[Federal Register Volume 60, Number 102 (Friday, May 26, 1995)]
[Rules and Regulations]
[Pages 27899-27906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12963]
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[[Page 27900]]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 229
[Docket No. LI-7; Notice 6]
RIN 2130-AA53
Event Recorders
AGENCY: Department of Transportation (DOT), Federal Railroad
Administration (FRA).
ACTION: Final rule; response to petitions for reconsideration.
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SUMMARY: In response to petitions for reconsideration, FRA is amending
its regulation on event recorders. FRA is removing the requirement
that, following an accident reportable to the National Transportation
Safety Board, the railroad must refrain from extracting or analyzing
event recorder data for a period of 8 hours or until that agency
notifies the railroad that it will not conduct an investigation,
whichever comes first. FRA is also amending the definition of ``lead
locomotive'' to provide greater latitude for the location of event
recorders and is simplifying the requirements for removing event
recorders from service.
DATES: This rule is effective May 26, 1995. The final rule, as
published in the Federal Register for July 8, 1993 (58 FR 36605), was
effective November 5, 1993. The date for compliance with the duty to
have an in-service event recorder in the lead locomotive of any train
operated faster than 30 miles per hour (Sec. 229.135(a)) is May 5,
1995.
FURTHER INFORMATION CONTACT: Rolf Mowatt-Larssen, Chief, Motive Power
and Equipment Division, Office of Safety Enforcement, RRS-14, Room
8326, Federal Railroad Administration, Department of Transportation,
400 Seventh Street SW., Washington, DC 20590 (telephone 202-366-4094),
or Thomas A. Phemister, Trial Attorney, Office of Chief Counsel,
Federal Railroad Administration, 400 Seventh Street SW., Washington, DC
20590 (telephone 202-366-0635).
SUPPLEMENTARY INFORMATION: On July 8, 1993, FRA published a Final Rule
in this docket in the Federal Register. 58 FR 36605. That rule requires
trains operated at speeds in excess of 30 miles per hour to be equipped
with an event recorder in the lead locomotive, requires maintenance of
event recorders, and requires post-accident security for data in the
recorder. FRA received petitions for reconsideration and requests for
clarification from several parties. This notice is the agency's
response, arranged by topic.
Compliance Date
The original publication of this rule included a mistakenly
calculated date for compliance with the duty to equip the lead
locomotive on a train operated faster than 30 miles per hour. A
correction was published in the Federal Register for July 28, 1993 (58
FR 40468), but that correction has not been published in the bound
volume of the Code of Federal Regulations. The correct date for
compliance with the duty to equip locomotives was 18 months after the
effective date of the final rule in this docket, or May 5, 1995. This
notice rewrites Sec. 229.135(a) to include that date.
Post-Accident Data Security
On July 8, 1993, FRA published a Final Rule in this docket in the
Federal Register. 58 FR 36605. That rule, at Sec. 229.135(d)(1), stated
Accidents Reportable to the National Transportation Safety
Board. If any locomotive equipped with an event recorder is involved
in an accident that is required to be reported to the National
Transportation Safety Board (see 49 CFR Part 840), the railroad
using the locomotive shall make no attempt, except by the direction
of a representative of the Board, or as may be necessary to preserve
the data from destruction, to extract or analyze the recorded data
until 8 hours have passed from the time the accident is reported to
the National Response Center, or until the Board declares that it
will not conduct an investigation of the accident, whichever comes
first. If, within the 8- hour period, the Board notifies the
railroad that an investigation will be conducted, the railroad will
be governed by the Board's instructions; if the Board notifies the
railroad that an investigation will not be conducted, or if the
Board fails to give notification within the 8-hour period, the
railroad may extract the data consistent with the preservation
requirements of paragraph (d)(2) of this section.
FRA adopted this requirement in consideration of the comments made
in writing in response to the Advance Notice of Proposed Rulemaking
(November 23, 1988, 53 FR 47557) and the Notice of Proposed Rulemaking
(June 18, 1991, 56 FR 27931) and at the hearings held as part of both
earlier notices and after consulting with the National Transportation
Safety Board (Safety Board). It was FRA's understanding that this
provision advanced railroad transportation safety and met the Safety
Board's needs.
The Association of American Railroads (AAR), in its petition for
reconsideration, argues that FRA does not have the power to issue
Sec. 229.135(d)(1) and that, if it has the power, it has exercised that
power unlawfully. AAR also urges FRA to facilitate the railroads' needs
for access to event recorder data as soon as possible after an
accident. Finally, AAR states its opinion that FRA's actions in this
regard are ``not a good idea'' as a matter of policy.
Union Pacific Railroad Company (UP) also included the issue of
post-accident data security in its petition for reconsideration,
arguing that railroads should have immediate access to event recorder
data at all times. UP buttresses its argument by stating that railroads
need event recorder data to facilitate their own accident
investigations. Quick access to event recorder data may, for instance,
lead to immediate operational improvements or may aid in pinpointing
physical evidence that needs to be examined before the track is
restored to service or, presumably, before rail equipment is removed
from the scene.
Canadian Pacific Legal Services, filing a petition for
reconsideration on behalf of CP Rail System (CPRS), echoes the need to
have immediate access to event recorder data in the wake of an
accident.
While the Safety Board both urged and endorsed the data security
rule quoted above, it has re-evaluated this language in light of its
own Notice of Proposed Rulemaking, published June 19, 1991 (56 FR
28132). In a letter to FRA dated October 1, 1993, the Board said that
it believes that the language of Sec. 229.135(d)(1) ``may place a
regulatory burden on both the Safety Board and the railroad industry
that goes beyond that required for the efficient discharge of the
Safety Board's accident investigation program.'' In light of a
reassessment of FRA's rule and considering the comments filed in
response to its own notice, the Board has decided to explore a revision
to its earlier proposal and has requested that FRA withdraw
Sec. 229.135(d)(1).
FRA finds no merit in AAR's arguments that FRA does not have the
power to act as it did or that it exercised that power unlawfully.
Because FRA is granting the relief sought by AAR and others, this issue
need not be explored further, but AAR's statement about FRA's ``power''
misses the impact of the Federal railroad safety laws, and the
delegations under them. These enactments, for instance, extend to FRA
the authority to prescribe regulations for every area of railroad
safety (49 U.S.C. 20103). Certainly post-accident data security is one
such area.
FRA, however, agrees with railroads' need for early access to event
recorder data and believes that the current
[[Page 27901]] Sec. 229.135(d)(2) will provide the data security it
needs while at the same time facilitating the railroad's own legitimate
accident investigation priorities. For the reasons stated, FRA grants
the petitions for reconsideration insofar as they request withdrawal of
Sec. 229.135(d)(1) and amends the regulations accordingly. The language
now in Sec. 229.135(d)(2) will survive as a new paragraph (d)(1) and
the explanation of the relation of this regulation to other laws, now
in paragraph (d)(3), will be preserved as a new Sec. 229.135(d)(2).
Lead Locomotive
The final rule, at Sec. 229.135(a), states:
(a) Duty to equip. Effective [insert a date 18 months after the
effective date of a final rule in this docket], and except as
provided in paragraph (b) of this section, any train operated faster
than 30 miles per hour shall have an in-service event recorder in
the lead locomotive. For the purpose of this section ``train''
includes a locomotive or group of locomotives with or without cars
and ``lead locomotive'' means the locomotive from whose cab the crew
is operating the train and, when cab control locomotives and/or MU
locomotives are coupled together, is the first locomotive proceeding
in the direction of movement.
Several interested parties, including the Association of American
Railroads (AAR), the American Public Transit Association (APTA), Union
Pacific Railroad Company (UP), Metro-North Commuter Railroad Company
(MN), and The Long Island Rail Road Company (LIRR) requested FRA to
clarify the term ``lead locomotive'' so that it would accommodate the
operations of carriers using cab control cars, married pairs of cars,
and other similar configurations.
FRA stated in the preamble (58 FR 36610-11) that the agency ``has
determined that the recorder will be most helpful if it records the
events happening in the locomotive occupied by the engineer, that is,
the lead locomotive.'' FRA also noted that it was
Aware that push-pull commuter operations don't have a
traditional `locomotive' at the lead in one direction and that this
may present problems in some cases. The ideal solution would be for
the actions taken at the engineer's stand in the control car to be
recorded on the device in the locomotive.
FRA's primary concern is still as it was when the preamble was
written: to provide the best data for analysis, the recorder must
capture what the engineer sees and does.
In light of the submissions since the final rule was published, FRA
recognizes that its definition of ``lead locomotive'' is unnecessarily
geographically strict. The definition in the current Sec. 229.135(a)
will be amended by adding the following sentence:
The duty to equip the lead locomotive may be satisfied with an
event recorder located elsewhere provided that such event recorder
monitors and records the required data as though it were located in
the lead locomotive.
Notice of Equipped Status/Removal from Service
Several parties requested clarification on the proper means for
indicating that a locomotive is equipped with an event recorder or that
the recorder is, or has been taken, out of service. These parties also
asked whether a locomotive, once equipped with an event recorder, must
always remain equipped with an event recorder.
FRA's final event recorder rule does not impose any burden to keep
event recorders on locomotives merely because they were once so
equipped. The rule very clearly mandates a recorder on the lead
locomotive of all trains operated faster than 30 miles per hour. Thus,
a railroad deciding to limit certain locomotives to slow speed service,
where they would not operate faster than 30 miles per hour, is
permitted to remove the recorders from that equipment.
The current rule contains no specific requirement that an equipped
locomotive be marked in any way. FRA is aware that there are many ways
to tell if a locomotive is recorder-equipped, from the physical
presence of an apparatus to the ``Canadian'' method, in which the
locomotive is limited so that it cannot assume the lead position unless
the recorder is operative according to its own self-test. As noted in
the next section on testing and maintaining recorders, block 15, item 5
of the cab card (FRA Form 6180-49A) will note the successful completion
of periodic testing and maintenance on the event recorder. FRA believes
that the best way to be certain that a locomotive has an event recorder
is to note that fact on the reverse side of the cab card, under the
``REMARKS:'' section. Section 229.135(a) is amended to require
annotating the cab card when a locomotive is equipped with an event
recorder unless the recorder is designed to prohibit the locomotive
from assuming the lead position if it is not functioning.
The current rule does, however, contain a requirement at
Sec. 229.135(c) that an out-of-service recorder be tagged, and the tag
described in Sec. 229.9(a)(3) is given as an example of a proper method
of marking a malfunctioning recorder. While ``tagging'' may be suitable
for older recorders, it does not serve a purpose where the recorder is
buried within the electrical panel or fully integrated into the
electrical system. Since the final rule was issued, it has become clear
that more flexibility is necessary to accommodate different types of
event recorders. Accordingly, FRA is amending current Sec. 229.135(c)
so that annotating the cab card (Form FRA F6180-49A), on the reverse
side, under ``REMARKS:'' becomes the method of noting the out-of-
service status of a recorder. Part 229 requires each locomotive to have
a cab card to record the results of periodic inspections so there will
be no burden to apply an extra tag. As a matter of enforcement policy,
FRA will instruct its inspectors to look on the cab card first for
notes about the event recorder status of a locomotive.
Once equipped, always equipped? The inquiries about departure
testing at the conclusion of the periodic inspection also raise the
issue about whether or not a locomotive, equipped with an event
recorder, must always remain equipped. The primary requirement of the
rule, as it relates to equipment, is that the lead locomotive of a
train operated faster than 30 miles per hour must have an event
recorder (from and after May 5, 1995). Section 21 of the Rail Safety
Improvement Act of 1988 (RSIA), Pub.L. 100-342, 102 Stat. 624 (June 22,
1988), now codified at 49 U.S.C. 20138, prescribed rules ``to prohibit
the willful tampering with, or disabling of * * * railroad safety or
operational monitoring devices,'' including event recorders. In its
final rule proscribing tampering with safety devices, published
February 3, 1989 (54 FR 5485) (the rules appear at Subpart D of Part
218), FRA required installed event recorders to be operative unless the
locomotive was being hauled dead-in-tow or unless the event recorder
became inoperative enroute, in which case FRA imposed a notification
requirement similar to that used for certain signal-related equipment
that controls or restricts train operations. The AAR filed a petition
for reconsideration in that Docket. The final rule in this docket
responded in part to that petition.
While this rule requires event recorders to be in operating order
at the time the locomotive is cleared from the quarterly inspection,
these devices, like any mechanical or electronic device, are subject to
random failures. FRA sees no safety benefit in severely restricting the
operation of a locomotive costing upwards of a million dollars because
of the failure of a fifty-dollar part in a blackbox. The final rule in
this docket permits operation of a locomotive with [[Page 27902]] an
event recorder known to have failed, but it cannot be the sole power,
nor the lead locomotive, on a train operated faster than 30 miles per
hour. Section 229.135(c) is amended to read:
(c) Removal from Service. A railroad may remove an event
recorder from service, and, if a railroad knows that an event
recorder is not monitoring or recording the data specified in
Sec. 229.5(g), shall remove the event recorder from service. When a
railroad removes an event recorder from service, a qualified person
shall cause to be recorded the date the device was removed from
service on Form FRA F6180-49A, under the REMARKS section. An event
recorder designed to allow the locomotive to assume the lead
position only if the recorder is properly functioning is not
required to have its removal from service noted on Form FRA F6180-
49A.
This rule will ensure the integrity of the periodic inspection
because, when the person conducting the inspection on electrical
equipment signs the cab card, that signature will attest to the fact
that the event recorder is in working order. At the same time, the rule
will permit railroads, for operational reasons of their own, to have
event recorders in fewer than all of their locomotives. Simply put, if
a locomotive is equipped with an event recorder, the recorder must be
in operating order before the locomotive is released from the periodic
inspection. If the flexibility FRA has designed into this rule is
abused by the railroads, FRA will not hesitate to impose a stricter
standard.
Testing and Maintaining Recorders
The current regulations require inspection at the quarterly
intervals specified in Sec. 229.25. The recorder must be tested prior
to performing any maintenance work and, if it fails, must be repaired
and tested until a subsequent test is successful. A record of the
inspection and test, including a copy of the data verification results,
must be maintained until the next quarterly interval.
APTA, the Southeast Pennsylvania Transit Authority (SEPTA), AAR,
Canadian National Railways (CN), and CP Rail System expressed concern
about these requirements as they relate to micro-processor based event
recorders. Such recorders, and they appear to be the standard on
Canadian locomotives, constantly self-test and, if a self-test fails,
force a penalty brake application on the locomotive until it is taken
out of the lead position. For these recorders, it is argued, a separate
test in the shop conducting the periodic inspection is neither
necessary nor productive. FRA agrees and is amending the requirements
at Sec. 229.25(e)(2) to count a self-testing micro-processor event
recorder that has not indicated a failure as having ``passed'' the pre-
maintenance inspection requirement.
Several interested parties have suggested that the results of the
periodic inspections be simply noted on the cab card. While the fact
that a recorder has been successfully inspected, tested, and maintained
is noted on the cab card (FRA Form 6180-49A, Block 15, Item Code 5),
the event recorder regulation also calls for a copy of the ``data
verification results.'' With a magnetic tape machine, the ``results''
are, physically, the printout of the tape reading; similarly with a
micro-processor, the ``results'' are also a readable representation of
what the machine has recorded. FRA agrees with those who urge the
electronic filing of the ``data verification results'' and notes that
the rule does not limit the means by which the results ``shall be
maintained.'' Electronic filing is permissible, but FRA requires that
the electronic filing be reduced to writing upon demand.
Events To Be Recorded
The definition of an event recorder, at Sec. 229.5(g), is of a
device
That monitors and records data on train speed, direction of
motion, time, distance, throttle position, brake applications and
operations (including train brake, independent brake, and, if so
equipped, dynamic brake applications and operations) and, where the
locomotive is so equipped, cab signal aspect(s), over the most
recent 48 hours of operation of the electrical system of the
locomotive on which it is installed.
Derived data: A device that ``monitors and records data on''
various aspects of the operation of a train does not necessarily have
to record data on each separate aspect of operations. ``Train speed,''
``time,'' and ``distance,'' for instance, are mutually dependent and
any one of these parameters can be derived from the other two. The
event recorder rule does not prohibit derived data, and whether an
event is recorded directly or derived is largely a matter left to the
railroad, so long as the calculated or derived data offer the same
accuracy, reliability and precision as data recorded directly.
Throttle position/brake applications: Several interested parties
requested clarification about the requirement to record throttle
position and brake application and operations. In their powered phase
of operations, diesel-electric locomotive event recorders typically
capture several stages of throttle position, ``idle'' and notches 1 and
2 as a group and notches 3-8 individually. The heavy electric commuter
railroads have referred to a 5-position controller on multiple-unit
(MU) cars; while this has fewer positions than that of a diesel-
electric locomotive, an event recorder that captured each of these
positions would comply with the rule. A device that monitored and
recorded only one position of forward motion would not. In the braking
phase of operations, current diesel-electric locomotive recorders
monitor dynamic brake set up and brake pipe pressure reductions if
different amounts, depending on the railroad and the event recorder.
Independent brake applications are, typically, recorded as ``on/off''
with 15 psi as the dividing line. An MU locomotive event recorder that
records degrees or steps of braking power, and that shows the on/off
application of the independent brake, complies with the event recorder
rule. FRA does not see a problem just because certain heavy electric
commuter equipment has ``blended brakes,'' in which both air and
dynamic braking occur automatically with the movement of a single
lever.
Traction motor current/dynamic braking current: APTA and CN
inquired about the recording of traction motor current and dynamic
brake current. The rule does not require the recording of traction
motor current in either the powered or the dynamic brake phase,
although, on some commuter equipment, it is one way to provide the
required data on brake operations and equivalent throttle position or
motoring mode.
Direction of motion: Section 229.5(g) lists ``direction of motion''
as a required parameter. Unless the information can be derived from
other data, it must be directly recorded. FRA notes that, in the
typical freight locomotive, the position of the reverser handle is a
recorded parameter.
The ``48-hour'' rule: Several parties asked FRA to reduce the
interval for recording data. The regulation, at Sec. 229.5(g), requires
monitoring and recording data ``over the most recent 48 hours of
operation of the electrical system of the locomotive.'' There is an
exception, not relevant here, for recorders installed prior to the
effective date of the rule. Several types of recorders capture data at
set intervals or whenever the operations of the locomotive change. A
road locomotive used in switching, for instance, has frequent changes
in direction, speed, and brake system actuation. The concern of those
pushing for a shorter interval is that operations like switching will
overtax the memory capacity of a recorder. FRA chose the 48-hour rule
to be on the safe side of ensuring capture of the initial terminal
brake test. [[Page 27903]] Information from the initial terminal test
proved important in the investigation of the May 12, 1989, accident at
San Bernardino, California, as discussed in the preamble to the final
rule. (58 FR 36606). Other than the initially granted grandfather
rights, FRA is not aware of any reason with an equivalent level of
safety to reduce the required recording duration.
Cab signals--Northeast Corridor 9-aspect system: Cab signals, for
locomotives so equipped, will continue to be a required parameter,
including the new 9-aspect system on the Northeast Corridor.
Cab signals-joint operations: Several railroads operate over joint
territory and use each other``s cab signals. An earlier practice was to
marshall locomotives so that a unit belonging to the home railroad was
always in the lead or was swapped into the lead at the border between
the railroads. This method of operating allowed the ``home'' locomotive
to respond to the signals controlling its operation. Union Pacific
Railroad (UP) and Chicago and Northwestern Railway Company (CNW)
currently conduct joint operations over hundreds of miles of each
other``s cab signal territory. Their power pool arrangements are such
that a locomotive of either railroad may be in the lead and it would be
detrimental to service to change lead locomotives at the property line.
The problem is that the two carriers have incompatible cab signal
systems, a condition they have mitigated by having dual cab signals in
the pooled locomotives. Either railroad``s locomotives can read the
signals of the other, but their event recorders are not equipped with
the capacity to record other than the signals of the home road. The
rationale for requiring cab signal recording was that it was a vital
part of accident investigation and that, because the signal was already
on board, it would not be overly difficult to record it. That rationale
is still valid, and FRA does not contemplate amending this portion of
the event recorder rule. UP and CNW are welcome to petition for a
waiver, or for an extension of time to expand the recording capacity of
their event recorders, but this notice makes no change in the
requirement as published.
Cab signals--separate recorders: Delaware and Hudson Railway
Company operates a small number of locomotives with cab signal
equipment. That equipment has a built-in device that records, in real
time, date, speed, cab signal aspects, distance, and the status of the
automatic equipment test. Proprietary software is used to download this
information into a portable computer. This equipment complies with the
event recorder rule, provided that the two recordings can be
synchronized with a common parameter.
Speed
APTA requested clarification on the ``over 30 miles per hour''
parameter for requiring recorders; does it, for instance, exclude
trains that are restricted by a railroad's operating rules and/or
policy to speeds of 30 miles per hour or less? FRA does not restrict
the methods railroads use to set the speeds of the trains they operate.
Whether a train is restricted to 30 miles per hour or less by the class
of track on which it operates or by company policy is immaterial.
Effective May 5, 1995, if a train is operated faster than 30 miles per
hour, it must have an event recorder in the lead locomotive--slower
than that, the requirement does not apply.
Accuracy
Several parties requested clarification on accuracy and data
resolution. FRA believes that accuracy, together with refinements in
sampling intervals, are issues for future activity. As the agency said
in the preamble to the final rule (58 FR 36609),
Some commenters raised issues about the recorder's sampling
intervals and sampling accuracy. FRA certainly expects that event
recorders will be as accurate as present standards for speed
indicators and for air gauges, but the agency realizes that more
developmental work needs to be done in this area. FRA has decided
not to further delay the requirement to have event recorders on
trains and will postpone for now standards that would require
resolution of technological issues that are intertwined with the
extended development of solid state recorders and with
recommendations that event recorders be standardized as to size,
location, and crash worthiness.
Event Recorder Maintenance
Remote inspection: Kansas City Southern (KCS), D&H, and Soo Line
requested clarification of and relief from the blackbox maintenance
rules. Some of their locomotives are maintained at facilities without
the equipment to read and analyze the data tapes from the recorders,
and they seek to perform the recorder pre-maintenance inspection at a
location remote from the shop where the rest of the periodic inspection
work is performed. The rule does not specify where periodic recorder
maintenance must be done, but only that it be performed every periodic
inspection. The operative principles are (1) locomotives shall not
leave the periodic inspection point with an inoperative event
recorder--unless the cab card is annotated to show the locomotive as
``unequipped,'' (2) testing of recorders must precede maintenance work
on them, and (3) trains operated over 30 miles per hour must have an
in-service event recorder in the lead locomotive. In order to provide
necessary flexibility, FRA will consider an event recorder test done up
to 5 calendar days prior to the periodic inspection as complying with
the requirements of this rule. If a railroad finds that it cannot
complete testing and maintenance on an event recorder prior to the
completion of the periodic inspection, it has the option of taking the
recorder out of service and noting that fact on the cab card, following
procedures allowed in Sec. 229.135(c). FRA had been requested to allow
a 5-day ``grace'' period--before or after the periodic inspection-- for
event recorder testing and maintenance where data analysis and/or
recorder repair took place other than at the facility performing the
period inspection. The agency understands the practical problems
associated with providing every point performing periodic inspections
with the sophisticated electronic equipment necessary to test and
maintain event recorders. At the same time, FRA must maintain the
integrity of its periodic inspection requirements. Section 229.23(d)
has not been amended by this rule. The person conducting an inspection
signs the card and that person's supervisor certifies that the work was
done. In the case of event recorders, as noted earlier, the fact that a
recorder has been successfully inspected, tested, and maintained is
noted on the cab card (FRA Form 6180-49A, Block 15, Item Code 5). This
means that a locomotive can depart the periodic inspection in one of
three ways: without an event recorder, with a working event recorder,
or with an event recorder properly taken out of service.
Ninety percent effective: In the preamble to the final rule, FRA
stated:
FRA has no desire to create unnecessary maintenance burdens on
the railroads on the one hand, but, on the other, it cannot condone
event recorders which fail for lack of effective maintenance.
Testimony and comments by representatives of the railroads and of
the suppliers demonstrate agreement that a properly maintained
recorder will operate from one quarterly inspection to the next
without failure, virtually all of the time. The final rule
recognizes what industry has said and, accordingly, requires event
recorders to be maintained so well that 90 percent of them are still
functioning as intended when they arrive at the quarterly
inspection. If this level of performance cannot be met on a month-
to-month basis, the final rule then requires maintenance
[[Page 27904]] intervals and practices to be adjusted so that it
can.
APTA asked if the ``90 percent functional'' requirement applied to
all parameters recorded by a particular carrier's blackbox or only to
those required by the rule. Because the rule defines event recorders in
relation to particular, required parameters, and because pre-
maintenance testing requires ``cycling all required parameters,'' the
rule clearly aims only at maintaining the operability of the required
parameters. A recorder with a non-functioning, but non-defining
parameter may still be both an ``in-service'' recorder under
Sec. 229.5(I) and ``fully functional'' under Sec. 229.25.
Post-periodic inspection departure testing: The event recorder
rule, at Sec. 229.25(e)(3), states:
(3) If this test does not reveal that the device is recording
all the specified data and that all recordings are within the
designed recording parameters, this fact shall be noted on the data
verification result required to be maintained by this section and
maintenance and testing shall be performed as necessary until a
subsequent test is successful.
The blackboxes used by the Canadian railroads are interchangeable,
and if one is discovered with a fault, it is swapped out for a known
good one and the defective unit is returned to the factory for repair.
(Part of the installation procedure includes entry into the computer of
the identification of the locomotive on which the unit is located.)
Section 229.25(e)(3) could be read as requiring successful repair of
the unit currently installed on the locomotive before that locomotive
departs the 92-day inspection. Such an interpretation strains against
industry practices and injects an unnecessary layer of regulation into
the system. FRA supports the change-out of bad units for good as part
of the post-periodic departure check-out.
Removal from service--calendar day inspection: One of the commuter
railroads asked if a locomotive found at the Monday morning inspection
with the recorder ``fault light'' on can be used as a lead locomotive
until Tuesday morning. Assuming the railroad complies with the
requirements for taking a recorder out of service, Sec. 229.135(b)
allows the use of the locomotive as a lead unit until the next calendar
day inspection.
New and Rebuilt Locomotives
AAR and The American Short Line Railroad Association (ASLRA) seek
to have the event recorder requirements apply to new and rebuilt
locomotives only. This is in accord with industry practices, and
according to data presented by the railroads during the rulemaking
process, 62 percent of Class I road locomotives are currently equipped
with a qualifying event recorder. Based on industry information and
testimony presented before the final rule was issued, 90 percent or
more of the road trains are equipped with a recorder. While it is not
always clear exactly what types of trains are being counted in these
figures, it is clear that not all locomotives need to be equipped to
achieve full compliance with a rule requiring event recorders on the
lead locomotive of all trains operated faster than 30 miles per hour.
FRA considered the new/rebuilt option and concluded, in concert
with safety, policy, and legal offices at the agency and Departmental
level, that a rule requiring event recorders on new and rebuilt
locomotives only does not reflect the best interpretation of the
mandate in RSIA to equip trains where doing so will enhance safety. FRA
believes that the option it chose, requiring event recorders on the
lead locomotive of trains operated faster than 30 miles per hour, does
satisfy the best interpretation of a statutory mandate to ``issue such
rules, regulations, standards, and orders as may be necessary to
enhance safety by requiring that trains be equipped with event
recorders * * *.'' (RSIA, section 21) The safety enhancements of
recorders were fully discussed in the preamble to the final rule and
need not be repeated here. In addition, FRA became aware, during the
development of this rule, that several railroads believe the number of
recorder equipped locomotives in their fleets will enable them to
comply with a requirement for an event recorder in the lead locomotive
of every train operated faster than 30 miles per hour. For these
railroads, a requirement to equip each new or rebuilt locomotive with
an event recorder would be an unjustified burden.
Another party to this proceeding, NTSB, urged that all locomotives
in a train should be equipped (the ultimate result of equipping new and
rebuilt locomotives) in order to permit accident investigators to
determine the performance of each locomotive in the consist. In
addition to the obvious cost implications of this suggestion, there are
sound reasons for not attempting to mandate equipping all locomotives
at this time. FRA knows that event recorder technology is likely to
advance rapidly. Accordingly, rather than establish a rule that would
eventually require an event recorder meeting today's standard on every
locomotive (except those traveling so slowly they do not even need
speed indicators), FRA believes that it is wise to wait to see whether
the recorders themselves become significantly better than they now are.
FRA believes that, as recorder technology advances, standards will be
set for sampling intervals, the ranges of recorded parameters, the
accuracy of recording, accident survivability, and data extraction
protocols. As good as these ideas are, FRA cannot bring them into being
simply by mandating them; FRA's option of equipping fast trains rather
that all new and rebuilt locomotives will allow time to bring these
concepts to mature and practical fruition.
In analyzing costs, FRA used the best data it had. As noted in its
``Final Rule Regulatory Impact Analysis,''
Under normal railroad operations, where many trains are powered
by multiple power units, 100% coverage is possible with
significantly less than 100% of the units being equipped with a
recorder.
There is a point, however, at which the efforts to manage,
reassign, and shift power to assure full coverage may cost more that
the installation of additional recorders. Unfortunately, FRA does
not have the type of individualized, proprietary information
necessary to analyze these trade-offs and arrive at the perfect
cost-minimalization strategy. We have therefore employed what we
believe to be a conservative approach in a deliberate effort not to
understate costs.
``Event Recorders Final Rule Regulatory Impact Analysis,'' February 12,
1993, p. 9.
Finally, as FRA discussed in the preamble to the final rule (58 FR
36607), the primary safety benefit of event recorders lies in their use
as a tool to diagnose train handling accidents, to continue building a
knowledge base of accident causation, and, through sampling actual
train movements, to evaluate changes in methods of train operation.
Event recorders also provide a way to sample the train-handling ability
of an engineer in a real-world environment. FRA has determined that
event recorders enhance railroad safety. Whether they are used to aid
accident analysis, to monitor locomotive engineers' performance, or to
monitor equipment performance, event recorders provide data that are
free from bias, free from the inconsistent powers of human observation,
and free from the possible taint of self-interest. The data extracted
from recorders can be played over and over as part of the analysis
process without losing their consistency. Event recorders provide FRA
with a growing pool of verifiable factual information about how trains
are operated and what happens when they become part of an accident.
Even the presence of event recorder data will not ensure the
[[Page 27905]] discovery of the cause of every accident nor eliminate
all sources of controversy about causation, but as shown in the
Southern Pacific's San Bernardino derailment, event recorder data can
help direct the attention of an accident investigator to possible
causes not at first suspected. In addition, by reducing the potential
for bias from accident investigations, the data from event recorders
can help pinpoint operational changes that may prevent the next
accident.
FRA does not find merit in the argument that event recorders should
only be required on new and rebuilt locomotives and rejects the
requests filed by AAR and ASLRA to so amend the final rule.
Recording While Stationary
FRA's event recorder rule states, at Sec. 229.5(g),
``Event recorder'' means a device, designed to resist tampering,
that monitors and records data on train speed, direction of motion,
time, distance, throttle position, brake applications and operations
(including train brake, independent brake, and, if so equipped,
dynamic brake applications and operations) and, where the locomotive
is so equipped, cab signal aspect(s), over the most recent 48 hours
of operation of the electrical system of the locomotive on which it
is installed. A device, designed to resist tampering, that monitors
and records the specified data only when the locomotive is in motion
shall be deemed to meet this definition provided the device was
installed prior to November 5, 1993, and records the specified data
for the last eight hours the locomotive was in motion.
CN is concerned about the ``installed prior to * * *'' language,
because its present recorders record only while the locomotive is in
motion but, because its recorders are interchangeable, a particular
unit may be ``installed'' and ``uninstalled'' as necessary to keep an
operating recorder on the locomotive in the lead. The purpose of the
cut-off date was to prevent additional purchases of ``motion only''
recorders and to give railroads owning such recorders time to phase out
these units in the normal course of business. FRA is aware that CN has
embarked on a program to upgrade their recorders when factory
maintenance is performed. Unless a pattern of abuse comes to FRA's
attention, FRA sees no need to change its flexible approach: ``motion
only'' event recorders in a carrier's service, whether in inventory or
installed on a locomotive, as of November 5, 1993, are deemed to
comply.
Extensions of Time
APTA said that ``it would be helpful for * * * FRA to elaborate on
some of the general criteria it expects to use and the minimum
supporting documentation it expects to receive in considering * * *''
requests for an extension of time to comply with the event recorder
rule. Unfortunately, there is no cookbook recipe for a petition for
waiver of a safety rule, other than as published in 49 CFR Part 211.
Railroads seeking waivers are advised to state their real needs as
clearly as possible and to carefully follow the procedures in
Secs. 211.7 and 211.9.
Regulatory Impact
This rule has been evaluated under Executive Order 12688 and the
DOT policies and procedures. Although the original rule met the
criteria for being a significant rule under those policies and
procedures, these amendments are not considered significant since they
either delete requirements concerning procedural matters or allow for
greater flexibility in complying with the rule.
The economic impact of this change will be to reduce the cost of
compliance with FRA regulations. That cost reduction will be of a
minimal nature and does not alter FRA's original analysis of the costs
and benefits associated with the basic rule. FRA certifies that this
amendment will not have a significant impact on small entities.
Similarly, this amendment will not alter the information collection
requirements of this regulation; will have no identifiable
environmental impact; and will have no effect on the states or the
distribution of power and responsibilities among various levels of
government.
As provided for in 5 U.S.C. 553(d), FRA finds that there is good
cause for making this rule effective in less that 30 days from
publication. Efforts to comply with certain requirements being deleted
by this rule might generate an undue burden on the Safety Board and the
railroad industry. Prompt amendment of the provision dealing with post-
accident data security will avoid unwarranted confusion within the
regulated community concerning their legal obligation in the event of
an accident. The other amendments made by this notice recognize the
enforcement policy of the agency.
List of Subjects in 49 CFR Part 229
Penalties, Railroad safety, Reporting and recordkeeping
requirements.
The Rule
Therefore, in consideration of the foregoing, FRA amends Part 229,
Chapter II, Subtitle B of Title 49, Code of Federal Regulations as
follows:
PART 229--RAILROAD LOCOMOTIVE SAFETY STANDARDS
1. The authority citation for part 229 is revised to read as
follows:
Authority: 49 U.S.C. Chapters 201, 207, and 213; 49 U.S.C. 103;
Pub. L. 100-342; Pub. L. 102-365; Pub. L. 102-533; Pub. L. 103-272;
49 CFR 1.49 (c), (g), and (m).
2. By revising Sec. 229.5(i) to read as follows:
Sec. 229.5 Definitions.
(i) In-service event recorder means an event recorder that was
successfully tested as prescribed in Sec. 229.25(e) and whose
subsequent failure to operate as intended, if any, is not actually
known by the railroad operating the locomotive on which it is
installed.
* * * * *
3. By revising Sec. 229.25(e)(2) to read as follows:
Sec. 229.25 Tests: every periodic inspection.
* * * * *
(e) * * *
(2) The event recorder shall be tested prior to performing any
maintenance work on it. At a minimum, the event recorder test shall
include cycling all required recording parameters and determining the
full range of each parameter by reading out recorded data. A micro-
processor based event recorder, equipped to perform self-tests, has
passed the pre-maintenance inspection requirement if it has not
indicated a failure.
* * * * *
4. By revising Sec. 229.135 (a) through (d) to read as follows:
Sec. 229.135 Event Recorders.
(a) Duty to equip. Effective May 5, 1995, and except as provided in
paragraph (b) of this section, any train operated faster than 30 miles
per hour shall have an in-service event recorder in the lead
locomotive. The presence of the event recorder shall be noted on Form
FRA F6180-49A, under the REMARKS section, except that an event recorder
designed to allow the locomotive to assume the lead position only if
the recorder is properly functioning is not required to have its
presence noted on Form FRA F6180-49A. For the purpose of this section,
``train'' includes a locomotive or group of locomotives with or without
cars, and ``lead locomotive'' means the locomotive from whose cab the
crew is operating the train and, when cab control locomotives and/or MU
locomotives are coupled together, is the first locomotive proceeding in
the direction of movement. The duty to equip the lead locomotive may be
met [[Page 27906]] with an event recorder located elsewhere than the
lead locomotive provided that such event recorder monitors and records
the required data as though it were located in the lead locomotive.
(b) Response to defective equipment. A locomotive on which the
event recorder has been taken out of service as provided in paragraph
(c) of this section may remain as the lead locomotive only until the
next calendar-day inspection. A locomotive with an inoperative event
recorder is not deemed to be in improper condition, unsafe to operate,
or a non-complying locomotive under Secs. 229.7 and 229.9, and
notwithstanding any other requirements in this chapter, inspection,
maintenance, and testing of event recorders is limited to the
requirements set forth in Sec. 229.25(e).
(c) Removal from service. A railroad may remove an event recorder
from service and, if a railroad knows that an event recorder is not
monitoring or recording the data specified in Sec. 229.5(g), shall
remove the event recorder from service. When a railroad removes an
event recorder from service, a qualified person shall cause to be
recorded the date the device was removed from service on Form FRA
F6180-49A, under the REMARKS section. An event recorder designed to
allow the locomotive to assume the lead position only if the recorder
is properly functioning is not required to have its removal from
service noted on Form FRA F6180-49A.
(d) Preserving accident data. For the purposes of this section, the
term ``event recorder'' includes all locomotive-mounted recording
devices designed to record information concerning the functioning of a
locomotive or train regardless of whether the device meets the
definition of ``event recorder'' in Sec. 229.5.
(1) Accidents required to be reported to the Federal Railroad
Administration. If any locomotive equipped with an event recorder is
involved in an accident that is required to be reported to FRA, the
railroad using the locomotive shall, to the extent possible, and to the
extent consistent with the safety of life and property, preserve the
data recorded by the device for analysis by FRA. This preservation
requirement permits the railroad to extract and analyze such data;
provided the original or a first-order accurate copy of the data shall
be retained in secure custody and shall not be utilized for analysis or
any other purpose except by direction of FRA or the National
Transportation Safety Board. This preservation requirement shall expire
30 days after the date of the accident unless FRA or the Board notifies
the railroad in writing that the data are desired for analysis.
(2) Relationship to other laws. Nothing in this section is intended
to alter the legal authority of law enforcement officials investigating
potential violation[s] of State criminal law[s] and nothing in this
chapter is intended to alter in any way the priority of National
Transportation Safety Board investigations under 49 U.S.C. 1131 and
1134, nor the authority of the Secretary of Transportation to
investigate railroad accidents under 49 U.S.C. 5121, 5122, 20107,
20111, 20112, 20505, 20702, 20703, and 20902.
* * * * *
Issued in Washington, D.C., on May 19, 1995.
Jolene M. Molitoris,
Administrator.
[FR Doc. 95-12963 Filed 5-25-95; 8:45 am]
BILLING CODE 4910-06-P
