[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)

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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