[Federal Register Volume 63, Number 85 (Monday, May 4, 1998)]
[Rules and Regulations]
[Pages 24630-24683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11393]



[[Page 24629]]

_______________________________________________________________________

Part III





Department of Transportation





_______________________________________________________________________



Federal Railroad Administration



_______________________________________________________________________



49 CFR Parts 223 and 239



Passenger Train Emergency Preparedness; Final Rule

  Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and 
Regulations  

[[Page 24630]]



DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 223 and 239

[FRA Docket No. PTEP-1, Notice No. 3]
RIN 2130-AA96


Passenger Train Emergency Preparedness

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

ACTION: Final rule.

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

SUMMARY: FRA is issuing minimum Federal safety standards for the 
preparation, adoption, and implementation of emergency preparedness 
plans by railroads connected with the operation of passenger trains, 
including all railroads hosting the operations of rail passenger 
service. The rule also requires each affected railroad to instruct its 
employees on the provisions of its plan. Emergency preparedness plans 
must address such subjects as 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 will be subject 
to formal review and approval by FRA.
    These emergency preparedness regulations constitute 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 these standards and related voluntary developments, 
and will address the need for further rulemaking activity.
    The final rule does not apply to tourist and historic railroad 
operations. 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.

EFFECTIVE DATE: July 6, 1998.

ADDRESSES: Any petition for reconsideration should reference FRA Docket 
No. PTEP-1, Notice No. 3, and be submitted in triplicate to the Docket 
Clerk, Office of Chief Counsel, Federal Railroad Administration, 400 
Seventh Street, S.W., Mail Stop 10, Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Mr. Edward R. English, Director, 
Office of Safety Assurance and Compliance, FRA, 400 Seventh Street, 
S.W., RRS-10, Mail Stop 25, 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., RCC-12, Mail Stop 10, 
Washington, D.C. 20590 (telephone: 202-632-3191).

SUPPLEMENTARY INFORMATION:

Background

    On February 24, 1997, FRA published in the Federal Register a 
notice of proposed rulemaking (NPRM) to amend part 223, entitled Safety 
Glazing Standards--Locomotives, Passenger Cars and Cabooses,'' by 
revising Sec. 223.5 and adding a new paragraph in Sec. 223.9 to require 
the marking of emergency windows, and to add a new ``Part 239-- 
Passenger Train Emergency Preparedness.'' 62 FR 8330. The proposed part 
239 set forth minimum Federal safety standards for the preparation, 
adoption, and implementation of emergency preparedness plans by 
railroads connected with passenger train operations, including 
railroads hosting the operations of rail passenger service. In 
addition, the NPRM prescribed marking, inspection, maintenance, and 
repair requirements for all emergency window and door exits intended 
for egress by passengers or for access by emergency responders.
    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 those 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 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 slowed during evacuation by the 
absence of emergency lighting on the passenger cars, and emergency 
responders were hindered by their inability to obtain an adequate 
passenger and crew list from Amtrak until the next day. The NTSB also 
noted that if the Mobile County Emergency Management Agency had held 
drills to simulate a train accident, the incident commander might have 
learned about Amtrak's procedure for accounting for passengers, and CSX 
Transportation, Inc. (CSX Transportation), the owner of the bridge and 
trackage, might have

[[Page 24631]]

obtained 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 are 
presented 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. 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 an agency-sponsored roundtable meeting in Washington, D.C., 
on June 9, 1994, to discuss the emergency preparedness issues addressed 
in the publication. The 23 persons attending the roundtable included 
representatives from FRA and the following other organizations:

Amtrak,
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 newsletters. While FRA was encouraged 
that passenger railroads had already begun to incorporate the 
recommendations of the Volpe Report into their own emergency 
preparedness procedures and policies, more progress by the entire 
industry was 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, Pub. L. No. 103-440, 108 
Stat. 4619, 4623-4624 (November 2, 1994), entitled ``Passenger Car 
Safety Standards,'' which amended 49 U.S.C. 20133 to read 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 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 passenger train 
emergency preparedness working group (Working Group) to focus on the 
issues related thereto and build the framework for the development of a 
Notice of Proposed Rulemaking (NPRM) and, ultimately, the final rule. 
FRA held its first Working Group meeting on August 8, 1995. The 33-
member Working Group was comprised of

[[Page 24632]]

representatives from FRA and the following other organizations:

American Public Transit Association (APTA),
Amtrak,
Association of American Railroads (AAR),
Brotherhood of Locomotive Engineers (BLE),
CALTRAIN,
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 (NJTR),
Northern Indiana Commuter Transportation District (NICTD),
PATH,
Safe Travel America (STA),
SEPTA,
TRI-RAIL,
TSC,
United Transportation Union (UTU), and
VRE.

    Regulations covering comprehensive safety standards for rail 
passenger equipment--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, are covered by a separate rulemaking and are 
being addressed by a separate working group. The NPRM on passenger 
equipment safety standards was published in the Federal Register on 
September 23, 1997. 62 FR 49728. Persons wishing to receive more 
information regarding this other rulemaking should refer to FRA Docket 
No. PCSS-1 and contact either Mr. Edward Pritchard, Acting Staff 
Director, Motive Power and Equipment Division, Office of Safety 
Assurance and Compliance, FRA, 400 Seventh Street, S.W., RRS-14, Mail 
Stop 25, Washington, D.C. 20590 (telephone 202-632-3348), 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).
    Both the proposed rule and final rule on passenger train emergency 
preparedness were developed by FRA in consultation with the Working 
Group. The proposal incorporated comments submitted by the Working 
Group in response to a preliminary draft of the proposed rule text, and 
all comments submitted in response to the NPRM were provided to members 
of the Working Group for their consideration in preparation of the 
final rule. The Working Group then helped 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 all 
commenters on the 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--have 
been placed in the public docket of this rulemaking.
    In announcing the first meeting of the Working Group on August 8, 
1995, FRA stated 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) or first aid treatment or both;
     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;
     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 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.

[[Page 24633]]

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, were 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 is also included in the rulemaking docket. The Working 
Group's comments were then incorporated into the NPRM that was 
published in the Federal Register on February 24, 1997. 62 FR 8330.
    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 
remained unresolved at the NPRM stage concerning the enforcement 
obligations that FRA should impose in the final rule. Among the broad 
range of possibilities, FRA noted that 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 genuine good faith 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 the railroad for 
failing to comply with this basic element of its emergency preparedness 
plan. 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 likely not penalize either the railroad or the individuals. 
Also, if a railroad failed to designate an employee to maintain a 
current list of emergency telephone numbers, 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, FRA could use 
its prosecutorial discretion to elect not to impose a civil penalty on 
the railroad.
    As an alternative, FRA noted in the NPRM that the agency 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 failed 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 each and every on-line emergency responder, or 
operating a train with an incorrect type of on-board emergency 
equipment. Rather than stressing a determination of the overall level 
of emergency preparedness achieved by a railroad before an emergency 
ever 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 invited 
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 were 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 were too rigid, or not strict 
enough.
    Although FRA did not receive many written comments on how the 
agency should define its enforcement philosophy concerning the final 
rule, the consensus of the Working Group was that FRA should not 
penalize a railroad that has displayed its best efforts in achieving 
compliance and that FRA should focus on evaluating the overall quality 
of the emergency preparedness plan rather than on finding possible 
minor deficiencies. The Working Group also stated that FRA should not 
necessarily measure the success of an emergency preparedness plan based 
solely upon the outcome of an emergency situation. In this regard, the 
Working Group noted that even if a railroad meticulously prepares a 
comprehensive and detailed emergency preparedness plan, the severity 
level of an emergency and the ``real life'' reactions to a crisis 
situation by a railroad's employees (even assuming that the railroad 
properly trained the employees on the applicable plan's provisions in 
accordance with Sec. 239.101(a)(2)) may prevent a railroad from 
achieving a favorable result in a specific emergency scenario. 
Accordingly, the Working Group urged FRA to evaluate a railroad's 
response to an emergency situation based upon how precisely the 
railroad adopted and complied with its written emergency preparedness 
plan, and not necessarily upon the actual results of the plan's 
implementation.
    Consistent with both the Working Group's recommendations and FRA's 
stated policy in 49 CFR part 209 with respect to deciding whether 
enforcement action is the best method for addressing noncompliance, 
representatives of FRA and States participating under 49 CFR part 212 
will consider a number of different factors before recommending the 
assessment of a civil penalty involving the requirements of this rule. 
These factors include:
     The inherent seriousness of the violation;
     The kind and degree of potential safety hazard presented 
by the violation under the circumstances;
     Any actual harm to persons or property already caused by 
the violation;
     The offending person's general level of compliance;
     The offending person's recent history of compliance with 
the particular rule involved, especially at the particular location 
involved;
     Whether a remedy other than a civil penalty (ranging from 
a warning to an emergency order) is appropriate under the 
circumstances; and
     Other factors relevant in the immediate circumstances.
    In drafting the final rule, FRA has incorporated relevant 
information derived from the investigation of the accident involving 
Amtrak train 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

[[Page 24634]]

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 has also included requirements in the final rule relating to 
emergency egress from passenger trains, based upon information obtained 
from the investigations of the two more recent train accidents in New 
Jersey and Maryland. 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, at Silver Spring, Maryland, 
milepost 8.3. The accident resulted in 11 fatalities, involving 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 currently being addressed by the working group 
which is considering regulations covering rail passenger equipment 
safety, the important issue of emergency egress is being addressed by 
this emergency preparedness rulemaking. Specifically, the Maryland 
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 in addition to marking the emergency exits, 
all commuter and intercity passenger railroads should review their 
practices 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 were located in a secured cabinet some distance from 
the doors that they control, and the emergency controls for each door 
were not readily accessible and identifiable. The NTSB recommended 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

[[Page 24635]]

exits. The NTSB recommended 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 each 
car's exterior, for use by emergency responders.
    Based upon its investigation, the NTSB recommended 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.
Fifty-seven members from 21 different organizations attended the joint 
meeting. Although some of the recommendations involving structural 
modifications to rail equipment are being 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 Sec. 223.9(d), entitled 
``Requirements for new or rebuilt equipment,'' and Sec. 239.17, 
entitled ``Emergency exits.'' The Section-by-Section Analysis contains 
a detailed discussion of FRA's new requirements, particularly in light 
of the two 1996 accidents in New Jersey and Maryland and the NTSB's 
safety investigations and recommendations.
    In a letter to FRA dated June 24, 1996, Donald N. Nelson, President 
of Metro-North and Chairperson of APTA's Commuter Railroad Committee, 
announced that commuter railroads nationwide were implementing a series 
of rail passenger safety initiatives building on the 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 
committed to early voluntary implementation of the emergency 
preparedness requirements proposed in the 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 rule text of 
the NPRM, FRA implemented changes to the draft proposed regulatory text 
and preamble. FRA initiated those 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 proposed 
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. The NPRM was then 
published in the Federal Register on February 24, 1997.
    In a letter to the Working Group dated August 8, 1997, FRA noted 
that it had completed its review of the oral and written comments on 
the NPRM. As part of the drafting process of the final rule, FRA 
invited members of the Working Group to attend a meeting on August 28, 
1997 to discuss a number of significant issues that had been identified 
by the commenters and to consider FRA's recommendations. Based upon the 
helpful participation and cooperation of the Working Group at that 
meeting, FRA then completed the final rule. A copy of the minutes of 
the August 28, 1997 Working Group meeting is included in the public 
docket for this rulemaking, and a detailed discussion of the meeting 
follows in the ``Discussion of Comments and Conclusions'' portion of 
this final rule.

Development of the Passenger Safety Program

    As discussed above, this final rule is one element of a 
comprehensive effort to improve the safety of rail passenger service. 
In addition to this rulemaking, FRA is currently dealing with related 
issues in several contexts. Recent actions concerning 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 
completed 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 the 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, FRA's Railroad 
Safety Advisory Committee (RSAC) established a working group to 
specifically address communication facilities and procedures, with a 
strong emphasis on passenger train emergency requirements. The NPRM in 
this proceeding was published on June 26, 1997, reflecting the 
consensus recommendations of the RSAC. The final rule will address the 
need for 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 is engaged in a four-phase process to address emergency 
preparedness. In the first phase, in 1994,

[[Page 24636]]

FRA distributed the Volpe Report (as described above) and encouraged 
railroads to examine their existing programs to determine what 
improvements could be made. The present 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 preliminary review and final 
approval of written plan submissions, FRA will determine how the 
program is being implemented in the field. FRA will also be interested 
in learning 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 will involve FRA's review, after gaining at least 
a full year of actual experience under the standards enacted here, of 
the implementation and effectiveness of the standards and related 
voluntary developments. In this phase of activity, FRA will 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 preparedness. Further, 
this review will determine whether experience in working with emergency 
responders indicates that additional program elements should be 
addressed.

Discussion of Comments and Conclusions

    A total of 15 responses were received by FRA concerning the NPRM. 
Prior to the two public hearings that were held in Chicago, Illinois 
and New York, New York, five organizations submitted written comments: 
American Association of Private Railroad Car Owners, Inc. (AAPRCO); 
LIRR; METRA; METROLINK; and UTU. At the public hearing held in Chicago 
on April 4, 1997, six organizations were represented: APTA; Des 
Plaines, Illinois Fire Department; Office of Emergency Management of 
DuPage County, Illinois; Illinois Law Enforcement Training Standards 
Board; METRA; and the Village of Wheeling, Illinois. At the public 
hearing held in New York City on April 7, 1997, four organizations were 
represented: APTA; BLE; Omniglow Corporation (Omniglow); and UTU. Ten 
organizations and one individual submitted post-hearing written 
comments: AAPRCO; AAR; Amtrak; APTA; CALTRAIN; Littleton, Colorado Fire 
Department; LIRR; NICTD; NTSB; UTU; and Kieran Darcy.
    In a letter to the members of the Working Group dated August 8, 
1997, FRA noted that a significant number of issues and concerns had 
been raised by commenters on the NPRM. In the spirit of continuing the 
meaningful partnership on development of the emergency preparedness 
rule, FRA convened a meeting of the Working Group in Washington, D.C. 
on August 28 1997, in order to discuss the major issues addressed in 
the comments and at the public hearings and consider changes to the 
proposal for inclusion in the final rule. Among the issues discussed at 
this meeting were the: categories of employees required to be 
``qualified'' personnel for purposes of carrying out responsibilities 
under the emergency preparedness plan; types and numbers of emergency 
simulations required of railroads; elements of passenger information 
programs; the process of formal review and approval of the emergency 
preparedness plan by FRA; and adoption of a single emergency 
preparedness plan for each passenger service operation by the passenger 
railroad and its host railroad(s). Discussions follow with respect to 
the primary issues raised by the commenters and/or discussed by the 
Working Group during the consultative process. In light of the comments 
received, FRA has reconsidered some of the proposals.
    1. FRA proposed that a minimum of one on-board crewmember on a 
train be qualified under the plan. Should FRA revise the definition of 
``crewmember'' in the final rule to exclude on-board service personnel 
from the category of on-board staff that a railroad must qualify under 
the applicable provisions of its emergency preparedness plan? Should 
FRA increase the minimum number of crewmembers that must be qualified?
    The NPRM defined a ``crewmember'' as ``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,'' and proposed that 
``each passenger train shall have a minimum of one on-board crewmember 
who is qualified under the applicable emergency preparedness plan's 
provisions.'' 62 FR at 8356, 8357. FRA acknowledges the safety benefit 
in having each railroad provide emergency preparedness training to 
every on-board employee (including employees of contractors), and 
anticipates that railroads will voluntarily elect to train most, if not 
all, on-board personnel in emergency response procedures, but FRA 
recognizes the practical limits of an expansive definition of 
``crewmember.''
    Among the comments received, APTA noted that the proposed 
definition of ``crewmember'' is overbroad, and brings in classes of 
workers such as security forces, service providers, marketing staff, 
survey takers, and hosts. Certain contract vendors providing services 
such as food and beverage are neither railroad personnel nor 
passengers, yet would appear to fall under the proposed definition. 
Also, some commuter operations lease out a bar or club car, and APTA 
believes that those personnel should not be included in the definition. 
The additional training expenses associated with qualifying this 
category of non-operating railroad employees under the railroad's 
emergency preparedness plan would not be cost effective. APTA, 
therefore, requested that the definition of ``crewmember'' be revised 
to cover only operating personnel. Also, since on-board service 
personnel typically work for Amtrak in intercity service, APTA stated 
that the concept should not be applied to commuter railroads.
    METROLINK commented that some of its conductors perform the 
function of fare enforcement conductors, and should be excluded from 
the definition of ``crewmember.'' In addition, METROLINK noted that 
since it may contract out food service on some of its intercity trains, 
these contract workers should also be excluded from coverage in the 
final rule.
    The UTU believed that a passenger train should not be dispatched 
unless the conductor is the qualified crewmember under the emergency 
preparedness plan, and noted that in serious accidents, the engineer 
cannot respond because of personal injury or damage to the locomotive 
radio system. In addition, the UTU stated that on-board personnel are 
not qualified on the physical characteristics of the railroad and may 
be asleep at the time of an accident. If a train has a crewmember who 
is qualified under the emergency preparedness plan, along with a 
conductor from a freight railroad who is qualified on the physical 
characteristics of the railroad, the two individuals

[[Page 24637]]

could coordinate emergency efforts. The BLE stated that the training 
that is developed for the qualified individual responsible for 
communications must include the engineer in order to reflect a 
redundancy factor for on-board personnel, and noted that the final rule 
should not count on-board crewmembers employed as service attendants as 
qualified crewmembers.
    Upon careful consideration of the comments, FRA concludes that rail 
passenger safety will be enhanced by limiting the definition of 
``crewmember'' to exclude on-board railroad and contractor employees 
who have little knowledge of emergency preparedness issues and railroad 
operations (e.g., security forces, marketing staff), while 
simultaneously requiring that all operating employees (and sleeping car 
and coach attendants on trains operating in intercity service) be 
qualified under the emergency preparedness plan. In reaching this 
conclusion, FRA recognizes that individuals who merely sell food and 
beverages to passengers onboard a passenger train, but are not involved 
with the train's operation, may be incidental to the railroad's overall 
plan for emergency preparedness. However, FRA believes that sleeping 
car and coach attendants on intercity trains can play a very key role 
in precipitating passenger evacuation during the aftermath of an 
emergency.
    Unlike passengers on commuter trains, who generally remain aboard 
their trains for short time periods and have minimal direct dealings 
with crewmembers, passengers traveling in overnight trains have 
frequent contact with their coach and sleeping car attendants. While 
commuter trains generally operate through densely populated 
metropolitan or suburban areas, intercity-passenger trains, by their 
very nature, face a greater likelihood that if an emergency situation 
occurs it will happen in a remote area not readily accessible by 
members of the emergency responder community. The location of the 
emergency, unclear jurisdictional authority, lack of road access, lack 
of emergency equipment, or unavailability of knowledgeable and skilled 
personnel could prevent police, emergency medical technicians, or other 
emergency response personnel from making a timely response and hamper 
evacuation. The coach and sleeping car attendants will be aware of the 
approximate number of passengers on board the intercity train and 
likely know how many passengers with impaired mobility may be unable to 
evacuate the train on their own through the emergency window and door 
exits or who risk injury if they try to do so. Accordingly, since these 
attendants could prove invaluable in assisting both the passengers and 
the emergency responders during the initial period after the occurrence 
of the emergency, FRA concludes that the emergency preparedness plan 
must provide for proper training of these individuals.
    FRA also recognizes that in the aftermath of an emergency the 
crewmembers will have many important responsibilities, including 
maintaining contact with the control center, ensuring proper protection 
of the train, and providing for the safety of the passengers. If the 
emergency involves a collision or derailment, one or more of the 
crewmembers may be injured and unable to carry out his or her duties. 
In an effort to increase the number of crewmembers who will be 
available to implement the railroad's emergency preparedness plan, the 
final rule requires that all on-board operating employees be qualified 
under the applicable provisions of the emergency preparedness plan. See 
Sec. 239.101(a)(2)(vi). Of course, in the event that a railroad 
operates a train with the engineer as the only crewmember, then the 
railroad will be in full compliance provided that the engineer is fully 
trained and qualified under the plan.
    Accordingly, FRA is revising the definition of ``crewmember,'' as 
it applies for purposes of intercity service, to include both operating 
employees on board the train (i.e., railroad employees, or employees of 
contractors to railroads, who have been assigned to perform service 
subject to the Federal hours of service laws during a tour or duty) and 
individuals who serve as sleeping car or coach attendants. Instead of 
permitting an intercity train to operate with a minimum of only one 
crewmember who is qualified under the railroad's emergency preparedness 
plan, the final rule requires that all on-board operating employees be 
trained and qualified under the plan's provisions. However, a narrow 
exception will exist when a freight train crew serves as the relief 
crew on a passenger train. In this limited circumstance, the final rule 
permits the passenger train to operate, provided that at least one on-
board operating crewmember from the passenger train is properly trained 
and qualified under the railroad's plan and available to perform excess 
service in the event of an emergency situation. See 49 U.S.C. 21102(a) 
and 21103. For purposes of all other categories of passenger train 
service, FRA is revising the definition of ``crewmember'' to apply only 
to operating employees on board the train (i.e., railroad employees, or 
employees of contractors to railroads, who have been assigned to 
perform service subject to the Federal hours of service laws during a 
tour or duty), but exclude persons who provide on-board food or 
beverage service or security protection. In addition, all of the on-
board operating employees (along with sleeping car and coach attendants 
assigned to intercity service) must be trained and qualified under the 
plan's provisions.
    2. Should tabletop exercises not count toward the requirement to 
conduct emergency simulations, and instead should at least one full-
scale simulation be required during the time period specified? If so, 
should the minimum number of activities be adjusted to reflect the 
increased quality of the simulation program? Should railroads be 
required to develop training programs for emergency responders and 
their organizations?
    Although FRA noted in the NPRM that a tabletop exercise is 
relatively easy to orchestrate, ``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,'' FRA stated that it might include a comprehensive 
requirement in the final rule involving multiple numbers of full-scale 
disaster simulations. See 62 FR at 8346. The NPRM set forth a 
requirement for railroads operating passenger train service to conduct 
emergency simulations, either full-scale or table exercises, in order 
to determine their capabilities to execute their emergency preparedness 
plans. 62 FR at 8257, 8258. The proposal required each commuter or 
short-haul railroad to conduct enough simulations to include each major 
line at least once during every two calendar years at least 50 percent 
of the total number of major lines during any given calendar year. 
Railroads providing intercity passenger train service were to conduct 
at least two emergency simulations during each calendar year for each 
business unit or other major organizational element.

Comments Received

    Amtrak stressed that tabletop simulation exercises can accomplish 
many of the same objectives as full-scale exercises, but at a much 
lower cost. It noted that the actual emergency response activities 
required when real accidents occur also provide an ongoing source of 
preparedness and insight with respect to possible improvements. Amtrak 
also opined that tabletop simulations, plus actual emergency

[[Page 24638]]

response situations that inevitably occur, should be sufficient to 
accomplish the objectives of evaluating and improving the ability of 
railroads and emergency responders to function effectively in the event 
of an accident. Amtrak recommended that if the final rule requires some 
actual full-scale experiences each year, an actual response, 
accompanied by an appropriate debriefing and critique, satisfy that 
requirement.
    APTA stated that the simulation requirement should be either 
deleted or made optional, and noted that commuter railroads agree with 
the intent of the regulation, but object to a prescriptive approach. 
APTA observed that simulations, especially full-scale ones, are time 
consuming, expensive, and benefit a small percentage of employees. It 
stated that in view of these factors, the requirement to perform 
simulations at all combined with the requirement to perform simulations 
on 50 percent of main lines each year, goes beyond what is necessary 
for emergency preparedness.
    APTA also noted that since emergency responders are not required to 
attend, commuter railroads often hold full-scale training sessions that 
are poorly attended. It argued that each railroad should be permitted 
to maintain operational flexibility to determine the best way to 
involve emergency responders.
    The LIRR noted that emergency response agency costs vary and are 
difficult to uantify, since the majority of fire departments and 
ambulance crews are volunteers. Since they are volunteers, it may be 
difficult for the LIRR to get them to attend many drills. However, 
there are costs for equipment usage (e.g., fuel) and for medical 
supplies (e.g., bandages and splints). The railroad noted that, 
including preparation, it takes two full months to plan a full-scale 
simulation, integrate it with the responding agencies, coordinate and 
integrate it with the railroad's own transportation people (track time, 
service disruptions, alternative means of transportation, development 
of the program and scenario), and then complete the drill. Internally, 
the LIRR uses tabletop exercises extensively for procedure review and 
testing. They are used in areas where it is difficult to get track time 
and run the railroad, and are less effective than practical, 
experiential drills and training because of the minimal amount of 
exposure to the emergency responders.
    CALTRAIN commented that tabletop exercises should be accorded the 
same weight and emphasis as actual field drills. Tabletop exercises, 
with follow-up debrief and critique, are very effective and less 
administratively burdensome. Certain exercises, such as window removal 
or after-dark conditions, can be performed as part of a tabletop drill 
by moving to the nearest rail facility. Subsequent to the Working Group 
meeting held in Washington, D.C. on August 28, 1997, CALTRAIN 
recommended that any full activation of the emergency preparedness plan 
in either an actual accident or other emergency situation count as a 
simulation, instead of only triggering a 180-day extension of the 
timeframe in which to perform the full-scale simulation, while if no 
such activation occurred, then the two-year cycle would apply. Since a 
``real'' activation would be fully evaluated and modifications would be 
made, a ``simulated'' drill would be burdensome and redundant. Also, 
while CALTRAIN makes reasonable efforts to contact and invite area 
agencies, attendance is not mandatory. It argued that the final rule 
should discuss ``best efforts to contact, train, and participate'' in 
drills, since response agencies have budgetary and other issues with 
which to contend that affects their ability to participate in emergency 
drills on any given day.
    METRA commented that it has 13 major lines, and would have to hold 
6.5 simulations each year under the proposal. It noted that the 
participants would also have to be trained before each simulation, and 
under proposed 49 CFR 239.105, debriefing and critique sessions would 
be held afterward. METRA assumes that responder preplanning requires 
three weeks, the actual simulation takes two to four weeks to plan and 
coordinate, and the critique is performed a week after the simulation 
and compiled and acted upon the following week, for a total of 58.5 
weeks spent performing 6.5 simulations. Under the proposal, METRA 
contends that it would have to conduct more than five simulations per 
year due to its system size and number of major routes. Even if the 
personnel and budget could be found to plan and conduct this level of 
simulation every year, METRA believes that it is questionable that the 
region's emergency responders could participate at this level.
    METRA states that the Illinois Law Enforcement and Standards Board 
has certified METRA's program for training all law enforcement 
personnel throughout Illinois, and requests that a ``Train the 
Trainer'' program be added to the final rule as a means of ensuring a 
qualified response to passenger train emergencies. METRA's concern is 
that many of the fire departments overlap to such an extent, that by 
performing the set number of route simulations in the proposal, some of 
the departments could be involved in three or more simulations per 
year. Because of liability and publicity concerns, most fire 
departments would elect to be fully involved, but too many simulations 
may dilute the aggressiveness of the emergency responders. METRA 
suggested that the number of required simulations should be reduced in 
the final rule to only two per year, and that videotaping of emergency 
simulations could be used in the preparation of training for future 
simulations.
    In its comments, the NTSB expressed concern that a railroad could 
comply with the rule by only performing tabletop exercises each time it 
conducts an emergency simulation. The NTSB stated that a tabletop 
simulation exercise is not equal to a comprehensive full-scale 
exercise, since only a full-scale exercise involving personnel and 
equipment can demonstrate an organization's capability and readiness to 
respond to a disaster. It also noted that full-scale exercises best 
afford a railroad the ability to assess the effectiveness of its 
emergency response plan and to identify the resources necessary to 
support its plan in an actual emergency, as well as to uncover specific 
problems, and that emergency response personnel can only become 
familiar with railroad equipment by participating in full-scale search-
and-rescue scenarios.
    The Office of Emergency Management of DuPage County, Illinois 
commented that a simulation is a much better means of training 
emergency responders to respond to a significant emergency than a 
classroom alone. However, DuPage County has three METRA lines running 
through it (and a fourth in planning), and would have to perform two 
simulations annually in addition to meeting other Federal emergency 
planning requirements. The commenter noted that although a tabletop 
exercise is a great way to discuss policy and talk about what will 
likely happen, until a person actually goes into the field and stands 
next to the rail car or has to move injured persons off the second 
level of a rail car, it is impossible to know how one really does it.
    The Des Plaines, Illinois Fire Department believes that its 
employees get more knowledge through individual training at the 
departmental level than they can from mass casualty situations or 
large-scale incidents, and notes that individual training ensures that 
all personnel go through the hours of classes and go out on a train to 
touch

[[Page 24639]]

it, open its doors, and take a window out. Employees can also attempt 
to extricate a dummy from the train. In a large-scale drill, personnel 
are assigned to sectors, and depending on the sector to which they are 
assigned, will obtain the knowledge of just that one piece of the mass 
casualty situation, and will not receive the broad spectrum.
    The UTU commented that the railroads should concentrate on case 
histories more than large-scale drills. It stated that large-scale 
drills are expensive and time consuming, tie up the railroad, and do 
not provide much learning opportunity.
    In light of the written comments and testimony at the two public 
hearings from members of the emergency response community, FRA has 
reconsidered its proposal and is eliminating the provision for 
performing a tabletop exercise in lieu of a full-scale exercise, but 
scaling back the simulation requirement to involve only one meaningful 
full-scale simulation (performed either annually or every two years 
depending on the size of the railroad). A railroad that is considered 
larger, i.e., its operation includes either at least 150 route miles or 
200 million passenger miles annually, must conduct at least one full-
scale simulation annually, regardless of the number of major lines or 
business organizational elements on its operation. Each railroad 
operating passenger train service is also required to develop a 
training program available to all on-line emergency responders who 
could reasonably be expected to respond during an emergency situation, 
with an emphasis upon access to railroad equipment, location of 
railroad facilities, and communications interface. The training program 
will provide information to emergency responders who may lack the 
opportunity to participate in an actual simulation. The railroads could 
either offer the training directly or make the training information and 
materials available to State training institutes, firefighter 
organizations (e.g., National Fire Protection Association), or State 
police academies.
    The consensus of the commenters was that it takes each railroad 
months to plan a full-scale simulation, to conduct the drill, and to 
complete the debriefing and critique session. Although some full-scale 
simulation training is essential, many of the commenters (including 
members of local fire departments) stated that emergency responders 
also need ``hands-on'' training for railroad equipment, which is better 
effected through ``hands-on'' classroom training. Classroom training 
permits a railroad to run a number of evolutions, allows many groups of 
individuals to have access to the equipment to achieve equipment 
familiarization, and enables emergency responders to practice lifting 
the rail equipment. While disaster simulations key on one incident 
(e.g., a hazardous materials incident or a train collision and a 
resulting fire), a classroom scenario can cover many different types of 
incidents. One commenter noted that if it had to spend a 
disproportionate amount of its time conducting numerous simulations, it 
would be forced to scale back its current program for training members 
of the emergency responder community.
    FRA agrees with the commenters that the financial and logistical 
costs of conducting full-scale simulations are significantly higher 
than those for tabletop simulations, including the opportunity costs of 
lost revenue and the need to take railroad track and equipment out of 
service during the simulation. FRA also acknowledges that during 
``hands-on'' classroom training a greater number of individuals receive 
direct access to railroad equipment than occurs during a large-scale 
drill. FRA encourages each railroad to voluntarily conduct tabletop 
exercises to identify the emergency response capabilities of its 
personnel in terms of their knowledge of procedures and equipment. 
However, FRA has decided that the safety objectives of this rulemaking 
are best served by requiring railroads to conduct at least a minimal 
number of comprehensive, full-scale simulations to determine whether a 
railroad is adequately prepared for the likely variety of emergency 
scenarios that could occur on its lines.
    In reaching its decision to focus on a smaller number of larger 
scale simulations, FRA also acknowledged that under regulations 
established by the Federal Emergency Assistance Agency (FEMA), States 
are eligible to receive financial assistance for disaster preparedness 
under the Disaster Preparedness Improvement Grant Program. See 44 CFR 
Part 300. Under this program, States can receive FEMA money for 
training and to test and exercise procedures for their efforts in 
disaster response. While emergency responder organizations can receive 
funds to participate in railroad accident exercises and simulations, 
many of these same responder groups must also budget their limited time 
and resources in preparing for all other types of potential disasters 
that could strike their communities, e.g., airplane crashes, floods, 
and earthquakes. FRA recognized that if the final rule required 
railroads to conduct significant numbers of full-scale simulations, and 
they received full participation from the emergency responder 
community, the limited funds available from FEMA might prove inadequate 
to meet the overall disaster-preparedness needs of the States and local 
jurisdictions.
    Intercity operations present special challenges. Amtrak noted that 
full-scale simulations cause significant burdens, and argued that the 
final rule should permit tabletop simulations in lieu of full-scale 
ones. As an operator of seven different commuter services in this 
country, Amtrak noted that it would be involved in a great number of 
simulations on commuter lines, as well as its intercity service, and 
stated that full-scale emergency exercises involve weeks of 
preparation, commitment of physical resources, and expenditure of funds 
for actual implementation of the exercise. Track and equipment would be 
out of service during the placement, conduct, and removal of equipment 
from the drill site. Significant disruption of normal operations on a 
rail line could occur in connection with conducting a simulation. 
Passengers and shippers could be inconvenienced and equipment 
utilization adversely affected.
    3. What elements should be included in passenger information 
programs? Should surveys be required in the final rule?
    The NPRM required each railroad to conspicuously and legibly post 
emergency instructions inside all passenger cars (e.g., on car bulkhead 
signs, seatback decals, or seat cards) and use one or more additional 
methods to provide safety awareness information (i.e., on-board 
announcements, laminated wallet cards, ticket envelopes, timetables, 
station signs or video monitors, public service announcements, or seat 
drops). 62 FR at 8357. The proposal also expected each railroad to 
survey representative samples of passengers at least annually to 
determine the effectiveness of its passenger awareness program 
activities, and to improve its program, as appropriate based on the 
information developed. 62 FR at 8357.
    APTA commented that while commuter railroads should be required to 
develop and use passenger emergency awareness programs, the features of 
the programs should be left to each commuter railroad's discretion. It 
stated that the final rule should be based on performance, not the 
command-and-control approach in the proposal. APTA also argued that the 
prescription favoring certain types of signage should be removed from 
the final rule, and the safety awareness requirement changed

[[Page 24640]]

to merely list examples of possible methods of disseminating safety 
awareness information. APTA noted that each commuter railroad has its 
own unique approach to developing and using tools to make passengers 
aware of emergency instructions inside passenger cars, and should 
retain flexibility to find the right mix of passenger communication 
techniques. APTA contended that unless the passenger information 
requirement allows a railroad latitude to use innovative means or new 
technology to deliver safety information, a railroad would have to 
apply for a waiver to develop or use the new program or technology, 
thus delaying its introduction.
    The LIRR also commented on the issue of passenger awareness program 
activities. The railroad suggested that safety awareness information 
could be printed on a pocket-sized card in order to remind customers of 
the basics of what to do in the event of an emergency situation. FRA 
notes that Sec. 239.101(a)(7)(ii), as proposed, already permits a 
railroad to disseminate information to passengers on ``laminated wallet 
cards.'' 62 FR at 8357.
    FRA agrees with the two commenters that requiring railroads to 
choose among only the seven listed additional methods of providing 
safety awareness information to their customers is too restrictive, and 
could discourage railroads from being innovative. FRA fully expects 
most railroads to use either on-board service announcements, laminated 
wallet cards, ticket envelopes, timetables, station signs or video 
monitors, public service announcements, or seat drops as the second 
means of ensuring the effectiveness of their passenger safety awareness 
programs. However, FRA encourages the use of alternate but equally 
effective approaches, especially if validated by information deduced 
from the debriefing and critique sessions held after passenger train 
emergency situations or simulations.
    FRA is not, however, revising the requirement that railroads post 
emergency instructions inside all passenger cars. In the event of an 
emergency, passengers may experience panic and momentarily forget any 
information that may have been conveyed by the crew before the train's 
departure (e.g., through an on-board announcement). FRA believes that 
an important part of the successful implementation of this rule depends 
on railroads posting convenient and conspicuous reminders to their 
passengers of the important safety procedures to follow in the event of 
an emergency. Such a requirement will also provide a measure of 
consistency, benefiting passengers who use more than one service 
provider.
    Upon review of the comments on the passenger survey requirement, 
FRA concludes that the financial cost to each passenger railroad of 
developing and conducting a survey capable of reaching a statistically 
significant cross-section of its customer population in order to 
periodically update and improve its passenger safety awareness 
information greatly exceeds any potential benefit. Accordingly, FRA is 
deleting this requirement from the final rule.
    In proposing the survey requirement, FRA presumed that railroads 
would merely include additional questions on customer satisfaction 
surveys currently used to assess passenger comfort and assist railroads 
in timetable planning. FRA assumed that the additional costs to the 
railroad industry would therefore be minimal. However, three railroads 
and APTA commented on FRA's proposal, convincing FRA that unless the 
rule required each railroad to employ a rigorous and scientific survey 
methodology, most oral and written surveys would likely be completed 
only by those passengers who are either regular riders already familiar 
with emergency procedures or dissatisfied riders who have complaints 
about train service. Without such a financially burdensome requirement, 
the survey results would be of little or no value to the railroads in 
verifying passenger awareness of the location(s) on the passenger car 
of safety information or knowledge of safety procedures to be followed 
in the event of an emergency. Accordingly, since any changes made by 
the railroads to their passenger awareness programs might be predicated 
upon inaccurate or incomplete information, FRA believes that a survey 
requirement would likely not benefit passenger safety.
    Consistent with FRA's conclusion, APTA commented that although 
passenger surveys may be useful in determining passenger safety 
awareness, there is no guarantee that they will be useful in fact. APTA 
stated that since completion of the survey is voluntary on the part of 
the public, the survey would not provide any real knowledge to the 
railroad of passenger awareness of emergency preparedness.
    APTA also disagreed with FRA's estimate that the survey requirement 
would entail no additional cost to each railroad, noting that DOT 
recently estimated that on-board transit surveys cost $12 per completed 
survey (DOT-97-08, as reported in the Urban Transportation Monitor). 
Based upon 360 million passenger trips daily and a sample size of one 
percent, APTA concluded that the total cost to survey commuter rail 
passengers would be $21,600,000 (360/2  x  .01  x  $12.00). Although 
APTA realized that the cost might be smaller, depending on the number 
of surveys done and number of questions asked, it stressed that the 
final cost would be more than incidental.
    Amtrak commented that the survey requirement is unnecessary and 
undesirable, and could undermine the public's opinion of the safety of 
train travel. It noted that no other transportation mode is required to 
conduct surveys of passengers' levels of knowledge of safety 
information or procedures. Instead of performing mandatory surveys, 
Amtrak recommended that railroads focus on providing passengers with 
the information necessary for them to function in the event of an 
emergency, as is currently done in the airline industry. Amtrak shared 
APTA's concern that since public participation in the survey is 
voluntary, railroads would have serious concerns about the objectivity 
and validity of the results obtained.
    NICTD opposed the use of passenger surveys to determine knowledge 
or compliance and stated that despite the rule's flexibility in the 
methodology of surveys, surveys would not in and of themselves 
measurably contribute to overall passenger education concerning 
emergency situations. NICTD stated that the education and ongoing 
training of train crews concerning emergency situations is more 
productive and cost effective, since train crews are ultimately 
responsible for dealing with passengers in these situations.
    NICTD also questioned the cost/benefit factor of having employees 
orally survey passengers aboard trains or at train stops, arguing that 
the use of written surveys distributed to passengers boarding trains, 
or provided as seat drops, would not guarantee completion of the forms. 
Further, NICTD stressed that the requirement to survey a 
``representative sample of passengers'' each calendar year cannot be 
assured by the survey process, whether the survey is done orally or in 
writing. Oral surveys may be viewed by passengers as annoying, who will 
then refuse to cooperate, and written surveys will likely be completed 
only by those passengers who are inclined to respond.
    The LIRR commented that it performs at least one customer-
satisfaction survey per year, at a cost of $155,000 per survey, and on 
a case-by-case basis performs targeted surveys to assist in a decision-
making process. The LIRR's Market Development area input shows

[[Page 24641]]

that the response rate should be at least 45 percent to allow for valid 
projection of the sample findings to the whole population. However, the 
LIRR's normal response rate of mail-back surveys that it has conducted 
in the past, without incentives, is only 15 percent.
    4. Should FRA modify the requirement that the agency conduct a 
formal review and approval of each railroad's emergency preparedness 
plan within 180 days of receipt of the plan from the railroad?
    The NPRM stated that within 180 days of receipt of each initial 
emergency preparedness plan, and within 60 days in the case of a 
railroad commencing or hosting passenger operations after the initial 
deadline for plan submissions, FRA would conduct a formal review of the 
plan. 62 FR at 8358. FRA would then notify the railroad of the results 
of the review, whether the plan had been approved by FRA, and if not 
approved, the specific points in which the plan was deficient. 62 FR at 
8358. If the plan was not approved by FRA, the railroad was required to 
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 of disapproval. 62 FR at 8358.
    APTA commented that FRA should remove the time limit for approval 
of the emergency preparedness plan, and return to the original 
consensus recommendation of the Working Group that there be no 
deadlines. APTA stated that it doubted that FRA would be able to turn 
around the plans to the commuter rail systems within the specified 
timeframe, and recommended that FRA should adopt a consultative 
approach to emergency preparedness instead of the approach included in 
the NPRM.
    In response to APTA's concerns, FRA is adopting a bifurcated 
approach to approval of the emergency preparedness plan in the final 
rule. The final rule specifies that within 90 days of receipt of each 
initial plan, and within 45 days in the case of a railroad commencing 
operations after the initial deadline for plan submissions, FRA will 
conduct a limited, preliminary review to determine if the required 
elements of the emergency preparedness rule are sufficiently addressed 
and discussed in the railroad's emergency preparedness plan submission. 
For example, this initial review will determine if the railroad has 
included a section in its plan on liaison relationships with on-line 
emergency responders, but will not yet involve field verification by 
FRA safety inspectors that the railroad is in fact inviting these 
responders to attend training programs on access to railroad equipment. 
After this initial review, as appropriate, FRA will then grant or deny 
conditional approval of the plan in writing. Within 18 months of 
receipt of each emergency preparedness plan, and within 180 days in the 
case of a railroad commencing operations after the initial deadlines 
for plan submissions, FRA will then complete a comprehensive review, 
consisting of ongoing dialogues with rail management and labor union 
representatives and field analysis and verification of the railroad's 
implementation of the plan's provisions, followed by final approval or 
denial.
    The bifurcated approach to approval of the emergency preparedness 
plan will permit FRA to quickly review each plan for procedural 
compliance and immediately determine if the railroad has at least 
considered all required plan elements. However, FRA will then have a 
much longer timeframe in which to evaluate the plan's substantive 
sufficiency and the railroad's actual implementation. Without this 
change in the final rule, FRA would have had to choose between delaying 
many railroads from adopting their emergency preparedness plans or 
accepting some railroad plan submissions on good faith with little more 
than a cursory review. Either option would compromise the safety of 
railroad passengers and train crews in the event of a passenger train 
emergency situation.
    5. Should the final rule require a joint submission of one 
emergency preparedness plan by each railroad that provides or operates 
passenger train service and (as applicable) each railroad that hosts 
such service?
    In the section of the NPRM addressing joint operations, FRA stated 
that each freight railroad hosting passenger train service would be 
required to have an emergency preparedness plan addressing its specific 
responsibilities, and each railroad operating passenger train service 
over the line of a freight railroad would be required to coordinate the 
applicable portions of its emergency preparedness plan with the 
corresponding portions of the freight railroad's plan. 62 FR 8357. The 
purpose for the requirement was to ensure an optimal level of emergency 
preparedness on the part of every railroad involved in the operation of 
a particular passenger train service. In the section of the NPRM 
addressing the filing of the emergency preparedness plan, each affected 
railroad would be required to file its plan with FRA within 180 days of 
the effective date of the rule, or at least 90 days before commencing 
passenger operations, whichever is later. 62 FR at 8358.
    It has become apparent to FRA during the course of the comment 
period that there is a reluctance on the part of both freight and 
passenger railroads to accept full responsibility for the requisite 
implementation of all of the elements of an emergency preparedness 
plan. FRA is concerned that the consensus of the commenters is that 
each entity expects the other entity to be held accountable by FRA in 
the event that an emergency situation occurs and the provisions of the 
plan are improperly executed. In order to ensure that all railroads 
involved in a particular rail passenger service operation understand 
each one's crucial role in planning for emergency preparedness, instead 
of merely requiring coordination of applicable portions of multiple 
emergency preparedness plans, the Working Group recognized the need to 
include a joint submission requirement in the final rule.
    CALTRAIN commented that under the proposal, passenger or commuter 
railroads are responsible for the relationships with host or tenant 
freight railroads. While CALTRAIN stated its intent to work closely 
with such railroads, it noted that it has no authority over the freight 
railroads and declined responsibility for their actions or omissions. 
CALTRAIN suggested that FRA focus on evidence of a ``good faith 
effort,'' since CALTRAIN cannot mandate actions and cannot enforce the 
conduct of external agencies. This commenter urged FRA to use its 
enforcement powers.
    APTA agreed with FRA that the language in an early version of the 
proposal that was shared with the Working Group, which placed the 
entire responsibility for the joint operation on the host freight 
railroad, did not properly account for the responsibilities of both 
parties. Since the NPRM reversed that scenario, APTA recommends that 
FRA either delete or redraft Sec. 239.103(a)(3) to assign a measure of 
responsibility to the host freight railroad. APTA argued that although 
the NPRM required coordination, it does not provide a mechanism to 
ensure cooperation by the freight railroad to coordinate emergency 
efforts. If a freight railroad refuses or is unwilling to cooperate, a 
commuter railroad lacks recourse. The commuter railroad could still be 
fined for not coordinating with an unwilling freight railroad. 
Consistent with APTA's observations, the LIRR commented that the final 
rule needs terminology that recognizes that there is some joint 
responsibility between all of the involved parties to a passenger 
operation.

[[Page 24642]]

    In its comments, the AAR acknowledged that while freight railroads 
neither provide nor operate rail passenger service themselves, and are 
not subject to most of the rule's requirements, freight railroads still 
have certain emergency preparedness responsibilities. The AAR 
recommended that FRA not revise the proposed language of 
Sec. 239.101(a)(3), since it is in a freight railroad's interest to 
coordinate with a passenger railroad to ensure emergency preparedness. 
The AAR rejected APTA's concern about freight railroads refusing to 
cooperate with the passenger railroads, arguing that APTA, or any other 
interested party, presented no data or evidence to indicate that 
passenger railroads have experienced problems from freight railroads 
refusing to coordinate emergency responses. The AAR believed that FRA 
would never fine a passenger railroad that demonstrates that it 
attempted to comply with the regulation, but was unable to coordinate 
with a freight railroad due to the freight railroad's refusal to 
cooperate.
    Based upon careful consideration of the comments, FRA is requiring 
communication and coordination between all railroads affected by this 
rule involved in each passenger operation, by mandating the submission 
by the passenger railroad of one emergency preparedness plan that is 
jointly prepared. Accordingly, if a State or public authority provides 
commuter rail passenger train service by contracting with another 
railroad to actually operate the service, and the passenger operation 
is in turn hosted by a freight railroad, all three entities are 
required to work together and file one emergency preparedness plan for 
the operation setting forth each railroad's procedures and 
responsibilities under the plan. If for example, a passenger operation 
will fulfill none of the requirements of emergency planning, with the 
host railroad having all of the responsibilities under the plan, this 
fact must be clearly stated in the plan.
    In the event of noncompliance by any or all of the entities 
involved in the implementation of the plan, FRA reserves the right to 
initiate appropriate enforcement action against all parties 
participating in the plan. Of course, FRA will intervene to assist any 
railroad that is having difficulty crafting a joint emergency 
preparedness plan, and help mediate a solution. While FRA might not 
initially seek an injunction to prevent a passenger train operation 
from operating due to a host railroad's failure to cooperate, FRA could 
initiate civil penalty action against the host railroad for its failure 
to comply with the requirements of part 239.
    The portion of the emergency preparedness plan addressing the host 
railroad's responsibilities shall, at a minimum, include procedures for 
notifying emergency responder organizations and discuss the railroad's 
general capabilities for rendering assistance to an involved passenger 
railroad during an emergency situation. The host railroad must also 
address any physical and operating characteristics of its rail lines 
that may affect the safety of the rail passenger operations, e.g., 
evacuation of passengers from a train stalled in a tunnel or on an 
elevated structure.

Section-by-Section Analysis

    As a number of the issues and provisions have been discussed and 
addressed in detail in the preceding discussions, this section-by-
section analysis will explain the provisions of the final rule and 
changes from the NPRM by briefly highlighting the rationales or 
referring to the prior discussion. The discussions and conclusions 
contained above should be considered in conjunction with the analysis 
contained below. Each comment received has been fully considered by FRA 
in preparing this final rule.
    FRA amends part 223 of title 49, Code of Federal Regulations by 
adding six new definitions and requiring railroads operating passenger 
train service to clearly mark emergency windows. FRA also adds 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 is reorganized and definitions of four important 
terms employed in the passenger train emergency preparedness 
regulations are added. The four new defined terms are ``emergency 
responder,'' ``passenger train service,'' ``person,'' and ``railroad.'' 
For ease of reference, FRA defines 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 as well as rapid 
transit authorities whose operations are in an urban area and are 
connected with the general railroad system of transportation. These 
terms are intended to have the same meaning as in part 239 of this 
chapter. However, FRA does not intend for its definition of 
``railroad'' in either this part or part 239 of this chapter 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

    FRA received no comments regarding proposed paragraph (d), and the 
paragraph is adopted as proposed. 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. Section 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 or 
near the designated locations.
    Section 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 a 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 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 potential 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 subsection 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 intends 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 commenting on the proposed rule, noted that the last 
line of Sec. 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

[[Page 24643]]

doors rather than the windows. Contrary to METROLINK's assumption, the 
instructions required by this paragraph are for operating the emergency 
window exits. The requirements for posting operating instructions at or 
near emergency door exits are contained in Sec. 239.107 of this 
chapter.
    Section 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 final rule does not require a specific size 
or shape for the symbol, but FRA intends the railroad's emergency 
preparedness plan developed pursuant to Sec. 239.101 of this chapter to 
contain a provision explaining 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. 239.101(a)(5) of this chapter. Of 
course, while the final rule does not require emergency responders to 
participate in evacuation planning or strategy with the railroads, the 
railroads must offer liaison training and assistance.
    The final rule allows a marking that could consist of a symbol or 
words (such as ``RESCUE ACCESS''). Although FRA stated in the proposed 
rule that it reserved the right to be more prescriptive in the final 
rule based upon a uniform pattern, and noted that FRA was working to 
identify an appropriate marking that might be capable of universal 
recognition, FRA has decided to retain the flexibility set forth in the 
proposal. However, if during the fourth phase of FRA's comprehensive 
effort to address passenger safety issues FRA determines that a uniform 
pattern or symbol is required, FRA may modify the marking requirements 
of Sec. 223.9(d)(2) during a future rulemaking action.
    The final rule also 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 expects 
passengers and emergency responders to be already 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. 239.101(a)(5) and (a)(7).

3. Appendix B to 49 CFR Part 223

    FRA is revising Appendix B to 49 C.F.R. 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. Commenters were invited 
in the NPRM to submit suggestions to FRA describing the types of 
actions or omissions that would subject a person to the assessment of a 
civil penalty, and were also invited to recommend what penalties may be 
appropriate, based upon the relative seriousness of each type of 
violation. FRA did not receive any public comments nor did the Working 
Group present any recommendations to the agency on this topic. 
Accordingly, FRA has amended the penalty schedule based on its own 
analysis of the inherent seriousness of violating the marking 
requirements for emergency windows of part 223. The penalty schedule 
also changes the maximum penalty that FRA is authorized to assess for 
violations of the provisions of this part. The maximum penalty is 
raised from $20,000 to $22,000 for any violation where circumstances 
warrant. This change is intended to comply with the provisions of the 
Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-
410, 104 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt 
Collection Improvement Act of 1996, Pub. L. 104-134, 110 Stat. 1321-373 
(April 26, 1996), which requires Federal agencies to adjust civil 
monetary penalties to counter inflation's effect of diminishing the 
impact of these penalties. The inflation adjustment is to be calculated 
by increasing the maximum civil monetary penalty by the percentage that 
the Consumer Price Index for the month of June 1995 exceeds the 
Consumer Price Index for the month of June of the last calendar year in 
which the amount of the penalty was last set or adjusted. The initial 
adjustment, however, may not exceed 10 percent. The resulting $22,000 
maximum penalty was determined by applying the criteria set forth in 
sections 4 and 5 of the statute to the maximum penalty otherwise 
provided for in the Federal railroad safety laws.

4. Purpose and Scope: Section 239.1

    FRA did not receive any comments, and this section is adopted as 
proposed. 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. Paragraph (b) states that 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 unless it 
is inconsistent with 49 U.S.C. 20106.

5. Application: Section 239.3

    As a general matter, FRA will apply this rule 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 will be 
regulated by FRA as a railroad under the provisions of the final rule. 
Although the public authority will 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 will be expected to fulfill all of the responsibilities under 
this part with respect to emergency preparedness planning, including 
implementation.

[[Page 24644]]

    FRA has revised paragraph (a)(3) to state that all railroads 
hosting the operation of passenger train service are covered by the 
final rule. While FRA recognizes that the majority of host 
relationships are entered into by freight railroads, there are a number 
of instances where passenger operations (e.g., Amtrak) host other 
passenger operations over their trackage. Accordingly, the final rule 
has been revised to reflect this fact.
    Paragraph (b)(1) of both the NPRM and final rule indicate that the 
rule does not apply to rapid transit operations in an urban area that 
are not connected with the general railroad system of transportation, 
and this paragraph is intended merely to clarify the circumstances 
under which rapid transit operations are subject to FRA jurisdiction 
under this part.
    In a final rule published in the Federal Register on December 27, 
1995, the Federal Transit Administration (FTA) announced that it would 
begin requiring states to oversee the safety of rail fixed guideways 
systems not regulated by FRA. 60 FR 67034; see 49 U.S.C. 5530, 49 CFR 
part 659. Under its statutory scheme, FTA does not directly enforce 
safety statutes or regulations against rail fixed guideway systems, nor 
does FTA have safety inspectors who enter upon the regulated properties 
to perform inspections. In accordance with FTA's statutory authority 
and the above rulemaking, FTA does not interpret what constitutes 
commuter rail or rapid transit, but instead regulates whatever rail 
fixed guideway systems that FRA does not.
    As set forth in Appendix A to part 209 of this chapter, with the 
exception of self-contained urban rapid transit systems, FRA's 
statutory jurisdiction extends to all entities that can be construed as 
railroads by virtue of their providing non-highway ground 
transportation over rails or electromagnetic guideways, and will extend 
to future railroads using other technologies not yet in use. For policy 
reasons, FRA does not exercise jurisdiction under all of its 
regulations to the full extent permitted by statute. Based on its 
knowledge of where the safety problems were occurring at the time of 
its regulatory action and its assessment of the practical limitations 
on its role, FRA has, in each regulatory context, decided that the best 
option was to regulate something less than the total universe of 
railroads.
    In light of the above, FRA may elect to limit the exercise of its 
jurisdiction over these entities for policy reasons. FRA currently 
withholds the exercise of its jurisdiction over rapid transit 
operations where conventional and light rail operations are separated 
in time (night/day hour specifications). In making this policy 
determination, FRA anticipates working with the FTA on a joint policy 
statement that will be published in the Federal Register and discuss 
the types of rapid transit systems covered by this rule that will be 
subject to FRA's jurisdiction and which ones will instead be subject to 
state safety oversight under FTA's jurisdiction. As part of this joint 
policy analysis by FRA and FTA, our two agencies will seek to 
coordinate more explicitly the requirements of FRA regulations and 
State safety oversight programs.
    The final rule is structured to apply to intercity and commuter 
service (as well as rapid transit operations that operate over the 
general railroad system of transportation), 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.

Pub. L. 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 were scheduled 
to 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 states that the requirements of this part 
will 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 is taking into account the financial burden that would 
be 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 will already be required to have emergency preparedness 
plans in place to protect the safety of their own passengers; the 
private car passengers will presumably benefit from these plans even 
without the rule directly covering private car owners or operators. In 
the case of non-revenue

[[Page 24645]]

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 will 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

    FRA did not receive any comments, and this section is adopted as 
proposed. Section 239.5 informs the public as to FRA's views regarding 
the preemptive effect of the final 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, adoption, and implementation of emergency preparedness 
plans for passenger train operations. Although the subject matter 
includes a requirement in Sec. 239.101(a)(5) that railroads establish 
liaison relationships with their on-line emergency responders by 
developing and making available a training program emphasizing access 
to railroad equipment, location of railroad facilities, and 
communications interface, FRA is not requiring emergency responders to 
participate in these liaison activities. Accordingly, since FRA is only 
regulating the content of the training opportunities that railroads 
must offer to the responder community, States are in no way preempted 
from regulating any other 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 consistent with part 239.
    Further, FRA acknowledges that there may be special local interests 
concerning types and/or quantities of on-board emergency equipment that 
might need accommodating, particularly in cases of public authorities 
operating passenger train service within only one territory. Although 
national uniformity to the extent practicable of laws, regulations, and 
orders related to railroad safety is important, FRA does not want to 
decrease the level of emergency preparedness already in place on a 
passenger railroad.

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 final rule. The 
definitions are carefully worded in an attempt to minimize the 
potential for misinterpretation of the final rule. Several of the 
definitions introduce new concepts which require further discussion.
    For a detailed discussion of FRA's decision to revise the 
definition of ``crewmember,'' see the preceding ``Discussion of 
Comments and Conclusions'' portion of this document under heading of 
item number 1. The definition of ``crewmember'' is primarily intended 
to cover persons who either perform on-board functions connected with 
the movement of a train and are subject to the Federal hours of service 
laws during a tour of duty (e.g., a locomotive engineer, conductor) or 
provide on-board service in a sleeping car or coach assigned to 
intercity service, other than food, beverage, or security service 
(e.g., an Amtrak sleeping car attendant), a deadheading employee can be 
covered by the definition as well. Accordingly, such an employee could 
count as a ``qualified'' employee under Sec. 239.101(a)(2)(vi) of this 
part for purposes of meeting a passenger railroad's minimum on-board 
staffing requirements for its emergency preparedness plan when a 
freight train crew has relieved that passenger railroad's expired crew. 
During a passenger train emergency situation, off-duty employees are 
expected to assume their appropriate roles under the railroad's 
emergency preparedness plan and assist the passengers.
    In commenting on the proposal, 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.'' In accordance with 
FRA's revised definition of ``crewmember,'' these categories of 
employees are now excluded from coverage.
    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 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 definition of ``emergency'' or ``emergency situation'' has been 
changed in the final rule to include examples of some of the more 
common scenarios that would require a railroad to activate its 
emergency preparedness plan. However, regardless of whether a 
particular emergency illustration is specifically listed in the 
definition, FRA expects a railroad to activate its emergency 
preparedness plan anytime an unexpected event related to the operation 
of its passenger train service involves a significant threat to the 
safety or health of one or more persons requiring immediate action.

[[Page 24646]]

    The NPRM defined ``emergency responder'' as ``a qualified member of 
a police or fire department, or other organization involved with public 
safety, who responds to a passenger train emergency.'' 62 FR at 8356. 
In its comments, APTA requested that FRA delete the word ``qualified'' 
because it implies that someone on the railroad will determine an 
emergency responder's qualifications. APTA stated that at an accident 
scene, a commuter railroad lacks the practical capability to determine 
an emergency responder's qualifications, and on-board personnel do not 
have the time to determine qualifications. The LIRR noted that 
emergency responder qualifications are dictated by police and fire 
departments, not the railroads.
    In including the word ``qualified'' in the proposed definition of 
``emergency responder,'' FRA never intended to place a burden on the 
railroads to determine the professional qualifications of emergency 
responders. It was assumed that the railroads would cooperate fully 
with any individual sent by an organization involved with public safety 
in response to a passenger train emergency, based solely upon that 
organization's own determination of its employee's qualifications. 
However, in response to the concerns of the two commenters, FRA has 
deleted the word ``qualified'' from the definition of ``emergency 
responder,'' and also revised the definition to clarify that a member 
of an emergency responder organization may coordinate as well as 
directly provide emergency services.
    The AAR commented that the definition of ``joint operations'' is 
open to various interpretations, and suggested that FRA revise the 
definition in the final rule to state that ``joint operations means 
rail operations conducted by more than one railroad, except as 
necessary for the purpose of interchange.'' FRA agrees with this 
recommendation, and never intended for the final rule to apply to joint 
operations in instances when the sole purpose for using the trackage is 
interchange. Accordingly, the definition of ``joint operations'' in the 
final rule has been revised to exclude interchange situations.
    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 
included in Sec. 239.7 of this part. This introduction merely provides 
a sampling of the most important concepts of the final rule. Many other 
terms are defined and explained in the section-by-section analysis when 
analyzing the actual final rule text to which they apply.

8. Responsibility for Compliance: Section 239.9

    FRA did not receive any comments, and this section is adopted as 
proposed. Section 239.9 clarifies FRA's position that the requirements 
contained in the final rules are applicable to any ``person,'' 
including a contractor, that performs any function required by the 
final rule. Although all sections of the final 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 
Sec. 239.107, the contractor is 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 Pub. L. 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 $11,000 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 $22,000 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 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 penalty schedule also implements the maximum penalty that FRA 
is authorized to assess for violations of the provisions of this part. 
The maximum penalty reflects an increase from $10,000 to $11,000 for 
violations and an increase from $20,000 to $22,000 for willful 
violations. This change is intended to comply with the provisions of 
the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 
101-410, 104 Stat. 890, 28 U.S.C. 2461 note, as amended by 
Sec. 31001(s)(1) of the Debt Collection Improvement Act of 1996, Pub. 
L. 104-134, 110 Stat. 1321-373 (April 26, 1996), which requires Federal 
agencies to adjust civil monetary penalties to counter inflation's 
effect of diminishing the impact of these penalties. The inflation 
adjustment is to be calculated by increasing the maximum civil monetary 
penalty by the percentage that the Consumer Price Index for the month 
of June 1995 exceeds the Consumer Price Index for the month of June of 
the last calendar year in which the amount of the penalty was last set 
or adjusted. The initial adjustment, however, may not exceed 10 
percent. The resulting $11,000 and $22,000 maximum penalties were 
determined by applying the criteria set forth in sections 4 and 5 of 
the statute to the maximum penalties otherwise provided for in the 
Federal railroad safety laws.
    Although the penalty provision broadly provides that any person who 
violates or causes the violation of any requirement of 49 CFR part 239 
is subject to a civil penalty, members of the Working Group were 
concerned

[[Page 24647]]

about the possibilities of theft of its on-board emergency equipment 
and/or vandalism of its passenger cars, and wanted FRA's permission to 
post warnings to members of the general public that committing such 
acts could subject them to Federal penalties. FRA encourages railroads 
to notify their passengers (and any potential vandal or trespasser) 
that in addition to any Federal or state criminal statutes that exist 
to prohibit vandalism, theft, trespassing, or tampering involving 
railroad equipment, property, or operations, FRA may impose a civil 
penalty upon any individual who willfully causes a railroad to be in 
violation of any requirement of this part. Take for example, a railroad 
that supplies each of its passenger cars with one fire extinguisher and 
one pry bar, and provides each of its on-board crewmembers with one 
flashlight. By equipping its train with all of these items, the 
railroad would be in full compliance with the minimum requirements of 
paragraph 239.101(a)(6)(i) of this part. Accordingly, if unbeknownst to 
the railroad, a vandal pilfers a pry bar from one of the passenger cars 
while the train is in service FRA can impose a civil penalty upon that 
individual for causing the railroad to be in violation of 49 CFR part 
239. FRA recommends that in addition to posting written warnings on and 
in passenger cars, railroads use on-board announcements to remind their 
passengers of the serious consequences that can result from placing the 
railroad in violation of the important safety requirements of this 
part.
    The final rule includes a schedule of civil penalties in an 
Appendix A to 49 CFR part 239, to be used in connection with this part. 
Commenters were 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 were 
also invited to recommend what penalties may be appropriate, based upon 
the relative seriousness of each type of violation. FRA did not receive 
any public comments nor did the Working Group present any 
recommendations to the agency on this topic. Accordingly, FRA has 
drafted the penalty schedule based on its own analysis of the inherent 
seriousness of violating the requirements of part 239 of this chapter.

10. Waivers: Section 239.13

    Section 239.13 identifies FRA's ability to grant waivers of 
compliance with the requirements of this rule. Requests for such 
waivers can be filed by any interested party. In reviewing the request, 
FRA would conduct a factual investigation to determine whether there 
was a basis to deviate from the general criteria without compromising 
or risking a diminution of rail safety.

11. Information Collection: Section 239.15

    FRA is adding this section to note that it is inserting the OMB 
approval number for the information collection requirements of this 
rule for part 239, since OMB has completed its review and granted 
approval. This section also identifies the sections of part 239 that 
contain information collection requirements.

12. Emergency preparedness plan: Section 239.101

    In drafting the final rule, FRA recognized that the specific 
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 final 
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 final 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 reject 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 each section applying to every railroad that 
is a party to the plan or to every affected 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 or railroad or all. In instances 
where a railroad hosts the operations of a passenger railroad, both 
railroads have to address issues of emergency preparedness. The rule 
requires the host railroad to jointly develop the applicable portions 
of an emergency preparedness plan with the operating passenger 
railroad, uniquely dealing with the passenger operations not otherwise 
addressed. A detailed discussion of the requirement to jointly adopt a 
single emergency preparedness plan for the passenger service is 
included in the preceding ``Discussion of Comments and Conclusions'' 
portion of this document under item number 5.
    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 deemphasize 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,

[[Page 24648]]

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 must 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 must 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. 
Section 239.101(a) requires all railroads covered by part 239 to 
develop and implement written procedures to fulfill each applicable 
provision of this section. Depending on the nature of a railroad's 
operations, as well as on whether its operations involve a host 
railroad, different elements of this section may be fulfilled by more 
than one entity. While FRA requires all elements of this section to be 
addressed for each passenger train operation, the rule does not mandate 
that every element be addressed separately by each affected entity who 
is one of multiple parties to a single emergency preparedness plan. 
Accordingly, if a passenger train service operator relies on a freight 
railroad host to notify outside emergency responders after an emergency 
occurs, FRA would permit the freight railroad to set out its 
responsibility to address this element in its portion of the emergency 
preparedness plan. Provided that both entities properly coordinate 
their portions of the emergency preparedness plan (and include cross-
reference citations to each other's sections of the plan), the 
passenger train service operator's portion of the plan could omit a 
particular item and still be in compliance with the final rule.
    The final rule does not require that the public authority and the 
operating railroad or independent contractor each actively participate 
in performing duties in accordance with the joint filing with FRA of 
the emergency preparedness plan 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 that is filed with FRA for approval covering the 
entire passenger train service operation. After approval of the plan, 
FRA may hold the public authority or the other entity or both 
responsible for compliance with this part.
    Based upon review of the comments and consultations with the 
Working Group, FRA is establishing the parameters for emergency 
preparedness plans in general, but will defer to the expertise of each 
individual railroad to adopt a suitable emergency preparedness plan for 
its railroad, in accordance with these parameters. As previously noted, 
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 
its portion of the 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 final rule is to maximize 
the safety of passengers, railroad personnel, emergency response 
personnel, property, and the general public that 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.
Communication
    Section 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 final rule anticipates that an 
on-board train crewmember will 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 shall be informed of the emergency and provided 
directions. As appropriate, all passengers must be accounted for 
(particularly in sleeping compartments) so as to expedite evacuation, 
if necessary, and to avoid needless effort to search for ``missing'' 
persons, however, a passenger manifest is not required.
    In its comments, 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. The LIRR requested in its comments that FRA revise 
Sec. 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. The LIRR recommended that FRA adopt a 
performance-based standard, so instead of the rule requiring each 
railroad to provide specific levels of information to its passengers, 
the rule should permit general levels of information. The measure of 
success would be based upon whether the railroad successfully handled 
the emergency by ensuring the timely evacuation of its passengers.
    APTA commented that crewmembers on commuter railroads need to have 
flexibility in what they tell passengers about an emergency situation, 
and noted that the proposal was ambiguous about the level of detailed 
information that must be provided. APTA also argued that since the 
proposal appeared to require crewmembers to tell all

[[Page 24649]]

passengers about the emergency, it could worsen an emergency situation 
by leading to inappropriate statements to passengers. APTA stressed 
that commuter railroad crewmembers are professionals, and should be 
empowered to use discretion in determining the appropriate information 
to tell passengers during and after an emergency.
    FRA recognizes that each emergency situation is unique, and may 
require rapid decisionmaking and varied approaches by on-board 
crewmembers on how best to ensure the safety of the passengers. In 
response to APTA's concerns, proposed Sec. 239.101(a)(1)(i) has been 
modified in the final rule by adding the words ``as appropriate'' in 
order to provide discretion to the on-board crewmembers as to when and 
how to inform the passengers about the nature of the emergency and the 
types of countermeasures that are in progress. FRA also replaced the 
words ``the train crewmember'' with the words ``an on-board 
crewmember'' in order to clarify that the crewmember who first notifies 
the control center does not necessarily have to be the same crewmember 
who communicates with the passengers. This change reflects the fact 
that generally it is the locomotive engineer who contacts the control 
center and the train conductor who keeps the passengers apprised of 
pertinent developments.
    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 or enforcement action against 
the railroad, or both, the flexibility of the final rule is consistent 
with FRA's reluctance to strictly impose a 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 reviewing and approving emergency 
preparedness plans under Sec. 239.201, FRA expects to see the railroads 
incorporating specific recommended practices as guidance to their 
employees 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 final 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.
    Although FRA had asked for comments on whether the final rule 
should expand the notification language of Sec. 239.101(a)(1) to 
mandate a specific primary means of communication, and 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, no written comments were 
received on this issue. While the language of the final rule on this 
issue remains unchanged from the proposal, FRA expects the issue to be 
fully resolved in the context of the forthcoming revision of the Radio 
Standards and Procedures (49 CFR part 220). That rulemaking was tasked 
to the RSAC on April 1, 1996, and the NPRM was published in the Federal 
Register on June 26, 1997. 62 FR 34544. Among the proposals set forth 
in proposed Sec. 220.9 of that NPRM, is a requirement that ``each 
occupied controlling locomotive in a train shall have a working radio, 
and each train shall also have communications redundancy.'' 62 FR at 
34549, 34550, 34556. Persons wishing to receive more information 
regarding the NPRM on Railroad Communications should contact Mr. Gene 
Cox or Mr. Dennis Yachechak, Operating Practices Specialists, Office of 
Safety, FRA, 400 Seventh Street, S.W., Washington, D.C. 20590 
(telephone numbers: 202-632-3504 (Cox); 202-632-3370 (Yachechak)), or 
Ms. Patricia V. Sun, Trial Attorney, Office of Chief Counsel, FRA, 400 
Seventh Street, S.W., Washington, D.C. 20590 (telephone number: 202-
632-3183).
    While the final rule does not require that both ends of a train 
contain communication devices for use by a crewmember other than the 
engineer to directly contact the control center, FRA received comments 
from the UTU at the August 28 and September 2, 1997 Working Group 
meetings about the need for enhanced means of communications on trains, 
especially trains operating in intercity service. FRA is aware of 
devices, such as tone generators, that can enhance the communication 
capabilities of the radios already carried by each conductor and used 
to communicate with the engineer. If railroads voluntarily equip their 
trains with these devices in order to go beyond the minimum 
requirements of the final rule, then conductors may be able to directly 
communicate with the control center in the event that the engineer's 
radio communications equipment malfunctions or is damaged, or the 
engineer is incapacitated during the emergency situation. However, FRA 
recognizes that while portable radios can be placed on trains in a 
similar manner to equipping locomotives with mobile radios, portable 
radios may not be able to transmit to the control center due to 
distance, lower wattage, and smaller antennas. In the case of commuter 
railroads operating in push/pull service there will already be two 
mobile radios onboard, one at each end of the train.
    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 , while operating its intercity 
trains on a host railroad, will necessarily have access to those 
telephone numbers while on the host's property. Amtrak also has a 
nationwide toll-free telephone number which connects the caller 
(including private citizens) to the national Amtrak police desk in 
Washington, DC, which is manned around the clock. The final rule does 
not require that notification to the control center occur within a 
precisely measured number of minutes, rather it uses the 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.

[[Page 24650]]

    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.
    In its comments, APTA requested that FRA modify 
Sec. 239.101(a)(1)(ii) to increase the rule's flexibility concerning 
notifications by the control center to emergency responders, and permit 
the emergency preparedness plan to discuss the means by which the 
contacts will occur. APTA noted that not all commuter railroads have 
control centers in each emergency responder jurisdiction, and the 
control center in one State may control territory that passes into 
another State. There is no direct link, therefore, between the 
dispatcher and the emergency responders, and the railroad's police 
department is generally responsible for making these contacts.
    In response to APTA's concerns, FRA is aware that because each 
railroad's operations are somewhat unique, 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 (a)(1)(ii) does not specify which 
emergency responder organizations (e.g., fire departments, helicopter 
rescue groups) or which categories of appropriate railroad officials 
that the control center must contact. Because the paragraph is already 
worded to provide maximize flexibility to railroads in designating the 
emergency contacts, FRA has not modified this paragraph in response to 
APTA's concerns.
    FRA encourages each affected railroad to consider any reasonable 
method of notification when it drafts its emergency preparedness plan, 
so long as the notifications by the control center personnel occur 
promptly, whether by direct or indirect means. In this regard, FRA 
encourages railroads to consider the comments of Eric Sondeen of the 
Littleton, Colorado Fire Department, in drafting the section of their 
emergency preparedness plans that addresses communication. Among his 
comments, Mr. Sondeen recommended that railroads provide, on an annual 
basis, emergency dispatch center telephone numbers to all rail corridor 
emergency response agencies, including secondary telephone numbers. Mr. 
Sondeen also suggested that railroad crew timetables contain 24-hour 
civilian emergency response agency telephone numbers for contingency 
cellular telephone contacts by crewmembers.
    METROLINK commented that each railroad should designate an employee 
function or position to be responsible for maintaining current 
emergency telephone numbers, rather than an individual employee. In 
response to this comment, FRA notes that paragraph (a)(1)(ii) does not 
specify which control center employees may be designated by the 
railroad to maintain the list of emergency telephone numbers. FRA 
concludes that the paragraph, as written, already permits a railroad 
great flexibility to select any relevant specific individual or general 
job category to maintain the lists, provided that the designation is 
properly set forth in the railroad's emergency preparedness plan 
submission. Accordingly, this paragraph is adopted as proposed. 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 request 
that the final rule 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.
    Although the final rule does not require railroad control center 
personnel to notify operators of pipelines and electric power companies 
that a passenger train emergency has occurred, FRA recognizes that 
pipelines and power lines can pose potentially serious hazards to rail 
passengers. On September 30, 1993, Amtrak Train No. 88, while being 
hosted on track owned by CSX Transportation, collided near Intercession 
City, Florida with a vehicle owned by Rountree Transport and Rigging, 
Inc. (NTSB Highway Accident Report (HAR) 95/01.) A natural gas pipeline 
was located in close proximity to the location of the passenger train 
accident, but no one notified the owner of the pipeline operation. 
Fortunately, an off-duty employee of the pipeline company viewed 
coverage of the accident on television approximately one hour after the 
accident, and notified the pipeline owner. Although CSX 
Transportation's emergency procedures manual stated that the first 
priority for its Operations Center dispatchers following an accident is 
to promptly notify appropriate local emergency response agencies when 
an emergency situation exists, CSX Transportation emergency procedures 
did not define the derailment of a train in an area occupied by a 
pipeline as an emergency condition. Among the NTSB's conclusions was 
that ``Osceola County emergency responders failed to determine and 
assess the risks posed by potentially hazardous pipelines at the 
accident site.'' NTSB/HAR 95/01 at page 50. The NTSB also noted in a 
footnote that one week before the collision an Osceola County fireman 
had attended a training session on pipeline emergency response actions 
that was sponsored by the pipeline company, but had not briefed others 
at the fire station about his training before the time of the accident. 
NTSB/HAR 95/01 at page 28, footnote 16.
    Since the NPRM did not propose that railroads should be required to 
notify operators of pipelines and electric power companies when a 
passenger train accident occurs nearby, and FRA did not seek public 
comment on this issue, the final rule does not impose this additional 
notification requirement. However, based upon the many important safety 
issues that must be considered when a rail accident occurs, and in 
accord with the NTSB's findings concerning the accident that occurred 
near Intercession City, Florida in 1993, FRA encourages both railroads 
and members of the emergency responder community to voluntarily 
incorporate relevant information about pipelines and power line 
locations into their emergency preparedness planning. In addition, as 
part of the four-phase process of addressing emergency preparedness, 
FRA will review the implementation and effectiveness of paragraph 
(a)(1) and related voluntary developments, and evaluate whether further 
rulemaking activity or action is appropriate.
Initial Training
    Section 239.101(a)(2) requires that the emergency preparedness plan 
provide for initial training, and then periodic training at least once 
every two years thereafter, of all railroad employees who

[[Page 24651]]

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. On-board 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).
    At the Working Group meeting held on August 28, 1997, some members 
questioned what FRA meant in paragraph (a)(2)(i)(E) by the phrase 
``hands-on instruction.'' Some members of the group thought that it 
meant every employee being trained must actually open an emergency 
window and an emergency door exit on a passenger car, while others 
thought that a railroad would be in full compliance if only one 
employee were required to perform the ``hands-on'' exercise while 
hundreds of others received their training merely by observing. In 
addition, one member commented that since an emergency window used for 
demonstration purposes is costly to repair and requires taking the 
passenger car temporarily out of service to replace the rubber 
stripping, the final rule should permit employees to receive their 
``hands-on'' training by watching a video presentation.
    FRA recognizes the unique characteristics of the various railroad 
properties, and is reluctant to inhibit flexibility and creativity by 
imposing rigorous specifications in the rule text itself on how every 
railroad should perform ``hands-on'' training. However, FRA expects 
each railroad's emergency preparedness plan to address the means by 
which it proposes to train all of its on-board employees on the 
specific elements of: rail equipment familiarization; situational 
awareness; passenger evacuation; coordination of functions; and 
``hands-on'' instruction. In this regard, FRA will not approve a plan 
that provides for ``hands-on'' training exclusively by allowing 
employees to watch a video, since watching a two-dimensional image of 
someone else demonstrating a means of emergency escape or using a piece 
of emergency equipment can be ineffectual. But, if a railroad wishes to 
use a video as an instructive tool in combination with a scale model of 
an emergency window (mock-up) containing a rubber pull strip, and the 
emergency preparedness plan provides for small groups of employees 
taking turns handling window glazing and practicing emergency escape 
using the mock-up, FRA would find this approach acceptable.
    The final rule also requires appropriate training of control center 
personnel who effect 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 is not requiring 
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.
    During the NPRM stage of this proceeding, FRA primarily envisioned 
the need for each railroad to provide appropriate training to its 
control center personnel on their duties after a passenger train 
emergency has already occurred (e.g., notifying outside emergency 
responders about a derailment). However, in light of a recent accident 
near Savannah, Georgia, FRA has revised the final rule to clarify that 
control center personnel may have important emergency-preparedness 
responsibilities even before a life-endangering situation turns into a 
passenger train emergency. Specifically, on October 9, 1997, an Amtrak 
train operating on track owned by CSX Transportation in Garden City, 
Georgia collided with a truck hauling a ``lowboy'' trailer (which has 
unusually low clearance between its underside and the ground) at a 
grade crossing. The truck had become stuck on the crossing. Prior to 
the collision, local police contacted CSX Transportation police, who 
alerted the CSX Transportation dispatching center in Jacksonville, 
Florida. The information concerning the stuck trailer reached the 
dispatcher of a nearby parallel line in the area, who saw no imminent 
risk because of an absence of rail traffic on this line. Unfortunately, 
the information did not reach the dispatcher of the line on which the 
lowboy trailer was actually stuck. Because the crew of the Amtrak train 
was not notified of the trailer's presence by the dispatcher and was 
not able to stop the train in time once it became visible, the Amtrak 
train collided with the trailer.
    While the investigation of the accident is still in its early 
stages, the best information currently available supports certain 
preliminary conclusions. Information concerning the presence of the 
truck on the crossing was conveyed to CSX Transportation prior to the 
collision, but either the information was not sufficiently descriptive 
of the location of the incident or the information was not conveyed to 
the appropriate dispatcher, or both. In order to prevent the recurrence 
of such accidents, FRA and CSX Transportation agreed that CSX 
Transportation would require: continued emphasis on education of 
truckers; restricted speeds in zones where a highway-rail crossing 
collision may be imminent; precise identification of highway-rail 
crossings and immediate notification of hazards; a safety briefing for 
its dispatchers and supervisors on the scenario of the accident of 
October 9, 1997; and operational testing of its dispatchers and 
supervisors concerning avoidance of any possible collisions while the 
precise location of an obstruction or other hazard at a rail-highway 
crossing is being determined.
    Consistent with the above discussion, FRA has revised the rule text 
to require that control center personnel receive territorial 
familiarization. FRA is aware that the railroad industry has a variety 
of methods available in order to accomplish this objective. These 
methods include, but are not limited to; review of trackage charts and 
operating timetables; familiarization train rides by train dispatchers 
through the territories in which they dispatch; and viewing of 
videotapes containing narration that describes the physical 
characteristics of the territory. FRA also expects each railroad's 
emergency preparedness plan to provide for a high degree of 
coordination and interface during all internal communications between 
personnel within the control center, particularly whenever a potential 
or actual emergency situation exists.

[[Page 24652]]

Initial Training Schedule
    FRA recognizes that even after a railroad receives conditional 
approval of its emergency preparedness plan under Sec. 239.201, the 
initial training of individual employees on their responsibilities 
under the emergency preparedness plan cannot occur immediately. 
Accordingly, new subparagraphs (iii) and (iv) have been substituted in 
Sec. 239.101(a)(2) in order to establish an implementation schedule for 
this initial training. While each railroad will be held responsible by 
FRA for all other applicable provisions of its emergency preparedness 
plan that it can fully comply with immediately after the date of 
conditional approval (e.g., equipping each passenger car with one fire 
extinguisher in accordance with Sec. 239.101(a)(6)(i)(A) or conducting 
a debriefing and critique session after a passenger train emergency 
simulation under Sec. 239.105, the initial training can be spread out 
over a longer time period. In addition, during this implementation 
phase, the on-board staffing requirements of subparagraph (vi) of 
Sec. 239.101(a)(2) will not apply.
    During the Working Group meeting held on August 28, 1997, FRA did 
not receive any specific recommendations from members of the group on a 
precise implementation timetable for inclusion in the final rule. 
However, the Working Group agreed that the final rule needed to reflect 
the fact that railroads could not provide emergency preparedness 
training to every employee on the same day, and that the railroads 
would instead modify their other ongoing training programs to fulfill 
this new requirement. Upon careful consideration of this issue, FRA 
recognizes that smaller railroads (i.e, those whose operations include 
less than 150 route miles and less than 200 million passenger miles 
annually) generally operate less frequent service and employ fewer 
individuals in less hierarchical environments than do larger railroads 
and providers of intercity passenger service, and will therefore have 
an easier time providing emergency preparedness training from a 
logistical standpoint than will those larger service providers.
    FRA anticipates that these smaller entities will also be able to 
offer this training to informal groups of employees without the need 
for carefully planned and organized training sessions. In addition, 
under the terms of the final rule, intercity service providers also 
have the added requirement to conduct training for persons performing 
on-board functions in a sleeping car or coach car (other than food, 
beverage, or security service). Accordingly, the final rule provides 
larger railroads and intercity railroads with more time in which to 
fully train their employees than it does smaller railroads in order to 
recognize the more complex organizational structure of these larger 
companies.
    In the case of a railroad providing commuter or other short-haul 
passenger train service and whose operations include less than 150 
route miles and less than 200 million passenger miles annually, the 
final rule permits the training to be completed up to 21 months after 
the effective date of the rule, which will be approximately one year 
after FRA grants conditional approval to the railroad. In the case of a 
railroad providing commuter or other short-haul passenger train service 
and whose operations include 150 or more route miles and 200 million or 
more passenger miles annually, or a railroad providing intercity 
passenger service (regardless of the number of route miles or passenger 
miles), the final rule permits the training to be completed up to 33 
months after the effective date of the rule, which will be 
approximately two years after FRA grants conditional approval to the 
railroad. In addition, while each freight railroad hosting any category 
of passenger train service receives up to 21 months after the effective 
date of the final rule to train its employees, the implementation 
schedule for a passenger railroad hosting such service (e.g., Amtrak 
hosting the operations of NJTR in the state of New Jersey) is governed 
by subparagraphs (A)--(C) of Sec. 239.101(a)(2)(iii), based upon either 
route miles and passenger miles or whether that host railroad provides 
intercity service. Accordingly, under a scenario of Amtrak hosting the 
operations of NJTR, Amtrak would receive up to 33 months in which to 
train its employees on their hosting responsibilities under the joint 
emergency preparedness plan covering the NJTR passenger operation.
    In accordance with the implementation schedule, a railroad 
beginning passenger operations after the effective date of the final 
rule has either 90 or 180 days after beginning service, depending on 
the size or type of its operation, to train its employees on their 
responsibilities under the emergency preparedness plan. Any new 
employees who are hired by a railroad to perform either on-board or 
control center functions after the date on which the railroad receives 
conditional approval under Sec. 239.201(b)(1), must receive their 
initial training within 90 days after commencing employment. During 
this 90-day time period, these employees would be permitted to function 
as crewmembers even though they had not yet become qualified under the 
emergency preparedness plan to perform the functions for which they 
will be responsible.
Periodic Training
    The final 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 final 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 final rule. As FRA recognized 
in drafting the NPRM, while the final rule places an upper limit of the 
term ``periodic'' at two years, anytime the provisions of an emergency 
preparedness plan are invoked during an actual emergency, that railroad 
receives an additional opportunity to evaluate the level of knowledge 
of its affected employees. However, since the final rule does not 
permit any level of activation of the railroad's emergency preparedness 
plan to count toward the training requirement, the railroad cannot 
count the event toward the periodic training requirement for those 
involved employees. However, FRA recognizes that affected railroad 
employees who receive ``real life'' training will still benefit from 
the experience, particularly whenever all five of the requirements of 
Sec. 239.101(a)(2)(i) are addressed during the emergency and the 
employees also participate in the debriefing and critique session.
    In the NPRM, FRA requested comments from railroads on the costs of 
implementing the on-board personnel training requirements of the rule. 
Specifically, FRA wanted to determine the extent of the current 
training that railroads already provide to their on-board employees 
(including emergency

[[Page 24653]]

preparedness training) as part of regular operating rules training 
programs. Comments were also requested concerning the estimated dollar 
amount of the incremental additional costs connected with modifying 
existing training programs to comply with this proposal. FRA was 
interested in ascertaining whether the training requirements would 
merely add de minimis costs to each railroad's existing training 
program or if compliance would entail moderate or significant 
additional costs.
    The majority of the organizations that submitted comments on 
Sec. 239.101(a)(2) recommended that FRA modify the requirement for 
employee training and qualification by permitting each railroad to 
provide periodic training at least once every three years, instead of 
at least once every two years. In this regard, Amtrak recommended that 
the periodic training requirement be changed to at least once every 
three years, to coincide with Amtrak's interval for refresher training 
on first aid. Although Amtrak stated that three years would provide 
sufficient frequency, it did not provide a reason. Amtrak also noted 
that railroads will provide their employees with interim updates when 
major changes to their emergency response programs occur.
    APTA offered no comment on the frequency of periodic training for 
on-board personnel, but recommended a training cycle of three years for 
control center personnel. Consistent with the requirements of 49 CFR 
part 240 (Qualification and Certification of Locomotive Engineers), 
APTA stated that a three-year training cycle better fits the training 
programs of all commuter railroads, especially the larger ones. APTA 
also argued that a three-year training cycle would permit better 
scheduling of funding outlays for this important training activity.
    CALTRAIN commented that a three-year cycle of formal training is 
preferable, since existing training drills regularly provide much of 
the required materials. CALTRAIN also stated that since formal training 
may require reassignment, a three-year training cycle better allows for 
budgeting and personnel reassignments during austere fiscal times.
    The LIRR stated that a three-year qualification period for 
emergency preparedness training would meet the criteria set forth in 
the rule. However, the LIRR offered no supporting data for this 
assertion.
Rationale for Requiring Two-year Interval
    In rejecting the request of various commenters to raise the time 
interval between periodic training cycles for on-board and control 
center employees to three years, FRA carefully considered both 
financial cost issues and the safety ramifications of weakening an 
integral element of emergency preparedness. Based upon FRA's analysis, 
the agency recognizes that railroads providing and hosting passenger 
train service will experience cost increases by being required to train 
their employees at least once every two years. However, FRA concludes 
that the effective and efficient management of passenger train 
emergencies begins with properly trained and knowledgeable railroad 
employees onboard the trains and in the control centers capable of 
quickly obtaining the assistance of emergency responders and ensuring 
the safety of the passengers. FRA believes that in order to maximize a 
railroad's level of emergency preparedness, frequent refresher training 
is essential, and any periodic requirement longer than at least once 
every two years increases the probability that a certain number of 
employees would become unfamiliar with their crucial emergency 
preparedness roles.
    As discussed in the analysis of Sec. 239.103, FRA requires 
railroads operating passenger train service to conduct full-scale 
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 these 
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 Sec. 239.101(a)(2) will include instruction on the importance of 
full-scale emergency simulations in achieving successful implementation 
of the emergency preparedness plan.
First-Aid and CPR Training
    Although Sec. 239.101(a)(6)(ii) has been added to require railroads 
providing intercity service to equip each train with at least one 
first-aid kit (see the section-by-section analysis of this issue under 
the ``On-board emergency equipment'' heading for a detailed discussion 
of this requirement), the final 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 rule, or at least mandating that railroads offer employees the 
opportunity to receive this training, the consensus of the Working 
Group during the drafting of the NPRM was that both first-aid and CPR 
training should be excluded from the rule. The Working Group stressed 
that the goal of the 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

[[Page 24654]]

perform during an emergency and that first-aid and CPR should be 
performed by emergency medical services personnel.
    FRA invited commenters to submit their views on whether the final 
rule should include the issues of first-aid and CPR training. FRA noted 
that one option was 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 was to require not 
only that railroads train their employees in first-aid and CPR, but 
also mandate that employees use this training during an emergency.
    The UTU commented that the final rule should make CPR training and 
first-aid training mandatory on a biannual basis, and require anyone 
who is properly trained and given proper equipment to offer assistance 
in an emergency. The UTU argued that each car should contain a first-
aid kit and that each train should contain a doctor's kit in case a 
doctor is on board a train during an emergency situation. The UTU 
indicated that conductors on MARC trains receive a thorough emergency 
training program that includes CPR and first-aid training, and 
recommended that one conductor or assistant conductor be trained in 
emergency procedures for every 50 passengers on board a train. The UTU 
also noted that there would not be a delay in calling for help if the 
call is made quickly and the first-aid or CPR is then started. The UTU 
stated that employees who have not been trained with CPR will not be 
able to identify serious medical emergencies that truly require 
intervention by properly trained and equipped emergency personnel. 
Finally, the UTU expressed its doubt about METROLINK's assertion that 
none of its 8 million riders over the last three years had required 
CPR, and wondered about METROLINK's documentation for this statement.
    CALTRAIN commented that employer-provided CPR training should be 
excluded from the final rule, due to potential liability issues. The 
Littleton, Colorado Fire Department stated that the final rule should 
require railroads to provide rail emergency and first-aid training to 
crewmembers on board both Amtrak and privately-operated passenger 
trains, as well as for the operating crews of all freight trains. 
Finally, the BLE noted that it was not opposed to a qualified person 
having skills in first-aid and CPR, but stated that although the 
engineer would benefit tremendously from first-aid training and CPR 
training, the engineer should remain on the locomotive and not be the 
principal person providing that response.
    At the Working Group meeting held on August 28, 1997, the issue of 
requiring first-aid and CPR training was once again fully discussed. 
Although the UTU representative continued to recommend that FRA mandate 
that railroads provide this training and require its use in the event 
of an emergency situation, the preponderant recommendation to FRA from 
the railroad commenters ( i.e., that this training remain optional) was 
unchanged from the NPRM stage of this proceeding. In making the 
decision to exclude first-aid and CPR training for railroad employees 
from the minimum requirements of emergency preparedness planning, FRA 
recognizes that the main objective of this rule is to ensure the prompt 
arrival of professional emergency responders at the scene if an 
emergency, not risk potential delays by encouraging on-board 
crewmembers to perform heroic efforts that may assist one individual 
passenger at the expense of the safety of the entire train. In 
addition, FRA is confident that since many members of the general 
public (including railroad employees) voluntarily obtain first-aid and 
CPR training, it is likely that someone knowledgeable will be aboard 
the train and available to assist in the event that medical 
professionals are delayed in responding to the emergency. However, FRA 
will continue to evaluate this issue through program review.
Passenger Manifests
    The final 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 were 
invited in the NPRM 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. Since no comments were received, 
FRA has not included any passenger manifest-requirement in the final 
rule.
Testing
    The term ``accurately measure'' is used in Sec. 239.101(a)(2)(v)(A) 
relative to employee qualification in a broad sense to mean that the 
test will show to the railroad whether the employee has sufficient 
understanding of the emergency preparedness plan subject area for which 
he or she is responsible, and whether 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 is 
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.
On-Board Staffing
    Section 239.101(a)(2)(vi) has been revised and renumbered from the 
NPRM to require, as a general rule, that all on-board crewmembers be 
qualified to

[[Page 24655]]

perform the functions for which they are responsible under the 
applicable provisions of the railroad's emergency preparedness plan. 
For example, in the year 2002 (a date beyond the deadline for the 
completion of initial training under Sec. 239.101(a)(2)(iii) by all 
existing railroads providing intercity passenger service), a train on 
an intercity railroad is scheduled to travel from Washington, D.C. to 
Atlanta, Georgia with a four-person operating crew fully trained under 
the applicable provisions of the railroad's emergency preparedness 
plan. However, the train crew also includes someone assigned to perform 
service as an attendant in a sleeping car (and not as a new railroad 
employee for purposes of Sec. 239.101(a)(2)(iv)) who is not yet 
qualified under the plan's provisions to perform assigned functions. 
Although this train already has a fully trained and qualified crew 
operating the train, the intercity railroad would still not be in full 
compliance with the final rule since the crew includes one on-board 
crewmember who is not qualified under the emergency preparedness plan. 
(See the preceding ``Discussion of Comments and Conclusions'' portion 
of this document under the heading of item number 1 for a detailed 
discussion of FRA's decision to revise the definition of ``crewmember'' 
in Sec. 239.7 and increase the on-board staffing requirements.) The one 
exception to the general rule, as set forth in subparagraph (B), 
applies 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 passenger railroad's emergency preparedness 
plan and available to perform excess service under the Federal hours of 
service laws in the event of a passenger train emergency, there would 
be no violation of the final rule.
Joint Operations
    Section 239.101(a)(3) has been revised from the NPRM, and now 
contains the requirement that each freight or passenger railroad 
hosting passenger train service shall communicate with that service's 
provider or operator or both and coordinate applicable portions of the 
one jointly-adopted emergency preparedness plan for that passenger 
service. One significant difference to the language of paragraph (a)(3) 
from the NPRM stage, is that the final rule prohibits a host railroad 
from utilizing a separate emergency preparedness plan in order to 
address its emergency preparedness responsibilities involving the 
service being hosted. (See the preceding ``Discussion of Comments and 
Conclusions'' portion of this document under the heading of item number 
5 for a detailed discussion of the requirement that a joint emergency 
preparedness plan be submitted for each passenger train operation by 
all railroads involved with providing, operating, or hosting such 
passenger service.) The final rule also recognizes that while hosts of 
passenger train service are generally freight railroads, passenger 
railroads (e.g., Amtrak) may also serve as hosts.
    The host railroads must prepare sections of the 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 plan sections 
addressing hosting by both freight and passenger railroads must, at a 
minimum, include procedures for making emergency responder 
notifications, and discuss general capabilities for rendering 
assistance to the involved hosted passenger railroads during emergency 
situations. The hosting railroads must address any physical and 
operating characteristics of their rail lines that may affect the 
safety of the hosted 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 another railroad to review all of the requirements imposed 
by the final rule with the host railroad, and coordinate their 
respective roles in implementing a coherent response to an emergency 
situation. While FRA presumes that the host 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 final 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 is including 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.
Tunnels
    Section 239.101(a)(4)(i) addresses FRA's requirements for 
compliance with this part by railroads with operations that include 
tunnels of considerable length, where immediate passenger egress is not 
feasible. Since FRA did not receive any comments on this issue, 
paragraph (a)(4) is adopted as proposed.
    In order to limit the number of structures covered by this 
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.
Other Operating Considerations
    FRA also did not receive any comments on Sec. 239.101(a)(4)(ii), 
and has adopted paragraph (a)(4)(ii) as proposed. The paragraph 
requires 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

[[Page 24656]]

electrified territory, the control center must be responsible for 
issuing instructions to deenergize the electrical power. Also, the 
train crew and emergency responders must 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. The prudent approach for everyone connected with a passenger 
train emergency, especially those individuals who have not received 
training in power isolation procedures, is to always assume that the 
electrical power is in the ``on'' position.
    Also, railroad operations over bridges and trestles that cross over 
wetlands, lakes, rivers, or other bodies of water or over ravines 
(particularly those in isolated areas with no nearby roads) pose 
particular access problems for emergency responders. Helicopters or 
boats may provide the only logical approach to these locations.
Parallel Operations
    Section 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. In commenting on paragraph (a)(4)(iii) as proposed, 
APTA stated that the final rule should not place the entire 
responsibility for the parallel operation on the passenger railroad, 
and should properly account for the shared responsibilities of both the 
passenger operation and the hosting freight railroad. Although 
coordination is required under the proposal, APTA argued that the NPRM 
did not provide a method to ensure cooperation with the freight 
railroad to coordinate emergency efforts. APTA noted that if a freight 
railroad refuses to cooperate, a commuter railroad lacks recourse, and 
could still face assessment of civil penalties for failing to 
coordinate with an unwilling freight railroad host. APTA requested that 
the final rule delete the words ``provide for coordination'' and 
replace them with the words ``shall seek to coordinate.'' APTA also 
indicated that the proposal did not take into account light and rapid 
transit rail operations that often run parallel to commuter operations.
    In response to APTA's concerns, the final rule has been revised to 
include a requirement that all railroads that are parties to a 
passenger train operation's emergency preparedness plan must initiate 
reasonable and prudent actions to coordinate emergency efforts when 
adjacent rail modes of transportation run parallel to any of these 
railroads. By adding the words ``reasonable'' and ``prudent,'' FRA 
recognizes that coordination efforts may not always be successful if 
one of the railroad parties to the arrangement is unwilling to 
cooperate. While FRA will not penalize railroads that make good faith 
efforts to establish appropriate working relationships with adjacent 
rail modes of transportation, FRA expects each railroad to demonstrate 
that it made the necessary coordination attempts. In addition, upon 
notification and request, FRA will intervene to assist any railroad 
that is having difficulty coordinating emergency efforts, and help 
mediate a solution.
    In response to APTA's comment that the proposal did not address 
light and rapid transit rail operations running parallel to commuter 
operations, FRA notes that the term ``rail modes of transportation'' is 
intended to cover all types of transit operations by rail or magnetic 
guideways running parallel to passenger railroad operations and their 
hosts. Accordingly, no change to the final rule was necessary.
    In accordance with the requirements of this paragraph, employees of 
a host 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 motor 
vehicles, must be required by the emergency preparedness plan for the 
passenger operation to immediately convey that knowledge or information 
to the control center. 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. Under the terms of this revised paragraph, coordination of 
emergency efforts is required regardless of whether the host railroad 
is a freight railroad or another passenger operation.
Liaison With Emergency Responders
    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 final 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 final rule 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 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 final rule only requires 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 final rule does not hold a railroad accountable for an 
emergency responder organization's unwillingness to enter into a 
liaison relationship, provided that the railroad employed its best 
efforts to make the liaison opportunities known and available to the 
responders.
    In addition to the requirement to periodically distribute 
applicable portions of the emergency preparedness plan to emergency 
responders (which has been moved from paragraph (a)(5)(i)

[[Page 24657]]

in the NPRM to paragraph (a)(5)(iii) in the final rule), FRA has added 
a new requirement as paragraph (a)(5)(i) mandating that each affected 
railroad develop and make available a training program for all on-line 
emergency responders who might be called upon to respond to an 
emergency. As set forth in the preceding ``Discussion of Comments and 
Conclusions'' portion of this document under the heading of item number 
2, in conjunction with FRA's decision to scale back the simulation 
requirement of Sec. 239.103 to involve only one meaningful full-scale 
simulation (performed either annually or every two years depending on 
the size of the railroad), FRA has added the training program provision 
in order to maximize the opportunity of the emergency responder 
community to obtain familiarity with railroad equipment, location of 
railroad facilities, and communications interface.
    In paragraph (a)(5)(ii) of the final rule (which has been revised 
and renumbered from paragraph (a)(5)(iii) of the NPRM) FRA requires 
railroads to invite emergency responders to participate in emergency 
simulations. Since Sec. 239.103 has been revised in the final rule to 
prohibit a railroad from counting a tabletop exercise toward the 
simulation requirement, any railroad electing to voluntarily conduct a 
tabletop exercise is not required by paragraph (a)(5)(ii) to invite 
members of the emergency responder community to attend. However, a 
railroad must employ its best efforts to invite all appropriate 
emergency responders to attend all of its full-scale simulations. 
Moreover, FRA expects each railroad to extend invitations to all full-
scale simulations even if the railroad does not intend to count a 
particular simulation toward the minimum number required by 
Sec. 239.103(b).
    FRA recognizes that not every potential outside emergency responder 
will have the opportunity to attend a full-scale simulation or 
otherwise obtain realistic exposure to the unique emergency response 
challenges posed by railroad emergencies. In addition, even assuming 
that every affected railroad diligently distributes the pertinent 
portions of its current and updated emergency preparedness plan to 
appropriate members of the emergency responder community, descriptive 
information set forth in written materials is no substitute for formal 
training that includes meaningful hands-on experience with railroad 
equipment and an opportunity to ask questions of a live instructor.
    In commenting on Sec. 239.101(a)(5), APTA stated that all commuter 
railroads already attempt to share information with appropriate local 
emergency responders, and that this determination is based upon such 
factors as railroad operations and emergency responder capabilities. 
APTA argued that the proposed rule eliminates that discretion and 
flexibility and places a tremendous burden on commuter railroads to 
affirmatively seek out every emergency responder organization, whether 
or not that entity is a logical choice. APTA noted, for example, that 
paragraph (a)(5)(iii) of the proposed rule (which has been redesignated 
as paragraph (a)(5)(ii) in the final rule) would require MARC to invite 
the Washington, D.C. fire department to every simulation conducted on 
both of its main lines, even though the simulation is intended to 
benefit emergency responders in West Virginia. Instead, APTA indicated 
that MARC should be able to group emergency responders by region.
    In addition, APTA requested clarification in the final rule of the 
requirement in Sec. 239.101(a)(5)(ii) of the NPRM to maintain ``an 
awareness of each emergency responders' capabilities.'' APTA asked 
whether this requirement included the type of equipment, hazardous 
material capabilities, ambulance service, emergency medical 
technicians, and size of fire and police departments. Since each 
emergency responder determines the level and type of response to 
provide during an emergency, which may or may not reflect the limits of 
its capabilities, APTA also questioned how maintaining this information 
will benefit the railroad.
    In its comments, METRA questioned how it could be expected to 
become aware of, much less maintain an awareness of, the capabilities 
of each emergency responder throughout six of the most densely 
populated counties in the country. METRA suggested that to maintain an 
awareness it could establish a program through its liaison, as mandated 
in the regulation, that any community involved with METRA's service 
would have to tell METRA if it upgraded or downgraded its facilities or 
equipment. A railroad should know if one community has a type of 
equipment needed for a rescue, for example, but need not know the 
internal workings of the community facilities.
    A member of the public commented that there needs to be better 
coordination between emergency response teams and railroad operators. 
Although not all railroad accidents can be prevented, the commenter 
stated that coordination with emergency responders can save the lives 
of passengers experiencing health difficulties while riding trains, 
such as heart attacks.
    CALTRAIN stated that while it works closely with local on-line 
emergency responders, it believes that rail properties are unable to 
know the detailed capabilities of each agency. CALTRAIN indicated that 
it relies on responders to summon the appropriate help, based in part 
upon the information provided to them by the railroad.
    NICTD commented that it had already conducted two simulation drills 
with emergency responders during calendar year 1996. NICTD stated that 
it was already in the process of developing a training program with 
manuals on emergency evacuation of passengers from equipment for all 
emergency responder organizations servicing NICTD.
    The Des Plaines, Illinois Fire Department stated that emergency 
telephone numbers are of paramount importance so that the fire 
department can establish contact and stop the trains so that responders 
can go down the rail lines in both directions. This commenter also 
noted that receipt of hands-on training is important.
    The LIRR commented that members of the emergency responder 
community do not need the railroads to show them how to put out fires 
or splint fractures. Instead, the railroads need to train the 
responders on railroad equipment.
    The UTU stated that it is important that emergency plans be updated 
and be distributed to the host railroads and emergency responders. The 
UTU believed that doing so would shorten response time, and make 
emergency responders more familiar with the railroad's physical 
characteristics and equipment.
    In its comments, METROLINK stated that it operates through the 
jurisdictions of 33 different fire districts, over 50 ambulance 
companies, and 45 police agencies. METROLINK argued that it should not 
be a railroad's function to maintain an awareness of the capabilities 
of each emergency responder, and noted that it lacks the technical 
ability to know or understand when a ``significant change'' occurs in a 
responder's capability. METROLINK also noted that the proposed rule 
imposed no reciprocal responsibility on local emergency responders to 
notify railroads when their capabilities change. METROLINK contended 
that the emergency responders should be responsible for establishing 
mutual aid with other local agencies when situations outside their 
capacity arise.
    Based upon the comments received, FRA concludes that it would be

[[Page 24658]]

impractical to require railroads to directly monitor the emergency 
preparedness and response capabilities of all of its on-line emergency 
responders, and has deleted the ``maintaining-awareness'' requirement 
of paragraph (a)(5)(ii) of the NPRM from the final rule. FRA recognizes 
that since the rule imposes no burden on emergency responders to advise 
railroads of their staffing capabilities or their inventories of 
specialized rescue equipment, the railroads would be hindered in their 
ability to immediately determine the most appropriate emergency 
response organizations to request assistance from after a passenger 
train emergency situation develops. Moreover, FRA expects that the 
central location of the emergency response contact (e.g., the 911 
emergency operations center) will be fully aware of the capabilities of 
the nearest and/or best-equipped emergency responders, thereby being 
able to send the most appropriate responders to the location of a 
passenger train emergency. Accordingly, if a train derails and falls 
from a bridge into a river, FRA would expect the emergency responder 
organization that is contacted to summon a rescue company trained in 
water rescues if one is available.
    In commenting on the proposal, Amtrak stated that while it agreed 
that it is reasonable to expect that the emergency preparedness plan 
information should be made available to any affected emergency 
responder, the final rule should permit railroads to fulfill this 
requirement by providing the information to entities that perform 
centralized functions of collecting information and disseminating it to 
emergency service providers, when and as needed. Amtrak recommended 
that the final rule not designate acceptable information repositories, 
but rather provide latitude for railroads to communicate effectively 
with local emergency responders through centralized communication 
entities rather than individually. Amtrak stressed that since its 
nationwide route system interfaces with over 15,000 emergency response 
agencies, it would not be feasible to keep all of them supplied with 
written instructions. Even if the final rule permitted electronic 
transmission of plan information, Amtrak urged that direct 
communication between individual railroads and each emergency responder 
organization not be required.
    Subsequent to the public hearings, Amtrak submitted additional 
comments to FRA on July 1, 1997 concerning distribution of emergency 
preparedness plans to emergency responders. Amtrak stated that it 
agreed that applicable portions of the emergency preparedness plan 
should be readily available to any affected emergency responder, but 
believed that the regulations should not require direct communication 
between each individual emergency response agency and the railroad. 
Entities that perform centralized functions of information collection 
can disseminate this information to emergency responders as needed. 
Amtrak noted that these entities include the National Fire Protection 
Association (NFPA), the International Association of Police Chiefs 
(IAPC), the International Association of Fire Chiefs (IAFC), 
organizations for emergency medical services and emergency management 
agencies, and national trade magazines. These organizations could 
provide an effective conduit through which railroads can communicate 
with the emergency response agencies in the local communities to advise 
them of the availability of emergency plans.
    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, FRA recognizes, based on Amtrak's statements made 
at both the pre-NPRM Working Group meetings and in its written 
comments, that because Amtrak 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. FRA had invited public comments on how Amtrak could best 
comply with the emergency responder liaison requirement, as set forth 
in the proposed rule. FRA asked whether the final rule should establish 
a different standard for railroads that operate in territories with 
large numbers of potential emergency responders to contact, and 
requested that 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. Regrettably, the only commenter addressing this issue was 
Amtrak, and its comments dated July 1, 1997 are summarized above.
    On September 2, 1997, six FRA representatives convened a meeting 
with seven members of Amtrak's management team at Amtrak's offices in 
Washington, D.C. to discuss issues relating to the final rule on Radio 
Communications as well as to emergency preparedness. A representative 
from the UTU was also in attendance. Minutes of that meeting have been 
placed in the public dockets of both rulemakings.
    In pertinent part, FRA challenged Amtrak to provide information to 
FRA on how the railroad would ensure that the training materials and 
emergency preparedness plan information would reach the literally 
thousands of emergency responder organizations who might potentially 
respond to an emergency occurring along Amtrak's many routes. FRA 
recognizes that smaller commuter operations will be capable of training 
the limited number of potential emergency responders along their routes 
on their railroad equipment, but that Amtrak lacks the financial 
resources and personnel to directly contact thousands of organizations. 
At the conclusion of this meeting, FRA requested that Amtrak submit a 
proposal to FRA on how it expects to achieve compliance with the 
requirements of this paragraph.
    In a letter dated October 27, 1997, Amtrak stated that it operates 
intercity passenger trains on a route system of more than 20,000 miles 
and reiterated that as many as 20,000 organizations provide emergency 
response services in the territories through which its trains operate. 
While Amtrak noted that it was not feasible to directly deal with all 
of these agencies, it acknowledged the importance of communication 
concerning Amtrak's emergency response plans, both before and during an 
emergency situation. To accomplish this objective, Amtrak proposed a 
process for advising these local entities of the availabilities of 
Amtrak's plans, distributing copies of these plans promptly when 
requested, and providing opportunities for dialogue concerning these 
plans. Amtrak also stressed that the process must provide an 
independent check to determine whether the emergency service responders 
are aware of the availability of Amtrak's materials and how they can

[[Page 24659]]

communicate with Amtrak about them during an emergency.
    Amtrak stated that the wide dispersal of its operations is markedly 
different from those of commuter services, which are localized in 
relatively discrete urban areas. Amtrak encouraged FRA to develop a 
different standard for distribution of Amtrak's materials from that set 
forth in paragraph (a)(5)(i). In this regard, Amtrak recommended that 
this paragraph provide for consultation between Amtrak and FRA 
concerning the effectiveness of initial communication efforts and 
appropriate modifications for adoption over time.
    Amtrak indicated that its emergency preparedness plan will be able 
via the Internet to emergency response agencies, as well as through 
printed documents. Amtrak will develop specific procedures to ensure 
reasonable security of the information so that it is not distributed 
without some reasonable assurance of the status and responsibility of 
the receiving party. Notice of future material changes in the emergency 
preparedness plan will be provided specifically to any parties that 
have previously indicated an interest in Amtrak's emergency response 
plans. Under Amtrak's proposal, emergency response agencies that have 
not contacted Amtrak would, upon accessing Amtrak's emergency response 
plans, not be alerted to changes. Amtrak believes that such specific 
notice would be unnecessary because these agencies had no specific 
prior understanding. However, agencies that had prior knowledge would 
be alerted to changes in facts or procedures as they occur.
    Amtrak also stated that it will establish a dedicated toll-free 
telephone number, in operation 24 hours per day, that will deal only 
with actual emergencies and provide information concerning its 
emergency preparedness plan. General requests for information will be 
responded to on the next business day.
    In order to alert local agencies to the availability of Amtrak's 
emergency preparedness plan, Amtrak requested inclusion of its contact 
telephone number in DOT's publication entitled ``North American 
Emergency Response Guidebook'' (ERG). Amtrak noted that the ERG is in 
the hands of virtually every emergency response agency in the United 
States, including fire and rescue, emergency medical services, law 
enforcement, and emergency management. Amtrak contended that just as 
CHEMTREC and CHEM-TEL are listed in the ERG, the Amtrak emergency 
preparedness and response toll-free telephone numbers should be 
included so that local agencies will know how to obtain information to 
familiarize themselves with Amtrak's operations on a proactive basis 
and where to turn during an emergency situation. Amtrak will also 
obtain paid advertising and other publicity through articles in trade 
publications for fire and rescue, emergency medical services, law 
enforcement, and similar agencies outlining emergency procedures and 
providing the railroad's contact telephone number. Another resource 
that Amtrak noted it uses in major metropolitan centers on the 
Northeast Corridor and other parts of the United States is Operation 
Respond. Operation Respond distributes software outlining floor plans 
and schematics of emergency procedures for Amtrak rolling stock and 
overhead views of the Northeast Corridor right-of-way.
    To ensure the effectiveness of the types of efforts it has 
outlined, Amtrak believes that it should implement a specific sampling 
technique with which it could determine whether emergency agencies 
selected at random are aware of how to contact Amtrak in the event of 
an emergency, and obtain the type of information needed to promptly and 
effectively respond. Amtrak proposed conducting this sampling on an 
annual basis. Amtrak stated that the sampling could determine the 
degree to which agencies are aware of how to obtain such information 
and the type of actions that Amtrak may need to take in order to 
improve the awareness of agencies in general concerning the 
availability of information about Amtrak's emergency preparedness plan. 
However, Amtrak stressed that inclusion in the ERG is the most critical 
component of any effort to provide a focal point for contacting Amtrak.
    FRA has carefully reviewed the contents of Amtrak's letter dated 
October 27, 1997, and is fully cognizant of Amtrak's desire that FRA 
reasonably regulate the need to effectively communicate with local 
emergency responder organizations concerning Amtrak's emergency 
preparedness plan without imposing an undue burden on the railroad. 
Because of the large number of emergency responders dispersed 
throughout Amtrak's territories of operation, FRA concludes that it is 
vitally important that Amtrak and the host freight railroads enter into 
close coordination and keep up-to-date instructions on how emergency 
response information is to be reported to emergency responders. In 
order for any railroad to successfully fulfill the requirements of this 
paragraph, positive communication links must exist between the 
railroad, its hosts (if applicable), and the emergency responder 
community. In this regard, the maintenance of accurate emergency 
telephone numbers for use by control centers in making emergency 
notifications in accordance with paragraph (a)(1)(ii) is even more 
crucial on a railroad the size of Amtrak.
    FRA expects that in making its training program information and 
materials available to national or state training institutes, 
firefighter organizations, or police academies, as well as when it 
distributes applicable portions of its emergency preparedness plan, 
Amtrak will contact individuals in these organizations at the lowest 
possible levels that are feasible. FRA concludes that merely mailing 
this information to the main address for organization will be 
ineffective at achieving the local outreach efforts to the emergency 
responder community required by this final rule. While FRA acknowledges 
that for the rule to fully succeed Amtrak must have the assistance of 
these organizations starting at the highest levels, Amtrak may not 
delegate the responsibility for communication with local personnel to 
the top officials of these entities. FRA expects Amtrak to employ its 
best efforts to reach, whether directly or through the assistance of 
the hierarchy of national and state emergency response organizations, 
the local emergency responders along its rail lines who could 
reasonably be called upon to respond to an emergency situation.
    In working with Amtrak as part of the review and approval process 
of Sec. 239.201, FRA will fully consider all appropriate ideas and 
suggestions from the railroad on how it proposes to achieve the 
necessary liaison relationships with its on-line responders. While FRA 
will not impose unreasonable expectations on Amtrak, FRA will not 
permit Amtrak to ignore the vast number of potential emergency 
responder organizations with which the railroad must establish at least 
a minimal liaison contact.
    Finally, in response to Amtrak's request to include its contact 
telephone number in DOT's ERG, FRA notes that the ERG is a guidebook 
published by the Research and Special Programs Administration (RSPA) (a 
modal administration within DOT) for firefighters, police and other 
emergency services personnel who may be the first to arrive during the 
initial phase of a transportation incident involving hazardous 
materials or dangerous goods. Although the ERG is not intended for use 
in a transportation incident involving only a passenger train, absent 
the additional involvement of hazardous

[[Page 24660]]

materials or dangerous goods, its wide distribution makes it an 
effective vehicle for reaching the emergency responder community. 
Accordingly, at FRA's request, RSPA has agreed to include this 
information in the next version of the ERG.
On-Board Emergency Equipment
    The requirements of Sec. 239.101(a)(6)(i) remain unchanged from the 
proposal: each railroad's emergency preparedness plan shall indicate 
the types of emergency equipment placed on board each passenger train 
and the location of such equipment on each passenger car. Although the 
final rule requires a minimum of only one fire extinguisher and one pry 
bar per passenger car, and one flashlight per on-board crewmember, FRA 
strongly encourages 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.
    In reaching the decision to retain the same on-board emergency 
equipment requirements as proposed in the NPRM, FRA considered three 
sets of comments. The first commenter, APTA, said that since the use of 
metal pry bars by non-railroad personnel on electrified territory may 
create a significant safety hazard, the final rule should prohibit 
public access to them. APTA also noted that theft, tampering, and 
destruction of on-board emergency equipment are big problems for 
commuter railroads, and asked that the rule impose a Federal penalty 
for theft, vandalism, or tampering with emergency equipment, similar to 
penalties imposed by the Federal Aviation Administration for tampering 
with smoke detectors on airplanes. The second commenter, a private 
citizen, commented that in light of the number of possible 
unpreventable health emergencies that can occur on a train, the types 
of on-board emergency equipment should be expanded. He believed that 
this equipment, along with better emergency training of railroad 
employees, can save many lives.
    The third commenter, the LIRR, indicated that while it supports the 
idea of having one fire extinguisher per passenger car, the LIRR's 
diesel fleet does not have any fire extinguishers at the present time, 
except on locomotives. The LIRR stated, however, that its entire diesel 
passenger coach fleet is scheduled to be replaced beginning in 1997. 
The LIRR noted that the Electric MU fleet operates in married pairs; 
the M1 fleet (758 total) was built between 1968-1972 and has one fire 
extinguisher per married pair, while the M3 fleet (174 total) was built 
in 1985-86 and has a fire extinguisher opposite each operating cab in 
every car. The modification of 758 M1 cars will require funding and 
time. The age of the M1 car fleet is reaching its useful life, and LIRR 
stated that it is beginning preparation of a capital investment to 
replace the M1 portion of the electric fleet. LIRR asked for relief for 
both the diesel and M1 fleet.
    Regarding the issue of pry bars, the LIRR noted that it operates in 
an area 100 miles long with 11 branches, with 181 fire departments 
throughout Long Island, New York. The LIRR stated that the average 
response time of emergency responders is only approximately 10 minutes, 
and indicated that the responders are trained on LIRR equipment and 
have state-of-the-art rescue equipment. The LIRR believed that 
retrofitting of all LIRR equipment would not provide a higher level of 
safety than what is already provided by the responders, and thought 
that pry bars would be difficult to keep or maintain on railroad 
equipment open to the public. If LIRR is subject to the pry bar 
requirement, the railroad stated that it will seek relief through the 
waiver process.
    In order to assist the agency in determining whether to revise the 
requirements of Sec. 239.101(a)(6)(i), FRA asked for comment about 
whether special circumstances exist in local jurisdictions throughout 
the country on a categorical basis, requiring railroads to meet more 
stringent requirements than the minimum quantities of on-board 
emergency equipment set forth in the proposed rule. Specifically, FRA 
invited 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, and was curious as to 
the reasons for these more stringent requirements. Depending on the 
comments received, FRA noted that it might adopt the minimums set forth 
in the text of the proposed rule or decide to broaden the coverage of 
paragraph (a)(6)(i) by specifying additional types or quantities, or 
both, of on-board emergency equipment that some or all railroads must 
carry on each passenger car. FRA's decision to adopt paragraph 
(a)(6)(i) as proposed is based largely upon the fact that FRA received 
little public comment on this issue.
    FRA recognizes that since the focus of this rule is to ensure that 
emergency responders arrive promptly at the scene of an accident, 
rather than to train on-board personnel to act as emergency responders, 
the rule must not impose onerous, irrelevant, or duplicative emergency 
equipment requirements on railroads. FRA is aware that emergency 
responder units will generally arrive at the scene of a passenger train 
emergency fully equipped with pry bars, pick axes, fire fighting 
equipment, and other assorted specialized rescue items. However, in 
deciding to mandate in the final rule that railroads must carry fire 
extinguishers, pry bars, and flashlights on board trains, FRA concluded 
that certain emergency situations can prove so life-threatening and 
time-sensitive that train crews and passengers must take immediate 
action to maximize the likelihood of survival.
    Certainly, in the event of a small fire taking place on board a 
passenger train, the availability of a working fire extinguisher in 
each passenger car could prevent a minor problem from turning into a 
tragic event before emergency responders are able to respond to the 
emergency. Also, a fire may start in a small area or limited location 
on a train, where crewmembers or passengers might be capable of 
containing the fire (e.g., a smoldering cigarette on a passenger coach 
seat), thereby avoiding the need to involve outside emergency 
responders at all. While FRA recognizes that firefighters carry all 
sorts of rescue equipment, including pry bars, sometimes the threat 
from an emergency is so immediate and severe that there is no 
opportunity to wait for emergency responders to arrive and rescue 
people. Accordingly, the availability of a pry bar in each passenger 
car will enable crewmembers and passengers to exit the train through an 
emergency window exit in the event that the rubber stripping cannot be 
removed accordingly to plan and circumstances do not permit awaiting 
the arrival of emergency responders. Also, for example, a pry bar can 
be useful in prying open an end door on a passenger car that is lying 
on its side after a derailment. Finally, since emergencies can happen 
at night in isolated locations, a flashlight is an important tool for 
guiding passengers safely off the train during an evacuation and 
minimizing the likelihood of people tripping in the dark, unfamiliar 
landscape. In addition, flashlights can prove invaluable in the event 
that a train's primary and backup electrical

[[Page 24661]]

systems fail during the course of an emergency situation.
    FRA recognizes that some railroads will have unique problems 
associated with meeting the minimum requirements of this paragraph, 
either due to certain atypical aspects of their operations, concerns 
about theft or vandalism, or compliance with laws in the local 
jurisdictions in which they currently operate. While FRA expects each 
railroad to make every effort to incorporate these minimum requirements 
into its emergency preparedness plan, FRA acknowledges that situations 
may arise where requiring strict adherence to the requirements of this 
paragraph may prevent or impede rail passenger transportation that is 
in the public interest. As a result, FRA intends that the emergency 
planning approach allow railroads to develop approaches to providing 
safe rail passenger transportation that do not meet all of the on-board 
emergency equipment standards, but compensate by providing alternatives 
that afford equivalent levels of safety. Accordingly, any railroad that 
believes it cannot or should not have to comply with the specific 
requirements of paragraph (a)(6)(i), may submit a waiver request to FRA 
in accordance with 49 CFR part 211. While submission of such a request 
does not guarantee it will be granted, every waiver request will be 
duly considered.
    This paragraph does not require railroads to instruct their 
passengers about either the location or use of the on-board emergency 
equipment. As anticipated in the NPRM, FRA has crafted 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.
First-aid Kits on Intercity Passenger Trains
    FRA has added as a new requirement to the final rule in paragraph 
239.101(a)(6)(ii) concerning first-aid kits on intercity passenger 
trains. In commenting on the NPRM, the UTU requested that all passenger 
trains be equipped with a first-aid kit as an emergency tool, and urged 
that the kit contain personal protection equipment for the trained 
personnel who will be rendering first aid and CPR. At the very least, 
the UTU stated that the kit should contain rubber gloves, and the 
plastic gloves and the mouth shields for CPR. At the working group 
meeting held in Washington, D.C. on August 28, 1997, many of the 
members agreed that while commuter trains may operate in densely 
populated areas that are close to emergency medical services, intercity 
trains often operate through sparsely populated remote regions of the 
United States that have limited road access for use by emergency 
responders. Accordingly, to recognize the unique operational challenges 
presented by the operation of intercity service, FRA believes that 
crewmembers onboard each of these trains must have access to at least 
one first-aid kit that contains the necessary supplies to clean and 
dress a minor wound until professional responders can arrive at the 
scene.
    Since FRA does not intend for the first-aid kit to substitute for 
appropriate medical attention from a physician or hospital, the final 
rule limits the minimum required contents of the first-aid kit to only 
gauze pads, bandages, wound cleaning agent, scissors, tweezers, 
adhesive tape, and latex gloves. Since proper use of these items should 
be self evident to both members of a train crew and the traveling 
public, the final rule does not impose any specific requirement on 
railroads to train their employees on the use of first-aid kits. Of 
course, FRA does not intend to discourage railroads from voluntarily 
incorporating such training into its emergency preparedness program.
    In response to APTA's concern about theft, tampering, and vandalism 
of on-board emergency equipment by both railroad passengers and other 
members of the public, FRA has included language in the section-by-
section analysis of Sec. 239.11 to remind the general public that FRA 
may impose a civil penalty upon any individual who willfully causes a 
railroad to be in violation of any requirement of this part. Take for 
example, a railroad that supplies each of its passenger cars with one 
fire extinguisher and one pry bar, and provides each of its on-board 
crewmembers with one flashlight. By equipping its train with all of 
these items, the railroad would then be in full compliance with the 
minimum requirements of Sec. 239.101(a)(6)(i). Accordingly, if, 
unbeknownst to the railroad, a vandal pilfers a fire extinguisher from 
one of the passenger cars while the train is in service FRA can impose 
a civil penalty upon that vandal for causing the railroad to be in 
violation of 49 CFR part 239.
    For purposes of enforcement by FRA of Sec. 239.101(a)(6)(i) and 
(ii), the phrase ``in service'' means a passenger car that is in 
passenger service, i.e., the passenger car is carrying, or available to 
carry, fare-paying passengers. A passenger car is not in service if it 
is: being hauled for repairs and is not carrying passengers; in a 
repair shop or on a repair track; on a storage track and is not 
carrying passengers; or is moving without passengers in deadhead 
status. FRA will impose a civil penalty for passenger equipment that is 
missing on-Board emergency equipment or first-aid kits (in the case of 
railroads providing intercity passenger train service) only if the 
railroad had actual knowledge of the facts giving rise to the 
violation, or a reasonable person acting in the circumstances and 
exercising reasonable care would have had that knowledge. Accordingly, 
since FRA is not employing a strict liability standard in enforcing 
Sec. 239.101(a)(6), FRA would ordinarily not impose a civil penalty on 
the railroad for the actions of a vandal. However, once the railroad 
personally discovers or is otherwise notified that a piece of emergency 
equipment or a first-aid kit is missing, FRA expects the railroad to 
replace the missing item before the passenger car (or train, as 
appropriate) is again placed in service on a subsequent calendar day. 
In this regard, FRA will expect each railroad to ensure its compliance 
with Sec. 239.101(a)(6) by performing whatever daily interior 
mechanical inspection requirements that eventually result from the 
rulemaking on passenger equipment safety standards. See proposed 
Sec. 238.305 of this chapter. 62 FR 49772, 49773, and 49808.
On-board Emergency Lighting
    The rulemaking on passenger equipment safety standards will address 
the issue of permanent emergency lighting on passenger rail cars. 
Whatever requirements eventually appear in the new set of regulations 
at 49 CFR part 238, Sec. 239.101(a)(6)(iii) states that

[[Page 24662]]

auxiliary portable lighting must be available for assistance in an 
emergency and should be routinely maintained and replaced as necessary. 
Section 239.101(a)(6)(ii) has been renumbered in the final rule due to 
addition of the requirement for first-aid kits on intercity passenger 
trains. Further, the final rule specifies the duration times for both 
brilliant illumination and continuous or intermittent illumination 
after the onset of an emergency situation. The final rule does not 
require that every rail passenger car have such lighting, but the train 
itself must carry enough portable lighting to facilitate orderly 
passenger evacuation.
    In its comments on this issue at the NPRM stage of this proceeding, 
METROLINK stated that FRA needed to define the clause ``auxiliary 
portable lighting must be accessible,'' and questioned whether a 
flashlight is an acceptable form of such lighting. FRA intends for a 
handheld flashlight, such as a ``D'' cell flashlight, to be one of the 
means of satisfying the auxiliary portable lighting requirement; the 
final rule text has been expanded to include a handheld flashlight as 
an example of an auxiliary portable lighting source. Further, FRA 
considers auxiliary portable lighting as accessible when the lighting 
sources are reasonably available for use by a train's crew and its 
passengers within several minutes of the onset of the emergency. Since 
every emergency situation is unique, FRA cannot expect a railroad to 
determine in advance precise locations for locating the auxiliary 
portable lighting so that every passenger and crewmember on the train 
is always within immediate reach of the lighting. Accordingly, FRA 
expects each railroad to act reasonably and make its best educated 
guess, based upon its types of rail equipment and the nature of its 
operations, on where to place auxiliary lighting so that it will likely 
be accessible after the onset of an emergency.
    Omniglow commented that chemiluminescence is the production of 
light from a non-heat generating chemical reaction, and utilizes a 
fluorescent molecule, a key intermediate, and a catalyst. Omniglow 
stated that the key chemical components are separated by a specially 
designed capsule contained within a larger, translucent plastic form, 
and that when light is desired, the outer plastic container is 
manipulated by the consumer, breaking the inner ampule, which allows 
the ingredients to mix and produce light. After arguing that each rail 
passenger car should be equipped with portable lighting capable of 
fostering passenger evacuation, and noting that FRA will permit a 
handled flashlight, such as a flashlight with a ``D'' cell, to be one 
of the means of satisfying the auxiliary portable lighting requirement, 
Omniglow stated that its 15'' high intensity lightstick would satisfy 
this requirement. In this regard, Omniglow observed that its lightstick 
is a high-intensity, non-explosive, non-hazardous, weatherproof light 
source, with a four year shelf life.
    FRA will not endorse the product of a specific company by 
determining whether a railroad's use of that product will enable it to 
comply with the emergency lighting requirements of this paragraph. The 
only issue before FRA in evaluating whether a source of auxiliary 
portable lighting satisfies a railroad's emergency planning need is 
whether the lighting is both accessible during an emergency and 
provides the requisite levels and time intervals of illumination, as 
specified in paragraph 239.101(a)(6)(iii)(A) and (B). If a railroad can 
satisfy the regulatory parameters of this paragraph by using Omniglow's 
lightsticks, FRA will take no exception to the product's use.
Safety-Awareness Programs for Passengers
    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 or more additional methods, including those designated in 
this paragraph, to provide safety awareness information. The suggested 
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. However, as set forth in 
the preceding ``Discussion of Comments and Conclusions'' portion of 
this document under the heading of item number 3, FRA also encourages 
railroads to pursue alternative innovative means of conveying passenger 
safety information. 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 final rule 
by making on-board announcements, FRA does not specify the frequency 
with which these announcements should be made during a train run. FRA 
believes that, with regard to intercity service, announcements are 
appropriate after at least each major passenger pick-up point, and 
commenters were invited in the NPRM to suggest ways of providing safety 
information to all new riders without becoming repetitious to the 
remaining passengers. Since no public comments were received on this 
specific issue, FRA has elected to permit broad flexibility to 
railroads in determining the appropriate frequency of on-board 
announcements in the event that they select this secondary method to 
disseminate information to passengers. In addition, while the final 
rule requires railroads to utilize only one additional method to 
distribute safety awareness information to the traveling public, FRA 
encourages railroads to employ as many of the options as possible based 
on operating and budgetary considerations.
    Despite FRA's encouragement of the use of innovative techniques, 
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.

[[Page 24663]]

    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.
    FRA had asked for public comment on whether the final rule should 
include fixed timeframes in which railroads must provide their 
passengers with additional methods of safety awareness information, and 
urged commenters to supply scientific or sociological data and/or cost 
estimates in support of their suggested time intervals. The general 
recommendation of the commenters was that the final rule should leave 
the features of the awareness programs to each railroad's discretion, 
and that the key component of this requirement should be flexibility so 
that railroads can utilize the right mix of passenger communication 
techniques.
    Based upon FRA's consideration of this issue, instead of specifying 
fixed maximum time intervals between utilizing the additional forms of 
program activity, FRA will allow the railroads to determine the optimal 
frequency that best serves their passengers and their operations. FRA 
expects 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.
Passenger Surveys
    Paragraph 239.101(a)(7)(iii) of the NPRM would have required 
railroads to perform surveys of their passengers in order to learn how 
successful the passenger awareness program activities are in apprising 
passengers of the procedures that must be followed during an emergency. 
As set forth in the preceding ``Discussion of Comments and 
Conclusions'' portion of this document under the heading of item number 
3, the survey requirement and its accompanying recordkeeping burden 
have been deleted from the final rule.

13. 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.
    As FRA noted in the NPRM, 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.
    FRA recognizes that full-scale emergency exercises require weeks of 
carefully organized plans involving all participating organizations and 
involve the expenditure of funds for both the training and the actual 
full-scale exercise. Recording or videotaping the scenes and 
conversations in key areas of the exercise itself can 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.
    In the NPRM, FRA questioned 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. FRA also stated that 
the final rule might require that each railroad conduct a minimum 
number of its simulations as full-scale exercises. In this regard, FRA 
was skeptical as to whether a tabletop exercise could 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 contemplating during the NPRM stage of this 
proceeding whether to strengthen the emergency simulation requirement, 
FRA was 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 was also aware that the 
financial and logistical costs of

[[Page 24664]]

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 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 noted that it 
would carefully weigh the expected costs and potential benefits of all 
available options. FRA sought 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 was 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.
    Based upon FRA's review of the public comments and our careful 
consideration of the significant issues concerning emergency 
simulations, FRA has modified Sec. 239.103 to require that all of the 
simulations that a railroad must perform are done full scale. While FRA 
still encourages railroads to supplement their emergency preparedness 
planning by voluntarily conducting tabletop exercises in addition to 
full-scale emergency simulations, FRA concludes that the safety 
objectives of emergency-preparedness planning are best served by 
railroads conducting at least a minimal number of comprehensive, full-
scale exercises. FRA believes that the combination of full-scale 
simulations and the requirement contained in Sec. 239.101(a)(5) for 
each railroad to develop a training program available to all on-line 
emergency responders who could reasonably be expected to respond during 
a passenger train emergency situation, enable railroads to best prepare 
for the likely varieties of emergency scenarios that could occur on 
their lines. A detailed discussion of the change in the simulation 
requirement from the NPRM stage of this proceeding, as well as a 
general discussion of the new requirement that railroads develop 
training programs for emergency responders and their organizations, is 
included in the preceding ``Discussion of Comments and Conclusions'' 
portion of this document under item number 2.
    To achieve a maximum level of effectiveness, full-scale 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 full-scale 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 
full-scale 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) has been modified to require each railroad that 
provides commuter or other short-haul passenger train service to 
conduct a full-scale emergency simulation at least once during every 
two calendar years, provided that its operations include less than 150 
route miles and less than 200 million passenger miles annually. For 
larger commuter or other short-haul passenger operations, i.e., those 
whose operations include at least 150 route miles or at least 200 
million passenger miles annually, a full-scale simulation is required 
at least once during each calendar year. For all intercity passenger 
operations, regardless of the number of route miles or passenger miles, 
a full-scale simulation is required at least once during each calendar 
year. The final rules does not distinguish on the basis of major lines 
for purposes of permitting railroads to select locations for their 
emergency simulations. However, in crafting the final rule to limit the 
number of required simulations, FRA recognizes that full-scale 
simulations carry higher financial and logistical costs than do 
tabletop exercises, and that railroads will reach a greater 
representative sample of the emergency responder community by offering 
training programs in accordance with Sec. 239.101(a)(5) to responders 
who may lack opportunities to partake in actual simulations.
    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 
response information and training opportunities. While FRA anticipates 
that each commuter or short-haul railroad will conduct full-scale 
emergency simulations as frequently as possible on its entire system, 
the final rule supplements the revised simulation requirement with the 
comprehensive liaison requirements of Sec. 239.101(a)(5) so that each 
railroad can best reach the most heavily traveled portions of its 
system while conserving limited resources. In this regard, FRA 
recognizes that while emergency responder organizations tend to be 
densely located along the major lines of commuter and short-haul 
railroad operations, it is not necessary for each railroad to run full-
scale simulations on all of its major lines according to a fixed 
timetable, provided that the railroad maintains proper liaison 
relationships with the affected responders.
    In addition to the final rule setting forth the requirement for 
each affected railroad to perform its full-scale emergency simulations 
without regard to whether the railroad specifically includes all of its 
major lines, FRA also does not expect the railroad to require all of 
its employees who are trained under the emergency preparedness plan to 
attend the simulations. Moreover, FRA does not expect each railroad to 
invite all potential emergency responders to participate who are 
located along the portion of the railroad subject to the simulation. 
While FRA hopes that over the long term all railroad employees involved 
in the operation of passenger train service, as well as all 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 
Sec. 239.105, and then initiate any appropriate improvements and/or 
amendments to the plan. As part of this

[[Page 24665]]

review process, the railroad is also expected to revise its employee 
training program under Sec. 239.101(a)(2) and modify its liaison 
relationships with members of the emergency responder community 
established under Sec. 239.101(a)(5), based upon the identified 
shortcomings of the railroad's emergency-preparedness planning. 
Accordingly, while the final rule does not mandate that affected 
railroads conduct numerous simulations along all of its major lines so 
as to include every possible participant, FRA concludes that the 
lessons learned from the mandatory debriefing and critique sessions and 
the interactions that occur within the required liaison relationships 
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 its lines for the emergency 
simulations, the final rule requires each railroad to organize 
simulations that will adequately test the performance of the railroad's 
program over time 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 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 requiring 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, 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 final rule requires Amtrak to 
conduct a minimum of only one full-scale emergency simulation per 
calendar year on any selected portion of its entire system, without 
regard to whether the simulation takes place on a particular business 
unit or other major organizational element. Although FRA considered 
imposing more rigorous requirements in the final rule on Amtrak (and 
other operators of intercity service) in order to ensure the requisite 
level of emergency preparedness, FRA will instead rely upon the 
thoroughness of the liaison activities and programs initiated by Amtrak 
in accordance with Sec. 239.101(a)(5).
    A detailed discussion of FRA's liaison-relationship expectations 
for Amtrak is included in the preceding ``Section-by-Section Analysis'' 
portion of this document under Sec. 239.101(a)(5). That discussion 
section outlines Amtrak's September 2, 1997 meeting with FRA, during 
which the participants discussed the issue of developing a program for 
distributing Amtrak's emergency preparedness plan to emergency service 
providers located in areas through which Amtrak operates, and also 
summarizes Amtrak's written submission to FRA dated October 27, 1997 
addressing the same topic.
    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. By combining optimal use 
of the required minimum number of emergency simulations with a 
comprehensive training program offered to emergency responders as part 
of the liaison relationship, FRA concludes that 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 rule throughout its entire system without expending a 
disproportionate amount of its limited resources.
    Since FRA has decided to scale back the simulation requirement to 
involve only one meaningful full-scale simulation (performed either 
annually or every two years depending on the size of the railroad), FRA 
believes it is imperative that all railroads be required to study and 
evaluate their emergency response capabilities in controlled settings 
enabling them to carefully plan their full-scale emergency scenarios. 
Accordingly, FRA has modified the final rule to prohibit a railroad 
from counting either a tabletop exercise or the activation of its 
emergency preparedness plan during an actual emergency situation toward 
the simulation requirement.
    However, since FRA recognizes that full-scale emergency exercises 
require extensive planning and commitment of human resources, the final 
rule permits a railroad to postpone a scheduled full-scale simulation 
for up to 180 days beyond the applicable calendar year completion date 
if the railroad has activated its emergency response plan after a major 
emergency. The postponement period permits the railroad to properly 
deal with the aftermath of an actual major emergency, defined in 
paragraph (d) to cover an unexpected event related to passenger 
operations that results in serious injury or death to one or more 
persons combined with reportable property damage, without the added 
stress or logistical burden of immediately conducting a simulation. 
During this postponement, FRA expects the railroad to measure the 
effectiveness of its emergency preparedness plan in conjunction with 
the debriefing and critique session held pursuant to Sec. 239.105, and 
then improve or amend its plan, or both, as appropriate, in accordance 
with the information developed. Paragraph (c) also requires

[[Page 24666]]

the railroad to modify the rescheduled simulation, if appropriate, 
based upon the lessons learned from its response to the actual 
emergency.
    Although paragraph (c) allows a limited exception under which a 
railroad may postpone a scheduled full-scale simulation, the calendar 
timetable remains the same. Take, for example, a commuter railroad 
whose operations include 250 million passenger miles annually and has a 
full-scale emergency simulation scheduled for December 1 of calendar 
year 2001, but has a major emergency situation occur on November 15. In 
accordance with the terms of Sec. 239.103(b)(2), the railroad is 
required to conduct a minimum of one full-scale emergency simulation 
during calendar year 2001 and another one during calendar year 2002. 
Although, Sec. 239.103(c) permits the railroad the option of postponing 
its full-scale simulation for calendar year 2001 from December 1, 2001 
until June 29, 2002, the deadline for the full-scale simulation for 
calendar year 2002 (assuming that the postpone exception of paragraph 
(c) does not become an issue during calendar year 2002) remains at 
December 31, 2002.

14. 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 a full-scale emergency simulation 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 final 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.
    FRA did not propose a specific deadline in the NPRM by which each 
railroad must conduct its debriefing and critique session after each 
passenger train emergency situation or full-scale simulation. In 
addition, FRA did not receive any public comments or recommendations 
from members of the Working Group on an appropriate timeframe. In order 
to encourage railroads to conduct the required debriefing and critique 
sessions in a timely and reasonable period of time, thereby maximizing 
the railroad's emergency-preparedness benefits from the experience, FRA 
has revised the final rule to require that these sessions be held no 
later than 60 days after the emergency situation or simulation takes 
place. Of course, while FRA is providing a maximum timeframe of 60 
days, FRA expects that, in the majority of cases, railroads will hold 
these valuable sessions within only 30 days of the emergency situation 
or simulation.
    The purpose of a debriefing and critique session is to review with 
railroad personnel the reports of evaluators, to 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. In 
addition, the debriefing and critique session provides an excellent 
opportunity for the railroad to determine the effectiveness of its 
passenger awareness program activities. For example, if an emergency 
situation requires passengers to evacuate the train, the session should 
determine if everyone onboard correctly followed the safety 
instructions of the crewmembers and was aware of the emergency window 
and door exit locations and their means of operation.
    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 shall 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 Sec. 239.201. All persons involved shall be 
debriefed.
    Although FRA did not receive any substantive comments on the need 
to conduct debriefing and critique sessions in order to accomplish the 
stated goal of improving the effectiveness of emergency preparedness 
plans, some commenters did request that FRA explicitly state in the 
rule text the circumstances under which the requirement to conduct a 
debriefing and critique session would be triggered. In this regard, 
Amtrak commented that debriefing and critique sessions can be useful in 
determining the effectiveness of emergency response procedures and in 
developing improvements, but represent substantial undertakings by 
railroad personnel (possibly including both an operating and host 
railroad) and representatives of emergency response agencies. Amtrak 
recommended that FRA not require full debriefing and critique sessions 
after accidents where no threat to passengers on the train requiring a 
possible evacuation or other similar major response existed. Where 
there was such a threat, Amtrak suggested that FRA require a full 
debriefing and critique session only after situations during which the 
Incident Command System (ICS), or an equivalent multi-jurisdictional 
emergency response system, was activated. Amtrak noted that the ICS was 
originally developed by the National Fire Academy, and had been 
endorsed by FEMA, EPA, and DOT. When such systems are activated, the 
participation and resources of numerous local emergency response 
agencies and the railroad must be coordinated; this coordination is the 
most meaningful test of an emergency response plan's effectiveness.
    Amtrak stated that for situations when the ICS was not activated, a 
smaller-scale debriefing and critique session might be appropriate. 
Amtrak acknowledged that the proposal did not require a debriefing and 
critique session after each grade crossing or trespasser accident, but 
requested that this exception be stated explicitly in the rule text. 
Amtrak also requested that the rule text exclude a debriefing and 
critique session when there is no risk to persons on the train that 
would require the type of evacuation or other emergency response 
contemplated by the regulations. Amtrak opined that there is little 
benefit to performing post-accident evaluations when there was no risk 
to persons on the train that required a prompt, coordinated response 
involving both railroads and emergency

[[Page 24667]]

responders. Since Amtrak is involved in approximately one grade 
crossing or trespasser incident every other day, a requirement to 
conduct a debriefing and critique session after such occurrences would 
be burdensome.
    CALTRAIN commented that the debriefing requirement fails to 
establish the threshold or norms that trigger a debriefing and critique 
session. CALTRAIN argued that this decision should be made by railroad 
management, with the exception of simulation drills and tabletop 
exercises, which typically conclude with a debriefing and critique.
    APTA commented that under the proposal, a commuter railroad must 
conduct a debriefing after every passenger train emergency. APTA 
suggested that FRA revise the rule to add a threshold before the 
debriefing requirement is triggered, and recommended that the 
requirement be triggered only when a major emergency affects five or 
more passengers. As proposed, APTA argued that the provision would be 
costly to comply with and annoy passengers, without any corresponding 
benefit to rail safety. For example, a passenger heart attack would 
trigger the debriefing requirement. In addition, APTA noted that the 
opportunity for passenger fraud is much greater, since a passenger 
being debriefed may attempt to collect money from the railroad for a 
nonexistent injury.
    Although METROLINK did not address the issue of establishing a 
threshold level in the final rule that would trigger the debriefing and 
critique requirement, it did comment before issuance of the NPRM that 
if a commuter railroad did a tabletop exercise or simulation, it could 
not follow the criteria of the proposal for a debriefing. During a 
table exercise or simulation, a railroad does not usually notify the 
emergency responders via the normal means of communication, does not 
respond via normal emergency conditions (code three with lights and 
sirens), and does not involve real passengers in the simulation. As 
noted in FRA's preceding ``Discussion of Comments and Conclusions'' 
portion of this document (item number 2), as well as in the sectional 
analysis of Sec. 239.103, the final rule prohibits a railroad from 
counting a tabletop exercise toward the simulation requirement of the 
final rule. Accordingly, METROLINK's concern is no longer relevant.
    A substituted paragraph (b) has been added to Sec. 239.105 to set 
forth the limited circumstances under which a debriefing and critique 
session is not required after a railroad has activated its emergency 
preparedness plan. Upon review of the comments, FRA recognizes the 
potentially significant commitment of resources that such a session can 
involve, and does not wish to impose this obligation on railroads 
unless the evaluation process would focus on ways to improve the 
effectiveness of the emergency preparedness plan in ways that would 
benefit passengers on board the train. Since emergency situations 
involving significant threats to the safety or health of train 
passengers that require immediate attention may entail a variety of 
unique fact patterns, the railroad employees and passengers involved in 
the invaluable debriefing and critique exercise can help individuals 
involved in future incidents benefit from a prompt and coordinated 
response from the railroad and the emergency responder community. 
However, because collisions of the type set forth in paragraph (b) 
occur with greater regularity and involve more predictable fact 
patterns (e.g., a motor vehicle at a gated crossing circumvents a 
lowered gate arm and is hit by a passenger train, with no one on the 
train suffering an injury), debriefing and critique sessions after 
these incidents would quickly become repetitive in nature. Accordingly, 
FRA would burden the railroads, yet achieve only a marginal benefit to 
rail safety.
    In accordance with the above change in the final rule, while the 
term ``emergency or emergency situation'' is defined in Sec. 239.7 of 
this part 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. Although the railroad would still 
be expected to invoke its emergency preparedness plan in the event of 
any grade crossing accident, the goal of this final 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, but does not affect the passengers onboard the train. Of 
course, if a grade crossing accident leads to an evacuation of the 
passenger train (e.g., a gasoline truck collides with the side of a 
passenger train, and diesel fuel begins to leak from the locomotive, 
creating the risk of a fire or an explosion), then a railroad must 
conduct a post-accident debriefing and critique session. In addition, a 
railroad cannot count its activation of the emergency preparedness plan 
under these circumstances, or any other 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 left open the question of what 
other types of emergency situations would trigger the requirements of 
this section. The NPRM sought public comment on what sorts of 
situations, or ``significant threats,'' FRA should include in the final 
rule under the definition of ``emergency'' or ``emergency situation'' 
set forth in Sec. 239.7. Although no comments were received, FRA has 
revised the definition of ``emergency'' or ``emergency situation'' in 
Sec. 239.7 to include: derailments; a fatality at a grade crossing; a 
passenger or employee fatality, or an illness or injury to one or more 
crewmembers or passengers requiring admission to a hospital; an 
evacuation of a passenger train; and a security situation (e.g., a bomb 
threat).
    The final rule does not prescribe an FRA form or other substantive 
questionnaire to be used at the debriefing and critique sessions, or 
set forth specific questions to be asked after a full-scale simulation 
or actual emergency. Paragraph (c) simply requires the railroad to 
determine, by whatever means it selects, the effectiveness of its 
emergency preparedness plan; specifically, 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. 
Although the requirements of paragraph (c) were included in the NPRM as 
paragraph (b), the requirements remain essentially unchanged under its 
new designation, except for some minor stylistic changes.
    In the NPRM, FRA had invited 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 paragraph (c)), or whether each 
railroad should retain some flexibility to develop its own approach to 
conducting these sessions. FRA did not receive any comments on this 
issue. Upon further deliberation, FRA concludes that if a railroad 
rigorously analyzes its emergency response scenario in accordance with 
the five required subparagraphs to paragraph (c),

[[Page 24668]]

and corrects all relevant deficiencies identified by the debrief and 
critique session, there is no need to impose any additional 
requirements in the final rule. Nevertheless, still FRA encourages 
railroads to voluntarily discuss any or all of the following questions 
at their debriefing and critique sessions:
     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 or extinguish a fire (real 
or simulated), or both?
    Of course, during the course of FRA's review of the implementation 
and effectiveness of the debriefing and critique requirement in the 
final rule, FRA will analyze whether this requirement, as written, 
achieves the desired improvements in emergency preparedness. This 
review will determine whether the experiences of railroad employees, 
railroad passengers, and members of the emergency response community 
indicate that FRA should require railroads to consider any or all of 
the above questions during their debriefing and critique sessions. 
Based on FRA's evaluation, the agency may initiate further rulemaking 
activity or other appropriate action to ensure that this element of 
emergency preparedness planning is sufficiently addressed.
    In order to achieve the goals of this section, and to comply with 
the debriefing and critique recordkeeping requirement of paragraph (d), 
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 (d) shall contain the date(s) and location(s) of 
the simulation and the debriefing and critique session, and should 
include the names of all participants at each session. Under the final 
rule, the critique sheets, or equivalent records, must be maintained by 
the railroad at its system and applicable division headquarters for two 
calendar years after the end of the calendar year to which they apply, 
and be made available for FRA and State inspection and copying during 
normal business hours. Although the requirements of paragraph (d) were 
set forth in the NPRM as paragraph (c), the requirements remain 
essentially unchanged under its new designation. One notable 
distinction is that while the NPRM was silent as to how long the 
debriefing and critique records needed to be retained, the final rule 
imposes a retention period of two years. A second distinction is that 
while the NPRM was silent on what specific information the records of 
the debriefing and critique sessions needed to include, the final rule 
states that each record must include the: date and location of the 
passenger train emergency situation or full-scale simulation; date and 
location of the debriefing and critique session; and names of all 
participants in the debriefing and critique session.

15. 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.
    As FRA noted in the NPRM stage of this proceeding, commuter 
railroads have agreed to FRA's request that arrangements requiring hand 
tools (coins and pencils) be retrofitted. The issue of relocation of 
manual releases is being addressed in the rulemaking on Passenger 
Equipment Safety Standards (FRA Docket No. PCSS-1), and the Passenger 
Equipment Safety Standards Working Group will be evaluating other 
improvements in door design and operation. Section 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. However, in contrast to the broad definition of 
``passenger car'' contained in part 223 of this chapter, the text of 
the final rule has been revised to reflect the fact that the marking 
requirements for emergency door exits on passenger cars do not apply to 
self-propelled passenger cars designed to carry baggage, mail, or 
express.
    Section 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 final 
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 potential panic of an 
emergency evacuation, can determine where the closest and most 
accessible emergency route out of the car is

[[Page 24669]]

located. In addition, while this 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 intends 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.
    Section 239.107(a)(2) requires that the emergency door exits 
intended for emergency access by emergency 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 
section does not prescribe that a railroad use a particular brand, 
type, or color of retroreflective material to identify an access 
location, FRA intends 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 the separate 
rulemaking on passenger equipment safety standards, FRA is addressing 
appropriate requirements for periodic maintenance and replacement of 
the emergency door exit markings.
    The final 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).
    In deciding to require that railroads must mark all door exits 
intended for emergency access and post access instructions, FRA 
carefully considered concerns expressed by members of the Working Group 
that this requirement would enable vandals to gain easy or casual entry 
into passenger cars left overnight in rail yards, particularly 
adolescents who might otherwise not know how to operate specialized 
door mechanisms. In addition to FRA's desire to avoid unnecessary 
expenses to railroads for repairing vandalized or damaged rail 
equipment, FRA does not wish to see on-board emergency equipment 
disappear from unattended trains due to the acts of individuals who 
learned how to gain illegal access to the equipment courtesy of a 
Federal regulation. FRA also recognizes that under Sec. 239.101(a)(5), 
railroads are required to develop training programs available to all 
on-line emergency responders who could reasonably be expected to 
respond to an emergency situation, with an emphasis upon access to 
railroad equipment, location of railroad facilities, and communications 
interface, and that such comprehensive training information may lessen 
the need for railroads to place markings on every emergency door or 
post detailed access instructions. However, FRA realizes that not every 
potential emergency responder will choose to participate in the 
training program, and that not everyone who participated will recall 
all of the imparted information on access to the equipment while in the 
midst of responding to a major railroad accident or incident. FRA is 
confident that railroads will find ways of protecting their unattended 
equipment through appropriate security measures, and the agency will 
not risk loss of human life from delays in emergency responder rescue 
efforts merely because of the possibility that financial losses from 
vandalism will increase. Accordingly, the comprehensive marking and 
operating instruction requirements proposed in the NPRM remain 
unchanged.
    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 must be performed consistent with 
the requirements of part 223 of this chapter. While the final 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.
    For purposes of enforcement by FRA of Sec. 239.107, the phrase ``in 
service'' means a passenger car that is in passenger service, i.e., the 
passenger car is carrying, or available to carry, fare-paying 
passengers. A passenger car is not in service if it is: being hauled 
for repairs and is not carrying passengers; in a repair shop or on a 
repair track; on a storage track and is not carrying passengers; or has 
been delivered in interchange but has not been accepted by the 
receiving railroad. FRA will impose a civil penalty for passenger 
equipment that is missing an emergency-exit marking or has an 
inoperable emergency exit only if the railroad had actual knowledge of 
the facts giving rise to the violation, or a reasonable person acting 
in the circumstances and exercising reasonable care would have had that 
knowledge. Accordingly, since FRA is not employing a strict liability 
standard in enforcing Sec. 239.107, FRA would ordinarily not impose a 
civil penalty on the railroad for the actions of a vandal. However, 
once the railroad personally discovers or is otherwise notified that a 
marking is missing or an emergency exit is inoperative, FRA expects the 
railroad to replace the missing marking or repair the inoperative exit 
before the passenger car (or train, as appropriate) is again placed in 
service on a subsequent calendar day. In this regard, FRA will expect 
each railroad to ensure its compliance with Sec. 239.107(b) by 
performing whatever daily exterior and interior mechanical inspection 
requirements that eventually result from the rulemaking on passenger 
equipment safety standards. See proposed Secs. 238.303 and 238.305 of 
this chapter.
    Carrying forward requirements currently contained in FRA's 
Emergency

[[Page 24670]]

Order No. 20, the final 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 final 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 
window 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 final 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. Although commenters were 
encouraged to address this issue by indicating whether the sampling 
should occur on an annual basis, or on a less frequent basis, no 
comments were received. Accordingly, the level of frequency remains 
unchanged from the NPRM stage of this proceeding.
    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 
must be retained for two calendar years after the end of the year to 
which they relate. 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 
representatives of FRA and States participating under part 212 of this 
chapter 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.
    In response to METROLINK's comment concerning the lack of a 
timeframe for the retention of inspection records, FRA has revised the 
final rule to require a two-year retention period for each railroad's 
records of inspection, maintenance, and repair of its emergency window 
and door exits. Despite METROLINK's preference for a shorter timeframe, 
FRA concludes that two years is necessary to allow FRA an adequate 
opportunity to perform meaning compliance audits and determine if a 
railroad's overall pattern of compliance with this section is 
sufficient. In addition, while FRA recognizes the additional expense of 
retaining copies of inspection records at both the system and 
divisional levels, this dual approach enables FRA's regional inspection 
forces to perform division-specific inspections, while also permitting 
FRA to study the compliance of a railroad's entire system. However, as 
METROLINK illustrates by describing its own operational 
characteristics, at least one member of the railroad population has 
only one central maintenance facility which solely performs all of the 
inspection, maintenance, and repair of its entire fleet of passenger 
cars. Under this limited scenario, FRA agrees that it would be 
redundant to require a railroad to maintain duplicate sets of records 
at both its system and divisional offices. Accordingly, the single 
central maintenance facility would be an acceptable repository for all 
of the inspection, maintenance, and repair records for such a railroad.
    FRA has added paragraph (d) to the final rule to authorize 
railroads to retain their records of inspection, maintenance, and 
repair of emergency window and door exits by electronic recordkeeping, 
subject to the conditions set forth in this provision. This provision 
provides an alternative for railroads retaining certain information, as 
required in paragraph (c). 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 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 
or participating State inspectors 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 job 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 retain its records electronically must ensure the integrity of the 
information and prevent possible tampering with data, enabling FRA to 
fully execute its enforcement responsibilities.

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

    Section 239.201 specifies the process for review and approval by 
FRA of each passenger railroad's jointly-adopted emergency preparedness 
plan. The intent of the review and approval is to be constructive, 
rather than restrictive.

[[Page 24671]]

It is anticipated that the passenger railroads, in conjunction with the 
railroads hosting these operations (when applicable), will develop and 
implement varied plans based upon the special circumstances involving 
their individual operations. Under the final rule, FRA requires that 
each affected railroad summarize its internal discussions and 
deliberative processes to explain how the railroad's unique and 
individual operating characteristics determined how each issue for the 
passenger train operation was finally addressed in the emergency 
preparedness plan. Specifically, FRA expects each railroad to 
participate, as appropriate, in preparing a review of the analysis that 
led to each element of the emergency preparedness plan that the 
passenger operation 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.
    In response to METROLINK's comments, FRA notes that the word 
``analysis'' means that FRA expects each railroad to identify all 
vulnerabilities that exist on its property in terms of potential risks 
to rail safety and emergency preparedness planning. In the context of 
identifying the known risks, each railroad should undertake a systems 
approach in order to explain how it will mitigate the level of each 
risk to an acceptable level. FRA does not consider earthquakes, wind, 
or power outages, in and of themselves, to be ``conditions on the 
railroad's property.'' However, if a railroad requires electrical power 
to operate, and its operations run across a trestle without walkways, 
then the emergency preparedness plan must address how the railroad will 
mitigate the risk connected with one of its trains becoming stranded on 
a trestle during a power outage.
    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 first conduct a preliminary review of each plan 
in accordance with revised paragraph (b)(1), and then conduct a 
comprehensive and detailed review of each plan in accordance with 
revised paragraph (b)(2) prior to final approval and implementation. A 
detailed discussion of the issue of preliminary and final review of 
emergency preparedness plans is included in the preceding ``Discussion 
of Comments and Conclusions'' portion of this document under item 
number 4.
    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 full-scale 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 
recommending 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 had requested comments 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. Since 
FRA did not receive any comments on this issue, the final rule requires 
that all proposed plan amendments be submitted for review before the 
railroad may revise its emergency preparedness plan. Within 45 days of 
receipt of a railroad's proposed amendment to its plan, FRA will review 
the proposal and notify the railroad's primary contact person of the 
results of the review and identify any deficiencies found. If FRA 
discovers a deficiency, the railroad must correct it before the 
amendment may go into effect.
    All persons, such as contractors, who perform any action on behalf 
of a railroad are 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 passenger railroad hires an outside 
independent contractor to conduct an emergency simulation pursuant to 
Sec. 239.103, the contractor must perform this task in accordance with 
the passenger operation'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 the 
emergency preparedness plan with the commuter rail authority. While an 
assignment of responsibility for compliance made under 
Sec. 239.101(a)(3) must be clearly stated in the plan, the assignor 
shall not be relieved of responsibility for compliance with this part.
    Although the final rule has been revised to state that the final 
review process will include ongoing dialogues with rail management and 
labor representatives, the rule does not specifically require the 
direct involvement of railroad employees or their representatives in 
the process of designing the emergency preparedness plan. In this 
regard, FRA notes that 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 requires the 
willing cooperation of all persons whose duties or personal safety are 
affected by the plan.

17. Retention of Emergency Preparedness Plan: Section 239.203

    Although FRA did not receive any comments, this section has been 
modified to reflect the new requirement in Sec. 239.201 that each 
passenger railroad jointly adopt a single emergency preparedness plan 
with all railroads hosting its passenger service (if applicable). The 
single emergency preparedness plan prepared by the passenger railroad 
and all of its applicable host railroads, as well as all subsequent 
amendments to the single plan, must be retained at the system 
headquarters for each railroad and at the division headquarters for 
each division on each affected railroad 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

[[Page 24672]]

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 the emergency preparedness 
plan records available to duly authorized FRA representatives for 
inspection and copying (e.g., photocopying or handwritten notetaking) 
during normal business hours.

18. 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 may 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. A written or electronic records of each 
operational (efficiency) test must be kept for one calendar year after 
the end of the year in which the test was conducted, and must be made 
available for inspection and copying by FRA and participating States 
during normal business hours.
    FRA received only one comment concerning the requirements of this 
section. APTA expressed a general concern that a commuter railroad 
operating over a host railroad may not be able to convince the freight 
railroad's dispatcher to provide track time for efficiency tests, 
especially on busy freight corridors. APTA offered to work with FRA to 
help in the implementation of this section.
    FRA recognizes both the operational complexities and logistical 
realities of commuter railroads sharing trackage rights with freight 
railroads on the general railroad system of transportation. While FRA 
remains confident that dispatchers on host railroads will fully 
cooperate with commuter operations and provide them with safe and 
adequate opportunities to perform on-the-job verifications to evaluate 
individual employee performance under the emergency preparedness plan, 
the rule does permit a railroad to utilize formal examinations, 
interactive computer programs, and practical demonstrations to measure 
the success of its training program. Nevertheless, FRA will intervene 
as appropriate to ensure the successful and effective implementation of 
each railroad's emergency preparedness plan.

19. Electronic Recordkeeping: Section 239.303

    FRA did not receive any comments on this section, which is adopted 
as proposed. Section 239.303 authorizes railroads to retain their 
operational (efficiency) test records by electronic recordkeeping, 
subject to the conditions set forth in this provision. This provision 
provides an alternative for railroads retaining certain information, as 
required in 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 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 
or participating State inspectors 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 job 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 retain its records electronically must ensure the integrity of the 
information and prevent possible tampering with data, enabling FRA to 
fully execute its enforcement responsibilities.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures. Due to considerable public interest in the 
subject matter of the rule, the 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 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, Mail Stop 10, 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 
rule. The Net Present Value (NPV) of the total 20-year costs which the 
industry is expected to incur is $6.3 million. Following is a breakdown 
of the costs by requirement.

----------------------------------------------------------------------------------------------------------------
                    Section                                   Requirement                          Cost         
----------------------------------------------------------------------------------------------------------------
239.101,201,203...............................  Emergency Prep. Plan...................                 $199,085
                                                Control Center Notification............                969-1,569
                                                Training:                                                       

[[Page 24673]]

                                                                                                                
                                                   --Onboard Personnel Training........                1,400,684
                                                   --Control Center Personnel Training.                  134,014
                                                   --Initial Program Development.......                   51,822
                                                Joint Operations.......................                   22,954
                                                Parallel Operations....................              1,526-1,865
                                                Emergency Responder Liaison:                                    
                                                   --Training Program..................                  423,096
                                                   --Provide EPP--Commuter.............                   11,646
                                                   --Provide EPP--Amtrak...............                  403,365
                                                Onboard Emergency Equipment:                                    
                                                   --One Fire Extinguisher/Car.........                  147,801
                                                   --One Pry Bar/Car...................                   66,571
                                                   --Instruction on Pry Bar Use........                  279,576
                                                Passenger Safety Awareness:                                     
                                                   --Permanent Onboard Posting.........                   64,597
239.103, 105..................................  Pass Train Emergency Simulations.......                  231,172
239.107.......................................  Emergency Exits:                                                
                                                   --Marking--Interior.................                  447,571
                                                   --Marking--Exterior.................                1,336,679
                                                   --Inspection/Record keep............                  397,091
239.301.......................................  Operational Efficiency Tests...........                  683,909
                                                                                        ------------------------
    Total.....................................                                               6,304,128-6,305,067
----------------------------------------------------------------------------------------------------------------

    The history of passenger train accidents shows that the potential 
for injury and loss of life arising from a single incident can be 
significant. In the last 11 years there have been seven passenger train 
accidents which resulted in a significant loss of life. FRA believes 
that the value (as a result of these requirements) of averting three or 
more fatalities, or an economic-equivalent number of permanently 
disabling injuries among rail passengers over the next twenty years 
will exceed the cost to rail carriers of implementing these rules.
    While FRA cannot determine whether the monetary value of the 
benefits to railroads affected by this rule will exceed the estimated 
costs of implementing the rule, the agency believes it is reasonable to 
expect that the economic benefit from saving at least three lives as a 
result of implementing these standards will exceed the costs of 
implementing this rule.

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. FRA has conducted a regulatory flexibility assessment of this 
final rule's impact on small entities, and the assessment has been 
placed in the public docket for this rulemaking; FRA certifies that the 
final rule will not have a substantial impact on a significant number 
of small entities. This final rule affects intercity and commuter 
passenger railroads, as well as rapid transit operations that operate 
over the general railroad system of transportation. Commuter railroads 
and rapid transit systems are part of larger transit organizations that 
receive Federal funds. The American Public Transit Association (APTA) 
represents the interests of commuter railroads and rapid transit 
systems in regulatory matters. Further, the final standards were 
developed by FRA in consultation with a Working Group that included 
representatives from Amtrak, individual commuter railroads, and APTA.
    Entities impacted by the final 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). No small 
commuter railroads or rapid transit systems will 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.
    Small passenger rail operations such as tourist, scenic, excursion, 
and historic railroads are excepted from the final rule. The final 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 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 the final rule as 
simple and minimal as possible. FRA is not authorized to impose a 
penalty on persons for violating information collection requirements 
which do not display a current OMB control number. The sections that 
contain the new and/or revised information collection requirements and 
the estimated time to fulfill each requirement are as follows:

[[Page 24674]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Total annual        Average time per     Total annual burden      Total annual   
             CFR section                 Respondent  universe           responses              response                hours              burden cost   
--------------------------------------------------------------------------------------------------------------------------------------------------------
223.9d/239.107:                                                                                                                                         
    A. Emergency egress.............  18 RRs....................  1,950 new decals.....  4 minutes...........  664 hours............  $19,920           
                                                                  4,575 replace decals.  7 minutes...........                                           
                                                                  1,300 new decals.....  4 minutes...........                                           
    B. Emergency access.............  18 RRs....................  6,320 replace decals.  7 minutes...........  824 hours............  24,720            
    239.107(b)......................  18 RRs....................  3,600 tests..........  20 minutes (18        1,200 hours..........  36,000            
                                                                                          minutes to perform                                            
                                                                                          test and 2 minutes                                            
                                                                                          for recordkeeping).                                           
    239.101/239.201.................  18 RRs....................  18 plans.............  158 hours...........  2,844 hours..........  115,416           
                                      18 RRs....................  18 amendments........  1.6 hours...........  29 hours.............  986               
239.101(1)(I).......................  18 RRs....................  N/A..................  Usual and customary   N/A..................  N/A               
                                                                                          procedure--No new                                             
                                                                                          paperwork.                                                    
239.101(1)(ii)......................  18 RRs....................  N/A..................  Usual and customary   N/A..................  N/A               
                                                                                          procedure--No new                                             
                                                                                          paperwork.                                                    
239.101(1)(ii)......................  5 RRs.....................  5 updates of records.  1 hour..............  5 hours..............  140               
239.101(a)(3).......................  29 RR Pairs...............  29 negotiations......  16 hours............  464 hours............  22,040            
239.101(a)(7)(ii)...................  5 RRs.....................  1,300 passenger cars.  5 minutes per         108 hours............  3,240             
                                                                                          bulkhead card.                                                
                                                                  5 safety messages....  1 hour per RR to      5 hours..............  170               
                                                                                          develop safety                                                
                                                                                          message.                                                      
239.105.............................  18 RRs....................  5 sessions...........  27 hours per session  33 hours.............  924               
239.301/239.303.....................  18 RRs....................  11,075 tests.........  8 minutes per test..  135 hours............  6,255             
239.101(a)(5).......................  17 RRs....................  18 responses to        6 hours per mailing.  102 hours............  9,588             
                                                                   distribute info to                                                                   
                                                                   emergency responders.                                                                
                                      1 RR......................  .....................  100 hours per         180 hours............  ..................
                                                                                          mailing.                                                      
                                      1 RR (Amtrak).............  1 response to          100 hours...........  100 hours............  2,800             
                                                                   distribute info to                                                                   
                                                                   emergency responders.                                                                
                                      16 RRs....................  16 updates of          30 minutes per        8 hours..............  224               
                                                                   emergency responder    updated.                                                      
                                                                   records.                                                                             
                                      1 RR (Amtrak).............  1 update of emergency  5 hours hours per     5 hours..............  140               
                                                                   responder records.     mailing.                                                      
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
information collection request submitted to OMB, please contact Ms. 
Brenda Moscoso at 202-632-3335. The final rule responds to public 
comments on the information collection requirements contained in the 
NPRM. The requirements in this final rule have been approved by OMB 
under OMB control number 2130-0545.

Environmental Impact

    FRA has evaluated this final rule 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.), other environmental statutes, Executive Orders, 
and DOT Order 5610.1c. This final rule meets the criteria that 
establish this as a non-major action for environmental purposes.

Federalism Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12612, and it has been 
determined that the final 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.

Compliance With the Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) each federal agency ``shall, unless otherwise prohibited by law, 
assess the effects of Federal Regulatory actions on State, local, and 
tribal governments, and the private sector (other than to the extent 
that such regulations incorporate requirements specifically set forth 
in law).'' Sec. 201. Section 202 of the Act further requires that 
``before promulgating any general notice of proposed rulemaking that is 
likely to result in promulgation of any rule that includes any Federal 
mandate that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $ 
100,000,000 or more (adjusted annually for inflation) in any 1 year, 
and before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement * * *'' detailing the effect on State, local and tribal 
governments and the private sector. The final rules issued today will 
not result in the expenditure, in the aggregate, of $100,000,000 or 
more in any one year, and thus preparation of a statement was not 
required.

List of Subjects in 49 CFR Part 223

    Glass and glass products, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

List of Subjects in 49 CFR Part 239

    Passenger train emergency preparedness, Penalties, Railroad safety, 
Reporting and recordkeeping requirements.

The Final Rule

    In consideration of the foregoing, chapter II, subtitle B, of title 
49, Code of Federal Regulations is amended as follows:
    1. The authority citation for part 223 is revised to read as 
follows:


[[Page 24675]]


    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--
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    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:
    (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 responder means a member of a police or fire department, 
or other organization involved with public safety charged with 
providing or coordinating emergency services, 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 
during a crisis situation.
    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.
    FRA means the Federal Railroad Administration.
    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 rail rolling equipment intended to 
provide transportation for members of the general public and includes 
self-propelled cars designed to carry baggage, mail, express or 
passengers. This term includes a passenger coach, cab car, and an MU 
locomotive. This term does not include a private car.
    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 or commuter 
or other short-haul passenger service in a metropolitan or suburban 
area.
    Person 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 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 for each passenger car, except for self-propelled cars 
designed to carry baggage, mail, or express:
    (1) Each emergency window is conspicuously and legibly marked with 
luminescent material on the inside of each car to facilitate passenger 
egress. Each such railroad shall post clear and legible operating 
instructions at or near each such exit.
    (2) Each window intended for emergency access by emergency 
responders for extrication of passengers is marked with a 
retroreflective, unique, and easily recognizable symbol or other clear 
marking. Each such railroad shall post clear and understandable window-
access instructions either at each such window or at each end of the 
car.
    4. By revising appendix B to part 223 to read as follows:

[[Page 24676]]

Appendix B to Part 223--Schedule of Civil Penalties 1

------------------------------------------------------------------------
                                                              Willful   
                 Section                     Violation       violation  
------------------------------------------------------------------------
223.9  New or rebuilt Equipment:                                        
    (a) Locomotives.....................          $2,500          $5,000
    (b) Cabooses........................           2,500           5,000
    (c) Passenger cars..................           2,500           5,000
    (d) (1), (d)(2):....................                                
        (i) Window not marked or                                        
         instructions not posted........           2,500           5,000
        (ii) Window improperly marked or                                
         instructions improperly posted.           1,000           2,000
223.11(c) Existing locomotives..........           2,500           5,000
(d) Repair of window....................           1,000           2,000
223.13(c) Existing cabooses.............           2,500           5,000
(d) Repair of window....................           1,000           2,000
223.15(c) Existing passenger cars.......           2,500           5,000
(d) Repair of window....................           1,000           2,000
223.17  Identification of units.........           1,000           1,500
------------------------------------------------------------------------

    5. 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.
239.13  Waivers.
239.15  Information collection.

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

    Authority: 49 U.S.C. 20102-20103, 20105-20114, 20133, 21301, 
21304, and 21311; 49 U.S.C. 20133; 28 U.S.C. 2461 note; 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.
---------------------------------------------------------------------------

    \1\ A penalty may be assessed against an individual only for a 
willful violation. The Administrator reserves the right to assess a 
penalty of up to $22,000 for any violation where circumstances 
warrant. See 49 U.S.C. 21301, 21304, and 49 CFR part 209, appendix 
A. Further designations, not found in the CFR citation for certain 
provisions are FRA Office of Chief Counsel computer codes added as a 
suffix to the CFR citation and used to expedite imposition of civil 
penalties for violations. FRA reserves the right, should litigation 
become necessary, to substitute in its complaint the CFR citation in 
place of the combined designation cited in the penalty demand 
letter.
---------------------------------------------------------------------------

    (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 
provisions of its plan. 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) of this section, 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;
    (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) Passenger or 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 section 205 of the Federal Railroad 
Safety Act of 1970 (45 U.S.C. 434)), issuance of this part 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 means other railroads, 
trolleys, light rail, heavy transit, and other vehicles operating on 
rails or electromagnetic guideways which are expressly identified in a 
railroad's emergency preparedness plan.
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    Control center means a central location on a railroad with 
responsibility for directing the safe movement of trains.
    Crewmember means a person, other than a passenger, who is assigned 
to perform either:
    (1) On-board functions connected with the movement of the train 
(i.e., an employee of a railroad, or of a contractor to a railroad, who 
is assigned to perform service subject to the Federal hours of service 
laws during a tour of duty) or
    (2) On-board functions in a sleeping car or coach assigned to 
intercity service, other than food, beverage, or security service.
    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

[[Page 24677]]

involving a significant threat to the safety or health of one or more 
persons requiring immediate action, including:
    (1) A derailment;
    (2) A fatality at a grade crossing;
    (3) A passenger or employee fatality, or a serious illness or 
injury to one or more passengers or crewmembers requiring admission to 
a hospital;
    (4) An evacuation of a passenger train; and
    (5) A security situation (e.g., a bomb threat).
    Emergency preparedness plan means one or more documents focusing on 
preparedness and response in dealing with a passenger train emergency.
    Emergency responder means a member of a police or fire department, 
or other organization involved with public safety charged with 
providing or coordinating emergency services, 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.
    FRA means the Federal Railroad Administration.
    Joint operations means rail operations conducted by more than one 
railroad on the same track, except as necessary for the purpose of 
interchange, 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 
or commuter or other short-haul passenger service in a metropolitan or 
suburban area.
    Person includes all categories of entities covered under 1 U.S.C. 
1, including, but not limited to, a railroad; any manager, supervisor, 
official, or other employee or agent of a railroad; any owner, 
manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any passenger; any trespasser or nontrespasser; any 
independent contractor providing goods or services to a railroad; any 
volunteer providing goods or services to a railroad; and any employee 
of such owner, manufacturer, lessor, lessee, or independent contractor.
    Private car means a rail passenger car used to transport non-
revenue passengers on an occasional contractual basis, and includes 
business or 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 involving emergency 
preparedness.
    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 to a 
railroad, performs any function required by this part, that person 
(whether or not a railroad) shall 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 $11,000 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 
$22,000 per violation may be assessed. Each day a violation continues 
shall constitute a separate offense. Any person who knowingly and 
willfully falsifies a record or report required by this part may be 
subject to criminal penalties under 49 U.S.C. 21311 (formerly codified 
in 45 U.S.C. 438(e)). Appendix A contains a schedule of civil penalty 
amounts used in connection with this part.


Sec. 239.13  Waivers.

    (a) Any person subject to a requirement of this part may petition 
the Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for waiver must be filed in the manner and 
contain the information required by part 211 of this chapter.
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.


Sec. 239.15  Information collection.

    (a) The information collection requirements of this part have been 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.), and have 
been assigned OMB control number 2130-0545.
    (b) The information collection requirements are found in the 
following sections: Secs. 239.101, 239.103, 239.105, 239.107, 239.201, 
239.203, 239.301, and 239.303.

Subpart B--Specific Requirements


Sec. 239.101  Emergency preparedness plan.

    (a) Each railroad to which this part applies shall adopt and comply 
with a written emergency preparedness plan approved by FRA under the 
procedures of Sec. 239.201. The plan shall include the following 
elements and procedures for implementing each plan element.
    (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. As appropriate, an on-
board crewmember shall 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.

[[Page 24678]]

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 responsibilities and provide for initial training, as well as 
periodic training at least once every two calendar years thereafter, on 
the applicable plan provisions. As a minimum, the initial and periodic 
training shall include:
    (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 training of responsible control 
center personnel, as well as periodic training at least once every two 
calendar years thereafter, on appropriate courses of action for each 
potential emergency situation. As a minimum, the initial and periodic 
training shall include:
    (A) Dispatch territory familiarization; and
    (B) Protocols governing internal communications between appropriate 
control center personnel whenever an imminent potential emergency 
situation exists.
    (iii) Initial training schedule for current employees. The 
railroad's emergency preparedness plan shall provide for the completion 
of initial training of all on-board and control center employees who 
are employed by the railroad on the date that the plan is conditionally 
approved under Sec. 239.201(b)(1), in accordance with the following 
schedule:
    (A) For each railroad that provides commuter or other short-haul 
passenger train service and whose operations include less than 150 
route miles and less than 200 million passenger miles annually, not 
more than one year after January 29, 1999, or not more than 90 days 
after commencing passenger operations, whichever is later.
    (B) For each railroad that provides commuter or other short-haul 
passenger train service and whose operations include at least 150 route 
miles or at least 200 million passenger miles annually, not more than 
two years after January 29, 1999, or not more than 180 days after 
commencing passenger operations, whichever is later.
    (C) For each railroad that provides intercity passenger train 
service, regardless of the number of route miles or passenger miles, 
not more than two years after January 29, 1999, or not more than 180 
days after commencing passenger operations, whichever is later.
    (D) For each freight railroad that hosts passenger train service, 
regardless of the number of route miles or passenger miles of that 
service, not more than one year after January 29, 1999, or not more 
than 90 days after the hosting begins, whichever is later.
    (iv) Initial training schedule for new employees. The railroad's 
emergency preparedness plan shall provide for the completion of initial 
training of all on-board and control center employees who are hired by 
the railroad after the date on which the plan is conditionally approved 
under Sec. 239.201(b)(1). Each employee shall receive initial training 
within 90 days after the employee's initial date of service.
    (v) 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 types of 
testing 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 by the person being tested 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.
    (vi) On-board staffing. (A) Except as provided in paragraph 
(a)(2)(vi)(B), all crewmembers on board a passenger train shall be 
qualified to perform the functions for which they are responsible under 
the provisions of the applicable emergency preparedness plan.
    (B) A freight train crew relieving an expired passenger train crew 
en route is not required to be qualified under the emergency 
preparedness plan, provided that at least one member of the expired 
passenger train crew remains on board and is available to perform 
excess service under the Federal hours of service laws in the event of 
an emergency.
    (3) Joint operations. (i) Each railroad hosting passenger train 
service shall address its specific responsibilities consistent with 
this part.
    (ii) In order to achieve an optimum level of emergency 
preparedness, each railroad hosting passenger train service shall 
communicate with each railroad that provides or operates such service 
and coordinate applicable portions of the emergency preparedness plan. 
All of the railroads involved in hosting, providing, and operating a 
passenger train service operation shall jointly adopt one emergency 
preparedness plan that addresses each entity's specific 
responsibilities consistent with this part. 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 require reasonable and prudent action 
to coordinate emergency efforts where adjacent rail modes of 
transportation run parallel to either the passenger railroad or the 
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) Developing and making available a training program for all on-
line emergency responders who could reasonably be expected to respond 
during an emergency situation. The training program shall include an 
emphasis on access to railroad equipment, location of railroad 
facilities, and communications interface, and provide information to 
emergency responders who may not have the opportunity to participate in 
an emergency simulation. Each affected railroad shall either offer the 
training directly or provide the program information and materials to 
state

[[Page 24679]]

training institutes, firefighter organizations, or police academies;
    (ii) Inviting emergency responders to participate in emergency 
simulations; and
    (iii) 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 position titles and telephone numbers 
of relevant railroad officers to contact.
    (6) On-board emergency equipment. (i) General. Each railroad's 
emergency preparedness plan shall state the types of emergency 
equipment to be kept on board and indicate their location(s) on each 
passenger car that is in service. Effective May 4, 1999, or not more 
than 120 days after commencing passenger operations, whichever is 
later, 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) Effective May 4, 1999, or not more than 120 days after 
commencing passenger operations, whichever is later, each railroad that 
provides intercity passenger train service shall also equip each 
passenger train that is in service with at least one first-aid kit 
accessible to crewmembers that contains, at a minimum:
    (A) Two small gauze pads (at least 4x4 inches);
    (B) Two large gauze pads (at least 8x10 inches);
    (C) Two adhesive bandages;
    (D) Two triangular bandages;
    (E) One package of gauge roller bandage that is at least two inches 
wide;
    (F) Wound cleaning agent, such as sealed moistened towelettes;
    (G) One pair of scissors;
    (H) One set of tweezers;
    (I) One roll of adhesive tape;
    (J) Two pairs of latex gloves; and
    (K) One resuscitation mask.
    (iii) On-board emergency lighting. Consistent with the requirements 
of part 238 of this chapter, auxiliary portable lighting (e.g., a 
handheld flashlight) must be accessible and provide, at a minimum:
    (A) Brilliant illumination during the first 15 minutes after the 
onset of an emergency situation; and
    (B) Continuous or intermittent illumination during the next 60 
minutes after the onset of an emergency situation.
    (iv) Maintenance. Each railroad's emergency preparedness plan shall 
provide for scheduled maintenance and replacement of first-aid kits, 
on-board emergency equipment, and on-board emergency 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 additional methods to provide 
safety awareness information including, but not limited to, one of the 
following:
    (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.
    (b) [Reserved]


Sec. 239.103  Passenger train emergency simulations.

    (a) General. Each railroad operating passenger train service shall 
conduct full-scale emergency simulations, 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.
    (b) Frequency of the emergency simulations. Except as provided in 
paragraph (c) of this section:
    (1) Each railroad that provides commuter or other short-haul 
passenger train service and whose operations include less than 150 
route miles and less than 200 million passenger miles annually, shall 
conduct a minimum of one full-scale emergency simulation during every 
two calendar years.
    (2) Each railroad that provides commuter or other short-haul 
passenger train service and whose operations include at least 150 route 
miles or at least 200 million passenger miles annually, shall conduct a 
minimum of one full-scale emergency simulation during each calendar 
year.
    (3) Each railroad that provides intercity passenger train service, 
shall conduct a minimum of one full-scale emergency simulation during 
each calendar year, regardless of the number of route miles or 
passenger miles.
    (c) Actual emergency situations. Neither a tabletop exercise nor 
the activation of its emergency preparedness plan during an actual 
emergency situation may be credited toward the minimum number of full-
scale emergency simulations required under paragraph (b) of this 
section. However, a railroad that has activated its emergency 
preparedness plan in response to a major emergency may elect to 
postpone a scheduled full-scale simulation for up to 180 calendar days 
beyond the applicable calendar year completion date in order to 
evaluate the effectiveness of its plan during that major emergency and, 
as appropriate, modify the rescheduled simulation.
    (d) Definition. As used in this section, major emergency means an 
unexpected event related to the operation of passenger train service 
that results in serious injury or death to one or more persons and 
property damage greater than the current reporting threshold of part 
225 of this chapter to railroad on-track equipment, signals, tracks, 
track structures, or roadbeds, including labor costs and the costs for 
acquiring new equipment and material.


Sec. 239.105  Debriefing and critique.

    (a) General. Except as provided in paragraph (b) of this section, 
each railroad operating passenger train service shall conduct a 
debriefing and critique session after each passenger train emergency 
situation or full-scale simulation to determine the effectiveness of 
its emergency preparedness plan, and shall improve or amend its plan, 
or both, as appropriate, in accordance with the information developed. 
The debriefing and critique session shall be conducted within 60 days 
of the date of the passenger train emergency situation or full-scale 
simulation.
    (b) Exceptions. (1) No debriefing and critique session shall be 
required in the case of an emergency situation involving only a 
collision between passenger railroad rolling stock and: a pedestrian; a 
trespasser; or a motor vehicle or other highway conveyance at a 
highway-rail grade crossing, provided that the collision does not 
result in: a passenger or employee fatality, or an injury to one or 
more crewmembers or passengers requiring admission to a hospital; or 
the evacuation of a passenger train. (2) For purposes of this section, 
highway-rail grade crossing means a location where a public highway, 
road, street, or private roadway, including associated

[[Page 24680]]

sidewalks and pathways, crosses one or more railroad tracks at grade, 
and trespasser means a person who is on that part of railroad property 
used in railroad operation and whose presence is prohibited, forbidden, 
or unlawful.
    (c) Purpose of debriefing and critique. The debriefing and critique 
session shall be designed to determine, at a minimum:
    (1) Whether the on-board communications equipment functioned 
properly;
    (2) How much time elapsed between the occurrence of the emergency 
situation or full-scale 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) How efficiently the passengers exited from the car through the 
emergency exits.
    (d) Records. (1) Each railroad shall maintain records of its 
debriefing and critique sessions at its system headquarters and 
applicable division headquarters for two calendar years after the end 
of the calendar year to which they relate, including the following 
information:
    (i) Date and location of the passenger train emergency situation or 
full-scale simulation;
    (ii) Date and location of the debriefing and critique session; and
    (iii) Names of all participants in the debriefing and critique 
session.
    (2) These records shall be made available to representatives of FRA 
and States participating under part 212 of this chapter for inspection 
and copying during normal business hours.


Sec. 239.107  Emergency exits.

    For additional requirements related to emergency window exits, see 
part 223 of this chapter.
    (a) Marking. Each railroad operating passenger train service shall 
determine for each passenger car that is in service, except for self-
propelled cars designed to carry baggage, mail, or express:
    (1) That all door exits intended for emergency egress are either 
lighted or conspicuously and legibly marked with luminescent material 
on the inside of the car and that clear and understandable instructions 
are posted at or near such exits.
    (2) That all door exits intended for emergency access by emergency 
responders for extrication of passengers are marked with 
retroreflective material and that clear and understandable instructions 
are posted 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:
    (1) Provide for scheduled inspection, maintenance, and repair of 
emergency window and door exits;
    (2) Test a representative sample of emergency window exits on its 
cars at least once every 180 days to verify that they are operating 
properly; and
    (3) Repair each inoperative emergency window and door exit on a car 
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 for two calendar years after the end 
of the calendar year to which they relate. These records shall be made 
available to representatives of FRA and States participating under part 
212 of this chapter for inspection and copying during normal business 
hours.
    (d) Electronic recordkeeping. Each railroad to which this part 
applies is authorized to retain by electronic recordkeeping the 
information prescribed in paragraph (b) of this section, 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 representatives 
of FRA and States participating under part 212 of this chapter;
    (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 and States 
participating under part 212 of this chapter with immediate access to 
these records for inspection and copying during normal business hours 
and provides printouts of such records upon request.

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


Sec. 239.201  Emergency preparedness plan; filing and approval.

    (a) Filing. Each passenger railroad to which this part applies and 
all railroads hosting its passenger train service (if applicable) shall 
jointly adopt a single emergency preparedness plan for that service and 
the passenger railroad shall file one copy of that plan with the 
Associate Administrator for Safety, Federal Railroad Administration, 
Mail Stop 25, 400 Seventh Street, S.W., Washington, D.C. 20590, not 
more than 180 days after May 4, 1998, or not less than 45 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 on each affected railroad to be contacted 
with regard to review of the plan, and shall include a summary of each 
railroad's analysis supporting each plan element and describing how 
every condition on the railroad's property that is likely to affect 
emergency response is addressed in the plan. Each subsequent amendment 
to a railroad's emergency preparedness plan shall be filed with FRA by 
the passenger railroad not less than 60 days prior to the proposed 
effective date.
    (b) Approval. (1) Preliminary review. (i) Within 90 days of receipt 
of each proposed emergency preparedness plan, and within 45 days of 
receipt of each plan for passenger operations to be commenced after the 
initial deadline for plan submissions, FRA will conduct a preliminary 
review of the proposed plan to determine if the elements prescribed in 
Sec. 239.101 are sufficiently addressed and discussed in the railroad's 
plan submission. FRA will then notify the primary contact person of 
each affected railroad in writing of the results of the review, whether 
the proposed plan has been conditionally approved by FRA, and if not 
conditionally approved, the specific points in which the plan is 
deficient.
    (ii) If a proposed emergency preparedness plan is not conditionally 
approved by FRA, the affected railroad or railroads shall amend the 
proposed plan to correct all deficiencies identified by FRA (and 
provide FRA with a corrected copy) not later than 30 days following 
receipt of FRA's written notice that the proposed plan was not 
conditionally approved.
    (2) Final review. (i) Within 18 months of receipt of each proposed 
plan, and within 180 days of receipt of each proposed plan for 
passenger operations

[[Page 24681]]

to be commenced after the initial deadline for plan submissions, FRA 
will conduct a comprehensive review of the conditionally approved plan 
to evaluate implementation of the elements included. This review will 
include ongoing dialogues with rail management and labor 
representatives, and field analysis and verification. FRA will then 
notify the primary contact person of each affected railroad in writing 
of the results of the review, whether the conditionally approved plan 
has been finally approved by FRA, and if not approved, the specific 
points in which the plan is deficient.
    (ii) If an emergency preparedness plan of a railroad or railroads 
is not finally approved by FRA, the affected railroad or railroads 
shall amend the 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 finally approved.
    (3) Review of amendments. (i) FRA will review each proposed plan 
amendment within 45 days of receipt. FRA will then notify the primary 
contact person of each affected railroad 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.
    (ii) If the amendment is not approved, the railroad shall correct 
any deficiencies identified by FRA and file the corrected amendment 
prior to implementing the amendment.
    (4) Reopened review. 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 passenger railroad to which this part applies, and all 
railroads hosting its passenger train service (if applicable), shall 
each retain one copy of the emergency preparedness plan required by 
Sec. 239.201 and one copy of each subsequent amendment to that plan at 
the system and division headquarters of each, and shall make such 
records available to representatives of FRA and States participating 
under part 212 of this chapter 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-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 
written 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 also specify the name of the 
railroad officer who administered the test, the name of each employee 
tested, and sufficient information to identify the relevant facts 
relied on for evaluation purposes.
    (c) Each record required by paragraph (a) of this section shall be 
retained at the system headquarters of the railroad and at the division 
headquarters for the division where the test was conducted for one 
calendar year after the end of the calendar year to which the test 
relates. Each such record shall be made available to representatives of 
FRA and States participating under part 212 of this chapter for 
inspection and copying during normal business hours.


Sec. 239.303  Electronic recordkeeping.

    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:
    (a) The railroad adequately limits and controls accessibility to 
such information retained in its database system and identifies those 
individuals who have such access;
    (b) The railroad has a terminal at the system headquarters and at 
each division headquarters;
    (c) 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 representatives 
of FRA and States participating under part 212 of this chapter;
    (d) 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
    (e) The railroad provides representatives of FRA and States 
participating under part 212 of this chapter with immediate access to 
these records for inspection and copying during normal business hours 
and provides printouts of such records upon request.

Appendix A to Part 239--Schedule of Civil Penalties 1

    1 A penalty may be assessed against an individual 
only for a willful violation. The Administrator reserves the right 
to assess a penalty of up to $22,000 for any violation where 
circumstances warrant. See 49 U.S.C. 21301, 21304, and 49 CFR part 
209, appendix A. Further designations, not found in the CFR citation 
for certain provisions, are FRA Office of Chief Counsel computer 
codes added as a suffix to the CFR citation and used to expedite 
imposition of civil penalties for violations. FRA reserves the 
right, should litigation become necessary, to substitute in its 
complaint the CFR citation in place of the combined designation 
cited in the penalty demand letter.

------------------------------------------------------------------------
                                                              Willful   
                 Section                     Violation       violation  
------------------------------------------------------------------------
Subpart B--Specific Requirements:                                       
239.101(a) Failure of a railroad to                                     
 adopt a written emergency preparedness                                 
 plan...................................          $7,500         $11,000
    (a)(1) Failure of the plan to                                       
     provide for:                                                       
        (i) Initial or on-board                                         
         notifications by an on-board                                   
         crewmember.....................           2,500           5,000
        (ii) Notification of outside                                    
         emergency responders by control                                
         center.........................           2,500           5,000
    (a)(2) Failure of the plan to                                       
     provide for:                                                       
        (i) Initial or periodic training                                
         of on-board personnel..........           2,500           5,000
        (ii) Initial or periodic                                        
         training of control center                                     
         personnel......................           2,500           5,000
        (iii) Completion of initial                                     
         training of all on-board and                                   
         control center personnel by the                                
         specified date.................           2,500           5,000
        (iv) Completion of initial                                      
         training of all newly hired on-                                
         board and control center                                       
         personnel by the specified date           2,500           5,000
        (v) Adequate procedures to                                      
         evaluate and test on-board and                                 
         control center personnel for                                   
         qualification under the                                        
         emergency preparedness plan....           2,500           5,000
        (vi) Adequate on-board staffing.           2,500           5,000

[[Page 24682]]

                                                                        
    (a)(3) Failure of a host railroad                                   
     involved in joint operations to                                    
     coordinate applicable portions of                                  
     the emergency preparedness plan                                    
     with the railroad or railroads                                     
     providing or operating a passenger                                 
     train service operation............           3,000           6,000
    (a)(4) Failure of the plan to                                       
     address:                                                           
        (i) Readiness procedures for                                    
         emergencies in tunnels.........           2,500           5,000
        (ii) Readiness procedures for                                   
         emergencies on an elevated                                     
         structure or in electrified                                    
         territory......................           2,500           5,000
        (iii) Coordination efforts                                      
         involving adjacent rail modes                                  
         of transportation..............           2,500           5,000
    (a)(5) Failure of the plan to                                       
     address relationships with on-line                                 
     emergency responders by providing                                  
     for:                                                               
        (i) The development and                                         
         availability of training                                       
         programs.......................           3,000           6,000
        (ii) Invitations to emergency                                   
         responders to participate in                                   
         emergency simulations..........           3,000           6,000
        (iii) Distribution of applicable                                
         portions of the current                                        
         emergency preparedness plan....           3,000           6,000
    (a)(6) Failure of the plan to                                       
     provide for, or the railroad to                                    
     include on board each train and                                    
     maintain and replace:                                              
        (i) Emergency equipment.........           2,500           5,000
        (ii) First-aid kits.............           2,500           5,000
        (iii) Emergency lighting........           2,500           5,000
    (a)(7) Failure of the plan to                                       
     provide for emergency instructions                                 
     inside each passenger car or to                                    
     include additional safety awareness                                
     information........................           3,500           7,000
239.103  Failure to conduct a required                                  
 full-scale simulation in accordance                                    
 with the frequency schedule............           5,000           7,500
239.105  Debriefing and critique                                        
    (a) Failure to conduct a debriefing                                 
     and critique session after an                                      
     emergency or full-scale simulation.           4,000           7,500
    (d)(1) Failure to maintain a record.           2,500           5,000
        (i) Failure to include date or                                  
         location of the emergency or                                   
         simulation.....................           1,000           2,000
        (ii) Failure to include date or                                 
         location of the debriefing and                                 
         critique session...............           1,000           2,000
        (iii) Failure to include names                                  
         of participants in the                                         
         debriefing and critique session           1,000           2,000
    (d)(2) Failure to make record                                       
     available..........................           1,000           2,000
239.107  Emergency exits                                                
    (a)(1), (a)(2):                                                     
        (i) Door not marked or                                          
         instructions not posted........           2,500           5,000
        (ii) Door improperly marked or                                  
         instructions 1,000-2,000-                                      
         improperly posted..............           2,500           5,000
    (b)(1) Failure to provide for                                       
     scheduled inspection, maintenance,                                 
     and repair of emergency windows and                                
     doors..............................           5,000           7,500
    (b)(2):                                                             
        (i) Failure to test a                                           
         representative sample of                                       
         emergency windows..............           3,000           6,000
        (ii) Emergency windows tested                                   
         too infrequently...............           1,500           3,000
    (b)(3) Failure to repair an                                         
     inoperative emergency window or                                    
     door exit..........................           3,500           7,000
    (c):                                                                
        (i) Failure to maintain a record           2,500           5,000
        (ii) Failure to make record                                     
         available......................           1,000           2,000
    (d)(1) Insufficient limits or                                       
     controls on accessibility to                                       
     records............................           2,500           5,000
    (d)(2) Missing terminal.............           1,000           2,000
    (d)(3) Inability of railroad to                                     
     produce information in a usable                                    
     format for immediate review........           1,000           2,000
    (d)(4) Failure by railroad to                                       
     designate an authorized                                            
     representative.....................           1,000           2,000
    (d)(5) Failure to make record                                       
     available..........................           1,000           2,000
Subpart C--Review, Approval, and                                        
 Retention of Emergency Preparedness                                    
 Plans:                                                                 
239.201  Filing and approval                                            
    (a):                                                                
        (i) Failure of a railroad to                                    
         file a written emergency                                       
         preparedness plan..............           5,000           7,500
        (ii) Failure to designate a                                     
         primary person to contact for                                  
         plan review....................           1,000           2,000
        (iii) Failure of a railroad to                                  
         file an amendment to its plan..           2,500           5,000
    (b)(1), (b)(2):                                                     
        (i) Failure of a railroad to                                    
         correct a plan deficiency......           2,500           5,000
        (ii) Failure to provide FRA with                                
         a corrected copy of the plan...           1,000           2,000
    (b)(3):                                                             
        (i) Failure of a railroad to                                    
         correct an amendment deficiency           2,500           5,000
        (ii) Failure to file a corrected                                
         plan amendment with FRA........           1,000           1,000
239.203  Retention of emergency                                         
 preparedness plan                                                      
        (1) Failure to retain a copy of                                 
         the plan or an amendment to the                                
         plan...........................           2,500           5,000
        (2) Failure to make record                                      
         available......................           1,000           2,000
Subpart D--Operational (efficiency)                                     
 tests; Inspection of Records and                                       
 Recordkeeping:                                                         
239.301  Operational (efficiency) tests                                 
    (a) Testing Program.................           5,000           7,500
    (b)(1) Failure to maintain a record.           2,500           5,000
    (b)(2) Record improperly completed..           1,000           1,000
    (c)(1) Failure to retain a copy of                                  
     the record.........................           2,500           5,000
    (c)(2) Failure to make record                                       
     available..........................           1,000           2,000
239.303  Electronic recordkeeping                                       
    (a) Insufficient limits or controls                                 
     on accessibility to records........           2,500           5,000
    (b) Missing terminal................           1,000           2,000
    (c) Inability of railroad to produce                                
     information in a usable format for                                 
     immediate review...................           1,000           2,000
    (d) Failure by railroad to designate                                
     an authorized representative.......           1,000           2,000
    (e) Failure to make record available           1,000           2,000
------------------------------------------------------------------------


[[Page 24683]]

    Issued in Washington, D.C., on April 14, 1998.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 98-11393 Filed 4-29-98; 8:45 am]
BILLING CODE 4910-06-P