Locomotive Event Recorders, 37920-37944 [05-12878]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 125 (Thursday, June 30, 2005)]
[Rules and Regulations]
[Pages 37920-37944]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12878]



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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 229



Locomotive Event Recorders; Final Rule

Federal Register / Vol. 70, No. 125 / Thursday, June 30, 2005 / Rules 
and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 229

[Docket No. FRA-2003-16357, Notice No. 3]
RIN 2130-AB34


Locomotive Event Recorders

AGENCY: Federal Railroad Administration (FRA), (DOT).

ACTION: Final rule.

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SUMMARY: FRA is issuing revisions to the regulations governing 
locomotive event recorders to improve the crashworthiness of railroad 
locomotive event recorders and to enhance the quality of information 
available for post-accident investigations. FRA is amending its 
existing regulations in four major ways: By requiring that a new 
locomotive have an event recorder with a ``hardened'' memory module, 
proven by a requirement that the memory module preserve stored data 
throughout a sequence of prescribed tests; by requiring that this event 
recorder on a new locomotive collect certain additional types of 
information; by simplifying standards for inspecting, testing, and 
maintaining all event recorders; and by requiring the phasing out, over 
a four-year period, of event recorders on existing locomotives that use 
magnetic tape as a data storage medium and their replacement with event 
recorders with a certified survivable version of its previous event 
recorder. FRA is also revising the definitions contained in the 
existing regulation to remove the letter designations so that the 
defined terms are simply presented in alphabetical order.

EFFECTIVE DATE: This final rule is effective October 1, 2005.

ADDRESSES: Petitions: Any petitions for reconsideration related to 
Docket No. FRA-2003-16357, may be submitted by any of the following 
methods:
     Web site: https://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m. Monday through Friday, except Federal Holidays.
     Federal eRulemaking Portal: Go to https://
www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to https://dms.dot.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 
comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to https://dms.dot.gov at any time or to PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Edward W. Pritchard, Director, Office 
of Safety Assurance and Compliance, RRS-10, Mail Stop 25, Federal 
Railroad Administration, Department of Transportation, 1120 Vermont 
Avenue, NW., Washington, DC 20590 (telephone 202-493-6247), or Thomas 
J. Herrmann, Trial Attorney, Office of Chief Counsel, Mail Stop 10, 
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, 
DC 20590 (telephone 202-493-6036).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    Sections 10 and 21 of the Rail Safety Improvement Act of 1988 
(RSIA), Public Law 100-342, 102 Stat. 624 (June 22, 1988), provide as 
follows:

    Sec. 10. Event Recorders.
    Section 202 of the Federal Railroad Safety Act of 1970 is 
amended by adding at the end the following new subsection:
    ``(m)(1)(A) The Secretary shall, within 18 months after the date 
of the enactment of the Rail Safety Improvement Act of 1988, issue 
such rules, regulations, standards, and orders as may be necessary 
to enhance safety by requiring that trains be equipped with event 
recorders within 1 year after such rules, regulations, orders, and 
standards are issued.
    ``(B) If the Secretary finds that it is impracticable to equip 
trains as required under subparagraph (A) within the time limit 
under such subparagraph, the Secretary may extend the deadline for 
compliance with such requirement, but in no event shall such 
deadline be extended past 18 months after such rules, regulations, 
orders, and standards are issued.
    ``(2) For the purpose of this subsection, the term `event 
recorders' means devices that--
    ``(A) record train speed, hot box detection, throttle position, 
brake application, brake operations, and any other function the 
Secretary considers necessary to record to assist in monitoring the 
safety of train operation, such as time and signal indication; and
    ``(B) are designed to resist tampering.''
* * *
    Sec. 21. Tampering With Safety Devices.
    Section 202 of the Federal Railroad Safety Act of 1970 is 
amended by adding at the end the following new subsection:
    ``(o)(1) The Secretary shall * * * issue such rules, 
regulations, orders, and standards as may be necessary to prohibit 
the willful tampering with, or disabling of, specified railroad 
safety or operational monitoring devices.
* * *

    Codified at 49 U.S.C. 20137-20138, superseding 45 U.S.C. 431(m) and 
(o).

II. Proceedings to Date

    On November 23, 1988, FRA published an ANPRM (Advance Notice of 
Proposed Rulemaking) in FRA Docket No. LI-7, soliciting comments on how 
to implement these statutory mandates concerning event recorders. See 
53 FR 47557. On June 18, 1991, FRA published an NPRM in that docket, 
setting forth proposed regulations on event recorders, the elements 
they were to record, and the preservation of data from the event 
recorder in the event of an accident. See 56 FR 27931. Two public 
hearings were held in order to facilitate public participation; the 
written comments submitted in response to the NPRM were extensive, 
detailed, and helpful.
    FRA prescribed final event recorder rules, effective May 5, 1995 
(58 FR 36605, July 8, 1993) and issued a response to petitions for 
reconsideration (60 FR 27900, May 26, 1995); they were codified 
principally at 49 CFR 229.135. In issuing the final rules, FRA noted 
the need to provide more refined technical standards. The National 
Transportation Safety Board (NTSB) had previously remarked on the loss 
of data from event recorders in several accidents due to fire, water, 
and mechanical damage. NTSB proposed performance standards and agreed 
to serve as co-chair for a joint industry/government working group that 
would refine technical standards for next-generation event recorders. 
FRA conducted a meeting of an informal working group comprised of 
railroad labor and management representatives and co-chaired by NTSB on 
December 7, 1995, to consider development of technical standards. At 
the July 24-25, 1996 meeting of FRA's Railroad Safety Advisory 
Committee (RSAC), the Association of American Railroads (AAR) agreed to 
continue the

[[Page 37921]]

inquiry and on November 1, 1996, reported the status of work on 
proposed industry standards to the RSAC.
    On March 5, 1997, the NTSB issued several recommendations regarding 
testing and maintenance of event recorders as a result of its findings 
in the investigation of an accident on February 1, 1996, at Cajon Pass, 
CA. As the Board noted in its recommendation to FRA, the train that 
derailed in Cajon Pass ``had an event recorder that was not fully 
operational. The self-diagnostic light on the unit was insufficient to 
fully examine the unit and ensure that it was recording the data.'' The 
Board recommended that inspection and testing of event recorders 
``include, at a minimum, a review of the data recorded during actual 
operations of the locomotive to verify parameter functionality. * * * 
See NTSB Recommendation R-96-70.

III. RSAC Overview

    In March 1996, FRA established the RSAC, which provides a forum for 
developing consensus recommendations on rulemakings and other safety 
program issues. The Committee includes representation from all of the 
agency's major customer groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. A list of member groups follows:

American Association of Private Railroad Car Owners (AARPCO)
American Association of State Highway & Transportation Officials 
(AASHTO)
American Public Transportation Association (APTA)
American Short Line and Regional Railroad Association (ASLRRA)
American Train Dispatchers Department/Brotherhood of Locomotive 
Engineers (ATDD/BLE)
National Passenger Railroad Corporation (Amtrak)
Association of American Railroads (AAR)
Association of Railway Museums (ARM)
Association of State Rail Safety Managers (ASRSM)
Brotherhood of Locomotive Engineers and Trainmen (BLET)
Brotherhood of Maintenance of Way Employees (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Federal Transit Administration (FTA)*
High Speed Ground Transportation Association
Hotel Employees & Restaurant Employees International Union
International Association of Machinists and Aerospace Workers
International Brotherhood of Boilermakers and Blacksmiths
International Brotherhood of Electrical Workers (IBEW)
Labor Council for Latin American Advancement (LCLAA)*
League of Railway Industry Women*
National Association of Railroad Passengers (NARP)
National Association of Railway Business Women*
National Conference of Firemen & Oilers
National Railroad Construction and Maintenance Association
National Transportation Safety Board (NTSB)*
Railway Progress Institute (RPI)
Safe Travel America
Secretaria de Communicaciones y Transporte*
Sheet Metal Workers International Association
Tourist Railway Association Inc.
Transport Canada*
Transport Workers Union of America (TWUA)
Transportation Communications International Union/BRC (TCIU/BRC)
United Transportation Union (UTU)

    *Indicates associate membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts options on a particular aspect of a given 
task. The task force then provides that information to the working 
group for consideration. If a working group comes to unanimous 
consensus on recommendations for action, the package is presented to 
the RSAC for a vote. If the proposal is accepted by a simple majority 
of the RSAC, the proposal is formally recommended to FRA. FRA then 
determines what action to take on the recommendation. Because FRA staff 
has played an active role at the working group level in discussing the 
issues and options and in drafting the language of the consensus 
proposal, FRA is often favorably inclined toward the RSAC 
recommendation. However, FRA is in no way bound to follow the 
recommendation and the agency exercises its independent judgement on 
whether the recommended rule achieves the agency's regulatory goal, is 
soundly supported, and is in accordance with policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal. If the 
working group or RSAC is unable to reach consensus on recommendations 
for action, FRA moves ahead to resolve the issue through traditional 
rulemaking proceedings.

    On March 24, 1997, the RSAC indicated its desire to receive a task 
to consider the NTSB recommendations with regard to crash 
survivability, testing, and maintenance. A task was presented to, and 
accepted by, the RSAC on June 24, 1997. The Working Group on Event 
Recorders was formed, and a Task Force established. Members of the 
Working Group, in addition to FRA, included the following:

AAR, including members from
    The Burlington Northern and Santa Fe Railway Company (BNSF),
    Canadian National Railway Company (CN),
    Canadian Pacific Railway Company (CP),
    Consolidated Rail Corporation (CR)
    CSX Transportation, Incorporated (CSX),
    Florida East Coast Railway Company (FEC),
    Illinois Central Railroad Company (IC),
    Norfolk Southern Corporation (NS),
    Union Pacific Railroad Company (UP),
APTA, including members from
    Southeastern Pennsylvania Transportation Authority (SEPTA)
Amtrak,
Bach-Simpson,
BLET,
EDI,
General Motors Corporation/Electro-Motive Division (EMD)
IBEW,
Pulse/Wabco,
Q-Tron,
TCIU/BRC, and
UTU.

The NTSB met with the Working Group and provided staff advisors. In 
addition, GE-Harris, STV Incorporated, and Peerless Institute attended 
many of the meetings and contributed to the technical discussions.

    The Working Group and related Task Force conducted a number of 
meetings and discussed each of the matters proposed in the NPRM issued 
in this matter. Minutes of these meetings have been made part of the 
docket in this proceeding. The Working Group reached full consensus on 
a recommended proposal on October 20, 2003, and transmitted the 
document as its recommendation to the full RSAC for its concurrence via 
mail ballot on October 23, 2003. By November 12, 2003, the deadline set 
for casting a ballot in this matter, thirty-five of the

[[Page 37922]]

forty-eight voting members of the full RSAC had returned their ballots 
on the regulatory recommendation submitted by the Working Group. All 
thirty-five of the voting members concurred with and accepted the 
Working Group's recommendation. Thus, the Working Group's 
recommendation became the full RSAC's recommendation to FRA. After 
reviewing the full RSAC's recommendation, FRA adopted the 
recommendation with minor changes for purposes of clarity, and 
responsiveness to certain comments made by Working Group and RSAC 
members when submitting their concurrences.
    On June 30, 2004, FRA published an NPRM containing the 
recommendations of the Working Group and the full RSAC. See 69 FR 
39774. The NPRM provided for a 60-day comment period and provided 
interested parties the opportunity to request a public hearing. Based 
on the comments received, FRA issued a notice on September 2, 2004, 
scheduling a public hearing for September 30, 2004 and extending the 
comment period an additional 41 days to October 11, 2004. See 69 FR 
54255 (September 8, 2004). FRA received comments from 22 interested 
parties, most of these were private citizens or private law firms.
    Subsequent to the close of the comment period, the Working Group 
conducted a meeting to review and discuss the comments received in 
response to the NPRM. The Working Group discussed all of the issues 
raised in the comments and considered various methods by which to 
address the comments. Minutes of these meetings have been made part of 
the docket in this proceeding. Based on information and discussions 
held at these meetings, the Working Group developed a potential 
recommendation for a final rule. The Working Group reached full 
consensus on a recommended proposal for a final rule on May 3, 2005, 
and transmitted the document as its recommendation to the full RSAC for 
its concurrence via mail ballot on May 13, 2005. On June 6, 2005, 
twenty-eight of the forty-five voting members of the full RSAC had 
returned their ballots on the regulatory recommendation submitted by 
the Working Group. All twenty-eight of the voting members concurred 
with and accepted the Working Group's recommendation. Thus, the Working 
Group's recommendation related to this final rule became the full 
RSAC's recommendation to FRA. FRA further reviewed the recommendation 
and adopted it with minor changes for purposes of clarity.
    Throughout the preamble discussion of this final rule, FRA refers 
to comments, views, suggestions, or recommendations made by members of 
the Working Group. When using this terminology, FRA is referring to 
views, statements, discussions, or positions identified or contained in 
either the minutes of the Working Group and Task Force meetings or the 
specific written submissions discussed above. These documents have been 
made part of the docket in this proceeding and are available for public 
inspection as discussed in the preceding ADDRESSES portion of this 
document. These points are discussed to show the origin of certain 
issues and the course of discussions on those issues at the working 
group level. We believe this helps illuminate factors FRA has weighed 
in making its regulatory decisions, and the logic behind those 
decisions. The reader should keep in mind, of course, that only the 
full RSAC makes recommendations to FRA, and it is the consensus 
recommendation of the full RSAC on which FRA is acting.

IV. Section-by-Section Analysis

    The AAR Universal Machine Language Equipment Register (UMLER) file 
had approximately 28,000 locomotives registered as of January 1, 2000, 
including locomotives operated by shortline and regional railroads, 
Canadian and Mexican railroads, and Amtrak. Portions of the Canadian 
and Mexican fleet operate in the United States. Every major railroad 
uses event recorders, and no railroads report a difficulty in complying 
with the 1995 regulations requiring event recorders on the lead 
locomotive of any train operated faster than 30 miles per hour. As 
noted above, this proceeding builds on the current regulations in Part 
229 and adds requirements for crash survivability and enhanced data 
collection by event recorders. In addition, this final rule requires 
the installation of these current ``state-of-the-art'' event recorders 
in new locomotives and would require that, if a locomotive with an 
event recorder is remanufactured, it be equipped with a certified 
survivable version of its previous event recorder.
    As noted previously, FRA received comments from 22 interested 
parties in response to the NPRM. The specific comments are addressed 
and discussed in the section-by-section analysis related to the 
provision that was the subject of the submitted comment.
    Section 229.5. This section contains an extensive set of 
definitions. FRA intends these definitions to clarify the meaning of 
terms as they are used in the text of the final rule. The final rule 
retains all of the definitions proposed in the NPRM with the only 
changes being a slight modification of the definition of the term 
``distributed power system'' for clarity and the addition of a 
definition for the term ``DMU Locomotive,'' which will be explained in 
detail below. One commenter suggested the addition of a definition for 
the term ``positive train control (PTC)'' because event recorders are 
an integral part of any PTC system. FRA agrees with the RSAC's 
recommendation not to include a definition for PTC in this final rule 
because the term is not used in the rule text contained in this part 
and the term is adequately defined in the new regulations related to 
train control systems recently added to 49 CFR part 236. See 70 FR 
11051 (March 7, 2005).
    The final rule entirely rewrites the ``definitions'' section as it 
currently exists in part 229 in order to remove the letter designations 
from the subparagraphs so that the terms are simply presented in 
alphabetical order. Several of the definitions introduce new concepts 
or new terminologies that require further discussion. The following 
discussion is arranged in the order in which the added or revised 
definitions appear in the rule text.
    Controlling remote distributed power locomotive is a new definition 
added to this final rule in response to concerns discussed in comments 
received in response to the NPRM. The definition is being added in 
order to clearly identify what constitutes a controlling remote 
distributed power locomotive addressed by the requirements of this 
final rule. A controlling remote distributed power locomotive means the 
locomotive in a distributed power consist that receives the coded 
signal from the lead locomotive consist of the train whether commanded 
automatically by the distributed power system or independently by the 
locomotive engineer. A distributed power system means a system that 
provides control of a number of locomotives dispersed throughout a 
train from a controlling locomotive located in the lead position. The 
system provides control of the rearward locomotives by command signals 
originating at the lead locomotive and transmitted to the remote 
(rearward) locomotives.
    Cruise control, an added definition, describes the device that 
controls locomotive power output to maintain a targeted speed. 
Primarily used on through-route passenger equipment, this device allows 
the engineer a choice between automated controls or the traditional 
throttle handle. Devices that only function at or below 30 miles per

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hour, such as those used in the loading/unloading of unit trains of 
bulk commodities, or those used to move equipment through car or 
locomotive washers, are not considered cruise controls for purposes of 
this part.
    Data element, an added definition, clarifies that the data recorded 
may be directly passed through or they may be derived from other data. 
As an example, speed may be calculated from time and distance; the 
event recorder may capture ``speed'' by calculating that value using 
the common formula of dividing distance by time. An alternative term 
``data parameter'' is not used in this final rule because a 
``parameter'' connotes one value standing for all others of a class and 
an ``element'' is a discrete value. Data may be derived from both 
recorded and unrecorded ``facts'' in the memory module. For instance, 
the distance element in the calculation of speed may be derived from a 
count of the wheel revolutions (data from the memory module) and the 
wheel diameter or wheel circumference (data measured directly from a 
physical component and, thus, not stored in the memory module).
    Distributed power system, an added definition, describes a system 
to allow the engineer in the lead unit to control locomotive power 
units placed within the train consist. Typically, a radio link is 
established between the lead unit and the remote power consist so that 
a single engineer can control several locomotives not directly coupled 
to the lead unit. FRA notes that this definition has been modified 
slightly from that proposed in the NPRM. FRA agrees with the RSAC's 
recommendation that the word ``automatic'' used in the proposed 
definition did not accurately reflect the way distributed power systems 
operate. Distributed power systems allow for either synchronous or non-
synchronous operation, only the former of which results in the 
distributed units responding ``automatically'' to the controls of the 
lead locomotive. Thus, the definition has been modified from that 
contained in the NPRM by removing the word ``automatic'' to avoid any 
misunderstanding regarding how these systems function.
    DMU locomotive, a new definition, is being added to this final rule 
in order to specifically identify diesel-powered multiple unit 
locomotives. Diesel-powered MUs are just starting to be used by a small 
number of passenger railroads. However, FRA and the industry believes 
that the use of DMU locomotives will expand significantly in the 
future. For purposes of event recorders, DMU locomotives will be 
treated the same as MU locomotives. For other portions of part 229 the 
two types of locomotives may be treated differently.
    Event recorder is a revised definition. The definition that is 
currently in the regulations is modified so that the list of data 
elements to be recorded will now appear in rewritten Sec.  229.135(b). 
This change is necessary because the final rule requires the event 
recorders on new locomotives to record more data elements than the 
recorders required by the regulation as it existed prior to this final 
rule.
    FRA received a comment from one party questioning whether the 48-
hour monitoring and recording requirement for event recorders is 
sufficient, without further elaborating on the need for such an 
extension. FRA has not found the need to require the monitoring and 
recording of train information beyond the 48 hours required under the 
existing regulation. The RSAC, through the Working Group, discussed 
this issue and determined that the 48-hour provision adequately 
captures the necessary data and recommended no increase to the time 
frame. As FRA has not found the need to require the monitoring and 
recording of train information beyond the 48 hours required under the 
existing regulation, FRA has adopted the RSAC's recommendation. 
Furthermore, any increase to the amount of data that must be stored 
could significantly increase the cost of producing and acquiring the 
event recorder, and FRA is not willing to impose additional costs 
without an established need.
    In the NPRM, FRA noted that the issues of accuracy, resolution, and 
sampling rate remained unresolved, provided a brief discussion related 
to sampling rates, and requested comment from interested parties on 
this subject. See 69 FR 39779-80. FRA received comments from the BLET 
supporting the adoption of the IEEE sampling rate standard detailed in 
the preamble to the NPRM. FRA also received comments from the AAR 
objecting to the use of the IEEE sampling rate standard based on its 
belief that the standard is too high and not applicable to railroad 
operations. AAR asserts that a sampling rate of 50 samples per second 
is unnecessary as events do not happen that fast on railroads and the 
most modern locomotive event recorders only record data once per 
second. Furthermore, increasing the sampling rate above what is 
currently being manufactured would significantly increase the costs of 
the recorders. AAR also noted that Transport Canada's regulations do 
not mandate a specific sampling rate.
    The issue was discussed by the Working Group, and one manufacturer 
explained that current microprocessor based event recorders sample at 
least 20 times per second and record one time per second. Thus, event 
recorders do not record at anywhere near the rate at which they sample. 
The Working Group recommended that no sampling rate be mandated in the 
regulation for the above-noted reasons. FRA believes that the currently 
manufactured event recorders have an acceptable sampling rate, and FRA 
is not aware of any instance where a higher sampling rate was 
necessary. Moreover, FRA and the Working Group concentrated on the 
crashworthiness aspects of the event recorder memory module, together 
with enhancing the kind of data to be collected for post-accident 
analysis. FRA believes that this focus is both an ordering of 
priorities and a recognition that the industry has an economic and 
operational incentive to make the data as accurate as possible. What 
the event recorder stores are data that are, first and foremost, 
indispensable to the operation of the locomotive. Because the railroads 
have operational needs for the same data elements that are also vital 
to accident analysis, the ``numbers'' tend to be accurate and, with 
microprocessor-based event recorders, the data thus generated during 
the ordinary course of business are not diminished in accuracy just 
because they are stored. In addition, microprocessor-based event 
recorders run so fast that the sampling intervals are naturally short, 
and they may be adjusted differently for different elements. Thus, FRA 
agrees with the recommendation of the Working Group and RSAC and will 
not mandate a specific sampling rate in this final rule but will 
continue to monitor the operation of event recorders to determine if 
further regulatory action is necessary on this issue.
    Event recorder memory module, a new definition, describes the 
portion of the event recorder that will be required to meet the 
crashworthiness standard contained in Appendix D to Part 229.
    Lead locomotive is a definition moved from current Sec.  229.135(a) 
and revised to reflect current industry practice and to make it clear 
that ``lead locomotive'' describes a set position in the train rather 
than the locomotive from which the crew is operating the train. This 
change was necessary, among other reasons, to accurately record the 
signal indications displayed to the crew of the train.
    Mandatory directive is a definition also contained in Sec.  220.5 
of this chapter and is being included in this part to aid in 
understanding the type of data that is

[[Page 37924]]

to be captured by the event recorder when a railroad utilizes a train 
control system pursuant to Part 236 of this chapter.
    Remanufactured locomotive, a new definition, is added to clarify 
when an existing event recorder-equipped locomotive must be equipped 
with a crashworthy event recorder.
    Self-monitoring event recorder, a new definition, is added to state 
clearly the conditions under which an event recorder does not require 
periodic maintenance. One member of the Working Group, in a written 
submission to FRA, suggested that this definition be slightly altered 
to state that a self-monitoring event recorder is one that has the 
ability to monitor its own operation and to display an indication to 
the locomotive operator either when any data required to be stored are 
not stored or when the input signal or stored signal is detected as 
out-of-range. This commenter stated that there is no way to verify 
whether the stored data matches the data received from the sensor or 
data collection point as described in the definition. Examples of this 
are when a sensor fails open and the locomotive computer does not pass 
that information to the event recorder, or when a speed sensor is not 
producing any output due to certain failure modes. However, certain 
data elements can be programmed with a minimum or maximum range and if 
the sensor input is outside that range then an appropriate indication 
can be provided to the operator. Although FRA sought comments from 
interested parties on this suggested change to the definition no 
comments or suggestions were received and no support for such a change 
was indicated. Consequently, FRA is retaining the definition proposed 
in the NPRM in this final rule.
    Throttle position, a new definition, is added to capture the 
industry understanding about this parameter of locomotive operation. 
The NPRM contains a detailed discussion regarding the use of the term 
``throttle position,'' which provides additional information and 
background regarding the nature and meaning of the term as used in this 
final rule. See 69 FR 39777. While typical diesel-electric freight 
locomotives have positions, or ``notches'' for eight power positions 
and ``Idle,'' many other locomotives, especially those in passenger and 
heavy electric passenger service, do not. The final rule definition 
calls for measuring the power requested by the engineer/operator at any 
and all of the discrete output positions of the throttle. If the 
throttle quadrant on a locomotive has continuously variable segments, 
the recorder would be required to capture the exact level of speed/
tractive effort requested, on a scale of zero (0) to 100 percent (100%) 
of the output variable or a value converted from a percentage to a 
comparable 0- to 8-bit digital system. In the NPRM, FRA sought comment 
on the need to specify specific parameters by which throttle position 
is recorded. See 69 FR 39777 and 39781. NTSB was the only party 
responding, expressing its support and need for the definition. 
Therefore, the final rule retains the definition as proposed in the 
NPRM.
    Section 229.25. The final rule retains the proposed amendment to 
paragraph (e) of this section by moving the language dealing with 
microprocessor-based event recorders from subparagraph (e)(2) to the 
lead paragraph and providing that microprocessor-based event recorders 
with a self-monitoring feature are exempt from the 92-day periodic 
inspection and are to be inspected annually as required under proposed 
Sec.  229.27(d). Other types of event recorders would require 
inspection and maintenance at 92-day intervals, as before.
    Older styled event recorders used magnetic tape cartridges as their 
recording medium; while this final rule will ``sunset'' such equipment, 
the equipment still needs to be maintained in order to perform 
satisfactorily during the period it remains in service. The final rule 
provides for this, at 49 CFR 229.25(e). Microprocessor-based event 
recorders, typified by virtually all of the recorders now being 
installed in locomotives, are similar to many consumer solid state 
electronic devices; either they work or they do not. Maintenance 
consists of checking for satisfactory operation and, if there is a 
failure, replacing either the failed component or the entire unit.
    What further complicates the newest installations is that there is 
no ``black box,'' as such. Rather, the entire locomotive is wired with 
sensors and, as an illustration, those elements necessary for routine 
maintenance of the locomotive are routed to one collection point, and 
those required for accident analysis are routed to another. There are 
also ways to retrieve any particular subset of data out of a single 
data port by using what is popularly called a ``smart card'' to query 
the computer for a predetermined set of data. Accident investigators 
would get the data elements specified in Sec.  229.135(b), locomotive 
electrical maintainers would get the set of data applicable to their 
work, and a person evaluating the engineer's performance over the last 
run would download a data set preprogrammed for that purpose. Data 
necessary for accident analysis, as required in this final rule, would 
be routed to a crash-hardened memory module.
    In comments, the NTSB recommended provisions for testing the full 
range of all parameters periodically and for testing the sensors, 
transducers, or wiring for data elements not cycled during the normal 
operation more often than annually. However, NTSB provided no data or 
significant number of instances relating to the failure of sensors, 
transducers, or wiring that are not detected during the course of the 
currently required periodic maintenance of either the locomotive itself 
or the locomotive event recorder. A requirement to independently test 
the sensors, transducers, and wiring involved with capturing the data 
elements required by this final rule would add a significant cost to 
the conduct of periodic inspections. Without some proven established 
need for these additional inspections, FRA is not willing to impose 
that additional cost at this time. FRA continues to recognize that 
railroads cannot test event recorders over the full range of all 
recorded parameters. Such testing might require operating locomotives 
at speeds far higher than safe over a particular railroad's track, and 
some events, such as EOT valve failure, are extremely rare. The final 
rule requires ``cycling, as practicable, all required recording 
elements * * * '' in recognition of this fact.
    The NTSB also sought clarification as to whether the proposed rule 
would require event recorder maintenance to be recorded on the 
locomotive ``blue card'' (form FRA F6180-49A) maintained in the cab of 
the locomotive. While the ``blue card'' does not contain a specific 
line-item related to event recorders, the regulation does require that 
the date, place, and signature of the person performing the required 
periodic inspections under Sec. Sec.  229.25 and 229.27 be entered on 
the form. Thus, in order to properly sign and date the ``blue card,'' 
the required inspection, testing, and maintenance must have been 
performed on the event recorder and any dates on the form would be 
equally applicable to the event reorder as to any other component 
required to be addressed during a periodic inspection.
    The final rule also retains the proposed provisions for maintaining 
records related to periodic inspections and maintenance instructions. 
Although the final rule does not specify how records of successful 
tests are to be maintained, FRA has no objection to keeping the records 
electronically,

[[Page 37925]]

provided the electronic ``record'' is the full and complete ``data 
verification result'' required by this section, the record is secure, 
the record is accessible to FRA for review and monitoring, and the 
record is made available upon request to FRA or any other governmental 
agent with the authority to request them. FRA's expectation is that 
electronic records will be made available immediately upon request.
    Although the Electronic Signatures in Global and National Commerce 
Act (Pub. L. 106-229, 114 Stat. 464, June 30, 2000) requires that 
regulated entities be allowed to keep records electronically, in 
appropriate circumstances, FRA believes that the tenor and language of 
this final rule make it unnecessary to discuss the specifics of whether 
or not the Electronic Signatures Act applies to the subject matter of 
this regulation because nothing in this rule is intended to circumvent 
the requirements of that act. With the exception of the ``maintenance 
instructions of the manufacturer, supplier, or owner'' of the event 
recorder (see proposed Sec.  229.25(e)), and any notations this final 
rule requires on the ``blue card'' (Form FRA F6180-49A), all other 
records required by this final rule may be kept electronically. 
Paragraph (e)(1) of this section requires that the maintenance 
instructions for the event recorder may be kept electronically, but 
must be available at the maintenance/repair point so they can be used 
by workers on the shop floor, at the point of testing and repair. 
Maintenance instructions printed from an electronically maintained 
master copy would satisfy this requirement. In addition, the applicable 
``blue card'' provisions are existing regulatory requirements that are 
not being amended by this rulemaking and are intended to establish 
whether the locomotive is ``equipped'' or not, in the field, without 
requiring reference or access to a data base at some other location.
    Section 229.27. The final rule retains the proposed amendment to 
the introductory text of this section and retains paragraph (d) of this 
section as proposed in the NPRM without change. Paragraph (d) addresses 
the annual maintenance requirements for microprocessor-based event 
recorders with a self-monitoring features. (Non-self-monitoring 
recorders require maintenance at quarterly intervals, under the 
requirements of Sec.  229.25). Paragraph (d) contains two potential 
triggers for requiring maintenance on such event recorders. A self-
monitoring microprocessor-based event recorder will require 
``maintenance'' in the sense of opening the box and making adjustments 
only if either or both of the following occur: (1) The event recorder 
displays an indication of a failure, or (2) the railroad downloads and 
reviews the data for the past 48 hours of the locomotive's use and 
finds that any required channels are not recording data representative 
of the actual operations of the locomotive during this time period.
    Essentially all modern event recorder systems are equipped with 
self-test circuitry that constantly compares data flowing in with the 
data being stored and that signals (typically with a red light) when 
there is a fault. In a sense, maintenance is simple: If the red light 
is off (and the unit is still receiving power), the unit is in good 
working order. The users and vendors of self-monitoring event recorders 
have discovered that, in common with many electronic devices, either 
the unit works or it does not. If it is working--if it is recording all 
the data it is required to record and if it is accurately storing the 
data sent by the sensors or other data collection points--no tweaking, 
lubricating, adjusting, or other traditional maintenance practice will 
make it work better or more accurately. If a self-monitoring event 
recorder is not working, that fact will be displayed, and the 
experience of the users and builders is that a circuit board, or other 
electronic component, will have to be exchanged.
    By the same token, the NTSB has recommended in its comments that 
the maintenance of locomotive event recorders should verify that the 
entire event recorder system--including the recorder, the memory 
module, the cabling, the transducers, and the sensors--is accurately 
recording what the locomotive has actually done. As noted above, the 
NTSB provided no data relating to the failure of sensors, transducers, 
or wiring that are not detected during the course of the currently 
required periodic maintenance of either the locomotive itself or the 
locomotive event recorder or during the self-test of more modern event 
recorders. Rather than impose a significant periodic inspection cost by 
specifically requiring the inspection of such components, FRA believes 
that the provisions related to the annual inspection will ensure the 
accuracy of the devices. To ensure that the recorder is indeed 
capturing data representative of the locomotive's actual operations, 
the final rule retains the proposed requirement that, sometime within 
30 days of each annual periodic inspection, the railroad download and 
review the data required by Sec.  229.135(b), as captured by the event 
recorder's crashworthy memory module. This download might be part of 
any other download a railroad might choose to perform, whether as a 
part of locomotive maintenance, employee monitoring, service planning, 
or whatever. The downloaded data must then be compared to the known 
operations of the locomotive over the past 48 hours and, if all 
required channels are recording and the required elements are 
representative of actual operations, the recorder--assuming always that 
the fault light is not on--will require no further maintenance or 
checking.
    FRA recognizes that certain data elements do not regularly recur 
and may not, in fact, have been seen for a long time. Such elements 
might include EOT emergency applications, EOT communications loss, EOT 
valve failure, and specific channels devoted to distributed power 
operations when such operations have not occurred to the locomotive 
within the past 48 hours. FRA has also eased the burden of specific 
``annual test dates'' by acknowledging that any time an event recorder 
is downloaded, reviewed for the relevant elements as required in Sec.  
229.135(b), and successfully passes that review, a new 368-day interval 
begins. The added flexibility provided by this section could mean that 
locomotives equipped with microprocessor-based event recorders need 
never visit a shop just to check the event recorder.
    The final rule also retains the proposed provisions for maintaining 
records related to annual inspections. Although the final rule does not 
specify how records of successful tests are to be maintained, FRA has 
no objection to keeping the records electronically, provided the 
electronic ``record'' is full and complete and contains all the 
information required by this section, the record is secure, the record 
is accessible to FRA for review and monitoring, and the record is made 
available upon request to FRA or any other governmental agent with the 
authority to request them. In addition, whatever medium is used to 
maintain the record, the record is to be kept at the location where the 
locomotive is maintained until a record of a subsequent successful test 
is filed.
    One commenter on the NPRM expressed concern as to whether railroads 
maintain maintenance and repair instructions at each shop for each type 
of event recorder on which they perform periodic maintenance. A 
commenter also questioned whether there was a need to include 
qualification standards for individuals downloading and analyzing event

[[Page 37926]]

recorder data. FRA is not aware of any instances where railroads do not 
have appropriate maintenance and repair manuals available for the event 
recorders they service. Members of the RSAC Working Group indicated 
that they have adequate access to maintenance and repair manuals for 
all types of event recorders. Furthermore, a person should not be 
signing the blue card indicating performance of event recorder 
maintenance if that individual is not able and qualified to perform the 
required tasks. Neither FRA nor the NTSB has found unqualified or 
improperly trained individuals performing event recorder downloads or 
analysis. Moreover, on December 12, 2004, AAR implemented a mandatory 
locomotive event recorder download standard applicable to all member 
railroads to minimize operational and maintenance incompatibilities. 
See AAR Manual of Standards and Recommended Practices, Section M, AAR 
Standard S-5512, ``Locomotive Event Recorder Download Standard'' 
(November 2004). The standard defines the physical and logical download 
interfaces, various download methods, and the required protocol to 
support serial download of event recorders. Consequently, FRA does not 
see a need, at this time, to impose strict Federal qualification 
standards on those individuals responsible for the maintenance and 
downloading of event recorders. FRA will continue to monitor this issue 
should the need for additional regulation become necessary.
    Section 229.135. Paragraph (a) retains the changes to this 
paragraph proposed in the NPRM. This paragraph modifies the existing 
provision by requiring the make and model of the event recorder to be 
entered on Form FRA F6180-49A (blue card). Some members of the Working 
Group, in written responses to the NPRM, continue to question the need 
to record this information on the blue card as there is no known 
instance where a problem was encountered downloading data or locating 
appropriate analysis software. These commenters assert that railroads 
and event recorder manufacturers are well aware of the type of event 
recorder installed on a locomotive and which software to employ for 
downloads. However, these commenters agree that the cost of this 
requirement is de minimus. This item was requested by the NTSB, and 
based on the NTSB's stated need for the information, FRA has decided to 
retain the provision in this final rule. FRA continues to believe that 
there is very little burden placed on the railroads by requiring the 
information to be recorded because the presence of any such recorder is 
already required under the existing regulation and the benefit to an 
accident investigator may be considerable.
    Several commenters suggested the need to expand the applicability 
of the event recorder requirements. These commenters recommended that 
any locomotive operating over a public or private grade crossing be 
equipped with an event recorder regardless of its operating speed. One 
commenter believed the requirements for event recorders should be 
applied to any remote controlled locomotive. The primary purpose of 
this rulemaking proceeding is to increase the survivability of 
locomotive event recorders and to ensure that necessary information is 
being captured by the devices for use in accident investigations. FRA 
did not intend to expand, nor has it seen a need to expand, the scope 
of what locomotives were covered by the regulations. To expand the 
applicability of these regulations as suggested would add a significant 
and unjustified cost to the industry. FRA previously determined that 
lower speed operations (i.e., those under 30 mph) do not result in 
complex accidents requiring the analysis of event recorder data. FRA is 
not aware of any data or information that contradicts this view. In 
addition, there are currently no remote controlled locomotives being 
operated at speeds exceeding 30 mph nor is such operation being 
considered in the immediate future by the industry. FRA will continue 
to monitor these types of operations and will take appropriate action 
should they change to include higher speed operation. Moreover, the on-
board equipment on most remote controlled locomotives capture and 
retain inputs from the remote unit. Consequently, FRA does not see a 
need at this time to expand the scope of the event recorder 
requirements to either locomotives operating under 30 mph or to remote 
controlled locomotives.
    In its comments to the NPRM, NTSB sought clarification regarding 
the regulation's applicability to manned helper locomotives operating 
faster than 30 mph. The rule's application to these types of 
locomotives was not specifically considered when the NPRM was 
originally issued. After discussing the matter with the Working Group, 
the members of the Working Group agreed that to include these types of 
locomotives would not be a significant, if any, cost to the industry 
because most helper locomotives are operated by Class I railroads and 
are already equipped with event recorders. The Working Group indicated 
its acceptance of requiring event recorders on such locomotives 
provided that it was limited to the lead manned helper locomotive 
because in most instances the leading manned locomotive in a helper 
locomotive consist is the locomotive that is equipped with an event 
recorder. FRA agrees with the recommendation of the Working Group and 
the RSAC on this issue and believes that the information retained on 
these units could prove valuable in accident investigations where 
helper locomotives are present. Consequently, the final rule slightly 
amends the proposed applicability provisions contained in paragraphs 
(b)(1) and (b)(3) to include a specific reference to lead manned helper 
locomotives.
    In its comments on the NPRM, BLET asserted that any controlling 
locomotive operated in positive train control (PTC) territory should be 
required to be equipped with a crashworthy event recorder capable of 
capturing all of the data elements proposed in this regulation. 
Although FRA understands BLET's position, FRA does not believe that 
such a requirement is necessary at this time. FRA believes that such a 
requirements might inhibit the current and future testing or 
implementation of PTC type systems. In addition, such a provision would 
likely have a disparate impact on smaller railroads that share trackage 
with larger operations. Furthermore, virtually all of the PTC systems 
being developed already include data capturing devices and hardware. 
Consequently, FRA believes, and the RSAC recommendation concurs, that 
the issues related to the type of data to be recorded and the method by 
which the data is captured on PTC systems is an issue better addressed 
in the product safety plans required in subpart H of the recently 
issued final rule related to Standards for Development and Use of 
Processor-Based Signal and Train Control Systems (PTC final rule). See 
70 FR 11051 (March 7, 2005).
    Paragraph (b) essentially retains the proposed requirements for 
when a new or remanufactured locomotive must be equipped with a 
certified crashworthy memory modules and retains the proposed 
information that must be captured and stored by both new and existing 
event recorders. The provisions contained in this paragraph have been 
slightly modified to include certain clarifications related to 
identifying covered locomotives and to include specific outside dates 
when certain requirements become applicable. These modifications are 
discussed in detail below.

[[Page 37927]]

    In order to avoid confusion when locomotives are re-sold after the 
original purchase from the manufacturer (i.e., sold from one user to 
another), the final rule specifies that the equipment required on a 
specific locomotive is determined by the date it was originally 
manufactured. The introductory language in this paragraph makes clear 
that the recorded data be at least as accurate as the data required to 
be displayed to the engineer. Further, the final rule retains the 
proposed language requiring the crashworthy event recorder memory 
module to be mounted for its maximum protection, stating that a module 
mounted behind the collision posts and above the platform is deemed to 
be appropriately mounted.
    Several members of the Working Group continued to emphasize that 
the language contained in the proposed provision and retained in this 
final rule regarding the placement of the crashworthy event recorder 
memory module may be interpreted to limit the placement of the module. 
These parties assert that the placement of the module in an electrical 
cabinet may not necessarily be below the top of the collision posts and 
yet such placement would provide adequate protection and would actually 
provide superior crush resistance, be more fire resistant, and be a 
longer distance from the point of impact. Similarly, a module located 
in the nose of the locomotive may not be above the platform level and 
yet it would be sufficiently protected. The illustration retained in 
this final rule is intended to provide one example of a module properly 
mounted for its maximum protection. FRA continues to agree that there 
may be other mounting options that provide at least equal protection, 
and has retained the proposed language in the final rule text making 
this point very clear.
    One commenter to the NPRM recommended that FRA should require 
railroads to utilize global positioning satellite (GPS) receivers to 
calculate and provide the time, location, speed, and direction elements 
to the event recorders. This commenter states that such technology 
would provide an absolute time standard. This commenter provided no 
indication as to how this would be accomplished and did not provide any 
cost estimates regarding the implementation of the suggestion. Neither 
the Working Group or the full RSAC believed there was a need to specify 
a method by which the required data is derived or obtained. FRA agrees 
with the recommendation of these parties. FRA believes that any such 
requirement would add a significant cost to the final rule while adding 
an unknown benefit, if any.
    Certain provisions in paragraph (b) have been slightly modified to 
include a placed-in-service date after which the equipment must be 
properly equipped. In the NPRM, the requirements relating to when a new 
locomotive is required to be equipped with a crashworthy event recorder 
memory module were based solely on the date that the locomotive was 
originally ordered. See 69 FR 39792. In the preamble to the NPRM, FRA 
voiced its concern that no outside parameter has been included in the 
proposal for newly manufactured locomotives. See 69 FR 39782. Thus, as 
proposed the regulation would have allowed any locomotive ordered prior 
to the one-year period not to be required to be equipped with a 
crashworthy event recorder even if not delivered and placed in-service 
until years later. FRA stated that it believed there should be a placed 
in-service date included in the final rule after which any new 
locomotive must be properly equipped. FRA sought comments and 
suggestions from interested parties as to an appropriate date to 
include in the final rule for ensuring that any applicable locomotive 
placed in service after that date is properly equipped with a 
crashworthy memory module.
    Members of the Working Group, including AAR, APTA, and its member 
railroads, discussed this issued at length. These parties noted the 
need to ensure that any date inserted into the final rule must allow 
for existing contracts and contracts that are put into place within one 
year after the effective date of the final rule to be completed in 
order to prevent additional cost burdens on these contracts. These 
parties suggested that a period of four years after the effective date 
of the final rule would provide the necessary assurances. Therefore, 
the Working Group recommended a four-year period to the full RSAC in 
response to FRA's request. In turn, the RSAC included the four year 
period in its recommendation to FRA. FRA believes that the recommended 
four-year placed in-service date is reasonable and consistent with 
other federal regulations. Consequently, FRA has accepted the 
recommendation and has modified subparagraphs (b)(3) and (b)(4) to 
require that any identified locomotive ordered one year after the 
effective date of the final rule or placed in-service four years after 
the effective date of the rule must be equipped with a crashworthy 
event recorder memory module.
    Subparagraph (b)(1) contains the equipment requirements for current 
event recorders that use a recording medium other than magnetic tape. 
This section retains the intent of the proposal but the language has 
been slightly modified in this final rule in order to make it 
consistent with the provisions related to when new locomotives are 
required to be equipped with crashworthy event recorder memory modules. 
The revised language makes clear that any locomotive ordered within one 
year of the effective date of the final rule and placed in service 
within four years of the effective date of the rule may continue to 
utilize currently manufactured event recorders that use a recording 
medium other than magnetic tape. At the initial meetings with the RSAC 
Working Group, FRA made clear that this rule was not intended to 
involve the retrofitting of existing locomotives with event recorders 
containing crashworthy memory modules. FRA continues to believe that, 
except for the need to replace event recorders using magnetic tape to 
record information, any significant retrofit requirement of existing 
locomotive event recorders cannot be justified from a cost/benefit 
perspective. In addition to the cost of the crashworthy event recorder, 
it would be cost prohibitive to retrofit many existing locomotives with 
the ability to monitor many of the data elements described in this 
paragraph.
    Notwithstanding the above discussion, FRA believes that the 
industry and the marketplace will dictate that as older style event 
recorders fail they will be replaced with event recorders containing 
crashworthy memory modules. In addition, the operational benefits 
derived from the newer crashworthy event recorders will likely drive 
the railroads' decisions when acquiring replacement event recorders for 
existing locomotives. Moreover, as the newer crashworthy event 
recorders become more prevalent and are manufactured in greater 
numbers, the costs of the recorders will likely be more comparable to 
currently produced event recorders and thus, many railroads may find it 
economically advantageous to purchase the new crashworthy event 
recorders as replacements for the older model event recorders on 
existing locomotives. With these thoughts in mind, FRA sought comments 
or information from interested parties as to whether there is some 
future date, that would impose little or no cost burden to the 
industry, after which any event recorder that is replaced on an 
existing locomotive should be replaced with an event recorder 
containing a crashworthy

[[Page 37928]]

memory module described in Appendix D of this rule. See 69 FR 39783.
    FRA received a limited number of comments in response to this 
request. AAR asserted that there is no need to establish an outside 
date on replacement event recorders as the marketplace and economics 
will drive the railroad's decisions. BLE suggested that any replacement 
event recorder eighteen months after the effective date of the final 
rule should be outfitted with a crashworthy memory module. Several 
members of the Working Group noted that any date considered must allow 
railroads to use up their existing stock of event recorders that are 
not equipped with crashworthy memory modules. AAR, APTA and their 
member railroads suggested a date of January 1, 2010 as the date after 
which any replacement event recorder acquired must be equipped with a 
crashworthy memory module pursuant to Appendix D of this final rule. 
These parties claim that a provision drafted in such a manner would 
allow railroads to continue to acquire solid state event recorders for 
the immediate future and would allow railroads to deplete their in-
stock event recorders without imposing any significant financial burden 
on the industry. The full RSAC included this date in its recommendation 
to FRA. After reviewing the recommendation, FRA agrees that a cut-off 
date of January 1, 2010 for the purchase of newly manufactured event 
recorders without crashworthy memory modules is reasonable. FRA notes 
that this time frame is consistent with the elimination and replacement 
of event recorders utilizing magnetic tape as their recording medium 
discussed in subparagraph (b)(2) below. Consequently, FRA has 
incorporated the recommendation in a new paragraph (b)(6) by requiring 
that any event recorder originally manufactured after January 1, 2010, 
that is installed on a locomotive identified in this paragraph shall be 
an event recorder with a crashworthy memory module meeting the 
requirements of Appendix D of this final rule.
    FRA wishes to make clear that the event recorder currently 
installed on or any replacement event recorder subsequently installed 
on a locomotive identified in this paragraph (b)(1) need only be 
capable of recording the data elements specifically enumerated in this 
subparagraph. FRA continues to believe that it would be cost 
prohibitive, and in some cases impossible, to reconfigure existing 
locomotives with the ability to monitor and record many of the data 
elements required for newly manufactured locomotives. Consequently, FRA 
is retaining the proposed provision in this final rule that requires 
any covered locomotive ordered prior to one year after and placed in 
service prior to four years after the effective date of the final rule 
to be equipped with an event recorder capable of recording at least the 
nine data elements specifically identified in this subparagraph.
    Subparagraph (b)(2) contains a ``sunset'' date for current event 
recorders using magnetic tape as their recording medium. In the NPRM, 
FRA proposed elimination of these types of event recorders within six 
years from the effective date of the final rule. See 69 FR 39783 and 
39792. Due to significant industry efforts, AAR, APTA and their member 
railroads informed FRA that the proposed timetable for eliminating 
magnetic tape-based event recorders could be shortened to four years. 
These parties note that their replacement efforts are progressing 
faster than they originally estimated. Therefore, FRA is pleased to 
note that the date by which event recorders utilizing magnetic tape as 
its recording medium must be replaced has been reduced to just four 
years from the effective date of the final rule. Consequently, 
subparagraph (b)(2) has been slightly modified to reflect this 
modification to the timetable for replacement of event recorders with 
magnetic tape as their recording medium.
    FRA believes eliminating the use of magnetic tape-based event 
recorders is necessary because it is essentially impossible to make a 
crashworthy event recorder memory module that uses magnetic tape. The 
final rule requires that, four years after the effective date of a 
final rule, all such recorders must be replaced with event recorders 
using ``hardened'' memory modules, but recording the same elements as 
they do now. The replacement recorders would not have to meet the 
crashworthy performance criteria contained in Appendix D to this final 
rule but would need to be solid state technology. As discussed in the 
preamble to the NPRM, the principal supplier of magnetic tape event 
recorders has ceased manufacturing them and has recently discontinued 
supplying replacement recording media. In addition, represent