[Federal Register: October 16, 2008 (Volume 73, Number 201)]
[Rules and Regulations]
[Page 61511-61557]
[DOCID:fr16oc08-19]

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Part IV

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 232

Electronically Controlled Pneumatic Brake Systems; Final Rule

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[Docket No. FRA-2006-26175, Notice No. 4]
RIN 2130-AB84

Electronically Controlled Pneumatic Brake Systems

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

ACTION: Final rule.

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SUMMARY: FRA is issuing revisions to the regulations governing freight
power brakes and equipment by adding a new subpart addressing
electronically controlled pneumatic (ECP) brake systems. The revisions
are designed to provide for and encourage the safe implementation and
use of ECP brake system technologies. These revisions contains specific
requirements relating to design, interoperability, training,
inspection, testing, handling defective equipment, and periodic
maintenance related to ECP brake systems. The final rule also
identifies provisions of the existing regulations and statutes where
FRA is proposing to provide flexibility to facilitate the voluntary
adoption of this advanced brake system technology.

DATES: This final rule is effective December 15, 2008. Petitions for
reconsideration must be received on or before December 15, 2008.
Petitions received after that date will be considered to the extent
possible without incurring additional expenses or delays. The
incorporation by reference of certain publications listed in the rule
is approved by the Director of the Federal Register as of December 15,
2008.

ADDRESSES: Petitions for reconsideration: Any petitions for
reconsideration related to Docket No. FRA-2006-26175, may be submitted
by any of the following methods:
     Web site: The Federal eRulemaking Portal, http://
www.regulations.gov. Follow the Web site's online instructions for
submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC
20590.
     Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all petitions received will be posted without
change to http://www.regulations.gov including any personal
information. Please see the Privacy Act heading in the Supplementary
Information section of this document for Privacy Act information
related to any submitted petitions, comments, or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov or to Room W12-140
on the Ground level of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except
Federal holidays.

FOR FURTHER INFORMATION CONTACT: James Wilson, Office of Safety
Assurance and Compliance, Motive Power and Equipment Division, RRS-14,
Mail Stop 25, Federal Railroad Administration, 1200 New Jersey Avenue,
SE., Washington, DC 20590 (telephone<PHONE_NUMBER>); or Jason
Schlosberg, Trial Attorney, Office of Chief Counsel, Mail Stop 10,
Federal Railroad Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 (telephone<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

I. Background

    Since the inception of automatic air brakes by George Westinghouse
in the 1870s, brake signal propagation has been limited by the nature
of air and the speed of sound. Other adjustments have sought to
alleviate this deficiency, but have left the basic system unaltered. As
early as 1990, the Association of American Railroads (AAR) began
investigating more advanced braking concepts for freight railroads,
including ECP brake systems, which promise to radically improve brake
propagation by using electrical transmissions of the braking signal
through the train while still using air pressure in the brake cylinder
to apply the force of the brake shoe against the wheel. During the past
15 years, ECP brake technology has progressed rapidly and has been
field tested and used on trains operating in revenue service by various
railroads.
    FRA has been an active and consistent advocate of ECP brake system
implementation. In 1997, FRA participated in an AAR initiative to
develop ECP brake standards and in 1999, FRA funded, through
Transportation Technology Center, Inc., a Failure Modes, Effects, and
Criticality Analysis (FMECA) of ECP brake systems based on the AAR
standards. FRA also took part in programs to develop and enhance
advanced components for ECP brake systems.
    To further assess the benefits and costs of ECP brakes for the U.S.
rail freight industry, FRA contracted Booz Allen Hamilton (BAH) in 2005
to conduct a study. BAH engaged an expert panel consisting of principle
stakeholders in ECP brake technology conversion to participate in the
study. The expert panel made various conclusions relating to
technological standards, safety, and efficiency. In addition, the final
BAH report provided a comprehensive analysis and comparison of ECP and
conventional air brake systems. On August 17, 2006, FRA announced in a
press release its intention to issue a notice of proposed rulemaking to
revise the federal brake safety standards to encourage railroads to
invest in and deploy ECP brake technology. In the press release, FRA
encouraged railroads to submit ECP brake implementation plans before
the proposed rule changes were completed.
    In a petition dated November 15, 2006, and filed November 21, 2006,
two railroads--the BNSF Railway Company (BNSF) and the Norfolk Southern
Corporation (NS)--jointly requested that FRA waive various sections in
parts 229 and 232 as it relates to those railroads' operation of ECP
brake pilot trains. See Docket No. FRA-2006-26435. FRA held a public
fact-finding hearing on this matter on January 16, 2007, featuring
testimony from representatives of the petitioners, air brake
manufacturers, and labor unions and granted a conditional waiver on
March 21, 2007. See id.
    On September 4, 2007, FRA published a Notice of Proposed Rulemaking
(NPRM) containing proposed revisions to the power brake regulation. See
72 FR 50820. In the NPRM, FRA proposed revisions to the regulations
governing freight power brakes and equipment by adding a new subpart
addressing ECP brake systems. The proposed revisions were designed to
provide for and encourage the safe implementation and use of ECP brake
system technologies. The proposed revisions contained specific
requirements relating to design, interoperability, training,
inspection, testing, handling defective equipment, and periodic
maintenance related to ECP brake systems. The proposed rule also
identified provisions of the existing regulations and statutes where
FRA believed flexibility to facilitate the introduction of this
advanced brake system technology was necessary.
    Following publication of the NPRM in the Federal Register, FRA held
a public

hearing in Washington, DC on October 4, 2007, and a public hearing in
conjunction with a public technical roundtable in the Chicago, IL area
on October 19, 2007. The purpose of the hearings was to receive oral
comments regarding the specific provisions contained in the proposed
rule and to receive evidence and to develop findings to determine
whether FRA should invoke its discretionary authority under 49 U.S.C.
20306 to provide a limited exemption from Sec.  20303 for freight
trains and freight cars operating with ECP brake systems. Section 20303
requires operators to transport rail vehicles with defective or
insecure equipment ``from the place at which the defect or insecurity
was first discovered to the nearest available place at which the
repairs can be made'' to avoid incurring civil penalties related to
such movement.
    The hearings were attended by numerous railroads, organizations
representing railroads, labor organizations, and brake manufacturers.
Although the comment period officially closed November 5, 2007, FRA
continued to receive comments on the NPRM into January 2008. FRA
received substantial oral and written testimony at the hearings and
written comments to the NPRM from the following organizations,
railroads, and brake manufacturers, listed in alphabetical order:
     American Association for Justice (AAJ).
     Association of American Railroads (AAR).
     Brotherhood of Locomotive Engineers and Trainmen (BLET).
     Brotherhood Railway Carmen Division, Transportation-
Communications International Union (BRC).
     General Electric Transportation and General Rail Services
(collectively, GE).
     New York Airbrake (NYAB).
     Norfolk Southern Corporation (NS).
     Transport Workers Union of America, AFL-CIO (TWU).
     Union Pacific Railroad Company (UP).
     United Transportation Union (UTU).
     Wabtec Railway Electronics (Wabtec).
    UTU supports and incorporates by reference the comments submitted
by BLET, TCU, TWU, and its other labor representatives.
    FRA carefully considered all the information, data and proposals
submitted in relation to Docket No. FRA-2006-26175 when developing this
final rule. In addition to the preceding information, FRA's knowledge
and experience with enforcing the existing power brake regulations were
also relied upon when developing this final rule. FRA will address and
summarize all comments in the section-by-section analysis below and
elsewhere as appropriate or necessary.
    Based on the oral and written comments submitted at the hearing and
in the docket to this proceeding, FRA makes the following findings: (1)
Safety is not compromised by allowing a train operating with ECP brakes
and having a minimal number of ineffective or inoperative defective
brakes to travel to its destination, not to exceed 3,500 miles, without
any additional intermediate brake inspections; (2) the safety hazards
caused by placing cars equipped with ECP brakes into a train with an
incompatible brake system are no different than the hazards caused by
placing a car equipped with conventional brakes with ineffective or
inoperative brakes into a train operated with conventional brakes; (3)
safety is not compromised by allowing a train operated with ECP brakes
with at least 85 percent effective and operative brakes to haul a car
with defective non-brake safety appliances to the nearest or nearest
forward repair location; and (4) requiring strict compliance with the
movement for repair provision contained in 49 U.S.C. 20303 would
constitute a significant disincentive to the implementation and use of
ECP brake technologies. Based on these findings, FRA has elected to
utilize its discretionary authority provided under 49 U.S.C. 20306 to
provide a limited exemption for freight trains and freight cars
operating with ECP brake systems from the requirements contained in 49
U.S.C. 20303.
    Subsequent to the close of the comment period in this proceeding,
AAR modified two of its existing ECP brake standards, S-4200 and S-
4210, and continued to develop standards regarding hardware and
software configuration management issues for ECP brake systems. AAR
sought comments from its members concerning a proposed standard S-4270
addressing the configuration management issues. As FRA is interested in
incorporating by reference the most current standards into the final
rule, FRA reopened the comment period on April 18, 2008, for an
additional fifteen (15) days for the limited purpose of receiving
comments on revised standards S-4200 and S-4210 and newly developed
draft S-4270. FRA continues to believe that reopening the comment
period was the most efficient method of ensuring that the most current
industry standards were included in this final rule.
    The NPRM and this subsequent notice indicated that FRA intended to
include S-4270 in the final rule if it was finalized by AAR with
sufficient time for inclusion and if its final version remained
substantially similar to the draft standard reference in the notice
reopening the comment periods. Ultimately, AAR adopted S-4270 without
any changes.

II. Conventional Brake Operations

    While the basic operational concept of the automatic air brake
system, originally conceived by George Westinghouse in the 1870s,
remains the same, it has seen continuous improvement in practice. An
air compressor in the locomotive charges a main reservoir to about 140
pounds per square inch (psi). With controls located in the locomotive,
the locomotive engineer uses the main reservoir to charge the brake
pipe--a 1\1/4\ inch diameter pipe--that runs the length of the train
and is connected between cars with hoses. The brake pipe's compressed
air--used as the communication medium to signal brake operations and
the power source for braking action--then charges each car's two-
compartment reservoir to a pressure of 90 psi. Braking occurs through a
reduction of air pressure in the brake pipe, which signals the valves
on each car to direct compressed air from the reservoir on each car to
its respective brake cylinder for an application of brakes. When air
pressure is supplied to the brake cylinder--which is connected to a
series of rods and levers that apply and release the brakes--the
resulting force presses the brake shoes against the wheel, retarding
the car's speed.
    While brake applications were initially directed by George
Westinghouse's triple valve, modern applications use a control valve,
which directs air from the brake pipe into the air reservoir when air
pressure is rising in the brake pipe in order to charge the auxiliary
and emergency reservoir and be ready for a brake application. To
perform a brake application, the locomotive automatic brake valve
reduces air pressure in the brake pipe by exhausting air, causing the
car's control valve to direct air from the auxiliary reservoir into the
brake cylinder. The increase in air pressure to the brake cylinder is
approximately 2\1/2\ times the drop in brake pipe pressure. A 26 psi
reduction in brake pipe pressure is equal to a full service brake
application on a fully charged brake pipe, and should result in a brake
cylinder pressure adequate to achieve a full service braking effort
(brake force). While the control valve is directing air

into the brake cylinder, or holding air in the brake cylinder, it is
unable to recharge the auxiliary reservoir on each car. The engineer
can apply the brakes in increments, of a few psi at a time, go directly
to a full service application, or initiate an emergency application of
the brakes.
    Unlike a brake application, the incremental release of brakes on a
typical freight train operating in direct release cannot be
accomplished. Brakes can only be fully released, called a direct
release, and only with the brakes released can the auxiliary reservoirs
then begin to recharge. Brake applications are possible, but are more
complicated, from undercharged brake pipe and air reservoirs.
Recharging takes more time for a longer train, because the air has to
be sent down the length of the train's brake pipe--which can be up to a
mile and a half. In addition, on extremely long trains, it is often
difficult to fully charge the brake pipe due to small air leaks
throughout the brake pipe and cold weather.
    Brake pipe pressure can be measured by an end-of-train (EOT)
device, which is pneumatically connected to the rear of a train
equipped with conventional pneumatic brakes and sends signals (EOT
Beacon) via radio indicating the brake pipe pressure to the lead
locomotive. Current Federal regulations specify the design and
performance standards for both one-way and two-way EOT devices. See
Part 232, subpart E. Both EOT device designs comprise of a rear unit
pneumatically connected to the rear of the train's last car that
transmits an EOT Beacon to a an EOT Head End Unit--a device located in
the cab of the lead locomotive displaying the brake pipe pressure of
the rear car to the locomotive engineer. The two-way EOT device also
has the capability to transmit an electronic signal from the locomotive
to the rear end unit to initiate an emergency brake application by
venting brake pipe pressure to atmosphere at the rear end unit.
    An emergency brake application can be initiated in several ways.
The locomotive engineer can initiate the application by moving the
brake handle to the emergency position, which depletes brake pipe
pressure to zero at a faster rate than the service application by
exhausting brake pipe air pressure at the locomotive. Emergency brake
applications can also be initiated by opening the conductor's valve,
located in the cab of the locomotive, or by a break-in-two, where the
train separates between cars and the brake pipe hoses separate, thereby
venting brake pipe pressure to zero. While performing an emergency
brake application from the locomotive, a locomotive engineer can also
use the two-way EOT device to initiate an emergency brake application
at the rear of the train. This permits the emergency application to be
simultaneously initiated from both the front and rear of the trains and
ensures that the brakes on the cars at the rear of the train apply in
the event a brake pipe blockage occurs.

III. ECP Brake Operations

    As early as 1990, AAR began investigating a more advanced braking
concept for freight railroads, the ECP brake system. The ECP brake
system radically improves the operation of the automatic air brake by
using electrical transmissions to signal the application and release of
brakes on each car in a train while still using compressed air to
supply the air reservoirs on each car, which will be used to pressurize
the brake cylinders to apply the force of the brake shoes against the
wheels. ECP brakes also greatly simplify the brake system by
eliminating multiple pneumatic valves used by conventional brakes and
replacing them with printed circuit boards, each with a microprocessor,
one electrically activated application valve, and one electrically
activated release valve, with feedback on brake cylinder pressure for
uniform control.
    ECP brake technology requires equipping locomotives and cars with
special valves and electronic equipment that are unique to the
operation of ECP brakes. While this system still requires a brake pipe
to supply compressed air from the locomotive to each car's reservoir in
a train, there are currently two known methods to send the electronic
signal for ECP brake operations from the locomotive to each car in the
train. These methods include using a hard wire electrical cable running
the length of the train or a radio-based technology requiring a
transmitter and a receiver installed on the cars and locomotives. At
this time, it appears that the railroad industry has chosen to use a
cable-based system for ECP brake operation.
    ECP brake systems still employ the automatic air brake system's
basic concept where the locomotive supplies compressed air to each
car's reservoir via the conventional brake pipe. Each car's brake valve
reacts to a signal to apply the brakes by directing compressed air from
the car's reservoir to the brake cylinder or to release the brakes by
releasing air from the brake cylinder. The similarities between the
conventional pneumatic and ECP brake systems end here. Instead of
utilizing reductions and increases of the brake pipe pressure to convey
application and release signals to each car in the train, ECP brake
technology uses electronic signals, resulting in an almost
instantaneous application and release of brakes on each car in the
entire train. Since the brake pipe pressure no longer serves as the
communication medium in ECP braked trains, the brake pipe is constantly
being supplied or charged with compressed air from the locomotive
regardless of whether the brakes are applied or released. In addition,
ECP brake-equipped trains offer graduated release, where a partial
brake release command provides a partial, proportional brake release.
    The basic ECP brake system is controlled from the Head End Unit
(HEU) and each car is equipped with a Car Control Device (CCD), an
electronic control device that replaces the function of the
conventional pneumatic control valve. The CCD acknowledges and
interprets the electronic signals from the HEU and controls the car's
service and emergency braking functions. The CCD controls charging the
car's air reservoir and also has diagnostic capabilities to send a
warning signal to the locomotive in the event any component fails to
appropriately respond to a braking command. Each CCD has a unique
electronic address located in the Car ID Module, which is keyed to a
car's reporting mark and number.
    Each car connects to the locomotive via special connectors and
junction boxes. More specifically, an ECP brake-equipped train's train
line cable--a two-conductor electric cable (8 A-WG and a
shield)--connects the locomotive and cars and carries train line power
to operate all CCDs and the ECP brake system's end-of-train (ECP-EOT)
device and communicates network signals via the power voltage. A Power
Supply Controller (PSC)--mounted within the locomotive and providing
230 VDC of electricity--interfaces with the train line cable's
communication network, provides power to all connected CCDs and ECP-EOT
devices, and controls the train line power supply as commanded by the
HEU. Under the AAR standards, a single power supply shall be capable of
supplying power to an ECP brake-equipped train consisting of at least
160 CCDs and an ECP-EOT device.
    Under the existing regulations, the conventional pneumatic brake
system's EOT device can lose communication for 16 minutes and 30
seconds before the locomotive engineer is alerted. See 49 CFR
232.407(g). After the message is displayed, the engineer must restrict
the speed of the train to 30 mph or stop the train if a defined heavy
grade is involved. Per the regulations, railroads

must calibrate each conventional two-way EOT device every 365 days and
incur additional maintenance and cost expenses while replacing its
batteries.
    By contrast, an ECP-EOT device uniquely monitors both brake pipe
pressure and operating voltages and sends an EOT Beacon every second
from its rear unit to its HEU on the controlling locomotive. The HEU
will initiate a full service brake application should brake pipe
pressure fall below 50 psi or initiate an emergency brake application
should a communication loss occur for five consecutive seconds or if
there is a break in the train line electrical cable. An ECP-EOT device
does not require calibration and its battery, only a back-up for the
computer, is charged by the train line cable and is much lighter in
weight than the conventional EOT device battery. Physically the last
network node in the train, the ECP-EOT device also contains an
electronic train line cable circuit--a 50 ohm resistor in series with
0.47 micro-farad capacitor--and must be connected to the network and
transmit status messages to the HEU before the train line cable can be
initially powered.
    ECP brake systems have the great advantage of real-time monitoring
of the brake system's health. In normal operation, the HEU transmits a
message/status down the train line cable to each car. If an individual
car's brakes do not respond properly to the HEU's brake command, or if
air pressures are not within the specified limits for operation, a
message indicating the problem and the applicable car number is sent
back to the HEU, which in turn notifies the locomotive engineer of the
problem. The ECP brake system can identify various faults, including,
but not limited to: low brake pipe pressure; low reservoir pressure;
low train line cable voltage; low battery charge; incorrect brake
cylinder pressure; and offline or inoperative CCDs.
    Emergency or full service brake applications automatically occur
when the ECP brake system's software detects certain faults. For
instance, if the HEU detects that the percentage of operative brakes
falls below 85 percent, a full service brake application will
automatically occur. In addition, the brakes will automatically apply
when the following occurs: (1) Two CCD's or the ECP-EOT report a
``Critical Loss'' within 5 seconds; (2) the train line cable indicates
low voltage with less than 90 percent operative brakes; (3) the ECP-EOT
reports a low battery charge; (4) the train moves during set-up; (5)
the train line cable becomes disconnected; or (6) the train exceeds 20
mph in Switch Mode. Under the AAR standards, the ECP brake system shall
also have a pneumatic back-up system on each car for an emergency brake
application in the event of a vented brake pipe or a train separation.
These features preserve and exceed the fail safe features of
conventional pneumatic brake systems.

IV. Interoperability

    Due to control methodology differences, ECP brake systems are not
functionally compatible with conventional pneumatic air brake systems.
For instance, while conventional pneumatic air brake systems command a
brake application by reducing the air pressure in the brake pipe, ECP
brake systems command a brake application through a digital
communications link transmitted on the electrical train line cable.
    Manufacturers have developed application strategies to address
issues relating to car and locomotive fleet interchangeability. In
particular, they have proposed three major schemes of ECP brake design:
stand-alone systems using only ECP brakes; overlay (dual mode) systems
capable of operating in either conventional or ECP brake mode; and
emulation systems, also capable of operating in either conventional or
ECP brake mode.
    Since cars with stand-alone ECP brake systems do not include a
fully pneumatic brake control valve, they are incompatible with
conventionally braked cars and must be operated in train sets depending
solely upon ECP brakes. Cars using stand-alone ECP brake systems cannot
intermix in the same train with cars using conventional pneumatic
brakes unless (1) the train uses ECP brakes and those cars using
conventional pneumatic brakes are transported as cars with inoperative
brakes or (2) the train uses conventional pneumatic brakes and the cars
using ECP brakes are transported as cars with inoperative brakes. While
the stand-alone ECP brake system is the least expensive alternative of
the three design types, its incompatibility with conventional pneumatic
brake systems requires train segregation, potentially posing
significant operational problems until the entire car fleet is
converted to ECP brakes.
    Overlay configurations--cars equipped with both ECP CCDs and
conventional pneumatic control valve portions--allow cars to operate
with either ECP or conventional pneumatic brakes. To operate in ECP
brake mode, compatible ECP equipment must be installed on the
locomotive as well as on the freight car. While an overlay system's
dual mode capability provides significant flexibility, railroad
operators must purchase, install, and maintain equipment to support
both types of brake systems for as long as dual mode capability is
required.
    Emulation configurations use a CCD capable of operating in either
ECP or conventional mode without requiring conventional pneumatic
controls. One manufacturer has provided an emulation ECP brake valve
that monitors both the digital communications cable and the brake pipe
for a brake command. If an electrical signal is present, the ECP brake
valve operates in ECP brake mode. If the electrical brake command
signal is not present, then the valve will monitor the changes in the
brake pipe pressure like a conventional pneumatic control valve and the
CCD will use a software program to emulate the function and response of
a conventional pneumatic valve. An emulation ECP brake system can be
operated in any train with any mix of emulation ECP and conventional
brake systems. In a mixed train, the emulation ECP brake system will
monitor the brake pipe for pressure changes and set up brake cylinder
pressure like a conventional pneumatic valve.
    In the NPRM, FRA did not propose any rules uniquely regulating
trains or cars equipped with emulation ECP brake systems, but sought
comments on whether or how it should regulate such systems differently
than what was proposed. According to NYAB and Wabtec (collectively, the
brake manufacturers), the current AAR standards do not require a
pneumatic emulation mode, and this function should not be subject to
FRA regulation. In the event future releases of the S-4200
specifications add pneumatic emulation as a requirement, the brake
manufacturers suggest that the need for FRA regulation can be addressed
at that time. FRA concurs and the final rule does not include
regulations uniquely affecting emulation ECP brake systems.
    Manufacturers have also addressed ECP brake compatibility with
locomotives equipped with conventional pneumatic brakes, which must be
equipped with an HEU unit to operate the brakes on cars equipped with
ECP brakes. For instance, one manufacturer has developed a portable
unit that will allow a locomotive lacking an ECP brake HEU to operate a
train equipped with ECP brakes by converting the air pressure changes
in the brake pipe to digital command signals that are transmitted to
the freight cars through the electrical train line cable. The
locomotive engineer operates the brakes with the conventional automatic
brake valve in the control cab. The brakes,

however, will respond instantaneously and provide all of the benefits
of an ECP brake system. While FRA recognizes that the technology for
such a portable unit is in development and may provide a possible
solution to the technological transition, it is not addressed or
authorized by this final rule and the incorporated AAR standards.

V. Advantages of ECP Brakes Over Conventional Pneumatic Brakes

    ECP brake technology overcomes many of the physical limitations
inherent in conventional pneumatic brake technology. Field testing of
AAR compliant ECP brake systems over the past decade has not revealed
any indication of a catastrophic event that could be caused by an ECP
brake system malfunctioning. With a high level of confidence, the ECP
brake stake holders support the implementation of ECP brake systems on
the Nation's railroads. FRA concludes that the advantages of ECP brake
technology will significantly improve the safety and the performance of
train operations. Examples of such benefits include better train
handling through simultaneous brake applications, continuous brake pipe
charging, and graduated brake operation. Derailments are expected to
decline significantly. ECP brake benefits also include electronic train
management, improved performance, and real time diagnostics of the
train's brake system.

A. Simultaneous Brake Application

    The conventional pneumatic brake system uses compressed air as the
source for braking power and as the medium for communicating brake
application and release commands and communicates the brake commands by
changing brake pipe pressure through the use of the locomotive's
automatic brake valve. These commands begin at the front of the train
and propagate to the rear of the train at the speed of the air pressure
moving from car to car. This slow propagation of the brake command
contributes to uneven braking, excessive in-train and run-in forces,
train handling challenges, longer stopping distances, safety risks of
prematurely depleting air brake reservoirs, and a corresponding low
brake rate until all cars in the train receive and fully respond to the
brake command. FRA recognizes that the slow application and release of
brakes in a train, causes excessive in-train forces, which have the
potential to cause derailments when they occur in curves, cross-overs,
or when heavier cars are placed at the rear of the train or after empty
cars. When the brakes on the rear of the train release much more slowly
than the brakes on the front of the train, the potential for a
``string-line'' derailment--where the train stretches out until one or
more wheels are lifted off the inside rail of a curve--increases.
    The ECP brake system reduces these problems by enabling cars to
brake simultaneously at the command of an electronic signal. The
electronic signal's speed ensures an instantaneous, simultaneous, and
even activation of each car's brake valves, significantly reducing
braking distances--40 to 60 percent for the longest trains--and
minimizing the consequences of collisions or derailments by reducing
the collision speed and slowing the non-derailed portion of the train.

B. Continuous Brake Pipe Charging

    Propagating a brake command signal through the reduction or
increase of air pressure in the brake pipe represents a significant
limitation of conventional pneumatic brakes. The same brake pipe air
used to propagate brake commands also charges reservoirs on each
freight car. As a result, the brake pipe must be fully charged to
restore full braking capacity to depleted reservoirs. Partially
depleted air from the brake pipe, which occurs during the initial stage
of braking, prohibits repeat applications of brakes until the brake
pipe can be recharged. A brake pipe can only be recharged once the
brakes have been fully released. This characteristic of conventional
pneumatic brakes contributes to the risk of run-away trains caused by
prematurely depleted brake pipe pressure, particularly on steep grades.
    The ECP brake system reduces this risk by continuously charging the
brake pipe. Since ECP brakes do not use the brake pipe as a brake
command medium, the brake pipe is constantly being charged, allowing
the locomotive engineer to operate the brake system more aggressively.
With ECP brake systems, it is unnecessary to apply hand brakes on steep
grades to recharge the brake pipe after the train stops on the grade.

C. Graduated Brake Application and Release

    The conventional pneumatic brake system's inability to operate
freight trains in graduated release has long hampered train operations
and has increased fuel consumption. The conventional pneumatic brake
system can only operate in direct release, preventing locomotive
engineers from reducing the braking effort without completely releasing
and resetting the brakes. In other words, after a direct release brake
application with a conventional pneumatic brake system, braking effort
can be increased but not decreased without fully releasing the brakes.
In many cases, direct release leads to unnecessary train stops or
insufficient initial brake applications. ECP brake systems overcome
this deficiency by operating in graduated release, which enables the
operator to reduce braking effort to a lower level after making a brake
application without fully releasing the brakes. As a result, the
operator can accurately adjust the braking level as each situation
requires, eliminating the stops required to recharge and reset the
brakes after excessive brake applications and prior to negotiating
hills and valleys.

D. Train Management

    The use of a train line cable allows real-time self-diagnostic
functions to be incorporated in the brake system. The initial check of
brake system conditions on each car and continuous monitoring of each
car's braking functions provides immediate communication to the
locomotive engineer of certain brake failures. The continuous
monitoring of each car's braking functions and real-time diagnostics of
the train's brake system is a significant advantage to the locomotive
engineer for the operation of the train. These technical benefits also
justify elimination of some of the currently required physical
inspections of the train's brake system and support regulatory change
to operate cars with non-functioning brakes out of the initial
terminal. When the ECP brake system diagnostics detect a serious
problem, including when the brake pipe pressure falls below 50 psi, the
ECP brake system will automatically command a penalty brake
application. ECP brake systems also eliminate the conventional
pneumatic brake system's inability to apply all brakes in the train
when there is a blockage in the brake pipe, which is handled through
the use of a two-way EOT telemetry device not required by all trains.
This failure will not affect brake applications in ECP brake systems,
because each car is provided a braking command through a train line
cable, not solely through the reduction of brake pipe pressure, which
would not be propagated through the consist if the brake pipe is
blocked. Therefore, ECP brake systems incorporate features that make
them inherently safer than conventional pneumatic brakes. Using sensor-
based technology to maintain a continuous feedback loop on train
condition for the crew and any centralized monitoring, the electrical
communication cable network can also serve as a platform for the
gradual

addition of other train performance monitoring and management controls,
including distributed power locomotive control, hand brake on/off
detection system, automatic activation and release of hand brakes, hot
bearing detection, and truck oscillation and vibration. These and other
train management features will increase the reliability and overall
safety of train operations.

E. Improved Performance

    Ultimately, ECP brake technology also provides improved
performance, which will contribute to safer train operations and
significant cost savings over time. Since trains operated with ECP
brakes can operate in graduated release, instead of direct release,
fuel will not be wasted while pulling trains against a heavy brake
application. Further, because all of the cars' ECP brakes release
simultaneously, fuel will not be wasted on initial start-ups and power-
ups after a brake release.
    Operations utilizing ECP brake systems also promise increased
average train speeds and decreased trip times. ECP brake systems allow
the locomotive engineer to modulate the brake applications in
territories with descending grades, thus increasing overall trip
average speeds and reaching destinations sooner. While the slow release
of the rear cars' brakes on conventional pneumatic braked trains cause
drag, the brakes on ECP brake-equipped trains release simultaneously,
improving start-up and acceleration times. Further, due to their
shorter stopping distances, trains equipped solely with ECP brake
systems may potentially permit higher train speeds within existing
signal spacing, which will increase average system velocity, or permit
use of shorter ``blocks'' between signals, facilitating greater system
capacity.
    The instantaneous application and release of ECP brakes will result
in more uniform braking, thus improving wheel wear and increasing brake
shoe life. In a conventional pneumatically braked train, the brake pipe
gradient and slower response time causes the first third of the train's
cars to provide the majority of the braking action, thus applying
additional pressure and heat on those cars' wheels. Since ECP brake
systems provide instantaneous braking on all cars, such pressure will
be more uniformly distributed along the train, thus eliminating the
uneven braking force on the wheels of those leading cars. The ECP brake
system also self-monitors each car's brake cylinder pressure and
maintains the prescribed pressure, thus reducing the potential for
creating shelling and flat spots on wheels.
    Due to minimized wheel defects, and their accompanying vibrations,
freight cars and brake components will enjoy increased life. Further,
instantaneous braking will also prevent draft gear assemblies from
receiving the constant pressure caused by trains equipped with
conventional pneumatic brake systems and will reduce lading damage by
eliminating slack action and in-train forces caused by uneven braking.
ECP brake systems will also reduce the number of brake parts and rubber
diaphragms required by conventional pneumatic brake systems.

VI. Standards, Approval, and Testing

    During the past 18 years, FRA has monitored the progression of ECP
brake technology and has observed field testing on various revenue
trains, both freight and passenger. In 1997, FRA participated in an AAR
initiative to develop ECP brake standards and in 1999, FRA funded,
through the Transportation Technology Center, Inc., a FMECA of the ECP
brake system based on AAR's Standards and Recommended Practices, S-4200
Series. FRA also participated in programs to develop and enhance
advanced components for ECP brake systems. After all of these efforts,
FRA has determined that the AAR S-4200 Series of standards are
appropriate substantively and legally for incorporation by reference in
this rule and that the AAR Air Brake Systems Committee is an
appropriate vehicle to rely upon in the implementation of ECP brake
technology for this rule. FRA acknowledges that ECP brakes are an
attractive, viable, and enabling technology with the potential to
substantially improve the operational efficiency of trains and that by
complying with AAR Standard S-4200, ECP braked trains offer significant
safety and efficiency benefits in freight train handling, car
maintenance, fuel savings, network capacity, self-monitoring, and fail-
safe operation.
    AAR administers the existing industry ECP brake standards through
its Air Brake Systems Committee--consisting of representatives from the
major railroads, brake manufacturers, and FRA--which requires
demonstrated proof of compatibility, safety, and reliability of air
brake systems to receive AAR approval. FRA is satisfied that the
existing AAR S-4200 Series specifications, AAR approval procedures, and
continuing oversight by the AAR Air Brake Systems Committee will best
ensure the safety and reliability of ECP brake systems. An ECP brake
monitoring system complying with AAR Standard S-4200 Series increases
safety by communicating information on the location and quantity of
defective equipment and by providing for the safe movement of equipment
over longer distances and periods of time.

A. AAR Standards and Approval Process

    In order to assure the safety and the interoperability of ECP brake
system designs, AAR developed the S-4200 Series of standards. The first
five standards (S-4200, S-4210, S-4220, S-4230, and S-4250)--issued in
1999 and updated in 2002, 2004, 2006, and 2007--specify the functional,
operational, and interface requirements for cable-based ECP brake
systems. AAR issued two additional standards in January 2007,
specifying ECP brake equipment approval procedures (S-4240) and
interoperability testing requirements (S-4260). In April 2008, AAR
issued a standard for hardware and software configuration management
plans (S-4270). At this time, AAR has not completed specifications for
radio-based ECP brakes, which it considers technically immature and
unsuitable. The purposes of the standards are to ensure that AAR-
approved electronic brake systems are interoperable between different
manufacturers and meet high standards of safety and reliability. The
analysis of the S-4200 Series of standards indicates that the
performance specifications for the cable-based ECP brake concept are
complete.
    The AAR Manual of Standards and Recommended Practices (MSRP)
contain the following standards for cable-based ECP brake systems:
     S-4200, ECP Cable-Based Brake Systems--Performance
requirements;
     S-4210, ECP Cable-Based Brake System Cable, Connectors,
and Junctions Boxes--Performance Specifications;
     S-4220, ECP Cable-Based Brake DC Power Supply--Performance
Specification;
     S-4230, Intratrain Communication Specification for Cable-
Based Freight Train Control System;
     S-4240, ECP Brake Equipment--Approval Procedure;
     S-4250, Performance Requirements for ITC Controlled Cable-
Based Distributed Power Systems;
     S-4260, ECP Brake and Wire Distributed Power
Interoperability Test Procedures; and
     S-4270, ECP Brake System Configuration Management.
    Standard S-4200 ensures that the functionality and performance of
freight ECP brake systems are uniform and

consistent among equipment from different manufacturers, that cars
equipped with AAR-approved ECP brake systems from different
manufacturers are interoperable, and that AAR-approved electronic brake
systems meet a high standard of safety and reliability. This standard
defines ECP brake system elements, specifies their functionality in
different implementation schemes--such as stand-alone, overlays, and
emulators--and sets the requirements for all system functions. It
covers all primary functions of ECP brakes, including graduated brake
application and releases, continuous reservoir charging, adjustment of
braking level to car load, continuous fault detection, equipment status
monitoring, and pneumatic backup. It also specifies requirements for
all modes of train operation and provides an extensive description of
fault response and recovery functions for all possible faults of the
system components. The standard also establishes environmental
requirements for the designed systems, in-service testing, and rigorous
approval procedures for the certification process of new ECP brake
equipment.
    Other standards in the AAR S-4200 Series contain requirements for
critical ECP brake system components and communication protocols.
Standard S-4210 contains the performance specifications and
qualification test procedures for ECP brake system cables, connectors,
and end-of-car junction boxes. The required testing verifies that the
designed components have high reliability, will withstand harsh
environmental conditions, and will have at least an 8-year operating
life.
    Standard S-4220 contains performance specifications for the DC
power supply system through the hard-wired train line cable for ECP
brake controllers and other electronic freight car components. Since a
DC power supply conductor will also send communication control commands
between a locomotive and its attached cars, the standard requires
reliable separation and absence of interference between the DC power
supply and the communication circuits.
    Standard S-4230 contains the requirements related to intra-train
communication systems on freight equipment used in revenue interchange
service. The standard facilitates interoperability between freight cars
and locomotives without limiting the proprietary design approaches used
by individual suppliers. The communication protocol was developed for
control of ECP brakes and multiple remote units, including distributed
power locomotives, and for safety reporting of various car and
locomotive components.
    Standard S-4250 contains the methodology and communication flow
requirements for controlling the operation of multiple locomotives in a
freight consist through the intra-train communication network that is
shared with ECP brake system. The locomotive control through the intra-
train communication line is an alternative method of locomotive
control, which was not available before the introduction of ECP brake
system technology. The controlled locomotives can either trail a lead
locomotive or be distributed (i.e., separated by cars) in a train. The
standard establishes protocols for different types of locomotive
controls through the intra-train line cable, depending on the location
of the consist's multiple locomotives. While the current means of
controlling ``distributed power'' is performed through radio control--
which is susceptible to a loss of communication and is not ``fail
safe'' in operation--locomotives operated with ECP brake systems can be
relied upon to function as commanded in real time and automatically
apply the brakes in the event of a communication loss.
    Standard S-4260 contains the test procedures that must be completed
by ECP brake manufacturers to establish interoperability baselines
among ECP brake and wire distributed power (WDP) systems in compliance
with the S-4200 standards series. The test procedures validate the
functional interoperability of ECP brake and WDP systems developed by
different manufacturers.
    Standard S-4270 defines the procedures for managing the software
and hardware configuration for AAR-approved ECP brake systems.
    The AAR approval process and the work of the Air Brake Systems
Committee has been the primary method of ensuring the safety and
reliability of railroad brake systems and components for decades.
Through its participation on the Air Brake Systems Committee, FRA can
monitor any safety or reliability issues that may develop with ECP
brake systems. In the event of a serious safety issue with a supplier's
ECP brake system, FRA can appropriately respond by invoking its
authority to intervene with additional rulemaking or an emergency
order. FRA does not expect to use this authority, because the AAR Air
Brake Systems Committee already has the authority to rescind AAR
approval for brake systems that do not perform safely or reliably.
    Standard S-4240 contains the acceptance procedure for seeking AAR
approval of ECP brake equipment. The standard requires a manufacturer
to apply for approval by submitting certain information under
Administrative Standard S-060. Following review and approval of the
initial application data and test plan by the AAR Air Brake Systems
Committee, a manufacturer maintains the burden of establishing
compliance with Standards S-4200, S-4210, S-4220, S-4230, S-4250, S-
4260, and S-4270 to obtain conditional approval.
    For laboratory testing, an AAR representative will select 150 CCDs
from a lot of 200 and will select HEUs, train power supplying units
(TPSs), and ECP-EOTs from lots of four each. The testing will be
performed on a 150-car test rack configured in accordance with AAR
specifications. The manufacturer will provide for AAR evaluation of the
test results, which shall include a requirements traceability and
compliance matrix for each AAR standard and all necessary test reports,
and then conduct interoperability laboratory testing between new ECP
brake equipment and AAR-approved ECP brake equipment in accordance with
standard S-4260.
    Upon satisfactory completion of the aforementioned laboratory
tests, AAR will consider conditional approval for field testing of ECP
brake equipment. If conditional approval is granted, 150 ECP brake CCDs
shall be selected from a production lot of 200 test-approved CCDs, and
100 of those selected, plus at least two ECP brake-equipped locomotives
and one ECP-EOT device, must be placed in railroad service for 24
months. Under conditional approval, at least 1,000 cars must be
allotted for use. Within those 24 months, all in-service tests must be
conducted. After those 24 months, the Air Brake Systems Committee
continues to monitor the product for reliability and safety concerns.
If a problem with any brake component is discovered, the Committee will
discuss the issue and may either demand further tests or withdraw AAR
approval.
    Full AAR approval shall be provided after 4 years if during that
time a manufacturer furnishes AAR at specified intervals various
service reports, which must include accurate ECP brake equipment
malfunction records. FRA agrees with AAR's assessment that 4 years are
needed to collect a history of reliable data with minimum failures. In
addition, the manufacturer must provide to AAR a semiannual report
containing any repair material for the test ECP brake equipment. Under
the standard, AAR reserves the right to withdraw

conditional test approval if it determines that safety is impaired,
reliability degrades, or incompatibility of ECP brake operation
develops, and may require any additional testing or performance
evaluations it deems necessary. Standard S-4240 also contains specific
procedures that must be followed when a manufacturer intends to change
certain ECP brake equipment physical characteristics, software, or
electronics.
    FRA supports this effort as a timely measure for AAR to strengthen
the regulatory package for ECP brake systems. Overall, FRA considers
AAR approval a valuable step to ensure the reliability and safety of
ECP brake systems and a minimum requirement for initial application of
ECP brake systems on the Nation's railroads. However, FRA fully intends
to monitor the application and safety of ECP and may, at its
discretion, require additional safety analysis to be performed to
confirm the safety of ECP brake systems installed and operating in
revenue service. FRA reserves the right to witness the AAR approval
testing of the product.

B. FMECA

    AAR Standard S-4200 Series was developed to support the design of a
safer, more reliable ECP braking system when compared with conventional
air brakes. Once the standard was created, the railroad industry
identified the need to perform a safety and reliability assessment of
an ECP brake system built in accordance with this standard. Since
actual S-4200 Series compliant ECP brake systems did not yet exist, the
industry decided to conduct a FMECA for a hypothetical ECP brake system
that satisfied all the requirements of the standard. At FRA's
insistence, the FMECA on AAR Standard S-4200 was performed in 1999 by
DEL Engineering with participation of AAR, FRA and a number of experts
with significant experience in the development and application of ECP
brake systems.
    The FMECA team began the analysis by identifying all major ECP
brake system components and their intended functions. The analysis
examined each component and function and identified associated failure
modes and effects. The failure modes were analyzed to determine
severity, frequency of occurrence, and effectiveness of detection. The
FMECA team created a numeric ranking criterion and determined and
prioritized the level of risk posed by each failure mode. High-risk
failure modes were identified and appropriate mitigation strategies
were developed to decrease the risk.
    The FMECA team analyzed the failure modes of all ECP brake
components, including: CCDs with the battery; HEUs on the head
locomotive; ECP-EOT devices; train line cables, communication and power
supplies; power supply controllers; head end line terminators; car ID
modules; locomotive ID modules; and operative brakes. The analysis
included different types of ECP brake systems, including stand alone,
overlay (dual mode), and emulator and all system functional
requirements and operating modes, including Initialization, Switch,
Run, and Cut-out. The FMECA failure log contained about 1,500 failure
modes. For each high-risk failure mode, the FMECA team identified
action items and offered recommendations on how to mitigate the
consequences of component failures or system functional failures. The
team primarily examined single-point failures but also identified and
evaluated some cases of combined failures that had significant safety
consequences.
    The FMECA results confirmed that the ECP brake concept offers the
potential for improved performance, reliability, and safety over that
of conventional pneumatic brake systems. The FMECA concluded that no
failure mode of an AAR-compliant ECP brake system exists that can cause
a catastrophic accident due to single-point failure of the system
itself. The AAR standards, as written, eliminate or mitigate critical
outcomes of single-point failure of ECP brake systems.
    The FMECA team encouraged manufacturers to pursue ECP brake
technology, because the potential safety and efficiency benefits will
far outweigh any disadvantages. If designed and maintained properly,
ECP brakes will be substantially safer and more reliable than the
conventional pneumatic brake system they are intended to replace. AAR
and the brake manufacturers indicated that they were completely
satisfied that ECP brake systems are significantly safer than
conventional pneumatic systems. They accepted the results of the FMECA
and concluded that no modifications were necessary to the AAR standards
related to ECP brake systems.

VII. Market Maturity and Implementation

    The U.S. market for ECP brake systems is mature enough to begin
implementation of ECP brake technology. The equipment manufacturers
have made a significant investment in the technology and have completed
the preliminary design work and field testing of ECP brakes. For
instance, they have provided technical solutions for different ECP
brake implementation strategies, enabling non-ECP and ECP brake-
equipped cars to run in combined trains and, in some cases, allowing
ECP brake-equipped freight cars to run in ECP brake mode using
locomotives with conventional pneumatic brake systems. In addition,
they are ready to supply fully operational stand-alone ECP brake
systems, overlays, and emulators for the U.S. market, easing the
industry's migration process. A commitment by the railroad industry to
change over to ECP brakes is necessary to inspire additional
technological initiatives by the manufacturers.
    ECP brake systems from the main U.S. manufacturers--all in
different stages of AAR approval and testing in revenue service--have
been built with the intention of complying with the AAR S-4200 Series
of standards, proven safe through field testing, designed using fail-
safe principles, and accommodated the industry's need for different
implementation schemes. The AAR S-4200 Series standards are intended to
assure the necessary level of safety, reliability, interoperability,
and ultimately the applicability of this equipment in the U.S. market.
The equipment of existing ECP brake manufacturers incorporates the
conventional pneumatic emergency brake system as a backup in case of
failure of the ECP brake control. In most cases, ECP brake systems will
support enhanced safety even if the electronics fail, because
continuous recharging of the brake pipe will ensure availability of an
emergency application. Therefore, the ECP brake system reduces the risk
caused by depleted air in the case of an emergency. There is no
instance or record of a malfunctioning ECP brake system that resulted
in a catastrophic or critical event.
    To assess the benefits and costs of ECP brakes for the U.S. rail
freight industry, FRA contracted with BAH in 2005 to conduct a study.
An ECP brake expert panel of principal stakeholders in the conversion
of the U.S. freight car fleet to ECP brake technology, including
suppliers, railroads, private car owners, AAR, and FRA was assembled to
participate in the study. The expert panel supported the conclusion
that the AAR standards are sufficient for the ECP brake system designer
to achieve a system safety level adequate for a safety-critical system.
In particular, an AAR-compliant system, while providing a significant
increase in safety and efficiency, does not introduce extra risks
associated with single-point failure of the ECP system itself.

    The final BAH report provided a comprehensive analysis and
comparison of ECP and conventional air brake systems. BAH acknowledged
that while trains with ECP brake systems have been operated in North
America, South Africa, and Australia, U.S. implementation has been
stalled due to the absence of an acceptable implementation plan for
conversion and hard data to support a sound economic analysis, limited
interoperability with traditionally braked trains, and insufficient
capital investment required for conversion. It concluded that although
the barriers to implementation are formidable, ECP brake systems are
economically and technically ripe for adoption and should be
implemented in phases. BAH suggests that implementing ECP brakes on
2,800 locomotives and 80,000 cars in the Powder River Basin (PRB) would
cost the industry approximately $432 million. However, according to
BAH, the annual $157 million in anticipated benefits--resulting from
saved fuel, improved wheel and brake shoe life, and a reduction in
necessary brake inspections--will allow railroads to recover those
costs in less than three years. To justify the investment, the BAH
report says, conversion must be focused first on the high-mileage,
unit-train-type services that would most benefit from its use.
    FRA acknowledges that BAH's fuel cost estimates are underestimated
due to subsequently rising prices. It is notable that BAH did not
attempt to quantify potential savings relating to capacity increases or
emissions decreases due to the difficulty in arriving at acceptable
values. Accordingly, the report's estimated internal rate of return
should be viewed as conservative.

VIII. Related Proceeding

    In a petition dated November 15, 2006, and filed November 21, 2006,
BNSF and NS jointly requested that FRA waive various sections in parts
229 and 232 as it relates to those railroads' operation of ECP brake
pilot trains. See Docket No. FRA-2006-26435. The FRA Safety Board held
a fact-finding hearing on this matter on January 16, 2007, featuring
testimony from representatives of the petitioners, air brake
manufacturers, and labor unions. On March 21, 2007, the Safety Board
granted the petitioners' request, in part, subject to various
conditions designed to ensure that ECP brake equipped trains subject to
the waiver will be as safe as trains equipped with conventional brakes
and operated under the existing rules. See id.

IX. Legal Impediments and Proposed Relief

    ECP brake operation provides for continuous electronic monitoring
of the condition of air brake system components and brake pipe
pressure, potentially limiting the need for certain physical brake
inspections currently required under part 232. Accordingly, this final
rule modifies, relaxes, and removes certain requirements, including
intermediate terminal inspections (Sec. Sec.  232.207, 232.209, and
232.211), single-car air brake tests (Sec.  232.305), and the required
percent of operable brakes at initial terminal departure (Sec.
232.103(d)), as they apply to trains operating in ECP brake mode. The
rail industry's implementation of ECP brakes is frustrated by such
inapplicable and inefficient statutory and regulatory requirements.
Without a large-scale proliferation and implementation of ECP brake
technologies, the industry will not be able to enjoy economies of scale
and to overcome the industry-wide limits caused by interoperability
problems. FRA seeks to improve market efficiency by providing reliable
and suitable standards and procedures that will support investments in
ECP brake technology.
    The current statutory and regulatory requirements, however--
including those concerning brake inspections and the operation of
trains with defective equipment--may reduce or eliminate incentives for
railroads to implement new ECP brake technology and take advantage of
its operational and safety benefits. For example, 49 U.S.C. 20303
presents an obstacle to cost-saving, safe, and efficient long hauls
promised by ECP brakes. To avoid incurring civil penalties, operators
are required under 49 U.S.C. 20303 to transport rail vehicles with
defective or insecure equipment ``from the place at which the defect or
insecurity was first discovered to the nearest available place at which
the repairs can be made.''
    The design and operation of ECP brakes renders strict application
of the existing statutory movement for repair provision unnecessary as
it will reduce efficiencies and may actually reduce the safety of such
operations. When the defective equipment is an ECP brake, stopping for
immediate repairs is not necessary. If more than 15 percent of the
train's AAR approved ECP brakes become inoperable, the train
automatically stops. It should be noted that a train with 85 percent
operative ECP brakes will still have shorter stopping distances than a
train equipped with conventional pneumatic brakes that are 100 percent
operative. Considering the technology's continuous self-monitoring and
constant communication with the engineer, it is highly unlikely that a
train equipped with ECP brakes will ever reach such a level of
inoperability. Further, FRA continues to believe that a freight train
operated with ECP brakes may travel non-stop to its destination, not to
exceed 3,500 miles, without intermediate brake inspections, because
foundation brake rigging and brake shoes will safely operate this
distance and redundant intermediate brake inspections within that
distance do not increase ECP brake system safety. As an added benefit,
the increased mileage allowance would provide for coast-to-coast
travel. In the related proceeding, Docket No. FRA-2006-26435, FRA's
Safety Board granted the request of BNSF and NS to allow the non-stop
movement of an ECP brake operated train to its destination, each not to
exceed 3,500 miles.
    Nevertheless, 49 U.S.C. 20303 requires trains with defective safety
appliances, including brakes, to travel to the nearest location where
the necessary repairs can be made. If the nearest available location is
in a direction other than that in which the train is traveling, the
train with defective equipment may be required to switch the defective
car out of the train and add it to another train traveling in the
direction of the nearest repair location, referred to as a
``backhaul.'' ECP brake implementation has been complicated by the ECP
brakes system's technological incompatibility with conventional
pneumatic brake systems. To switch a car equipped with ECP brakes into
a technologically incompatible train operating with conventional
pneumatic brakes will create additional safety concerns for that train.
    The potential risks involved in combining cars with incompatible
braking systems coupled with the hazards normally associated in
switching cars in the field, outweigh the potential harm of keeping the
defective car in its existing ECP braked train and traveling to a
repair location that is significantly further away. In circumstances
where the defective safety appliance is a non-brake defect, it will
often be safer and is certainly more efficient to allow ECP brake-
equipped trains with non-brake defective equipment to travel to the
nearest forward repair station. Moreover, due to the ability of ECP
brake systems to continuously monitor the brakes on each car in a train
and to provide specific information to the locomotive engineer
regarding the location of any car with inoperative brakes and the

design of such systems to prohibit operation with less than 85 percent
operative brakes in certain situations, the need to immediately set-out
and handle cars with defective brakes for repair is unnecessary. There
is also no safety need to require a railroad to incur the expense and
delay involved with cutting the defective car out of the train or to
run the safety risk of doing so. Currently, freight cars with defective
mechanical conditions are permitted to be hauled long distances for
repair. See 49 CFR 215.9. In light of the technological advances
provided by ECP brake systems, it appears logical and necessary to
permit more flexibility in moving equipment with defective brakes when
equipped with ECP brakes and hauled in a train operating in ECP brake
mode. However, the language of 49 U.S.C. 20303 prevents FRA from
providing this flexibility.
    When drafting the proposed rule in this proceeding, FRA recognized
that the aforementioned statutory requirements governing conventional
pneumatic braked trains may offset the increased safety and efficiency
benefits afforded by ECP brakes, thus eliminating the incentives for
rail operators to implement ECP brake technologies. To encourage
implementation without hindering safety, FRA proposed to invoke its
discretionary authority under 49 U.S.C. 20306 to exempt ECP brake-
equipped trains from the specific statutory requirements contained in
49 U.S.C. 20303. The requirements for moving defective equipment were
created over a century ago, during the infancy of pneumatic brakes and
before all cars were equipped with power brakes. With many more reasons
to stop train operation along tracks with frequent repair shops and
exponentially more employees, the legislative drafters of that time
could not have envisioned the type of safer and more efficient
technologies available today.
    Recognizing the importance of upgrading rail technologies, Congress
in 1980 passed the Rock Island Railroad Transition and Employee
Assistance Act (the ``Rock Island Act''), which, inter alia, provides
statutory relief for the implementation of new technologies. More
specifically, when certain statutory requirements preclude the
development or implementation of more efficient railroad transportation
equipment or other transportation innovations, the applicable section
of the Rock Island Act, currently codified at 49 U.S.C. 20306, provides
the Secretary of Transportation with the authority to grant an
exemption to those requirements based on evidence received and findings
developed at a hearing.
    According to Senate Report No. 96-614, ``This section fosters rail
technological improvements by giving the Federal Railroad
Administration discretionary authority to grant exemptions from the
Safety Appliance Acts' mandatory requirements when those requirements
preclude the development or implementation of new rail technology.''
Senate Comm. on Commerce, Science, and Transportation, S. Rep. No. 96-
614, at 8-9 (Mar. 4, 1980) (emphases added). The House version of the
bill includes no similar provision, but the Conference substitute adds
that the authority granted FRA in this section must be exercised after
a hearing, absent an agreement between labor representatives and the
developers or operators of the new equipment or technology. Joint
Explanatory Statement of the Committee of Conference, H. Conf. Rep. No.
96-1041, Sec.  117, at 30 (May 20, 1980).
    Under 49 CFR 1.49(v), the Federal Railroad Administrator is
delegated authority to carry out the functions vested in the Secretary
by the Rock Island Act. Under this authority, FRA held two public oral
hearings in Washington, DC on October 4, 2007, and near Chicago, IL, on
October 19, 2007, to receive evidence and develop findings to determine
whether FRA should invoke 49 U.S.C. 20306. While FRA solicited any
information that would bear on this decision, it also asked a series of
questions in the NPRM and at the hearing designed to invoke discussion
and gather information regarding the safety of moving defective
equipment as proposed and to determine whether existing statutory
provisions impede the implementation of the technology.
    At the hearing, the labor unions commented on the limitations of
the ECP brake system's self-monitoring capabilities. According to the
labor unions, since the technology cannot monitor a variety of brake
defects, it should not be relied upon to allow a train to operate 3,500
miles without any intermediate brake inspections. On the other hand,
the railroads support the increase in the allowable distance of 3,500
miles between brake inspections, believing the safety level of trains
operating with ECP brakes that distance should equal or exceed the
safety level of trains operating with conventional brakes over 1,000
miles. For the same reasons, some railroads even suggested that ECP
brake operated trains be allowed to move 5,000 miles between Class I
brake inspections.
    The labor unions and railroads agree that a conventional freight
car with the brakes cut out is no different than an ECP brake-equipped
car with the brakes cut out and that switching a defective ECP brake-
equipped car into a conventionally braked train will not increase
current safety concerns. However, the railroads and the labor unions
disagree when the defect is a non-brake safety appliance on a car
equipped with ECP brakes. According to the labor unions, if a non-brake
defect requires the car to be set out, there is no difference between a
train operated with conventional brakes and a train operated with ECP
brakes; the car should be set out for repair on site or moved under
special circumstances to the nearest repair point. The railroads
believe that such cars should be left in the train operated with ECP
brakes for forward movement to a location where ECP brake repairs can
be made instead of being switched out and hauled in a different
direction. Any switching, says the railroads, causes the switching and
pick-up crews more risk exposure.
    The labor unions assert that the regulations proposed in this
proceeding provide sufficient incentives for the implementation of ECP
brake systems and that the restrictions within 49 U.S.C. 20303 do not
provide a disincentive for such implementation. The railroads, on the
other hand, assert that strict application of 49 U.S.C. 20303 provides
a disincentive for the implementation and use of ECP brake
technologies. According to the railroads, they are required under
section 20303 to handle cars with defective equipment more times than
necessary, resulting in lost time and revenue. The resulting undue and
unreasonable financial burden and significantly negative financial
impact on rail operations, say the railroads, provides no relief from
the added expense of equipping rail cars with ECP brakes and is a
strong disincentive for ECP brake system implementation. The railroads
claim that eliminating the requirements under 49 U.S.C. 20303 would
provide a necessary and significant economic incentive to the
widespread adoption of ECP braking technology in the U.S.
    Based on the comments and information submitted at those hearings,
FRA has decided to invoke its discretionary authority under 49 U.S.C.
20306 to exempt application of 49 U.S.C. 20303 as it applies to the
operation of ECP brake operated freight trains and freight cars. FRA
believes that application of section 20303 will clearly provide a
disincentive towards the implementation of ECP brake systems, a

technology that promises safer operation of trains throughout the U.S.
    FRA is confident that this initiative is consistent with improving
railroad safety. As further discussed below, through oversight of
present train operations, including extended haul operations, FRA has
observed that properly inspected trains can proceed for extended
distances without loss of braking effort due to wear or damage to
foundation brake rigging. FRA further notes that hauling of cars with
defective safety appliances to the next forward point where repairs can
be accomplished poses virtually no incremental risk to employees,
particularly if defects have been identified and communicated to the
crew of the train. In the great majority of cases, damaged or insecure
safety appliances pose a risk only during switching operations, not
during line haul movements. Indeed, back hauling of safety appliances
introduces additional risk, as the car is first removed from one road
train and then added to another for the reverse movement.

X. Additional Issues

A. Part 229

    In the ECP brake waiver proceeding, Docket No. FRA-2006-26435, BNSF
and NS sought relief from various provisions of parts 229 and 232. In
relation to part 229, BNSF and NS sought relief from the requirements
relating to daily locomotive inspections and electronic record keeping.
FRA sought comments and information whether this final rule should
include any exceptions to part 229 for operations using ECP brake
systems.
    No commenting party supported or suggested any exceptions to part
229. On the contrary, UTU and BLET agreed with the FRA's proposal not
to modify part 229 in this rulemaking. According to BLET, there is no
basis for relief from the daily inspection or recordkeeping
requirements of Part 229. FRA continues to believe that there is
insufficient information available to consider any exceptions to part
229 for operations using ECP brake systems. Thus, under this
rulemaking, part 229 remains unaffected.
    In its comments, Wabtec lists a number of minimum requirements that
it proposes should be added to existing event recorder parameters,
applicable to the lead locomotive when in ECP brake operation. BLET
filed a supplemental response in which it responded to this particular
filing, stating that it ``cannot serve as a basis for FRA requirements
pertaining to event recording of ECP data because of [an] omission
[relating to the `ECP train brake source' parameter described in UP's
comments].'' The scope of this proceeding does not include information
relating to event recorder data. The NPRM did not discuss or seek
comments on this issue. Accordingly, FRA will not include in this final
rule any modifications to the regulations governing event recorders,
since many parties interested in event recorders would not have been
put on notice that the issue was being raised. FRA believes that these
issues would best be resolved in a separate proceeding concerning part
229.

B. Dynamic Brake Requirements

    At the public hearing conducted in relation to the waiver
proceeding, BNSF requested relief from some of the dynamic brake
requirements contained in 49 CFR part 232. On this issue, FRA only
received comments from BLET, which indicated that relief relating to
dynamic brake requirement is not necessary as it applies to ECP brake
systems. According to BLET, it would be unwise and unsafe to further
erode braking capacity by diluting the existing dynamic brake
requirements.
    FRA remains unsure of what specific relief BNSF requested regarding
dynamic brakes. Section 232.109 provides for the continued operation of
a locomotive found with inoperative dynamic brakes for a period of up
to 30 calendar days. It appears that railroads will continue to require
locomotive engineers to rely on extended range dynamic brakes where
they sufficiently control the braking effort without introducing
excessive buff forces. Locomotive engineers will need to know what
level of braking effort is available, particularly in extreme cases
operating over territory with significantly descending grades.
Otherwise, an engineer may lose control of the train due to brake fade
when the speed precludes a timely application of the automatic brake
due to insufficient dynamic brake capacity. FRA recognizes that this
scenario is much less likely to occur with availability of ECP braking,
but that does not mean it could not occur. FRA continues to believe
that more flexibility in this area is not necessary and declines to
make any such modifications in this final rule.

C. Single Car Air Brake Test Approval Procedures and Single Car Air
Brake Tests

    The NPRM included a provision requiring the submission and approval
of single car air brake test procedures for cars with ECP brake systems
in accordance with the special approval procedures in Sec.  232.17. FRA
also reserved the right to modify Sec.  232.17 to make clear the
applicability of proposed subpart G, including, but not limited to,
adding cross-references.
    Section 232.305(a) provides that a single car air brake test may be
performed partially in accordance with ``Section 4.0, `Special Tests,'
of the Association of American Railroads Standard S-486-01, `Code of
Air Brake System Tests for Freight Equipment,' contained in the AAR
Manual of Standards and Recommended Practices, Section E (January 1,
2001).'' That standard has since been amended and FRA has approved the
use of the new Standard S-486-04 as the procedure to use when
performing a single car air brake test. Accordingly, FRA proposed to
amend Sec.  232.305(a) by replacing the directly preceding quoted text
with the following: ``Section 4.0, `Special Tests,' of the Association
of American Railroads Standard S-486-04, `Code of Air Brake System
Tests for Freight Equipment,' contained in the AAR Manual of Standards
and Recommended Practices, Section E (January 1, 2004).''
    BLET submitted comments supporting FRA's proposed amendments to
sections 232.17 and 232.305(a). No other comments were filed on these
issues. Consequently, the final rule amends Sec. Sec.  232.17 and
232.305(a).

D. Train Handling Information

    Section 232.111 requires railroads to adopt and comply with written
procedures ensuring that railroad train crews receiving trains are
provided accurate information concerning each train's condition. The
continuous monitoring capabilities of ECP brake systems provide
information regarding the location of equipment with inoperative or cut
out brakes. BLET commented that none of the information provided by the
ECP brake system appears to satisfy the requirements of 232.111(b) and
that it agrees with FRA that there is no reason for excepting any
portion of or provision contained in Sec.  232.111.
    FRA continues to see no reason to excepting any portion of or
provision contained in Sec.  232.111. FRA continues to believe that, if
anything, ECP brake systems' continuous monitoring capabilities will
assist railroads in complying with the train handling information rules
in Sec.  232.111 by monitoring defects and potentially allowing for the
manual input of defects not monitored electronically and then

electronically providing such information to subsequent train crews.

E. Piston Travel Limits

    For cars equipped with 8\1/2\-inch or 10-inch diameter brake
cylinders receiving either a Class I brake test or a periodic
inspection while on a shop or repair track, Sec. Sec.  232.205(c)(5)
and 232.303(c) currently limit piston travel to 7 to 9 inches. An
industry-wide waiver currently in effect, however, permits piston
travel limits to range from 6 to 9 inches on these types of cylinders.
In the NPRM, FRA proposed the incorporation of that waiver into the
rules by amending Sec. Sec.  232.205(c)(5) and 232.303(c) accordingly.
    BLET, Wabtec, and NYAB concur with FRA's proposal to incorporate
the current, industry-wide waiver permitting piston travel limits to
range from 6 to 9 inches by amending sections 232.205(c)(5) and
232.303(c). Similarly, AAR states that there is no reason to refrain
from incorporating the industry-wide waiver in the regulations.
Consequently, this final rule amends sections 232.205(c)(5) and
232.303(c) by revising the piston travel range limit of 7 to 9 inches
to a range limit of 6 to 9 inches.

F. Extended Haul Trains

    Section 232.213(a)(6) requires inbound inspections for extended
haul trains and states that, ``After April 1, 2007, the inbound
inspection described in this paragraph shall not be required unless FRA
provides notification to the industry extending the requirement to
perform inbound inspections on extended haul trains.'' Section
232.213(a)(7) requires railroads to maintain a record of all defective,
inoperative, or ineffective brakes and all conditions not in compliance
with parts 215 and 231 discovered during train movement. In addition,
that section says that, ``After April 1, 2007, the records described in
this paragraph need not be maintained unless FRA provides the
notification required in paragraph (a)(6) of this section extending the
requirement to conduct inbound inspections on extended haul trains.''
    In the NPRM, FRA proposed to amend Part 232 by deleting Sec. Sec.
232.213(a)(6) and (a)(7) from the regulations. These regulations
``sunsetted'' on April 1, 2007, without further FRA action. Since this
proposal remains uncontested and the ``sunsetted'' provisions serve no
purpose by remaining in the CFR, the final rule deletes Sec.
232.213(a)(6) and (a)(7).

G. Part 238

    Amtrak informally expressed interest in potentially using ECP brake
system technology for its Auto Train that runs from Lorton, Virginia to
Sanford, Florida. Amtrak previously employed overlay ECP braking on
that train, and presumably would benefit from some additional
flexibility with respect to the conduct of intermediate inspections.
However, since FRA does not currently have sufficient information
regarding the use of ECP brake systems on passenger trains and
passenger equipment, FRA did not propose any amendment to 49 CFR part
238. FRA continues to believe that the functions of freight and
passenger trains and cars, evidenced by the varied rules applicable to
each, are too disparate to provide a one-size-fits-all solution for ECP
brake integration and use.
    In the NPRM, FRA stated that it may consider Part 238's
applicability to ECP brake systems in another rulemaking or in other
proceedings and would consider requests for waivers relating to the
regulation of freight trains and freight cars equipped with ECP brake
systems for passenger trains on a case-by-case basis. BLET agrees that
the issue of ECP brakes and Part 238 should be addressed in a separate
rulemaking. For this reason, BLET does not believe that it is
appropriate for FRA to regulate ECP brakes on passenger trains via the
waiver process or on a case-by-case basis.
    FRA continues to believe that any regulations affecting the
implementation and use of ECP brake systems on passenger trains are
better left for a separate rulemaking proceeding relating to Part 238.
FRA will also consider requests for waivers for such implementation and
use on passenger trains. Although BLET expresses its opinion that a
rulemaking would be a better venue for permitting the implementation
and use of ECP brake systems on passenger trains, it provides no
reasons why it would not be prudent to allow for the use of waivers to
achieve similar goals.

XI. Section-by-Section Analysis

49 CFR Part 232

    Unless otherwise noted, all section references below refer to
sections in title 49 of the Code of Federal Regulations (CFR). FRA
sought comments on all proposals made in the NPRM to this proceeding.
Subpart A--General
    This subpart contains amendments to the definitions listed in
subpart A of part 232.

Section 232.5 Definitions

    In the NPRM, FRA proposed the amendment of section 232.5 by adding
an extensive set of definitions to introduce the regulatory relief and
regulations applicable to ECP brake systems. FRA worded these
definitions to mirror, to the extent possible, the definitions provided
in existing AAR standards. FRA intends these definitions to clarify the
meaning of important terms that are used in the text of the proposed
rule. The definitions are carefully worded in an attempt to minimize
the potential for misinterpretation of the rule. Some of the
definitions introduce new concepts or new technologies.
    These new definitions acknowledge the two general types of ECP
brake systems--dual mode and stand-alone. The definition of a dual mode
ECP brake system, which means a brake system that can work either as a
conventional pneumatic brake system or an ECP brake system, intends to
cover both an overlay ECP brake system and an ECP brake system equipped
with an emulator CCD. The definition of CCD is intended to describe an
important and necessary part of ECP brake system technology.
    FRA did not receive any comments on the proposed definitions.
Consequently, except for reasons set forth below, the final rule
retains the definitions as proposed.
Subpart G--Electronically Controlled Pneumatic (ECP) Braking Systems
    FRA is adding a new subpart G to part 232. The new subpart contains
various design and operational requirements that provide both
regulatory relief and regulatory modification to allow implementation
of ECP brake systems on the Nation's railroads and to ensure the safety
of such operations.

Section 232.601 Scope

    This section contains a formal statement of the final rule's
purpose and scope. The final rule contains specific requirements
relating to the operation of freight trains and freight cars equipped
with ECP brake systems and operating in ECP brake mode. The final rule
also provides specific exceptions from various requirements contained
in part 232 for ECP brake-equipped freight trains and freight cars.

Section 232.602 Applicability

    As a general matter, this section makes clear that these rules
apply to all railroads that operate freight trains or freight cars
equipped with ECP brakes on track which is part of the general railroad
system of transportation. The final rule applies to freight trains

operating in ECP brake mode, freight cars equipped with ECP brake
systems, and conventionally braked freight trains and freight cars when
operated in conjunction with ECP brake equipment.
    The regulatory relief provided in the final rule and the need to
ensure the safe operation of trains and vehicles equipped with this
advanced technology requires that exception of certain existing part
232 provisions be afforded. Many of the provisions that the final rule
excepts either apply awkwardly or should otherwise not apply to ECP
brake systems due to the new technology's design or additional safety
benefits. Similarly, the addition of various requirements directly
related to ECP brake systems is necessary to ensure that the equipment
is properly designed, inspected, tested, maintained, and safe to
operate.
    To fulfill these goals and to avoid an excess of confusing cross-
references, this final rule excepts specific provisions and an entire
subpart of part 232 from application to ECP brake systems. Each section
of subpart G contains specific exceptions from various provisions
contained in other portions of part 232 or contain appropriately
rewritten provisions directly applicable to ECP brake systems. Those
portions and sections of part 232 not specifically excepted by this
final rule remain applicable to ECP brake-equipped freight trains and
freight cars.

Section 232.603 Design, Interoperability, and Configuration Management
Requirements

    In order to ensure the safety and interoperability of ECP brake
systems, this section incorporates by reference the existing AAR
standards and approval procedures for ECP brake systems. The AAR, its
member railroads, and various brake manufacturers have invested
considerable time and effort in developing the identified industry
standards addressing the design, performance, and interoperability of
ECP brake systems. FRA has reviewed the industry standards it intended
to incorporate by reference in this final rule and has determined that
the standards effectively address and ensure the safe and proper
operation of the brake system technology. As noted previously in this
preamble, FRA funded a FMECA, which validated the safety and
applicability of AAR's ECP brake system standards for freight
railroads.
    FRA believes that compliance with the AAR standards identified in
paragraph (a) will ensure the safety and efficiency of freight trains
and freight cars equipped with ECP brakes. Implementation of ECP
braking systems complying with these standards will bring benefits and
efficiencies encompassing train handling, car maintenance, fuel
savings, network capacity, self-monitoring, fail-safe operation,
accurate and instantaneous brake commands throughout the train, and
continuous, real-time self-diagnostics. Paragraph (a) requires all
manufacturers to meet existing AAR standards when developing and
installing ECP brake systems.
    Paragraph (a) incorporates the most recent AAR standards related to
ECP brake systems. FRA recognizes that ECP brake systems are a growing
technology and realizes that the existing AAR standards may need to
change as the technology advances. Accordingly, this final rule
includes two methods by which the incorporated industry standards may
be changed. Paragraph (a) permits the submission of an alternate
standard under the special approval procedures contained in Sec.
232.17. In addition, paragraph (f) permits the AAR or other authorized
representative of the railroad industry to seek modification of the
approved industry standards through the modification procedures
contained in Sec.  232.307. Only the party that initially submits a
standard approved by FRA pursuant to paragraph (a) may subsequently
seek modification of that standard under paragraph (f). For instance,
only AAR may seek modification of its own AAR S-4200 Series Standards
already incorporated by reference into this final rule. If another
authorized representative of the railroad industry submits an
alternative standard under paragraph (a) and pursuant to Sec.  232.17,
then only that representative may seek modification of their alternate
standard under paragraph (f).
    The modification procedures in Sec.  232.307 were developed to
permit modification of the other incorporated AAR standards and FRA
believes that the procedures are equally applicable to the regulations
contained in this final rule. The industry has successfully utilized
both these methods to change or modify industry standards incorporated
in part 232 and FRA believes it is appropriate and necessary to provide
this latitude for the standards related to ECP brake systems and
components.
    BLET filed comments supporting Sec.  232.603(a) and (f) to utilize
the alternate standards of Sec.  232.17 and the modification procedures
of Sec.  232.307, respectively. GE requests that an exception be
granted to certain stand-alone ECP brake systems in Sec.
232.603(a)(1)-(6). We will address GE's comments below when providing
analysis of Sec.  232.603(e).
    FRA recognizes that while most of the S-4200 Series apply technical
standards concerning the mechanical attributes and capabilities of ECP
brake systems, S-4240 and S-4270 delegate additional responsibilities
to those manufacturing, implementing, and using ECP brakes and have
been the subject of various comments filed in this proceeding. Thus,
FRA believes they require further discussion.
    FRA has reviewed the approval procedures contained in AAR Standard
S-4240 and believes that they provide an appropriate review process to
ensure the safe and proper operation of ECP brake systems. FRA believes
that AAR is in the best position to approve those ECP brake systems
that will be used by its member railroads and, over time, other non-
member railroads interchanging traffic on the general rail system. FRA
does not intend this section to necessarily preclude the introduction
and acceptance of alterative standards subsequently approved in
accordance with the rules.
    FRA recognizes, however, that enforcement of S-4240 against the
railroads would be difficult without additional regulatory language.
Accordingly, paragraph (b) requires that all ECP brake systems
developed under the AAR standards incorporated by reference in
paragraph (a) receive conditional or final approval under AAR Standard
S-4240 prior to use and that they maintain such approval while in use.
In this paragraph, FRA prohibits the use of ECP brake systems developed
under the AAR standards incorporated in paragraph (a) that do not
receive conditional or final AAR approval or that cease to comply with
the incorporated AAR standards relating to ECP brake systems.
    BLET filed comments stating that it does not oppose paragraph (b).
However, BLET believes that FRA's Railroad Safety Board should review
petitions for conditional approval via the waiver process. FRA does not
believe this level of scrutiny is necessary at this time. Under
232.103(l), all conventional brake systems must comply with AAR
Standard S-469-47. Compliance with this standard is determined by the
AAR brake committee, subject to FRA technical oversight. There are no
more specific FRA requirements for these systems. For similar reasons,
FRA is incorporating into the final rule the appropriate ECP brake
standards. FRA has successfully relied on AAR for approving

conventional brake standards and there is nothing suggesting why FRA
should perform a materially different approval process oversight role
for the ECP brake standards. For the purposes of this rulemaking, FRA
has closely reviewed and scrutinized the ECP brake design standards
adopted by AAR. FRA also funded and participated in a FMECA analysis of
the S-4200 series standards. We feel confident relying on AAR's
approval process. Just like FRA enforces Standard S-469-47 after a
system is introduced into service, FRA will equally enforce the S-4200
series standards on trains in service with ECP brake systems.
    In paragraph (a), FRA also requires that all ECP brake systems meet
the configuration management requirements contained in an industry
recognized, FRA approved standard such as AAR Standard S-4270. FRA
believes that configuration management of ECP brake system hardware and
software components is an absolute requirement to ensure the
interchangeability, interoperability, compatibility and continued
proper and safe operation of ECP brake systems. Compatibility of ECP
hardware and software will have a direct affect on the safety and
reliability of ECP brake systems running on the Nation's railroads.
    In the NPRM, FRA cautioned that the limited configuration
management plan requirements in Sections 5.1 and 5.2 of AAR Standard S-
4240 may not have been sufficiently robust to adequately control ECP
brake system components. The more recently developed AAR Standard S-
4270 eliminates this shortcoming by adequately addressing issues
relating to configuration management, including a sufficient set of
requirements that properly allocate the responsible party and necessary
procedures to be followed by this party to assure proper management of
ECP brake system software and hardware configurations.
    The AAR approval process and Air Brake Systems Committee requires
various procedures to ensure the interoperability and
interchangeability of AAR-approved ECP brake systems and their
components. These same requirements and procedures have been used for
many years to successfully manage the configuration of conventional
pneumatic AAR approved air brake valves. Therefore, FRA believes that
responsibility for the configuration management of AAR-approved brake
systems and their components should continue to reside with AAR and its
Air Brake Systems Committee.
    As discussed above, FRA has reviewed and approved AAR Standard S-
4270 and has determined that the standard should be incorporated by
reference into this final rule. In a notice issued on April 18, 2008,
FRA sought comments and concerns on AAR Standard S-4270, which at that
time was in draft form, and indicated that it would consider inclusion
of the final draft if it was timely adopted with no substantial
changes. 73 FR 21092, 94 (Apr. 18, 2008). AAR adopted and implemented
Standard S-4270 on April 30, 2008, without any changes from the draft
referenced in FRA's public notice dated April 18, 2008, and placed in
the docket to this proceeding on April 21, 2008.
    Since the NPRM was issued prior to the development of an acceptable
configuration management plan standard, paragraph (c) as proposed
included language delineating minimum requirements for acceptance of a
subsequently submitted configuration management plan standard. Since
paragraph (a) incorporates by reference AAR Standard S-4270 and
provides for the submission of alternative standards under Sec.
232.17, the extraneous text of proposed paragraph (c) has been removed
from the final rule. However, FRA continues to believe that alternative
configuration management plans must maintain the same minimum
standards. More specifically, to receive approval in accordance with
Sec.  232.17, a configuration management plan must be structured in
accordance with accepted configuration management standards and define
all of the purposes, procedures, organizational responsibilities, and
tools to be used for ECP brake system hardware and software
configuration management including: The purpose and scope of the
application; control activities to be performed; responsibilities and
authorities for accomplishing the activities; implementation schedules;
tools and resources for executing the plan; and periodic updating of
the plan to maintain currency.
    In the NPRM, FRA suggested that any submitted alternate
configuration management plan be structured in accordance with accepted
configuration management standards such as IEEE Std 28-1990, IEEE
Standard for Software Configuration Management Plans, American National
Standards Institute, 1990; or IEEE Std 1042-1987, IEEE Guide to
Software Configuration Management, American National Standards
Institute, 1987. The brake manufacturers, however, argue that these
IEEE standards are not considered appropriate or necessary for
achieving adequate configuration management control for ECP brake
systems. Despite their promise to recommend alternatives, nothing on
this issue was subsequently filed.
    The NPRM's references to the various aforementioned IEEE standards
were provided for use by the railroads in the event that AAR did not
develop its own configuration management standard. As previously
mentioned, AAR issued a configuration management standard, S-4270,
subsequent to the initial comment period in this proceeding. FRA
understands the brake manufacturers to mean that some items specified
in the IEEE standards may not be applicable because they are superseded
by the more restrictive standards and processes developed by the brake
manufacturers. While FRA concedes that this may be true, it does not
speak to the overall applicability of the IEEE standards to any
alternate configuration management plan that might be submitted by any
other party. FRA expects all configuration management plans to be
tailored to the requirements of accepted IEEE standards or a more
restrictive, proprietary, or industry-specific standard has been
developed and implemented. FRA believes AAR Standard S-4270 complies
with the latter expectation.
    FRA continues to believe that any ECP brake configuration
management plan should consider issues beyond initial approval. For
instance, use of improper or out-of-date software versions for
microprocessor controlled systems has been an issue in a variety of
industries. Therefore, FRA continues to caution that any alternate
configuration management plan should be sufficiently robust to
adequately control ECP brake system components, especially as more
manufacturers apply for AAR approval of ECP brake systems. Further,
safety or reliability issues may dictate that hardware or software
configurations be changed once ECP brake systems are put in service on
a large scale in the U.S. FRA continues to encourage AAR, railroads,
and manufacturers to ensure their ability to continually monitor and
respond to hardware and software issues affecting ECP brake systems
after initial approval.
    FRA continues to believe that AAR is capable of setting appropriate
configuration management standards and related approval procedures and
FRA intends to rely on AAR to monitor ECP brake component approval,
configuration and compatibility for systems designed and approved under
its standards incorporated herein. However, FRA, in its federal
oversight

role, will continue to monitor the activities of the Air Brake Systems
Committee and the AAR ECP brake approval process to ensure that any
safety or reliability issues that may emerge are addressed promptly and
comprehensively. FRA will also issue additional configuration
management requirements for the operation of ECP brake systems if, in
the sole opinion of the FRA, the oversight of the AAR and the AAR Air
Brake Systems Committee proves inadequate for the continued safe
operation of ECP brake systems. In this case, FRA may take a variety of
approaches including requiring railroads and car owners to develop
their own configuration management plans for monitoring ECP brake
system interchangeability, interoperability and compatibility.
    In relation to the issue of ECP brake system configuration
management plans, FRA received comments from BLET at the public hearing
and written comments in response to FRA's notice seeking comment on AAR
Standard S-4270. At the hearing, BLET stated that configuration
management plans must conform to the requirements of part 236, subpart
H. According to BLET, ``There is a strong likelihood that the majority
of the routes over which ECP will be deployed also will see the
implementation of positive train control (`PTC'). Given the manner in
which PTC will enforce speeds and authorities, the ECP head-end unit
and its associated appurtenances will become a core element of the PTC
system.'' In its written comments, BLET added, ``We continue to believe
that--to the extent ECP-equipped trains operate on routes where PTC has
been or will be installed--the ECP technology is a processor-based
train control system. Braking algorithms for speed and authority
enforcement for ECP-equipped trains will differ significantly from
those utilized for conventionally-braked trains.''
    FRA understands BLET's contention to be that, if an ECP brake
system ``is considered a core element of PTC system'' or ``is
considered a train control system,'' then it must comply with the
configuration management requirements contained in Part 236, Subpart H,
905(b)(4). While FRA acknowledges the importance of configuration
management, it does not agree that ECP brake systems must conform to
the requirements of part 236, subpart H. Although ECP brakes may have a
significant impact on the safety case prepared under subpart H of part
236 for train control systems, FRA does not consider the brake system,
standing alone, to constitute a train control system.
    The current implementation of ECP brake technology and processor
based train control technology are two independent industry
initiatives. FRA recognizes the potential for the future use of both
technologies onboard a single locomotive and FRA looks forward to such
integration. Of course, operations that contemplate using both PTC and
ECP brakes in a common operation must include the ECP brake system as
an integral part of the Product Safety Plan for the train control
system. While the ECP brake system itself is not subject to subpart H
of part 236, ECP brakes may not be utilized with processor based train
control systems until the impact on their use has been included in the
required analysis of the train control system under subpart H of part
236 and that analysis has been approved by FRA. Given the superior
characteristics of ECP brake systems, and assuming straightforward
integration with new train control systems, the use of ECP braking
should be helpful in the formulation of persuasive safety case
documents.
    FRA acknowledges BLET's concern that ``AAR's proposed S-4270
Standard is materially inferior to the other S-4200 standards,'' and
their strong recommendation to FRA to insist on ``(1) the use of
identified, scientifically-proven configuration management plans, and
(2) the delineation of `bright line' triggers governing the urgency
with which hardware and/or software changes must be made.'' FRA further
acknowledges BLET's concern regarding ``[delegation] to AAR's Air Brake
System Committee oversight of [ECP brake] product approval,
implementation, and operations.''
    In the NPRM, FRA recommended the use of acceptable IEEE software
configuration management standards such as IEEE-828 and IEEE-1042 for
the development of ECP brake system configuration management plans. 72
FR 50820, 50831 (Sept. 4, 2007). As BLET notes, neither of these
standards are referenced in the proposed AAR S-4270 standard, and the
proposed standard passes the responsibility to develop and maintain the
configuration management plan for the ECP brake product to the
manufacturers. FRA, however, does not believe that such actions are
inconsistent with either IEEE-828 or IEEE-1042, since both standards
provide for and encourage tailoring appropriate to individual products
and the system developers' operational needs. For example, IEEE-828
makes the following provisions:

    This standard permits significant flexibility in preparing an
SCM Plan. A successful Plan reflects its project environment. It
should be written in terms familiar to its users and should be
consistent with the development and procurement processes of the
project. To conform to the requirements set forth in other
applicable standards or to accommodate local practices, a Plan may
be tailored upward, to add information, or tailored to use a
specified format. The Plan may also be tailored downward, omitting
information required by this standard, when specific standard
requirements are identified as not applicable to this project. * * *
The information may be presented in the Plan in any sequence or
presentation style deemed suitable for the Plans users.

Similarly, IEEE-1042 states:

    The application (and thus the planning) of SCM is very sensitive
to the context of the project and the organization being served. If
SCM is applied as a corporate policy, it must not be done blindly,
but rather should be done in such a way that the details of a
particular SCM application are reexamined for each project (or phase
for very large projects). It must take into consideration the size,
complexity, and criticality of the software system being managed,
and the number of individuals, amount of personnel turnover, and
organizational form and structure that have to interface during the
life of the software system being managed.

The AAR S-4720 standard, particularly in Sec.  3.3.2, outlines the main
requirements to the ECP brake system configuration management plan that
are common to the requirements of the IEEE and other standards
referenced in the NPRM. Section 3.3.2 additionally requires that ``the
manufacturer shall maintain a readily retrievable record of all
software and hardware changes and make that record available to the AAR
and FRA at any time.'' In any event, the NPRM merely stated that FRA
expected any configuration management plan to conform to an accepted
standard; the IEEE standards referenced were simply provided as
acceptable examples.
    FRA would also like to address BLET's concern regarding the
``delineation of `triggers' governing the urgency of the software/
hardware changes implementation.'' FRA has reviewed industry practice
regarding software changes and has determined that the levels contained
in AAR Standard S-4270 are consistent with the IEEE 1044 and 1044.1.
These standards differentiate the urgency of software and hardware
implementation schedules in order to assure gradual implementation
without significantly affecting operations. FRA considers the use of
the three levels of software and hardware implementation strategy given
in Sec.  3.6 of S-4270 as reasonable and practically justified.

    To further assure and enforce compliance of the ECP brake
manufacturers' configuration management plans with the final rule and
appropriate standards, FRA makes vendor and railroad compliance with S-
4270 a regulatory mandate subject to regulatory oversight in paragraph
(c) of this section in the final rule. AAR Standard S-4270 places the
responsibility for configuration management on the brake manufacturers.
Paragraph (c) of this section, however, requires the railroads
implementing and using ECP brake technology to ensure that the brake
manufacturers' configuration management plans comply with the existing
applicable standards. FRA believes that the users of rail technologies
are ultimately responsible for their safe use.
    Paragraph (c) also provides for regulatory oversight of
configuration management plans, which could include a review of the
manufacturer's commitment and adherence to the general requirements of
accepted or scientifically proven configuration management plans. Based
on the allowances for customization of the configuration management
standards to support a specific vendor's mode of operation, and the
inclusion of FRA regulatory oversight to ensure that vendor's standards
are appropriate, FRA considers the content of S-4270 standard
sufficient to be incorporated by reference in this final rule.
    Paragraph (d), of this section excepts a freight car or freight
train equipped with ECP brakes from certain existing provisions
contained in part 232. FRA recognizes that part 232 requires compliance
with other AAR standards not applicable to ECP brake systems. For
instance, section 232.103(l) requires compliance with AAR Standard S-
469-47 (``Performance Specification for Freight Brakes''), which
specifies a train's air brakes must respond to the decrease and
increase of brake pipe pressure. However, ECP brake systems respond to
an electronic signal, not brake pipe pressure, rendering S-469-47
inapplicable to ECP brake systems. Accordingly, paragraph (d) excepts
ECP brake systems from the requirements of AAR Standard S-469-47.
    In addition, GE requests that an exception be granted to certain
stand-alone ECP brake systems to the AAR standards referenced in Sec.
232.603(a)(1)-(6), where a suitable justification is provided. To this
end, GE supplied proposed language to be inserted in a new paragraph of
the final rule. While FRA agrees that the rules should provide for
alternative standards, such flexibility is already provided in the
introductory text to paragraph (a) of this section. If GE or any other
potential brake manufacturer seeks to enter the marketplace with ECP
brakes relying on standards other than AAR's, then it may submit
alternative standards for FRA approval pursuant to Sec.  232.17.
Accordingly, a new paragraph providing for exception from the
incorporated AAR standards under suitable justification is unnecessary.
    Moreover, paragraph (e), provides further flexibility for the
introduction of new technologies by providing for the possible
exceptions from the requirements of subpart F of this part. BLET
objects to exempting railroad operators from the requirements of
subpart F. According to BLET, the pre-revenue service acceptance
testing plan requirements set forth in subpart F provide data and other
information that is necessary in order to safely regulate the
technology. BLET also asserts that ``FRA does not propose that an
exception be granted if testing or demonstration is conducted pursuant
to an AAR standard that has been incorporated by reference after being
subject to public review and comment. Rather, FRA proposes a lower
requirement, that the testing/demonstration standard only be FRA-
recognized.'' (Emphasis removed.)
    Subpart F of part 232 contains general requirements for introducing
new brake system technologies. More specifically, it requires a pre-
revenue acceptance testing plan. As FRA views existing ECP brake system
technology to be a fully mature and well-tested technology, FRA
disagrees with BLET on this issue and does not believe the provisions
contained in subpart F are applicable to this existing technology. When
subpart F was originally added to part 232, ECP brake technology was
just beginning to gain prominence. Since that time, experience with the
technology is far more developed and the technology is being used on
many different trains around the world. Moreover, FRA believes that
requiring ECP brake systems to initially and continually comply with a
FRA approved standard and to be approved in accordance with AAR's
approval procedures prior to being placed in service obviates the need
for existing ECP brake system technology to comply with the
requirements under subpart F. Accordingly, paragraph (d)(2) provides
for an exception from the requirements contained in subpart F freight
trains and freight cars equipped with existing ECP brake system
technology that has been conditionally or finally approved by AAR in
accordance with its approval procedures prior to the effective date of
the final rule in this proceeding. FRA has limited the exception to ECP
brake system technologies approved by AAR as of the effective date of a
final rule to provide an incentive to the industry to move the
introduction of the technology along in a timely fashion.
    In anticipation of future ECP brake technologies not currently
contemplated within the scope of the incorporated AAR standards or not
approved by AAR prior to the effective date of a final rule in this
proceeding, paragraph (e) provides a procedure for introducing such
technologies without going through the pre-revenue testing procedures
contained in subpart F. Paragraph (e) permits a party interested in
using new ECP brake system technologies or using an ECP brake system
technology not approved by AAR prior to the effective date of the final
rule in this matter to file a written request with the FRA seeking an
exception from subpart F. FRA would expect any such request to include
a comprehensive narrative statement and any evidence or facts
justifying the exception of the new ECP brake technology from the
testing and demonstration requirements of subpart F. The material
should fully explain the testing or demonstration that will be
conducted pursuant to an FRA-recognized industry standard and ensure
that FRA is able to monitor such testing or demonstration. FRA's
Associate Administrator may revoke the exception in writing for any
reason after providing an opportunity for the affected party or parties
to respond.
    GE supports the adoption of proposed Sec.  232.603(e), but
recommends that ``FRA clarify that `new technology' does not include
functionally equivalent replacement components, consistent with past
practice.'' To this end, GE suggests adding a ``new technology''
definition to part 232, clarifying this interpretation in the preamble
to the final rule, or including some additional clarifying language to
paragraph (e), indicating that in lieu of an FRA recognized industry
standard, testing or demonstration of new technologies should be
performed in an environment with a safety equivalent to that in
paragraph (a).
    Subpart F, as indicated in Sec.  232.501, already addresses the
issue of new technology. FRA intends subpart F to continue to apply to
the introduction of new ECP brake technologies. However, as previously
mentioned, the purpose of paragraph (e) is to provide a more liberal
alternative to subpart F for the demonstration and testing of new ECP
brake technologies subject to the

discretion of the Associate Administrator on a case-by-case basis.
    GE's suggestion that the final rule include language requiring some
type of adherence to an FRA approved ECP brake design standard misses
the mark, since demonstration and testing may occur before any
determination on design standards. Chronologically speaking, new ECP
brake technologies can be tested and demonstrated under paragraph (e)
``right out of the box.'' Then, if the testing or demonstration results
in an ECP brake technology worthy of use in revenue service, the
manufacturer of that technology may need to apply for FRA approval of
that technology's new design standard under paragraph (a) or (f). It
appears that GE may have mixed apples (testing and demonstration) with
oranges (subsequently seeking FRA approval or new alternative design
standards). During the testing and demonstration phase, design
standards may not even be contemplated.

Section 232.605 Training Requirements

    The general training requirements for railroad and contractor
employees performing the inspection, testing, and maintenance on brake
systems under this part are contained in Sec.  232.203. Paragraph (a)
of this section makes clear that all of the training requirements
contained in Sec.  232.203 are applicable to ECP brake system
operations and requires that all railroads operating ECP brake-equipped
trains update their training, qualification, and designation programs
to include provisions for these operations. Accordingly, FRA expects
that railroad and contract personnel responsible for performing brake
system inspections, tests, and maintenance on ECP brake systems be
trained, tested, and designated in accordance with the requirements
contained in Sec.  232.203 on the ECP brake systems they will be
required to inspect, test, and maintain.
    Section 232.203(c) contains general requirements or elements which
must be part of any training and qualification plan adopted by a
railroad or contractor. FRA continues to believe that the elements
contained in this section are specific enough to ensure high-quality
training and broad enough to permit a railroad or contractor to adopt a
training plan that is best suited to its particular operation. FRA
continues to believe that the required training must provide employees
with the necessary knowledge, skills, and abilities to perform the
tasks required for the various types of brake systems the individual
employee will be required to inspect, test, or maintain. Since FRA
expects only a limited number of employees will be involved initially
with ECP brake operations, a railroad or contractor may tailor its
training programs only for those individuals involved with ECP brake
systems, based on the tasks that employee will be required to perform
on those specific systems.
    Section 232.203(e) contains recordkeeping requirements, the
cornerstone for training requirements accountability. FRA continues to
believe that such records should be kept for employees inspecting,
testing, and maintaining ECP brake-equipped freight cars and freight
trains. Such documentation will allow FRA to judge the effectiveness of
the training provided and will provide FRA with the ability to
independently assess whether the training provided to a specific
individual adequately addresses the skills and knowledge required to
perform the tasks that the person is deemed qualified to perform.
Moreover, requiring these records will deter railroads and contractors
from circumventing the training requirements and discourage them from
attempting to utilize insufficiently trained personnel to perform the
inspections and tests required by this rule. The required records may
be maintained either electronically or on paper in the same manner as
required under section 232.203.
    Paragraph (a) of this section also requires ECP brake operations to
comply with Sec.  232.203(f), which requires that each railroad or
contractor adopt and comply with a plan to periodically assess the
effectiveness of its training program. To ensure that affected
employees receive timely, effective training relating to ECP brake
technology, UTU encourages FRA to audit the training functions that are
required under Sec.  232.605. BLET agrees with UTU that FRA should
reserve the right to audit such training programs and also proposes
that training programs should be submitted to FRA for approval. AAR
argues that the regulations should not require FRA approval of railroad
training programs, since it would delay any changes that railroads
might want to make.
    FRA currently performs audits on the training provided to railroad
employees and contractors under Sec.  232.203. These audits examine the
course content, learning objectives, testing methods, refresher
training, and methods for ensuring the effectiveness of the training.
FRA intends to continue to audit these training programs, including
those for transportation and mechanical employees working with ECP
brake operations. FRA does not require submission of training programs
relating to conventional brake operations for FRA approval and does not
see a need to require a submission of training programs relating to ECP
brake operations. Accordingly, paragraph (a) extends this requirement
to employees and contractors utilizing ECP brake operations.
    In addition, FRA continues to believe that railroads and
contractors should periodically assess the effectiveness of their
training programs that would include an assessment of the training
related to ECP brake systems. FRA continues to believe that periodic
assessments may be conducted through a number of different means and
each railroad or contractor may have a need to conduct the assessment
in a different manner. By referencing the requirements contained in
Sec.  232.203, paragraph (a) requires that a railroad or contractor
institute a plan to periodically assess its training program regarding
ECP brake systems and permits the use of efficiency tests or periodic
review of employee performance as methods for conducting such review.
While FRA continues to believe that many railroads are capable of
assessing the quality of the training their employees receive by
conducting periodic supervisory spot checks or efficiency tests of
their employees' performance, FRA also believes that on larger
railroads the periodic assessment of a training program should involve
all segments of the workforce involved in the training.
    Paragraph (b) of this section requires each railroad to
appropriately amend or modify its operating rules to include safe train
handling procedures when utilizing ECP braking systems. The developed
operating rules should address the equipment and territory operated by
the railroad. FRA insists that training on proper train handling
procedures is essential to ensuring that locomotive engineers can
properly handle their trains with or without ECP braking systems. FRA
also continues to believe that it should not specify the specific
knowledge, skill, and ability criteria that a railroad must adopt into
its locomotive engineer training program. Given the considerable
differences among railroads, FRA believes that each railroad is in the
best position to determine what these criteria should be and what
training is necessary to provide that knowledge, skill, and ability to
its employees operating ECP brake-equipped trains. However, to ensure
that the railroads and contractors provide and complete training,
paragraph (c) of this section

requires each to adopt and comply with such criteria and training