[Federal Register Volume 62, Number 107 (Wednesday, June 4, 1997)]
[Rules and Regulations]
[Pages 30461-30464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14497]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 232
[FRA Docket No. PB-9, Notice No. 7]
RIN 2130-AA73
Two-Way End-of-Train Telemetry Devices
AGENCY: Federal Railroad Administration (FRA).
ACTION: Final rule; response to petitions for reconsideration.
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SUMMARY: On January 2, 1997, FRA published a final rule revising the
regulations governing train and locomotive power braking systems at 49
CFR part 232 to include provisions pertaining to the use and design of
two-way end-of-train telemetry devices (two-way EOTs). See 62 FR 278.
The revisions were intended to improve the safety of railroad
operations by requiring the use of two-way EOTs on a variety of freight
trains, in accordance with legislation enacted in 1992, and by
providing minimum performance and operational standards related to the
use and design of the devices. In this document, FRA responds to
concerns raised in two petitions for reconsideration of the final rule.
EFFECTIVE DATE: July 1, 1997.
FOR FURTHER INFORMATION CONTACT: Thomas Peacock, Motive Power and
Equipment Division, Office of Safety, RRS-14, FRA, 400 Seventh Street,
SW., Washington, DC 20590 (telephone 202-632-3345), or Thomas Herrmann,
Trial Attorney, Office of the Chief Counsel, RCC-12, FRA, 400 Seventh
Street, SW., Washington, DC 20590 (telephone 202-632-3167).
SUPPLEMENTARY INFORMATION: On January 2, 1997, FRA published a final
rule amending the regulations governing train and locomotive power
braking systems at 49 CFR part 232 to add provisions pertaining to the
use and design of two-way end-of-train telemetry devices (two-way
EOTs). See 62 FR 278. The purpose of the revisions was to improve the
safety of railroad operations by requiring the use of two-way EOTs on a
variety of freight trains pursuant to 1992 legislation, and by
establishing minimum performance and operational standards related to
the use and design of the devices. In response to the final rule, two
petitions for reconsideration were submitted.
On February 11, 1997, the Alaska Railroad Corporation (ARC)
requested reconsideration of the July 1, 1997, effective date contained
in the final rule based on the limited availability of the hardware
necessary for compliance. On March 4, 1997, the American Short Line
Railroad Association (ASLRA), on behalf of its member railroads, filed
a petition for reconsideration seeking an extension of the effective
date to December 1, 1997, and seeking elimination of the tonnage
limitation contained in the rule's definition of ``local and work
train.'' See 49 CFR 232.23(a)(3) and 232.23(a)(4). As the ARC is
specifically named in the petition submitted by the ASLRA and
[[Page 30462]]
because both petitions seek an extension of the effective date of the
final rule on similar grounds, FRA will address ARC's petition
primarily in the context of the ASLRA's petition for reconsideration.
A. Summary of Concerns Raised in the Petitions for Reconsideration and
FRA's Responses
FRA's rules of practice at 49 CFR part 211 state that FRA must
decide to grant or deny, in whole or in part, each petition for
reconsideration not later than four months after receipt by FRA's
Docket Clerk. See 49 CFR 211.31. In this case, FRA's decision on the
petitions for reconsideration is due no later than June 11, 1997. If
FRA grants a petition for reconsideration, a notice of this decision
must appear in the Federal Register. To provide a fuller explanation of
the issues, this document addresses both grants and denials of the
petitions for reconsideration. Accordingly, a copy of this document is
being mailed to all petitioners.
1. Extension of the Effective Date of the Final Rule to December 1,
1997 for Class II and Class III Railroads
Both the ASLRA and the ARC submitted petitions for reconsideration
seeking an extension of the effective date of the final rule.
Currently, the final rule becomes effective for all covered railroads
on July 1, 1997. The ASLRA requested an extension of the effective date
to December 1, 1997 for all Class II and Class III railroads. See
Surface Transportation Board regulations at 49 CFR part 1201; General
Instructions 1-1 for a description of Class II and III railroads. The
ASLRA specifically named 12 railroads,1 including the ARC,
in its petition, claiming they are representative of all Class II and
Class III railroads affected by the final rule. The petition cites
several reasons why an extension of the effective date for these
operations is necessary. The petition contends that the current
effective date does not provide sufficient time for these smaller
railroads to purchase and obtain a sufficient number of two-way EOTs
due to the limited number of suppliers and the volume of acquisition
orders submitted by Class I railroads. The petition also appears to
allege that the current effective date imposes a financial hardship on
some small railroads in that these operations are not being provided
sufficient time to generate the necessary cash flow needed for the
acquisition and installation of the devices. The ASLRA petition further
contends that because most smaller railroads have a limited number of
locomotives in their fleets, the ability to schedule the out-of-service
time necessary for the installation of the front unit of a two-way EOT
within the time frame of the current effective date of the final rule
imposes additional operational and financial hardships on these smaller
railroads. Lastly, although not raised in the ASLRA petition, the ARC
notes that smaller railroads need some time to train their employees on
the use, installation, and testing of the devices once they are
received.
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\1\ The following railroads were specifically named in ASLRA's
petition: Birmingham Southern Railroad Company; the Bay Line
Railroad, L.L.C.; Iowa Interstate Railroad Ltd.; Central Railroad of
Indiana; Central Railroad Company of Indianapolis; Alaska Railroad
Corporation; St. Lawrence & Atlantic Railroad Company; Gateway
Western Railway; Northeast Kansas & Missouri Railroad; Wheeling &
Lake Erie Railway Company; Dequeen & Eastern Railroad Company; and
Lake Superior & Ishpeming Railroad Company.
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In the preamble to the final rule, FRA recognized that Class I, II,
and III railroads voluntarily committed to equip the vast majority of
the trains covered by the final rule by the effective date of the
requirements. See 62 FR 288-289. However, it should be noted that the
final rule requires the use of two-way EOTs on a larger number of
trains than the industry voluntarily committed to equip by the
effective date of the final rule. Furthermore, FRA stated that it would
consider extending the effective date of the final rule in the event
that manufacturing delays result in a railroad's inability to secure an
adequate number of the devices, but would not extend the effective date
beyond the statutorily mandated date of December 31, 1997. Id., 49
U.S.C. 20141. The concerns and hardships alleged in the ASLRA and ARC
petitions for reconsideration are based on the inability of Class II
and III railroads to acquire a sufficient number of devices within a
reasonable time period prior to the effective date of the final rule in
order to properly install the equipment and adequately train their
employees on the use of the devices. Consequently, the burdens that the
petitions allege are being imposed on Class II and III railroads are
precisely the type of concerns FRA stated it would consider in
determining whether to grant an extension of the effective date of the
final rule. Furthermore, ASLRA's petition proposes an extension of the
effective date only to December 1, 1997, which is still 30 days prior
to the statutorily mandated date.
In order to verify the concerns raised in the petitions for
reconsideration, FRA conducted its own investigation of the impact of
the effective date on Class II and III railroads. Although ASLRA's
petition seeks an extension of the effective date for all Class II and
Class III railroads, FRA has determined that some larger Class II
railroads, particularly those reporting two million or more man-hours
to FRA for calendar year 1995, have acquired or will acquire a
sufficient number of two-way EOTs to equip all of the trains covered by
the final rule well before the July 1, 1997 effective date. Therefore,
FRA will not extend the effective date of the final rule for those
Class II and III railroads that reported two million or more man-hours
for calendar year 1995 pursuant to 49 CFR part 225. Consequently, FRA
specifically denies ASLRA's petition as it relates to an extension of
the effective date of the final rule for Class II or III railroads
reporting two million or more man-hours to FRA for calendar year 1995.
However, as noted above, the final rule does require a greater
number of short line trains to be equipped with two-way EOTs than these
railroads envisioned and planned for when they voluntarily committed to
equip their fleets by July 1, 1997. As a result, many of the short line
operations covered by the final rule did not order a sufficient number
of devices to equip all the trains that are now covered by the final
rule. In addition, some short line operations that were not originally
covered by the industry's voluntary commitment have just recently
discovered that some of their trains will require the use of the
devices. Furthermore, the ability of these smaller operations to
generate the capital necessary for acquiring the devices on such short
notice is somewhat limited. Therefore, many of the Class II and Class
III railroads covered by the final rule have just recently ordered the
devices from the manufacturers or, due to financial limitations, will
be ordering the devices in the near future as soon as sufficient
capital is available.
After discussions with the manufacturers' of two-way EOTs, it
appears that the delivery time for the devices from receipt of an order
ranges anywhere from 60 to 120 days or more, depending on the
manufacturer. Therefore, if the short line railroads were forced to
order the devices from the manufacturer with the shortest lead time,
then most likely a two or three month extension of the effective date
would probably be sufficient. However, FRA recognizes that forcing
railroads to acquire the devices based solely on delivery time is not
necessarily good business practice and may not enhance safety in the
long term. Railroads should not only have the ability to benefit from
competitive procurement, but should
[[Page 30463]]
also be afforded the ability to acquire a device which best suits their
operation and existing equipment. For example, the most readily
available device may not be compatible with the devices a railroad has
already acquired or may not provide the options most desired by a
railroad.
In addition to a delivery time that could exceed four months, FRA
also agrees that these smaller railroads need some extra time to
install the devices once they are delivered. As the petition points
out, most smaller railroads have very limited locomotive fleets and,
thus, will need extra time to schedule out-of-service time in order to
install the front units of the devices. Furthermore, some additional
time must also be afforded for these smaller railroads to adequately
train their employees on the use, installation, and testing of the
devices. Consequently, after careful consideration of the petitions for
reconsideration and for the reasons set forth above, FRA has decided to
grant ARC's petition to extend the effective date of the final rule and
ASLRA's petition to extend the effective date of the final rule
specifically to December 1, 1997 for all Class II and Class III
railroads reporting less than two million man-hours to FRA for calendar
year 1995 pursuant to 49 CFR part 225.
2. Eliminate the Tonnage Limitation in the Definitions of Local and
Work Trains.
The ASLRA's petition for reconsideration also objects to the final
rule's definitions of local and work train, which contain a limitation
of 4,000 trailing tons. For the reasons stated below, FRA denies this
request in the ASLRA petition. The ASLRA petition contends that the
tonnage limitation fails to recognize the inherent operating
characteristics of local and work trains and that FRA ignored the clear
intent of Congress to exclude these types of operations. The petition
further contends there is no basis in the hearing record or any safety
statistics that supports the definitions contained in the final rule.
The petition stresses the impracticality of requiring the use of two-
way EOTs in local train operations. The ASLRA notes that a typical
local train will drop off and pick up cars at various points, thus
reducing and increasing the train length and tonnage several times
throughout its operation. The petition contends that the removal and
reinstallation of the rear-end device in each instance is time
consuming and creates the potential for damaging the rear-end device.
Finally, the petition asserts that FRA should not have used the final
rule on two-way EOTs to decide the definition of local train, as it
could have unknown consequences in future regulatory proceedings, and
should allow the issue to be argued in the pending freight power brake
rulemaking.
In the statutory provision, Congress stated that two-way EOTs shall
be required ``on road trains other than locals, road switchers, or work
trains * * *.'' See 49 U.S.C. 20141(b)(1). However, the statute does
not define the terms ``locals, road switchers, or work trains'' and
does not include them in the specific exclusions contained in the
legislation. See 49 U.S.C. 20141(c). As stated in the preamble to the
final rule, FRA does not believe Congress intended to except trains
merely based on a label placed on the operation. FRA believes that
Congress intended for the terms ``locals, road switchers, or work
trains'' to be narrowly construed by FRA and not so broadly defined
that the requirements for two-way EOTs are rendered meaningless in many
circumstances. Therefore, contrary to the assertions contained in the
petition, FRA has effectuated Congress' intent by narrowly defining the
terms ``local'' and ``work train'' to ensure consistent and logical
application of the requirements for the use of two-way EOTs.
In the NPRM on power brakes, FRA attempted to narrowly construe the
``local and work train'' exception by proposing to require the use of
two-way EOTs on local or work trains that exceeded 30 mph. See 59 FR
47726 (September 16, 1994). At the Public Regulatory Conference
conducted on March 5, 1996, several parties, including the ASLRA,
objected to the speed limitation placed on the local and work train
exemption contending it was inconsistent with the statutory mandate.
Other participants, however, strongly recommended that the terms local
and work trains be narrowly defined in order to prevent the creation of
a loophole wherein a carrier could designate all their trains as local
and, thus, circumvent the two-way EOT requirements. Furthermore,
several commenters also objected to special treatment of local and work
trains as they incur similar operational difficulties and pose the same
threat to safety as road trains. Therefore, not only did FRA propose a
narrow exception for local and work trains in the NPRM but there was
substantial discussion regarding the exception of local and work trains
at the Public Regulatory Conference conducted prior to the issuance of
the final rule. See transcript of public hearing, March 5, 1996.
Although it is clear from the above that FRA as well as other
commenters sought to narrowly construe the local and work train
exception, not one commenter in a written submission, including the
ASLRA, provided any alternative method for defining the terms which
would address the concerns raised by various parties noted above, nor
does the ASLRA propose such an alternative in its petition.
Consequently, FRA in the final rule reconsidered the exception for
local and work trains based upon the limited written comments received
on the issue, its own review of the accident data, and its extensive
knowledge of railroad operations.
After a review of the available accident data, FRA determined that
the trains which are most likely to benefit from the use of two-way
EOTs are heavier tonnage trains and trains that operate over heavy
grades. The accident data also indicated that the vast majority of the
potentially preventable accidents involved trains that were operating
with greater than 4,000 trailing tons or that were operating on grades
of two percent or greater and that, as the tonnage of the train
increased, the steepness of the grade became a more important factor.
Furthermore, in FRA's view there is no logical or rational basis for
concluding that a local or work train operating with greater than 4,000
trailing tons or in heavy grades is any less susceptible to the
operational problems and difficulties faced by any other road train.
Consequently, FRA believes the definition of local and work train is
consistent with the accident data, Congress' intent, and FRA's
rationale expressed with regard to defining heavy grades. Furthermore,
FRA believes the definitions recognize the operational necessity for
the services these types of trains provide and the nature of the duties
they engage in when en route, while preventing the potential for
confusion or abuse of the terms local or work train, and ensuring that
those trains most likely to benefit from the added safety provided by
two-way EOTs are so equipped.
Although FRA recognizes that the final rule's definitions of local
and work train may impose some additional operational burdens on the
railroads, FRA believes that the ASLRA has overstated the operational
impact of the requirements on Class II and III railroads. In its
written submissions to FRA, the ASLRA indicated that the vast majority
of Class II and III railroads operate trains with less than 4,000
trailing tons. In addition, contrary to the contention contained in the
petition, the rear-end unit of an EOT device would not have to be
removed and reinstalled every time a local train picks up or drops off
cars. If the rear car, on which
[[Page 30464]]
the rear unit of the EOT is attached, remains a part of the train after
conducting these switching operations, the communication between the
front unit and the rear unit should remain intact even after a cut of
cars is added or removed from the train. Furthermore, many local trains
currently operate with rear-end marking devices or one-way EOTs which
would have to be reinstalled if the rear car were removed from the
train. Additionally, if a train is not equipped with a one-way EOT then
an inspection of the ``set and release'' of the rear car must performed
when cars are added or removed from a train; thus, someone would have
to be at the rear to conduct this inspection. See 49 CFR 232.13.
Consequently, in FRA's view, the increased time burdens and the
potential damage to the rear units are greatly overstated in the
petition when compared with current practice. We believe these actual
and potential costs can be greatly minimized and should be incurred in
only a limited number of circumstances.
FRA further considers to be without merit the ASLRA's contention
that the definition of local train should not have been decided in the
context of the proceeding to issue the two-way EOT final rule. The
final rule text explicitly states that the definition of local train is
intended solely for the purpose of identifying operations subject to
the requirements for the use of two-way EOTs. See 62 FR 294. FRA does
not intend for the definitions used in this final rule to change or
otherwise impinge on other possible definitions of the term local train
when used in another context. Therefore, the definition used in this
final rule should have no impact on future regulatory proceedings.
Consequently, after careful consideration of the ASLRA's petition for
reconsideration and for the reasons set forth above, FRA has decided to
deny ASLRA's request to change the definitions of local and work trains
contained in Sec. 232.23(a)(3) and (a)(4) of the final rule on two-way
EOTs.
Issued in Washington, DC, on May 29, 1997.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 97-14497 Filed 6-3-97; 8:45 am]
BILLING CODE 4910-06-P
