented in a SA. FRA
declines to make any change based on the Wabtec request and denies this
portion of Wabtec's petition.
Wabtec also requests that the final rule be changed to exempt
products that undergo minor changes from the SA requirements contained
in subpart E. As stated in the preamble to the final rule, ``products
with slightly different specifications that are used to allow the
gradual enhancement of a product's capability do not require a full
safety analysis.'' See 77 FR 21331. FRA's intent in the final rule is
not to require a full SA for minor product changes or enhancements.
However, FRA remains concerned that a series of minor changes over time
may result in a major change in functionality from that initially
defined and justified in the original SA. As a consequence, FRA does
not agree with providing a general exemption as requested by Wabtec and
denies Wabtec's petition on this issue. At some point, cumulative
changes over time may require a new SA to be developed.
a. Section 229.303(a)(1)
In its petition, Wabtec requests that FRA clarify the language
contained in Sec. 229.303(a)(1) of the final rule, which states that
``products that are in service prior to June 8, 2012'' are exempt from
the locomotive electronics requirements contained in subpart E.
According to Wabtec, the exemption should apply to products that have
been fully developed prior to June 8, 2012. FRA agrees that it intended
the final rule to cover products that are fully developed by June 8,
2012, although the products may not yet be in service and agrees to
change the language contained in Sec. 229.303(a)(1) to clarify the
intent of the final rule. Thus, FRA grants Wabtec's petition in this
regard and this document changes the language contained in Sec.
229.303(a)(1) of the final rule to state that ``products that are fully
developed prior to June 8, 2012'' are exempt from the locomotive
electronics requirements contained in subpart E.
b. Section 229.303(a)(2)
Wabtec's petition also requests that FRA clarify the language
contained in Sec. 229.303(a)(2) of the final rule, which states that
``products that are under development as of October 9, 2012, and are
placed in service prior to October 9, 2017'' are exempt from the
locomotive electronics requirements contained in subpart E. According
to Wabtec, the exemption should apply to products that have been fully
developed prior to October 9, 2017. FRA agrees that it intended for the
final rule to cover products that are fully developed by October 9,
2017, even though they may not be in service as of that date and agrees
to change the language contained in Sec. 229.303(a)(2) to clarify the
intent of the final rule. Thus, FRA grants Wabtec's request and this
document modifies the language contained in Sec. 229.303(a)(2) to
state that ``products that are fully developed prior to October 9,
2017'' are exempt from the locomotive electronics requirements
contained in subpart E.
2. Definitions
The AAR requests that FRA clarify the definition for the term ``new
or next-generation locomotive'' that is provided in Sec. 229.305 of
the final rule. According to the AAR, a definition is provided for the
term, but the term is not used in subpart E and that there is no need
to define a term, if it is not used in the subpart. FRA agrees, grants
AAR's petition in this regard and removes the term ``new or next-
generation locomotive'' from Sec. 229.305 in this document.
ZTR requests that FRA clarify the definition of the term ``safety-
critical'' as it is used in the final rule. FRA believes that the
definition that is provided in Sec. 229.305 of the final rule is clear
and believes that ZTR's petition fails to explain the definition's lack
of clarity. In its petition, ZTR simply states that the definition of
``safety-critical'' is not clear to ZTR, when it considers its entire
product line, including systems and subsystems. FRA's understanding is
that generally, locomotive manufacturers consider their product to be
the entire locomotive. This includes systems and subsystems. In this
situation, the manufacturers' extensive knowledge of the product allows
them to conduct a safety analysis on the safety critical elements,
including locomotive control systems. Similarly, major suppliers to
locomotive manufacturers are also familiar with their own products.
They too can clearly identify the safety critical elements and conduct
the safety analysis accordingly. Safety-critical electronic systems
include, but would not be limited to: Directional control; graduated
throttle or speed control; graduated locomotive independent brake
application and release; train brake application and release; emergency
air brake application and release; fuel shut-off and fire suppression;
alerters; wheel slip/slide applications; audible and visual warnings;
remote control locomotive systems; remote control transmitters; pacing
systems; and speed control systems.
While these provide general examples, any specific item must be
considered in the context of its use. For example, fuel injectors might
possibly be considered as providing ``fuel shut off.'' However, in the
context of the entire locomotive, they do not act as the primary means
of ``fuel shut off,'' but rather are an element of the engine, the fuel
to which is controlled by a separate independent control system. In
this situation the injector's would clearly not be safety-critical,
while other elements of the fuel control system may. FRA believes that
manufacturers are capable of determining which elements of their
product line contain safety critical elements, and which ones do not.
As such, FRA denies this portion of ZTR's petition and declines to
change the definition of ``safety critical.''
Wabtec requests that FRA revise the definition of the term
``product'' that is contained in Sec. 229.305 of the final rule to
clarify what is meant by the phrase ``directly related to'' that is
used in the definition. In the final rule, the term ``product'' means
``any safety critical electronic locomotive control system,
[[Page 75048]]
subsystem, or component, not including safety critical processor based
signal and train control systems, whose functions are directly related
to safe movement and stopping of the train as well as the associated
man-machine interfaces irrespective of the location of the control
system, subsystem, or component.'' (Emphasis added). FRA believes that
the definition of the term ``product'' is clear and is denying this
portion of Wabtec's petition and declines to revise the definition.
The locomotive electronics requirements contained in subpart E are
performance based. They are intended to address the application of
products, processes, and technologies that have already been identified
as well as new and emergent products, processes, and technologies not
yet identified. They are also intended to address the application of
products, processes, and technologies in manner different than they are
currently being used. FRA believes that it is not possible to envision
all possible applications of a technology and enumerate all possible
products arising from that technology. FRA believes that any
enumeration as requested in Wabtec's petition would be inappropriate.
3. Safety Analysis
According to ZTR's petition, due to the complexity and vastness of
the certifications required by Appendix F to part 229 of the final
rule, each railroad could have their own SA, and in some cases, they
could conflict across the same product line. ZTR requests that FRA
revise the final rule to resolve this potential conflict.
FRA agrees that there may be differences not only in a product
line, but also for the same product. FRA also believes that different
railroads may require different levels of detail from their suppliers.
However, FRA does not see where this should be an issue for a supplier
as it reflects the reality of the market place. Currently, when
different railroads purchase the same products from the same vendor,
each railroad may require unique customizations to suit that railroads
business and operational needs. Different railroads may have different
standards for ``due diligence,'' and therefore, may require different
degrees of granularity of the information provided by the vendor. FRA
does agree that different elements of a product line may have a
different SA based on the complexity of the product and its intended
use by the railroad. However, FRA believes that requiring a SA which
addresses the complexity and intended use of the product by a railroad
is critical to ensuring that the product's safety functionality not
only operates correctly, but does so in the environment which the
railroad intends it to be used. This type of customized analysis
becomes especially critical if different railroads desired to use the
product in different manners to support the railroads operations.
Without this type of customization, the risk exposure of the
railroad, the railroads employees, and the public, cannot be determined
by either the railroad or FRA. Generally, only a single inclusive SA
that addresses the different use cases for the products used by the
different railroads is required. FRA would recognize as acceptable any
appropriately inclusive SA done under the auspices of one railroad, or
a consortium of railroads.
ZTR's petition also states that because FRA's approval of the SA is
``open-ended,'' it is subject to interpretation by each individual
reviewer and may be inconsistent. Section 229.311(b) of the final rule
is intended to limit FRA's review of SAs. FRA reemphasizes that it
conducts reviews of SAs on a case-by-case basis, and does not formally
approve or disapprove SAs. FRA anticipates that the railroad will
exercise due diligence in the design and review process prior to
placing the product in use for purposes that are outside of the scope
of subpart E. A vendor's railroad customer therefore would determine
the level of detail necessary in a SA to prove that they have
demonstrated due diligence prior to a product change, or placing a new
or next generation product in use. Because individual railroads may
have different expectations as to what is required to them to
demonstrate due diligences, any SA, by necessity will be subject to
differing interpretations and differing degrees of granularity. This,
of course, does not restrict FRA review where it appears that due
diligence has not been exercised, there are indications of fraud or
malfeasance, or the underlying technology or architecture represent
significant departures from existing practice.
Also, as previously indicated, the locomotive electronics
requirements that are contained in subpart E of the final rule are
performance based, and therefore, are by their very nature somewhat
open-ended. As its name implies, performance based regulation and
oversight is an approach that focuses on performance, as well as the
desired results and outcomes. This approach differs from the
traditional, prescriptive regulatory and oversight approach in that it
emphasizes what must be achieved, rather than how the desired results
and outcomes must be obtained. As is the case with any such regulatory
and oversight approach, a variety of different issues and concerns can
exist that reflect the specific concerns of the overseeing
organization. Issues that concern the frequency and nature of reviews
and inspections, the style of interaction of inspectors and inspected
entities, the way in which sanctions are used, and the willingness of
organizations responsible for to accept alternative approaches to
accomplishing the same end will differ.
In the specific context of FRA regulatory oversight, any regulatory
approach must confront a fundamental issue of how tight controls should
be in promoting consistency and accountability versus how much
discretion should be granted in promoting flexibility and innovation.
As discussed in detail below, the performance based approach to
regulation moves this balance from promoting consistency and
accountability under current prescriptive approaches toward a greater
emphasis on flexibility and innovation. At issue for any particular
regulatory situation is how that balance is being struck.
FRA fully recognizes the reality that this regulation rests on what
FRA inspectors do in the field when enforcing the regulation and
monitoring performance, and that this is where the potential for
inequities and inconsistencies exist. FRA also recognizes that
regulated entities will react negatively to the lack of predictability
if performance based regulations are inconsistently interpreted.
However, FRA also believes that regulated entities will see little
improvement over the prior more prescriptive regulations, if
performance based regulations are interpreted too narrowly in allowing
for a limited range of solutions. While there is the risk that there
may be some inconsistencies, FRA believes the potential benefits of
greater effectiveness in reaching specific regulatory objectives,
flexibility in the means of adhering to the regulation, increased
incentives for innovation, and reduced costs of compliance for
regulated entities far outweigh the risks of inconsistencies in the
application of regulations.
ZTR's petition also requests that FRA clarify when a
``grandfathered'' system may have to undergo a SA due to design change.
FRA clarifies as follows; FRA believes that the evaluation of a product
must be done on a case-by-case basis within the context of the proposed
use of the product. Products that result in degradation of safety or a
material
[[Page 75049]]
increase in safety critical functionality are not exempt. Products with
slightly different specifications that are used to allow the gradual
enhancement of the product's capabilities do not require a full SA but
do require a formal verification and validation to the extent that the
changes involve safety-critical functions. The grandfathering provision
does not apply to new or next-generation locomotive control system,
which refers to locomotive control products using technologies or
combinations of technologies not in use on the effective date of this
regulation, products that are under development as of October 9, 2012,
and are fully developed by October 9, 2017, or products without
established histories of safe practice. Traditional, non-microprocessor
systems, as well as microprocessor and software based locomotive
control systems that are currently in use have used existing
technologies, existing architectures, or combinations of these to
implement their functionality are grandfathered.
Wabtec's petition notes that FRA is silent on the estimated costs
of preparing and maintaining a SA that is required by the final rule.
FRA believes that the requirements that are contained in subpart E
related to the SA represent good engineering practice for safety-
critical systems, and that the costs of such an effort are a normal
part of the system design lifecycle. Meeting these requirements
represents an exercise of the due diligence required on the part of the
railroad and/or supplier to minimize product liability. FRA believes
that by allowing for broad flexibility in the specific standards,
processes, and procedures used by the railroad and vendor, the railroad
and vendors can accomplish this in a manner which both satisfies good
engineering practice and is consistent with the railroads and vendors
business philosophy. As such, FRA disagrees with Wabtec's petition,
which alleges that the SA requirements are so inflexible that they will
result in significant product cost increases or decreases in vendor
profitability. FRA believes that virtually all companies developing
safety critical systems currently conduct a comprehensive SA as an
integral part of its products lifecycles. FRA does not specify any
particular format for the SA, so there should be no additional costs
for preparing documents that the suppliers are presently preparing in
the normal course of their business.
4. Appendix F
In its petition, ZTR contends that there is too much room for
interpretation in regards to the number and level of certifications
suggested in Appendix F for any and all products. ZTR asserts that it's
not clear whether 5% or 95% of these certifications will be requested,
or whether they will be requested for simpler or more complex products.
Contrary to ZTR's assertion, there is no requirement in the final rule
for certification by the FRA, or the railroad purchasing a product for
electronic systems covered by part 229. There is a requirement that the
railroads ``* * * shall develop a Safety Analysis (SA) for each product
subject to this subpart prior to the initial use of such product on
their railroad.'' The requirements contained in the final rule hold
individual railroads accountable for ensuring that an appropriate SA
for products that they buy has been done and the analysis is
``* * * based on good engineering practice and should be consistent
with the guidance contained in Appendix F (emphasis added) of this
part in order to establish that a product's safety-critical
functions will operate with a high degree of confidence in a fail-
safe manner (see 49 CFR 229.307(a) and (b).''
FRA involvement in the review process of a railroad's SA is on a
case-by-case basis. See Sec. 229.311(b) of the final rule. ZTR is
correct in noting that that the regulation does not specify the scope
of the SA. Such specificity would be inconsistent with the performance
based nature of the regulation. The scope of a SA will vary greatly
depending upon the function of the product in question, the safety
criticality of its elements, its implementation, and good engineering
practice.
FRA notes that the use of Appendix F is not mandatory. Appendix F
offers one approach to developing a SA. There are a number of equally
effective or better approaches. FRA encourages railroads and
manufacturers to select an approach best suited to their business
model. FRA would consider as acceptable any approach that would be
equal to, or more effective than, the one outlined in Appendix F. As
such, FRA is denying those portions of the petitions requesting
modification of the appendix and declines to revise Appendix F of the
final rule.
Wabtec requests that FRA revise the final rule to standardize an
approach to developing a SA and the appropriate level of human factors
analysis. As FRA states in both the preamble and the rule text to the
final rule, Appendix F represents only one possible set of minimum
recommended practices for design and safety analysis. FRA recognizes
that there may be any number of practices in use both within and
outside the railroad industry that can be used to demonstrate the same
or better levels of safety. FRA also recognizes that the practices and
standards that should be implemented may vary depending on the safety
criticality and sensitivity of the product in question. Rather than
mandate that all railroads and suppliers adopt the same standards and
practices for all products, regardless of the product in question and
the railroads and vendors already defined standards and processes, FRA
believes it is more appropriate to outline representative general
standards and requirements and address specific standards on a case-by-
case basis. Therefore, FRA denies Wabtec's petition in this regard and
declines to revise the final rule. That said, FRA would not be adverse
to the industry's use of a specific railroad industry standard that
provides the same or equivalent level of functionality, if such a
standard were developed and approved by the industry.
Wabtec's petition also requests that FRA revise the final rule to
specify a single applicable standard for verification and validation of
products. FRA believes that the latitude granted in the final rule
enables railroads and vendors to accomplish the requirements in a
manner that not only satisfies the technical requirements, but also is
consistent with the railroads and vendors existing business practices.
FRA continues to believe that mandating a single standard without due
regard to existing business practices and engineering philosophies
would actually result in increased costs as well as decreased
innovation. Thus, FRA denies Wabtec's petition on this issue and FRA
declines to make any change to the final rule. FRA notes that it would
not be adverse to the industry's use of a specific railroad industry
standard that provided the same or equivalent level functionality, if
such a standard were developed and approved by industry.
5. Confidentiality and Other Product Development Issues
The petitions of both ZTR and Wabtec express concerns regarding the
intellectual property protection and public disclosure of design
documentation, as well as development plans without any guarantee of
confidentiality. The SA and associated documentation is primarily
shared between the supplier and its railroad customer and covered by
mutually agreed non-disclosure agreements. To ensure confidential
treatment by FRA of
[[Page 75050]]
business sensitive information that is provided to FRA, a request for
confidential treatment should be made as instructed by 49 CFR 209.11.
Thus, FRA believes that no change to the final rule is necessary. It is
the responsibility of the railroad and their suppliers to clearly
designate what elements of a submission to FRA should be exempted from
a public request and the basis of such an exemption.
ZTR also expresses concern that the final rule will negatively
impact the nimbleness of product development for suppliers and most
certainly will reduce the amount of Research and Development (R&D)
invested in rail. According to the ZTR, there is already a substantial
risk on the part of the supplier during the R&D stages of product
development. The outcome of this ruling will require that at the
beginning of the R&D cycle, the effort and cost required to understand
and satisfy the SA must be clearly understood. FRA disagrees. The
regulation places no restrictions on the type and nature of research
and development that may be undertaken. The regulation does require
that products resulting from R&D and development efforts are
proactively designed and built to demonstrate they can meet an
acceptable level of safety over the life of the product. Proven safety
methods and techniques are used to prevent, eliminate and control
hazards. Such safety considerations begin at the initial design stages
of a project. Although design cannot eliminate unsafe acts by
irresponsible employees, it can incorporate measures to reduce the
individual's ability to take a risk.
One of the biggest challenges to life cycle safety is cost. The
influences to overall project/system safety considerations have more of
an impact and cost less when factored into the mix early on. Using this
cost influence concept allows designers to minimize cost impact while
positively influencing the safety considerations and implementations to
systems and projects. However, cutting too many costs at the design
level can compromise workers' safety and result in long-term economic
losses associated with system downtime, on-site design repairs, and
injury to workers that may result in legal action. Obviously, cutting
too many corners can be more costly and unsafe than if the original
budget had provided sufficient funding for life cycle safety.
According the ZTR's petition, safety originates from certainty and
therefore railroad safety requirements need to be clearly spelled out
and not subject to interpretation. This knowledge would enable more
intelligent decision making when evaluating and moving forward with R&D
investments. It also would keep product costs to a minimum, while
ensuring safety is at the forefront. Again, FRA disagrees. System
safety begins the structured assessment of potential hazards and risks
with the aim to design out problems at source rather than incorporate
measures at a later time to deal with a problem. The approach uses
systems theory and systems engineering to prevent foreseeable accidents
and to minimize the result of unforeseeable accidents. Losses in
general, not just human death or injury are considered. Such losses may
include destruction of property, loss of mission, and environmental
harm.
The design goal is the management of hazards: Their identification,
evaluation, elimination, and control through analysis, design and
management procedures. Safety considerations must be part of the
initial stage of concept development and requirements definition. The
degree to which it is economically feasible to eliminate a hazard
rather than to control it depends upon the stage in system development
at which the hazard is identified and considered. Early integration of
safety considerations into the system development process allows
maximum safety with minimal negative impact. The alternative is to
design the product, identify the hazards, and then add on protective
equipment to control the hazards when they occur, which is usually more
expensive and less effective.
6. Small Businesses
According to the CRM's petition, the requirements contained in the
final rule related to locomotive electronics do not take into account
the limited resources of small railroad suppliers and favor
conglomerate suppliers that are currently in the market place. FRA has
exempted currently existing products from the requirement to create a
SA and provided a grace period for products already under development
and will be fully developed by October of 2017. For changes to existing
products, the need for a SA has been limited to changes that result in
degradations in safety or an increase in safety functionality. FRA
recognizes that there may be any number of practices in use both within
and outside the railroad industry that can be used to create a SA and
demonstrate the same or better levels of safety. FRA also recognizes
that the practices and standards that should be implemented may vary
depending on the safety-criticality and sensitivity of the product in
question. Rather than mandate all railroads and suppliers adopt the
same standards and practices for all products, regardless of the
product in question and the railroads and vendors already defined
standards and processes, FRA believes it is more appropriate to outline
representative general standards and requirements and address specific
standards on a case-by-case basis. To that end, FRA has indicated in
both the preamble and the rule text of the final rule that Appendix F
represents only one possible set of minimum recommended practices for
design and safety analysis. FRA believes that the latitude granted in
the final rule enables railroads and vendors to accomplish the
requirements in a manner that not only satisfies the technical
requirements, but also is consistent with the railroads and vendors
existing business practices. FRA believes that mandating a single
standard without due regard to existing business practices and
engineering philosophies would actually result in increased costs as
well as decreased innovation.
FRA believes that the requirements of subpart E related to the SA
represent good engineering practice for safety critical systems, and
that the costs of such an effort are a normal part of the system design
lifecycle. Meeting these requirements represents an exercise of the due
diligence required on the part of the railroad and/or supplier to
minimize product liability. FRA believes that by allowing for broad
flexibility in the specific standards, processes, and procedures used
by the railroad and vendor, the railroad and vendors can accomplish
this in a manner which both satisfies good engineering practice and is
consistent with the railroads and vendors business philosophy. Thus,
FRA disagrees with the assertions of CRM and continues to believe that
the approaches taken in the final rule are consistent with existing
good business practice and provide necessary flexibilities to allow
small business to comply with the requirements without undue hardship.
7. Training
AAR's petition requests that FRA eliminate the requirement related
to training that is contained in Sec. 229.317 of the final rule. FRA
declines to eliminate the requirement for developing training based on
task analysis (TA). FRA believes that the TA based training addresses a
need for training that will address human factors related to the
implementation of subpart E. The TA analysis provides the background,
setting, and context for training. AAR
[[Page 75051]]
appears to express concern regarding the cost of training, but fails to
provide any human factors based rationale for elimination of the
requirement.
TA is a fundamental methodology in the assessment and reduction of
human error. The term TA can be applied very broadly to encompass a
wide variety of human factors techniques. Nearly all TA techniques
provide, as a minimum, a description of the observable aspects of
operator behavior at various levels of detail, together with some
indications of the structure of the task. These are action-oriented
approaches. Other techniques focus on the mental processes, which
underlie observable behavior, e.g. decision making and problem solving.
These are known as cognitive approaches.
TA methods can be used to eliminate the preconditions that give
rise to errors before they occur. They can be used as an aid in the
design stage of a new system, or the modification of an existing
system. They can also be used as part of an audit of an existing
system. TA can also be used in a retrospective mode during the detailed
investigation of major incidents. The starting point of such an
investigation must be the systematic description of the way in which
the task was actually carried out when the incident occurred. This may,
of course, differ from the prescribed way of performing the operation,
and TA provides a means of explicitly identifying such differences.
Such comparisons are valuable in identifying the immediate causes of an
accident.
A TA is an important component of the instructional systems design
(ISD) approach to training. As the ultimate purpose of a systematic
approach to training design is to produce a properly trained person,
the training designer must understand a job and its contents in
considerable detail to design, develop and carry out effective
training. If this step is not done, and done well, there will be no
factual basis for development of effective, efficient instruction.
The analysis process provides information for the design and
development of education/training that, in turn, is used to produce
organizations that can accomplish their missions, and individuals
capable of performing their tasks and duties. TA: (1) Identifies valid
training and non-training solutions to organization and individual
performance deficiencies; (2) determines what is trained in the form of
critical, collective, and individual tasks, and supporting skills and
knowledge; (3) provides an accurate description of identified critical
tasks; and, (4) provides a definitive performance standard that
describes what constitutes successful organization and individual
performance of the task. Based on the discussion above, FRA denies that
portion of AAR's petition related to this issue and declines to make
any changes to this portion of the final rule.
B. Locomotive Alerters
AAR's petition requests that FRA amend the alerter requirement that
is contained in Sec. 229.140(d) of the final rule to eliminate the
lower bound for the alerter warning indication interval. The final rule
requires that an alerter provide a warning indication at a frequency
that is within 10 seconds of the amount of time that is calculated by
the following formula: Timing cycle specified in seconds = 2400 / track
speed. According to AAR, its standard differs from the final rule
because it establishes a maximum interval of approximately 120 seconds.
The final rule requires a warning indication interval that could be
much greater than 120 seconds when operating at speeds of less than 20
mph.
AAR states that alerter warning indications at intervals that
exceed 120 seconds (nominal) at or below 20 miles per hour are
incompatible with the existing AAR standard for alerters and that more
frequent alerts will enhance safety. While limiting their discussion to
speeds under 20 miles per hour, AAR then petitions for a rule change
which would allow the alerter to be activated more frequently than the
formula given in the regulation at all speeds. FRA denies the petition
for speeds of 20 mph and above, and will retain the formula given in
the final rule. Arguments made by AAR for a maximum interval of 120
seconds (nominal) at speeds below 20 mph have merit, particularly in
light of the findings of the National Transportation Safety Board's
(NTSB) investigation of the rear end collision at Red Oak, Iowa, on
April 17, 2011. See NTSB Accident ID DCA11FR002, Operations Group
Factual Report at page 6. In that accident, two lives were lost at a
speed only three mph faster than the proposed dividing speed, and
approximately seven seconds away from activation of the alerter.
Although neither the formula in the final rule, nor the AAR proposed
maximum interval of approximately 120 seconds, would have prevented the
fatalities at Red Oak, the accident is an example of a variance of a
few seconds of the timing of the alerter warning indication can make a
difference, even at relatively low speeds. For speeds below 20 mph, FRA
is partially granting AAR's Petition and revising the alerter timing to
120 seconds, with the same 10 second tolerance that is provided for in
this section for all other speeds. The specific changes are discussed
in the section-by-section analysis below.
C. Remote Control Locomotives
1. Sec. 229.15(b)(4) RCL Conditioning Run
AAR's petition requests that FRA clarify the RCL requirement
related to conducting conditioning runs that are contained in Sec.
229.15(b)(4) of the final rule. Section 229.15(b)(4) provides that:
``[e]ach time an RCL is placed in service and at the start of each
shift locomotives that utilize a positive train stop system shall
perform a conditioning run over tracks that the positive train stop
system is being utilized on to ensure that the system functions as
intended.'' According to the AAR, its understanding is that FRA
intended that: (1) An RCL must pass over only one transponder to ensure
that the system is working; and (2) that the conditioning run is
required to be performed at the beginning of each shift, but not
necessarily the first task that is performed by the RCL operator.
However, AAR is concerned that the requirement could be misinterpreted
to mean that a conditioning run is required: (1) Over each and every
track that utilizes a positive train stop system that could be utilized
by an RCL during a shift; or (2) at the beginning of every shift before
any work is done.
FRA agrees that the existing final rule language could potentially
be misinterpreted as stated by AAR. Such misinterpretations could lead
to impractical results from an operational perspective. For example, at
a hump yard where positive train stop is used, the requirement could be
misinterpreted to mean that switching over the hump would have to cease
while the conditioning run was being performed. As another example, in
the same hump yard, the requirement could be misinterpreted to mean
that when an RCL that is coupled to cars being moved over the hump when
the previous shift ends with the job only partially complete (e.g. some
cars are halfway up the hump), then the new RCL operator would have to
perform a conditioning run prior to completing the hump move. To avoid
these misinterpretations, FRA is clarifying the RCL requirement related
to the conditioning run that is contained in Sec. 229.15(b)(4) of the
final rule as discussed in the section-by-section analysis below.
2. Sec. 229.15(a)(12)(xii) RCL Audio Indication
AAR's petition also requests clarification of the requirement
related
[[Page 75052]]
to the audio indication of RCL movement that is contained in Sec.
229.15(a)(12)(xii) of the final rule. This section requires that the
operator control unit (OCU) shall be capable of providing an audio
indication of movement of the RCL. According to AAR, all RCL's
currently provide an audio indication of movement when they are moving
via the locomotive bell. The AAR assertion that this audio indication
complies with the requirement that is contained in Sec.
229.15(a)(12)(xii), because the OCU controls the movement of the RCL
and the OCU provides an audio indication of the movement of the RCL via
the locomotive bell. In addition, the AAR expresses concern that this
requirement could be misinterpreted to mean that the OCU is required to
produce an audio indication that emanates directly from the OCU, rather
than from the RCL. FRA intended for the final rule to require the audio
indication to emanate from the RCL as it is being operated by the OCU.
A properly sounding locomotive bell is an acceptable example of an
audio indication that emanates from the locomotive. The audio
indication functions as a warning to people who are nearby the moving
locomotive and not necessarily nearby the OCU. FRA also recognizes that
the existing language could lead to misinterpretation, as stated in the
AAR petition. Therefore, FRA grants AAR's petition related to this
issue and agrees to clarify the language that is contained in Sec.
229.15(a)(12)(xii) to identify the RCL as the source of the audio
indication.
D. Locomotive Periodic Inspection and Mechanical Inspection
In its petition, AAR requests that FRA revise the periodic
inspection requirement that is contained in Sec. 229.23 of the final
rule to make the 184-day interval optional. FRA believes that the 184-
day interval is optional and does not believe anything in the final
rule states otherwise. However, FRA's expectation is that the railroad
will note on the FRA Form 6180-49A whether a locomotive is on a 92-day
or 184-day inspection interval. The railroad must choose one inspection
interval and stick with it until the inspection cycle is completed.
Section 229.23(b)(2) Daily Inspection by QMI
AAR's petition also requests that FRA modify the frequency of the
daily inspection that is performed by a qualified mechanical inspector
(QMI daily inspection) that is contained in Sec. 229.23 of the final
rule. The final rule requires a QMI daily inspection to be performed
every 31 days. According to the AAR, the final rule could require a QMI
daily inspection within a few days before the next periodic inspection,
which AAR states would include a QMI daily inspection, by standard
industry practice. The AAR asserts that two QMI daily inspections
within days of each other cannot be justified and recommends that the
final rule be modified so that a QMI daily inspection is not required
to be performed when a periodic inspection is due within 41 days of the
previous QMI daily inspection, effectively permitting 10 days of
flexibility. While recognizing that overly frequent QMI daily
inspections could be required under the provisions of the final rule,
FRA does not agree with the AAR's proposed solution of a variable
interval for the QMI daily inspection. FRA believes it would be awkward
and possibly confusing to implement a requirement containing variable
intervals. Generally, the inspection requirements that are contained in
the Locomotive Safety Standards do not have provisions for variable
interval inspections, except in the case of out-of-service credit that
provided for in Sec. 229.33.
FRA's intent in the final rule is to require that a minimum of five
QMI daily inspections be performed between 184 day periodic
inspections. FRA recognizes that a 31-day interval provides little, if
any, flexibility in scheduling the QMI daily inspections. For example,
if the average interval for the first five QMI daily inspections is 30
days, only one day shorter than the maximum amount of time that is
permitted by the requirement, then a sixth QMI daily inspection would
be due on day 181, three days before the periodic inspection. To keep
the inspection interval constant, and provide the flexibility that the
industry seeks, FRA is partially granting the AAR's petition on this
issue and changing the QMI daily inspection interval to 33 days in this
response. This will provide 12 days of potential flexibility in each
periodic inspection cycle.
E. Locomotive Cab Temperature
The petitions of Honold and Lombardi request that the requirements
contained in the final rule related to cab temperature be revised to
require that air conditioning units be installed and operative in all
lead locomotives. FRA declines to adopt this request for revision for
several reasons. First and foremost is that there are several safety-
critical systems or components that must take precedence over air
conditioning on lead units. These include but are not limited to: An
ability to control certain subsystems throughout the consist (See Sec.
229.13); an air brake control system which functions as intended (See
Sec. 229.46); and, headlights and auxiliary lights which provide night
vision for the crew and enhanced grade crossing safety for the public
(See Sec. 229.125). Adding air conditioning in locomotive cabs to the
list of items which disqualify a locomotive from lead service could
create power shortages, including preventing a trailing unit which is
otherwise lead-qualified from being switched to the lead position when
an en route failure of the lead locomotive could otherwise be remedied
by that move.
Another major consideration was the difficulty of adequately
measuring cab conditions under which air conditioning would be
required. Disqualifying a locomotive from lead service on a day where
ambient (un-conditioned) temperature in the cab is moderate would have
no safety benefit. As pointed out in comments received in response to
the NPRM from U.S. Army Joint Munitions Command, Transportation
Division, (Docket Number FRA-2009-0094-0018), available scientific
research on human performance in hot environments has shown that it is
not simply temperature (scientifically called dry-bulb temperature) but
Wet-bulb Globe Temperature (WBGT) which must be measured. A rule based
on WBGT would be exceedingly difficult to enforce, because the expense
of the equipment required to make the measurement would mean that few
people would be able to make reliable measurements.
Overall, the goal of this change in the Locomotive Safety Standards
is to take a first step toward improving the temperature conditions in
locomotive cabs. Maintenance of the air conditioners is currently
required at periodic inspections. In the preamble to the final rule,
FRA stated that it will monitor air conditioning maintenance performed
by railroads to ensure that maintenance is being adequately performed.
If FRA determines that the prescribed level of maintenance is
insufficient to ensure the proper functioning of the air conditioning
units, FRA will consider taking further regulatory action to address
the issue. The issue of cab temperature is also being referred to the
Railroad Safety Advisory Committee's Fatigue Management Working Group
(which includes participants representing rail labor) for further
study.
[[Page 75053]]
F. Preemption
PRM's petition requests that FRA provide its current position on
the pre-emptive effect of the Locomotive Inspection Act (LIA). The pre-
emptive effect of the LIA, to the extent that it was addressed by the
Supreme Court in Kurns v. Railroad Friction Products Corp., 132 S. Ct.
1261 (2012), has been determined by the Supreme Court. FRA is in the
process of fully considering the implications of the Supreme Court's
decision in Kurns, and FRA's application of the LIA in light of the
decision. Moreover, FRA believes that this issue is outside the scope
of the petitions for reconsideration of the Locomotive Safety Standards
final rule. The final rule did not establish or modify any Federal
requirements related to the pre-emptive effect of the LIA. As such, FRA
denies PRM's petition on this issue and declines to further discuss the
pre-emptive effect of the LIA in this rulemaking proceeding.
G. Locomotive Diesel Exhaust
The petition of AAJ requests that FRA clarify its preamble
discussion of the locomotive diesel exhaust requirement that is
contained in Sec. 229.43. FRA believes that the preamble discussion
related to locomotive diesel exhaust is clear and accurately reflects
FRA's existing understanding and implementation of the requirement. The
final rule does not establish or modify any requirements related to the
locomotive diesel exhaust requirement. As such, FRA believes that the
AAJ's request is outside the scope of this rulemaking proceeding. Thus,
FRA denies AAJ's petition related to this issue.
III. Clarifying Amendments
A. Recording AFM Calibration Date on the Blue Card
Following the publication of the final rule, FRA is undertaking the
task of updating the FRA Form F 6180-49A (blue card) to accurately
reflect the requirements contained in part 229 as they stand after the
Locomotive Safety Standards final rule has become effective. During
this process, FRA determined that the blue card that is under
development may be unclear regarding where the AFM calibration date
should properly be recorded. The blue card, currently under
development, contains a box labeled ``AFM calibration,'' while Sec.
229.29 requires that the AFM calibration date be recorded in the
remarks section of the blue card. FRA intended for the calibration date
to be recorded in the remarks section of the blue card only in the
absence of a specific box labeled ``AFM calibration.'' When such a box
exists, the AFM calibration date should be recorded in the specifically
labeled box. When such a box does not exist, the AFM calibration date
should be recorded in the remarks section. FRA is revising the language
contained in Sec. 229.29 to clarify this point to allow for entry of
AFM calibration information in either place.
B. Record of Defects and Repairs Between Periodic Inspections
FRA is amending the language contained in Sec. 229.23(h) of the
final rule to clarify the requirement. The final rule states that
``[t]he railroad shall maintain, and provide employees performing
inspections under this section with, a list of the defects and repairs
made on each locomotive over the last ninety-two days.'' This
requirement is intended to ensure that an employee who performs an
inspection that is required by this section is given the locomotive's
history of defects that were found during inspections, and repairs that
were made to the locomotive, since the date that the last inspection
that is required by this section occurred. The locomotive's history
will provide the employee with important information that will assist
in the performance of a proper inspection. Prior to the final rule,
periodic inspections required by this section were required to be
performed at intervals not to exceed 92 days. As such, the record of
the defects and repairs for the locomotive was required to be
maintained and provided to appropriate employees for up to 92 days.
Section 229.23(b) of the final rule modified the requirement to permit
certain locomotives to operate for up to 184 days between periodic
inspections. For a locomotive that is permitted to receive a periodic
inspection at intervals not to exceed 184 days, the record of the
defects and repairs for the locomotive is required to be maintained and
provided to appropriate employees for up to 184 days. Based on the rule
contained in the final rule, FRA believes that the requirement could be
understood to mean that all locomotives, including those that are
permitted to operate for 184 days between periodic inspections, require
only 92 days of records to be maintained and provided to appropriate
employees. To clarify the requirement, FRA is amending the language to
read as follows: ``The railroad shall maintain, and provide employees
performing inspections under this section with, a list of the defects
and repairs made on each locomotive since the date that the last
inspection required by this section was performed.''
C. Duration of the RCL Audio Indication
Section 229.15(a)(12)(xii) of the final rule requires that the RCL
shall be capable of providing an audio indication of movement of the
RCL. FRA believes that in order to function as intended as a warning to
people that are nearby that the RCL that the equipment is moving, the
audio indication must be a minimum of 3 seconds in duration. FRA
believes that at this time all RCL units comply with this requirement
as they are currently manufactured and that this timeframe is standard
practice within the industry. Thus, FRA is clarifying the final rule in
this document by specifically including that the audio indication last
at least 3 seconds.
D. RCL Remote Control Pullback Protection as an Example of a Positive
Train Stop System
FRA is clarifying the requirement that is contained in Sec.
229.15(b)(4) of the final rule by modifying the language. The final
rule states that ``[e]ach time an RCL is placed in service and at the
start of each shift locomotives that utilize a positive train stop
system shall perform a conditioning run over tracks that the positive
train stop system is being utilized on to ensure that the system
functions as intended.'' Section 229.5 of the final rule provides a
definition for the term ``Remote Control Pullback Protection,'' (RCPP),
which is a type of positive train stop system (PTSS). FRA included the
definition in the final rule because it intended to provide RCPP as an
example of a PTSS that is acceptable for the purposes of Sec. 229.15.
To clarify this point, the language is being amended to read as
follows: ``[e]ach time an RCL is placed in service and at the start of
each shift locomotives that utilize a positive train stop system, such
as remote control pullback protection, shall perform a conditioning run
over tracks that the positive train stop system is being utilized on to
ensure that the system functions as intended.''
This section is also being amended in response to petitions for
reconsideration of the final rule. For a discussion of those changes,
please see section (c)(1) of the Issues Raised by Petitions for
Reconsideration.
E. Removing Erroneous Internet Address That Is Contained in the
Electronic Recordkeeping Requirements
Section 229.20(d)(2) of the final rule contains an erroneous link
to Westlaw. The Internet address has no significance related to the
electronic recordkeeping requirements and was not intended to be
included in the rule text. As such, to
[[Page 75054]]
prevent any confusion, the Internet address is being removed.
IV. Section-by-Section Analysis
Section 229.15 Remote Control Locomotives
FRA is modifying the language contained in Sec. 229.15(a)(12)(xii)
of the final rule to clarify that an RCL is required to produce audio
indication of movement for at least 3 seconds and that the OCU must be
capable of activating the audio indication of movement. FRA believes
that in order to function as intended as a warning to people that are
nearby that the RCL that the equipment is moving, the audio indication
must be a minimum of 3 seconds in duration. This was not expressly
stated in the final rule, but to provide additional clarity on the
issue, FRA is expressly adding the 3 second duration to Sec.
229.15(a)(12)(xii) in this response to petitions for reconsideration.
In addition, the language contained in the final rule could incorrectly
be read as providing that the OCU itself is required to produce an
audio indication of movement. To avoid such a misinterpretation, the
word ``activate'' is being added to Sec. 229.15(a)(12)(xii) to read as
follows ``[a]ctivate the audio indication of movement that is located
on the RCL for a duration of at least 3 seconds * * *'' FRA believes
that these changes clarify the final rule.
FRA is also modifying the RCL requirement related to the
conditioning run that is contained in Sec. 229.15(b)(4) of the final
rule to clarify that: (1) an RCL must pass over only one transponder to
ensure that the system is working; and, (2) that the conditioning run
is required to be performed at the beginning of each shift, but not
necessarily the first task that is performed by the RCL operator. The
language contained in the final rule states that``[e]ach time an RCL is
placed in service and at the start of each shift locomotives that
utilize a positive train stop system shall perform a conditioning run
over tracks that the positive train stop system is being utilized on to
ensure that the system functions as intended.'' The modified language
that is established by this response to petitions for reconsideration
is as follows ``[e]ach time an RCL is placed in service and at the
first practical time after the start of each shift, but not more than 2
hours after the start of that shift, locomotives that utilize a
positive train stop system shall perform a conditioning run over a
track that the positive train stop system is being utilized on to
ensure that the system functions as intended.'' Adding the phrase ``at
the first practical time after * * * but not more than 2 hours after
the start of that shift * * *'' and changing the word ``tracks'' to
``track,'' add clarity to this requirement.
FRA is further modifying the language that is contained in Sec.
229.15(b)(4) of the final rule to clarify FRA included the definition
of RCPP in the final rule because it intended to provide RCPP as an
example of a PTSS that is acceptable for the purposes of Sec. 229.15.
For a more detailed discussion of the change to this section please see
section D of the Clarifying Amendments.
Section 229.20 Electronic Recordkeeping
Section 229.20(d)(2) of the final rule contains an erroneous link
to Westlaw. The Internet address has no significance related to the
electronic recordkeeping requirements and was not intended to be
included in the rule text. As such, to prevent any confusion, the
Internet address is being removed and the section will read as follows:
[p]aper copies of electronic records and amendments to those records
that may be necessary to document compliance with this part, shall be
provided to FRA for inspection and copying upon request. Paper copies
shall be provided to FRA no later than 15 days from the date the
request is made; and, * * *.''
Section 229.23 Periodic Inspection: General
FRA is amending the language contained in Sec. 229.23(b)(2) of the
final rule to change the frequency of the QMI daily inspection from
every 31 days to every 33 days. As noted in the discussion of AAR's
petition contained in section D of the Issues Raised by Petitions for
Reconsideration above, FRA believes that the intent of the final rule
is to require that a minimum of five QMI daily inspections be performed
between 184 day periodic inspections. FRA recognizes that a 31-day
interval provides little, if any, flexibility in scheduling the QMI
daily inspections. For example, if the average interval for the first
five QMI daily inspections is 30 days, only 1 day shorter than the
maximum amount of time that is permitted by the requirement, then a
sixth QMI daily inspection would be due on day 181, three days before
the periodic inspection. To keep the inspection interval constant, and
provide the flexibility that the industry seeks, FRA is partially
granting the AAR's petition on this issue and changing the QMI daily
inspection interval to 33 days. This will provide 12 days of potential
flexibility in each periodic inspection cycle.
FRA is also amending the language contained in Sec. 229.23(h) of
the final rule to clarify the requirement. The final rule states that
``[t]he railroad shall maintain, and provide employees performing
inspections under this section with, a list of the defects and repairs
made on each locomotive over the last ninety-two days.'' To clarify the
requirement, FRA is amending the language to read as follows: ``The
railroad shall maintain, and provide employees performing inspections
under this section with, a list of the defects and repairs made on each
locomotive since the date that the last inspection required by this
section was performed.'' For a more detailed discussion of the change
to this section please see section B of the Clarifying Amendments.
Section 229.29 Air Brake System Calibration, Maintenance, and Testing
To clarify the final rule, FRA is amending the language contained
in Sec. 229.29(g)(1) to indicate that the date of AFM indicator
calibration shall be recorded and certified on the Form F6180-49A.
Please see the preceding discussion in section A of the Clarifying
Amendments for background information related to this modification.
Section 229.140 Alerters
FRA is amending the language that is contained in Sec. 229.140(d)
of the final rule to establish a fixed interval for the alerter warning
indication when operating at speeds below 20 mph. To make this change,
FRA is revising the requirement for locomotives operating at speeds
under 20 mph to 120 seconds, with the same 10 second tolerance that is
provided for in this section for all other speeds. Please see the
preceding discussion in section B of the Issues Raised by Petitions for
Reconsideration for background information related to this
modification.
Section 229.303 Applicability
The language contained in Sec. 229.303 is being modified to
clarify that certain products are excluded from the locomotive
electronics requirements. The language is being modified by replacing
the phrase ``placed in service'' that is contained in Sec. Sec.
229.303(a)(1) and (a)(2) with the phrase ``fully developed.'' Please
see the preceding discussion in section (A)(1) of the Issues Raised by
Petitions for Reconsideration for background information related to
this modification. In addition, FRA is extending the date for railroads
and vendors to identify all products that are under development as
identified in paragraph (a)(2) of this section to FRA from October 9,
2012 to February 9,
[[Page 75055]]
2013. The substantive requirement is not being changed, as the
requirements that govern which products can be properly identified
under paragraph (a)(2) of this section remain unchanged. Only the date
by which the products must be identified and submitted to FRA is being
changed.
Section 229.305 Definitions
Section 229.305 of the final rule is being amended by removing the
definition for the term ``new or next-generation locomotive.'' Please
see the preceding discussion in section (A)(2) of the Issues Raised by
Petitions for Reconsideration for background information related to
this modification.
V. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This action has been evaluated in accordance with existing policies
and procedures and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures. See 44 FR 11034;
February 26, 1979. The original final rule was determined to be non-
significant. Furthermore, the amendments contained in this action are
not considered significant because they generally clarify requirements
currently contained in the final rule or allow for greater flexibility
in complying with the rule.
These amendments and clarifications are in response to commenters
petitions for reconsideration and will provide greater flexibility in
the implementation and enforcement of this final rule. The amendments
modify the remote control locomotive provisions and also Subpart E.
Both of these are not mandatory requirements to operate locomotives,
and therefore will not cause a change in FRA's estimated costs in the
final rule's regulatory impact analysis (RIA). In addition, there is an
amendment that modifies section 229.140 for locomotive alerters. This
amendment is in response to a commenter's petition and should improve
compliance with the alerter requirement in the final rule. This change
to the alerter timing interval below 20 mph would result in a modest
cost saving to the industry, particularly in regard to the January 1,
2017, full implementation requirement because it makes more currently
installed alerters compliant, thus reducing the number to be modified.
FRA does not believe that the amount of potential savings warrants
modification of the RIA. There are amendments to the periodic
inspection requirements in section 229.23 which are also in response to
a commenter's petition. The amendment will have minimal economic impact
on the railroads that are able to use the final rule's 184 day periodic
inspection provision. Any impact it will have, will serve to decrease
the estimated costs in the final rule's RIA. The amendment to section
229.29 is not a change in the air brake system calibration,
maintenance, and testing requirements but rather a change in where and
how the calibration is recorded on the locomotive's blue card.
In summary, FRA has concluded that these amendments will have a
minimal net effect on FRA's original analysis of the costs and benefits
associated with the final rule. Hence, FRA has not revised the final
rule's RIA.
B. Regulatory Flexibility Act and Executive Order 13272
To ensure potential impacts of rules on small entities are properly
considered, FRA developed this action and the original final rule in
accordance with Executive Order 13272 (``Proper Consideration of Small
Entities in Agency Rulemaking'') and DOT's procedures and policies to
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)),
FRA certifies that this action would not have a significant economic
impact on a substantial number of small entities.
The amendments contained in this action that modify provisions for
the use of remote control locomotives and will not impact any small
entities. Most small railroads do not use remote control locomotives
and the use of remote control locomotives is permissive and not
mandatory. The amendments to the periodic inspection requirements in
Sec. 229.23 would not negatively impact any small entities. This is
due to that fact that the amendments to this section should reduce cost
for a railroad that has locomotives that can utilize a longer, i.e.,
184 day, period inspection. In addition, most, if not all, small
railroads currently do not have locomotives that would qualify to
utilize the longer periodic inspection period. The amendment to Sec.
229.29 is not a change in the air brake system calibration,
maintenance, and testing requirements but rather a change in where and
how the calibration is recorded on the locomotive's blue card. There is
one amendment on Sec. 229.140 which adds a requirement to establish a
``fixed interval'' for the audible warning indication for locomotive
alerters for speeds under 20 mph. This amendment will not impact any
small railroad since many small railroads operate at speeds that do not
require an alerter, and the amendment is granting a commenter's
request. Finally the amendments to subpart E relate to clarification on
the requirements for new advanced electronic locomotive control
systems, which would be found on new locomotives. No small railroads
purchase new locomotives that would have these systems on them.
Accordingly, because the amendments contained in this action generally
clarify requirements currently contained in the final rule, FRA has
concluded that there are no substantial economic impacts on small
entities resulting from this action.
C. Paperwork Reduction Act
FRA has carefully reviewed agency amendments to certain sections of
this final rule in response to petitions for reconsideration. There are
no changes to any of the final rule's information collection
requirements and estimated burden published in the FR on April 9, 2012.
See 77 FR 21312. These information collection requirements and
associated burden were approved by the Office of Management and Budget
on November 21, 2012, under OMB No. 2130-0004, for the maximum time
period.
D. Federalism Implications
FRA has analyzed this rule in accordance with the principles and
criteria contained in Executive Order 13132, issued on August 4, 1999,
which directs Federal agencies to exercise great care in establishing
policies that have federalism implications. See 64 FR 43255. 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. This final rule will not have federalism implications that
impose any direct compliance costs on State and local governments.
This final rule could have preemptive effect by operation of law
under certain provisions of the Federal railroad safety statutes,
specifically, the former Federal Railroad Safety Act of 1970 (former
FRSA), repealed and recodified at 49 U.S.C. 20106, and the former
Locomotive Boiler Inspection Act at 45 U.S.C. 22-34, repealed and
recodified at 49 U.S.C. 20701-20703. See Kurns v. Railroad Friction
Products Corp., 132 S. Ct. 1261 (2012); and Napier v. Atlantic Coast
Line R.R., 272 U.S. 605 (1926).
[[Page 75056]]
E. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards.
This action is purely domestic in nature and is not expected to
affect trade opportunities for U.S. firms doing business overseas or
for foreign firms doing business in the United States.
F. Environmental Impact
FRA has evaluated this action 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 action 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).
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 action that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this action
is not a major Federal action significantly affecting the quality of
the human environment.
G. 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 $140,800,000 or more in any one
year, and before promulgating any final rule for which a general notice
of proposed rulemaking was published, the agency shall prepare a
written statement'' detailing the effect on State, local, and tribal
governments and the private sector. The action will not result in the
expenditure, in the aggregate, of $140,800,000 or more in any one year,
and thus preparation of such a statement is not required.
H. 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 action in accordance with Executive
Order 13211. FRA has determined that this action is not likely to have
a significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this action is not a
``significant energy action'' within the meaning of Executive Order
13211.
I. Privacy Act
Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the comment (or signing the document,
if submitted on behalf of an association, business, labor union, etc.).
See http://www.regulations.gov/#!privacy. Notice for the privacy notice
of regulations.gov or interested parties may review DOT's complete
Privacy Act Statement in the Federal Register published on April 11,
2000 (65 FR 19477).
List of Subjects in 49 CFR Part 229
Locomotives, Railroad safety, Remote control locomotives.
The Rule
For the reasons discussed in the preamble, FRA amends part 229 of
title 49 of the Code of Federal Regulations as follows:
PART 229--[AMENDED]
0
1. The authority citation for part 229 continues to read as follows:
Authority: 49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143,
20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49.
0
2. Section 229.15 is amended by revising paragraphs (a)(12)(xii) and
(b)(4) to read as follows:
Sec. 229.15 Remote control locomotives.
(a) * * *
(12) * * *
(xii) Activate the audio indication of movement that is located on
the RCL for a duration of at least 3 seconds; and
* * * * *
(b) * * *
(4) Each time an RCL is placed in service and at the first
practical time after the start of each shift, but no more than 2 hours
after the start of that shift, locomotives that utilize a positive
train stop system, such as remote control pullback protection, shall
perform a conditioning run over a track that the positive train stop
system is being utilized on to ensure that the system functions as
intended.
* * * * *
0
3. Section 229.20 is amended by revising paragraph (d)(2) to read as
follows:
Sec. 229.20 Electronic recordkeeping.
* * * * *
(d) * * *
(2) Paper copies of electronic records and amendments to those
records that may be necessary to document compliance with this part,
shall be provided to FRA for inspection and copying upon request. Paper
copies shall be provided to FRA no later than 15 days from the date the
request is made; and,
* * * * *
0
4. Section 229.23 is amended by revising paragraphs (b)(2) and (h) to
read as follows:
Sec. 229.23 Periodic inspection: general.
* * * * *
(b) * * *
(2) At least once each 33 days, the daily inspection required by
Sec. 229.21, shall be performed by a qualified mechanical inspector as
defined by Sec. 229.5. A record of the inspection that contains the
name of the person
[[Page 75057]]
performing the inspection and the date that it was performed shall be
maintained in the locomotive cab until the next periodic inspection is
performed.
* * * * *
(h) The railroad shall maintain, and provide employees performing
inspections under this section with, a list of the defects and repairs
made on each locomotive since the date that the last inspection
required by this section was performed;
* * * * *
0
5. Section 229.29 is amended by revising paragraph (g)(1) to read as
follows:
Sec. 229.29 Air brake system calibration, maintenance, and testing.
* * * * *
(g) * * *
(1) The date of AFM indicator calibration shall be recorded and
certified on Form F6180-49A.
* * * * *
0
6. Section 229.140 is amended by revising paragraph (d) to read as
follows:
Sec. 229.140 Alerters.
* * * * *
(d) Alerter warning timing cycle interval shall be within 10
seconds of the calculated setting utilizing the formula (timing cycle
specified in seconds = 2400 / track speed specified in miles per hour).
For locomotives operating at speeds below 20 mph, the interval shall be
between 110 seconds and 130 seconds.
* * * * *
0
7. Section 229.303 is amended by revising paragraphs (a)(1), (a)(2),
and (b) to read as follows:
Sec. 229.303 Applicability.
(a) * * *
(1) Products that are fully developed prior to June 8, 2012.
(2) Products that are under development as of October 9, 2012, and
are fully developed prior to October 9, 2017.
* * * * *
(b) Railroads and vendors shall identify all products identified in
paragraph (a)(2) of this section to FRA by February 9, 2013.
* * * * *
0
8. Section 229.305 is amended by removing the definition for the term
``new or next-generation locomotive control system.''
Issued in Washington, DC, on December 7, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-30289 Filed 12-18-12; 8:45 am]
BILLING CODE 4910-06-P