[Federal Register Volume 62, Number 36 (Monday, February 24, 1997)]
[Proposed Rules]
[Pages 8330-8359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4489]



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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 223 and 239



Passenger Train Emergency Preparedness; Proposed Rule

  Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / 
Proposed Rules  

[[Page 8330]]



DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 223 and 239

[FRA Docket No. PTEP-1, Notice No. 1]
RIN 2130-AA96


Passenger Train Emergency Preparedness

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

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: Pursuant to section 215 of the Federal Railroad Safety 
Authorization Act of 1994, FRA proposes a rule to require minimum 
Federal safety standards for the preparation, adoption, and 
implementation of emergency preparedness plans by railroads connected 
with the operation of passenger trains, including freight railroads 
hosting the operations of rail passenger service. The proposed rule 
also requires each affected railroad to instruct its employees on the 
plan's provisions. Elements of this emergency preparedness plan would 
include communication, employee training and qualification, joint 
operations, tunnel safety, liaison with emergency responders, on-board 
emergency equipment, and passenger safety information. The plan adopted 
by each affected railroad would be subject to formal review and 
approval by FRA.
    This proposal for emergency preparedness regulations, which 
formalizes a planning requirement and identifies certain mandatory 
elements, is the second phase in a four-phase process that began in 
1994. In the first phase, FRA encouraged railroads to examine their 
programs to determine what improvements could be made, while in the 
third phase, FRA will review the railroad plans to determine if all 
emergency preparedness issues have been adequately addressed within the 
varying contexts of railroad operations. In the fourth phase, FRA will 
review the implementation and effectiveness of the proposed standards 
and related voluntary developments, and will address the need for 
further rulemaking activity.
    The proposed rule does not apply to tourist and historic railroad 
operators. However, after appropriate consultation with the excursion 
railroad associations to determine appropriate applicability in light 
of financial, operational, or other factors unique to such operations, 
emergency preparedness requirements for these operations may be 
prescribed by FRA that are different from those affecting other types 
of passenger operations.

DATES: (1) Written comments: Written comments must be received on or 
before April 25, 1997. Comments received after that date will be 
considered by FRA and the Passenger Train Emergency Preparedness 
Working Group in preparing the final rule to the extent possible 
without incurring additional expense or delay. The docket will remain 
open until the Working Group proceedings are concluded. Requests for 
formal extension of the comment period must be made by April 10, 1997.
    (2) Public hearings: FRA intends to hold two public hearings, and 
the dates of these hearings will be published in a forthcoming notice 
in the Federal Register. Anyone who desires to make an oral statement 
at either of the hearings must notify the Docket Clerk by telephone 
(202-632-3198) or mail, and must submit three copies of the oral 
statement that he or she intends to make at the hearing. The dates by 
which the Docket Clerk must be notified about the oral statement and 
receive the three copies of this statement will be set forth in the 
notice announcing the public hearings.

ADDRESSES: Written Comments: Written comments should identify the 
docket number and must be submitted in triplicate to the Docket Clerk, 
Office of Chief Counsel, Federal Railroad Administration, 400 Seventh 
Street, S.W., Washington, D.C. 20590. Persons desiring to be notified 
that their comments have been received by FRA should submit a stamped, 
self-addressed postcard with their comments. The Docket Clerk will 
indicate on the postcard the date on which the comments were received 
and will return the card to the addressee. Written comments will be 
available for examination, both before and after the closing date for 
written comments, during regular business hours on the Seventh floor of 
1120 Vermont Avenue, N.W. in Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Mr. Edward R. English, Director, 
Office of Safety Assurance and Compliance, FRA, 400 Seventh Street, 
S.W., Washington, D.C. 20590 (telephone number: 202-632-3349), or David 
H. Kasminoff, Esq., Trial Attorney, Office of Chief Counsel, FRA, 400 
Seventh Street, S.W., Washington, D.C. 20590 (telephone: 202-632-3191).

SUPPLEMENTARY INFORMATION:

Request for Comments

    In accordance with Executive Order 12866, FRA is allowing 60 days 
for comments. FRA believes that a 60-day comment period is necessary 
for parties with interests that were not represented by the working 
group on passenger train emergency preparedness that has been 
established by the agency under 49 U.S.C. 20133.

Background

    The overall safety record of conventional intercity and commuter 
passenger train operations in the United States has been exemplary. 
However, accidents continue to occur, often as a result of factors 
beyond the control of the passenger railroad. Further, the rail 
passenger operating environment in the United States is rapidly 
changing--technology is advancing, equipment is being designed for 
ever-higher speeds, and many potential new operators of passenger 
equipment are appearing. With this more complex operating environment, 
FRA must become more proactive to ensure that operators of passenger 
train service, as well as freight railroads hosting passenger 
operations, engage in careful, advance planning to minimize the 
consequences of emergencies that could occur. Even minor incidents 
could easily develop into life-threatening events if they are not 
addressed in a timely and effective manner.
    In recent years, passenger train accidents, such as the tragic 
``Sunset Limited'' passenger train derailment near Mobile, Alabama in 
September 1993, have demonstrated the need to improve the way railroads 
respond in emergency situations. On September 22, 1993, at about 2:45 
a.m., barges that were being pushed by the towboat Mauvilla in dense 
fog struck and displaced the Big Bayou Canot railroad bridge near 
Mobile, Alabama. At about 2:53 a.m., National Railroad Passenger 
Corporation (Amtrak) train no. 2, the Sunset Limited, en route from Los 
Angeles, California to Miami, Florida with 220 persons on board, struck 
the displaced bridge and derailed. The three locomotive units, the 
baggage and dormitory cars, and two of the six passenger cars fell into 
the water. The fuel tanks on the locomotive units ruptured, and the 
locomotive units and the baggage and dormitory cars caught fire. Forty-
two passengers and five crewmembers were killed, and 103 passengers 
were injured. The towboat's four crewmembers were not injured.
    In a report on the accident released on September 19, 1994, the 
National Transportation Safety Board (NTSB) determined that several 
circumstances hampered emergency response efforts. NTSB Railroad-Marine 
Accident Report 94/01. In its assessment of emergency

[[Page 8331]]

response at the accident site, the NTSB noted that the location of the 
accident was remote (accessible only by rail, water, or air), fog in 
the area was dense (requiring the use of radar to navigate boats), 
limited modes of transportation were available for bringing in 
personnel and equipment, and the magnitude of the accident was great. 
Nevertheless, the NTSB concluded that, following the delay while 
emergency responders identified the location of the accident, emergency 
response activities were efficient and effective. The report did find, 
however, that Amtrak did not have an effective system in place to 
apprise passengers of train safety features, passengers were at a 
disadvantage during evacuation due to the absence of portable lighting 
on the passenger cars, and emergency responders were at a disadvantage 
because they were unable to obtain an adequate passenger and crew list 
from Amtrak until the next day. The NTSB also noted that had the Mobile 
County Emergency Management Agency held drills to simulate a train 
accident, the incident commander may have known about Amtrak's 
procedure for accounting for passengers, and CSX Transportation, Inc., 
the owner of the bridge, may have had the correct telephone number to 
contact the U.S. Coast Guard.
    Considerable effort has focused on how to mitigate casualties after 
a train accident occurs. In this regard, even before the occurrence of 
the tragic accident near Mobile, FRA had tasked DOT's Volpe National 
Transportation Systems Center (TSC), in Cambridge, Massachusetts, to 
perform research and to recommend emergency preparedness guidelines for 
passenger train operators. The results were published at the end of 
1993 as a publication entitled ``RECOMMENDED EMERGENCY PREPAREDNESS 
GUIDELINES FOR PASSENGER TRAINS'' (Volpe Report), which is available to 
the public through the National Technical Information Service, 
Springfield, VA 22161 (DOT/FRA/ORD-93-24--DOT-VNTSC-FRA-93-23). The 
publication references safety recommendations of the NTSB, as well as 
many other publications on the subject of emergency preparedness, and 
contains recommended guidelines designed to assist passenger train 
operating systems and emergency response organization management in 
evaluating and modifying or supplementing their emergency response 
plans. A copy of the Volpe Report has been placed in the public docket 
for this rulemaking.
    The Volpe Report recommendations address guidelines relating to 
emergency plans, procedures, and training. In addition, guidelines for 
passenger train and facility features intended to shorten emergency 
response time, improve the effectiveness of evacuating passengers, and 
minimize the effects of an emergency are presented. The publication 
also lists inter-organizational emergency protocols, which include 
those of fire departments, emergency medical services (EMS), police 
departments, public utilities, hospitals, and local, State, regional, 
and Federal governments.
    In an effort to be proactive after the accident near Mobile, FRA 
mailed the Volpe Report to all intercity passenger and commuter 
railroads, freight railroads, the United Transportation Union, and the 
Brotherhood of Locomotive Engineers in March 1994 for their information 
and guidance. Concurrent with this mailing, FRA invited the railroads 
to attend a roundtable meeting in Washington, D.C., on June 9, 1994, to 
discuss the emergency preparedness issues addressed in the publication. 
The 23-member roundtable discussion was comprised of representatives 
from the following organizations:

Amtrak,
FRA,
Long Island Rail Road (LIRR),
MTA Metro-North Railroad (METRO-NORTH),
Northeast Illinois Regional Commuter Railroad Corporation (METRA),
Peninsula Corridor Joint Powers Board (CALTRAIN),
Port Authority Trans-Hudson Corporation (PATH),
Southern California Regional Rail Authority (METROLINK),
Southeastern Pennsylvania Transportation Authority (SEPTA),
Tri-County Commuter Rail Authority (TRI-RAIL),
TSC, and
Virginia Railway Express (VRE).
    During the meeting, FRA agreed to assist the passenger railroads in 
establishing improved working relationships with their host freight 
railroads. FRA also promised to help the passenger railroads in their 
emergency response efforts in larger metropolitan areas by contacting 
emergency response agencies and eliciting more cooperation between 
them. In addition, FRA stated that it would conduct field visits to 
several passenger railroads to study their equipment and their 
emergency response and training programs.
    At that same meeting, the passenger railroads agreed to provide 
stronger supervisory oversight of their emergency response and training 
programs, and stated that they would offer additional, structured 
``hands-on'' training to their train crews concerning the removal of 
emergency windows and passenger evacuation. They also agreed to develop 
programs for recurring passenger car inspections, emphasizing checking 
of emergency equipment such as windows, tools, and fire extinguishers. 
Further, they agreed to improve their methods of apprising passengers 
of emergency information, to include seat drops, placards inside each 
car, and messages in on-board magazines. While FRA is encouraged that 
passenger railroads have already begun to incorporate the 
recommendations of the Volpe Report into their own emergency 
preparedness plans, more progress by the entire industry is needed.
    As a result of concerns raised about the safety of the operation of 
rail passenger service, Congress enacted section 215 of the Federal 
Railroad Safety Authorization Act of 1994, Public Law No. 103-440, 108 
Stat. 4619, 4623-4624 (November 2, 1994), entitled ``Passenger Car 
Safety Standards.'' Section 215, as now codified at 49 U.S.C. 20133, 
reads as follows:

Sec. 20133. Passenger cars.

    (a) MINIMUM STANDARDS.--The Secretary of Transportation shall 
prescribe regulations establishing minimum standards for the safety 
of cars used by railroad carriers to transport passengers. Before 
prescribing such regulations, the Secretary shall consider--
    (1) the crashworthiness of the cars;
    (2) interior features (including luggage restraints, seat belts, 
and exposed surfaces) that may affect passenger safety;
    (3) maintenance and inspection of the cars;
    (4) emergency response procedures and equipment; and
    (5) any operating rules and conditions that directly affect 
safety not otherwise governed by regulations.
    The Secretary may make applicable some or all of the standards 
established under this subsection to cars existing at the time the 
regulations are prescribed, as well as to new cars, and the 
Secretary shall explain in the rulemaking document the basis for 
making such standards applicable to existing cars.
    (b) INITIAL AND FINAL REGULATIONS.--(1) The Secretary shall 
prescribe initial regulations under subsection (a) within 3 years 
after the date of enactment of the Federal Railroad Safety 
Authorization Act of 1994. The initial regulations may exempt 
equipment used by tourist, historic, scenic, and excursion railroad 
carriers to transport passengers.
    (2) The Secretary shall prescribe final regulations under 
subsection (a) within 5 years after such date of enactment.
    (c) PERSONNEL.--The Secretary may establish within the 
Department of Transportation 2 additional full-time equivalent 
positions beyond the number

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permitted under existing law to assist with the drafting, 
prescribing, and implementation of regulations under this section.
    (d) CONSULTATION.--In prescribing regulations, issuing orders, 
and making amendments under this section, the Secretary may consult 
with Amtrak, public authorities operating railroad passenger 
service, other railroad carriers transporting passengers, 
organizations of passengers, and organizations of employees. A 
consultation is not subject to the Federal Advisory Committee Act (5 
U.S.C. App.), but minutes of the consultation shall be placed in the 
public docket of the regulatory proceeding.

    The Secretary of Transportation has delegated these rulemaking 
responsibilities to the Federal Railroad Administrator. 49 CFR 1.49(m).
    FRA is committed to the maximum feasible use of collaborative 
processes in the development of safety regulations. Consistent with the 
intent of Congress that FRA consult with the railroad industry, FRA 
invited various organizations to participate in a working group 
(Working Group) to focus on the issues related to passenger train 
emergency preparedness and build the framework for the development of a 
Notice of Proposed Rulemaking (NPRM) and, ultimately, a final rule. FRA 
held its first Working Group meeting on August 8, 1995. The 33-member 
Working Group was comprised of representatives from the following 
organizations:

American Public Transit Association (APTA),
Amtrak,
Association of American Railroads (AAR),
Brotherhood of Locomotive Engineers (BLE),
CALTRAIN,
FRA,
LIRR,
Maryland Mass Transit Administration (MARC),
Massachusetts Bay Transportation Authority (MBTA),
METRA,
METRO-NORTH,
METROLINK,
National Association of Railroad Passengers (NARP),
NTSB,
New Jersey Transit Rail Operations, Inc. (NJTR),
Northern Indiana Commuter Transportation District (NICTD),
PATH,
Safe Travel America (STA),
SEPTA,
TRI-RAIL,
TSC,
United Transportation Union (UTU), and
VRE.

    Regulations covering rail passenger equipment safety standards--
inspection, testing, and maintenance of passenger equipment; equipment 
design and performance criteria related to passenger and crew 
survivability in the event of a train accident; and the safe operation 
of passenger train service--supplementing existing railroad safety 
standards, will be covered by a separate rulemaking and are being 
addressed by a separate working group. Persons wishing to receive more 
information regarding this other rulemaking should refer to FRA Docket 
No. PCSS-1 and contact either Mr. Thomas Peacock, Staff Director, 
Motive Power and Equipment Division, Office of Safety Assurance and 
Compliance, RRS-14, FRA, 400 Seventh Street, S.W., Washington, D.C. 
20590 (telephone 202-632-3338), or Daniel L. Alpert, Esq., Trial 
Attorney, Office of Chief Counsel, FRA, 400 Seventh Street, S.W., 
Washington, D.C. 20590 (telephone 202-632-3186).
    The proposed rule was developed by FRA in consultation with the 
Working Group. The proposal incorporates comments submitted by the 
Working Group in response to a preliminary draft of the proposed rule 
text. FRA expects that the Working Group will help FRA develop the 
final rule based on a consensus process, with facts and analysis 
flowing from both the Working Group's deliberations and information 
submitted by commenters on this NPRM. In accordance with 49 U.S.C. 
20133(d), the evolving positions of the Working Group members--as 
reflected in the minutes of the group meetings and associated 
documentation, together with data provided by the membership during 
their deliberations--will be placed in the public docket of this 
rulemaking. All comments submitted in response to this NPRM will be 
provided to the Working Group for their consideration in preparation of 
the final rule.
    FRA convened the first meeting of the Working Group on August 8, 
1995, by announcing that the purpose of the meeting was to provide an 
opportunity to collectively focus on evaluating issues related to 
passenger train emergency preparedness, as well as to develop and 
formulate plans and programs that would culminate in a final rule. The 
discussion focused on the key issues of emergency notification, 
training of railroad employees and emergency responders, suitability of 
on-board emergency equipment, and the Volpe Report. While FRA did not 
limit the Working Group's discussions, the agency requested that, at a 
minimum, the following topics and issues should be considered and 
addressed during the consultation process for possible inclusion in the 
rule:
     Types of safety equipment that should be required in each 
passenger car (e.g., fire extinguishers, saws, hammers, and 
flashlights) including where the equipment should be located, who 
should have access to it, and how to avoid pilferage;
     Training for railroad employees on the use of on-board 
emergency equipment;
     Frequency of inspection of on-board emergency equipment;
     Effective marking of emergency windows on each passenger 
car;
     Informing passengers about safety procedures and emergency 
equipment, including locations of exit doors and windows;
     Demonstrations by on-board crewmembers of emergency 
procedures and exits after major station stops;
     Communication capabilities of on-board crewmembers;
     Requiring on-board crewmembers to be trained to provide 
cardio-pulmonary resuscitation (CPR) and/or first aid treatment;
     Ensuring that on-board crewmembers have contact telephone 
numbers for control centers and local authorities;
     Requiring preparation of an emergency preparedness plan, 
including periodic exercises to test employee knowledge of proper 
procedures involving passenger illness or injury, stalled trains, 
evacuation procedures, derailments, collisions, severe weather, and 
security threats;
     Coordinating applicable portions of emergency preparedness 
plans between passenger railroads and freight railroads that host these 
passenger operations;
     Extent to which safety action plans should be regulated in 
terms of content or format, and whether such plans should be subject to 
FRA review and approval;
     Training for auxiliary individuals participating in 
passenger emergencies (e.g., control center employees, on-board service 
staff, and appropriate supervisory and maintenance personnel);
     Training for emergency responders along passenger corridor 
routes;
     Accounting for the unique emergency preparedness concerns 
raised by passenger operations through tunnels, on elevated structures, 
and in electrified territory;
     Level of training specificity required for each category 
of employee;
     Requiring passenger railroads to develop and update inter-
organizational emergency protocols with local communities, in order to 
augment safety action plans;

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     Providing emergency responders with accurate passenger 
counts; and
     Emergency lighting in passenger cars (e.g., floor strip 
lighting, flood lighting, and emergency exit lighting), including 
standards for testing and reliability.
    FRA deliberated at length with members of the Working Group about 
what the proposed rule would demand of affected railroads, in order to 
achieve the goal of optimizing their level of preparedness when faced 
with passenger train emergencies. The consensus was that the final rule 
needed to be flexible in its requirements to allow each railroad to 
address the unique characteristics of its individual operation. The 
Working Group recommended that FRA require each affected railroad to 
prepare a formal emergency preparedness plan covering broad elements, 
such as: employee and emergency responder training; on-board crewmember 
responsibilities; communication between the train crew and the control 
center, and between the control center and the emergency responders; 
delineation of passenger railroad and freight railroad responsibilities 
in cases of joint operations; and operations in tunnels or over 
elevated structures. However, the group urged FRA to afford railroads 
considerable latitude to design and administer emergency preparedness 
plans that best address each railroad's specific safety issues and 
concerns, with each plan then subject to review and approval by FRA.
    FRA incorporated the Working Group's recommendations into a draft 
NPRM, and mailed the draft to the group on December 14, 1995, along 
with a copy of the minutes of the first meeting of the Working Group. 
Copies of both documents, and other relevant enclosures, have been 
placed in the public docket for this rulemaking. The 34-member Working 
Group held its second meeting on February 6-7, 1996, and was comprised 
of representatives from the same organizations in attendance at the 
first Working Group meeting. The Working Group reviewed the draft and 
presented its comments, and a copy of the minutes of the second meeting 
of the group has also been included in the rulemaking docket. The 
Working Group's comments were then incorporated into this NPRM. Through 
subsequent communication with the Working Group, additional specificity 
has been incorporated into this proposal.
    While FRA has focused on crafting a rule containing comprehensive 
requirements in connection with railroads adopting, implementing, and 
complying with their emergency preparedness plans, many details remain 
unresolved concerning the enforcement obligations that FRA will impose 
in the final rule. Among the broad range of possibilities, the final 
rule could impose a ``reasonable care'' standard and focus on achieving 
substantial compliance, with an emphasis on determining whether each 
railroad has demonstrated a general effort to fulfill each of the 
elements of its emergency preparedness plan. Under this approach, for 
example, FRA would verify whether a railroad has established a training 
program for its employees on the applicable provisions of the emergency 
preparedness plan, and could impose a civil penalty on a railroad for 
failing to comply with this basic element of emergency preparedness. 
However, if FRA concluded that the railroad had properly adopted a 
training program, but during the occurrence of an actual emergency 
several employees failed (under the stress of the situation) to fulfill 
all of their responsibilities under the emergency preparedness plan, 
FRA would not penalize the railroad. Also, if a railroad failed to 
designate an employee to maintain a current list of emergency telephone 
numbers, for use by control center personnel to notify outside 
emergency responders, adjacent rail modes of transportation, and 
appropriate railroad officials that a passenger train emergency has 
occurred, FRA could clearly penalize the railroad for this omission. 
However, if a railroad's plan properly provided for the maintenance of 
the list of emergency telephone numbers, but one telephone number on a 
long list of accurate numbers was found by FRA to be out of date, and 
thus incorrect, the railroad would not face the imposition of a civil 
penalty.
    As an alternative, FRA could maintain strict oversight by requiring 
compliance with every individual element of the emergency preparedness 
plan, and impose a civil penalty in every instance in which a railroad 
fails to achieve compliance. Accordingly, under this approach, a 
railroad could be penalized for failing to constantly update its list 
of emergency telephone numbers, neglecting to distribute applicable 
portions of its emergency preparedness plan to all on-line emergency 
responders, or operating a train with an incorrect type of on-board 
emergency equipment. Rather than stress the concept of determining the 
overall level of emergency preparedness achieved by a railroad before 
the emergency occurs, this enforcement philosophy would specifically 
focus on whether the railroad in fact complied with all of the written 
emergency plan procedures for implementing each plan element. FRA 
invites commenters to address the questions of what compliance 
obligations should exist in the final rule, in the context of requiring 
railroads to adopt and implement procedures for achieving emergency 
preparedness, and what enforcement policy should be exercised by the 
agency regarding those obligations. Commenters are also asked to review 
the language of the section-by-section analysis and rule text of the 
proposed rule and to offer suggestions on whether FRA's expectations 
for compliance with the emergency preparedness plan elements are too 
rigid, or not strict enough.
    In drafting the final rule, FRA also expects to incorporate all 
relevant information derived from the investigation of the accident 
involving Amtrak train no. 1, the ``Sunset Limited,'' which occurred in 
Hyder, Arizona on October 9, 1995. In that accident, the initial 
notification was made by the Amtrak locomotive engineer to the Southern 
Pacific Transportation Company (SP) train dispatcher's office in 
Denver, Colorado, which then notified the appropriate local emergency 
response agencies. The SP yardmaster in Phoenix Yard also dialed 911 
after hearing the engineer's radio transmissions to the train 
dispatcher.
    While the local emergency responders stated that the accident was 
handled well by all parties involved, the responders noted that they 
were hampered in reaching the accident site by extremely rough terrain, 
initially negotiable only by four-wheel drive vehicles until graders 
and earth movers created a trail for conventional vehicles. The 
responders were somewhat confused by being provided with only a 
milepost location instead of a more familiar identifier. The responders 
were also frustrated by the lack of an accurate passenger count, but 
Amtrak has stated that once it has satellite cellular telephone 
capabilities train conductors will report passenger counts to a central 
telephone number after leaving each station. In addition, the 
responders indicated that, although the emergency lighting did not 
function on the overturned passenger cars, passengers were able to 
disembark through the car doors and emergency windows.
    FRA also expects to include requirements in the final rule relating 
to emergency egress from passenger trains, based upon information 
obtained from the investigations of the two recent train accidents in 
New Jersey and Maryland.

[[Page 8334]]

In the first accident, a near-head-on collision occurred on February 9, 
1996 between NJTR trains 1254 and 1107 at milepost 2.8, on the 
borderline of Secaucus and Jersey City, New Jersey. Of the 331 
passengers and crew on both trains, two crewmembers and one passenger 
were fatally injured, and an additional 162 passengers reported minor 
injuries. In the second accident, a near-head-on collision occurred on 
February 16, 1996 between MARC train 286 and Amtrak train 29 on CSX 
Transportation, Inc., at Silver Spring, Maryland, milepost 8.3. The 
accident resulted in 11 fatalities, consisting of three crewmembers and 
eight passengers, and at least 12 non-fatal injuries to passengers of 
the MARC train.
    While many of the questions raised by the New Jersey and Maryland 
train accidents are being addressed by the working group which is 
considering regulations covering rail passenger equipment safety 
standards, the important issue of emergency egress must be addressed by 
this rulemaking. Specifically, the Silver Spring accident raised 
serious concerns as to whether MARC passengers had sufficient 
information about the location and operation of emergency exits to 
enable them to find and use those exits in an emergency or accident. 
FRA believes that all commuter and intercity passenger railroads should 
review their practices, in addition to marking the exits, for providing 
this information. On February 20, 1996, FRA issued Emergency Order No. 
20 (Notice No. 1), which required prompt action to immediately enhance 
passenger train operating rules and emergency egress and to develop an 
interim system safety plan addressing cab car forward and multiple unit 
(MU) operations. 61 FR 6876, Feb. 22, 1996. In pertinent part, Notice 
No. 1 of the Emergency Order stated:

    [T]here is a need to ensure that emergency exits are clearly 
marked and in operable condition on all passenger lines, regardless 
of the equipment used or train control system. FRA's regulations 
generally require that all passenger cars be equipped with at least 
four emergency opening windows, which must be designed to permit 
rapid and easy removal during a crisis situation. The investigation 
of the Silver Spring accident has raised some concerns that at least 
some of the occupants of the MARC train attempted unsuccessfully to 
exit through the windows. Whether those same people eventually were 
among those who exited safely, or whether those persons were 
attempting to open windows that were not emergency windows is not 
known at this time. However, there is sufficient reason for concern 
to require that measures be taken to ensure that such windows are 
readily identifiable and operable when they are needed. Accordingly, 
the order requires that any emergency windows that are not already 
legibly marked as such on the inside and outside be so marked, and 
that a representative sample of all such windows be examined to 
ensure operability. (FRA Safety Glazing Standards, 49 CFR Part 223, 
require that each passenger car have a minimum of four emergency 
window exits ``designed to permit rapid and easy removal during a 
crisis situation.'')

61 FR 6880, Feb. 22, 1996.
    On February 29, 1996, FRA issued Notice No. 2 to Emergency Order 
No. 20 to refine three aspects of the original order, including 
providing more detailed guidance on the emergency egress sampling 
provision. 61 FR 8703, Mar. 5, 1996. In pertinent part, Notice No. 2 of 
the Emergency Order stated:

    The original order required but did not set parameters for 
testing a representative sample of emergency exits. The alteration 
to the emergency egress provisions requires that sampling of 
emergency window exits be conducted in conformity with either of two 
alternate methods commonly recognized for such efforts. This 
modification provides a degree of uniformity industry wide. These 
methods require sampling meeting a 95 percent confidence level that 
all emergency window exits operate properly (i.e., the methods do 
not accept a defect rate of 5 percent). Although the original order 
would have required testing all exits on a specific series or type 
of car if one such car had a defective window exit, the amended 
order permits the use of these commonly accepted sampling techniques 
to determine how many additional windows in [sic] test. In general, 
these principles require that the greater the percentage of windows 
initially found defective, the greater the percentage of windows 
that will have to be tested.
    In addition, FRA has modified the emergency egress portion of 
the order to clarify that the exterior marking requirement applies 
to those windows that may be employed for access by emergency 
responders, which may be windows other than, or in addition to, 
those designed for emergency egress for passengers. In addition, FRA 
has modified the interim system safety plan portion of the order to 
require discussion of the railroad's programs and plans for liaison 
with and training of emergency responders with respect to emergency 
access to passengers. The original order required discussion only of 
methods used to inform passengers of the location and method of 
emergency exits.

61 FR 8703, Mar. 5, 1996.
    On March 12, 1996, in response to the MARC train accident in Silver 
Spring, Maryland on February 16, 1996, the NTSB issued ``Safety 
Recommendations'' to both the Maryland Mass Transit Administration (R-
96-4 through R-96-6) and FRA (R-96-7). The NTSB was concerned because 
the emergency quick-release mechanisms for the exterior doors on MARC's 
Sumitomo rail cars are located in a secured cabinet some distance from 
the doors that they control, and the emergency controls for each door 
are not readily accessible and identifiable. The NTSB recommends that 
emergency quick-release mechanisms for exterior doors on MARC cars be 
well marked and relocated, so that they are immediately adjacent to the 
door control and readily accessible for emergency escape. The NTSB also 
noted that the left and right rear exterior side doors of the first car 
and the front interior end door and the right front exterior door of 
the second car were jammed, and observed that none of the car doors had 
removable windows or pop-out emergency escape panels (kick panels) for 
use in an emergency.
    In addition, the NTSB stated that several train passengers were 
unaware of the locations of emergency exits, and none knew how to 
operate them. The NTSB found that the interior emergency window decals 
were not prominently displayed and that one car had no interior 
emergency window decals. Also, the exterior emergency decals were often 
faded or obliterated, and the information on them, when legible, 
directed emergency responders to another sign at the end of the car for 
instructions on how to open emergency exits. The NTSB recommends that 
all emergency exits be clearly identified, with easily understood 
operating instructions prominently located on each car's interior for 
use by passengers and on the exterior for use by emergency responders.
    Based upon its investigation, the NTSB recommends that FRA:

    Inspect all commuter rail equipment to determine whether it has: 
(1) easily accessible interior emergency quick-release mechanisms 
adjacent to exterior passageway doors; (2) removable windows or kick 
panels in interior and exterior passageway doors; and (3) 
prominently displayed retroreflective signage marking all interior 
and exterior emergency exits. If any commuter equipment lacks one or 
more or these features, take appropriate emergency measures to 
ensure corrective action until these measures are incorporated into 
minimum passenger car safety standards. (Class 1, Urgent Action) (R-
96-7)

Safety Recommendation R-96-7 at page 3.
    On March 26, 1996, FRA convened a joint meeting of the Passenger 
Train Emergency Preparedness Working Group and the Passenger Equipment 
Safety Standards Working Group to discuss the NTSB's recommendations 
and incorporate the Safety Board's findings, as appropriate, into each 
working group's rulemaking proceeding.

[[Page 8335]]

Fifty-seven members from 21 different organizations attended the joint 
meeting. Although some of the recommendations involving structural 
modifications to rail equipment will be dealt with by the Passenger 
Equipment Safety Standards Working Group, the remaining NTSB 
recommendations involving marking, inspection, maintenance, and repair 
of emergency exits are reflected in proposed Sec. 223.9(d), entitled 
``Requirements for new or rebuilt equipment,'' and proposed 
Sec. 239.17, entitled ``Emergency exits.'' The Section-by-Section 
Analysis contains a detailed discussion of FRA's proposed requirements, 
particularly in light of the two recent accidents in New Jersey and 
Maryland and the NTSB's safety investigations and recommendations.
    In a letter to FRA dated June 24, 1996, Mr. Donald N. Nelson, 
President of Metro-North and Chairperson of APTA's Commuter Railroad 
Committee, announced that commuter railroads nationwide are 
implementing a series of rail passenger safety initiatives building on 
the safety provisions of FRA's Emergency Order No. 20 and the NTSB's 
Safety Recommendations R-96-4 through R-96-7. In pertinent part, all 
commuter rail authorities have committed to early voluntary 
implementation of the emergency preparedness requirements proposed in 
this NPRM, including requiring inspection and testing of all emergency 
window exits as part of routine car maintenance to ensure correct 
operation and ease of egress, offering emergency responder training for 
every jurisdiction within each commuter railroad's service area, and 
educating passengers on the use of emergency exits on commuter trains. 
The commuter railroads also indicated that each one will ensure the 
safety of its operation by adopting a comprehensive system safety plan 
that:
    (a) Defines the overall safety effort, how it is to be implemented 
and the staff required to maintain it;
    (b) Establishes the safety interface within the railroad, as well 
as with its key outside agencies;
    (c) Clearly indicates Senior Management support for implementing 
the safety plan and the railroad's overall commitment to safety;
    (d) Establishes the safety philosophy of the organization and 
provides the means for implementation;
    (e) Defines the authority and responsibilities of the safety 
organization and delineates the safety related authority and 
responsibilities of other departments; and
    (f) Incorporates safety goals and objectives into the overall 
corporate strategic plan.

APTA's Commuter Railroad Committee letter at pages 1 and 2.
    As part of the ongoing review process within DOT, and subsequent to 
the Working Group's previous opportunities to review the proposed rule 
text, FRA implemented changes to the draft regulatory text and 
preamble. FRA initiated these changes in order to strengthen the rule's 
requirements and establish more objective criteria for FRA's review of 
each railroad's emergency preparedness plan. In a letter dated December 
27, 1996, FRA sent a copy of the revised regulatory text to members of 
the Working Group, and requested comments on issues that the members 
wished to see included in the preamble section of the proposal. FRA 
requested that all comments be submitted to FRA by the close of 
business on January 8, 1997.

Development of the Passenger Safety Program

    As discussed above, this proposed rule is one element of a 
comprehensive effort to address the safety of rail passenger service. 
In addition to this rulemaking, FRA is currently addressing related 
issues in several contexts. Recent actions addressing passenger safety 
needs have included, for instance, Emergency Order No. 20, which 
addressed on an interim basis key issues regarding railroad operating 
rules, inspection of required emergency window exits, and emergency 
exit signage and marking.
    In the Passenger Equipment Safety Standards Working Group, FRA is 
examining possible requirements for improved emergency egress features 
for both retrofit and new construction. Affected railroads have already 
completed, or will complete by the end of this calendar year, the 
removal of latches requiring special tools for access to manual 
releases on powered doors. Separately, FRA is reviewing the totality of 
emergency egress requirements and the issue of their overall adequacy, 
including the relocation of manual releases to locations immediately 
adjacent to end vestibule doors. FRA anticipates that these efforts 
will be advanced through a collaborative rulemaking process. However, 
if necessary to ensure prompt action, FRA may propose specific 
requirements based upon its own staff analysis.
    In the context of improving railroad communications, the Railroad 
Safety Advisory Committee (RSAC) has established a working group to 
specifically address communication facilities and procedures, with a 
strong emphasis on passenger train emergency requirements. FRA expects 
that that group will report recommendations to the RSAC early in 1997. 
FRA anticipates that those recommendations will address the issue of 
whether there should be redundant communications capability on all 
passenger trains. Although that rulemaking will establish minimum 
safety requirements with respect to communications equipment, it should 
be noted that intercity and commuter railroads already make extensive 
provision for ensuring communication capabilities during emergencies.
    FRA plans a four-phase process to address emergency preparedness. 
In 1994, FRA distributed the Volpe Report described above and 
encouraged railroads to examine their existing programs to determine 
what improvements could be made. This rulemaking represents the second 
step in this process, formalizing a planning requirement and 
identifying certain mandatory elements. The third phase will begin as 
FRA reviews railroad plans to determine that the issues presented by 
the Volpe Report and the rule have been adequately addressed within the 
varying contexts of the commuter authority operations. FRA will conduct 
a detailed review of each plan. Following review and formal approval of 
written plan submissions, it will also be necessary for FRA to 
determine how the program is being implemented in the field. FRA will 
also be interested in determining how this effort is being integrated 
into the overall system safety planning process that commuter 
authorities have agreed to undertake.
    FRA is optimistic that this approach will yield positive results, 
promoting creativity and cross-fertilization of the emergency 
preparedness planning process through FRA, APTA, and other channels. 
This give-and-take approach should facilitate standardization of 
matters involving interface with passengers, while permitting continued 
adaptation of programs to local needs.
    The fourth phase would involve FRA's review, after having gained at 
least a full year of actual experience under the standards proposed 
here, of the implementation and effectiveness of the standards and 
related voluntary developments. In this phase of activity, FRA would 
work with interested parties to evaluate whether further rulemaking or 
other action might be necessary to ensure that, for each program 
element, standards and practices are sufficiently precise and stringent 
to achieve the desired improvements in emergency

[[Page 8336]]

preparedness. Further, this review will determine whether experience in 
working with emergency responders indicates that additional program 
elements should be addressed.

Section-by-Section Analysis

    FRA proposes to amend Part 223 to Title 49, Code of Federal 
Regulations by adding three new definitions and requiring railroads 
operating passenger train service to clearly mark emergency windows. 
FRA also proposes to add Part 239 to Title 49, Code of Federal 
Regulations specifically devoted to prescribing minimum Federal safety 
standards concerning the preparation, adoption, and implementation of 
emergency preparedness plans by railroads connected with the operation 
of passenger trains.

1. Definitions: Section 223.5

    Section 223.5 would be reorganized and definitions of three 
important terms employed in the proposed passenger train emergency 
preparedness regulations would be added. The three new defined terms 
are ``emergency responder,'' ``passenger train service,'' and 
``railroad.'' For ease of reference, FRA proposes to define the term 
``railroad'' so as to include the statutory (49 U.S.C. 20102) 
definitions of both ``railroad'' and ``railroad carrier'' and to 
clarify that those who provide railroad transportation directly or 
through an operating contractor are railroad carriers. Thus, the term 
``railroad'' is clearly intended to include commuter authorities. These 
terms are intended to have the same meaning as in proposed part 239 of 
this chapter.
    Of course, the term ``railroad,'' as used by FRA in the context of 
regulating passenger train emergency preparedness, is not controlled by 
the definitions of ``rail carrier'' and ``railroad'' set forth in 49 
U.S.C. 20102 (5) and (6). Likewise, FRA does not intend for its 
definition of ``railroad'' to have any bearing on how the term is used 
for purposes of the regulatory activities of the Surface Transportation 
Board.

2. Requirements for New or Rebuilt Equipment: Section 223.9

    In accordance with the requirements of 49 CFR 223.9(c) and 
223.15(c), all passenger cars must be equipped with at least four 
emergency windows, which must be designed to permit rapid and easy 
removal during a crisis situation. Proposed paragraph 223.9(d) requires 
that all windows intended by a railroad to be used during an emergency 
situation be properly marked inside and outside, and that the railroad 
post clear and understandable instructions for their use at the 
designated locations.
    Paragraph 223.9(d)(1) requires that the emergency windows be 
conspicuously and legibly marked on the inside of the car with 
luminescent material. FRA realizes that during an emergency the main 
power supply to the passenger cars may become inoperative and that 
crewmembers with portable flashlights may be unavailable. Since lack of 
clear identification or lighting could make it difficult for passengers 
to find the emergency exits, the proposed rule requires luminescent 
material on all emergency windows to assist and speed passenger egress 
from the train during an emergency. The marking of the emergency 
windows must be conspicuous enough so that a reasonable person, even 
while enduring the stress and panic of an emergency evacuation, can 
determine where the closest and most accessible emergency route out of 
the car is located. In addition, while this proposed section does not 
prescribe a particular brand, type, or color of luminescent paint or 
material that a railroad must use to identify a window exit, FRA 
expects each railroad to select a material durable enough to withstand 
the daily effects of passenger traffic, such as the contact that occurs 
as passengers enter and leave the cars.
    METROLINK, in noting that the last line of paragraph 223.9(d) 
requires ``each railroad [to] post clear and legible operating 
instructions at or near such exits,'' stated that it assumes that the 
referenced instructions relate to the doors rather than the windows.
    Paragraph 223.9(d)(2) requires that the emergency windows intended 
for emergency access by emergency responders for extrication of 
passengers be marked with retroreflective material. Since FRA 
recognizes that not every window will be equipped for emergency access, 
railroads are required to choose a retroreflective, unique and easily 
recognizable symbol that will readily attract the attention of 
emergency responders. The proposed rule does not require a specific 
size or shape for the symbol, but FRA expects the railroad's emergency 
preparedness plan developed pursuant to Sec. 239.13 of this chapter to 
contain a provision detailing emergency responder access (along with 
passenger car egress), consistent with the evacuation strategy 
formulated jointly by the passenger train operator and the emergency 
responder organizations, in accordance with the emergency responder 
liaison provision set forth in Sec. 239.13(a)(5) of this chapter. Of 
course, while the proposed rule would not require emergency responders 
to participate in evacuation planning or strategy with the railroads, 
the railroads would be required to offer liaison assistance. FRA is 
working to identify an appropriate marking that might be capable of 
universal recognition. Although the proposed rule allows a marking that 
could consist of a symbol or words (such as ``RESCUE ACCESS''), FRA 
reserves the right to be more prescriptive in the final rule based upon 
a uniform pattern.
    The proposed rule requires railroads to post clear and 
understandable instructions at designated locations describing how to 
operate the emergency windows. This paragraph does not mandate that 
railroads use specific words or phrases to guide the passengers and 
emergency responders. Instead, each railroad should evaluate the 
operational characteristics of its emergency windows, and select key 
words or diagrams that adequately inform the individuals who must use 
them. While railroads are encouraged to post comprehensive 
instructions, FRA also realizes that during an emergency situation 
every additional moment devoted to reading and understanding access or 
egress information places lives at risk. In addition, FRA would already 
expect passengers and emergency responders to be familiar with the 
location and operation of the railroad's emergency windows as a result 
of emergency responder liaison activities and passenger awareness 
programs conducted in accordance with Secs. 239.13 (a)(5) and (a)(7) of 
this chapter.

3. Appendix B to 49 CFR Part 223

    FRA plans to revise Appendix B to 49 CFR Part 223--Schedule of 
Civil Penalties, to include penalties for violations of the provisions 
of Sec. 223.9(d) to be included in the final rule. Because such penalty 
schedules are statements of policy, notice and comment are not required 
prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, 
commenters are invited to submit suggestions to FRA describing the 
types of actions or omissions that would subject a person to the 
assessment of a civil penalty. Commenters are also invited to recommend 
what penalties may be appropriate, based upon the relative seriousness 
of each type of violation.

4. Purpose and Scope: Section 239.1

    Section 239.1(a) states that the purpose of this part is to reduce 
the magnitude of casualties in railroad operations by ensuring that 
railroads involved in passenger train operations can effectively and 
efficiently manage emergencies. Subsection (b) states that

[[Page 8337]]

these regulations provide minimum standards for the subjects addressed, 
and the affected railroads may adopt more stringent requirements, so 
long as they are not inconsistent with this part. FRA does not in any 
way intend that the subject matter of 49 CFR Part 239, Passenger Train 
Emergency Preparedness, be read to impose burdens or requirements on 
emergency responders who either participate with railroads in emergency 
simulations involving the operation of passenger train service or 
respond to actual emergency situations, or on any other person who may 
be involved with the aftermath of a passenger train emergency not 
specified in proposed Sec. 239.3 concerning applicability. Accordingly, 
FRA does not intend to restrict a State from adopting a law, rule, 
regulation, order, or standard affecting emergency responders.

5. Application: Section 239.3

    As a general matter, FRA proposes that this rule apply to all 
railroads that operate passenger train service on the general railroad 
system of transportation, provide commuter or other short-haul 
passenger train service in a metropolitan or suburban area, or host the 
operations of such passenger train service. A public authority that 
indirectly provides passenger train service by contracting out the 
actual operation to another railroad or independent contractor would be 
regulated by FRA as a railroad under the provisions of the proposed 
rule. Although the public authority would ultimately be responsible for 
the development and implementation of an emergency preparedness plan 
(along with all related recordkeeping requirements), the railroad or 
other independent contractor that operates the authority's passenger 
train service would be expected to fulfill all of the responsibilities 
under this part with respect to emergency preparedness planning, 
including implementation.
    The proposed rule is structured to apply to intercity and commuter 
service, not tourist operations. At a later time, FRA may propose 
application of the rule, or some portion thereof, to tourist, scenic, 
historic, and excursion railroads. FRA's regulatory authority permits 
it to tailor the applicability sections of its various regulations so 
as to expand or contract the populations of railroads covered by a 
particular set of regulations. FRA has had jurisdiction over all 
railroads since the Federal Railroad Safety Act of 1970 was enacted.
    In considering the issue of requiring emergency preparedness 
planning by tourist and historic railroad operators in the context of 
this rulemaking, FRA has not yet had the opportunity to fully consult 
with those railroads and their associations to determine appropriate 
applicability in light of financial, operational, or other factors that 
may be unique to such railroad operations. After appropriate 
consultation with the excursion railroad associations takes place, 
emergency preparedness requirements for these operations may be 
prescribed by FRA that are different from those affecting other types 
of passenger train operations. These requirements may be more or less 
onerous, or simply different in detail, depending in part on the 
information gathered during FRA's consultation process.
    The Federal Railroad Safety Authorization Act of 1994 instructed 
FRA to examine the unique circumstances of tourist railroads when 
establishing safety regulations. The Act, which amended 49 U.S.C. 
20103, stated that:

    In prescribing regulations that pertain to railroad safety that 
affect tourist, historic, scenic, or excursion railroad carriers, 
the Secretary of Transportation shall take into consideration any 
financial, operational, or other factors that may be unique to such 
railroad carriers. The Secretary shall submit a report to Congress 
not later than September 30, 1995, on actions taken under this 
subsection.

Public Law No. 103-440, Sec. 217, 108 Stat. 4619, 4624 (November 2, 
1994). In addition, section 215 of that Act specifically permits FRA to 
exempt equipment used by tourist, historic, scenic, and excursion 
railroads to transport passengers from the initial regulations that 
must be prescribed by November 2, 1997. 49 U.S.C. 20133(b)(1). In its 
report to Congress entitled ``Regulatory Actions Affecting Tourist 
Railroads,'' FRA responded to the direction in the statutory provision 
and also provided additional information related to tourist railroad 
safety for consideration of the Congress. FRA will address the 
emergency preparedness concerns for these unique types of operations at 
a later date in a separate rulemaking proceeding. To facilitate 
resolution of this issue, and a significant number of related issues, 
the Railroad Safety Advisory Committee (RSAC) has established a Tourist 
and Historic Railroads Working Group. As a matter of cost efficiency, 
the Working Group may elect to cover emergency preparedness planning 
for tourist railroads as part of a package of tourist-specific safety 
proposals during a multi-day consultation on several rulemaking 
dockets. FRA would then issue a Notice of Proposed Rulemaking 
addressing issues in several dockets that pertain to these smaller 
passenger operations.
    In Sec. 239.3(b)(2), FRA proposes that the requirements of this 
part would not apply to the operation of private passenger train cars, 
including business or office cars and circus trains. While FRA believes 
that a private passenger car operation should be held to the same basic 
level of emergency preparedness planning as other passenger train 
operations, FRA intends to take into account the financial burden 
imposed by requiring private passenger car owners and operators to 
conform to the requirements of this part. Private passenger cars are 
often hauled by host railroads such as Amtrak and commuter railroads, 
and these hosts often impose their own safety requirements on the 
operation of the private passenger cars. Pursuant to this part, the 
host railroads would already be required to have emergency preparedness 
plans in place to protect the safety of their own passengers; the 
private car passengers would presumably benefit from these plans even 
without the rule directly covering private car owners or operators. In 
the case of non-revenue passengers, including employees and guests of 
railroads that are transported in business and office cars, as well as 
passengers traveling on circus trains, the railroads would provide for 
their safety in accordance with existing safety operating procedures 
and protocols relating to normal freight train operations.

6. Preemptive Effect: Section 239.5

    Section 239.5 informs the public as to FRA's views regarding the 
preemptive effect of the proposed rule. While the presence or absence 
of such a section does not in itself affect the preemptive effect of 
this part, it informs the public concerning the statutory provision 
which governs the preemptive effect of these rules. Section 20106 of 
title 49 of the United States Code provides that all regulations 
prescribed by the Secretary relating to railroad safety preempt any 
State law, regulation, or order covering the same subject matter, 
except a provision necessary to eliminate or reduce an essentially 
local safety hazard that is not incompatible with a Federal law, 
regulation, or order and that does not unreasonably burden interstate 
commerce. With the exception of a provision directed at an essentially 
local safety hazard, 49 U.S.C. 20106 preempts any State regulatory 
agency rule covering the same subject matter as these regulations 
proposed today.
    Of course, the subject matter of these regulations covers only the 
preparation,

[[Page 8338]]

adoption, and implementation of emergency preparedness plans for 
passenger train operations. Accordingly, States are in no way preempted 
from regulating any of the training requirements or other activities of 
the non-railroad emergency responders who arrive at the scene of an 
emergency after a railroad's emergency preparedness plan has been 
activated.

7. Definitions: Section 239.7

    This section contains an extensive set of definitions to introduce 
the regulations. FRA intends these definitions to clarify the meaning 
of important terms as they are used in the text of the proposed rule. 
The proposed definitions are carefully worded in an attempt to minimize 
the potential for misinterpretation of the rule. Several of the 
definitions introduce new concepts which require further discussion.
    Although the definition of ``crewmember'' is primarily intended to 
cover persons who either perform on-board functions connected with the 
movement of a train (e.g., a locomotive engineer, conductor) or provide 
on-board service (e.g., an Amtrak food service employee or sleeping car 
attendant), a deadheading employee is covered by the definition as 
well. Accordingly, such an employee could count as a ``qualified'' 
employee under Sec. 239.101(a)(2)(iv) for purposes of meeting a 
railroad's minimum on-board staffing requirements for its emergency 
preparedness plan. However, during a passenger train emergency 
situation, off-duty employees would also be expected to assume their 
appropriate roles under the railroad's emergency preparedness plan and 
assist the passengers. METROLINK indicated that on some trains it has 
conductors who perform the function of fare enforcement, and 
recommended that FRA exclude these individuals from the definition of 
``crewmember.'' METROLINK also requested that FRA exclude contract food 
workers from the definition of ``crewmember.''
    The term ``control center'' envisions not only the traditional 
railroad concept of a train dispatcher's office, but also railroad 
offices that are identified as ``control centers'' but only monitor 
railroad operations, and modern system operations centers such as those 
of CSX Transportation, Inc., in Jacksonville, Florida and the 
Burlington Northern Santa Fe Corporation in Ft. Worth, Texas. The term 
does not include a location on a railroad with responsibility for the 
security of railroad property, personnel, or passengers.
    It is very likely that control center personnel are located at 
facilities which are remote from the right-of-way. These facilities 
should consist of the necessary command, control, and communications 
equipment to maintain normal train operations, to control electric 
traction, and to maintain communications throughout the passenger train 
system. In addition to these functions, the control center should help 
coordinate responses to emergencies by using equipment such as radio 
communications systems, direct ``hotline'' telephones, wayside power 
removal controls, and ventilation controls under the direction of 
emergency responders, according to the protocols and procedures of the 
emergency preparedness plan.
    Typical emergency scenarios encompassed by the term ``emergency'' 
or ``emergency situation'' involving a significant threat to the safety 
or health of one or more persons requiring immediate action may include 
one or more of the following: illness or injury; a stalled train in a 
tunnel or on a bridge; collision with a person, including suicides; 
collision or derailment; fire; collision or derailment with a fire; 
collision or derailment with water immersion; severe weather 
conditions; natural disasters; and security situations (e.g., bombings, 
bomb threats, hijacking, civil disorders, and other acts of terrorism).
    The term ``qualified,'' as used in the rule, means employees who 
are trained under an applicable emergency preparedness plan's 
components and implies no provision or requirement for Federal 
certification of persons who perform those functions.
    The definition of ``railroad'' is based upon 49 U.S.C. 20102 (1) 
and (2), and encompasses any person providing railroad transportation 
directly or indirectly, including a commuter rail authority that 
provides railroad transportation by contracting out the operation of 
the railroad to another person, as well as any form of nonhighway 
ground transportation that runs on rails or electromagnetic guideways, 
but excludes urban rapid transit not connected to the general system.
    The terms explained here are not exhaustive of the definitions that 
are proposed for inclusion in Sec. 239.7. This introduction merely 
provides a sampling of the most important concepts of the proposed 
rule. Many other terms are defined and explained in the section-by-
section analysis when analyzing the actual proposed rule text to which 
they apply.

8. Responsibility for Compliance: Section 239.9

    Section 239.9 clarifies FRA's position that the requirements 
contained in the proposed rules are applicable to any ``person,'' 
including a contractor, that performs any function required by the 
proposed rules. Although all sections of the proposed rule address the 
duties of a railroad, FRA intends that any person who performs any 
action required by this part on behalf of a railroad is required to 
perform that action in the same manner as required of a railroad or be 
subject to FRA enforcement action. For example, if an independent 
contractor is hired by a railroad to maintain its records of 
inspection, maintenance, and repair of emergency window and door exits, 
pursuant to proposed Sec. 239.17, the contractor would be required to 
perform those duties in the same manner as required by a railroad.

9. Penalties: Section 239.11

    Section 239.11 identifies the penalties that FRA may impose upon 
any person, including a railroad or an independent contractor providing 
goods or services to a railroad, that violates any requirement of this 
part. These penalties are authorized by 49 U.S.C. 21301, 21304, and 
21311, formerly contained in Sec. 209 of the Federal Railroad Safety 
Act of 1970 (Safety Act) (49 U.S.C. 20101-20117, 20131, 20133-20141, 
20143, 21301, 21302, 21304, 21311, 24902, and 24905, and Secs. 4(b)(1), 
(i), and (t) of Public Law 103-272, formerly codified at 45 U.S.C. 421, 
431 et seq.). The penalty provision parallels penalty provisions 
included in numerous other regulations issued by FRA under authority of 
the provisions of law formerly contained in the Safety Act. 
Essentially, any person who violates any requirement of this part or 
causes the violation of any such requirement will be subject to a civil 
penalty of at least $500 and not more than $10,000 per violation. Civil 
penalties may be assessed against individuals only for willful 
violations, and where a grossly negligent violation or a pattern of 
repeated violations creates an imminent hazard of death or injury to 
persons, or causes death or injury, a penalty not to exceed $20,000 per 
violation may be assessed. In addition, each day a violation continues 
will constitute a separate offense. Finally, a person may be subject to 
criminal penalties for knowingly and willfully falsifying reports 
required by these regulations. FRA believes that the inclusion of 
penalty provisions for failure to comply with the regulations is 
important in

[[Page 8339]]

ensuring that compliance is achieved not only in terms of developing 
and implementing emergency preparedness plans, but also to better 
determine if railroads are planning ahead to minimize the consequences 
of emergencies that could occur.
    The final rule will include a schedule of civil penalties in an 
Appendix A to 49 CFR Part 239, to be used in connection with this part. 
Because such penalty schedules are statements of policy, notice and 
comment are not required prior to their issuance. See 5 U.S.C. 
553(b)(3)(A). Nevertheless, commenters are invited to submit 
suggestions to FRA describing the types of actions or omissions under 
each regulatory section that would subject a person to the assessment 
of a civil penalty. Commenters are also invited to recommend what 
penalties may be appropriate, based upon the relative seriousness of 
each type of violation.

10. Emergency Preparedness Plan: Section 239.101

    In drafting the proposed rule, FRA recognized that the operations 
of each individual passenger train system must be considered in the 
development and implementation of effective emergency preparedness 
programs. Factors which should be considered include system sizes and 
route locations, types of passenger cars and motive power units, types 
of right-of-way structures and wayside facilities, and numbers of 
passengers carried, as well as internal railroad organizations and 
outside emergency response resources. Under the proposed rule, each 
railroad subject to the regulation is required to establish an 
emergency preparedness plan designed to safely manage emergencies and 
minimize subsequent trauma and injury to passengers and on-board 
railroad personnel. The plan must reflect the railroad's policies, 
plans, and readiness procedures for addressing emergencies. The 
railroad is expected to employ its best efforts, under the 
circumstances of the emergency situation, to execute the provisions of 
its plan.
    In their development of emergency preparedness plans, FRA 
encourages railroads to integrate, as practicable, the recommended 
guidelines contained in the Volpe Report. The report provides a 
comprehensive degree of specificity. While the proposed rule does not 
require the special level of detail reflected in the Volpe Report, FRA 
advocates that railroads voluntarily incorporate such elements and 
items as appropriate into the development of their own emergency 
preparedness plans, and exclude recommendations only after judicious 
consideration.
    While FRA stresses that each railroad should retain latitude in 
developing an emergency preparedness plan appropriate for its 
operations, the plan must provide a comprehensive overview, make clear 
and positive statements to railroad employees, and contain 
implementation details concerning the roles, responsibilities, and 
expectations for employee participation. The plan does not have to be 
one single document with every section applying to every railroad 
employee and location; instead, the plan may consist of multiple 
documents, with a separate section of the plan detailing the specific 
responsibilities for each job category or function. In instances where 
a freight railroad hosts the operations of a passenger railroad, both 
railroads would have to address issues of emergency preparedness. 
However, the rule would require the hosting freight railroad to develop 
only the applicable portions of an emergency preparedness plan uniquely 
dealing with the passenger operations not otherwise addressed.
    The majority of passenger train operational difficulties are 
handled effectively and do not become emergencies. Since in many 
instances a train crew can immediately take action to resolve a problem 
and potential emergency without evacuating the train, existing 
emergency preparedness policies de-emphasize immediate evacuation from 
trains located between stations unless passengers and crews are in 
immediate danger. Accordingly, in most situations, after notifying the 
control center that a problem exists and receiving permission, the 
train crew will move the train to the nearest station or safe location 
(e.g., outside a tunnel) before taking further action. If the train 
crew is unable to resolve the situation, railroad personnel or outside 
emergency responders may be sent to the emergency scene to provide 
mechanical aid, alternate transportation, or medical assistance.
    The effectiveness of a railroad's overall response under its 
emergency preparedness plan will be greatly influenced by the type of 
emergency with which the train crew is presented (e.g., injury or 
illness, stalled train, suicide or accidental collision with a person, 
derailment or collision, smoke or fire, severe weather conditions or 
natural disasters, and vandalism or sabotage). The response will also 
be affected by the characteristics and type of train involved and the 
functional status of electrical and mechanical systems, including 
lighting, ventilation, and public address systems. In addition, the 
operational environment (e.g., a train is located in a tunnel, on an 
elevated structure, or in electrified territory), and the type of 
right-of-way structure or wayside facility must be addressed, as 
appropriate, in each railroad's emergency preparedness plan.
    The emergency preparedness plan should establish a chain of command 
which assigns functions and responsibilities to appropriate passenger 
railroad operating personnel, while recognizing the authority and 
responsibilities of emergency responders. Coordination is important to 
the ability of all parties to respond appropriately to an emergency, 
regardless of its size and location. Documentation, including 
applicable portions of the emergency preparedness plan, protocols, and 
procedures within rulebooks, manuals, and guidelines for control center 
employees and on-board personnel, provides the basic framework for 
coordination between all internal parties responding to an emergency. 
This internal documentation should address at least the following 
issues:
     Delineation of functions and responsibilities during 
emergencies for passenger railroad operating personnel, including 
control center personnel;
     Telephone numbers of railroad personnel and emergency 
responders who need to be notified;
     Criteria for determining whether an emergency exists and 
requires assistance from emergency responders;
     Procedures for determining the specific type, location, 
and severity of the emergency, and thus which response is appropriate;
     Procedures for notifying emergency responders; and
     Procedures and decision-making criteria for transferring 
incident responsibility from the passenger railroad operator to 
emergency responders.
    Section 239.101 sets forth the general requirement that railroads 
shall develop and comply with their own emergency preparedness plans 
and written procedures to implement their own plans for addressing 
issues of emergency preparedness, that meet Federal minimum standards. 
Paragraph 239.101(a) requires all railroads affected by this proposed 
part to develop and implement written procedures to fulfill each 
applicable element of this section. Depending on the nature of a 
railroad's operations, as well as on whether its operations involve a 
host freight railroad, different elements of this proposed section may 
be fulfilled by more than one entity. While FRA requires all elements 
of this section to

[[Page 8340]]

be addressed for each passenger train operation, the rule does not 
mandate that every element be addressed in each affected entity's 
emergency preparedness plan. Accordingly, if a passenger train service 
operator relies on its freight railroad host to notify outside 
emergency responders after an emergency occurs, FRA would permit the 
freight railroad's emergency preparedness plan to address this element. 
Provided that both entities properly coordinate their emergency 
preparedness plans (and include cross-reference citations to each 
other's plan), the passenger train service operator's plan could omit 
this item and still be in compliance with the proposed rule.
    The proposed rule would not require that the public authority and 
the operating railroad or independent contractor each file a separate 
emergency preparedness plan with FRA if the operating railroad or 
independent contractor is the only party performing a function under 
the regulation. However, each party's responsibility for compliance 
with this part must be clearly spelled out in the emergency 
preparedness plan or plans that are filed with FRA for approval 
covering the entire passenger train service operation. After approval 
of the plan or plans, FRA may hold the public authority or the other 
entity or both responsible for compliance with this part.
    FRA proposes to establish the parameters for such a plan and defer 
to the expertise of each individual railroad to adopt a suitable 
emergency preparedness plan for its railroad, in accordance with these 
parameters. As noted previously in the preamble to this proposed rule, 
the emergency preparedness plan may consist of multiple documents, with 
a separate document detailing the responsibilities of each category of 
employee under the railroad's plan. Each railroad is also encouraged to 
review the suggestions provided in the Volpe Report before developing 
an emergency preparedness plan in accordance with the requirements set 
forth in this section. In developing the plan, railroads are reminded 
that the goal of the proposed rule is to maximize the safety of 
passengers, railroad personnel, emergency response personnel, property, 
and the general public which come in contact with the railroad by 
providing for immediate notification of outside law enforcement 
officials and emergency responders. Railroads should not instruct their 
on-board employees to substitute as professional emergency responders 
and delay notification of appropriate railroad and outside officials.
    Paragraph 239.101(a)(1) sets forth the requirement that the 
passenger train crewmembers must communicate immediately and 
effectively with each other, as well as with the control center and the 
passengers. Typically, in an emergency situation the proposed rule 
requires an on-board train crewmember to immediately contact the 
control center via a dependable on-board radio or an alternate means of 
communication (e.g., wayside railroad telephone, public telephone, 
private residence telephone, or cellular telephone) to advise 
appropriate railroad officials of the nature of the emergency and the 
type of assistance required. After this initial notification to the 
control center occurs, the passengers must be informed of the emergency 
and provided directions. As appropriate, all passengers should be 
accounted for (particularly in sleeping compartments) so as to expedite 
evacuation, if necessary, and to avoid needless effort to search for 
``missing'' persons.
    METROLINK stated that the train crewmember should notify the 
passengers after consultation with the control center and the control 
center officer, unless the train must be evacuated immediately. Also, 
the LIRR recommended that FRA revise paragraph 239.101(a)(1) in the 
final rule to require an on-board crewmember to remove all occupants of 
the train from imminent danger as a first step after he or she quickly 
and accurately assesses the passenger train emergency situation. FRA 
recognizes that each emergency situation is unique, and may require 
rapid decisionmaking by on-board crewmembers on how best to ensure the 
safety of the passengers. Moreover, it is FRA's expectation that 
railroads will properly train their employees to perform the requisite 
life-saving functions after an emergency (e.g., relocation of 
passengers from a smoke-filled car to a safer section of the train or 
evacuation of the passengers from a derailed car), in conjunction with 
their responsibilities to assess the nature of the emergency and notify 
the control center as soon as practicable thereafter. Accordingly, 
while FRA may conclude in the course of investigating a specific train 
incident or accident that a particular employee's egregious mishandling 
of an emergency situation warrants individual enforcement action and/or 
enforcement action against the railroad, we are reluctant to strictly 
impose the precise order or manner in which on-board crewmembers must 
execute their individual responsibilities under the railroad's 
emergency preparedness plan. However, in the course of drafting the 
final rule text, FRA may elect to incorporate recommended practices as 
specific directives to railroads concerning how they must respond to 
the various types of emergency situations most likely to occur during 
passenger operations, such as on-board fires, downed electrical power 
sources, or passenger injuries from a derailment.
    Although the proposed rule does not require a railroad to use a 
specific means of communication, FRA expects the railroad to select a 
method that is effective and capable of reaching pertinent railroad 
control centers and on-board locations in order to comply with the 
notification requirement of this subsection. FRA further expects that 
railroads will voluntarily build redundancy into their emergency 
preparedness plans by outfitting their crewmembers with an immediately 
available backup means of communication, in the event that primary 
communications systems are either damaged during the emergency or 
otherwise rendered inoperative. For example, a cellular telephone could 
be made available for use by on-board crewmembers to contact the 
control center in the event the locomotive radio is inoperative. Also, 
on-board crewmembers could still maintain proper communication with the 
passengers, in the event that regular or emergency power was 
unavailable to operate the train's public address system, by using 
portable megaphones. Commenters are asked to discuss whether the final 
rule should expand the subsection's language requiring notification to 
mandate a specific primary means of communication, and/or whether the 
final rule should also require each affected railroad to equip its 
passenger trains with a secondary means of communication in the event 
that the primary means is unavailable. This issue may be resolved in 
this proceeding or in the context of the forthcoming revision of the 
Radio Standards and Procedures in 49 CFR Part 220. That rulemaking was 
tasked to the RSAC on April 1, 1996.
    It is FRA's understanding that many railroads publish an emergency 
toll-free telephone number in the employee timetable which connects 
with the control center office. Amtrak also has a nationwide toll-free 
telephone number which connects the caller to the national Amtrak 
police desk in Washington, DC, which is manned around the clock. The 
rule does not require that notification to either the control center or 
the train passengers occur within a precisely measured number of 
minutes, rather it uses the

[[Page 8341]]

words ``as soon as practicable'' in order to give railroads maximum 
flexibility. FRA expects that in the totality of the circumstances of 
the emergency situation, the train crewmembers will exercise their best 
judgment using the railroad's own emergency preparedness plan 
procedures.
    Under current practice, Amtrak's notification of the emergency 
responders will vary slightly depending on whether or not the passenger 
train emergency occurs in Amtrak-dispatched territory. In territory 
where trains are dispatched by Amtrak, either the control center will 
directly notify the emergency responder or the control center will 
notify Amtrak police, who will then, as appropriate, notify pertinent 
emergency responders, state and federal agencies, and Amtrak 
supervisors. In territory where trains are not dispatched by Amtrak, 
the host railroad control center will directly notify the appropriate 
emergency responders, government agencies, and host railroad 
supervisors. Which emergency responders and agencies are notified 
depends on the nature of the emergency. Most control centers have 
emergency telephone numbers already in their computer systems, usually 
listed alphabetically by city, with hard copy backups.
    FRA is aware that each railroad's operations are somewhat unique, 
and that the appropriate persons and organizations who must be notified 
will vary based upon the railroad's individual operating 
characteristics and the actual type of emergency that occurs. 
Accordingly, paragraph 239.101(a)(1)(ii) does not specify emergency 
responder organizations (e.g., fire departments, helicopter rescue 
groups) or job titles or duties of appropriate railroad officials whom 
the control center must contact. The subsection also does not specify 
which control center employees may be designated by the railroad to 
maintain the list of emergency telephone numbers; METROLINK recommended 
that FRA require that the railroad designate an employee function or 
position to be responsible for maintaining current emergency telephone 
numbers, rather than a particular employee. In addition, the term 
``adjacent'' is not defined (e.g., a distance measurement from the 
passenger train experiencing the emergency to adjacent rail modes) for 
purposes of determining which other rail modes must be notified. 
Instead, consistent with the Working Group's recommendation that the 
proposed rule should provide each affected railroad with flexibility to 
implement the rule's provisions, this subsection requires that the 
emergency preparedness plan state how the railroad will achieve the 
appropriate notifications.
    Paragraph 239.101(a)(2) requires that the emergency preparedness 
plan provide for initial and periodic training at least once every two 
years of all railroad employees who have responsibilities under the 
plan, and that the training address the role of each affected employee. 
Adequate training is integral to any safety program. This subsection 
recognizes that the successful implementation of an emergency 
preparedness plan depends upon the knowledge of the on-board and 
control center personnel about the system route characteristics, 
passenger cars and motive power units, and emergency plans, protocols, 
procedures, and on-board emergency equipment. An employee who has not 
been trained to react properly during an emergency situation may 
present a significant risk to railroad personnel and passengers. 
Employees must receive ``hands-on'' instruction concerning the 
location, function, and operation of on-board emergency equipment, 
stressing the following:
     Opening emergency window, roof, and door exits, with an 
emphasis on operating them during adverse conditions such as when a 
rail car is overturned;
     Use of emergency tools and fire extinguishers;
     Use of portable lighting when the main power source is 
unavailable on a passenger train; and
     Use of megaphones and public address systems (if they are 
provided by the railroad for communication purposes).
    The proposed rule affords the passenger railroad operator a time 
period of up to two years to provide each session of ``periodic'' 
training after the operator provides initial training in the emergency 
preparedness plan's provisions to its employees. The periodic training 
requirement is intended to inform railroad personnel of changes in 
procedures and equipment and ensure that their skills remain at a level 
that enables them to effectively execute their responsibilities under 
the emergency preparedness plan. In addition, the recurrent training 
will reinforce segments of the emergency preparedness plan for 
individuals who have not performed properly.
    FRA concludes that the unique operating characteristics of all the 
different railroads subject to the proposed rule, as well as the 
financial costs involved with providing training, would make it 
impractical to include a calendar year or other more restrictive or 
specific requirement for periodic training in the proposed rule. 
Moreover, assuming that FRA elects to specify in the final rule that 
the upper limit of the term ``periodic'' will remain at two years, 
anytime the provisions of an emergency preparedness plan are invoked 
during an actual emergency, we would count that event toward the 
training requirement for those affected employees.
    FRA is interested in receiving comments from railroads on the costs 
of implementing the on-board personnel training requirements of the 
proposed rule. Specifically, FRA wants to determine the extent of the 
current training that railroads already provide to their on-board 
employees (including emergency preparedness training) as part of 
regular operating rules training programs. Comments are requested 
concerning the estimated dollar amount of the incremental additional 
costs connected with modifying existing training programs to comply 
with this proposal. FRA is interested in ascertaining whether the 
proposed training requirements will add merely de minimis costs to each 
railroad's existing training program or if compliance would entail 
moderate or significant additional costs.
    As discussed in the analysis of proposed Sec. 239.103, FRA expects 
railroads operating passenger train service to conduct emergency 
simulations to evaluate their overall emergency response capabilities 
and ensure that emergency preparedness plans, procedures, and equipment 
address the particular needs of various types of passengers. Emergency 
simulations can help railroads achieve theses goals through careful 
selection of the time and location of the simulation and participation 
by personnel from the railroads, outside emergency responder 
organizations, and ``volunteer passengers''. In addition to classroom 
training, simulations provide employees with a practical and realistic 
understanding of rules, procedures, trains, and right-of-way 
structures/wayside facilities as they relate to emergency response. FRA 
expects that the employee training provided in accordance with 
paragraph 239.101(a)(2) will include instruction on the importance of 
emergency simulations in achieving successful implementation of the 
emergency preparedness plan.
    The proposed rule does not require on-board personnel to receive 
training in first aid or in CPR. Although FRA initially considered 
including these items as training requirements in the

[[Page 8342]]

proposed rule, or at least mandating that railroads offer employees the 
opportunity to receive this training, the consensus of the Working 
Group was that both first aid and CPR training should be excluded from 
the rule. The Working Group stressed that the goal of the proposed rule 
is to ensure that emergency responders arrive promptly at the scene of 
an emergency, not to train on-board personnel to act as emergency 
responders. The Working Group also stated that even if FRA requires a 
railroad to offer first aid and CPR training, no railroad can literally 
force an on-board crewmember to assist an ailing passenger. Further, 
trains with heavier passenger loadings are likely to have on board one 
or more medical professionals whose skills will be more extensive, and 
better practiced, than those of a crewmember whose primary and 
recurring duties do not include medical emergencies.
    During the Working Group meeting on February 7, 1996, Amtrak stated 
that it is spending between $2.5 to $3 million by fiscal year 1998 to 
train the chiefs of on-board service and to provide for at least one 
employee on every train being trained to administer first aid and 
perform CPR. Under the Amtrak plan, employees will not be required to 
use this training, merely to receive it. Despite the extent of Amtrak's 
commitment to voluntarily providing extensive first aid and CPR 
training, Amtrak did not want these items required in the final rule. 
Another member of the Working Group, Metrolink, stated that it has 
served approximately eight million passengers in three years of 
operation, and has never had a passenger require CPR. Metrolink also 
noted that commuter railroads generally operate in populated areas, 
with professional emergency responders in most cases only minutes away. 
The LIRR stated that it offers CPR training to newly hired employees 
and shows a refresher film to employees every five years, but 
acknowledged that it cannot force employees to administer CPR. The 
railroad also noted that it would never want the engineer to leave the 
controls of the locomotive during an emergency. NJTR indicated that its 
train crews already have many duties to perform during an emergency and 
that first aid and CPR should be performed by emergency medical 
services personnel.
    FRA invites commenters to submit their views on whether the final 
rule should include the issues of first aid and CPR training. If FRA 
does decide to address these issues, one option would be to mandate 
that railroads offer their employees first aid and CPR training, 
without requiring employees to actually use this training during an 
emergency. Under this scenario, a railroad employee who offered no 
assistance during an emergency, because he or she feared coming into 
contact with an injured or ill passenger's bodily fluids, would not 
violate these regulations. (The experience of the American Red Cross is 
that volunteers who receive first aid and CPR training, and appropriate 
equipment, are motivated to provide needed assistance when the time 
comes.) The second option would be not only to require railroads to 
train their employees in first aid and CPR, but also to mandate that 
employees use this training during an emergency.
    The proposed rule also does not require railroads to record the 
number of passengers riding on their trains at any given time or to 
record how many people get on and off at each train stop. Although lack 
of an exact passenger manifest may delay emergency responders in 
determining when every passenger has been removed from a derailed or 
disabled train, the frequency with which many passenger trains pick up 
and discharge passengers would create logistical difficulties for a 
train operator. A train crew can usually provide a good estimate to 
emergency responders, so that they can respond with the necessary 
personnel and equipment. Moreover, it is doubtful that emergency 
responders would simply trust an exact passenger count provided by a 
train crew and cease looking for additional survivors of an emergency. 
Commenters are invited to offer proposals for training on-board 
crewmembers to track the exact number of passengers present on a train 
at any given moment, and to include suggestions on cost-efficient 
technology for achieving this goal.
    The proposed rule also requires appropriate training of control 
center personnel who affect the implementation of a railroad's 
emergency response plan. FRA expects the railroad to provide training 
only for the requisite control center employees designated under the 
plan to convey the nature and extent of a passenger train's emergency 
to the emergency responder organizations. Accordingly, FRA does not 
wish to require training of other control center employees who perform 
merely incidental functions, e.g., a clerical or other office employee 
who receives a telephone call from a stalled train.
    The term ``accurately measure'' is used in proposed paragraph 
239.101(a)(2)(iii) relative to employee qualification in a broad sense 
to mean that the employee being tested will show to the railroad 
sufficient understanding of the emergency preparedness plan subject 
area for which he or she is responsible, and that the employee can 
perform the duties required under the plan in a safe and effective 
manner. Proficiency must be demonstrated by successful completion of a 
written examination, but in addition may be illustrated by an 
interactive training program using a computer, a practical 
demonstration of understanding and ability, or an appropriate 
combination of these in accordance with this section.
    This section permits railroads discretion to design the tests that 
will be employed (which for most railroads will entail some 
modification of their existing ``book of rules'' examination to include 
new subject areas), provided that the design addresses all relevant 
elements of the emergency preparedness plan. This section does not 
specify things like the number of questions to be asked or the passing 
score to be obtained. It does, however, contain the requirement that 
the test not be conducted with open reference books unless use of such 
materials is part of a test objective. This section also requires that 
the test be in writing. In deciding to require a written test, FRA was 
aware that the test taking skills of some individuals may be deficient 
and that some persons may have literacy problems. However, FRA believes 
that minimum reading and comprehension skills are needed to assure 
proper execution of an emergency preparedness plan.
    Paragraph 239.101(a)(2)(iv) requires that at least one on-board 
crewmember be qualified under the applicable provisions of the 
railroad's emergency preparedness plan. For example, a commuter 
railroad operates with a three-person crew fully trained under the 
applicable provisions of the railroad's emergency preparedness plan, 
but includes an engineer trainee in the locomotive cab who is not 
qualified under the plan's provisions. Since the train already has a 
fully trained and qualified crew operating the train, the commuter 
railroad is in full compliance with the proposed rule even though one 
on-board crewmember is not qualified under the emergency preparedness 
plan. This paragraph may also apply if, for example, a fully-trained 
passenger train crew turns over the operation of its train to a freight 
railroad train crew that is not qualified under the passenger 
railroad's emergency preparedness plan. Provided that the passenger 
train is operated by the freight crew with at least one on-board 
crewmember of the passenger train present who is qualified under the

[[Page 8343]]

passenger railroad's emergency preparedness plan, there would be no 
violation of the proposed rule. Although the proposed rule requires 
only one qualified crewmember, FRA anticipates that railroads will 
voluntarily elect to train most, if not all, on-board crewmembers in 
emergency response procedures.
    Paragraph 239.101(a)(3) contains the requirement that freight 
railroads must prepare emergency preparedness plans addressing 
instances when they host the operations of rail passenger service over 
their lines. Even though freight railroads may neither provide nor 
operate rail passenger service themselves, and therefore not be subject 
to most requirements of the proposed rule, these railroads still have 
certain significant emergency preparedness responsibilities. The 
emergency preparedness plans for freight railroads must, at a minimum, 
include procedures for making emergency responder notifications, and 
discuss their general capabilities for rendering assistance to the 
involved passenger railroads during emergency situations. The hosting 
freight railroads must address any physical and operating 
characteristics of their rail lines that may affect the safety of these 
rail passenger operations, e.g., evacuating passengers from a train 
stalled in a tunnel or on an elevated structure.
    FRA expects a railroad that operates rail passenger service over 
the line of a freight railroad to review all of the requirements 
imposed by the proposed rule with the host railroad, and coordinate 
their respective roles in implementing a coherent response to an 
emergency situation. While FRA presumes that the freight railroad will 
bear primary responsibility for ensuring the emergency preparedness of 
any railroad permitted to operate intercity passenger or commuter 
trains over its line, the proposed rule does not restrict the host 
railroad and the operating railroad from assigning responsibility for 
compliance with this part via a private contractual arrangement. FRA 
included the coordination requirement to ensure that all railroads 
involved in a particular rail passenger service operation understand 
each other's crucial role in planning for emergency preparedness.
    Paragraph 239.101(a)(4)(i) addresses FRA's expectations for 
compliance with this part from railroads with operations that include 
tunnels of considerable length, where immediate passenger egress is not 
feasible. In order to limit the number of structures covered by this 
proposed paragraph to the longer ones that could be expected to present 
more impediments to the safe and orderly withdrawal of passengers from 
a disabled train, tunnels of less than 1,000 feet are excluded. This 
limitation is reasonable, considering that intercity passenger trains 
seldom consist of less than four cars and often have many more cars 
than this, implying a minimum total train length of 400 or more feet. 
Most likely, a train of this or greater length will have either the 
head or rear end close to or outside of a tunnel portal should an 
unplanned stop occur in a tunnel less than 1,000 feet long.
    Over the years, passenger train emergencies have occurred in 
tunnels where existing emergency procedures and tunnel characteristics, 
such as lighting and communication capabilities, were determined to be 
inadequate. In order to better evaluate tunnel safety issues related to 
emergency preparedness, FRA requested additional information from the 
railroad industry. The results were summarized in a report entitled 
``Tunnel Safety Analysis'' (Tunnel Report), which was published by FRA 
in February 1990. A copy of the report was also made available to the 
rail passenger railroads for their information and guidance, and has 
been placed in the docket for this rulemaking. FRA encourages all 
railroads required to address tunnel safety in their emergency 
preparedness plans to consult the Tunnel Report for guidance. FRA is 
also aware that many State and local jurisdictions already impose site-
specific regulations to address tunnel safety, and that most railroads 
with operations involving tunnels have long-standing internal emergency 
tunnel procedures.
    Paragraph 239.101(a)(4)(ii) proposes that railroads operating on 
elevated structures, over drawbridges, and in electrified territory, 
incorporate emergency preparedness procedures into their plans to 
address these unique physical characteristics. For example, in an 
emergency in electrified territory, the control center should be 
responsible for issuing instructions to deenergize the electrical 
power. Also, the train crew and emergency responders should know how, 
when, and when not to remove on-board power from the train, including 
traction power, train-lined (head-end) power to individual cars, and 
battery source power.
    Paragraph 239.101(a)(4)(iii) recognizes that the emergency 
preparedness plans of certain freight and passenger railroads will need 
to address the unique safety concerns posed by adjacent rail modes of 
transportation. For example, employees of a freight railroad to which 
this part applies, who have knowledge of or observe an emergency in a 
common corridor, e.g., fire, derailment, or intrusion by rapid transit 
rail equipment or vehicles, must be required by the plan to immediately 
notify the control center with details. The control center must attempt 
to determine the exact location of the incident, any condition that 
would affect safe passage by affected trains or road vehicles, and 
whether hazardous materials are involved, and then initiate appropriate 
responsive action.
    Many emergencies require response from outside emergency responder 
organizations in addition to the railroad. Proper coordination of roles 
between all of the organizations that may respond to an emergency is 
essential to ensure timely and effective response, since the number of 
passengers carried and the railroad operating environment may be quite 
different according to the type of service and routes. Paragraph 
229.101(a)(5) recognizes that the successful implementation of any 
emergency preparedness plan depends upon the affected railroads 
maintaining current working relationships with the emergency responder 
organizations, so that each party can learn of the full preparedness 
capabilities that the other can offer during an emergency. In this 
regard, each railroad's emergency preparedness plan must provide for 
distribution to emergency responders of railroad equipment diagrams and 
manuals, right-of-way maps, information on physical characteristics 
such as tunnels, bridges, and electrified territory, and other related 
materials. In order to continually reinforce the familiarization of the 
emergency responder organizations with the railroads' protocols, 
procedures, operations, and equipment, the proposed rule requires 
railroads to periodically distribute applicable portions of the plan to 
emergency responders at least once every three years, even if no 
changes have been implemented. Further, since the knowledge and ability 
to carry out procedures and use emergency equipment are essential to 
the success of emergency response actions, the proposal requires the 
railroads to promptly notify emergency responders whenever material 
alterations to the plan occur (e.g., revisions to emergency exit 
information, pertinent changes in system route characteristics or 
railroad equipment operated on the system, or updates to names and 
telephone numbers of relevant contact officials on the railroad).
    FRA wants to ensure that the emergency responders will receive the 
maximum amount of available

[[Page 8344]]

information about a railroad's operations in advance of an emergency, 
and hopes that emergency responders will voluntarily study the material 
distributed and participate in emergency simulations. However, the 
proposed rule would only require that affected railroads make the 
operations information available to emergency responders, and that the 
responders merely be invited to participate in emergency simulations. 
FRA has no authority to penalize an emergency responder organization if 
it chooses to ignore the distributed information or refuses to attend 
simulations with the railroad. Likewise, the proposed rule would not 
hold a railroad accountable for an emergency responder organization's 
unwillingness to enter into a liaison relationship, provided that the 
railroad made the liaison opportunities known and available to the 
responders.
    In its comments on the revised regulatory text, METROLINK 
questioned the meaning in paragraph 239.101(a)(5)(ii) of the phrase 
``maintaining an awareness of each emergency responders' capability.'' 
METROLINK noted that its operations include 33 different fire 
districts, over 50 ambulance companies, and 45 police agencies, and 
contended that maintaining this type of awareness is not a railroad 
function. METROLINK also stressed that the proposed rule does not 
require emergency responders to notify each affected railroad when 
their capabilities change, and stated that it is the responsibility of 
the emergency responders to establish mutual aid with other local 
agencies when emergency situations exceed their capabilities. In 
addition, METROLINK indicated that it lacks the technical capacity to 
know or understand when a significant change may occur in an emergency 
responder's response capability.
    FRA is aware of the great number of jurisdictions that intercity 
trains operate through, and that it is neither simple nor inexpensive 
for passenger train operators to provide material and familiarization 
to every outside emergency response organization within all individual 
communities along each route. Some commuter train operators have 
developed booklets and videotapes to illustrate equipment and describe 
entry and evacuation procedures for its trains and certain right-of-way 
facilities. However, Amtrak stated at the Working Group meetings that 
because it operates through thousands of jurisdictions with thousands 
of potential emergency responder organizations located throughout the 
United States, it would have difficulty complying with this paragraph.
    While FRA considers the establishment of liaison relationships 
between railroads involved with rail passenger operations and emergency 
responders crucial to achieving the goals of the proposed rule, the 
agency is also fully aware of the unique circumstances of Amtrak's 
operations. Commenters are invited to suggest either how Amtrak can 
best comply with the emergency responder liaison requirement as set 
forth in the proposed rule, or whether the final rule should establish 
a different standard for railroads that operate in territories with 
large numbers of potential emergency responders to contact. Any 
commenter proposing two or more sets of standards should also suggest 
what numerical or mileage criteria should be used to distinguish the 
railroads, and state how these differing standards would still ensure 
adequate levels of safety and emergency preparedness.
    Paragraph 239.101(a)(6) states that each railroad's emergency 
preparedness plan shall indicate the types of on-board emergency 
equipment and the location on each passenger car. Although the proposed 
rule requires a minimum of only one fire extinguisher and one pry bar 
per passenger car, and one flashlight per on-board crewmember, FRA 
would strongly encourage each railroad to voluntarily supplement this 
list of on-board emergency equipment. Further, FRA recognizes that 
there may be special local interests that might need to be 
accommodated, particularly in cases of public authorities operating 
passenger train service within only one territory. While national 
uniformity to the extent practicable of laws, regulations, and orders 
related to railroad safety is important, FRA does not wish to decrease 
the level of emergency preparedness already in place on a passenger 
railroad.
    FRA must determine whether the final rule should specifically 
address special circumstances that may exist in local jurisdictions 
throughout the country on a categorical basis, which are currently 
subject to more stringent requirements than the minimum quantities of 
on-board emergency equipment set forth in the proposed rule. 
Accordingly, FRA invites comments on what types and quantities of on-
board emergency equipment railroads are currently required to carry 
pursuant to laws in the local jurisdictions in which they operate. FRA 
also invites comments on the reasons for these more stringent 
requirements. Depending on the comments received, FRA may adopt the 
minimums set forth in the text of the proposed rule or decide to 
broaden the coverage and requirements of Sec. 239.101(a)(6) by 
specifying additional types and/or quantities of on-board emergency 
equipment that some or all railroads must carry on each passenger car.
    This paragraph does not require railroads to instruct their 
passengers about either the location or use of the on-board emergency 
equipment. As stated, FRA is committed to crafting a final rule that 
avoids micromanagement of the provisions of a railroad's emergency 
preparedness plan. FRA recognizes that passengers might benefit from 
receiving routine instructions about the location and operation of on-
board emergency equipment during each train trip, in the event that the 
crewmembers are injured or otherwise unable to access the equipment 
before the outside emergency responders arrive. However, FRA is also 
aware from its consultations with the Working Group that pilferage of 
on-board emergency equipment is a serious problem on many passenger 
railroads, and that specifically focusing the attention of passengers 
on where the equipment is located would only exacerbate the problem. 
Clearly, the equipment can only help both crewmembers and passengers 
during an emergency if it is available for proper use. Also, members of 
the Working Group stressed that regular riders on intercity or commuter 
operations are probably already familiar with the on-board emergency 
equipment by virtue of their frequent presence on the train, and would 
not benefit from any additional required information.
    Since the rulemaking on rail passenger equipment safety standards 
is still ongoing, FRA is unable to state whether railroads will be 
required to install permanent or auxiliary emergency lighting on their 
rail cars. However, whatever requirements eventually appear in a new 
set of regulations at 49 CFR Part 238, paragraph 239.101(a)(6)(ii) 
states that auxiliary portable lighting must be available for 
assistance in an emergency and should be routinely maintained and 
replaced as necessary. The proposed rule does not require that every 
rail passenger car have such lighting, but the train itself must carry 
enough portable lighting capable of fostering passenger evacuation. In 
its comments on paragraph 239.101(a)(6)(ii) of the revised regulatory 
text, METROLINK stated that FRA needs to define the phrase ``auxiliary 
portable lighting must be accessible,'' and questioned whether a 
flashlight is an acceptable form of

[[Page 8345]]

such lighting. FRA intends for a handheld flashlight, such as a 
flashlight with a ``D'' cell, to be one of the means of satisfying the 
auxiliary portable lighting requirement.
    Finally, paragraph 239.101(a)(7) requires railroads to make 
passengers aware of emergency procedures to follow before an emergency 
situation develops, thus enabling them to respond properly during the 
emergency. All passenger awareness efforts must emphasize that 
passengers must follow the directions of the train crew during an 
emergency. If passengers are on a disabled train, but are not injured 
or facing imminent danger, they could safely await the arrival of 
trained emergency responders with appropriate evacuation equipment. 
However, in a serious emergency involving smoke or fire, passengers may 
have to evacuate the train before emergency responders arrive. Thus, 
operators of rail passenger service should take steps to increase 
passenger awareness about basic evacuation procedures. Since passengers 
could inadvertently jeopardize their own safety, it is appropriate for 
them to take the initiative only if the crewmembers are incapacitated.
    Passenger railroads must educate passengers about their role in 
cooperating in emergencies by conspicuously and legibly posting 
emergency instructions inside each passenger car, and by utilizing at 
least one of the additional methods designated in this paragraph to 
provide safety awareness information. These methods include 
distributing pamphlets, posting information in stations on signs or on 
video monitors, and the review of procedures by crewmembers via public 
address announcements. All brochures and signage must emphasize that 
passengers must follow the directions of the train crew during an 
emergency.
    Although paragraph 239.101(a)(7)(ii)(A) permits a railroad to 
fulfill the secondary passenger education requirement of the proposed 
rule by making on-board announcements, the proposed language does not 
specify the frequency with which these announcements must be made 
during a train run. While FRA believes that, with regard to intercity 
service, announcements are appropriate after at least each major 
passenger pick-up point, commenters are invited to suggest ways of 
providing safety information to all new riders without becoming 
repetitious to the remaining passengers. In addition, while the 
proposed rule requires railroads to utilize only one additional method 
to disseminate safety awareness information to passengers, FRA 
encourages railroads to employ as many of the options as possible based 
on operating and budgetary considerations.
    The information in the various sources of passenger safety 
awareness information must be consistent in content and sufficient for 
first-time users of the railroad, but not so overwhelming as to arouse 
undue concern. All information must be printed or spoken in English, 
but railroads serving large non-English speaking communities should 
consider providing information in other languages as well. Materials 
for persons who are visually impaired should be printed in large type 
format and in braille. Finally, for persons with other types of 
disabilities, appropriate passenger awareness materials should provide 
information about evacuation policies and procedures and other 
emergency actions, to the extent practicable.
    Passenger awareness education should include information that may 
permit passengers to accomplish the following:
     Recognize and immediately report potential emergencies to 
crewmembers;
     Recognize hazards;
     Recognize and know how and when to operate appropriate 
emergency-related features and equipment, such as fire extinguishers, 
train doors, and emergency exits; and
     Recognize the potential special needs of fellow passengers 
during an emergency, such as children, the elderly, and disabled 
persons.
    Paragraph 239.101(a)(7)(iii) requires railroads to perform surveys 
of their passengers in order to learn how successful the passenger 
awareness program activities have been in apprising passengers of the 
procedures that must be followed during an emergency. In addition to 
verifying that passengers can locate and operate the emergency window 
and door exits in the event of an evacuation, the surveys must 
determine that passengers know where the safety information is posted 
in the car and that during an emergency they must follow the directions 
of the train crew.
    Although the railroad is required to maintain records of the 
information obtained from its passenger surveys, the proposal does not 
mandate that railroads ask passengers to complete written 
questionnaires. Instead of handing out questionnaire surveys at station 
stops and hoping that passengers will voluntarily elect to either 
provide responses in narrative form or fill in answers to multiple 
choice questions, the railroad could direct its employees to wait at 
either station stops or onboard trains and orally read the questions to 
selected members of the traveling public who voluntarily agree to 
participate. The oral responses would then be recorded by the railroad 
in writing on records that would be maintained at the system 
headquarters for the railroad and at the division headquarters for each 
division where the surveys were conducted (i.e., the records 
availability must be division specific). The records can consist of 
multiple documents, and may contain separate sections covering 
locations of the safety information on the cars and knowledge of the 
safety procedures to follow in an emergency. Additionally, railroads 
must make these survey records available to duly authorized FRA 
representatives for inspection and copying (e.g., photocopying or 
handwritten notetaking) during normal business hours.
    The proposal specifies that a railroad must survey a representative 
sample of passengers at least once during each calendar year to 
determine the effectiveness of its passenger awareness activities. FRA 
is not proposing a methodology for conducting this sampling, nor is it 
requiring that the surveys be distributed at every station stop or 
along particular major lines. FRA is confident that each railroad will 
use due dilgence in surveying a statistically significant cross section 
of its customer population in order to periodically update and improve 
its passenger safety awareness information and amend its emergency 
preparedness plan, as appropriate. Although FRA is proposing that 
railroads conduct the surveys at least annually, we expect that after 
the initial education effort takes place in the first year that the 
rule is in effect the ridership awareness level will reach a percentage 
in the range of between 60 to 75 percent. If this increased awareness 
level occurs, as reflected in a high rate of correct survey responses, 
FRA believes that the requirement could be modified to permit railroads 
to conduct the surveys at least once every three years. FRA seeks 
public comment on both whether the final rule should permit railroads 
to conduct surveys less frequently than annually, and if so, on what 
would be an appropriate minimum percentage of public awareness that 
must be reached before less frequent surveying would be justified.
    Since the issue of passenger surveys was not fully developed with 
the Working Group during the drafting of this proposal, FRA looks 
forward to working with the members of the

[[Page 8346]]

Working Group during the final rule phase to develop the most effective 
means of verifying that the passenger awareness program activities will 
achieve their objectives. In this regard, FRA seeks comments on whether 
the survey process anticipated by this proposal can be a reliable 
measure of the effectiveness of the passenger information programs or 
whether there are more efficient or less expensive means than surveys 
to determine the success of these programs, such as focus groups or 
unstructured meetings and discussions with members of the traveling 
public. Commenters from railroads are urged to discuss what sampling 
techniques they currently use when they conduct customer satisfaction 
surveys in order to assist them in improving passenger comfort, 
determining if railroad employees are providing proper customer 
service, and planning timetable schedules.
    Since proposed paragraph 239.101(a)(7)(ii) requires railroads to 
utilize an additional method of providing safety information without 
specifying how frequently the information must be provided, commenters 
are encouraged to address this issue by indicating whether each 
railroad should be allowed to study the results of the passenger 
surveys in order to determine the effectiveness and proper timing of 
passenger safety awareness program activities appropriate for its 
operation. Accordingly, instead of specifying a fixed maximum time 
interval between utilization of the additional forms of program 
activity, FRA could elect to require that railroads determine the 
optimal frequency that best serves their passengers. In addition, it is 
expected that as the traveling public grows more accustomed to reading 
and understanding the emergency instructions posted inside all 
passenger cars on bulkhead signs, seatback decals, or seat cards the 
need for redundant reminders (e.g., on-board announcements, ticket 
envelope safety information, or public service announcements), 
especially at frequent time intervals, will greatly diminish. Moreover, 
depending on the additional method selected, different time intervals 
may be appropriate. For example, while it may be suitable for a 
railroad to distribute safety awareness information on a seat drop 
every three months, the railroad may conclude that it should arrange 
for public service announcements on a weekly basis. Commenters 
recommending inclusion of fixed timeframes for providing passengers 
with additional methods of safety awareness information are urged, if 
possible, to provide scientific or sociological data and/or cost 
estimates to support their suggested time intervals.

11. Passenger Train Emergency Simulations: Section 239.103

    Section 239.103 recognizes that one of the most effective training 
techniques is a simulation of specific emergency scenarios. Simulations 
may vary from a small-scale drill or tabletop exercise for just one 
train crew or control center operator, to a full-scale emergency 
exercise involving several levels of railroad management that includes 
the voluntary participation of fire departments, ambulance and 
emergency medical service units, local police, sheriff and state police 
organizations, local emergency auxiliary groups, and state and federal 
regulatory agencies. While simulations are primarily designed to 
demonstrate that railroad employees can quickly and efficiently manage 
an emergency situation to ensure that emergency responders arrive 
quickly, simulations are also intended to determine whether train crews 
are properly trained to get passengers out of an imperiled train.
    The tabletop exercise is the simplest to stage, as it involves only 
a meeting room and knowledgeable managers and employees from the 
passenger train operator and the appropriate responding organizations 
who voluntarily participate. For an imaginary emergency, the actions to 
be taken by the appropriate personnel are described; the time, 
equipment, and personnel necessary are estimated; and potential 
problems are predicted. Conflicts of functional areas, lack of 
equipment, procedural weaknesses or omissions, communication 
difficulties, and confusing terminology are among the problems which 
can be identified.
    Passenger train operators can drill their train crews, other on-
board personnel, supervisors, and control center operators on emergency 
operating procedures by posing a hypothetical emergency for employees 
to resolve without dispatching emergency responders to the scene. A 
drill could also involve the voluntary participation of personnel of a 
particular response organization, e.g., a fire department. The same 
type of problems as indicated for the tabletop exercise can be 
identified, and the actual response capabilities of personnel in terms 
of their knowledge of procedures and equipment can be evaluated.
    Full-scale emergency exercises require weeks of carefully organized 
plans involving all participating organizations and will involve the 
expenditure of funds for both the training and actual full-scale 
exercise. Recording or videotaping the scenes and conversations in key 
areas of the exercise itself will serve as valuable classroom training 
for later years. A full-scale exercise is the total application of the 
resources of the passenger railroad operator and the voluntarily 
participating emergency response organizations. Such an exercise can 
reveal the degree of familiarity of both the passenger train system and 
emergency response organization personnel with train operations, the 
physical layout of trains, right-of-way structures and wayside 
facilities, emergency exits, and emergency equipment. Thus, 
shortcomings in the emergency preparedness plan and specific response 
protocols and procedures, as well as equipment, can be identified and 
corrected.
    FRA is seriously evaluating whether tabletop exercises should be 
afforded the same weight in the final rule as full-scale simulations 
for purposes of demonstrating the readiness of a railroad to 
successfully react to a passenger train emergency, and we are 
considering requiring that each railroad conduct a minimum number of 
its simulations as full-scale exercises. In this regard, FRA is 
skeptical as to whether a tabletop exercise can equal the 
comprehensiveness of a full-scale exercise and be a highly effective 
means of determining whether a railroad is adequately prepared for the 
likely variety of emergency scenarios that could occur on its lines, as 
well as an important training tool for the train crews, control center 
employees, and members of the emergency responder community who elect 
to participate. In considering whether to strengthen the emergency 
simulation requirement, FRA is aware that realistic full-scale 
simulations that enable all participants to practice using the on-board 
emergency equipment and emergency exits, and encourage the emergency 
responders to become personally familiar with passenger equipment and 
applicable railroad operations, could prove invaluable in helping 
railroads and the emergency responder community to manage real 
emergencies in ways that tabletop exercises cannot. However, FRA is 
also aware that the financial and logistical costs of conducting full-
scale simulations are undoubtedly higher, including the need to close 
railroad tracks during the hours of the simulation, opportunity costs 
for the railroads due to lost use of the passenger equipment that is 
employed

[[Page 8347]]

in the simulations, unavailability of firefighting and rescue equipment 
for other emergencies while the simulations are being conducted, and 
salary costs for many or all of the simulation participants.
    In order to best determine whether the final rule should require 
full-scale emergency simulations in conjunction with tabletop 
exercises, or perhaps in place of such exercises, FRA must carefully 
weigh the expected costs and potential benefits of all available 
options. FRA therefore seeks public comment on the perceived 
effectiveness of both full-scale emergency simulations and tabletop 
exercises, including a discussion of whether tabletop exercises can 
achieve the equivalent level of emergency preparedness as full-scale 
simulations. FRA is particularly interested in receiving comments from 
the emergency responder community, especially from those members who 
have participated in either emergency simulations or actual emergency 
situations with railroads.
    To achieve a maximum level of effectiveness, drills and exercises 
should reinforce classroom training in emergency response and passenger 
evacuation for the passenger train operator personnel and the emergency 
response units who voluntarily participate. Procedures should also be 
included to teach personnel to identify the emergency and distinguish 
its unique demands, and to follow through with the appropriate 
responses. In addition, the drills and exercises should be planned to 
minimize hazards which could create an actual emergency or cause 
injuries and to provide a mechanism for simultaneous testing and 
reinforcement of emergency operating procedures for specific types of 
emergencies and evacuation procedures. Moreover, the drills and 
exercises should test the communication capabilities and coordination 
of the passenger operator with the emergency responders, as well as the 
operability and effectiveness of emergency equipment.
    Paragraph (b) requires each railroad that provides commuter or 
other short-haul passenger train service to conduct an emergency 
simulation at least once during every two calendar year on all major 
lines, and include at least 50 percent of the major lines in the total 
number of simulations held during any given calendar year. Since FRA 
has determined that a train crew on a commuter or other short-haul 
operation will usually operate a train along the same line for an 
extended period of time, and that emergency responder organization 
personnel tend to be line-specific in terms of their familiarity with a 
railroad's operations, it is crucial that each affected railroad 
provide adequate opportunities along all of its major lines for its 
employees and the responder community to obtain emergency simulation 
training. While FRA anticipates that each commuter or short-haul 
railroad will conduct emergency simulations as frequently as possible 
on its entire system, the proposal applies only to operations over 
major lines so that the railroad can best reach the most heavily 
traveled portions of its system while conserving limited resources. In 
this regard, FRA recognizes that emergency responder organizations tend 
to be densely located along the major lines of commuter and short-haul 
railroad operations.
    FRA seeks public comment on whether the final rule should require a 
different timetable for accomplishing emergency simulations along each 
major route and/or require a greater total number of emergency 
simulations during any given calendar year. In this regard, since 
emergency simulations are such an important means for a railroad to 
measure its degree of emergency preparedness, FRA is considering 
strengthening the final rule to require that each railroad conduct a 
sufficient number of emergency simulations so that each major line will 
be included at least once during every calendar year, instead of only 
once during every two calendar years.
    Although the proposal sets forth a requirement for each commuter 
and short-haul railroad to perform emergency simulations on all of its 
major lines, FRA does not expect the railroad to require all employees 
along those lines who are trained under the emergency preparedness plan 
to attend the simulations, nor do we expect the railroad to invite all 
potential emergency responders along those lines to participate. While 
FRA hopes that over the long term all railroad employees involved in 
the operation of passenger train service, as well as the applicable 
members of the emergency responder community, will have the opportunity 
to participate in this valuable training exercise and enhance their 
individual emergency preparedness skills, the simulations are also 
intended to identify shortcomings in each railroad's emergency 
preparedness plan and specific response protocols and procedures. The 
railroad must discuss the identified weaknesses and overall 
effectiveness of the emergency preparedness plan with the simulation 
participants at the debriefing and critique session held under proposed 
Sec. 239.105, and then initiate any appropriate improvements and/or 
amendments to the plan. As part of this review process, FRA expects the 
railroad to revise its training program and liaison relationships with 
the emergency responder community, in accordance with proposed 
Sec. 239.101. Accordingly, while the proposed rule does not mandate 
that affected railroads conduct numerous simulations all along the 
major lines so as to include every possible participant, FRA concludes 
that the lessons learned from the required debriefing and critique 
sessions will have far reaching benefits.
    In order to ensure that each affected railroad evaluates its 
overall emergency response capabilities through careful selection of 
the appropriate scenarios and locations on each of its main lines for 
the emergency simulations, the proposal requires each railroad to 
organize simulations that will adequately test the performance of the 
railroad's program under the variety of emergency situations that could 
reasonably be expected to occur on the operation. For example, a 
railroad operating in territory that includes underground tunnels will 
need to conduct simulations to test the railroad's ability to ensure 
employee and passenger safety during an emergency situation occurring 
in this unique environment. Adequate lighting and sources of air in 
tunnels and underwater tubes are critical for successful passenger 
evacuation during emergencies. Further, emergency responders depend on 
sufficient lighting for visibility during fire suppression and rescue 
operations. If the railroad intends to evacuate passengers by using 
cross passages and/or fire doors leading to the opposite track area, or 
a separate center passageway between the adjacent track areas, the 
simulation should include practice in the requisite evacuation 
protocols and procedures.
    In the case of a railroad providing intercity passenger service 
involving a number of lines operated over long distances, such as the 
coast-to-coast service provided by Amtrak, the need for the railroad to 
carefully plan its simulations and concurrently examine the 
effectiveness of its emergency preparedness plan under a variety of 
scenarios becomes crucial. Many of Amtrak's lines run for hundreds of 
miles through remote locations that could include risks from tunnel 
mishaps, natural disasters (e.g., fires, floods, and earthquakes), 
hazardous material leaks, and/or acts of terrorism. Further, because of 
the length of time required to travel these lines, the same train will 
be operated by more than one crew and may involve operation over

[[Page 8348]]

the line of a freight railroad. Since Amtrak's lines traverse numerous 
populated communities throughout the United States, an emergency 
situation could require the assistance of any number of potentially 
thousands of emergency responders from these locations.
    While FRA is not proposing at this time to require operators of 
intercity service to conduct additional emergency simulations along its 
lines in order to reach a greater proportion of employees and members 
of the emergency response community (equivalent to the number required 
on the major lines of railroads that provide commuter or other short-
haul service), we do expect such railroads to plan simulations that 
sufficiently test the elements of their emergency preparedness plan 
under the variety of circumstances that could occur in intercity 
service. Although FRA recognizes that the length and diversity of 
Amtrak's operations limit the potential benefits from resources spent 
on conducting emergency simulations, the proposed rule requires Amtrak 
to conduct at least two full-scale or tabletop exercises per year on 
each of its business units. However, FRA is considering imposing more 
rigorous requirements in the final rule on operators of intercity 
service such as Amtrak in order to ensure the requisite level of 
emergency preparedness. By considering each of the emergency scenarios 
that could possibly occur on the different segments of the railroad 
(e.g., simulations of a derailment at a remote location where emergency 
responder assistance is not immediately available, an on-board fire 
inside a tunnel or on a bridge, a derailment involving a freight train 
carrying a hazardous materials spill, etc.), Amtrak can carefully 
design a program to fulfill its overall emergency response needs. While 
we recognize that the term ``business unit'' represents the current 
organizational structure of Amtrak in 1997, and have therefore 
incorporated that concept into the proposed rule, FRA expects to craft 
a term for inclusion in the final rule that has broader applicability.
    While the proposal requires railroads that provide intercity 
passenger train service to conduct two emergency simulations on each 
business unit or other major organizational element during each 
calendar year, FRA seeks public comment on whether this number should 
be increased in the final rule. Commenters, especially those 
representing members of the emergency response community, are 
encouraged to discuss how their recommended minimum number of required 
emergency simulations can best achieve the rule's emergency 
preparedness objectives in a cost beneficial manner that does not 
compromise rail safety. In recommending an optimal minimum number of 
emergency simulations, commenters are specifically urged to opine on 
how a passenger railroad as diverse as Amtrak, which operates coast-to-
coast service under a wide variety of operating conditions through the 
jurisdictions of numerous emergency responders, can best achieve the 
emergency preparedness goals of this section throughout its entire 
system without expending a disproportionate amount of its limited 
resources.

12. Debriefing and Critique: Section 239.105

    Section 239.105 recognizes the value of conducting a formal 
evaluation process after the occurrence of either an actual emergency 
situation or an emergency simulation such as a full-scale or tabletop 
exercise to determine what lessons can be learned. To increase the 
effectiveness of the evaluation of an emergency simulation, railroad 
personnel should be designated as evaluators to provide a perspective 
on how well the emergency preparedness plan and procedures were carried 
out. Although not required by the proposed rule, railroads are also 
encouraged to invite outside emergency response organizations and other 
outside observers to participate as evaluators. Evaluators should be 
given copies of the railroad's emergency preparedness plan before the 
simulation is conducted, and a preliminary meeting should be held to 
familiarize the evaluators with the drill or exercise and assign 
functional areas of concern for evaluation (e.g., communications, 
evacuation times). Depending on the elaborateness of the simulation, 
evaluators may also choose to use video cameras to record the sequence 
of events, actions of personnel, and use of emergency equipment.
    The purpose of a debriefing and critique session is to review with 
railroad personnel the reports of evaluators, present comments or 
observations from other persons, and to assess the need for any 
remedial action, either to correct deficiencies or to generally improve 
the effectiveness of the emergency operations and procedures. Persons 
responsible for conducting the sessions should be instructed by the 
railroad to ask questions that will test emergency preparedness 
procedures, assess training, and evaluate equipment. After a 
simulation, these persons should debrief all participants (including 
simulated victims, if any) who can offer valuable insights and thus 
help the railroad to revise its procedures. The debriefing session 
should help to determine what emergency preparedness or response 
procedures could not be used because of the special circumstances of 
either the train or the passengers, and whether coordination between 
the railroad and the emergency responders requires improvement.
    The above method of conducting post-simulation debriefing and 
critique sessions should also be used by railroads to evaluate 
reactions to actual emergencies. Weaknesses in emergency preparedness 
procedures and equipment and areas for improving training should be 
identified, and the railroad shall amend its emergency preparedness 
plan in accordance with proposed Sec. 239.201. All persons involved 
should be debriefed.
    Although the term ``emergency or emergency situation'' is defined 
in proposed Sec. 239.7 to include a collision with a person, including 
suicides, FRA does expect a railroad to conduct a debriefing and 
critique session after every grade crossing accident. While the 
railroad would still be expected to invoke its emergency preparedness 
plan in the event of a grade crossing accident, the goal of this 
proposed rule is to ensure that railroads effectively and efficiently 
manage passenger train emergencies. Accordingly, FRA does not intend 
for the debriefing and critique requirements of this section to apply 
when an emergency situation involves only a motorist or pedestrian who 
has been injured or killed, and does affect the passengers onboard the 
train. In addition, a railroad cannot count its activation of the 
emergency preparedness plan under these circumstances for purposes of 
satisfying the emergency simulation requirements of Sec. 239.103. While 
a significant derailment with one or more injured passengers or a fire 
on a passenger train would undoubtedly involve significant threats to 
passenger safety, and therefore require a debriefing and critique 
session, the proposed rule leaves open the question of what other types 
of emergency situations would trigger the requirements of this section. 
Since the threshold issue of what constitutes a ``significant threat'' 
to the safety or health of one or more persons requiring immediate 
action has not been fully determined by either FRA or the Working 
Group, FRA is seeking public comment on what sorts of situations to 
include in the final rule under the definition of ``emergency'' or 
``emergency situation'' set forth in proposed Sec. 239.7.

[[Page 8349]]

    The proposed rule does not require railroads to use a prescribed 
FRA form or other specific document at the debriefing and critique 
sessions, nor does the proposed rule set forth specific questions that 
railroads must ask after a simulation or actual emergency.
    However, as a result of whatever means the railroad selects to 
ascertain the effectiveness of its emergency preparedness plan, 
paragraph (b) requires the railroad to determine the functional 
capabilities of the on-board communications equipment, the timeliness 
of the required emergency notifications, and the overall efficiency of 
the emergency responders and the emergency egress of the passengers.
    In order to achieve the goals of this proposed section, and to 
comply with the debriefing and critique recordkeeping requirement of 
paragraph (c), evaluators should be provided with critique sheets, to 
be collected and used in the debriefing and critique sessions conducted 
by the railroads. At a minimum, whatever documentation the railroad 
selects to comply with paragraph (c) should contain the date(s) and 
location(s) of the simulation and the debriefing and critique session, 
and should include the names of all participants. Under the proposed 
rule, the critique sheets, or equivalent records, would then be 
maintained by the railroad at its system and applicable division 
headquarters, and be made available for FRA inspection and copying 
during normal business hours.
    FRA invites comments on whether the final rule should specify 
additional types of issues that must be addressed by railroads at 
debriefing and critique sessions (in addition to the five issues 
required to be addressed in proposed paragraph (b)), or whether each 
railroad should retain some flexibility to develop it own approach to 
conducting these sessions. In this regard, FRA encourages comments on 
the relative value of the final rule requiring discussion and 
documentation of any or all of the following questions:
     Did on-board personnel try to initiate a radio call 
immediately?
     How long did it take for on-board personnel to reach and 
inform the control center of the emergency situation?
     What was the method of notification to the control center? 
Was the method an on-board radio or a wayside radio (if equipped)?
     Was there adequate radio communication equipment? Was it 
used properly? Did it work properly?
     Did on-board personnel know the proper emergency telephone 
number to call from the wayside telephone?
     Did on-board personnel identify him/herself to the control 
center by name and location?
     Did on-board personnel report the number (approximate or 
actual, as appropriate) and status of the passengers?
     Did on-board personnel make audible, appropriate 
announcements to passengers? How many minutes elapsed after the 
simulation or emergency began before the first announcement was made?
     Did on-board personnel properly operate the fire 
extinguishers?
     Did on-board personnel request deenergization of the third 
rail or catenary power?
     Did on-board personnel request the halting of train 
movements?
     How long did it take for the first emergency response unit 
to arrive at the emergency scene?
     How long did it take to completely evacuate the train or 
right-of-way structure or wayside facility and/or extinguish a fire 
(real or simulated)?
    In its comments on the revised regulatory text, METROLINK stated 
that if a commuter railroad performs a tabletop exercise or simulation 
it cannot follow the criteria for a debriefing and critique session set 
forth in this section. Specifically, METROLINK contends that during 
field drill and tabletop exercise simulations the railroads usually do 
not involve real passengers and do not notify the emergency responders 
via the normal means of communication. Moreover, the emergency 
responders do not respond with lights and sirens as they would under 
real emergency conditions.

13. Emergency Exits: Section 239.107

    In the course of normal passenger train operations, persons enter 
and exit passenger cars at a station platform through doors on the side 
of the train. However, when a disabled train cannot be moved to the 
nearest station, alternative evacuation methods must be employed. 
Emergency access to and egress from a passenger car may be achieved 
through outside doors, end doors, and windows. In some emergencies, 
such as when a fire is confined to a single passenger car, persons may 
be moved through the end door(s) to an adjacent car. In other 
emergencies, transfer of all the passengers from the disabled train may 
be required.
    Not all passenger cars have vestibule side doors on both ends, and 
in some equipment, operation of these doors has required considerable 
effort, including hand tools. If a power loss occurs, crewmembers may 
be unable to open either or both of the car vestibule side doors from 
the normal key control station in the car. If side-door emergency 
controls permit opening of only one sliding door, it could prove 
difficult to move certain individuals through it. Also, if the 
vestibule side doors cannot be opened immediately from either the 
inside or the outside, persons may panic and could be injured as others 
attempt to leave the car.
    Commuter railroads have agreed to FRA's request that arrangements 
requiring hand tools (coins and pencils) be retrofitted. Two railroads 
with significant numbers of affected cars are already completing this 
work, and this issue will be separately addressed in the forthcoming 
NPRM on Passenger Equipment Safety Standards. The Passenger Equipment 
Safety Standards Working Group will be evaluating other improvements in 
door design and operation. Paragraph 239.107(a) requires that all doors 
intended by a railroad to be used during an emergency situation be 
properly marked inside and outside, and that the railroad post clear 
and understandable instructions for their use at the designated 
locations.
    Paragraph 239.107(a)(1) requires that the emergency egress exits be 
conspicuously and legibly marked on the inside of the car with 
luminescent material or be properly lighted. FRA realizes that during 
an emergency the main power supply to the passenger cars may become 
inoperative and that crewmembers with portable flashlights may be 
unavailable. Since lack of clear identification or lighting could make 
it difficult for passengers to find the emergency door exits, the 
proposed rule requires luminescent material on all emergency egress 
door exits (or secondary auxiliary lighting near these exits) to assist 
and speed passenger egress from the train during an emergency. The 
marking of the emergency door exits must be conspicuous enough so that 
a reasonable person, even while enduring the stress and panic of an 
emergency evacuation, can determine where the closest and most 
accessible emergency route out of the car is located. In addition, 
while this proposed section does not prescribe a particular brand, 
type, or color of luminescent paint or material that a railroad must 
use to identify an exit, FRA expects each railroad to select a material 
durable enough to withstand the daily effects of passenger traffic, 
such as the contact that occurs as passengers enter and leave the cars.
    Paragraph 239.107(a)(2) requires that the emergency door exits 
intended for emergency access by emergency

[[Page 8350]]

responders for extrication of passengers be marked with retroreflective 
material, so that the emergency responders can easily distinguish them 
from the nonaccessible doors simply by shining their flashlights or 
other portable lighting on the marking or symbol selected by the 
railroad. Again, while this proposed section does not prescribe that a 
railroad use a particular brand, type, or color of retroreflective 
material to identify an access location, FRA expects each railroad to 
select a material durable enough to withstand the daily effects of 
weather and passenger contact, and capable of resisting, to the extent 
possible, the effects of heat and fire. If all doors are equally 
operable from the exterior, no designation would be useful, nor would 
any be required. In a separate rulemaking, FRA's Passenger Equipment 
Safety Standards Working Group (FRA Docket No. PCSS-1) will address 
appropriate requirements for periodic maintenance and replacement of 
the emergency door exit markings.
    The proposed rule requires railroads to post clear and 
understandable instructions at designated locations describing how to 
operate the emergency door exits. This section does not mandate that 
railroads use specific words or phrases to guide the passengers and 
emergency responders. Instead, each railroad should evaluate the 
operational characteristics of its emergency door exits, and select key 
words or diagrams that adequately inform the individuals who must use 
them. While railroads are encouraged to post comprehensive 
instructions, FRA also realizes that during an emergency situation 
every additional moment devoted to reading and understanding access or 
egress information places lives at risk. In addition, FRA would already 
expect passengers and emergency responders to be familiar with the 
location and operation of the railroad's emergency door exits as a 
result of emergency responder liaison activities and passenger 
awareness programs conducted in accordance with proposed Sec. 239.101 
(a)(5) and (a)(7).
    Paragraph (b) requires each railroad operating passenger train 
service to properly consider the nature and characteristics of its 
operations and passenger equipment to plan for routine and scheduled 
inspection, maintenance, and repair of all windows and door exits 
intended for either emergency egress or rescue access by emergency 
responders. In the case of emergency window exits, the inspection, 
maintenance, and repair activities should be performed consistent with 
the requirements of part 223 of this chapter. While the proposed rule 
does not require railroads to perform these tasks in accordance with a 
specific timetable or methodology, except with respect to the periodic 
sampling requirement for emergency window exits discussed below, FRA 
expects each railroad to develop and implement procedures for achieving 
the goals of this paragraph. Visual inspections must be performed 
periodically to verify that no emergency exit has a broken release 
mechanism or other overt sign that would render it unable to function 
in an emergency. Maintenance, including lubrication or scheduled 
replacement of depreciated parts or mechanisms, must be performed in 
accordance with standard industry practice and/or manufacturer 
recommendations. All emergency exits that are found during the course 
of an inspection or maintenance cycle to be broken, disabled, or 
otherwise incapable of performing their intended safety function must 
be repaired before the railroad may return the car to passenger 
service.
    Carrying forward requirements currently contained in FRA's 
Emergency Order No. 20, the proposed rule also requires each railroad 
to periodically test a representative sample of emergency window exits 
on its passenger cars to verify their proper operation. The sampling of 
these emergency window exits must be conducted in conformity with 
either of two commonly recognized alternate methods, which will provide 
a degree of uniformity industry wide. Both methods require sampling 
meeting a 95-percent confidence level that all emergency window exits 
operate properly (i.e., the methods do not accept a defect rate of 5 
percent). Rather than require railroads to test all window exits on a 
specific type or series of car if one car has a defective window exit, 
the proposed rule permits the railroads to use commonly accepted 
sampling techniques to determine how many additional windows to test. 
In general, these principles require that the greater the percentage of 
windows exits that a railroad finds defective, the greater the 
percentage of windows that the railroad will have to test. 
Specifically, sampling must be conducted to meet a 95-percent 
confidence level that no defective units remain in the universe and be 
in accord with either Military Standard MIL-STD-105(D) Sampling for 
Attributes or American National Standards Institute ANSI-ASQC Z1.4-1993 
Sampling Procedures for Inspections by Attributes. Defective units must 
be repaired before the passenger car is returned to service.
    The proposal specifies that a railroad must test a representative 
sample of emergency window exits on its cars at least once during every 
180 days to verify their proper operation. However commenters are 
encouraged to address this issue by indicating whether the sampling 
should occur on an annual basis, or on a less frequent basis. 
Commenters are also urged, if possible, to provide scientific data and/
or cost estimates to support their suggested sampling interval.
    The inspection, maintenance, and repair records concerning 
emergency window and door exits must be retained at the system 
headquarters for the railroad and at the division headquarters for each 
division where the inspections, maintenance, or repairs are performed 
(i.e., the records availability must be division specific). The records 
can consist of multiple documents, and may contain separate sections 
covering inspection, maintenance, and repair or separate sections 
covering different types of passenger equipment. Additionally, 
railroads must make these inspection, maintenance, and repair records 
available to duly authorized FRA representatives for inspection and 
copying (e.g., photocopying or handwritten notetaking) during normal 
business hours.
    METROLINK commented that in order to avoid the unnecessary burden 
of maintaining duplicate records, the rule should require railroads to 
store all of the maintenance records for the emergency window and door 
exits at the site of the inspections. In METROLINK's case, that site 
would be the applicable division headquarters, which is no more than 15 
miles from its system headquarters. METROLINK also noted that paragraph 
239.107(c) does not indicate for how long the inspection records must 
be retained, and recommended that since the current rule calls for 
major service inspections to be retained for 180 days (or until the 
next inspection is performed) the final rule should establish a similar 
timeframe.

14. Emergency Preparedness Plan; Filing and Approval: Section 239.201

    Section 239.201 specifies the process for review and approval of 
each railroad's emergency preparedness plan by FRA. The intent of the 
review and approval is to be constructive, rather than restrictive. It 
is anticipated that the railroads will develop and implement varied 
plans based upon the special circumstances involving their individual 
operations. Under the proposal, FRA would also require that the 
railroad summarize its internal discussions and deliberative processes

[[Page 8351]]

to explain how the railroad's unique and individual operating 
characteristics determined how each issue was finally addressed in the 
emergency preparedness plan. Specifically, FRA expects the railroad to 
include a review of the analysis that led to each element of the 
emergency preparedness plan it submits to FRA for approval, including a 
consideration of the expected monetary costs and anticipated safety 
benefits associated with each section of the plan.
    In its comments, METROLINK stated that the term ``analysis'' in the 
phrase ``shall include a summary of the railroad's analysis supporting 
each plan element and describing how each condition on the railroad's 
property is addressed in the plan'' is vague and lacking in direction. 
METROLINK then asked whether FRA expects to receive a cost benefit 
analysis, systems approach, or safety value analysis. In addition, 
METROLINK questioned whether the term ``condition on the railroad's 
property'' concerns elements of the plan such as earthquakes, wind, and 
power outages.
    FRA will conduct a review of each plan so that there can be an open 
discussion of the plan's provisions from which all concerned parties 
can benefit. However, in order to ensure compliance with minimum plan 
requirements FRA will review each plan in detail prior to approval and 
implementation. FRA expects to involve members of the Passenger Train 
Emergency Preparedness Working Group in developing benchmark criteria 
for plan approvals to simplify plan development and approval. It is 
anticipated that this criteria will address program elements that 
include the following:
     Specific course content for training programs of on-board 
personnel, control center personnel, and other key employees;
     Minimum requirements for emergency exercises, including 
frequency and content of drills with emergency responders and 
simulations to determine rapidity of emergency evacuations under 
varying scenarios;
     Specific means for providing emergency safety information 
to passengers, similar to on-board briefings provided in commercial 
aviation;
     Detailed requirements for tunnel safety, including 
lighting and equipment; and
     Additional attention to emergency equipment, by 
prescribing types and numbers of various kinds of equipment that may be 
useful under varying operating scenarios.
    FRA will also review all plan amendments prior to their going into 
effect. FRA requests comment on whether there are any categories of 
plan amendments that should be permitted to go into effect immediately, 
prior to review and approval, because they constitute improvements for 
which implementation delay should be avoided.
    All persons, such as contractors, who perform any action on behalf 
of a railroad will be required to conform to the emergency preparedness 
plans in effect on the railroads upon which they are working. Persons 
whose employees are working under a railroad's approved emergency 
preparedness plan need not submit a separate plan to FRA for review and 
approval. For example, if a railroad hires an outside independent 
contractor to conduct an emergency simulation pursuant to 49 CFR 
239.103, the contractor must perform this task in accordance with the 
railroad's plan. However, if a freight railroad train crew operates a 
passenger train for a commuter rail authority, the freight railroad 
must coordinate the applicable portions of its emergency preparedness 
plan with the corresponding portions of the commuter rail authority's, 
unless an assignment of responsibility for compliance is made under 49 
CFR 239.101(a)(3).
    The proposed rule does not specifically call for the involvement of 
railroad employees or their representatives in the process of designing 
or reviewing the emergency preparedness plan, because the 
responsibility for having a plan that conforms with this rule lies with 
the employer. However, it should be noted that the success of an 
emergency preparedness plan will require the willing cooperation of all 
persons whose duties or personal safety are affected by the plan.

15. Retention of Emergency Preparedness Plan: Section 239.203

    The emergency preparedness plan and all subsequent amendments must 
be retained at the system headquarters for the railroad and at the 
division headquarters for each division where the plan is in effect 
(i.e., the records availability must be division specific). The 
emergency preparedness plan may consist of multiple documents or 
booklets and may contain separate sections covering the varying job 
functions and plan responsibilities of on-board and control center 
personnel. Additionally, railroads must make their emergency 
preparedness plan records available to duly authorized FRA 
representatives for inspection and copying (e.g., photocopying or 
handwritten notetaking) during normal business hours.

16. Operational (efficiency) tests: Section 239.301

    Section 239.301 contains the requirement that railroads monitor the 
routine performance of employees who have individual responsibilities 
under the emergency preparedness plan to verify that the employee can 
perform the duties required under the plan in a safe and effective 
manner. It permits the railroad to test proficiency by requiring the 
employee to complete a written or oral examination, an interactive 
training program using a computer, a practical demonstration of 
understanding and ability, or an appropriate combination of these in 
accordance with this section. This testing can also involve check rides 
and control center visits, along with unannounced, covert observation 
of the employees.
    This section requires a railroad to keep a record of the date, 
time, place, and result of each operational (efficiency) test that was 
performed in accordance with its emergency preparedness plan. Each 
record must identify the railroad officer administering the test of 
each employee. Accordingly, by identifying the specific data points 
that each record must provide, this section will promote the 
examination of relevant information from captured data sources, 
enabling FRA to better determine the effectiveness of a railroad's 
emergency preparedness plan. Written or electronic records must be kept 
of these operational (efficiency) tests for one calendar year after the 
end of the year in which the test was conducted, available for 
inspection and copying by FRA during normal business hours.

17. Electronic recordkeeping: Section 239.303

    Section 239.303 authorizes railroads to retain their operational 
(efficiency) test records by electronic recordkeeping, subject to the 
conditions set forth in that provision. This provision provides an 
alternative for railroads retaining certain information, as required in 
proposed Sec. 239.301. FRA realizes that requiring railroads to retain 
the information in paper form would impose additional administrative 
and storage costs, and that computer storage of these documents would 
also enable railroads to immediately update any amendments to their 
operational testing programs.
    Each participating railroad must have the essential components of a 
computer system, i.e., a desktop computer and either a facsimile 
machine or a printer connected to retrieve and produce

[[Page 8352]]

records for immediate review. The material retrieved in hard copy form 
must contain relevant information organized in usable format to render 
the data completely understandable. The documents must be made 
available for FRA inspection during normal business hours, which FRA 
interprets as the times and days of the week when railroads conduct 
their regular business transactions. Nevertheless, FRA reserves the 
right to review and examine the documents prepared in accordance with 
the Passenger Train Emergency Preparedness regulations at any 
reasonable time if situations warrant.
    Additionally, each railroad must provide adequate security measures 
to limit employee access to its electronic data processing system and 
must prescribe who can create, modify, or delete data from the 
database. Although FRA does not identify the management position 
capable of instituting changes in the database, each railroad must 
indicate the source authorized to make such changes. Each railroad must 
also designate who will be authorized to authenticate the hard copies 
produced from the electronic format. In short, each railroad electing 
to electronically retain its records must ensure the integrity of the 
information and prevent possible tampering of data, enabling FRA to 
fully execute its enforcement responsibilities.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures
    This proposed rule has been evaluated in accordance with existing 
policies and procedures. Due to the intense public interest in the 
subject matter of the proposed rule, the proposed rule is considered to 
be significant under both Executive Order 12866 and DOT policies and 
procedures (44 FR 11034; February 26, 1979). FRA has prepared and 
placed in the docket a regulatory analysis addressing the economic 
impact of the proposed rule. It may be inspected and photocopied at the 
Office of Chief Counsel, FRA, Seventh Floor, 1120 Vermont Avenue, N.W., 
in Washington, D.C. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Federal Railroad Administration, 400 Seventh Street, S.W., Washington, 
D.C. 20590.
    As part of the benefit-cost analysis, FRA has assessed quantitative 
measurements of costs and benefits expected from the adoption of the 
proposed rule. The Net Present Value (NPV) of the total 20-year costs 
which the industry is expected to incur is $4.285 million. Following is 
a breakdown of the costs by requirement.

------------------------------------------------------------------------
             Section                    Requirement            Cost     
------------------------------------------------------------------------
239.101, 201, 203...............  Emergency Preparedness        $105,754
                                   Plan (EPP).                          
                                  Control Center                     957
                                   Notification.                        
                                  On-board Personnel                   0
                                   Training.                            
                                  Control Center                  55,520
                                   Personnel Training.                  
                                  Joint Operations......          16,562
                                  Parallel Operations...           1,297
                                  Emergency Responder                   
                                   Liaison                              
                                  --Provide EPP to                12,741
                                   Responders.                          
                                  --Awareness of                  56,928
                                   Responder                            
                                   Capabilities.                        
                                  On-board Emergency                    
                                   Equipment                            
                                  --One Fire                     147,801
                                   Extinguisher/Car.                    
                                  --One Pry Bar/Car.....          92,066
                                  --Instruction on Pry           242,868
                                   Bar Use.                             
                                  Passenger Safety                      
                                   Awareness                            
                                  --Permanent On-board            65,611
                                   Procedures.                          
                                  --Periodic                           0
                                   Reinforcement.                       
                                  --Annual Customer               26,616
                                   Surveys.                             
239.103, 105....................  Passenger Train                969,140
                                   Emergency Simulations.               
239.107.........................  Emergency Exits                       
                                  --Marking--Interior...         450,525
                                  --Marking--Exterior...       1,347,505
                                  --Inspection and               327,948
                                   Recordkeeping.                       
239.301.........................  Operational Efficiency         590,441
                                   Tests.                               
                                                         ---------------
    Total.......................  ......................       4,510,280
------------------------------------------------------------------------

    Each year there are passenger train accidents which result in one 
or more fatalities. In the last ten years there have been about seven 
passenger train accidents which resulted in a significant loss of life. 
FRA does not know how many commuter or intercity train accidents will 
occur in the future. Although the passenger rail industry has a very 
high level of safety, the potential for injuries and loss of life in 
certain emergency situations is very high. FRA believes that the 
proposed rule represents a cost-effective approach to providing a 
reasonable level of protection against known threats to human life, and 
that if only two fatalities were to be avoided over a twenty-year 
period then the rule would be cost beneficial. Accordingly, while FRA 
cannot predict with confidence the likelihood of particular accident 
circumstances in which particular rule elements will be useful, FRA 
believes that it is reasonable to expect that the measures called for 
in this proposal would prevent or mitigate the severity of injuries 
greater in value than the costs of developing and implementing 
emergency preparedness plans.
    Monetary benefit levels associated with several of the proposed 
requirements are not estimated due to lack of data. FRA would greatly 
appreciate receiving information and comments regarding the benefits 
that would result from complying with the distinct requirements 
proposed. It should be noted that FRA expects total benefits to exceed 
total costs for the proposed rule, and that the rule's provisions are 
necessary components of FRA's overall initiatives for passenger train 
emergency preparedness.
    Included within the $4,510,280 total cost figure are proposed 
requirements for equipping each passenger car with a pry bar, marking 
and inspecting emergency exits, and providing passengers with emergency 
situation procedures that will ensure that each

[[Page 8353]]

passenger is able to escape from a life threatening situation on his or 
her own initiative. The NPV of the twenty-year cost associated with the 
requirements aimed at ensuring that in a life threatening situation 
passengers trapped in a car would be afforded enough opportunity to 
escape safely is $1.2 million.

------------------------------------------------------------------------
             Section                    Requirement            Cost     
------------------------------------------------------------------------
239.101.........................  Pry Bars                              
                                  --One Pry Bar per Car.        $ 92,066
                                  --Instruction on Pry           242,868
                                   Bar Use.                             
                                  Passenger Safety                      
                                   Awareness                            
                                  --Permanent Car                 65,611
                                   Procedures.                          
                                  --Periodic                           0
                                   Reinforcement.                       
                                  Annual Customer                 26,616
                                   Surveys.                             
239.107.........................  Marking Emergency              450,525
                                   Exits--Interior.                     
                                  Inspection of                  327,948
                                   Emergency Exits.                     
                                                         ---------------
    Total.......................  ......................       1,193,820
------------------------------------------------------------------------

These costs would be justified if the next passenger train emergency 
situation is handled in such a way that loss of life is contained.
    As previously noted, FRA is allowing 60 days for comments and 
invites public comment on the issue of regulatory impact. FRA seeks 
comment and/or data to help identify or quantify other factors that may 
affect the benefits or costs of the proposal, including alternatives 
that were not explored by the Working Group and any costs or benefits 
associated with such alternatives.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires an assessment of the impacts of proposed rules on small 
entities. This proposed rule affects intercity and commuter passenger 
railroads. Commuter railroads are part of larger transit organizations 
that receive Federal funds. The American Public Transit Association 
(APTA) represents the interests of commuter railroads in regulatory 
matters. Further, the proposed standards were developed by FRA in 
consultation with a Working Group that included Amtrak, individual 
commuter railroads, and APTA.
    Entities impacted by the proposed rule are governmental 
jurisdictions or transit authorities, none of which are small for 
purposes of the United States Small Business Administration (i.e., no 
entity operates in a locality with a population of under 50,000 
people). Smaller commuter railroads will not be affected 
disproportionately. The level of costs incurred by each organization 
should vary in proportion to the organization's size. For instance, 
railroads with fewer employees and fewer passenger cars will have lower 
costs associated with both employee efficiency testing and emergency 
exit inspections.
    Smaller passenger rail operations such as tourist, scenic, 
excursion, and historic railroads are excepted from the proposed rule. 
The proposed rule does not affect small entities.
    A joint FRA/industry working group formed by the RSAC is currently 
developing recommendations regarding the applicability of FRA 
regulations, including this one, to tourist, scenic, historic, and 
excursion railroads. After appropriate consultation with the excursion 
railroad associations takes place, emergency preparedness requirements 
for these operations may be proposed by FRA that are different from 
those affecting other types of passenger train operations. These 
requirements may be more or less onerous, or simply different in 
detail, depending in part on the information gathered during FRA's 
consultation process.

Paperwork Reduction Act

    The proposed rule contains information collection requirements. FRA 
has submitted these information collection requirements to the Office 
of Management and Budget (OMB) for review and approval in accordance 
with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.). 
FRA has endeavored to keep the burden associated with this proposal as 
simple and minimal as possible. The proposed sections that contain the 
new and/or revised information collection requirements and the 
estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                 Respondent       Total annual     Average time    Total annual    Total annual 
         CFR section              universe         responses       per response    burden hours     burden cost 
----------------------------------------------------------------------------------------------------------------
223..9d/ 239.107:                                                                                               
    A. Emergency egress.....  17 RRs..........  1,300 new        4 minutes......             621         $18,630
                                                 decals.                                                        
                                                4,575 replace    7 minutes......  ..............  ..............
                                                 decals.                                                        
                                                1,300 new        ...............  ..............  ..............
                                                 decals.                                                        
    B. Emergency exits......  17 RRs..........  6,320 new        4 minutes......             824          24,720
                                                 decals.                                                        
                                                ...............  7 minutes......  ..............  ..............
239.107(b)..................  17 RRs..........  1,800 tests....  20 minutes (18              600          18,000
                                                                  minutes to                                    
                                                                  perform test                                  
                                                                  and 2 minutes                                 
                                                                  for                                           
                                                                  recordkeeping).                               
239.101/239.201.............  17 RRs..........  17 plans.......  158 hours......           2,685          90,168
                              17 RRs..........  17 amendments..  1.6 hours......              27             756
239.101 (1)(i)..............  17 RRs..........  N/A............  Usual and                   N/A             N/A
                                                                  customary                                     
                                                                  procedure--No                                 
                                                                  new paperwork.                                
239.101 (1)(ii).............  17 RRs..........  N/A............  Usual and                   N/A             N/A
                                                                  customary                                     
                                                                  procedure--No                                 
                                                                  new paperwork.                                
239.101 (1)(ii).............  5 RRs...........  5 updates of     1 hour.........               5             140
                                                 records.                                                       
239.101 (a)(3)..............  33 RRs..........  33 negotiations  16 hours.......             528          19,800
239.101 (a)(7)(ii)..........  5 RRs...........  1,300 passenger  5 minutes per               108           2,808
                                                 cars.            bulkhead card.                                

[[Page 8354]]

                                                                                                                
                                                5 safety         1 hour per RR                 5             190
                                                 messages.        to develop                                    
                                                                  safety message.                               
239.105.....................  17 RRs..........  66 records.....  30 minutes per               33             924
                                                                  record.                                       
239.301/ 239.303............  17 RRs..........  11,600 tests...  8 minutes per             1,547          58,786
                                                                  test.                                         
239.101 (a)(5)..............  16 RRs..........  16 reponses to   2 hours........              32             896
                                                 distribute                                                     
                                                 info to                                                        
                                                 emergency                                                      
                                                 responders.                                                    
                              1 RR (Amtrak)...  1 response to    100 hours......             100           2,800
                                                 distribute                                                     
                                                 info to                                                        
                                                 emergency                                                      
                                                 responders.                                                    
                              16 RRs..........  16 updates of    30 minutes per                8             224
                                                 emergency        updated.                                      
                                                 responder                                                      
                                                 records.                                                       
                              1RR (Amtrak)....  1 update of      5 hours........               5             140
                                                 emergency                                                      
                                                 responder                                                      
                                                 records.                                                       
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, please contact Ms. Gloria 
Swanson at 202-632-3318.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should submit their views in 
writing to the Office of Management and Budget, Attention: Desk Officer 
for the Federal Railroad Administration, Office and Information and 
Regulatory Affairs, New Executive Office Building, 726 Jackson Place, 
N.W., Washington, D.C. 20503, and should also send a copy of their 
comments to Ms. Gloria D. Swanson, Federal Railroad Administration, 
RRS-21.1, 400 Seventh Street, S.W., Washington D.C. 20590. Copies of 
any such comments should also be submitted to the docket of this 
rulemaking at the mailing address for the Docket Clerk provided above.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this NPRM between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. The final rule will respond 
to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of a final rule. The 
OMB control number, when assigned, will be announced in the Federal 
Register.

Environmental Impact

    FRA has evaluated these proposed regulations in accordance with its 
procedures for ensuring full consideration of the environmental impact 
of FRA actions, as required by the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.), and related directives. This notice meets the 
criteria that establish this as a non-major action for environmental 
purposes.

Federalism Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12612, and it has 
been determined that the proposed rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment. The fundamental policy decision providing that Federal 
regulations should govern aspects of service provided by municipal and 
public benefit corporations (or agencies) of State governments is 
embodied in the statute quoted above. FRA has made every effort to 
provide reasonable flexibility to State-level decision making and has 
included commuter authorities as full partners in development of this 
proposed rule.

List of Subjects

49 CFR Part 223

    Railroad safety, Glazing standards.

49 CFR Part 239

    Railroad safety, Passenger train emergency preparedness.

Request for Public Comments

    FRA proposes to amend part 223 and adopt a new part 239 of Title 
49, Code of Federal Regulations, as set forth below. FRA solicits 
comments on all aspects of the proposed rule whether through written 
submissions, or participation in the public hearing, or both. FRA may 
make changes in the final rule based on comments received in response 
to this notice.

The Proposed Rule

    In consideration of the foregoing, FRA proposes to amend chapter II 
of Title 49, Code of Federal Regulations as follows:

PART 223--[AMENDED]

    1. The authority citation for part 223 is revised to read as 
follows:

    Authority: 49 U.S.C. 20102-20103, 20105-20114, 20133, 20701, 
21301-21302, and 21304; Sec. 215, Pub. L. No. 103-440, 108 Stat. 
4623-4624 (49 U.S.C. 20133); and 49 CFR 1.49(c), (g), (m).

    2. By revising Sec. 223.5 to read as follows:


Sec. 223.5  Definitions.

    As used in this part--
    Caboose means a car in a freight train intended to provide 
transportation for crewmembers.
    Certified glazing means a glazing material that has been certified 
by the manufacturer as having met the testing requirements set forth in 
Appendix A of this part and that has been installed in such a manner 
that it will perform its intended function.
    Designated service means exclusive operation of a locomotive under 
the following conditions:

[[Page 8355]]

    (1) The locomotive is not used as an independent unit or the 
controlling unit is a consist of locomotives except when moving for the 
purpose of servicing or repair within a single yard area;
    (2) The locomotive is not occupied by operating or deadhead crews 
outside a single yard area; and
    (3) The locomotive is stenciled ``Designated Service--DO NOT 
OCCUPY''.
    Emergency opening window means that segment of a side facing 
glazing location which has been designed to permit rapid and easy 
removal during a crisis situation.
    Emergency responder means a qualified member of a police or fire 
department, or other organization involved with public safety, who 
responds to a passenger train emergency.
    End facing glazing location means any location where a line 
perpendicular to the plane of the glazing material makes a horizontal 
angle of 50 degrees or less with the centerline of the locomotive, 
caboose or passenger car. Any location which, due to curvature of the 
glazing material, can meet the criteria for either a front facing 
location or a side facing location shall be considered a front facing 
location.
    Locomotive means a self-propelled unit of equipment designed 
primarily for moving other equipment. It does not include self-
propelled passenger cars.
    Locomotive cab means that portion of the superstructure designed to 
be occupied by the crew while operating the locomotive.
    Passenger car means a unit of rolling equipment intended to provide 
transportation for members of the general public and includes self-
propelled cars designed to carry baggage, mail, express and passengers.
    Passenger train service means the transportation of persons (other 
than employees, contractors, or persons riding equipment to observe or 
monitor railroad operations) in intercity passenger service, commuter 
or other short-haul service.
    Railroad means:
    (1) Any form of non-highway ground transportation that runs on 
rails or electromagnetic guideways, including:
    (i) Commuter or other short-haul rail passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979, and
    (ii) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads, but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation and
    (2) A person that provides railroad transportation, whether 
directly or by contracting out operation of the railroad to another 
person.
    Rebuilt locomotive, caboose or passenger car means a locomotive, 
caboose or passenger car that has undergone overhaul which has been 
identified by the railroad as a capital expense under Surface 
Transportation Board accounting standards.
    Side facing glazing location means any location where a line 
perpendicular to the plane of the glazing material makes an angle of 
more than 50 degrees with the centerline of the locomotive, caboose or 
passenger car.
    Windshield means the combination of individual units of glazing 
material of the locomotive, passenger car, or caboose that are 
positioned in an end facing glazing location.
    Yard is a system of auxiliary tracks used exclusively for the 
classification of passenger or freight cars according to commodity or 
destination; assembling of cars for train movement; storage of cars; or 
repair of equipment.
    Yard caboose means a caboose that is used exclusively in a single 
yard area.
    Yard locomotive means a locomotive that is operated only to perform 
switching functions within a single yard area.
    3. In Sec. 223.9, paragraph (d) is added to read as follows:


Sec. 223.9  Requirements for new or rebuilt equipment.

* * * * *
    (d) Marking. Each railroad providing passenger train service shall 
ensure that:
    (1) All emergency windows are conspicuously and legibly marked with 
luminescent material on the inside of each car to facilitate passenger 
egress. Each railroad shall post clear and legible operating 
instructions at or near such exits.
    (2) All windows intended for emergency access by emergency 
responders for extrication of passengers are marked with a 
retroreflective, unique, and easily recognizable symbol or other clear 
marking. Each railroad shall post clear and understandable window 
access instructions either at each window or at the car ends.
    4. Part 239 is added to read as follows:

PART 239--PASSENGER TRAIN EMERGENCY PREPAREDNESS

Subpart A--General

Sec.
239.1  Purpose and scope.
239.3  Application.
239.5  Preemptive effect.
239.7  Definitions.
239.9  Responsibility for compliance.
239.11  Penalties.

Subpart B--Specific Requirements

239.101  Emergency preparedness plan.
239.103  Passenger train emergency simulations.
239.105  Debriefing and critique.
239.107  Emergency exits.

Subpart C--Review, Approval, and Retention of Emergency Preparedness 
Plans

239.201  Emergency preparedness plan; filing and approval.
239.203  Retention of emergency preparedness plan.

Subpart D--Operational (Efficiency) Tests; Inspection of Records and 
Recordkeeping

239.301  Operational (efficiency) tests.
239.303  Electronic recordkeeping.

Appendix A to Part 239--Schedule of Civil Penalties (Reserved)

    Authority: 49 U.S.C. 20102-20103, 20105-20114, 20133, 21301, 
21304, and 21311; Sec. 215, Pub. L. No. 103-440, 108 Stat. 4623-4624 
(49 U.S.C. 20133); and 49 CFR 1.49 (c), (g), (m).

Subpart A--General


Sec. 239.1   Purpose and scope.

    (a) The purpose of this part is to reduce the magnitude and 
severity of casualties in railroad operations by ensuring that 
railroads involved in passenger train operations can effectively and 
efficiently manage passenger train emergencies.
    (b) This part prescribes minimum Federal safety standards for the 
preparation, adoption, and implementation of emergency preparedness 
plans by railroads connected with the operation of passenger trains, 
and requires each affected railroad to instruct its employees on the 
plan's provisions. This part does not restrict railroads from adopting 
and enforcing additional or more stringent requirements not 
inconsistent with this part.


Sec. 239.3   Application.

    (a) Except as provided in paragraph (b), this part applies to all:
    (1) Railroads that operate intercity or commuter passenger train 
service on standard gage track which is part of the general railroad 
system of transportation;

[[Page 8356]]

    (2) Railroads that provide commuter or other short-haul rail 
passenger train service in a metropolitan or suburban area [as 
described by 49 U.S.C. 20102(1)], including public authorities 
operating passenger train service; and
    (3) Freight railroads hosting the operation of passenger train 
service described in paragraph (a)(1) or (a)(2) of this section.
    (b) This part does not apply to:
    (1) Rapid transit operations in an urban area that are not 
connected with the general railroad system of transportation;
    (2) Operation of private cars, including business/office cars and 
circus trains; or
    (3) Tourist, scenic, historic, or excursion operations, whether on 
or off the general railroad system.


Sec. 239.5   Preemptive effect.

    Under 49 U.S.C. 20106 [formerly Sec. 205 of the Federal Railroad 
Safety Act of 1970 (45 U.S.C. 434)], issuance of these regulations 
preempts any State law, rule, regulation, order, or standard covering 
the same subject matter, except a provision necessary to eliminate or 
reduce an essentially local safety hazard, that is not incompatible 
with Federal law or regulation and does not unreasonably burden 
interstate commerce.


Sec. 239.7   Definitions.

    As used in this part--
    Adjacent rail modes of transportation includes other railroads, 
trolleys, light rail, and heavy transit.
    Crewmember means a person, other than a passenger, who performs 
either:
    (1) On-board functions connected with the movement of the train or
    (2) On-board service.
    Control center means a central location on a railroad with 
responsibility for directing the safe movement of trains.
    Division headquarters means the location designated by the railroad 
where a high-level operating manager (e.g., a superintendent, division 
manager, or equivalent), who has jurisdiction over a portion of the 
railroad, has an office.
    Emergency or emergency situation means an unexpected event related 
to the operation of passenger train service involving a significant 
threat to the safety or health of one or more persons requiring 
immediate action.
    Emergency preparedness plan means one or more documents focusing on 
preparedness and response in dealing with a passenger train emergency.
    Emergency responder means a qualified member of a police or fire 
department, or other organization involved with public safety, who 
responds to a passenger train emergency.
    Emergency window means that segment of a side facing glazing 
location which has been designed to permit rapid and easy removal in an 
emergency situation.
    Joint operations means rail operations conducted by more than one 
railroad on the same track regardless of whether such operations are 
the result of:
    (1) Contractual arrangements between the railroads;
    (2) Order of a governmental agency or a court of law; or
    (3) Any other legally binding directive.
    Passenger train service means the transportation of persons (other 
than employees, contractors, or persons riding equipment to observe or 
monitor railroad operations) by railroad in intercity passenger 
service, commuter, or other short-haul passenger service.
    Private car means a rail passenger car used to transport non-
revenue passengers on an occasional contractual basis, and includes 
business/office cars and circus trains.
    Qualified means a status attained by an employee who has 
successfully completed any required training for, has demonstrated 
proficiency in, and has been authorized by the employer to perform the 
duties of a particular position or function.
    Railroad means:
    (1) Any form of non-highway ground transportation that runs on 
rails or electromagnetic guideways, including:
    (i) Commuter or other short-haul rail passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979, and
    (ii) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads, but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation and
    (2) A person that provides railroad transportation, whether 
directly or by contracting out operation of the railroad to another 
person.
    Railroad officer means any supervisory employee of a railroad.
    System headquarters means the location designated by the railroad 
as the general office for the railroad system.


Sec. 239.9   Responsibility for compliance.

    Although the requirements of this part are stated in terms of the 
duty of a railroad, when any person, including a contractor for a 
railroad, performs any function required by this part, that person 
(whether or not a railroad) is required to perform that function in 
accordance with this part.


Sec. 239.11   Penalties.

    Any person who violates any requirement of this part or causes the 
violation of any such requirement is subject to a civil penalty of at 
least $500 and not more than $10,000 per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury 
to persons, or has caused death or injury, a penalty not to exceed 
$20,000 per violation may be assessed. Each day a violation continues 
shall constitute a separate offense. A person may also be subject to 
the criminal penalties provided for in 49 U.S.C. 21311 (formerly 
codified in 45 U.S.C. 438(e)) for knowingly and willfully falsifying 
reports required by this part. Appendix A contains a schedule of civil 
penalty amounts used in connection with this part.

Subpart B--Specific Requirements


Sec. 239.101   Emergency preparedness plan.

    (a) Each railroad to which this part applies shall adopt and comply 
with written emergency preparedness plan procedures for implementing 
each plan element, including those listed below.
    (1) Communication. (i) Initial and on-board notification. An on-
board crewmember shall quickly and accurately assess the passenger 
train emergency situation and then notify the control center as soon as 
practicable by the quickest available means. The train crewmember shall 
then inform the passengers about the nature of the emergency and 
indicate what corrective countermeasures are in progress.
    (ii) Notifications by control center. The control center shall 
promptly notify outside emergency responders, adjacent rail modes of 
transportation, and appropriate railroad officials that a passenger 
train emergency has occurred. Each railroad shall designate an employee 
responsible for maintaining current emergency telephone numbers for use 
in making such notifications.
    (2) Employee training and qualification. (i) On-board personnel. 
The railroad's emergency preparedness plan shall address individual 
employee

[[Page 8357]]

responsibilities, and provide for initial and periodic training at 
least once every two years on the applicable plan provisions, 
including, as a minimum:

(A) Rail equipment familiarization;
(B) Situational awareness;
(C) Passenger evacuation;
(D) Coordination of functions; and
(E) ``Hands-on'' instruction concerning the location, function, and 
operation of on-board emergency equipment.

    (ii) Control center personnel. The railroad's emergency 
preparedness plan shall require initial and periodic training at least 
once every two years of responsible control center personnel on 
appropriate courses of action for each potential emergency situation.
    (iii) Testing of on-board and control center personnel. A railroad 
shall have procedures for testing a person being evaluated for 
qualification under the emergency preparedness plan. The testing 
methods selected by the railroad shall be:
    (A) Designed to accurately measure an individual employee's 
knowledge of his or her responsibilities under the plan;
    (B) Objective in nature;
    (C) Administered in written form; and
    (D) Conducted without reference to open reference books or other 
materials except to the degree the person is being tested on his or her 
ability to use such reference books or materials.
    (iv) On-board staffing. Each passenger train shall have a minimum 
of one on-board crewmember who is qualified under the applicable 
emergency preparedness plan's provisions.
    (3) Joint operations. (i) Each freight railroad hosting passenger 
train service shall have an emergency preparedness plan addressing its 
specific responsibilities consistent with this part.
    (ii) Each railroad that operates passenger train service over the 
line of a freight railroad shall coordinate the applicable portions of 
its emergency preparedness plan with the corresponding portions of the 
freight railroad's emergency preparedness plan, to ensure that an 
optimum level of preparedness is achieved. Nothing in this paragraph 
shall restrict the ability of the railroads to provide for an 
appropriate assignment of responsibility for compliance with this part 
among those railroads through a joint operating agreement or other 
binding contract. However, the assignor shall not be relieved of 
responsibility for compliance with this part.
    (4) Special circumstances. (i) Tunnels. When applicable, the 
railroad's emergency preparedness plan shall reflect readiness 
procedures designed to ensure passenger safety in an emergency 
situation occurring in a tunnel of 1,000 feet or more in length. The 
railroad's emergency preparedness plan shall address, as a minimum, 
availability of emergency lighting, access to emergency evacuation 
exits, benchwall readiness, ladders for detraining, effective radio or 
other communication between on-board crewmembers and the control 
center, and options for assistance from other trains.
    (ii) Other operating considerations. When applicable, the 
railroad's emergency preparedness plan shall address passenger train 
emergency procedures involving operations on elevated structures, 
including drawbridges, and in electrified territory.
    (iii) Parallel operations. When applicable, the railroad's 
emergency preparedness plan shall provide for coordination of emergency 
efforts where adjacent rail modes of transportation run parallel to 
either the passenger railroad or freight railroad hosting passenger 
operations.
    (5) Liaison with emergency responders. Each railroad to which this 
part applies shall establish and maintain a working relationship with 
the on-line emergency responders by, as a minimum:
    (i) Distributing applicable portions of its current emergency 
preparedness plan at least once every three years, or whenever the 
railroad materially changes its plan in a manner that could reasonably 
be expected to affect the railroad's interface with the on-line 
emergency responders, whichever occurs earlier, including documentation 
concerning the railroad's equipment and the physical characteristics of 
its line, necessary maps, and the names and telephone numbers of 
relevant railroad officers to contact;
    (ii) Maintaining an awareness of each emergency responders' 
capabilities; and
    (iii) Inviting emergency responders to participate in emergency 
simulations, including tabletop exercises.
    (6) On-board emergency equipment. (i) General. Each railroad's 
emergency preparedness plan shall designate the types of on-board 
emergency equipment and indicate their location(s) on each passenger 
car. This equipment shall include, at a minimum:

    (A) One fire extinguisher per passenger car;
    (B) One pry bar per passenger car; and
    (C) One flashlight per on-board crewmember.

    (ii) On-board emergency lighting. Consistent with the requirements 
of 49 CFR Part 238, auxiliary portable lighting must be accessible.
    (iii) Maintenance. Each railroad's emergency preparedness plan 
shall provide for scheduled maintenance and replacement of on-board 
emergency equipment and lighting.
    (7) Passenger safety information. (i) General. Each railroad's 
emergency preparedness plan shall provide for passenger awareness of 
emergency procedures, to enable passengers to respond properly during 
an emergency.
    (ii) Passenger awareness program activities. Each railroad shall 
conspicuously and legibly post emergency instructions inside all 
passenger cars (e.g., on car bulkhead signs, seatback decals, or seat 
cards) and shall utilize one or more of the following additional 
methods to provide safety awareness information:

(A) On-board announcements;
(B) Laminated wallet cards;
(C) Ticket envelopes;
(D) Timetables;
(E) Station signs or video monitors;
(F) Public service announcements; or
(G) Seat drops.

    (iii) Passenger surveys. Each railroad shall survey representative 
samples of passengers at least once during each calendar year to 
determine the effectiveness of its passenger awareness program 
activities, and shall improve its program, as appropriate, in 
accordance with the information developed.
    (A) The survey shall be designed to examine passenger awareness of 
the location(s) on the passenger car of the available safety 
information and verify passenger knowledge of the safety procedures to 
be followed in the event of an emergency.
    (B) The railroad shall inform each surveyed passenger that 
completion of the survey is strictly voluntary.
    (C) Each railroad shall maintain records of its passenger surveys 
at its system headquarters and applicable division headquarters. These 
records shall be made available to representatives of FRA for 
inspection and copying during normal business hours.
    (b) [Reserved]


Sec. 239.103  Passenger train emergency simulations.

    (a) General. Each railroad operating passenger train service shall 
conduct emergency simulations, either full-scale or tabletop exercises, 
in order to determine its capability to execute the emergency 
preparedness plan under the variety of scenarios that could reasonably 
be expected to occur on its operation, and ensure coordination with all 
emergency responders who voluntarily agree to participate in the 
emergency simulations.

[[Page 8358]]

    (b) Frequency of the emergency simulations. Each railroad that 
provides commuter or other short-haul passenger train service shall 
conduct a sufficient number of emergency simulations so that each major 
line will be included at least once during every two calendar years and 
the number of simulations performed during any given calendar year will 
include at least 50 percent of the total number of major lines. Each 
railroad that provides intercity passenger train service shall conduct 
at least two emergency simulations during each calendar year for each 
business unit or other major organizational element.
    (c) Definition. As used in this section, in the case of a railroad 
that provides commuter or other short-haul passenger train service, 
major line includes each principal route and its branches.
    (d) Actual emergency situations. Provided that a railroad conducts 
a debriefing and critique session meeting the requirements of 
Sec. 239.105 of this subpart, a railroad may count the activation of 
its emergency preparedness plan during an actual emergency situation 
toward the minimum number of simulations required under this section. 
However, a railroad may substitute the activation of its emergency 
preparedness plan to satisfy no more than 50 percent of the total 
number of simulations required under this section.


Sec. 239.105  Debriefing and critique.

    (a) General. Each railroad operating passenger train service shall 
conduct a debriefing and critique session after each passenger train 
emergency situation or simulation to determine the effectiveness of its 
emergency preparedness plan, and shall improve and/or amend its plan, 
as appropriate, in accordance with the information developed.
    (b) Purpose of debriefing and critique information. The debriefing 
and critique session shall be designed to determine, at a minimum:
    (1) Whether the on-board communications equipment functioned 
properly;
    (2) The elapsed time between the occurrence of the emergency 
situation or simulation and notification to the emergency responders 
involved;
    (3) Whether the control center promptly initiated the required 
notifications;
    (4) How quickly and effectively the emergency responders responded 
after notification; and
    (5) The efficiency of passenger egress from the car through the 
emergency exits.
    (c) Records. Each railroad shall maintain records of its debriefing 
and critique sessions at its system headquarters and applicable 
division headquarters. These records shall be made available to 
representatives of FRA for inspection and copying during normal 
business hours.


Sec. 239.107  Emergency exits.

    (a) Marking. Each railroad operating passenger train service shall 
ensure that each of the following occur.
    (1) All door exits intended for emergency egress are either lighted 
or conspicuously and legibly marked with luminescent material on the 
inside of the car. Each railroad shall post clear and understandable 
instructions at or near such exits.
    (2) All door exits intended for emergency access by emergency 
responders for extrication of passengers are marked with 
retroreflective material. Each railroad shall post clear and 
understandable instructions at each such door.
    (b) Inspection, maintenance, and repair. Consistent with the 
requirements of part 223 of this chapter, each railroad operating 
passenger train service shall provide for scheduled inspection, 
maintenance, and repair of emergency window and door exits. Each 
railroad shall test a representative sample of emergency window exits 
on its cars at least once every 180 days to verify their proper 
operation, and shall repair a defective unit before returning the car 
to service.
    (c) Records. Each railroad operating passenger service shall 
maintain records of its inspection, maintenance, and repair of 
emergency window and door exits at its system headquarters and 
applicable division headquarters. These records shall be made available 
to representatives of FRA for inspection and copying during normal 
business hours.

Subpart C--Review, Approval, and Retention of Emergency 
Preparedness Plans


Sec. 239.201  Emergency preparedness plan; filing and approval.

    (a) Filing. Each railroad to which this part applies shall file one 
copy of its emergency preparedness plan with the Associate 
Administrator for Safety, Federal Railroad Administration, 400 Seventh 
Street, S.W., Washington, D.C. 20590, not more than 180 days after (the 
effective date of the final rule), or not less than 90 days prior to 
commencing passenger operations, whichever is later. The emergency 
preparedness plan shall include the name, title, address, and telephone 
number of the primary person to be contacted with regard to review of 
the plan, and shall include a summary of the railroad's analysis 
supporting each plan element and describing how each condition on the 
railroad's property is addressed in the plan. Each subsequent amendment 
to a railroad's emergency preparedness plan shall be filed with FRA not 
less than 60 days prior to the proposed effective date.
    (b) Approval. (1) Within 180 days of receipt of each initial plan, 
and within 60 days in the case of a railroad commencing or hosting 
passenger operations after the initial deadline for plan submissions, 
FRA will conduct a formal review of the emergency preparedness plan. 
FRA will then notify the primary railroad contact person of the results 
of the review, whether the emergency preparedness plan has been 
approved by FRA, and if not approved, the specific points in which the 
plan is deficient. If an emergency preparedness plan is not approved by 
FRA, the railroad shall amend its plan to correct all deficiencies (and 
provide FRA with a corrected copy) not later than 30 days following 
receipt of FRA's written notice that the plan was not approved.
    (2) FRA will review each proposed plan amendment within 45 days of 
receipt. FRA will then notify the primary railroad contact person of 
the results of the review, whether the proposed amendment has been 
approved by FRA, and if not approved, the specific points in which the 
proposed amendment is deficient. The railroad shall correct any 
deficiencies and file the corrected amendment prior to implementing the 
amendment.
    (3) Following initial approval of a plan or amendment, FRA may 
reopen consideration of the plan or amendment for cause stated.


Sec. 239.203  Retention of emergency preparedness plan.

    Each railroad to which this part applies shall retain one copy of 
its emergency preparedness plan and one copy of each subsequent 
amendment to its emergency preparedness plan at its system and division 
headquarters, and shall make such records available to representatives 
of FRA for inspection and copying during normal business hours.

Subpart D--Operational (Efficiency) Tests; Inspection of Records 
and Recordkeeping


Sec. 239.301  Operational (efficiency) tests.

    (a) Each railroad to which this part applies shall periodically 
conduct operational (efficiency) tests of its on-

[[Page 8359]]

 board and control center employees to determine the extent of 
compliance with its emergency preparedness plan.
    (b) Each railroad to which this part applies shall maintain a 
record of the date, time, place, and result of each operational 
(efficiency) test that was performed in accordance with paragraph (a) 
of this section. Each record shall specify the name of the railroad 
officer who administered the test and the name of each employee tested. 
The conduct of the test shall be documented in writing and the 
documentation shall contain sufficient information to identify the 
relevant facts relied on for evaluation purposes.
    (c) These records shall be retained at the system headquarters of 
the railroad and at the division headquarters for each division where 
the tests are conducted for one calendar year after the end of the 
calendar year to which they relate. These records shall be made 
available to representatives of FRA for inspection and copying during 
normal business hours.


Sec. 239.303  Electronic recordkeeping.

    (a) Each railroad to which this part applies is authorized to 
retain by electronic recordkeeping the information prescribed in 
Sec. 239.301, provided that all of the following conditions are met:
    (1) The railroad adequately limits and controls accessibility to 
such information retained in its database system and identifies those 
individuals who have such access;
    (2) The railroad has a terminal at the system headquarters and at 
each division headquarters;
    (3) Each such terminal has a desk-top computer (i.e., monitor, 
central processing unit, and keyboard) and either a facsimile machine 
or a printer connected to the computer to retrieve and produce 
information in a usable format for immediate review by FRA 
representatives;
    (4) The railroad has a designated representative who is authorized 
to authenticate retrieved information from the electronic system as 
true and accurate copies of the electronically kept records; and
    (5) The railroad provides representatives of FRA with immediate 
access to these records for inspection and copying during normal 
business hours and provides printouts of such records upon request.
    (b) [Reserved]

Appendix A to Part 239--Schedule of Civil Penalties [Reserved]

    Issued in Washington, D.C., on February 19, 1997.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 97-4489 Filed 2-21-97; 8:45 am]
BILLING CODE 4910-06-P