[Federal Register Volume 85, Number 239 (Friday, December 11, 2020)]
[Rules and Regulations]
[Pages 80544-80580]
[FR Doc No: 2020-25817]

Vol. 85

Friday,

No. 239

December 11, 2020

Part VII

Department of Transportation

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Federal Railroad Administration

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49 CFR Parts 218, 221, and 232

Miscellaneous Amendments to Brake System Safety Standards and
Codification of Waivers; Final Rule

Federal Register / Vol. 85 , No. 239 / Friday, December 11, 2020 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 218, 221, and 232

[Docket No. FRA-2018-0093, Notice No. 2]
RIN 2130-AC67

Miscellaneous Amendments to Brake System Safety Standards and
Codification of Waivers

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

ACTION: Final rule.

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SUMMARY: FRA is revising its regulations governing brake inspections,
tests, and equipment. The changes include the incorporation of relief
from various provisions provided in long-standing waivers related to
single car air brake tests, end-of-train devices, helper service, and
brake maintenance. FRA is also extending the time that freight rail
equipment can be ``off-air'' before requiring a new brake inspection.
In addition, FRA is making various modifications to the existing brake-
related regulations to improve clarity and remove outdated or
unnecessary provisions. FRA expects the revisions will benefit
railroads and the public by reducing unnecessary costs, creating
consistency between U.S. and Canadian regulations, and incorporating
the use of newer technologies demonstrated to maintain or increase
safety. The rule will reduce the overall regulatory burden on
railroads.

DATES: This final rule is effective December 11, 2020.
    Justification for Immediate Effective Date. FRA finds that this
rule relieves current regulatory restrictions, thus in accordance with
5 U.S.C. 553(d)(1), FRA has determined it is appropriate to make the
rule effective upon publication.
    Incorporation by Reference. The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register as of December 11, 2020. The incorporation by
reference of certain other publications listed in the rule was approved
by the Director of the Federal Register as of December 15, 2008.

FOR FURTHER INFORMATION CONTACT: Steven Zuiderveen, Senior Safety
Specialist, Motive & Power Equipment Division, Office of Technical
Oversight, Federal Railroad Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590 (telephone:<PHONE_NUMBER>); Jason Schlosberg,
Senior Attorney, Office of the Chief Counsel, 1200 New Jersey Avenue
SE, Washington, DC 20590 (telephone:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
    A. Purpose of the Regulatory Action
    B. Summary of the Major Provisions of the Regulatory Action
    C. Costs and Benefits of the Regulatory Action
II. Background
    A. Existing Regulations
    B. FRA Waiver Authority and Process
    C. Petition for Rulemaking and Review of Existing Waivers
    D. Identified Waivers
    E. Incorporation by Reference New and Updated Standards Under 1
CFR 51.5
    F. Railroad Safety Advisory Committee (RSAC) Advice and Input
    G. Comments Filed
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. E.O. 12866 and 13771, Congressional Review Act, and DOT
Regulatory Policies and Procedures
    B. Regulatory Flexibility Act and E.O. 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
V. The Rule

I. Executive Summary

A. Purpose of the Regulatory Action

    In a letter dated July 12, 2018, which is included in the public
docket to this rulemaking proceeding, the Association of American
Railroads (AAR) submitted a petition for rulemaking (Petition)
requesting FRA relax the requirement to conduct a Class I brake test
prior to operation if a train is off-air for a period of more than four
hours, by extending the off-air period to twenty-four hours. On January
15, 2020, FRA issued a Notice of Proposed Rulemaking (NPRM) responding
to AAR's petition, proposing codification of existing waivers related
to brake systems, and making technical amendments to reduce regulatory
burdens while maintaining or improving safety. 85 FR 2494, Jan. 15,
2020. This rulemaking is a result of FRA's effort to streamline and
update its regulations to reflect technological advances and lessons
learned through feedback from all stakeholders. AAR submitted a
separate rulemaking petition in March 2019 proposing amendments to part
232 related to the industry's development of a rail car electronic air
brake slip (eABS) system. FRA will address the recommendations in that
petition in a separate rulemaking proceeding in Docket No. FRA-2019-
0072 (the ``eABS Rule'').

B. Summary of the Major Provisions of the Regulatory Action

    In this final rule, FRA is incorporating into the regulations
various long-standing waivers providing conditional exceptions to
existing rules concerning air brake testing, end-of-train (EOT)
devices, and helper service. FRA is also extending to 24 hours the time
that freight rail equipment can be ``off-air'' before requiring a new
brake inspection and is making various modifications to the existing
brake-related regulations for clarity and is removing outdated or
unnecessary provisions.

C. Costs and Benefits of the Regulatory Action

    FRA analyzed the economic impacts of this final rule over a 10-year
period, and estimated its costs, cost savings, and benefits. For the
final rule, FRA estimates net cost savings of $503.0 million (using a
7% discount rate), and $594.6 million (using a 3% discount rate). The
results of this analysis are displayed in the table below.

                              Table E-1--Total Costs and Cost Savings Over 10 Years
                                           [2017 Dollars in millions]
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                 Section                  Present value 7%  Present value 3%    Annualized 7%     Annualized 3%
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Costs: Training.........................               (*)               (*)               (*)               (*)
Cost Savings:
    Helper Link.........................              $3.9              $4.5              $0.6              $0.5
    26-C Brake Valve....................               0.4               0.5              0.06              0.06
    D-22 Brake Valve....................               1.0               1.1               0.1               0.1
    24 Hours Off-air....................             325.6             386.2              46.4              45.3
    90 CFM..............................               1.8               2.1               0.3               0.2

    Single Car Air Brake Test (SCT) 24               150.7             176.1              21.5              20.6
     month..............................
    SCT 48 month........................              19.5              23.8               2.8               2.8
    Waiver Cost Savings.................               0.1               0.1              0.01              0.01
    Government Administrative Cost                     0.1               0.1              0.01              0.01
     Savings............................
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        Total Cost Savings..............             503.0             594.6              71.6              69.7
        Net Cost Savings................             503.0             594.6              71.6              69.7
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Note: Figures may not sum in this and subsequent tables due to rounding. Net Cost Savings = Cost Savings-Costs.
* De minimis.

    This final rule generally increases flexibility for the regulated
entities by codifying waivers. It does not impose any new substantive
requirements. This final rule will not negatively impact safety in any
aspect of railroad operations and FRA does not expect any increase in
end-of-train device or brake failures as a result of this rule. As
noted in the Regulatory Impact Analysis (RIA) accompanying this rule,
safety may be improved due to railroad employees experiencing less risk
of common injuries such as slips, trips, and falls by having to perform
fewer physical inspections, which would produce positive safety
benefits, though these have not been quantified.

II. Background

A. Existing Regulations

    FRA regulations require the air brake systems of trains, and the
air brakes of individual freight cars, to be inspected and tested in
certain circumstances. The regulations provide for five primary types
of brake system inspections: Class I (initial terminal inspection),
Class IA (1,000-mile inspection), Class II (intermediate inspection),
Class III (trainline continuity inspection), and the SCT.
    A Class I air brake test, also referred to as an initial terminal
inspection, is a comprehensive inspection of the brake equipment on
each car in an assembled train that is required to be performed at the
location where a train is originally assembled, when the consist is
changed pursuant to 49 CFR 232.205(a)(2) (e.g., other than by adding or
removing a single car or solid block of cars, removing a defective car,
or picking up multiple blocks of cars under the space or trackage
constraints referenced by paragraph (b)(2)), and when a train is off-
air for a defined number of hours. Class I brake tests help ensure that
a train is in proper working condition and capable of traveling to its
destination with minimal problems en route. A Class I brake test
requires the performance of a leakage test and in-depth inspection of
the brake equipment (on both sides of the freight car) to ensure that
each car's brake system is properly secure, does not bind or foul, and
responds by applying or releasing in accordance with a specified brake
pipe pressure signal. Piston travel must also be inspected and adjusted
to a specified length if found not to be within a certain range of
movement.\1\
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    \1\ When a car's brakes are applied, a piston in the brake
cylinder travels (i.e., moves), causing the brake shoe to push
against the wheel to create the braking action. Piston travel must
be within specified limits to be capable of producing its designed
retarding force in order for FRA to consider a car's brakes to be
effective.
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    A Class IA brake test--required every 1,000 miles--includes all the
same elements of a Class I test, but with less stringent piston travel
requirements. The most restrictive car or block of cars in a train
determines the location where Class IA tests must be performed. For
example, if a train travels 500 miles from its point of origination to
a location where it picks up a block of cars that has travelled 800
miles since its last Class I brake test, and the crew does not perform
a Class I brake test when adding the cars, then the entire train must
receive a Class IA brake test within 200 miles, even though that
location is only 700 miles from the train's origination.
    Class II brake tests are less detailed inspections used for cars
that do not have a compliant Class I inspection record that are picked
up by a train at locations other than the initial terminal of the
train, and where a Class I test cannot be performed. A railroad may
utilize a Class II brake test where it is physically impossible to
perform safely all of the requirements of the Class I brake tests; for
example, where there is insufficient room to walk along both sides of
the train. The Class II brake test includes a test for excessive brake
pipe leakage, charging the air brakes to within 15 pounds per square
inch (psi) of working pressure, making a 20-psi reduction in the brake
pipe to actuate the brake, restoring pressure to working psi, releasing
all brakes, and restoring full brake pipe pressure to the rear of the
train. While a railroad may perform a Class II brake test, the rule
requires a Class I brake test to be performed at the next available
location in the car's line of travel in order to continue operating
past that point. Due to the inefficiencies of this procedure, railroads
generally perform the Class I brake tests in most instances where a
Class II would be permitted as an alternative.
    A Class III brake test must be performed any time the brake pipe is
opened on an operating train. The test includes charging the air brakes
to working pressure (no less than 60 psi at rear of train), making a
20-psi reduction in the brake pipe to actuate the brake on the rear car
of the train, releasing the brake, and ensuring that pressure at the
rear of the train is restored.
    In addition to the types of air brake tests noted above, the
regulations require the brakes of individual cars to be maintained
periodically and tested in certain circumstances. This test is known as
an SCT and is used to validate individual air brake effectiveness. An
SCT is required: At least every 8 years for new or rebuilt freight
cars, at least every 5 years for all other freight cars, and any time a
freight car is on a shop track or repair track, if the car has not had
an SCT in the previous 12 months.
    A more in-depth summary, history, and analysis of the regulations
affecting Class I, Class IA, Class II, and Class III brake tests, SCTs,
and the operation and testing of end-of-train devices, are provided in
the FRA final rule ``Freight and other non-passenger trains and
equipment; brake system safety standards; end-of-train devices,'' 66 FR
4104, Jan. 17, 2001; and two subsequent modifications to that final
rule that FRA promulgated in response to petitions for reconsideration,
66 FR 39683, Aug. 1, 2001, and 67 FR 17555, Apr. 10, 2002.

B. FRA Waiver Authority and Process

    When the existing rules do not adequately address or apply to the
use of new and novel transportation technologies, industry stakeholders
have often sought waiver of those rules through FRA's authorized
process under subpart C to 49 CFR part 211. 49 U.S.C. 20103 (``The
Secretary [of Transportation] may waive compliance with any parts of a
regulation prescribed or order issued under this chapter if the waiver
is in the public interest and consistent with railroad safety.''); 49
CFR 1.89(a). Each properly filed petition for a permanent or temporary
waiver of a safety rule, regulation, or standard is referred to the
Safety Board for decision. 49 CFR 211.41(a). The FRA Railroad Safety
Board's (Safety Board) decision is typically rendered after a notice is
published in the Federal Register and an opportunity for public comment
is provided. 49 CFR 211.41(b). If a waiver petition is granted, the
Safety Board may impose conditions on the grant of relief to ensure the
decision is in the public interest and consistent with railroad safety.
49 CFR 211.41(c).
    Activity under a waiver of regulatory compliance may generate
sufficient data and experience to support an expansion of its scope,
applicability, and duration. For instance, in many cases FRA has
expanded the scope of certain waivers or issued the same or similar
waivers to additional applicants. FRA has also extended various
waivers' expiration dates. A waiver's success and its continued
expansion warrant consideration of regulatory codification. Codifying a
waiver, and thereby making its exemptions and requirements universally
applicable, allows the entire industry to benefit from the regulatory
relief the waiver provides without incurring the costs associated with
seeking a waiver.

C. Petition for Rulemaking and Review of Existing Waivers

    In December 2017, AAR filed a petition for waiver, on behalf of its
members, from FRA's regulation requiring a Class I brake test prior to
operation if a train is off-air for a period of more than four hours,
contending it is too restrictive. Docket No. FRA-2017-0130. The Safety
Board denied the waiver petition, finding that there was a lack of
supporting data submitted with the waiver request, and that with the
appropriate data, the relief requested was more appropriately addressed
through the rulemaking process. Subsequently, in a letter dated July
12, 2018--included in the public docket to this rulemaking proceeding--
AAR submitted a petition for rulemaking (Petition) requesting that FRA
relax the requirement to conduct a Class I brake test prior to
operation if a train is off-air for a period of more than four hours,
by extending the off-air period to twenty-four hours. On January 15,
2020, FRA issued an NPRM responding to AAR's petition, proposing
codification of existing waivers related to brake systems, and making
technical amendments to reduce regulatory burdens while maintaining or
improving safety. This rulemaking is a result of FRA's effort to
streamline and update its regulations to reflect technological advances
and lessons learned through feedback from all stakeholders.
    In this final rule, FRA is also codifying waivers of compliance
from rules affecting motive power and equipment (MP&E), including the
aforementioned brake inspection requirements. Specifically, FRA is
implementing changes to the regulations affecting: The use of EOT
devices and Helper Link devices or similar technologies; higher air-
flow on distributed powered (DP) trains; and the performance of Class I
air brake tests and SCTs. FRA is also making technical corrections to
existing regulations.
    The waiver subject matters considered for codification are
explained further below. FRA attempted to capture and identify the
dockets for all substantially similar waivers affected by this
rulemaking.
    There may be some substantially similar waivers not identified in
the NPRM and this final rule, but still affected by this rulemaking.
Each affected waiver, whether specifically referenced or not, remains
in force for the time being unless it expires without extension or a
direct beneficiary explicitly requests and receives termination of the
waiver in accordance with part 211. FRA does not intend to terminate
any waivers upon the effective date of a final rule, as it is possible
that there are exceptions or conditions in some existing waivers that
are not specifically codified in the final rule. Terminating waivers
immediately upon the effective date of a final rule may unnecessarily
complicate matters, especially considering many of the waivers will
simply expire soon thereafter. If a regulated entity wishes to continue
a waiver's provision not captured by this final rule beyond the
expiration date of that waiver, that entity can petition the Safety
Board for an extension of that provision.

D. Identified Waivers

    Below is a list of waiver petition dockets, organized by subject
matter, which FRA has identified as potentially being affected by this
final rule. The public docket for each listed waiver may be accessed at
www.regulations.gov.
Air Flow Method
 Extending air flow limits (49 CFR 232.205(c)(1)(ii))
    [cir] BNSF Railway (BNSF), Canadian National Railway (CN), Canadian
Pacific Railway (CP), and Union Pacific Railroad (UP) Docket No. FRA-
2012-0091
End-of-Train (EOT) Device
 Power source (49 CFR 232.403(f)(2))
    [cir] Wabtec Corporation (Wabtec), Docket No. FRA-2001-9270
    [cir] Quantum Engineering, Inc (Quantum) (now known as Siemens
Industry, Inc. (Siemens)), Docket No. FRA-2006-25794
 Calibration (49 CFR 232.409(d))
    [cir] Wabtec, Docket No. FRA-2004-18895
    [cir] Ritron, Inc. (Ritron), Docket No. FRA-2009-0015
    [cir] DPS Electronics, Inc. (DPS), Docket No. FRA-2012-0096
    [cir] Siemens, Docket No. FRA-2015-0044
 Helper service (49 CFR 232.219(c))
    [cir] BNSF, Docket No. FRA-2006-26435
    [cir] Montana Rail Link (MRL), Docket No. FRA-2014-0013
 Marker lamp height (49 CFR 221.13(d))
    [cir] DPS, Docket No. FRA-2015-0023
    [cir] Siemens, Docket No. FRA-2017-0093
 Utility employee duties (49 CFR 218.22(c)(5))
    [cir] BNSF, Docket No. FRA-2001-10660
    [cir] Canadian Pacific Railway (CP), Docket No. FRA-2004-17989
Single Car Test
 Update to AAR Standard S-486-18 (49 CFR 232.305(a))
    [cir] AAR, Docket No. FRA-2018-0011
 Add AAR Standard S-4027-18 (49 CFR 232.305(a))
    [cir] BNSF and Union Pacific Railroad (UP), Docket No. FRA-2013-
0030
Automated Single Car Test
 Testing periodicity (49 CFR 232.305(b)(2))
    [cir] BNSF and UP, Docket No. FRA-2013-0030

Brake Systems for Covered Non-Freight Operations
 Add AAR Standard S-4045-13 (49 CFR 232.717(b)(2), formerly
appx B, I, Sec.  232.17(b)(2))
    [cir] AAR, Docket No. FRA-2013-0063

E. Incorporating by Reference New and Updated Standards Under 1 CFR
51.5

    As required by 1 CFR 51.5, FRA has summarized the standards it is
incorporating by reference in the section-by-section analysis to this
preamble. The AAR standards summarized herein, and listed in the table
directly below for convenience, are reasonably available to all
interested parties for inspection. The standards can be obtained from
the Association of American Railroads, 425 Third Street SW, Washington,
DC 20024, telephone:<PHONE_NUMBER>, email<EMAIL_ADDRESS>
website: https://aarpublications.com.

                           AAR Standards Incorporated by Reference in 49 CFR Part 232
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                                                                             Year or      Section affected in 49
      Identification No.                         Title                       edition               CFR
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S-469-01.....................  Performance Specification for Freight               2006  Sec.   232.103(l).
                                Brakes.
S-486-18.....................  Code of Air Brake System Tests for                  2018  Sec.   232.305(a).
                                Freight Equipment.
S-4027-18....................  Automated Single-Car Test Equipment,                2018  Sec.   232.305(a).
                                Conventional Brake Equipment-Design and
                                Performance Requirements.
S-4045-13....................  Passenger Equipment Maintenance                     2013  Sec.   232.717(e)(1).
                                Requirements.
S-4200.......................  Electronically Controlled Pneumatic                 2014  Sec.   232.603(f)(1).
                                (ECP) Cable-Based Brake Systems--
                                Performance Requirements.
S-4210.......................  ECP Cable-Based Brake System Cable,                 2014  Sec.   232.603(f)(1).
                                Connectors, and Junction Boxes--
                                Performance Specifications.
S-4230.......................  Intratrain Communication (ITC)                      2014  Sec.   232.603(f)(1).
                                Specification for Cable-Based Freight
                                Train Control System.
S-4250.......................  Performance Requirements for ITC                    2014  Sec.   232.603(f)(1).
                                Controlled Cable-Based Distributed
                                Power Systems.
S-4260.......................  ECP Brake and Wire Distributed Power                2008  Sec.   232.603(f)(1).
                                Interoperability Test Procedures.
N/A..........................  2020 Field Manual of the AAR Interchange            2020  Sec.   232.717(e)(1).
                                Rules.
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    The rule text already incorporates by reference the latest versions
of the following AAR standards, so no updates are currently necessary:
S-4220, ECP Cable-Based Brake DC Power Supply--Performance
Specification (2002); S-4240, ECP Brake Equipment--Approval Procedure
(2007); and S-4270, ECP Brake System Configuration Management (2008).

F. Railroad Safety Advisory Committee (RSAC) Advice and Input

    FRA received substantial advice and feedback from the RSAC on the
contents of this rule prior to its initiation. FRA first established
the RSAC in March 1996 under Section 10(a)(2) of the Federal Advisory
Committee Act (Pub. L. 92-463) to provide a forum for stakeholder
groups to provide advice and recommendations to the FRA on railroad
safety matters. In April 1996, the RSAC formed the Tourist and Historic
Railroads and Private Passenger Car Working Group (THRWG). Since that
time, the THRWG had considered numerous issues affecting tourist and
historic rail operations and in August 2013, the THRWG accepted Task
No. 13-01 to consider the applicability of FRA's regulations to
historical or antiquated equipment that is used only for excursion,
educational, recreational, or private transportation purposes. The
THRWG met in Washington, DC on April 9-10, 2014, and reviewed, among
other things, the safety glazing standards (49 CFR part 223) regarding
the treatment of certain equipment; regulatory treatment under the
freight car safety standards (49 CFR part 215) of non-commercial
freight cars over 50 years old; and the scope and application of
appendix B of 49 CFR part 232 (freight power brake standards). The
THRWG also identified other issues involving FRA's regulatory treatment
of tourist, scenic, historic, excursion, educational or recreational
rail operations or private passenger rail car operations and equipment
in other chapters of title 49, which FRA anticipates will be addressed
in subsequent rulemakings. On December 4, 2014, the full RSAC accepted
the THRWG's report. See RSAC Meeting Minutes, p. 12, https://rsac.fra.dot.gov/radcms.rsac/File/DownloadFile?id=44. Subsequently, in
a July 24, 2019, meeting the THRWG reviewed and concurred with the
proposed appendix B updates, which FRA is adopting, with minor
revision, as new subpart H in this final rule.

G. Comments Filed

    In response to the NPRM, comments were filed by: AAR and the
American Short Line and Regional Railroad Association (ASLRRA)
(collectively, the ``Railroads''); the American Train Dispatchers
Association, the Brotherhood of Locomotive Engineers and Trainmen
(BLET), the Brotherhood of Railroad Signalmen, the Brotherhood Railway
Carmen Division TCU/IAM, and the International Association of Sheet
Metal, Air, Rail and Transportation Workers--Transportation Division
(collectively, ``Labor''); the Transport Workers Union of America
(TWU); Wabtec and New York Air Brake (collectively, the ``Suppliers'');
the National Transportation Safety Board (NTSB); and various
individuals.
    Comments related to specific proposals in the NPRM are addressed in
the section-by-section analysis below (see part III of this preamble).
FRA addresses the more general comments received directly below.
    An anonymous commenter generally contests the proposal, stating
that safety regulation seems to be needed and that equipment should be
placed out of service until brought up to ``these standards.'' TWU
states the proposed changes would reduce the current safety standards
for single car air brake tests, EOT devices, helper service, and brake
maintenance and inspections. While there could be significant value in
creating consistency between U.S. and Canadian regulations, and in
incorporating newer safety technologies, TWU said the proposals
downplay the cumulative magnitude of the changes and exclusively
benefit the railroads' profit margins at the expense of safety. Labor
alleged that FRA is ``cherry picking'' Canadian regulations to adopt.
Labor further notes that, while FRA acknowledges its obligation to
regulate ``in the public interest and consistent with railroad
safety,'' the NPRM appears

(according to Labor) ``in the economic interests of the railroad and
consistent with carrier convenience and higher profits.''
    While there are many similarities between the Canadian and U.S.
railroad regulations, and further harmonization could benefit seamless
international operations, it is not necessarily optimal for the two
sets of regulations to mirror each other precisely. Each country's
regulators have ample opportunity to observe and study one another's
experiences, and take regulatory action to implement lessons learned.
This measured approach allows for greater harmonization when
appropriate. While there is merit in TWU's general position that any
changes should be considered in the context of related regulations, TWU
did not identify any particular related regulation for consideration.
Similarly, the anonymous commenter generally critiques the safety
measures proposed in the NPRM, but does not identify any specific
measures and does not explain how any of the proposals would result in
less safe rail operations.
    In response to the Labor concern that the proposed rule is in
railroads' economic interest, FRA's first priority is safety. Further,
this rule is based on safety data from U.S. and Canadian operations
performed under regulations and longstanding FRA waivers. Labor has had
multiple opportunities to provide input on these waivers and this
rulemaking, has been an active participant on all test waivers, and has
provided comments considered by FRA during those proceedings.
    Labor also commented and requested clarification on the
applicability of waivers after issuance of this final rule, questioning
what relief the rule would provide if railroads are still governed by
the existing waivers as indicated in the NPRM and discussed above. As
noted above, the purpose of this rulemaking is to extend the relief
provided by the identified waivers to the entire railroad industry.
While each waiver applies only to the petitioning entity or entities in
defined situations, and only for a limited duration of time, this rule
applies universally and eliminates the inefficiencies and uncertainties
that result from having to periodically review and renew individual
existing waivers. This final rule does not supersede the associated and
affected waivers. While the final rule may have provisions mirroring
and redundant of certain waivers, the waivers are still active and
applicable. Unless this final rule differs from a particular waiver,
very little should change for each entity benefiting from that waiver.
However, any relief or condition remaining in an existing waiver that
has not been codified by this final rule remains in force. For
instance, there may be certain local conditions or extra information in
the waiver not captured by this rule. It is up to each railroad or
other waiver holder to decide whether it still wants or requires a
waiver (or a modification to a waiver) after the final rule becomes
effective.

III. Section-by-Section Analysis

    Unless otherwise noted, all section references below refer to
sections in title 49 of the Code of Federal Regulations (CFR).

Amendments to 49 CFR Part 218

Section 218.22 Utility Employee
    As stated in the 1993 final rule initially adopting Sec.  218.22,
``Protection of Utility Employees,'' this section defines the
circumstances under which a utility employee may be permitted to
function as a member of a train or yard crew without the benefit of
blue signal protection. 58 FR 43287, 43290, Aug. 16, 1993 (1993 final
rule). FRA's blue signal regulations (found at 49 CFR part 218, subpart
B) generally require that when ``workers'' are on, under, or between
rolling equipment: (1) Blue signals be displayed in accordance with the
requirements of part 218; and (2) the rolling equipment may not be
coupled to, moved, or have equipment placed to obscure the blue signal
protecting the protected track. 49 CFR 218.23. The regulations define a
``worker'' as ``any railroad employee assigned to inspect, test,
repair, or service railroad rolling equipment, or their components,
including brake systems,'' but specifically exclude members of train
and yard crews, except when they are assigned to inspect, test, repair,
or service ``railroad rolling equipment that is not part of the train
or yard movement they have been called to operate.'' 49 CFR 218.5.
    In the NPRM, FRA proposed two modifications to Sec.  218.22 related
to blue signal protection. First, FRA proposed to replace the incorrect
reference to ``subpart D'' in paragraph (c) to reflect the correct
reference to the blue signal regulations in subpart B. Second, to
incorporate longstanding waivers, FRA proposed to amend the list of
functions in paragraph (c)(5) that a utility employee properly attached
to a train or yard crew could perform without establishing blue signal
protection to include the changing of a battery on a rear-end marking
or EOT device, provided the battery can be changed ``without the use of
tools.'' In the NPRM, FRA also invited commenters to identify other
tasks that may justify being added to the list of exceptions from the
blue signal requirements in the paragraph and to address the utility
and feasibility of establishing a performance-based requirement as an
alternative to listing specific tasks excluded from the blue signal
requirements.
    FRA received no comments responding to its proposal to correct the
erroneous reference to subpart D in paragraph (c). Accordingly, in this
final rule, FRA is adopting this proposed amendment.
    In response to FRA's request for comments on the proposed revised
list of functions in paragraph (c)(5), TWU commented that ``utility
employees'' are often ``different employees each day or each hour,
creating confusion and raising safety concerns.'' TWU suggests that
this final rule permit designation of only one utility employee ``per
shift/per day'' provided they are working under the 3-point protection
\2\ of the train crew (currently Sec.  218.22 permits up to three
utility employees to be attached to one train or yard crew at any given
time).
---------------------------------------------------------------------------

    \2\ ``3-point protection'' is a railroad operating rule that
provides protection for workers who are not required to use blue
signal when fouling equipment. Exact language varies by railroad
(some refer to the procedure as ``set and centered''); however, the
most common steps are (1) placing the locomotive generator field
switch in ``off'' position, (2) centering the reverser (i.e.,
placing the forward/reverse control in neutral), and (3) fully
applying locomotive and train brakes.
---------------------------------------------------------------------------

    Labor generally asserts that exempting utility employees from blue-
flag protection when replacing an EOT device's battery would create an
unnecessary risk because ``[i]f the switch behind the train isn't
locked and another crew is free to line the switch, they could
inadvertently line a switch into the train being worked upon, exposing
the utility employee to unnecessary risk.'' Labor did not, however,
explain why the alleged risk associated with a utility employee
replacing an EOT device's battery is any different from the risks
associated with a utility employee performing any of the existing
functions listed in paragraph (c)(5). In addition, Labor provided no
comment on the feasibility of establishing a performance-based
requirement.
    The Railroads support FRA's proposal to codify the longstanding
waivers permitting utility employees to replace batteries on EOT
devices under Sec.  218.22. Further, the Railroads suggest that FRA
delete the ``prescriptive list'' of functions applicable to utility
employees and revise the rule instead to state that a properly attached
utility employee working as a train crew member can perform all
functions that

a train or yard crew member can perform. Referencing the preamble of
the 1993 final rule, the Railroads assert that the list represents
FRA's understanding at that time ``of all the functions train or yard
crew members typically performed without blue signal protection.''
Railroads Comments at p. 2. The Railroads state that the ``use of a
utility employee who is a member of a train crew is now ubiquitous
across the entire industry'' and that after a utility employee properly
attaches to a train or yard crew, he or she becomes a member of that
train crew, functions in the same manner as a train crew member, and is
a part of the constant communication that occurs between members of the
train crew working as a team. The Railroads also assert that allowing a
properly attached utility employee working as a train crew member to
perform all functions that members of the train or yard crew can
perform will ``likely improve safety by reducing unnecessary accident/
incident injury exposure to railroad employees caused by the physical
act of establishing blue signal protection for utility employee
activities that are not on the list.''
    FRA finds that the Railroads' comments may have merit and more
substantial updates to Sec.  218.22 may be justified because the
section has not been updated since its initial implementation almost 30
years ago. Accordingly, FRA concludes that although a more substantial
update to Sec.  218.22 may be justified, to allow appropriate notice
and comment on any such update, FRA will address both the Railroads'
comments and TWU's comments on Sec.  218.22 in a subsequent rulemaking.
    FRA is, however, adopting the revision to paragraph (c)(5) as
proposed in the NPRM by amending the list of functions provided in that
paragraph that do not require blue signal protection to include battery
change-out on rear-end marking devices or end-of-train devices without
tools. As noted in the NPRM, this revision effectively incorporates two
longstanding waivers granted by FRA over a decade ago and under which
each Class I railroad has operated successfully, with no reports of
related injuries or incidents. This successful record demonstrates that
the relief provided by waiver and adopted in this final rule is
safe.\3\
---------------------------------------------------------------------------

    \3\ See Docket No. FRA-2001-10660; Docket No. FRA-2004-17989.
---------------------------------------------------------------------------

Amendments to 49 CFR part 221

Section 221.13 Marking Device Display
    Section 221.13 includes EOT marking device display requirements.
Paragraph (d) requires each marking device's centroid to be located at
a minimum of 48 inches above the top of the rail. In the NPRM, FRA
proposed to revise this requirement to 40 inches above the top of the
rail based on two longstanding waivers that allowed the marker height
measurement to be reduced to 41 and 42 inches, respectively. See Docket
No. FRA-2015-0023; Docket No. FRA-2017-0093.
    Since FRA granted the waiver petitions, no accidents attributed to
the lowered marker lamp height permitted have been reported through the
FRA accident reporting system. As discussed in the NPRM, FRA proposed
the change to allow the use of lighter weight and newer types of EOT
devices that do not use heavy batteries. FRA expects the use of these
devices, which can be mounted lower than the larger devices with heavy
batteries, will improve safety by lowering the risk of injury to
personnel handling the devices.\4\ FRA proposed a minimum height of 40
inches above the top of the rail, so as not to interfere with the top
of couplers (which are typically 38'' from the top of the rail) or
other safety appliances, such as end sill handholds. FRA also proposed
a minimum height of 40 inches above the top of the rail to ensure that
the ergonomic advantages of the newer types of EOT devices are
consistently realized (i.e., to avoid employees installing or
maintaining the devices having to reach high or stoop low to access the
devices). In proposing this change, FRA noted that the parties to the
waivers had provided data showing no discernable visibility difference
up to one mile away.
---------------------------------------------------------------------------

    \4\ See DPS, ``FRA Waiver Request--49 CFR 232.221.13(d)--Marking
Device Display, p. 2, Docket No. FRA-2015-0023, dated Mar. 9, 2015
(posted Mar. 12, 2015) (``A 15 lb or less End of Train Device will
enhance railroad safety for all North American Railways by reducing
the risk of injuries.''); DPS, ``Incoming Waiver Extension-DPS--
Marking Light Centroid 2020,'' p. 2, Docket No. FRA-2015-0023, dated
April 14, 2020 (posted April 24, 2020) (``A smaller lighter End of
Train Device will enhance railroad safety for all North American
railroads by reducing the risk of injuries.'').
---------------------------------------------------------------------------

    TWU, Labor, and the Railroads filed comments. TWU states the change
in permissible height is unnecessary and should be rejected because it
is not based on any safety metric. Labor has ``no quarrel'' with any
EOT weight or height, but questions the viewing distance metrics of
0.5-1.0 mile. Labor asserts that FRA should measure from at least 1.5
miles away, given the increased train lengths and the additional space
need to come to a safe stop without incident. The Railroads propose
allowing centroids to be as low as 36'' from the top of the rail to
allow for design flexibility. According to the Railroads, the testing
performed in support of the waivers at 36'' , with LED-equipped lamps,
provides for adequate visibility from varying angles.
    FRA notes that under its waiver, DPS performed visibility field
testing of marker lights placed at heights of 48 inches and 36 inches
up to 2 miles away on flat, tangent track. In addition, FRA used its
own experience and testing over distances up to a mile away to test and
review the visibility of marker lights. Based on this testing, the data
developed through the waivers, and FRA's experience, the previous
threshold height of 48 inches and the new threshold height of 40 inches
each permit EOT device marker light visibility from over one mile away
if there are no obstructing curves or hills. In other words, on flat,
tangent track, EOT marker lights at 48 inches and 40 inches are visible
from 1.5 miles away. The range of 0.5-1.0 miles was cited by FRA as,
oftentimes, there can to be some vertical undulation in the track or
curves that could reduce the visibility below 1.5 miles. Due to the
variability of light visibility, and without any comments proposing a
specific safety metric, FRA was unable to develop a more reliable
methodology.
    FRA notes that in its requests for waivers, the manufacturers
requested that the marking device's centroid be permitted to measure
41.3'' to 44.3'' from the top of rail. FRA also notes that although
data submitted in the course of the waiver proceedings generally
supported a 36'' marker light height, only a 40'' height has actually
been tested under the waivers. In addition, a minimum marker light
height of 36'' would potentially expose the device to damage from a
neighboring coupler and risks fouling other safety appliances,
including end sill handholds compliant with Sec.  231.1(i)(3)(ii).
Also, the lower a marker's height, the more susceptible it is to mud
spray from the track bed or to damage caused by low flying ballast
rock, which may adversely affect the visibility of the marker light.
    In addition to changes to permissible marker light height, FRA also
sought comment on the effects of using LED bulbs and the utility and
feasibility of establishing a performance-based standard in lieu of the
specific height requirements of this section. While FRA received no
comments on bulb types or

the effects of using LED bulbs, the Railroads expressed support for
replacing the technical height requirement with a performance-based
standard addressing minimum distance and visibility requirements,
claiming markers may become obsolete as train separation technologies
continue to advance. The Railroads, however, provided no meaningful
suggestion for such a standard.
    After considering all available waiver and testing data, and all
comments received in response to the NPRM's proposal to revise
paragraph (d) of Sec.  221.13, FRA concluded that additional
flexibility in marker height could be allowed without adversely
affecting marker visibility. Accordingly, in this final rule, FRA is
revising paragraph (d) to require the centroid of any marking device to
be located above the coupler, where its visibility is not obscured and
it does not interfere with an employee's access to, or use of, any
other safety appliance on the car.
Appendix A to Part 221 Procedures for Approval of Rear End Marking
Devices
    As proposed in the NPRM, to correct typographical errors, FRA is
modifying ``perscribed'' to ``prescribed'' in paragraph (a)(1)(2)(ii)
and ``peformed'' to ``performed'' in paragraph (b)(3)(ii).

Amendments to 49 CFR Part 232

Section 232.1 Scope
    Paragraph (b) of Sec.  232.1 describes how the scope of Part 232
would change in phases after the January 2001 publication of the final
rule that created Part 232. Paragraph (c) and the final phrase of
paragraph (d) include similarly antiquated instructions. Because the
dates in these paragraphs have passed and are no longer relevant, as
proposed in the NPRM, FRA is removing paragraph (b)'s historical
schedule, paragraph (c) in its entirety, and the final phrase in
paragraph (d) providing for earlier optional compliance. FRA is also
moving paragraph (d) to paragraph (c).
Section 232.5 Definitions
    Section 232.5 defines certain terms as they are used in Part 232.
The existing rule text refers to certain provisions of Sec.  232.1 to
account for varying effective dates and its inapplicability to appendix
B. Since those dates have passed, and appendix B is being moved to
Subpart H, these cross-references are no longer necessary and are
therefore being deleted from the introductory paragraph of Sec.  232.5.
    In the NPRM, FRA proposed to update the definition of ``Air flow
method indicator, AFM'' to clarify that the definition includes
digital, as well as analog, AFM indicators, and to specify that a
digital version must have markings of equivalent or finer resolution to
that specified by FRA for an analog device.
    FRA also proposed to add definitions for the terms ``Air repeater
unit, ARU'' and ``APTA.'' FRA's proposed definition of ARU recognized
that a specialized car, other rolling equipment, or containers in well
cars could be used as an ARU by providing an additional brake pipe
source responding to air control instructions from a controlling
locomotive using a communication system such as a distributed power
system. For an item to be considered an ARU under this definition, the
communications must be akin to a distributed power system to ensure
accurate and sufficient responses. The purpose and use of the
technology, not its physical description, determines whether an item is
an ARU. FRA purposefully recognizes this distinction to avoid limiting
innovation and future options.
    Commenters concurred with FRA's proposal to update the ``Air flow
method indicator, AFM'' definition and add the new definitions for the
terms ``Air repeater unit, ARU'' and ``APTA.'' Accordingly, FRA is
adopting the revisions to this section as proposed.
    In this final rule FRA is also adding a definition of the term
``brake pipe gradient.'' In the existing rules (e.g., Sec. Sec.
232.103(m) and 232.205(c)) and as discussed in the NPRM, FRA often
describes the readily measured change in psi of air pressure between
the front and rear of the train. This differential is often referred to
as a ``brake pipe gradient'' or ``taper'' due to the shape of the graph
line of the pressure as it reduces from source of air to rear of train.
In certain circumstances, the brake pipe gradient also measures the
pressure between additional air sources such as an ARU or distributed
power unit (DPU). To ensure a common understanding of this term, FRA is
defining ``Gradient, brake pipe'' in this final rule.
Section 232.11 Penalties
    This section contains provisions regarding penalties. As noted in
the NPRM, the section contains references to specific penalty amounts
that change over time as a result of the statutory requirement to
periodically update penalties for inflation. Accordingly, in the NPRM,
FRA proposed to replace the references to specific penalty amounts with
general references to the minimum civil monetary penalty, ordinary
maximum civil monetary penalty, and aggravated maximum civil monetary
penalty. FRA also proposed additional language referring readers to 49
CFR part 209, appendix A, where FRA specifies statutorily provided
civil penalty amounts updated for inflation and to FRA's website
(www.fra.dot.gov) which contains a schedule of civil penalty amounts
used in connection with this part.
    As the Railroads note in their comments, the www.fra.dot.gov
website address now defaults to FRA's new website address at
www.railroads.dot.gov. FRA has updated the regulatory text accordingly.
Interested parties may check FRA's website for any future changes to
its civil penalty schedules.
Section 232.17 Special Approval Procedure
    In comments responding to proposed Sec.  232.407, the Railroads
asked for language permitting the use of new and innovative
technologies that could enhance or replace EOT devices or their
capabilities. While Sec.  232.407 already provides for the use of an
alternative technology to perform the same function, this concern is
best addressed and clarified by including an opportunity for interested
parties to seek and potentially receive special approval of such
alternatives under Sec.  232.17. Accordingly, FRA has included Sec.
232.407 in the list of sections affected by Sec.  232.17.
Section 232.103 General Requirements for All Train Brake Systems
    This section sets forth general requirements for brake systems of
trains and incorporates the 1999 version of AAR's ``Performance
Specification for Freight Brakes'' (AAR Standard S-469-47) at Sec.
232.103(l). In the NPRM, FRA provided a regulatory history of the
applicable regulations, orders, and standards (see 85 FR 2494, 2499,
Jan. 17, 2020) and proposed to update this reference to incorporate the
presently-available version of this AAR standard. AAR Standard S-469-01
defines and prescribes requirements for power brakes and appliances for
operating power brake systems. Accordingly, FRA is updating the
citation to the presently available S-469, and to reflect AAR's correct
address.
    The Railroads submitted comments concurring with FRA's proposal to
update the incorporation by reference, but encouraged amendments to the
incorporation by reference regulations to provide for more timely
codifications of updated industry standards. The incorporation by
reference regulations,

found at 1 CFR part 51, are under the purview of the Director of the
Federal Register. Because FRA has no authority to amend those
regulations, we cannot address the Railroads' concerns.
    Labor expressed concern under this section regarding high air flow
rates and the reduction of 8 psi regarding pressure taper limits. FRA
discusses those concerns below in the section-by-section discussion of
Sec.  232.205--Class I brake test-initial terminal inspection.
    Although not proposed in the NPRM, in reviewing comments to this
section, FRA determined a need to revise Sec.  232.103(m) to make clear
that if a train experiences a brake pipe gradient greater than 15 psi,
it must be stopped at the next available location and inspected for
leaks. This is not a substantive revision, but merely conforms
paragraph (m) of this section to paragraph (c) of Sec.  232.205 to
remove any confusion. As currently written, the ``15-psi gradient for
trains en route'' provision in that paragraph could be read to apply
only to trains tested with an AFM indicator. Such a reading, however,
is incorrect and directly conflicts with Sec.  232.205(c), which
requires a train's gradient to be no more than 15 psi, regardless of
whether brake pipe pressure is measured using the leakage test or with
an AFM indicator. See also 66 FR 4104, 4169, Jan. 17, 2001 (``[T]he AFM
should be permitted as an alternative on any train provided the 15-psi
gradient is maintained on the train . . . The brake-pipe gradient of 15
psi has been retained for both the leakage and air flow method of train
brake testing.''). Accordingly, FRA is revising Sec.  232.103(m) to
conform the ``15-psi gradient for trains en route'' provision to the
corresponding provision in Sec.  232.205(c).
Section 232.203 Training Requirements
    Section 232.203 contains training requirements for operators, and
for employees who perform brake system inspections, tests, or
maintenance. Specifically, paragraph (c) requires railroads to adopt
and comply with a training program specifically addressing the testing,
operation, and maintenance of two-way EOT devices for employees who are
responsible for testing, operation, and maintenance of the devices. In
the NPRM, FRA expressed concern with the safety risks associated with
the loss of communication events between the controlling locomotive and
the EOT device. As discussed in the NPRM, radio communication between
the controlling locomotive and the EOT device is critical to proper
brake functioning. If communications are interrupted, an EOT device
will not be able to initiate emergency braking when requested. Under
existing Sec.  232.407(g), communication between the EOT device and the
controlling locomotive can be lost for up to 16 minutes and 30 seconds
before the engineer is notified. If an engineer encounters a situation
necessitating an emergency brake application during a loss of
communication, the engineer may have to request an emergency brake
application multiple times before the system responds.
    Accordingly, in the NPRM, FRA sought comments on the frequency and
duration of communication losses; what operational and technological
solutions for communication loss the industry has considered and
implemented; what should be done to ensure an emergency signal is sent
and received by the system when needed even in the event of a temporary
communications loss; and what has and should be done to alert the
locomotive engineer that a loss of communication has occurred.
    The Railroads' response listed factors that may affect the
frequency and duration of communication losses and some ``comprehensive
solutions'' they have implemented and will continue to implement--
including repeaters; high-gain EOT antennas; event, fault, and data-
logging technologies; and the design and installation of multicast
repeating capabilities and more robust hardware--to help mitigate such
losses. The Railroads are also looking at the next generation of EOT
devices currently under development, which are expected to utilize
advanced communications strategies and more robust hardware design. The
Railroads, however, offered no truly comprehensive solutions to address
the risk of extended losses of communications in the interim.
    The NTSB filed public comments suggesting that FRA revise Sec.
232.405 to require a shorter duration between failed communication
checks before the engineer is notified. Until the EOT device receives a
head-end confirmation of having received a message regarding a
communication loss, NTSB recommends that FRA require each telemetry
system (i.e., the communication system between an EOT device and the
controlling locomotive) to initiate continuously an emergency brake
command transmission until a confirmation message or a decrease in
brake pipe pressure message is received. Labor similarly recommended
that FRA require telemetry systems to continuously initiate an
emergency brake until the subject train comes to a complete stop. In
addition, Labor recommended that telemetry systems enforce a complete
safe stop upon loss of communications lasting longer than 4 minutes and
59 seconds.
    FRA appreciates the Railroads' explanation of technologies and
efforts it uses, or plans to use, to mitigate concerns relating to
telemetry communications loss. While most of those identified have yet
to materialize, FRA looks forward to considering them in the future.
    FRA agrees in principle with the desire of NTSB and Labor to
minimize the potential impact of communication losses. However, neither
NTSB nor Labor provided any evaluation of the anticipated impacts of
the recommended actions (that FRA require each telemetry system to
initiate continuously an emergency brake command transmission until a
confirmation message or a decrease in brake pipe pressure message is
received, or that FRA require that telemetry systems enforce a complete
safe stop upon loss of communications lasting longer than 4 minutes and
59 seconds), estimate of the resulting costs to the railroads and the
public, or quantified the safety benefits of the recommended actions.
Given that there are thousands of telemetry systems in use throughout
the railroad industry today, FRA finds that the costs of requiring such
a change would be significant and FRA does not currently have
sufficient data to determine the likely resulting benefits.
Accordingly, it is premature at this time to adopt either of the
recommended solutions because the potential impacts of the recommended
solutions are not yet understood.
    Instead, to address the safety risks involved with potential losses
of communication, FRA is revising the training requirements at Sec.
232.203(c) to ensure that employees who operate EOT equipment are
trained in the limitations and proper use of the equipment's emergency
application signal and loss of communications indicator.
Section 232.205 Class I Brake Test-Initial Terminal Inspection
    Section 232.205 contains the requirements for conducting Class I
brake tests-initial terminal inspections. Pursuant to Sec.  232.205, a
Class I brake test must be performed when a train is initially
assembled, the consist is changed in certain ways (by adding or
removing cars), or a train is off-air for more than four hours. Section
232.205 provides two methods for conducting Class I brake tests on
standard pressure-maintaining brake valves: (1) A leakage test; or (2)
an air flow test method.

    Based on data submitted by AAR in support of their Petition,
including data garnered from Canadian rail operations, FRA (in the
NPRM) proposed extending the duration of the off-air limitation.\5\ FRA
also proposed revisions to the brake pipe leakage requirements during
certain Class I air brake tests, and requirements associated with the
calibration of AFM indicators used to conduct Class I brake tests using
the air flow test method.
---------------------------------------------------------------------------

    \5\ See also amendments to Sec. Sec.  232.209, 232.211 and
232.217 in this final rule.
---------------------------------------------------------------------------

    In the NPRM, FRA also sought comments on its analysis leading to
the proposal, including the accuracy and sufficiency of the data on
which it based the NPRM. FRA requested comment on the reasons
underlying Canada's lower rates of air-brake-related failures that
would better inform FRA of the off-air requirement's impact. In
addition, FRA requested comment on whether a time off-air tracking
system is necessary or if there are other means for FRA to determine
the amount of time equipment is left off a source of compressed air.
FRA also requested comment on potential regulatory alternatives to a
time off-air limit that would address the same safety risks and ensure
that, despite equipment being off-air for any length of time, the
equipment's air brakes are in proper working order.
    Generally, the Railroads, Suppliers, and at least two individual
commenters, submitted comments in support of the proposed revisions,
while Labor and other commenters expressed concern about the proposed
revisions. For the reasons explained below, in this final rule FRA is
adopting revisions to this section as proposed and, in response to
comments received, FRA is clarifying certain requirements related to
the use of ARUs.
Off-Air Requirement
    As noted above, and as discussed in more detail in the preamble to
the NPRM (see 85 FR 2499), under the existing regulation, if a train or
other equipment (e.g., individual cars) is left unattached to any air
source (e.g., locomotive, yard air) for more than four hours, it must
receive a Class I brake test prior to further operation of the train.
49 CFR 232.205(a)(3). Moreover, to ensure that an air brake system did
not degrade, and to allow a railroad to delay a full-train Class I test
in many circumstances, under the existing regulation equipment off-air
for more than four hours may require a Class I or II test prior to
being added to an en route train, and will require a Class III brake
test prior to being operated in revenue service. 49 CFR 232.209(a)(1)
and 232.211(a)(3)-(a)(5). This requirement also affects yard air
applications. 49 CFR 232.217(c)(1). For a more detailed discussion of
requirements related to Class I brake tests and a substantial history
and analysis of the off-air requirement, see 66 FR 4103, 4122, Jan. 17,
2001.
    In the NPRM, FRA proposed to extend the four-hour off-air
requirement to 24 hours. The Railroads and Suppliers submitted comments
supporting FRA's proposal to increase the off-air requirement from 4 to
24 hours. The Railroads assert that the data provided by AAR cited in
the NPRM shows that ``time off-air is now not relevant to safe air
brake functioning'' and that improvements in air brake components have
``greatly reduced'' brake pipe leakage. Citing Canada's experience, and
supplying TTCI test data as further support, the Railroads state that
there is no safety detriment to cars being off-air for 24 or 48 hours
or more. Further, the Railroads assert that although FRA revised the
air brake regulations in 2001, those revisions did not reflect the
safety enhancements that had been gained since the 1950's and that
further brake system improvements have been made since 2001 concerning
brake pipe leakage-mitigation and moisture and contaminate removal. In
response to FRA's request for comment on the data on which the NPRM was
based, the Railroads expressed their confidence in the accuracy and
sufficiency of the data.
    The Railroads also contend that extending the amount of time that
equipment may be left off-air without requiring another Class I brake
inspection would result in positive financial, environmental, and
operational benefits. A larger time window for equipment to remain off-
air would reduce the amount of time locomotives would stand idling,
which may disturb communities with noise, vibration, and emissions. In
addition, the larger time window could result in trains clearing
highway-rail grade crossings more expeditiously in certain
circumstances by allowing trains to be cut at crossings while awaiting
a crew change. According to the Railroads, permitting 24-hours off-air
would reduce idling that results in an annual $2 million in fuel
savings and a 3,600-ton reduction of carbon dioxide emissions.
    A separate comment filed by an individual asserted that a primary
benefit of the proposal would be to help decrease each railroad's fuel
consumption and carbon footprints. This commenter notes that extending
the time off-air limitation would allow railroads to shut down
locomotives rather than leave them idling to keep air in cars' brake
lines.\6\
---------------------------------------------------------------------------

    \6\ Environmental issues, like those referenced by the comments
summarized in this paragraph, are considered in section IV.D, infra,
and in this final rule's Regulatory Impact Analysis.
---------------------------------------------------------------------------

    In its comments, TWU contends AAR's supporting factors for this
proposal--the ``alleged'' technological advancements and the interest
in aligning U.S. and Canadian regulations--were the same used by AAR,
and rejected by FRA, in the final rule published January 17, 2001.
Quoting extensively from that rule, TWU posits that ``while some
technology has progressed, none of [that final rule's] logic has been
undermined.'' Specifically, TWU states that although air dryers or
other moisture-mitigating systems may indicate progress, not all
locomotives are equipped with these systems and these systems do not
eliminate the freeze-up problems caused by moisture. Moreover, noting
that AAR's tests with these technologies were performed on a consist of
only 20 hopper and gondola cars, TWU asserts that the testing
conditions fell ``well short'' of replicating actual conditions in the
industry and do not consider trains consisting of 80 to 100 or more
cars, each car's age and condition, extreme climates, or old and water-
saturated yard air plants.
    TWU also contends that aligning U.S. regulations with the off-air
hours permitted by Canada ignores each country's differing safety
structures and other factors. Labor also objects to FRA's attempt to
harmonize with Canadian regulations, alleging that FRA is ``cherry
picking'' Canadian standards without holistically considering Canada's
much more stringent standards. Neither TWU or Labor provide any
substantive information or comment on Canada's alleged differing safety
structure or more stringent standards.
    In addition, Labor commented that extensions to the off-air
requirement should be handled collaboratively through the RSAC process.
Labor asserts that in 2001, FRA supported a four-hour off-air
requirement partially out of concern about the potential for vandalism
to affect braking systems negatively. Labor contends there is no data
suggesting anything has changed. Labor also asserts that, instead of
extending the off-air requirement, and thus reducing the number of
inspections performed, FRA should require better walking conditions at
inspection locations to mitigate employee risk. Labor argues AAR's
position describing

the four-hour off-air limit as ``too restrictive'' is merely
subjective. According to Labor, the four-hour off-air rule should
remain because four hours is necessary in cold weather conditions where
freeze-ups can occur and vandalism continues to exist. Labor also
contends that the time and costs associated with brake tests are less
than any potential damages resulting from a defect. Like TWU, Labor
believes that FRA should develop its own data, and not rely on AAR
data, regarding the number of slips, trips, and falls.\7\
---------------------------------------------------------------------------

    \7\ Labor also objects to AAR's request (in its separate eABS
rulemaking petition) to consider increasing the allowed mileage
between brake inspections when railroads use an eABS system. Labor's
comments are outside the scope of this rulemaking and FRA will
address Labor's comments on this issue in the appropriate rulemaking
proceeding (i.e., the eABS rule).
---------------------------------------------------------------------------

    One individual commenter--an employee and mechanical officer of
multiple freight and passenger railroads--expressed support for the
proposal to extend the off-air limitation to 24 hours. This commenter
asserted that reinspection of cars adds significant risk to employees,
citing the requirements for employees to establish blue signal
protection, setting necessary switches and derails, and walking the
train two complete times to observe the set and release.
    Another individual commenter, a freight conductor, suggests that
FRA analyze the impact of the proposed extension of the off-air
requirement on brake cylinder piston extension timing, rather than on
the rate of line-of-road failures (expressed as emergency brake
applications), for which a specific mechanical cause was not found. The
commenter states that in his experience he has found that typically
between 2%-5% of the car brakes will not initially apply during a test
of a fully charged system.\8\
---------------------------------------------------------------------------

    \8\ The commenter also questions why FRA restricts block
swapping and seeks clarification on Class I test requirements for
cars added to trains en route. Because those issues appear to be
beyond the scope of this rulemaking, FRA declines to discuss them
here. For an explanation of the block swapping limitations under
Sec.  232.205, please refer to the preamble of the 2001 final rule.
See, e.g., 66 FR 4104, 4119 and 4168, Jan. 17, 2001.
---------------------------------------------------------------------------

    After consideration of all comments submitted to the docket and all
available data, FRA concludes that extending the existing 4-hour off-
air limitation to 24-hours is justified. The technological improvements
to the air brake systems, introduced and proliferated both before and
subsequent to FRA's 2001 rule, have been beneficial in improving the
overall health of brake systems. Moreover, the supporting information
comparing Canadian and U.S. operations provided in Appendix 7 to AAR's
Petition clearly demonstrates the safety of extending the permitted
off-air limit to 24 hours. In favor of the reliability of these data is
the fact that they include same-railroad results (based on CN and CP
data) showing fewer undesired and unintended emergency brake
applications occurring in Canada than in the U.S. See AAR Petition for
Rulemaking, July 12, 2018, Appendix 7, Slide 4. While the TTCI
technology test data submitted by AAR are based on a sound premise, FRA
did not rely on the TTCI technical test data alone to support this rule
given the small sample size (i.e., 20 cars tested over the course of 5
days) and the much more relevant safety information from the Canadian
railroads' operational data that spanned a full year.
    FRA expects that a reduced number of brake inspections based on a
24-hour off-air limit will lead to a reduced number of injuries that
can occur during those inspections (e.g., slips, trips, and falls),
though FRA does not have sufficient data to determine quantifiable
safety benefits. FRA finds Labor's argument that the data AAR submitted
quantifying slips, trips, and falls incurred during brake tests to be
misplaced because the data is based on data submitted by Labor's own
constituents to their employing railroads. The railroads, in turn,
compile and submit the data each month to FRA as required by FRA's
accident/incident reporting regulations (49 CFR part 225). FRA then
aggregates the submitted data and such aggregated data is then
available on FRA's public database located at https://safetydata.fra.dot.gov. Thus, FRA considers these data to be of the
type the agency routinely relies upon to inform its rulemakings, as is
done here.
    FRA does not share Labor's concerns about vandalism of air brakes.
FRA's accident database contains no information indicating that
vandalism of air brakes has had any significant relationship to air
brake-caused accidents. Labor has not submitted any data to support its
concerns and no other commenters provided any information on vandalism.
    FRA further notes that Labor provided no data to support its belief
that the costs of more frequent Class I brake tests, as presently
performed, are significantly less than the costs resulting from
accidents that could have been avoided by the performance of such
tests. Regarding Labor's recommendation that FRA mandate ``better
walking conditions,'' FRA notes this is outside of the scope of this
rule. Finally, despite Labor's desire to involve the RSAC process, FRA
does not anticipate that asking RSAC to address this matter would
provide any additional meaningful insight into the technical validity
of extending the off-air limitation period.
    With regard to the individual commenter's concern that he has to
apply brakes a second time for 2-5% of the freight cars he inspects, he
does not correlate this experience with the length of time the affected
cars have been off-air. FRA notes that regardless of whether equipment
is off-air for four or 24 hours, 100% of the brakes must apply for a
Class I brake test to be successful.
    A multitude of variables affect brake system integrity (e.g.,
environmental factors such as temperature and humidity, operational
factors,\9\ age, and overall condition of the equipment). The longer
equipment remains off air, the greater opportunity these factors have
to affect brake system integrity. Moreover, despite the many technical
advancements in air brake technology, the structure of conventional air
brake systems on rail equipment involves many car-to-car connections,
which by nature cause the systems to experience gradual leaks once
removed from an air source. For example, as noted in the NPRM, in its
2013 report on the Lac-M[eacute]gantic, Quebec accident, the
Transportation Safety Board of Canada (TSB) cited two previous
instances of air brake failures concerning rail equipment that, when
left off-air, leaked and unintentionally released. Accordingly, absent
universal installation, use, and regulatory oversight of acceptable
brake health effectiveness and monitoring technologies (e.g., wheel
temperature detectors, electronic brake valves, eABS),\10\ besides
triggers such as mileage or reclassification, time off air remains the
only metric for ensuring brake system integrity. While FRA intends to
address some of these technologies in future proceedings, no commenter
has identified an alternative to a time off-air limit that would
address the same safety risks.
---------------------------------------------------------------------------

    \9\ Examples of operational factors may include the use of power
braking, train length, time taken to inspect equipment, and quality
of compressed air from locomotives or yard air plants.
    \10\ See, e.g., Docket Nos. FRA-2005-21613, FRA-2016-0018, FRA-
2018-0049, FRA-2019-0072.
---------------------------------------------------------------------------

    The Railroads commented that FRA's discussion of the TSB report
``does not promote public confidence in the agency's objective and
fact-based approach to rulemaking.'' However, FRA believes that
considering an objective, fact-based report, from Canada's equivalent
of the NTSB, to be the exact type of action that would inspire public
confidence in the

transparency and thoroughness of the agency's rulemaking process.
    Recognizing that Canada permits equipment to remain off-air without
a brake inspection for up to 48 hours upon notification to Transport
Canada (TC),\11\ as noted in the NPRM, FRA requested comment on
potentially extending the off-air limit to 48 hours in certain
circumstances. FRA also sought comment on how often this provision is
utilized in Canada and under what circumstances it is used. FRA
received no comments or information in response to the extent of this
provision's use in Canada. Citing the technological improvements in air
brakes discussed above, the Railroads, however, suggest that FRA should
universally extend the off-air limitation to 48 hours. The Railroads
assert that equipment is ``routinely permitted to be off-air for 48
hours'' without approval from TC. Alternatively, if FRA chooses to
adopt a universal 24-hour off-air rule, with a 48-hour limit only
applicable in certain circumstances, the Railroads state they should be
permitted to designate a list of ``extended off-air locations'' where
equipment may remain off-air for up to 48 hours without requiring a new
Class I air brake test.
---------------------------------------------------------------------------

    \11\ See Railway Freight and Passenger Train Brake Inspection
and Safety Rule (``Canadian Rule''), section 11.2(b), Transport
Canada, Oct. 27, 2014, available at https://www.tc.gc.ca/eng/railsafety/rules-tco0184-139.htm#section11 (``A No.1 brake test is
not required on: A block swap of cars that have been off-air for no
more than 24 hours or 48 hours after notifying the department.''). A
copy of this rule is included in Appendix 3 of AAR's Petition.
---------------------------------------------------------------------------

    The Suppliers fully support allowing a 48-hour off-air restriction,
believing it is appropriate to align these regulations with the
Canadian Rule that demonstrates the successful implementation of
increased off-air time.
    While the Railroads and Suppliers expressed support for allowing a
48-hour off-air restriction, FRA received no comments in response to
requests for comment on the Canadian experience with such an allowance,
nor any comments on the potential applicability of the notification
procedures in Sec. Sec.  232.207(c)(2) and 232.213(a)(1). FRA
understands TC receives only a small number of 48-hour off-air
notifications per year (no more than 12), primarily from two locations
during three-day holiday weekends or special situations such as labor
strikes. Such sparse use of Canada's 48-hour provision does not make it
routine, as the Railroads suggest.
    Because there is not sufficient data demonstrating the safety
impact of extending the off-air limit beyond 24 hours, in this final
rule, FRA is not extending the limit beyond 24 hours.
    As noted in the NPRM, FRA remains concerned with its ability to
provide oversight concerning cars left off-air for extended periods of
time. While FRA has historically used train and car movement records,
the presence of any ground air sources, and witness interviews to
verify equipment's time off-air, those tools will likely prove
insufficient over 24 hours. In the NPRM, FRA did not propose a specific
solution to this concern, but sought comment on whether a requirement
for tracking off-air time is necessary or whether there are other means
by which FRA could determine the amount of time equipment is left off a
source of compressed air. FRA asked for comment on what types of
tracking systems are available and how tracking data should be
maintained. FRA also sought comment on the potential burden or benefit
of a tracking requirement.
    In their comments, the Railroads do not support an off-air time
tracking requirement, claiming that railroads already track off-air
time and there is no one-size-fits all solution. The Railroads,
however, do not explain or provide any information as to how industry
currently tracks each equipment's time-off-air. The Railroads also do
not provide any insight into how, if the off-air limit is extended to
24 hours, FRA could determine the amount of time specific equipment is
left off-air. Instead, the Railroads point to FRA's rule allowing the
use of ECP brakes (Sec.  232.607(b)(4)(i)). The ECP brake rule permits
trains operating in ECP brake mode to remain off-air for 24 hours
between Class I brake tests and also does not include any method for
tracking equipment's time off-air.
    ECP brakes are fundamentally different than traditional air brakes.
ECP brake systems have self-diagnostic capabilities (i.e., ECP brake
systems self-report system health in real time to the operator).
Therefore, Sec.  232.607's allowance for freight trains operating in
ECP brake mode to remain off-air for 24 hours is not an appropriate
indicator of whether a time off-air tracking system is needed for
traditional freight equipment.
    Despite the above concerns, FRA is not establishing a time-tracking
requirement in this final rule. Such a requirement is more
appropriately considered in the eABS Rule. FRA notes, however, that
railroads remain legally obligated to comply with the off-air
requirement adopted in this final rule. As such, railroads will need to
adopt and comply with a methodology to determine that the equipment in
its trains comply with the new off-air rule. FRA will continue to
monitor each railroad's implementation of the off-air requirement and
appropriately utilize its available oversight and enforcement tools
(including civil penalties) to enforce its compliance.
Brake Pipe Leakage Limit
    As explained in the NPRM, Sec.  232.205, as currently written,
provides two methods for conducting Class I brake tests on pressure-
maintaining brake valves such as the standard 26-L brake valve: (1) A
leakage test; or (2) an air flow method test. See Sec.
232.205(c)(1)(i), (ii). It is physically impossible to prevent all
leakage from a train's brake pipe given the mechanical connections
between cars' air hoses (i.e., a certain amount of air will always leak
through the mechanical connections) and each method of testing measures
the pressure drop in a train's brake pipe in different ways. The
leakage test measures the amount of compressed air that leaks from the
brake pipe, while the air flow test method measures the amount of
compressed air the pressure maintaining valve puts back into the brake
pipe to maintain the line's pressure. Regardless of the test method
employed, Sec.  232.205 requires the pressure at the rear of the train
to be within 15 psi of the pressure that the train will be operated at
(known as the ``gradient'' or ``pressure taper'').
    When conducting a Class I test using the air flow method, paragraph
(c)(1)(ii)(B) prohibits brake pipe leakage from exceeding 60 cubic feet
per minute (CFM). In the NPRM, FRA proposed increasing the limit to 90
CFM when a DPU or an ARU is utilized.
    The traditional air flow test is measured from a single point of
air flow, at the controlling locomotive of the train. In other words,
the traditional air flow test measures the amount of air the
controlling locomotive's brake system is putting back into the train's
brake pipe. Because the air originates at a single source (the
controlling locomotive) and travels sequentially through each car's air
brake system, each connected via a mechanical air hose, gradually the
pressure in the train's brake pipe tapers off. DP trains have
locomotives located at two or more locations in the train, providing a
more uniform distribution of power to reduce in-train forces and
provide multiple supplies of air brake pressure and control. Similarly,
air brake repeater boxcars or containers mounted in well cars, and
other equipment serving the same purpose as these ARUs, have been used
to provide multiple sources of air brake pressure and control. Because
use of DP locomotives and ARUs provide multiple

sources of air, the total leakage from the brake pipe can be greater
than 60 CFM, as long as each individual source of air is controlling a
portion of the brake pipe that leaks less than 60 CFM, causing the
overall average brake pipe pressure to be better controlled than it
would be with a single source of air.
    As explained in more detail in the NPRM, since 2011, Canadian
railroads have operated with the higher air flow limit of 90 CFM on DP
trains. Under a waiver issued by FRA in Docket No. FRA-2012-0091 (test
waiver), several Class 1 railroads in the U.S. have tested and operated
with air flow limits of 90 CFM on DP trains. With the exception of one
unintentional brake release that occurred during testing, all trains
tested in the U.S. were operated safely and without incident. Of the
one train that experienced an unintentional brake release, the test
committee overseeing the operations concluded that the occurrence was
an anomaly and not related to the test.
    In the NPRM, FRA proposed to revise Sec.  232.205(c)(ii)(B) to
allow the use of a combined 90 CFM air flow limit on DP and ARU-
equipped trains, provided railroads implement operating rules to ensure
compliant operation of a train if air flow exceeds these parameters
after the Class I brake test is completed. The combined air flow is
derived by the sum of the air flow from all air sources in the train.
Comments were filed by the Railroads, Labor, and an individual
commenter.
    The Railroads concur with FRA's proposal to permit the use of 90
CFM and a requirement to update each railroad's operating rules to
address its use. An individual commenter expressed a high level of
confidence in the safe use of 90 CFM during a leakage test with
additional air sources. According to the commenter, adding air sources,
especially during cold weather conditions, could mitigate risk and even
allow the safe use of a 160 CFM limit.
    Labor expressed concern regarding high air flow rates and the
reduction of 8 psi regarding pressure taper limits.\12\ Labor believes
90 CFM is too high a limit, because ``greater air compressor power
should mean need less effort expended and less overall airflow due to
having more compressors working to maintain pressure [sic].'' Labor
seeks additional information on the unintentional release that occurred
during the test waiver in the U.S. Labor also notes that the NPRM is
silent regarding how an ARU, as defined, will be inspected, tested and
maintained. According to Labor, an ARU is a locomotive appurtenance and
its operation should comply with part 229, including the daily
inspection requirements, because it functions as a part of the controls
of a train's air brake system.
---------------------------------------------------------------------------

    \12\ Labor noted its comments regarding the proposed allowance
for higher air flow under Section 232.103-General requirements for
all train brake systems, but FRA is discussing them in the context
of Sec.  232.205 as this is where FRA proposed to codify the
requirements.
---------------------------------------------------------------------------

    It appears that Labor misinterprets the effect of the 8-psi
reduction in brake pipe pressure. FRA notes that a conventional end-of-
train brake pipe supply is permitted a pressure taper of up to 15 psi.
See Sec.  232.103(m). In the test waiver issued by FRA in Docket No.
FRA-2012-0091, the test committee found that the amount of leakage that
would cause a 15-psi pressure taper on a conventional end-of-train air
source (i.e., where brake pipe gradient is measured from the rear of
the train) only creates an 8-psi pressure ``sag'' between two DP
locomotives.\13\ This condition not only provides more available
braking power than a compliant conventional train with a permitted 15-
psi pressure taper, but provides a train that responds to brake control
signals in approximately one-half the time, arguably resulting in a
safer train.
---------------------------------------------------------------------------

    \13\ On a DPU-equipped train, the gradient can be a ``sag,'' as
the graph line of the pressure will assume a catenary curve between
the air sources. The depth of the sag is not readily measured
(without ECP or similar technology) and is not presently regulated.
In this particular example, the 8-psi pressure was rounded up from
7.5 psi, representing the nadir midpoint of a 15-psi pressure taper.
---------------------------------------------------------------------------

    Labor further states concerns that its crews are being required to
operate trains with AFM indicator readings over ``100 psi.'' This is a
misunderstanding of the AFM indicator. The AFM indicator tells the
engineer the leakage of his brake pipe in CFM, not in psi. Nonetheless,
if Labor is concerned that railroads are instructing employees to
operate trains in non-compliance with these regulations, FRA encourages
Labor to contact an appropriate representative of FRA's Office of
Railroad Safety to investigate the specific matter.
    In response to Labor's comment seeking information about the
unintentional release during the test waiver, FRA notes that Labor was
fully involved in the test waiver on which FRA based its proposal. See
Docket No. FRA-2012-0091. Individual engineers completed test reports
for each train operated and three BLET members were part of the test
committee where they ultimately supported a 90 CFM limit. Each test
report required the operating engineer to report information related to
the train's operations (e.g., equipment identification, route,
temperature, air flow at origination and en-route, brake system
performance and whether any unintentional release occurred).
Ultimately, the entire test committee came to a consensus that the
single unintentional brake release was an anomaly and insignificant to
the test.\14\
---------------------------------------------------------------------------

    \14\ According to the test report, the relevant unintentional
release resulted from a mechanical problem concerning the mid-train
DPU's main reservoir compressor governor, which caused the main
reservoir's air pressure to fluctuate outside its normal range. More
specifically, the affected equipment included an 8,902 foot, 12,248-
ton manifest train operated January 8, 2015. The DPU was in 2x1x0
configuration (mid-train unit), and the train was operating at
temperatures between -2 [deg]F and -8 [deg]F. The engineer reported
that ``DP main reservoir would drop when standing and lower brake
pipe below equalizing reservoir pressure. [He] would have to take
deeper sets greater than 15 psi to hold the train due to fluctuation
in main reservoir pressure on the DP.'' The railroad commented that
brake pipe flow on the lead locomotive remained in the low 20 CFMs,
but acknowledged the engineer was having issues with the main
reservoir pressure on the DPU. The railroad concluded that the main
reservoir problems could have resulted in the reported unintentional
release. The test committee concurred with the railroad's findings.
The problem with the main reservoir of the DP unit was mechanical,
and not related to the subject study of the test.
---------------------------------------------------------------------------

    With regard to Labor's assertion that use of 90 CFM is unsafe, FRA
notes that Labor's comment does not consider the use of additional air
sources such as a DP or ARU, which is the fundamental basis of FRA's
proposal. As FRA explained above, the additional air sources provided
by a DPU or ARU reduces the gradient within the brake pipe, maintains a
higher overall pressure, and provides a quicker response to air brake
reductions; resulting in faster brake applications. Each additional
compressor from a DP locomotive or an ARU reduces the stress on any one
compressor, likely making the system more safe. FRA does not agree with
Labor's characterization of an ARU as an appurtenance automatically
subject to the requirements of part 229. Under the Locomotive
Inspection Act (the ``Act,'' 49 U.S.C. 20701), a locomotive and its
``appurtenances'' must be ``in proper condition and safe to operate''
before it can be placed in service. FRA's Locomotive Safety Standards
(49 CFR part 229) implement the Act. Under the Act, if a locomotive or
appurtenance of a locomotive does not meet the ``in proper condition
and safe to operate'' standard, it may not be placed in service. See 49
CFR 229.7.
    Because the use of an ARU is optional and not necessary for a
locomotive to be ``in proper condition and safe to operate,'' an ARU is
not an appurtenance to the locomotive under the Act. While Labor argues
an ARU is an appurtenance, ``because it functions

as a part of the controls of a train's air brake system,'' it is more
akin to an EOT device in its relationship to a locomotive; it receives
commands but is not a component of a locomotive. Moreover, an ARU
differs from a locomotive in that it does not have motive traction
power. Without a propelling motor or control stand, an ARU cannot be
considered a locomotive per Sec. Sec.  229.5 or 232.5. Accordingly, an
ARU is not automatically subject to part 229.
    With respect to Labor's concern about the inspection, safety, and
maintenance of each ARU, FRA notes that ARUs are subject to the
applicable requirements in parts 215 and 232. Indeed, an ARU shares
many features and operations of a locomotive that is subject to part
229. For example, an ARU may contain a locomotive air brake system
(automatic function, but not independent), a diesel generator, an air
compressor, and a DP control unit. Most ARUs also likely include
electrical wiring, internal walkways, rotating equipment, and main
reservoir pressure air tanks, which could expose employees to the same
hazards as a locomotive, if poorly maintained.
    In the NPRM, FRA proposed a definition for, and considered the use
of, ARUs. In response to Labor's comments on that proposed definition,
FRA is clarifying how, under the existing regulations, each ARU must be
properly maintained and functional for its safe operation. Because each
ARU shares features with both locomotives and freight cars, each such
element must comply with the appropriate regulatory requirement.
    The components of an ARU that are the same as those for a freight
car must continue to be inspected in compliance with parts 215 and 232
and the components that are similar to a locomotive must be inspected
in accordance with part 229. Accordingly, in paragraph (c)(9), FRA is
specifying that each ARU operating in accordance with part 232 must
comply with parts 215 and 232, and, as appropriate, the relevant
sections of part 229. While an ARU may share many features of a
locomotive, it does not have a propelling motor, or a control stand for
employees. See Sec.  229.5 for the definition of ``locomotive.'' Thus,
an ARU is not a locomotive. FRA recognizes, however, that certain
elements of ARUs provide the same functionality as locomotives (e.g.,
they compress air, modulate the brake pipe, or otherwise control the
train's movement). Accordingly, to help ensure those features are
functioning properly (as Labor notes in their comments), they must be
inspected. New paragraph (c)(9) specifies that an ARU's locomotive-like
features must receive a pre-trip inspection in accordance with Sec.
229.21 each time the train receives a Class I air brake test at its
initial terminal. For example, depending on the construction and
functionality of specific ARUs, applicable part 229 rules may include
those concerning periodic air brake maintenance (Sec. Sec.  229.29-33),
general requirements (Sec. Sec.  229.41-45), brake systems (Sec. Sec.
229.46, 229.49-53, 229.59), electrical systems (Sec. Sec.  229.83-87,
229.91), internal combustion equipment (Sec. Sec.  229.95-97, 229.101),
and cabs, floors, and passageways (Sec.  229.119(c)).
    Similar to how FRA treats passenger equipment (see Sec.
238.309(f)), because an ARU is not a locomotive, FRA is not requiring
the inspection to be documented on form FRA F 6180-49A. Instead, FRA is
requiring the inspection to be recorded on a form with substantially
the same information and that otherwise complies with Sec.  229.21.
    In light of the proven safety and efficacy of the test waiver, and
after consideration of the comments filed in this rulemaking, FRA is
adopting the proposed new Sec.  232.205(c)(1)(ii)(B), which permits the
use of a 90 CFM air flow limit on each train equipped with a DPU or
ARU. To ensure the same level of safety intended by FRA during the
waiver, but to allow for continued flexibility, FRA is requiring each
railroad to implement operating rules intended to ensure compliant
operation of a train if air flow exceeds the required parameters after
the Class I brake test is completed. A railroad may consider using the
test waiver's conditions as a template or starting point when drafting
their operating rules on this subject. While FRA appreciates the
Railroads' and the individual commenter's comments in support of a
higher CFM limit and notes that additional research is being performed
to look at longer trains and higher air flow, currently, FRA's
experience and data only supports a 90 CFM limit with additional air
sources.
AFM Indicator Calibration
    Current Sec.  232.205(c)(1)(iii) requires air flow indicator
calibration at least every 92 days and prohibits the calibration of air
flow test orifices at temperatures below 20 [deg]F. As noted in the
NPRM, to calibrate each device accurately, the entire AFM system--not
just the test orifices--must be calibrated at not less than 20 [deg]F.
In the NPRM, FRA proposed clarifying within the regulation that the
temperature of the AFM indicator and the test orifices must be
considered during calibration to ensure accuracy.
    The Railroads concur that AFM indicator temperature should be
considered during calibration. In addition, the railroads state that
the quarterly reports required under the waiver referenced in the NPRM
are no longer necessary. Further, while the Railroads support
codification of FRA guidance regarding the handling of an inoperative
or out-of-calibration AFM indicator, they urge FRA to adopt the 184-day
periodic maintenance schedule for certain systems.
    In their comments, Labor did not contest the proposal, but raised
related concerns. Labor states that, ``a traditional form of leakage
test method should also be used in temperatures less than 20 [deg]F.
Moreover, if an AFM cannot be calibrated without taking temperature
into account, temperature also should be taken into account to verify
the instrument's readings.'' Labor also believes that AFM indicators
are appurtenances that should be regulated under part 229, because once
installed they are no longer optional.
    The Railroads' comment regarding adopting the 184-day periodic
maintenance schedule is outside the scope of this rulemaking. In
addition, while quarterly reports are required as part of the ongoing
test waiver's conditions, FRA did not propose to codify that
requirement.\15\ Moreover, that particular test waiver remains under
consideration. Any conclusions based on its early findings would be
premature. FRA's purpose of referring to this waiver in the NPRM was
solely to identify the AFM indicator temperature issue in support of
the proposed requirement that the AFM indicator temperature must also
be considered.
---------------------------------------------------------------------------

    \15\ If a railroad believes certain waiver conditions, including
quarterly reports, are no longer necessary, then the railroad is
welcome to request revision or rescission of that waiver.
---------------------------------------------------------------------------

    If the AFM indicator is calibrated at a temperature above 20
[deg]F, its use will still be acceptable at lower temperatures. Using
ideal gas law calculations, the permitted variation of 3
CFM can be expressed as a variation of approximately 100 [deg]F.
Therefore, if an AFM indicator is precisely calibrated at 70 [deg]F,
its calibration should be in tolerance from 20[deg] to 120 [deg]F.
Theoretically (by calculation), at 20 [deg]F, an AFM reading of 60 CFM
would be an air flow of 57.2 CFM. Where V = volumetric flow in CFM, and
T = temperature of air into the AFM (absolute units in [deg]R), with
V1 = 60 CFM, T1 = 70 [deg]F, T2 = 20
[deg]F we calculate V2 from equation
[GRAPHIC] [TIFF OMITTED] TR11DE20.015

(Note T1 = 460 + 70 = 530): V2 = 57.2 CFM.
Because this error is on the ``safe'' side of the air flow rule (i.e.,
in colder temperatures the AFM indicator will display more air leakage
than is actually occurring), FRA is confident in the safe use of an AFM
indicator at lower temperatures.
    In response to the Labor comment that an AFM indicator is an
appurtenance to the locomotive, FRA disagrees because its use is
optional under Sec.  232.205(c) and unnecessary for a locomotive to be
``in proper condition and safe to operate.'' Accordingly, the daily
inspection requirements of part 229 do not apply to an AFM indicator.
However, as proposed in the NPRM, FRA is adopting new paragraph
(c)(1)(iv) which requires the recording of the last date of calibration
on Form FRA F6180-49A (locomotive ``blue card''). While that Form
applies to locomotives, the field provided for AFM indicator
calibration has been included as a matter of convenience for compliance
with and enforcement of new Sec.  232.205(c)(1)(iv) instead of
requiring a second form for non-appurtenances.
    To clarify the rules applicable to noncompliant or out-of-
calibration AFM indicators, as proposed, FRA is adding a new paragraph
(c)(1)(v). This new paragraph prohibits the use of an AFM indicator not
in compliance with part 232 and requires tagging a noncompliant AFM
indicator in accordance with Sec.  232.15(b), with the tag to be placed
in a conspicuous location of the controlling locomotive cab.
Section 232.207 Class IA Brake Tests--1,000-Mile Inspection
    Although not proposed in the NPRM, due to an internal agency
reorganization, FRA is removing references to the FRA Regional
Administrator in Sec.  232.207(c)(2).
Section 232.209 Class II Brake Tests--Intermediate Inspection
    FRA is amending the off-air requirements of this section without
change from the NPRM. Please refer to the off-air requirements analysis
provided for Sec.  232.205.
Section 232.211 Class III Brake Tests-Trainline Continuity Inspection
    FRA is amending the off-air requirements of this section without
change from the NPRM. Please refer to the off-air requirements analysis
provided for Sec.  232.205.
Section 232.213 Extended Haul Trains
    Under existing Sec.  232.213, a railroad may be permitted to move a
train up to, but not exceeding, 1,500 miles between brake tests and
inspections if the railroad designates a train as an extended haul
train and the train meets certain requirements.\16\ For a train to
qualify as an extended haul train, paragraph (a)(1) requires the
railroad to, in writing, designate the train as an extended haul train
and provide certain information to FRA, including ``[t]he type or types
of equipment the train will haul.'' See 49 CFR 232.213(a)(1)(iii).
Railroads have complied with Sec.  232.213(a)(1)(iii) by periodically
supplying FRA with spreadsheets identifying their extended haul trains
and providing the required information.
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    \16\ On March 1, 2019, AAR submitted a petition for rulemaking
that, if granted, would allow rail cars with a valid eABS record to
travel up to 2,500 miles between brake tests and inspections. In
this proceeding, FRA is addressing only foundational requirements,
such as the 24-hour off-air proposal, that could support the full
implementation of eABS. However, FRA expects to address this issue
in the eABS Rule.
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    In the NPRM, FRA reminded railroads of the need to identify, with
sufficient clarity, the type of equipment being hauled in extended haul
trains. FRA also sought comments and information on how to achieve such
clarity, what level of description FRA should expect, and how to
otherwise differentiate extended haul trains for oversight purposes.
Noting that Sec.  232.213 no longer provides for an inbound inspection
of all extended haul trains, and paragraphs (a)(5) and (a)(6) contain
certain requirements related to that previous inbound inspection
requirement, FRA proposed to modify those paragraphs to remove the
outdated references to inbound inspections.
    In response to FRA's request for comments on types of equipment,
the Railroads expressed the view that the type of equipment used in an
extended haul train has no bearing on the safe operation of that train
or its brakes and that the requirement to report the information to FRA
is outdated. Accordingly, the Railroads recommended that Sec.
232.213(a)(1)(iii) be deleted.
    While the information required under Sec.  232.213(a)(1)(iii) is
useful to FRA for focusing inspection resources, FRA agrees with the
Railroads comments that it is not otherwise necessary. Accordingly, in
this final rule, FRA is deleting paragraph (a)(1)(iii) and
redesignating paragraph (a)(1)(iv) as paragraph (a)(1)(iii).\17\
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    \17\ FRA notes that paragraph (a)(1)(iv), which is being
redesignated as paragraph (a)(1)(iii), requires each railroad to
provide to FRA ``the locations where all train brake and mechanical
inspections and tests will be performed'' for each designated
extended haul train. See 49 CFR 232.213(a)(1)(iv). In other words,
the submission must include the location of every expected brake and
mechanical inspection, not only the Class I inspections performed by
a qualified mechanical inspector, on the designated train.
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    In the NPRM, FRA proposed to add a new paragraph (8) to this
section that would provide railroads the flexibility to designate
different inspection and test locations for extended haul trains in
certain circumstances. FRA mirrored proposed new paragraph (8) on the
notification procedures of Sec.  232.207(c)(2), which allow railroads
to change the location of Class IA brake tests without prior notice to
FRA in certain emergency situations. Codification of this practice
would provide the railroads a flexible reporting procedure, and
ultimately regulatory certainty, to address emergency circumstances
involving extended haul operations. Due to an internal reorganization,
FRA is also removing the reference to the Regional Administrator in
paragraph (8).
    While the Railroads concur with FRA's proposed new paragraph (8),
TWU objects to the paragraph, asserting that Sec.  232.213 should not
be altered in any way. TWU states that sufficient flexibility already
exists and that the proposal would allow railroads ``more latitude to
close more yards and further reduce the number of Carmen available to
perform'' Class I inspections.\18\ TWU also notes that, if FRA did not
codify the proposed flexibility, a railroad could still modify its
designated inspection locations by submitting an updated extended haul
train list complying with Sec.  232.213(a).
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    \18\ In its comments, TWU purports to offer alternative rule
text, but merely restates the existing text of Sec.  232.213(a)(6).
Accordingly, FRA was unable to consider any particular revisions to
the rule text that TWU may have contemplated.
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    However, requiring such a process could frustrate railroads'
ability to respond to emergency situations and the process would
provide no safety benefit. Accordingly, FRA is adopting new paragraph
(a)(8) as proposed in the NPRM.
    With respect to paragraphs (a)(5) and (6), the Railroads concurred
with FRA's proposed removal of the outdated references to inbound
inspections in those paragraphs and there were no other comments. FRA
is, therefore, adopting the revisions to paragraphs (a)(5) and (a)(6)
as proposed.
    In the NPRM, FRA also requested comments on potential regulatory
alternatives to the existing extended haul provisions of Sec.  232.213,
potential improvements that could be made to the section to clarify or
expand the provision, or whether this provision

could be eliminated by the adoption of certain alternative standards or
requirements. For example, the section currently distinguishes between
an inspection conducted by a qualified mechanical inspector (QMI) and a
qualified person (QP) (both of which are defined in Sec.  232.5). FRA
requested comments and data on whether this distinction is still
justified and necessary.
    In response to this request for comment, the Railroads assert that
the distinction between QMIs and QPs is no longer justified. According
to the Railroads, ``there is no difference between the safety of trains
that receive a QMI test as compared to those tested by a QP.'' However,
the Railroads did not provide any data to support this assertion.
Although the issue of distinguishing between QMI and QP inspections is
relevant to any discussion of extending the mileage trains may travel
between brake inspections, without sufficient data, FRA is unable to
eliminate the distinction between QMIs and QPs at this time. However,
FRA intends to consider this issue further in the eABS Rule. FRA
encourages railroads to provide any data relevant to the safety
distinctions and synergies between QMI and QP inspections in that
rulemaking proceeding.
    In its comments, the Railroads also recommended that FRA permit all
trains receiving an initial terminal Class I brake test by a: (1) QP to
operate up to 1,500 miles, and (2) by a QMI to operate up to 2,000
miles, without requiring an intermediate (e.g., Class IA) brake test
and with an unrestricted number of pick-ups and set-offs. To have the
benefit of public comment on this recommendation, FRA expects to fully
consider this recommendation in the eABS Rule.
Section 232.217 Train Brake Tests Conducted Using Yard Air
    FRA is amending the off-air requirements of this section without
change from the NPRM. Please refer to the off-air requirements analysis
provided for Sec.  232.205.
Section 232.219 Double-Heading and Helper Service
    Section 232.219 provides regulations for the operation of double-
headed and helper locomotives in a train including when Helper Link or
a similar technology is used to control the emergency brake function on
helper locomotive consists. As explained in the NPRM, the section, as
written, is appropriate for a train with an EOT device; however, the
section is incompatible with trains that are not equipped with
traditional EOT devices, including ECP-brake operated trains and trains
with DP units in lieu of an EOT device. To address this issue, in
response to requests from two railroads, FRA issued waivers from this
requirement for ECP brake-configured train consists and DP consists
with one or more DP (non-helper) locomotives on the rear. See Docket
Nos. FRA-2006-26435 and FRA-2014-0013. Since granting these waivers,
there has been no known negative impact on safety involving these
operations.
    In the NPRM, FRA proposed to codify these waivers by adding a new
paragraph (d) to Sec.  232.219 to permit the use of a properly
installed and tested EOT device on the helper locomotive that is cut-in
to the train line air supply, provided railroads develop and implement
associated operating rules consistent with parts 221 (concerning marker
light display) and 232 (concerning EOT device installation and testing)
and the conditions established in the waivers discussed above.
    Both the Railroads and Labor support codifying these waivers, but
Labor urges FRA not to eliminate paragraph (c)(3). In response to
Labor's comment, FRA notes that it did not intend to eliminate
paragraph (c)(3), which includes a maintenance requirement for Helper
Link devices used on DP- or ECP-equipped trains. To enhance clarity in
light of Labor's comment, FRA is adopting the substance of proposed
paragraph (d) as new paragraph (c)(3) and existing paragraph (c)(3),
which requires periodic testing and calibration of devices subject to
Sec.  232.219, is being redesignated as paragraph (c)(4).
    A usage under new (c)(3) must still meet the requirements of (c)(1)
and (c)(2). All usages must meet the requirements of the new (c)(4).
Section 232.305 Single Car Air Brake Tests
    Section 232.305(a) requires each SCT to be performed in accordance
with the Sections 3.0 (``Tests-Standard Freight Brake Equipment'') and
4.0 (``Special Tests'') of AAR Standard S-486-04 (2004) (``Code of Air
Brake System Tests for Freight Equipment''), Section E of the AAR
Manual of Standards and Recommended Practices (Jan. 1, 2004), or an
alternative standard approved by FRA in accordance with Sec.  232.307.
Under the processes outlined in Sec.  232.307, which allows the
industry to request FRA approval of modifications to a currently
acceptable SCT procedure, FRA approved the use of AAR Standard S-486-18
in May 2018. See Docket No. FRA-2018-0011. The purpose of S-486 is to
provide a means of making a general check on the condition of the brake
equipment on cars as called for in the Filed Manual of the AAR
Interchange Rules. Only Sections 4 and 5 are codified, as these are the
tests that ensure safe operation of individual freight car brakes to
comply with the Safety Appliance Act. Other sections of the Standard
contain supplemental information that are not codified to provide
flexibility to be updated without meeting Federal requirements. These
include troubleshooting guidance and information on the maintenance and
construction of the physical testing devices. Accordingly, in the NPRM,
FRA proposed to update AAR Standard S-486-04 to AAR Standard S-486-
18.\19\ FRA received no comments in response to its proposal to
incorporate the updated AAR Standard S-486 and is incorporating the
updated standard as proposed.
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    \19\ FRA notes that in the NPRM's preamble, FRA erroneously
referred to Sections 4 and 5 of AAR Standard S-486, when the
appropriate references were Sections 3 and 4. 85 FR at 2503.
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    FRA also proposed to incorporate in paragraph (a), AAR Standard S-
4027, which provides an automated process to perform a SCT with an
automated single car test device (ASCTD). As explained in the NPRM, AAR
Standard S-4027 provides for two types of automated single cars tests:
(1) An automated test using an ASCTD connected to the end of a freight
car; and (2) an automated test performed from the side of a car using
the four-pressure manifold. FRA had conditionally approved a test
waiver permitting BNSF and UP to perform SCTs with an ASCTD using AAR
Standard S-4027 in lieu of AAR Standard S-486-4. See Docket No. FRA-
2013-0030. In the NPRM, FRA detailed the test committee consensus
process and its positive results and findings under that test waiver
for 800,000 SCTs performed on freight cars over 4.5 years. No opposing
comments were filed on the process, results, findings, or the standard
itself and FRA is incorporating the standard as proposed.
    Paragraph (b) identifies the events triggering a required single
car air brake test. For instance, under paragraph (b)(2), ``a railroad
shall perform a single car air brake test on a car when a car is on a
shop or repair track . . . for any reason and has not received a single
car air brake test within the previous 12-month period.'' Based on the
results performed by the tests under Docket No. FRA-2013-0030, and the
ability of the subject technology to provide a more comprehensive
testing of the braking

system, FRA proposed requiring a SCT on each car on a shop or repair
track for any reason that has not received a SCT with an end-of-car
ASCTD within the previous 24-month period or with a four-pressure ASCTD
within the previous 48-month period.
    As FRA noted in the preamble to the NPRM, FRA based this proposal
on the test waiver's findings that, after 4.5 years, cars tested with
end-of-car ASCTDs experienced an 18% reduction in the rate of repeat
brake failures, while a four-pressure test experienced a 58% reduction.
ASCTDs generally identify more air brake system defects than other
tests in the categories of air components, control valves and pipe
brackets, valves and subsystems. Data from the test waiver has also
shown that a car tested with an end-of-car ASCTD is 26% less likely to
have an AAR-condemnable wheel impact load detector indication, and
ASCTD tests with four-pressure showed a 70% reduction.
    TWU opposes lengthening the minimum testing requirement from 12-
months to 24-48 months, arguing that carriers ``could be missing
deficiencies that will turn into a major incident or derailment.''
Noting FRA's assertion in the NPRM's preamble that, on a daily basis,
thousands of individual freight cars are overdue for their SCT, TWU
notes that there is an ``overabundance'' of furloughed mechanical
employees. As such, TWU suggests that, ``[r]ather than lowering the
standards,'' FRA should penalize railroads for ``intentionally
undermining safety.'' Labor states that FRA should enforce the existing
requirements on the thousands of overdue cars rather than ``move the
goalposts.'' TWU and Labor also object to removing the ``repair yard
provision'' for SCTs.
    The Railroads support the ASCTD rules as proposed, but contest
FRA's concern regarding the number cars overdue their SCTs.
    In response to TWU and Labor's comments, FRA notes that it did not
propose to change the rules as they concern application of a
conventional SCT. To the contrary, FRA continues to require a SCT on
each car appearing on a repair track at more than 12 months since its
previous test using conventional testing equipment and would not remove
the repair yard provision as it currently exists for any tests.
    Instead, FRA's proposal would only extend the time allowed between
each SCT conducted using an ASCTD under AAR Standard S-4027. Because
AAR Standard S-4027 provides a highly repeatable test methodology with
more accurate results, railroads can make more effective repairs, which
may help reduce the backlog referenced in TWU's concerns.
    In addition to the repair track provision of paragraph (b)(2),
paragraphs (c) and (d) require a SCT on each car no less than 8 years
after it was built or rebuilt, and no less than every 5 years
thereafter. In the NPRM, FRA requested comments on the need to maintain
these requirements.
    In response, the Railroads urge FRA to delete any time-based test
cycles and to instead adopt ``performance-based triggers (e.g.,
identified via the study of data on actual line-of-road issues).''
    While FRA understands the Railroads' request to replace the time-
based test triggers required under paragraphs (b)(2), (c), and (d) with
a performance standard relying on ``line-of-road'' capabilities, the
request is unsupported by any specific performance standard, analysis,
or data. Accordingly, FRA cannot implement the Railroad's request at
this time.
    For the reasons outlined above, in this final rule FRA is adopting
the changes proposed to paragraph (b)(2), but not paragraphs (c) and
(d).
Section 232.307 Modification of the Single Car Air Brake Test
Procedures
    Existing Sec.  232.307 provides a procedure for industry to seek
modification of the single car air brake test procedures in Sec.
232.305(e). As discussed in the section-by section analysis for Sec.
232.603 below, in response to FRA's NPRM proposal to modify Sec.
232.603, the Railroads commented that proposed paragraph (g) of that
section was confusing because it referred to the existing procedures in
Sec.  232.307, which in turn only referred to Sec.  232.305(a). In this
final rule, FRA is revising Sec.  232.307, so that incorporated
industry standards for air brake maintenance and testing may be updated
utilizing the procedures of that section. When utilizing Sec.  232.307,
a petitioner will be required to specify the part, section, and
paragraph for which modification is requested. Presently, Sec. Sec.
232.305 and 232.603 refer to Sec.  232.307. This final rule adds
references to Sec. Sec.  232.717 (addressing tourist, scenic, historic,
and excursion operations braking systems) and 232.409 (addressing
inspection and testing of EOT devices). Consistent with these
revisions, FRA is also updating the title of Sec.  232.307 to eliminate
the specific reference to single car air brake test procedures and to
refer more generally to ``brake test procedures.''
Section 232.403 Design Standards for One-Way End-of-Train Devices
    Section 232.403 includes design standards for one-way EOT devices.
In the NPRM, FRA proposed to modify paragraphs (d)(6) and (f)(4), which
include shock requirements for rear and front units, referring to a 0.1
second window. In the NPRM, FRA indicated that the 0.1 second interval
in paragraphs (d)(6) and (f)(4) is too large for maintaining a peak
shock threshold and is likely a typographical or other error from a
previous rulemaking. Accordingly, FRA proposed to make the shock
requirements in these paragraphs the same as the 0.01 second peak shock
threshold in AAR Standards S-9152 and S-9401. The only comment received
supported correcting this typographical error, and therefore, FRA is
adopting the proposed revisions to paragraphs (d)(6) and (f)(4).
    Paragraph (g)(2) currently requires a minimum EOT device battery
life of 36 hours at 0 [deg]C. As noted in the NPRM, manufacturers have
developed EOT devices that rely less on batteries and more on an
internal, air-powered generator, which converts mechanical energy--
created by the brake pipe air pressure--into electricity used to power
the EOT device.
    In the NPRM, FRA proposed codifying two long-standing waivers
providing relief from this requirement for EOT devices using an air-
powered generator as a power source. See Docket Nos. FRA-2006-25794 and
FRA-2001-9270. In these waivers, FRA required each subject EOT device
to include a back-up battery with a minimum operating life of 12 hours
at 0 [deg]C and the railroads to submit reports on the devices' usage
and performance.
    As noted in the NPRM, to date, FRA has not received any reports of
accidents due to EOT device operations under these waivers.
Accordingly, FRA proposed a new paragraph (g)(3) to provide for use of
an air-powered generator as a primary power source as long as it
operates with a backup battery with a minimum of 12 hours of continuous
power at 0 [deg]C. This change will improve efficiency and is
consistent with railroad safety.
    The Railroads agree with FRA's proposal to require that each back-
up battery to an EOT device's air-powered generator be capable of
providing 12 hours of continuous power at 0 [deg]C. The Railroads also
suggest FRA adopt a flexible, performance-based provision addressing
EOTs generally and provide alternative language to accommodate future
developments, such as the use of

other power sources or EOT devices becoming obsolete.
    Labor supports requiring a back-up battery to each EOT device's
air-powered generator, but believes it should include more than 12
hours of energy and provide subsequent crews with power-level
notifications.
    Various manufacturers and railroads have already, under the
waivers, built and installed 12-hour back-up batteries. Labor has not
provided any data, examples, or other information showing why 12 hours
would be insufficient. To require a number higher than 12 hours would
create a potentially unnecessary yet substantial burden on
manufacturers and railroads to remove existing batteries and purchase
and install new batteries. While a longer back-up battery life may
provide a convenience to users, it would result in no new safety
benefits. Moreover, current manufactured units may not be able to
accept batteries with different specifications. Similarly, to require
power notifications such as a percentage or other spectrum of available
power would require modification of all affected EOT systems and
batteries. With approximately 27,000 EOT devices registered in Umler,
Labor has provided no data on the impact on the railroads and the
public of such a requirement.
    Although FRA is open to a performance-based approach to powering
EOT devices, no performance standard was proposed or otherwise offered
in this proceeding. FRA notes the Railroads' prediction that EOT
devices may be rendered obsolete, but the Railroads provided no
evidence, alternatives, or timelines showing such a possibility. While
a suitable performance standard is not currently feasible, FRA is
modifying the language of Sec. Sec.  232.17(a) and (b), and 232.407(c)
to provide special approval procedure consideration for the
introduction of new and novel alternative technologies that serve the
same or similar purposes as EOT devices in the interest of maintaining
regulatory flexibility for future innovation.
    For the reasons discussed above, in this final rule FRA is
modifying paragraph (g)(2) and adding new paragraph (g)(3) as proposed.
Section 232.407 Operations Requiring Use of Two-Way End-of-Train
Devices; Prohibition on Purchase of Nonconforming Devices
    Section 232.407 addresses operations requiring the use of two-way
EOT devices.
    Although not specifically proposed in the NPRM, FRA is modifying
paragraph (e)(1) to clarify that because an ARU (as defined in this
final rule) is equipped with telemetry as defined for EOT devices in
existing subpart E, an ARU may be used under the (e)(1) exception for
the requirement for the use of a two-way EOT device. At least one Class
I railroad operating in Canada uses an ARU in this manner and as long
as an ARU performs the same function as an EOT device or DPU, and is
operated and regulated in the same manner, such an allowance is
warranted. As discussed in more detail in the analysis of the new
definition of ``ARU'' in Sec.  232.5 above, similar to the use of a DP
locomotive currently contemplated under (e)(1), an ARU may communicate
with, and receive wireless commands from a controlling locomotive to
help regulate the brake system's air supply and pressure.
    In the NPRM, FRA proposed to modify paragraph (f)(2), which
addresses battery charging requirements for two-way EOT devices.
Specifically, FRA proposed adding language to the end of the paragraph