[Federal Register Volume 64, Number 91 (Wednesday, May 12, 1999)]
[Rules and Regulations]
[Pages 25540-25705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11333]



[[Page 25539]]

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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 216 et al.



Passenger Equipment Safety Standards; Final Rule

Federal Register / Vol. 64, No. 91 / Wednesday, May 12, 1999 / Rules 
and Regulations

[[Page 25540]]



DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 216, 223, 229, 231, 232, and 238

[FRA Docket No. PCSS-1, Notice No. 5]
RIN 2130-AA95


Passenger Equipment Safety Standards

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

ACTION: Final rule.

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

SUMMARY: FRA is issuing comprehensive Federal safety standards for 
railroad passenger equipment. The purpose of these safety standards is 
to prevent collisions, derailments, and other occurrences involving 
railroad passenger equipment that cause injury or death to railroad 
employees, railroad passengers, or the general public; and to mitigate 
the consequences of any such occurrences, to the extent they cannot be 
prevented. The final rule promotes passenger train safety through 
requirements for railroad passenger equipment design and performance; 
fire safety; emergency systems; the inspection, testing, and 
maintenance of passenger equipment; and other provisions for the safe 
operation of railroad passenger equipment. The final rule addresses 
passenger train safety in an environment where technology is advancing 
and equipment is being designed for operation at higher speeds. The 
final rule amends existing regulations concerning special notice for 
repairs, safety glazing, locomotive safety, safety appliances, and 
railroad power brakes as applied to passenger equipment.
    The final rule does not apply to tourist and historic railroad 
operations. However, after consulting with the excursion railroad 
associations to determine appropriate applicability in light of 
financial, operational, or other factors unique to such operations, FRA 
may prescribe requirements for these operations that are similar to or 
different from those affecting other types of passenger operations.

DATES: This regulation is effective July 12, 1999. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of July 12, 1999.

ADDRESSES: Any petition for reconsideration should reference FRA Docket 
No. PCSS-1, Notice No. 5, and be submitted in triplicate to the Docket 
Clerk, Office of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 10, 
Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Ronald Newman, Staff Director, Motive 
Power and Equipment Division, Office of Safety Assurance and 
Compliance, FRA, 1120 Vermont Avenue, Mail Stop 25, Washington, D.C. 
20590 (telephone: 202-493-6300); Daniel Alpert, Trial Attorney, Office 
of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 10, Washington, 
D.C. 20590 (telephone: 202-493-6026); or Thomas Herrmann, Trial 
Attorney, Office of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 
10, Washington, D.C. 20590 (telephone: 202-493-6036).

Supplementary Information:

Table of Contents for Supplementary Information

I. Introduction
II. Statutory Background
III. Passenger Equipment Safety Standards Working Group
IV. Proceedings to Date
V. Discussion of Specific Comments and Conclusions
    A. Application of the final rule to rapid transit operations and 
``light rail''
    B. Static end strength requirement: application to existing 
equipment
    C. United States international treaty obligations
    D. Non-conventional passenger equipment
    E. System safety
    F. Side exit doors on passenger cars
    G. Fuel tank standards
    H. Train interior safety
    I. Fire safety
VI. Inspection and Testing of Brake Systems and Mechanical 
Components
    A. Background prior to 1997 NPRM
    B. 1997 NPRM on Passenger Equipment Safety Standards
    1. Proposed brake system inspections
    2. Proposed mechanical inspections
    3. Proposed qualification of inspection and testing personnel
    C. Overview of comments relating to proposed inspection and 
testing requirements
    D. General FRA conclusions
    1. Brake and mechanical inspections
    2. Qualified maintenance person
    3. Long-distance intercity passenger trains
VII. Movement of Defective Equipment
    A. Background
    B. Overview of 1997 NPRM
    C. Discussion of comments on the 1997 NPRM and general FRA 
conclusions
    1. Movement of equipment with defective brakes
    2. Movement of equipment with other than power brake defects
VIII. FRA's Passenger Train Safety Initiatives
IX. Section-by-Section Analysis
X. Regulatory Impact
    A. Executive Order 12866 and DOT regulatory policies and 
procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental impact
    E. Federalism implications
    F. Compliance with the Unfunded Mandates Reform Act of 1995
    G. Effects on the Year 2000 computer problem
XI. List of Subjects

I. Introduction

    Passenger railroads offer the traveling public one of the safest 
forms of transportation available. In the eight-year period 1990-1997, 
there were 0.89 passenger fatalities for every billion miles of 
passenger transportation by rail. Nevertheless, collisions, 
derailments, and other such occurrences continue to occur, often as a 
result of factors beyond the control of the passenger railroad. 
Further, the rail passenger environment is rapidly changing. Worldwide, 
passenger equipment operating speeds are increasing. Passenger 
trainsets designed to European safety standards have been proposed for 
operation in the United States-and a few are in operation. Overall, 
these trainsets do not meet the structural standards that are common 
for passenger equipment operating in the United States. FRA believes 
that adherence to such common standards by the nation's passenger 
railroads has in large measure contributed to the high level of safety 
at which rail passenger service is currently provided in the United 
States. However, these standards generally do not have the force of 
law.
    Effective Federal safety standards for freight equipment have long 
been in place, but equivalent Federal safety standards for passenger 
equipment have not existed. Further, the Association of American 
Railroads (AAR) currently sets industry standards for the design and 
maintenance of freight equipment that add materially to the safe 
operation of such equipment. However, over the years, the AAR has 
discontinued the development and maintenance of industry standards for 
railroad passenger equipment.
    FRA must necessarily be vigilant in ensuring that passenger trains 
continue to be designed, built, and operated with a high level of 
safety. In general, the railroad operating environment in the United 
States requires passenger equipment to operate commingled with very 
heavy and long freight trains, often over track with frequent grade 
crossings used by heavy highway equipment. European passenger 
operations, on the other hand, are intermingled with freight equipment 
of lesser weight than in North America. In many cases, highway-rail 
grade crossings also pose lesser hazards to passenger trains in Europe 
due to lower highway vehicle weight. FRA is concerned with the level

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of safety provided by passenger equipment designed to European and 
other international standards when such equipment is operated in the 
United States.
    A clear set of Federal safety standards for railroad passenger 
equipment is needed that is tailored to the nation's operating 
environment in order to provide for the safety of rail operations in 
the United States and to facilitate sound planning for these 
operations. In furtherance of this safety objective, FRA is pleased by 
the American Public Transit Association's (APTA) initiative to continue 
the development and maintenance of voluntary industry standards for the 
safety of railroad passenger equipment. These standards will complement 
FRA's safety standards and, thus, will work together to provide an even 
higher level of safety for rail passengers, rail employees, and the 
public as a whole.

II. Statutory Background

    In September, 1994, the Secretary of Transportation convened a 
meeting of representatives from all sectors of the rail industry with 
the goal of enhancing rail safety. As one of the initiatives arising 
from this Rail Safety Summit, the Secretary announced that DOT would 
begin developing safety standards for rail passenger equipment over a 
five-year period. In November, 1994, Congress adopted the Secretary's 
schedule for implementing rail passenger equipment regulations and 
included it in the Federal Railroad Safety Authorization Act of 1994 
(the Act), Pub. L. No. 103-440, 108 Stat. 4619, 4623-4624 (November 2, 
1994). Section 215 of the Act, as now codified at 49 U.S.C. 20133, 
requires:

    (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).

III. Passenger Equipment Safety Standards Working Group

    Consistent with the intent of Congress that FRA consult with the 
railroad industry in prescribing these regulations, FRA invited various 
organizations to participate in a working group to focus on the issues 
related to railroad passenger equipment safety and assist FRA in 
developing Federal safety standards. The Passenger Equipment Safety 
Standards Working Group (or the ``Working Group'') first met on June 7, 
1995, and has assisted FRA throughout the rulemaking process. Since its 
initial meeting, the Working Group has evolved so that its membership 
includes representatives from the following organizations:

American Association of Private Railroad Car Owners, Inc. (AAPRCO)
American Association of State Highway and Transportation Officials 
(AASHTO)
APTA
AAR
Brotherhood of Locomotive Engineers (BLE)
Brotherhood Railway Carmen (BRC)
FRA
Federal Transit Administration (FTA) of DOT
National Railroad Passenger Corporation (Amtrak)
National Association of Railroad Passengers (NARP)
Railway Progress Institute (RPI)
Safe Travel America (STA)
Transportation Workers Union of America (TWU)
United Transportation Union (UTU), and
Washington State Department of Transportation (WDOT)

    The Working Group is chaired by FRA, and supported by FRA program, 
legal, and research staff, including technical personnel from the Volpe 
National Transportation Systems Center (Volpe Center) of the Research 
and Special Programs Administration of DOT. FRA has included vendor 
representatives designated by RPI as associate members of the Working 
Group. FRA has also included the AAPRCO as an associate Working Group 
member. The National Transportation Safety Board (NTSB) has designated 
staff members to advise the Working Group.
    In developing proposed safety standards for passenger equipment 
operating at speeds greater than 125 mph but not exceeding 150 mph, FRA 
formed a subgroup (the ``Tier II Equipment Subgroup'') of Working Group 
members representing interests associated with the provision of rail 
passenger service at such high speeds. The full Working Group 
recommended the formation of a smaller subgroup to consider Tier II 
passenger equipment standards, as a number of Working Group members 
found the operation of high-speed passenger equipment to be outside 
their immediate interest and expertise. FRA invited representatives 
from organizations including Amtrak, the BLE, BRC, RPI, and UTU to 
participate in developing the Tier II standards.
    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's 
meetings and associated documentation, together with data provided by 
the members during their deliberations--have been placed in the public 
docket of this rulemaking.

IV. Proceedings to Date

    On June 17, 1996, FRA published an Advance Notice of Proposed 
Rulemaking (ANPRM) concerning the establishment of comprehensive safety 
standards for railroad passenger equipment (61 FR 30672). The ANPRM 
provided background information on the need for such standards, offered 
preliminary ideas on approaching passenger safety issues, and presented 
questions on various topics including: system safety programs and 
plans; passenger equipment crashworthiness;

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inspection, testing, and maintenance requirements; training and 
qualification requirements for mechanical personnel and train crews; 
excursion, tourist, and private equipment; commuter equipment and 
operations; train make-up and operating speed; tiered safety standards; 
fire safety; and operating practices and procedures.
    FRA's commitment to developing proposed regulations through the 
Working Group necessarily influenced the role and purpose of the ANPRM. 
FRA specifically asked that members of the Working Group not respond 
formally to the ANPRM. The issues and ideas presented in the ANPRM had 
already been placed before the Working Group, and the Working Group had 
commented on drafts of the ANPRM. As a result, FRA solicited the 
submission of written comments that might be of assistance in 
developing a proposed rule from interested persons not involved in the 
Working Group's deliberations.
    FRA received 12 comments in response to the ANPRM. These comments 
were shared with the Working Group and were taken into consideration by 
the members of the group as they advised FRA during the development of 
a Notice of Proposed Rulemaking (NPRM). The Working Group worked 
intensively, and concluded with a meeting in Philadelphia on September 
30-October 2, 1996. Working Group members agreed to the preparation of 
a NPRM reflecting partial consensus on a number of the issues in the 
rulemaking. However, the industry parties were unable to agree on any 
option with respect to inspection requirements for power brakes or 
daily inspection of equipment. Further, one labor organization later 
advised FRA that it could not participate in a consensus on less than 
the full range of issues in the rulemaking.
    FRA prepared in draft an NPRM and shared it with the Working Group 
members on March 19, 1997. The NPRM was then enriched with discussions 
of issues and options reflecting concerns of Working Group members in 
response to the draft, and some changes were incorporated into the 
proposed rule.
    On September 23, 1997, FRA published the NPRM (1997 NPRM) in the 
Federal Register to add a new part, 49 CFR part 238 (Passenger 
Equipment Safety Standards), and to amend 49 CFR parts 216 (Special 
Notice and Emergency Order Procedures: Railroad Track, Locomotive and 
Equipment), 223 (Safety Glazing Standards--Locomotives, Passenger Cars 
and Cabooses), 229 (Railroad Locomotive Safety Standards), 231 
(Railroad Safety Appliance Standards), and 232 (Railroad Power Brakes 
and Drawbars). 62 FR 49728. The proposed part 238 set forth 
comprehensive Federal safety standards for the safety of railroad 
passenger equipment, including equipment design and performance 
standards for passenger and crew survivability in the event of a 
passenger train accident, as well as inspection, testing, and 
maintenance standards for passenger equipment.
    The 1997 NPRM generated written comments from 34 separate parties, 
and all of these comments may be found in the public docket of the 
rulemaking. The written comments included a request by the New York 
Department of Transportation (NYDOT) to extend the comment period for 
90 days. The NYDOT sought this additional time to more thoroughly 
review the proposed rule, and secure expert testimony and empirical 
data on the proposed rule's possible impact on the high-speed intercity 
rail passenger program in the State of New York. FRA did not grant the 
request, however, particularly because FRA had planned to convene the 
Working Group in the interim and needed to assemble the comments on the 
rule for discussion within the Working Group. FRA asked the NYDOT to 
submit its comments by the close of the comment period on November 24, 
1997, and it did so. FRA did explain to the NYDOT that it would 
consider comments submitted after the formal close of the comment 
period to the extent possible without incurring additional expense or 
delay in issuing the final rule, and FRA has done so.
    FRA held a public hearing on the proposed rule in Washington, D.C. 
on November 21, 1997, at which nine parties submitted oral comments. 
These parties consisted of: APTA; the BRC; the BLE; Amtrak; Renfe Talgo 
of America, Inc. (Talgo); WDOT; NARP; the Omniglow Corporation; and The 
Institute of Electrical and Electronics Engineers, Inc. (IEEE). A copy 
of the transcript of this hearing is available in the public docket of 
this rulemaking.
    As noted earlier, FRA convened the Passenger Equipment Safety 
Standards Working Group following the close of the comment period to 
consider the comments received in response to the 1997 NPRM and help 
develop the final rule. This continued the consultative process FRA has 
used throughout the rulemaking. Notice of the Working Group meetings 
was available through the FRA Docket Clerk, as stated in the NPRM, see 
62 FR 49729, and the meetings were open to the public.
    The Working Group met in full in Washington, D.C., on December 15-
16, 1997. A smaller body of the Working Group met again on January 6, 
1998, to discuss in particular high-speed passenger equipment safety 
issues, as well as brake inspection, testing and maintenance issues for 
long-distance intercity passenger trains. Minutes of these meetings, 
including copies of the discussion documents circulated at the 
meetings, are available in the public docket of the rulemaking. See 63 
FR 28496; May 26, 1998. FRA received one set of written comments on the 
minutes of the meetings, which FRA had prepared, and these comments are 
also available in the same docket.

V. Discussion of Specific Comments and Conclusions

A. Application of the Final Rule to Rapid Transit Operations and 
``Light Rail''

    In the 1997 NPRM, FRA proposed applying the rule to rapid transit 
operations in an urban area, unless those operations are not connected 
with the general system of railroad transportation. In other words, FRA 
made clear that its rule would apply to rapid transit operations over 
the general system. The Utah Transit Authority (UTA), in commenting on 
the NPRM, expressed concern with the inclusion of rapid transit 
operations, including light rail transit, in the proposed rule. The UTA 
stated that the rule provided no definition of what is meant by the 
phrase ``not connected with the general railroad system of 
transportation.'' As a result, the UTA requested that the final rule 
provide such a definition. Further, the UTA requested that any such 
definition take into account rail operations that are time-separated or 
physically separated (using derails and electric locks), or both, so 
that under such circumstances rapid transit systems would not be 
considered connected with the general railroad system of transportation 
and, therefore, be excluded from the rule.
    In response to the 1997 NPRM, New Jersey Transit (NJT) commented 
that by permitting FRA to rule on whether a transit agency may operate 
light rail service over a freight right-of-way, FRA's jurisdiction 
would be expanded in conflict with FTA's mandate in 49 C.F.R. part 659. 
NJT explained that the Intermodal Surface Transportation Efficiency Act 
of 1991, Public Law 102-240, and 49 C.F.R. part 659 promulgated in its 
pursuance, required states to designate an agency of the state, other 
than a transit agency, to oversee and implement requirements concerning 
all fixed-guideway systems not under FRA's jurisdiction.

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    The safety jurisdictions of FRA and FTA are mutually exclusive. 
FTA's regulatory authority to issue regulations creating a state safety 
oversight program applies only to ``rail fixed guideway mass 
transportation systems not subject to regulation by the Federal 
Railroad Administration.'' 49 U.S.C. 5330(a). Consistent with DOT 
Secretary of Transportation Rodney Slater's concept of One-DOT and the 
need to assure seamless application of intermodal transportation 
policies, FRA and FTA are jointly developing a proposed policy 
statement outlining the scope of FRA's jurisdiction over ``light rail'' 
operations that share the use of rights-of-way with conventional 
railroads. As discussed later in this document, the two agencies will 
be soliciting input from rail operators and other interested entities 
during the development of this policy statement.
    FRA's safety jurisdiction is very broad and extends to all types of 
railroads except for urban rapid transit operations not connected to 
the general railroad system. The term ``railroad'' is defined by 
statute as follows:

    In this part--
    (1) ``railroad''--
    (A) Means any form of nonhighway ground transportation that runs 
on rails or electromagnetic guideways, including--
    (i) Commuter or other short-haul railroad 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
    (B) does not include rapid transit operations in an urban area 
that are not connected to the general railroad system of 
transportation.

49 U.S.C. 20102.
    The statutory definition of the term ``railroad'' makes certain 
elements of FRA's safety jurisdiction quite clear:
     FRA, with one exception, has jurisdiction over all 
railroads regardless of the type of equipment they use, their 
connection to the general railroad system of transportation, or their 
status as a common carrier engaged in interstate commerce. FRA will, 
for example, assert jurisdiction over high-speed intercity rail service 
even if completely separated from the general railroad system that now 
exists and magnetic levitation systems that are not urban rapid 
transit.
     Commuter and other short-haul railroad passenger 
operations in a metropolitan or suburban area (except for one type of 
short-haul operation, i.e., urban rapid transit) are railroads within 
FRA's jurisdiction whether or not they are connected to the general 
railroad system. For operations on or over the general system, the 
commuter/rapid transit distinction has no jurisdictional relevance--all 
general system operations are within FRA's exercise of jurisdiction. 
Because the only urban rapid transit operations that FRA intends to 
cover under this rule are those on the general system, there is no need 
to expand on the commuter/rapid transit distinction here.
     Rapid transit operations in an urban area that are not 
connected to the general railroad system are not within FRA's 
jurisdiction. This is the sole exception to FRA's jurisdiction over all 
railroads. There is no exception for ``light rail,'' a term not found 
in the statute. Although FRA could assert jurisdiction over a rapid 
transit operation based on any connection it has to the general 
railroad system, FRA believes there are certain connections that are 
too minimal to warrant the exercise of its jurisdiction. For example, a 
rapid transit system that has a switch for receiving shipments from the 
general system railroad is not one over which FRA would assert 
jurisdiction. This assumes that the switch is used only for that 
purpose. In that case, any entry onto the rapid transit line by the 
freight railroad would be for a very short distance and solely for the 
purpose of dropping off or picking up cars. In this situation, the 
rapid transit line is in the same situation as any shipper or 
consignee; without this sort of connection, it cannot receive goods by 
rail. Absent a change in policy, FRA will not attempt to apply this 
rule to rapid transit systems with these sorts of connections. However, 
if such a system is properly considered a rail fixed guideway system, 
FTA's rules (49 CFR 659) will apply to it.
     Rapid transit operations in an urban area that are 
connected to the general railroad system of transportation are within 
FRA's jurisdiction. FRA will assert jurisdiction over a rapid transit 
operation that is conducted on or over the general system. It does not 
matter that the rapid transit operation occupies the track only at 
times when the freight, commuter, or intercity passenger railroad that 
shares the track is not operating. While such time separation could, as 
explained in the 1997 NPRM, provide the basis for waiver of certain of 
FRA's rules, it does not mean that FRA will not assert jurisdiction. 
However, FRA will assert jurisdiction over only the portions of the 
rapid transit system that are conducted on the general system. For 
example, a rapid transit line that operates over the general system for 
a portion of its length but has significant portions of street railway 
that are not part of the general system would be subject to FRA's rules 
only with respect to the general system portion. The remaining portions 
would not be subject to FRA's rules. If the non-general system portions 
of the rapid transit line are considered a ``rail fixed guideway 
system'' under 49 CFR part 659, those rules, issued by FTA, would apply 
to them.
    As discussed above, it is the nature and location of the railroad 
operation, not the nature of the equipment, that determines whether FRA 
has jurisdiction under the safety statutes. Light rail operations that 
operate on the general system are always within that statutory 
jurisdiction. They are not within the sole statutory exception (urban 
rapid transit not connected to the general system) so they are 
railroads under the safety statutes. The greatest risk inherent in the 
shared use of the trackage is a collision between the light rail 
equipment and conventional equipment. The light rail vehicles are not 
designed to withstand such a collision with far heavier equipment. Were 
such a crash to occur with either or both equipment operating at high 
speeds, the consequences for passengers in the light rail vehicle(s) 
would likely be catastrophic.
    In the past, FRA has withheld exercise of its jurisdiction with 
respect to light rail operations over general system trackage where 
there was full time separation (freight operations limited to nighttime 
hours). The recent proliferation of proposals for light rail operations 
on the general system and the issuance of this final rule establishing 
the first comprehensive Federal standards for railroad passenger 
equipment call for changing this approach. Moreover, recent 
developments have indicated that FRA's current approach assumes a 
degree of separation that is unlikely to be maintained over time. 
Proposals for limited overlap, deadhead movement of transit equipment, 
etc., have demonstrated the complexity of using common trackage for 
disparate purposes. Accordingly, FRA has asked that new transit starts 
that propose using the general rail system trackage submit appropriate 
waiver applications to FRA; such applications should be submitted as 
early as possible. As previously noted, FTA and FRA are working toward 
the development of a joint policy statement on the appropriate scope of 
FRA's jurisdiction over ``light rail'' that shares rights-of-way with 
conventional railroads. The agencies foresee an approach intended

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to dovetail FRA's safety regulations with the FTA state safety 
oversight program where that is appropriate and FTA jurisdiction is 
applicable. The agencies would work together to ensure coordination of 
decision making. Before general implementation, the policy statement 
will be discussed with the affected communities of interest and may be 
published (together with any needed regulatory amendments) for formal 
comment in the Federal Register. At the same time this joint policy is 
issued, FRA plans to issue a separate proposed statement of policy 
that, among other things, will provide guidance on how light rail 
operators may seek waivers of FRA's rules. In the interim, the policy 
expressed in this preamble will guide FRA's actions with respect to 
this rule (subject to an appropriate period of consultation and 
adjustment with respect to the two time-separated shared use projects 
currently in operation).
    FRA does, however, recognize that lower speed rail operations that 
do not operate over highway-rail grade crossings and that totally 
preclude the sharing of trackage between light rail equipment and 
conventional equipment provide an operating environment that does not 
require the structural standards needed for commingled passenger and 
freight operations. Accordingly, the final rule (in Sec. 238.201) 
provides that passenger equipment, including locomotives, are not 
subject to the structural requirements of the rule if they are used 
exclusively on a rail line (A) with no public highway-rail grade 
crossings, (B) on which no freight operations occur at any time, (C) on 
which only passenger equipment of compatible design is utilized, and 
(D) on which trains operate at speeds no higher than 79 mph. FRA will 
discuss with the Working Group in Phase II of the rulemaking what 
structural standards are appropriate for such operations.

B. Static End Sstrength Requirement: Application to Existing Equipment

    In Sec. 238.203 of the 1997 NPRM, FRA generally proposed that on or 
after January 1, 1998, all passenger equipment shall be required to 
have a minimum static end strength (or ``buff'' or ``compressive'' 
strength) of 800,000 pounds. As some commenters recognized, FRA 
intended the date of January 1, 1998, to represent the effective date 
of the final rule. Yet, in light of the actual publication date of the 
1997 NPRM, the date of January 1, 1998, appeared anachronistic, and FRA 
should have modified the NPRM to make its intent more explicit. A 
number of commenters nonetheless raised concerns with the application 
of this section-whether the date were January 1, 1998, or later-since 
FRA proposed to apply the static end strength requirement to existing 
passenger equipment.
    APTA recommended, in its comments on the rule, that FRA modify the 
proposal so that the requirement apply on or after the effective date 
of the final rule to passenger equipment placed in service for the 
first time. APTA stated that the AEM-7 locomotive and the RTG model 
turbo train could not meet the requirement as proposed. APTA estimated 
that the purchase of replacement equipment could take up to four years 
and would cost more than $500 million.
    Amtrak commented that the proposed requirement to have buff loading 
apply to the existing rail fleet is not justified based on the 
industry's experience. Amtrak did agree that, in order to move the 
industry forward on crash energy management, new equipment must be 
built to a uniform strength standard. Amtrak stated that it currently 
operates AEM-7 locomotives that do not meet the proposed requirement. 
In addition, Amtrak was not sure it had available the appropriate 
technical information on whether its fleet of Heritage equipment 
conformed to the proposal. At the public hearing, though, Amtrak did 
explain that it had no evidence that its fleet of passenger cars did 
not comply with the proposal. (See transcript of public hearing, pages 
173-174).
    The Northeast Illinois Regional Commuter Railroad Corporation 
(Metra), in its comments on the rule, recommended that the static end 
strength provision apply only to new passenger equipment orders placed 
on or after January 1, 1998. Metra explained that it was awaiting 
delivery of cars under construction, that some of the cars may be built 
after January 1, 1998, and that a change order would cause a series of 
problems.
    In commenting on the 1997 NPRM, Talgo expressed concern that FRA 
proposed applying the static end strength requirement to existing 
passenger equipment in service on or after January 1, 1998. Talgo 
stated that this proposal would render unusable its two trainsets then 
in service on lease to the WDOT. Additionally, Talgo explained that it 
was well underway in manufacturing five new trainsets--two for the 
WDOT, one for Amtrak, and two others for future sale in the U.S. 
market--that would likewise be rendered unusable in their current form. 
Talgo stated that neither it nor any other manufacturer of rail 
equipment could have anticipated the proposed regulation's immediate 
application of broad structural design changes. Citing discussions 
within the Working Group and the comments of other parties, Talgo 
asserted that other passenger equipment manufacturers and operators 
likewise assumed that modifications in basic structural standards would 
be applicable only to equipment purchased after January 1, 1999, or 
placed in service after January 1, 2001, and that much existing 
passenger equipment operating in the United States would be unable to 
comply with the structural requirements scheduled for early 
implementation. Talgo also stated that FRA did not properly identify 
the economic impact of its proposal on Talgo equipment. Talgo requested 
that FRA modify the rule so that the static end strength requirement 
and other structural requirements apply only to passenger equipment 
ordered on or after January 1, 1999, or placed in service for the first 
time on or after January 1, 2001.
    The WDOT commented that FRA's proposal appeared to be directly 
targeted at the State of Washington and Amtrak's purchase of Talgo 
trains under manufacture. WDOT stated that imposition of the proposal 
in the middle of the construction process, without ``grandfathering,'' 
appeared to reveal an effort to make its Talgo equipment non-compliant. 
WDOT recommended that the rule be modified so that the static end 
strength provision only apply to passenger equipment ordered after 
January 1, 1999. The NARP, in its comments on the proposed rule, shared 
WDOT's opposition to imposing the static end strength requirement on 
existing passenger equipment, and it recommended instead applying the 
requirement under a time-table similar to that proposed generally for 
structural requirements--i.e., ordered on or after January 1, 1999, or 
placed in service for the first time on or after January 1, 2001. The 
NARP believed that the proposal could cancel WDOT's rail passenger 
program and thereby lead to countless, unnecessary highway deaths 
involving people that otherwise would have been on a WDOT passenger 
train.
    In commenting on the 1997 NPRM, the State of Vermont Agency of 
Transportation (VAOT) explained that it was in the process of 
implementing new passenger rail service with used rail diesel cars 
manufactured by Budd. The cars were originally built to meet the AAR 
buff strength requirement, according to the VAOT, but it could not 
assure that the vehicles meet the standards today. The VAOT requested 
that the Budd cars be grandfathered because they were manufactured to 
AAR standards, built prior to April 1,

[[Page 25545]]

1956, and have a proven service record. The VAOT believed it fair for 
the rulemaking to grandfather these cars as being compliant at the time 
ordered by VAOT. Similarly, the NYDOT recommended in its comments on 
the proposed rule that the structural requirements apply only to new 
equipment, citing its intent to operate rebuilt turboliner equipment in 
the Empire Corridor through a cooperative effort with FRA and Amtrak. 
Further, the North Carolina Department of Transportation (NCDOT) 
expressed concern in its comments on the proposed rule that the 
rulemaking would require its fleet of rebuilt passenger, food service 
and specialty cars to undergo additional renovations and retrofitting 
to comply with the rule. NCDOT commented that its trainsets were 
designed to meet the passenger equipment safety standards in effect at 
the time of their order, and that the proposed regulation has the 
potential to thwart its rail passenger initiative.
    In the final rule, FRA is retaining the 800,000-pound static end 
strength requirement for most new and existing passenger equipment. 
However, the final rule does provide that the static end strength 
standard and other structural standards do not apply to equipment used 
exclusively on a rail line (A) with no public highway-rail grade 
crossings, (B) on which no freight operations occur at any time, (C) on 
which only passenger equipment of compatible design is utilized, and 
(D) on which trains operate at speeds no higher than 79 mph. See 
Sec. 238.201. Furthermore, the final rule creates a presumption that 
passenger equipment in service in the United States as of the effective 
date of the final rule meets the 800,000-pound static end strength 
requirement, unless the railroad operating the equipment knows, or FRA 
can show, that the equipment was not built to this 800,000-pound 
strength requirement. See Sec. 238.203(b). Under this formulation, for 
example, Amtrak's fleet of Heritage passenger cars are presumed to 
comply with the static end strength requirement on the basis of 
Amtrak's testimony at the public hearing on the NPRM.
    FRA has decided that it is in the best interest of safety to apply 
the buff strength requirement to existing passenger equipment and 
effectively regulate the use of passenger equipment not possessing at 
least 800,000 pounds of buff strength as specified in this rule. As 
noted, the operating environment in the United States requires railroad 
passenger equipment to operate commingled with heavy and long freight 
trains, often over track with frequent grade crossings used by heavy 
highway equipment. FRA has serious concerns about the operation in such 
an environment of passenger equipment not possessing a minimum buff 
strength of 800,000 pounds. As a result, and in response to Talgo's and 
WDOT's comments on this rule, FRA cannot avoid directly addressing the 
current operation in the United States of the passenger trainsets 
manufactured by Talgo unless FRA disregards its duty to provide for the 
safety of rail passenger transportation. Since FRA has raised the issue 
of compressive strength on passenger equipment with all affected 
parties since well before the inception of this rulemaking, it would 
strain credulity to assert that a requirement for 800,000 pounds of 
compressive strength could truly be a matter of surprise in a 
rulemaking on railroad passenger equipment safety.
    Making the 800,000-pound compressive strength requirement 
applicable to existing passenger equipment creates a bright line that 
will help bring needed clarity to the growing number of situations 
where light rail equipment is likely to be used on the general railroad 
system of transportation. Operation on the general system of this 
equipment, which is built to standards far lower than the 800,000-pound 
standard specified in this rule, presents enormous safety risks to the 
occupants of the equipment, absent imposition of strict conditions 
designed to virtually eliminate the risk of a light rail/conventional 
equipment collision. The need to address these risks as a condition of 
operation will be made perfectly clear by imposition of the buff 
strength requirement across the board. Light rail operators will have 
to seek a waiver of the requirement and will have to plan their 
operations in such a way as to maximize the likelihood of obtaining 
such a waiver. (A petition for grandfathering approval of the equipment 
could also be filed in certain cases, as discussed below.)
    In regulating the use of passenger equipment not possessing a 
minimum buff strength of 800,000 pounds as specified in this final 
rule, the rule permits non-compliant passenger equipment to be 
continued in service for a six-month period following publication of 
the rule in order to permit the filing of a grandfathering petition 
with FRA; if a petition is filed within this six-month period, 
operation may continue for up to an additional six months while the 
petition is being processed. Grandfathering approval of non-compliant 
equipment is limited to usage of the equipment on a particular rail 
line or lines. Before grandfathered equipment can be used on another 
rail line, a railroad must first file and secure approval of a 
grandfathering petition for such usage. See discussion under 
Sec. 238.203 for the contents of the petition and the approval process. 
FRA will approve a petition for ``grandfathering'' if it complies with 
the requirements of Sec. 238.203 and the proposed usage of the 
equipment is in the public interest and consistent with railroad 
safety. Amtrak and WDOT may file petitions for grandfathering approval 
of their Talgo-manufactured passenger equipment, in accordance with the 
requirements of Sec. 238.203.

C. United States International Treaty Obligations

    The United States is a party to the General Agreement on Tarriffs 
and Trade (GATT). One of the GATT agreements is the Agreement on 
Technical Barriers to Trade (TBT), originally concluded in 1979 and 
approved by the United States Congress in the Trade Agreements Act of 
1979, Pub. L. No. 96-39 (July 26, 1979). A new TBT Agreement was 
reached as a result of the 1994 Uruguay Round of GATT multinational 
trade negotiations, and subsequently approved by the United States 
Congress in the Uruguay Round Agreements Act, Pub. L. No. 103-465 
(December 8, 1994). The TBT Agreement seeks to avoid creating 
unnecessary obstacles to trade, while recognizing the right of 
signatory countries to establish and maintain technical regulations for 
the protection of human, animal, and plant life or health. The TBT 
Agreement has been codified into law at 19 U.S.C. 2531 et seq.
    In commenting on the NPRM, Talgo believed that a number of the 
proposed structural standards were inconsistent with the TBT Agreement 
in that domestic industry would be favored by adopting the de facto 
standards of North American passenger equipment. Talgo stated that many 
requirements in the proposed rule seem to have been developed 
exclusively with domestically-manufactured equipment in mind, 
``arbitrarily making compliance with the rules by other, non-U.S. 
manufactured equipment--such as Talgo equipment--extremely difficult.'' 
Talgo also asserted that domestic industry would be favored under the 
implementation schedule of the rule by noting FRA's statements in the 
NPRM that several of the proposed structural requirements chosen for 
early implementation reflect the current construction practice for 
North American passenger equipment. Talgo contended that the 
implementation

[[Page 25546]]

schedule disregards that, solely because imported equipment has been 
designed differently, it cannot satisfy the requirements at once.
    FRA believes that this final rule is consistent with the United 
States' obligations under the TBT Agreement, and that Talgo's concerns 
arise, in part, from a misunderstanding of FRA's use of the term 
``North American passenger equipment.'' Article 2.1 of the TBT 
Agreement, cited by Talgo in its comments, states:

    Members shall ensure that in respect of technical regulations, 
products imported from the territory of any Member shall be accorded 
treatment no less favorable than that accorded to like products of 
national origin and to like products originating in any other 
country.

A ``technical regulation'' refers to mandatory product standards, and 
FRA agrees with Talgo that the structural standards in this rule fall 
under this definition. See Annex 1 to the TBT Agreement, ``Terms and 
Their Definitions for the Purpose of this Agreement, 1.'' However, the 
impact of this rule on Talgo passenger equipment, specifically its 
passenger cars, has nothing to do with the fact that the equipment 
originates in a foreign country, Spain, as opposed to the United 
States.
    Through this rule, FRA is not favoring rail passenger cars that are 
domestically manufactured over those of foreign origin since, as far as 
FRA is aware, there is currently no domestic manufacturer of rail 
passenger cars in the United States. (The General Electric Company and 
the General Motors Corporation manufacture locomotives in the United 
States--not rail passenger cars; and neither entity is being favored by 
FRA in this rule over foreign manufacturers of locomotives.) Of course, 
a significant portion of the nation's rail passenger car fleet--the 
oldest portion--has been manufactured in the United States. Yet, over 
the years, manufacturers from Japan, Canada, and other countries have 
exported passenger cars to the United States for service on the 
nation's railroads. Overall, these imported rail passenger cars have 
possessed the same minimum structural strength as their domestic 
forebearers; they have been constructed to standards that are common to 
North American passenger equipment, i.e., passenger equipment operated 
in North America. The five Talgo trainsets noted earlier have not been 
so constructed. FRA's use of the term North American passenger 
equipment (or United States passenger equipment, for that matter) was 
not intended to refer to passenger equipment manufactured in North 
America in distinction to passenger equipment manufactured elsewhere.
    Talgo also commented that, to a significant extent, the proposed 
requirements were design-based and phrased in a number of places in 
variables dependent on design rather than performance. In this regard, 
Talgo believed the proposed rule violates Article 2.8 of the TBT 
Agreement, which states: ``Wherever appropriate, Members shall specify 
technical regulations based on product requirements in terms of 
performance rather than design or descriptive characteristics.'' Talgo 
asserted that the rule can and should be stated in terms of variables 
relating to the performance of the equipment rather than its design, 
and that the rule should accommodate different engineering designs, 
such as its articulated, lightweight trainsets.
    The principal structural requirement of the final rule, which 
existing Talgo-manufactured passenger cars do not meet, is in fact a 
performance-based requirement. As further specified in Sec. 238.203, 
the rule requires that new and existing passenger cars must possess a 
minimum static end strength of 800,000 pounds. The rule does not 
dictate how a passenger car must be constructed to meet this 
requirement, as long as the car can resist the specified 800,000-pound 
load. This formulation is consistent with the requirements of 19 U.S.C. 
2532(3), which states:

    Performance Criteria.--Each Federal agency shall, if 
appropriate, develop standards based on performance criteria such as 
those relating to the intended use of a product and the level of 
performance that the product must achieve under defined conditions, 
rather than on design criteria, such as those relating to physical 
form of the product or the types of material of which the product is 
made.

(Of course, the rule does require that the body structure of a 
passenger car be designed, to the maximum extent possible, to fail by 
buckling or crushing, or both, of structural members when overloaded in 
compression rather than by fracture of structural members or failure of 
structural connections. See Sec. 238.203(c). Yet, in any regard, FRA 
believes it unsafe to design a passenger car to fail first by fracture 
of structural members or failure of structural connections, as the 
ability of the car structure to absorb collision energy is negated.)
    FRA recognizes that the five Talgo trainsets were designed to 
international standards that require lesser compressive strength. Talgo 
has pointed out that these trainsets will be configured in the same 
manner as two leased trainsets formerly operated in the State of 
Washington. These trains are intended to be pulled by a conventional 
locomotive and have unoccupied units at the front and rear of the 
trainsets which are available to absorb initial crash energy. Talgo 
contends that this configuration provides equivalent protection from 
loss of occupied volume in a rear-end or head-on collision when 
compared with conventional cars which would be occupied by passengers 
or crew. FRA has provided a process for WDOT and others to secure 
grandfathering approval regarding the compressive strength requirement 
for passenger equipment placed in use prior to November 8, 1999, as 
previously noted. However, as explained below, FRA is unable to relax 
the minimum compressive strength requirement for passenger equipment 
simply on the basis of train configuration, since to do so would 
diminish the safety provided for the rail travelling public as a whole.
    FRA believes the minimum static end strength requirement in the 
final rule is not inconsistent with the TBT Agreement, in that it 
fulfills FRA's objective of protecting human safety and only restricts 
the use of equipment not meeting that objective because of the 
performance of the equipment--not because of the origin of the 
equipment. In this regard, 19 U.S.C. 2531(b) provides in part:

    No standards-related activity of any * * * Federal agency * * * 
shall be deemed to constitute an unnecessary obstacle to the foreign 
commerce of the United States if the demonstrable purpose of the 
standards-related activity is to achieve a legitimate domestic 
purpose including * * * the protection of legitimate health or 
safety * * * and if such activity does not operate to exclude 
imported products which fully meet the objectives of such activity.

    Having a passenger car possess a minimum compressive strength of 
800,000 pounds, along with other features, has evolved as a result of a 
long history of efforts by railroads and suppliers to learn the hard 
lessons taught by a difficult operating environment in the United 
States. Passenger train collisions and derailments may occur in a 
variety of different scenarios and implicate structural features of 
passenger equipment in similarly numerous ways. The rule cannot be 
applied in a general way to both (1) except any consist of passenger 
cars from the same compressive strength requirements applicable to all 
other passenger cars solely because the passenger car consist is 
buffered at each end by an unoccupied car and linked by articulated 
connections, and (2) provide

[[Page 25547]]

for the safety of the occupants of passenger cars.
    Further, over the past few years, FRA has funded the most extensive 
and detailed research and analysis ever conducted by a public body in 
the United States concerning passenger car safety. That effort has 
included attention to international practice, particularly for high-
speed equipment. However, given existing data and analysis, FRA is 
unable to specify an alternate performance standard for passenger car 
compressive strength that would meet FRA's safety objectives and be 
equally applicable to passenger cars of any design that might some day 
be proffered for use in the United States. Nor, so far as FRA is aware, 
has any government or international body achieved a similar feat. 
Certainly doing so within the time available to issue standards under 
the 1994 statutory mandate would not have been possible.
    FRA notes that Talgo further commented that the early 
implementation dates proposed for certain structural requirements are 
inconsistent with Article 2.12 of the TBT Agreement in that a 
sufficient amount of time would not be provided foreign producers to 
modify their products' design or manufacturing processes to comply with 
new or significantly revised regulatory requirements. Article 2.12 
provides:

    Except in those urgent circumstances referred to in [Article 2] 
paragraph 10 [of the TBT Agreement], Members shall allow a 
reasonable interval between the publication of technical regulations 
and their entry into force in order to allow time for producers in 
exporting Members * * * to adapt their products or methods of 
production to the requirements of the importing Member.

In the final rule, the compressive strength requirement takes effect 
sooner than any other principal structural requirement, and it applies 
to both new and existing passenger cars and locomotives. If any 
provision of the rule were found to be inconsistent with Article 2.12 
of the TBT Agreement, then, it would most likely be the compressive 
strength requirement. However, the United States Congress has expressly 
authorized applying the requirements of the final rule to existing 
passenger cars, provided only that the basis for doing so is explained 
in the rulemaking document. See Section 215 of the Federal Railroad 
Safety Authorization Act of 1994, above, as codified at 49 U.S.C. 20133 
(``The Secretary may make applicable some or all of the standards 
established under this subsection [, 49 U.S.C. 20133(a),] to cars 
existing at the time the regulations are prescribed.''). FRA has made 
the compressive strength requirement applicable to existing passenger 
cars as explained in the preamble. However, through the submission of 
appropriate data and analysis, and approval by FRA as further specified 
in Sec. 238.203, discussed below, certain passenger cars not possessing 
the minimum compressive strength of 800,000 pounds may operate on the 
general railroad system of transportation, and the rule does afford a 
reasonable time for that information to be gathered.
    In providing the possibility that some equipment now being used 
which does not meet the buff strength requirement of this rule might 
continue to be used (``grandfathered''), FRA intends to permit only 
very safe operations to occur. Petitioners will need to demonstrate--
through a quantitative risk assessment that incorporates design 
information, engineering analysis of the equipment's static end 
strength and of the likely performance of the equipment in derailment 
and collision scenarios, and risk mitigation measures to avoid the 
possibility of collisions or to limit the speed at which a collision 
might occur, or both, that will be employed in connection with the 
usage of the equipment on a specified rail line or lines--that use of 
the equipment, as utilized in the service environment for which 
recognition is sought, is in the public interest and is consistent with 
railroad safety. In this regard, FRA notes that passenger equipment not 
possessing the minimum static end strength specified in this rule does 
not have the same capacity to absorb safely within its body structure 
the compressive forces that develop in a collision as equipment meeting 
the standard. The engineering analysis submitted by the petitioner 
should address how these forces will be dissipated in a manner that 
does not jeopardize occupant safety in collision scenarios.

D. Non-Conventional Passenger Equipment

    As noted above, commenters have requested that FRA specify design-
neutral or performance-based requirements so that the safety of all 
passenger equipment may be evaluated on the same basis. In comments in 
this docket, Talgo has suggested substituted (and reduced) force levels 
that it believes are appropriate for inclusion in the final rule in 
lieu of those proposed for truck-to-carbody attachment and anti-
climbing arrangements, for instance. As explained, FRA has specified 
the compressive strength requirement as fairly as we are able in 
consideration of the safety of the rail travelling public. FRA has also 
done so with respect to the other structural requirements in the rule.
    FRA recognizes that the existing Talgo trainsets presents unique 
challenges in terms of describing appropriate force levels in several 
regards. FRA understands that the Talgo trainsets are articulated, low-
floor trainsets with independently rotating wheels. The car bodies are 
made from light-weight aluminum extrusions. In contrast, the vast 
majority of passenger carrying equipment used on the nations's 
railroads is individually suspended, has automatic couplers, has a 
higher floor height above the rail, has wheels fixed to an axle, and is 
constructed with a steel underframe made up from fabricated members. 
FRA has conducted, and continues to conduct, research which addresses 
the influence of carbody construction, suspension configuration, and 
coupling arrangement on the crashworthiness, derailment tendency, and 
other safety-related aspects of Talgo and other non-conventional 
equipment.
    Developing safety regulations requires detailed technical knowledge 
of the system being regulated. At the time this rule is being written, 
FRA is unable to specify alternative performance-based standards with 
respect to the structural requirements in this rule that would meet 
FRA's safety objectives for passenger equipment of any design. Areas of 
particular technical concern with regard to the Talgo trainsets, which 
need to be resolved by FRA through an ongoing exchange of information, 
include the nature of its articulated connection and its potential to 
allow override in a collision, and the welding of the aluminum 
extrusions which make up the body shell. The Talgo tilt trainsets have 
characteristics that are unique, or nearly unique, that may either 
reduce or increase vulnerability in a derailment or collision. For 
instance, the articulated design of the trainset may tend to keep the 
train in line in the case of a derailment where the decelerations are 
reasonably uniform throughout the length of the train, preventing 
secondary impacts. On the other hand, the absence of major structural 
members in the floor of the passenger units could be a serious problem 
should the train be involved in a collision with freight train cars or 
lading that has fouled the track on which the passenger train is 
travelling, as a result of the freight train having derailed. In this 
regard, the absence of major structural members in the floor of the 
Talgo passenger units increases their vulnerability to penetration by 
the

[[Page 25548]]

trainset's trucks, should the trucks separate from the train.
    Historically, the United States industry requirement for a minimum 
compressive strength has reinforced a pattern of passenger car 
construction resulting in use of stiff, quite substantial underframes 
that have served other practical purposes in derailments and 
collisions, including prevention of car body buckling, prevention of 
harm to passengers from failure of the floor structure and entry of 
debris, and resistance to penetration of the car from the side where 
the primary impact was at the floor level. Both with respect to 
compressive strength and other structural requirements that the Talgo 
trainset may not be able to meet, it is important to ensure that 
alternative means of achieving crashworthiness are just as successful 
as the standards described in this final rule.
    Creating alternative performance-based standards for a particular 
type of passenger equipment requires a very early dialogue and 
technical information exchange. In the summer of 1995, FRA convened the 
first meeting of equipment manufacturers (including representatives of 
Canadian, European and Japanese consortia) to discuss passenger safety 
standards. That meeting led to designation of equipment manufacturer 
representatives as associate members of the Passenger Equipment Safety 
Standards Working Group. Although notified along with a number of other 
manufacturers of passenger equipment, Talgo representatives did not 
participate in the process. (For its part, the WDOT did not formally 
indicate to FRA an interest in participating in the rulemaking until 
after the Working Group had tentatively agreed on the structural 
standard proposals--FRA received a letter from the WDOT commenting on 
the ANPRM on September 4, 1996. However, AASHTO had participated from 
the beginning of the rulemaking.) Talgo did not enter the discussions 
directly until publication of the NPRM in September of 1997, and was 
still in the process of providing engineering data through October of 
1998. Given the timing of this latest submission of data to FRA, 
approximately ten-months after the close of the public comment period 
on the NPRM, FRA has not had the opportunity to fully evaluate the 
information provided by Talgo for purposes of this rule.
    FRA appreciates Talgo's recent undertakings to conform any future 
trainsets (beyond the five trainsets noted earlier) built for North 
American service to the 800,000-pound static end strength requirement 
and any other applicable requirements in this rule. FRA will be pleased 
to work with Talgo and members of the Working Group in Phase II of the 
rulemaking to determine whether different performance-based regulations 
are appropriate. In the interim, FRA has provided a special approval 
process in Sec. 238.201 for considering whether the new generation of 
Talgo equipment and any other passenger equipment of special 
construction provide an equivalent level of safety with the Tier I 
standards (other than the static end strength requirements) contained 
in the final rule. See the discussion in the section-by-section 
analysis of Sec. 238.201 for an explanation of the special approval 
process.

E. System Safety

    FRA believes that passenger railroads should carefully evaluate 
their operations with a view toward enhancing the safety of those 
operations. The importance of formal safety planning has been 
recognized in Emergency Order No. 20 (61 FR 6880; Feb. 22, 1996) and 
the rule on passenger train emergency preparedness (63 FR 24630; May 4, 
1998). In furtherance of safety planning, the 1997 NPRM contained a set 
of system safety requirements to be applied to all intercity passenger 
and commuter rail equipment. See 62 FR 49760. FRA intended that each 
individual passenger railroad be required to develop a system safety 
plan and a system safety program tailored to its specific operation, 
including train speed. FRA explained, however, that the Working Group 
did not reach consensus on system safety requirements for Tier I 
equipment; whereas the Tier II Subgroup did reach full consensus on 
system safety program requirements for Tier II equipment. Strong 
support did exist among Working Group members to apply formal system 
safety planning to Tier I equipment, yet views differed as to whether 
system safety planning should be required by law.
    In particular, the 1997 NPRM noted that APTA objected to FRA 
issuing any regulations governing system safety plans because commuter 
railroads have voluntarily agreed to adopt such safety plans. 62 FR 
49734. FRA also explained its understanding that APTA's system safety 
approach will be more comprehensive than what FRA proposed and address 
each commuter railroad's system more as an integrated whole, not 
focused principally on rail equipment. See 62 FR 49734. FRA therefore 
invited comment on APTA's suggestion that commuter railroads be allowed 
to regulate themselves in this area; whether FRA should mandate the 
contents of system safety plans; whether the areas FRA proposed to 
require railroads to address were appropriate; whether additional areas 
should be added; and to what extent FRA should propose to enforce 
portions of the system safety plans. FRA further asked whether the rule 
should require that system safety plans be comprehensive and address 
the entire railroad system in which the equipment operates, as well as 
whether the emergency preparedness planning requirements contained in 
the passenger train emergency preparedness rulemaking be expressly 
integrated with the system safety planning requirements contained in 
this part. Id. at 49733-4.
    In commenting on the rulemaking, APTA believed FRA's approach to 
system safety short-sighted in that it would apply only to the 
equipment component of the commuter railroad system and therefore 
ignore track, signal system, other infrastructure, and operating 
practices components. Further, APTA questioned FRA's general focus in 
the system safety plan (on fire safety; software safety; inspection, 
testing and maintenance; training; and new equipment) prior to having a 
railroad identify its major safety risks through its individual system 
level analysis. APTA stated that it supports a true system safety 
approach that allows each railroad to determine its own major safety 
risks and addresses all the components of the passenger rail system--
not just the equipment component.
    As an alternative to Federal regulation, APTA proposed a system 
safety program based on system safety plans--developed using MIL-STD-
882C as a guide--that would be submitted by its individual member 
railroad properties and audited by APTA. APTA explained it would invite 
FRA to observe the audits and the follow-up actions taken by the 
commuter railroads in response to the audits. APTA requested that FRA 
hold Federal requirements for commuter railroad system safety plans in 
abeyance for a 3-year probationary period--corresponding to one 
complete audit cycle--while FRA observes and evaluates the program.
    Amtrak commented that it supports APTA's position on system safety 
for both Tier I and Tier II equipment. Amtrak believed it appropriate 
for FRA to start with a voluntary system safety approach and then, 
based on actual experience, follow up with specific regulations in the 
future. Amtrak believed FRA needs to allow the industry the time to 
establish the

[[Page 25549]]

culture and process that allows system safety to function without 
creating an unwarranted bureaucratic burden.
    In its comments on the 1997 NPRM, Metra agreed with the value of a 
system safety plan, but believed that such plans should not be 
regulated. Metra recommended the rule contain only a top-level system 
safety plan requirement for railroads to identify the most serious 
safety risks within their specific operations, and then allow each 
railroad to create its own programs to reduce those risks. Metra 
explained that a railroad's system safety plan should project beyond 
current practice to continuously improve that practice and that Federal 
enforcement of such a plan would continually find violations because 
current practice would not reflect the ideals set forth in the plan. 
Metra believed that FRA regulation would make a system safety plan a 
useless tool for improving safety, as the plan would be limited to 
mimicking Federal regulation and describing current practice. In 
addition, Metra noted that a system safety plan is distinct from a 
document that describes current practice for routine and regulated 
activities. Metra proposed that this document, a safety policy, 
reference all current-practice safety-related procedures and require 
railroads to adhere to them.
    Bombardier commented that the 1997 NPRM does not provide the 
latitude for each railroad to tailor or customize its system safety 
plan to its individual operations and needs. Further, Bombardier 
believed that the NPRM confuses the requirements for the railroad's 
system safety plan with those required for equipment acquisition. If 
FRA insists that the rule contain a requirement for a system safety 
plan, according to Bombardier, it should be limited to requiring each 
railroad to develop its own plan based on MIL-STD-882C or APTA's Manual 
for the Development of a System Safety Plan for Commuter Railroads. 
Separately, the rule should require a system safety plan specifically 
addressing equipment procurement.
    The BRC commented that FRA must mandate the contents of system 
safety plans to ensure that vital topics are included in such plans. 
Further, the BRC believed FRA must have the power to enforce compliance 
with system safety plans. Otherwise, the BRC believed the plans 
themselves would amount to little more than suggested operating 
practices. The BRC also believed that FRA must review each railroad's 
system safety plan and approve it only if it complies with Federal 
regulations. Similarly, the UTU commented that the 1997 NPRM's 
provisions on system safety plans is the most important section of the 
rule. The UTU believed FRA should continue to treat it as such and not 
allow it to be weakened.
    The NTSB commented that it supports FRA mandating the contents of 
system safety plans for minimal consistency and oversight, rather than 
allowing the railroads to regulate themselves in this area, so that 
important safety elements are consistently included in each safety 
plan. The NTSB believed that the system safety plans should be 
comprehensive and address the entire railroad system in which the 
passenger equipment operates. The NTSB observed that if the industry 
does not have a comprehensive system safety plan, it may not be able to 
identify, track, monitor, or rectify situations that can lead to unsafe 
conditions. Further, the NTSB remarked that system safety should be a 
continuous, iterative process that has a built-in feedback mechanism 
and should be used throughout the program's life cycle to arrive at the 
best plan possible.
    The NTSB noted that it has made safety recommendations urging FRA 
to include specific safety requirements in a system safety plan. It 
urged FRA to incorporate the following recommendations into FRA's 
general requirements for system safety plans:

    Require carriers to train employees in emergency procedures to 
be used after an accident, to establish priorities for emergency 
action, and to conduct accident simulation to test the effectiveness 
of the program, inviting civic emergency personnel participation. 
(R-76-29)
    Develop and validate through simulated disaster exercises a 
model emergency response plan for the guidance of the railroad 
industry in formulating individual plans to be utilized by their 
train crewmembers in the event of an emergency. (R-80-6)

In this regard, FRA did issue final regulations governing the 
preparation, adoption, and implementation of emergency preparedness 
plans by railroads connected with the operation of passenger trains, in 
the passenger train emergency preparedness rulemaking. See 63 FR 24630, 
May 4, 1998. That rule specifically requires emergency preparedness 
plans to 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 is also subject 
to formal review and approval by FRA.
    FRA believes the approach taken in the emergency preparedness 
rulemaking in requiring railroads to adopt a safety plan addressing 
specific topics is more appropriate than imposing a general requirement 
for railroads to adopt a comprehensive system safety plan. FRA believes 
this is consistent with the view of the commenters to mandate the 
contents of safety program plans for minimal consistency and oversight, 
so that important safety elements are included in each safety plan. At 
the same time, focusing the safety planning requirements and 
streamlining the rule will facilitate the regulated community's 
understanding of the rule's requirements and thereby aid in its 
compliance. As further specified, the final rule will require that each 
railroad adopt safety program plans addressing:
     Fire safety;
     Employee training and qualifications;
     Equipment inspection, testing, and maintenance;
     Pre-revenue service acceptance testing of equipment; and
     Train hardware and software safety.

In addition, more particular safety planning requirements are imposed 
on Tier II passenger equipment, as discussed below, reflecting both the 
greater risks to safety from operating the equipment at such high 
speeds and the importance of advanced planning in order to meet new 
safety challenges.
    As FRA recognized in the 1997 NPRM, FRA's proposed approach to 
system safety focused principally on rail passenger equipment. This was 
not a pure system safety approach, inasmuch as FRA did not focus on 
safety planning for others elements of the railroad infrastructure such 
as the track and signal system, or for a host of items including 
platform safety, security and trespasser prevention.
    FRA will closely monitor Tier I railroad operations in their 
development and adherence to voluntary, comprehensive system safety 
plans. FRA has already established a liaison relationship with APTA and 
has already begun participating in system safety plan audits on 
commuter railroads. FRA is using this involvement to enrich FRA's 
Safety Assurance and Compliance Program (SACP) efforts on these 
railroads--which, unlike the triennial audit process for system safety 
plans, is a continuous activity with frequent on-property involvement 
by FRA safety professionals. FRA will reconsider its decision not to 
impose a general requirement for system safety plans on Tier I railroad 
operations if the need to do so arises. FRA expects that

[[Page 25550]]

Tier I railroad operations will be able to integrate the specific 
safety planning requirements contained in this final rule into their 
own system safety plans, in the same way the railroads will incorporate 
into their plans the emergency planning requirements contained in 49 
CFR part 239.
    FRA is retaining more extensive safety planning requirements for 
Tier II railroad operations. These requirements are directed at 
ensuring the safety of the equipment in its operating environment and 
that the introduction of novel technology is thoroughly analyzed prior 
to procurement of the equipment. Tier II railroad operations will be 
operations with new characteristics that require special attention and 
have heightened safety risks due to the speed of the equipment. In 
particular, each railroad must a have safety program plan for the 
operation of its Tier II passenger equipment prior to placing the 
equipment into revenue service. In addition, each railroad must have a 
safety program plan for each procurement of Tier II passenger equipment 
or major upgrade or introduction of new technology in Tier II passenger 
equipment. The railroad must also receive FRA approval of a pre-revenue 
service acceptance testing plan, as well as FRA approval prior to 
placing such new or modified equipment into revenue service.
    In general, however, the final rule does not require that FRA 
approve a railroad's safety plans required under the rule. As noted, 
FRA believes it best to focus its resources on Tier II passenger 
equipment operations due to their special circumstances. Further, FRA 
approval may not be necessary when, by operation of the rule, each 
railroad must independently comply with specific safety planning 
requirements or face sanction from FRA. Under 49 CFR Sec. 238.11 of the 
final rule, any person who violates any requirement of this part or 
causes the violation of any such requirement is subject to a civil 
penalty.

F. Side Exit Doors on Passenger Cars

    In the 1997 NPRM, FRA generally proposed that new passenger cars 
have a minimum of four exterior side doors--or the functional 
equivalent of four such doors--each door permitting at least one 95th-
percentile male to pass through at a single time. See 62 FR 49807 
(Sec. 238.237), and 62 FR 49820 (Sec. 238.441). Exterior side doors are 
the primary means of egress from a passenger train, yet there is no 
Federal requirement that a passenger car be equipped with such doors. 
FRA does recognize that in an emergency passengers would generally be 
able to move through a passenger car's end doors to seek refuge in 
adjacent cars. In fact, it is safer for passengers to remain on a train 
unless doing so in itself risks their safety, because of hazards along 
the railroad right-of-way such as electrified rails and other trains. 
However, the tragic September 22, 1993 Amtrak train derailment near 
Mobile, Alabama, and the February 16, 1996 collision involving MARC and 
Amtrak passenger trains near Silver Spring, Maryland, show that in a 
life-threatening situation passengers have no alternative but to exit 
the train. All of the 42 passenger fatalities in the Mobile, Alabama 
train derailment resulted from asphyxia due to drowning (NTSB Railroad-
Marine Accident Report 94/01), and the deaths of at least eight of the 
eleven persons killed in the Silver Spring, Maryland train collision 
resulted from the fire that ensued (NTSB Railroad Accident Report (RAR) 
97/02). FRA is not suggesting that the cars involved in those accidents 
lacked a sufficient number of emergency exits; nevertheless, these are 
examples of instances where passengers have died because they could not 
leave the train. (However, the NTSB did note in its investigation 
report of the Silver Spring, Maryland train collision that ``[e]xcept 
for those passengers who died of blunt trauma injuries, others may have 
survived the accident, albeit with thermal injuries, had proper and 
immediate egress from the car been available.'' Id. at page 63. The 
NTSB explained in its explicit findings on the collision that ``the 
emergency egress of passengers was impeded because the passenger cars 
lacked readily accessible and identifiable quick-release mechanisms for 
the exterior doors, removable windows or kick panels in the side doors, 
and adequate emergency instruction signage.'' Id. at 73.)
    So that each passenger car has sufficient doorway openings to allow 
passengers and crewmembers to exit quickly in a life-threatening 
situation, FRA proposed requiring that passenger cars be equipped with 
side doors. Exiting a passenger train through a functioning emergency 
window exit is slower than exiting a train through a functioning door, 
and presents a risk of non-fatal injury. FRA made clear in the 1997 
NPRM that the proposed side door requirement was not a recommendation 
of the Working Group, although FRA believed such a requirement 
necessary at least as an interim measure. See 62 FR 49770. FRA also 
recognized that existing designs of passenger cars do not always 
provide for four side doors, and, in fact, the proposed requirement did 
not specifically require that passenger cars have four side doors. For 
instance, the requirement would have been met if a passenger car had 
two double-wide doors that permit two 95th-percentile males to pass 
through each such door at the same time--the functional equivalent of 
four side doors having openings of the same size in the aggregate. FRA 
invited comments concerning the extent to which existing designs of 
passenger cars could not comply with the proposed requirement, noting 
that modifications to the proposal may be necessary based on the 
information supplied. Further, as a long-term approach, FRA explained 
that it is investigating an emergency evacuation performance 
requirement similar to that used in commercial aviation where a 
sufficient number of emergency exits must be provided to evacuate the 
maximum passenger load in a specified time for various types of 
emergency situations.
    In its comments on the 1997 NPRM, APTA stated that the proposed 
requirement would eliminate certain types of cars as well as certain 
desirable car design safety features. Specifically, Amtrak would not be 
able to procure Viewliner cars and NJT would not be able to increase 
the number of Comet IV cab cars with extra structural protection for 
train operators, according to APTA. APTA recommended that the rule text 
be modified to include passenger car end doors in the calculation of 
the required number of door exits. APTA believed this would encourage 
structural changes that involve the elimination of a side door to 
provide additional protection to train operators and allow Amtrak to 
continue its Viewliner cars in service.
    Amtrak, in commenting on the proposal, expressed particular concern 
that the proposed requirement would prevent the future construction of 
its Bi-Level Superliner equipment in a configuration that maximizes the 
equipment's economic performance. Amtrak noted that its current policy 
calls for equipping every window in such equipment with at least one 
emergency pane, and that the proposed requirement would not take that 
into consideration. Amtrak supported APTA's recommended modification to 
the rule text.
    The NARP also questioned the proposed side exterior door 
requirement for passenger cars. The NARP noted that the most common way 
to exit a car in an emergency is through the car's end doors, and it 
suggested that emergency window exits are probably more reliable than 
additional doors, believing the

[[Page 25551]]

doors are more likely to be rendered inoperable. The NARP stated that 
research should focus on the relationship between a car's seating 
capacity and layout and its emergency-exit capacity. The NARP opposed 
requiring four doors on a 44-foot Talgo car, and saw little benefit 
from adding additional doors to a Superliner dining car without a 
costly stairwell installation. The NARP asserted that a requirement for 
four side doors may be economically fatal for a single-level dining 
car, and advised instead that one side door may be provided in the 
hallway opposite the kitchen and a second side door placed in the 
kitchen.
    In commenting on the proposal, WDOT believed it not appropriate to 
require four side doors on a 44-foot Talgo passenger car, which is 
approximately half the length of conventional passenger cars. WDOT 
stated that a Talgo passenger car has two exterior doors for a maximum 
of 36 people in each car, while an Amtrak Horizon coach has four 
exterior doors and seats 72 passengers. WDOT maintained that the rule 
should reflect these differences or provide clear, concise performance-
based standards in the alternative. In this regard, WDOT found the term 
``functional equivalent'' as used in the rule to be vague and in need 
of better definition. Further, WDOT commented that, traditionally, 
dining and bistro cars have not had exterior side doors; and requiring 
such doors in these cars would significantly decrease the amount of 
available dining space, decrease revenue-generating space, and add 
substantial costs. WDOT recommended FRA remove dining and bistro cars 
from any exterior side door requirement as it would decrease the amount 
of available dining space and thereby reduce passenger convenience, 
comfort and satisfaction. Talgo similarly commented that the proposed 
requirement should be modified to state that the functional equivalent 
of four side doors in a car of conventional length is two side doors in 
a car of half the length, and that dining and bistro cars be exempted 
from any requirement.
    In response to the proposal in the NPRM, Bombardier recommended 
that the wording of the rule be changed to require that each passenger 
car have a minimum of two side doors. Bombardier noted that on Amtrak's 
high-speed trainsets (HST), the passenger cars that will be positioned 
next to the power cars are equipped with only two exterior side doors, 
both of which are located on the end nearest to the power car. In the 
event of an evacuation, Bombardier explained that passengers could exit 
through those side doors as well as through the door at the opposite 
end of the car. Bombardier believed the use of such end doors should be 
considered in determining the time needed to evacuate a passenger car, 
and it noted in this regard that intercity passenger cars generally 
carry fewer passengers than commuter cars.
    Based on the comments received, FRA has decided to modify the 
requirement for exterior side doors on Tier I passenger cars ordered on 
or after September 8, 2000 or placed in service for the first time on 
or after September 9, 2002, and for any Tier II passenger car placed in 
service. The final rule requires that each such passenger car have a 
minimum of two exterior side doors, and each door must have a minimum 
clear opening of 30 inches horizontally by 74 inches vertically. Since 
the minimum number of required side doors has been reduced from that 
proposed in the NPRM, this provision should not hinder railroads from 
removing the locomotive engineer's exterior side door in cab car and MU 
locomotive control compartments for purposes of adding to the 
structural integrity of the equipment. As the BLE raised in its 
comments on the rule, removing this side door allows for a continuous 
side sill structure along the control compartment, thereby enhancing 
the compartment's structural integrity and reducing the risk the 
compartment will be crushed in a corner or side impact. A dining car or 
other food service car is subject to the side door requirement as a 
passenger car under this rule, since FRA believes that all passenger 
cars must have exterior side doorway openings to allow for passenger 
and crew escape in a life-threatening situation, and also permit 
emergency rescue access.
    Unlike the proposed rule, FRA has specified the dimensions of the 
doorway opening in inches rather than retain the language referencing a 
95th-percentile adult male. This modification clarifies the rule for 
the regulated community in that what constituted a 95th-percentile 
adult male was originally not defined. FRA believes that a doorway with 
a minimum clear opening of 30 inches horizontally by 74 inches 
vertically will provide passage for a large, fully-clothed person and 
accommodate emergency response personnel equipped with fire and rescue 
gear. For instance, see the discussion below of Sec. 238.113 (Emergency 
window exits) for detail on the sizes of adult backboards used by 
emergency responders to evacuate injured persons. FRA has specified the 
vertical dimension of 74 inches based on the height of the 95th-
percentile adult male (72.8 inches) stated in Table 2 of Public Health 
Service Publication No. 1000, Series 11, No. 8, ``Weight, Height, and 
Selected Body Dimensions of Adults,'' June 1965. (A copy of this 
document has been placed in the public docket for this rulemaking.) The 
stated height of 72.8 inches was recorded for adult males not wearing 
shoes, and FRA has adjusted for this. FRA did not find this Public 
Health Service Publication that useful for purposes of specifying a 
horizontal dimension of the doorway as the stated body dimensions were, 
in effect, recorded without clothing (see page 5)--and of course did 
not address the size of equipment carried by emergency response 
personnel. FRA notes that the Americans with Disabilities Act (ADA) 
Accessibility Specifications for Transportation Vehicles also contain 
requirements for doorway width clearance (See 49 CFR part 38). These 
ADA requirements apply by their own force independent of the 
requirements of this rule.
    Further, unlike the proposed rule, the final rule no longer 
provides that a passenger car may have the functional equivalent of the 
specified number of side doors. Each passenger car must have at least 
two separate, exterior side doorway openings. This will increase the 
likelihood that at least one of a passenger car's side doorway openings 
will allow passage in the event a train collision or derailment results 
in either, or both, structural damage to--or blockage of--the door. In 
this regard, railroads should consider where the passenger car side 
doors are located so as to facilitate passenger and crew escape in a 
life-threatening situation.
    FRA reemphasizes that this requirement is only an interim measure 
that will prevent passenger cars from being introduced into service 
without side exterior doors. In Phase II of the rulemaking, FRA will 
focus on formulating a systems approach to emergency egress that 
provides for a sufficient number of emergency exits to evacuate the 
maximum passenger car load in a specified time for various types of 
emergency situations. FRA will evaluate with the Working Group whether 
APTA's recommended approach to emergency egress under development in 
APTA's PRESS Task Force should be incorporated into the Phase II 
rulemaking.

G. Fuel Tank Standards

    Locomotive diesel fuel tanks are vulnerable to damage from 
collisions, derailments, and debris on the roadbed due to their 
location on the underframe and between the trucks of locomotives. 
Damage to the tank frequently results in spilled fuel, creating the 
safety problem

[[Page 25552]]

of an increased risk of fire and the environmental problem of cleanup 
and restoration of the spill site. Although 49 CFR 229.71 does require 
a minimum clearance of 2.5 inches between the top of the rail and the 
lowest point on a part or appliance of a locomotive, such as a fuel 
tank, FRA regulations do not address the safety of fuel tanks in 
particular.
    In 1992, the NTSB issued a report identifying concerns regarding 
safety problems caused by diesel fuel spills from ruptured or punctured 
locomotive fuel tanks. Entitled ``Locomotive Fuel Tank Integrity Safety 
Study,'' the NTSB report cited in particular a collision involving an 
Amtrak train and an MBTA commuter train on December 12, 1990, as both 
trains were entering a station in Boston, Massachusetts. (NTSB Safety 
Study-92/04.) Fuel spilled from a tank which had separated from an 
Amtrak locomotive during the collision. The fuel ignited. Smoke and 
fumes from the burning diesel fuel filled the tunnel, increasing the 
hazard level in the post-crash phase of the accident, and hindering 
emergency response activity. As a result of the safety study, the NTSB 
made several safety recommendations to FRA, including in particular 
that FRA:

    Conduct, in conjunction with the Association of American 
Railroads, General Electric, and the Electro-Motive Division of 
General Motors, research to determine if the locomotive fuel tank 
can be improved to withstand forces encountered in the more severe 
locomotive derailment accidents or if fuel containment can be 
improved to reduce the rate of fuel leakage and fuel ignition. 
Consideration should be given to crash or simulated testing and 
evaluation of recent and proposed design modifications to the 
locomotive fuel tank, including increasing the structural strength 
of end and side wall plates, raising the tank higher above the rail, 
and using internal tank bladders and foam inserts. (Class II, 
Priority Action) (R-92-10)
    Establish, if warranted, minimum performance standards for 
locomotive fuel tanks based on the research called for in 
recommendation R-92-10. (Class III, Longer Term Action) (R-92-11)

The NTSB reiterated Safety Recommendation R-92-10 in a letter to FRA 
dated August 28, 1997, conveying the NTSB's final safety 
recommendations arising from the February 16, 1996, collision between a 
MARC commuter train and an Amtrak passenger train. During the 
collision, the fuel tank on the lead Amtrak locomotive ruptured 
catastrophically. The fuel sprayed into the exposed interior of the 
MARC cab control car and ignited, engulfing the car. (Letter at 12.)
    As explained in FRA's report to Congress on locomotive 
crashworthiness and working conditions, FRA believes that fuel tank 
design has a direct impact on safety. Minimum performance standards for 
locomotive fuel tanks should be included in Federal safety regulations. 
Accordingly, FRA proposed in the 1997 NPRM that AAR Recommended 
Practice No. 506 (RP-506), Performance Requirements for Diesel-Electric 
Locomotive Fuel Tanks, be incorporated into the rule as the external 
fuel tank requirements for Tier I passenger locomotives. FRA believes 
that RP-506 represents a good, interim safety standard for Tier I 
passenger locomotives. In the final rule, FRA has restated the 
requirements of RP-506 as Appendix D to part 238, as explained below, 
and has thereby incorporated it into the final rule.
    FRA does note that further study may yield additional safety 
improvements for locomotive fuel tank design, and in September of 1997 
FRA convened a Locomotive Crashworthiness Working Group of the Railroad 
Safety Advisory Committee (RSAC) to develop standards regarding a broad 
range of crashworthiness issues for both passenger and freight 
locomotives, including fuel tanks. Freight locomotive fuel tanks can 
cause a risk to passengers in the event of a train-to-train collision 
involving a passenger and a freight train. Therefore, in addition to 
the economy that can be achieved from standard fuel tank design 
requirements for the entire industry, industry-wide design requirements 
benefit both public and employee safety. Based on currently available 
information through the Locomotive Crashworthiness Working Group, it 
appears that locomotives built with AAR RP-506-compliant fuel tanks are 
performing well in derailments and highway-rail crossing collisions.
    In its comments on the proposed rule, the NTSB agreed that external 
fuel tanks on Tier I locomotives should incorporate at a minimum, and 
on an interim basis, RP-506. Yet, the NTSB believed that more demanding 
safety standards for passenger locomotives be included in the permanent 
Tier I fuel tank regulations, specifically: higher ground clearance, 
compartmentalization, and a bottom skid plate. The NTSB noted that the 
advantages of higher fuel tank ground clearance were shown in Amtrak 
derailments in Kingman, Arizona, and Garden City, Georgia. According to 
the NTSB, investigation of both accidents revealed that essentially no 
fuel loss occurred in the involved locomotive units (GE Models P40 and 
P42), despite a substantial accumulation of debris beneath the fuel 
tanks that may have otherwise damaged current, conventional frame-
suspended fuel tanks. The NTSB attributed the maintenance of fuel tank 
integrity to higher than typical fuel tank ground clearance, not found 
in conventionally designed, frame-suspended fuel tanks. Accordingly, 
the NTSB specifically recommended that fuel tank regulations should 
require higher ground clearance for both Tier I and Tier II operations. 
In light of the strong potential safety benefits associated with higher 
locomotive fuel tank ground clearance, FRA will carefully consider with 
the Working Group how best to implement the NTSB's recommendation in 
Phase II of this rulemaking.
    In addition, FRA invited comments whether the proposed rule should 
require that locomotive fuel tanks be compartmentalized. The Working 
Group specifically discussed requiring whether the interior of fuel 
tanks be divided into a minimum of four separate compartments so that a 
penetration in the exterior skin of any one compartment results in loss 
of fuel only from that compartment. The Working Group recommended that 
such a requirement be addressed in the second phase of the rulemaking, 
to allow for additional research to remedy fuel feeding disruptions 
that may result from the compartmentalization of fuel tanks. Commenters 
were therefore requested to provide the results of specific research 
and operating experience showing how compartmentalization can be 
practically accomplished. Commenters were also asked to explain why the 
issue of compartmentalization should or should not be addressed in the 
final rule of this first phase of the rulemaking.
    The NTSB commented that it supported continued research for fuel 
tank compartmentalization to remedy fuel loss during derailments. It 
stated that compartmentalization is required in aviation applications, 
where fuel tanks within the airframe contour must be able to resist 
rupture and retain fuel under inertial forces prescribed for emergency 
landing conditions (citing 14 CFR 25.963). Therefore, research should 
be conducted to determine if similar successes can be attained in 
railroad application, according to the NTSB. The BLE also commented 
that it supports requirements for compartmentalized fuel tanks on all 
passenger locomotives. Noting that diesel fires create devastating 
results in passenger train accidents, the BLE believed every effort 
should be made to avoid them, including using the most advanced 
technology possible. Further, APTA commented that it believes fuel tank 
compartmentalization has the potential to reduce the amount of fuel

[[Page 25553]]

spilled in a railroad accident; recommended that FRA consider requiring 
compartmentalized fuel tanks on new locomotives if the technical 
difficulties resulting in interruptions in fuel flow are resolved; and 
suggested that FRA make a priority to resolve these technical 
difficulties. In accordance with these comments, FRA will carefully 
consider with the Working Group in Phase II of the rulemaking a 
requirement to compartmentalize fuel tanks on new locomotives, drawing 
upon research conducted and experience gained in the interim through 
the Locomotive Crashworthiness Working Group and the APTA PRESS Task 
Force.

H. Train Interior Safety

    Based on previous research results, the interior passenger 
protection requirements for Tier I and II passenger equipment rely on 
``compartmentalization'' as a passenger protection strategy. Such a 
strategy has the advantages of being passive, i.e., requiring no action 
to be taken on the part of the occupants, of being effective for a 
range of occupant sizes, and potentially being effective in a wide 
range of interior configurations. Research results indicate that during 
a collision the interior environment of a passenger coach car is 
substantially less hostile than the interiors of automobiles and 
aircraft. Owing to this lower hostility in a collision environment, the 
interior of a typical passenger coach car can provide a level of 
protection to passengers without active restraints at least as 
effective in preventing fatality as that protection afforded to 
automobile and transport aircraft passengers with active restraints. 
See the discussion on train interior safety in the NPRM for more 
detail. 62 FR 49745-49749.
    Conclusions from the research previously conducted on passenger 
protection in train collisions show that lap belts and shoulder 
restraints, if used, provide the highest level of occupant protection 
of those protection strategies studied--greater than the level of 
protection afforded by compartmentalization. However, as noted in the 
NPRM, FRA believes that more research is necessary to determine the 
feasibility and effectiveness of these active restraints, as well as 
the impact on seat design and strength necessary to support the loads 
associated with use of the restraints. In this regard, FRA requested 
information and comment from interested parties whether there is any 
existing research or experience which would justify active seat 
restraints in this phase of the rulemaking. See 62 FR 49745.
    In comments on the NPRM, Simula Technologies, Inc., (Simula) stated 
that there may be a potential for a higher level of occupant protection 
offered by passive or active restraints than by compartmentalization. 
Simula noted that cost effectiveness considerations differ when 
considering the application of occupant protection strategies to a 
train crew as compared to passengers. For instance, it believed that 
the relatively high expense of passive restraints may be justified for 
one or two crewmembers in a particularly severe environment--for 
instance, a locomotive cab. Simula agreed with FRA that more research 
is needed to determine the most cost effective means of providing 
occupant safety improvements.
    APTA, in its comments on the NPRM, believed that FRA has taken the 
correct approach in not mandating active seat restraints in this stage 
of the rulemaking. APTA found accurate the description of the physics 
of passenger motion during a collision which was contained in the 
preamble of the NPRM. APTA noted that active seat restraints provide 
the most benefit in high passenger deceleration situations, such as in 
automobile collisions; whereas, in the case of the low decelerations of 
passenger train collisions, other types of protection measures such as 
compartmentalization to minimize the distance a passenger travels 
before striking an interior surface and padding of interior surfaces 
can be as effective as active seat restraints in protecting passengers 
from secondary collisions.
    In its comments on the NPRM, the BRC stated that, ideally, 
passenger equipment should have seat belts or other restraints to keep 
occupants from striking seats from behind or striking other interior 
surfaces and occupants. The BRC believed this to be a true cause of 
serious injury and death during rapid decelerations in collisions and 
derailments. The BRC further commented that a seat must be strong 
enough to hold an occupant utilizing such restraints and yet resist the 
force(s) of other unrestrained occupants striking the seat. In 
addition, a member of the public commented that Amtrak should provide 
its passengers with lap belts and shoulder harnesses, noting that they 
can reduce injuries to all occupants when used.
    FRA has continued to pursue research into implementing seat belts 
and shoulder restraints in intercity and commuter passenger equipment. 
The purpose of this research is to develop the information required by 
FRA to determine if occupant restraints should be required in future 
regulations. This research is being conducted in three steps: 
preliminary design studies; design development; and engineering 
modeling, construction, and testing. The first step of the research has 
been completed. Principal conclusions from the research to date are 
that an existing inter-city passenger coach seat can be modified to 
accept lap and shoulder belts. In particular, for Amtrak's traditional 
seat design, appropriate modification of the connections between the 
seat and floor, and between the seat pan and seat back, allow it to 
support the loads associated with two restrained 95th-percentile adult 
males occupying the seats as well as the loads associated with being 
struck from behind by two 95th-percentile adult males. Such seats can 
be designed to compartmentalize safely an unrestrained single 5th-
percentile adult female striking the seat from behind.
    Existing three-position commuter seat designs cannot be modified to 
accept lap and shoulder belts. The additional loads associated with the 
third restrained and the third unrestrained occupant cause multiple 
structural failures for existing three-position commuter seat designs--
these designs simply fold up under the load. In order to meet weight 
requirements, advanced structural materials and fabrication techniques 
are likely to be required to develop a three-position commuter seat 
design which can support the loads associated with three restrained 
95th-percentile adult males in the seats and the loads associated with 
being struck from behind the seats by three 95th-percentile adult 
males.
    For the intercity passenger coach seat, FRA currently plans to 
complete work on the details of the necessary modifications to Amtrak's 
traditional seat design, modify accordingly four to six pairs of seats 
for testing, and then dynamically sled test these seats. For the 
commuter seat, a study is planned to develop an engineering model 
design of a three-position commuter car passenger seat which 
incorporates lap and shoulder belts. Composite structures and advanced 
manufacturing techniques will be considered in this study. Principal 
design considerations include the need to address secondary collision 
loads, as well as manufacturing and maintenance costs, weight, and 
durability.
    In the second phase of the rulemaking, FRA and the Working Group 
will reevaluate the feasibility and effectiveness of requiring active 
restraints such as lap belts and shoulder harnesses in passenger 
equipment, based on the results of the ongoing research.

[[Page 25554]]

I. Fire Safety

    In 1984, FRA published guidelines recommending test methods and 
performance criteria for the flammability, smoke emission, and fire 
endurance characteristics for categories and functions of materials to 
be used in the construction of new or rebuilt rail passenger equipment. 
See 49 FR 33076, Aug. 20, 1984; 49 FR 44582, Nov. 7, 1984. The 
guidelines were originally developed by the Volpe Center for the Urban 
Mass Transit Administration (UMTA now FTA) of DOT in the late 1970s, 
and were intended for application to rail transit vehicles. See 47 FR 
53559, Nov. 26, 1982; 49 FR 32482, Aug. 14, 1984. FRA recommended 
applying the guidelines to intercity and commuter rail cars, due to the 
similarity of use for many of the materials in these cars.
    The intent of the guidelines is to prevent fire ignition and to 
maximize the time available for passenger evacuation if fire does 
occur. FRA later reissued the guidelines in 1989 to update the 
recommended test methods. See 54 FR 1837, Jan. 17, 1989. Test methods 
cited in the FRA guidelines include those of the American Society for 
Testing and Materials (ASTM) and the Federal Aviation Administration 
(FAA). In particular, the ASTM and FAA testing methods provide a useful 
screening device to identify materials that are especially hazardous.
    FRA sought comments in the ANPRM on the need for more thorough 
guidelines or Federal regulations concerning fire safety. See 61 FR 
30696. FRA noted that fire resistance, detection, and suppression 
technologies have all advanced since the guidelines were first 
published. In addition, FRA explained that a trend toward a systems 
approach to fire safety is evident in most countries with modern rail 
systems. In response, the National Fire Protection Association (NFPA) 
commented that perhaps more thorough guidelines are needed, or at least 
should be evaluated. Fire Cause Analysis also responded that, at a 
minimum, more in depth guidelines based on current system safety 
procedures and available fire safety engineering techniques are needed. 
The commenter noted in particular that Federal maintenance standards 
related to fire safety are necessary to ensure that materials carefully 
qualified for use in rail passenger vehicles because of their fire 
safety characteristics are not replaced with either substandard 
materials or materials whose origin and fire performance cannot be 
determined.
    The 1997 NPRM addressed fire safety by proposing to make FRA's fire 
safety guidelines mandatory for the construction of new passenger 
equipment as well as the refurbishing of existing equipment. See 62 FR 
49803. As explained below in the discussion of this final rule, FRA has 
simplified and revised the table of tests and performance criteria for 
the flammability and smoke emission characteristics of materials used 
in passenger cars and locomotive cabs. In addition, FRA has clarified 
in the final rule the application of the required tests and performance 
criteria. As proposed in the NPRM, the final rule also furthers fire 
safety through a fire protection plan and program to be carried out by 
each operating railroad, which will include conducting a fire safety 
analysis of existing passenger equipment and taking appropriate action 
to reduce the risk of personal injuries.
    As noted in the NPRM, the National Institute of Standards and 
Technology (NIST) of the United States Department of Commerce is 
conducting research under the direction of FRA and the Volpe Center 
involving the fire safety of rail passenger vehicles. The NIST project 
is investigating the use of alternative fire testing methods and 
computer hazard analysis models to identify and evaluate approaches to 
passenger train fire safety. The evaluation is examining the effects 
and tradeoffs of passenger car and system design (including materials), 
fire detection and suppression systems, and passenger egress time. A 
peer review committee has been established to provide project guidance 
and review interim results and reports. The committee includes 
representatives from FRA, the Volpe Center, the NFPA, builders of rail 
passenger vehicles, producers of materials, Amtrak and commuter 
railroads, and testing laboratories.
    In the first phase of the NIST project, selected materials which 
satisfy the testing methods referenced in FRA's fire safety guidelines 
were evaluated using the ASTM E1354 Cone Calorimeter.\1\ The Cone 
Calorimeter provides a measurement of heat release rate (the amount of 
energy that a material produces while burning), specimen mass loss, 
smoke production, and combustion gases. For a given confined space such 
as a rail car interior, the air temperature and risk of harm to 
passengers are increased as the heat release rate increases. As a 
result, even if passengers do not come in direct contact with a fire, 
they may likely be injured from the high temperatures, high heat 
fluxes, and large amounts of toxic gases emitted by materials involved 
in the fire. The results of the Phase I tests showed a strong 
correlation between the FRA-cited test data and the Cone Calorimeter 
test data.
---------------------------------------------------------------------------

    \1\ ``Fire Safety of Passenger Trains: Phase I Material 
Evaluation (Cone Calorimeter).'' (DOT/FRA/ORD/-98/01-DOT-VNTSC-FRA-
98-2, January, 1999). A copy of the report has also been placed in 
the public docket of this rulemaking.
---------------------------------------------------------------------------

    Phase I test data were used in the second phase of the NIST project 
to perform a fire hazard analysis of selected passenger train fire 
scenarios. Also included in this analysis were data obtained from tests 
of larger interior components, including seat assemblies, using the 
ASTM E 1537 Furniture Calorimeter. The analysis employed computer 
modeling to assess the impact on passenger train fire safety for a 
range of construction materials and system design. The interim report 
documenting Phase II is in final preparation by NIST. In the final 
phase of the project, selected real-scale proof tests using an Amfleet 
coach rail car and interior assemblies will be performed to verify the 
small-scale (bench-scale) criteria and hazard analysis studies in 
actual end use configurations.
    Overall, the NIST research effort follows upon FRA-sponsored 
studies by the National Bureau of Standards in 1984 and NIST in 1993 
which noted, among their findings, that the performance of individual 
components of a rail passenger car in a real-world fire environment may 
be different from that experienced in bench-scale tests due to vehicle 
geometry and materials interaction.\2\ The results of the NIST research 
project will help in developing a broad set of performance criteria for 
materials using the Cone Calorimeter and the Furniture Calorimeter in a 
context similar to that provided generally in the table of FRA fire 
safety requirements contained in Appendix B to part 238. In addition, 
unlike data derived from most test methods referenced in Appendix B, 
heat release rate and other measurements obtained from the Cone 
Calorimeter and the Furniture Calorimeter can be used in a fire 
modeling methodology to evaluate the contribution of materials to the 
overall fire safety of a passenger train. Although FRA has targeted for 
consideration in the second phase of the

[[Page 25555]]

rulemaking a broad set of performance criteria employing the Cone 
Calorimeter and Furniture Calorimeter for materials used in passenger 
cars and locomotive cabs, FRA has introduced use of the Cone 
Calorimeter and Furniture Calorimeter in a limited manner in this final 
rule as explained below in the discussion of Appendix B to part 238.
---------------------------------------------------------------------------

    \2\ ``Fire Tests of Amtrak Passenger Rail Vehicle Interiors.'' 
(NBS Technical Note 1193, May 1984); ``Fire Safety of Passenger 
Trains: A Review of U.S. and Foreign Approaches.'' (DOT/FRA/ORD-93/
23--DOT-VNTSC-FRA-93-26, December, 1993). The 1993 report is 
available to the public through the National Technical Information 
Service, Springfield, VA 22161. A copy of both reports have been 
placed in the public docket for this rulemaking.
---------------------------------------------------------------------------

    FRA notes that the ASTM has developed a standard which describes 
how to evaluate fire hazard assessment techniques (ASTM E 1546, Guide 
for the Development of Fire Hazard Assessment Standards). An ASTM 
group, the E-5.17 Subcommittee on Transportation, is currently 
completing a document entitled ``Standard Guide for Fire Hazard 
Assessment of Rail Passenger Vehicles.'' The proposed guide is intended 
to provide an alternative approach to ensuring an equivalent level of 
fire safety using a performance-based approach which examines fire 
scenarios, as well as design considerations, to evaluate the potential 
fire hazard of a rail transportation vehicle. One of the principal 
issues related to the proposed guide is that calculation methods are 
suggested which use models that have not been validated for application 
to rail cars. In this regard, the results of the NIST fire safety 
research will be helpful for the ASTM subcommittee, as NIST is using 
the Hazard I computer model to develop correlations between small-scale 
tests of materials and full-scale tests of rail cars.
    In the NPRM, FRA explained that the NFPA publishes a standard (NFPA 
130) covering fire protection requirements for fixed guideway transit 
systems and for life safety from fire in transit stations, trainways, 
vehicles, and outdoor maintenance and storage areas. See 62 FR 49744-5. 
(A copy of the 1997 edition of this standard has been placed in the 
public docket for this rulemaking.) However, this standard has not 
historically been applied to passenger railroad systems, including 
those that provide commuter service (NFPA 130 1-1.2). FRA noted that an 
APTA representative on the Working Group who is a member of the NFPA 
initiated an NFPA-sponsored task force to revise the scope of NFPA 130 
to cover all rail passenger transportation systems, including intercity 
and commuter rail, and revise other provisions as necessary. The NFPA 
task force met several times in 1997 and 1998, and submitted 
recommended revisions to the NFPA 130 Committee in August, 1998. 
Although the NFPA 130 Committee accepted the task force recommendations 
in principle, the standard revision approval process will not be 
complete until late 1999.
    In its comments on the NPRM, the NFPA urged FRA to adopt NFPA 130 
upon completion of its revision. The NFPA cited the National Technology 
Transfer and Advancement Act of 1995, Pub. L. 104-113, and one of its 
provisions which requires, in general, that Federal agencies ``use 
technical standards that are developed or adopted by voluntary 
consensus standards bodies'' (Section 12, paragraph (d)(1)). In the 
second phase of this rulemaking, FRA will consider with the Working 
Group the incorporation of NFPA 130, as revised, into this rule.
    In response to the NPRM, FRA received a number of other comments on 
the provisions of the rule related to fire safety. Those comments on 
the proposed fire protection plan and program are noted in particular, 
below, in the discussion of 49 C.F.R. Sec. 238.103 in the final rule. 
In regard to the proposed table of tests and performance criteria for 
the flammability and smoke emission characteristics of materials used 
in passenger cars and locomotive cabs contained in Appendix B to part 
238, Fire Cause Analysis commented on the advisability of making such 
tests and performance criteria mandatory without considerable and 
detailed enabling language. Fire Cause Analysis noted in particular 
that the table of tests and performance criteria in Appendix B 
contained confusing and overlapping component and function categories 
for materials; that application of the tests and performance criteria 
to ``small parts'' requires special consideration to provide 
flexibility for car builders; and that the fire performance of 
electrical wiring and cable was not expressly addressed in the NPRM, 
although addressed by NFPA 130.
    A member of the public commented that he considered FRA's fire 
safety guidelines good in some but not all respects. The commenter 
stated in particular that the current acceptance levels of smoke 
emission are inadequate to protect passengers from toxic levels of 
smoke; and that permitting glazing and lighting lenses to have a flame 
spread index of 100 with flaming running and flaming dripping is not 
justified based on the location of these objects, ease of ignition, and 
Btu content of polycarbonate. Nonetheless, the commenter recommended 
adoption of the guidelines into law, noting that some vendors, car 
builders, and agencies operating rail equipment have not taken the 
guidelines seriously. Otherwise, the commenter believed that the fire 
safety guidelines will be discounted.
    APTA, in its comments on the NPRM, supported the proposed materials 
selection criteria for new equipment (as well as the proposed fire 
safety program for new equipment discussed below). APTA also 
recommended that FRA consider updating the fire safety standards based 
on the work of the NFPA 130 task force and the research being conducted 
by the NIST. The BRC, in its comments on the NPRM, stated that interior 
materials in passenger equipment must be required to meet strict 
standards for flammability and smoke emission. The BRC believed that 
compliance with the current guidelines alone is insufficient for 
safety, and that additional technology, preventative measures, and fire 
safety standards must be considered.
    In the final rule, FRA has not significantly changed the table of 
test methods and performance criteria for the flammability and smoke 
emission characteristics of materials used in passenger cars and 
locomotive cabs, as contained in Appendix B to part 238. FRA has sought 
to maintain the current high levels of safety provided by the fire 
safety guidelines, while developing a more workable framework for their 
use as a regulation. In fact, as part of the NIST fire safety research, 
specific input on the 1989 FRA fire safety guidelines was solicited 
from rail system operators, car builders, and consultants at a workshop 
held at the NIST Building and Fire Research Lab (BFRL) in July, 1997. 
(The minutes of that workshop are contained in Follow-Up Workshop 
Notes.\3\ ) This input was used to help simplify and revise the table 
of tests and performance criteria contained in Appendix B. In summary, 
the specific changes FRA has made to the table in the final rule 
include:
---------------------------------------------------------------------------

    \3\ ``Follow-Up Notes: NIST/CFR FRA Project, Meeting/Workshop of 
7/23/97.'' September 15, 1997. Prepared by J. Zicherman. A copy of 
this document has been placed in the public docket for this 
rulemaking.
---------------------------------------------------------------------------

     Reorganizing table component and function categories;
     Adding a dynamic testing requirement for cushions;
     Adding a new test method for evaluating seat assemblies;
     Providing a test exception and test alternative for small 
component parts;
     Adding express requirements for wire and cable testing;
     Updating test methods for elastomers;
     Providing an alternative test method for smoke generation;
     Adding express requirements for structural assemblies 
other than floors; and
     Renumbering and adding notes to the table to reflect the 
changes.


[[Page 25556]]


The discussion of Appendix B to part 238, below, provides a detailed 
explanation of the changes made to the table of test methods and 
performance criteria for the flammability and smoke emission 
characteristics of materials used in passenger cars and locomotive 
cabs.

VI. Inspection and Testing of Brake Systems and Mechanical 
Components

A. Background Prior to 1997 NPRM

    In 1992, Congress amended the Federal rail safety laws by adding 
certain statutory mandates related to power brake safety. These 
amendments specifically address the revision of the power brake 
regulations and state in pertinent part:

    (r) POWER BRAKE SAFETY.--(1) The Secretary shall conduct a 
review of the Department of Transportation's rules with respect to 
railroad power brakes, and not later than December 31, 1993, shall 
revise such rules based on such safety data as may be presented 
during that review.
* * * * *
Pub. L. No. 102-365, Sec. 7; codified at 49 U.S.C. 20141, superseding 
45 U.S.C. 431(r).
    In response to the statutory mandate, various recommendations to 
improve power brake safety, and due to its own determination that the 
power brake regulations were in need of revision, FRA published an 
ANPRM on December 31, 1992, concerning railroad power brake safety. See 
57 FR 62546. The ANPRM provided background information and presented 
questions on various subjects related to intercity passenger and 
commuter train operations, including: training of testing and 
inspection personnel; electronic braking systems; cleaning, oiling, 
testing, and stenciling (COT&S) requirements; performance of brake 
inspections; and high speed passenger train brakes. Following 
publication of the ANPRM, FRA conducted a series of public workshops. 
The ANPRM and the public workshops were intended as fact-finding tools 
to elicit views of those persons outside FRA charged with ensuring 
compliance with the power brake regulations on a day-to-day basis.
    Furthermore, on July 26, 1993, the NTSB made the following 
recommendation to FRA: ``Amend the power brake regulations, 49 Code of 
Federal Regulations 232.12, to provide appropriate guidelines for 
inspecting brake equipment on modern passenger cars.'' (R-93-16). The 
recommendation arose out of the NTSB's investigation of the December 
17, 1991, derailment of an Amtrak passenger train in Palatka, Florida. 
The derailed equipment struck two homes and blocked a street north of 
the Palatka station. The derailment resulted in eleven passengers 
sustaining serious injuries and 41 others receiving minor injuries. In 
addition, five members of the operating crew and four onboard service 
personnel received minor injuries. By letter dated September 16, 1993, 
FRA told the NTSB that it was in the process of reviewing and rewriting 
the power brake regulations and would consider the NTSB's 
recommendation during the process.
    Based on comments and information received, FRA published a Notice 
of Proposed Rulemaking in 1994 (1994 NPRM) regarding revision of the 
power brake regulations. The 1994 NPRM contained specific requirements 
related to intercity passenger and commuter train operations, 
including: general design requirements; movement of defective 
equipment; employee qualifications; inspection and testing of brake 
systems and mechanical components; single car testing requirements and 
periodic maintenance; operating requirements; and requirements for the 
introduction of new train brake system technology. See 59 FR 47676, 
47722-53, September, 16, 1994. Following publication of the 1994 NPRM, 
FRA held a series of public hearings in 1994 to allow interested 
parties the opportunity to comment on specific issues addressed in the 
1994 NPRM. Due to the strong objections raised by a large number of 
commenters, FRA announced by notice published on January 17, 1995, that 
it would defer action on the 1994 NPRM and permit the submission of 
additional comments prior to making a determination as to how it would 
proceed in this matter. See 60 FR 3375.
    After review of all the comments submitted, FRA determined that in 
order to limit the number of issues to be examined and developed in any 
one proceeding it would proceed with the revision of the power brake 
regulations via three separate processes. In light of the testimony and 
comments received on the 1994 NPRM, emphasizing the differences between 
passenger and freight operations and the brake and mechanical equipment 
utilized by the two, FRA decided to separate passenger equipment power 
brake and mechanical standards from freight equipment power brake 
standards.
    As passenger equipment power brake and mechanical standards are a 
logical subset of passenger equipment safety standards (see 49 U.S.C. 
20133(c)), FRA requested the Passenger Equipment Safety Standards 
Working Group to assist FRA in developing appropriate power brake and 
mechanical standards for passenger equipment. The 1997 NPRM, upon which 
this final rule is based, was developed by FRA in consultation with 
this Working Group.
    In addition, FRA determined that a second NPRM covering freight 
equipment power brake standards would be developed with the assistance 
of FRA's RSAC. See 61 FR 29164, June 7, 1996. Furthermore, in the 
interest of public safety and due to statutory as well as internal 
commitments, FRA determined that it would separate the issues related 
to two-way end-of-train-telemetry devices from both the passenger and 
freight issues. FRA convened a public regulatory conference and 
published a final rule on two-way end-of-train devices on January 2, 
1997. See 62 FR 278.
    Beginning in December of 1995, the Passenger Equipment Safety 
Standards Working Group adopted the additional task of attempting to 
develop power brake and mechanical inspection and maintenance standards 
applicable to intercity passenger and commuter train operations and 
equipment. The Working Group met on four separate occasions, for a 
total of ten days of meetings, with a good portion of these meetings 
being devoted to discussion of power brake and mechanical inspection 
and maintenance issues. From the outset, a majority of the members, as 
well as FRA, believed that any requirements developed by the group 
regarding the inspection and testing of the brake and mechanical 
equipment should not vary significantly from the current requirements 
and should be consistent with current industry practice.
    FRA's accident/incident data related to intercity passenger and 
commuter train operations support the assumption that the current 
practices of these operations in the area of power brake inspection, 
testing, and maintenance are for the most part sufficient to ensure the 
safety of the public. Between January 1, 1990 and October 31, 1996, 
there were only five brake related accidents involving commuter and 
intercity passenger railroad equipment. No casualties resulted from any 
of these accidents and the total damage to railroad equipment totaled 
approximately $650,000, or $96,000 annually. In addition, between 
January 1, 1995 and October 31, 1996, FRA inspected approximately 
13,000 commuter and intercity passenger rail units for compliance with 
49 CFR part 232. The defect ratio for these units during this period 
was approximately 0.8 percent. Furthermore, during this same period FRA 
inspected approximately 6,300 locomotives for

[[Page 25557]]

compliance with 49 CFR part 229. The brake defect ratio for these units 
was approximately 4.65 percent. Consequently, the defect ratio for 
brake related defects on locomotives and other passenger equipment 
during this period was approximately 2.08 percent.
    The existing regulations covering the inspection and testing of the 
braking systems on passenger trains are contained in 49 CFR part 232. 
The current regulations do provide some requirements relevant to 
passenger train operations, including: initial terminal inspection and 
testing, intermediate inspections, running tests, and general 
maintenance requirements. See 49 CFR 232.12, 232.13(a), 232.16, and 
232.17. However, most of the existing regulations are written to 
address freight train operations and do not sufficiently address the 
unique operating environment of commuter and intercity passenger train 
operations or the equipment currently being used in those operations. 
Therefore, it has been necessary for FRA to provide interpretations of 
some of the current regulations in order to address these unique 
concerns.
    Currently, all non-MU (multiple unit) commuter trains that do not 
remain connected to a source of compressed air overnight and all MU 
commuter trains equipped with RT-5 or similar brake systems must 
receive an initial terminal inspection of the brake system pursuant to 
Sec. 232.12(c)-(j) prior to the train's first departure on any given 
calendar day. All non-MU commuter trains that remain connected to a 
source of compressed air over-night are permitted to receive an initial 
terminal inspection of the brake system sometime during each 24-hour 
period in which they are used. Furthermore, all intercity passenger 
trains must receive an initial terminal inspection of the brake system 
at the point where they are originally made up and must receive an 
intermediate inspection in accordance with Sec. 232.12(b) every 1,000 
miles.
    There are currently no regulations which specifically require the 
inspection of the mechanical components on passenger equipment. 
Although the current regulations do not contain any mechanical 
inspection requirement of passenger equipment, virtually every 
passenger railroad currently performs some type of daily mechanical 
inspection on its passenger equipment with highly qualified personnel. 
For several years Amtrak has been conducting voluntary mechanical 
safety inspections of passenger train components.
    As noted previously, most of the members of the Working Group 
believed that any requirements developed by the group regarding the 
inspection, testing, and maintenance of the brake and mechanical 
equipment should not vary significantly from the current requirements 
and should be consistent with current industry practice. However, the 
Working Group was unable to reach consensus on any power brake or 
mechanical equipment standards, despite the positing of multiple 
alternatives, use of a facilitator, and the foundation provided by the 
1994 NPRM. The Working Group identified and discussed options with 
which the agency and labor can agree, and others with which FRA and the 
railroads can agree. However, bridging the gap between those various 
options proved elusive. Consequently, as the Working Group could not 
reach any type of consensus on the inspection and testing requirements, 
it was determined that FRA would address these issues unilaterally, 
based on the information and discussions provided by the Working Group 
and the information gathered from the 1994 NPRM.

B. 1997 NPRM on Passenger Safety Equipment Standards

    During the Working Group discussions, labor representatives, 
particularly the BRC, insisted that a comprehensive power brake 
inspection must be performed prior to a train's first run on a given 
calendar day. The BRC also believed that it is necessary for the first 
inspection of the day to determine whether the brake shoes and the disc 
pads actually apply as intended. The BRC further contended that in 
order to perform a comprehensive inspection equivalent to an initial 
terminal inspection the train must be walked or otherwise inspected on 
a car-to-car basis and that these principal inspections should be 
performed only by carmen or other qualified mechanical personnel as 
they are the only employees sufficiently trained to perform the 
inspections. Rail labor representatives also advocated a daily 
inspection of all safety-related mechanical components with pass/fail 
criteria or limits written into the Federal safety standards much like 
the requirements contained in 49 CFR part 215 addressing freight 
equipment.
    Representatives of intercity passenger and commuter railroads 
expressed the desire to have the flexibility to conduct comprehensive 
in-depth inspections of the brake and mechanical system sometime during 
the day in which the equipment is utilized. These parties argued that 
safety would be better served by allowing the railroads the flexibility 
to conduct these inspections on a daily basis as it would allow the 
railroads to conduct the inspections at locations that are more 
conducive to permitting a full inspection of the equipment than many of 
the outlying locations where trains are stationed overnight and where 
the ability to observe all the equipment may be hampered. It was 
further contended that, if the railroads are allowed some flexibility 
in conducting these type of inspections, then the equipment can be 
moved to a location where a fully qualified mechanical inspector can 
perform detailed inspections under optimum conditions.
    Several parties also pointed out that, with proper maintenance, 
``tread brake units'' and other friction brake components, commonly 
used in commuter train operations, are highly reliable and that the 
non-functioning of any individual unit would in no way compromise the 
overall safety of the train. Furthermore, permitting the inspection of 
brake components in the middle of the day, rather than at the beginning 
of the day, involves no greater safety risk to passengers because 
friction brake systems and their components degrade in performance 
based largely on use, and nothing short of a continuous brake 
inspection can guarantee 100-percent performance at all times. Railroad 
representatives suggested an inspection scheme that would permit an in-
depth, comprehensive brake inspection to be performed sometime during 
the day in which the equipment is used with a brake inspection being 
performed prior to the first run of the day verifying the continuity of 
the trainline by performing a set and release on the rear car of the 
train.
    APTA and other passenger railroad representatives strongly 
maintained that specific inspection criteria or limits related to the 
mechanical components of passenger equipment were not necessary. During 
the ongoing meetings of the Working Group, FRA repeatedly requested 
that railroad representatives provide a recommended list of mechanical 
components and criteria for their inspection. These representatives 
consistently responded with very broad requirements basically limited 
to inspections for obvious and visible defects. Although passenger 
railroad representatives did not object to the safety principle of a 
mechanical inspection, they did not want their operations to be bound 
by a rigid list of components and criteria for the inspection.
    Based on consideration of all of the information outlined above, 
FRA published an NPRM on Passenger Equipment Safety Standards on 
September 23, 1997. See 62 FR 49728.

[[Page 25558]]

This NPRM contained specific proposals related to the inspection, 
testing, and maintenance of both the brake and mechanical components on 
passenger equipment. The proposal attempted to balance the concerns of 
rail labor representatives and representatives of intercity and 
commuter railroads.
1. Proposed Brake System Inspections
    In the 1997 NPRM, FRA proposed to abandon the terminology related 
to the power brake inspection and testing requirements contained in the 
current regulations, and proposed to identify various classes of 
inspections based on the duties and type of inspection required. See 62 
FR 49737, 49774-77, 49810-11. FRA believed that this type of 
classification system would avoid confusion with the power brake 
inspection and testing requirements applicable to freight operations 
and would avoid the connotations historically attached to the current 
terminology. FRA also believed that this approach was better suited for 
providing operational flexibility to commuter operations while 
maintaining the safety provided by the current inspection and testing 
requirements. Although FRA proposed a change in the terminology used to 
describe the various power brake inspections and tests, the 
requirements of the inspections and tests closely tracked the current 
requirements with some modifications made to address the unique 
operating environment of, and equipment operated in, commuter and 
intercity passenger train service. Members of the Working Group 
appeared receptive to this kind of classification system and discussed 
various options using some of this terminology. Consequently, FRA 
proposed four different types of brake inspections, ``Class I,'' 
``Class IA,'' ``Class II,'' and ``running brake test,'' that were to be 
performed by commuter and intercity passenger railroads some time 
during the operation of their equipment.
    In the proposal, FRA also divided passenger train operations into 
two distinct types for purposes of brake inspections and testing. FRA 
recognized that there were major differences in the operations of 
commuter or short-distance intercity passenger trains, and long-
distance intercity passenger trains. Commuter and short-distance 
intercity passenger trains tend to operate for fairly short distances 
between passenger stations and generally operate in relatively short 
turn-around service between two terminals several times in any given 
day. In contrast, long-distance intercity passenger trains tend to 
operate for long distances, with trips between the beginning terminal 
and ending terminal taking a day or more and traversing multiple states 
with relatively long distances between passenger stations. 
Consequently, FRA proposed the terms ``commuter train,'' ``short-
distance intercity passenger train,'' and ``long-distance intercity 
passenger train'' in order to identify the inspection and testing 
requirements associated with each. See 62 FR 49737-38, 49774-76, 49810-
11. For the most part, commuter and short-distance intercity passenger 
trains were treated similarly, whereas long-distance intercity 
passenger trains had slightly different proposed inspection and testing 
requirements. In addition, FRA proposed slightly different requirements 
with regard to the movement of defective equipment in long-distance 
intercity passenger trains (see the discussion below on the ``Movement 
of Equipment with Defective Brakes'').
    The proposed Class I brake test basically required an inspection 
similar to an initial terminal inspection as currently described at 
Sec. 232.12(c)-(j), but was somewhat more extensive and specifically 
aimed at the types of equipment being used in commuter and intercity 
passenger train service. See 62 FR 49738-39, 49774-76, 49810. The 
proposed Class I brake test would require an inspection of the 
application and release of the friction brakes on each side of each car 
as well as an inspection of the brake shoes, pads, discs, rigging, 
angle cocks, piston travel, and brake indicators if the equipment is so 
equipped. The Class I brake test would also require testing of the 
communication signal system and the emergency braking control devices. 
In recognition of the advanced technology and various designs used in 
many of these operations, which make observation of the piston travel 
virtually impossible, FRA proposed to permit the inspection of the 
piston travel to be conducted either through direct observation of the 
clearance between the brake shoe and the wheel or by observation of a 
brake actuator. Furthermore, FRA proposed to require a brake pipe 
leakage test only when leakage will affect service performance.
    As FRA proposed that Class I brake tests be comprehensive 
inspections of the braking system, FRA believed that commuter and 
short-distance intercity passenger train operations should be permitted 
some flexibility in conducting these inspections. Consequently, FRA 
proposed that commuter and short-distance intercity passenger train 
operations perform a Class I brake test sometime during the calendar 
day in which the equipment is used. FRA believed that the flexibility 
permitted by the proposed requirement would allow railroads to move 
equipment to locations that are most conducive to the inspection of the 
brake equipment and would allow railroads to combine the daily 
mechanical inspections with the brake inspection for added efficiency.
    In the NPRM, FRA recognized the differences between commuter or 
short-distance intercity operations and long-distance intercity 
passenger train operations. FRA noted that long-distance intercity 
passenger trains do not operate in shorter turn around service over the 
same sections of track on a daily basis for the purpose of transporting 
passengers from major centers of employment. Instead, these trains tend 
to operate for extended periods of time, over long distances with 
greater distances between passenger stations and terminals. Further, 
these trains may operate well over 1,000 miles in any 24 hour period. 
Thus, FRA believed that the opportunity for conducting inspections on 
these trains was somewhat diminished. Therefore, FRA determined that a 
thorough inspection of the braking system on these types of operations 
must be conducted prior to the train's departure from an initial 
starting terminal. Consequently, FRA proposed that a Class I brake 
inspection be performed on long-distance intercity passenger trains 
prior to departure from an initial terminal. See 62 FR 49810. FRA did 
not believe there would be any significant burden placed on these 
operations as the current regulations require that an initial terminal 
inspection be performed at these locations.
    FRA also recognized that these long-distance intercity passenger 
trains could conceivably travel significant distances if Class I 
inspections were required only once every 24 hours the equipment is in 
service as proposed for commuter and short-distance intercity passenger 
trains. Thus, FRA believed that some outside mileage limit had to be 
placed on these trains between brake inspections. Under the current 
regulations a passenger train is permitted to travel no farther than 
1,000 miles from its initial terminal, at which point it must receive 
an intermediate inspection of brakes that includes an application of 
the brakes and the inspection of the brake rigging to ensure it is 
properly secured. See 49 CFR 232.12(b). However, in recognition of the 
improved technology used in passenger train brake systems combined with 
the comprehensive nature of the proposed Class I brake tests and 
mechanical safety inspections being

[[Page 25559]]

performed by highly qualified inspectors, FRA proposed to permit long-
distance passenger trains to travel up to 1,500 miles between Class I 
brake tests. Under FRA's proposal a comprehensive Class I brake test 
would be performed once every calendar day that the equipment is used 
or every 1,500 miles, which ever occurred first. See 62 FR 49739, 
49775, 49810.
    FRA also proposed that the brake inspection and testing intervals 
proposed for long-distance passenger trains apply to all Tier II 
equipment (i.e., equipment operating at speeds greater than 125 mph but 
not exceeding 150 mph), regardless of whether it is used in short-or 
long-distance intercity trains. As FRA's proposal permitted operators 
of Tier II equipment to develop inspection and testing criteria and 
procedures, these operations would be required to develop a brake test 
that is equivalent to a Class I brake test for Tier II equipment. Due 
to the speeds at which this equipment will be allowed to operate, FRA 
believed it was a necessity that an equivalent Class I brake test be 
performed on Tier II equipment before it departs from its initial 
terminal. Similarly, FRA proposed that the equivalent Class I brake 
test be performed every calendar day in which Tier II equipment is used 
or every 1,500 miles, whichever comes first. See 62 FR 49739, 49784, 
49821.
    The proposed Class IA brake test was somewhat less comprehensive 
than the proposed Class I brake test but included a detailed inspection 
of the brake system to verify the continuity of the brake system and 
the proper functioning of the brake valves on each car. A Class IA 
brake test would be similar to the intermediate brake inspection 
currently required for freight trains prescribed at Sec. 232.13(d)(1). 
The proposed Class IA brake test would generally require a walking 
inspection of the set and release of the brakes on each car; however, 
the proposal allowed brake indicators to be used to verify the set and 
release if the railroad determined that operating conditions pose a 
safety hazard to an inspector walking along the train. The Class IA 
brake test also required a leakage test if leakage affects service 
performance, as well as an inspection of: angle cocks; piston travel, 
if determinable; brake indicators; emergency brake control devices; and 
communication of brake pipe pressure changes at the rear of train to 
the controlling locomotive. See 62 FR 49738-39, 49776-77, 49810.
    FRA proposed that a Class IA brake test would be performed prior to 
a commuter or short-distance intercity passenger train's first 
departure on any given day. FRA believed that the proposed Class IA 
brake was sufficiently detailed to ensure the proper functioning of the 
brake system yet not so intensive that it would require individuals to 
perform an inspection for which they are not qualified. Although FRA 
tended to agree with the position advanced by many labor 
representatives that some sort of car-to-car inspection must be made of 
the brake equipment prior to the first run of the day, FRA did not 
agree that it is necessary to perform a full Class I brake test in 
order to ensure the proper functioning of the brake equipment in all 
situations. However, contrary to the position espoused by APTA, FRA 
believed that something more than just a determination that the brakes 
on the rear car set and release is necessary.
    In addition to the proposed Class I and Class IA brake tests, FRA 
also proposed a Class II brake test. The proposed Class II brake test 
would be an inspection intended to verify the continuity of the train 
brake system and would be similar to the intermediate terminal 
inspection currently prescribed at Sec. 232.13(a). A Class II brake 
test basically required a set and release of the brakes on the rear 
car. The proposed Class II test would be required in those 
circumstances where minor changes to a train consist occur, such as the 
change of a control stand, the removal of cars from the consist, the 
addition of previously tested cars, and the situations in which an 
operator first takes control of the train. See 62 FR 49739, 49777, 
49811.
    FRA also proposed that a running brake test be conducted as soon as 
conditions safely permit it to be conducted after a train receives a 
Class I, Class IA, or Class II brake test. FRA believed that this test 
should be conducted in accordance with each railroad's operating rules. 
The proposed ``running brake test'' requirement was similar to the 
``running test'' requirements currently contained at Sec. 232.16. See 
62 FR 49740, 49777, 49811.
2. Proposed Mechanical Inspections
    In the 1997 NPRM, FRA proposed three types of mechanical 
inspections, these included: a calendar day exterior and interior 
inspection, and a periodic inspection. See 62 FR 49771-73, 49807-09. 
The proposed exterior calendar day mechanical inspection for passenger 
cars and unpowered vehicles used in passenger trains was patterned 
after a combination of the current calendar day inspection required for 
locomotives under the Railroad Locomotive Safety Standards and the pre-
departure inspection for freight cars under the Railroad Freight Car 
Safety Standards. See 49 CFR 229.21 and 215.13, respectively. FRA 
proposed that the calendar day mechanical inspection apply to all 
passenger cars and all unpowered vehicles used in passenger trains 
(which includes, e.g., not only coaches, MU locomotives, and cab cars 
but also any other rail rolling equipment used in a passenger train), 
and that all exterior mechanical inspections be performed by highly 
qualified personnel. A mechanical safety inspection of freight cars has 
been a longstanding Federal safety requirement, and FRA believed that 
the lack of a similar requirement for passenger equipment created a 
serious void in the current Federal railroad safety standards.
    Rail labor representatives advocated a daily inspection of all 
safety-related mechanical components with pass/fail criteria or limits 
written into the Federal safety standards much like the requirements 
contained in 49 CFR part 215, whereas APTA and other passenger railroad 
representatives on the other hand strongly maintained that specific 
inspection criteria or limits are not necessary. During the meetings of 
the Working Group, FRA repeatedly requested that railroad 
representatives provide a recommended list of mechanical components and 
criteria for their inspection. These representatives consistently 
responded with very broad requirements basically limited to inspections 
for obvious and visible defects. Although passenger railroad 
representatives did not object to the safety principle of a mechanical 
inspection, they did not want their operations to be bound by a rigid 
list of components and criteria for the inspection.
    FRA agreed with labor representatives that a specific list of 
components to be inspected with enforceable inspection or pass/fail 
criteria needed to be included as part of the proposed Passenger 
Equipment Safety Standards. In the 1997 NPRM, FRA identified the 
components that were to be inspected as part of the exterior calendar 
day mechanical safety inspection and provided measurable inspection 
criteria for the components. The proposal required the railroad to 
ascertain that each passenger car, and each unpowered vehicle used in a 
passenger train conforms with the conditions enumerated in the 
proposal. The Working Group members generally agreed that the 
components contained in the proposal represented valid safety-related 
components that should be frequently inspected by railroads.

[[Page 25560]]

However, members of the Working Group had widely different opinions 
regarding the criteria to be used to inspect the components. Therefore, 
as FRA was not provided any clear guidance from the Working Group, FRA 
selected inspection criteria based on the locomotive calendar day 
inspection and the freight car safety pre-departure inspection required 
by 49 CFR parts 229 and 215, respectively. FRA believed that passenger 
equipment should receive an inspection which is at least equivalent to 
that received by locomotives and freight cars. The components and 
conditions identified by FRA to be included in the exterior calendar 
day mechanical inspection included: couplers; suspension system; 
trucks; side bearings; wheels; jumpers; cable connections; buffer 
plates; products of combustion; batteries; diaphragms; and secondary 
brake systems. See 62 FR 49807-08.
    FRA also proposed that each railroad perform an interior calendar 
day mechanical inspection by individuals qualified by the railroad to 
do so. FRA originally contemplated requiring the interior inspections 
to be performed by highly qualified personnel to track the exterior 
calendar day mechanical inspection requirements. However, after several 
discussions with members of the Working Group and several other 
representatives of passenger railroads, FRA determined that the 
training and experience typical of a mechanical inspector is not 
necessary and often does not apply to inspecting interior safety 
components of passenger equipment. In addition, the most economical way 
to accomplish the mechanical inspection is to combine the exterior 
inspection with the Class I brake test and then have a crew member or 
train coach cleaner combine the interior mechanical inspection with 
coach cleaning. FRA listed the following components that were to be 
inspected as part of the interior calendar day mechanical inspection: 
trap doors; end and side doors; manual door releases; safety covers, 
doors and plates; vestibule step lighting; and safety-related signs and 
instructions. See 62 FR 49808.
    Because FRA intended the daily exterior and interior mechanical 
inspections to serve as the time when the railroad repairs defects that 
occurred en route, FRA further proposed that safety components not in 
compliance with this part would be required to be repaired before the 
equipment was permitted to remain in or return to passenger service 
after the performance of the mechanical inspections. In other words, 
FRA intended for the flexibility to operate defective equipment in 
passenger service to end at the calendar day mechanical inspection.
    Initially, FRA considered requiring a more extensive list of 
components to be checked at each interior calendar day mechanical 
inspection. However, based on discussions conducted with the Working 
Group, FRA determined that the daily inspection and repair of some 
interior items could be burdensome to the railroads without producing 
an offsetting safety benefit. As a result, FRA proposed a periodic 
mechanical inspection for passenger cars in order to reduce the 
frequency with which certain components require inspection. FRA 
proposed that the following components be inspected for proper 
operation and repaired, if necessary, as part of the periodic 
maintenance of the equipment: emergency lights; emergency exit windows; 
seats and seat attachments; overhead luggage racks and attachments; 
floor and stair surfaces; and hand-operated electrical switches. See 62 
FR 49808-09.
    FRA determined that virtually all passenger railroads have defined 
periodic maintenance intervals for all of the equipment they operate 
with intervals varying from 60 to 180 days, depending on the type of 
equipment and the service in which it is used. Although FRA did not 
intend to limit the railroad's flexibility to set periodic maintenance 
intervals, FRA believed that an outside limit had to be placed on the 
performance of the periodic mechanical inspection. Thus, FRA proposed 
that the periodic mechanical inspection be performed at least every 180 
days, as that appeared to be the outside limit of currently established 
maintenance cycles.
    In addition to the daily and periodic mechanical inspections, FRA 
also proposed extensive requirements regarding the performance of 
single car tests on passenger equipment. FRA believed that the proposed 
single car test has proven itself effective in uncovering brake system 
problems that are the root cause of certain wheel defects or that have 
been caused by repairs made to the brake system. The current 
regulations require that a single car test be performed on passenger 
cars whenever they are on a shop or repair track. As the current 
requirement carries the potential of permitting a railroad to avoid the 
performance of the test by calling a repair track something other than 
a repair track, FRA believed it was prudent to base the requirement to 
perform a single car test on the type of defect or repair involved 
rather than the location where the defect is repaired. Therefore, FRA 
proposed a list of defective conditions and the repair or replacement 
of certain components which would trigger the requirement to perform a 
single car test. See 62 FR 49774, 49809. In an attempt to promote the 
prompt repair of defective equipment, FRA proposed some flexibility in 
the performance of the test by permitting cars to be moved to a 
location where the test could be performed if repairs were made at a 
location that could not perform the test.
3. Proposed Qualifications of Inspection and Testing Personnel
    In the 1997 NPRM, FRA proposed the terms ``qualified person'' and 
``qualified mechanical inspector'' to differentiate between the type of 
personnel that will be permitted to perform certain brake or mechanical 
inspections required in the proposal. A ``qualified person'' was 
defined as a person determined by the railroad to have the knowledge 
and skills necessary to perform one or more functions required under 
this part. Whereas, a ``qualified mechanical inspector'' was defined as 
a ``qualified person'' who as a part of the training, qualification, 
and designation program required by the proposal had received 
instruction and training that included ``hands-on'' experience (under 
appropriate supervision or apprenticeship) in one or more of the 
following functions: trouble-shooting, inspection, testing, and 
maintenance or repair of the specific train brake and other components 
and systems for which the inspector is assigned responsibility. 
Further, the mechanical inspector was to be a person whose primary 
responsibility includes work generally consistent with those functions. 
See 62 FR 49754.
    As FRA intended for Class I brake inspections and exterior calendar 
day mechanical inspections to be in-depth inspections of the entire 
braking system and the safety-critical mechanical components, which 
most likely will be performed only one time in any given day in which 
the equipment is used, and because of the flexibility FRA proposed in 
the performance of such inspections, FRA proposed that these 
inspections had to be performed by individuals possessing not only the 
knowledge to identify and detect a defective condition in all of the 
brake equipment required to be inspected but also the knowledge to 
recognize the interrelational workings of the equipment and the ability 
to ``troubleshoot'' and repair the equipment. Consequently, FRA 
proposed that only qualified mechanical inspectors would be permitted 
to

[[Page 25561]]

perform Class I brake tests and exterior calendar day mechanical 
inspections.
    As the definition of qualified mechanical inspector required the 
person's primary responsibility to be the inspection, testing, or 
maintenance of passenger equipment, the definition largely ruled out 
the possibility of train crew members becoming qualified mechanical 
inspectors because the primary responsibility of a train crew member is 
generally the operation of the train. FRA intended the definition to 
allow the members of the trades associated with the testing and 
maintenance of equipment such as carmen, machinists, and electricians 
to become qualified mechanical inspectors. However, FRA made clear that 
membership in labor organizations or completion of apprenticeship 
programs associated with these crafts was not required to be designated 
a qualified mechanical inspector. The two primary qualifications were 
the possession of the knowledge required to do the job and a primary 
work assignment inspecting, testing, or maintaining the equipment.
    FRA included a clear definition of ``qualified person'' to allow 
railroads the flexibility of having train crews perform Class IA, Class 
II, and running brake tests and interior calendar day mechanical 
inspections. A qualified person had to be trained and designated as 
able to perform the types of brake and mechanical inspections and tests 
that the railroad assigned to him or her. However, a qualified person 
did not need the extensive knowledge of brake systems or mechanical 
components or be able to trouble-shoot and repair them. The qualified 
person was considered to be the ``checker.'' He or she was to possess 
the knowledge and experience necessary to be able to identify brake 
system problems.

C. Overview of Comments Relating to Proposed Inspection and Testing 
Requirements

    Those parties filing comments, presenting testimony and 
participating in the Working Group meetings with regard to the proposed 
inspection and testing requirements have provided the agency with a 
wealth of facts and informed opinions, and have been extremely helpful 
to FRA in resolving the issues. Most commenters provided testimony or 
written comments on more than one issue and generally were supported by 
the positions of other commenters. Rather than attempt to paraphrase 
each commenter's response to each of the proposed regulatory sections, 
FRA believes it would be better, and more understandable, to provide a 
brief overview of the thrust of the comments received in this portion 
of the preamble and provide general FRA conclusions while addressing 
the specific comments of various parties in the section-by-section 
analysis. For purposes of discussion, the comments are grouped in three 
categories: (1) railroad management representatives; (2) railroad labor 
representatives; and (3) other commenters.
    Railroad management representatives, APTA and its member railroads 
and Amtrak, generally agreed with the concept of performing the 
proposed comprehensive daily brake and mechanical inspections. However, 
these representatives raised a number of concerns with the proposed 
inspections. Commenters for APTA believed that the proposed requirement 
to perform a Class IA brake test prior to the first run of the day for 
commuter and short-distance intercity trains is unnecessary and adds no 
value to the proposed inspection scheme. APTA recommends that a Class I 
brake test remain valid for up to 12 hours after it is performed, if 
the train remains intact with compressors running, and that the 
performance of a Class II brake test prior to the first departure would 
be sufficient to ensure the proper operation of the brake system. APTA 
contends that the performance of a Class II brake test prior to 
departure would detect any brake problems caused by vandalism and that 
commuter railroads have been operated safely in this fashion for years.
    Railroad management representatives also raised issues concerning 
the performance of the proposed exterior calendar day mechanical 
inspection. The major concern of these commenters was that the proposal 
was unclear as to whether trainsets had to be uncoupled or placed over 
a pit to perform the inspections. These commenters recommended that the 
rule text explicitly state that the inspection is to be performed to 
the extent possible without uncoupling the cars or placing the cars 
over an elevated pit. APTA representatives also recommended that some 
of the items proposed in the exterior calendar day mechanical 
inspection be moved to the periodic mechanical inspection as they could 
not reasonably be seen without uncoupling the car or placing it over an 
elevated pit. These included certain requirements related to the 
inspection of the couplers, the truck and car body assembly, and the 
center castings on trucks. Some commenters also recommended elimination 
of the requirement that all secondary braking systems be working, since 
that could not be known until the train is in operation and the system 
is attempted to be used.
    APTA representatives also commented on the proposed requirements 
for performing single car tests. APTA recommended that FRA adopt the 
new single car test procedures recently developed by the PRESS brake 
committee rather than the outdated AAR standard. These commenters also 
recommended that the replacement or repair of certain proposed 
components not trigger the requirement to perform a single car test 
since most of the brake system is not disturbed by the repairs and some 
sort of partial test could sufficiently demonstrate proper operation of 
the brake system. These commenters also sought the flexibility not to 
perform the test if a wheel defect is known to be caused by other than 
a brake-related problem. APTA further recommended that railroads be 
permitted to perform single car tests from the locomotive control 
stands.
    The major issue raised by railroad management representatives 
addressed FRA's proposal that all Class I brake tests and all exterior 
calendar day mechanical inspections be performed by a qualified 
mechanical inspector (QMI). APTA representatives objected to the use of 
this designation for several reasons and recommended the alternative 
term ``qualified maintenance person.'' The main objection of these 
commenters relates to the requirement that a QMI's primary 
responsibility must be the inspection, testing, maintenance, 
troubleshooting, or maintenance of the brake system or mechanical 
components. These commenters also object to FRA's statement that the 
definition of QMI largely rules out the possibility of train crew 
members being designated as QMIs. These commenters contend that any 
person who is properly trained can perform the inspections proposed by 
FRA. These commenters also object to the use of the term qualified 
mechanical inspector based on the concern that such a title might lead 
employees designated as such to seek premium pay due to the title 
bestowed.
    APTA representatives contend that the proposed definition of QMI 
violates the Administrative Procedure Act (APA), exceeds FRA's 
statutory authority, and is counter to the Railway Labor Act. These 
commenters contend that the Administrative record does not support a 
finding by FRA that only employees whose ``primary responsibility'' 
includes work in the area of troubleshooting, testing, inspecting, 
maintenance, or repair to train brake and other components are capable 
of performing Class I and

[[Page 25562]]

exterior mechanical inspections. These commenters also contend that 
FRA's proposed definition is counter to FRA's statutory mandate not to 
prescribe employee qualifications except where clearly necessary for 
safety reasons. See 49 U.S.C. 20110. Furthermore, it is contended that 
the proposed definition is counter to the Railway Labor Act because it 
impinges upon the exclusive jurisdiction of the National Mediation 
Board to make final determinations over employee classes or crafts and 
to interpret collective bargaining agreements. In essence, this 
argument contends that by limiting the employees who can perform a 
Class I brake test or an exterior mechanical inspection, FRA is in 
effect making an employee class or craft designation.
    A concern raised by Metra is interrelated to the proposed QMI 
requirement, in that Metra seeks flexibility or relief from the QMI 
requirement on weekends. Metra contends that train crews perform most 
of the brake tests conducted by the railroad on weekends and have been 
for several years. Metra claims that there is no data showing a 
decrease in safety on Metra during weekend operations to support FRA's 
proposal that these brake inspections must be performed by a QMI rather 
than a train crew member. Metra seeks relief from the QMI requirement 
on weekends for railroads which have established a successful operating 
history of performing the tests with qualified persons rather than 
QMIs.
    Rail labor representatives, while generally supportive of the 
proposed inspection and testing requirements, also raised a number of 
concerns related to the proposed requirements. Labor representatives 
objected to the proposed Class IA brake test and continued to insist 
that railroads should be required to conduct a full Class I brake test 
prior to the first run of the day. These commenters also advocated 
against providing any leeway for weekend operations with regard to the 
proposed inspections and tests, claiming that in many instances 
equipment used on weekends is used more rigorously than when used 
during the week and, therefore, quality inspections are probably more 
important. Labor representatives also noted that FRA failed to address 
what tests or inspections are to be performed on equipment added to an 
en route passenger train. Furthermore, these commenters supported the 
concept of requiring that QMIs perform all Class I brake tests and 
exterior mechanical inspections but recommended that FRA develop a 
clear and unequivocal definition of QMI which specifically excludes 
train crew members from the definition.
    Labor representatives agreed with APTA representatives that FRA 
should adopt the single car testing procedures developed through the 
PRESS brake committee. These representatives believed that the newly 
developed procedures were better than the existing AAR procedures but 
stressed that the test must be conducted whenever any of the items 
listed in the NPRM occurred. Labor commenters believed a single car 
test should be performed prior to permitting a car to be moved and that 
the test should not be permitted to be performed with a locomotive.
    The primary concern raised by labor representatives, particularly 
the BRC, involves the proposed 1,500-mile inspection interval for 
performing Class I brake tests on long-distance intercity passenger 
trains. Although the BRC agrees that the current 1,000-mile inspection 
should be replaced with the proposed Class I brake test, the BRC 
objects to extending the distance between brake tests to 1,500 miles. 
The BRC claims that the proposed increase is not justified by the 
facts. The BRC contends that an inspection at 1,000 mile intervals is 
necessary to ensure the safety of passenger train operations due to the 
numerous defective conditions being found during 1,000 mile 
inspections. As support for this contention, the BRC submitted 
information compiled by a carman stationed at Union Station in 
Washington, D.C. from January 1996 through February of 1997 who 
allegedly performed 1,000-mile inspections at this location. The BRC 
also cited other specific examples of defective equipment being moved 
in passenger trains. Based on this information and extrapolating 
similar conditions across the country, the BRC contends that numerous 
defective conditions are uncovered at 1,000 mile brake inspections and 
that there is no safety justification for extending the distance 
between brake inspections.
    Amtrak responded to the information provided in the BRC's 
submission regarding defects found during inspections at Washington, 
D.C. in January 1996 through February 1997. Amtrak contends that 
Washington, D.C. is not a 1,000-mile inspection point and thus, should 
not be used to determine the appropriate interval for brake 
inspections. Amtrak also contends that the data presented was not 
sufficiently detailed to determine if the listed defects violated the 
railroad's standards for equipment operating en route. Amtrak contends 
that based upon their records 66 percent of the 609 cars identified by 
the BRC were in trains that terminated at Washington, DC and should not 
be considered in determining brake inspection intervals. Of the 204 
cars alleged to be defective and that were part of trains which run 
through Washington, DC, Amtrak records show that only 7 of the cars 
were shopped at Washington, DC and that 110 additional cars were 
shopped within 7 days after the date of the reported defect. In almost 
all cases the repairs were made at a location other than Washington, 
DC, which was frequently the end destination for the train. Amtrak 
concludes that the defects reported by the BRC at Washington, DC 
constitute items from an in-bound inspection but were not true defects 
that required shopping a car from an en route train.
    Amtrak provided additional information containing a summary of the 
set-outs which took place on the railroad during the period from March 
1997 to February 1998 for safety and non-safety related causes. This 
information showed that 301 cars were set-out by Amtrak during this 
period. Of those 301 cars that were set-out, only 29 were set-out at 
intermediate (1,000 mile) inspection points and only 15 of those 29 
were for brake-related defects. Therefore, Amtrak contends that 90 
percent of the cars that were set-out were set-out en route and were 
not found during intermediate inspections. During this same period 
Amtrak conducted 1,000-mile inspections on approximately 130,000 cars. 
Consequently, Amtrak contends that the annual defect rate at 
intermediate inspection points for this period was 0.02 percent and 
that it was costing Amtrak approximately $175,000 per defect found to 
conduct 1,000-mile inspections.
    The BRC submitted a response to the information provided by Amtrak. 
In this submission the BRC contends that Amtrak's analysis regarding 
the reported defects is faulty and self-serving. This commenter 
contends that all the defects found at Union Station must be considered 
when evaluating an extension of the 1,000-mile inspection regardless of 
whether Union Station is a 1,000-mile inspection point and regardless 
of the distance traveled by the cars involved. The BRC contends that 
any defective conditions found are indicative of what will be traveling 
past 1,000-mile inspection locations should the distance between brake 
inspections be extended to 1,500 miles. The BRC further contends that 
Amtrak's analysis regarding the number of cars set-out at intermediate 
inspections is flawed for

[[Page 25563]]

several reasons. The BRC claims that intermediate inspection points 
cited by Amtrak are not 1,000-mile inspection locations and that the 
same type of inspection is not performed. (FRA's review of Amtrak's 
submission indicates that when Amtrak referred to intermediate 
inspection points it was referring to 1,000 mile inspection locations.) 
Further, it is contended that looking solely at the number of cars set-
out at these locations is improper because it does not take into 
account the defects that are repaired while a car remained entrained. 
The BRC reasserted its position that the data does not support an 
extension of the 1,000-mile inspection interval and, if anything, the 
data supports reducing the inspection requirement to 500 miles.

D. General FRA Conclusions

    After consideration of all the comments submitted, both in writing 
and through oral testimony and discussion within the Working Group, FRA 
intends for the requirements regarding the inspection and testing of 
passenger equipment contained in the final rule to closely track the 
proposed requirements contained in the 1997 NPRM. In this final rule, 
FRA will make slight modifications to the proposed requirements in an 
attempt to clarify the requirements, to cover areas that were not 
adequately addressed, and to address the specific comments submitted. 
FRA generally believes that the approach taken in the NPRM to the 
inspection and testing of passenger equipment incorporates the current 
best practices of the industry, effectively balances the positions of 
the various parties involved, and increases the overall safety of 
passenger train operations.
1. Brake and Mechanical Inspections
    FRA intends to modify the Class I brake test and the exterior 
calendar day mechanical inspection requirements to ensure the proper 
operation of all cars added to a train while en route. FRA is adding 
certain provisions to require the performance of a Class I brake test 
and an exterior mechanical inspection on each car added to a passenger 
train at the time it is added to the train unless documentation is 
provided to the train crew that a Class I brake test and an exterior 
mechanical inspection was performed on the car within the previous 
calendar day and the car has not been disconnected from a source of 
compressed air for more than four hours. FRA is adding this requirement 
in order to address the concerns raised by various labor 
representatives that no provisions were provided in the proposal to 
address circumstances when cars are added to an en route train. If a 
car has received such inspection, the railroad will be required to 
perform a Class II brake test at the time the car is added to the 
train. FRA believes that these provisions will ensure the integrity of 
the brakes and mechanical components on every car added to an existing 
train and should not be a burden for railroads since cars are generally 
added to passenger trains at major terminals with the facilities and 
personnel available for conducting such inspections. Furthermore, these 
inspection requirements are very similar to what is currently required 
when a freight car is added to a train while en route. See 49 CFR 
Secs. 215.13 and 232.13.
    FRA is also modifying the requirements for when a Class IA brake 
test must be performed. FRA continues to believe that some type of car-
by-car inspection must be performed prior to a passenger train's first 
run of the day if the train was used in passenger service the previous 
day without any brake inspection being performed after it completed 
service and before it laid-up for the evening. However, FRA agrees with 
the comments submitted by APTA representatives that the need for such 
an inspection is minimized if a Class I brake test is performed within 
a relatively short period of time prior to the first run of the day and 
the train has not been used in passenger service since the performance 
of that inspection. From a safety standpoint, it appears to be 
unnecessary to require the performance of a second comprehensive brake 
test when the equipment has not been used and has remained on a source 
of compressed air since the last comprehensive brake test was 
performed. In such circumstances, FRA believes that the performance of 
a Class II brake test would be sufficient to determine if there are any 
problems with the braking system due to vandalism or other causes since 
the last comprehensive Class I brake test. Furthermore, as APTA's 
comments point out, commuter railroads have been safely operated in a 
fashion similar to this for a number of years. Consequently, the final 
rule will require the performance of a Class II brake test prior to the 
first run of the day if a Class I brake test was performed within the 
previous twelve hours and the train has not been used in passenger 
service and has not been disconnected from a source of compressed air 
for more than four hours since the performance of the Class I brake 
test.
    FRA will also include certain minimal recordkeeping requirements 
related to the performance of the interior and exterior calendar day 
and periodic mechanical inspection provisions. FRA believes that proper 
and accurate recordkeeping is a cornerstone of any inspection process 
and is essential to ensuring the performance and quality of the 
required inspections. Without such records the inspection requirements 
would be difficult to enforce. Although recordkeeping was discussed in 
the Working Group and FRA believes them to be an integral part of any 
inspection requirement, FRA inadvertently omitted any such requirements 
in the NPRM specifically related to mechanical inspections. This 
omission was brought to FRA's attention through verbal and written 
comments provided by various interested parties.
    FRA is also making minor changes and clarifications to the proposed 
exterior calendar day mechanical inspection. In the final rule, FRA is 
explicitly stating that the exterior mechanical inspection is to be 
performed to the extent possible without uncoupling the trainset and 
without placing the equipment over a pit or on an elevated track. This 
explicit statement is being added in response to APTA's concerns 
regarding what would constitute proper performance of these 
inspections. FRA intended the inspection to be very similar to the 
freight car safety inspection currently required pursuant to Part 215. 
FRA also recognizes that certain items contained in the proposed 
exterior mechanical inspection could not have been easily inspected 
without proper shop facilities. Therefore, FRA is moving some of the 
exterior mechanical inspection requirements related to couplers and 
trucks to the periodic mechanical inspection requirements as these 
periodic inspections will likely be performed at locations with 
facilities available that are more conducive to inspecting the specific 
components. The changes made in the final rule were discussed with the 
Working Group at the December 15-16, 1997 meeting.
    FRA is also adding various provisions related to the performance of 
periodic mechanical inspections. As noted above, FRA is moving certain 
items from the exterior calendar day mechanical inspection to the 
periodic mechanical inspections as they cannot be easily inspected 
without proper shop facilities. In the NPRM, FRA proposed that a 
periodic mechanical inspection be performed every 180 days. After a 
review of the industry's practices regarding the performance of 
periodic mechanical-type inspections, FRA believes that the items 
removed from the calendar day mechanical inspection as well as some of 
the items previously

[[Page 25564]]

proposed in the 180 day periodic mechanical inspection should be and 
are currently inspected on a more frequent basis by the railroads. As 
it is FRA's intent in this proceeding to attempt to codify the current 
best practices of the industry, FRA believes that the current intervals 
for inspecting certain components should be maintained. Therefore, FRA 
will require the periodic inspection of certain mechanical components, 
floors, passageways, and switches on a 92-day basis. Furthermore, FRA 
will also require a 92-day inspection of emergency lighting systems as 
they are critical to the safety of passengers in the event of an 
accident or derailment. FRA is adding an inspection of the roller 
bearings to the 92-day inspection. Although this component was 
inadvertently left out of the 1997 NPRM, they were covered in the 1994 
NPRM; and FRA believes that roller bearings are an integral part of the 
mechanical components and must be part of any mechanical inspection 
scheme. Furthermore, several labor commenters recommended inspections 
criteria similar to that contained in 49 CFR part 215, which 
specifically addresses the condition of roller bearings. See 49 CFR 
Sec. 215.115. As roller bearings are best viewed in a shop facility 
context, FRA is adding the inspection of this component to the 92-day 
periodic mechanical inspection, which is consistent with the current 
practices of the industry.
    FRA will also retain a semi-annual periodic inspection for certain 
components as proposed in the 1997 NPRM. FRA proposed a 180-day 
periodic inspection, but in order to remain consistent with the 92-day 
inspection scheme, FRA will require a 184-day periodic inspection of 
certain components, including: seats; luggage racks; beds; and 
emergency windows. FRA removed the inspection of the couplers from the 
calendar day inspection and added them to the 184-day inspection 
requirement. FRA is placing the coupler inspection at this interval 
rather than the 92-day interval in order to reduce the amount of 
coupling and uncoupling that will be required. FRA is also extending 
the inspection interval related to manual door releases. Due to the 
general reliability of these devices and because they are partially 
inspected on a daily basis, FRA believes that an annual inspection of 
the releases will ensure their proper operation. Thus, FRA will require 
an inspection of the manual door releases every 368 days.
    Although FRA has established certain periodic inspection intervals 
in order to establish a default interval, FRA intends to make clear 
that FRA will allow railroads to develop alternative intervals for 
performing such inspections for specific components or equipment based 
on a more quantitative reliability assessment completed as part of 
their system safety programs. FRA expects that railroads will utilize 
reliability-based maintenance programs as appropriate, given this 
opportunity to do so. As successful reliability based maintenance 
programs are dynamic, it is expected that, in the process of defining 
and documenting the reliable use of equipment or specific components, 
over time, continued assessments may indicate a need to increase or 
decrease inspection intervals. FRA will only permit lengthened 
inspection intervals beyond the default intervals when such changes are 
justified by a quantitative reliability assessment. The previously 
described inspection intervals are based on sound but limited 
information provided to FRA that FRA believes represents a combination 
of operating experience, analytical analyses, knowledge and intuition. 
FRA does expect that railroads will collect and respond to additional 
data throughout the operating life of the equipment. (A detailed 
discussion of reliability-based maintenance programs is contained in 
the section-by-section discussion of Sec. 238.307.)
    FRA is also modifying the proposed requirements related to the 
performance of single car tests. Based on the recommendations of 
representatives from both rail labor and rail management, FRA will 
reference the single car testing procedures which were developed by 
APTA PRESS rather than the AAR single car testing procedures referenced 
in the 1997 NPRM. The single car test procedures were issued by APTA on 
July 1, 1998 and are contained in APTA Mechanical Safety Standard SS-M-
005-98. The single car test procedures issued by APTA are more 
comprehensive and better address passenger equipment than the older AAR 
recommended practices. In the 1997 NPRM, FRA proposed to require the 
performance of single car tests on all passenger cars and other 
unpowered vehicles used in passenger trains. However, the definition of 
passenger cars includes self-propelled vehicles such as MU locomotives, 
to which FRA did not intend to apply the proposed single car test 
requirements. Thus, FRA is modifying the language of the single car 
test requirements to clarify that the testing requirements apply to 
nonself-propelled passenger cars and unpowered vehicles used in 
passenger trains.
    FRA is also modifying some of the circumstances under which a 
single car test is required to be performed. FRA agrees with several of 
the commenters that the 1997 NPRM may have been over-inclusive in 
listing the components whose repair, replacement, or removal would 
trigger the performance of a single car test. Thus, in accordance with 
the discussions conducted with the Working Group in mid-December of 
1997, FRA is amending the list of brake components to include only 
those circumstances where a relay valve, service portion, emergency 
portion, or pipe bracket is removed, repaired, or replaced. Whenever 
any other component previously contained in the 1997 NPRM is removed, 
repaired, or replaced FRA will require that only that portion that is 
renewed or replaced be tested. FRA believes that the items removed from 
the previously proposed list can generally be removed, replaced, or 
repaired without affecting other portions of the brake system and, 
thus, the need to perform a single car test is reduced. FRA also will 
not mandate the performance of a single car test for wheel defects, 
other than a built-up tread, if the railroad can establish that the 
wheel defect is due to a cause other than a defective brake system. 
Thus, the burden will fall on the railroad to establish and maintain 
sufficient documentation that a wheel defect is due to something other 
than a brake-related cause. FRA intends to make it clear that if the 
railroad cannot establish the specific non-brake related cause for a 
wheel defect, it is required to perform a single car test.
2. Qualified Maintenance Person
    An issue related to the inspection and testing requirements on 
which FRA has received extensive comment, particularly from APTA 
representatives, is the proposed definition of ``qualified mechanical 
inspector (QMI).'' FRA recognizes the concern raised by some commenters 
that the term QMI might result in employees designated as such to seek 
some sort of premium pay status. Although FRA is not overly swayed by 
this concern, FRA is changing the term in the manner suggested by these 
commenters to ``qualified maintenance person (QMP).'' FRA believes that 
the term used to describe the individual responsible for conducting 
certain brake and mechanical inspections has little bearing on the 
qualifications or knowledge of the individual and, thus, is not adverse 
to accommodating a change in the term. However, but for clarifying 
language, FRA is not changing

[[Page 25565]]

the underlying definition of what is required to be designated as a 
QMP.
    The major concern raised by APTA representatives centered on the 
requirement contained in the definition of a QMI that the person's 
``primary responsibility'' include work in the area of troubleshooting, 
testing, inspecting, maintenance, or repair to train brake systems and 
other components. These commenters believed that anyone who is properly 
trained can perform the required inspections regardless of the amount 
of time actually spent engaged in the activity.
    The entire concept of QMI (or QMP) is premised on the idea that 
flexibility in the inspection of passenger equipment, flexibility in 
the movement of defective equipment and slight reductions in periodic 
maintenance could be provided if the mechanical components and brake 
system were inspected on a daily basis by highly qualified individuals. 
Thus, the requirement that a highly qualified person perform certain 
brake and mechanical inspections is part of a package which includes 
flexibility in the performance of brake and mechanical inspections, 
permits wider latitude in the movement of defective equipment, and 
provides reductions in the periodic maintenance that is required to be 
performed on certain equipment. Therefore, FRA expects the highly 
qualified person to be an individual who can not only identify a 
particular defective condition but who will have the knowledge and 
experience to know how the defective condition affects other mechanical 
components or other parts of the brake system and will have an 
understanding of what might have caused a particular defective 
condition. FRA believes that in order for a person to become highly 
proficient in the performance of a particular task that person must 
perform the task on a repeated and consistent basis. As it is almost 
impossible to develop and impose specific experience requirements, FRA 
believes that a requirement that the person's primary responsibility be 
in one or more of the specifically identified work areas and that the 
person have a basic understanding of what is required to properly 
repair and maintain safety-critical brake or mechanical components is 
necessary to ensure the high quality inspections envisioned by the 
rule.
    FRA disagrees with the contentions raised by APTA representatives 
that the definition of QMI (or QMP) violates the APA and exceeds FRA's 
statutory authority. Contrary to the assertions made by APTA 
representatives, the administrative record together with FRA's 
independent knowledge of the passenger rail industry do support a 
requirement that only a QMI (or QMP) conduct Class I brake tests and 
exterior mechanical inspections. Except for limited weekend service 
operated by Metra, virtually every passenger train operation affected 
by this rule currently conducts daily brake and mechanical inspections 
utilizing employees who, except for training on the requirements of 
this rule, would meet the definition of a QMI (or QMP). That is, the 
employees who are currently responsible for conducting the major daily 
brake and mechanical inspections on virtually all passenger trains meet 
the ``primary responsibility'' requirement contained in the definition 
of QMI (or QMP). Therefore, the industry's current practice 
acknowledges and supports the need to conduct daily inspections with 
employees whose primary responsibility is the troubleshooting, 
inspection, testing, maintenance, or repair of train brake systems or 
other mechanical components. Furthermore, due to the flexibility 
provided in this rule for conducting brake and mechanical inspections 
and moving defective equipment as well as the extension of certain 
periodic maintenance, FRA believes that the current best practices of 
the railroads with regard to brake and mechanical inspections must be 
maintained, especially as they relate to the quality of the personnel 
performing the inspections and the continuity of observation provided 
by a dedicated work force (which is important to detection of 
developing hazards in the fleet).
    FRA further believes that APTA's contention that the definition of 
QMI (or QMP) violates the Railway Labor Act is due to a 
misunderstanding of the definition. FRA is not attempting to make any 
determinations over employee classes or crafts or to interpret 
collective bargaining agreements. In the 1997 NPRM, FRA stated that the 
definition would allow the members of trades associated with testing 
and maintenance of equipment such as carmen, machinists, and 
electricians to become QMIs (or QMPs). However, FRA further stated that 
membership in a labor organization or completion of an apprenticeship 
program associated with a particular craft is not required. FRA made 
clear that the two overriding qualifications are possession of the 
knowledge required to do the job and a primary work assignment 
inspecting, testing, or maintaining the equipment.
    FRA also intends to clarify the meaning of ``primary 
responsibility'' as used in the definition of QMP. As a rule of thumb 
FRA will consider a person's ``primary responsibility'' to be the task 
that the person performs at least 50 percent of the time. Therefore, a 
person who spends at least 50 percent of the time engaged in the duties 
of inspecting, testing, maintenance, troubleshooting, or repair of 
train brakes systems and other mechanical components could be 
designated as a QMP, if the person is properly trained to perform the 
tasks assigned and possesses a current understanding of what is 
required to properly repair and maintain the safety-critical brake or 
mechanical components for which they are assigned responsibility. 
However, FRA will consider the totality of the circumstances 
surrounding an employee's duties in determining a person's ``primary 
responsibility.'' For example, a person may not spend 50 percent of his 
or her day engaged in any one readily identifiable type of activity; in 
those situations FRA will have to look at the circumstances involved on 
a case-by-case basis.
    The definition of QMP largely rules out the possibility of train 
crew members being designated as these highly qualified inspectors 
since the primary responsibility, as defined above, of virtually all 
current train crew personnel is the operation of trains and for the 
most part train crew personnel do not possess a current understanding 
of what is required to properly repair and maintain the safety-critical 
brake or mechanical components that are inspected during Class I brake 
tests or exterior calendar day mechanical inspections. However, 
contrary to the contentions raised by APTA, there is nothing in the 
rule which prevents a railroad from utilizing employees who are not 
designated as QMPs from conducting brake and mechanical inspections 
provided those inspections are not intended to constitute the required 
Class I brake test or the exterior calendar day mechanical inspection. 
Furthermore, the rule provides that certain required brake and 
mechanical inspections (Class IA brake tests, Class II brake tests, 
running brake tests, and interior calendar day mechanical inspections) 
may be performed by a properly ``qualified person'' and do mandate the 
use of a QMP. FRA believes that these are the types of inspections 
which train crew members are currently assigned to perform and have 
been performing effectively for years. Consequently, FRA believes that 
the inspection requirements and the qualification requirements 
contained in this rule are merely a codification of the current best 
practices of the passenger

[[Page 25566]]

train industry and are necessary to ensure the continued safety of 
those operations while providing the industry some flexibility in the 
performance of certain inspections and in the movement of defective 
equipment as well as providing slight increases in periodic maintenance 
cycles for some equipment.
    FRA does not intend to provide any special provisions for weekend 
operations with regard to the conducting of Class I brake tests and 
calendar day mechanical inspection by QMPs as suggested in the comments 
by some APTA representatives. The rationale for requiring daily brake 
and mechanical attention by highly qualified inspectors, a proposition 
generally accepted by Working Group members, appears to apply equally 
to weekend periods. In fact based on FRA's experience, equipment used 
on weekends is generally used more rigorously than equipment used 
during weekday operations. At present only one commuter operation 
(Metra) has raised significant concerns regarding weekend operations. 
Although there is no specific data suggesting that existing weekend 
operations on Metra, which involves having many of the brake 
inspections conducted by train crew members, have created a safety 
hazard, FRA has found it virtually impossible to draft and justify 
provisions providing limited flexibility for Metra that do not create 
potential loopholes that could be abused by other passenger train 
operations that have not had the apparent safety success of Metra. 
Moreover, based on FRA's independent investigation of Metra's 
operation, it is believed that the impact of this final rule on Metra's 
weekend operations will be significantly less than that indicated in 
APTA's written comments and originally perceived by Metra. FRA believes 
that most of the personnel needed by Metra to conduct its weekend 
operations in accordance with this final rule are available to Metra or 
its contractors and that minor adjustments could be made to its weekend 
operations that might avoid significant new expense.
    As the concerns regarding weekend operations appear to involve just 
one commuter operation and because the precise impact on that operation 
is not known or available at this time, FRA believes that the waiver 
process would be the best method for evaluating any lingering concerns 
that may be raised by that operator. This would afford FRA an 
opportunity to provide any appropriate relief based on the specific 
needs and the safety history of the individual railroad without opening 
the door to potential abuses by other railroads that are not similarly 
situated.
3. Long-Distance Intercity Passenger Trains
    FRA is also retaining the requirements proposed in the 1997 NPRM 
related to the performance of Class I brake tests on long-distance 
intercity passenger trains. FRA will require that a Class I brake test 
be performed on long-distance intercity passenger trains prior to the 
trains' departure from an originating terminal and once every 1,500 
miles or every calendar day, whichever occurs first. After reviewing 
the information and comments submitted by labor representatives, the 
information and comments provided by Amtrak, and based upon the 
independent information developed by FRA, FRA believes that the 
enhanced inspection scheme contained in this final rule will ensure the 
continued safety of long-distance intercity passenger trains.
    Contrary to the statements made in the comments submitted by some 
labor representatives, FRA is not merely increasing the distance 
between brake inspections. Rather, FRA is increasing both the quality 
and the content of the inspections that must be performed on long-
distance intercity passenger trains and, thus, increasing the safety of 
such trains. Under the current regulations these passenger trains are 
required to receive an initial terminal brake inspection at the point 
where they are originally assembled; from that point the train must 
receive an intermediate brake inspection every 1,000 miles. The current 
1,000-mile inspection merely requires the performance of a leakage 
test, an application of the brakes and the inspection of the brake 
rigging on each car to ensure it is properly secured. See 49 CFR 
232.12(b). The current 1,000-mile brake inspection does not require 100 
percent operative brakes prior to departure and does not require piston 
travel to be inspected. The current regulations also do not require the 
performance of any type of mechanical inspection on passenger equipment 
at 1,000-mile inspection points or at any other time in the train's 
journey. Thus, under the current regulations a long-distance intercity 
passenger train can travel from New York to Los Angeles on one initial 
terminal inspection, a series of 1,000-mile inspections, and no 
mechanical inspections.
    Whereas, this rule will require the performance of a Class I brake 
test, which is more comprehensive than the current initial terminal 
inspection, at the point where the train is originally assembled and 
will require the performance of another Class I brake test every 1,500 
miles or every calendar day thereafter, whichever comes first, by 
highly qualified inspectors. Thus, at least every 1,500 miles or every 
calendar day a long-distance passenger train will be required to 
receive a brake inspection which is more comprehensive than the current 
initial terminal inspection and which requires that the train have 100 
percent operative brakes and have piston travel set within established 
limits. Furthermore, this rule will require the performance of an 
exterior and interior mechanical inspection every calendar day that the 
train is in service. Consequently, the inspection scheme proposed in 
the 1997 NPRM and retained in this final rule will, in FRA's view, 
increase the safety and better ensure the integrity of the brake and 
mechanical components of long-distance passenger trains.
    FRA also believes that some recognition must be given to the 
various types of advanced braking system technologies used on many 
long-distance intercity passenger trains. Many of these advanced 
technologies are not found with any regularity in freight operations. 
Dynamic brakes are typically employed on these types of trains to limit 
thermal stresses on friction surfaces and to limit the wear and tear on 
the brake equipment. Furthermore, the brake valves and brake components 
used on today's long-distance passenger trains are far more reliable 
than was the case several decades ago. Other technological advances 
utilized with regularity by these passenger trains include:
     The use of brake cylinder pressure indicators which 
provide a reliable indication of the application and release of the 
brakes.
     The use of disc brakes which provide shorter stopping 
distances and decrease the risk of thermal damage to wheels.
     The ability to cut out brakes on a per-axle or per-truck 
basis rather than a per car basis, thus permitting greater use of those 
brakes that are operable.
     Brake ratios that are 2\1/2\ times greater than the brake 
ratios of loaded freight cars.
    The reliability and performance of brake systems on these passenger 
trains enhance the safety of these trains and, when combined with other 
aspects of this discussion, support FRA's determination that these 
brake systems can be safely operated with the inspection intervals that 
were proposed in the 1997 NPRM. Although some of the technologies noted 
above have existed for several decades, most of the technologies were 
not in wide spread use until after 1980. Furthermore, most

[[Page 25567]]

of the noted technological advances just started to be integrated into 
one efficient and reliable braking system within the last decade. 
Consequently, the technology incorporated into the brake equipment used 
in today's long-distance intercity passenger trains has increased the 
reliability of the braking system and permits the safe operation of the 
equipment for extended distances even though a portion of the braking 
system may be inoperative or defective.
    FRA also disagrees with the contentions raised by certain labor 
representatives that the facts and data do not support the 500 mile 
extension in the brake inspection interval even with the more 
comprehensive inspection scheme. These commenters recommend that the 
current 1,000-mile brake inspection interval be retained together with 
the increased inspection regiment. These commenters contend that due to 
the large number of defects being found at 1,000-mile inspections that 
the need to retain the inspection is justified. As an example and 
support for this position, the BRC submitted information containing 
numerous defective conditions compiled by carmen stationed at Union 
Station in Washington D.C. from January 1996 through February of 1997 
that the carmen allegedly found on trains traveling through Union 
Station. After reviewing the documentation submitted, FRA does not 
believe the information supports the conclusion that 1,000-mile brake 
inspections must be maintained and that it would be unsafe to extend 
the distance between brake inspections under the inspection scheme 
contained in this final rule.
    Due to the lack of detail contained in the information submitted by 
the BRC, it is impossible to determine whether the vast majority of the 
alleged defective conditions were defective under the Federal 
regulations or whether the conditions were merely in excess of Amtrak's 
voluntary maintenance standards or operating practices. In addition, 
based on the description of some of the conditions, they would not be 
considered defective conditions under current Federal regulations. 
Furthermore, the vast majority of the conditions alleged in the 
document were not power brake defects, and thus, under the current 
regulations, would not have been required to have been inspected at a 
1,000-mile inspection, nor do the current regulations mandate any type 
of mechanical inspection on passenger equipment. Moreover, as the vast 
majority of the alleged conditions were mechanical and wheel defects, 
FRA believes that these types of defective conditions will be addressed 
by the exterior calendar day mechanical inspection contained in this 
final rule which will be required to be performed every calendar day 
that a piece of equipment is in service.
    FRA agrees with the comments submitted by the BRC that the data and 
information submitted by Amtrak regarding the allegedly defective 
equipment found at Washington, D.C., does not fully address whether the 
cars identified by carmen at that location were defective and does 
indicate that at least many of the cars were repaired for the defective 
condition noted within several days after moving through Washington, 
D.C. However, contrary to the conclusions reached by labor 
representatives, the fact that a car remained in service with an 
alleged defective mechanical or brake condition does not necessarily 
mean the train involved was in an unsafe condition or that the 
equipment was being moved illegally. The current regulations regarding 
freight mechanical equipment and the existing statutory mandates 
regarding the movement of equipment with defective safety appliances 
and brakes permit the movement of a certain amount of defective 
equipment to certain locations provided it is determined by a qualified 
person that such a movement can be made safely or that a sufficient 
percentage of the brakes remain operative. See 49 U.S.C. 20303, 49 CFR 
215.9. As this final rule will specifically address the inspection of 
the mechanical components on passenger equipment and the movement of 
defective mechanical components, which is not covered by existing 
regulations, FRA believes that the amount of defective equipment being 
operated will be reduced significantly and will be handled safely in 
revenue trains. Although FRA agrees that the information submitted by 
Amtrak regarding the number of cars set out at 1,000-mile inspection 
points does not reflect the true number of defects being found during 
the inspections, FRA does find it significant that a very small 
percentage of cars set-out by Amtrak are set-out at 1,000-mile 
inspection locations and that most set-outs occur en route. (In its 
April 17, 1998 letter, Amtrak used the term intermediate inspections 
which upon FRA's review of the information provided was intended to 
describe 1,000-mile inspection locations.)
    FRA also feels it is necessary to make clear that the number of 
cars alleged to have been found in defective condition at Union Station 
in Washington D.C. is not indicative of a safety problem on long-
distance intercity passenger trains. Assuming that all of the cars 
contained in BRC's submission were in fact defective as alleged, it 
appears that approximately 750 cars were defective. However, the 
information also reveals that approximately 1,300 trains were 
inspected, thus, using a conservative estimate of 10 cars per train, 
approximately 13,000 cars were inspected. Therefore, approximately only 
6 percent of the cars inspected were found to contain either a 
mechanical or brake defect. Furthermore, of the approximate 750 cars 
alleged to have been found defective, only approximately 20 percent of 
those cars contained a power brake-related defect. Consequently, only 
about 1-2 percent of the total cars inspected contained a power brake-
related defect. Moreover, from the information provided it appears that 
none of the trains contained in the BRC submission were involved in any 
type of accident or incident related to the defective conditions 
alleged.
    FRA believes that the key to any inspection scheme developed for 
long-distance intercity passenger trains is the quality of the 
inspection which is performed at a train's point of origin. FRA is 
convinced that if a train is properly inspected with highly qualified 
inspectors and has 100 percent operative brakes at its point of origin, 
then the train can easily travel up to 1,500 miles between brake 
inspections without significant deterioration of the braking system. 
FRA independently monitored a few long-distance intercity passenger 
trains running from New York to Miami, New York to New Orleans, and New 
York to Chicago and found that when the trains departed from their 
point of origin with a brake system that was defect free they arrived 
at destination without any defective conditions existing on the trains' 
brake system. These findings are consistent with FRA's experience in 
inspecting long-distance intercity passenger trains over the last 
several years. It should be noted that during this independent 
monitoring, FRA did find some trains that after receiving initial 
terminal inspections still contained some defective conditions on the 
brake system. Although FRA believes that none of the defective 
conditions found would have prevented the safe operation of the trains, 
FRA recognizes that FRA as well as the railroads must be vigilant in 
ensuring that quality brake system inspections are performed on a train 
at its point of origin and at each location where a Class I brake test 
is required to be performed. Consequently, due to the comprehensive 
nature of Class I brake tests and the exterior

[[Page 25568]]

calendar day mechanical inspection combined with the technological 
advances incorporated into the braking systems utilized in these types 
of trains and after a review of the data and information provided and 
based on FRA's experience with these types of operations, FRA intends 
to retain the proposed 1,500 mileage interval for the performance of 
Class I brake tests in this final rule.

VII. Movement of Defective Equipment

A. Background

    The current regulations do not contain requirements pertaining to 
the movement of equipment with defective power brakes. The movement of 
equipment with these types of defects is currently controlled by a 
specific statutory provision originally enacted in 1910, which states:

    (a) GENERAL.-- A vehicle that is equipped in compliance with 
this chapter whose equipment becomes defective or insecure 
nevertheless may be moved when necessary to make repairs, without a 
penalty being imposed under section 21302 of this title, from the 
place at which the defect or insecurity was first discovered to the 
nearest available place at which the repairs can be made--
    (1) on the railroad line on which the defect or insecurity was 
discovered; or
    (2) at the option of a connecting railroad carrier, on the 
railroad line of the connecting carrier, if not further than the 
place of repair described in clause (1) of this subsection.

49 U.S.C. 20303(a) (emphasis added).
    Although there is no limit contained in 49 U.S.C. 20303 as to the 
number of cars with defective equipment that may be hauled in a train, 
FRA has a longstanding interpretation which requires that, at a 
minimum, 85 percent of the cars in a train have operative brakes. FRA 
bases this interpretation on another statutory requirement which 
permits a railroad to use a train only if Aat least 50 percent of the 
vehicles in the train are equipped with power or train brakes and the 
engineer is using the power or train brakes on those vehicles and on 
all other vehicles equipped with them that are associated with those 
vehicles in a train.'' 49 U.S.C. 20302(a)(5)(B). As originally enacted 
in 1903, section 20302 also granted the Interstate Commerce Commission 
(ICC) the authority to increase this percentage, and in 1910 the ICC 
issued an order increasing the minimum percentage to 85 percent. See 49 
CFR 232.1, which codified the ICC order.
    As virtually all freight cars are presently equipped with power 
brakes and are operated on an associated trainline, the statutory 
requirement is in essence a requirement that 100 percent of the cars in 
a train have operative power brakes, unless being hauled for repairs 
pursuant to 49 U.S.C. 20303. Consequently, FRA currently requires that 
equipment with defective or inoperative air brakes make-up no more than 
15 percent of the train and that, if it is necessary to move the 
equipment from where the railroad first discovered it to be defective, 
the defective equipment be moved no farther than the nearest place on 
the railroad's line where the necessary repairs can be made or, at the 
option of the receiving carrier, to a repair point that is no farther 
than the repair point on the delivering line.
    The requirements regarding the movement of equipment with defective 
or insecure brakes noted above can and do create safety hazards as well 
as operational difficulties in the area of commuter and intercity 
passenger railroad operations. As the provisions regarding the movement 
of defective brake equipment were written almost a century ago, they do 
not address the realities of these types of operations in today's 
world. Strict application of the requirements has the potential of 
causing major disruptions of service and serious safety and security 
problems. For example, requiring repairs to be made at the nearest 
location where the necessary repairs can be made could result in 
passengers being discharged between stations where adequate facilities 
for their safety are not available or in the overcrowding of station 
platforms and trailing trains due to discharging passengers from a 
defective train at a location other than the passenger's destination. 
In addition, strict application of the statutory requirements could 
result in the moving of trains with defective brake equipment against 
the current of traffic during busy commuting hours. Irregular movements 
of this type increase the risk of collisions on the railroad. 
Furthermore, many of today's commuter train operations often utilize 
six cars or less in trains and in many instances operate just two-car 
trains. Consequently, the necessity to cut out the brakes on one car 
can easily result in noncompliance with the 85-percent requirement for 
hauling the car for repairs, thus prohibiting the train's movement and 
resulting in the same type of safety problems noted above.

B. Overview of 1997 NPRM

    In the NPRM, FRA attempted to recognize the nature of commuter and 
intercity passenger operations and the importance of addressing the 
safety of passengers, as well as avoiding disruption of this service, 
when applying the requirements regarding the movement of equipment with 
defective brakes on a day-to-day basis. In addition, the 
representatives of commuter and intercity passenger train operations 
participating in the proceeding requested that the regulations be 
brought up to date, recognizing that brakes will have to be cut out en 
route from time to time (e.g., because of damage from debris on the 
track structure or because of sticking brakes), and that contemporary 
braking systems and established stopping distances provide a very 
considerable margin of safety. Representatives from APTA proposed a 
method of updating the existing requirements regarding the movement of 
commuter passenger equipment with defective brakes to bring them more 
in line with the realities of today's operations. FRA believed that the 
restrictions proposed by APTA were very conservative and effectively 
ensure a high level of safety in light of the reliability of braking 
systems currently used in commuter and intercity passenger train 
operations. FRA believed that affirmatively recognizing appropriate 
movement restrictions would actually enhance safety, since compliance 
with the existing restrictions is potentially unsafe.
    FRA recognized that some of the restrictions proposed in the NPRM 
were not in accord with the requirements contained in 49 U.S.C. 
20303(a). Therefore, FRA proposed the utilization of the authority 
granted in 49 U.S.C. 20306 to exempt passenger train operations covered 
by this part from the statutory requirements contained in 49 U.S.C. 
20303(a) permitting the movement of equipment with defective or 
insecure brakes only if various requirements are met, including the 
requirement that the movement for repair be only to the nearest 
location where the necessary repairs can be made. FRA believed that the 
granting of this exemption was justified based on the technological 
advances made in the brake systems and equipment used in passenger 
operations, and was necessary for these operations to make efficient 
use of the technological advances and protect the safety of the riding 
public. See 62 FR 49740-42, 49756-58. Although FRA recognized that it 
could be argued that the purpose of section 20306 is too narrow to 
comprehend the instant application, FRA believed that the use of the 
provision as contemplated in this proposal was consistent with the 
authority granted the Secretary of Transportation. As noted previously, 
the

[[Page 25569]]

statutory requirements regarding the movement of equipment with 
defective brake equipment were written nearly a century ago and, in 
FRA's opinion, were focused generally on the operation of freight 
equipment and did not contemplate the types of commuter and intercity 
passenger train operations currently prevalent throughout the nation. 
Since the original enactment in 1910 of the provisions now codified at 
49 U.S.C. 20303(a), there have been substantial changes both in the 
nature of the operations of passenger trains as well as in the 
technology used in those operations.
    In the NPRM, FRA noted that contemporary passenger equipment 
incorporates various types of advanced braking systems; in some cases 
these include electrical activation of brakes on each car (with 
pneumatic application through the train line available as a backup). 
Dynamic brakes are also typically employed to limit thermal stresses on 
friction surfaces and to limit the wear and tear on the brake 
equipment. Furthermore, the brake valves and brake components used 
today are far more reliable than was the case several decades ago. In 
addition to these technological advances, the brake equipment used in 
commuter and intercity passenger train operations incorporate advanced 
technologies not found with any regularity in freight operations. These 
include:
     The use of brake cylinder pressure indicators which 
provide a reliable indication of the application and release of the 
brakes.
     The use of disc brakes which provide shorter stopping 
distances and decrease the risk of thermal damage to wheels.
     The ability to effectuate a graduated release of the 
brakes due to a design feature of the brake equipment which permits 
more flexibility and more forgiving train control.
     The ability to cut out brakes on a per-axle or per-truck 
basis rather than a per car basis, thus permitting greater use of those 
brakes that are operable.
     The use of a pressure-maintaining feature on each car 
which continuously maintains the air pressure in the brake system, 
thereby compensating for any leakage in the trainline and preventing a 
total loss of air in the brake system.
     The use of a separate trainline from the locomotive main 
reservoir to continuously charge supply reservoirs independent of the 
brake pipe train line.
     Brake ratios that are 2\1/2\ times greater than the brake 
ratios of loaded freight cars.
    Although some of the technologies noted above have existed for 
several decades, most of the technologies were not in wide spread use 
until after 1980. Furthermore, most of the noted technological advances 
just started to be integrated into one efficient and reliable braking 
system within the last decade. In addition to the technological 
advances, commuter and intercity passenger train operations have 
experienced considerable growth in the last 15 years necessitating the 
need to provide more reliable and efficient service to the riding 
public. Since 1980, the number of commuter operations providing rail 
service has almost doubled and the number of daily passengers serviced 
by passenger operations has more than doubled over the same time 
period. Furthermore, commuter and intercity passenger train operations 
conduct more frequent single car tests, COT&S, and maintenance of the 
braking systems than is generally the practice in the freight industry. 
Consequently, FRA concluded that the technology incorporated into the 
brake equipment used in today's commuter and intercity passenger train 
operations has increased the reliability of the braking system and 
permits the safe operation of the equipment for extended distances even 
though a portion of the braking system may be inoperative or defective.
    FRA also proposed an exemption for passenger train operations from 
a long-standing agency interpretation, based on a 1910 ICC order 
codified at 49 CFR 232.1, that prohibits the movement of a train for 
repairs under 49 U.S.C. 20303 if less than 85 percent of the train's 
brakes are operative. FRA found that many passenger operations utilize 
a small number of cars in their trains and the necessity to cut out the 
brakes on just one car can easily result in noncompliance. FRA believed 
that the proposed speed restrictions would compensate for the loss of 
brakes on a minority of cars. See 62 FR 49740-42, 49756-58.
    Based on the preceding discussions, FRA proposed various 
restrictions on the movement of vehicles with defective brake equipment 
which allow commuter and intercity passenger train operations to take 
advantage of the efficiencies created due to the advanced braking 
systems these operations employ as well as the improvements made in 
brake equipment over the years, while ensuring if not enhancing the 
safety of the traveling public. See 62 FR 49756-58, 49796-98. FRA 
proposed to permit trains to be operated with up to 50 percent 
inoperative brakes to the next forward passenger station or terminal 
based on the percentage of operative brakes, which may have resulted in 
movements past locations where the necessary repairs could be made. 
However, to ensure the safety of these trains with lower percentages of 
operative brakes, FRA also proposed various speed restrictions and 
other operating restrictions, based on the percentage of operative 
brakes. FRA believed that the proposed speed restrictions were very 
conservative and ensured a high level of safety. In fact, test data 
established that with the proposed speed restrictions the stopping 
distances of those trains with lower percentages of operative brakes 
were shorter than if the trains were operating at normal speed and had 
100 percent operative brakes. Consequently, FRA believed that the 
proposed approach to the movement of equipment with defective brakes 
not only enhanced the overall safety of train operations but benefitted 
both the railroads, by providing operational flexibility, and the 
traveling public, by permitting them to get to their destinations in a 
more expedient and safe fashion.
    FRA also proposed various requirements to ensure that equipment 
being hauled for repairs is adequately identified. Currently, there is 
no requirement that equipment with defective power brakes be tagged or 
otherwise identified, although most railroads voluntarily engage in 
such activity. Furthermore, the current regulations regarding freight 
cars and locomotives contain tagging requirements for the movement of 
equipment not in compliance with those parts. See 49 CFR 215.9 and 
229.9. Therefore, FRA proposed specific requirements related to the 
identification of equipment with defective power brakes through either 
the traditional tags which are placed in established locations on the 
equipment or by an automated tracking system developed by the railroad. 
See 62 FR 49796-98. FRA also proposed that certain information be 
contained whichever method was used by a railroad. FRA believed that 
the proposed tagging or tracking requirements add reliability, 
accountability, and enforceability to ensure the timely and proper 
repair of equipment with defective power brakes.
    FRA also proposed a new method for calculating the percentage of 
operative power brakes (operative primary brakes) in a train. Although 
the statute discusses the percentage of operative brakes in terms of a 
percentage of vehicles, the statute was written nearly a century ago 
and at that time the only way to cut out the brakes on a car or 
locomotive was to cut out the entire unit. See 49 U.S.C. 
20302(a)(5)(B).

[[Page 25570]]

Today, virtually every piece of equipment used in passenger service can 
have the brakes cut out on a per-truck or per-axle basis. Consequently, 
FRA merely proposed a method of calculating the percentage of operative 
brakes based on the design of passenger equipment used today, and thus, 
a means to more accurately reflect the true braking ability of the 
train as a whole. FRA believed that the proposed method of calculation 
was consistent with the intent of Congress when it drafted the 
statutory requirement and simply recognized the technological 
advancements made in braking systems over the last century. 
Consequently, FRA proposed that the percentage of operative brakes 
would be determined by dividing the number of axles in the train with 
operative brakes by the total number of axles in the train. 
Furthermore, for equipment utilizing tread brake units (TBU), FRA 
proposed that the percentage of operative brakes be determined by 
dividing the number of operative TBUs by the total number of TBUs. See 
62 FR 49757, 49797.
    The NPRM also contained proposed provisions regarding the movement 
of equipment with other than power brake defects. See 62 FR 49758-59, 
49798-99. There are currently no statutory or regulatory restrictions 
on the movement of passenger cars with defective conditions that are 
not power brake or safety appliance related. The proposed provisions 
contained in the NPRM were similar to the provisions for moving 
defective locomotives and freight cars currently contained in 49 CFR 
229.9 and 215.9, respectively. As these provisions have generally 
worked well with regard to the movement of defective locomotives and 
freight cars and in order to maintain consistency, FRA modeled the 
proposed movement requirements on those existing requirements. FRA 
proposed to allow passenger railroads the flexibility to continue to 
use equipment with non-safety-critical defects until the next scheduled 
calendar day exterior mechanical inspection. However, FRA intended for 
the calendar day mechanical inspections to be the tool used by 
railroads to repair all reported defects and to prevent continued use 
of defective equipment to carry passengers.
    In the NPRM, FRA intended for 49 CFR 229.9 to continue to govern 
the movement of locomotives used in passenger service which develop 
defective conditions, not covered by part 238, that are not in 
compliance with part 229. FRA also did not intend to alter the current 
statutory requirements contained in 49 U.S.C. 20303 regarding the 
movement of passenger equipment with defective or insecure safety 
appliances. Consequently, in the NPRM, FRA required that passenger 
equipment that develops a defective or insecure safety appliance 
continue to be subject to all the statutory restrictions on its 
movement. It should be noted that the proposed requirements applicable 
to Tier I equipment merely referenced the Railroad Safety Appliance 
Standards (49 CFR part 231); however, FRA proposed separate safety 
appliance requirements for Tier II passenger equipment.
    FRA proposed that passenger equipment that is found with conditions 
not in compliance with this part, other than power brake defects, be 
moved only after a QMI has determined that the equipment is safe to 
move and determined any restrictions necessary for the equipment's safe 
movement. FRA also allowed railroads to move equipment based on an 
assessment made by a QMI in communication with on-site personnel. FRA 
proposes this based on the reality that mechanical personnel are not 
readily available at every location on a railroad's line of road. 
However, FRA further proposed that if a QMI does not actually inspect 
the equipment to determine that it is safe to move, then, at the first 
forward location where a QMI is on duty, an inspector will perform a 
physical inspection of the equipment to confirm the initial assessment 
made while in communication with on-site personnel previously.
    The NPRM also required the tracking of defective equipment in 
either of two ways. One option was to tag the equipment in a manner 
similar to what is currently required under Sec. 215.9 for freight 
cars. The second option was to record the specified information in an 
automated tracking system. The latter alternative was offered to 
provide railroads some flexibility and was made in recognition of 
advances in electronic recordkeeping.

C. Discussion of Comments on the 1997 NPRM and General FRA Conclusions

1. Movement of Equipment With Defective Brakes
    Labor representatives raised several concerns, both in their 
written comments and at the Working Group meetings, regarding the 
proposed provisions related to the movement of passenger equipment with 
defective power brakes. These commenters objected to FRA's use of the 
authority granted in 49 U.S.C. 20306 to exempt passenger train 
operations covered by this part from the statutory requirements 
contained in 49 U.S.C. 20303(a) permitting the movement of equipment 
with defective or insecure brakes only if various requirements are met, 
including the requirement that the movement for repair be only to the 
nearest location where the necessary repairs can be made. These 
commenters contend that the statutory provisions contained in 49 U.S.C. 
20306 were not intended to permit FRA to waive the movement for repair 
provisions contained in the Safety Appliance Acts for an entire segment 
of the industry. Furthermore, these commenters contend that FRA is 
improperly relying on technological advances that exist on passenger 
trains to invoke the authority under 49 U.S.C. 20306 because many of 
the technological advances cited by FRA do not currently exist or are 
not currently used on a large portion of the passenger fleet. Labor 
representatives contend that passenger equipment which develops 
defective brake equipment should only be permitted to move to a 
location where the passengers can be off-loaded with appropriate speed 
restrictions.
    Labor representatives also objected to FRA's statement that the 
term ``power brake defect'' does not include a failure to inspect such 
a component. These commenters claim that FRA's exclusion of the failure 
to properly inspect a brake component eliminates an important means of 
enforcement necessary to ensure that proper power brake inspections are 
performed. It is claimed that by excluding the failure to inspect from 
being a power brake defect, FRA has eliminated any incentive for 
railroads to ensure that trains have operative brakes because there 
will be little financial repercussion to continuing to use improperly 
inspected equipment. These commenters also objected to the proposed 
provision that requires the railroad operating long-distance intercity 
passenger trains to designate those location where power brake repairs 
will be conducted. It is claimed that by allowing the carriers to 
designate such locations the carrier is in absolute control of how far 
defective equipment will travel and abuse of the provision may occur. 
Labor representatives also objected to allowing railroads to use 
automated tracking systems to record information regarding defective 
equipment. These commenters believe that tagging the equipment must be 
required in order for inspectors to readily identify defective 
equipment. It is further contended that an automated tracking system is 
susceptible to manipulation, abuse and reduces accountability. One 
commenter recommended that FRA add further restrictions on the use and 
movement of

[[Page 25571]]

cars with defective brakes at the front or rear of the train.
    Railroad representatives and APTA representatives did not provide 
many comments on the proposed provisions related to the movement of 
passenger equipment with defective brakes. These commenters did note 
that there was not a major benefit to the railroads with being able to 
haul certain defective equipment to the next forward terminal as 
proposed. These commenters did recommend that FRA provide the railroads 
at least two years to develop and implement the defect reporting and 
tracking system proposed in the NPRM.
    After considering the written comments submitted and the 
information provided at the Working Group meetings, FRA has determined 
that some minor changes need to be made to the requirements proposed in 
the NPRM regarding the movement of equipment with defective power 
brakes. In order to avoid the legal implications involved with 
employing the statutory authority contained at 49 U.S.C. 20306 for 
exempting equipment from the statutory requirements related to safety 
appliances and power brakes, and because railroad representatives 
acknowledged that the flexibility provided through reliance on the 
exemption is minimal, FRA will not rely on the statutory exemption 
provision contained at 49 U.S.C. 20306 in this final rule and will 
modify the movement for repair provisions accordingly. FRA will retain 
the exemption for passenger train operations from a long-standing 
agency interpretation that prohibits the movement of a train for 
repairs under 49 U.S.C. 20303 if less than 85 percent of the train's 
brakes are operative. The interpretation is based on a 1910 ICC order 
codified at 49 CFR 232.1, FRA believes that this requirement is overly 
restrictive when applied to passenger train operations as many 
passenger operations utilize a small number of cars in their trains and 
the necessity to cut out the brakes on just one car can easily result 
in noncompliance. FRA believes that the retention of the speed 
restrictions contained in the proposal will fully compensate for the 
loss of brakes on a minority of cars. FRA rejects the BRC's 
recommendation that passenger trains with defective brakes be permitted 
to move no farther than the next passenger station because such a 
stringent requirement is unnecessary, more restrictive that the current 
statutory mandate regarding the movement of defective brake equipment, 
and is radically counter to the way passenger trains currently handle 
defective equipment.
    FRA intends to retain those portions of the movement for repair 
requirements that are consistent with the existing statutory provisions 
regarding the movement of equipment with power brake defects and revise 
those that are contrary. Therefore, passenger trains operating with 75-
99 percent operative brakes will not be permitted to travel to the next 
forward terminal as proposed, but will be permitted to travel only to 
the next forward location were the necessary repairs to the brake 
equipment can be effectuated as mandated in the existing statute. In 
FRA's view, all of the other proposed methods for moving defective 
power brake equipment are consistent with and are in accordance with 
the current statutory requirements and can be retained. For example, 
FRA will retain the provisions which permit a passenger train with 50-
75 percent operative brakes to be moved at reduced speeds to the next 
forward passenger station. Although the percentage of operative brakes 
is lower than currently permitted by FRA's longstanding agency 
interpretation (which FRA believes is fully compensated for by the 
speed restrictions), FRA believes that the movement of the defective 
equipment to the next passenger station is in accordance with the 
statutory requirement as the safety of the passengers must be 
considered in determining the nearest location where necessary repairs 
can be made. In addition, permitting passenger trains to continue to 
the next forward location where the necessary repairs can be performed 
is also consistent with the statutory requirement as such movement is 
necessary to ensure the safety of the traveling public by protecting 
them from the hazards incident to performing movements against the 
current of traffic. Furthermore, retention of the movement provisions 
related to long-distance intercity passenger trains and long-distance 
Tier II equipment are consistent with the current statutory 
requirements as these provisions permit the movement of defective brake 
equipment on these trains only to the next passenger station or the 
next repair location, with various speed restrictions depending on the 
percentage of operative brakes.
    FRA will also retain the requirement that operators of long-
distance passenger trains designate the locations where repairs can be 
conducted on the equipment. Although FRA agrees that this provision 
puts the control of what locations constitute repair locations in the 
hands of the railroad, FRA believes that the operators of these long-
distance intercity trains are in the best position to determine which 
locations have the necessary expertise to handle the repairs of the 
somewhat advanced braking systems utilized in passenger trains. Due to 
the unique technologies used on the brake systems of these operations 
and the unique operating environments, the facilities and personnel 
necessary to conduct proper repairs on this equipment are somewhat 
specialized and limited. Moreover, FRA is retaining the broad 
performance-based requirement that railroads operating this equipment 
designate a sufficient number of repair locations to ensure the safe 
and timely repair of the equipment. Contrary to the beliefs of some 
labor commenters, FRA believes that this performance standard provides 
FRA sufficient grounds to institute civil penalty enforcement actions 
or take other enforcement actions if, based on its expertise and 
experience, FRA believes the railroad is failing to designate an 
adequate number of repair locations.
    Rather than attempt to develop a standard applicable to all 
situations in the context of short-distance intercity and commuter 
trains, which FRA does not believe can be accomplished, FRA intends to 
approach the issue of what constitutes the next forward location where 
repairs can be effectuated based on a case-by-case analysis of each 
situation. FRA believes that its field inspectors are in the best 
position to determine whether a railroad exercised good faith in 
determining when and where to move a piece of defective equipment. In 
making these determinations both the railroad as well as FRA's 
inspectors must conduct a multi-factor analysis based on the facts of 
each case. In determining whether a particular location is a location 
where necessary repairs can be made or whether a location is the next 
forward repair location in a passenger train context, the accessibility 
of the location, the ability to safely make the repairs at that 
location, and the safety of the passengers are the overriding factors 
that must be considered in any analysis. These factors have a multitude 
of sub-factors which must be considered, such as: the type of repair 
required; the safety of employees responsible for conducting the 
repairs; the safety of employees responsible for getting the equipment 
to or from a particular location; the switching operations necessary to 
effectuate the move; the railroad's recent history and current practice 
of making repairs (brake and non-brake) at a particular location; 
relevant weather

[[Page 25572]]

conditions; potential overcrowding of passenger platforms; and the 
overcrowding of trailing trains.
    FRA will also retain the requirement that equipment found with 
conditions not in compliance with this part must be appropriately 
tagged or recorded in an automated tracking system. Although FRA is 
sensitive to the concerns raised by labor representatives regarding the 
use of automated tracking systems, FRA believes that provisions must be 
provided to allow railroads to take advantage of existing and 
developing technologies regarding the electronic maintenance and 
retention of records. Although railroad and FRA inspectors may require 
additional training on the use of electronic records, FRA believes that 
the use of such a medium to track defective equipment can expedite the 
identification and repair of defective equipment and, thus, reduce the 
time that defective equipment is operated in passenger service. In 
response to labor's concerns, the final rule contains a provision which 
will give FRA the ability to monitor and review a railroad's automated 
tracking system and will provide FRA the ability to prohibit or revoke 
a railroad's ability to utilize an automated tracking system in lieu of 
directly tagging defective equipment if FRA finds that the automated 
tracking system is not properly secure, inaccessible to FRA or a 
railroad's employees, or fails to adequately track and monitor the 
movement of defective equipment. Furthermore, if the automated tracking 
system developed and implemented by a railroad does not accurately and 
adequately record the information required by this part, the railroad 
will be in violation of the movement for repair provisions and subject 
to civil penalty liability.
    In response to one labor commenter's concerns, FRA is slightly 
modifying the provisions related to the operation of trains with 
defective brakes on the front or rear car. In the NPRM, FRA proposed 
that if the power brakes on the front or rear unit become inoperative 
then a qualified person must be stationed at the handbrake on the unit. 
See 62 FR 49797. FRA recognizes that in some instances the handbrake on 
a car located at the front or rear of a train may not be accessible to 
a member of the train crew or may be located outside the interior of 
the car and, thus, unsafe for a crew member to operate while the train 
is in motion. FRA also recognizes that in many circumstances when a car 
at the front or rear of the train has inoperative brakes certain speed 
restrictions should be placed on the train; however, FRA believes that 
railroads are in the best position to determine what the appropriate 
speed restriction should be given the circumstances involved. 
Consequently, FRA is modifying the requirements for the use of such 
cars and will add provisions requiring that appropriate speed 
restrictions be imposed and that equipment with inaccessible handbrakes 
or with handbrakes located outside the interior of a car be removed or 
repositioned in the train at the first possible location.
    FRA believes that the concern raised by certain labor 
representatives regarding FRA's definition of ``power brake defect'' is 
due to a lack of understanding of the proposed rule as well as a 
misunderstanding of the current regulations. Under the current power 
brake regulations the unit of violation for failure to inspect is the 
train not individual cars, although FRA can take a separate violation 
for each car containing a defective condition upon departure after the 
train received or should have received an initial terminal inspection 
or for each car not identified as defective after the performance of an 
intermediate inspection. Moreover, the failure to inspect a piece of 
equipment cannot be cured through any of the proposed provisions 
regarding the movement of defective equipment. That is, if a railroad 
fails to inspect a piece of equipment as required, the railroad cannot 
avoid civil penalty liability by moving the equipment in accordance 
with the proposed provisions. Furthermore, the final rule contains 
specific civil penalties for a railroad's failure to perform 
inspections as required. Railroads will also continue to be subject to 
potential civil penalty for any car found in defective condition after 
it has performed or should have performed a Class I or Class IA brake 
test and any car not properly moved or identified as defective at other 
times. The final rule will also retain the proposed provision providing 
that passenger equipment will be considered ``in use'' prior to 
departure but after it has received or should have received an 
inspection required by this part. Thus, FRA inspectors will no longer 
have to wait until a piece of equipment departs a location before 
issuing a civil penalty, a practice continually criticized by both 
labor and railroad representatives.
    In addition, the NPRM as well as this final rule provides FRA 
inspectors the ability to issue Special Notices for Repair, which 
enable an FRA inspector to remove an unsafe piece of equipment from 
service until appropriate action is taken by the railroad. See 62 FR 
49790. This enforcement tool is not currently available to FRA 
inspectors in the area of power brakes and mechanical components on 
passenger equipment and could be used in circumstances where passenger 
equipment is not inspected prior to being placed in service. 
Consequently, the final rule will not only retain all of the 
enforcement tools available to FRA under the current regulations but 
will include other methods for ensuring compliance by the railroads and 
provide both a financial and operational incentive for railroads to 
properly inspect passenger equipment.
    Some of the members of the Working Group, particularly those 
representing labor organizations, expressed concern that any alteration 
of the movement for repair provisions made in the context of commuter 
and intercity passenger train operations may have a spillover effect 
into the freight industry. FRA wishes to make clear that it has no 
intention, at this time, of providing freight operations the 
flexibility to handle defective brake equipment that it is providing 
passenger operations. As noted above, many of the advanced brake system 
technologies currently used in passenger service are not used in the 
freight context. Furthermore, even if freight operations were to make 
similar advances in the braking equipment they employ, this development 
on the freight side may not create the efficiencies created in the 
passenger train context since the operating environments of freight 
trains and passenger trains differ significantly. More importantly, the 
special safety considerations relative to passengers are not present in 
freight operations.
2. Movement of Equipment With Other Than Power Brake Defects
    Railroad representatives expressed some concerns regarding the 
provisions related to the movement of equipment with other than a power 
brake defect. The primary recommendation of these commenters was that 
FRA should revise the proposed provisions to require the use of a 
``qualified maintenance person'' (qualified mechanical inspector (QMI) 
in the NPRM) only when a potentially safety-critical running gear 
defect is involved. These commenters believed that the requirement to 
have the car inspected by a QMP whenever a nonsafety-critical running 
gear component becomes defective would impose unnecessary, significant 
delays to their operations and is counter to current operating 
practices. These commenters contended that a ``qualified person'' as 
defined in the proposal would be sufficient to determine the safety 
implications in moving many of the mechanical components covered by the 
rule if they were to become defective en route. For example, it was 
noted that

[[Page 25573]]

a highly qualified inspector was not necessary to determine whether a 
car that experiences a defective door, cracked window, or burnt out 
light bulbs could or should remain in service. Railroad representatives 
also sought additional flexibility in the movement of equipment with a 
nonsafety-critical running gear defect from a calendar day mechanical 
inspection.
    Labor representatives also raised a number of concerns with the 
provisions related to the movement of equipment with other than power 
brake defects. One concern raised by these commenters indicated that 
FRA should not allow railroads to determine which mechanical components 
are ``safety-critical'' as such an approach would create a massive 
loophole and render some of the movement restrictions unenforceable. 
These commenters also voiced concerns over FRA's proposal that an off-
site mechanical inspector could make an assessment regarding the safety 
of moving a certain piece of equipment based on the communication with 
on-site personnel. Although these commenters appeared to recognize the 
flexibility provided by such an approach, they raised concerns that 
such an approach is ripe for abuse and would require a mechanical 
inspector to rely on the observation of personnel lacking the necessary 
training and expertise. The commenters believed that further 
restrictions need to be placed on these communications but they failed 
to specify any specific restrictions that could be utilized. Labor 
representatives again raised concerns over FRA's allowance of an 
automated tracking system in lieu of direct tagging of defective 
equipment. These commenters reiterated their concerns that such a 
system can be easily manipulated and removes accountability from the 
system of repairing defective equipment.
    After review of the comments submitted and provided orally at the 
Working Group meetings, FRA has made some modest changes in the final 
rule regarding the movement of equipment with non-power brake defects. 
FRA agrees with the comments of railroad representatives that the NPRM 
may have been over-reaching in requiring a QMP to make a determination 
regarding the safety of moving a piece of defective equipment for any 
of the mechanical components addressed in this regulation. However, FRA 
also agrees with the comments submitted by labor representatives that 
railroads should not determine what components are considered safety-
critical. Therefore, FRA will require a determination regarding the 
safety of moving a piece of equipment by a QMP whenever a potential 
running gear defect is involved. FRA rejects the language proposed by 
APTA that the defect be a potentially ``safety-critical'' running gear 
defect as FRA believes that any defect to a running gear component is 
potentially safety-critical. In order to avoid confusion, FRA is 
providing an explicit definition of ``running gear defect.'' FRA is 
defining the term to mean any defective condition which involves a 
truck component, the propulsion system, the draft system, a wheel or a 
wheel component. In the final rule, FRA will permit the use of a 
qualified person to determine the safety and establish appropriate 
movement restrictions on continued use of equipment which involves non-
running gear defects.
    FRA will also provide very limited flexibility to the railroads to 
operate defective equipment from a location where a calendar day 
mechanical inspection was performed in order to effectuate repairs. FRA 
intends for the calendar mechanical inspection to be as comprehensive 
as possible and to be the time when all defective components are 
identified and repaired. In order to ensure that these daily 
inspections are performed by highly qualified personnel, FRA has 
provided the railroads with considerable flexibility to perform these 
inspections at locations that are best suited to a quality and 
comprehensive inspection. Therefore, FRA will permit the movement of 
defective equipment from these inspection locations with very stringent 
restrictions. Equipment containing running gear defects may only be 
moved from such locations if it is not in passenger service and is in a 
non-revenue train. Equipment containing non-running gear defects may be 
moved in a revenue train provide the equipment is locked-out and empty. 
Any equipment moved must also be properly identified and moved in 
accordance with any movement restriction imposed. FRA believes these 
stringent movement restrictions will provide railroads limited 
flexibility to move defective equipment to a location where it can best 
be repaired but will limit a railroad's desire or ability to move 
defective equipment from these inspection locations and will encourage 
the performance of the calendar day mechanical inspections at locations 
where repairs to equipment can be conducted.
    FRA has also retained the requirement that the QMP may make his or 
her determination regarding the continued use of equipment containing a 
potential running gear defect based on the description provided by on-
site personnel. Although FRA recognizes the concerns raised by labor 
representatives, FRA believes that the rule must recognize the reality 
of current operations and acknowledge the fact that mechanical 
personnel are not readily available at every location on a railroad's 
line of road. Furthermore, when such off-site determinations are made 
the rule requires that the equipment only be moved to the next forward 
location where the equipment can be inspected by a QMP to verify the 
description of the defect provided by the on-site personnel.
    FRA is also adding a provision to the requirements dealing with the 
movement of equipment with other than power brake defects to address 
the inspection of roller bearings on a car whose truck is involved in a 
derailment. The added requirement prohibits a railroad from continuing 
in service a piece of passenger equipment that has a roller bearing 
whose truck was involved in a derailment unless the bearing is 
inspected and tested in accordance with the stated provisions. The 
added provision is identical to the requirement currently contained in 
49 CFR Sec. 215.115(b). Although the existing provision is applicable 
to freight cars, virtually every passenger train operation follows the 
provisions contained in that section prior to returning a piece of 
equipment to service after it was involved in a derailment and, thus, 
should not result in any added burden to the industry. FRA believes 
that the practice is critical to ensuring the proper operation of the 
roller bearing after a derailment occurs and should be incorporated 
into this final rule.
    FRA also intends to make clear that the movement of equipment with 
a defective safety appliance will continue to be governed by the 
statutory provisions contained at 49 U.S.C. 20303. As noted previously 
this provision permits the movement of defective equipment to the 
nearest location where the necessary repairs can be made. The 
determination of what constitutes the nearest location where the 
necessary repairs can be effectuated in a safety appliance context is 
identical to the analysis required when dealing with a power brake 
defect. In making these determinations both the railroad as well as 
FRA's inspectors must conduct a multi-factor analysis based on the 
facts of each case. In determining whether a particular location is a 
location where necessary repairs can be made or whether a location is 
the nearest repair location in a passenger train context, the 
accessibility of the location, the ability to safely make the repairs 
at that location, and the safety of the

[[Page 25574]]

passengers are the overriding factors that must be considered in any 
analysis. These factors have a multitude of sub-factors which must be 
considered, such as: the type of repair required; the safety of the 
passengers if a move against the current of traffic is conducted; the 
safety of employees responsible for conducting the repairs; the safety 
of employees responsible for getting the equipment to or from a 
particular location; the switching operations necessary to effectuate 
the move; the railroad's recent history and current practice of making 
repairs (brake and non-brake) at a particular location; relevant 
weather conditions; potential overcrowding of passenger platforms; and 
the overcrowding of trailing trains. Therefore, in many circumstances 
trains will be permitted to continue to the next forward location where 
the necessary repairs can be performed as such movement is necessary to 
ensure the safety of the traveling public by protecting them from the 
hazards incident to performing movements against the current of 
traffic.

VIII. FRA's Passenger Train Safety Initiatives

    This final rule is part of several related and complementary 
efforts by FRA to improve the safety of rail passenger service. FRA has 
issued regulations governing emergency preparedness and emergency 
response procedures for rail passenger service in a separate rulemaking 
proceeding, designated as FRA No. PTEP-1. See 63 FR 24630, May 4, 1998. 
FRA formed a separate working group (the Passenger Train Emergency 
Preparedness Working Group) to assist FRA in the development of such 
regulations. This related proceeding has addressed some of the issues 
FRA originally identified in the ANPRM on passenger equipment safety. 
Persons wishing to receive more information regarding this other 
rulemaking should contact Mr. Edward R. English, Director, Office of 
Safety Assurance and Compliance, FRA, 1120 Vermont Avenue, Mail Stop 
25, Washington, D.C. 20590 (telephone number: 202-493-6300), or David 
H. Kasminoff, Esq., Trial Attorney, Office of Chief Counsel, FRA, 1120 
Vermont Avenue, Mail Stop 10, Washington, D.C. 20590 (telephone: 202-
493-6043).
    Further, in response to the separate collisions involving New 
Jersey Transit and MARC trains in early 1996, FRA issued Emergency 
Order No. 20 (Notice No. 1) on February 20, 1996, requiring prompt 
action to immediately enhance passenger train operating rules and 
emergency egress and to develop an interim system safety plan 
addressing the safety of operations that permit passengers to occupy 
the leading car in a train. 61 FR 6876, Feb. 22, 1996. Both the New 
Jersey Transit and MARC train collisions involved operations where a 
cab car occupied the lead position in a passenger train. The Emergency 
Order explained that in collisions involving the front of a passenger 
train, operating with a cab car in the forward position or a multiple 
unit (MU) locomotive, i.e., a self-propelled locomotive with passenger 
seating, presents an increased risk of severe personal injury or death 
as compared with locomotive-hauled service when the locomotive occupies 
the lead position in the train and thereby acts as a buffer for the 
trailing passenger cars. This risk is of particular concern where 
operations are conducted at relatively higher speeds, where there is a 
mix of various types of trains, and where there are numerous highway-
rail crossings over which large motor vehicles are operated. 
Accordingly, the Emergency Order required in particular that 
``railroads operating scheduled intercity or commuter rail service * * 
* conduct an analysis of their operations and file with FRA an interim 
safety plan indicating the manner in which risk of a collision 
involving a cab car is addressed.'' 61 FR 6879.
    The Emergency Order also noted that there is a need to ensure that 
emergency exits are clearly marked and in operable condition on all 
passenger lines, regardless of the equipment or train control system 
used. Although FRA Safety Glazing Standards, 49 CFR part 223, require 
that passenger cars have a minimum of four emergency window exits 
``designed to permit rapid and easy removal during a crisis 
situation,'' the Silver Spring collision raised concerns that at least 
some of the occupants of the MARC train attempted unsuccessfully to 
exit through the windows. The Emergency 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.'' 61 FR 6880. 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 addition, FRA submitted a report to Congress on locomotive 
crashworthiness and working conditions on September 18, 1996, and 
subsequently referred the issues raised in the report to the RSAC. FRA 
established RSAC in March of 1996, to provide FRA with advice and 
recommendations on railroad safety matters. See 61 FR 9740, Mar. 11, 
1996. RSAC consists of 48 individual representatives, drawn from 27 
organizations representing various rail industry perspectives, and two 
associate nonvoting representatives from the agencies with railroad 
safety regulatory responsibility in Canada and Mexico. In September of 
1997, FRA convened the Locomotive Crashworthiness Working Group through 
RSAC to make recommendations as to the best way to address the findings 
of FRA's report to Congress, including developing standards regarding a 
broad range of crashworthiness issues for both passenger and freight 
locomotives. In the context of improving railroad communications, RSAC 
established a working group to specifically address communication 
facilities and procedures, with a strong emphasis on passenger train 
emergency requirements. The final rule that resulted from this effort 
was published on September 4, 1998, reflecting the consensus 
recommendations of the RSAC. 63 FR 47182.
    FRA notes that, in its comments on the NPRM, Siemens Transportation 
Systems, Inc., (Siemens) stated that much of the safety standard 
changes for passenger rail cars could be scaled back if more 
consideration were given to the technology that is available for crash 
avoidance safety systems. Siemens believed the principal safety focus 
should be on efforts to avoid collisions in the first place, such as 
those at highway-rail grade crossings and with other trains.
    FRA recognizes that rail passenger safety involves the safety of 
the railroad system as a whole. FRA does have active rulemaking and 
research projects in a variety of contexts, including signal and train 
control systems, and grade crossing safety. FRA also has existing 
regulations governing both railroad and grade crossing signal system 
safety, for example. (See 49 C.F.R. parts 233-236.) Nevertheless, this 
final rule is designed to address the specific statutory mandate that 
minimum standards be prescribed for the safety of cars used to 
transport railroad passengers, as noted above.

IX. Section-by-Section Analysis

    This section-by-section analysis will explain the provisions of the 
final rule and the changes made from the 1997 NPRM. Of course, a number 
of the issues and provisions involving this rule have been discussed 
and addressed in detail in the preceding discussions. Accordingly, the 
preceding discussions should be considered in conjunction

[[Page 25575]]

with those below and will be referred to as appropriate.

Amendments to 49 CFR Part 216

    Part 216 authorizes certain FRA and participating State inspectors 
to issue Special Notices for Repair, under specified conditions, for 
freight cars with defects under part 215, locomotives with defects 
under parts 229 or 230 or 49 U.S.C. chapter 207, and track with defects 
under part 213. The revisions to part 216 contained in this final rule 
will create a fourth category of Special Notices for Repair: for 
passenger equipment with defects under part 238. Consequently, if an 
inspector determines that noncomplying passenger equipment is ``unsafe 
for further service'' and issues a Special Notice for Repair, the 
railroad will be required to take the passenger equipment out of 
service, to make repairs to bring the equipment into compliance with 
part 238, and to report the repairs to FRA. The final rule also makes 
conforming changes to part 216 reflecting this new enforcement tool.
    This final rule also includes various technical amendments to 
update part 216 to reflect the following: (1) Internal organizational 
changes within FRA; (2) the division of former part 230, Locomotive 
Inspection Regulations, into parts 229 and 230 and the redesignation of 
those portions of former part 230 related to non-steam locomotives as 
part 229, Railroad Locomotive Safety Standards; and (3) the repeal, 
reenactment without substantive change, and recodification of the 
Federal railroad safety laws in 1994. See 45 FR 21092, Mar. 31, 1980; 
Pub. L. 103-272, July 5, 1994.

Amendments to 49 CFR Parts 223, 229, 231, and 232

    FRA is making conforming changes to the applicability sections of 
FRA's Railroad Locomotive Safety Standards, Railroad Safety Appliance 
Standards, and railroad power brakes and drawbars regulations that were 
necessitated by provisions contained in this new part 238. In this 
final rule, FRA has adjusted the application of provisions in parts 
229, 231, or 232 or has deleted certain provisions in those parts to 
avoid duplication of provisions in part 238. FRA has not deleted the 
passenger train brake test and maintenance requirements from part 232, 
at this time, because part 238 will not cover certain operations 
subject to part 232, e.g., tourist, historic, scenic, and excursion 
railroad operations on the general system. Moreover, the requirements 
contained in part 232 will continue to apply to passenger operations 
until the requirements contained in part 238 become effective to such 
operations. FRA is also making a technical amendment to part 223 so as 
to reference the additional emergency window exit and window safety 
glazing requirements found in part 238.

49 CFR Part 238

Subpart A--General
Section 238.1  Purpose and Scope
    Paragraph (a) states the purpose of the rule to prevent collisions, 
derailments, and other occurrences involving railroad passenger 
equipment that cause injury or death to railroad employees, railroad 
passengers, and the general public; and to mitigate the consequences of 
such occurrences to the extent they cannot be prevented. Paragraph (b) 
states that the regulations in this part provide minimum standards for 
the subjects addressed. FRA has nonetheless specified in places 
throughout the regulatory text that the prescribed requirements are 
only minimum standards so as to reinforce this principle. Railroads and 
other persons subject to this part may adopt and enforce more stringent 
requirements, so long as they are not inconsistent with this part.
    Paragraph (c) contains the dates upon which railroads covered by 
this part will be required to comply with the requirements contained in 
this final rule related to the inspection, testing, maintenance, 
training, and movement of defective equipment. FRA recognizes the 
interrelationship between the proper training of railroad personnel and 
the implementation of the inspection, testing, maintenance and movement 
of defective equipment provisions contained in the final rule. FRA 
realizes that in order for railroads to comply with the requirements 
related to the inspection, testing, and maintenance requirements and 
the requirements regarding the movement of defective equipment, the 
railroads must first be provided a sufficient amount of time to develop 
and implement a proper training program. Based on information received 
by FRA, it appears that many railroads are in the initial stages of 
developing training programs or modifying existing programs to meet the 
requirements of this final rule and that this process should be 
completed within a year. After the development of the training programs 
the railroads will need several months to a year to rotate their 
employees through the programs in order not to disrupt the operation of 
their railroads. Thus, FRA believes that 26 months is a sufficient 
amount of time for railroads to develop and train their employees as 
required by this final rule. Consequently, FRA will require compliance 
with the inspection, testing, and maintenance provisions as well the 
movement of defective equipment provisions after that same 26 month 
period.
    FRA also recognizes that there are certain aspects of the 
inspection, testing, and maintenance requirements as well as the 
movement of defective equipment provisions that provide operational 
flexibility to the railroads. Due to this flexibility, FRA believes 
that some railroads will desire the ability to begin operations under 
the inspection, testing, and maintenance requirements and the movement 
of defective equipment provisions as soon as their employees have been 
properly trained. Therefore, FRA has included provisions which allow a 
railroad to notify FRA in writing that it is willing to begin 
compliance with the inspection, testing, and maintenance requirements 
and the movement of defective equipment provisions some time earlier 
than the 26 months provided. FRA wishes to make clear that it does not 
intend for railroads to take advantage of the flexibility provided 
under some of the provisions unless the railroad is willing to comply 
with all the requirements contained in those provisions. Thus, in order 
to begin operating under any of the provisions contained in subpart D, 
except the maintenance requirements contained in Secs. 238.309 and 
238.311, or to operate defective equipment under Secs. 238.15 or 
238.17, the railroad must be performing all of the requirements 
contained in those sections and that subpart.
    As the maintenance requirements regarding the periodic performance 
of COT&S and the performance of single car tests, contained in 
Secs. 238.309 and 238.311, are separable from the inspection 
requirements, FRA will permit railroads to request earlier application 
of those two sections. However, in order to begin operation under 
either of these two sections, the railroad must be willing to operate 
in accordance with all of the provisions in both sections. That is, the 
provisions contained in Secs. 238.309 and 238.311 must be implemented 
as a package and cannot be implemented separately, except for the 
requirements related to the performance of COT&S on locomotives. This 
paragraph makes clear that the requirements related to the performance 
of COT&S on MU locomotives and conventional locomotives will become 
effective September 9, 1999. As discussed in more detail in the 
section-by-section analysis of Sec. 238.309, FRA believes that the 
extensions of COT&S contained in

[[Page 25576]]

paragraphs (b) and (c) of Sec. 238.309 are supported either by the 
tests conducted by Metro-North or are a practice that has been approved 
by waiver for several years. Furthermore, there is no corresponding 
single car testing requirement applicable to MU and conventional 
locomotives.
    As a point of clarification, FRA makes clear that a railroad will 
be subject to compliance under the existing inspection, testing, and 
maintenance provisions contained in part 232 of this chapter until the 
railroad is required to operate under the inspection and testing 
provisions of this part (i.e., 26 months) or until the railroad 
voluntarily commits to operate under the provisions of this part.
Section 238.3  Application
    As a general matter, in paragraphs (a)(1) and (a)(2), the rule 
applies to all railroads that operate intercity passenger train service 
on the general railroad system of transportation or provide commuter or 
other short-haul passenger train service in a metropolitan or suburban 
area; that is, the rule applies to commuter or other short-haul service 
described in paragraph (a)(2) regardless of whether that service is 
connected to the general railroad system. A public authority that 
indirectly provides passenger train service by contracting out the 
actual operation to another railroad or independent contractor would be 
regulated by FRA as a railroad under the provisions of this rule. In 
order to avoid confusion, FRA has omitted proposed paragraph (a)(3) 
regarding the rule's applicability to rapid transit operations as these 
types of operations, which are merely a subset of ``commuter or other 
short-haul rail passenger train service,'' are sufficiently covered 
under paragraphs (a)(1) and (a)(2) in the final rule. Paragraph (b) 
makes explicit the liability imposed by statute, 49 U.S.C. 20303, on a 
railroad that owns track over which another railroad hauls or uses 
equipment with a power brake or safety appliance defect. Under 
paragraph (b), a railroad that permits operations over its trackage by 
passenger equipment subject to this part that does not comply with a 
power brake provision of this part or a safety appliance provision of 
this part is subject to the power brake and safety appliance provisions 
of this part with respect to such operations that it permits.
    This section contains no explicit reference to private cars. Rather 
than addressing the scope of applicability of part 238 to private cars 
in this section, FRA has indicated in the particular substantive 
sections of the rule whether private cars are covered, according to the 
terms of those sections. FRA has applied certain requirements of the 
rule to private cars that operate on railroads subject to this part. 
FRA has taken into account the burden imposed by requiring private car 
owners and operators to conform to the requirements of this part. 
Further, FRA recognizes that private cars are often hauled by railroads 
such as Amtrak and commuter railroads which often impose their own 
safety requirements on the operation of the private cars. Accordingly, 
FRA has limited the application of the rule only to those requirements 
necessary to ensure the safe operation of the passenger train that is 
hauling the private car. For instance, private cars are subject to 
brake inspection, testing, and maintenance requirements.
    The rule is structured to apply to intercity, commuter and other 
short-haul service, but not to tourist, scenic, historic, and excursion 
operations. The term ``tourist, scenic, historic, or excursion 
operations'' is defined in Sec. 238.5 to mean ''railroad operations 
that carry passengers, often using antiquated equipment, with the 
conveyance of the passengers to a particular destination not being the 
principal purpose.'' The term refers to the particular physical 
operation, not to the nature of the railroad company as a whole that 
conducts the operation. As a result, part 238 exempts not only a 
recreational train ride by a tourist railroad company that employs five 
people but also a recreational train ride by the Union Pacific Railroad 
Company, a Class I freight railroad. FRA has not yet had the 
opportunity to fully consult with tourist and historic railroad 
operators and their associations to determine the appropriate 
applicability of the provisions contained in this final rule to such 
railroad operations. The Federal Railroad Safety Authorization Act of 
1994 directs FRA to examine the unique circumstances of tourist 
railroads when establishing safety regulations. The Act, which amended 
49 U.S.C. 20103, states 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. 103-440, Sec. 217, 108 Stat. 4619, 4624, November 2, 1994. In 
its 1996 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.
    Section 215 of the 1994 Act specifically permits FRA to exempt 
equipment used by tourist, historic, scenic, and excursion railroads to 
transport passengers from the initial regulations required to be 
prescribed by November 2, 1997. 49 U.S.C. 20133(b)(1). FRA is 
addressing the passenger equipment safety concerns for these unique 
types of operations through the Tourist and Historic Railroads Working 
Group formed under RSAC. Any requirements applicable to these 
operations will be part of a separate rulemaking proceeding.
    FRA notes that the Syracuse, Binghamton and New York Railroad 
Corporation (SBNY) commented on the application of the rule to its 
passenger shuttle and excursion service on approximately ten miles of 
trackage shared with rail freight traffic in the city of Syracuse and 
county of Onondaga, New York. SBNY commented that, although it 
understands its excursion service would be exempt from the rule, its 
shuttle operations appear to fall directly within the proposed 
regulation. SBNY believed that applying the proposed regulations to its 
shuttle service would impose a significant and unbearable burden with 
little if any improvement in safety. SBNY asked that the rule expressly 
except from its application passenger train operations on track that is 
limited to operating speeds of 30 mph or less.
    FRA believes the SBNY is properly characterized as a commuter or 
other short-haul railroad subject to this part. FRA has not adopted 
SNBY's recommendation to change the application of the final rule so as 
to except passenger train operations on track that is limited to 
operating speeds of 30 mph or less. First of all, any such operation 
must already comply with existing regulations affecting railroad 
passenger equipment safety, such as the locomotive safety standards (49 
C.F.R. part 229), and standards on railroad power brakes and drawbars 
(49 C.F.R. part 231). Second, many provisions of the final rule itself 
cannot logically be distinguished in any manner on the basis of 
operating speed. For instance, materials in locomotives and passenger 
cars should be required to comply with the testing standards for 
flammability and smoke emissions characteristics to protect against 
sources of ignition--no matter the operating speed of the equipment. 
Finally, FRA notes that

[[Page 25577]]

SBNY operates conventional diesel multiple-unit passenger equipment 
built to AAR standards. Accordingly, the railroad should not experience 
burdens related to structural standards. If there are unique factors 
present with regard to SBNY's equipment, the waiver process may provide 
a way of accommodating those differences.
    The requirements of this rule do not apply to circus trains. In its 
comments on the NPRM, Feld Entertainment, Inc., (Feld), parent company 
of Ringling Bros. and Barnum & Bailey circus (Ringling Bros.), 
supported the rule's consideration of the special circumstances of 
certain classes of rail carriers, such as private passenger cars and 
circus trains. Feld stated on behalf of Ringling Bros. that it 
suspended the use of rim-stamped straight-plate wheels on its tread-
braked passenger cars following the 1994 derailment of a circus train 
in Lakeland, Florida. See 62 FR 49743. Feld also stated that Ringling 
Bros. takes seriously its commitment to the safety of its employees and 
animals. FRA anticipates deferring further consideration of applying 
any of the requirements in this final rule to circus trains to the 
Tourist and Historic Railroads Working Group.
Section 238.5  Definitions
    This section contains a 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 rule. Several of 
the definitions involve new or fundamental concepts which require 
further discussion.
    ``Brake indicator'' means a device, actuated by brake cylinder 
pressure, which indicates whether brakes are applied or released on a 
car. The use of brake indicators in the performance of brake tests is a 
controversial subject. Rail labor organizations correctly maintain that 
brake indicators are not fully reliable indicators of brake application 
and release on each car in the train. Further, railroads correctly 
maintain that reliance on brake indicators is necessary because 
inspectors cannot always safely observe brake application and release. 
FRA believes that brake indicators serve an important role in the 
performance of brake tests. FRA has specified three different types of 
brake tests--Class I, Class IA, and Class II (described below)--that 
must be performed on passenger equipment. Railroads should perform 
Class I brake tests so that the inspector is able to actually observe 
brake application and release. However, FRA believes that during the 
performance of a Class IA brake test, railroads may rely on brake 
indicators if they determine that the inspector cannot safely make a 
direct observation of the brake application or release.
    ``Primary brake'' and ``secondary brake'' are complementary 
definitions. ``Primary brake'' refers to ``those components of the 
train brake system necessary to stop the train within the signal 
spacing distance without thermal damage to friction braking surfaces,'' 
while ``secondary brake'' refers to ``those components of the train 
brake system which develop supplemental brake retarding force that is 
not needed to stop the train within signal spacing distances or to 
prevent thermal damage to wheels.'' FRA provides these definitions to 
help draw the line between safety and economics of brake systems. 
Railroads have long held that the dynamic portion of a blended brake is 
not a safety system. Under the provisions in this final rule, railroads 
must demonstrate through testing and analysis that the dynamic brake 
fits the definition of a secondary brake. Defective primary braking 
systems are a serious safety problem that railroads must address 
immediately. Defective secondary braking systems, as defined in 
Sec. 238.5, are not a serious safety concern, because, by definition, 
their failure does not result in unacceptable thermal inputs into 
friction brake components. Accordingly, FRA intends to allow railroads 
more flexibility in dealing with defective secondary braking systems.
    Three brake tests are fundamental to this final rule. A ``Class I 
brake test'' means a complete passenger train brake system test as 
further specified in Sec. 238.313. The Class I test is the most 
complete test. It must be performed once each calendar day that a 
passenger train is in service by a qualified maintenance person. The 
Class I test is intended to replace the current initial terminal brake 
test. See 49 CFR 232.12(c)-(j). The Class I test is much more tailored 
to the specific designs of passenger equipment than the initial 
terminal brake test that is required now.
    A ``Class IA brake test'' means a test and inspection (as further 
specified in Sec. 238.315) of the air brake system on each car in a 
passenger train to ensure the air brake system functions as intended in 
response to the command sent through the train line. The Class IA test 
is a somewhat less complete test than the Class I test and is intended 
to be very similar to the current 1,000-mile brake test. An important 
difference between the Class I and Class IA tests is that the Class IA 
test may be performed by qualified persons as long as they have been 
properly trained and designated by the railroad to perform the 
inspection. The Class IA test allows commuter railroads the flexibility 
to have trains depart their first run of the day from an outlying point 
without having to station qualified maintenance persons at all outlying 
points. If railroads take advantage of the flexibility offered by the 
Class IA test, they must follow-up with a Class I test sometime during 
the day.
    A ``Class II train brake test'' means a test (as further specified 
in Sec. 238.317) of brake pipe integrity and continuity from 
controlling locomotive to rear car. The Class II brake test is a simple 
set-and-release test intended to replace the passenger train 
intermediate terminal air brake test. See 49 CFR 232.13(b). The Class 
II test is also tailored to the special design of the passenger 
equipment.
    The concept of ``ordered'' is vital to the correct application of 
this final rule. As applied to the acquisition of equipment, the term 
means that the acquiring entity has given a notice to proceed to 
manufacture the equipment that represents a firm financial commitment 
to compensate the manufacturer for the contract price of the equipment 
or for damages if the order is nullified. Equipment is not ordered if 
future exercise of a contract option is required to place the 
remanufacturing process in motion. Many of the provisions of this final 
rule, particularly structural requirements, will apply only to newly 
constructed equipment. When FRA applies certain requirements only to 
passenger equipment ordered on or after September 8, 2000, or placed in 
service for the first time on or after September 9, 2002, FRA intends 
to ``grandfather'' in this regard any equipment that is both ordered 
before September 8, 2000, and placed in service for the first time 
before September 9, 2002. FRA believes this approach will allow 
railroads to minimize, or avoid altogether, any costs associated with 
changes to existing orders and yet limit the delay in realizing the 
safety benefits of the requirements in this rule.
    FRA's definition of ``passenger car'' goes beyond its traditional 
meaning. ``Passenger car'' means rail rolling equipment intended to 
provide transportation for members of the general public and includes a 
self-propelled car designed to carry passengers, baggage, mail, or 
express. This term includes a cab car, an MU locomotive, and a 
passenger coach. A cab car and an MU locomotive are also a 
``locomotive'' under this rule. In the context of articulated 
equipment, ``passenger car'' means that segment of the rail rolling 
equipment located

[[Page 25578]]

between two trucks. This term does not include a private car. 
``Passenger coach'' means rail rolling equipment intended to provide 
transportation for members of the general public that is without 
propelling motors and without a control stand; therefore, passenger 
coaches are a subset of passenger cars. ``Control stand'' is defined in 
The Railroad Dictionary of Car and Locomotive Terms (Simmons-Boardman 
Publishing Corp. 1980), as ```[t]he upright column upon which the 
throttle control, reverser handle, transition lever, and dynamic 
braking control are mounted within convenient reach of the engineer on 
a locomotive. The air gauges and some switches are also included on the 
control stand.''
    ``Passenger equipment'' is the most inclusive definition. It means 
all powered and unpowered passenger cars, locomotives used to haul a 
passenger car, and any other rail rolling equipment used in a train 
with one or more passenger cars. ``Passenger equipment'' includes a (1) 
passenger coach, (2) cab car, (3) MU locomotive, (4) locomotive not 
intended to provide transportation for members of the general public 
that is used to power a passenger train, and (5) any non-self-propelled 
vehicle used in a train with one or more passenger cars. The term 
therefore covers a baggage car, express car, freight car, mail car or a 
private car when used in a train with one or more passenger cars. In 
the context of articulated equipment, ``passenger equipment'' means 
that segment of rail rolling equipment located between two trucks that 
is used in a train with one or more passenger cars. However, this term 
does not include a freight locomotive when used to haul a passenger 
train due to failure of a passenger locomotive.
    It should be noted that the definition of passenger equipment has 
been somewhat modified from that which was proposed in the NPRM. See 62 
FR 49794. The change in the definition is based on comments from the 
AAPRCO and the American Short Line Railroad Association (ASLRA), and 
clarifies FRA's intent with regard to private cars. Under the final 
rule, FRA makes clear that a private car is considered ``passenger 
equipment'' for purposes of this rule only when it is used in a train 
with one or more passenger cars. Consequently, a private car will not 
be considered ``passenger equipment'' under the rule when the private 
car is being used alone; or used in a train consisting only of private 
cars or freight cars, or both. This approach is consistent with FRA's 
intent in drafting the NPRM, and fully incorporates the AAPRCO's and 
ASLRA's comments.
    FRA has also modified the definition of ``passenger equipment'' so 
that the term does not include a freight locomotive when used to haul a 
passenger train due to failure of a passenger locomotive. At the 
Working Group meeting in December, 1997, the AAR had raised the concern 
that the proposed rule did not provide an exclusion for a freight 
locomotive used to haul a passenger train for relief purposes. FRA 
believes that a limited exception is warranted for a freight locomotive 
used to haul a passenger train due to the failure of the passenger 
train's own motive power; FRA does not wish for the passenger train to 
be stranded. FRA has modified the definition of the term ``locomotive'' 
accordingly in this final rule.
    In the context of articulated equipment, FRA has clarified that 
``passenger equipment'' means that segment of rail rolling equipment 
located between two trucks that is used in a train with one or more 
passenger cars. In the NPRM, FRA had used similar language in the 
definition of ``unit'' (see 62 FR 49796). Since the definition of 
``unit'' itself draws upon the definition of ``passenger equipment,'' 
FRA has decided to insert this clarifying language here.
    The terms ``passenger station'' and ``terminal'' are crucial to 
understanding the requirements related to the inspection of equipment 
and the movement of defective equipment contained in this final rule. 
``Passenger station'' means a location designated in the railroad's 
timetable where passengers are regularly scheduled to get on or off any 
train. Under certain carefully controlled conditions, the rule permits 
a passenger train with defective equipment to move to the next forward 
passenger station. This flexibility is allowed to prevent railroads 
from discharging passengers in potentially unsafe locations and to 
minimize schedule impacts where this can safely be done. By contrast, 
``terminal'' means a train's starting point or ending point of a single 
scheduled trip, where passengers may embark or disembark a train; 
normally, a ``terminal'' is a point where the train would reverse 
direction or change destinations.
    The concepts of ``qualified person'' and ``qualified maintenance 
person'' are vital to understanding the required inspection, testing, 
and maintenance provisions of the rule. A ``qualified person'' is a 
person determined by the railroad to have the knowledge and skills 
necessary to perform one or more functions required under this part. 
With the proper training, a train crewmember could be a qualified 
person.
    A ``qualified maintenance person'' is a ``qualified person'' who as 
a part of the training, qualification, and designation program required 
under Sec. 238.111 has received instruction and training that includes 
``hands-on'' experience (under appropriate supervision or 
apprenticeship) in one or more of the following functions: trouble-
shooting, inspection, testing, maintenance or repair of the specific 
train brake and other components and systems for which the inspector is 
assigned responsibility. This person shall also possess a current 
understanding of what is required to properly repair and maintain the 
safety-critical brake or mechanical components for which the person is 
assigned responsibility. Further, the qualified maintenance person 
shall be a person whose primary responsibility includes work generally 
consistent with the above-referenced functions and is designated to: 
(1) conduct Class I brake tests under this part; (2) conduct exterior 
calendar day and periodic mechanical inspections on MU locomotives or 
other passenger cars and unpowered vehicles under this part; or (3) 
determine whether equipment not in compliance with this part may be 
moved as required by Sec. 238.17.
    As noted in detail in the preceding general preamble discussion, 
FRA is slightly modifying the terminology and definition of these 
highly qualified inspectors from that proposed in the 1997 NPRM in 
order to address the concerns by some commenters and to clarify the 
definition as much as possible. In the 1997 NPRM, FRA proposed the term 
``qualified mechanical inspector'' (QMI) to describe these highly 
qualified inspectors. FRA recognizes the concern raised by some 
commenters, that the term QMI might result in employees designated as 
such to seek some sort of premium pay status. Although FRA is not 
overly swayed by this concern, FRA is changing the term in the manner 
suggested by these commenters to ``qualified maintenance person 
(QMP).'' FRA believes that the term used to describe the individual 
responsible for conducting certain brake and mechanical inspections has 
little bearing on the qualifications or knowledge of the individual 
and, thus, is not adverse to accommodating a change in the term. 
However, but for clarifying language, FRA is not changing the 
underlying definition of what is required to be designated as a QMP.
    The definition contained in this final rule clarifies the intent of 
the NPRM by specifically stating that a QMP must be properly trained 
and have a primary responsibility in the function of trouble-shooting, 
inspection, testing,

[[Page 25579]]

maintenance, or repair of the specific train brake and other components 
and systems for which the inspector is assigned responsibility. The 
slightly modified definition also clarifies that a QMP also possess a 
current understanding of what is required to properly repair and 
maintain the safety-critical brake or mechanical components for which 
the person is assigned responsibility.
    The major concern raised by APTA representatives centered on the 
requirement contained in the definition of a QMI that the person's 
``primary responsibility'' include work in the area of troubleshooting, 
testing, inspecting, maintenance, or repair to train brake systems and 
other components. These commenters believed that anyone who is properly 
trained can perform the required inspections regardless of the amount 
of time actually spent engaged in the activity. The entire concept of 
QMP (or QMI) is premised on the idea that flexibility in the inspection 
of passenger equipment, flexibility in the movement of defective 
equipment and slight reductions in periodic maintenance could be 
provided if the mechanical components and brake system were inspected 
on a daily basis by highly qualified individuals. Thus, the requirement 
that a highly qualified person perform certain brake and mechanical 
inspections is part of a package which includes flexibility in the 
performance of brake and mechanical inspections, permits wider latitude 
in the movement of defective equipment, and provides reductions in the 
periodic maintenance that is required to be performed on certain 
equipment. Therefore, FRA expects the highly qualified person to be an 
individual who can not only identify a particular defective condition 
but who will have the knowledge and experience to know how the 
defective condition affects other mechanical components or other parts 
of the brake system and will have an understanding of what might have 
caused a particular defective condition. FRA believes that in order for 
a person to become highly proficient in the performance of a particular 
task that person must perform the task on a repeated and consistent 
basis. As it is almost impossible to develop and impose specific 
experience requirements, FRA believes that a requirement that the 
person's primary responsibility be in one or more of the specifically 
identified work areas and that the person have a basic understanding of 
what is required to properly repair and maintain safety-critical brake 
or mechanical components is necessary to ensure the high quality 
inspections envisioned by the rule. FRA notes the frequent contention 
of railroad representatives that mechanical forces are intimately 
familiar with the vehicles in the fleet for which they are responsible. 
FRA wishes to continue this record of careful attention to those 
fleets, which will tend to help ensure that developing problems are 
identified early and are dealt with across those fleets.
    FRA disagrees with the contentions raised by APTA representatives 
that the definition of QMP violates the Administrative Procedure Act 
and exceeds FRA's statutory authority. Contrary to the assertions made 
by APTA representatives, the administrative record together with FRA's 
independent knowledge of the passenger rail industry do support a 
requirement that only a QMP conduct Class I brake tests and exterior 
mechanical inspections. Except for limited weekend service operated by 
Metra, virtually every passenger train operation affected by this rule 
currently conducts daily brake and mechanical inspections utilizing 
employees who, except for training on the requirements of this rule, 
would meet the definition of a QMP. That is, the employees who are 
currently responsible for conducting the major daily brake and 
mechanical inspections on virtually all passenger trains meet the 
``primary responsibility'' requirement contained in the definition of 
QMP. Therefore, the industry's current practice acknowledges and 
supports the need to conduct daily inspections with employees whose 
primary responsibility is the troubleshooting, inspection, testing, 
maintenance, or repair of train brake systems or other mechanical 
components. Furthermore, due to the flexibility provided in this rule 
for conducting brake and mechanical inspections and moving defective 
equipment as well as the extension of certain periodic maintenance, FRA 
believes that the current best practices of the railroads with regard 
to brake and mechanical inspections must be maintained, especially as 
it relates to the quality of the personnel performing the inspections.
    FRA further believes that APTA's contention that the definition of 
QMP violates the Railway Labor Act is due to a misunderstanding of the 
definition. FRA is not attempting to make any determinations over 
employee classes or crafts or to interpret collective bargaining 
agreements. As was made clear in the 1997 NPRM, the definition would 
allow the members of trades associated with testing and maintenance of 
equipment such as carmen, machinists, and electricians to become QMPs. 
However, membership in a labor organization or completion of an 
apprenticeship program associated with a particular craft is not 
required. FRA makes clear that the two overriding qualifications are 
possession of the knowledge required to do the job and a primary work 
assignment involving the troubleshooting, inspecting, testing, 
maintaining, or repairing the equipment.
    FRA is also clarifying the meaning of ``primary responsibility'' as 
used in the definition of QMP. As a rule of thumb FRA will consider a 
person's ``primary responsibility'' to be the task that the person 
performs at least 50 percent of the time. Therefore, a person who 
spends at least 50 percent of the time engaged in the duties of 
inspecting, testing, maintenance, troubleshooting, or repair of train 
brakes systems and other mechanical components could be designated as a 
QMP, provided the person is properly trained to perform the tasks 
assigned and possesses a current understanding of what is required to 
properly repair and maintain the safety-critical brake or mechanical 
components for which the person is assigned responsibility. However, 
FRA will consider the totality of the circumstances surrounding an 
employee's duties in determining a person's ``primary responsibility.'' 
For example, a person may not spend 50 percent of his or her day 
engaged in any one readily identifiable type of activity; in those 
situations FRA will have to look at the circumstances involved on a 
case-by-case basis.
    The definition of QMP largely rules out the possibility of train 
crew members from being designated as these highly qualified inspectors 
since the primary responsibility, as defined above, of virtually all 
current train crew personnel is the operation of trains, and for the 
most part, train crew personnel do not possess a current understanding 
of what is required to properly repair and maintain the safety-critical 
brake or mechanical components that are inspected during Class I brake 
tests or exterior calendar day mechanical inspections. However, 
contrary to the contentions raised by APTA there is nothing in the rule 
which prevents a railroad from utilizing employees who are not 
designated as QMPs from conducting brake and mechanical inspections 
provided those inspections are not intended to constitute the required 
Class I brake test or the exterior calendar day mechanical inspection. 
Furthermore, the rule provides that certain required brake and 
mechanical

[[Page 25580]]

inspections (Class IA brake tests, Class II brake tests, running brake 
tests, and interior calendar day mechanical inspections) may be 
performed by a properly ``qualified person'' and do not mandate the use 
of a QMP. FRA believes that these are the types of inspections which 
train crew members are currently assigned to perform and have been 
performing effectively for years. Consequently, FRA believes that the 
inspection requirements and the qualification requirements contained in 
this rule are merely a codification of the current best practices of 
the passenger train industry and are necessary to ensure the continued 
safety of those operations while providing the industry some 
flexibility in the performance of certain inspections and in the 
movement of defective equipment as well as providing slight increases 
in periodic maintenance for some equipment.
    The term ``running gear defect'' has been added to the final rule's 
list of definitions. A running gear defect is defined as any defective 
condition which involves a truck component, a propulsion system 
component, a draft system component, a wheel or a wheel component. This 
term is important for understanding the restrictions regarding the 
movement of equipment with other than power brake defects. FRA agrees 
with the comments of railroad representatives that the 1997 NPRM may 
have been over-reaching in requiring a qualified mechanical inspector 
to make a determination regarding the safety of moving a piece of 
defective equipment for any of the mechanical components addressed in 
this regulation. However, FRA also agrees with the comments submitted 
by labor representatives that railroads should not determine what 
components are considered safety-critical. Therefore, FRA has modified 
the movement of defective equipment provisions in this final rule to 
require a determination regarding the safety of moving a piece of 
equipment by a qualified maintenance person (as discussed above) 
whenever a potential running gear defect is involved. FRA rejects the 
language proposed by APTA that the defect be a potentially ``safety-
critical'' running gear defect as FRA believes that any defect to a 
running gear component is potentially safety-critical. In order to 
avoid confusion, FRA is providing an explicit definition of running 
gear defect. In the final rule, FRA is permitting the use of a 
qualified person to determine the safety and establish appropriate 
movement restrictions on continued use of equipment which involves non-
running gear defects.
    Definitions of the various types of trains covered by this final 
rule are extremely important to understand how FRA intends for the rule 
to be applied. The most general definition is that of a ``passenger 
train.'' The definition makes two points very clear. First, the final 
rule does not apply to tourist and excursion railroads; and, second, 
the provisions of the rule do apply to non-passenger carrying units 
included in a passenger train.
    An important distinction highlighted in these definitions is the 
difference between a ``long-distance intercity passenger train'' and a 
``short-distance intercity passenger train.'' ``Long-distance intercity 
passenger train'' means a passenger train that provides service between 
large cities more than 125 miles apart and is not operated exclusively 
in the National Railroad Passenger Corporation's (Amtrak) Northeast 
Corridor between Washington D.C. and Boston, Massachusetts. ``Short-
distance intercity passenger train'' means a passenger train that 
provides service exclusively on the Northeast Corridor or between 
cities that are not more than 125 miles apart. This distinction 
attempts to recognize the special set of operating conditions on the 
Northeast Corridor in light of the need to treat long-distance trains 
differently than short-distance trains. Additionally, APTA advised FRA 
that there are commuter rail systems that operate trains over 100 miles 
in distance on a single run, and thus recommended the use of the 125-
mile distance in these definitions.
    The definition of the term ``in service'' is modeled after the 
definition of that term in the Railroad Freight Car Safety Standards. 
See 49 CFR 215.5(e). Passenger equipment that is in service includes 
passenger equipment ``in passenger service,'' meaning ``carrying, or 
available to carry, fare-paying passengers,'' as well as all other 
passenger equipment unless it falls into one of the following four 
categories:

    (a) Is being handled in accordance with Secs. 238.15, 238.17, 
238.305(c)(5), or 238.503(f), as applicable;
    (b) Is in a repair shop or on a repair track;
    (c) Is on a storage track and is not carrying passengers; or
    (d) Has been delivered in interchange but has not been accepted 
by the receiving railroad.

The term ``in service'' is important because if the train or passenger 
equipment is not in service, it is not subject to a part 238 civil 
penalty.
    FRA has revised the definition of ``skin'' to reflect more 
appropriately its meaning in the broad sense as the outer covering of a 
fuel tank and a rail vehicle as a whole, not just the forward-facing 
end of a locomotive. Moreover, as noted below in the discussion of 
Sec. 238.209 (Forward-facing end structure of locomotives), the 
exclusion from the definition of ``skin'' originally included as part 
of the definition itself proposed in the NPRM has instead been 
incorporated into the appropriate rule text for clarity at Sec. 238.209 
and Sec. 238.409 (Forward end structures of power car cabs).
    The last definition that warrants discussion is ``vestibule.'' FRA 
intends ``vestibule'' to mean an area of a passenger car that normally 
does not contain seating and that is used for passage between the 
seating area and the side exit doors. The definition of ``vestibule'' 
is important to determine the requirements for side door emergency-
release mechanisms. For instance, a powered side door in a vestibule 
that is partitioned from the passenger compartment of a Tier I 
passenger car must have a manual override feature as specified in 
Sec. 238.235 by December 31, 1999.
Section 238.7  Waivers
    This section sets forth the procedures for seeking waivers of 
compliance with the requirements of this rule. Requests for such 
waivers may be filed by any interested party. In reviewing such 
requests, FRA conducts investigations to determine if a deviation from 
the general criteria can be made without compromising or diminishing 
rail safety. This section has been modified from that proposed in the 
1997 NPRM to keep it consistent with the general waiver provisions 
contained in other Federal regulations issued by FRA. FRA recognizes 
that circumstances may arise when the operation of passenger equipment 
that does not meet the standards contained in this rule is appropriate 
and in the public interest.
Section 238.9  Responsibility for Compliance
    General compliance requirements are contained in this section. 
Paragraph (a). Paragraphs (a)(1) and (a)(2) prohibit a railroad subject 
to part 238 from committing a series of specified acts with respect to 
a train or a piece of passenger equipment while the train or passenger 
equipment is in service if it has a condition that does not comply with 
part 238 or if it has not been inspected and tested as required by part 
238. In particular, consistent with 49 U.S.C. chapter 203, paragraph 
(a)(1) imposes a strict liability standard with respect to violations 
of the safety

[[Page 25581]]

appliance and power brake provisions of part 238. In addition to the 
acts prohibited by paragraph (a)(2) (that is, the use, haul, offering 
in interchange, or accepting in interchange of defective or not 
properly inspected equipment), paragraph (a)(1) prohibits a railroad 
from merely permitting the use or haul on its line of such equipment if 
it does not conform with the safety appliance and power brake 
provisions. See Sec. 238.3(b). By contrast, paragraph (a)(2) imposes a 
lower standard of liability for using, hauling, delivering in 
interchange, or accepting in interchange a train or passenger equipment 
that is defective or not properly inspected, in violation of another 
provision of this part; a railroad subject to this part is liable only 
if it knew, had notice, or should have known of the existence of either 
the defective condition of the equipment or the failure to inspect and 
test. Finally, paragraph (a)(3) establishes a strict liability standard 
for noncompliance with any other provision of this part.
    Paragraph (b). In accordance with the ``use'' or ``haul'' language 
previously contained in the Safety Appliance Acts (49 U.S.C. chapter 
203) and with FRA's general rulemaking authority under the Federal 
railroad safety laws, FRA in paragraph (b) makes clear that passenger 
equipment will be considered ``in use'' prior to departure but after it 
receives or should have received the necessary tests and inspections 
required for movement. FRA will no longer wait for a piece of equipment 
with a power brake defect to be hauled before issuing a violation, a 
practice frequently criticized by the railroads. FRA believes that this 
approach will increase FRA's ability to prevent the movement of 
defective equipment that creates a potential safety hazard to both the 
public and railroad employees. FRA does not feel that this approach 
increases the railroads' burden since equipment should not be operated 
if it is found in defective condition in the pre-departure tests and 
inspections, unless permitted by the regulations.
    Paragraph (c). This paragraph clarifies FRA's position that the 
requirements contained in this final rule are applicable not only to 
any ``railroad'' subject to this part but also to any ``person,'' as 
defined in Sec. 238.5, that performs any function required by this 
final rule. Although various sections of the final rule address the 
duties of a railroad, FRA intends that any person who performs any 
action on behalf of a railroad or any person who performs any action 
covered by the final rule is required to perform that action in the 
same manner as required of a railroad or be subject to FRA enforcement 
action. For example, private car owners and contract shops that perform 
duties covered by these regulations would be required to perform those 
duties in the same manner as required of a railroad.
Section 238.11  Civil Penalties
    This section identifies the civil 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, 21302, and 21304. The penalty provision parallels penalty 
provisions included in numerous other safety regulations issued by FRA. 
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. Furthermore, a person may be 
subject to criminal penalties under 49 U.S.C. 21311 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. The final rule includes a schedule of civil penalties as 
appendix A to this part. Because the penalty schedule is a statement of 
policy, notice and comment was not required prior to its issuance. See 
5 U.S.C. 553(b)(3)(A).
    It should be noted that this section has been modified slightly 
from that proposed in the 1997 NPRM. The modifications were made to 
address the statutory requirements contained in the Federal Civil 
Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410 Stat. 890, 
28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act 
of 1996, Pub. L. 104-134, April 26, 1996, which required agencies to 
adjust for inflation the maximum civil monetary penalties within the 
agencies' jurisdiction. Consequently, 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.
Section 238.13  Preemptive Effect
    Section 238.13 informs the public as to FRA's views regarding what 
will be 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 a final rule, it informs the public about the statutory 
provision which governs the preemptive effect of the rule. 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 will preempt any State 
regulatory agency rule covering the same subject matter as the 
regulations in this final rule.
Section 238.15  Movement of Passenger Equipment With Defective Power 
Brakes
    This section contains the requirements for movement of passenger 
equipment with a power brake defect without civil penalty liability 
under this part. (Railroads remain liable, however, ``in a proceeding 
to recover damages for death or injury of a railroad employee arising 
from the movement of'' the defective equipment. See 49 U.S.C. 
20303(c).) A ``power brake defect,'' as defined in paragraph (a), ``is 
a condition of a power brake component, or other primary brake 
component, that does not conform with this'' rule. The term does not 
include a failure to properly inspect such a component.
    Labor representatives objected to FRA's determination that the term 
``power brake defect'' does not include a failure to inspect such a 
component. These commenters claim that FRA's exclusion of the failure 
to properly inspect a brake component eliminates an important means of 
enforcement necessary to ensure that proper power brake inspections are 
performed. It is claimed that by excluding the failure to inspect from 
being a power brake defect, FRA has eliminated any incentive for 
railroads to ensure that trains have operative brakes because there 
will be little financial repercussion to continuing to use improperly 
inspected equipment.
    FRA believes that the concern raised by certain labor 
representatives regarding FRA's definition of ``power brake defect'' 
under this section is due to a lack of understanding of the rule as

[[Page 25582]]

well as a misunderstanding of the existing regulations. Under the 
current power brake regulations the unit of violation for failure to 
inspect is the train not individual cars, although FRA can take a 
separate violation for each car containing a defective condition upon 
departure after the train received or should have received an initial 
terminal inspection or for each car not identified as defective after 
the performance of an intermediate inspection. Moreover, the failure to 
inspect a piece of equipment cannot be cured through any of the 
provisions contained in this final rule regarding the movement of 
defective equipment. Thus, if a railroad fails to inspect a piece of 
equipment as required, the railroad cannot avoid civil penalty 
liability by moving the equipment in accordance with the movement for 
repair provisions. Furthermore, the final rule contains specific civil 
penalties for a railroad's failure to perform inspections as required. 
Therefore, railroads will also continue to be subject to potential 
civil penalty for any car found in defective condition after it has 
performed or should have performed a Class I or Class IA brake test, 
and for any car not properly moved or identified as defective at other 
times.
    The final rule also retains the provision stating that passenger 
equipment will be considered ``in use'' prior to departure but after it 
has received or should have received an inspection required by this 
part. See Sec. 232.9. Thus, FRA inspectors will no longer have to wait 
until a piece of equipment departs a location before issuing a civil 
penalty, a practice continually criticized by both labor and railroad 
representatives. In addition, this final rule provides FRA inspectors 
the ability to issue Special Notices for Repair, which enable an FRA 
inspector to remove an unsafe piece of equipment from service until 
appropriate action is taken by the railroad. See Amendments to 49 CFR 
part 216. This enforcement tool is not currently available to FRA 
inspectors in the area of power brakes and mechanical components on 
passenger equipment and could be used in circumstances where passenger 
equipment is not inspected prior to being placed in service. 
Consequently, the final rule not only retains all of the enforcement 
tools available to FRA under the current regulations but includes other 
methods for ensuring compliance by the railroads and provides both a 
financial and operational incentive for railroads to properly inspect 
passenger equipment.
    Paragraph (b)(1). This paragraph addresses the movement for repair 
of equipment with a power brake defect found during a Class I or IA 
brake test or, for Tier II equipment, the equivalent of a Class I or IA 
brake test. This paragraph allows railroads the flexibility to move 
passenger equipment with a power brake defect found during such a test 
if the following three conditions are satisfied: (1) If the train is 
moved for purposes of effecting repair of the defect, without 
passengers; (2) the applicable operating restrictions set forth in 
paragraph (d) are complied with; and (3) the information concerning the 
defect is recorded on a tag affixed to the equipment or in an automated 
defect tracking system as specified in paragraph (c)(2).
    Paragraph (b)(2). This paragraph permits railroads to move, for 
purposes of scrapping or sale, passenger equipment with a power brake 
defect found during a Class I or IA brake test (or the Tier II 
equivalent) if each of the following conditions is satisfied: if the 
movement is without passengers, if the speed of the movement is 15 mph 
or less, and if the railroad's air brake or power brake instructions 
are followed when making the movement. This provision allows railroads 
to move surplus equipment without having to request permission for one-
time moves from FRA, as is currently required. FRA has not had any 
serious safety concerns with the methods currently used by railroads to 
move this equipment and does not believe its limited resources should 
be tied up in approving these types of moves.
    Paragraph (c), generally. This paragraph addresses the use of 
passenger equipment with a power brake defect that develops en route 
from a location where a Class I or IA brake test (or the Tier II 
equivalent) was performed on the equipment. The two basic requirements 
are that, at the location where the railroad first finds the defect, 
specified information (such as the nature of the defect and the 
destination where the defect will be repaired) must be placed on tags 
attached to the equipment or in a computer tracking system and that the 
railroad must observe the applicable operating restrictions in 
paragraph (d). A third requirement, found in paragraph (c)(4), is a 
special conditional requirement, applying only if the defect causes any 
brakes to be cut out or renders the brakes inoperative. This provision 
was slightly modified from what was proposed in order to prevent a 
railroad from avoiding the requirements contained in this subsection by 
simply not cutting-out an inoperative brake. Consequently, the language 
was modified so that the provision includes situations where a defect 
renders the brakes inoperative, not just situations where brakes are 
cut-out.
    Paragraph (c)(2) requires that equipment being hauled for repairs 
be adequately identified. Currently, there is no requirement that 
equipment with defective power brakes be tagged or otherwise 
identified, although most railroads voluntarily engage in such 
activity. Furthermore, the current regulations regarding freight cars 
and locomotives contain tagging requirements for the movement of 
equipment not in compliance with those parts. See 49 CFR 215.9 and 
229.9. Consequently, FRA is requiring the identification of equipment 
with defective power brakes through either the traditional tags which 
are placed in established locations on the equipment or by an automated 
tracking system developed by the railroad. Certain information must be 
contained whichever method is used by a railroad. FRA believes that the 
tagging or automated tracking requirements add reliability, 
accountability, and enforceability for the timely and proper repair of 
equipment with defective power brakes.
    FRA is retaining the requirement that equipment found with 
conditions not in compliance with this part must be appropriately 
tagged or recorded in an automated tracking system. Although FRA is 
sensitive to the concerns raised by labor representatives regarding the 
use of automated tracking systems, FRA believes that provisions must be 
provided to allow railroads to take advantage of existing and 
developing technologies regarding the electronic maintenance and 
retention of records. Although railroad and FRA inspectors may require 
additional training on the use of electronic records, FRA believes that 
the use of such a medium to track defective equipment can expedite the 
identification and repair of defective equipment and, thus, reduce the 
time that defective equipment is operated in passenger service. In 
response to labor's concerns, a new paragraph (c)(3) has been added 
which contains a provision giving FRA the ability to monitor and review 
a railroad's automated tracking system and provides FRA the ability to 
prohibit or revoke a railroad's ability to utilize an automated 
tracking system in lieu of directly tagging defective equipment if FRA 
finds that the automated tracking system is not properly secure, is 
inaccessible to FRA or a railroad's employees, or fails to adequately 
track and monitor the movement of defective equipment. urthermore, if 
the automated tracking

[[Page 25583]]

system developed and implemented by a railroad does not accurately and 
adequately record the information required by this part, the railroad 
will be in violation of the movement for repair provisions and subject 
to civil penalty liability.
    In addition, under paragraph (c)(4), if the defect causes the 
brakes on the equipment to be cut out, then the railroad must first 
find out what percentage of the power brakes in the train are cut out 
or inoperative in some other way, using the formula in paragraph 
(d)(1). Next, the railroad must notify the person responsible for the 
movement of trains of the percentage of operative brakes and the 
movement restrictions imposed by paragraph (d), inform the railroad's 
mechanical department about the brake defect, and walk the train to 
confirm the percentage of operative brakes at the next point where it 
is safe to do so. Slight modification was made to paragraph (c)(4)(ii) 
and (iii) replacing the term ``dispatcher'' with the phrase ``person 
responsible for the movement of trains'' as some railroads do not use 
the term dispatcher and the term mechanical ``desk'' was removed as it 
is unnecessary and covered by the term ``mechanical department.''
    Paragraph (d)(1). This paragraph explains the term ``inoperative 
power brakes'' and contains a new method for calculating the percentage 
of operative power brakes (operative primary brakes) in a train. 
Regarding the term itself, a cut-out power brake is an inoperative 
power brake, but the failure or cutting out of a secondary brake system 
(as defined in Sec. 238.5) does not result in inoperative power brakes. 
For example, failure of dynamic brakes does not render a power brake 
inoperative unless the dynamic brakes are in fact primary brakes. 
Although the statute discusses the percentage of operative brakes in 
terms of a percentage of vehicles, the statute was written nearly a 
century ago and at that time the only way to cut out the brakes on a 
car or locomotive was to cut out the entire unit. See 49 U.S.C. 
20302(a)(5)(B). Today, virtually every piece of equipment used in 
passenger service can have the brakes cut out on a per-truck or per-
axle basis. Consequently, FRA is merely providing a method of 
calculating the percentage of operative brakes based on the design of 
passenger equipment used today, and, thus, a means to more accurately 
reflect the true braking ability of the train as a whole. FRA believes 
that the method of calculation contained in this final rule is 
consistent with the intent of Congress when it drafted the statutory 
requirement and simply recognizes the technological advancements made 
in braking systems over the last century. Consequently, FRA intends to 
require the percentage of operative brakes to be determined by dividing 
the number of axles in the train with operative brakes by the total 
number of axles in the train. Furthermore, for equipment utilizing 
tread brake units (TBU), FRA requires that the percentage of operative 
brakes be determined by dividing the number of operative TBUs by the 
total number of TBUs.
    Paragraphs (d)(2)-(d)(4), generally. These paragraphs contain 
various speed and other operating restrictions based on the percentage 
of operative brakes in order to permit passenger railroads the 
flexibility to efficiently move passengers without compromising safety. 
FRA believes that the movement restrictions contained in these 
paragraphs actually enhance the safety of the riding public. The 
requirements retain the basic principle that a train carrying 
passengers shall not depart a location where major brake inspections or 
tests are performed on a train unless the train has 100 percent 
operational brakes.
    As previously noted in the general discussion, FRA has determined 
that some minor changes need to be made to the requirements proposed in 
the 1997 NPRM regarding the movement of equipment with defective power 
brakes. In order to avoid the legal implications involved with 
employing the statutory authority contained at 49 U.S.C. 20306 for 
exempting equipment from the statutory requirements related to safety 
appliances and power brakes, and because railroad representatives 
acknowledged that the flexibility provided through reliance on the 
exemption is minimal, FRA will not rely on the statutory exemption 
provision contained at 49 U.S.C. 20306 in this final rule and has 
modified the movement for repair provisions accordingly.
    FRA will retain the exemption proposed in the 1997 NPRM for 
passenger train operations from a long-standing agency interpretation 
that prohibits the movement of a train for repairs under 49 U.S.C. 
20303 if less than 85 percent of the train's brakes are operative. This 
interpretation is based on a 1910 ICC order codified at 49 CFR 232.1. 
FRA believes that this requirement is overly restrictive when applied 
to passenger train operations as many passenger operations utilize a 
small number of cars in their trains and the necessity to cut out the 
brakes on just one car can easily result in noncompliance. FRA believes 
that the retention in this final rule of the proposed speed 
restrictions will fully compensate for the loss of brakes on a minority 
of cars. FRA rejects the BRC's recommendation that passenger trains 
with defective brakes be permitted to move no further than the next 
passenger station because such a stringent requirement is unnecessary, 
more restrictive than the current statutory mandate regarding the 
movement of defective brake equipment, and is radically counter to the 
way passenger trains currently handle defective equipment.
    FRA is retaining those portions of the proposed movement for repair 
requirements that it believes are fully consistent with the existing 
statutory provisions regarding the movement of equipment with power 
brake defects and has revised those that are contrary to the statutory 
provisions. Therefore, passenger trains operating with 75-99 percent 
operative brakes will not be permitted to travel to the next forward 
terminal as proposed, but will be permitted to travel only to the next 
forward location where the necessary repairs to the brake equipment can 
be effectuated as mandated in the existing statute. In FRA's view, all 
of the other proposed methods for moving defective power brake 
equipment are consistent with and are in accordance with the current 
statutory requirements and will be retained. For example, FRA is 
retaining the provision which permits a passenger train with 50-75 
percent operative brakes to be moved at reduced speeds to the next 
forward passenger station. Although the percentage of operative brakes 
is lower than currently permitted by FRA's longstanding agency 
interpretation (which FRA believes is fully compensated for by the 
proposed speed restrictions), FRA believes that the movement of the 
defective equipment to the next passenger station is in accordance with 
the statutory requirement as the safety of the passengers must be 
considered in determining the nearest location where necessary repairs 
can be made. In addition, permitting passenger trains to continue to 
the next forward location where the necessary repairs can be performed 
is also consistent with the statutory requirement as such movement is 
necessary to ensure the safety of the traveling public by protecting 
them from the hazards incident to performing movements against the 
current of traffic and recognizes the hazards incident to overcrowding 
platforms and trailing trains. Furthermore, retention of the movement 
provisions related to long-distance intercity passenger trains and 
long-distance Tier II equipment is

[[Page 25584]]

consistent with the current statutory requirements as these provisions 
permit the movement of defective brake equipment on these trains only 
to the next passenger station or the next repair location, with various 
speed restrictions depending on the percentage of operative brakes.
    FRA recognizes that there are major differences in the operations 
of commuter or short-distance intercity passenger trains, and long-
distance intercity passenger trains. Commuter and short-distance 
intercity passenger trains tend to operate for fairly short distances 
between passenger stations and generally operate in relatively short 
turn-around service between two terminals several times in any given 
day. On the other hand, long-distance intercity passenger trains tend 
to operate for long distances, with trips between the beginning 
terminal and ending terminal taking a day or more and traversing 
multiple States with relatively long distances between passenger 
stations. Consequently, the final rule contains slightly different 
requirements with regard to the movement of defective brake equipment 
in long-distance intercity passenger trains.
    FRA believes that passenger railroads can safely and efficiently 
operate trains with en route brake failures under the strict set of 
conditions in this final rule. FRA has long held that the industry can 
safely operate trains at normal track speeds with as low as 85 percent 
effective brakes as long as the inoperative brakes were due to failures 
which occurred en route or due to defective cars being picked up en 
route and being moved for repairs. The only change in this final rule 
to current practice is the additional flexibility for certain passenger 
operations to move their equipment with a lower percentage of operative 
brakes, under strict speed restrictions, and recognition of the safety 
need to allow passenger trains to move to the nearest forward location 
capable of performing the repairs.
    Paragraph (d)(2). This paragraph contains operating requirements 
for the movement of any passenger train that develops en route brake 
failures resulting in 74 to 50 percent operative brakes. In these 
circumstances, FRA will allow the train to proceed only to the next 
passenger station at a reduced speed, not to exceed 20 mph, to 
discharge passengers before proceeding without passengers to the 
nearest location where the necessary repairs can be made. This 
provision recognizes the dangers of unloading passenger at locations 
other than passenger stations by allowing railroads to move the 
equipment to a location with the facilities to handle the discharge of 
passengers. Furthermore, engineering evidence and test data demonstrate 
that the reduced speed more than compensates for the reduced braking 
force. At the reduced speed, even with only 50 percent effective 
brakes, a train is able to stop in a much shorter distance than the 
same train traveling at the maximum operating speed with 100 percent 
operative brakes.
    Paragraphs (d)(3)(i) and (ii). FRA will also permit commuter, 
short-distance intercity, and short-distance Tier II passenger trains 
experiencing en route brake failures resulting in 99 to 75 percent 
operative brakes to continue in service only to the next forward 
location where the necessary repairs can be effectuated. FRA will 
permit these passenger trains to continue in service past a repair 
location to the next forward passenger station only if the repair 
location does not have the facilities to safely unload passengers. 
However, FRA will require the speed of the train with 84 to 75 percent 
operative brakes to be reduced to 50 percent of the train's maximum 
operating speed or 40 mph, whichever is less. Engineering evidence and 
test data demonstrate that the reduced speed more than compensates for 
the reduced braking force. At the reduced speed, even with only 75 
percent effective brakes, a train is able to stop in a much shorter 
distance than the same train traveling at the maximum operating speed 
with 100 percent operative brakes. APTA also presented engineering 
evidence and test data that demonstrated that stopping distances 
remained well within signal spacing distances with a large margin of 
safety even for trains with as low as 85 percent effective brakes. 
Consequently, FRA will not impose speed restrictions on trains 
operating with 85 to 99 percent operative brakes.
    Paragraph (d)(4). This paragraph contains the operating 
restrictions on moving equipment with defective brakes in long-distance 
intercity passenger trains. This paragraph permits the movement of 
defective brake equipment in these trains only to the nearest forward 
location designated as a repair location for this equipment by the 
operating railroad in the list required by Sec. 238.19(d). FRA will 
also permit long-distance intercity passenger trains to continue in 
service past a designated repair location to the next forward passenger 
station only if the designated repair location does not have the 
facilities to safely unload passengers. Although FRA is permitting the 
continued operation of long-distance intercity passenger trains that 
develop en route brake failures resulting in 99 to 85 percent operative 
brakes at normal speeds, the final rule contains a speed restriction of 
no greater than 40 mph when the en route brake failures result in 84 to 
75 percent operative brakes. Therefore, these trains gain flexibility 
in being permitted to move a greater percentage of defective equipment 
than currently allowed and are able to move that equipment to the next 
forward repair location rather than the ``nearest'' repair location as 
currently required. See 49 U.S.C. 20303(a). As noted previously, FRA 
believes that the safety of the traveling public mandates the 
flexibility of permitting passenger trains to continue to the next 
forward repair location or passenger station because requiring trains 
to reverse directions and perform back hauls to the nearest repair 
location increases the risk of collision on the railroad.
    In this final rule, FRA is retaining the proposed requirement that 
operators of long-distance passenger trains designate the locations 
where repairs can be conducted on the equipment. Although FRA agrees 
that this provision puts the control of what locations constitute 
repair locations in the hands of the railroad, FRA believes that the 
operators of these long-distance intercity trains are in the best 
position to determine which locations have the necessary expertise to 
handle the repairs of the somewhat advanced braking systems utilized in 
passenger trains. Due to the unique technologies used on the brake 
systems of these operations and the unique operating environments, the 
facilities and personnel necessary to conduct proper repairs on this 
equipment are somewhat specialized and limited. Moreover, FRA is 
retaining the broad performance-based requirement that railroads 
operating this equipment designate a sufficient number of repair 
locations to ensure the safe and timely repair of the equipment. 
Contrary to the beliefs of some labor commenters, FRA believes that 
this performance standard provides FRA sufficient grounds to institute 
civil penalty enforcement actions or take other enforcement actions if, 
based on its expertise and experience, FRA believes the railroad is 
failing to designate an adequate number of repair locations.
    Furthermore, rather than attempt to develop a standard applicable 
to all situations in the context of short-distance intercity and 
commuter trains, which FRA does not believe can be accomplished, FRA 
will approach the issue of what constitutes the next forward location 
where repairs can be effectuated based on a case-by-case

[[Page 25585]]

analysis of each situation. FRA believes that its field inspectors are 
in the best position to determine whether a railroad exercised good 
faith in determining when and where to move a piece of defective brake 
equipment. In making these determinations both the railroad as well as 
FRA's inspectors must conduct a multi-factor analysis based on the 
facts of each case. In determining whether a particular location is a 
location where necessary repairs can be made or whether a location is 
the next forward repair location in a passenger train context, the 
accessibility of the location, the ability to safely make the repairs 
at that location, and the safety of the passengers are the overriding 
factors that must be considered in any analysis. These factors have a 
multitude of sub-factors which must be considered, such as: the type of 
repair required; the safety of employees responsible for conducting the 
repairs; the safety of employees responsible for getting the equipment 
to or from a particular location; the switching operations necessary to 
effectuate the move; the railroad's recent history and current practice 
of making repairs (brake and non-brake) at a particular location; 
relevant weather conditions; potential overcrowding of passenger 
platforms; and the overcrowding of trailing trains.
    Paragraph (e). This paragraph contains the operating restrictions 
on passenger trains with inoperative power brakes on the front or rear 
unit of the train. Similar provisions were contained in the 1997 NPRM 
and included in each of the various operating restriction contained in 
paragraph (d). In order to make the rule easier to understand, FRA has 
added this paragraph to the final rule and removed the repetitious 
language from each of the provisions contained in paragraph (d). As 
noted in the general preamble discussion above, FRA is slightly 
modifying the provisions related to the operation of trains with 
defective brakes on the front or rear car. In the 1997 NPRM, FRA 
proposed that if the power brakes on the front or rear unit become 
inoperative then a qualified person must be stationed at the handbrake 
on the unit. See 62 FR 49797. FRA recognizes that in some instances the 
handbrake on a car located at the front or rear of a train may not be 
accessible to a member of the train crew or may be located outside the 
interior of the car and, thus, unsafe for a crew member to operate 
while the train is in motion. FRA also recognizes that in many 
circumstances when a car at the front or rear of a train has 
inoperative brakes certain speed restrictions should be placed on the 
train; however, FRA believes that railroads are in the best position to 
determine what the appropriate speed restriction should be given the 
circumstances involved. Therefore, FRA is modifying the requirements 
for the use of such cars and paragraph (e) requires that appropriate 
speed restrictions be imposed with inoperative brakes on the front or 
rear unit and that trains containing equipment with inaccessible 
handbrakes or with handbrakes located outside the interior of a car be 
operated at restricted speed (i.e. 20 mph) and that the defective 
equipment be removed or repositioned in the train at the first possible 
location. The operating restrictions contained in this paragraph are 
consistent with current industry practice and should not impose any 
additional burden to the industry.
    It should be noted that the provisions contained in 49 U.S.C. 
20303(c) continue to remain applicable to a railroad when hauling 
equipment with defective or insecure power brakes or other safety 
appliances pursuant to the requirements contained in this final rule. 
This section of the statute contains the liability provisions attendant 
with the movement of equipment with defective or insecure safety 
appliances, including power brakes.
Section 238.17  Movement of Passenger Equipment With Other Than Power 
Brake Defects
    This section contains the requirements for the movement of 
passenger equipment with a condition not in compliance with part 238, 
excluding a power brake defect and including a safety appliance defect, 
without civil penalty liability under this part. (Railroads remain 
liable, however, under 49 U.S.C. 20303(c), as described in the 
discussion of the previous section.)
    As previously noted, there are currently no statutory or regulatory 
restrictions on the movement of passenger cars with defective 
conditions that are not power brake or safety appliance defects. The 
provisions contained in this section are similar to the provisions for 
moving defective locomotives and freight cars currently contained in 49 
CFR 229.9 and 215.9, respectively. As these provisions have generally 
worked well with regard to the movement of defective locomotives and 
freight cars and in order to maintain consistency, FRA has modeled 
these movement requirements on those existing requirements. FRA is 
allowing passenger railroads the flexibility to continue to use 
equipment with non-safety-critical defects until the next scheduled 
calendar day exterior mechanical inspection. However, FRA intends the 
calendar day mechanical inspection to be the tool used by railroads to 
repair all reported defects and to prevent continued use of defective 
equipment to carry passengers. (Compare Sec. 238.17(b) with 
Sec. 238.17(c).) FRA intends for 49 CFR 229.9 to continue to govern the 
movement of locomotives used in passenger service which develop 
defective conditions, not covered by part 238, that are not in 
compliance with part 229. Part 229 will continue to cover (non-steam) 
locomotives that are used by the tourist railroads until such railroads 
are covered by part 238.
    After review of the comments submitted and provided orally at the 
Working Group meetings, FRA is making some modest changes in this final 
rule regarding the movement of equipment with non-power brake defects. 
FRA agrees with the comments of railroad representatives that the 1997 
NPRM may have been over-reaching in requiring a QMP to make a 
determination regarding the safety of moving a piece of defective 
equipment for any of the mechanical components addressed in this 
regulation. However, FRA also agrees with the comments submitted by 
labor representatives that railroads should not determine what 
components are considered safety-critical. Therefore, FRA will require 
a determination regarding the safety of moving a piece of equipment by 
a QMP (as discussed above) whenever a potential running gear defect is 
involved. FRA rejects the language proposed by APTA that the defect be 
a potentially ``safety-critical'' running gear defect as FRA believes 
that any defect to a running gear component is potentially safety-
critical. In order to avoid confusion, FRA is providing an explicit 
definition of ``running gear defect.'' FRA is defining the term to mean 
any condition not in compliance with this part which involves a truck 
component, a propulsion system component, a draft system component, a 
wheel or a wheel component. In this final rule, FRA will permit the use 
of a qualified person to determine the safety and establish appropriate 
movement restrictions on continued use of equipment which involves non-
running gear defects.
    In paragraph (b), FRA is providing very limited flexibility to 
railroads to operate defective equipment from a location where a 
calendar day mechanical inspection was performed in order to effectuate 
repairs. FRA intends for the calendar day mechanical inspection to be 
as comprehensive as possible and to be the time when all

[[Page 25586]]

defective components are identified and repaired. In order to ensure 
that these daily inspections are performed by highly qualified 
inspectors, FRA has provided the railroads with considerable 
flexibility to perform these inspections at locations that are best 
suited to a quality and comprehensive inspection. Therefore, FRA will 
permit the movement of defective equipment from these inspection 
locations only with very stringent restrictions. Equipment containing 
running gear defects may only be moved from such locations if it is not 
in passenger service and is in a non-revenue train. Equipment 
containing non-running gear defects may be moved in a revenue train 
provided the equipment is locked-out and empty, except that the 
equipment may be used and occupied by a member of the train crew to the 
extent necessary to safely operate the train. Any defective equipment 
moved from such locations must also be properly identified as required 
in paragraph (c)(4) and moved in accordance with any movement 
restriction imposed. FRA believes these stringent movement restrictions 
will provide railroads limited flexibility to move defective equipment 
to a location where it can best be repaired but will limit a railroad's 
desire or ability to move defective equipment from these inspection 
locations and will encourage the performance of the calendar day 
mechanical inspections at locations where repairs to equipment can be 
conducted.
    Paragraph (c) contains the requirements regarding the movement of 
passenger equipment that develops a condition not in compliance with 
this part, other than a safety appliance defect, while en route to its 
destination after its calendar day mechanical inspection was performed. 
This paragraph has been slightly modified from that proposed in the 
1997 NPRM in order to recognize the differing requirements for running 
rear defects and non-running gear defects as noted in the discussion 
above. Paragraph (c)(1) retains the requirement that the QMP may make 
the determination regarding the continued use of equipment containing a 
potential running gear defect based on the description provided by on-
site personnel. Although FRA recognizes the concerns raised by labor 
representatives, FRA believes that the rule must recognize the reality 
of current operations and acknowledge the fact that mechanical-type 
personnel are not readily available at every location on a railroad's 
line of road. Furthermore, when such off-site determinations are made 
the rule requires that the equipment only be moved to the next forward 
location where the equipment can be inspected by a QMP to verify the 
description of the defect provided by the on-site personnel. Paragraph 
(c)(2) also permits determinations regarding the continued use of 
equipment containing non-running gear defects to be made by a qualified 
person based on a description provided by on-site personnel. In cases 
where non-running gear defects are involved, FRA will not require that 
the equipment be inspected at the next forward location by a qualified 
person as the safety impact of such defects should be readily 
identifiable based upon a description by on-site personnel and can be 
adequately addressed via radio communication.
    Paragraph (c)(4) contains the requirements for identifying 
defective equipment. This paragraph permits the identification and 
tracking of defective equipment in either of two ways. One option is to 
tag the equipment in a manner similar to what is currently required 
under Sec. 215.9 for freight cars. The second option is to record the 
specified information in an automated tracking system. Although FRA is 
sensitive to the concerns raised by labor representatives regarding the 
use of automated tracking systems, FRA believes that provision must be 
made to allow railroads to take advantage of existing and developing 
technologies regarding the electronic maintenance and retention of 
records. Although railroad and FRA inspectors may require additional 
training on the use of electronic records, FRA believes that the use of 
such a medium to track defective equipment can expedite the 
identification and repair of defective equipment and, thus, reduce the 
time that defective equipment is operated in passenger service. In 
response to labor's concerns, paragraph (c)(5) has been added to this 
final rule and contains a provision which gives FRA the ability to 
monitor and review a railroad's automated tracking system and provides 
FRA the ability to prohibit or revoke a railroad's ability to utilize 
an automated tracking system in lieu of directly tagging defective 
equipment if FRA finds that the automated tracking system is not 
properly secure, is inaccessible to FRA or a railroad's employees, or 
fails to adequately track and monitor the movement of defective 
equipment. Furthermore, if the automated tracking system developed and 
implemented by a railroad does not accurately and adequately record the 
information required by this part, the railroad will be in violation of 
the movement for repair provisions contained in this section and 
subject to civil penalty liability.
    Paragraph (d) contains a requirement that was inadvertently omitted 
from the 1997 NPRM but which is integral to the movement of equipment 
which has been involved in a derailment. This paragraph addresses the 
inspection of roller bearings on a car whose truck is involved in a 
derailment. As the proper operation and condition of a vehicle's roller 
bearing is a key element in ensuring the safe movement of the vehicle, 
FRA believes it is vital that this provision be included in these final 
regulations. The added requirement prohibits a railroad from continuing 
in service a piece of passenger equipment that has a roller bearing 
whose truck was involved in a derailment unless the bearing is 
inspected and tested in accordance with the provisions stated. The 
added provision is identical to the requirement currently contained in 
49 CFR Sec. 215.115(b). Although the existing provision is applicable 
to freight cars, virtually every passenger train operation follows the 
provisions contained in that section prior to returning a piece of 
equipment to service after it was involved in a derailment and, thus, 
should not result in any added burden to the industry. FRA believes 
that the practice is critical to ensuring the proper operation of the 
roller bearing after a derailment occurs and should be incorporated 
into this final rule.
    Paragraph (e) contains the special statutory restrictions on the 
movement of passenger equipment with a safety appliance defect, other 
than a power brake defect. FRA does not intend to alter the current 
statutory requirements contained in 49 U.S.C. 20303 regarding the 
movement of passenger equipment with defective or insecure safety 
appliances. See Secs. 238.229, 238.429, 238.431. Consequently, in 
paragraph (e), FRA is requiring that passenger equipment that develops 
a defective or insecure safety appliance continue to be subject to all 
the statutory restrictions on its movement. Under the current statutory 
language--

    A vehicle that is equipped in compliance with this chapter whose 
equipment becomes defective or insecure nevertheless may be moved 
when necessary to make repairs * * * from the place at which the 
defect or insecurity was first discovered to the nearest available 
place at which the repairs can be made--
    (1) on the railroad line on which the defect or insecurity was 
discovered; or
    (2) at the option of a connecting railroad carrier, on the 
railroad line of the connecting carrier, if not farther than the 
place of repair described in clause (1) of this subsection.


[[Page 25587]]


49 U.S.C. 20303(a). It should be noted that the safety appliance 
requirements applicable to Tier I equipment merely references the 
Railroad Safety Appliance Standards (49 CFR part 231); however, FRA has 
mandated separate safety appliance requirements for Tier II passenger 
equipment. See Secs. 238.429 and 238.431.
    As noted previously, the statutory provisions related to the 
movement of equipment with defective or insecure safety appliances 
permit the movement of such equipment to the nearest location where the 
necessary repairs can be made. The determination of what constitutes 
the nearest location where the necessary repairs can be effectuated in 
a safety appliance context is identical to the analysis required when 
dealing with a power brake defect. In making these determinations both 
the railroad as well as FRA's inspectors must conduct a multi-factor 
analysis based on the facts of each case. In determining whether a 
particular location is a location where necessary repairs can be made 
or whether a location is the nearest repair location in a passenger 
train context, the accessibility of the location, the ability to safely 
make the repairs at that location, and the safety of the passengers are 
the overriding factors that must be considered in any analysis. These 
factors have a multitude of sub-factors which must be considered, such 
as: the type of repair required; the safety of the passengers if a move 
against the current of traffic is conducted; the safety of employees 
responsible for conducting the repairs; the safety of employees 
responsible for getting the equipment to or from a particular location; 
the switching operations necessary to effectuate the move; the 
railroad's recent history and current practice of making repairs (brake 
and non-brake) at a particular location; relevant weather conditions; 
potential overcrowding of passenger platforms; and the overcrowding of 
trailing trains. Therefore, in many circumstances trains will be 
permitted to continue to the next forward location where the necessary 
repairs can be performed as such movement is necessary to ensure the 
safety of the traveling public by protecting them from the hazards 
incident to performing movements against the current of traffic.
Section 238.19  Reporting and Tracking Defective Equipment
    This section contains the reporting and tracking requirements that 
passenger railroads must maintain regarding defective passenger 
equipment. FRA is requiring that each railroad develop and maintain a 
system for reporting and tracking equipment defects. Paragraph (a) of 
this section requires that, for each equipment defect discovered by the 
railroad on equipment used by the railroad, the system record the 
following information: the number by which the equipment is identified, 
type of defect, when the defect occurred, the determination made by a 
qualified person or a qualified maintenance person on handling the 
equipment, the name of such person, any operating restrictions placed 
on the equipment, and finally how and when the defect was corrected. 
FRA has not identified any specific method or means by which a railroad 
should gather and maintain the required information. FRA believes that 
each railroad is in the best position to determine the method of 
obtaining the required information which is most efficient and 
effective based on its specific operation. Thus, railroads could 
maintain this information either in some type of written medium or 
electronically in conjunction with some type of automated tracking 
system.
    FRA believes that the reporting and tracking of defective equipment 
is an essential feature of any effective system safety program. 
Railroad managers are able to utilize such systems to ensure that the 
railroad complies with safety regulations, does not use unsafe 
equipment, makes needed repairs, and has failure data to make 
reliability-based decisions on maintenance intervals. Furthermore, most 
passenger railroads currently have some sort of reporting and tracking 
system in place. FRA recognizes that some railroads may have to incur 
additional initial costs to develop or improve defect reporting and 
tracking systems; however, FRA believes these costs can be recouped 
through the increased operating efficiency that an effective recording 
and tracking system provides.
    Paragraph (a) makes clear that railroads have this tracking system 
in place within 26 months after publication of the final rule in the 
Federal Register. APTA recommended that railroads be provided a two-
year phase-in period for this requirement to become effective. As the 
requirements for tracking defective equipment are contingent on 
completion of a railroad's training of its employees, FRA will provide 
the same time period for implementation of the reporting and tracking 
system. However, FRA believes that APTA's recommendation was based on a 
misunderstanding that the defect tracking system had to be an automated 
electronic system. As the previous discussion makes clear, the defect 
tracking system need not be an electronic automated system but could 
consist of a written records retention system. Thus, even if a railroad 
needs two or more years to develop an automated tracking system, the 
railroad could utilize a written tracking system while the automated 
system is being developed. Virtually all railroads currently track 
their defective equipment by some means; FRA believes that these 
current methods of compiling data could be slightly modified to 
include--or already include--all of the information required by this 
section.
    Paragraph (b) requires that railroads maintain the required 
information for a period equal to one periodic maintenance interval for 
each specific type of equipment. FRA believes that this minimum 
retention period will ensure that the records remain available when 
they are most needed, but will not place a burdensome record storage 
requirement on railroads. However, FRA strongly encourages railroads to 
keep these records for longer periods of time because they form the 
basis for future reliability-driven decisions concerning test and 
maintenance intervals.
    In paragraph (d), FRA retains the previously proposed requirement 
that railroads operating long-distance passenger trains and Tier II 
passenger equipment maintain a list of the locations where repairs can 
be made to the equipment's power brake components. Although FRA agrees 
that this provision puts the control of what locations constitute 
repair locations in the hands of the railroad, FRA believes that the 
operators of these long-distance intercity trains and Tier II passenger 
equipment are in the best position to determine which locations have 
the necessary expertise to handle the repairs of the somewhat advanced 
braking systems utilized in these passenger trains. Due to the unique 
technologies used in the brake systems of these operations and the 
unique operating environments, the facilities and personnel necessary 
to conduct proper repairs on this equipment are somewhat specialized 
and limited. Moreover, this final rule retains the broad performance-
based requirement that railroads operating this equipment designate a 
sufficient number of repair locations to ensure the safe and timely 
repair of the equipment. Contrary to the beliefs of some labor 
commenters, FRA believes that this performance standard provides FRA 
sufficient grounds to institute civil penalty enforcement actions or 
take other enforcement actions if, based on its expertise and 
experience, FRA believes the railroad is failing to

[[Page 25588]]

designate an adequate number of repair locations.
Section 238.21  Special Approval Procedure
    This section contains the procedures to be followed when seeking to 
obtain FRA approval of an alternative standard under Secs. 238.103 
(fire safety), 238.223 (fuel tanks), 238.309 (periodic brake equipment 
maintenance), 238.311 (single car test), 238.405 (longitudinal static 
compressive strength), or 238.427 (suspension system); for approval of 
alternative compliance under Sec. 238.201 (covers structural standards 
other than the static end strength requirement); and for special 
approval of pre-revenue service acceptance testing plans as required by 
Sec. 238.111. Procedures for obtaining FRA approval of inspection, 
testing, and maintenance programs for Tier II equipment under 
Sec. 238.503 are found at Sec. 238.505. FRA has revised this section in 
the final rule from that which was proposed in the NPRM, consistent 
with other changes made in the final rule.
    FRA intends to entertain petitions for alternative compliance under 
Sec. 238.201 to allow operation of equipment that complies with the 
static end strength requirement (Sec. 238.203) but does not fully 
comply with the other final standards in subpart C of part 238, 
provided the petitioner can demonstrate ``equivalent safety'' in that 
the equipment will operate at a level of safety that is at least 
equivalent to that afforded by the provision(s) of subpart C for which 
alternate compliance is sought. Equivalent safety may be afforded by 
features or measures that compensate for equipment that does not meet 
such standard(s) on its own. Equivalent safety is met when railroad 
employees, passengers, and the general public are no more at risk from 
passenger equipment that does not specifically meet the requirement(s) 
for which alternative compliance is sought, but is protected by 
compensating features or measures, than when the equipment specifically 
complies with the requirement(s) itself.
    FRA recommends that the risk assessment portion of a railroad's 
system safety program be used to demonstrate equivalent safety. The 
burden would be on the petitioning railroad to perform a comparative 
risk assessment and to prove equivalent safety. FRA has experience with 
two instances involving different passenger equipment operations where 
a comparative risk assessment has been used successfully. Amtrak 
commissioned a comparative risk assessment between current Northeast 
Corridor operations and proposed operations involving the HST at speeds 
up to 150 mph. The risk assessment demonstrated that proposed 
countermeasures such as enhancements to the train control system and 
the increased structural strength and the crash energy management 
design of the HST should compensate for the increased operating speed. 
The comparative risk assessment quantitatively showed that, with the 
safety improvements included in the Amtrak plan, passengers were no 
more at risk travelling on the HST at 150 mph on the Northeast Corridor 
than if they were travelling on an existing Amtrak passenger train at a 
lesser speed on the same corridor.
    The second instance is the proposed Florida Overland Express (FOX) 
operation of a French TGV high speed rail system in Florida that was 
being considered until January 1999. The State of Florida has withdrawn 
its support for the project, and work on the project has ceased. 
Nonetheless, FOX had performed a comparative risk assessment of three 
operations: the HST on the Northeast Corridor, the TGV on high speed 
lines in France, and the proposed FOX operation in Florida. See FRA 
Docket: RM Pet. 97-1. The analysis showed the TGV operation in France 
to pose less risk to passengers than the HST on the Northeast Corridor, 
and the proposed FOX operation to be even safer than the TGV in France. 
The FOX risk assessment suggested that collision avoidance provided by 
a dedicated right-of-way with no grade crossings more than compensated 
for the increased speed and decreased structural strength of the 
proposed equipment.
    FRA cites these two instances as examples of what is expected to 
demonstrate equivalent safety for proposed operations when a petition 
for alternative compliance is submitted in accordance with 
Sec. 238.201. Any such analysis would need to be predicated on a 
detailed engineering analysis of the crashworthiness of the vehicles 
proposed to be employed, permitting FRA to assess the gap in safety 
between those vehicles and equipment built to the specific requirements 
of subpart C. FRA would also expect an analysis showing the 
effectiveness of clearly compensating features or measures, such as 
closing grade crossings, providing absolute separation of lighter rail 
equipment from heavy rail equipment, or using highly capable signal and 
train control systems that significantly reduce the probability of 
accidents caused by human error. FRA would provide advice and guidance 
to organizations wishing to demonstrate equivalent safety, but the 
burden of performing a comparative risk assessment and establishing 
that the operation provides equivalent safety is on the entity 
proposing to operate equipment that does not fully comply with the 
standards in subpart C.
Section 238.23  Information Collection
    This provision shows which sections of this part have been approved 
by the Office of Management and Budget (OMB) for compliance with the 
Paperwork Reduction Act of 1995. See 44 U.S.C. 3501 et seq. A more 
detailed discussion of the information collection requirements in this 
part is provided below.
Subpart B--Safety Planning and General Requirements
Section 238.101  Scope
    This subpart contains safety planning requirements and other 
generally applicable requirements for all passenger equipment subject 
to this part.
Section 238.103  Fire Safety.
    This section contains the fire safety planning and analysis 
requirements for passenger equipment, as well as the requirements for 
the materials used in passenger equipment. This section is comprised of 
parts of proposed sections 238.105 and 238.115 in the NPRM, which FRA 
has combined together in this final rule as APTA had suggested in its 
comments.
    Paragraph (a)(1) contains the fire safety requirements for 
materials used in constructing passenger cars and cabs of locomotive 
ordered on or after September 8, 2000, or placed in service for the 
first time on or after September 9, 2002. Such materials shall comply 
with the test performance criteria for flammability and smoke emission 
characteristics as specified in Appendix B to this part, or alternative 
standards issued or recognized by an expert consensus organization 
after special approval of FRA's Associate Administrator for Safety 
under the procedures specified in section 238.21. Paragraph (a)(1) is 
based on proposed Sec. 238.115(a)(1) in the NPRM. See 62 FR 49803.
    In the final rule, paragraph (a)(1) expressly applies to materials 
used in constructing a passenger car or a locomotive cab, unlike the 
wording of proposed Sec. 238.115(a)(1) in the NPRM, see 62 FR 49803, 
which expressly applied to all materials used in constructing the 
interior of a passenger

[[Page 25589]]

car or a locomotive cab. As proposed in the NPRM, of course, such 
materials were required to meet the test performance criteria for 
flammability and smoke emission characteristics contained in Appendix B 
to part 238, see 62 FR 49823-4, or alternative standards after FRA 
approval. FRA has removed the word ``interior'' from this paragraph in 
the final rule because its use is inconsistent with the requirements of 
part 238 as a whole. In the NPRM, proposed Appendix B itself provided 
test performance criteria for a category of materials entitled, 
``Exterior Plastic Components''; specifically, ``End Cap'' and ``Roof 
Housings'' under the function of material column in the table. Further, 
proposed Appendix B separately provided test methods and performance 
criteria for a function of material termed ``Exterior Boxes'' under the 
category entitled, ``Component Box Covers.'' As expressed in the NPRM, 
FRA intended that ``exterior'' materials used in constructing passenger 
cars and locomotive cabs comply with test performance criteria for 
flammability and smoke emission characteristics.
    In the final rule, materials used in constructing passenger cars 
and locomotive cabs are required to meet the test performance criteria 
for flammability and smoke emission characteristics as specified in 
Appendix B, or alternative standards after FRA approval. As a result, 
with the exception of any alternative standards approved by FRA, the 
terms of Appendix B govern which testing of materials is, or is not, 
required as a threshold inquiry. Whether materials are physically 
located on the exterior or in the interior of a passenger car, for 
example, such materials are subject to testing for flammability and 
smoke emission characteristics if so required by the terms of Appendix 
B. Overall, FRA believes that the final rule more appropriately 
specifies the flammability and smoke emission testing requirements for 
materials used in constructing passenger cars and locomotive cabs, 
without unnecessarily burdening railroads. In particular FRA notes 
that, unlike the NPRM, Appendix B in the final rule provides express 
exceptions from the need to test materials used in constructing 
passenger cars and locomotive cabs under certain conditions. (See the 
section-by-section analysis discussion of Appendix B to part 238, 
explaining the changes to Appendix B.)
    In its comments on the NPRM, APTA recommended that the requirements 
of paragraph (a)(1) apply to passenger cars and cabs of locomotives 
ordered on or after one year following the effective date of the final 
rule. APTA's suggested rule text did not contain an outside limit on 
the placement in service of new passenger equipment not meeting the 
requirements of paragraph (a)(1), although ordered within the permitted 
time. However, FRA believes that an outside limit on the placement in 
service of new passenger equipment not meeting the requirements of this 
section needs to be retained so as not to delay unnecessarily the 
implementation of the rule.
    Under paragraph (a)(2), on or after November 8, 1999 materials 
introduced into a passenger car or a locomotive cab, during any kind of 
rebuild, refurbishment, or overhaul of such passenger equipment, shall 
meet the test performance criteria for flammability and smoke emission 
characteristics as specified in Appendix B, or alternative standards 
after FRA approval as specified in this rule. Originally, FRA proposed 
that the test performance criteria for flammability and smoke emission 
characteristics apply as of the effective date of the final rule to 
materials used in refurbishing passenger car and locomotive cab 
interiors. FRA has removed the express reference to passenger car and 
locomotive cab interiors for the reasons stated in the above discussion 
of paragraph (a)(1).
    In response to the NPRM, APTA commented that it may support a rule 
requiring the materials selection criteria to be used when the 
interiors of existing passenger equipment are refurbished, if the term 
refurbish were carefully defined in the Working Group meetings. In 
either case, APTA recommended that this provision should apply as of 
one year following the effective date of the final rule. FRA has 
refined paragraph (a)(2) to address APTA's concern: Simply put, if 
material is introduced into passenger cars and locomotive cabs during 
any kind of rebuild, refurbishment, or overhaul of the equipment, the 
material must comply with the test performance criteria for 
flammability and smoke emission characteristics as specified in 
Appendix B, or alternative standards after FRA approval. For example, 
if a seat or a section of a wall is replaced, then the materials used 
to replace those components (including an individual seat cushion) must 
comply with the test performance criteria for flammability and smoke 
emission characteristics as specified in Appendix B, or alternative 
standards after FRA approval. However, paragraph (a)(2) does not in 
itself require a railroad to remove existing materials from a vehicle 
that do not comply with test performance criteria for flammability and 
smoke emission characteristics, when such materials are found but not 
intended to be replaced during the railroad's rebuilding, 
refurbishment, or overhaul of that vehicle. Of course, such non-
compliant materials may be required to be removed from the vehicle 
pursuant to the fire safety analyses required under paragraph (d) of 
this section; yet, again, the requirements of paragraph (a)(2) do not 
specifically require such removal. FRA believes that deferring the 
implementation of this provision for one year, as recommended by APTA, 
is therefore not necessary for railroads in light of this section's 
clearly defined application.
    As noted above in the discussions of paragraphs (a)(1) and (a)(2), 
railroads can request FRA approval to utilize alternative standards 
issued or recognized by an expert consensus organization in lieu of 
complying with the test performance criteria for flammability and smoke 
emission characteristics as specified in Appendix B. A railroad must 
make such a request pursuant to the procedures in Sec. 238.21.
    Paragraph (b) requires railroads to obtain certification that a 
representative sample of combustible materials to be used in 
constructing passenger cars and locomotive cabs (pursuant to paragraph 
(a)(1)) or introduced into such equipment as part of any kind of 
rebuild, refurbishment, or overhaul of the equipment (pursuant to 
paragraph (a)(2)) have been tested and comply with the fire safety 
requirements specified in this part. Paragraph (b) is based on 
Sec. 238.115(b) in the NPRM. FRA has modified the certification 
requirement following a comment by APTA on the NPRM that the 
certification be based on a representative sample of the combustible 
materials used. In response to another APTA comment, FRA has also 
clarified that the certification be based on the results at the time 
the materials were tested.
    Paragraph (c) requires each railroad to address the fire safety of 
new equipment during the design stage so as to reduce the risk of harm 
due to fire to an acceptable level using MIL-STD-882C as a guide or 
another such formal methodology. (A copy of MIL-STD-882C has been 
placed in the public docket for this rulemaking.) To this end, the rule 
requires that each railroad complete a written analysis of the fire 
safety problem and ensure that good fire protection practice is used 
during the design of the equipment. This paragraph is based on proposed 
Sec. 238.105(a) and (b) in the NPRM. See 62 FR 49800.
    Booz-Allen & Hamilton, Inc. (Booz-Allen) commented that the risk

[[Page 25590]]

acceptance level be clarified. It stated that MIL-STD-882C does not 
define a risk acceptance level itself, and it believed each individual 
railroad should determine that level based on its own operating 
experience, fleet life, operating conditions, and other factors. FRA 
recognizes that MIL-STD-882C does not define a specific acceptance 
level itself. Yet, the Standard leads a railroad through the steps 
necessary to determine an acceptance level, and the railroad is in the 
best position to make that determination. FRA notes that Booz-Allen 
also submitted a number of other comments on the elements on the fire 
safety analyses required by the rule, and FRA has incorporated several 
of these comments in whole and in part.
    Paragraph (d) requires that existing passenger equipment and 
operations be subjected to a fire safety analysis similar to that 
proposed for new equipment in paragraph (c). This paragraph is based on 
proposed Sec. 238.105(d) in the NPRM. See 62 FR 49801. A preliminary 
fire safety analysis would be required within the first year. This 
effort would constitute an overview of the fleet and service 
environments, together with known elements of risk (e.g., tunnels). For 
any category of equipment and service identified as possibly presenting 
unacceptable risk, a full analysis and any necessary remedial action 
would be required within the following year. A full fire safety 
analysis, including review of the extent to which materials in all 
existing cars comply with the test performance criteria for 
flammability and smoke emission characteristics contained in Appendix B 
to this part or alternative standards approved by FRA under this part, 
would be required within 4 years. This overall review would closely 
parallel and reinforce the passenger train emergency preparedness 
planning effort mandated under a separate docket (see 63 FR 24630; May 
4, 1998).
    Paragraph (d) responds to NTSB concerns following its investigation 
of the collision involving a MARC commuter train with Amtrak's Capitol 
Limited at Silver Spring, Maryland, on February 16, 1996. Among 13 
recommendations addressed to FRA was the following:

    Require that a comprehensive inspection of all commuter 
passenger cars be performed to independently verify that the 
interior materials in these cars meet the expected performance 
requirements for flammability and smoke emissions characteristics.

(R-97-20) (NTSB/RAR-97/02, ``Collision and Derailment of Maryland Rail 
Commuter MARC Train 286 and National Railroad Passenger Corporation 
AMTRAK Train 29 Near Silver Spring, Maryland on February 16, 1996.'') 
The NTSB noted that some materials taken from a MARC car not involved 
in the fire that resulted from the collision ``failed current 
flammability and smoke emissions testing criteria,'' and that the 
materials in the actual cab control car involved in the collision 
``also most likely would have failed'' to meet the testing criteria. 
(NTSB/RAR 97/02 at 63.) The NTSB did note, however, that had the 
materials met current performance criteria, the outcome would not have 
been any different because of the presence of diesel fuel sprayed into 
the cab control car. Id. Overall, the NTSB found that because other 
commuter passenger cars may also have interior materials that may not 
meet specified performance criteria for flammability and smoke emission 
characteristics, the safety of passengers in those cars could be at 
risk.
    FRA agrees with the NTSB that steps must be taken to minimize fire 
safety vulnerabilities in the existing rail passenger equipment fleet. 
Present fire safety guidelines are advisory and were not introduced by 
FRA until 1984. Even in recent years, passenger railroads have been 
free to utilize non-compliant materials (particularly during interior 
refurbishment funded locally without FTA support). It is appropriate 
for each commuter authority and Amtrak to evaluate the mix of 
materials, possible sources of ignition, and potential fire 
environments--including tunnels, cuts and elevated structures where 
evacuation to the outside of the vehicle may be difficult or 
ineffectual in reducing the risk of injury--relevant to the risk of 
injury due to fire or smoke exposure.
    FRA is concerned in particular with the risk arising from the 
operation of cab cars forward and MU locomotives. Due to their position 
in the lead of a passenger train, these vehicles are more greatly 
exposed to the risk of fire from collisions with other rail vehicles as 
well as highway vehicles at grade crossings. In a collision, fire may 
erupt from the fuel tanks of both the rail and highway vehicles, and 
also from tanks used by highway vehicles that transport loads of 
flammable material. The level of risk on each railroad corresponds to 
the number of highway-rail grade crossings, density of rail traffic, 
and opportunities for collisions.
    FRA requested comments on the costs and benefits associated with 
the approach contained in paragraph (d). APTA commented that there 
would be little safety benefit to commuter railroads, and potentially 
great cost, in requiring the fire safety program for new passenger 
equipment to be applied to all categories of existing passenger 
equipment. APTA commented that the need for a program of this type has 
not been demonstrated, and that neither statistics nor other evidence 
has been presented to show that non fuel-fed equipment fires are a 
serious cause of injury or death in the passenger railroad industry. 
APTA added that, unlike a fire safety analysis of new equipment, where 
design flexibility exists to correct in an economical manner any 
deficiencies uncovered by the analysis, costs to modify existing 
equipment can be an order of magnitude higher. Overall, APTA believed 
the impact of the proposal to be great due to the expense of 
retrofitting equipment, although it was unable to quantify the exact 
impact without performing the fire safety analyses necessary to 
determine what modifications needed to be done to equipment. Booz-Allen 
also commented that the rule will not be cost-effective for existing 
passenger equipment that has less than 5 years of service life.
    FRA recognizes the concern that retrofitting existing passenger 
equipment may impose considerable cost, and FRA neither proposed nor is 
requiring that materials not complying with the test performance 
criteria for flammability and smoke emission characteristics be removed 
in every instance from existing passenger equipment, if such materials 
are found during a fire safety analysis. Accordingly, each railroad is 
afforded the flexibility of reducing an unacceptable safety risk 
uncovered during an analysis of its equipment by the best means it sees 
fit. However, FRA is reluctant to withhold application of this 
provision to equipment with less than a specified service life. First, 
the practical question exists whether the service life of a vehicle can 
be specified in fact, considering the ability to extend a vehicle's 
life by rebuilding and the possibility of its sale to other railroads. 
Second, FRA believes that a preliminary fire safety analysis of all 
passenger equipment is necessary to determine whether any passenger 
equipment may present an unacceptable safety risk for passengers and 
crewmembers, regardless of the age of the vehicle. If an unacceptable 
risk is in fact found and the railroad had intended on retiring the 
equipment in the near future, the railroad can evaluate for itself 
whether it is more economical to retire the equipment or correct the 
safety deficiency. Further, considering the historical record of fires 
on passenger equipment, FRA does not expect railroads to find 
widespread fire safety

[[Page 25591]]

problems on the equipment it operates, and thus FRA would expect that 
most of the time a preliminary fire safety analysis would be all that 
is necessary.
    In its comments on the NPRM, Booz-Allen questioned whether the fire 
safety analysis of existing equipment would include consideration of 
nonmetallic and noncombustible materials. FRA believes that such 
consideration is necessary because, for example, floor tiles or other 
non-metallic materials may have coatings that may emit gas in a fire. 
Booz-Allen also commented that the fire risk of equipment depends on 
the ignitability of the materials, and, accordingly, ignitability tests 
should be included as part of the performance criteria. FRA believes 
the ignitability of materials is sufficiently addressed by the test 
performance criteria for flammability and smoke emission 
characteristics found in Appendix B to this part.
    In the end, FRA believes the concern of the commenters as to the 
expense of paragraph (d) is overestimated. A railroad is not required 
to replace non-compliant materials in every instance, if such materials 
are found, and that has been made clear in the rule text. Neither has 
FRA specified that the railroad perform a fire safety analysis 
equivalent to that required for new equipment under paragraph (c).
    As a final point FRA notes that, following its investigation of the 
Silver Spring, Maryland, passenger train collision, the NTSB also found 
that Federal guidelines on the flammability and smoke emission 
characteristics and the testing of interior materials do not provide 
for the integrated use of passenger car interior materials and, as a 
result, are not useful in predicting the safety of the interior 
environment of a passenger car in a fire. (NTSB/RAR-97/02, at 74) FRA 
believes that existing fire safety guidelines have continuing value for 
their specific purpose. Those guidelines are being codified, as 
revised, in this final rule as the best currently available criteria 
for analysis of individual materials. As noted above, FRA is conducting 
research through NIST to address the interaction of materials and other 
aspects of fire safety from a broader, systems approach. This 
philosophy is embodied in part in paragraph (c) with respect to new 
equipment. Based on this ongoing research and industry fire safety 
efforts, FRA expects to propose new fire safety standards in the second 
phase of this rulemaking.
Section 238.105  Train Hardware and Software Safety
    This section applies to train hardware and software used to control 
or monitor safety functions in passenger equipment ordered on or after 
September 8, 2000, and such components implemented or materially 
modified in new or existing passenger equipment on or after September 
9, 2002. Inclusion of these requirements in passenger equipment 
reflects the growing role of automated systems to control or monitor 
passenger train safety functions.
    This section represents the merger of proposed sections 238.107 
(``Software safety program'') and 238.121 (`` Train system software and 
hardware'') in the NPRM. Although FRA received no particular comments 
on these sections in response to the NPRM, FRA determined that these 
sections should be combined to make the requirements of the final rule 
more concise and clear.
    Paragraph (a) requires the railroad to develop and maintain a 
written hardware and software safety program to guide the design, 
development, testing, integration, and verification of computer 
software and hardware that controls or monitors passenger equipment 
safety functions. In preparing this paragraph of the final rule, FRA 
essentially combined the requirements proposed in Sec. 238.107(a), and 
Sec. 238.121(a) of the NPRM. See 62 FR 49801, 49803. Paragraph (b) 
states that the hardware and software safety program shall be based on 
a formal safety methodology that includes a Failure Modes, Effects, 
Criticality Analysis (FMECA); full verification and validation testing 
for all hardware and software that controls or monitors equipment 
safety functions, including testing for the interfaces of such hardware 
and software; and comprehensive hardware and software integration 
testing to ensure that the software functions as intended. A formal 
safety analysis that includes full verification testing is standard 
practice for safety systems that contain software components. Hardware 
and software integration testing ensures that the hardware and the 
software installed in the hardware function together as intended. This 
testing is common practice for safety control systems that include both 
software and hardware components. The requirements found in paragraph 
(b) arise in particular from Sec. 238.121(a) and (b) of the NPRM. See 
62 FR 49803.
    Paragraph (c) focuses on ensuring the safety and reliability of 
software that controls or monitors passenger equipment safety 
functions. Paragraph (c) specifies that, for purposes of complying with 
this section, such software shall be considered safety-critical unless 
a completely redundant, failsafe, non-software means to provide the 
same function is provided. The requirements of this paragraph were 
principally drawn from Sec. 238.107(a) and (b) of the NPRM. See 62 FR 
49801. FRA notes that the final rule omits proposed Sec. 238.107(c) in 
the NPRM as a separate provision in this rule. See id. However, in 
complying with paragraph (c) of the final rule, a railroad must 
necessarily ensure that software safety requirements are specified in 
its contracts for the purchase of the software. The railroad must 
further retain documentation to show that the software was manufactured 
to the design criteria specified pursuant to this section and that all 
required testing was performed. However, verification and validation of 
control systems by an independent entity is not required by this rule, 
nor is a fully quantitative proof of safety mandated by this rule, as 
neither was proposed.
    Paragraph (d) specifies that hardware and software that controls or 
monitors safety functions shall include design features that result in 
a safe condition in the event of a computer hardware or software 
failure. Such design features are used in aircraft, as well as in 
weapon control systems, to ensure their safety. In the case of primary 
braking systems, electronic controls must either fail safely (resulting 
in a full service brake application) or access to full pneumatic 
control must be provided. As clarified, this provision was proposed in 
Sec. 238.121(c) of the NPRM. See 62 FR 49803.
    Paragraph (e) makes clear that the railroad shall comply with the 
elements of its hardware and software safety program that affect the 
safety of the passenger equipment. Failure to carry out a provision 
unrelated to the safety of the equipment is not implicated by this 
section, so as not to unnecessarily restrict the flexibility of the 
railroad. FRA adapted this requirement from that proposed in 
Sec. 238.107(d) of the NPRM. See 62 FR 498901.
    Overall, the requirements of this section reflect good practices 
that have led to reliable, safe computer hardware and software control 
systems in other industries. Computer hardware and software systems 
designed to these requirements may require a larger initial investment 
to develop, but experience in other industries has shown that this 
investment is quickly recovered by significantly reducing hardware and 
software integration problems and

[[Page 25592]]

minimizing trouble-shooting and debugging of equipment.
Sec. 238.107  Inspection, Testing, and Maintenance Plan
    This section contains the general provisions requiring railroads to 
develop detailed plans for inspecting, testing, and maintaining Tier I 
equipment. (The inspection, testing, and maintenance plan for Tier II 
equipment is covered under Sec. 238.503.) FRA's goal is for railroads 
to develop a set of standards to ensure that equipment remains safe and 
operates properly as it wears and ages, and to provide enough 
flexibility to allow individual railroads to adapt the maintenance 
standards to their own unique operating environment.
    Paragraph (b) requires a railroad that operates Tier I passenger 
equipment subject to this part to develop and provide to FRA, if 
requested, particulars about its inspection, testing, and maintenance 
plan for that equipment, including the following:
     Inspection procedures, intervals and criteria;
     Testing procedures and intervals;
     Scheduled preventive maintenance intervals;
     Maintenance procedures; and
     Training of workers who perform the tasks.
    Since FRA does not dictate the exact contents of the plan, 
individual railroads retain much flexibility to tailor the plan to 
their individual needs and experience. At the same time, FRA believes 
this requirement is important and will cause railroads to re-examine 
their inspection, testing, and maintenance procedures to determine that 
they are adequate to ensure that the safety-related components of their 
equipment are not deteriorating over time. This approach represents 
good business practice and in most cases merely formalizes what 
passenger railroads are already doing. However, FRA believes this 
section will provide valuable guidance to regional governments or 
coalitions attempting to establish new commuter rail service.
    Paragraph (c) makes clear that the inspection, testing, and 
maintenance plan required by this section should not include procedures 
to address employee working conditions that arise in the course of 
conducting the inspections, tests, and maintenance set forth in the 
plan. FRA intends for the plan required by this section to detail only 
those tasks required to be performed in order to conduct the 
inspections, tests, and maintenance necessary to ensure that the 
equipment is in safe and proper condition for use. In proposing the 
creation of these plans, FRA did not intend to enter into the area of 
addressing employee safety while conducting the inspections, tests, and 
maintenance covered by the plans. FRA is always concerned with the 
safety of employees while conducting their duties, but employee safety 
in maintenance and servicing areas generally falls within the 
jurisdiction of the United States Department of Labor's Occupational 
Safety and Health Administration (OSHA). It is not FRA's intent to oust 
OSHA's jurisdiction with regard to the safety of employees while 
performing the inspections, tests and maintenance required by this 
part, except where FRA has already addressed workplace safety issues, 
such as for blue signal protection. Therefore, in order to prevent any 
uncertainty as to FRA's intent, FRA has modified this section by 
eliminating any language or provision which could have been potentially 
perceived as displacing the jurisdiction of OSHA and has added a 
specific clarification that FRA does not intend for the plan required 
by this section to address employee safety issues that arise in the 
course of conducting the inspections and tests described. Consequently, 
the specific elements that FRA proposed to be included in the 
inspection, testing, and maintenance plan have been eliminated for the 
reasons noted above and because they were merely duplicative of the 
general requirements contained in paragraph (b) and are unnecessary.
    It should also be noted that the general inspection, testing, and 
maintenance requirements previously proposed in the 1997 NPRM at 
paragraph (b) of this section (62 FR 49801-802) and the maintenance 
interval requirements proposed at paragraph (c) have been removed from 
this section in this final rule. The conditions and components 
previously proposed in paragraph (b) of this section have been moved to 
the periodic mechanical inspection contained in Sec. 238.307(c). As the 
conditions previously proposed in this paragraph were intended to 
ensure that the railroads had an inspection scheme in place to ensure 
that all systems and components of the equipment are free of conditions 
that endanger the safety of the crew, passengers or equipment, FRA 
believes that a specific inspection interval would be better suited to 
address the general condition of the equipment and ensure the safety of 
railroad employees, passengers and equipment. In addition, the 
maintenance interval requirements have been modified and moved to the 
periodic mechanical inspection requirements contained in 
Sec. 238.307(b). Consequently, FRA has moved the general conditions 
maintenance interval provisions previously addressed in this section to 
the specific inspection requirements contained in subpart D of this 
final rule.
Section 238.109  Training, Qualification, and Designation Program
    This section contains the training, qualification, and designation 
requirements for workers (that is, both railroad employees and 
contractors as defined in the section) who perform inspection, testing, 
and maintenance tasks. FRA believes that worker training, 
qualification, and designation are central to a safe operation.
    Paragraph (a) requires railroads to adopt and comply with a 
training, qualification, and designation program for employees and 
contractors who perform safety-related inspection, testing, or 
maintenance tasks under this part. ``Contractor,'' in this context, 
means ``a person under contract with the railroad or an employee of a 
person under contract with the railroad to perform any of the tasks 
required by this part.'' FRA intends for the training, qualification, 
and designation requirements to apply not only to railroad personnel 
but also to contract personnel that are responsible for performing 
brake system inspections, maintenance, or tests required by this part. 
FRA believes that railroads are in the best position to determine the 
precise method of training that is required for the personnel they 
elect to use to conduct the required brake system inspections, tests, 
and maintenance. Although FRA provides railroads with broad discretion 
to develop training programs specifically tailored to the type of 
equipment they operate and the personnel they employ, FRA will expect 
railroads to fully comply with the training and qualification plans 
they develop. This section has been amended slightly from that proposed 
in the 1997 NPRM in order to stress that a critical component of this 
training is ensuring that a railroad's employees are aware of the 
specific Federal requirements that govern their work. Currently, many 
railroad training programs fail to distinguish Federal requirements 
from company policy.
    Paragraph (b) contains a series of general requirements or elements 
which must be part of any training and qualification plan developed and 
implemented by a railroad. FRA believes that the elements contained in 
this section are specific enough to

[[Page 25593]]

ensure high quality training while being sufficiently broad to permit a 
railroad to develop a training plan that is best suited to its 
particular operation. This paragraph requires each railroad to identify 
the specific tasks related to the inspection, testing and maintenance 
of the brake systems operated by that railroad, develop written 
procedures for performing those tasks, identify the skills and 
knowledge necessary to perform those tasks, and specifically identify 
and educate its employees on the Federal requirements contained in this 
part related to the performance of those tasks. FRA believes that these 
requirements will ensure that, at a minimum, the railroad surveys its 
entire operation and has identified the various activities its 
employees perform. FRA intends for these written procedures and the 
identified skills and knowledge to be used as the foundation for any 
training program developed by the railroad.
    This paragraph also makes clear that railroads are permitted to 
train employees only on those tasks that they will be responsible for 
performing. FRA tends to agree with several railroad commenters that 
there is no reason for individuals who solely perform simple air brake 
or mechanical tests and inspections to be as highly trained as those 
individuals responsible for conducting comprehensive brake or 
mechanical inspections or those individuals responsible for trouble-
shooting, maintaining, and repairing the equipment. This paragraph also 
makes clear that a railroad may incorporate an already existing 
training program, such as an apprenticeship program. Thus, railroads 
would likely not need to provide much additional training, except 
training specifically addressing the requirements contained in this 
part and possibly refresher training, to its mechanical forces that 
have completed an apprentice program for their craft.
    This paragraph also contains requirements that any program 
developed must include ``hands-on'' training as well as classroom 
instruction. FRA believes that classroom training by itself is not 
sufficient to ensure that an individual has retained or grasped the 
concepts and duties explained in a classroom setting. In order to 
adequately ensure that an individual actually understands the training 
provided in the classroom, some sort of ``hands-on'' capability must be 
demonstrated. FRA believes that the ``hands-on'' portion of the 
training program would be an ideal place for railroads to fully involve 
its labor forces in the training process. Appropriately trained and 
skilled employees would be perfectly suited to provide much of the 
``hands-on'' training envisioned by FRA. Consequently, FRA strongly 
suggests that railroads work in partnership with their employees to 
develop a training program which utilizes the knowledge, skills, and 
experience of the employees to the greatest extent possible.
    This paragraph specifically requires that employees pass either a 
written or oral examination covering the equipment, tasks, and Federal 
regulatory requirements for which they are responsible as well as 
require that each individual deemed qualified to perform a task 
required by this final rule demonstrate ``hands-on'' capability to 
perform that task. This paragraph also contains requirements for 
conducting periodic refresher training and supervisor oversight of an 
employee's performance once training is provided. FRA believes both 
these requirements are essential to ensure that an individual continues 
to possess the knowledge and skills necessary to continue to perform 
the tasks for which the individual is assigned responsibility. 
Furthermore, employees must be periodically retrained in order to keep 
up with technological advances relating to braking systems that are 
constantly being made by the industry.
    This paragraph also contains the requirements related to 
maintaining adequate records for establishing that individuals are 
capable of performing the tasks for which they are assigned 
responsibility. FRA believes that the record keeping requirements 
contained in this paragraph are the cornerstone of the training and 
qualification provisions. As FRA is not proposing specific training 
curriculums or specific experience thresholds, FRA believes that these 
record keeping provisions are vital to ensuring that proper training is 
being provided to railroad personnel. FRA believes these requirements 
provide the means by which FRA will judge the effectiveness and 
appropriateness of a railroad's training and qualification program. 
These provisions also provide FRA with the ability to independently 
assess whether the training provided to a specific individual 
adequately addresses the tasks for which the individual is deemed 
capable of performing, and will most likely prevent potential abuses by 
railroads to use insufficiently trained individuals to perform the 
necessary inspections, tests, and maintenance required by this rule. 
This paragraph makes clear that FRA intends to require that railroads 
maintain specific personnel qualification records for all personnel 
(including contract personnel) responsible for the inspection, testing, 
and maintenance of train brake systems. This paragraph also makes clear 
that the records maintained by a railroad contain sufficient detail 
regarding the training provided in order for FRA to ascertain the basis 
for the railroad's determination.
    FRA believes that many benefits can be gained from this increased 
investment in training. Better inspections will be performed, resulting 
in the running of less defective equipment, which translates to a 
better safety record. Equipment conditions requiring maintenance 
attention are more likely to be found while the equipment is at a 
maintenance or yard site where repairs can be more easily done. 
Trouble-shooting of brake and mechanical problems will take less time 
and more maintenance will be done right the first time, resulting in 
cost savings due to less rework.
Section 238.111  Pre-Revenue Service Acceptance Testing Plan
    This section provides requirements for pre-revenue service testing 
of passenger equipment and relates to subpart G, which describes 
requirements for the procurement of Tier II passenger equipment and for 
a major upgrade or introduction of new technology that could affect 
safety systems of Tier II passenger equipment. Pre-revenue service 
acceptance tests are extremely important in that they are the 
culmination of all the safety analysis and component tests of a 
railroad's system safety program or other safety planning efforts. The 
pre-revenue service tests are intended to prove that the equipment can 
be operated safely in its intended environment and demonstrate the 
effectiveness of the system safety program or other safety planning 
undertaken by the railroad.
    FRA has revised and clarified this section based on comments 
received in response to the NPRM. APTA believed that the proposed test 
program was excessive for equipment that has previous successful 
operating experience. It believed that an extensive pre-revenue service 
test program is needed only when a new type of equipment is placed in 
revenue service for the first time. Otherwise, APTA suggested a simple 
compatibility check with the infrastructure of a specific railroad is 
all that is needed when the railroad procures new equipment that has 
successful operating experience on other railroads. APTA claimed that 
FRA does not have the in-house expertise to approve plans, and that the 
need for FRA approval will delay the introduction of new equipment, 
causing a needless expense. APTA

[[Page 25594]]

recommended that the rule require a full test program only for the 
first time equipment is introduced into revenue service, that FRA not 
approve the test plans, and that FRA instead be invited by railroads to 
witness the pre-revenue service tests.
    Amtrak, in its comments on the NPRM, expressly agreed with APTA. 
Amtrak believed FRA does not have the resources to support the burden 
that would be required by the proposal. Further, Amtrak believed there 
is no technical justification to require the formal testing proposed by 
FRA when a particular equipment order is nothing more than acquiring 
additional equipment identical to that purchased on a previous order. 
Amtrak suggested that formal testing be limited to new and untried 
types of equipment according to a long-standing AAR practice.
    Metra commented that the rule should require railroads to submit 
their own pre-revenue service testing plans to FRA and invite FRA to 
witness the testing, instead of having FRA determine when and how 
railroads should conduct acceptance testing on their systems. Metra 
explained that railroads know their own systems and are more capable of 
designing testing plans compatible with their systems. Metra believed 
waiting for FRA testing and approval would cause needless delay and 
expense.
    In its comments on the NPRM, the BRC believed this section to be 
wholly necessary because of the types of equipment being brought into 
service that generally do not comply with the safety appliance laws or 
the safety glazing regulations, or both. The BRC believed that this 
equipment must comply with applicable laws and regulations affecting 
the safety of passengers and railroad workers in order to be brought 
into service in the United Service. The BRC also recommended that the 
pre-revenue service testing plan be filed with FRA so that the plan 
will be available under the Freedom of Information Act (FOIA).
    In proposing requirements for pre-revenue service acceptance 
testing, FRA did distinguish between passenger equipment that has 
previously been used in revenue service in the United States and that 
which has not. In lieu of the requirements proposed in Sec. 238.213 (a) 
through (e) of the NPRM, paragraph (f) provided for an abbreviated 
testing procedure for passenger equipment that has previously been used 
in revenue service. See 62 FR 49763, 49802-3. Accordingly, FRA agrees 
that when a particular equipment order is nothing more than acquiring 
additional equipment identical to that purchased on a previous order, 
there is no need for detailed testing requirements. This is reflected 
in Sec. 238.111(a) of the final rule, which governs testing 
requirements for passenger equipment that has previously been used in 
revenue service in the United States. Each railroad is required to test 
such equipment only to ensure the compatibility of the equipment with 
the railroad's operating system. Although the railroad must keep a 
record of such testing and make it available to FRA for inspection and 
copying, no formal submission to FRA is required. (In this regard, FRA 
does not believe that the plan must be submitted to FRA for the purpose 
that it may be available to the public under FOIA, as that 
justification, in itself, would require virtually any railroad safety 
record to be submitted to FRA, whether or not FRA deems it necessary.) 
Further, no FRA approval is required prior to testing the equipment or 
placing it in revenue service. FRA expects the requirements of 
paragraph (a) to apply in the majority of situations a railroad places 
passenger equipment in service for the first time, and FRA has 
consequently placed this provision at the beginning of Sec. 238.111 for 
ease of use by the regulated community.
    As specified in the final rule, Sec. 238.111(a) applies not only to 
the actual equipment which has previously been used in revenue service 
in the United States or to equipment which is manufactured identically 
thereto. Paragraph (a) also applies to equipment which is similarly 
manufactured to that equipment and has no material differences in 
safety-critical components or systems.
    Paragraph (b) contains the requirements for a railroad placing 
passenger equipment in service for the first time on its system when 
the equipment has not previously been used in revenue service in the 
United States--in other words, when the equipment is not covered by 
paragraph (a). Each railroad must develop a pre-revenue service 
acceptance testing plan and submit the plan to FRA at least 30 days 
prior to beginning testing. Previous testing of the equipment at the 
Transportation Test Center, on another railroad, or elsewhere should be 
included in the submission.
    The requirements of paragraph (b) distinguish between whether the 
passenger equipment intended for service is Tier I or Tier II passenger 
equipment, and FRA has decided to require approval of testing plans 
only for Tier II equipment. Although FRA disagrees with APTA's claim 
that FRA does not have the in-house expertise to approve the testing 
plans, FRA is mindful of APTA's concern that the need for FRA approval 
of the plans may unnecessarily delay the introduction of new equipment. 
Further, not having endless resources, FRA has decided to focus its 
resources here on Tier II passenger equipment in light of the 
equipment's higher operating speed and greater potential risk. As a 
result, a railroad intending to place in service Tier I equipment under 
this paragraph does not need FRA approval of its test plan for the 
equipment or FRA approval to place the equipment in service. Of course, 
paragraph (b) does provide that for Tier I equipment the railroad must 
notify FRA to permit the agency to witness the testing (paragraph 
(b)(2)); comply with the testing plan (paragraph (b)(3)); document the 
results of the testing and make it available for FRA inspection 
(paragraphs (b)(4), (6)); and correct or otherwise compensate for 
safety deficiencies uncovered during the testing prior to introducing 
the equipment in revenue service (paragraph (b)(5)). Each railroad is 
also under an independent duty to comply with the other requirements of 
Part 238 and the railroad safety laws in general. In this regard, a 
railroad would have to obtain a waiver of FRA safety regulations 
through the formal procedures of 49 C.F.R. part 211 before introducing 
any equipment into service that does not comply with the safety 
appliance regulations or the safety glazing standards, for example. 
However, by operation of Sec. 238.111, a railroad is not restricted 
from seeking a waiver of an FRA safety regulation under 49 C.F.R. part 
211, nor is FRA restricted from granting such a waiver. Part 211 
contains procedures to ensure that FRA grants a waiver of a safety 
regulation in the interest of employee and public safety.
    For Tier II passenger equipment, paragraph (b) requires the 
railroad to follow the additional steps of obtaining FRA approval of 
the testing plan under the procedures specified in Sec. 238.21 
(paragraph (b)(1)); reporting the results of the testing to FRA 
(paragraph (b)(4)); agreeing to comply with any operational limitations 
imposed by FRA on the use of the equipment (paragraph (b)(5)); and 
obtaining FRA approval prior to placing the equipment in revenue 
service (paragraph (b)(7)). Under paragraph (b)(7), a railroad is not 
required to follow the formal requirements set forth in Sec. 238.21.
    Paragraph (c) applies only to Tier II passenger equipment. If a 
railroad plans a major upgrade or introduction of new technology in 
Tier II passenger equipment that has been used in

[[Page 25595]]

revenue service in the United States and that affects a safety system 
on such equipment, the railroad shall follow the procedures specified 
in paragraph (b) prior to placing the equipment in revenue service with 
such a major upgrade or new technology. This requirement is based on 
proposed Secs. 238.603 (b) and (c) in the NPRM. See 62 FR 49823. FRA 
has integrated those proposed requirements into the section for 
clarity, as alluded to in the NPRM. See 62 FR 49785.
    Overall, FRA believes the set of steps and the documentation 
required by Sec. 238.111 are necessary to ensure that all safety risks 
have been reduced to a level that permits the equipment to be used in 
revenue service.
Section 238.113  Emergency Window Exits
    This section represents the partial merger of NPRM Sec. 238.235, 
emergency window exit requirements for Tier I passenger equipment, and 
NPRM Sec. 238.439, as it concerned emergency window exit requirements 
for Tier II passenger equipment. FRA has combined these sections 
principally in response to the NTSB's comment on the proposed rule that 
these requirements should not be differentiated on the basis of train 
speed.
    Paragraph (a)(1) requires that a single-level passenger car, other 
than a sleeping car or similarly designed car, have a minimum of four 
emergency window exits, either in a staggered configuration where 
practical or with one located in each end of each side of the car. A 
bi-level car shall have a minimum of four emergency window exits on 
each main level, configured as above, so that the car has a minimum 
total of eight emergency window exits.
    FRA received several comments relating to the quantity of emergency 
window exits that the rule should require. First, the NTSB commented 
that specifying a minimum quantity requirement for emergency window 
exits in passenger cars is not sufficient. The NTSB believed that the 
requirement should be based on the capacity of the passenger car, the 
number of door exits, and the scientifically-determined time needed to 
completely evacuate the fully-loaded passenger car. Next, Talgo 
commented that passenger cars half the length of conventional cars 
should be required to have only two emergency window exits on each main 
level. Further, Bombardier commented that instead of limiting the 
application of this section to emergency window exits, FRA should apply 
the requirements of this section broadly to emergency exits--whether or 
not those exits are windows--to permit flexibility and innovation in 
future passenger car designs. Bombardier added that any such 
requirement would be in addition to the requirement for side doors.
    The final rule largely carries forward the NPRM's proposal, and the 
current Federal requirement in Sec. 223.9(c) of this chapter for four 
emergency window exits in each passenger car. The requirement for a 
minimum number of window exits is important to ensure an unobstructed 
avenue of egress in a variety of accident scenarios, regardless of car 
capacity. Of course, as FRA has explained, the Volpe Center is working 
on an emergency evacuation performance requirement for passenger cars 
to determine the number of total exits necessary to evacuate the 
maximum passenger load in a specified time for various situations. 
Further, through the APTA PRESS effort, FRA understands that APTA is 
developing a systems approach to emergency egress similar to that which 
Bombardier has suggested in its comments. FRA recognizes the merit such 
approaches have and will consider these alternative approaches in Phase 
II of the rulemaking.
    Paragraph (b) requires, as specified, each emergency window exit in 
a new passenger car, including a sleeping car, to have a minimum 
unobstructed opening with dimensions of 26 inches horizontally by 24 
inches vertically. In the NPRM, FRA invited comments as to what size 
requirements for emergency window exits FRA should impose in the final 
rule. FRA had proposed that Tier I equipment have a minimum, 
unobstructed emergency window exit opening of 24 inches horizontally by 
18 inches vertically, and that Tier II equipment have a minimum, 
unobstructed emergency window exit opening of 30 inches horizontally by 
30 inches vertically. The Tier II Equipment Subgroup, including Amtrak, 
had recommended the latter requirement for application to Tier II 
equipment. However, the full Working Group advised against imposing 
such a requirement on Tier I equipment. FRA had explained in the NPRM 
that, although it would prefer that all emergency window exits afford 
the larger opening, the Tier I equipment proposal provided the minimum 
opening needed for a fully-equipped emergency response worker to gain 
access to the interior of a train.
    The NTSB commented that the horizontal and vertical openings of 
emergency window exits should be the same for both tiers of equipment, 
as the speed at which the equipment travels should not matter. The NTSB 
stated that the emergency window exit dimensions should be determined 
by the size dimensions needed: (1) To extricate an injured person from 
the passenger car; and (2) to allow an emergency responder fitted with 
a self-contained breathing apparatus to enter the passenger car. The 
NTSB noted that one of the typical adult backboards used by emergency 
responders to evacuate injured persons is 24 inches wide by 72 inches 
long, and therefore may not clear a window 24 inches wide. (The NTSB 
did note that the other typical adult backboards measure 16 inches wide 
by 72 inches long, and 12 inches wide by 84 inches long. The NTSB also 
stated that a typical steel basket stretcher used by emergency 
responders measures about 23 inches horizontally by 8 inches deep by 
about 81 inches vertically.) The NTSB further noted the concern that if 
a car derails to the extent that the normal vertical dimension becomes 
the horizontal dimension, the backboard must be tilted to fit through 
the opening. (During Working Group discussions, it was noted that for 
this to happen, the car must come to rest on its end.) Moreover, the 
NTSB stated that an emergency responder with a self-contained breathing 
apparatus may have difficulty entering an 18-inch vertical opening.
    FRA agrees that the emergency window exit size requirements should 
be the same for both tiers of equipment. The final rule requires that 
emergency window exits have a minimum unobstructed opening with 
dimensions 26 inches horizontally by 24 inches vertically. This 
requirement only applies to new cars, however, as specified in 
paragraph (b). FRA recognizes that these dimensions are greater than 
those proposed for Tier I passenger equipment (and smaller than those 
proposed for Tier II passenger equipment).
    A review of emergency window exit sizes on the nation's rail 
passenger car shows a wide variation in window size. Differences in 
size are not necessarily attributable to the age of the passenger cars: 
On certain railroads, some older passenger cars have smaller emergency 
window exits than do newer passenger cars; whereas, on other railroads, 
some newer passenger cars have smaller emergency window exits than do 
older passenger cars. Staff from the Boston, Massachusetts, and Los 
Angeles, California, fire departments recommended, upon DOT's inquiry, 
that emergency window exits provide at least a 26-inch horizontal 
opening to maneuver a 24-inch wide stretcher into and out of the 
window. They also expressed concern whether an 18-inch

[[Page 25596]]

vertical opening would be large enough to allow an emergency responder 
wearing a self-contained breathing apparatus to fit through the window. 
United States Department of Defense MIL-STD-1472E (October 31, 1996), 
which contains design criteria for human engineering, provides 
dimensions for rectangular access openings for male body passage as 
differentiated by the amount of clothing worn. For side access, MIL-
STD-1472E, section 5.7.8.3 provides that openings shall be not less 
than 26 inches in depth (vertical) and 30 inches in width (horizontal) 
for a male wearing light clothing. Further, the standard provides that 
openings shall be not less than 29 inches in depth and 34 inches in 
width for a male wearing bulky clothing. (This section of the military 
standard has been placed in the public docket for this rulemaking.)
    On the basis of the comments and information received following 
publication of the NPRM, FRA believes that an emergency window exit 
vertical opening of 18 inches is not sufficient for new rail cars. The 
emergency window exit size requirements contained in this final rule 
provide a more reasonable dimension for passage of large, fully-clothed 
persons, including emergency response personnel with fire gear. The 
dimensions are practicable in light of the design of many passenger 
cars in the United States.
    FRA explained in the NPRM that safety may be advanced by staggering 
the configuration of emergency window exits so that the exits are 
located diagonally across from each other on opposite sides of a car, 
instead of placing them directly across from each other. FRA invited 
comment on this issue, as well as on the concern that the seat 
arrangement of passenger cars may block access to and the removal of 
emergency window exits. The NTSB commented that emergency window exits 
should be staggered rather than opposite each other, and they must also 
be distributed as uniformly as practical to allow for passenger 
distribution. The rule will require staggering where practical, but 
other considerations must be taken into account, including the need to 
provide an unobstructed exit without diminishing normal seating 
capacity. Railroads should be mindful that if the ends of a car are 
crushed in a collision, then the window exits located at the car's ends 
may be rendered inoperable. In this regard, FRA's use of the term ``in 
each end'' in paragraph (a)(1) refers to the forward and rear ends of a 
car as divided in its center--and does not literally refer to the 
extreme forward and rear ends of a car nor require that emergency 
window exits be placed at the extreme ends of a car.
    FRA is requiring that each sleeping car, and any similarly designed 
car having a number of separate compartments intended to be occupied by 
passengers or train crewmembers, have at least one emergency window 
exit in each compartment. An example of a similarly designed car 
subject to this requirement is a crew dormitory car. If an emergency 
window exit is not provided in individual sleeping compartments, 
occupants of those compartments may have difficulty reaching the car's 
doors quickly in an emergency, especially if the car's interior 
passageways become blocked or obscured by smoke. An emergency window 
exit is necessary in each compartment to enable occupants to quickly 
exit the car in a life-threatening situation, as when the car is 
submerged. FRA notes that, for purposes of this section, a restroom is 
not a compartment specifically required to have an emergency window 
exit.
    Paragraph (a)(3) requires that each emergency window exit be 
designed to permit rapid and easy removal during an emergency situation 
without requiring the use of a tool or other implement. In the NPRM, 
FRA had specified that the emergency window exit must be easily 
operable by a 5th-percentile female without requiring the use of a tool 
or other implement. In response to the proposal, Bombardier commented 
that the feasibility and practicability of making the emergency exit 
operable by a 5th-percentile female is not known at this time. 
Bombardier recommended FRA more fully examine the feasibility of 
designing and maintaining passenger cars to meet this requirement 
before it is made a rule. In the final rule, FRA believes it 
appropriate not to specify a requirement at this time for the ease of 
operability of an emergency window exit by a 5th-percentile female. In 
Phase II of the rulemaking, FRA will evaluate with the Working Group 
whether such a concept should be reintroduced. Instead, FRA has decided 
to incorporate into the final rule language from the definitions of 
``emergency window'' found in 49 CFR parts 223 and 239--that is, each 
emergency window must be designed to permit its rapid and easy removal 
during an emergency situation--and specifically require that such rapid 
and easy removal of the window be able to be accomplished without 
requiring the use of a tool or other implement.
    Paragraph (c) is reserved for emergency window exit marking and 
operating instruction requirements. These requirements are currently 
provided in the rule on passenger train emergency preparedness. See 63 
FR 24630. In Phase II of the rulemaking, FRA will consider integrating 
into this part (part 238) the emergency window exit marking and 
operating instruction found in parts 223 and 239 of this chapter. 
Additionally, FRA will consider revising those requirements as 
necessary.
Section 238.115  Emergency Lighting
    Experience gained during emergency response to several passenger 
train accidents indicates that emergency lighting systems either did 
not work or failed after a short time, greatly hindering rescue 
operations. This section requires that passengers cars ordered on or 
after September 8, 2000, or placed in service for the first time on or 
after September 9, 2002, be equipped with emergency lighting providing 
at least an average illumination level of 1 foot-candle at floor level 
adjacent to each exterior door and each interior door providing access 
to an exterior door (such as a door opening into a vestibule). In 
addition, the emergency lighting on such cars must provide an 
illumination level of at least an average of 1 foot-candle at floor 
level along the center of each aisle and passageway, and a minimum of 
0.1 foot-candle at floor level at any point along the center of each 
aisle and passageway. The cars must also be equipped with a back-up 
power feature capable of operating the lighting for a minimum of 90 
minutes after loss of normal power with no more than a 40% loss of the 
prescribed illumination levels.
    In the NPRM, FRA proposed requiring for both passenger cars and 
locomotives a minimum emergency lighting illumination level of 5 foot-
candles at floor level for all potential passenger and crew evacuation 
routes from the equipment. See 62 FR 49803. FRA explained that its 
proposal was not a recommendation of the Working Group, as FRA believed 
an illumination level higher than that suggested by members of the 
Working Group was necessary for passengers to locate emergency exits, 
read instructions for operation of the exits, and operate the exits. 
See 62 FR 49764. FRA did request comments whether the lighting 
intensity requirement need be 5 foot-candles at floor level for all 
potential evacuation routes if the rail vehicle has a combination of 
lower intensity floor proximity lighting, similar to that used on 
aircraft to mark the exit path, and higher intensity lighting at the 
vehicle's exits. FRA also proposed applying the emergency lighting 
requirements to

[[Page 25597]]

rebuilt passenger equipment, and noted that it was considering applying 
these requirements to existing passenger equipment sooner than when the 
equipment is rebuilt.
    In response to FRA's proposal, APTA commented that requiring a 
minimum emergency lighting illumination level of 5 foot-candles is 
excessive. APTA believed that roughly a five-fold increase in battery 
capacity would be necessary to comply with the proposed illumination 
standard when combined with the two-hour minimum duration requirement 
proposed in the rule. APTA stated that a minimum emergency lighting 
illumination level of 1 foot-candle is adequate for new equipment, 
based on recent light level measurements taken on passenger coaches by 
Volpe Center personnel. APTA noted that a survey in support of its APTA 
PRESS efforts shows emergency lighting illumination levels to be 
between approximately 0.2 foot-candles and 1 foot-candle on existing 
passenger equipment. APTA observed that even an illumination level of 
less than 1 foot-candle measured at the floor can allow for an orderly 
evacuation of a passenger coach with well-marked exits.
    In regard to applying the requirements of this section to existing 
passenger equipment, APTA suggested imposing an emergency lighting 
illumination level of less than 1 foot-candle on such equipment to 
avoid an expensive retrofit. APTA further recommended that the rule 
allow the emergency lighting illumination level to decay over the 
proposed two-hour duration it would be required to operate, and APTA 
suggested allowing the illumination level to degrade to no less than 
50% of the original illumination level after two hours. In addition, 
APTA noted that emergency lighting systems in conventional locomotive 
cabs are radically different from those in passenger cars, and APTA 
asked FRA to reconsider how it would apply emergency lighting 
requirements inside locomotive cabs.
    In commenting on this proposal, the BRC stated that the 
requirements for emergency lighting must be phased into existing 
passenger equipment sooner than when it is rebuilt. The BRC explained 
that for passengers it would be far better to have cars equipped with 
emergency and exit lighting to eliminate many of the hazards in getting 
out of the cars, and that there is no justification or analysis in the 
record for delaying the implementation of the requirements in existing 
passenger cars.
    Metra, in its comments on this proposal, stated that a requirement 
for an emergency lighting illumination level of 5 foot-candles would be 
unnecessarily bright and costly. Metra recommended that the 
illumination level be set at 0.5 foot-candle. Further, Metra suggested 
that for new passenger equipment the requirement be modified to apply 
only to new orders placed after January 1, 1998, so as to avoid costs 
associated with change orders and dual standards on ongoing orders that 
will be delivered both before and after January 1, 1998. Finally, the 
Omniglow Corporation (Omniglow) commented in response to the NPRM that 
to effectively address an emergency situation where lives are at stake, 
each train exit should be equipped with emergency lighting.
    In light of these comments and after further analysis, FRA has 
revised the requirements of this section in several ways from those 
originally proposed in the NPRM. First, under the final rule, the 
requirements of this section apply only to passenger cars--and not to 
passenger locomotives as proposed in the NPRM. As MU locomotives and 
cab cars that transport passengers are considered passenger cars under 
this rule, however, the practical effect of this revision is not to 
apply the specific emergency lighting requirements in this rule to 
conventional passenger locomotives. Moreover, the issue of specifying 
emergency lighting requirements for conventional locomotives as a 
whole, taking into account their unique characteristics, has been 
placed before the RSAC Locomotive Crashworthiness Working Group for its 
consideration.
    Second, the requirements of the final rule do not apply to rebuilt 
passenger equipment. FRA is seeking a broader approach to implementing 
emergency lighting requirements in existing passenger cars, whether or 
not the cars are rebuilt. To accomplish this, FRA does not necessarily 
expect that existing passenger cars will be required to meet the area 
lighting standard specified for new equipment. However, FRA desires 
that achievable emergency lighting enhancements to existing passenger 
cars will be implemented over a reasonable period of time. In the 
second phase of the rulemaking, FRA will evaluate the anticipated APTA 
PRESS standard for implementing emergency lighting requirements in 
existing passenger cars with a view to incorporating the APTA standard 
into this Federal standard.
    Third, as provided in paragraphs (b)(1)-(3) of the final rule and 
modified from the NPRM, this section prescribes the minimum emergency 
illumination level for new passenger cars as a 1 foot-candle average at 
floor level adjacent to each exterior door and each interior door 
providing access to an exterior door (such as a door opening into a 
vestibule), a 1 foot-candle average measured 25 inches above the floor 
level along the center of each aisle and passageway, and a minimum of 
0.1 foot-candle measured 25 inches above the floor level at any point 
along the center of each aisle and passageway. These illumination 
levels are based on the emergency lighting illumination levels 
specified in Section 5-9.2.1 of the National Fire Protection 
Association's (NFPA) ``Life Safety Code Handbook,'' Seventh Ed. (a copy 
of this section has been placed in the public docket for this 
rulemaking) and the Illuminating Engineering Society Lighting Handbook. 
Specifying the measurement of the emergency lighting illumination level 
at the floor for doors is intended to permit passengers and crewmembers 
to see and negotiate thresholds and steps typically located near doors. 
Specifying the measurement of the emergency lighting illumination level 
at 25 inches above the floor for aisles and passageways is intended to 
permit passenger and crewmembers to see and make their way past 
obstacles as they exit a train in an emergency, as demonstrated by 
tests conducted by the Volpe Center. At the same time, specifying that 
the illumination level be measured above the floor for aisles and 
passageways recognizes that light emitted from lighting fixtures placed 
on the sides of passenger cars may be obstructed, as by car seats, 
before the light reaches the floor, and, in this regard, the rule 
provides greater flexibility to railroads in the placement of lighting 
fixtures. FRA notes that the permanency of this area lighting standard 
will be dependent on successful resolution of issues related to 
emergency signage, exit path marking, and egress capacity that are 
being progressed toward resolution through the APTA PRESS Task Force 
and the Volpe Center, as noted below, as a predicate for completion of 
the standards in the second phase of this rulemaking.
    FRA believes that the emergency lighting illumination levels 
specified in this section will enable the occupants of rail cars to 
discern their immediate surroundings and thereby minimize or avoid 
panic in an emergency. In this regard, a lighting demonstration was 
conducted in a SEPTA rail car in March 1998, and in the judgement of 
the FRA participants it showed that these illumination levels appear 
sufficient. These emergency lighting illumination levels are achievable 
for rail cars. In fact, the NFPA 101 specifications for emergency 
lighting illumination levels,

[[Page 25598]]

noted above, are recommended for use in rail transit cars through NFPA 
130, Section 5-5.3.
    In the second phase of the rulemaking, FRA will focus on augmenting 
the emergency illumination level specified in this section by including 
requirements for lighted signage and exit path marking, as touched on 
above. Through a research study conducted by the Volpe Center, FRA has 
been investigating emergency lighting requirements as part of a systems 
approach to effective passenger train evacuation. This approach takes 
into consideration the interrelationship between features such as the 
number of door and window exits in a passenger car, lighted signs that 
indicate and facilitate the use of the door and window exits, and floor 
exit path marking, in addition to the general emergency lighting level 
in a car. FRA will also examine the APTA PRESS standard on emergency 
lighting, when final, to determine whether the standard satisfactorily 
addresses matters related to emergency signage, exit path marking, and 
egress capacity so that FRA does not have to revisit the issue of area 
lighting with a view toward increased illumination levels. In the 
interim, FRA will entertain proposals to utilize alternative methods of 
providing at least an equivalent level of emergency illumination to 
that prescribed in this rule.
    FRA has further revised the requirements of this section from those 
proposed in the NPRM by shortening the required operation time period 
of the emergency lighting, and by permitting the emergency lighting 
illumination level to degrade over time, as well. Specifically, the 
final rule requires a passenger car to be equipped with a back-up power 
feature capable of operating the lighting for a minimum of 90 minutes 
after loss of normal power with no more than a 40% loss of the 
prescribed illumination levels. As a result, illumination levels shall 
be permitted to decline, as appropriate, from 1 ft-candle to 0.6 foot-
candle, and from 0.1 foot-candle to 0.06 foot-candle. The lighting 
decay permitted here is also based on that specified in Section 5-9.2.1 
of the NFPA's ``Life Safety Code Handbook,'' cited above. Operation of 
emergency lighting for an extended time is particularly necessary in 
the event of passenger train rescue operations in remote locations. 
Fully-equipped emergency response forces can take an hour or more to 
arrive at a remote accident site, and additional time would be required 
to deploy and reach people trapped or injured in a train. Even 
passenger train accidents in urban areas can pose significant rescue 
problems, especially in the case of tunnels, nighttime operations, and 
operations in inclement weather.
    This section also requires the emergency lighting back-up power 
system to be able to operate in all orientations within 45 degrees of 
vertical and after experiencing a shock due to a longitudinal 
acceleration of 8g and vertical and lateral accelerations of 4g. The 
shock requirement will ensure that the back-up power system has a 
reasonable chance of operating after the initial shock caused by a 
collision or derailment. FRA originally considered that the back-up 
power system be capable of operation within a vehicle in any 
orientation. However, members of the Working Group advised that some 
battery technologies utilize a liquid electrolyte which can leak when 
the battery is tilted.
    FRA invited commenters to address whether the back-up power system 
should be made capable of operation within a vehicle in any 
orientation, see 62 FR 49764; and, in response, the BRC commented that 
the back-up power system must be capable of operating in any 
orientation since railcars do not always remain upright when they 
derail. The BRC believed that the fact batteries may have a liquid 
electrolyte which can leak when the battery is tilted does not excuse 
railroads from obtaining proper batteries that will function in any 
orientation.
    In the final rule, FRA is not requiring that the back-up power 
system be capable of operating in any orientation, and instead FRA is 
retaining the proposal in the NPRM that the system be capable of 
operating in all equipment orientations within 45 degrees of vertical. 
FRA will further examine this issue in the second phase of the 
rulemaking, and FRA is aware of a more costly battery technology 
utilizing a gel that should not leak when turned in any orientation. 
However, even if the back-up power system could operate when turned in 
any direction, FRA recognizes that a derailment of the magnitude that 
would cause such a situation would potentially destroy the battery box 
as a whole or sever the cables connecting the battery to the emergency 
lighting fixtures, or both. In this regard, FRA believes it more 
important to focus in the second phase of the rulemaking on addressing 
the NTSB's recommendation to require reliable emergency lighting 
fixtures in passenger cars, each fitted with a self-contained 
independent power source (R-97-17). (See NTSB/RAR-97/02) Section 
238.115 does permit continued use of battery power common to all 
emergency lighting circuits in a particular car.
    FRA notes, however, that the concept of a power source at each 
fixture, as a regulatory requirement, is novel. FRA findings in recent 
accidents support the NTSB's implied concern that placement of 
electrical conduits and battery packs below the floor of passenger 
coaches can result in damage that leads to the unavailability of 
emergency lights precisely at the time they are most needed. However, 
from initial investigation it is not certain whether current 
``ballast'' technology provides illumination of sufficient light level 
quality with reliable maintainability. FRA presented the issue of 
placing an independent power source at each emergency lighting fixture 
to the Passenger Equipment Safety Standards Working Group at a meeting 
in December, 1997. FRA will aggressively pursue this option for more 
reliable emergency illumination in the second phase of the rulemaking, 
and FRA will also work with APTA PRESS on this issue.
Section 238.117  Protection Against Personal Injury
    This section contains a general requirement to protect passengers 
and crewmembers from moving parts, electrical shock and hot pipes. This 
section extends to passenger equipment not classified as locomotives 
the protection against personal injury which applies to locomotives 
under 49 CFR 229.41. The requirements represent common-sense safety 
practice; reflect current industry practice; and should result in no 
additional cost burden to the industry. Although FRA received no 
specific comments on this section, FRA has modified this section to 
make clear that its requirements do not apply to the interior of a 
private car, consistent with FRA's overall approach to private cars in 
this rule. The protections of this section would apply, of course, to 
rail employees and others who may inspect or perform work on the 
exterior of a private car.
Section 238.119  Rim-Stamped Straight-Plate Wheels
    This section addresses the NTSB's safety recommendation concerning 
the use of rim-stamped straight-plate wheels on tread-braked rail 
passenger equipment. Following its investigation of a January 13, 1994 
Ringling Bros. and Barnum & Bailey Circus train derailment which killed 
two circus employees, the NTSB determined that the probable cause of 
the derailment was the fatigue failure of a thermally damaged straight-
plate wheel due to

[[Page 25599]]

fatigue cracking that initiated at a stress raiser associated with a 
stamped character on the wheel rim. See 62 FR 49743; NTSB/RAR-95/01. 
Noting that tread braking is a significant source of wheel overheating 
and thermal damage; straight-plate wheels are vulnerable to thermal 
damage; and rim-stamping provides a stress concentration for crack 
initiation, the NTSB recommended that FRA ``[p]rohibit the replacement 
of wheels on any tread-braked passenger railroad car with rim-stamped 
straight plate wheels.'' (Class II, Priority Action) (R-95-1).
    In the NPRM, FRA stated that because a wheel having a rim-stamped 
straight-plate character is a sufficient safety concern in itself, FRA 
proposed extending the NTSB's safety recommendation to apply to all 
such wheels used on passenger equipment regardless whether the 
equipment were tread-braked or not. See 62 FR 49743, 49803. Further, 
FRA proposed addressing separately the use of such wheels on passenger 
equipment other than private passenger cars--for which there would be 
an immediate prohibition on the use of the wheels--in distinction to 
the use of such wheels on private cars--for which there would be a 
prohibition on the wheels' use as replacement wheels. See 62 FR 49743-
4, 49803.
    Based on comments received in response to the proposed rule, and 
after further analysis, FRA has modified the requirements of this 
section from those proposed in the NPRM. In the final rule, the 
restrictions on the use of rim-stamped straight-plate wheels apply only 
to such wheels use on tread-braked passenger equipment. AAPRCO, in its 
comments on the NPRM, stated that the proposed section was overly broad 
in prohibiting rim-stamped straight-plate wheels from being used as 
replacement wheels on private cars operated in a passenger train. 
Citing the above-noted NTSB report, AAPRCO explained that the only 
detected problem involving the use of rim-stamped straight-plate wheels 
occurred when such wheels were subjected to tread braking. AAPRCO 
believed that there is no known problem involving the use of such 
wheels on passenger equipment that is disc-braked and, therefore, not 
subject to heating. Accordingly, AAPRCO recommended limiting the 
prohibition against using rim-stamped straight-plate wheels as 
replacement wheels on private cars to those wheels that are tread-
braked.
    FRA notes that the stamping of manufacturers' marks on railroad 
wheel rims introduces stress concentrations in the wheel rims. Such 
stress risers can help originate cracks as the wheel is subjected to 
the low-cycle thermal fatigue of repeated tread-brake applications. As 
freight equipment operates with tread brakes, the AAR has discontinued 
rim stamping in order to preclude wheel failures due to cracking 
initiated at the stamp marks.
    Disc brakes use a caliper and pad arrangement (like a bicycle 
brake) which operates on (squeeze) a disc which is affixed to the axle 
of a rail car, or to the back face of the wheel in a ``cheek'' mounted 
scheme, to provide retarding force. Disc brakes introduce no heat into 
the rim, since the heat is generated by the friction between the 
caliper pads and the disc. This condition is true only if the strategy 
to stop a vehicle relies solely on discs without tread-brake 
assistance.
    Disc-braked rail cars sometimes have tread brakes which are used as 
parking brakes. These tread brakes may be applied periodically while 
the train is running, using low cylinder forces, in order to clean the 
wheel tread surface of oxides and debris which can interfere with the 
ability of the wheel to make an electrical connection with the rail for 
the purposes of shunting the track circuits to activate signals. This 
action is typically of short duration and is controlled by automatic 
circuitry (snow brakes) and should not pose a threat to the integrity 
of the wheels.
    Braking strategies sometimes involve a combination of disc and 
tread braking to achieve desired deceleration rates. For example, 
Amtrak's AMFLEET I and II cars use such a combination--approximately 
40% tread and 60% disc. In such a case, the wheels are tread-braked 
every time the vehicle comes to a stop, as opposed to the lower energy 
snow braking described above.
    Straight plate wheels are well-known to be much more susceptible to 
thermal damage than curved or S-plate wheels. Plate curvature permits 
radial breathing of the rim as it is heated, resulting in lower rim 
stresses. The straight-plate wheel is much stiffer radially and 
stresses in these wheels are therefore greater for the same thermal 
input. If straight-plate wheels experience tread braking, or if tread 
brakes are used in the event of disc brake failure, the possibility 
exists for wheel thermal damage. However, the use of straight-plate, 
rim-stamped wheels should not pose a safety threat if the wheels are 
never tread-braked.
    Because the use of straight-plate, rim-stamped wheels should pose 
no safety threat if the wheels are never tread-braked, the requirements 
of this section do not apply to such wheels used in such circumstances. 
Moreover, as provided in paragraph (c), if the wheels are in fact 
tread-braked but only in a limited manner to clean the wheel surface, 
the requirements of this section likewise do not apply. However, FRA 
hereby makes clear that the requirements of this section apply to the 
use of straight-plate, rim-stamped wheels when the wheels are subjected 
to tread braking in any combination with disc brakes for the purpose of 
slowing the passenger equipment.
    The second principal change in the final rule from the NPRM 
provides particular consideration for the use of Class A rim-stamped, 
straight-plate wheels mounted on inboard-bearing axles on commuter 
passenger equipment. In commenting on the NPRM, APTA noted that a 
number of commuter railroads are currently operating--or are in the 
process of implementing service with--Bombardier-manufactured bi-level 
coaches that are equipped with Class A rim-stamped, reverse-plate 
wheels. APTA specified that the affected commuter railroads operate 182 
passenger coaches equipped with these wheels and consist of the 
Southern California Regional Rail Authority (Metrolink), San Diego 
Northern Railway, Tri-County Commuter Rail Authority, Dallas Area Rapid 
Transit, and the San Joaquin Railroad Commission. APTA explained that 
reverse-plate wheels are considered a hybrid of the straight-plate 
design and therefore subject to the prohibition of this section. APTA 
added that these wheels have an average service life of five years. 
According to APTA, imposing this prohibition on the affected commuter 
rail operations will dramatically reduce or terminate commuter rail 
operations while replacement wheels are procured and installed. APTA 
stated that Class A reverse-plate wheels have a safe history of usage 
with no indication of wheel cracks caused by rim stamping, and that 
failures of Class B and C wheels of a true straight-plate design led to 
the NTSB's recommendation here. Based on these differences, APTA 
recommended that FRA allow Class A, rim-stamped reverse-plate wheels to 
continue in service.
    FRA has considered APTA's comments and notes that the rim-stamped 
``reverse''-plate wheels in issue are indeed straight-plate wheels. The 
``reverse'' connotation refers to the orientation (angle) of the wheel 
plate with respect to the axle. Passenger wheelsets have inboard 
bearings--that is, the bearings are located between the wheels on the 
axle. Freight wheelsets are outboard-bearing in that the wheels are 
mounted between the bearings. The

[[Page 25600]]

wheel plate is pitched one way or the other in either circumstance so 
that the wheel flanges end up being the same distance apart. In this 
way, either wheelset can transverse the same standard gage track.
    From discussions with APTA, FRA understands that these Class A, 
rim-stamped straight-plate wheels are installed on rail cars weighing 
approximately 115,000 pounds, utilizing blended dynamic and friction 
braking. The friction-based portion of the braking system in turn is 
composed of approximately 67% tread braking, and 33% disc braking. FRA 
further understands that, when properly used, the extended-range 
dynamic brake can slow the vehicle from 90 mph--its top operating 
speed--to less than 10 mph with no friction (pneumatic) braking 
applied, and that this is the recommended method of operating these 
rail cars. The service brake rate is 2.0 mph/sec and the emergency rate 
is 2.5 mph/sec. In combination with the wheel slip/slide protection 
system provided for these cars, FRA believes that the wheels on these 
rail cars should be subjected to limited thermal input.
    Further, FRA notes that wheels are generally classified as L, A, B, 
or C depending on the carbon content of the wheel material. The amount 
of carbon determines the hardness and strength of the steel. A Class A 
wheel has a lower carbon content, and correspondingly lower hardness 
and strength than a Class B or C wheel. Lower hardness means that the 
wheel has increased ductility or improved ability to resist cracking 
(fracture toughness). This is why Class L and A wheels are recommended 
for severe braking conditions. However, since these wheels are 
``softer,'' heavy wheel loads will result in poor wear performance, 
which is why they are recommended only for light to moderate wheel 
loads. Class B and C wheels (with more carbon and increased hardness) 
exhibit good wear behavior, but are more prone to cracking. Railroads 
choose the wheel type for a particular class of service based on its 
operating characteristics.
    As reflected in paragraph (a)(2), FRA believes that the commuter 
railroads operating vehicles with Class A, rim-stamped straight-plate 
wheels mounted on inboard-bearing axles--i.e., reverse-plate wheels--
may continue to do so provided the railroads do not modify the 
operation of the vehicles in any way that would result in increased 
thermal input to the wheels during braking. As a result, vehicles 
equipped with these wheels may not operate at speeds exceeding their 
current maximum operating speeds. Further, these wheels may not be 
placed on different (especially heavier) rail vehicles. Provided the 
conditions for continued use of the wheels are met, however, a railroad 
may continue to use the wheels until it exhausts its stock of 
replacement wheels held as of May 12, 1999, which is the date of this 
final rule's publication. FRA understands that the manufacturer of 
these wheels has already started to stamp the wheels on their hubs, 
instead of on their rims, and FRA believes that the railroads' 
inventory of such rim-stamped wheels will be exhausted within the next 
18 months. Once a commuter railroad's inventory of Class A, rim-stamped 
straight-plate wheels is exhausted, each such wheel must be replaced at 
the end of the wheel's service life with a wheel that is not rim-
stamped.
    In commenting on the NPRM, Talgo suggested clarifying the 
requirements of this section to state that the stamping of characters 
on the rim of a wheel is prohibited due to dangers associated with 
stress concentration. According to Talgo, if indeed the purpose of this 
section is to address rim-stamping itself, then the rule should be 
revised to address all types of wheels and not just straight-plate 
wheels. FRA does recognize that the stamping of manufacturers' marks on 
railroad wheel rims introduces stress concentrations in the rims, and, 
all things being equal, manufacturers should stamp wheels on their hubs 
instead of on their rims. Yet, FRA is concerned in particular with rim-
stamped straight-plate wheels because, as noted above, a straight-plate 
wheel design is more susceptible to thermal damage than a curved wheel 
design. The plate curvature permits radial breathing of the rim as it 
is heated, resulting in lower rim stresses.
    Similar to the proposal in the NPRM, the final rule allows rim-
stamped, straight-plate wheels on tread-braked private cars to continue 
in service throughout the life of each wheel. However, as provided in 
paragraph (b), such wheels may not be used as replacement wheels on 
these cars. As explained in the NPRM, FRA recognizes that private cars 
are generally not highly utilized in comparison to intercity or 
commuter passenger equipment, and Amtrak imposes its own safety 
requirements on the use of such cars in its trains. See 62 FR 49743-4.
    In commenting on the NPRM, a member of the public stated that many 
private car owners have a substantial investment in rim-stamped 
straight-plate wheels, and precluding their installation would 
consequently place a financial burden on many private car owners. This 
commenter requested that a provision be added to the rule to allow 
private car owners to install such wheels on their cars after January 
1, 1998,--which FRA proposed as the effective date for this section--
provided the wheels were owned by that date. In this regard, FRA notes 
that Amtrak has issued a letter to private car owners dated September 
19, 1995, stating that after June 30, 2000, Amtrak will decline to move 
any tread-braked passenger cars with rim-stamped straight-plate wheels. 
In addition, Amtrak stated in the same letter that it would not accept 
any new applications for wheel change out with rim-stamped straight-
plate wheels, regardless of the brake type. Amtrak's letter referenced 
the NTSB's safety recommendation noted in this section.
    Since Amtrak is the chief carrier of private rail cars, the ability 
of a private rail car owner to use rim-stamped, straight-plate wheels 
will be significantly affected independent of the requirements of this 
rule. Further, allowing such wheels to continue in use until a car 
owner's inventory of the wheels is depleted would prolong the use of 
such wheels for potentially decades. FRA believes that the rule allows 
due consideration for private rail car owners in allowing them to 
continue using tread-braked private rail cars equipped with rim-
stamped, straight-plate wheels throughout the life of each wheel, while 
recognizing that, as a whole, the wheels are subject to greater thermal 
input when in use and are more susceptible to cracking than the 
commuter railroad wheels discussed above. Moreover, FRA notes that 
under the definition of ``passenger equipment'' in this rule, a private 
rail car not operated in a train with a passenger car, such as in a 
freight train, or in a consist of private rail cars, is not subject to 
the requirements of this rule. (See above discussion of passenger 
equipment in Sec. 238.5.). In addition, the final rule does not apply 
to tourist railroads, and a private rail car may therefore operate on 
such railroad without complying with the requirements of this rule. See 
Sec. 238.3.

Subpart C--Specific Requirements for Tier I Passenger Equipment

Section 238.201  Scope.
    This subpart contains specific requirements for railroad passenger 
equipment operating at speeds not exceeding 125 mph. This subpart 
contains various structural standards (Sec. 238.203Bstatic end 
strength; Sec. 238.205--anti-climbing mechanism; Sec. 238.207--link 
between coupling mechanism and car body; Sec. 238.209--forward-facing 
end structure of

[[Page 25601]]

locomotives; Sec. 238.211--collision posts; Sec. 238.213--corner posts; 
Sec. 238.215--rollover strength; Sec. 238.217--side structure; 
Sec. 238.219--truck-to-car-body attachment; and Sec. 238.223--fuel 
tanks). These structural standards do not apply to passenger equipment 
if used exclusively on a rail line (A) with no public highway-rail 
grade crossings, (B) on which no freight operations occur at any time, 
(C) on which only passenger equipment of compatible design is utilized, 
and (D) on which trains operate at speeds no higher than 79 mph.
    In general, except for the static end strength standards (' 
238.203) and as otherwise provided in this subpart, the requirements of 
this subpart apply only to passenger equipment ordered on or after 
September 8, 2000 or placed in service for the first time on or after 
September 9, 2002. That is, where no specific date or dates are 
provided in the regulatory text for a particular section, such as 
Sec. 238.225 (Electrical system), these dates apply to that section's 
requirements. Of course, certain existing Federal requirements, such as 
the window safety glazing standards in part 223 of this chapter that 
are referenced in Sec. 238.221 (Glazing), continue to apply by their 
own force.
    The rule does provide that passenger equipment placed in service 
for the first time on or after September 8, 2000, unless otherwise 
provided in the cited sections, must meet the minimum structural 
requirements specified in: Sec. 238.205(a) (anti-climbing mechanism); 
Sec. 238.207 (link between coupling mechanism and car body); and 
Sec. 238.211(a) (collision posts). Further, as specified in detail 
below, any such equipment in use on or after November 8, 1999 must also 
meet the static end strength standards specified in Sec. 238.203. These 
four particular requirements are virtually identical to existing 
Federal requirements, found in 49 CFR Sec. 229.141(a)(1)-(4), that 
apply to MU locomotives built new after April 1, 1956, and operated in 
trains having a total empty weight of 600,000 pounds or more. These 
requirements reflect the common construction practices for passenger 
equipment currently in service in the United States, and FRA believes 
they are minimum safety requirements. FRA notes that the 600,000-pound 
consist weight threshold for purposes of 49 CFR Sec. 229.141 is not an 
appropriate distinction to apply to passenger equipment operated on the 
general system, intermingled with equipment of more substantial 
strength; and, as a result, part 238 contains no such consist weight 
distinction. In this regard, FRA notes that through this final rule it 
is amending the application of 49 CFR Sec. 229.141 so that its 
requirements will not apply to passenger equipment subject to part 238.
    In addition to these four structural requirements, the rule also 
requires that passenger equipment comply with other structural 
requirements specified in: Secs. 238.205(b) (anti-climbing mechanism 
for locomotives); 238.209 (forward-facing end structure of 
locomotives); 238.211(b) (collision posts for locomotives); 238.213 
(corner posts); 238.215 (rollover strength); 238.217 (side structure); 
238.219 (truck-to-car-body attachment); and 238.223 (fuel tanks). These 
requirements apply to passenger equipment ordered on or after September 
8, 2000, or placed in service for the first time on or after September 
9, 2002, unless otherwise provided in the cited sections. FRA notes 
that, under special circumstances, it will allow the placement in 
service of passenger equipment not meeting these structural 
requirements if the equipment was in fact ordered within September 8, 
2000 but not placed in service until after September 9, 2002. In such 
case, the railroad must provide documentation to the satisfaction of 
the Associate Administrator for Safety that demonstrates the special 
circumstances accounting for the delay in placing the equipment in 
service.

Structural Standards for Existing Equipment

    The final rule requires that all passenger equipment (other than 
locomotives that comply with an alternative standard as specified, 
private cars, unoccupied vehicles operating at the rear of a passenger 
train, or equipment used in non-commingled service, as discussed below) 
in use on or after November 8, 1999 have a minimum static end strength 
of 800,000 pounds as specified in Sec. 238.203. Static end strength is 
critical in protecting passenger equipment from crushing in a head-on 
or rear-end collision, especially in the North American railroad 
operating environment that includes frequent highway-rail grade 
crossings and the mixed operation of freight and passenger trains. FRA 
is confident that all but a limited number of existing passenger cars 
in the United States have been built to this basic compressive strength 
requirement. Beginning in 1939, the AAR recommended that new passenger 
cars operated in trains of over 600,000 pounds empty weight have a 
minimum static end strength of 800,000 pounds, and since 1956, Federal 
Regulations (49 CFR. 229.141) have required that new MU locomotives 
operated in such trains must meet this standard. Railroads with 
existing passenger cars that do not meet the minimum static end 
strength requirement may petition FRA for grandfathering approval to 
continue to use the equipment; see discussion under Sec. 238.203.
    FRA does, however, recognize that low-speed rail operations that 
are structured to totally preclude both operations over highway rail 
grade crossings and the sharing of trackage between light rail 
equipment and conventional equipment do not require the structural 
standards required for commingled operations. Accordingly, the final 
rule (in Sec. 238.201) provides that passenger equipment is not subject 
to the structural requirements of the rule if it used exclusively on a 
rail line (A) with no public highway-rail grade crossings, (B) on which 
no freight operations occur at any time, (C) on which only passenger 
equipment of compatible design is utilized, and (D) on which trains 
operate at speeds no higher than 79 mph. FRA will discuss with the 
Working Group in Phase II of the rulemaking what structural standards 
are appropriate for such operations.
    In the NPRM, FRA considered requiring that one or more of the other 
structural requirements for new passenger equipment, discussed above, 
be made applicable to existing equipment as soon as one of the 
following events occurs: the equipment is sold to another railroad; the 
equipment is rebuilt; the equipment reaches 40 years of age; or 10 
years elapses after the effective date of the rule. FRA invited 
comments on: (1) What equipment would be affected by each of these 
structural requirements; (2) the feasibility and costs of retrofitting 
such equipment, with costs broken out for each of the different 
structural requirements, in the event such triggering events were 
adopted in the final rule; (3) whether these triggering events are 
reasonable, or whether some other fixed deadline should be established 
for making one or more of these structural requirements applicable to 
existing passenger equipment; and (4) the safety benefits that could 
accrue by making these requirements applicable to existing equipment. 
FRA did specifically note in the NPRM that older passenger equipment 
may not meet the collision post requirements in Sec. 238.211(a) because 
of a change in collision post design following a collision between two 
Illinois Central Gulf Railroad commuter trains in Chicago, Illinois, on 
October 30, 1972.
    In response, APTA commented that it opposed application of the 
rule's structural standards to existing

[[Page 25602]]

passenger equipment in light of the potential adverse economic impact 
on passenger railroads. AAPRCO, in its comments on the NPRM, believed 
the costs associated with rebuilding private cars to meet the new 
passenger equipment requirements would be extremely high with no 
significant benefit to the public. AAPRCO stated that Amtrak requires 
all cars, including private cars, that operate on their system be 
maintained to strict standards of inspection, including full 40-year 
truck teardowns with specified periodic scheduled truck roll-outs, 
annual inspections, and full COT&S. AAPRCO noted that nearly all 
private cars currently in operation are over 40 years old.
    In the final rule, FRA has made the compressive strength 
requirement the only structural requirement applicable to existing 
passenger equipment. However, in general, if the need arises to apply 
one of the other structural requirements specified in the rule to 
existing passenger equipment, FRA will reconsider whether such 
requirements should be made applicable to existing equipment. In 
particular, FRA will ask its Working Group in Phase II of the 
rulemaking to consider applying the other structural requirements 
specified in the rule to existing passenger equipment when the 
equipment is ``rebuilt'' or otherwise improved such that the useful 
life of the equipment is materially extended. Further, FRA will not 
specifically limit the consideration of the Working Group in this 
regard to the rule's structural requirements, but will include in its 
consideration any of the other requirements for Tier I passenger 
equipment in this final rule.

Equipment of Special Construction

    Comments from Talgo, discussed in general above and in more 
specific terms below, question the relevance or appropriateness of some 
of the proposed structural standards to a trainset built with 
articulated connections using a monocoque or space frame design. In 
consultations associated with the Working Group review, FRA sought 
information from the commenter regarding its trainset and has sought to 
identify requirements that might be appropriate for this configuration. 
However, in general, the analytical basis for alternative engineering 
values suggested by the commenter either was not evident or was 
determined not to be appropriate. Talgo did submit additional 
engineering information in October of 1998 but FRA could not 
appropriately analyze this data for purposes of the final rule without 
substantially delaying the rule's issuance. FRA does recognize that 
special attention is needed to the specifics of this design, which is 
unique in current service in the United States, both to avoid 
inappropriate requirements and to ensure sound functioning of features 
that may warrant exceptions from other requirements.
    In the final rule, Sec. 238.201 has been amended to permit approval 
of equipment of special construction. (This alternative compliance 
approval process does not apply to the minimum static end strength 
requirements set forth in Sec. 238.203.) The basis for decision would 
be similar to that discussed in the NPRM with respect to waivers (62 FR 
49728, 49755), but the special approval mechanism would be employed as 
a more appropriate means of recognizing whether the equipment provides 
an equivalent level of safety with the standard of safety benchmarked 
in the particular provisions of the subpart.

No New Safety Appliance Requirements

    FRA is not imposing new safety appliance requirements for passenger 
equipment subject to this subpart. The safety appliance requirements 
referenced in Sec. 238.229 continue to apply to such passenger 
equipment and are noted in this rule for clarity. Similarly, the window 
glazing requirements in 49 CFR part 223 continue to apply by their own 
force.
Section 238.203  Static End Strength
    This section contains the requirements for the overall compressive 
strength of all Tier I rail passenger equipment, except for equipment 
meeting the requirements of Sec. 238.201. This section is based on the 
long-standing practice of constructing passenger cars to possess a 
minimum static end strength of 800,000 pounds on the line of draft 
without permanent deformation of the body structure. This practice has 
proven effective in the North American railroad operating environment 
that includes frequent highway-rail grade crossings, mixed operation of 
freight and passenger trains, and less than fully-capable signal and 
train control systems. This section should be read with the discussion 
relating to static end strength earlier in the preamble.
    In general, paragraph (a) requires that on or after November 8, 
1999 all passenger equipment (except as otherwise provided in 
Sec. 238.201) shall resist a minimum static end load of 800,000 pounds 
applied on the line of draft without permanent deformation of the body 
structure. As specified in paragraph (a)(2), unoccupied volumes of a 
passenger car or a locomotive may have a lesser static end strength to 
allow a crash energy management design approach to be employed, if the 
car or locomotive resists a minimum static end load of 800,000 pounds 
applied on the line of draft at the ends of its occupied volume without 
permanent deformation of the body structure. FRA makes clear that, for 
purposes of paragraph (a)(2), the ability of a car or locomotive to 
resist a minimum static end load of 800,000 pounds applied on the line 
of draft at the ends of its occupied volume without permanent 
deformation of the body structure shall be determined on the basis of 
the individual car or locomotive's own strength and crash energy 
management design. Two or more units of passenger equipment may not be 
included in demonstrating the ability of the occupied volume of an 
individual passenger car or locomotive to resist a minimum static end 
load of 800,000 pounds as specified in paragraph (a)(2).
    Paragraph (a)(2) is based on proposed Sec. 238.203(b) in the NPRM, 
see 62 FR 49804. In the final rule, FRA has revised and incorporated 
that paragraph into paragraph (a). FRA has done so in part to make 
clear that a passenger car or a locomotive must first resist a minimum 
static end load of 800,000 pounds applied at the ends of the car or 
locomotive, unless the car or locomotive employs a crash energy 
management design in which case the load may then be resisted at the 
ends of the volume of the car or locomotive occupied by passengers or 
crewmembers.
    FRA has included paragraph (a)(3) in the final rule in response to 
the comments on the NPRM that existing AEM-7 locomotives would not 
comply with the static end strength requirement proposed by FRA. As FRA 
understands, applying the 800,000-pound load at the buff stops of an 
AEM-7 locomotive apparently creates too large a moment on either the 
draft gear housing or on the buffer beam to side sill connection. 
Having analyzed the AEM-7 locomotive, FRA believes that the structure 
can support a 1,000,000-pound load applied at the center of the buffer 
beam, and provide an equivalent or greater level of safety than that 
proposed in the NPRM.
    The requirements of paragraph (a)(3) are based on former AAR 
Standard 034-69, Section 6--Buffing, paragraph (f). In the final rule, 
FRA has doubled the load provided in the AAR Standard from 500,000 
pounds to 1,000,000 pounds, to ensure safety. Further, FRA has tailored 
paragraph (a)(3) so that the alternative specified therein does not 
apply to any locomotive placed in service on or after July 12, 1999, as 
FRA wishes to limit

[[Page 25603]]

application of this alternative to existing locomotives. In addition, 
the alternative specified in paragraph (a)(3) may not be applied to a 
cab car or an MU locomotive. Use of the alternative for such a 
locomotive will not provide as high a level of safety as for a 
conventional locomotive.
    As specified in paragraph (a)(4), the requirements of paragraph (a) 
do not apply to unoccupied passenger equipment operating at the rear of 
a passenger train. In the NPRM, FRA had proposed excepting from the 
requirements of paragraph (a) vehicles such as auto-carriers and 
RoadRailers operated at the rear of a passenger train and used solely 
to transport freight. To the extent such equipment could be excepted 
from the requirements of this paragraph, FRA determined that other 
unoccupied passenger equipment operating at the rear of a passenger 
train could also be excepted. In general, however, FRA would prefer 
that every vehicle in a passenger train have a minimum static end 
strength as specified in this section so that in the event of a train 
collision the cars in the train will crush or resist crushing with a 
certain degree of predictability and, thereby, further the ability of 
the train to remain upright and in line. As most collisions involving a 
passenger train occur at the train's forward end, the requirement for 
unoccupied passenger equipment to possess a minimum compressive 
strength is more significant for such equipment operated at the train's 
forward end and in front of the passenger car consist, than for such 
equipment operated at the rear. As proposed in the NPRM, private cars 
are also excepted from the requirements of paragraph (a). Nevertheless, 
FRA believes that, at a minimum, most private cars do comply with the 
compressive strength requirements that are specified in this paragraph 
for other passenger equipment.
    In the final rule, FRA has included paragraph (b) to address the 
concern of railroads commenting on the NPRM that their existing 
passenger equipment may need to undergo potentially costly testing to 
determine whether the equipment complies with the static end strength 
requirements specified in this rule. Although FRA believes that only a 
limited number of existing passenger equipment on the nation's 
railroads does not comply with the static end strength requirement 
specified in paragraph (a)(1), FRA has included a presumption in the 
final rule to alleviate the burden on railroads to show that their 
existing equipment complies with the requirements of this paragraph. 
Paragraph (b) provides that any passenger equipment placed in service 
before November 8, 1999 is presumed to comply with paragraph (a)(1) 
(and thus presumed to resist a minimum static end load of 800,000 
pounds applied on the line of draft without permanent deformation of 
the body structure), unless the railroad operating the equipment has 
knowledge, or FRA makes a showing, that such passenger equipment was 
not built to the requirements specified in paragraph (a)(1). FRA makes 
clear that passenger equipment built in accordance with AAR 
specifications for the construction of passenger equipment operating in 
trains of more than 600,000 pounds total empty weight is deemed to be 
built to the requirements specified in paragraph (a)(1) and, thereby, 
compliant in this regard. Originally adopted in 1939, Section 6, 
paragraph (a), of AAR Standard S-034-69, ``Specification for the 
Construction of New Passenger Equipment Cars,'' provides in part, ``The 
car structure shall resist a minimum static end load of 800,000 lbs. at 
the rear draft stops ahead of the bolster on the center line of draft, 
without developing any permanent deformation in any member of the car 
structure.'' FRA also makes clear that, in a case where the railroad 
does not know whether its passenger equipment was built to the 
requirements specified in paragraph (a)(1) (or, in essence, this AAR 
specification), the presumption that the equipment was built to the 
requirements specified in paragraph (a)(1) still applies. The 
presumption is not applicable only in those cases where the railroad 
knows, or FRA can make a showing, that the equipment was not built to 
the requirements specified in paragraph (a)(1).
    In response to the NYDOT's comment as to the effect of applying the 
static end strength requirement to existing passenger equipment, and 
thereby to the turboliner equipment planned for use in New York State, 
FRA believes that the RTL trainsets undergoing rebuild comply with the 
end strength requirement specified in paragraph (a)(1). However, these 
RTL trainsets need to be contrasted with the RTG trainsets which the 
NYDOT has also expressed an interest in rebuilding for like use. FRA 
believes that these RTG trainsets do not meet the end strength 
requirement specified in paragraph (a)(1), as FRA understands they were 
built in accordance with UIC (International Union of Railways) 
structural standards (which provide for lesser structural strength). 
FRA does note that no RTG trainsets are currently in service in the 
United States and that to rebuild the equipment would involve 
substantial cost while failing to meet the crashworthiness objectives 
of this rule. Information available to FRA indicates that the only 
useable remaining components of these trainsets are their shells. 
Further, FRA is not aware that any funding has been allocated to 
initiate the remanufacture of these trainsets, and any planned use of 
these trainsets should be considered speculative.
    To prevent sudden, brittle-type failure of the passenger equipment 
body structure, paragraph (c) requires that the body structure be 
designed, to the maximum extent possible, to fail by buckling or 
crushing, or both, of structural members rather than by fracture of 
structural members or failure of structural connections.
    In the final rule, FRA has added a paragraph (d) to provide a 
process for grandfathering approval of passenger equipment in use on a 
rail line or lines on November 8, 1999 that does not meet the minimum 
static end strength requirements. If the operator of the equipment 
files a petition with FRA seeking grandfathering approval to continue 
to use the equipment within this 180-day period after the rule is 
published, the equipment could continue in such usage while the 
petition is being processed, but such usage must stop May 8, 2000 
unless the petition is approved. The section sets forth the 
requirements for petitions and service of the petition, and the process 
FRA will follow in soliciting comments on the petition and disposing of 
petitions.
    FRA plans to ``grandfather'' equipment only for use in particular 
operating environments providing a sufficient showing is made that any 
incremental safety risk incurred in those environments is not of 
significant concern or that specific measures mitigating the risk to 
the traveling public and to railroad employees are utilized. 
Petitioners will need to demonstrate--through a quantitative risk 
assessment that incorporates design information, engineering analysis 
of the equipment's static end strength and of the likely performance of 
the equipment in derailment and collision scenarios, and risk 
mitigation measures to avoid the possibility of collisions or to limit 
the speed at which a collision might occur, or both, that will be 
employed in connection with the usage of the equipment on a specified 
rail line or lines--that use of the equipment, as utilized in the 
service environment for which recognition is sought, is in the public 
interest and is consistent with railroad safety. In this regard, FRA 
notes

[[Page 25604]]

that passenger equipment not possessing the minimum static end strength 
specified in this rule does not have the same capacity to absorb safely 
within its body structure the compressive forces that develop in a 
collision as equipment meeting the standard. The engineering analysis 
submitted by the petitioner should address how these forces will be 
dissipated in a manner that does not jeopardize occupant safety in 
collision scenarios.
    Grandfathering approval of non-compliant equipment is limited to 
usage of the equipment on a particular rail line or lines. Before 
grandfathered equipment can be used on another rail line, a railroad 
must file and secure approval of a grandfathering petition for such 
usage.
Section 238.205  Anti-Climbing Mechanism
    This section contains the vertical strength requirements for anti-
climbing mechanisms on rail passenger equipment. The purpose of the 
anti-climbing mechanism is to prevent the override or telescoping of 
one passenger train unit into another in a derailment or collision. FRA 
is requiring that all passenger equipment placed in service for the 
first time on or after November 8, 1999 shall have an anti-climbing 
mechanism at each end capable of resisting an upward or downward 
vertical force of 100,000 pounds without permanent deformation. When 
coupled together in any combination to join two vehicles, AAR Type H 
and Type F tight-lock couplers satisfy this requirement. This 
requirement incorporates a long-standing industry practice into the 
final rule.
    The rule further requires that the forward end of a locomotive 
ordered on or after September 8, 2000, or placed in service for the 
first time on or after September 9, 2002, be equipped with an anti-
climbing mechanism capable of resisting an upward or downward vertical 
force of 200,000 pounds without failure. This requirement applies to 
locomotives or power cars of permanently coupled trains, and includes 
cab cars and MU locomotives. Specifying a vertical load requirement for 
lead vehicles (locomotives) that is greater than that for coupled 
vehicles is needed to address the greater tendency for override in a 
collision between uncoupled vehicles. AAR Standard S-580, which 
addresses the crashworthiness of locomotives, has included this 
requirement for all freight locomotives built since August 1990. FRA 
believes this industry practice is sound, and this requirement received 
endorsement by passenger railroad representatives. FRA recognizes that 
incorporating a separate anti-climbing arrangement in the leading 
structure of cab cars and MU locomotives presents a significant 
challenge. FRA will continue to work with the APTA PRESS Task Force to 
derive a suitable solution.
    In its comments on the proposed rule, Talgo remarked that 
Sec. 238.205(a), as drafted, seemed to consider that only couplers may 
properly function as anti-climbing mechanisms. Talgo recommended 
modifying this section to avoid this implication and ensure that anti-
climbing mechanisms of varying design can be evaluated fairly. Talgo 
asserted that such a modification would ensure that articulated 
trainsets are not unfairly subject to a requirement that focuses only 
on conventionally coupled units. WDOT, in its comments on the NPRM, 
raised similar points, noting that articulated joints of semi-
permanently coupled trainsets provide anti-climbing ability. As a 
result, FRA makes clear that the term anti-climbing mechanism is 
intended to be read broadly to encompass more than a conventional 
coupler, and that an articulated connection may serve as an anti-
climbing mechanism for the purposes of this section provided it can 
withstand the vertical forces specified in this section.
    In its comments on the NPRM, Talgo also believed that the rule 
should be restated to accommodate trains of different masses. 
Specifically, in determining the strength of the anti-climbing feature, 
Talgo recommended stating the operative variable as vertical 
acceleration, expressed in gs (units of acceleration of gravity), 
rather than load, expressed in pounds. Accordingly, Talgo recommended 
modifying this section so that the anti-climbing mechanism be capable 
of resisting a certain value of acceleration, instead of a vertical 
force of 100,000 pounds. Talgo supplemented its comments on this 
section following FRA's announcement that the minutes of the 
rulemaking's Working Group meetings had been added to the rulemaking's 
docket, See 63 FR 28496; May 26, 1998. As FRA had permitted comments 
for inclusion in the record as to whether the minutes accurately 
reflected statements made at the Working Group meetings, Talgo stated 
that the minutes do not mention that a representative of the Volpe 
Center acknowledged that this section should be modified to address 
lighter rail equipment. Talgo stated that, aside from the ends of its 
articulated trainsets which it noted are compliant with the 100,000 
pound vertical force requirement, intermediate joints in the trainsets 
need only be equipped with anti-climbing mechanisms of 47,000 pounds 
strength to provide the same level of safety as required by the rule. 
Talgo explained that, for purposes of calculating a vertical force 
requirement, one should focus on the static force needed to lift a car 
of specified weight from one end while supported by the truck on the 
other end. Talgo further explained that this value should be multiplied 
by a safety factor--equal to 2.2., as it derived from values in the 
proposed rule--in order to take into account the possibilities of 
misalignment and similar dynamics in the event of a collision. As a 
result, Talgo believed specifying a 47,000-pound strength requirement 
for anti-climbing mechanisms on its equipment would provide the same 
level of safety as specifying a 100,000-pound strength requirement for 
anti-climbing mechanisms on conventional cars.
    FRA notes that during a train collision the relatively strong 
underframe of a rail vehicle may ride up above the underframe of an 
adjacent rail vehicle, and extensively crush the weaker superstructure 
of the overridden vehicle. The potential for override to occur is 
influenced by the dynamic motions of the cars, the relative heights of 
the vehicles' underframes, and the changing geometry of the vehicles' 
structures as they crush during the collision. These factors allow the 
development of a vertical component of the very high longitudinal 
forces occurring in a train during a collision. This vertical force 
component, in effect, squeezes one underframe up and over the 
underframe of another vehicle in the train. While all three factors 
play a role in the occurrence of override, results of actual collisions 
indicate that the changing geometry of the car structures as they 
crush--which, in effect, creates a ramp during the collision--can 
overwhelm the influence of the difference in sill heights. There are 
numerous examples of cars with relatively low underframe heights that 
have overridden cars with relatively high underframe heights.
    FRA has not modified the final rule in response to Talgo's comment 
that the rule should require the anti-climbing mechanism to be capable 
of resisting a certain value of acceleration instead of a specified 
vertical force. First, Talgo has not indicated in its comments what 
that value of acceleration should be, and FRA believes that formulating 
a performance standard in pounds of force, instead, is appropriate. 
Second, Talgo's subsequent comments have focused on specifying a 
47,000-pound vertical force as an alternative to the

[[Page 25605]]

100,000-pound vertical force that an anti-climbing mechanism must 
resist under this section. In response to this latter suggestion by 
Talgo, FRA notes that the longitudinal force acting on a vehicle in a 
train during a collision is, in large part, a function of the vehicle's 
own deceleration plus the force required to decelerate all the vehicles 
behind it. (The longitudinal force is also dependent on the force 
required to crush the vehicles in the train.) When a sufficient 
vertical component of this total force develops, override occurs. 
Because the longitudinal force required to decelerate the trailing 
vehicles can exceed the force required to decelerate the subject 
vehicle, it is not possible to relate the deceleration of a single 
vehicle to the tendency to override in the way that Talgo has explained 
in arriving at its proposed 47,000-pound strength value. The Volpe 
Center representative cited by Talgo sought to make this point clear at 
the December 15, 1997 Working Group meeting. This representative also 
tried to make clear that he did not agree that consideration should be 
given to lighter rail equipment in the way that Talgo proposed at the 
Working Group meeting and in its comments on the rule.
    Even though it may be theoretically possible to develop a formula 
which relates the decelerations of all the cars in a train to the 
tendency to override, such a formula would have to take into account 
the specific cars in the train and the time-phasing of the 
decelerations of the cars during a collision, as well as the forces 
required to crush each of the cars. Development of such a formula is 
beyond FRA's resources in issuing initial passenger equipment safety 
standards as mandated by Congress. However, FRA will further examine 
this issue in evaluating equipment of special construction.
Section 238.207  Link Between Coupling Mechanism and Car Body
    This section contains the vertical strength requirements for the 
structure that links the coupling mechanism to the car body on 
passenger equipment. The purpose of this requirement is to avoid a 
premature failure of the draft system so that the anti-climbing 
mechanism will have an opportunity to engage.
    FRA is requiring that all passenger equipment placed in service for 
the first time on or after November 8, 1999 be provided with a coupler 
carrier or other coupler-to-car-body linking structure that is designed 
to resist a vertical downward thrust from the coupler shank of 100,000 
pounds, without permanent deformation for any normal horizontal 
position of the coupler or coupling mechanism.
    In its comments on the NPRM, Talgo stated that this section should 
be modified to apply only in the case where the coupler between cars 
itself acts as the anti-climbing mechanism--not in cases where other 
anti-climbing designs such as articulated unions are utilized. As a 
result, Talgo recommended that the requirements of this section should 
apply only to the couplers at the far ends of an articulated trainset, 
and not to the interior articulated unions which do not employ 
couplers. Talgo believed that this approach has been proposed in the 
rule with respect to Tier II passenger equipment. Talgo further 
commented that the load requirement should be the same as provided in 
Sec. 238.205.
    FRA recognizes that in an articulated trainset, the articulated 
joint connecting the cars in the train serves as both the coupler 
carrier and as the anti-climbing mechanism. Such cars do not have a 
coupler shank, per se. For practical reasons, including administration 
of the rule, FRA proposed separate requirements for the strength of the 
anti-climbing mechanism in Sec. 238.205 and for the strength of the 
link between the coupling mechanism and car body in Sec. 238.207 
because the vast majority of Tier I passenger equipment possesses a 
conventional draft system. However, FRA intended that for passenger 
equipment utilizing articulated connections that comply with the 
requirements of Sec. 238.205(a), such articulated connections would 
also comply with the requirements of this section. In the final rule, 
FRA has made this explicit by adding a sentence to the rule text, and 
FRA has therefore adopted Talgo's comment in this regard. Talgo's 
comment with respect to specifying an appropriate load requirement for 
this section is consequently addressed in the discussion of 
Sec. 238.205, above.
Section 238.209  Forward-Facing End Structure of Locomotives
    This section contains the requirements for the covering or skin of 
the forward-facing end structure of each passenger locomotive ordered 
on or after September 8, 2000, or placed in service for the first time 
on or after September 9, 2002. The purpose of these requirements is to 
protect the occupied volume of the locomotive cab. This area is 
especially vulnerable in a highway-rail grade crossing collision if a 
fuel tank that is part of or being transported by the highway vehicle 
ruptures, or bulk hazardous materials are released.
    FRA is requiring that the skin covering the forward-facing end of 
each passenger locomotive, including a cab car and an MU locomotive, be 
at a minimum equivalent to a \1/2\-inch steel plate with a 25,000 
pounds-per-square-inch yield strength. Material of a higher yield 
strength material may be used to decrease the required thickness of the 
material provided at least an equivalent level of strength is 
maintained. The skin shall also be designed to inhibit the entry of 
fluids into the occupied area of the equipment, and be affixed to the 
collision posts or other main vertical structural members of the 
forward-facing end structure to add to the strength of the end 
structure.
    AAR Standard S-580 has included these requirements for all 
locomotives built since August 1990. From observations of the improved 
performance of locomotives during collisions, FRA believes that this 
industry standard should be part of these safety standards. Passenger 
railroad representatives in the Working Group endorsed this improved 
safety requirement.
    In its comments on the NPRM, APTA recommended that paragraph (c) be 
clarified so that the skin be designed to permit a train line door with 
a window in the forward-facing end structure of cab cars and MU 
locomotives. In fact, as proposed in the NPRM, the rule defined 
``skin'' to mean the ``outer covering on a fuel tank or the front of a 
locomotive, including a cab car and an MU locomotive, excluding the 
windows and forward-facing doors.'' See Sec. 238.5; 62 FR 49795 (The 
skin may also be covered with another coating of a material such as 
fiberglass). APTA's recommendation is therefore consistent with FRA's 
proposal. For clarity, however, FRA has revised the final rule by 
removing the exclusion concerning windows and forward-facing doors from 
the definition of ``skin'' in Sec. 238.5, and placing the exclusion 
instead directly in paragraph (d) of this section.
Section 238.211  Collision Posts
    This section contains the structural strength requirements for 
collision posts. Collision posts provide protection against the 
crushing of occupied volumes of passenger equipment, including the 
telescoping of one vehicle into another, in the event of a collision or 
derailment.
    Paragraph (a) requires that all passenger equipment placed in 
service for the first time on or after November 8, 1999 shall have 
either two full-height collision posts, each collision post having an 
ultimate longitudinal strength of not less than 300,000 pounds, or an 
equivalent end structure. The 300,000-pound strength requirement makes

[[Page 25606]]

mandatory the long-standing construction practice for collision posts 
in passenger equipment operating in the United States and has proven 
effective in the Nation's railroad operating environment. This 
requirement is similar to that contained in 49 CFR 229.141(a)(4), which 
applies to MU locomotives operated in trains having a total empty 
weight of 600,000 pounds or more, but also requires the collision posts 
to be full-height. As noted, FRA does not believe the 600,000-pound 
consist weight threshold is an appropriate distinction to retain for 
passenger equipment operating on the general system intermingled with 
equipment of more substantial strength, and, as a result, no such 
consist weight distinction is made in the final rule.
    Full-height collision posts provide additional protection because 
they extend higher than posts attached only at the underframe. Little, 
if any, additional cost is imposed on builders by requiring full-height 
posts. Spacing the collision posts at approximately the one-third 
points laterally across the ends of the equipment will allow both posts 
to be engaged in many collision scenarios. An equivalent single end 
structure may be used in place of the two collision posts provided the 
structure can withstand the sum of the forces that each collision post 
is required to withstand. This allows for the design of monocoque, 
unitized or like structures. FRA notes, of course, that such a single 
end structure must also resist the loading requirements for corner 
posts as specified in Sec. 238.213, as well as any other applicable end 
structure requirements as specified in this rule for Tier I passenger 
equipment.
    Amtrak, in its comments on the NPRM, noted that its rail passenger 
operation is unique in the United States because it includes the use of 
unoccupied express and mail cars. Amtrak stated that collision posts 
applied to unoccupied head end cars (express cars) are unwarranted 
because the posts unnecessarily increase the tare weight of this 
equipment without any associated improvement in safety. FRA had 
originally proposed requiring that all passenger equipment comply with 
the requirements of paragraph (a), except for a vehicle of special 
design that operates at the rear of a passenger train and is used 
solely to transport freight, such as an auto-carrier or a RoadRailer. 
See 62 FR 49804. FRA sought this broader application of the collision 
post requirements in part because collision posts serve to repel 
adjacent passenger equipment in a train collision or derailment and, 
thereby, help prevent the uncontrolled crushing of equipment which 
could tend to misalign the train consist. For occupant safety, it is 
optimal that a train remain in line and upright in the event of a 
collision or derailment, and gradually come to a stop after ``plowing 
the ballast'' along the railroad track.
    Nonetheless, FRA has revised the final rule to except unoccupied 
passenger equipment from the requirements of this section--whether 
operated at the rear or forward end of a passenger train. However, as 
noted above in the discussion of Sec. 238.203, unoccupied passenger 
equipment operated at the forward end of a passenger train must comply 
with the static end strength requirement to maintain the integrity of 
the train.
    Paragraph (b) requires that each locomotive, including a cab car or 
MU locomotive, ordered on or after September 8, 2000, or placed in 
service for the first time on or after September 9, 2002, have two 
forward collision posts, located at approximately the one-third points 
laterally across the end of the locomotive, each post capable of 
withstanding a 500,000-pound longitudinal force without exceeding the 
ultimate strength of the joint. In addition, each post must be capable 
of withstanding a 200,000-pound longitudinal force exerted 30 inches 
above the joint of the post to the underframe, without exceeding its 
ultimate strength. AAR Standard S-580 has included this requirement for 
all locomotives built since August 1990. From observation of the 
improved performance of these locomotives during collisions, including 
collisions with motor vehicles at highway-rail grade crossings, FRA 
believes this industry practice should become part of this rule's 
safety standards.
    As an alternative, an equivalent end structure may be used in place 
of the two forward collision posts described in paragraph (b), to allow 
for the design of monocoque, unitized or like structures. The single 
end structure shall withstand the sum of the forces that each collision 
post is required to withstand, in addition to the loading requirements 
for corner posts as specified in Sec. 238.213 and any other applicable 
end structure requirements as specified in this rule for Tier I 
passenger equipment.
    Paragraph (c) provides that for a consist of semi-permanently 
coupled, articulated units, the end structure requirements in 
paragraphs (a) and (b) of this section apply only to the ends of the 
semi-permanently coupled consist of articulated units, provided that 
the railroad submits to the FRA Associate Administrator for Safety 
under the procedures specified in Sec. 238.21--and FRA accepts as 
persuasive--a documented engineering analysis establishing that the 
articulated connection is capable of preventing disengagement and 
telescoping to the same extent as equipment satisfying the anti-
climbing and collision post requirements contained in this subpart. In 
such case, the interior ends of the individual units in the consist 
need not be equipped with an end structure meeting the requirements of 
paragraphs (a) and (b). FRA notes that, in commenting on proposed 
Sec. 238.211(c), both Talgo and WDOT had requested that FRA substitute 
the phrase ``semi-permanently coupled'' for ``permanently joined'' in 
describing the consist of units subject to the exception provided in 
paragraph (c). This recommendation has been adopted.
    FRA has modified paragraph (c) from that proposed in the NPRM, see 
62 FR 49804, by not providing an automatic exception from the collision 
post requirements for the interior ends of individual units in a 
consist of semi-permanently coupled, articulated units. Instead, a 
railroad must submit a documented engineering analysis supporting the 
capabilities of the articulated connection, as described above, and FRA 
must find that analysis persuasive. Articulated assemblies have a 
history of remaining in line during derailments and collisions and, if 
not designed to be uncoupled, only the outside ends of the entire 
assembly should be exposed to the risks of override. However, none of 
the relevant recent experience is on the North American continent, and 
the ability of articulated connections to remain intact during a 
collision with North American passenger equipment, freight rolling 
stock, or a fixed obstruction has not been demonstrated analytically. 
FRA noted the weakness in the proposed exception (Sec. 238.211(c) of 
the NPRM) while preparing the final rule. An approved, documented 
engineering analysis supporting the capabilities of the articulated 
connection is necessary to ensure the safety of passengers and 
crewmembers.
Section 238.213  Corner Posts
    This section contains the requirements for corner posts on 
passenger cars, such as passenger coaches, cab cars and MU locomotives, 
ordered on or after September 8, 2000, or placed in service for the 
first time on or after September 9, 2002. FRA has clarified the 
requirements of this section, as explained below.
    A corner post is the vertical structural member normally located at 
the intersection of the end of a rail vehicle

[[Page 25607]]

with a side of that vehicle. Paragraphs (a) and (b) specify the loads 
and orientation of the loads that a corner post in a passenger car must 
resist. The values specified in paragraphs (a) and (b) are the same as 
those proposed in the NPRM, see 62 FR 49804, though they have been 
stated in a different manner for clarity in the final rule.
    This section allows flexibility so that corner posts may be located 
at positions other than at the extreme outside corners of a passenger 
car, as long as the corner posts are placed ahead of the occupied 
volume of the car. In this manner, corner posts may be positioned 
adjacent to the occupied volume of a passenger car to provide 
structural protection to the occupied volume. For instance, for 
passenger coaches equipped with end vestibules, the corner posts may be 
located in the side structure inboard of the vestibules' side door 
openings, provided that such posts are not placed inside the occupied 
volume, which includes any space for crew or passenger seating. FRA has 
fully defined ``occupied volume'' in Sec. 238.5 to mean the volume of a 
rail vehicle or passenger train where passengers or crewmembers are 
normally located during service operation, such as the operating cab, 
and passenger seating and sleeping areas. The entire width of a 
vehicle's end compartment that contains a control stand is an occupied 
volume. Further, a vestibule is typically not considered occupied, 
except when it contains a control stand for use as a control cab.
    FRA did not intend that the flexibility to place corner posts at 
locations other than at the extreme outside corners of passenger cars 
would permit such corner posts to be placed inside the occupied volume 
of the cars, and FRA recognizes that it should have made this point 
more explicit in the NPRM. See 62 FR 49766. (Of course, as a railroad 
is free to take safety measures beyond those required in this rule, a 
railroad may, therefore, operate a passenger car with corner posts 
inside the occupied volume of the car if another set of corner posts 
that do comply with the requirements of this section are placed ahead 
of the occupied volume.) In light of the vulnerabilities of cab cars 
and MU locomotives operating as the leading units in a passenger train, 
such passenger cars must be equipped with corner posts meeting the 
requirements of this section that are placed ahead of the occupied 
volume. Cab cars and MU locomotives will normally be occupied by a 
train crewmember in an end compartment, and thus must have corner posts 
placed near the extreme ends of the vehicles. As stated in its comments 
on the NPRM, the BLE does not wish the cab control compartment to be 
the designated section of a passenger car to crush in a collision, and 
FRA agrees with the BLE that the cab must be protected.
    Bombardier, in its comments on the 1997 NPRM, suggested that 
proposed section 238.213(a) be modified so that the corner posts must 
resist the loads specified in this section at the point of attachment 
to the underframe and at the point of attachment to the roof structure, 
as those loads are applied individually. FRA had proposed that the 
corner post be able to resist these loads as applied simultaneously, 
not as applied individually. FRA has carried forward its proposal into 
the final rule, and has not adopted Bombardier's comment. Requiring the 
corner post to resist the specified loads as applied simultaneously at 
the points of attachment to the underframe and at the roof structure is 
a stricter requirement. In addition, the requirement is likely more 
representative of the conditions present in an actual collision where 
the corner post may be impacted at both points simultaneously, as in 
the case of a sideswipe with a passing rail car.
    In their comments on the NPRM, Talgo and WDOT stated that the rule 
should provide an exception for articulated trainsets similar to that 
proposed for collision posts in Sec. 238.211(c) of the NPRM. 
Accordingly, these commenters believed that corner posts should be 
required only at the far ends of an assembly of semi-permanently 
coupled, articulated passenger equipment--not at each end of each 
intermediate, semi-permanently coupled vehicle. FRA has not adopted 
these comments in the final rule. First, as discussed above, FRA has 
modified Sec. 238.211 on collision posts so that there is no automatic 
exception from the collision post requirements for intermediate 
vehicles in an assembly of semi-permanently coupled, articulated 
passenger equipment. Further, corner posts, by their very definition 
and location, protect against hazards in a way that collision posts 
(positioned closer to the center of the end of a vehicle) cannot. There 
are many different scenarios in which a passenger car may be struck at 
its corner, such as in a corner-to-corner collision with another rail 
vehicle, or a raking collision with an object fouling the right-of-way. 
As noted in the NPRM, eight passengers were killed following incursion 
of a freight car into the side of two Amtrak coaches beginning at the 
corner of each car, near Lugoff, South Carolina, on July 31, 1991. 
Although there may be less chance of striking the corner of a semi-
permanently coupled, articulated passenger car under certain 
circumstances, the possibility of doing so does exist. FRA, therefore, 
cannot grant an exclusion from the corner post requirements to such 
equipment operated as an intermediate unit in an assembly of semi-
permanently coupled, articulated passenger cars.
    In additional comments on this section, the BLE stated that the 
proposed corner post strength requirements for Tier I passenger 
equipment do not adequately address its safety concerns. The BLE noted 
that past cornering collisions may have resulted in fewer deaths and 
injuries had improved corner post structures been in place, and that 
Tier I passenger equipment may operate up to 125 mph in corridors with 
a significant number of highway-rail intersections. The BLE recommended 
that FRA apply the corner post requirements proposed for Tier II power 
cars in Sec. 238.409 to all new and upgraded Tier I passenger 
equipment.
    As FRA explained in the NPRM, the structural parameters for corner 
post strength represent the common practice for passenger cars built 
for North American service. They are being adopted as an interim 
measure to prevent the introduction of equipment not meeting such 
minimum requirements. FRA recognizes that current design practice has 
proven inadequate to protect the occupied volume in several recent 
side-swipe collisions involving passenger trains with cab cars leading. 
Crash modeling suggests that it is not feasible to modify current 
equipment designs to protect against collisions of the magnitude that 
occurred at Secaucus, New Jersey, and Silver Spring, Maryland, in 
February of 1996. Nevertheless, stronger corner posts are necessary to 
address collisions involving lower closing speeds. FRA is assisting the 
APTA PRESS Task Force in preparing a standard for corner post 
arrangements on cab cars and MU locomotives. Adoption of a suitable 
standard will be an immediate priority upon publication of the final 
rule.
Section 238.215  Rollover Strength
    This section contains the structural requirements intended to 
prevent significant deformation of the normally occupied spaces of a 
passenger car in the event it rolls onto its side or roof. This section 
essentially requires the vehicle structure to be able to support twice 
the dead weight of the vehicle while the vehicle is resting on its side 
or roof. Analysis has shown that current passenger car design practice 
meets this requirement. This requirement has

[[Page 25608]]

proven effective in preventing massive structural deformation of cars 
that have rolled during collisions or derailments. For this reason, FRA 
believes this requirement should be incorporated into these safety 
standards.
    In the NPRM, FRA invited comment whether this requirement should 
also apply to locomotives. Representatives from RPI had advised that 
locomotives do not roll over frequently enough to justify such 
requirements for conventional locomotives.
    The BRC commented that this requirement should apply to locomotives 
to protect the locomotive's crew from the crush and deformation of the 
locomotive's occupied volume. While recognizing that locomotives may 
not roll over frequently, the BRC observed that the additional strength 
will protect the locomotive's crew if other equipment does land on top 
of the locomotive. The BRC believed that the occupied volume of the 
locomotive must be protected to increase the chances of survivability 
for crewmembers. FRA notes that a rollover strength requirement for all 
locomotives--freight and passenger--is being examined in the RSAC 
Locomotive Crashworthiness Working Group. FRA believes that the 
Locomotive Crashworthiness Working Group is the most appropriate forum 
in which to address a rollover strength requirement for locomotives 
overall.
    In its comments on the NPRM, Talgo stated that paragraph (a) should 
include the clarification that local deformations are acceptable when 
the car rests on its side, just as paragraph (b) specifies that some 
deformation is permitted to the roof when the car is resting thereon. 
In paragraph (b), FRA has specified that deformation to the roof 
sheathing and framing is allowed to the extent necessary for the 
vehicle to be supported directly on the top chords of the side frames 
and end frames. This type of deformation does not impinge on the volume 
normally occupied by passengers. However, side wall deformations pose a 
safety risk to passengers since seats and other interior fittings are 
typically attached to the side wall, and passenger limbs are at risk of 
entrapment or crushing. Therefore, FRA has modified this section in 
response to Talgo's comment only to permit local yielding of the outer 
skin of a passenger car provided the resulting deformations in no way 
intrude upon the occupied volume of the car.
    As Bombardier suggested in its comments on the NPRM, FRA has also 
made a minor clarification to this section by substituting the words 
``in the structural members of the'' in place of the word ``for'' in 
the phrase which originally read in the NPRM, ``the allowable stress 
for occupied volumes. . . .'' See 62 FR 49804-49805.
Section 238.217  Side Structure
    This section contains car body side structure requirements. These 
requirements are intended to prevent the side panels of a passenger car 
from flexing excessively while in operation, and help to resist 
penetration of the passenger car's side structure by an outside object. 
These provisions essentially codify, with minor modifications, sections 
16 and 17 of AAR Standard S-034-69, Specification for the Construction 
of New Passenger Equipment Cars.
    This section was originally entitled ``Side impact strength'' in 
the NPRM. FRA has changed the section title because the requirements in 
this section principally refer to the stiffness of a car's side panel, 
rather than the panel's strength. That is, these provisions principally 
focus on preventing the side panel from flexing excessively under 
service loads. The greatest service loads acting on the sidewalls of a 
passenger car probably result from the aerodynamic loads of a train 
entering or exiting a tunnel, and from two trains passing each other at 
speed. Residually, these requirements will provide some protection in 
the event the passenger car's side panel is struck by an outside 
object.
    FRA believes that a side structural strength requirement is 
necessary because approximately 13% of the grade crossing accidents 
involving a passenger train result from a highway vehicle striking the 
side of the passenger train. Further, passenger trains may be struck in 
the side by other trains, individual rail cars that roll out of 
sidings, or freight being transported on trains sharing common rights-
of-way. In addition, during a derailment or train-to-train collision, 
trains frequently buckle, exposing the sides of cars to potential 
impacts during the collision.
    In its comments on this section in the NPRM, Bombardier noted that 
the proposed requirement was based on AAR Standard 034, Section 20, and 
it believed that to be consistent with the AAR Standard and to take 
advantage of the higher strength steels currently used in carbody 
construction, the rule should specify in paragraph (a) that, ``Where 
minimum section moduli or thickness are specified, they shall be 
adjusted in proportion to the ratio of the yield strength of the 
material used, to that of mild open-hearth steel.'' FRA agrees that 
this comment is applicable to cars whose structural members are made of 
steel of higher strength than mild open-hearth steel. Accordingly, FRA 
has expressly provided that the minimum section moduli or thickness 
specified in paragraph (a) may be adjusted in proportion to the ratio 
of the yield strength of the material used to that of mild open-hearth 
steel only for a car whose structural members are made of a higher 
strength steel.
    Talgo, in its comments on this section in the NPRM, believed that 
the requirement should be rewritten to specify the units used for each 
of the concepts discussed. For clarity, FRA states that the dimensional 
units in this paragraph are in inches, and the units for the section 
moduli are ``in inches\3\'' (inches cubed) in paragraphs (a)(1) and 
(2).
    In its comments on the NPRM, WDOT stated that it appeared FRA has 
continued to refuse to provide it with detailed information on the 
risks and true need for side impact standards. WDOT stated that it had 
previously asked FRA for documentation to support FRA's assertion that, 
as originally stated in the ANPRM, ``[d]esigns of some passenger 
equipment have floor levels low to the rail, creating the tendency for 
a heavy highway vehicle striking the side of the train to climb into 
the occupied passenger volume rather than being driven under the 
underframe of the passenger rail car'' (61 FR 30692). Without such 
detailed evidence, WDOT recommended that proposed Sec. 238.217 be 
deferred until the second phase of the rulemaking.
    The Volpe Center has analyzed a highway vehicle side impact into a 
single-level Amfleet car. The results of that analysis indicate that 
the Amfleet car will derail and push sideways before significant 
crushing of the car can occur. It is expected that rail cars having 
similar structures--side sill, body bolster, and center sill--at a 
similar height would behave in the same way in such a collision. This 
includes most passenger cars operating in the United States. However, 
other cars, such as Amtrak's bi-level cars and WDOT's single-level rail 
cars, have floor structures that are structurally different and 
positioned closer to the rail. Preliminary analysis indicates that 
significant crushing may occur if a highway vehicle collides into the 
side of one of these cars.
    As a general principle in specifying a side impact strength 
requirement for a passenger car, the objective is to ensure that the 
side of the passenger car is strong enough so that the car derails and 
is pushed sideways--rather than collapses--when struck in the side by

[[Page 25609]]

another rail vehicle or a highway vehicle. FRA believes that current 
practice may not be adequate to meet this goal, and that cars with low 
floors are particularly vulnerable to penetration when struck in the 
side. A more meaningful side structure requirement than contained in 
this section is necessary to address this concern. Such a requirement 
will include specifying minimum shear values at the car's floor as well 
as at some point above the floor to protect the car's occupants. This 
will be a priority in the second phase of the rulemaking. The 
requirement in this final rule is, therefore, an interim measure. As 
FRA believes that this section does not address in particular the 
vulnerability of low-floor passenger cars to a side impact by a heavy 
highway vehicle, FRA has, in effect, deferred consideration of a 
requirement to do so.
    FRA notes that WDOT also commented as to the likelihood that a 
highway vehicle will strike the side of a passenger train. WDOT 
disagreed with FRA's analysis and conclusions on this issue as stated 
in the NPRM. See 62 FR 49730-1. WDOT stated that FRA had omitted 
mentioning that two-thirds of all the highway vehicle side impact 
collisions into a passenger train involved the highway vehicle striking 
the side of the locomotive. From this, WDOT estimated that one-half of 
one percent (0.5%) of all grade crossing accidents over the 10-year 
period shown in the NPRM may have involved a ``heavy'' highway vehicle 
striking the side of a passenger car.
    FRA has gathered more recent data since publication of the NPRM on 
highway vehicle side impact collisions into passenger trains. Between 
January 1, 1990, and December 31, 1997, 1,572 collisions occurring at 
public highway-rail public grade crossings between passenger trains and 
highway vehicles were reported to FRA. In 202 of these instances 
(12.8%) highway vehicles struck the side of a passenger train. In other 
words, a highway vehicle struck the side of a passenger train an 
average of approximately 25 times each year in this period. Further, in 
this period 137 collisions involved the highway vehicle striking the 
first unit of the passenger train, and 65 collisions involved the 
highway vehicle striking a unit behind the first unit in the train. As 
a result, WDOT is correct insofar as approximately two-thirds of such 
collisions involved the highway vehicle striking the first unit in the 
passenger train, which ostensibly was a locomotive but could also have 
been a passenger car (cab control car or MU locomotive).
    Over the same 8-year period, 31 of the 202 occurrences in which a 
highway vehicle struck a passenger train involved a ``heavy'' highway 
vehicle. For purposes of this analysis, FRA considered heavy highway 
vehicles to consist of all those vehicles identified as a ``Truck-
Trailer'' (3) and one-half of those vehicles identified as ``Truck'' 
(55), as specified according to Form FRA F6180-57--Rail-Highway Grade 
Crossing Accident/Incident Report. In this period, then, a heavy 
highway vehicle struck the side of a passenger train an average of 4 
times each year--and of these occurrences a heavy highway vehicle 
struck other than the lead unit in the train an average of 1 to 2 times 
each year.
    In its comments on the NPRM, the WDOT noted that FRA had not 
provided a record of any injuries or deaths occurring from highway 
vehicle collisions into passenger trains. FRA states here that in the 
8-year period from 1990 through 1997, highway vehicle collisions into 
passenger trains resulted in 7 total injuries reported to FRA--3 
injuries to railroad employees, and 4 injuries to passengers--and no 
reported fatalities. FRA notes that reliance on this passenger injury 
data in the abstract is not appropriate when considering the risks 
associated with operating a particular rail passenger vehicle. For 
example, it is possible that a highway vehicle collision into the side 
of an Amfleet rail car that does not injure any passengers would 
instead cause injuries under the same circumstances in a collision 
involving a rail car with a different floor structure positioned closer 
to the rail. As noted above, most of the passenger cars in the United 
States possess floor structures similar to the Amfleet rail car, 
positioned at a similar height above the rail. FRA maintains that the 
potential for a highway vehicle to strike the side of a passenger train 
is real, as shown by the record of the frequency of highway vehicles 
striking the sides of passenger trains. FRA therefore advises railroads 
to consider the risks and consequences of such a collision, with 
particular attention to the different units of passenger equipment in 
their operations.
    As noted above, the side strength of a passenger car is also highly 
pertinent to its crashworthiness in a side or raking collision with 
other railroad rolling stock. Examples could include a freight car 
rolling out of a siding or industrial spur into the side of a passenger 
train, or a locomotive moving in a terminal area passing through a 
switch and into the side of a passenger train. Recognizing these 
concerns, the Tier II provision on side strength does attempt to 
address the identified need. This provision was derived from 
discussions with Amtrak concerning development of specifications for 
its high-speed trainsets for the Northeast Corridor.
Section 238.219  Truck-to-car-body attachment
    This section contains the truck-to-car-body attachment strength 
requirement for passenger equipment. The attachment is required to 
resist without failure a 2g vertical force on the mass of the truck and 
a force of 250,000 pounds in any horizontal direction on the truck.
    The intent of the requirement for the attachment to resist without 
failure a minimum vertical force equivalent to 2g acting on the mass of 
the truck is to prevent the truck from separating from the car body if 
it is raised or rolls over. In effect, the attachment must resist, 
without failure, a force equal to twice the weight of the truck and all 
the components attached to the truck. Many types of keepers are used to 
keep trucks attached to car bodies. FRA believes that the majority of 
them are capable of meeting this requirement. The intent of the 
requirement for the attachment to resist without failure a minimum 
force of 250,000 pounds acting in any horizontal direction on the truck 
is to address the forces that act upon the truck during a derailment 
that would tend to shear the truck from the car body. The parameter 
selected represents the current design practice that has proven 
effective in preventing horizontal shear of trucks from car bodies.
    If the truck separates from the car body in a collision or 
derailment it may become a hazardous projectile that will intrude upon 
the occupied volumes of the equipment involved in the collision or 
derailment. Further, if the truck separates from the car body it will 
not be able to serve, in effect, as an anti-climbing device in a 
collision or derailment. With the truck attached to the car body, the 
truck of an overriding rail vehicle is likely to be caught by the 
underframe of the overridden rail vehicle, thus arresting the override.
    In its comments on the NPRM, Talgo recommended that the regulation 
be modified so that the strength of the attachment against horizontal 
force is also measured in gs. Specifically, Talgo suggested that the 
vertical force resistance limit of 2g could be employed rather than a 
fixed load measure that, according to Talgo, did not take into account 
individual truck mass. Talgo believed that this modification would not 
undermine the intent of the rule, which it noted as allowing the truck 
to

[[Page 25610]]

act as an anti-climbing device during a collision, citing the NPRM at 
62 FR 49767.
    In addressing Talgo's comments, FRA would like to make clear that 
the fundamental reason for requiring the truck-to-car-body attachment 
to resist without failure a minimum force of 250,000 pounds acting in 
any horizontal direction on the truck is to prevent the truck from 
shearing off (separating from) the car body. (FRA believed this 
implicit in the preamble discussion of the NPRM, and is making it clear 
here to remove any doubt.) Whether the truck separates from the car 
body if the car rolls over, or whether the truck separates from the car 
body from being sheared off, the truck may become a hazardous 
projectile in either case. FRA did state in the NPRM, ``If the truck 
remains attached to the car body, the truck is less likely to be struck 
by [or strike] other units of the train.'' 62 FR 49767. Having the 
truck remain attached to the car body also allows the truck to serve, 
in effect, as an anti-climbing device to prevent one vehicle from 
overriding another in a collision. In this regard, FRA stated in the 
NPRM, ``With the truck attached to the car body, the truck of an 
overriding vehicle is likely to be caught by the underframe of the 
overridden vehicle, thus arresting the override.'' Id. (Emphasis 
added.) However, insofar as FRA's statement in the NPRM that the 
``Arequirement for the [truck-to-car-body] attachment to resist a 
horizontal force is intended to allow the truck to act as an anti-
climbing device during a collision'' has been understood to represent 
the only intent of the horizontal loading resistance requirement, FRA 
makes clear here that such an understanding of the requirement's intent 
is too narrow.
    FRA believes it appropriate to specify that a passenger rail 
vehicle's truck-to-car-body attachment must resist without failure a 
minimum force of 250,000 pounds acting in any horizontal direction on 
the truck. This force may be possessed by one rail vehicle (Vehicle A) 
as it collides with the truck of another rail vehicle (Vehicle B) in a 
collision. Vehicle A is able to possess this force independent of the 
mass of Vehicle B's truck--or, for that matter, the mass of Vehicle B 
itself. Nonetheless, Vehicle B's truck-to-car-body-attachment must 
resist this force so that its truck does not separate from its body. In 
this regard, FRA believes it inappropriate to restate the horizontal 
force requirement in this section so that it is dependent on the mass 
of an individual rail vehicle's truck. FRA does note that it has 
related the mass of the truck to the vertical force that the truck-to-
car-body attachment must resist: In this case, the mass of the truck 
necessarily determines how strong the truck-to-car-body attachment must 
be to prevent the truck from separating from the vehicle, as the weight 
of the truck essentially acts to ``pull'' the truck away from the rail 
vehicle.
    Talgo, in further commenting on the requirements of this section, 
recommended that the rule should except articulated equipment utilizing 
a single-axle truck positioned between two car bodies. Talgo stated 
that in the event a compressive force is generated by a collision, the 
truck attached to articulated equipment would become embedded between 
the two car bodies. In this case, it believed the truck is not intended 
to serve as an anti-climbing device, and that the train's articulated 
joints would instead provide protection against climbing. WDOT also 
raised this point in its comments on the NPRM, and recommended that FRA 
work with Talgo to develop an appropriate alternative to the proposed 
rule for non-conventional equipment.
    As noted, having the truck remain attached to the car body in a 
collision or derailment helps to prevent one vehicle from overriding 
another vehicle as the truck of the vehicle attempting the override is 
caught on the underframe of the other vehicle. Further, the opportunity 
of having the truck of one vehicle caught on the underframe of another 
vehicle in such a scenario should be less likely to occur in a 
collision involving single-axle articulated passenger rail cars than in 
the case of non-articulated, conventional rail equipment. Yet, as FRA 
has made clear, the requirements of this section are principally 
intended to prevent a truck from separating from a rail passenger 
vehicle. Trucks can and have separated from articulated rail equipment 
in a collision; and truck separation poses a direct threat to the 
safety of a passenger train's occupants, especially when the cars in 
which those passengers ride are structurally vulnerable to penetration. 
As a result, the requirements of this section must apply to all 
passenger rail equipment-whether articulated or not.
Section 238.221  Glazing
    This section contains additional requirements concerning the safety 
glazing of passenger equipment subject to the requirements of 49 CFR 
part 223. Existing safety glazing requirements for windows have largely 
proven effective in passenger service at speeds up to 125 mph. However, 
part 223 does not address the performance of the frame which attaches 
the window glazing to the car body. Paragraph (b)(1) requires each 
exterior window on a locomotive cab or a passenger car to remain in 
place when subjected to the forces the glazing itself is required to 
resist in part 223 of this chapter. In this way, the window glazing 
must be secured in place so that it can both resist spalling when 
struck by a projectile, for example, and also resist being knocked out 
of the window frame. Paragraph (b)(2) requires each exterior window on 
a locomotive cab or a passenger car to remain in place when subjected 
to the forces due to air pressure differences caused when two trains 
pass at the minimum separation for two adjacent tracks, while traveling 
in opposite directions, each train traveling at the maximum authorized 
speed. This requirement is also intended to prevent the window from 
being forced from the window frame, potentially injuring passengers and 
crewmembers. FRA believes that most existing passenger equipment 
subject to part 223 meets these requirements.
    FRA did not receive any specific comments on this section. However, 
for clarity, FRA has restated the requirements proposed in 
Sec. 238.221(b) and (c) in the NPRM, see 62 FR 49085, as 
Sec. 238.221(b) in this final rule. The focus in paragraph (b) in the 
final rule is clearly on the ability of each exterior window to remain 
in place, however the window may be secured, and not have the window 
become a potential projectile itself.
Section 238.223  Fuel tanks
    This section contains the structural requirements for external and 
internal fuel tanks on passenger locomotives ordered on or after 
September 8, 2000, or placed in service for the first time on or after 
September 9, 2002.External fuel tanks must comply with the performance 
requirements for locomotive fuel tanks contained in Appendix D to this 
part, or an industry standard providing at least an equivalent level of 
safety if approved by FRA's Associate Administrator for Safety under 
Sec. 238.21. The requirements in Appendix D are based on AAR 
Recommended Practice-506, Performance Requirements for Diesel Electric 
Locomotive Fuel tanks, as adopted on July 1, 1995. In the NPRM, FRA 
proposed incorporating the requirements of AAR RP-506 directly into the 
rule. See 62 FR 49805. In preparing the final rule, however, FRA 
determined that restating the requirements of RP-506 in Appendix D 
would facilitate FRA's administration of the external fuel tank 
performance requirement. RP-506 itself is not specifically written as a 
regulatory

[[Page 25611]]

document, and one of its provisions on fueling does not appear to be a 
safety requirement. However, FRA does not intend to make any 
substantive change from the requirements of RP-506, except as noted in 
detail in the discussion of Appendix D.
    FRA has included a definition of external fuel tank in the final 
rule to mean a fuel containment volume that extends outside the car 
body structure of the locomotive. An external fuel tank is 
distinguished from an internal fuel tank, which is defined in the rule 
as a fuel containment volume that does not extend outside the car body 
structure of the locomotive. As a result, a fuel tank that is built 
into the car body structure but is exposed in any way to the outside is 
considered an external fuel tank under the rule.
    FRA has changed the title of paragraph (b) in the NPRM from 
Integral fuel tanks to Internal fuel tanks, reflecting the 
clarification in the definitions. This change is consistent with FRA's 
intent that, for purposes of the rule, locomotive fuel tanks must 
comply with one of two standards, depending upon the exposure of the 
fuel tank outside the car body structure. FRA has dispensed with the 
term ``integral'' fuel tank--i.e., a fuel tank that is essentially 
integrated with a structural member of the locomotive not designed as a 
fuel container--because, depending on its placement, an integral fuel 
tank either may or may not be exposed outside the locomotive car body 
structure.
    In commenting on the NPRM, Bombardier noted that the requirements 
proposed in this section have not been applied by the industry to 
diesel multiple-unit locomotives (DMUs). Bombardier believed that the 
need and feasibility of applying these standards to DMUs must be 
evaluated specially because DMUs have much smaller enclosed and 
protected fuel tanks than those found on conventional North American 
locomotives. Accordingly, Bombardier recommended that FRA defer 
applying the requirements of this section to DMUs, until specific 
requirements for DMUs are developed.
    Having considered Bombardier's comment, FRA does not recommend 
separately addressing requirements for DMU locomotives at this time. 
FRA has not been provided the operational or performance information 
necessary for an in-depth evaluation of DMU fuel tanks, and only a 
limited number of DMUs presently operate within the U.S. FRA will 
further consider formulating separate requirements for DMU fuel tanks 
in Phase II of the rulemaking, as operational and performance 
information is gained.
Section 238.225  Electrical System
    FRA did not receive any specific comments on this section, and it 
is adopted as proposed. This section contains the requirements for the 
design of electrical systems on passenger equipment. In developing the 
proposed rule, the Working Group advised that no single, well-
recognized electrical code or set of standards applied directly to the 
design of railroad passenger equipment. As a result, the Working Group 
recommended broad performance requirements which reflect common 
electrical safety practice and are widely recognized as good electrical 
design practice. FRA had offered for comment more detailed electrical 
system design requirements in the ANPRM, but as advocated by the 
Working Group the NPRM's approach was more performance-oriented and 
provided wide latitude in equipment design. FRA believes that this 
approach helps to ensure good electrical design practice without 
imposing unnecessary costs on the industry.
    The electrical system requirements include provisions for:
     Electrical conductor sizes and properties to provide a 
margin of safety for the intended application;
     Battery system design to prevent the risk of overcharging 
or accumulation of dangerous gases that can cause an explosion;
     Design of resistor grids that dissipate energy produced by 
dynamic braking with sufficient electrical isolation and ventilation to 
minimize the risk of fires; and
     Electromagnetic compatibility within the intended 
operating environment to prevent electromagnetic interference with 
safety-critical equipment systems and to prevent interference of the 
rolling stock with other systems along the rail right-of-way.

Electrical standards currently under development by an APTA PRESS Task 
Force will help give effect to these requirements and supplement them 
as appropriate.
Section 238.227  Suspension System
    This section contains the requirements for suspension system 
performance of all Tier I passenger equipment. In the ANPRM, FRA 
presented for comment a large set of detailed suspension system 
performance requirements. The Working Group advised that such an 
extensive set of requirements was not needed for Tier I passenger 
equipment, and the NPRM reflected this advice.
    Overall, FRA is requiring that all passenger equipment shall 
exhibit freedom from hunting oscillations at all speeds. Further, FRA 
is requiring particular suspension system safety requirements for 
passenger equipment operating at speeds above 110 mph but not exceeding 
125 mph, near the transition speed range from Tier I to Tier II 
requirements. Although FRA believes that for speeds not exceeding 110 
mph existing equipment has not demonstrated serious suspension system 
stability problems, most of this same equipment is only operated at 
speeds that do not exceed 110 mph. Accordingly, when new or existing 
passenger equipment is intended for operation above 110 mph, this 
equipment must demonstrate stable operation during pre-revenue service 
qualification tests at all speeds up to 5 mph in excess of its maximum 
intended operating speed under worst-case conditions--including 
component wear--as determined by the operating railroad. The Working 
Group advised FRA that a single definition of worst-case conditions 
could not be applied generally to all railroads; and, as a result, the 
definition of worst-case conditions shall be determined by each 
railroad based upon its particular operating environment.
    FRA has revised paragraph (a) based on a comment from Talgo by 
defining hunting oscillations in the rule text directly, and removing 
the definition of hunting oscillations from Sec. 238.5. Further, FRA 
has clarified the intent of paragraph (a) that passenger equipment 
shall exhibit freedom from hunting oscillations at all ``operating'' 
speeds, by inserting the word ``operating'' as recommended by 
Bombardier in its comments on the rule. FRA has made a similar 
clarification in paragraph (b).
    AAPRCO, in its comments on the NPRM, stated that ``hunting'' is a 
dynamic resonance phenomenon in which factors as diverse as car body 
characteristics, truck characteristics, suspension conditions, wheel 
tread contours and multiple rail alignment, profile, and lubrication 
conditions all interact to produce a condition in which the truck 
oscillates back and forth rapidly as the train moves down the track. 
AAPRCO recognizes that hunting may be dangerous because high forces can 
be generated between the wheels and the rails. However, according to 
AAPRCO, because complex interactions of many factors lead to hunting, 
there is no straightforward way for a car owner or railroad carrier to 
determine ahead of time whether hunting will occur

[[Page 25612]]

without extensive, dynamic testing at operating speed and often on the 
particular track in question. AAPRCO believed that all cars which 
exhibit hunting when in service should be fixed at the first 
opportunity. Yet, AAPRCO recommended deleting from the rule the 
requirement that passenger equipment exhibit freedom from hunting 
oscillations at all speeds for lack of a practical, predictive method 
to determine whether an individual car meets this requirement.
    FRA agrees with AAPRCO's comments to the extent that the onset of 
truck hunting cannot always be predicted. However, railroads should not 
use equipment that they know has a hunting problem; and FRA is 
retaining the proposed requirement in the final rule. FRA has added 
AAPRCO's suggestion that if hunting oscillations do occur, a railroad 
shall take immediate action (such as a reduction in speed and 
subsequent attention to wheel contours) to prevent derailment. FRA does 
note that private rail cars are typically heavy rail cars and, 
therefore, less likely to hunt than lighter rail cars.
    FRA has added paragraph (c) to this section to make clear that the 
requirements of 49 C.F.R. part 213 concerning vehicle/track interaction 
apply by their own force to passenger equipment, notwithstanding any 
provision of this section. The requirements of 49 C.F.R. Sec. 213.345 
are more detailed than those that are contained in this section, and 
apply as specified in that section to the qualification of the vehicle/
track system for track Classes 6 through 9 for passenger equipment 
operating above 90 mph (and freight equipment operating above 80 mph).
Section 239.229  Safety appliances
    This section references current safety appliance requirements 
contained in 49 U.S.C. chapter 203 and 49 CFR part 231. These existing 
requirements continue to apply independently to all Tier I passenger 
equipment, and FRA is referencing them here for clarity.
Section 238.231  Brake system
    This section contains general brake system performance requirements 
that apply on or after September 9, 1999 to Tier I passenger equipment 
except as otherwise provided. Paragraph (a) contains a requirement that 
the primary braking system be capable of stopping the train with a 
service application of the brakes from its maximum authorized operating 
speed within the signal spacing existing on the track. FRA believes 
that this requirement is the most fundamental performance standard for 
any train brake system. This section merely codifies a requirement 
which is current industry practice and is the basis for safe train 
operation in the United States.
    Paragraph (b) requires that passenger equipment ordered on or after 
September 8, 2000, or placed in service for the first time on or after 
September 9, 2002 be designed not to require an inspector to place 
himself or herself on, under, or between components of the equipment to 
observe brake actuation or release. The requirement allows railroads 
the flexibility of using a reliable indicator in place of requiring 
direct observation of the brake application or piston travel, because 
the current designs of many passenger car brake systems make direct 
observation extremely difficult without the inspector placing himself 
or herself underneath the equipment. Brake system piston travel or 
piston cylinder pressure indicators have been used with satisfactory 
results for many years. FRA recognizes the concerns raised by certain 
labor representatives regarding the use of piston travel indicators, 
and although such indicators do not provide 100 percent certainty that 
the brakes are effective, FRA believes that they have proven themselves 
effective enough to be preferable to requiring an inspector to assume a 
dangerous position.
    Paragraph (c) requires that an emergency brake application feature 
be available at any time and that it produce an irretrievable stop. 
This section merely codifies current industry practice and ensures that 
passenger equipment will continue to be designed with an emergency 
brake application feature. This provision recognizes the reality that 
most passenger brake equipment currently provides a deceleration rate 
with a full service application that is close to the emergency brake 
rate. The current design requirement contained in 49 CFR Part 232, 
Appendix B, requiring the emergency application feature increase a 
train's deceleration rate by 15 percent, would require the lowering of 
full service brake rates on passenger equipment, thereby compromising 
safety and lowering train speeds. Consequently, FRA will not require a 
specific deceleration rate that must be obtained through an emergency 
brake application.
    Paragraph (d) requires that the train brake system respond as 
intended to brake control signals and that the brake control system be 
designed so that a loss of control signal causes a redundant control to 
take over or cause the brakes to apply. These provisions are 
fundamental requirements necessary for effective brake system 
performance, and a codification of current industry practice. FRA 
intends the requirement to apply to all types of brake control signals, 
including pneumatic, electric, and radio signals.
    Paragraph (e) prohibits the introduction of alcohol or other 
chemicals into the brake line. During periods of extreme cold weather, 
railroad employees at times resort to adding alcohol or other freezing 
point depressants to the brake line in an attempt to prevent 
accumulated moisture in the line from freezing. Virtually every 
railroad has a policy against this practice because alcohol and other 
chemicals attack the o-rings and gaskets that seal the brake system, 
causing them to age or fail prematurely. This practice can lead to 
dangerous air leaks and it increases maintenance costs.
    Paragraph (f) requires that the brake system be designed and 
operated to prevent dangerous cracks in wheels. Passenger equipment 
wheels are normally heat treated so that the wheel rim is in 
compression. This condition forces small cracks that form in the rim to 
be closed. Heavy tread braking can heat wheels to the point that a 
stress reversal occurs and the wheel rim is in tension to a certain 
depth. Rim tension is a dangerous condition because it promotes surface 
crack growth. In the 1994 NPRM on power brakes, FRA proposed a wheel 
surface temperature limit to prevent this condition. See 59 FR 47729. 
Several brake manufacturers and railroads objected to this approach, 
claiming that the temperature limit was too conservative and did not 
allow for the development of new materials that can withstand higher 
temperatures. Based on these comments and concerns, FRA proposed in the 
1997 NPRM and is retaining a more flexible performance requirement 
rather than a wheel tread surface temperature limit. This is an 
extremely important safety requirement because a cracked wheel that 
fails at high speed can have catastrophic consequences. In addition to 
the safety concerns, FRA believes that this requirement will lead to 
longer wheel life, and thus should provide maintenance savings to the 
railroads.
    Paragraph (g) requires that brake discs be designed and operated so 
that the disc surface temperature does not exceed manufacturer 
recommendations. In the 1994 NPRM, FRA proposed a disc surface 
temperature limit. See 59 FR 47729. As noted above, several brake 
manufacturers and railroads objected to this approach, claiming that 
the temperature limit was too conservative and did not allow for the 
development

[[Page 25613]]

of new materials that can withstand higher temperatures. Based on these 
comments and concerns, FRA proposed in the 1997 NPRM and is retaining a 
more flexible requirement rather than a single disc surface temperature 
limit. FRA believes this requirement will lead to longer disc life, and 
thus will produce maintenance savings to railroads.
    Paragraph (h) contains the requirements related to hand brakes and 
parking brakes on passenger equipment. A hand or parking brake is an 
important safety feature that prevents the rolling or runaway of parked 
equipment. In the 1997 NPRM, FRA proposed an all encompassing 
requirement that all locomotives, except those ordered and placed in 
service before certain dates, and all other passenger equipment be 
provided with a hand or parking brake that could be set and released 
manually and could hold the equipment on the maximum grade anticipated 
by the operating railroad. Based on the concerns of labor 
representatives, FRA recognizes that this proposed provision is 
somewhat at odds with the hand brake provisions currently contained in 
49 CFR part 231, particularly the requirements that the hand brake be 
able to be operated while the equipment is in motion and that the hand 
brake operate in harmony with the brake system. As it is FRA's intent 
to remain consistent with the existing safety appliance requirements 
for Tier I passenger equipment, FRA has slightly modified the 
provisions requiring hand or parking brakes on passenger equipment.
    FRA is retaining the requirement for equipping locomotives, except 
for MU locomotives, with either a hand brake or a parking brake that 
can be set and released manually and can hold the equipment on the 
maximum grade anticipated by the operating railroad. As there are 
currently no requirements for equipping locomotives with hand brakes, 
FRA will permit the use of a parking brake or hand brake which meets 
the above specifications on these vehicles. However, for all other 
passenger equipment and for MU locomotives, FRA is requiring that they 
be equipped with a hand brake or parking brake which meets the 
requirements contained in 49 CFR part 231 regarding hand brakes on 
passenger cars. Although part 231 does not currently require hand 
brakes on MU locomotives, FRA is requiring that the hand brake required 
to be installed on these locomotives under this paragraph comply with 
the requirements contained in part 231 for other passenger equipment. 
As these locomotives generally transport members of the general public, 
similar to passenger coaches, the necessity to apply the hand brake 
while the car is in motion becomes critical for passenger safety. 
Therefore, FRA believes that MU locomotives should be equipped with a 
hand brake which meets the design requirements contained in part 231 
regarding passenger cars.
    This paragraph contains the requirement that the hand brake or 
parking brake hold the loaded unit on the maximum grade anticipated by 
the operating railroad. FRA makes clear that the term ``loaded unit'' 
refers to the maximum weight and capacity that the unit will carry 
during its operation. Thus, such things as maximum fuel capacity, 
maximum passenger capacity, maximum train crew capacity, and the 
maximum weight of any lading that the locomotive or other unit will 
carry should be considered in determining the holding ability of any 
hand or parking brake utilized.
    Paragraph (i) contains the requirement that passenger cars be 
equipped with a means for the emergency brake to be applied that is 
clearly identified and accessible to passengers. This is a longstanding 
industry practice and an important safety feature because crucial time 
may be lost requiring passengers sensing danger to find a member of the 
train crew to stop the train.
    Paragraph (j) contains provisions to ensure that the dynamic brake 
does not become a safety-critical device. Railroads have consistently 
held that dynamic brakes are not safety devices because the friction 
brake alone is capable of safely stopping a train if the dynamic brake 
is not available. The provisions in this paragraph include requiring 
that the blending of the friction and dynamic brakes be automatic, that 
the friction brakes alone be able to stop the train in the allowable 
stopping distance, and that a failure of the dynamic brake does not 
cause thermal damage to wheels or discs due to the greater friction 
braking load. FRA believes that without these requirements the dynamic 
brake would most likely become a safety-critical item and railroads 
would not be permitted to dispatch trains unless the dynamic brake were 
fully operational.
    Although FRA recognizes the concerns of labor representatives that 
dynamic brakes are safety critical and should be required to work at 
all times, FRA believes that in the context of blended braking labor's 
concerns are somewhat misplaced and are adequately addressed by various 
provisions contained in this final rule. In the blended brake context, 
unlike freight operation, there is not an independent dynamic brake: 
The dynamic brake and the pneumatic brake systems are automatically 
blended without separate action being taken by the locomotive engineer. 
Thus, the undue reliance on the dynamic brake is not a major concern 
when blended braking systems are utilized. In addition, the provisions 
contained in this paragraph ensure that blended brake systems are 
designed so that failure of the dynamic portion of the blended braking 
system does not impact the safe operation and stopping of the train. 
Furthermore, as part of the exterior calendar day mechanical inspection 
railroads are required to verify that all secondary braking systems are 
in operating mode and do not have any known defects. See 
Sec. 238.303(e)(15). Consequently, the railroad must verify that the 
dynamic brakes are in operating mode and do not contain any known 
defects and take prescribed action whenever the dynamic brakes are 
found to be inoperative prior to releasing a locomotive from an 
exterior calendar day mechanical inspection.
    Paragraph (k) requires that either computer modeling or dynamometer 
tests be performed to confirm that new brake designs not result in 
thermal damage to wheels or discs. Further, if the operating parameters 
of the new braking system change significantly, a new simulation must 
be performed. This requirement provides a means to ensure that the 
requirements in paragraphs (f) and (g) are being complied with by new 
brake designs.
    Paragraph (l) requires that all locomotives ordered on or after 
September 8, 2000, or placed in service for the first time on or after 
September 9, 2002, be equipped with effective air coolers or air dryers 
if equipped with air compressors. The coolers or dryers must be capable 
of providing air to the main reservoir with a dew point suppression at 
least 10 degrees F. below ambient temperature. FRA and most members in 
the industry agree that moisture is a major cause of brake line 
contamination. Consequently, reducing moisture leads to longer 
component life and better brake system performance. Currently, 
virtually all passenger railroads purchase only locomotives equipped 
with air dryers or coolers. Therefore, FRA is merely requiring the 
continuation of what it believes is good industry practice. Although 
labor representatives contend that a dew point suppression of 10 
degrees below ambient temperature is insufficient to prevent 
condensation in the train line, these commenters provided no support 
for that contention other than the

[[Page 25614]]

assertion that prior specifications called for a 35 degree dew point 
suppression. Based on available information, FRA believes that a 10 
degree dew point suppression is adequate. Without further study into 
the issue, FRA is reluctant to impose a more burdensome standard than 
that which was proposed. This issue may be further considered in the 
second phase of this passenger equipment rulemaking process.
    Paragraph (m) requires that when a train is operated in either 
direct or graduated release, the railroad shall ensure that all cars in 
the train consist are set-up in the same operating mode. This provision 
was added based upon the concerns of several labor commenters regarding 
trains operated by Amtrak which contain a mixture of traditional 
passenger equipment and freight-like equipment. Most passenger trains 
are operated in what is known as a graduated release mode, whereby 
brake cylinder pressure may be reduced in steps proportional to 
increments of brake pipe pressure build-up; however, when passenger 
trains operated by Amtrak contain certain freight-like equipment the 
train is operated in a direct release mode, whereby brake cylinder 
pressure is completely exhausted as a result of an increase in brake 
pipe pressure. As these two different types of operating modes are now 
being utilized on passenger trains, FRA agrees it is necessary to 
require a railroad to ensure that all the cars in the train are set-up 
in the same operating mode in order to prevent potential train handling 
problems.
Section 238.233  Interior Fittings and Surfaces
    This section contains the requirements concerning interior fittings 
and surfaces that apply, as specified in this section, to passenger 
cars and locomotives ordered on or after September 8, 2000, or placed 
in service for the first time on or after September 9, 2002.
    FRA and NTSB investigations of passenger train accidents have 
revealed that luggage, seats, and other interior objects breaking or 
coming loose is a frequent cause of injury to passengers and 
crewmembers. During a collision, the greatest decelerations and thus 
the greatest forces to cause potential failure of interior fitting 
attachment points are experienced in the longitudinal direction, i.e., 
in the direction parallel to the normal direction of train travel. 
Current practice is to design seats and other interior fittings to 
withstand the forces due to accelerations of 6g in the longitudinal 
direction, 3g in the vertical direction, and 3g in the lateral 
direction. Due to the injuries caused by broken seats and other loose 
fixtures, FRA believes that the current design practice is inadequate.
    Paragraph (a)(1) requires that each seat in a passenger car remain 
firmly attached to the car body when subjected to individually applied 
accelerations of 4g in the lateral direction and 4g in the upward 
vertical direction acting on the deadweight of the seat or seats, if 
held in tandem. Based on a comment from Simula in response to the NPRM, 
FRA has clarified this requirement from that proposed in the NPRM by 
specifying that the vertical loading is in the ``upward'' direction. 
Paragraph (a)(2) specifies that a seat attachment shall have an 
ultimate strength capable of resisting the longitudinal inertial force 
of 8g acting on the mass of the seat plus the load associated with the 
impact into the seat back of an unrestrained 95th-percentile adult male 
initially seated behind the seat back, when the floor decelerates with 
a triangular crash pulse having a peak of 8g and a duration of 250 
milliseconds (msec). By resisting the force of an occupant striking the 
seat from behind, a potential domino effect of seats breaking away from 
their attachments is avoided. As used in this section, a 95th-
percentile adult male has been defined in Sec. 238.5 of the final rule 
based on the same characteristics for such a vehicle occupant specified 
by the National Highway Traffic Safety Administration (NHTSA) in its 
motor vehicle safety standards at 49 CFR Sec. 571.208, S7.1.4. At the 
January 1998 Working Group meeting, the NTSB had recommended use of the 
NHTSA specifications for purposes of the rule's occupant protection 
requirements.
    The requirement contained in paragraph (a)(2) represents a 
modification from FRA's original proposal that the seat attachment 
resist a longitudinal inertial force of 8g acting on the mass of the 
seat plus the impact force of the mass of a 95th-percentile male 
occupant(s) being decelerated from a relative speed of 25 mph and 
striking the seat from behind. See 62 FR 49806. The impact speed at 
which the occupant strikes the seatback ahead of him during a collision 
depends on the distance from the occupant to the seatback and the 
deceleration of the car (the crash pulse) during the collision. In 
drafting the rule, FRA has assumed a seat pitch, or distance from the 
occupant to the seatback ahead of him, consistent with the longest seat 
pitch currently used in intercity passenger train service. As a result, 
the final rule specifies the crash pulse and its duration, and need not 
specify the secondary impact velocity. This change is intended to 
clarify the rule by relating it more directly to how the rule is 
applied and allow for different seat pitches. Seat pitches are expected 
to reflect actual use of the seats and be less than that assumed by 
FRA. Consequently, secondary impact speeds of occupants striking the 
seatbacks ahead of them are expected to be 25 mph or less--a marginally 
less severe test condition than that provided for in the NPRM.
    The revision to this paragraph is based in part on comments from 
Simula that the rule require the seat to resist a dynamic crash pulse, 
which it believed to be triangular with a 250 millisecond duration and 
an 8g peak, plus the impact of representative unrestrained occupants 
seated in a second row directly behind the test article. Simula noted 
that including a dynamic crash pulse in the longitudinal direction 
(parallel to the normal direction of train travel) provides a 
simulation of a typical train-to-train collision in which the seat 
would be involved. According to Simula, a dynamic crash pulse is more 
representative of the crash environment than the shock pulse defined by 
a peak acceleration only. Simula explained that the crash pulse is 
typically specified for seat testing in the aircraft and automotive 
industries. Specifying a crash pulse in essence specifies the operation 
of the test equipment. FRA notes that the seat testing proposed in the 
NPRM (and required in the final rule) is similar to such testing 
performed in the aircraft and automotive industries, and FRA expects 
that the actual testing of rail equipment will utilize the same test 
equipment as used in these other industries. FRA has, therefore, 
specified a crash pulse in this paragraph.
    FRA notes that at the Working Group meeting in December 1997, APTA 
explained that it could not agree then to change any of the proposed 
seat testing requirements, and that it was conducting research in these 
matters. However, FRA does not believe the inclusion of a crash pulse 
in this paragraph and elimination of the 25 mph impact speed to 
significantly alter the required strength of the seats from that 
proposed in the NPRM. In fact, the original proposal was potentially 
more rigorous than that required under this final rule.
    Simula additionally commented that each crash test dummy used to 
impact the seat back in testing the strength of the seat must be 
instrumented, and that the injury data gathered from each dummy then 
meet specified injury criteria. Simula explained that, like automotive 
and transport aircraft testing, rail seat design requirements

[[Page 25615]]

should include the use of crash test dummies to measure specified loads 
and accelerations for meeting specified injury criteria. FRA believes 
that Simula's comment is significant and wholly appropriate for 
consideration in the second phase of rulemaking on passenger equipment 
safety standards. In this regard, FRA notes that Simula references in 
its comments on proposed Sec. 238.435 (the Tier II counterpart to this 
section) the use of a future APTA standard to specify occupant injury 
criteria and other parameters. Accordingly, resolution of this issue in 
the second phase of the rulemaking should benefit from APTA's efforts 
in this area.
    In its comments on the NPRM, Simula also suggested modifying the 
rule so that the requirements of paragraph (a) apply to each seat 
assembly and specify that each seat assembly not separate from its 
mountings or have any of its parts detach. FRA believes that Simula's 
suggested modification restates the requirements of this section, in 
effect, and FRA does not find it necessary to change the explicit 
wording of the rule text. Simula further recommended specifying in the 
rule that in sled testing the strength of the seat attachment to the 
car, the attachment that is tested must be representative of the actual 
structure and attachment. FRA agrees with Simula that testing a seat 
and its attachment of a design or structure not representative of that 
actually used in a passenger car would necessarily fail to demonstrate 
that the actual seat and its attachment comply with the requirements of 
the rule. FRA has made this explicit in paragraph (g). Of course, any 
tests of passenger equipment or components of a design or structure not 
representative of an actual rail vehicle or actual components subject 
to the requirements of this part would necessarily fail to demonstrate 
that such actual vehicle or components comply with the requirements of 
this part--whether or not FRA has made this explicit in the rule text.
    Paragraph (b) requires that overhead storage racks provide 
longitudinal and lateral restraint for stowed articles to minimize the 
potential for these objects to come loose and injure train occupants. 
Further, to prevent overhead storage racks from breaking away from 
their attachment points to the car body, these racks shall have an 
ultimate strength capable of resisting individually applied 
accelerations of 8g longitudinally, 4g vertically, and 4g laterally 
acting on the mass of the luggage stowed. This mass shall be specified 
by each railroad. In commenting on the NPRM, the BRC did not believe 
that a railroad should be allowed to specify the mass of the luggage 
stowed for purposes of this requirement. However, each railroad is in 
the best position to determine the mass of the luggage that can be 
stowed in the stowage area.
    Paragraph (c) requires that all other interior fittings in a 
passenger car be attached to the car body with sufficient strength to 
withstand individually applied accelerations of 8g longitudinally, 4g 
vertically, and 4g laterally acting on the mass of the fitting. FRA 
believes the attachment strength requirements for seats, overhead 
storage racks, and other interior fittings will help reduce the number 
of injuries to occupants in passenger cars.
    Passenger car occupants may also be injured by protruding objects, 
especially if the occupants fall or are thrown against such objects 
during a train collision or derailment. As a result, FRA is requiring 
in paragraph (d) that, to the extent possible, all interior fittings in 
a passenger car, except seats, shall be recessed or flush-mounted. 
Fittings that are recessed or flush-mounted do not protrude above 
interior surfaces and thereby would help to minimize occupant injuries.
    Paragraph (e) is a general, common sense prohibition against sharp 
edges and corners in a locomotive cab and a passenger car. Just as FRA 
is concerned about protruding objects, these surfaces could also injure 
passenger train occupants. If sharp edges and corners cannot be avoided 
in the equipment design, they should be padded to mitigate the 
consequences of occupant impacts.
    The requirements of paragraph (f) apply to each floor-mounted seat 
in a locomotive cab as well as to any seat provided for an employee 
regularly assigned to occupy the cab. FRA is requiring the seat 
attachment to have an ultimate strength capable of resisting the loads 
due to individually applied accelerations of 8g longitudinally, 4g 
vertically, and 4g laterally acting on the combined mass of the seat 
and its occupant. When turned backwards during a collision, seats with 
head rests that are designed to this requirement can effectively 
restrain crewmembers and minimize or prevent injuries.
    In the NPRM, FRA had proposed that the requirements of this section 
apply to each floor-mounted seat provided exclusively for a crewmember 
assigned to occupy the cab of a locomotive. See 62 FR 49806. Simula, in 
its comments on the NPRM, recommended that the requirements of this 
section not be limited to floor-mounted seats and instead suggested 
substituting the words ``car-mounted seat.'' Simula expressed concern 
that railroads may use wall-mounted seats for crewmembers that do not 
comply with these requirements. Yet, as noted below in the discussion 
of Sec. 238.445(g) (this provision's Tier II counterpart), Bombardier 
observed that an additional seat--commonly a flip-up or a shelf-type 
seat--is in many cases provided in the cab for a train crewmember who 
is not normally in the cab. Bombardier believed these seats should not 
be subjected to the same requirements as for the train operators' 
seats.
    FRA has revised paragraph (f) so that the requirements of this 
provision apply to floor-mounted seats and each seat provided for a 
crewmember regularly assigned to the locomotive cab. FRA recognizes 
that flip-down and other auxiliary seats are provided in locomotive 
cabs for the temporary use of employees not regularly assigned to the 
cab, such as a supervisor of locomotive engineers conducting an 
operational monitoring test of the engineer. These seats do not need to 
meet the requirements of this section.
    In further commenting on this paragraph, Simula recommended 
specifying that the seat resist a triangular crash pulse of a 250 msec 
duration having an 8g peak. However, FRA believes that the static 8g 
load requirement proposed in the NPRM is a rational option, and has 
retained it in the final rule. As train operators' seats are not likely 
to be hit from behind, they are not likely to experience the impact 
forces that passenger seats experience. Adopting Simula's comment would 
result in a more expensive test without a corresponding increase in 
safety.
    Simula additionally commented that, in conducting a test of the 
seat, the attachment of the seat to the sled fixture must be 
representative of the actual structure and attachment. FRA has adopted 
this comment, as noted above, in paragraph (g). Testing a seat and its 
attachment of a design or structure not representative of that actually 
used in a locomotive cab would necessarily fail to demonstrate that the 
actual seat and its attachment comply with the requirements of the 
rule.
Section 238.235  Doors
    This section contains the requirements for exterior doors on 
passenger cars. These doors are the primary means of egress from a 
passenger train.
    Paragraph (a) requires that by December 31, 1999, each powered, 
exterior side door in a vestibule that is partitioned from the 
passenger

[[Page 25616]]

compartment of a passenger car shall have a manual override device that 
is: capable of releasing the door to permit it to be opened without 
power from inside the car; located adjacent to the door which it 
controls; and designed and maintained so that a person may readily 
access and operate the override device from inside the car without 
requiring the use of a tool or other implement. Passenger cars subject 
to this requirement that are not already equipped with such manual 
override devices must be retrofitted accordingly. FRA notes that a 
vestibule is not partitioned from the passenger compartment of a 
passenger car solely by the presence of any windscreen which extends no 
more than one-quarter of the width across the car from the wall to 
which it is attached.
    The requirements in paragraph (a) originally arose from the NTSB's 
emergency safety recommendations (R-96-7) as part of its investigation 
of the passenger train collision in Silver Spring, Maryland, on 
February 16, 1996. In the NPRM, FRA fully set out these emergency 
safety recommendations and FRA's response. See 62 FR 49734-5. As 
announced following its full investigation of the Silver Spring, 
Maryland passenger train collision, and stated here in particular among 
its final recommendations, the NTSB recommended that FRA:

    Require all passenger cars to have easily accessible interior 
emergency quick-release mechanisms adjacent to exterior passageway 
doors and take appropriate emergency action to ensure corrective 
action until these measures are incorporated into minimum passenger 
car safety standards.

(R-97-14) (See NTSB/RAR-97/02)
    FRA received a number of comments as to the date by which passenger 
cars must be equipped with manual overrides to open exterior, side 
doors as specified in this section. In its comments on the NPRM, Septa 
asked that the date be set three years after the effective date of the 
final rule, citing funding reasons. Metra commented that the date be 
set four to six years from the effective date of the final rule. FRA 
notes that this comment may have been based on the assumption that the 
rule requires manual override devices to be installed on the exterior 
of existing passenger cars, which this section does not. The UTU 
commented that the proposal in the NPRM afforded railroads more than 
enough time to comply with the requirement, considering their advance 
notice of this issue. Finally, in its comments on the NPRM, the NTSB 
stated that a two-year period to accomplish the equipping of passenger 
cars with the manual override feature is too long.
    Having considered the comments submitted, FRA has decided to 
require that compliance with this section be effected by December 31, 
1999. FRA understands that a majority of the passenger cars are already 
in compliance with the rule as proposed. FRA recognizes that some 
entities may not be able to accomplish the total retrofit within the 
required time, to the extent their budget and acquisition process can 
only commence once the rule becomes final. However, these are self-
imposed constraints that should not arrest progress in the industry as 
a whole. Any entity faced with such constraints should seek a waiver.
    Paragraph (b) also provides that each powered, exterior side door 
have a manual override feature the same as that required in paragraph 
(a) for existing equipment, except that the manual override must also 
be capable of opening the door from outside the car. This requirement 
is intended to provide quick access to a passenger car by emergency 
response personnel, and represents the consensus recommendation of the 
Working Group. Paragraph (b) applies to each such door on a passenger 
car ordered on or after September 8, 2000, or placed in service for the 
first time on or after September 9, 2002. Paragraph (b)'s requirements 
for a minimum number and dimension of side doors on a passenger car is 
discussed earlier in the preamble.
    Paragraph (c) permits a railroad to protect a manul override device 
with a cover or screen to safeguard such devices from casual or 
inadvertent use. The rule requires that such cover and screens be 
capable of being removed by passengers, however.
    Paragraph (d) is reserved for door marking and operating 
instruction requirements. These requirements are addressed in the final 
rule on passenger train emergency preparedness (49 CFR part 239), 
specifically Sec. 239.107. See 63 FR 24630; May 4, 1998.
Section 238.237  Automated Monitoring
    This section requires on or after November 8, 1999 an operational 
alerter or a deadman control in the controlling locomotive of each 
passenger train operating in other than cab signal, automatic train 
control, or automatic train stop territory. This section further 
requires that such locomotives ordered on or after September 8, 2000, 
or placed in service for the first time on or after September 9, 2002, 
must be equipped with a working alerter. As a result, the use of a 
deadman control alone on these new locomotives would be prohibited.
    An alerter will initiate a penalty brake application if it does not 
receive the proper response from the engineer. Likewise, a deadman 
control will initiate a penalty brake application if the engineer fails 
to maintain proper contact with the device. The Working Group discussed 
establishing specific setting requirements for alerters or deadman 
controls based on maximum train speed and the capabilities of the 
signal system. This discussion led to the conclusion that settings 
should be left to the discretion of individual railroads as long as 
they document the basis for the settings that they select. If the 
device fails en route, the rule requires a second person qualified on 
the signal system and brake application procedures to be stationed in 
the cab or the engineer must be in constant radio communication with a 
second crewmember until the train reaches the next terminal. This is 
intended to allow the train to complete its trip with the device's 
function of keeping the operator alert taken over by another member of 
the crew.
    Alerters are safety devices intended to verify that the engineer 
remains capable and vigilant to accomplish the tasks that he or she 
must perform. Equipping passenger locomotives with an alerter is 
current industry practice. These devices have proven themselves in 
service, and the requirement will not impose an additional cost on the 
industry.
    In the final rule, FRA has clarified the procedures a railroad must 
follow if the alerter or deadman control fails en route. In addition to 
the requirements of paragraph (d)(1), under paragraph (d)(2)(i) a tag 
shall be prominently displayed in the locomotive cab to indicate that 
the alerter or deadman control is defective, until such device is 
repaired. Further, under paragraph (d)(2)(ii), when the train reaches 
its next terminal or the locomotive undergoes its next calender day 
inspection, whichever occurs first, the alerter or deadman control 
shall be repaired or the locomotive shall be removed as the controlling 
locomotive in the train.
Subpart D--Inspection, Testing, and Maintenance Requirements of Tier I 
Passenger Equipment
Section 238.301  Scope
    This subpart contains the requirements regarding the inspection, 
testing, and maintenance of all types of passenger equipment operating 
at speeds of 125 mph or less. This subpart is intended to address both 
MU locomotives and push-pull equipment.

[[Page 25617]]

This subpart includes the requirements for the inspection, testing, and 
maintenance of Tier I passenger equipment brake systems as well as the 
other mechanical and electrical safety components of Tier I passenger 
equipment.
Section 238.303  Exterior Calendar Day Mechanical Inspection of 
Passenger Equipment
    This section contains the requirements for performing exterior 
calendar day mechanical inspections on passenger equipment and is 
patterned after a combination of the current calendar day inspection 
required for locomotives under the Railroad Locomotive Safety Standards 
and the pre-departure inspection for freight cars under the Railroad 
Freight Car Safety Standards. See 49 CFR 229.21 and 215.13, 
respectively. FRA intends for the exterior calendar day mechanical 
inspection to generally apply to all passenger cars and all unpowered 
vehicles used in passenger trains (which includes, e.g., not only 
coaches, MU locomotives, and cab cars but also any other rail rolling 
equipment used in a passenger train). However, paragraph (a) has been 
slightly modified to clarify that an inspection of secondary braking 
systems must be conducted on all passenger equipment, which includes 
all locomotives. A mechanical safety inspection of freight cars has 
been a longstanding Federal safety requirement, and FRA believes that 
the lack of a similar requirement for passenger equipment creates a 
serious void in the current Federal railroad safety standards.
    As noted in the general preamble discussion, FRA has made minor 
changes and clarifications to the exterior calendar day mechanical 
inspection that was proposed in the 1997 NPRM. In paragraph (d) of this 
final rule, FRA is explicitly stating that the exterior mechanical 
inspection is to be performed to the extent possible without uncoupling 
the trainset and without placing the equipment over a pit or on an 
elevated track. This explicit statement has been added in response to 
APTA's concerns regarding what would constitute proper performance of 
these inspections. It was never FRA's intent to require this inspection 
to be conducted in such a manner. FRA intended the inspection to be 
very similar to the freight car safety inspection currently required 
pursuant to part 215.
    FRA also recognizes that certain items contained in the proposed 
exterior mechanical inspection could not have been easily inspected 
without proper shop facilities. Therefore, FRA has moved some of the 
exterior mechanical inspection requirements related to couplers and 
trucks to the periodic mechanical inspection requirements as these 
periodic inspections will likely be performed at locations with 
facilities available that are more conducive to inspecting the specific 
components. The specific items which have been moved to the periodic 
mechanical inspection requirements include: all trucks are equipped 
with a device or securing arrangement to prevent the truck and car body 
from separating in case of derailment; all center castings on trucks 
are not cracked or broken; the distance between the guard arm and the 
knuckle nose is not more than 5\1/8\ inches on standard type couplers 
(MCB contour 1904) or more than 5\5/16\ inches on D&E couplers; the 
free slack in the coupler or drawbar not absorbed by friction devices 
or draft gears is not more than \1/2\ inch; and the draft gear is not 
broken. The changes made in this final rule were discussed with the 
Working Group at the December 15-16, 1997 meeting.
    Paragraph (a) requires that each passenger car and each unpowered 
vehicle used in a passenger train receive an exterior mechanical safety 
inspection at least once each calendar day that the equipment is placed 
in service except under the circumstances described in paragraph (f). 
As noted above, this paragraph also recognizes that the requirement 
contained in paragraph (e)(15) that all secondary braking systems on 
all passenger equipment are in operating mode and do not have any known 
defects. FRA has amended this requirement from that proposed in the 
1997 NPRM, which proposed to require that all secondary braking systems 
be working (62 FR 49808), in order to acknowledge that it is impossible 
to ascertain whether some secondary braking systems, such as dynamic 
brakes, are working unless the equipment is in use. Thus, FRA has 
modified the language of the requirement to ensure that all secondary 
braking systems are capable of working when released from the exterior 
mechanical inspection. Paragraph (a) and paragraph (e)(15) have also 
been modified to accurately reflect FRA's intent to ensure that all 
secondary braking systems are inspected. The requirements for an 
exterior calendar day mechanical inspection are generally applicable 
only to passenger cars and other unpowered vehicles used in a passenger 
trains. Thus, except for MU locomotives and cab cars, other locomotives 
would not fall within the requirements of this section. However, many 
locomotives contain secondary braking systems such as dynamic brakes. 
Thus, in order to effectuate FRA's intent that these secondary braking 
systems be inspected, paragraph (e)(15) has been modified to clarify 
that it is applicable to all passenger equipment, which includes all 
locomotives. Consequently, FRA intends for the secondary braking 
systems on all locomotives to be inspected and that it be known that 
those systems are in operating mode and do not contain any known 
defects.
    Paragraph (b) is also a new provision being added to this final 
rule in order to address the inspections of vehicles that are added to 
a passenger train while en route. FRA is modifying the Class I brake 
test and exterior calendar day mechanical inspection requirements to 
ensure the proper operation of all cars added to a train while en 
route. In paragraph (b) FRA is requiring the performance of an exterior 
mechanical inspection on each car added to a passenger train at the 
time it is added to the train unless documentation is provided to the 
train crew that an exterior mechanical inspection was performed on the 
car within the previous calendar day. FRA is adding this requirement in 
order to address the concerns raised by various labor representatives 
that no provisions were provided in the 1997 NPRM to address 
circumstances when cars are added to an en route train. FRA believes 
that the added provision will ensure the integrity of the mechanical 
components on every car added to an existing train and should not be a 
burden for railroads since cars are generally added to passenger trains 
at major terminals with the facilities and personnel available for 
conducting such inspections. Furthermore, the inspection requirements 
contained in this paragraph are very similar to what is currently 
required when a freight car is added to a train while en route. See 49 
CFR Sec. 215.13.
    Paragraph (c) requires that exterior calendar day mechanical 
inspections be performed by a qualified maintenance person. FRA 
believes the combination of a daily Class I brake test and a mechanical 
safety inspection performed by highly qualified personnel is a key to 
safer passenger railroad operations. Such a practice will most likely 
detect and correct equipment problems before they become the source of 
an accident or incident resulting in personal injuries or damage to 
property. As noted in previous discussions, FRA does not intend to 
provide any special provisions for weekend operations with regard to 
conducting calendar day mechanical inspections by QMPs as suggested in 
the

[[Page 25618]]

comments submitted by some APTA representatives. The rationale for 
requiring daily mechanical attention by highly qualified inspectors, a 
proposition generally accepted by Working Group members, appears to 
apply equally to weekend periods. In fact, based on FRA's experience, 
equipment used on weekends is generally used more rigorously than 
equipment used during weekday operations.
    At present, only one commuter operation (Metra) has raised 
significant concerns regarding weekend operations. Although there is no 
specific data suggesting that existing weekend operations on Metra have 
created a safety hazard, FRA has found it virtually impossible to draft 
and justify provisions providing limited flexibility for Metra that do 
not create potential loopholes that could be abused by other passenger 
train operations that have not had the apparent safety success of 
Metra. Moreover, based on FRA's independent investigation of Metra's 
operation, it is believed that the impact of this final rule on Metra's 
weekend operations will be significantly less than that indicated in 
APTA's written comments and originally perceived by Metra. FRA believes 
that most of the personnel needed by Metra to conduct its weekend 
operations in accordance with this final rule are available to Metra or 
its contractors and that minor adjustments could be made to its weekend 
operations that might avoid significant new expense. As the concerns 
regarding weekend operations appear to involve just one commuter 
operation and because the precise impact on that operation is not known 
or available at this time, FRA believes that the waiver process would 
be the best method for handling the concerns raised by that operator. 
This would afford FRA an opportunity to provide any relief that may be 
warranted based on the specific needs and the safety history of the 
individual railroad without opening the door to potential abuses by 
other railroads that are not similarly situated.
    Paragraph (e) identifies the components that are required to be 
inspected as part of the exterior daily mechanical safety inspection 
and provides measurable inspection criteria for the components. The 
railroad is required to ascertain that each passenger car, and each 
unpowered vehicle used in a passenger train conforms with the 
conditions enumerated in paragraph (e) and that all passenger equipment 
conforms with the requirement contained in paragraph (e)(15). Deviation 
from any listed condition makes the passenger car or unpowered vehicle 
defective if it is in service. The Working Group members generally 
agreed that the components contained in this section represent valid 
safety-related components that should be frequently inspected by 
railroads. However, members of the Working Group had widely differing 
opinions regarding the criteria to be used to inspect these components. 
FRA selected and has retained inspection criteria based on the 
locomotive calendar day inspection and the freight car safety pre-
departure inspection required by 49 CFR parts 229 and 215, 
respectively. FRA believes that, at a minimum, passenger cars should 
receive an inspection which is at least equivalent to that received by 
locomotives and freight cars.
    As discussed in the 1997 NPRM, FRA intends for the daily mechanical 
inspection to serve as the time when the railroad repairs defects that 
occur en route. Thus, this section generally requires that safety 
components not in compliance with this part be repaired before the 
equipment is permitted to remain in or return to passenger service. 
(See Sec. 238.9 for a discussion of the prohibitions against using 
passenger equipment containing defects; and Secs. 238.15 and 238.17 for 
a discussion of movement of defective equipment for purposes of repair 
or sale). The purpose of the defect reporting and tracking system 
required in Sec. 238.19 is to have the mechanical forces make all 
necessary safety repairs to the equipment before it is cleared for 
another day of operation. In other words, FRA generally intends for the 
flexibility to operate defective equipment in passenger service to end 
at the calendar day mechanical inspection.
    In paragraph (e)(15), FRA has modified the requirements regarding 
secondary braking systems to clarify that secondary braking systems 
must be in operating mode and contain no known defective conditions. 
FRA has also included provisions to address the handling of defective 
dynamic brakes in order to specifically establish restrictions on the 
movement of equipment containing this type of defective secondary brake 
and to recognize the concerns raised by several commenters regarding 
the importance that these secondary brakes have in the operation of 
passenger equipment. FRA agrees that in many circumstances it is 
desirable to have operative dynamic brakes in order to prevent thermal 
stress to the wheels, which has the potential of occurring if certain 
passenger trains are operated for extended periods without dynamic 
brakes and compensating train control practices are not used. In 
developing the requirements for handling defective dynamic brakes, FRA 
has generally incorporated the current best practices of the industry.
    This paragraph draws a distinction between dynamic brakes on MU 
locomotives and dynamic brakes on conventional locomotives, treating 
each slightly differently due to the safety implications involved in 
each type of operation. FRA intends to require that MU locomotives 
equipped with dynamic brakes found not to be in operating mode or 
containing a defective condition which prevents the proper operation of 
the dynamic brakes be handled in the same manner as a running gear 
defect pursuant to Sec. 238.17. Thus, MU locomotives found with 
defective dynamic brakes at the exterior calendar day mechanical 
inspection must have the dynamic brakes repaired prior to continuing in 
passenger service. FRA further intends that MU locomotives which 
experience a dynamic brake defect while en route be handled the same as 
a running gear defect pursuant to Sec. 238.17. Thus, the locomotive 
would have to be inspected by a QMP and be properly tagged at the 
location it is found to be defective.
    The requirements related to conventional locomotives found with 
dynamic brakes not to be in operating mode or containing a defective 
condition which prevents the proper operation of the dynamic brakes are 
somewhat less stringent than the movement requirements placed on MU 
locomotives. In these cases, the locomotive may remain in passenger 
service provided that the unit is properly tagged, each locomotive 
engineer taking charge of the train is informed as to the status of the 
locomotive, and the locomotive's dynamic brakes are repaired within 
three calendar days of being found defective.
    FRA has treated MU and conventional locomotives slightly 
differently for several reasons. Past history has shown that failure to 
have operative dynamic brakes in MU operations increases the potential 
of causing thermal stress to the wheels of the vehicles to a much 
greater extent than inoperative dynamic brakes in conventional 
locomotive operations. MU locomotive operations generally tend to have 
a greater number of station stops, requiring the use of the brakes, 
than operations where conventional locomotives are utilized and, thus, 
the potential for thermal stress to the wheels is increased. 
Furthermore, operations utilizing conventional

[[Page 25619]]

locomotives tend to operate for extended distances across the country 
and, thus, are further from locations where repairs to the dynamic 
brakes can be properly repaired. Therefore, these operations may need 
extra time to get a defective locomotive to a particular location for 
repair. Furthermore, FRA believes that the tagging and notification 
requirements imposed on conventional locomotives reduce the potential 
of an engineer's undue reliance on a secondary brake system which is 
not available. Finally, the handling requirements contained in this 
paragraph are consistent with the current practices within the industry 
and should have a minimal impact on passenger operations.
    Paragraph (f) contains a narrow exception which allows long-
distance intercity passenger trains that miss a scheduled exterior 
calendar day mechanical inspection due to a delay en route to continue 
in passenger service to the location where the inspection was scheduled 
to be performed. At that point, a calendar day mechanical inspection 
must be performed prior to returning the equipment to service of any 
kind. This flexibility applies only to the mechanical safety 
inspections of coaches. FRA does not intend to relieve the railroad of 
the responsibility to perform a locomotive calendar day inspection as 
required by 49 CFR part 229.
    Paragraph (g) contains certain minimal recordkeeping requirements 
related to the performance of the exterior calendar day mechanical 
inspection provisions. FRA believes that proper and accurate 
recordkeeping is the cornerstone of any inspection process and is 
essential to ensuring the performance and quality of the required 
inspections. Without such records the inspection requirements would be 
difficult to enforce. Although recordkeeping was discussed in the 
Working Group and FRA believes it to be an integral part of any 
inspection requirement, FRA inadvertently omitted any such requirements 
in the NPRM specifically related to mechanical inspections. This 
omission was brought to FRA's attention through verbal and written 
comments provided by various interested parties and has now been 
corrected. This paragraph specifically permits a railroad to maintain 
the required records either in writing or electronically, and the 
record may be part of a single master report covering an entire group 
of cars. Whatever format the railroad elects to use to record the 
information, it must contain the specific information listed in this 
paragraph.
    Paragraph (h) specifies an additional contingent component of the 
calendar day exterior mechanical inspection. If a car requiring a 
single car test is moved in a train carrying passengers or available to 
carry such passengers to a place where the test can be performed, then 
the single car test must be performed before or during the exterior 
calendar day mechanical inspection. This provision has been retained 
from the 1997 NPRM. The comments submitted by APTA suggested that the 
word ``next'' be inserted prior to ``calendar day mechanical 
inspection.'' FRA did not make this change as it would provide greater 
latitude than FRA intended. Paragraph (h) applies to equipment that is 
already in transit from the location where repairs were conducted that 
required the performance of a single car test. Thus, in order to remain 
consistent with the provisions contained in Sec. 238.311(f) such cars 
must receive the single car test prior to, or as part of, the car's 
exterior calendar day mechanical inspection. Although FRA recognizes 
the concerns of labor representatives with regard to this provision, 
FRA believes that it is necessary to provide the railroads the 
flexibility to make the necessary repairs to a piece of equipment and 
then move it to a location which is most conducive to performing the 
required single car test. FRA currently permits such flexibility and is 
not aware of any significant safety problems that have arisen as a 
result of such a practice. However, in order to ensure the safe 
movement of such equipment, FRA has added various inspection and 
tagging requirements in Sec. 238.311(f) that must be performed prior to 
hauling such equipment to another location for the performance of a 
single car test. (See section-by-section discussion of Sec. 238.311.)
Section 238.305  Interior Calendar Day Mechanical Inspection of 
Passenger Cars
    This section contains the requirements for the performance of 
interior mechanical inspections on passenger cars (which includes, 
e.g., passenger coaches, MU locomotives, and cab cars) each calendar 
day that the equipment is used in service except under the 
circumstances described in paragraph (d). Unlike the exterior calendar 
day mechanical inspection, FRA in paragraph (b) of this section permits 
the interior inspections of passenger cars to be performed by 
``qualified persons,'' individuals qualified by the railroad to do so. 
Thus, these individuals need not meet the definition of a ``qualified 
maintenance person.''
    As noted in the 1997 NPRM, FRA's original position was to require 
the interior inspections to be performed by qualified maintenance 
persons. However, after several discussions with members of the Working 
Group and several other representatives of passenger railroads, FRA 
determined that the training and experience typical of qualified 
maintenance persons is not necessary and often does not apply to 
inspecting interior safety components of passenger equipment. In 
addition, the flexibility created by permitting someone less qualified 
than a qualified maintenance person can reduce the cost of performing 
the mechanical safety inspection since the most economical way to 
accomplish the mechanical inspection is to combine the exterior 
inspection with the Class I brake test and then have a crewmember 
inspect on arrival at the final terminal or have a train coach cleaner 
combine the interior coach inspection with coach cleaning.
    Paragraph (c) lists various components that are required to be 
inspected as part of the interior calendar day mechanical safety 
inspection. As a minimum, FRA requires that the following components be 
inspected: trap doors; end and side doors; manual door releases; safety 
covers, doors and plates; vestibule step lighting; and safety-related 
signs and instructions. Consistent with the discussions regarding the 
movement of defective equipment with non-running gear defects, all en 
route defects and all noncomplying conditions under this section must 
be repaired at the time of the daily interior inspection or the 
equipment would be required to be locked-out and empty in order to be 
placed or remain in passenger service with the exception of a defect 
under Sec. 238.305(c)(5). (See Sec. 238.9 for a discussion of the 
prohibitions against using passenger equipment containing defects, and 
Sec. 238.17 for a discussion of the movement of defective equipment for 
purposes of repair.)
    It should be noted that two of the items contained in paragraph (c) 
have been slightly modified in order to clarify FRA's intent and to 
ensure the safety of the traveling public. Paragraph (c)(5), regarding 
the continuing use of a car with a defective door, has been modified by 
the addition of subparagraph (c)(5)(iii), which requires that at least 
one operative and accessible door be available on each side of the 
vehicle in order for the car to continue to be used in passenger 
service. FRA believes the addition of this requirement is necessary to 
ensure that passengers have adequate egress from the equipment should 
an emergency occur.

[[Page 25620]]

Paragraph (c)(8) has also been modified to clarify that the inspection 
of the manual door releases, as proposed in the 1997 NPRM, need only be 
made to the extent necessary to verify that all D rings, pull handles, 
or other means to access manual door releases are in place based on a 
visual inspection. FRA recognizes that inspection of the actual manual 
door release would be overly burdensome, costly, and unnecessary due to 
the relative reliability of such devices. It should also be noted that 
the final rule contains a new paragraph (c)(9) which requires that the 
interior mechanical inspection ensure that all required emergency 
equipment, including fire extinguishers, pry bars, auxiliary portable 
lighting, and first aid kits be in place. These items are required 
pursuant to the regulations on passenger train emergency preparedness 
contained at 49 CFR part 239, and FRA believes that the inspection to 
ensure the presence of such equipment is appropriate under this 
section.
    Paragraphs (d) and (e) contain provisions which are identical to 
certain requirements pertaining to exterior calendar day mechanical 
inspections. Paragraph (d) allows long-distance intercity passenger 
trains that miss a scheduled calendar day mechanical inspection due to 
a delay en route to continue in passenger service to the location where 
the inspection was scheduled. Paragraph (e) contains the recordkeeping 
requirements related to the performance of interior calendar day 
mechanical inspections. FRA believes that proper and accurate 
recordkeeping is the cornerstone of any inspection process and is 
essential to ensuring the performance and quality of the required 
inspections. Without such records the inspection requirements would be 
difficult to enforce. Although recordkeeping was discussed in the 
Working Group and FRA believes it to be an integral part of any 
inspection requirement, FRA inadvertently omitted any such requirements 
in the 1997 NPRM specifically related to mechanical inspections. This 
omission was brought to FRA's attention through verbal and written 
comments provided by various interested parties and has been corrected. 
This paragraph specifically permits a railroad to maintain the required 
records either in writing or electronically, and the record may be part 
of a single master report covering an entire group of cars. Whatever 
format the railroad elects to use to record the information, it must 
contain the specific information listed in this paragraph.
Section 238.307  Periodic Mechanical Inspection of Passenger Cars and 
Unpowered Vehicles Used in Passenger Trains
    This section contains the requirements for performing periodic 
mechanical inspections on all passenger cars and all unpowered vehicles 
used in passenger trains. Paragraph (b) makes clear that the periodic 
mechanical inspections required under this section are to be performed 
by a qualified maintenance person as defined in Sec. 238.5. In the 1997 
NPRM, FRA proposed that the following components be inspected for 
proper operation and repaired, if necessary, as part of the periodic 
maintenance of the equipment: emergency lights; emergency exit windows; 
seats and seat attachments; overhead luggage racks and attachments; 
floor and stair surfaces; and hand-operated electrical switches. See 62 
FR 49808-09. FRA further proposed that such periodic inspections be 
performed every 180 days. As noted above, FRA, with the intent of 
requiring their inspection on a periodic basis, removed certain items 
previously proposed in the exterior calendar day mechanical inspection 
as they could not be easily inspected without proper shop facilities.
    After a review of the industry's practices regarding the 
performance of periodic mechanical-type inspections, FRA believes that 
some of the items removed from the exterior calendar day mechanical 
inspection as well as some of the items previously proposed in the 180 
day periodic mechanical inspection should be and are currently 
inspected on a more frequent basis by the railroads. As it is FRA's 
intent in this proceeding to attempt to codify the current best 
practices of the industry, FRA believes that the current intervals for 
inspecting certain components should be maintained. Consequently, FRA 
is modifying the time interval for conducting periodic mechanical 
inspections to include a 92-day and a 368-day periodic inspection.
    In paragraph (c), FRA requires the periodic inspection on a 92-day 
basis of certain mechanical components previously proposed as part of 
the exterior calendar day mechanical inspection, as well as an 
inspection of floors, passageways, and switches. The mechanical 
components to be inspected that were previously included as part of the 
calendar day mechanical inspection include verification that all trucks 
are equipped with a device or securing arrangement to prevent the truck 
and car body from separating in case of derailment and that all center 
castings on trucks are not cracked or broken. FRA will also require a 
92-day inspection of emergency lighting systems as they are critical to 
the safety of passengers in the event of an accident or derailment. FRA 
is adding an inspection of the roller bearings to the 92-day 
inspection. Although this component was inadvertently left out of the 
NPRM, FRA believes that roller bearings are an integral part of the 
mechanical components and must be part of any mechanical inspection 
scheme. Furthermore, several labor commenters recommended inspections 
criteria similar to that contained in 49 CFR Part 215, which 
specifically addresses the condition of roller bearings. See 49 CFR 
Sec. 215.115. As roller bearings are best viewed in a shop facility 
context, FRA is adding the inspection of this component to the 92-day 
periodic mechanical inspection which is consistent with the current 
practices of the industry. FRA is also adding the general conditions 
and components previously proposed in Sec. 238.109(b) (62 FR 49801-802) 
to the 92-day periodic mechanical inspection contained in this 
paragraph. As the conditions previously proposed in Sec. 238.109(b) 
were intended to ensure that the railroads had an inspection scheme in 
place to ensure that all systems and components of the equipment are 
free of conditions that endanger the safety of the crew, FRA believes 
that a specific inspection interval is better suited to address the 
general condition of the equipment and ensure the safety of the riding 
public and railroad employees. This paragraph also requires that all of 
the components inspected as part of the exterior and interior calendar 
day inspection be inspected at the 92-day periodic inspection.
    Paragraph (d) of this section retains a semi-annual periodic 
inspection for certain components as proposed in the 1997 NPRM. In the 
NPRM, FRA proposed a 180-day periodic inspection, but in order to 
remain consistent with the 92-day inspection scheme this paragraph 
requires a 184-day periodic inspection of certain mechanical 
components. These include: seats; luggage racks; beds; and emergency 
windows. This paragraph also contains an added requirement related to 
the inspection of the couplers; couplers were removed from the calendar 
day inspection and have been inserted in the 184-day inspection scheme. 
FRA is placing the coupler inspection at this interval rather than at 
the 92-day interval in order to reduce the amount of coupling and 
uncoupling of

[[Page 25621]]

equipment that will be required. In paragraph (e) FRA has extended the 
inspection interval related to manual door releases over that which was 
proposed in the 1997 NPRM. Due to the general reliability of these 
devices and because they are partially inspected on a daily basis, FRA 
believes that an annual inspection of the releases will ensure their 
proper operation. Thus, the final rule requires an inspection of the 
manual door releases every 368 days.
    In paragraph (b) FRA has attempted to make clear that, although FRA 
has established certain periodic inspection intervals in order to 
establish a default interval, FRA will allow railroads to develop 
alternative intervals for performing such inspections for specific 
components or equipment based on a more quantitative reliability 
assessment completed as part of their system safety programs. FRA 
expects that railroads will utilize reliability-based maintenance 
programs as appropriate, given this opportunity to do so. As successful 
reliability based maintenance programs are dynamic, it is expected 
that, in the process of defining and documenting the reliable use of 
equipment or specific components, over time, continued assessments may 
indicate a need to increase or decrease inspection intervals. FRA will 
only permit lengthened inspection intervals beyond the default 
intervals when such changes are justified by a quantitative reliability 
assessment. The previously described inspection intervals are based on 
sound but limited information provided to FRA that FRA believes 
represents a combination of operating experience, analytical analyses, 
knowledge and intuition. FRA expects that railroads will collect and 
respond to additional data throughout the operating life of the 
equipment.
    FRA believes that the approach taken to identify the stated default 
inspection intervals contained in this section combined both 
qualitative, or subjective, judgement with available quantitative 
information. FRA believes this approach is appropriate for the 
conservative default strategy defined. However, FRA recognizes that 
this mixed approach does not yield a quantified level of equipment 
reliability. The reliability of a system or component is defined as the 
probability that, when operating under stated environmental conditions, 
the system or component will perform its intended function adequately 
for a specified interval of time, number of cycles of operation, or 
number of miles. Reliability is a quantitative measure. FRA believes 
that quantified, high levels of reliability are desired for the 
continued safe operation of passenger equipment. Therefore, FRA 
encourages equipment owners to perform additional sensitivity analyses 
to determine which components or equipment has the greatest potential 
for introducing risk, thus requiring the most careful monitoring to 
increase reliability while reducing the consequences of failure. FRA 
believes that, in addition to component design reliability, quality 
assurance, as well as maintenance and inspection proficiency may be 
considered and evaluated by the equipment owners as a part of this 
process. When considering the reliable use of passenger equipment, 
elements such as couplers as well as suspension systems; trucks; side 
bearings; wheels; jumpers; cable connections; buffer plates; 
diaphragms; and secondary brake systems, and human factors as it 
relates to inspecting and maintaining these elements may be considered. 
Component level structural fatigue, corrosion, and wear are variables 
that may be considered to bound or introduce uncertainty in passenger 
equipment performance, effectively reducing reliability as well.
    Given the limited quantitative information that is presently 
available regarding factors that influence the reliability of passenger 
equipment, the primary sources of information available for initial 
reliability assessments include: judgement; simulations; field, 
laboratory, and office experiments; operating environment and 
maintenance process reviews; and accident and near-miss investigations. 
FRA believes that in the operation of passenger equipment, where 
failure costs are high and casualties infrequent, accident data for 
informed decision making may be scarce or not fully applicable. 
Further, legal and punitive threats may provide significant impediments 
to identifying the contributing, initiating, and compounding causes of 
failures. Data from near-miss, or near-catastrophic incidents may be 
found to be instructive, but often not all of the parameters entering a 
quantitative analysis are recorded or communicated in these cases.
    FRA believes that for the initial reliability assessments of 
passenger equipment and components qualified judgment will be an 
important source of quantitative information. Qualified judgment is 
based upon both the accumulation of experience and a mental synthesis 
of factors allowing the evaluator to assess the situation and produce 
results. Such judgment has a rightful place in making initial 
quantitative reliability assessments because current available data is 
often deficient for the evaluation of a particular situation. However, 
as adequately structured databases are developed and implemented for 
reliability center maintenance programs, FRA believes more reliance can 
be placed on objective data and reliability assessments will be based 
on a combination of data and judgment. FRA believes that, in the very 
near term, sole reliance cannot be placed on objective data sources to 
provide quantitative reliability assessments; instead, adequately 
qualified and unbiased judgment will continue to be required in 
conjunction with verifiable operating data for analysis purposes.
    When planning the maintenance of a component or system to protect 
the safety and operating capability of the equipment, FRA expects that 
a number of items will be considered in the reliability assessment 
process, which include:
    1. The consequences of each type of functional failure;
    2. The visibility of a functional failure to the operating crew 
(evidence that a failure has occurred);
    3. The visibility of reduced resistance to failure (evidence that a 
failure is imminent);
    4. The life or age-reliability characteristics of each item;
    5. The economic tradeoff between the cost of scheduled maintenance 
and the benefits to be derived from it;
    6. A multiple failure, resulting from a sequence of independent 
failures, may have consequences that would not be caused by any one of 
the individual failures alone. These consequences are taken into 
account in the definition of the failure consequences for the first 
failure; and
    7. A default strategy will continue to govern decision making in 
the absence of full information or agreement. This strategy provides 
for conservative initial decisions, to be revised on the basis of 
information derived from operating experience.
    FRA believes that a variety of qualitative approaches, such as a 
Failure Modes, Effects, Criticality Analysis (FMECA) may be useful in 
evaluating the potential consequences of a functional failure. FRA 
believes a qualitative approach may be used in complement and combined 
with a quantitative approach such as Probabilistic Risk Analyses (PRA) 
or Quantified Risk Analyses (QRA) which may include structured 
probabilistic Event Tree, Fault Tree, or Influence Diagram analyses to 
provide additional insight to railroads regarding the reliable use of 
their equipment. Quantitative approaches are useful to characterize the 
details of a system

[[Page 25622]]

whereas qualitative approaches can provide characterization of the 
general performance quality of the system analyzed.\4\ Component level 
reliability analysis centered around a quantitative, deterministic 
design approach such as Damage Tolerance Analysis (DTA) may be 
appropriate when information about the ability of a structural 
component to sustain anticipated loads in the presence of fatigue, 
corrosion, or accidental damage is required.\5\
---------------------------------------------------------------------------

    \4\ Evaluation Approaches & Quantification (Chapter 8), ``The 
Role of Human Error in Design, Construction, and Reliability of 
Marine Structures.'' Robert G. Bea, Report No. SSC-378, U.S. Coast 
Guard, Washington, D.C. 1994, pp. 127-149.
    \5\ ``Reliability and Risk Analysis for Design and Operations 
Planning of Offshore Structures.'' T. Moan, Sixth ICOSSAR, 
Innsbruck, August 1993.
---------------------------------------------------------------------------

    FRA expects that analyses of individual components investigated as 
a part of the reliability assessment process may require equipment 
owners to collect and consider information regarding: a component's 
physical features and conditions; a component's actual operating use; 
the existence of manufacturing defects and tolerances; the effects of 
repairs or modifications made to the component; and capabilities of 
available nondestructive evaluation methods used for inspection. 
Management of effective reliability-based maintenance programs requires 
an organized information system for surveillance and analysis of the 
performance of each component under the known operating conditions. FRA 
believes that the information derived from such operating experience 
can provide information of failures that could affect operating safety; 
failures that have operational consequences; the failure modes of units 
removed as a result of failures; as well as the general condition of 
unfailed parts in units that have failed and serviceable units 
inspected as samples.
    As stated above, at the time of the development of default 
maintenance intervals, FRA used the available information to determine 
the inspection intervals necessary to protect safety. However, FRA 
believes that the optimum inspection tasks, methods, and intervals as 
well as the applicability of age or life limits will be best obtained 
from reliability analyses based on additional service-based data 
collection, in some cases coupled with appropriate deterministic 
analyses to both ensure safety and maximize reliability. For further 
information regarding sources of reliability theory and analysis, FRA 
recommends that the following materials be considered:

     ANSI (American National Standards Institute)/ASQC 
(American Society for Quality) S2 (1995) Introduction to Attribute 
Sampling;
     ANSI/ASQC Z1.4 (1993) Sampling Procedures and Tables 
for Inspection by Attributes;
     ANSI/ASQC Z1.9 (1993) Sampling Procedures and Tables 
for Inspection by Variables for Percent Nonconforming;
     Handbook of Reliability Engineering and Management, W. 
G. Ireson, McGraw Hill, 1996;
     MIL-STD-414 (1957) Sampling Procedures and Tables for 
Inspection by Variables for Percent Nonconforming;
     MIL-STD-1234A (1974) Single and Multi-Level Continuous 
Sampling Procedures and Tables for Inspection by Attributes;
     Reliability-Centered Maintenance, F. S. Nowlan and H. 
F. Heap, Final Report for Contract MDA 903-75-C-0349, Office of 
Assistant Secretary of Defense, Washington, D.C., 1978;
     Reliability-Centered Maintenance, A. M. Smith, McGraw 
Hill, 1992;
     Reliability-Centered Maintenance, J. Moubray, McGraw 
Hill, 1997; and
     Reliability in Engineering Design, K.C. Kapur and L. R. 
Lamberson, John Wiley & Sons, 1977.

    Paragraph (e) contains the recordkeeping requirements related to 
the performance of periodic mechanical inspections. FRA believes that 
proper and accurate recordkeeping is the cornerstone of any inspection 
process and is essential for ensuring the performance and quality of 
the required inspections. Without such records, the inspection 
requirements would be difficult to enforce. Although recordkeeping was 
discussed in the Working Group and FRA believes it to be an integral 
part of any inspection requirement, FRA inadvertently omitted any such 
requirements in the NPRM specifically related to mechanical 
inspections. This omission was brought to FRA's attention through 
verbal and written comments provided by various interested parties and 
has been corrected. This paragraph specifically permits a railroad to 
maintain the required records either in writing or electronically. 
Whatever format the railroad elects to use to record the information, 
it must contain the specific information listed in this paragraph.
Section 238.309  Periodic Brake Equipment Maintenance
    This section contains the requirements related to the performance 
of periodic brake maintenance for various types of passenger equipment, 
referred to in the industry as clean, oil, test, and stencil (COT&S). 
Although FRA has considered the concerns raised by certain labor 
representatives during this rulemaking, FRA does not agree with the 
conclusions drawn by these commenters with regard to the testing and 
data submitted to FRA regarding modest extensions of the COT&S 
intervals for equipment utilizing certain types of brake valves. All of 
the COT&S intervals contained in this section are based, at least in 
part, on current operations under existing waivers and on data and 
information which FRA believes provide substantial support that the 
valves can be safely operated for the periods of time provided in this 
section. Furthermore, FRA believes that the stringent inspection and 
testing regiment and the single car test requirements contained in this 
final rule also provide sufficient additional safeguards to permit 
modest increases in the COT&S intervals for equipment outfitted with 
certain brake valves and other equipment having generally shown the 
ability to operate for longer periods without failure.
    Paragraph (b) extends the periodic maintenance interval for MU 
locomotive fleets that are 100 percent equipped with air dryers and 
modern brake systems from 736 days to 1,104 days. The requirement 
remains 736 days for fleets that are not 100 percent equipped with air 
dryers or that are equipped with older brake systems. FRA bases this 
extension on tests conducted by Metro-North and monitored by FRA field 
inspectors. These tests revealed that after three years brake valves on 
MU locomotives equipped with air dryers were very clean and showed 
little or no signs of deterioration. Based on the results of these 
tests, FRA is confident that these valves can safely operate for three 
years between periodic maintenance. FRA believes this extension of the 
periodic maintenance interval will result in a cost savings to those 
railroads that operate MU locomotives equipped with air dryers.
    Paragraph (c) extends the periodic maintenance interval on 
conventional locomotives equipped with 26-L or equivalent types of 
brakes from the current standard of 736 days to 1,104 days. The 
required periodic maintenance interval remains at 736 days for 
locomotives equipped with other types of brake systems. This 
requirement merely makes universal a practice that has been approved by 
waiver for several years. See H-80-7. FRA believes that locomotives 
equipped with 26-L brakes have demonstrated an ability to operate 
safely for three years between periodic maintenance.
    Paragraph (d) extends the periodic maintenance interval on 
passenger coaches and other unpowered vehicles equipped with 26-C or 
equivalent brake systems from 1,104 days to 1,476 days. This extension 
is based on tests

[[Page 25623]]

performed by Amtrak. Based on these tests, FRA granted Amtrak a waiver 
for this extension on July 26, 1995. See FRA Docket No. PB 94-3. Amtrak 
has operated under the terms of this waiver for several years with no 
problems. Consequently, based on Amtrak's experience, FRA believes all 
passenger cars with 26-C equipment can safely be operated for four 
years between periodic maintenance.
    Paragraph (e) recognizes that the same extensions applicable to 
locomotives and passenger coaches should be applied to control cab cars 
that use brake valves that are identical to the 26-C valves used in 
passenger cars or the 26-L valves used on locomotives. Consequently, 
based on the information and tests conducted on those valves as well as 
waivers currently existing, FRA is extending the periodic maintenance 
interval for cab cars to 1,476 days or 1,104 days for those cab cars 
that use brake systems identical to the 26-C and 26-L, respectively. 
This extension is consistent with recent requests for waivers received 
by FRA.
    In paragraph (a)(2) FRA provides that a railroad may petition FRA, 
under Sec. 238.21, to approve alternative maintenance procedures 
providing equivalent safety. Under this provision, railroads could 
propose using periodically scheduled single car tests to extend the 
time between required periodic maintenance on passenger coaches. FRA 
believes that the single car test provides a good alternative to more 
frequent periodic maintenance. In fact, in the 1994 NPRM on power 
brakes, FRA proposed the elimination of time-based COT&S and in its 
stead proposed time intervals for conducting single car tests, ranging 
from three to six months, depending on the utilization rate of the 
passenger equipment. See 59 FR 47690-91, 47710-11, and 47740-41. 
However, comments received and discussions with members of the Working 
Group revealed that many passenger railroads would rather perform 
periodic maintenance than more frequent single car tests. One reason 
for this is that some operators would rather take equipment out of 
service every few years and perform the overhaul of the brake system 
than have equipment out of service for shorter periods every few 
months. Therefore, FRA has retained periodic maintenance intervals but 
provided the alternative to railroads to propose single car testing 
intervals in order to reduce the frequency with which the periodic 
maintenance is performed. Consequently, railroads are afforded some 
flexibility to determine the type of maintenance approach that best 
suits their operations. However, in response to concerns raised by a 
labor commenter, it should be noted that FRA would likely not 
completely eliminate the need to perform COT&S on a periodic basis but 
might consider extending the interval between such attention depending 
on the frequency of the single car test intervals proposed by a 
railroad.
Section 238.311  Single Car Test
    This section contains the requirements for performing single car 
tests on all nonself-propelled passenger cars and all unpowered 
vehicles used in passenger trains. As previously discussed in the 
general preamble, FRA is modifying the requirements related to the 
performance of single car tests from those that were proposed in the 
1997 NPRM. In paragraph (a), based on the recommendations of 
representatives from both rail labor and rail management, FRA is 
referencing the single car testing procedures which were developed by 
APTA PRESS rather than the AAR single car testing procedures referenced 
in the 1997 NPRM. The single car test procedures were issued by APTA on 
July 1, 1998, and are contained in APTA Mechanical Safety Standard SS-
M-005-98. The single car test procedures issued by APTA are more 
comprehensive and better address passenger equipment than the older AAR 
recommended practices. In paragraph (a), FRA is also slightly modifying 
the applicability of this section for clarity. In the 1997 NPRM, FRA 
proposed to require the performance of single car tests on all 
passenger cars and other unpowered vehicles used in passenger trains. 
However, the definition of passenger cars includes self-propelled 
vehicles such as MU locomotives, to which FRA did not intend the single 
car test requirements to apply. Consequently, FRA has modified the 
language of paragraph (a) to clarify that the testing requirements 
apply to nonself-propelled passenger cars and unpowered vehicles used 
in passenger trains.
    Paragraph (b) requires that all single car tests be performed by a 
qualified maintenance person. A single car test is a comprehensive 
brake test that requires the skills and knowledge of a highly trained 
and skilled person with mechanical expertise. Railroads currently use 
personnel which would generally meet the definition of ``qualified 
maintenance person'' as defined by this part to perform single car 
tests, and FRA believes that this practice should continue.
    FRA is also modifying some of the circumstances under which a 
single car test is required to be performed in paragraphs (c) through 
(e). FRA agrees with several of the commenters that the 1997 NPRM may 
have been over-inclusive in listing the components whose repair, 
replacement, or removal would trigger the performance of a single car 
test. Paragraph (c) lists the wheel defects that would trigger the 
requirement to perform a single car test. FRA believes that the wheel 
defects contained in this paragraph generally tend to indicate some 
type of braking equipment problem. FRA believes that merely changing a 
wheel to correct a wheel defect that is actually caused by a brake 
system problem will only lead to a continuation of the problem on the 
new wheel and will increase repair costs to the railroad. A test that 
checks for the root cause of the defect is not only a good safety 
practice, but is a good business practice that will lead to reduced 
operating costs. However, in accordance with the discussions conducted 
with the Working Group in mid-December of 1997, paragraph (d) makes 
clear that FRA will not mandate the performance of a single car test 
for wheel defects, other than a built-up tread, if the railroad can 
establish that the wheel defect is due to a cause other than a 
defective brake system. Thus, the burden will fall on the railroad to 
establish and maintain sufficient documentation that a wheel defect is 
due to something other than a brake-related cause. FRA makes clear that 
if the railroad cannot establish the specific non-brake related cause 
for a wheel defect, it is required to perform a single car test.
    Paragraph (e) requires a railroad to conduct a single car test if 
one or more of the identified brake system components is removed, 
repaired, or replaced. This paragraph also requires that a single car 
test be performed if a passenger car or vehicle is placed in service 
after having been out of service for 30 or more days. FRA believes that 
these requirements will ensure that brake system repairs have been 
performed correctly and that the car's brake system will operate as 
intended after repairs are made or after the car has been in storage 
for extended periods. As noted above, FRA has amended the list of brake 
components to include only those circumstances where a relay valve, 
service portion, emergency portion, or pipe bracket is removed, 
repaired, or replaced. Whenever any other component previously 
contained in the 1997 NPRM is removed, repaired, or replaced, paragraph 
(g) requires that only that portion that is renewed or replaced be 
tested. FRA believes that the items

[[Page 25624]]

contained in paragraph (g) can generally be removed, replaced, or 
repaired without affecting other portions of the brake system, thus 
reducing the need to perform a single car test. FRA believes that the 
requirements contained in paragraphs (e) and (g) are more consistent 
with the current practices of most passenger railroads than the 
requirement proposed in the 1997 NPRM.
    Paragraph (f) provides that if a single car test cannot be made at 
the point where repairs are made, the car may be moved in service to 
the next forward location where the test can be made. This paragraph 
requires that at a minimum the single car test be completed prior to, 
or as a part of, the car's next calendar day mechanical inspection. As 
noted previously, labor representatives object to permitting cars to be 
used in passenger service after a repair is made without the required 
single car test being performed. These commenters contend that the 
performance of a single car test is necessary prior to using the 
vehicle in order to determine whether any other unknown defects to the 
brake system exist. Although FRA recognizes the concerns of labor 
representatives with regard to this provision, FRA believes that it is 
necessary to provide railroads the flexibility to make the necessary 
repairs to a piece of equipment and then move it to a location which is 
most conducive to performing the required single car test. However, in 
order to address labor's concerns and to ensure the safe movement of 
such equipment, FRA has added a visual inspection requirement and a 
tagging requirement that must be met prior to the railroad being 
allowed to haul a car in the fashion provided in this paragraph. 
Consequently, this paragraph requires that prior to moving a car in 
passenger service for the purposes of conducting a single car test, a 
visual inspection verifying the application and release of the brakes 
on both sides of the repaired car must be conducted and the car must be 
appropriately tagged to indicate the need to perform a single car test.
Section 238.313  Class I Brake Test
    This section contains the requirements related to the performance 
of Class I brake tests. The requirements in this section apply to all 
passenger coaches, control cab cars, MU locomotives, and all nonself-
propelled vehicles that are part of a passenger train. After 
consideration of the comments and information submitted, FRA intends to 
make very minor changes to the requirements regarding Class I brake 
tests from those that were previously proposed in the 1997 NPRM.
    Paragraph (a) of this section requires that a Class I brake test be 
performed at least once each calendar day that a piece of equipment is 
placed in service. As noted previously in the 1997 NPRM, the Working 
Group discussed and debated when and how a Class I brake test should be 
performed. Labor representatives stressed the need for a thorough brake 
test performed by qualified mechanical inspectors on every passenger 
train. These representatives strongly contended that this brake test 
must be performed prior to the first daily departure of each passenger 
train. On the other hand, representatives of passenger railroads 
expressed the desire to have flexibility in conducting a comprehensive 
brake inspection, arguing that safety would be better served if 
railroads were permitted to conduct these inspections on a daily basis. 
Although FRA agrees with the position advanced by many labor 
representatives that some sort of car-to-car inspection must be made of 
the brake equipment prior to the first run of the day in most 
circumstances, FRA does not agree that it is necessary to perform a 
full Class I brake test in order to ensure the proper functioning of 
the brake equipment. As FRA views a Class I brake test as a 
comprehensive inspection of the braking system, FRA believes that 
commuter and short-distance intercity passenger train operations must 
be permitted some flexibility in conducting these inspections. 
Consequently, paragraph (a) requires that commuter and short-distance 
intercity passenger train operations perform a Class I brake test 
sometime during the calendar day in which the equipment is used.
    FRA also recognizes the differences between commuter or short-
distance intercity operations and long-distance intercity passenger 
train operations. Long-distance intercity passenger trains do not 
operate in shorter turnaround service over the same sections of track 
on a daily basis for the purpose of transporting passengers from major 
centers of employment. Instead, these trains tend to operate for 
extended periods of time, over long distances with greater distances 
between passenger stations and terminals. Further, these trains may 
operate well over 1,000 miles in any 24-hour period, somewhat 
diminishing the opportunity for conducting inspections on these trains. 
Therefore, FRA believes that a thorough inspection of the braking 
system on these types of operations must be conducted prior to the 
trains' departure from an initial starting terminal. Consequently, 
paragraph (b) retains the proposed requirement that a Class I brake 
inspection be performed on long-distance intercity passenger trains 
prior to departure from an initial terminal. FRA does not believe there 
would be any significant burden placed on these operations as the 
current regulations require that an initial terminal inspection be 
performed at these locations. Furthermore, virtually all of the initial 
terminal inspections currently conducted on these types of trains are 
performed by individuals who would be considered qualified maintenance 
persons pursuant to Sec. 238.5.
    Paragraph (b) also retains the requirements proposed in the 1997 
NPRM related to the performance of Class I brake tests on long-distance 
intercity passenger trains every 1,500 miles or every calendar day, 
whichever comes first. After reviewing the information and comments 
submitted by labor representatives, the information and comments 
provided by Amtrak, and based upon the independent information 
developed by FRA, FRA believes that the enhanced inspection scheme 
contained in this final rule will ensure the continued safety of long-
distance intercity passenger trains. (See previous discussion of 
comments in general preamble portion of this document.)
    Contrary to the statements made in the comments submitted by some 
labor representatives, FRA is not merely increasing the distance 
between brake inspections for these types of trains. Rather, FRA is 
increasing both the quality and the content of the inspections that 
must be performed on long-distance intercity passenger trains and, 
thus, increasing the safety of such trains. Under the current 
regulations these passenger trains are required to receive an initial 
terminal brake inspection at the point where they are originally 
assembled, and from that point the train must receive an intermediate 
brake inspection every 1,000 miles. The current 1,000-mile inspection 
merely requires the performance of a leakage test, an application of 
the brakes and the inspection of the brake rigging on each car to 
ensure it is properly secured. See 49 CFR 232.12(b). The current 1,000-
mile brake inspection does not require 100 percent operative brakes 
prior to departure and does not require piston travel to be inspected. 
The current regulations also do not require the performance of any type 
of mechanical inspection on passenger equipment at 1,000-mile 
inspection points or at any other time in the train's journey. Thus,

[[Page 25625]]

under the current regulations a long-distance intercity passenger train 
can travel from New York to Los Angeles on one initial terminal 
inspection, a series of 1,000-mile inspections, and no mechanical 
inspections.
    Whereas, this rule will require the performance of a Class I brake 
test, which is more comprehensive than the current initial terminal 
inspection, at the point where the train is originally assembled and 
will require the performance of another Class I brake test every 1,500 
miles or every calendar day thereafter, whichever comes first, by 
highly qualified inspectors. Thus, at least every 1,500 miles or every 
calendar day a long-distance passenger train will be required to 
receive a brake inspection which is more comprehensive than the current 
initial terminal inspection and which requires that the train have 100 
percent operative brakes and have piston travel set within established 
limits. Furthermore, this rule will require the performance of an 
exterior and interior mechanical inspection every calendar day that the 
train is in service. Consequently, the inspection scheme proposed in 
the 1997 NPRM and retained in this final rule will, in FRA's view, 
increase the safety and better ensure the integrity of the brake and 
mechanical components of long-distance passenger trains.
    FRA also believes that some recognition must be given to the 
various types of advanced braking system technologies used on many 
long-distance intercity passenger trains. Many of these advanced 
technologies are not found with any regularity in freight operations 
and thus the reliability and performance of brake systems on these 
passenger trains enhance the safety of these trains and, when combined 
with other aspects of this discussion, support FRA's belief that these 
brake systems can safely be operated with the inspection intervals that 
were proposed in the 1997 NPRM. Dynamic brakes are typically employed 
on these types of trains to limit thermal stresses on friction surfaces 
and to limit the wear and tear on the brake equipment. Furthermore, the 
brake valves and brake components used on today's long-distance 
passenger trains are far more reliable than was the case several 
decades ago. Other technological advances utilized with regularity by 
these passenger trains include:
     The use of brake cylinder pressure indicators which 
provide a reliable indication of the application and release of the 
brakes.
     The use of disc brakes which provide shorter stopping 
distances and decrease the risk of thermal damage to wheels.
     The ability to effectuate a graduated release of the 
brakes due to a design feature of the brake equipment which permits 
more flexibility and more forgiving train control.
     The ability to cut out brakes on a per-axle or per-truck 
basis rather than a per car basis, thus permitting greater use of those 
brakes that are operable.
     Brake ratios that are 2\1/2\ times greater than the brake 
ratios of loaded freight cars.
    Although some of the technologies noted above have existed for 
several decades, most of the technologies were not in wide spread use 
until after 1980. Furthermore, most of the noted technological advances 
just started to be integrated into one efficient and reliable braking 
system within the last decade. Consequently, the technology 
incorporated into the brake equipment used in today's long-distance 
intercity passenger trains has increased the reliability of the braking 
system and permits the safe operation of the equipment for extended 
distances even though a portion of the braking system may be 
inoperative or defective.
    FRA also disagrees with the contentions raised by certain labor 
representatives that the facts and data do not support the 500 mile 
extension in the brake inspection interval even with the more 
comprehensive inspection scheme. These commenters recommend that the 
current 1,000-mile brake inspection interval be retained together with 
the increased inspection regiment. These commenters contend that due to 
the large number of defects being found at 1,000-mile inspections the 
need to retain the inspection is justified. As an example and support 
for this position, the BRC submitted information containing numerous 
defective conditions compiled by carmen stationed at Union Station in 
Washington D.C. from January 1996 through February of 1997 that the 
carmen allegedly found on trains traveling through Union Station. After 
reviewing the documentation submitted, FRA does not believe the 
information supports the conclusion that 1,000-mile brake inspections 
must be maintained and that it would be unsafe to extend the distance 
between brake inspections under the inspection scheme contained in this 
final rule.
    Due to the lack of detail contained in the information submitted by 
the BRC, it is impossible to determine whether the vast majority of the 
alleged defective conditions were defective under the Federal 
regulations or whether the conditions were merely in excess of Amtrak's 
voluntary maintenance standards or operating practices. In addition, 
based on the description of some of the conditions, they would not be 
considered defective conditions under current Federal regulations. 
Furthermore, the vast majority of the conditions alleged in the 
document were not power brake defects, and thus, under the current 
regulations, would not have been required to have been inspected at a 
1,000-mile inspection. Nor do the current regulations mandate any type 
of mechanical inspection on passenger equipment (other than on 
locomotives under 49 CFR part 229, of course). Moreover, as the vast 
majority of the alleged conditions were mechanical and wheel defects, 
FRA believes that these types of defective conditions will be addressed 
by the exterior calendar day mechanical inspection contained in this 
final rule which will be required to be performed every calendar day 
that a piece of equipment is in service.
    FRA agrees with the comments submitted by the BRC that the data and 
information submitted by Amtrak regarding the allegedly defective 
equipment found at Washington, D.C., does not fully address whether the 
cars identified by carmen at that location were defective and does 
indicate that at least many of the cars were repaired for the defective 
condition noted within several days after moving through Washington, 
D.C. However, contrary to the conclusions reached by labor 
representatives, the fact that a car remained in service with an 
alleged defective mechanical or brake condition does not necessarily 
mean the train involved was in an unsafe condition or that the 
equipment was being moved illegally. The current regulations regarding 
freight mechanical equipment and the existing statutory mandates 
regarding the movement of equipment with defective safety appliances 
and brakes permit the movement of a certain amount of defective 
equipment to certain locations provided it is determined by a qualified 
person that such a movement can be made safely or that a sufficient 
percentage of the brakes remain operative. See 49 U.S.C. 20303, 49 CFR 
215.9. As this final rule will specifically address the inspection of 
the mechanical components on passenger equipment and the movement of 
defective mechanical components, which is not covered by existing 
regulations, FRA believes that the amount of defective equipment being 
operated will be reduced significantly and/or handled safely in revenue 
trains. Although FRA agrees that the

[[Page 25626]]

information submitted by Amtrak regarding the number of cars set out at 
1,000-mile inspection points does not reflect the true number of 
defects being found during the inspections, FRA does find it 
significant that a very small percentage of cars set-out by Amtrak are 
set-out at 1,000-mile inspection locations and that most set-outs occur 
en route.
    FRA also finds it necessary to make clear that the number of cars 
alleged to have been found in defective condition at Union Station in 
Washington, D.C. is not indicative of a safety problem on long-distance 
intercity passenger trains. Assuming that all of the cars contained in 
BRC's submission were in fact defective as alleged, it appears that 
approximately 750 cars were defective. However, the information also 
reveals that approximately 1,300 trains were inspected; thus, using a 
conservative estimate of 10 cars per train, approximately 13,000 cars 
were inspected. As a result, approximately only 6 percent of the cars 
inspected were found to contain either a mechanical or brake defect. 
Furthermore, of the approximate 750 cars alleged to have been found 
defective, only approximately 20 percent of those contained a power 
brake-related defect. Consequently, only about 1-2 percent of the total 
cars inspected contained a power brake-related defect. Moreover, from 
the information provided it appears that none of the trains contained 
in the BRC submission were involved in any type of accident or incident 
related to the defective conditions alleged.
    FRA believes that the key to any inspection scheme developed for 
long-distance intercity passenger trains is the quality of the 
inspection which is performed at a train's point of origin. FRA is 
convinced that if a train is properly inspected with highly qualified 
inspectors and has 100 percent operative brakes at its point of origin, 
then the train can easily travel up to 1,500 miles between brake 
inspections without significant deterioration of the braking system. 
FRA independently monitored a few long-distance intercity passenger 
trains running from New York to Miami, New York to New Orleans, and New 
York to Chicago and found that when the trains departed from their 
points of origin with a brake system that was defect free they arrived 
at destination without any defective conditions existing in their brake 
systems. These findings are consistent with FRA's experience in 
inspecting long-distance intercity passenger trains over the last 
several years. It should be noted that during this independent 
monitoring, FRA did find some trains that after receiving initial 
terminal inspections still contained some defective conditions in the 
brake system. Although FRA believes that none of the defective 
conditions found would have prevented the safe operation of the trains, 
FRA recognizes that FRA as well as the railroads must be vigilant in 
ensuring that quality brake system inspections are performed on a train 
at its point of origin and at each location where a Class I brake test 
is required to be performed. Consequently, due to the comprehensive 
nature of Class I brake tests and the exterior calendar day mechanical 
inspection combined with the technological advances incorporated into 
the braking systems utilized in these types of trains and after a 
review of the data and information provided and based on FRA's 
experience with these types of operations, FRA is retaining the 
proposed 1,500 mile interval for the performance of Class I brake tests 
in this final rule.
    Paragraph (c) contains a provision that was not proposed in the 
1997 NPRM to address the inspection of cars added to an en route train. 
FRA has modified the Class I brake test requirements to ensure the 
proper operation of all cars added to a train while en route. This 
paragraph requires the performance of a Class I brake test on each car 
added to a passenger train at the time it is added to the train unless 
documentation is provided to the train crew that a Class I brake test 
was performed on the car within the previous calendar day and the car 
has not been disconnected from a source of compressed air for more than 
four hours prior to being added to the train. This requirement has been 
included in order to address the concerns raised by various labor 
representatives that no provisions were provided in the 1997 NPRM to 
address circumstances when cars are added to an en route train. Section 
238.317 makes clear that if a car has received such inspection, the 
railroad will be required to perform a Class II brake test at the time 
the car is added to the train. FRA believes that these provisions are 
necessary to ensure the integrity of the brake system on every car 
added to an existing train and should not be a burden for railroads 
since cars are generally added to passenger trains at major terminals 
with the facilities and personnel available for conducting such 
inspections. Furthermore, these inspection requirements are very 
similar to what is currently required when a freight car is added to a 
train while en route. See 49 CFR Sec. 232.13.
    Paragraph (d) requires that the Class I brake tests be performed by 
qualified maintenance persons. As FRA intends for Class I brake tests 
to be in-depth inspections of the entire braking system, which most 
likely will be performed only one time in any given day in which the 
equipment is used, FRA believes that these inspections must be 
performed by individuals possessing the knowledge to not only identify 
and detect a defective condition in all of the brake equipment required 
to be inspected but also the knowledge to recognize the interrelational 
workings of the equipment and have a general understanding of what is 
necessary to repair the equipment. Furthermore, most passenger 
railroads currently have a daily brake test performed by highly 
qualified mechanically trained employees so this requirement is not 
really a departure from current industry practice. (For a detailed 
discussion of ``qualified maintenance person'' see the section-by-
section analysis for Sec. 238.5 and the general preamble discussion 
related to qualified maintenance persons.)
    Paragraph (e) provides railroads with the option to perform the 
Class I brake test either separately or in conjunction with the 
calendar day mechanical inspections. FRA has retained this provision 
simply to clarify that the two inspections need not be done at the same 
time or location as long as they are both performed sometime during the 
calendar day that a piece of equipment is in use.
    Paragraph (f) prohibits a railroad from using or hauling a 
passenger train in passenger service from a location where a Class I 
brake test has been performed, or was required to have been performed, 
with less than 100 percent operating brakes. (See section-by-section 
analysis of Sec. 238.15 for a detailed discussion of movement of 
defective equipment for purposes of repair or sale.)
    Paragraph (g) contains a list of the safety-related items that must 
be inspected, tested, or demonstrated as part of a Class I brake test. 
This list was developed based on the experience and knowledge of FRA's 
motive power and equipment field inspectors familiar with the 
operations and inspection practices of passenger operations. The 
Working Group extensively discussed the items contained in this 
paragraph. Very few comments were submitted which addressed the 
specific items contained in this paragraph. One commenter did recommend 
that a few of the provisions be clarified to specifically address tread 
brakes. Therefore, paragraph (g)

[[Page 25627]]

generally retains all of the requirements proposed in the 1997 NPRM 
except to the extent that a few requirements have been slightly 
modified for clarity. Paragraph (g)(1) requires that an inspection be 
conducted on each side of each car to verify the application and 
release of each brake. This requirement is consistent with FRA's 
longstanding interpretation of what the current regulations require 
when conducting initial terminal and 1,000 mile brake inspections 
pursuant to Sec. 232.12. For clarity and consistency, FRA has 
explicitly incorporated the requirement into this final rule. Minor 
modifications have been made to paragraphs (g)(3), (g)(5), and (g)(11) 
in order to clarify the intent of the requirements to brake systems 
utilizing tread brakes. It should be noted that the requirement 
contained in paragraph (g)(14) would bar the use of a train that 
current regulations allow to be placed in service. This paragraph 
requires that brake indicators must function as intended. Although this 
provision may require railroads to make more frequent repairs than are 
currently required, FRA believes these added costs are necessitated 
by--and offset by--the ability to use brake indicators during the 
performance of certain brake tests in lieu of direct observation of the 
brakes.
    Paragraph (h) requires the qualified maintenance person that 
performs a Class I brake test to record the date, time and location of 
the test as well as the number of the controlling locomotive of the 
train. It should be noted that a requirement to record the total number 
of cars inspected during the Class I brake test has been added at 
paragraph (h)(4). FRA believes this information is necessary to ensure 
that the required inspection has been performed on all the cars in a 
train and provides a method for the tracking of cars added to en route 
trains. This minimal information is required to be available in the cab 
of the controlling locomotive to demonstrate to the train crew and 
future inspectors that the train is operating under a current Class I 
brake test. Furthermore, the use of such records or ``brake slips'' as 
they are known in the industry is the current practice of virtually all 
passenger railroads. FRA believes that this recordkeeping requirement 
adds necessary reliability, accountability, and enforceability to the 
inspection requirements contained in this section.
    Paragraph (i) allows long distance, intercity passenger trains that 
miss a scheduled Class I brake test due to a delay en route to proceed 
to the point where the scheduled brake test was to be performed. This 
flexibility prevents Amtrak or other operators of long distance trains 
from having to dispatch qualified maintenance persons to the location 
of a delayed train merely to meet the calendar day Class I brake test 
requirement. This is a common sense exception that will not compromise 
safety.
Section 28.315  Class IA Brake Test
    This section contains the requirements regarding the performance of 
Class IA brake tests. As mentioned previously, although FRA agrees with 
the position advanced by many labor representatives that some sort of 
car-to-car inspection must be made of the brake equipment prior to the 
first run of the day, FRA does not agree that it is necessary to 
perform a full Class I brake test in order to ensure the proper 
functioning of the brake equipment in all situations. However, contrary 
to the position espoused by several railroad representatives, FRA 
believes that something more than just a determination that the brakes 
on the rear car set and release is necessary in many situations.
    Currently, the quality of initial terminal tests performed by train 
crews is likely adequate to determine that brakes apply on each car. 
However, most commuter equipment utilizes ``tread brake units'' in lieu 
of cylinders and brake rigging of the kind prevalent on freight and 
some intercity passenger cars. It is undoubtedly the case that train 
crewmembers do not verify application of the brakes by tapping brake 
shoes while the brakes are applied--the only effective means of 
determining that adequate force is being applied. This is one reason 
why the subject railroads typically conduct redundant initial terminal 
tests at other times during the day. Further, train crews are not asked 
to inspect for wheel defects and other unsafe conditions, nor should 
they be asked to do so, given the conditions under which they are asked 
to inspect and the training they receive.
    As noted previously, FRA is modifying the requirements for when a 
Class IA brake test must be performed from that which was proposed in 
the 1997 NPRM. FRA continues to believe that some type of car-by-car 
inspection must be performed prior to a passenger train's first run of 
the day if the train was used in passenger service the previous day 
without any brake inspection being performed after it has completed 
service and before it lays-up for the evening. However, FRA tends to 
agree with the comments submitted by APTA representatives that the need 
for such an inspection is minimized if a Class I brake test is 
performed within a relatively short period of time prior to the first 
run of the day and the train has not been used in passenger service 
since the performance of that inspection. From a safety standpoint, it 
appears to be overkill to require the performance of a second 
comprehensive brake test when the equipment has not been used in 
passenger service and has remained on a source of compressed air since 
the last comprehensive brake test was performed. In such circumstances, 
FRA believes that the performance of a Class II brake test would be 
sufficient to determine if there are any problems with the braking 
system due to vandalism or other causes since the last comprehensive 
Class I brake test. Furthermore, as APTA's comments point out, commuter 
railroads have been safely operated in a fashion similar to this for a 
number of years. Consequently, paragraph (a)(1) of this section makes 
clear that a Class IA brake test is to be performed prior to the first 
morning departure of each commuter or short-distance intercity 
passenger train unless a Class I brake test was performed within the 
previous twelve hours and the train has not been used in passenger 
service and has not been disconnected from a source of compressed air 
for more than four hours since the performance of the Class I brake 
test. FRA believes that this exception is consistent with the concept 
of performing comprehensive brake and mechanical inspections at 
centralized locations as this provision affords railroads the ability 
to conduct a Class I brake test at the end of a train's daily operating 
cycle at a central location and then have the ability to move the train 
in non-passenger service to an outlying location without being required 
to perform a Class IA brake test prior to departure from the outlying 
terminal.
    Paragraph (a)(2) requires that a Class IA brake test be performed 
prior to placing a train in service if that train has been off a source 
of compressed air for more than four hours. This requirement formalizes 
a long-standing agency interpretation of the existing power brake 
regulations but increases the time limit from two to four hours. Labor 
representatives maintain that any number of brake system problems can 
develop with equipment off air for only a short time, while management 
representatives contend that equipment can be left off air for extended 
periods of time with no problems. FRA believes the requirement 
contained in this paragraph is a fair compromise that allows railroads 
some operating flexibility, but does not allow equipment to be off air 
without a new

[[Page 25628]]

brake test for extended periods of time. FRA agrees that its 
longstanding administrative interpretation of allowing cars to be ``off 
air'' for only two hours was established prior to the development of 
new equipment that has greatly reduced leakage problems. However, 
contrary to the contentions of some commenters, FRA does not believe 
that cars should be allowed to be ``off air'' for extended periods 
without being retested. The longer cars sit without a supply of 
compressed air attached, the greater the chances are that the integrity 
of the system will be compromised, either by weather conditions or 
vandalism.
    Paragraph (b) allows a commuter or short-distance intercity 
passenger train that provides continuing late night service that began 
prior to midnight to complete its daily operating cycle after midnight 
without performing another Class I or Class IA brake test on the train 
prior to its first departure after midnight. This provision is included 
to make clear that a train is not required to be stopped during its 
operating cycle in order to receive a Class I or Class IA brake test 
prior to it first departure of a calendar day. FRA also makes clear 
that this provision does not relieve a railroad from its responsibility 
under Sec. 238.313 to perform a Class I brake test on each calendar day 
that the train is in use. Thus, a train operating past midnight must 
receive a Class I brake test sometime on each of the two days it is in 
use.
    Paragraph (c) allows a Class IA brake test to be performed at a 
shop or yard site without needing the test repeated at the first 
passenger terminal if the train remains on air and in the custody of 
the crew. This provision is an incentive for railroads to conduct the 
tests at locations where they can be performed more safely and easily. 
FRA believes that a shop or yard location is more conducive for 
conducting a proper brake test. Raised platforms and other conditions 
frequently found at terminals can make the performance of a brake test 
difficult, if not hazardous.
    Paragraph (d) permits the Class IA test to be performed by either a 
qualified person or a qualified maintenance person. Paragraph (e) 
prohibits a railroad from using or hauling a passenger train from a 
location where a Class IA brake test has been performed, or was 
required to have been performed, with less than 100 percent operative 
brakes. (See section-by-section analysis of Secs. 238.15-238.17 for a 
discussion of movement of defective equipment for purposes of repair or 
sale.) Paragraph (f) contains the specific tasks that must be performed 
when conducting a proper Class IA brake test. This paragraph makes 
clear that a Class IA brake test include: a check that each brake sets 
and releases; a test of the emergency brake application feature; a 
check of the deadman or other emergency control device; an observation 
that angle cocks and cutout cocks are properly set; an observation that 
brake pipe pressure changes are communicated to the rear of the train; 
and a test that the communicating signal system is known to be 
operative.
    Paragraph (g) requires that the inspection of the set and release 
of the brakes be performed by walking the train so the inspector 
actually observes the set and release of each brake. Labor 
representatives strongly contended that this is the only way to do a 
proper brake test. They believe that observation of brake indicators 
does not give a reliable indication of effective brakes because the 
indicators sense brake cylinder pressure rather than the force of the 
brake shoe against the wheel or the pad against the disc. However, this 
paragraph allows an exception when railroads determine that direct 
observation of the set and release can place the inspector in danger. 
FRA acknowledges the contention of rail management representatives that 
conditions at certain locations where Class IA tests may be performed 
could place the inspector in danger if he or she is required to place 
himself or herself in a position to actually observe the set and 
release of each brake. Where railroads determine this to be the case, 
FRA will permit the use of brake indicators for the set and release 
step of the Class IA brake test as long as the inspector takes a 
position where an accurate observation of the indicators can be made.
Section 238.317  Class II Brake Test
    This section contains the requirements regarding how a Class II 
brake test is to be performed and contains the conditions for when a 
railroad is required to perform the brake test. The Class II brake test 
provides passenger railroads the flexibility to continue to use train 
crew personnel to perform the limited brake tests required when minor 
changes to the train occur. Both labor and management representatives 
to the Working Group recognized that train crews are capable of 
performing the relatively simple checks required by a Class II brake 
test and that the operations of most commuter and passenger railroads 
require the flexibility of having operating personnel perform these 
tests.
    Paragraph (a) contains the circumstances which require the 
performance of a Class II brake test. This paragraph has been modified 
from that which was proposed in the 1997 NPRM in order to clarify the 
requirements, to remain consistent with other provisions of this rule, 
and to address recent issues that have been raised with FRA regarding 
certain passenger train operations. Although paragraph (a)(1) retains 
the proposed requirement that a Class II brake test be performed 
whenever the control stand is changed, this paragraph has been modified 
in order to clarify that a Class II brake test need not be performed in 
circumstances where a train is being moved in non-passenger service 
from one track to another inside a terminal complex even though the 
changing of the control stand occurs during such movements. In order to 
effectuate such movements the control stand may be required to be 
changed several times. As these train movements are akin to switching 
movements in that they are performed over relatively short distances at 
very low speeds and pose minor safety hazards, FRA will not require the 
performance of multiple Class II brake tests in order to conduct such 
movements. It should be noted that Sec. 238.319 requires the 
performance of a running brake test whenever the control stand is 
changed during these types of movements in order to ensure the 
operation of the brake system during these movements. This paragraph 
also requires the performance of a Class II brake test prior to the 
train's departure from the terminal complex with passengers.
    Paragraph (a)(2) requires the performance of a Class II brake test 
prior to the first morning departure of a commuter or short-distance 
intercity passenger train where a Class I brake test remains valid as 
provided in Sec. 238.315(a)(1). As discussed in the preceding section, 
FRA believes that in these limited circumstances the performance of a 
Class II brake test will adequately ensure the integrity of the brake 
system on the train since the performance of the last Class I brake 
test. Paragraph (a)(4) has been added in order to clarify that a Class 
II brake test is to be performed whenever cars or equipment are removed 
from a train. This provision is consistent with the concept that the 
proper operation of the brake system must be verified whenever an event 
occurs which may impact the integrity of the brake system and is 
consistent with current practice on virtually every railroad.
    Paragraph (c) requires that passenger trains not depart from Class 
II brake tests which are performed at a terminal or a yard with any 
brakes cut-out,

[[Page 25629]]

inoperative, or defective unless the equipment is moved in accordance 
with Sec. 238.15. The language of this requirement has been slightly 
modified from the language proposed in the 1997 NPRM, in order to make 
the provision consistent with the movement for repair provisions 
contained in this final rule. See Sec. 238.15. Many terminals and most 
yards are locations where brake repairs can be effectuated. Thus, 
passenger equipment containing defective brake equipment would not be 
permitted to depart those locations capable of making the necessary 
repairs until repaired. If the necessary repairs cannot be effectuated 
at such locations the equipment must be properly tagged and moved 
pursuant to the requirements contained in Sec. 238.15.
    Paragraph (d) requires that a Class II brake test consist of: a 
check that the brakes on the rear unit of the train apply and release 
in response to brake control signals or a check that brake pipe 
pressure changes are properly communicated at the rear of the train by 
observation of a gauge at the end of the train or in the cab of the 
rear unit; a test of the emergency brake application and a test of the 
deadman pedal or other emergency control device on MU equipment; and a 
test of the communicating signal system to ensure it is operating as 
intended. The proposed requirements for observing a set and release of 
the brakes on the rear car and for ensuring that brake pipe pressure 
changes are properly communicated at the rear of the train have been 
combined and stated in the alternative in this final rule, as FRA 
believes that the performance of either task indicates proper trainline 
continuity and to perform both would be redundant and unnecessary. It 
should also be noted that the requirement regarding the testing of the 
emergency application and deadman pedal or other emergency control 
devices is only applicable to MU equipment due to the ease of 
performing such an inspection on that equipment. The requirement that 
the communicating signal system be tested is part of both a Class I and 
a Class IA brake test and has been added to this brake inspection as 
FRA believes the proper operation of the communicating signal system is 
necessary for the safe operation of a train and can be easily tested in 
a very short amount of time. FRA believes that if the equipment 
receives a full Class I brake test and a calendar day mechanical 
inspection at some time during each operating day, then these simple 
checks are adequate to confirm brake system performance at intermediate 
terminals or turning points. This requirement basically codifies 
current industry practice.
Section 238.319  Running Brake Tests
    This section contains the requirements for conducting running brake 
tests on the brakes of passenger trains. A running brake test is merely 
a brake application at the first safe opportunity to confirm that the 
brake system works as expected by the engineer. Paragraphs (a) and (c) 
require that a running brake test be performed in accordance with the 
railroad's established operating rules after the train has received a 
Class I, Class IA, or Class II brake test as safety permits. FRA 
believes that railroads are in the best position to determine when and 
where running tests can be safely performed. As most passenger 
railroads routinely conduct running brake tests, FRA believes that the 
requirements contained in this section capture an important safety 
check without changing current operating practice to any great extent. 
It should be noted that paragraph (b) has been added to this section to 
require the performance of a running brake test whenever the control 
stand used to control the train is changed to facilitate the movement 
of a passenger train from one track to another within a terminal 
complex while not in passenger service. As previously discussed, due to 
the special nature of these moves FRA believes that a running brake 
test adequately ensures the proper operation of the braking system 
during these movements and obviates the need to perform a Class II 
inspection each time the control stand is changed in these 
circumstances.
Subpart E--Specific Requirements for Tier II Passenger Equipment
Section 238.401  Scope
    This subpart contains the design and performance requirements for 
Tier II passenger equipment--that is, passenger equipment operating at 
speeds exceeding 125 mph but not exceeding 150 mph. For the most part, 
compliance with the requirements of this section will be demonstrated 
by one-time analysis or initial acceptance tests.
    The requirements contained in this subpart have their basis in 
discussions between Amtrak and FRA involving safety requirements for 
the operation of passenger trainsets at speeds up to 150 mph on the 
Northeast Corridor (NEC). Aware that FRA was considering the 
development of safety standards for high-speed passenger rail 
equipment, Amtrak asked FRA for assistance in developing a set of 
safety specifications for the procurement of high-speed trainsets which 
would address FRA's safety concerns. As a result, Amtrak's high-speed 
trainsets, scheduled to begin regular passenger service in 1999, will 
very likely comply with all of the safety standards in this subpart.
    Amtrak's discussions with FRA led it to sponsor a risk assessment 
of high speed rail passenger systems on the north end of the NEC--from 
New York to Boston. The discussions also prompted FRA to sponsor 
computer modeling to predict the performance of various equipment 
structural designs and configurations in collisions. A copy of the risk 
assessment performed by Arthur D. Little, Inc., for Amtrak is included 
in the docket of this rulemaking. The risk assessment was based on 
existing and predicted future right-of-way configurations and traffic 
density patterns. The risk assessment concluded that a significant risk 
of collisions at speeds below 20 mph and a risk of collisions at speeds 
exceeding 100 mph exist over the 20-year projected operational life of 
the HSTs--due to heavy and increasing conventional commuter rail 
traffic, freight rail traffic on the NEC, highway-rail grade crossings, 
moveable bridges, and a history of low speed collisions in or near 
stations and rail yards.
    Based on the risk assessment and the results of the computer 
modeling, Amtrak and FRA determined that full reliance on collision 
avoidance measures rather than crashworthiness, though the hallmark of 
safe high-speed rail operations in several parts of the world, could 
not be implemented in corridors like the north end of the NEC. Existing 
traffic and right-of-way configurations do not permit implementation of 
the same collision avoidance measures that have proven successful in 
Europe and Japan. To compensate for the increased risk of a collision 
in the North American rail operating environment, a more crashworthy 
trainset design is needed. (FRA does note that on June 3, 1998, near 
Eschede in northern Germany, an ICE (Inter City Express) passenger 
train derailed at a speed of approximately 125 mph into the support 
structure of a highway bridge carrying traffic over the railroad right-
of-way, collapsing the bridge. A number of the cars in the train were 
crushed, and 101 fatalities resulted from the derailment.) Accordingly, 
the set of structural requirements for Tier II passenger equipment in 
this final rule is more stringent than the current design practice for 
North American passenger equipment or for high-speed rail equipment in 
other parts of the world.

[[Page 25630]]

Section 238.403  Crash Energy Management Requirements
    This section requires that each power car and trailer car be 
designed with a crash energy management system to dissipate kinetic 
energy during a collision.
    During discussions with Amtrak for the safety provisions of its 
high-speed trainsets, FRA proposed very challenging crash energy 
management requirements based on predictions using computer modeling. 
Amtrak believed that meeting these requirements would be well beyond 
the current state of the art for passenger equipment design, and that 
an extensive and costly research and testing program would be required. 
As an alternative, Amtrak proposed a crash energy management design 
based on the demonstrated, commercially viable design developed in 
France and incorporated in the most recent design of the TGV trainset. 
FRA believes that Federal safety standards must be capable of 
implementation in the design of passenger equipment without driving the 
cost of implementation to the point that high-speed rail systems are no 
longer financially viable.
    Paragraph (c) requires a Tier II train to have a crash energy 
management system capable of absorbing a minimum of 13 megajoules (MJ) 
of energy at each end of the train. The ability to absorb this energy 
must be partitioned as follows: a minimum of 5 MJ by the front end of 
the power car ahead of the operator's control compartment; a minimum of 
3 MJ by the power car structure behind the operator's control 
compartment; and a minimum of 5 MJ by the unoccupied end of the first 
trailer car adjacent to the power car. This requirement can be met 
using existing technology. However, it will effectively prevent a 
conventional cab car from operating as the lead vehicle in a Tier II 
passenger train because such equipment cannot absorb 5 MJ of collision 
energy ahead of the train operator's position. Recent accidents 
involving trains operating with a cab car forward have demonstrated the 
vulnerability of this type of equipment in collisions. FRA believes 
such equipment should not be used in the forward position of a train 
that travels at speeds greater than 125 mph. FRA has also encouraged 
Amtrak to use an alternative lead vehicle where speeds exceed 110 mph 
and highway-rail grade crossings are prevalent. Further, FRA is 
specifically requiring in paragraph (f) that passenger seating be 
prohibited in the leading unit of a Tier II train.
    In its comments on the NPRM, Talgo observed that the standards in 
this section may be unattainable using current technology. However, 
Amtrak's high-speed trainsets have been shown to meet the requirements 
of this section. Specifically, testing has shown the crash energy 
absorbing components of the power car and in the end of the first 
trailer car adjacent to the power car to absorb the energy as provided 
in paragraph (c).
    Talgo further commented that because the kinetic energy of a 
running train is a function of its mass and speed, paragraph (c) should 
not state a fixed value of energy. Rather, it believed paragraph (c) 
should state a value with respect to a specified speed to allow some 
flexibility for trains of varying mass and yet preserve the same level 
of safety. FRA recognizes that the kinetic energy of a running train is 
a function of its mass and speed, and if Tier II trains were at no risk 
of colliding with other trains of greater weight, then adopting Talgo's 
comment may be possible. However, the Tier II safety standards are 
intended to apply to high-speed passenger trains that, as necessitated 
by the United States rail operating environment, will operate 
commingled with heavier trains, especially heavy and long freight 
trains that may themselves operate at speeds up to 80 mph. In the event 
of a collision with a heavier train, a Tier II passenger train must 
confront the energy possessed by that train. FRA believes that a Tier 
II passenger train must have a crash energy management system capable 
of absorbing the minimum energy levels specified in paragraph (c) to 
protect the train's occupants in light of the risks of colliding with 
heavier trains and other objects along the railroad right of way. As a 
result, FRA believes it is inappropriate to adopt Talgo's comment.
    Additionally, in its comments on the NPRM, Talgo believed 
paragraphs (c)(1)-(3) should be rewritten so that the total energy that 
is required to be absorbed is dissipated through all inter-car 
connections, not just through the first few cars. FRA notes that one of 
the reasons the energy absorbing structures of the leading car in a 
Tier II passenger train (power car) and the adjacent trailer car must 
themselves absorb the energy specified in this section is to reduce the 
risk and effects of secondary collisions throughout the train's 
subsequent vehicles. Secondary collisions (i.e., impacts with interior 
objects) can seriously harm or, in extreme cases, kill train occupants. 
This risk of harm to a Tier II passenger train's occupants is, 
therefore, minimized overall by requiring the energy absorbing 
structures in the first two train cars to absorb collision energy 
before it poses a risk to the train's occupants.
    Paragraph (d) requires that for a 30-mph collision of a train on 
tangent, level track with an identical stationary train, the 
deceleration of the occupied compartments of each trailer car shall not 
exceed 8g; and when seated anywhere in a trailer car, the velocity at 
which a 50th-percentile adult male contacts the seat back ahead of him 
shall not exceed 25 mph. A 50th-percentile adult male has been defined 
in Sec. 238.5, based on the same characteristics for such a vehicle 
occupant's weight and dimensions specified in a NHTSA standard at 49 
CFR Sec. 571.208, S7.1.4. FRA does note that, for purposes of this 
requirement, the weight of the occupant is not particularly relevant, 
as weight generally should not affect how fast the occupant strikes the 
seat back ahead of him. In this regard, an occupant of heavier of 
lighter weight should be neither more nor less protected by the 
requirements of this paragraph.
    In its comments on the NPRM, Simula did not recommend defining an 
occupant velocity in paragraph (d), noting that it is a function of the 
crash pulse, the distance between two rows of seats, as well as 
occupant position and size. FRA has specified that occupant velocity 
not exceed 25 mph in a secondary collision because an occupant 
travelling beyond that speed is at considerable risk of harm from a 
secondary impact. In fact, use of an occupant restraint system would 
likely have to be required to protect the train occupants in such a 
case. FRA believes that compliance with paragraph (d)(1) can be 
demonstrated, and that Amtrak's HTS complies with the rule based on 
information presented to FRA.
    Simula additionally commented that if trailer cars are built to 
withstand 30 mph collisions and 10g decelerations, then the seats in 
these cars should also be designed to withstand these same forces. 
Specifically, Simula did not recommend requiring that the decelerations 
in trailer cars be limited in a 30 mph collision to 10g while requiring 
seats to withstand the impact of an occupant travelling at 25 mph and a 
longitudinal force of 8g, noting that the seats will not be able to 
withstand the 10g decelerations and consequently detach from the car.
    FRA notes that Simula's comment relates to the seat strength 
requirements found in Sec. 238.435. In the final rule, Sec. 238.435(a) 
requires that the seat back and seat attachment in a passenger car be 
designed to withstand, with deflection but without total failure, the 
load associated with the impact into the

[[Page 25631]]

seat back of an unrestrained 95th-percentile adult male initially 
seated behind the seat back, when the floor to which the seat is 
attached decelerates with a triangular crash pulse having a peak of 8g 
and a duration of 250 milliseconds. FRA agrees with Simula that it is 
possible that a seat in a trailer car may detach from the car when 
subjected to a force that is greater than that required to be withstood 
under proposed Sec. 238.435(a) in the NPRM, and expressly permitted by 
proposed Sec. 238.403(d). FRA has, therefore, decided to modify 
Sec. 238.403(d) so as to limit the permissible decelerations in a 
trailer car to 8g under the conditions specified in that paragraph. FRA 
believes that meeting this requirement is feasible with current 
technology, and that Amtrak's HTS complies with Sec. 238.403(d)(2) on 
the basis of information presented to FRA.
    In its comments on the NPRM, Talgo believed that paragraph (d) 
should make allowances for the short-lived elevations in peak that may 
occur during a collision so that peaks exceeding 10g (as proposed) for 
a duration no longer than 10 milliseconds are acceptable. FRA believes 
that for purposes of demonstrating compliance with this paragraph 
through testing, deceleration measurements may be processed through a 
low-pass filter having a bandwidth of 50 Hz.
    Paragraph (e) contains the analysis process to demonstrate that 
equipment meets these crash energy management performance requirements. 
The process allows simplifying assumptions to be made so that computer 
modeling techniques can be used to confirm compliance.
Section 238.405  Longitudinal Static Compressive Strength
    This section contains the requirements for longitudinal compressive 
strength of power cars and trailer cars. Paragraph (a) requires the 
compressive strength of the underframe of the power car cab to be a 
minimum of 2,100,000 pounds without yielding. To form an effective 
crash refuge, this strength is needed to take advantage of the strength 
of the power car's two end frames. Alternate design approaches that 
provide equivalent protection are allowed, but the equivalent 
protection must be demonstrated through analysis and testing and be 
approved by FRA under the provisions of Sec. 238.21.
    In its comments on paragraph (a), Bombardier believed that a design 
requirement based on the ultimate strength of the structure, as 
proposed in the NPRM, makes the analysis more difficult and testing the 
structure impractical and potentially dangerous. According to 
Bombardier, the specified test load should be based on the yield 
strength of the structure rather than the ultimate strength, as this 
would also be consistent with the Amtrak high-speed trainset 
specifications. FRA has revised this section pursuant to Bombardier's 
comment. FRA notes that the effect of this revision is to require a 
stronger power car cab than originally proposed in the rule.
    Bombardier additionally commented that clarifying text should be 
added to define the structural loading conditions so that the 
2,100,000-pound load shall be resisted at the height of the underframe 
at the rear of the cab as follows: 300,000 pounds at each rear cab 
corner post location; and 750,000 pounds at each rear cab collision 
post location. FRA does not believe it necessary to incorporate 
Bombardier's comment into the rule, and doing so may result in 
confusion. As discussed in Sec. 238.411, FRA believes that each corner 
post structure on the rear end of a power car cab must resist a 
300,000-pound load at the structure's joint with the underframe, and 
each collision post structure must resist a 750,000-pound load in the 
same manner. These loads may not be resisted solely at the underframe 
as a test of the strength of the corner and collision post structures; 
otherwise, the actual ability of the collision and corner post 
structures to resist shearing would not be implicated. Further, the 
load testing criteria for corner and collision post structures in the 
rule is based on ultimate strength; whereas the longitudinal 
compressive strength requirement in this paragraph, as revised, is 
based on yield strength. In light of the separate requirements for 
testing corner and collision post structures, FRA believes it best not 
to expressly integrate those requirements with this section.
    Paragraph (b) contains the requirements for the static compressive 
strength of the occupied volumes of trailer cars. This adopts the 
traditional North American design practice of a static strength of 
800,000 pounds, without deformation of the underframe. Paragraph (c) 
makes clear that unoccupied volumes of power cars or trailer cars may 
have a static end strength of less than 800,000 pounds to accommodate 
crash energy management designs.
    The crash energy management design requirement ensures that the 
stronger end structures and the stronger static compressive strength of 
the cab of a power car will not make Tier II passenger equipment 
incompatible with existing passenger equipment should a collision 
between the two different types of equipment occur. The crash energy 
management design causes a Tier II passenger train to appear as a 
softer collision surface to a conventionally designed train, owing to 
the collision energy absorbed by the Tier II train as its unoccupied 
volumes intentionally crush.
Section 238.407  Anti-Climbing Mechanism
    This section contains the requirements for anti-climbing mechanisms 
on power and trailer cars. Paragraph (a) requires a power car to have a 
forward anti-climbing mechanism capable of resisting an upward or 
downward static vertical force of 200,000 pounds, without exceeding the 
ultimate strength of the material. This requirement is virtually 
identical to that required of locomotives by AAR S-580. However, 
designs are permitted that require the crash energy management 
controlled crushing to occur prior to the anti-climber fully engaging. 
FRA has revised this paragraph based on a comment from Bombardier that 
the rule text, as proposed, did not indicate that the 200,000-pound 
value is an ultimate load. Inasmuch as this requirement as stated in 
AAR S-580 is in fact based on an ultimate load acceptance criterion, 
FRA has modified the rule text accordingly.
    Paragraph (b) requires that interior train coupling points between 
units, including between units of articulated cars or other permanently 
joined units of cars, have an anti-climbing device capable of resisting 
an upward or downward vertical force of 100,000 pounds without 
yielding. This is consistent with current design practice. FRA has 
revised this section based on a comment from Bombardier that the 
requirements in paragraph (b) are based on 49 CFR Sec. 229.141(a)(2), 
and should thus include a yield strength acceptance criterion. FRA has 
modified the rule consistent with the requirements of 49 CFR 
Sec. 229.141(a)(2).
    Paragraph (c) requires the forward coupler of a power car to resist 
a vertical downward force of 100,000 pounds for any horizontal position 
of the coupler without yielding, and is virtually identical to that 
provided in 49 CFR Sec. 229.141(a) for MU locomotives built new after 
April 1, 1956, and operated in trains having a total empty weight of 
600,000 pounds or more.
    Talgo commented on both this section and its Tier I counterpart in 
Sec.  238.205. Talgo explained that it desired to avoid the implication 
that only couplers may properly function as anti-climbing

[[Page 25632]]

mechanisms. Talgo also believed that in measuring the strength of the 
anti-climbing device, the operative variable should be vertical 
acceleration, expressed in gs, rather than load, expressed in pounds, 
to accommodate trains of different masses. FRA has discussed these 
comments earlier in the preamble.
Section 238.409  Forward End Structures of Power Car Cabs.
    This section contains the requirements for forward end structures 
of power car cabs. The forward end structure of a power car cab is 
vital in a collision with another object. This structure must resist 
override, prevent the entry of fluids into occupied spaces of the cab, 
and allow the crash energy management system to function. The 
requirements in paragraphs (a)-(c) are based on a specific end 
structure design that consists of a full-height center collision post, 
two side collision posts located at approximately the one-third points 
laterally, and two full-height corner posts. This section also includes 
loading requirements that each of these structural members must 
withstand. However, the rule does permit flexibility for using other 
equipment designs that provide equivalent structural protection.
    End structures meeting these requirements will provide considerably 
greater protection to the train operator than that provided by existing 
passenger equipment designs. For example, much stronger corner posts 
are required here than for Tier I passenger equipment. FRA believes 
these end structures help provide a degree of crashworthiness to 
compensate for the increased risk associated with operating at higher 
speeds.
    The front end structure design also includes in paragraph (d) a 
skin requirement equivalent to that required by AAR S-580 and contained 
in Sec. 238.209 for Tier I locomotives. FRA has revised paragraphs 
(a)(3) and (b)(2) based on a comment from Bombardier. Bombardier noted 
that the acceptance criterion proposed by FRA in these paragraphs is 
based on the yield or critical buckling stress; whereas the design of 
the forward end structures of the Amtrak high-speed power car cab is 
based on an ultimate load. FRA agrees that basing the acceptance 
criterion on ultimate strength is consistent with the Amtrak high-speed 
trainset design specification, and FRA has modified the rule in this 
regard.
    Bombardier also commented that in paragraph (c)(2) FRA proposed 
requiring the corner post to resist a horizontal, lateral force of 
100,000 pounds applied at a point 30 inches up from the underframe. 
Bombardier stated that the cab on the Amtrak high-speed trainset was 
designed to resist the 100,000-pound load at a point 18 inches up from 
the underframe, and believed this consistent with all current design 
practices for car end structural members. FRA has not modified the rule 
on this point. FRA has found no conflict between the proposal and the 
Amtrak high-speed trainset specification.
    Both Bombardier and Talgo commented that FRA appeared to have 
specified the wrong value in paragraph (c)(3) of the proposed rule, as 
compared with the values contained in Figure 1. See 62 FR 49812-3. The 
commenters are correct that, as proposed, the paragraph wrongly 
required each forward corner post to resist a horizontal, longitudinal 
or lateral shear load of 150,000 pounds. As Figure 1 demonstrates, FRA 
intended each corner post to resist a horizontal, longitudinal or 
lateral shear load of 80,000 pounds. FRA has revised paragraph (c)(3) 
accordingly in the final rule.
    Talgo additionally commented that in paragraph (d)(1), although the 
rule makes clear that its reference to a particular thickness of 
material does not preclude the use of thinner materials having a higher 
yield strength, it would be preferable to avoid specifying a thickness 
altogether. Instead, Talgo suggested that the skin strength requirement 
could be stated in terms of a specified impact resistance, as FRA 
proposed in Sec.  238.421 on safety glazing. FRA recognizes that it may 
be possible to specify an impact resistance requirement, yet FRA has 
chosen a yield strength requirement based on AAR Standard No. 580 and 
the collective judgment of the railroad industry behind that standard. 
Accordingly, although FRA would not preclude an equipment design based 
on impact resistance that provides equivalent safety, FRA will defer 
consideration of specifying such an impact resistance until Phase II of 
the rulemaking. FRA does note that the strength of the material, in 
terms of its resistance to shear, is also important to ensure occupant 
protection.
Section 238.411  Rear end Structures of Power Car Cabs.
    The rear end structure of a power car cab provides protection to 
crewmembers from intrusion of locomotive machinery or trailing cars 
into the cab's occupied volume as a result of a collision or 
derailment. The requirements in this section are based on a specific 
end structure design that consists of two full-height corner posts 
(paragraph (a)) and two full-height collision posts (paragraph (b)). In 
addition, this section specifies loading requirements that each of 
these structural members must withstand. Of course, the rule does 
permit flexibility for using other equipment designs that provide 
equivalent structural protection.
    The required rear end structural protection will provide 
considerably greater protection to the train operator than that 
provided by existing passenger equipment designs. Together, the front 
and rear end structural protection required in this rule for a power 
car cab make the cab a highly survivable crash refuge.
    In commenting on the NPRM, Bombardier recommended that in paragraph 
(b) the 750,000-pound force at the rear end cab structure collision 
posts be applied at the height of the centerline of the underframe, and 
not at the collision posts' joint with the underframe. FRA disagrees, 
and believes it necessary to test the strength of the collision post 
structure at its joint with the underframe to demonstrate the actual 
ability of the collision post structure to resist shearing. Otherwise, 
if the strength of the collision post structure were tested at the 
height of the centerline of the underframe, the collision post 
connection would not be loaded and the ability of the collision post 
structure to resist shearing would not be tested.
    Bombardier also suggested that the horizontal, shear load value of 
750,000 pounds specified in paragraph (b)(1) that the collision post is 
required to resist be changed to 500,000 pounds. Bombardier believed 
this modification necessary to be consistent with the shear strength 
requirements for the front collision posts specified both in the rule 
as well as in the Amtrak high-speed trainset specifications. FRA 
disagrees with this comment, and has not revised the rule on this 
point. The 750,000 pounds that each of the two collision posts at the 
rear of a power car cab must individually resist--1,500,000 pounds in 
the aggregate--is consistent with the 500,000 pounds that each of the 
three collision posts at the forward end of the power car cab must 
individually resist--again 1,500,000 pounds in the aggregate--under 
Sec.  238.409(a) and (b) of this rule. Further, FRA believes these 
values to be consistent with the Amtrak high-speed trainset design 
specification.
Section 238.413  End Structures of Trailer Cars
    The requirements in paragraph (a) are based on a specific end 
structure design that consists of two full-height corner posts and two 
full-height collision

[[Page 25633]]

posts. The requirements include loading requirements that each of these 
structural members must withstand. The rule allows flexibility for 
other designs that provide protection structurally equivalent to the 
specified design.
    Paragraph (b) in the final rule contains an additional requirement 
for trailer cars designed with an end vestibule. Such designs provide 
an opportunity for additional corner post structures inboard of the 
vestibule side doors. These corner posts can be supported by the side 
sill and therefore be structurally more substantial than the corner 
posts ahead of the side doors. This paragraph includes loading 
requirements that these additional full-height corner posts must 
withstand. Overall, the double corner post design provides 
significantly increased protection to passengers in trailer cars with 
end vestibules.
    In its comments on the rule, Bombardier stated that, to be 
consistent with the design requirements for Amtrak's high speed 
trainsets, the corner post loads in paragraphs (a)(1)(ii), (b)(2), and 
(b)(3) (as numbered in the final rule) should be applied at 18 inches 
up from the underframe, rather than at 30 inches. FRA agrees that these 
values are consistent with Amtrak's previous undertakings for the high-
speed trainsets, and has modified the final rule accordingly.
    In the 1997 NPRM, FRA proposed an exception from the requirements 
of paragraph (a) for a trailer car (or, more appropriately, a consist 
of trailer cars) made up of multiple articulated units not designed for 
uncoupling other than in a maintenance shop. See 62 FR 49814, proposed 
Sec. 238.413(b). FRA proposed that the end structure requirements in 
paragraph (a) apply only to the two ends of the entire articulated 
assembly (or consist) of units, and that the interior ends of the 
individual units of the articulated assembly need not be equipped with 
an end structure meeting the requirements in paragraph (a). Articulated 
assemblies have a history of remaining in line during derailments and 
collisions and, if not designed to be uncoupled, only the outside ends 
of the entire assembly should be exposed to the risks of override. (In 
this regard, FRA should have only proposed an exception for such 
equipment from the collision post requirements in paragraph (a) and not 
from the corner post requirements as well since collision posts--not 
corner posts--principally protect against override and telescoping of 
passenger equipment. Corner posts, by their very definition and 
location, protect against hazards along the railroad right-of-way in a 
way that collision posts cannot.) However, none of the relevant recent 
experience is on the North American continent, and the ability of 
articulated connections to remain intact during a high-speed collision 
with North American passenger equipment, freight rolling stock, or a 
fixed obstruction has not been demonstrated analytically. FRA noted the 
weakness in the proposed exception (Sec. 238.413(b) of the NPRM) while 
preparing the final rule. FRA has deleted proposed paragraph (b) in its 
entirety, and has not provided an exception due to the high operating 
speeds of Tier II passenger equipment.
Section 238.415  Rollover Strength
    This section contains the requirements for the rollover strength of 
passenger cars and power cars. If the occupied volumes of these 
vehicles remain intact when they roll onto their side or roof 
structures, occupant injury from vehicle collapse will be avoided. This 
section essentially requires the vehicle structure to support twice the 
deadweight of the vehicle as it rests on its side or roof. Passenger 
equipment constructed to North American design practice performs well 
in rollover situations. FRA believes this requirement captures this 
industry practice.
    FRA has revised paragraph (a) to make clear that its requirements 
apply to passenger cars. This revision is consistent with the section-
by-section analysis of proposed Sec. 238.415 in the NPRM, see 62 FR 
49779, which explained that this section included rollover strength 
requirements for both power cars and trailer cars. (The term trailer 
car is in fact a more inclusive definition under the rule than the term 
passenger car.) FRA has also made clear in paragraph (a) that minor 
localized deformations to the outer side skin of the passenger car or 
power car are allowed provided such deformations in no way intrude upon 
the occupied volume of each car. As in the NPRM, paragraph (b) states 
that deformation to the roof sheathing and framing is allowed to the 
extent necessary for the vehicle to be supported directly on the top 
chords of the side frames and end frames.
    As Bombardier suggested in its comments on the NPRM, FRA has also 
made a minor clarification to this section by substituting the words 
``in the structural members of the'' in place of the word ``for'' in 
the phrase which originally read in the NPRM, ``the allowable stress 
for occupied volumes .* * *.'' See 62 FR 49816.
Section 238.417  Side Loads
    This section contains the requirements intended to resist 
penetration of the side structure of a passenger car by a highway or 
rail vehicle. The objective is to make the side of the passenger car 
strong enough so that the car derails rather than collapses when struck 
in the side by a highway or rail vehicle. If the passenger car can move 
sideways (derail), less structural damage and potential to injure train 
occupants will result.
    In its comments on the NPRM, Bombardier stated that for practical 
reasons and to be consistent with the Amtrak high-speed trainset design 
specifications, local yielding of the side sill should be allowed in 
calculating the allowable stress in paragraph (c). FRA agrees that 
local yielding of the side skin adjacent to the side sill and belt 
rail, and local yielding of the side sill bend radii at the crossbearer 
and floor-beam connections is permissible. FRA has modified paragraph 
(c) accordingly, and notes that such local yielding is permissible 
provided the resulting deformations do not intrude upon the occupied 
volume of the passenger car.
Section 238.419  Truck-to-Car-Body and Truck Component Attachment
    Paragraph (a) requires the truck-to-car-body attachment on Tier II 
passenger equipment to resist without failure a minimum vertical force 
equivalent to 2g acting on the mass of the truck and a minimum force of 
250,000 pounds acting in any horizontal direction on the truck. The 
intent of the requirement to resist without failure the minimum 
vertical force equivalent to 2g acting on the mass of the truck is to 
prevent the truck from separating from the car body during a rollover. 
The intent of the requirement to resist without failure the minimum 
force of 250,000 pounds acting in any horizontal direction on the truck 
is to resist the forces that act upon the truck during a collision or 
derailment that would tend to shear the truck from the car body. If the 
truck separates from the car body it may become a hazardous projectile 
that will intrude upon the occupied volume of a passenger car or 
locomotive. Further, the truck will not be able to serve, in effect, as 
an anti-climbing device if it separates from the car body in a 
collision or derailment.
    Paragraph (b) requires that each component of the truck must remain 
attached to the truck when a force equivalent to 2g acting on the mass 
of the component is exerted in any direction on that component. Whereas 
paragraph (a) is intended to keep the

[[Page 25634]]

truck attached to the car body, paragraph (b) is intended to keep truck 
components attached to the truck.
    Bombardier, in its comments on the NPRM, requested that FRA modify 
paragraph (a) so that the truck-to-car-body attachment must resist the 
specified vertical and horizontal forces only as individual loads 
applied separately. However, FRA has retained the requirement that the 
truck-to-car-body attachment resist the specified vertical and 
horizontal forces as applied at the same time. Requiring the truck-to-
car-body attachment to resist the vertical and horizontal forces 
applied at the same time reflects actual conditions experienced during 
a collision or derailment. For this reason, FRA believes it 
inappropriate to adopt Bombardier's comment.
Section 238.421  Glazing
    This section contains the glazing requirements for Tier II 
passenger equipment. FRA believes that the higher speed of Tier II 
passenger equipment necessitates more stringent glazing standards than 
currently required by 49 CFR part 223. As a result, FRA proposed 
specific standards for end-facing exterior glazing, side-facing 
exterior glazing, and interior glazing (which is not addressed in part 
223) on windows installed in Tier II passenger equipment. See 62 FR 
49817. In response to the NPRM, however, FRA received a number of 
comments questioning the appropriateness of FRA's proposals, as well as 
the existing glazing standards in part 223. Having considered these 
comments, FRA has decided to focus the final rule principally on more 
stringent glazing requirements for end-facing exterior windows 
installed in Tier II passenger equipment. In the second phase of this 
rulemaking, FRA will reexamine the glazing requirements for all windows 
installed in Tier II passenger equipment. FRA notes that this final 
rule does not amend the requirements of 49 CFR part 223, although FRA 
had proposed to amend the application section of that part in the NPRM. 
See 62 FR 49791. Such an amendment is no longer appropriate in light of 
the requirements of this section (Sec. 238.421) in the final rule. The 
requirements of this section and the modifications from the proposed 
rule are discussed below in detail.
    The requirements of paragraph (a) apply to all exterior windows on 
power car cabs and passenger cars. Windows on such equipment are 
required to meet the glazing standards contained in 49 CFR part 223, 
except as provided in paragraphs (b) and (c) of this section. Part 223 
contains requirements for both end-facing and side-facing window 
glazing, and employs different testing methods than specified in this 
section. As recommended by Bombardier in its comments on the NPRM, 
instead of applying the glazing requirements in this section generally 
to power cars as proposed in the NPRM, FRA has decided to limit the 
application of the glazing requirements in this section to power car 
cabs. This modification is consistent with the glazing requirements in 
part 223, see, e.g., 49 CFR Sec. 223.9(a). Bombardier had noted that 
one of the side windows on the Amtrak high-speed power cars will lead 
to an equipment room, which FRA understands will not be occupied while 
the power car is in service.
    Paragraph (a) relates to paragraph (b) in that paragraph (b) 
contains additional requirements for end-facing exterior window glazing 
on power car cabs and passenger cars. First, under paragraph (b)(1), 
end-facing exterior window glazing shall resist the impact of a 12-
pound solid steel sphere traveling at the maximum speed of the vehicle 
in which the glazing will be installed. The test must be conducted so 
that the sphere strikes the window glazing at an angle of 90 degrees 
(perpendicular) to the window surface. To successfully pass the test, 
the window must neither spall nor be penetrated by the sphere. This 
test is similar to the requirements imposed under European glazing 
standards for high-speed trains, and should be much more repeatable 
than the cinder block test specified in 49 CFR part 223.
    In the NPRM, FRA had proposed that end-facing exterior windows 
resist an impact with a 12-pound steel sphere at an angle equal to the 
angle between the window glazing surface as installed and the direction 
of travel of the train. See 62 FR 49817. In commenting on the NPRM, 
Automotive Glass Engineering (Automotive Glass) explained that impact 
angle depends upon variables such as the vector of the projectile, the 
vector of the train, and the angle at which the subject glazing is 
installed. Automotive Glass then observed that it would have no advance 
knowledge of the angle at which an object would strike the window 
glazing when installed in the train. Automotive Glass recommended that 
the rule require that tests be conducted at an angle perpendicular to 
the surface--noting this would constitute the most severe impact--
unless the rule specifies the method for determining the angle of 
incidence. FRA has adopted the comment of Automotive Glass by revising 
the rule text to require that the window glazing resist the impact with 
the 12-pound steel sphere at an angle 90 degrees to the window surface. 
This should result in a requirement as strict or stricter than that 
proposed in the NPRM.
    Under paragraph (b)(1), end-facing exterior window glazing shall 
demonstrate anti-spalling performance by the use of a 0.001 aluminum 
witness plate, placed 12 inches from the glazing surface during all 
impact tests. The witness plate must not contain any marks from spalled 
window glazing particles after any impact test. This requirement was 
originally proposed as Sec. 238.421(a)(3)(ii) in the NPRM. When 
impacted on the exterior surface, window glazing currently used in 
railroad equipment tends to spall from the inside surface. Several eye 
injuries to crewmembers have resulted. FRA believes that the witness 
plates used in conducting the spalling tests to qualify current glazing 
are too thick and have allowed glazing that actually spalled to pass 
the test. The witness plate specified in this paragraph is much thinner 
and, therefore, more sensitive to detecting spall.
    In commenting on the NPRM, Automotive Glass stated that the 
performance of a witness plate is critically dependent on the amount of 
tension in which it is held, and that a uniform tension procedure would 
enhance consistency. Automotive Glass therefore recommended that the 
test protocol specify the minimum tension of the foil in terms of some 
unit of measure, other than ``taut,'' which it considered an aspiration 
not a specification. FRA notes that in testing required under 49 CFR 
part 223, the witness plate must have a ``taut''surface. See 49 CFR 
part 223, Appendix A, b.(6). In the NPRM, proposed 
Sec. 238.421(a)(3)(ii) is silent as to the tension of the witness 
plate. As ``taut'' has been the witness plate tension specification 
used in all safety glazing testing required by FRA, use of a ``taut'' 
witness plate is not inconsistent with the requirements of this 
section. FRA believes that this issue may be reexamined in the second 
phase of the rulemaking.
    Automotive Glass also commented that total elimination of spalling 
will result in additional weight, additional cost, loss of durability, 
or some combination of these three. According to Automotive Glass, 
unessential weight above the center of gravity is detrimental because 
high-speed trains should have less inertia and a lower center of 
gravity. Automotive Glass believed FRA could sacrifice too much by 
averting the slight hazard created by the possibility of minor spalling 
in an

[[Page 25635]]

extremely unlikely event. Under the final rule, of course, only end-
facing exterior glazing on Tier II passenger equipment is subject to 
the particular requirements of this paragraph. Side-facing exterior 
glazing is subject to the requirements contained in 49 CFR part 223. As 
a result, only a relatively small number of the windows on a Tier II 
passenger train will be required to comply with the more stringent 
requirements specified in this paragraph. In this regard, FRA believes 
that the changes made to the final rule render these comments less 
significant.
    Automotive Glass further commented that under the proposed rule no 
spalling of glass is allowed, and noted that under 49 CFR part 223 
spalling is permitted unless it is severe enough to penetrate the 
prescribed foil witness plate. Additionally, Automotive Glass stated 
that constructing foil witness plates requires great care to avoid 
creating indentations in the foil, and that microscopic examination of 
the surface could be required to locate indentations to determine 
whether they were preexisting or produced by spall. To the extent no 
spalling is allowed, Automotive Glass suggested replacing the witness 
plate with a capture box that would capture glass fragments in the box. 
Automotive Glass believed that use of a capture box would result in a 
simpler and more reliable determination whether spalling occurred. In 
addition, if the rule would permit minor spalling, Automotive Glass 
recommended use of a thinner witness plate positioned closer to the 
glazing material to reduce the severity of allowable spalling and 
permit determination based on penetration instead of indentation.
    FRA desires that no spalling occur, however, and recognizes that 
the specified requirement is stricter than that provided in part 223. 
Further, FRA believes that use of a capture box is not necessarily a 
superior method of testing for spalling, as the integrity of the test 
results depend in large part on the attentiveness of the operator 
examining the capture box for spalled glass. FRA notes that Automotive 
Glass also provided several other comments regarding the testing 
protocols specified in this section and 49 CFR part 223. To the extent 
that these comments address testing protocols in part 223, they concern 
issues affecting glazing tests for both freight and passenger 
equipment. Such issues need to be addressed in a broader regulatory 
forum than this final rule on passenger equipment safety. FRA does make 
clear, nevertheless, in response to a comment from Automotive Glass, 
that it is not proper to certify that a segment of window glazing meets 
the requirements of this section or part 223, or both, unless that 
window segment is composed of the same material and manufactured in the 
same manner as the window segment that underwent the testing required 
by this section or part 223, or both.
    Paragraph (c) contains an alternative to the glazing standards 
specified in paragraphs (a) and (b). The alternative standards 
specified in paragraph (c) represent proposed '' Secs. 238.421(a) and 
(b) in the NPRM. FRA has included this paragraph in the final rule in 
recognition that the safety glazing standards proposed in Sec. 238.421 
were developed in consultation with Amtrak for use on Amtrak's HTS, and 
FRA believed these standards would provide sufficient protection for 
the safety of the train occupants. However, the option to use the 
alternative standards in paragraph (c) only applies to exterior window 
glazing in passenger equipment ordered prior to May 12, 1999. Further, 
the option to comply with paragraph (c) is no longer available once the 
window needs to be replaced and the railroad has exhausted its 
inventory of glazed windows conforming to the requirements of paragraph 
(c) as held prior to May 12, 1999. In this manner, exterior window 
glazing complying with the requirements in this paragraph will be 
phased out over time.
    Paragraph (d) is similar to Sec. 238.221(b) in this final rule. FRA 
did not receive any specific comments on this section and, for clarity, 
FRA has restated the requirements proposed in Secs. 238.421(c) and (d) 
in the NPRM, see 62 FR 49817, as Sec. 238.421(d) in this final rule. 
The focus of paragraph (d) in the final rule is clearly on the ability 
of each exterior window to remain in place, however the window may be 
secured, and not have the window become a potential projectile itself. 
FRA notes that it is separately evaluating whether securement of window 
glazing in existing passenger equipment is sufficient to withstand 
pressure differences associated with passing high-speed trains.
    Paragraph (e) is a stenciling requirement which FRA has revised in 
this final rule as proposed originally in Sec. 238.421(f).
    As noted, FRA has decided not to impose on all Tier II passenger 
equipment in this final rule the particular requirements for side-
facing exterior window glazing on Tier II passenger equipment which FRA 
had proposed in the NPRM. Instead, Tier II power car cabs and passenger 
cars must comply with the existing side-facing exterior window glazing 
requirements specified in 49 CFR part 223, or comply with the 
alternative standards specified in paragraph (c), as appropriate. 
However, FRA has included the following comments received on the 
proposed side-facing exterior window glazing standards for purposes of 
advancing the discussion of these standards in the second phase of the 
rulemaking.
    FRA had generally proposed requiring that side-facing exterior 
window glazing in Tier II passenger equipment resist the impact of a 
12-pound solid steel sphere traveling at 15 mph and impacting at an 
angle of 90 degrees to the surface of the glazing, with no penetration 
or spall. See proposed Sec. 238.421(a)(2)(i), 62 FR 49817. FRA intended 
this test to be more stringent than the large object impact test 
required for side-facing exterior glazing under 49 CFR part 223, and to 
demonstrate whether the side-facing glazing can protect occupants from 
a relatively heavy object thrown against the side of the train. In 
response to this proposal, GE Plastics (of the General Electrical 
Company) commented that, although the energy resulting from the 
proposed test would be greater than that required under part 223, the 
momentum produced would not be greater. Noting that tests have shown 
momentum to be as significant a factor as energy in the consequences of 
an impact, GE Plastics did not believe the proposed test could be 
considered more stringent than the current requirement in 49 CFR part 
223. Instead of FRA's proposed test, GE Plastics recommended a test 
involving a steel sphere weighing 24 to 25 pounds travelling at 15 mph, 
so that energy and momentum would be greater than the current 
requirement.
    FRA had also proposed generally requiring that side-facing exterior 
window glazing in all Tier II passenger equipment resist the impact of 
a granite ballast stone weighing a minimum of 0.5 pounds, traveling at 
75 mph, at a 90-degree angle to the glazing surface, with no 
penetration or spall. See proposed Sec. 238.421(a)(2)(ii). FRA intended 
this test to demonstrate whether the glazing could protect occupants 
against impact from a common stone found along the railroad thrown at a 
speed slightly faster than a human could throw such an object. In 
response, Automotive Glass commented that, because ballast stones are 
irregular geometrically and structurally, reproducible tests would not 
be possible unless the granite spheres used in the tests were machined 
and polished. Second, Automotive Glass stated that the proposed test 
would not impose a significantly higher kinetic energy load than that 
imposed by the

[[Page 25636]]

test involving a 12-pound steel sphere impacting the glazing surface at 
15 mph, and also it would not have greater spall generation potential 
than the proposed test involving a 9 mm bullet. Automotive Glass added 
that, if a higher kinetic energy test is desired, it would be more 
reasonable to increase the impact velocity of the proposed test 
involving the 12-pound steel sphere to at least 16 mph.
    FRA has also decided to defer imposing a new requirement for 
ballistic testing of exterior window glazing on all power car cabs and 
passenger cars. In the NPRM, FRA proposed requiring that all exterior 
glazing resist the single impact of a 9-mm, 147-grain bullet traveling 
at an impact velocity of 900 feet per second, with no bullet 
penetration or spall. See proposed Sec. 238.421(a)(3)(i). FRA noted 
that this bullet is a much more common handgun round than the 22-
caliber bullet specified in 49 CFR part 223. In response to the 
proposal, GE Plastics commented that it had seen no data indicating 
that people shoot at trains more frequently with 9 mm bullets, although 
it agreed that a 9 mm bullet is a more common handgun round than a .22 
caliber bullet. Further, GE Plastics questioned why a 147 grain bullet 
was specified, noted that a bullet's shape and composition affect its 
penetrating ability, and believed that more detail is needed to 
determine which bullet is appropriate. Moreover, GE Plastics expressed 
concern about the wording of the proposed test in that it believed a 
bullet will rarely be travelling exactly at 900 feet per second during 
testing. GE Plastics recommended specifying a minimum and a maximum 
velocity, instead, as well as examining the wording of existing 
ballistic test standards.
    In commenting on the proposal, Automotive Glass noted its belief 
that the .22 caliber projectile specified in 49 CFR part 223 represents 
the threat of accidental injury from young people hunting or 
``plinking'' along a railroad right-of-way, while the proposed 9 mm 
projectile represents the threat of injury intentionally inflicted by 
vandals or terrorists. Automotive Glass believed that if FRA were to 
adopt a policy of requiring any level of protection against 
intentionally inflicted injury, it would seem to constitute a departure 
from previous policy. If FRA were to adopt this approach, then 
Automotive Glass recommended that the proposed test protocol require 
each subject glazing specimen to withstand three 9 mm bullets within a 
circle eight inches in diameter, as vandals or terrorists are more 
likely to fire short bursts. Further, Automotive Glass observed that 
any level of ballistic resistance required of glazing which exceeds 
that provided by the body panel construction below the glazing would 
contribute only to a false sense of security. In the end, Automotive 
Glass suggested that individual railroads be given the discretion 
whether to utilize glazing with greater ballistic resistance based on 
the threat and severity of vandalism or terrorism each faces. Again, 
FRA has decided to defer until the second phase of the rulemaking 
consideration of imposing a new requirement for ballistic testing on 
all exterior window glazing used on power car cabs and passenger cars. 
Of course, a railroad may avail itself of the alternative requirements 
specified in paragraph (c) at its option, to the extent paragraph (c) 
is applicable.
    The final rule does not contain a standard covering interior window 
glazing, as FRA has decided to defer consideration of imposing such a 
standard until the second phase of this rulemaking. In the NPRM, FRA 
had proposed requiring that interior glazing meet the minimum 
requirements of AS1 type laminated glass as defined in American 
National Standard ``Safety Code for Glazing Materials for Glazing Motor 
Vehicles Operating on Land Highways,'' ASA Standard Z26.1-1966. See 62 
FR 49817. (Bombardier commented that it believed the latest revision to 
this standard occurred in 1990 rather than 1966.) FRA intended that the 
proposed requirement would alleviate the need for interior window 
glazing to meet the stringent impact resistance requirements placed on 
exterior glazing, while ensuring that the glazing will shatter in a 
safe manner like automotive glazing. In response to this proposal, GE 
Plastics commented that requiring the glass to meet the AS1 
requirements would exclude recognized safety glazing materials for 
reasons unrelated to the glazing's ability to break safely, such as 
light transmission, light distortion, and abrasion resistance. GE 
plastics further commented that specifying a requirement for laminated 
glass would exclude many established safety glazing materials. GE 
Plastics recommended that, if safety glazing is desired, FRA 
incorporate instead the 1984 version of the ANSI Z97.1 safety glazing 
standard for use in buildings, which defines safety glazing as 
``Glazing materials so constructed, treated, or combined with other 
materials that, if broken by human contact, the likelihood of cutting 
and piercing injuries that might result from such contact is 
minimized.''
    AtoHaas Americas, Inc., (AtoHaas) similarly commented that the AS1 
standard incorporated in FRA's interior glazing proposal is an external 
glazing standard that contains requirements which may not be needed for 
internal glazing, such as light stability, luminous transmittance, and 
abrasion resistance. Likewise, AtoHaas commented that specifying a 
requirement for laminated glass would exclude other materials able to 
meet the safety needs here for internal glazing. AtoHaas noted that 
there are many types of glazing that would shatter or break in a safe 
manner, and urged FRA to examine the American National Standard for 
Safety Glazing Used in Buildings for products meeting FRA's safety 
needs. FRA will consider these recommendations with the Working Group 
in the second phase of the rulemaking, and presents them here to 
advance discussion on potential requirements for interior window 
glazing in Tier II passenger equipment.
Section 238.423  Fuel Tanks
    This section contains the requirements for fuel tanks for fossil-
fueled Tier II passenger equipment. This section should be read with 
the discussion of locomotive fuel tanks in the preamble. This section 
contains separate requirements for external fuel tanks, which extend 
outside the car body structure, and for internal tanks, which do not 
extend outside the car body.
    In commenting on the proposed rule, Bombardier recommended that the 
same requirements proposed for Tier I fuel tanks apply to Tier II 
equipment as well. Bombardier stated that early consensus was reached 
to do so in the Tier II working group during development of the NPRM. 
Bombardier maintained that this consensus was based on the fact that 
there are no fuel tanks on the electric trainsets being built for the 
NEC; the maximum speed for a fossil-fueled version of the trainsets 
would be 125 mph; and no data exists to support the need for different 
fuel tank requirements for Tier I and Tier II equipment. Further, 
Bombardier stated that the requirements for Tier I fuel tanks 
incorporate the most current industry practices for diesel electric 
locomotive fuel tanks.
    In response to Bombardier's comment, FRA believes that different 
fuel tank requirements for Tier I and Tier II equipment may be 
appropriate based on the different maximum speeds at which the 
equipment can travel. However, FRA recognizes that the specific 
differences between the proposed Tier I and Tier II fuel tank 
requirements have not been tightly justified. Accordingly, the final 
rule requires compliance with Tier I requirements for internal fuel 
tanks, and includes a requirement for

[[Page 25637]]

FRA review and approval of any Tier II external fuel tank for safety 
equivalence with Tier I performance.
    As Bombardier pointed out in its comments, the NPRM did contain a 
technical mistake in proposed Sec. 238.223(b)(2), which had as its Tier 
II counterpart proposed Sec. 238.423(b)(3). Accordingly, these 
paragraphs have been corrected in the final rule to reflect that the 
25,000-lb yield strength described in the proposals is in fact a 
25,000-lb per-square-inch yield strength.
Section 238.425  Electrical System.
    FRA did not receive any specific comments on this section, and it 
is adopted as proposed. This section contains the requirements for the 
electrical system design of Tier II passenger equipment. These 
requirements reflect common electrical safety practice and are widely 
recognized as good electrical design practice. They include provisions 
for:
     Circuit protection against surges, overload and ground 
faults;
     Electrical conductor sizes and properties to provide a 
margin of safety for the intended application;
     Battery system design to prevent the risk of overcharging 
or accumulation of dangerous gases that can cause an explosion;
     Design of resistor grids that dissipate energy produced by 
dynamic braking with sufficient electrical isolation and ventilation to 
minimize the risk of fires; and
     Electromagnetic compatibility within the intended 
operating environment to prevent electromagnetic interference with 
safety-critical equipment systems and to prevent interference of the 
rolling stock with other systems along the right-of-way.
Section 238.427  Suspension System
    In response to comments on the 1997 NPRM and for purposes of 
clarification, FRA has revised the requirements of this section. 
Changes from the NPRM are noted below in the general discussion of this 
section.
    As explained in the NPRM, safety requirements concerning the wheel-
rail interface have traditionally been addressed as part of the track 
safety standards. In parallel with the Tier II Equipment Subgroup's 
effort to develop high-speed equipment safety standards, the RSAC Track 
Working Group developed a final rule on track safety standards which 
includes high-speed track standards. See 63 FR 33992, June 22, 1998. In 
October 1996, FRA sponsored a joint meeting of the Tier II Equipment 
Subgroup and members of the Track Working Group focusing on the 
development of high-speed track standards to ensure that the two sets 
of standards not conflict at the wheel-rail interface, where they 
overlap. FRA did receive a comment on the passenger equipment NPRM that 
the two sets of standards do in fact conflict, and this comment is 
addressed in particular in the discussion of Appendix C to this part 
(Suspension System Safety Performance Standards).
    To ensure safe, stable performance and ride quality, paragraph (a) 
requires suspension systems to be designed to reasonably prevent wheel 
climb, wheel unloading, rail rollover, rail shift, and a vehicle from 
overturning. These requirements must be met in all operating 
environments, and under all track and loading conditions as determined 
by the operating railroad. In addition, these requirements must be met 
under all track speeds and track conditions consistent with the Track 
Safety Standards (49 CFR part 213), up to the maximum operating speed 
and maximum cant deficiency of the equipment. These broad suspension 
system performance requirements address the operation of equipment at 
both high speed over well maintained track and at low speed over lower 
classes of track. Suspension system performance requirements are needed 
at both high and low speeds as exemplified by incidents where stiff, 
high-speed suspension systems caused passenger equipment to derail 
while negotiating curves in yards at low speeds.
    Compliance with paragraph (a) must be demonstrated during pre-
revenue service acceptance testing of the equipment and by complying 
with the safety performance standards for suspension systems contained 
in Appendix C to this part. Because better ways to demonstrate 
suspension system safety performance may be developed in the future, 
the rule allows the use of alternative standards to those contained in 
Appendix C if they provide at least equivalent safety and are approved 
by the FRA Associate Administrator for Safety under the provisions of 
Sec. 238.21.
    Paragraph (b) requires the steady-state lateral acceleration of 
passenger cars to be less than 0.1g, as measured parallel to the car 
floor inside the passenger compartment, under all operating conditions.
    Paragraph (c) requires each truck to be equipped with a permanently 
installed lateral accelerometer mounted on the truck frame. If hunting 
oscillations are detected, the train must be slowed. FRA has revised 
this section to specify that hunting oscillations are considered a 
sustained cyclic oscillation of the truck which is evidenced by lateral 
accelerations in excess of 0.4g root mean square (mean-removed) for 2 
seconds. In its comments on the rule, Talgo had recommended that the 
permissible limits of hunting oscillations be specified in the rule 
text and not in the definitions section, Sec. 238.5, as proposed in the 
NPRM. See definition of hunting oscillations in proposed Sec. 238.5, 62 
FR 49793. FRA has adopted Talgo's suggestion for clarity. However, FRA 
has not adopted Talgo's alternative specification. Talgo commented 
that, using the formulation in the NPRM in defining hunting 
oscillations for Tier II passenger equipment, lateral oscillations 
should apply on a peak basis, rather than on a peak-to-peak basis. 
Talgo explained that oscillations would be considered dangerous if the 
amplitude of six consecutive peaks exceeded 0.8g. Talgo added that this 
approach is followed in Europe, citing UIC-515, and believed it more 
reasonable than the proposed formulation. FRA has revised the 
definition of hunting oscillations to make it consistent with the 
definition of truck hunting in 49 CFR Sec. 213.333, Note 4 to the table 
of Vehicle/Track Interaction Safety Limits. FRA determined that the 
approach using the root mean square (mean-removed) was the preferred 
indicator of the forces associated with truck hunting, and takes into 
consideration the oscillatory nature of truck hunting. FRA believes 
this definition of truck hunting removes the uncertainty in counting 
the number of sustained oscillations.
    FRA has further revised the rule to specify that the accelerometer 
measurements shall be processed through a filter having a band pass of 
0.5 to 10 Hz. Talgo also commented the rule should state that in 
measuring the amplitude of lateral oscillations, the signal should be 
filtered with a band pass of 4 to 8 Hz so that irrelevant signals are 
excluded. FRA has adopted Talgo's recommendation in general, yet has 
specified a pass band consistent with the track safety standards. See 
49 CFR Sec. 213.333, Note 3 to table of Vehicle/Track Interaction 
Safety Limits.
    Paragraph (d) provides ride vibration (quality) limits for vertical 
accelerations, lateral accelerations, and the combination of lateral 
and vertical accelerations. These limits must be met while the 
equipment is traveling at the maximum operating speed over its intended 
route. In commenting on the NPRM, Bombardier noted that the values 
proposed in this paragraph were not fully consistent with the values 
found in the then-proposed track safety standards, and requested that 
they be

[[Page 25638]]

made consistent. FRA has revised the requirements of this paragraph 
accordingly. For clarity, as used in paragraph (d)(1)(iii), the formula 
(aL2+aV2) can be restated as the sum of the 
square of both accelerations.
    FRA has combined paragraph (e) of proposed Sec. 238.427 into 
paragraph (d) of the final rule as paragraph (d)(2). This provision 
requires that compliance with the requirements of this paragraph be 
demonstrated during the equipment's pre-revenue service qualification 
tests required under Sec. 238.111 and Sec. 213.345 of the federal track 
safety standards. One of the most important objectives of pre-revenue 
service qualification testing is to demonstrate that suspension system 
performance requirements have been met. FRA makes clear that the 
requirements of paragraph (d)(2) need only be shown during pre-revenue 
service qualification testing of the equipment.
    FRA has added paragraph (d)(3) to make clear that, for purposes of 
paragraph (d), acceleration measurements shall be processed through a 
filter having a band pass of 0.5 to 10 Hz. In its comments on the NPRM, 
Talgo observed that the signal filter to use in performing the limit 
calculations had not been specified in this paragraph, and suggested 
using a band pass filter of 0.4 to 10 Hz. FRA has effectively adopted 
Talgo's comment.
    Paragraph (e) requires wheelset journal bearing overheat sensors to 
be provided either on board the equipment or at reasonable intervals 
along the railroad's right-of-way. FRA prefers sensors to be on board 
the equipment to eliminate the risk of a hotbox that develops between 
wayside locations. However, FRA does recognize that onboard sensors 
have a history of falsely detecting overheat conditions, causing 
significant operating difficulties for some passenger railroads.
    FRA has clarified paragraph (e) based on a comment from Bombardier 
that this provision should apply to each wheelset journal bearing, and 
not to each equipment bearing as stated in Sec. 238.427(f), see 62 FR 
49818. This is in accord with FRA's original intent.
Section 238.429  Safety Appliances
    This section contains the requirements for safety appliances for 
Tier II passenger equipment. FRA has attempted to simplify and clarify 
how the Safety Appliance Standards contained in 49 CFR part 231 and 49 
U.S.C. 20302(a) will be applied to Tier II passenger equipment. The 
requirements contained in this section are basically a restatement of 
existing requirements but tailored specifically for application to this 
new and somewhat unconventional equipment. They represent the consensus 
recommendation of the Tier II Equipment Subgroup.
    This final rule has retained all of the requirements proposed in 
the 1997 NPRM. The only modification to the safety appliance 
requirements is in response to one commenter's recommendation that the 
requirements related to sill steps be made more consistent with 
existing regulations. As a result, the requirement contained in 
paragraph (e)(7), regarding the maximum height of the lowest sill step 
tread, has been changed to be consistent with existing regulations and 
practice.
    This same commenter also recommended that a specific grade of steel 
be designated in the requirements for the steel or other materials used 
for handrails, handholds, and sill steps, and that the grade of SAE 
(Society of Automotive Engineers) bolt to be used as mechanical 
fasteners be specified as well. FRA believes that steel or other 
materials used for handrails, handholds, and sill steps should at least 
be equivalent to specification ASTM A-576, Grade 1015-1020 steel. 
However, to the extent this need be specified as a requirement, FRA 
believes it would be more appropriate to consider doing so for safety 
appliances on all passenger equipment--not just Tier II passenger 
equipment. FRA had not made such a proposal in the NPRM; and this issue 
may be reexamined in Phase II of the rulemaking. As for the strength of 
mechanical fasteners, the final rule states that mechanical fasteners 
must have a mechanical strength at least equivalent to that of a \1/2\ 
inch diameter SAE grade steel bolt, as FRA had proposed in the NPRM. 
FRA believes that any SAE grade of steel bolt will satisfy this 
requirement, and, as a result, FRA has not modified the final rule in 
this regard.
    Paragraph (b) deserves special mention; it requires that Tier II 
passenger trains be provided with a parking or hand brake that can be 
set and released manually and can hold the equipment on a 3-percent 
grade. A hand brake is an important safety feature that prevents the 
rolling or runaway of parked equipment.
Section 238.431  Brake System
    This section contains the brake system design and performance 
requirements for Tier II passenger equipment, and, except for one 
provision, represents the consensus recommendation of the Tier II 
Equipment Subgroup. The provisions contained in this section are 
virtually identical to the requirements proposed in the 1997 NPRM. 
Except for one commenter's recommendation that leeway be provided on 
the number of locations in a vehicle that must be equipped with a means 
to effectuate an emergency brake application on shorter equipment, no 
substantive adverse comments were received on the provisions contained 
in this section and, thus, they have been retained without change.
    As noted in the 1997 NPRM, the main issue of concern among Subgroup 
members involved the capability of sensor technology used to monitor 
the application and release of brakes. Labor representatives maintained 
that a technology that actually measures the force of brake shoes and 
pads against wheels and brake discs is required for a reliable 
indication of brake application and release. Railroad operators 
contended that this technology is not commercially available and that 
monitoring pressure in brake cylinders does provide a reliable 
indication of brake application and release, particularly when those 
cylinders are directly adjacent to the point where brake friction 
surfaces are forced together. FRA agrees that the technology suggested 
by certain labor commenters is not currently available and that brake 
system piston travel or piston cylinder pressure indicators have been 
used with satisfactory results for many years. Although FRA agrees that 
these indicators do not provide 100 percent certainty that the brakes 
are effective, they have proven effective enough to be preferable to 
requiring an inspector to assume a dangerous position while inspecting 
a train's brake system.
    Aside from this issue, the rest of the brake system design and 
performance requirements contained in this section received widespread 
support. In fact, several of the requirements were contained in written 
positions provided by both rail labor and management members of the 
Subgroup, and virtually all of the requirements were discussed in the 
high-speed passenger equipment section of the 1994 NPRM on power 
brakes. See 59 FR 47693-94, 47699-47700, and 47730. Many of the 
requirements in this section are similar to the requirements for Tier I 
passenger equipment contained in Sec. 238.231, thus the discussion 
related to that section should be read in conjunction with the 
following discussion.
    Paragraph (a) of this section is virtually identical to the 
requirement related to the braking systems of Tier I passenger 
equipment in Sec. 238.231(a).
    Paragraph (b) contains a requirement similar to that in 
Sec. 238.231(b) and is

[[Page 25639]]

intended to protect railroad employees. FRA believes that inspectors of 
equipment must be able to ascertain if brakes are applied or released 
without placing themselves in a vulnerable position. This final rule 
allows railroads the flexibility of using a reliable indicator in place 
of requiring direct observation of the brake application or piston 
travel because the designs of many of the brake systems used on 
passenger equipment make direct observation of the brakes extremely 
difficult. Brake system piston travel or piston cylinder pressure 
indicators have been used with satisfactory results for many years. 
Although indicators do not provide 100 percent certainty that the 
brakes are effective, they have proven effective enough to be 
preferable to requiring an inspector to assume a dangerous position.
    Paragraph (c) is virtually identical to the requirement contained 
in Sec. 238.231(c), and is a fundamental brake system performance 
requirement that an emergency brake application feature be available at 
any time and produce an irretrievable stop. This paragraph contains an 
additional requirement that a means to actuate the emergency brake be 
provided at two locations in each unit of the train. This additional 
requirement ensures the availability of the emergency brake feature and 
is in accordance with the current available design of high-speed 
passenger equipment. FRA received comments from Renfe Talgo 
recommending that FRA change this requirement to permit shorter 
equipment to provide only one location in each unit of a train with a 
means to actuate the emergency brake. This commenter recommends such 
leeway due to the fewer number of passengers in these units and due to 
the distance any one passenger would be to the actuation device when 
compared to the distance in standard length passenger train units. FRA 
has modified this paragraph to provide that equipment that is 45 feet 
or less in length (approximately one-half the length of standard 
passenger equipment) need provide a means to actuate the emergency 
brake at only one location in each such unit of the train.
    Paragraph (d) requires the brake system to be designed to prevent 
thermal damage to wheels and brake discs.
    Paragraph (e) contains requirements related to blended braking 
systems. These requirements are similar to those contained in 
Sec. 238.231(j). The only additional requirement is that the 
operational status of the electric portion of the blended brake be 
displayed in the operator's cab. Operators of this high-speed equipment 
may use different train handling procedures when the electric portion 
of blended brake is not available. Therefore, a dangerous situation 
could arise when an operator of these high-speed trainsets expects the 
electric portion of the blended brake to be available and it is not. 
FRA believes that when operations exceed 125 mph either the train must 
not be used if the electric portion of the blended brake is not 
available, or the train operator must know that the electric portion of 
the blended brake is not available so he or she can be prepared to use 
compensating train handling procedures. Further, FRA believes that if 
the additional heat input to wheels or discs caused by lack of the 
electric portion of the blended brake causes thermal damage to these 
braking surfaces, then the electric portion of the blended brake should 
be considered a required safety feature and, unless it is available, 
the equipment should not be used.
    Paragraph (f) requires the brake system to allow a disabled train's 
pneumatic brakes to be controlled by a conventional locomotive during 
rescue operations.
    Paragraph (g) requires that Tier II passenger trains be equipped 
with an independent brake failure detection system that compares brake 
commands to brake system outputs to determine if a failure has 
occurred. This paragraph also requires that the brake failure detection 
system report failures to the automated monitoring system, which is 
contained in Sec. 238.445, thus alerting the train operator to 
potential brake system degradation so that the operator can take 
corrective action such as slowing the train.
    Paragraph (h) requires that all Tier II passenger equipment be 
provided with an adhesion control system designed to automatically 
adjust the braking force on each wheel to prevent sliding during 
braking. This paragraph also requires that the train operator be 
alerted in the event of a failure of this system with a wheel slide 
alarm that is visual or audible, or both. This feature ties the 
adhesion control system to the automated monitoring system and prevents 
dangerous wheel slide flat conditions that can be caused when wheels 
lock during braking.
Section 238.433  Draft System
    FRA is requiring that leading and trailing automatic couplers of 
Tier II trains be compatible with standard AAR couplers with no special 
adapters used. FRA believes that compatibility with standard couplers 
is necessary in order that a conventional locomotive could assist in 
the rescue of disabled Tier II passenger equipment. In addition, 
couplers must include an automatic coupling feature as well as an 
uncoupling device that complies with 49 U.S.C. chapter 203, 49 CFR part 
231, and 49 CFR Sec. 232.2. FRA believes that automatic uncoupling 
devices are necessary in order to comply with the intent of the statute 
so that employees will not have to place themselves between equipment 
in order to perform coupling or uncoupling operations.
Section 238.435  Interior Fittings and Surfaces
    This section contains the requirements for interior fittings and 
surfaces. Once survivable space is ensured by basic vehicle structural 
strength and crash energy management requirements, the design of 
interior features becomes an important factor in preventing or 
mitigating injuries resulting from collisions or derailments. Loose 
seats, equipment, and luggage are a significant cause of injuries in 
passenger train collisions and derailments.
    Paragraphs (a) through (c) contain requirements for the design of 
passenger car seats and the strength of their attachment to the car 
body. These requirements are based on sled tests of passenger coach 
seats, seat tests conducted for other modes of transportation, and 
computer modeling to predict the results of passenger train collisions. 
These provisions include a requirement for shock absorbent material on 
the backs of seats to cushion the impacts of passengers with the seats 
ahead of them.
    FRA has modified paragraph (a) based on comments received in 
response to the NPRM. In the NPRM, FRA proposed requiring a seat back 
in a passenger car to be designed to withstand, with deflection but 
without total failure, the load of a seat occupant who is a 95th-
percentile male accelerated at 8g who impacts the seat back. See 62 FR 
49819. Simula, in commenting on the NPRM, suggested that the seat back 
in a passenger car should be designed to withstand, with deflection but 
without total failure, the impact of unrestrained occupant(s) seated 
behind the test article (seat back) and subjected to the same crash 
pulse. Further, in its comments on the NPRM, Bombardier noted that the 
design of the seats in Amtrak's HTS is based on a 185-pound occupant 
according to Amtrak's specification, while paragraph (a) specified the 
occupant size as a 95th-percentile male.
    In the final rule, paragraph (a) requires that the design of the 
seat back

[[Page 25640]]

and seat attachment withstand, with deflection but without total 
failure, the load associated with the impact into the seat back of an 
unrestrained 95th-percentile adult male initially seated behind the 
seat, when the floor to which the seat is attached decelerates with a 
triangular crash pulse having a peak of 8g and a duration of 250 
milliseconds. (As used in this section, a 95th-percentile adult male 
has been defined in Sec. 238.5.) This modification clarifies the intent 
of the proposal, and specifies a crash pulse. As noted by Simula, 
specifying a crash pulse recognizes the importance of testing seats 
dynamically to represent actual conditions in a train collision. 
Paragraph (a) has also been modified to incorporate paragraph (c)(1) of 
the proposed rule by stating that the seat attachment must also resist 
the specified load as well, and this is discussed below.
    In response to Bombardier's comment on the size of the occupant 
seated behind the seat being tested for purposes of determining the 
required strength of the seat, FRA notes that the specification for 
Amtrak's HTS does provide for use of a smaller occupant than is 
specified in the rule. However, the Amtrak specification also provides 
that the occupant be subjected to a more severe crash pulse than that 
specified in the rule. As a result, FRA believes that under paragraph 
(a) the energy required to be absorbed by the seat being tested is not 
greater than that provided for in the Amtrak specification, and FRA has 
not modified the rule on this point.
    As noted above, FRA has modified paragraph (c) in the final rule by 
incorporating proposed paragraph (c)(1) into paragraph (a) of the final 
rule and retaining, as renumbered in paragraph (c) of the final rule, 
proposed paragraphs (c)(2) and (c)(3) in the NPRM. See 62 FR 49819. FRA 
has incorporated proposed paragraph (c)(1) into paragraph (a) of the 
final rule based in part on a comment from Simula that the ultimate 
strength of a seat attachment to a passenger car body shall be 
sufficient to withstand a crash pulse representing a typical train 
accident (275 msec triangular pulse, peak acceleration 10 G) and the 
impact of an unrestrained occupant(s) behind the test article. 
Incorporating the longitudinal strength requirement proposed for the 
seat attachment in paragraph (c)(1) of the NPRM into paragraph (a) of 
the final rule rationalizes the rule and recognizes that the seat 
attachment requirement and the seat back requirement both take into 
account the force of a train occupant impacting the seat from behind. 
However, FRA has not adopted Simula's recommendation to increase the g 
loading that the seat attachment is required to withstand or specify a 
crash pulse as long as 275 milliseconds, triangular. Simula's 
recommendation appears to be based on the assumption that higher speed 
train collisions will result in greater decelerations of longer 
duration in a trailer car. Yet, FRA believes that the resulting 
decelerations will have only a longer duration. As the duration for 
which an occupant impacts an interior surface has a negligible 
influence on potential injury, the 8g force and 250 msec crash pulse 
specified in this paragraph is appropriate for Tier II passenger 
equipment.
    The lateral and vertical loading requirements in paragraph (c) 
remain unchanged from the NPRM other than being renumbered.
    FRA has not incorporated two other comments from Simula on this 
section for the reasons noted below. First, Simula suggested adding a 
requirement that two rows of seats should be included in the seat 
testing and positioned to represent the row-to-row pitch for 
installation. FRA has not modified the rule in this regard, because FRA 
believes it evident that in testing seats to show compliance with the 
requirements of this section the positioning of the seats must 
represent the actual positioning of the seats in the passenger car 
subject to the requirements of this section. In addition, Simula 
recommended that instrumented Hybrid III dummies be seated in the row 
behind the test article to determine occupant injury potential during a 
dynamic test, and that the data measured by the dummies meet specified 
injury criteria available in a pending APTA standard. Simula further 
recommended that the number and size of unrestrained occupants (crash 
test dummies) to be used in testing be defined in the APTA standard. 
Simula noted that the results of ongoing research will be used to 
complete the standard, and that to meet injury performance criteria the 
railroad may have to use some form of occupant restraint system. As 
evidenced by Simula's comments, specifying occupant injury criteria is 
an ongoing issue and, as such, is best deferred to the second phase of 
this rulemaking. FRA does recognize that pursuing the specification of 
occupant injury criteria is both sound and technically appropriate, and 
encourages research in this regard for use in the second phase of the 
rulemaking, in addition to examining the use of NHTSA occupant injury 
criteria.
    Paragraph (d) contains the requirements for strength of attachment 
of interior fittings and is similar to that required in 
Sec. 238.233(c). Similar to its comment noted above, Bombardier 
remarked that proposed paragraph (d) specified a 95th-percentile male 
for use in determining the required strength of certain interior 
fittings. See 62 FR 49819-20. Bombardier explained that the design of 
tables for Amtrak's HTS does not follow this approach, and that, based 
on research conducted within the rail industry, it relates to impact 
velocities of a 185-pound occupant. Bombardier was unsure how the 
proposed rule compared to the way tables were being designed and 
constructed for Amtrak's HTS, and requested that the practicality of 
the proposed approach be first considered. As FRA responded above to 
Bombardier's similar comment, FRA believes that specifying a larger 
occupant size will not in itself increase the strength that the fitting 
is required to withstand since the Amtrak specification provides that 
the 185-pound occupant must resist a more severe crash pulse than that 
provided in the rule. FRA believes the requirement in paragraph (d) is 
not greater than that required under the Amtrak specification for HTS.
    Paragraph (e) contains a special requirement for the ultimate 
strength of seats and other fittings in the cab of a power car. Due to 
the extra strength of the cab, its structure is capable of resisting 
forces caused by accelerations that exceed 10g. As a result, benefit 
can be gained from a greater longitudinal strength requirement for seat 
and other interior fitting attachments. FRA is therefore requiring that 
seats and equipment in the cab be attached to the car body with 
sufficient strength to resist longitudinal forces caused by an 
acceleration of 12g. The lateral and vertical requirements remain 4g. 
These requirements do not apply to equipment located outside the cab.
    In its comments on the NPRM, Simula also recommended that the 12g 
longitudinal requirement be supplemented by a 250-millisecond dynamic 
crash pulse. However, FRA believes that this will result in a more 
expensive test without a corresponding increase in safety. Simula 
further suggested that the 4g lateral and vertical loading requirements 
apply to the combined mass of the seat and the seat occupant. FRA notes 
that such a requirement is provided in Sec. 238.447(f)(2).
    Paragraphs (f) and (g) contain requirements representing good 
safety design practice for any type of vehicle.
    FRA believes the luggage restraint requirement in paragraph (h) 
will

[[Page 25641]]

prevent many of the injuries caused by flying luggage that are typical 
of passenger train collisions and derailments.
    FRA has included paragraph (i) in the final rule, consistent with 
its parallel requirement in Sec. 238.233(g) for Tier I passenger 
equipment.
Section 238.437  Emergency Communication
    This section requires an emergency communication system with back-
up power within a Tier II train. This safety feature will allow the 
train crew to provide evacuation and other instructions to passengers, 
and help prevent panic that can occur during emergency situations.
    FRA's principal revision to this section allows passenger cars 45 
feet or less in length to have only one emergency communication 
transmission location. FRA had proposed that transmission locations be 
placed at both ends of each passenger car. In response to the proposal, 
Talgo commented that in considering the placement of transmission 
locations, the operative factor should be the distance from any point 
on the train to the nearest transmission unit--rather than specifying 
that they be placed at the ends of each passenger car. Talgo believed 
this necessary to accommodate cars which are half the length in size of 
conventional cars.
    As the length of a conventional railroad passenger car is typically 
between 85 and 90 feet, FRA believes it appropriate to require a car 
not more than half that length to have only one emergency communication 
transmission unit. However, FRA is not prepared to specify a 
requirement to place such transmission units solely on the distance 
from any point on the train to the nearest transmission unit. By taking 
into account the location of transmission units on a train level, the 
nearest transmission unit to a passenger seated in one car may in fact 
be a transmission unit located in an adjoining car. However, having to 
pass into an adjoining car to access the transmission unit, although 
nearer linearly, may at a minimum be impracticable in certain 
situations. FRA believes that each Tier II passenger car, no matter its 
size, must have its own emergency communication transmission unit.
    This section also requires that emergency communication 
transmission locations be marked with luminescent material, that clear 
instructions be provided for the use of the emergency communication 
system, and that the emergency communication system have back-up power 
for a minimum period of 90 minutes.
    In commenting on the rule, the NTSB noted that FRA had not proposed 
emergency communication requirements for Tier I operations. The NTSB 
believed that emergency communication requirements are necessary for 
Tier I operations because the majority of passenger train accidents 
have occurred in those operations. The NTSB also stated that emergency 
communication requirements should not be limited to intra-train 
operations, but include as well the ability to communicate from the 
train to outside sources. In a similar comment on the NPRM, the UTU 
stated that passenger trains should not be dispatched without working 
head end radios and a reliable backup system. The UTU also commented 
that all conductors and crewmembers should be issued portable radios 
capable of communicating with each other, the head end, and the 
dispatcher or control center.
    FRA is not applying the Tier II requirements for intra-train 
emergency communication to Tier I operations at this time. FRA agrees 
with the NTSB's comment that emergency communication requirements 
should not be a function of speed, but rather a function of the design 
and configuration of the train and the terrain in which the train 
operates. Yet, FRA's decision here is not based on speed. FRA initially 
proposed to limit this proposal to Tier II passenger trains because 
such trains are intended to operate as a fixed unit, unlike most Tier I 
passenger trains. Whereas an emergency system to communicate throughout 
the train may be more easily provided for in a train which remains as a 
fixed unit, the interchangeability of passenger cars and locomotives 
raises practical considerations about the compatibility of 
communications equipment in a Tier I passenger train. FRA believes it 
best to address these considerations and further examine requirements 
concerning emergency communication within a Tier I train in the second 
phase of the rulemaking, following consideration of these issues by the 
APTA PRESS Task Force.
    As to requirements for emergency communication from a train to an 
outside source, FRA has addressed such requirements in the Railroad 
Communications final rule, designated as Docket No. RSOR-12. See 63 FR 
47182; Sept. 4, 1998. FRA recognizes that the ability to communicate in 
an emergency is important for all trains--freight and passenger. In 
particular, because passenger trains operate commingled with freight 
trains, the ability of a freight train crew to notify a railroad 
control center of an emergency involving its train may prevent a 
collision with an oncoming passenger train. The railroad communications 
rulemaking was supported by a working group, established through RSAC, 
which specifically addressed communication facilities and procedures, 
with a strong emphasis on passenger train emergency requirements. In 
general, section 220.209 of the Railroad Communications final rule 
provides that, for each railroad having no fewer than 400,000 employee 
work hours, each occupied controlling locomotive in a train shall have 
a working radio that can communicate with the control center of the 
railroad, and each train shall also have communications redundancy, 
i.e., a working radio on another locomotive in the consist or other 
means of working wireless communication. See 49 CFR Sec. 220.9; 63 FR 
47195-6. Moreover, in addition to the requirements of the Railroad 
Communications rule, FRA notes that intercity passenger and commuter 
railroads already make extensive provision for ensuring communication 
capabilities during emergencies. FRA believes that other communications 
issues have been resolved either in the railroad communications 
rulemaking, the passenger train emergency preparedness rulemaking, or 
this final rule. However, any final issues can be addressed in the 
second phase of this rulemaking.
Section 238.439  Doors
    This section contains the requirements for doors on Tier II 
passenger cars. This section should be read with the discussion of 
passenger car doors earlier in the preamble. As stated, FRA has 
modified the requirement for the number of exterior side doors per 
passenger car (contained in paragraph (a)) by specifying that each car 
shall have a minimum of two such doors.
    The requirements in paragraph (b) are similar to those contained in 
Sec. 238.235(b) for Tier I passenger equipment. However, the 
requirements of paragraph (c) have no counterpart in Sec. 238.235. This 
paragraph requires the status of powered, exterior side doors to be 
displayed to the crew in the operating cab and, if door interlocks are 
used, the sensors to detect train motion must nominally be set to 
operate at not more than 3 mph. Such equipment is well within current 
technology. Paragraph (d) requires that powered, exterior side doors be 
connected to an emergency back-up power system.

[[Page 25642]]

Paragraph (e) is identical to that provided for Tier I passenger 
equipment in Sec. 238.235(c).
    Paragraph (f) requires passenger compartment end doors to be 
equipped with a kick-out panel, pop-out window, or other means of 
egress in the event the doors will not open, or be so designed as to 
pose a negligible probability of becoming inoperable in the event of 
carbody distortion following a collision or derailment. This paragraph 
does not apply to such doors providing access to the exterior of a 
trainset, however, as in the case of an end door in the last car of a 
train. In the NPRM, FRA discussed that the requirements in this 
paragraph originally arose out of the NTSB's emergency safety 
recommendations following its investigation of the February 16, 1996, 
collision between a MARC commuter train and an Amtrak passenger train 
in Silver Spring, Maryland. See 62 FR 49734-5. Specifically, as stated 
in its final railroad accident report, the NTSB recommended that FRA:

    Require all passenger cars to have either removable windows, 
kick panels, or other suitable means for emergency exiting through 
the interior and exterior passageway doors where the door could 
impede passengers exiting in an emergency and take appropriate 
emergency measures to ensure corrective action until these measures 
are incorporated into minimum passenger car safety standards. (NTSB/
RAR-97/02) (R-97-15)

    As explained in the NPRM, FRA proposed that the first practical 
application of the NTSB's recommendation be made with respect to Tier 
II passenger car end doors. See 62 FR 49735. FRA has been assisting 
APTA through its PRESS task force examine the full range of options for 
implementing the NTSB recommendation in Tier I passenger equipment, in 
addition to the Volpe Center's work on emergency egress on a systems 
level. These complementary efforts will be brought together in the 
second phase of the rulemaking.
    FRA notes that it has modified paragraph (f) from the proposal in 
the NPRM, see 62 FR 49820 (proposed Sec. 238.441(d)), to permit Tier II 
passenger car doors to be designed without a kick-out panel, pop-out 
window, or like feature, provided that the doors pose a negligible 
probability of becoming inoperable in the event of carbody distortion 
following a collision or derailment. FRA believes this modification is 
consistent with the NTSB's safety recommendation
(R-97-15).
    Paragraph (g) is reserved for door marking and operating 
instruction requirements. These requirements are currently provided in 
the rule on passenger train emergency preparedness at 49 CFR 
Sec. 239.107. See 63 FR 24630, 24680. In phase II of the rulemaking, 
FRA will consider integrating the door marking and operating 
instruction requirements found in part 239 with this part. 
Additionally, FRA will consider revising those requirements as 
necessary.
Section 238.441  Emergency Roof Entrance Location
    This section requires that Tier II passenger equipment either have 
a roof hatch or a clearly marked structural weak point in the roof to 
provide quick access for properly equipped emergency personnel. Such 
features will aid in removing passengers and crewmembers from a vehicle 
that is either on its side or upright.
    In the NPRM, FRA proposed that each Tier II passenger car be 
equipped with a minimum of two such emergency roof entrance locations. 
See 62 FR 49820. Talgo, in its comments on this proposal, remarked that 
a passenger car half the length of a conventional passenger car should 
require only one roof hatch or structural weak point. Further, 
Bombardier commented that the high-speed trainsets it is constructing 
for Amtrak will have only one structural weak point located in the 
center of the passenger cars due to the location of roof-mounted air 
conditioning units at each end of the cars.
    In the final rule, each Tier II passenger car and each cab of a 
power car is required to have at least one emergency roof entrance 
location to permit the evacuation of the vehicle's occupants through 
the roof. Beyond the issue of the sufficiency of the number of 
emergency roof entrance locations for Tier II passenger equipment is 
the larger issue of applying requirements for emergency roof entrance 
locations to Tier I passenger equipment. The final rule does not 
contain such requirements for Tier I passenger equipment, and there was 
no consensus within the Working Group to do so. See 62 FR 49750-1. 
However, FRA believes that work within the APTA PRESS Task Force will 
lead to reconciliation of Tier I and Tier II requirements on this 
issue. FRA intends to reexamine the requirements of this section in the 
second phase of the rulemaking with a view to applying emergency roof 
entrance locations requirements to Tier I passenger equipment. In the 
meantime, the public is entitled to the protection afforded by the Tier 
II standard. High-speed derailments may be more severe because of the 
total energy involved and a potentially longer ``ride down'' during 
which injuries may occur, rendering occupants incapable of exiting the 
train under their own power.
    Paragraph (b) is reserved for marking and instruction requirements 
to be specified as necessary in the second phase of this rulemaking.
Section 238.443  Headlights
    FRA received no comments on this provision, and it is adopted as 
proposed. Because of the high speeds at which Tier II passenger 
equipment operates, FRA is requiring that a headlight be directed 
farther in front of the train to illuminate a person than is currently 
required for existing equipment under 49 CFR Sec. 229.125(a). A Tier II 
passenger train will travel distances more quickly than a Tier I 
passenger train, and the train operator will have less time to react, 
thereby necessitating earlier awareness of objects on the track.
    FRA notes that, as further specified in 49 CFR Sec. 229.125(d)-(h), 
locomotives operated at speeds greater than 20 miles per hour over one 
or more public highway-rail crossings are required to be equipped with 
operative auxiliary lights. The requirements contained in 
Sec. 229.125(d)-(h) do apply, according to their terms, to Tier II 
passenger equipment. Any proposal to the contrary in the NPRM was made 
in error.
Section 238.445  Automated Monitoring
    This section contains the requirements related to the automated 
monitoring of the status or performance of various safety-related 
systems on Tier II passenger trains. A number of passenger train 
accidents have been either fully or partly caused by human error. The 
faster operating speeds of Tier II passenger equipment will afford the 
train operator less time to evaluate and react to potentially dangerous 
situations, thereby increasing the potential for accidents. Automated 
monitoring systems can decrease the risk of accidents by alerting the 
train operator to abnormal conditions and advising the operator as to 
necessary corrective action. Such systems can even be designed to take 
corrective action automatically in certain situations.
    FRA received no comments on this section as proposed, and 
paragraphs (a) and (c) have been adopted without substantive change. 
However, FRA has modified paragraph (b) to make clear when immediate 
corrective action must be taken in the event a system or component 
required to be monitored is

[[Page 25643]]

operating outside of its predetermined safety limits.
    Paragraph (a) requires a Tier II passenger train to be equipped to 
monitor the performance of a minimum set of safety-related systems and 
components. The monitoring system can also be used to provide 
information for trouble-shooting and maintenance and to accumulate 
reliability data to form the basis for setting required periodic 
maintenance intervals.
    Paragraph (b) requires the train operator to be alerted when any of 
the systems or components required to be monitored is operating outside 
of predetermined safety parameters. When any such system or component 
is operating outside of its predetermined safety parameters, immediate 
corrective action must be taken if the system or component defect 
impairs the train operator's ability to safely operate the train. 
Accordingly, a report of a system or component defect may not require 
immediate corrective action. The need to take such action would be 
determined by the railroad based on whether the defective system or 
component impairs the train operator's ability to safely operate the 
train. Further, in the event immediate corrective action must be taken, 
the rule does not require that intervention be automatic. Of course, 
the railroad should have a valid basis for either leaving response in 
the hands of the train operator or making the corrective action 
automatic.
    Paragraph (c) requires the monitoring system to be designed with an 
automatic self-test feature that notifies the train operator that the 
monitoring capability is functioning correctly and alerts the operator 
that a system failure has occurred. Because train operators can become 
dependent on automated monitoring systems, they need to know when their 
vigilance must be heightened to compensate for a malfunction in such an 
automated safety tool.
Section 238.447  Train Operator's Controls and Power Car Cab Layout
    This section contains a set of requirements for interior features 
in Tier II power car cabs. FRA has clarified and revised this section, 
based on comments received in response to the proposal, in two 
principal ways: The seat requirements in paragraph (f) apply to any 
floor-mounted seat and each seat provided for an employee regularly 
assigned to occupy the power car cab, instead of to each crewmember in 
the cab; and such seats will not require seatbelts. FRA has also 
combined proposed paragraphs Sec. 238.447(a) and (b) in the NPRM, see 
62 FR 49820-1, into paragraph (a) of this section in the final rule for 
economies of space. Subsequent paragraphs have been renumbered 
accordingly.
    In its comments on the NPRM, Bombardier explained that an 
additional seat--commonly a flip-up or a shelf-type seat--is in many 
cases provided in the cab for a train crewmember who is not normally in 
the cab. Bombardier believed these seats should not be subjected to the 
same requirements as for the train operators' seats, as that was not 
the intent of discussions within the Working Group. Accordingly, 
Bombardier recommended making clear that the requirements in paragraph 
(f) apply only to each seat provided for the train operators.
    FRA agrees with Bombardier's comment that the requirements proposed 
in Sec. 238.447(g) of the NPRMBnow Sec. 238.447(f) of the final rule--
need not apply to each seat provided for a crewmember in a power car 
cab. FRA recognizes that flip-down and other auxiliary seats are 
provided in locomotive cabs for the temporary use of employees not 
regularly assigned to the cab. These employees may include a supervisor 
of locomotive engineers conducting an operational monitoring test of 
the engineer(s). Such seats are typically attached to an interior wall 
and placed behind those seats used by the train operators. FRA believes 
it appropriate to clarify the application of paragraph (f) in the final 
rule so that its requirements apply only to each seat provided for an 
employee regularly assigned to occupy the power car cab, and to any 
floor-mounted seat in the cab. Accordingly, paragraph (f) does not 
apply to a wall-mounted, flip-down seat occupied by an employee such as 
a supervisor of locomotive engineers who occasionally rides in the cab.
    FRA has also modified paragraph (f) by not requiring that seats 
subject to that provision be equipped with a single-acting, quick-
release lap belt and shoulder harness as defined in 49 CFR 
Sec. 571.209. FRA had proposed such a requirement in the NPRM because 
the crew may experience high decelerations in a collision from the 
cab's high strength and forward location near the expected point of 
impact in many different collision scenarios. See  Sec. 238.447(g)(1), 
62 FR 49821. In its comments on the NPRM, the BLE stated that its 
experience did not support the need to require a lap belt and shoulder 
harness, and that its member engineers were overwhelmingly against such 
a requirement. The BLE explained that engineers need to rapidly exit 
from the seat to a place of safety in the event of an impending 
accident or act of vandalism. In such instances, the primary defense of 
the engineer is to move quickly from harms way, according to the BLE, 
and operating at speeds of 150 mph will decrease the time a locomotive 
engineer has to react to such incidents. The BLE noted that it would 
change its position on this issue if there is overwhelming evidence 
that the force of deceleration on Tier II equipment would be so severe 
as to cause injury to engineers or interfere with their operation.
    In its comments on the rule, Simula remarked that formal research 
is needed to determine both the feasibility of incorporating active 
restraints in a cab and the potential for the crew to actually use 
them. Simula also noted the option of exploring passive restraints such 
as air bags or compartmentalization, as opposed to active restraints 
such as lap belts and shoulder harnesses. Simula explained that cost 
effectiveness considerations for implementing both compartmentalization 
and active and passive restraints are markedly different for the crew 
in the cab compared to passengers. Simula asserted that the relatively 
high cost of passive restraints may be justified for one or two 
crewmembers in a extremely severe environment.
    In light of the comments received, FRA has decided to defer until 
Phase II of the rulemaking the issue of requiring seats in a power car 
cab to be equipped with seat belts and shoulder harnesses. FRA will 
continue to explore strategies for train occupant protection--both for 
passengers and employees--and FRA will be able to focus on these 
strategies with the members of the Working Group in Phase II.
    In other statements on the NPRM, commenters recommended applying 
the requirements in this section to Tier I passenger equipment. The 
NTSB stated that the minimum elements proposed in this section for 
operator's controls and cab layout design are sufficient and should 
also be included in Tier I operations for ergonomic design and to 
minimize the chance of human error in both types of operations. The 
NTSB cited safety recommendations arising out of an accident in Kelso, 
California, concerning the dangers posed by improperly located safety-
significant controls and switches in locomotives and the need to 
relocate and/or protect such controls and switches so they cannot be 
inadvertently activated or deactivated. FRA has not fully explored 
extension of these concepts with the working group and will take the 
issue under advisement for incorporation into

[[Page 25644]]

Tier I standards during Phase II of the rulemaking.
    The BLE commented that the proposed requirements for seating in 
this section also be applied to Tier I equipment. The BLE stated that 
existing seating on some Tier I equipment is woefully inadequate. In 
particular, the BLE noted that some cab car seats are not adjustable; 
have no suspension; are severely limited in their cushioning; have no 
lumbar support; and are injuring their occupants. The BLE also 
recommended that both Tier I and Tier II equipment be provided with a 
cab temperature control system which maintains a minimum temperature of 
65 degrees and a maximum of 85 degrees F.
    FRA in not requiring that the detailed provisions in this section 
be imposed in full on Tier I passenger equipment. FRA believes these 
provisions are more necessary for Tier II passenger equipment because 
the higher operating speeds will press human reaction time, and such 
requirements will contribute to the ability of the crew to operate the 
train as safely as possible. In addition, several members of the 
Working Group opposed applying such requirements to Tier I passenger 
equipment, asserting that a number of the requirements involved 
ergonomic issues which do not directly affect safety. FRA notes that 
certain requirements concerning locomotive cab interior safety are 
provided in Sec. 238.233 of the final rule.
    Through RSAC's working group on Locomotive Cab Working Conditions, 
FRA and members of the regulated community have been evaluating issues 
concerning locomotive cab working conditions. As a number of issues 
concern both passenger and freight operations, FRA believes that such 
issues may best be addressed in this RSAC working group. Of course, FRA 
does recognize that the concern involving crew seats in cab cars is 
more unique to passenger operations, and FRA is therefore pleased by 
APTA's voluntary effort to improve crew seats on cab cars.
    FRA notes that, for purposes of paragraph (f)(1) in this section, 
it has specified the crewmember occupying the seat as a 95th-percentile 
adult male, consistent with the use of a 95th-percentile adult male 
elsewhere in this rule. In the NPRM, the characteristics of the 
crewmember occupying the seat had not been specified, per se. See 
proposed Sec. 238.447(g)(2); 62 FR 49821.
    FRA further notes that, for purposes of paragraph (f)(2), it has 
not specified particular measurements or a particular survey on which 
to base the necessary characteristics of persons ranging from a 5th-
percentile adult female to a 95th-percentile adult male. Instead, these 
characteristics may be drawn from any recognized survey after 1958 of 
weight, height, and other body dimensions of U.S. adults, corrected for 
clothing as appropriate. Data from such a survey is presented in Public 
Health Service Publication No. 1000, Series 11, No. 8, ``Weight, 
Height, and Selected Body Dimensions of Adults,'' June 1965. (A copy of 
this document has been placed in the public docket for this 
rulemaking.) The definition of 95th-percentile adult male used 
elsewhere in the rule is too narrow to apply in this context.
Subpart F--Inspection, Testing, and Maintenance Requirements for Tier 
II Passenger Equipment
Section 238.501  Scope
    This subpart contains the inspection, testing, and maintenance 
requirements for passenger equipment that operates at speeds exceeding 
125 mph but not exceeding 150 mph. As discussed in the 1997 NPRM, there 
is currently no operating history with regard to Tier II equipment, and 
thus there are no regulations or industry standards establishing 
detailed testing, inspection, or maintenance procedures, criteria, and 
intervals for the equipment. The railroads and the rail labor 
organizations differ on the approach that should be taken in 
establishing inspection, testing, and maintenance requirements. 
Railroads have long appealed to FRA to move away from detailed 
``command and control'' regulations and instead to provide broad safety 
performance requirements that afford railroads wide latitude to develop 
the operational details. Rail labor organizations, on the other hand, 
believe that specific inspection, testing, and maintenance criteria 
that cannot be unilaterally changed by railroads are the only way that 
safe railroad operation can be assured.
    FRA believes that the introduction of a new type of passenger 
equipment offers the opportunity for a fresh start, where perhaps both 
of these seemingly conflicting concerns can be resolved. This final 
rule retains the approach taken in the 1997 NPRM and contains general 
guidelines on the process to be used by the operating railroad, 
together with the system developer, to develop an inspection, testing, 
and maintenance program. The operating railroad and the system 
developer together have the best information, expertise, and resources 
necessary to develop the details of an effective inspection, testing, 
and maintenance program. The operating railroad is thereby granted some 
latitude to develop the operational details of the program, using the 
system safety process to justify the safety decisions that are made. 
However, FRA intends to exercise final approval of the inspection, 
testing, and maintenance program proposed by the operating railroad; 
rail labor organizations will be given an opportunity to discuss their 
concerns with FRA during the approval process set forth in 
Sec. 238.505. Tier II equipment may not be used prior to FRA approval 
of an inspection, testing, and maintenance program. Further, this final 
rule makes clear that FRA intends to enforce the safety-critical 
inspection, testing, and maintenance procedures, criteria, and 
maintenance intervals that result from the approval process.
    Labor commenters recommended that if FRA is to permit the railroads 
to develop inspection and testing criteria and procedures for Tier II 
passenger equipment, then rail labor must be involved in the process as 
a full partner. These commenters also believed that any procedures 
developed must provide an equivalent level of safety to the inspection 
and testing procedures provided for conventional passenger equipment. 
Furthermore, these commenters believed that any testing and inspection 
procedures developed must be fully enforceable to the same extent as 
federal regulations.
    Although FRA recognizes and appreciates labor's desire to be a full 
partner in the development of any inspection and testing procedures, 
and FRA fully endorses and recommends collaboration with appropriate 
labor forces, FRA does not believe it appropriate to mandate labor's 
participation in the initial stages of the development of such 
procedures. As the equipment for which the inspection and testing 
programs are being developed will be new, with little operating 
history, FRA believes that the operating railroad and the system 
developer have the best information, expertise, and resources necessary 
to develop the details of an effective inspection, testing, and 
maintenance program. Moreover, FRA believes this final rule provides 
the industry's labor forces with an adequate avenue for raising any 
issues and providing input on any criteria or procedure developed by a 
railroad. Section 238.505 ensures that designated representatives of a 
railroad's employees are provided a copy of any inspection, testing, 
and maintenance criteria or procedures submitted by the railroad for 
FRA approval and provides an opportunity for these parties to present 
their views on the submitted plans and procedures

[[Page 25645]]

prior to FRA's approval or rejection of any program. Furthermore, this 
section addresses all of the major inspections and test provisions 
related to conventional passenger equipment and ensures that any 
program developed by a railroad regarding the inspection, testing, and 
maintenance of Tier II passenger equipment incorporate these major 
requirements. Finally, paragraph (b) of this section, as discussed in 
detail below, makes clear that the provisions of any program approved 
by FRA related to the inspection and testing of power brakes or other 
inspection, test, or maintenance procedure, criteria, and interval that 
is deemed to be safety-critical will be enforceable to the same extent 
as any other requirement contained in this part.
Section 238.503  Inspection, Testing, and Maintenance Requirements
    This section requires the establishment by the railroad of an FRA-
approved inspection, testing, and maintenance program based on a daily 
complete brake system test and mechanical safety inspection of the 
equipment performed by qualified maintenance persons, coupled with a 
periodic maintenance program based on a system safety analysis. 
Although paragraph (a) contains some basic requirements to be included 
in a program, FRA does not intend to prescribe every detail of what a 
program must contain. FRA requires the operating railroad to develop 
and justify the details of any program it adopts based on the specific 
safety needs and operating environment of the high-speed rail system 
being developed.
    Paragraph (b) intends to make enforceable, subject to civil 
penalties and other enforcement action, the inspection and testing of 
power brakes and the other safety-critical inspection, testing, and 
maintenance requirements that are identified in the railroad's program 
and approved by FRA. ``Safety-critical'' requirements are those that, 
if not fulfilled, increase ``the risk of damage to equipment or 
personal injury to a passenger, crewmember, or other person.'' See 
Sec. 238.5. Under paragraph (l), the railroad must identify which items 
in its inspection, testing, and maintenance program are safety-
critical. The railroad must submit the program to FRA under the 
procedures contained in Sec. 238.505. Once these programs are approved 
by FRA, this section makes clear those items identified as safety-
critical are enforceable by FRA. FRA agrees with labor representatives 
to the Working Group that safety standards are stronger when they 
contain specific provisions that can be enforced.
    Paragraph (c) requires that the operating railroad develop an 
inspection, testing, and maintenance program to ensure that all systems 
and components of Tier II passenger equipment are free of general 
conditions that endanger the safety of the crew, passengers, or 
equipment. FRA has identified the various conditions enumerated in 
paragraph (c) that would need to be addressed in the railroad's 
program. Consequently, FRA has defined what the inspection, testing, 
and maintenance program must accomplish, but not how to accomplish it.
    Paragraph (d) contains the more specific requirements that any 
inspection, testing, and maintenance program must incorporate. In 
paragraph (d)(1), FRA requires that Tier II equipment receive the 
equivalent of a Class I brake test, as described in Sec. 238.313, 
before its departure from an originating terminal and every 1,500 miles 
after that or once each calendar day the equipment remains in service. 
The test must be performed by a qualified maintenance person. For 
example, a Tier II train must receive the equivalent of a Class I brake 
test at its originating terminal and must receive a second Class I 
equivalent brake test after traveling 1,500 miles from the time of the 
original Class I brake test, whether or not it is the same calendar 
day. Furthermore, a Tier II train must receive the equivalent of a 
Class I brake test each calendar day it is used in service even if it 
has not traveled 1,500 miles since the last Class I equivalent brake 
test. Due to the speeds at which this equipment is permitted to 
operate, FRA believes that a comprehensive brake test must be performed 
prior to the equipment being placed in service.
    Paragraph (d)(2) requires that a complete exterior and interior 
mechanical inspection be conducted by a qualified maintenance person at 
least once each calendar day that the equipment is used. In order to 
perform a quality mechanical inspection, railroads must be provided 
some flexibility in determining the locations where these inspections 
can best be performed. FRA believes that permitting railroads to 
conduct these mechanical inspections at any time during the calendar 
day provides adequate flexibility to move equipment to appropriate 
locations. Trains that miss a scheduled Class I brake test or 
mechanical inspection due to a delay en route may proceed to the 
location where the Class I brake test or mechanical inspection was 
scheduled to be performed. FRA recognizes that, due to the specialized 
nature of this equipment, proper inspections can only be conducted at a 
limited number of locations. FRA also recognizes that trains become 
delayed en route due to problems which are not readily foreseeable. 
Thus, FRA will permit the continued use of such equipment to the 
location where the required inspection was scheduled to be performed.
    Paragraph (e) restates Sec. 238.15 and provides a cross-reference 
to that section. The paragraph provides that trains developing en route 
defective, inoperative, or insecure primary brake equipment be moved in 
accordance with the requirements of that section.
    Paragraph (f) restates Sec. 238.17 and adds a narrow exception to 
that section. The paragraph requires that Tier II equipment that 
develops a defective condition not related to the primary brake be 
moved and handled in accordance with the requirements contained in 
Sec. 238.17, with one exception. The exception to these requirements 
applies to a failure of the secondary portion of the brake that occurs 
en route. In those circumstances, the train may proceed to the next 
scheduled equivalent Class I brake test at a speed no greater than the 
maximum safe operating speed demonstrated through analysis and testing 
for braking with the friction brake alone. At that location the brake 
system shall be restored to 100 percent operation before the train 
continues in service. This final rule allows extensive flexibility for 
the movement of equipment with defective brakes, but also contains a 
hard requirement that all brake components be repaired and the brake 
system, including secondary brakes, be restored at the location of the 
train's next major brake test. FRA believes that this approach 
recognizes the secondary role played by the electric portion of blended 
brakes. If the railroad has demonstrated that the friction brake alone 
can stop the train within signal spacing without thermal damage to 
braking surfaces, then the train may be used at normal maximum speed in 
the event of an electric brake failure. This final rule essentially 
limits the use of trains without available secondary braking systems to 
no more than 48 hours. FRA believes that Sec. 238.17 strikes the 
correct balance between the need of railroads to transport passengers 
to their destination and the need to have equipment with defects that 
could lead to more serious safety problems quickly repaired. This 
requirement places a heavy responsibility on qualified maintenance 
persons to exercise their judgment on when and how equipment is safe to 
move.

[[Page 25646]]

    Paragraph (g) requires that scheduled maintenance intervals be 
based on the analysis conducted pursuant to the railroad's safety plan, 
and be approved by FRA under the procedures of Sec. 238.505. The rule 
allows the maintenance intervals for safety-critical components to be 
changed only when justified by accumulated acceptable operating data. 
Changes in maintenance cycles of safety-critical components must be 
based on verifiable data made available to all interested parties and 
shall be reviewed by FRA. This paragraph is another attempt to balance 
the needs of the operating railroad to run efficiently and the concern 
of rail labor organizations that railroads not have the ability to 
unilaterally make safety decisions. For a new system, with no operating 
history, a formal system safety analysis is the only justifiable way to 
set initial maintenance intervals. The paragraph recognizes that as 
time passes and an operating history is developed, a basis for changing 
maintenance intervals can be established. However, the decision to make 
these changes must have the participation of all the affected parties.
    Paragraph (h) requires that the operating railroad establish a 
training, qualification, and designation program as defined in the 
training program plan under Sec. 238.109 to qualify individuals to 
perform safety inspections, tests, and maintenance on the equipment. If 
the railroad deems it safety-critical, then only qualified individuals 
may perform the safety inspection, test, or maintenance of the 
equipment. This paragraph does not prescribe a detailed training 
program or qualification and designation process. Those details are 
left to the operating railroad, but FRA must approve the program 
proposed by the operating railroad under procedures contained in 
Sec. 238.505.
    Paragraph (i) requires the operating railroad to establish standard 
procedures for performing all safety-critical inspections, tests, 
maintenance, or repair. This paragraph also makes clear that the 
inspection, testing, and maintenance program required by this section 
should not include procedures to address employee working conditions 
that arise in the course of conducting the inspections, tests, and 
maintenance set forth in the program. FRA intends for the program 
required by this section to detail only those tasks required to be 
performed in order to conduct the inspections, tests, and maintenance 
necessary to ensure that the equipment is in safe and proper condition 
for use. In proposing the creation of these plans, FRA did not intend 
to enter into the area of addressing employee safety while conducting 
the inspections, tests, and maintenance covered by the programs. FRA is 
always concerned with the safety of employees while conducting their 
duties, but employee safety in maintenance and servicing areas 
generally falls within the jurisdiction of OSHA. It is not FRA's intent 
to oust OSHA's jurisdiction with regard to the safety of employees 
while performing the inspections, tests and maintenance required by 
this part, except where FRA has already addressed workplace safety 
issues, such as blue signal protection. Therefore, in order to prevent 
any uncertainty as to FRAs intent, FRA has modified this paragraph by 
eliminating any language or provision which could have been potentially 
perceived as displacing the jurisdiction of OSHA and has added a 
specific clarification that FRA does not intend for the program 
required by this section to address employee safety while conducting 
the inspections and tests described. Consequently, the specific 
elements that FRA proposed to be included in the inspection, testing, 
and maintenance plan have been eliminated for the reasons noted above 
and because they were merely duplicative of the general requirements 
contained in paragraph (a) of this section and are unnecessary.
    Paragraph (k) requires that the operating railroad establish an 
inspection, testing, and maintenance quality control program enforced 
by railroad or contractor supervisors. In essence, this creates the 
need for the operating railroad to perform spot checks of the work 
performed by its employee and contract equipment maintainers to ensure 
that the work is performed in accordance with established procedures 
and Federal requirements. FRA believes this is an important management 
function that has a history of being neglected in the railroad 
industry.
    Paragraph (l) requires the operating railroad to identify each 
inspection and testing procedure and criterion and each maintenance 
interval that the railroad considers safety-critical.
Section 238.505  Program Approval Procedure
    This section contains the procedures a railroad shall follow in 
securing FRA approval of its inspection, testing, and maintenance 
program for Tier II passenger equipment. As no substantive adverse 
comments were received on this section, FRA has retained this section 
as proposed in the 1997 NPRM.
Subpart G--Specific Safety Planning Requirements for Tier II Passenger 
Equipment
Section 238.601  Scope
    This subpart contains specific requirements for Tier II passenger 
equipment safety planning. These safety planning requirements include 
requirements for the operation of Tier II passenger equipment, 
procurement of Tier II passenger equipment, and the introduction or 
major upgrade of new technology in existing Tier II passenger equipment 
that affects a safety system on such equipment.
    The discussion of this subpart should be read in conjunction with 
the general discussion of safety planning earlier in the preamble. FRA 
is retaining more extensive safety planning requirements for Tier II 
railroad operations, as these will be operations with new 
characteristics that require special attention and have heightened 
safety risks due to the speed of the equipment.
Section 238.603  Safety Planning Requirements
    Paragraph (a) requires that, prior to commencing revenue service 
operation of Tier II passenger equipment, each railroad shall prepare 
and execute a written plan for the safe operation of such equipment. 
The plan may be combined with a pre-revenue service acceptance testing 
plan required under Sec. 238.111, and any other plan required under 
this part provided that the individual planning elements required under 
this part are addressed. The plan shall be updated at least every 365 
days.
    Paragraph (b) requires that for each procurement of Tier II 
passenger equipment, and for each major upgrade or introduction of new 
technology in existing Tier II passenger equipment that affects a 
safety system on such equipment, each railroad shall prepare and 
execute a written safety plan. The plan may also be combined with a 
pre-revenue service acceptance testing plan required under 
Sec. 238.111, and any other plan required under this part provided that 
the individual planning elements required under this part are 
addressed.
    As noted earlier in the preamble, Bombardier, in its comments on 
the NPRM, believed that the proposed rule confused the requirements for 
a railroad's system safety plan with those required for equipment 
acquisition. Bombardier recommended that they be separately addressed. 
This section in the final rule reflects these comments in that 
paragraph (a) addresses requirements for an overall safety plan for 
Tier II passenger equipment, while paragraph (b) addresses planning

[[Page 25647]]

requirements for equipment acquisition and upgrade.
    Paragraph (c) requires that each railroad maintain sufficient 
documentation to demonstrate how the operation and design of its Tier 
II passenger equipment complies with safety requirements or, as 
appropriate, addresses safety requirements under paragraphs (a)(4) and 
(b)(7) of this section. Each railroad shall also maintain sufficient 
documentation to track how safety issues are raised and resolved.
    Paragraph (d) requires that each railroad make available to FRA for 
inspection and copying upon request each safety plan required by this 
section and any documentation required pursuant to such plan. This 
section does not in itself require FRA approval of a plan. However, FRA 
approval would be required for those sections of a plan intended to 
comply with the requirements of Sec. 238.111, for example.
Appendix A--Schedule of Civil Penalties
    This appendix contains a schedule of civil penalties to be used in 
connection with this part. Because such penalty schedules are 
statements of policy, notice and comment are not required prior to 
their issuance. See 5 U.S.C. 553(b)(3)(A). 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 received no specific 
comments in response.
Appendix B--Test Methods and Performance Criteria for the Flammability 
and Smoke Emission Characteristics of Materials Used in Passenger Cars 
and Locomotive Cabs
    The table of test methods and performance criteria contained in 
Appendix B has been revised to address concerns related to their 
adoption as a regulation. These revisions include reorganization of 
categories and function of materials listed in the table in Appendix B; 
inclusion of a note to permit the substitution of seat and mattress 
assembly tests for individual material tests; inclusion of a note to 
require dynamic tests to be performed for seat cushions prior to fire 
tests; revision of performance criteria for certain materials; 
inclusion of a note to permit a testing exception for small parts; 
inclusion of a note to permit the use of an alternative heat release 
rate and smoke generation test for small miscellaneous, discontinuous 
parts; and addition of a category for wire and cable insulation 
requirements. Three definitions which relate to heat release rate were 
added to those previously listed in Appendix B of the NPRM. A new 
category of structural components other than structural flooring which 
may be exposed to fire hazards and associated notes was also added. The 
complete list of notes has also been renumbered from that contained in 
the NPRM to reflect these revisions.
    The revisions were selected based on the results of analysis of 
input from several resources. (A detailed rationale for all revisions 
is also contained in a supporting document prepared under contract to 
the Volpe Center and placed in the public docket for this 
rulemaking.\6\) First, the comments of the parties who responded to the 
NPRM were reviewed. As raised in particular by Fire Cause Analysis in 
its comments on the NPRM, the current classification of items listed in 
the categories and functions in the table contained in Appendix B in 
the NPRM (based on FRA's 1989 guidelines) has caused confusion and 
conflict as to what materials should be tested according to what test 
methods. Second, a document containing the rationale for the 
development of the original flammability and smoke emission tests and 
performance criteria was reviewed.\7\ Third, the previous Federal 
Register notices pertaining to tests and performance criteria published 
as the 1989 FRA guidelines (54 FR 1837; Jan 17, 1989) and published as 
recommended practices by FTA (then-UMTA) for rail transit vehicles (47 
FR 53559, Nov. 26, 1982; 49 FR 32482, Aug. 14, 1984) and for transit 
buses and vans (55 FR 27402, July 2, 1990; 57 FR 1360, Jan 13, 1992; 58 
FR 54250, Oct. 20, 1993) were reviewed. Fourth, the input from railroad 
operators, carbuilders, and consultants who participated in a Workshop 
held at the NIST Building and Fire Research Laboratory in July 1997 was 
considered.\8\ Fifth, documentation prepared by the NFPA Railroad Task 
Force for the NFPA 130 Committee was reviewed.9,10 Sixth, 
the results of the ongoing FRA-sponsored NIST fire safety research 
project were reviewed; as well as the results of tests jointly funded 
by Amtrak and FRA using alternative seat assemblies considered for use 
in Amtrak's high-speed trainsets. Seventh, the results of the NTSB-
sponsored fire tests conducted for MARC commuter rail cars were 
reviewed.\11\ All of these inputs and further analysis were used as the 
basis to simplify the table in Appendix B of the NPRM and reduce 
confusion and duplication in revising the list of tests and performance 
criteria and related notes.
---------------------------------------------------------------------------

    \6\ ``Recommendations for Revising the Fire Safety Performance 
Requirements in Federal Railroad Administration Notice of Proposed 
Rulemaking (NPRM) For Passenger Equipment, September 23, 1997,'' 
Prepared by J. Zicherman and S. Markos. Draft Project Memorandum. 
December, 1998.
    \7\ ``Rationale for Recommended Fire Safety Practices for Rail 
Transit Materials Section.'' Transportation Systems Center. Report 
nos: MA-06-0098-82-1, and DOT-TSC-UMTA 81-74, January, 1983. A copy 
of this document has been placed in the public docket for this 
rulemaking.
    \8\ ``Follow-UP Notes: NIST/CFR FRA Project, Meeting/Workshop of 
7/23/97,''above.
    \9\ ``Proposed Revision of NFPA 130, Table 4-2.4, 
Recommendations for Testing the Flammability and Smoke Emission 
Characteristics of Rail Transit Vehicle Materials; Review Paper--
Status Update.'' NFPA 130 Press Working Group Meeting of 8/15/97. 
Prepared by J. Zicherman. A copy of this document has been placed in 
the public docket for this rulemaking.
    \10\ ``Proposed Revision of NFPA 130 Table 4-2.4, 
Recommendations for Testing the Flammability and Smoke Emission 
Characteristics of Rail Transit Vehicle Materials; Review Paper--
Status Update.'' NFPA 130 Press Working Group Meeting of 10/15/97. 
Prepared by J. Zicherman. A copy of this document has been placed in 
the public docket for this rulemaking.
    \11\ ``Interpretive Report: Flammability and Smoke Compliance 
and Fire Analysis (MARC/Amtrak Collision, February 16, 1996).'' 
Prepared for National Transportation Safety Board. Prepared by J. G. 
Quintiere, University of Maryland. Final Report. December 19, 1996. 
A copy of this document has been placed in the public for this 
rulemaking.
---------------------------------------------------------------------------

    Most of the items listed under ``Function of Material'' in the 
table in Appendix B of the NPRM have identical (or nearly identical) 
flammability pass/fail performance criteria. For example, although they 
were listed separately in the NPRM under function of material in the 
table, ``Seat and/or Mattress Frame''; ``Seat and Toilet Shroud''; 
``Wall''; ``Ceiling''; ``Windscreen''; ``Partition, Tables and 
Shelves''; ``HVAC Ducting''; ``Window''; ``Light Diffuser''; ``End Cap 
[and] Roof Housings''; and ``Interior [and] Exterior Boxes'' all were 
subject to the same ASTM E 162 test procedure and performance criteria 
for flame spread. Accordingly, in the final rule, all of these items 
have been combined under the single category of ``Vehicle Components'' 
in the table in Appendix B. Overall, the items listed under 
``Category'' and ``Function of Material'' have been decreased from 
seven to six and from twenty-eight to ten, respectively, from the same 
table in the NPRM. The majority of entries have also been re-titled. 
The new ``Category'' and ``Function of Material'' titles streamline the 
table presentation while retaining all the actual material functions 
used in an intercity or commuter rail passenger car

[[Page 25648]]

or locomotive cab. Some revisions have also been made to acknowledge 
that certain existing performance criteria are so close as to be 
indistinguishable based on the precision of the test methods used 
(e.g., flame spread values of 25 vs. 35 using test procedure ASTM E 
162). Of course, some material categories or subcategories could not be 
combined since they require different test methods, e.g., fabrics 
versus cushions. In addition, other considerations (such as ballistic 
test requirements for plastic window glazing) have precluded the 
combination of (and thus identical performance criteria for) some 
categories and material functions.
    Specific revisions to the table in Appendix B of the NPRM are 
summarized in the following text. In addition, the notes to the table 
have been revised and renumbered to reflect the table's reorganization, 
and the text for several new notes has been added. The notes to the 
table will be discussed where appropriate in the discussion of the 
table below, and a discussion of the complete list of notes is also 
provided.
    ``Cushions, Mattresses'' is a new category in the table which was 
formerly listed under the function of material column and included 
under the previously used category ``Passenger seats, Sleeping and 
dining car components.'' See 62 FR 49823. Note 1 to the table which 
concerns flaming dripping or running is virtually identical to Note 1 
as proposed in the NPRM. Note 2 is virtually identical to Note 5 as 
proposed in the NPRM, and pertains to ASTM E 662 smoke emission limits. 
The note renumbering provides consecutive numbering logic within the 
revised categories and function of materials.
    As explained, FRA has been investigating the testing of assemblies 
of materials for performance in a fire, rather than individually 
testing the materials which comprise such assemblies, to more 
accurately reflect the interaction of materials in a fire. As part of 
the FRA-sponsored fire safety research program managed by the Volpe 
Center, six full-scale alternative seat assemblies being considered for 
the Amtrak high-speed train sets were tested in March, 1997, using a 
furniture calorimeter (ASTM E 1537). \12\ The tests, jointly funded by 
FRA and Amtrak, used current Amtrak upholstery and different cushion 
foams; fire blocking layers were used in some trials. The test results 
showed that fire blocking layers can significantly prevent fire 
ignition, and limit flame spread, fire growth, and smoke generation.
---------------------------------------------------------------------------

    \12\  ``Passenger Rail Car Seat Fire Tests; ASTME E 1357/CAL TB 
133.'' J. Zicherman and S. Markos. Draft Project Memorandum. 
December 1998. A copy of the report has been placed in the public 
docket for this rulemaking.
---------------------------------------------------------------------------

    Note 3 permits the testing of seat and mattress assemblies 
incorporating heat release rate methods developed by consensus. Testing 
the performance of a seat or mattress assembly as an integrated unit, 
which is more representative of an actual condition, will be an 
alternative to individually testing the components that comprise the 
seat or mattress assembly. Seat assemblies and mattresses to be tested 
in this alternative manner shall use ASTM E 1537, ``Standard Test 
Method for Fire Testing of Upholstered Seating Furniture,'' and shall 
use pass/fail criteria specified in California Technical Bulletin (CAL 
TB) 133, ``Flammability Test Procedure for Seating Furniture for Use in 
Public Occupancies.'' CAL TB 133 has a successful history of use at 
state and municipal levels for high-hazard occupied places, such as 
nursing homes. Results of the March, 1997 tests using the ASTM E 1537 
test procedure on seat assemblies being considered for Amtrak's high-
speed trainsets showed that certain assemblies met the Cal TB 133 test 
criteria and exhibited a total lack of flame spread as well as low heat 
and smoke release. Id. In addition, data from Amtrak-funded tests 
showed that seat assemblies selected for use on Amtrak's high-speed 
trainsets passed both the ASTM D 3675 and FAA ``oil burner'' tests.
    Acceptance of results using the alternative test approach in Note 3 
for seat and mattress assemblies requires an accompanying fire hazard 
analysis for the specific application. This analysis may take the form 
of a specific system safety or fire protection analysis. The analysis 
must provide for necessary quality control of components used in these 
assemblies in actual day-to-day use. Quality control must be part of 
the daily operating plans for a system to ensure that individual 
substandard materials or components are not substituted within a given 
component assembly for parts having an identical function which are of 
acceptable quality. In conducting the fire hazard analysis, the 
operating environment within which seat and mattress assemblies 
qualified by assembly tests will be used must also be considered in 
relation to the risk of vandalism, puncture, cutting, or other acts or 
external forces which may expose the individual components of the 
assemblies. Seats and mattresses using certain types of foams must 
resist vandalism, puncture, cutting, and other acts and external 
forces. Robust blocking layer(s), resistant to both fire (as used to 
meet FAA fire seat regulations), as well as to cutting and puncture, 
may be required. If used, these blocking layers must be applied in a 
manner which seals the seams (e.g., using bonding or ceramic thread 
with binding tape) and ensures that the foam does not leak or drip out 
and become exposed to ignition. The U.S. Coast Guard has issued a 
Navigation and Vessel Inspection Circular (NAVIC) for structural fire 
protection which permits the use of fire blockers if tested according 
to Cal TB 133; the NAVIC states that these materials have proven 
effective in protecting combustible foams from being involved in a 
fire. \13\
---------------------------------------------------------------------------

    \13\ ``Navigation and Inspection Circular No. 9-97. Guide to 
Structural Fire Protection.'' US Coast Guard. COMDTPUB P16700.4, 
October 31, 1997.
---------------------------------------------------------------------------

    FRA notes that the ASTM E 1537 test procedure was not expressly 
referenced in the NPRM to allow testing of seat and mattress assemblies 
in this alternative manner. However, FRA did intend to permit use of 
alternative test procedures to demonstrate flammability and smoke 
emission characteristics of materials (upon special approval by FRA). 
See 62 FR 49803. FRA has, in effect, granted approval to any party to 
use the ASTM E 1537 test procedure to demonstrate the flammability and 
smoke emission characteristics of seat and mattress assemblies in 
accordance with the requirements of Note 3, in lieu of utilizing the 
testing methods otherwise required by the table in Appendix B.
    Note 4 applies to seat cushion testing without upholstery and is 
identical to Note 9 as proposed in the NPRM. The note renumbering 
provides consecutive numbering logic within the revised categories and 
function of materials.
    Note 5 requires the dynamic testing of seat cushions to address the 
retention of fire retardant characteristics of foams after the 
materials have been in service for a period of time. The precedent for 
the addition of Note 5 requiring the performance of an endurance test 
(ASTM D 3574, Test I2 (Dynamic Fatigue Test by the Roller 
Shear at Constant Force) or Test I3 (Dynamic Fatigue Test by 
Constant Force Pounding) both using Procedure B) for seat cushions is 
noted in the FTA notices relating to transit bus and van materials (58 
FR 54250, 57 FR 1360). The concern that fire and smoke emission 
characteristics of materials may change over time will be more fully 
examined in the second phase of this rulemaking.
    A new category title ``Fabrics'' includes seat upholstery, mattress 
ticking and covers, and curtains, as formerly included under the 
category

[[Page 25649]]

``Passenger seats, Sleeping and dining car components'' in the table in 
Appendix B of the NPRM. The term ``All'' under function of material 
eliminates confusion as to what must be tested; if composed of fabric, 
window shades, draperies and wall coverings are required to be tested. 
The test procedure for purposes of the burn test is an FAA test found 
at 14 CFR part 25, Appendix F, Part I (vertical test). FRA has 
referenced this test procedure directly in the table and, thereby, 
removed the intermediate reference to 14 CFR Sec. 25.853(a), as stated 
in the NPRM. Formerly, smoke emission requirements were limited to 
250 for ``coated'' and 100 for ``uncoated'' 
fabrics at four minutes. The latter is typically PVC vinyl-based 
upholstery fabric. It was determined that a uniform criteria of 
200 at four minutes for the smoke emission rate would be 
appropriate for both classes of fabrics, based in part on the known 
performance of the range of fabrics available, and the definition of 
coated and uncoated used by the ASTM, rather than the terms used in the 
above-cited report, ``Rationale for Recommended Fire Safety Practices 
for Rail Transit Materials Selection,'' prepared by the Volpe Center in 
the early 1980s. Moreover, allowing a higher smoke emission performance 
criteria for coated fabrics--more than twice that allowed for uncoated 
fabrics--provides an inconsistent level of safety. In addition, the 
NFPA 130 Committee has accepted a recommendation for the identical 
change in its revised table requirements.
    Notes 6 and 7, which pertain to washing and dry cleaning of 
materials, are almost identical to Notes 2 and 3 as proposed in the 
NPRM. These notes were renumbered to reflect consecutive numbering 
logic within the revised categories and function of materials. In 
addition, some upholstery materials must be dry cleaned. Accordingly, 
Note 7 applies to upholstery materials.
    Note 8 was formerly the second sentence in Note 3 as proposed in 
the NPRM. However, since that sentence also included the words 
``washed,'' as well as ``dry cleaned,'' this text was separated into a 
new Note 8 to ensure that the labeling requirement would be clearly 
understood to apply whatever cleaning method is used.
    The new category ``Vehicle Components'' includes the majority of 
those materials formerly listed in the NPRM under the categories of 
``Panels,'' ``Flooring'' (except structural), thermal and acoustical 
``Insulation'' (see discussion below), ``Elastomers,'' ``Exterior 
Plastic Components,'' and ``Component Box Covers.'' Note 9 specifies, 
as a minimum, which combustible component materials must be tested, and 
is based on the components listed in the table in Appendix B of the 
NPRM.
    Note 10 provides that testing of vehicle component miscellaneous, 
discontinuous small parts may not be necessary if such parts do not 
contribute materially to fire growth and the surface area of any 
individual small part is not greater than or equal to 16 square inches 
(100 cm2) in end use configuration. A fire hazard analysis 
is required that considers both the quantity of the parts (e.g., 
limited) and the location of the parts (e.g., at discontinuous, or 
isolated locations, or both), as well as the vulnerability of the parts 
to ignition and contribution to flame spread. As an example, grommets 
used on seats or window shades present an insignificant fire threat and 
could logically and safely be exempted from testing. Such small parts 
have been selectively exempted through the use of similar language in 
rail car specification documents for many years. On the other hand, 
other materials, such as those used to produce wire ties (of which 
hundreds or thousands may be included in a single car to mount power 
and low voltage cable bundles) shall not be exempted from testing, as 
specified in Note 11.
    Note 11 relates to Note 10. If the surface area of any individual 
small part is less than 16 square inches (100 cm2) in end 
use configuration, such small part must be tested using the ASTM E 
1354-97 test procedure, ``Standard Test Method for Heat and Visible 
Smoke Release Rates for Materials and Products Using an Oxygen 
Consumption Calorimeter'' (e.g., Cone Calorimeter), unless such small 
part has been shown not to contribute materially to fire growth 
following an appropriate fire hazard analysis as specified in Note 10. 
ASTM E 1354 measures heat release rate (HRR) at a prescribed heat flux 
using oxygen depletion techniques and produces information including 
data for time of ignition and peak HRR. The quotient of these two 
parameters has been evaluated as part of the current FRA-funded NIST 
research program, as well as in other research, and has been shown to 
reliably predict ignitability (see Hirschler, 1992, 1995 14 
15). Ignitability is also a parameter of importance for certain small 
parts used in rail passenger cars. In addition, such parts, because of 
their small size and end uses, may be important from an ignition 
perspective, but not from a flame spread perspective. The pass/fail 
criterion:

    \14\ ``Tools Available to Predict Full Scale Fire Performance of 
Furniture,'' Fire and Polymers II. Hirschler, M.M. Ed. G. L. Nelson, 
ACS Symp. Series 599. Ch. 36, pp. 593-608.
    \15\ ``Effect of a Single Furnishing Product on Fire Hazard in 
Actual Occupancies Based on Heat Release Rate.'' Hirschler, M.M. 
Proceedings, NFPRF Symposium and FIre Risk & Hazard, San Francisco, 
June 25-27, 1997.
---------------------------------------------------------------------------

tig/ q//max  1.5

is defined by the ratio of a given sample's sustained time in seconds 
(s) to ignition (tig) to its peak (maximum) heat release 
rate (q//max), as measured in the Cone Calorimeter under the 
stipulated exposure conditions. This quantity has been demonstrated to 
be a direct measure of a material's sensitivity to ignition, which is 
important since the class of parts referred to here will not, due to 
their small size, contribute markedly to fire growth and heat release. 
However, these parts may, if capable of showing sustained ignition, 
cause secondary ignition of surrounding materials subsequent to their 
own ignition. The required heat flux exposure of 50 kW/m2 is 
sufficiently high to ignite materials which have a reasonable degree of 
intrinsic ignition resistance. The pass/fail criterion is based on 
relatively current research, including that conducted by NIST for 
passenger railroad materials cited earlier. FRA notes that the ASTM E 
1354 test method was not expressly referenced in the NPRM. However, as 
identified by the Volpe Center during its fire safety research, this 
test procedure is an appropriate way to address the flammability and 
smoke emission characteristics of small parts and its use in this final 
rule complements the exemption from testing otherwise provided for 
small parts as specified in Note 10. Note 12 relates to Note 11. If, in 
accordance with Note 11, small miscellaneous, discontinuous parts are 
tested using ASTM E 1354 and an appropriate fire hazard analysis 
accompanies the test results, such small parts do not have to be tested 
for smoke generation using the ASTM E 662 test procedure.
    Flexible cellular foam products not used for seat and mattress 
applications are now included in the separate ``Vehicle Components'' 
category to address the unique fire-related properties represented when 
used for arm rests, seatback ``crash'' padding, and thermal and 
acoustical insulation. The different armrest test requirements in Note 
8 in the NPRM have been deleted. The differentiation is no longer 
necessary since the new Function of Material ``Flexible Cellular 
Foams'' requires that armrest foam material be tested according to ASTM 
D 3675. If

[[Page 25650]]

hard plastic, the armrest test requirement is ASTM E 162. Tests 
conducted by NIST in 1983 of Amtrak interior materials showed that foam 
armrests assist flame spread from seat cushions to wall liners.
    Thermal and acoustical insulation materials were previously 
included as a separate table category in the NPRM, with values 
identical to cushions and mattresses for flame spread (less than or 
equal to 25) and smoke emission (less than or equal to 100 for 1.5 
minutes). (Thermal and acoustical insulation did not expressly contain 
a smoke emission criterion for 4 minutes in the NPRM, though intended 
to be less than or equal to 200.) Flexible cellular foam is sometimes 
used as thermal and acoustical insulation; if so used, the requirements 
remain unchanged (25, 100, and 200, respectively). Otherwise, the 
performance criteria for insulation materials are now 35, 100, and 200, 
respectively, to be consistent with other vehicle components.
    Note 13 relates to the use of carpet on walls and ceilings and is 
virtually identical to Note 10 as proposed in the NPRM. Note 14 
concerns floor coverings and is virtually identical to Note 7 as 
proposed in the NPRM.
    Two items having identical test performance criteria relating to 
use of plastics in light transmitting assemblies under the function of 
material column in the table in Appendix B in the NPRM have been 
combined into a new ``Light transmitting plastics'' function of 
material column in the final rule. This terminology is consistent with 
use of the term for identical plastics in the construction industry and 
building codes. The test performance criteria remain unchanged from the 
NPRM. In addition, this category also provides for uniform acceptance 
criteria for transparent plastics used in windscreens, which formerly 
were not clearly addressed. Note 15 pertains to window glazing and is 
virtually identical to that in Note 4 as proposed in the NPRM. 
Renumbering of the note reflects consecutive numbering logic.
    The separate category of ``Elastomers'' in the table in the NPRM 
has been included under the function of material column in the 
``Vehicle Components'' category in the table in the final rule. As 
indicated in Note 16, the flammability test method for elastomers has 
been revised to reference ASTM C 1166, which has superseded ASTM C 542 
as proposed in the NPRM. As specified in Note 16, only elastomeric 
parts with surface areas equal to or more than 16 square inches (100 
cm2) in end use configuration are required to be tested 
using ASTM C 1166; elastomeric parts with smaller surface areas need 
not be tested using ASTM C 1166. Accordingly, diaphragms, window 
gaskets, door nosing, and roof mats would continue to be tested; in 
addition, due to their size, flexible flat seat ``springs'' or 
suspension membranes are also required to be tested using ASTM C 1166. 
Testing requirements for miscellaneous small parts comprised of 
elastomeric composition having a surface area less than 16 square 
inches are discussed in Notes 10, 11, and 12.
    The test requirement differentiation in Notes 10, 11,12, and 16 
according to part size is based on several factors. Many small 
miscellaneous parts used in car construction may be composed of 
elastomeric materials. These parts include cleats, blocks, abrasion and 
vibration damping pads. As such, these parts are frequently molded and 
are not readily available for testing in sizes required for either the 
ASTM E 162 or ASTM C 1166 test methods without undergoing special 
fabrication. Moreover, as noted in the discussion concerning Note 11, 
ASTM E 1354 is sensitive to ignition properties rather than flame 
spread. The later parameter would be a critical variable if such parts 
were used in applications with larger exposed surface areas.
    The subject of ``Wire and Cable'' has been addressed by the 
addition of a new category in the table which requires smoke and 
flammability emission screening for wire and cable insulation. This is 
especially important due to the greater quantities of wire and cable 
used in electrically-powered intercity and commuter rail passenger 
cars. Fire-related tests and performance criteria for wire and cable 
insulation were not expressly included in the table proposed in 
Appendix B of the NPRM. The test methods of the IEEE, Insulated Cable 
Engineers Association (ICEA), National Electrical Manufacturers 
Association (NEMA), and Underwriters Laboratories Inc. (UL) specified 
in the final rule have long and successful histories of use, and have 
also been specified in the existing NFPA 130 requirements. In Note 17, 
one set of test methods is comprised of NEMA WC 3/ICEA S-19-1981, 
paragraph 6.19.6, and the second set is comprised of UL 44 and UL 83. 
The ICEA and NEMA jointly issued NEMA WC 3/ICEA S-19-1981, and it 
includes testing for both thermosetting wire insulation and for 
thermoplastic wire insulation. In Note 18, in addition to passing ANSI/
IEEE Standard 383, section 2.5, the power cable must also demonstrate 
continued circuit integrity for 5 minutes to allow continued short term 
operation of power when exposed to ignition.
    FRA notes that, in its comments on the NPRM, the IEEE (like the 
NFPA) referred to the National Technology Transfer and Advancement Act 
of 1995, above, and the provision which requires, in general, that 
Federal agencies ``use technical standards that are developed or 
adopted by voluntary consensus standards bodies.'' The IEEE cited its 
own development of voluntary consensus standards and their potential 
for integration in this rulemaking. In the second phase of the 
rulemaking, FRA will consider with the Working Group the appropriate 
use of other IEEE standards in this and other subject areas, in 
addition to the IEEE standard contained in this rule for fire safety.
    The new category ``Structural Components'' addresses the structural 
integrity of floor assemblies and other structural elements. In 
Appendix B of the NPRM, only the performance of structural flooring was 
expressly addressed in the table itself and in the text of former Note 
6. The first sentence of text relating to penetrations as proposed in 
Note 6 in the NPRM has been separated and inserted as Note 19 in the 
final rule. Note 19 requires that penetrations be tested as part of 
floor assemblies and other structural elements. The text in the second 
sentence of Note 6 as proposed in the NPRM specifically pertained to 
structural flooring assemblies, and it has been separated and inserted 
into Note 20 in the final rule.
    Note 21 addresses the structural integrity of less well defined and 
design dependent rail car structural elements, other than floors. These 
structural elements may carry significant weight loads or have 
important fire barrier functions in protecting train occupants, or 
both. Examples include extensive HVAC or power-conditioning equipment 
installed on roofs or electrical equipment lockers, which may become 
involved in fires. Such fires may result from mechanical failures, 
electrical insulation breakdown, or from other hazards. Accordingly, 
Note 21 requires that portions of the vehicle body (other than floors 
but including the roof) which separate major ignition sources, or 
sources of fuel load from the vehicle interior, demonstrate fire 
endurance by a fire hazard analysis acceptable to the railroad.
    The following summary lists the changes to the content of the notes 
and their numbering from the NPRM, reflecting both the table 
reorganization in the final rule as well as additional requirements: 
Note 1 is virtually identical to that in the NPRM. Note 2 is

[[Page 25651]]

virtually identical to Note 5 in the NPRM. Note 3 permits the testing 
of seat and mattress assemblies according to ASTM E 1537 using Cal TB 
133 performance criteria. Note 4 is identical to Note 9 in the NPRM. 
Note 5 requires dynamic testing of seat cushions. Notes 6 and 7 are 
virtually identical to Notes 2 and 3 in the NPRM. The text of Note 8 is 
virtually identical to the second sentence of Note 3 in the NPRM. Note 
9 lists vehicle component materials which must be tested, at a minimum. 
Note 10 allows a testing exception for materials used to fabricate 
small, discontinuous parts that will not contribute materially to fire 
growth in end use configuration, provided an appropriate fire hazard 
analysis is conducted. Note 11 requires that if the surface area of any 
individual small part is less than 16 square inches (100 
cm2) in end use configuration, such small part must be 
tested using the ASTM E 1354 test procedure, unless such small part has 
been shown not to contribute materially to fire growth following an 
appropriate fire hazard analysis as specified in Note 10. Note 12 
relates to Note 11. If, in accordance with Note 11, small parts are 
tested using ASTM E 1354 and an appropriate fire hazard analysis 
accompanies the test results, such small parts do not have to be tested 
for smoke generation using the ASTM E 662 test procedure. Note 13 is 
virtually identical to Note 10 in the NPRM. Note 14 is virtually 
identical to Note 7 in the NPRM. Note 15 is virtually identical to Note 
4 in the NPRM. Note 16 provides test requirements for elastomeric 
materials greater than 16 square inches (100 cm2) in end use 
configuration and requires that, at a minimum, window gaskets, door 
nosings, diaphragms, and roof mats be tested. Notes 17 and 18 apply to 
wire and cable insulation. Note 19 is based on the last sentence of 
text formerly in Note 6 in the NPRM. Note 20 contains the first part of 
text of Note 6 in the NPRM. Note 21 addresses new test requirements for 
other structural components, such as car roofs and electrical cabinets, 
in addition to the floor assembly.
    The list of standards contained in Appendix B, paragraph (c), in 
the NPRM has been revised and updated.
Appendix C--Suspension System Safety Performance Standards
    The purpose of Appendix C is to prevent the occurrence of a variety 
of derailments due to forces on wheels. FRA has revised and clarified 
the requirements of this appendix based on comments received in 
response to the NPRM.
    First, Bombardier commented that as proposed by FRA some 
differences existed between Appendix C and the requirements of the 
then-proposed Track Safety Standards, Sec. 213.333. Consequently, 
Bombardier recommended that FRA change Appendix C to resolve the 
discrepancies; or eliminate Appendix C and reference the track safety 
standards' table of vehicle/track interaction performance limits in 
Sec. 213.333 and incorporate Bombardier's proposed changes submitted as 
part of its September 15, 1997 hearing testimony on the track safety 
standards.
    At the Working Group meeting in January 1998, a Volpe Center 
representative explained that the discrepancy between proposed Appendix 
C and the proposed track safety standards may be justifiable because 
Appendix C would apply only to new passenger equipment; whereas the 
then-proposed standards in the track safety rule would apply to both 
new and existing equipment. Appendix C's standards could therefore be 
necessarily stricter. In this regard, FRA has retained Appendix C and 
not simply referenced the track safety standards' table of vehicle/
track interaction performance limits in 49 CFR Sec. 213.333. Points 4 
and 6 in Appendix C are not found in the track safety standards' table 
of vehicle/track interaction safety limits, and thus need to be 
retained in this passenger equipment rule to ensure the safety of new 
passenger equipment. However, FRA has otherwise reconciled Appendix C 
with the track safety standards' table in Sec. 213.333.
    Talgo, in its comments on proposed Appendix C, suggested that FRA 
reword the second paragraph in the Appendix to clarify that the 
performance standards are meant to apply to the average values for the 
parameters recorded during the time the train travels six feet. FRA has 
not adopted Talgo's suggestion, however. FRA intended that the 
performance standards apply to the maximum values for the parameters 
recorded to ensure that the passenger equipment operates within outer 
safety limits. Use of average values would mask real safety concerns.
    Talgo also recommended that FRA define the method for signal 
filtering. FRA has adopted Talgo's recommendation and specified that, 
for purposes of this appendix, wheel/rail force measurements shall be 
processed through a low pass filter having a cut-off frequency of 25 
Hz.
    Finally, Talgo recommended that points 4 and 5 in the appendix be 
revised to acknowledge that they should not be applied to single-axle 
trucks. FRA has not adopted Talgo's recommendation with respect to 
points 4 and 5, to the extent that an exemption for rail cars with 
single-axle trucks was sought. However, FRA provides the following 
clarification of points 4 and 5. Point 4 provides that the sum of the 
vertical wheel loads on one side of any truck shall not be less than or 
equal to 20 percent of the static vertical axle load, and that this 
shall include the effect of a crosswind allowance as specified by the 
railroad for the intended service of the equipment. Whether the rolling 
assembly is a single-axle or a double-axle truck, or whether solid or 
stub axles are used to configure the truck, the risk of wheel unloading 
is still present. If the vehicle is subjected to forces that reduce the 
static vertical load per truck side to 20% or less of the static axle 
load, an unsafe condition may exist. Point 4, therefore, requires that 
the sum of vertical wheel loads on any side of any truck (or any other 
suspension configuration per car end or between two car ends) be always 
greater than 20% of the static vertical axle load. For stub (non-solid) 
axles, an equivalent static vertical axle load may be computed by 
adding the static vertical wheel loads on opposite sides. If the 
rolling assembly has only one axle per suspension unit, as in the case 
of Talgo equipment, then any single wheel load is required to be always 
greater than 20% of its static value. As a result, point 4 of this 
appendix will constitute a more stringent requirement than provided in 
point 3. Point 5 of the appendix requires that the maximum truck side 
L/V ratio not exceed 0.6. If the rolling assembly has only one axle per 
suspension unit, as in the case of Talgo equipment, then the 
corresponding L/V ratio computed for each consecutive pair of axles 
shall be similarly limited to 0.6.
Appendix D to Part 238--Requirements for External Fuel Tanks on Tier I 
Locomotives
    This appendix contains the performance requirements for external 
fuel tanks on Tier I locomotives, as adapted from AAR Recommended 
Practice (RP) 506, ``Performance Requirements for Diesel Electric 
Locomotive Fuel Tanks,'' effective July 1, 1995. In incorporating this 
industry practice into Federal regulation, FRA has rephrased the text 
of RP-506 in part. Yet, no substantive change is intended, except as 
noted below. RP-506, a copy of which is available in the public docket 
of this rulemaking, is comprised of sections entitled ``Scope,'' 
``Background,'' ``Limitations,'' and ``Structural Strength 
Requirements.'' Appendix D represents the section

[[Page 25652]]

entitled ``Structural Strength Requirements,'' or Section 4 in RP-506.
    FRA has not included Section 4.4 of RP-506 in Appendix D. Section 
4.4 (``Fueling'') states, ``Internal structures of [the] tank must not 
impede the flow of fuel through the tank while fueling at a rate of 300 
gpm [gallons per minute].'' The rate at which a fuel tank may be fueled 
is only a safety concern in the broad sense that the fuel not spill 
from the tank while fueling. Of course, FRA recognizes that railroad 
fuel dispensers utilize automatic shut-off devices that will stop the 
flow of fuel before the fuel spills out of the tank if the fuel is 
dispensed too readily for the tank to process. The ability of the tank 
to accept fuel at a certain rate per minute therefore appears to be 
more of an operational concern than a safety concern for a railroad in 
that the process of fueling locomotives not be unnecessarily delayed.. 
As a result, FRA will not make Section 4.4. of RP-506 a safety 
requirement of this rule, even though a railroad is free to make it its 
own requirement in acquiring locomotives.

X. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures and is considered to be significant under both Executive 
Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 
1979). FRA has prepared and placed in the docket a full regulatory 
evaluation of the rule (only a summary is provided below). This 
evaluation estimates the costs and consequences of the rule as well as 
its anticipated economic and safety benefits. The evaluation may be 
inspected and photocopied during normal business hours by visiting the 
FRA Docket Clerk at the Office of Chief Counsel, FRA, Seventh Floor, 
1120 Vermont Avenue, in Washington, D.C. Photocopies may also be 
obtained by submitting a written request by mail to the FRA Docket 
Clerk at the Office of Chief Counsel, FRA, 1120 Vermont Ave, Mail Stop 
10, Washington, D.C. 20590.
    Certain requirements in the rule reflect current industry practices 
or restate existing regulations, or both. As a result, in calculating 
the costs of this rule, FRA has neither included the cost of those 
actions that would have been performed voluntarily in the absence of 
this rule, nor the costs of those actions that would have been required 
by the existing regulations that have been restated in this rule. 
Further, in calculating the benefits arising from this rule, FRA has 
not included as a benefit any good resulting from such actions.
    FRA expects that overall this rule will save the passenger rail 
industry approximately $20 million Net Present Value (NPV) over the 
next twenty years. Rail passengers are expected to benefit from reduced 
delays totaling approximately $11 million (twenty-year NPV). FRA 
expects the NPV of the total twenty-year costs incurred associated with 
the rule to be $68.5 million. The NPV of the total twenty-year savings 
expected to accrue to the industry from the rule is approximately $87 
million. For some passenger rail operators, the total costs incurred 
will exceed the total cost savings. For others, the cost savings will 
outweigh the costs. Expected safety benefits coupled with reduced 
passenger train delays outweigh the estimated costs of compliance with 
this rule.
    The following tables present the estimated twenty-year costs and 
savings (NPV) associated with the specific requirements in this final 
rule. To the best of FRA's ability, FRA has apportioned the total costs 
and savings in the following tables between Amtrak, commuter railroads, 
and the State of Washington to more precisely show the effects of this 
final rule on these different entities. In commenting on the NPRM, APTA 
had recommended that FRA segregate the costs and benefits to commuter 
railroads from those involving Amtrak--and not represent both Amtrak 
and commuter railroads together. FRA has separately identified the 
State of Washington in the tables below because of the unique concerns 
involving its operation of Talgo passenger equipment, discussed above 
in the preamble.
    Ideally, FRA would separately show the costs and savings for 
commuter railroads from those involving Amtrak for each requirement in 
the rule. However, FRA cannot separate some of the twenty-year costs 
and savings of this rule with any degree of accuracy between Amtrak and 
commuter railroads, especially for passenger equipment that is not yet 
in service. For instance, FRA does not know how often Amtrak will order 
new equipment or what specific type of equipment that may be. To a 
certain extent, railroads will be able to control their level of 
expenditures in response to this rule by choosing to overhaul or 
rebuild equipment they own or by purchasing existing equipment from 
other railroads instead of ordering new equipment. Of course, FRA can 
more precisely apportion the costs and savings between Amtrak and 
commuter railroads for the inspection, testing, and maintenance 
requirements in this rule; those requirements will most significantly 
impact the existing fleet of passenger equipment, which is readily 
identifiable.

                                           NPV 20-Year Costs Incurred
----------------------------------------------------------------------------------------------------------------
                                                                                    Washington
              Requirement category                    Amtrak       Commuter rail       State           Total
----------------------------------------------------------------------------------------------------------------
Fire Safety--Materials..........................              $0              $0              $0              $0
Certification...................................             (*)  ..............  ..............          84,752
    New Equipment...............................  ..............  ..............  ..............         253,625
    Existing Equipment..........................  ..............  ..............  ..............         675,004
    Inspect/Test/Maint..........................  ..............  ..............  ..............         142,056
Train Hardware & Software.......................               0               0               0               0
Inspect/Test/Maint. Program:
    Existing Equipment..........................  ..............  ..............  ..............         277,816
    New Equipment...............................  ..............  ..............  ..............         167,958
Training Program:
    Course Development..........................  ..............  ..............  ..............       1,720,629
    Exterior Mech. Inspect......................  ..............  ..............  ..............       5,081,250
    Interior Mech. Inspect......................  ..............  ..............  ..............       3,408,940
Pre-Revenue Service Testing:
    Equip w/Prev. Op. Exp.......................  ..............  ..............  ..............          16,950
    Equip w/Out Prev. Op. Exp...................  ..............  ..............  ..............         233,373
Rim-Stamped Straight-Plate Wheels...............               0               0               0               0

[[Page 25653]]

 
Emergency Lighting..............................               0               0               0               0
Talgo--Risk Assessment..........................               0               0         280,634         280,634
Anticlimber & Link to Car Body..................               0         129,296               0         129,296
Forward End Structures..........................               0       8,190,145               0       8,190,145
Corner Posts....................................               0       1,532,517               0       1,532,517
Rollover Strength...............................  ..............  ..............  ..............          29,305
Side Structure..................................               0               0               0               0
Truck to Car Body Attachment....................               0               0               0               0
Glazing.........................................  ..............  ..............  ..............       1,303,894
Fuel Tanks......................................               0               0               0               0
Electrical System...............................               0               0               0               0
Suspension System...............................               0               0               0               0
Brake System--Ease of Inspection................  ..............  ..............  ..............          32,179
Interior fittings and Surfaces..................  ..............  ..............  ..............       2,608,856
Emergency Window Exits..........................               0               0               0               0
Doors--Manual Door Release......................               0       3,968,598               0       3,968,598
Automated Monitoring............................  ..............  ..............  ..............          30,503
Mvmt Defective Equip--Non Brakes................  ..............  ..............  ..............          25,934
Mvmt Defective Equip--Brakes....................  ..............  ..............  ..............         735,249
Reporting and Tracking System...................               0       5,371,054               0       5,371,054
Daily Exterior Mech. Inspections................       3,009,223      16,712,854               0      19,722,077
Qualified Maintenance Person....................               0       1,447,370  ..............       1,447,370
Daily Interior Mech. Inspections................  ..............  ..............  ..............      10,861,361
Periodic Mechanical Inspection..................  ..............  ..............  ..............         201,639
Single Car Test.................................               0               0               0               0
                                                                                                 ---------------
    Total Costs.................................  ..............  ..............  ..............      68,532,966
----------------------------------------------------------------------------------------------------------------


                                               NPV 20-Year Savings
----------------------------------------------------------------------------------------------------------------
                                                                                    Washington
              Requirement category                    Amtrak       Commuter rail       State           Total
----------------------------------------------------------------------------------------------------------------
COT&S Interval Extensions:
    Coaches.....................................              $0      $9,227,510              $0      $9,227,510
    MU locomotives..............................               0      33,368,421               0      33,368,421
    Cab cars....................................               0       7,191,358               0       7,191,358
1,500-mile brake inspection.....................      31,852,373               0               0      31,852,373
Class IA brake tests............................               0       4,360,701               0       4,360,701
Mvmt Defect Brakes--RR..........................  ..............  ..............  ..............         632,592
Mvmt Defect Brakes--Passengers..................  ..............  ..............  ..............      11,368,651
                                                                                                 ---------------
    Total Savings...............................  ..............  ..............  ..............      98,019,605
    Total Twenty-Year Net Impact: $29,486,639 (Savings).
----------------------------------------------------------------------------------------------------------------
(* In the above tables, a ``--'' indicates that total costs or savings, as appropriate, could not be apportioned
  between Amtrak, commuter railroads, and the State of Washington.)

    FRA notes that as a result of the final rule's requirement to 
conduct fire safety analyses of existing passenger equipment, the 
analyses may indicate that modifications to existing equipment are 
necessary to reduce the level of risk of fire or smoke to an acceptable 
level. Although costs associated with performing the analyses are 
included in the calculations above, costs associated with performing 
any equipment modifications are not. If costs associated with equipment 
modifications are incurred, they will be incurred over the first four 
years of the rule and could total between $8.75 million and $14 million 
for existing equipment. If costs associated with installation of 
additional fire and smoke detection and suppression systems are 
incurred for new equipment, total twenty-year costs (NPV) could 
increase by up to $3.9 million. These costs are not included in the 
calculations presented above because FRA cannot predict with any degree 
of precision the results of the fire safety analyses. Should equipment 
modifications, and fire and smoke detection and suppression systems be 
required, the total net impact of the rule could be reduced from a 
savings of $29.5 million to a savings of $11.6 million (NPV). Rail 
operators would experience a minimal savings.
    Intercity passenger and commuter railroads generally offer the 
travelling public one of the safest forms of transportation available. 
However, the history of passenger train accidents shows that the 
potential for injury and loss of life is significant. Between January 
1, 1990, and December 31, 1997, there were a total of 93 passenger 
fatalities on intercity passenger and commuter railroads, representing 
a total economic loss of $251 million. Sixty-eight passenger fatalities 
occurred when the trains carrying the passengers were involved in 
derailments or collisions. FRA believes that it is reasonable to expect 
that the measures called for in this rule will prevent or mitigate the 
severity of casualties greater in value than the costs to rail carriers 
of implementing the requirements of this rule.

[[Page 25654]]

    The unique circumstances surrounding each future passenger train 
accident will determine the ultimate effectiveness of this rule and 
FRA's other strategies to improve passenger rail safety. Similar 
accidents have unique characteristics which ultimately determine an 
accident's severity in terms of casualties. As a result, we cannot at 
this time forecast future accident scenarios with a level of precision 
that would allow us to predict the actual need for the particular 
measures in this rule. However, this rule protects railroad employees 
and passengers against known hazards that can be mitigated in a cost-
effective manner. For each cost associated with a requirement in this 
rule, FRA has examined the potential safety benefits accruing from the 
requirement. Certain elements of the rule, such as the structural 
requirements, will directly improve safety by decreasing threats to 
life and property. Other elements of the rule will provide savings to 
the rail industry while maintaining or improving the industry's 
excellent safety record overall.
    In its comments on the proposed rule, the NCDOT stated that the 
summary economic analysis contained in the NPRM did not include an 
analysis of the impact on individual States. The NCDOT believed the 
cost summary to be understated and not include an operator by operator 
analysis. The above summary does specify this rule's impact on 
Washington State. Further, as noted, a copy of the full regulatory 
evaluation of this rule is available through the FRA Docket Clerk. That 
evaluation does include, where appropriate, discussions of the rule's 
impact on particular railroads or groups of railroads. The evaluation 
also takes into consideration that individual States will contract with 
Amtrak for the provision of rail service on their behalf. In this 
regard, for example, a State may utilize Amtrak's inspection forces 
trained under the rule, and thus not have to train inspection forces on 
its own.

B. 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 significant impact on a substantial number 
of small entities. This final rule affects intercity passenger and 
commuter railroads, rapid transit operations that operate on the 
general system of transportation, and certain private car owners. FRA 
notes that the standards contained in this rule were developed in 
consultation with a Working Group that included Amtrak, individual 
commuter railroads, APTA, and the AAPRCO. APTA represents the interests 
of commuter railroads and rapid transit systems in regulatory matters. 
The AAPRCO represents the interests of private car owners in regulatory 
matters.
    Except for private car owners, the entities impacted by the final 
rule are governmental jurisdictions, known as transit authorities, none 
of which are small for purposes of the prevailing law. The statutory 
definition of ``small governmental jurisdictions'' is a governmental 
entity that serves a population center of 50,000 or less. See 5 U.S.C. 
601(5). The transit authorities subject to the requirements of this 
rule do not fall within the class established by statute. Nevertheless, 
FRA considered the impacts of this final rule on the smaller entities 
subject to the rule. Commuter railroads and rapid transit systems are 
part of larger transit organizations that receive Federal funds. The 
level of costs incurred by each organization should generally vary in 
proportion to either the size of the organization or the extent to 
which the organization purchases newly manufactured passenger 
equipment. For instance, railroads with fewer employees and passenger 
equipment will have lower costs associated with employee training and 
the inspection, testing, and maintenance of passenger equipment. FRA 
notes that this rule offers railroads the opportunity to experience 
savings in the areas of inspection, testing, and maintenance of 
passenger equipment. The extent of these savings will generally vary 
proportionally with the size of the fleet of each railroad.
    FRA is making only certain requirements in this rule applicable to 
private cars that are operated in passenger trains subject to this 
rule. FRA considered the potential burdens associated with applying the 
various requirements in this rule to private car owners and operators. 
FRA is limiting the application of this rule only to those requirements 
necessary to ensure the safe operation of the passenger train in which 
the private cars operate, as well as the safety of railroad personnel 
handling or inspecting the cars. The economic impacts to private cars 
owners are expected to be minimal, however. Among the provisions 
applicable to private cars are daily mechanical inspection 
requirements; brake inspection, testing, and maintenance requirements; 
and a prohibition concerning rim-stamped straight-plate wheels on 
tread-braked passenger equipment.
    FRA recognizes that private cars affected by this final rule are 
principally hauled by Amtrak, which imposes its own safety requirements 
on the operation of private cars. As a result, the daily exterior 
mechanical inspection requirements in this final rule, though new 
Federal requirements, are only minimally more stringent than the 
mechanical inspections currently performed by Amtrak on its own. The 
final rule does offer the flexibility to move equipment with power 
brake defects, as well as the flexibility to perform daily brake tests 
and mechanical inspections at locations best suited for performing such 
tests and inspections. To the extent that all passenger equipment is 
subject to daily exterior mechanical inspections, private cars will not 
be affected disproportionately.
    Generally, the final rule requires that rim-stamped straight-plate 
wheels not be used as replacement wheels on tread-braked private cars. 
Amtrak has established a private car policy which does not allow the 
use of rim-stamped straight-plate wheels as replacement wheels on 
private cars. Further, Amtrak will decline to move any tread-braked 
private car with a rim-stamped straight-plate wheel after June 30, 
2000. Because Amtrak holds private cars to standards as high or higher 
than those contained in this rule, there will be no additional economic 
impact imposed on private cars operated in Amtrak trains from this 
rule's rim-stamped straight-plate wheel provision. Private cars are 
also subject to provisions in this final rule concerning protection 
against personal injury, suspension system safety, safety appliances, 
and brake system safety. These requirements represent either current 
industry practice or current Federal safety requirements (which are 
being restated in this final rule).
    Smaller passenger rail operations such as tourist, scenic, 
excursion, and historic railroads are exempt from this final rule. A 
joint FRA/industry Working Group will be developing recommendations 
regarding the applicability of FRA regulations, including this one, to 
tourist, scenic, historic, and excursion railroads. Based on that 
Working Group's recommendations, portions of the final rule may apply 
to some or all of these railroads.

C. Paperwork Reduction Act

    This rule contains information collection requirements. FRA has

[[Page 25655]]

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. 3501 et seq.). The 
sections that contain the new or revised information collection 
requirements, or both, and the estimated time to fulfill each 
requirement are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Total annual         Average time per     Total annual burden     Total annual burden
            CFR section                Respondent universe         responses               response                hours                   cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
216.14--Special notice for repairs-- 19 railroads..........  12 forms.............  5 minutes............  1 hour...............  $39
 passenger equipment.
238.1--Earlier application--rule     19 railroads..........  15 notifications.....  45 minutes...........  11 hours.............  429
 requirements--sections 238.15,
 238.17, 238.19, 238.107, 238.109.
238.7--Waivers.....................  19 railroads..........  12 waivers...........  2 hrs/25 hrs.........  70 hours.............  2,730
238.11--Penalties..................  19 railroads..........  1 falsified rept.....  15 minutes...........  .25 hr...............  9
238.15--Movement of passenger        19 railroads..........  1,000 cards/tags.....  3 minutes............  50 hours.............  2,500
 equipment with power brake
 defects, and
    --Movement of passenger          19 railroads..........  288 cards/tags.......  3 minutes............  14 hours.............  700
     equipment with power brake
     defects develop en route.
    --Conditional requirement......  19 railroads..........  144 notifications....  3 minutes............  7 hours..............  350
238.17--Movement of passenger        19 railroads..........  200 tags/cards.......  3 minutes............  10 hours.............  340
 equipment with other than power
 brake defects.
    --Movement of passenger          19 railroads..........  76 tags..............  3 minutes............  4 hours..............  136
     equipment with safety
     appliance defects.
                                     19 railroads..........  38 notifications.....  30 seconds...........  19 min...............  11
238.19--Reporting and tracking       19 railroads..........  N/A..................  Usual and customary    N/A..................  N/A
 defective passenger equipment.                                                      procedure.
    --List of power brake repair     1 railroad............  1 list...............  2 hours..............  2 hours..............  78
     points.
    --Amendments to list...........  1 railroad............  1 update.............  1 hour...............  1 hour...............  39
238.21/238.103/238.223(a)/
 238.309(2)/238.311(a)/ 238.405(a)/
 238.427(a):
    --Petitions for special          19 railroads..........  1 petition...........  16 hours.............  16 hours.............  624
     approval of alternative
     standard.
    --Petitions for special          19 railroads..........  1 petition...........  120 hours............  120 hours............  4,680
     approval of alternative
     compliance.
    --Petitions for special          19 railroads..........  1 petition...........  24 hours.............  24 hours.............  936
     approval of pre-revenue
     service acceptance testing
     plan.
    --Comments on the petitions....  Unknown...............  2 comments...........  1 hour...............  2 hours..............  140
238.103--Fire Safety:
    --Plan.........................  6 equipment             2.4 eq. design (5 yr.  200 hours............  480 hours............  33,360
                                      manufacturers.          average).
    --Subsequent equipment orders..  6 equipment             2.4 eq. design (5 yr.  60 years.............  144 hours............  14,400
                                      manufacturers.          average).
    --Preliminary fire safety        19 railroads..........  19 documents.........  119 hours............  2,264 hours..........  501,241
     analysis.
    --Final fire safety analysis...  18 railroads..........  6 documents (3 yr.     135 hours............  811 hours............  81,067
                                                              average).
    --Fire safety analysis on        19 railroads..........  1 document...........  8 hours..............  8 hours..............  800
     equipment transfer.
    --Written procedures--fire       19 railroads..........  19 written procedures  80 hours.............  1,520 hours..........  106,400
     safety system and fire safety
     equipment.
238.105--Train hardware and          197 railroads.........  N/A..................  Usual and customary    N/A..................  N/A
 software safety.                                                                    procedure.
238.107--Inspection, testing, and
 maintenance plan:
    --Plan.........................  19 railroads..........  N/A..................  Usual and Customary    N/A..................  N/A
                                                                                     procedure.
    --Annual plan review by          19 railroads..........  19 reviews...........  60 hours.............  1,140 hours..........  44,460
     railroads.
238.109 Training, qualification,
 and designation program:

[[Page 25656]]

 
    --Training employees to perform  17 railroads..........  N/A..................  Usual and customary    N/A..................  N/A
     brake-related inspections,                                                      procedure.
     tests, or maintenance.
    --Training employees to perform  19 railroads..........  6,020 trained          2 hours..............  12,522 hours.........  421,410
     daily mechanical inspections.                            employees/241
                                                              instructors.
    --Development of training        19 railroads..........  19 programs..........  520 hours............  9,880 hours..........  360,620
     program.
    --Recordkeeping................  19 railroads..........  6,020 records........  3 minutes............  301 hours............  11,739
238.111--Pre-revenue service         6 equipment             2.4 plans (5 yr.       16 hours.............  38 hours.............  2,641
 acceptance testing plan--equip.      manufacturers.          average).
 prev. in revenue service.
    --Pass equip. that has not been  6 equipment             2.4 plans (5 yr.       200 hours............  480 hours............  42,144
     in revenue service in U.S.       manufacturers.          average).
    --Subsequent equipment orders..  6 equipment             2.4 plans (5 yr.       60 hours.............  144 hours............  11,472
                                      manufacturers.          average).
    --Major upgrades/intro. new      1 equipment manuf.....  None likely..........  N/A..................  N/A..................  N/A
     tech.--Tier II.
238.201--Alternative compliance....  19 railroads..........  Incl. in 238.21......  Inc. 238.21..........  Incl. 238.21.........  Incl. 238.21
238.203--Static end strength:
    --Grandfathering non-compliant   19 railroads..........  1 petition...........  300 hours............  300 hours............  21,000
     equip.
    --Comment......................  Unkown................  6 comments...........  20 hours.............  120 hours............  8,400
238.211--Collision posts...........  19 railroads..........  Incl. in 238.21......  Incl. 238.21.........  Incl. 238.21.........  Inc. 238.21
238.223--Locomotive fuel tanks--     19 railroads..........  Incl. in 238.21......  Incl. 238.21.........  Incl. 238.21.........  Inc 238.21
 alt. std.
238.231--Brake system--identified &  2 brake manu-           N/A..................  N/A..................  Usual and cust.......  N/A
 marked.                              facturers.
 238.237--Automated monitoring:
    --Alerter/Deadman control--      19 railroads..........  19 documents.........  2 hours..............  38 hours.............  1,482
     documentation.
    --Defective alerter/Deadman      19 railroads..........  100 tags.............  3 minutes............  5 hours..............  250
     control.
238.301--Scope--requirements--earli  19 railroads..........  Incl. in 238.1.......  Incl. in 238.1.......  Incl. in 238.1.......  Incl. 238.1
 er application.
238.303--Exterior calendar day       N/A...................  N/A..................  Usual and customary    N/A..................  N/A
 mechanical inspection of passenger                                                  procedure.
 equipment--door and cover plates
 guarding high voltage equip.
    --MU locomotives w/ inoperative  19 railroads..........  50 tags/cards........  3 minutes............  3 hours..............  150
     dyn. brakes.
    --Conventional locos. w/         19 railroads..........  50 tags/cards........  3 minutes............  3 hours..............  150
     inoper. dyn. brakes.
    --Written notice--inoperative    19 railroads..........  25 written not.......  3 minutes............  1 hour...............  34
     dyn. brakes.
    --Records--ext. calendar day     19 railroads..........  2,022,436 recd.......  1 minute.............  33,707 hours.........  1,146,038
     mech. insp.
238.305--Interior calendar day
 mechanical inspection of passenger
 cars:
    --Stenciling or marking          N/A...................  N/A..................  Usual and customary    N/A..................  N/A
     emergency brake valve.                                                          procedure.
    --Stenciling or marking high     N/A...................  N/A..................  Usual and customary    N/A..................  N/A
     voltage equipment.                                                              procedure.
    --Tagging of defective doors...  10 railroads..........  600 tags.............  1 minute.............  10 hours.............  340
    --Safety related signage.......  N/A...................  N/A..................  Usual and customery    N/A..................  N/A
                                                                                     customery procedure.
    --Records......................  19 railroads..........  1,866,904 recds......  1 minute.............  31,115 hours.........  1,057,910
238.307--Periodic mechanical
 inspection of passenger cars:
    --Written notification--alt.     5 railroads...........  5 notifications......  5 hours..............  25 hours.............  975
     periodic insp. int.
    --Switches--markings...........  N/A...................  N/A..................  Usual and customary    N/A..................  N/A
                                                                                     procedure.

[[Page 25657]]

 
    --Records......................  6 railroads...........  15 records...........  3 minutes............  .75 hours............  29
    --Detailed documentation--alt.   5 railroads...........  5 documents..........  100 hours............  500 hours............  19,500
     insp. interval.
238.309--Alternative maintenance     19 railroads..........  Incl. in 238.21......  Incl. in 238.21......  Incl. in 238.21......  Inc. 238.21
 proc.
    --Records of periodic            N/A...................  N/A..................  Usual and customary    N/A..................  N/A
     maintenance.                                                                    procedure.
238.311--Single car test--alt.       19 railroads..........  Incl. in 238.21......  Incl. in 238.21......  Incl. in 238.21......  Inc.--238.21
 procedure.
    --Tagging to indicate need--     19 railroads..........  25 tags..............  3 minutes............  1 hour...............  34
     single car test.
238.313--Class I brake test........  N/A...................  N/A..................  Usual and customary    N/A..................  N/A
                                                                                     procedure.
    --Documentation--test already    ......................  .....................  .....................  .....................  ......................
     performed.
    --Qualif. maint. Person.--       ......................  .....................  .....................  .....................  ......................
     statement in cab.
238.315--Class IA brake test:
    --Brake pipe pressure--          19 railroads..........  365,000 comm.........  3 seconds............  304 hours............  10,336
     communications.
    --Communicating signal system--  19 tests..............  365,000 tests........  15 seconds...........  1,521 hours..........  51,714
     tests.
238.317--Class II Brake Test:
    --Brake pipe pressure--          19 railroads..........  365,000 comm.........  3 seconds............  304 hours............  10,336
     communications.
    --Communicating signal system--  19 railroads..........  365,000 tests........  15 seconds...........  1,521 hours..........  51,714
     tests.
238.403--Crash energy management     1 railroad............  1 design.............  120 hours............  120 hours............  12,000
 requirements.
238.405--Longitudinal static         1 railroad............  Incl. in 238.21......  Incl.--238.21........  Incl.--238.21........  Inc.--238.21
 compressive.
238.421--Gazing:
    --Marking of glazing material..  N/A...................  N/A..................  Usual and customary    N/A..................  N/A
                                                                                     procedure.
    --Stenciling requirement.......  N/A...................  N/A..................  Usual and customary    N/A..................  N/A
                                                                                     procedure.
238.423--Fuel tanks--equiv. level    N/A...................  Incl. in 238.21......  Incl. in 238.21......  Incl. in 238.21......  Inc.--238.21
 of safety.
238.427--Suspension system--alt.     N/A...................  Incl. in 238.21......  Incl. in 238.21......  Incl. in 238.21......  Incl.--238.445
 stds.
    --Hunting oscillations--alarms   1 railroad............  Incl. in 238.445.....  Inc.--238.445........  Inc.--238.445........  In.--238.445
     to train oper.
238.431--Brake system..............  1 railroad............  1 analysis...........  40 hours.............  40 hours.............  1,560
    --Brake system failures........  1 railroad............  Incl. 238.445........  Incl. 238.445........  Incl. 238.445........  In 238.445
    --Wheel slide alarms...........  1 railroad............  Incl. 238.445........  Incl. 238.445........  Incl. 238.445........  In 238.445
238.437--Emergency communication...  3 car manufacturers...  3 instructions.......  1 hour...............  3 hours..............  102
238.441--Emergency roof entrance     3 car manufacturers...  16 cars marked.......  15 minutes...........  4 hours..............  136
 location.
    --Markings.....................  ......................  .....................  .....................  .....................  ......................
238.445--Automated monitoring......  1 railroad............  200 alerts...........  1 second.............  3 minutes............  2
    --Self test feature--            1 railroad............  6,300 notifications..  1 second.............  2 hours..............  68
     notifications to train
     operator.
238.447--Train operator's controls   N/A...................  N/A..................  Usual and customary    N/A..................  N/A
 and power car cab layout.                                                           procedure.
238.503--Inspection, testing, and
 maintenance requirements:
238.505--Program approval
 procedures:
    --Submission of program........  1 railroad............  1 program............  80 hours.............  80 hours.............  3,120
    --Amendments to program........  1 railroad............  1 amendment..........  8 hours..............  8 hours..............  312
    --Comments.....................  4 unions/individuals..  4 comments...........  1 hour...............  4 hours..............  276
    --Approval.....................  N/A...................  N/A..................  No disapprovals        N/A..................  N/A
                                                                                     expected at this
                                                                                     time.
238.603--Safety planing              1 railroad............  1 safety plan........  100 hours............  100 hours............  3,900
 requirements--Process to introduce
 new technology.
Appendix B to Part 238--labeling     5-6 seat manufacturers  N/A..................  Usual customary        N/A..................  N/A
 requirement.                                                                        procedure.

[[Page 25658]]

 
    --Seat/Mattress assemblies--     5-6 manuf.............  Incl. 238.103........  Incl. 238.103........  Incl. 238.103........  In 238.103
     fire haz. analysis.
    --Disc. small parts--fire        5-6 manuf.............  Incl. in 238.103.....  Incl. 238.103........  Incl. 238.103........  In238.103
     hazard analysis.
    --Surface any small part--fire   5-6 manuf.............  Incl. in 238.103.....  Incl. 238.103........  Incl. 238.103........  In238.103
     haz. analysis.
    --Small elastomers/misc. parts-- 5-6 manuf.............  Incl. in 238.103.....  Incl. 238.103........  Incl. 238.103........  In238.103
     fire haz. anal.
    --Portions vehicle body--fire    5-6 manuf.............  Incl. in 238.103.....  Incl. 238.103........  Incl. 238.103........  In238.103
     hazard analysis.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 
paperwork package submitted to OMB contact Mr. Robert Brogan, Office of 
Safety, Planning and Evaluation Division, RRS-21, Federal Railroad 
Administration, 1120 Vermont Ave., N.W., Mail Stop 17, Washington, D.C. 
20590 (telephone: (202) 493-6292) or Ms. Dian Deal, Office of 
Information Technology and Productivity Improvement, RAD-20, Federal 
Railroad Administration, 1120 Vermont Ave., N.W., Mail Stop 35, 
Washington, D.C. 20590 (telephone: (202) 493-6133).
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. The information collection requirements contained 
in this rule have been approved under OMB control number 2130-0544.

D. Environmental Impact

    FRA has evaluated these regulations in accordance with its 
procedures for ensuring full consideration of the environmental impact 
of FRA actions, as required by the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.), 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.

E. Federalism Implications

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that the 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 (49 U.S.C. 20133). Further, FRA has consulted with 
commuter railroad authorities in developing this rule.

F. 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.

G. Effects on the Year 2000 Computer Problem

    This rule does not mandate business process changes nor require 
modifications to computer systems that will detract from resources 
railroads will apply toward addressing any possible Year 2000 computer 
problems. Although business process changes and modifications to 
computer systems may occur as this rule is implemented, railroads would 
only voluntarily make such changes and modifications before the year 
2000.
    Implementation of certain inspection, testing, and maintenance 
requirements, as well as recordkeeping and tracking of defective 
equipment requirements, would require use of the same resources 
railroads will apply toward resolving Year 2000 computer problems. 
However, FRA will not require that such implementation occur before 
July, 2000. FRA will apply requirements for inspection, testing, and 
maintenance of equipment, and recordkeeping and tracking, at an earlier 
date only to those railroads that indicate a desire for this to occur. 
Because certain of the requirements for inspection, testing, and 
maintenance offer railroads an opportunity to achieve efficiencies and 
savings, some railroads may voluntarily choose to have these 
requirements applied to them earlier. FRA notes that its implementation 
schedule for inspection, testing, and maintenance requirements, as well 
as recordkeeping and tracking requirements, was also developed taking 
into consideration the time generally needed for railroads to develop 
maintenance programs and implement training requirements as required by 
this rule.

XI. List of Subjects

49 CFR Part 216

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements, Special notice for repairs.

49 CFR Part 223

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

49 CFR Part 229

    Locomotives, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

49 CFR Part 231

    Penalties, Railroad safety, Safety appliances.

49 CFR Part 232

    Penalties, Power brakes, Railroad safety, Reporting and 
recordkeeping requirements.

[[Page 25659]]

49 CFR Part 238

    Fire prevention, Incorporation by reference, Passenger equipment, 
Penalties, Railroad safety, Reporting and recordkeeping requirements.

The Rule

    In consideration of the foregoing, chapter II, subtitle B of title 
49, Code of Federal Regulations is amended as follows:

PART 216--[AMENDED]

    1. The authority citation for part 216 is revised to read as 
follows:

    Authority: 49 U.S.C. 20102-04, 20111, 20133, 20137-38, 20141, 
20143, 20301-02, 20701-02, 21301-02, 21304; 49 CFR 1.49(c), (m).

    2. Section 216.1(a) is revised to read as follows:


Sec. 216.1  Application.

    (a) This part applies, according to its terms, to each railroad 
that uses or operates--
    (1) A railroad freight car subject to part 215 of this chapter;
    (2) A locomotive subject to 49 U.S.C. chapter 207 (49 U.S.C. 20701-
03); or
    (3) Railroad passenger equipment subject to part 238 of this 
chapter.
* * * * *


Sec. 216.3  [Amended]

    3. Section 216.3(b) is amended by removing the phrase ``section 206 
of the Federal Railroad Safety Act of 1970 (45 U.S.C. 435)'' and adding 
in its place the phrase ``49 U.S.C. 20105''.


Sec. 216.5  [Amended]

    4. Section 216.5(c) is amended by adding after ``216.13,'': 
``216.14,''.


Sec. 216.13  [Amended]

    5. The first sentence of Sec. 216.13(a) is removed and a new 
sentence is added in its place to read as follows: ``When an FRA Motive 
Power and Equipment Inspector or State Equipment Inspector determines a 
locomotive is not safe to operate in the service to which it is put, 
whether by reason of nonconformity with the FRA Railroad Locomotive 
Safety Standards set forth in part 229 of this chapter or the FRA 
Railroad Locomotive Inspection Regulations set forth in part 230 of 
this chapter or by reason of any other condition rendering the 
locomotive unsafe, he or she will notify the railroad in writing that 
the locomotive is not in serviceable condition.''
    5a. The third sentence of Sec. 216.13(a) is amended by removing the 
phrase ``part 230'' and adding in its place the phrase ``parts 229 and 
230''.
    6. Section 216.14 is added to read as follows:


Sec. 216.14  Special notice for repairs--passenger equipment.

    (a) When an FRA Motive Power and Equipment Inspector or a State 
Equipment Inspector determines that railroad passenger equipment is not 
in conformity with one or more of the requirements of the FRA Passenger 
Equipment Safety Standards set forth in part 238 of this chapter and 
that it is unsafe for further service, he or she will issue a written 
Special Notice to the railroad that the equipment is not in serviceable 
condition. The Special Notice describes the defect or defects that 
cause the equipment to be in unserviceable condition. After receipt of 
the Special Notice, the railroad shall remove the equipment from 
service until it is restored to serviceable condition. The equipment 
may not be deemed in serviceable condition until it complies with all 
applicable requirements of part 238 of this chapter.
    (b) The railroad shall notify in writing the FRA Regional 
Administrator for the FRA region in which the Special Notice was issued 
when the equipment is returned to service, specifying the repairs 
completed.
    (c) Railroad passenger equipment subject to a Special Notice may be 
moved from the place where it was found to be unsafe for further 
service to the nearest available point where the equipment can be 
repaired, if such movement is necessary to make the repairs. However, 
the movement is subject to the further restrictions of Secs. 238.15 and 
238.17 of this chapter.


Sec. 216.17  [Amended]

    7. Section 216.17(a) is amended as follows:
    a. By adding, after ``216.13'', ``216.14,'';
    b. By adding, after the word ``locomotive,'' in the third sentence, 
the phrase ``railroad passenger equipment,''; and
    c. By revising the fifth sentence to read as follows:
    ``If upon reinspection, the railroad freight car, locomotive, or 
passenger equipment is found to be in serviceable condition, or the 
track is found to comply with the requirements for the class at which 
it was previously operated by the railroad, the FRA Regional 
Administrator or his or her agent will immediately notify the railroad, 
whereupon the restrictions of the Special Notice cease to be 
effective.''

Subpart B--[Amended]

    8. In subpart B of part 216, the phrases ``the FRA Regional 
Director for Railroad Safety'', ``the FRA Regional Director of Railroad 
Safety'', ``a Regional Director'' and ``the Regional Director'' are 
removed, and the phrase ``the FRA Regional Administrator'' is added in 
their place.

PART 223--[AMENDED]

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

    Authority: 49 U.S.C. 20102-03, 20133, 20701-20702, 21301-02, 
21304; 49 CFR 1.49(c), (m).

    10. Section 223.8 is added to subpart B to read as follows:


Sec. 223.8  Additional requirements for passenger equipment.

    In addition to the requirements contained in this part, 
requirements for emergency window exits and window safety glazing on 
passenger equipment, as defined in Sec. 238.5 of this chapter, are also 
found in part 238 of this chapter.

PART 229--[AMENDED]

    11. The authority citation for part 229 is revised to read as 
follows:

    Authority: 49 U.S.C. 20102-03, 20133, 20137-38, 20143, 20701-03, 
21301-02, 21304; 49 CFR 1.49(c), (m).

    12. Section 229.3 is amended by revising paragraph (a) and adding 
new paragraphs (c), (d), and (e) to read as follows:


Sec. 229.3  Applicability.

    (a) Except as provided in paragraphs (b) through (e) of this 
section, this part applies to all standard gage railroads.
    (b) * * *
    (c) Paragraphs (a) and (b) of Sec. 229.125 do not apply to Tier II 
passenger equipment as defined in Sec. 238.5 of this chapter (i.e., 
passenger equipment operating at speeds exceeding 125 mph but not 
exceeding 150 mph).
    (d) On or after November 8, 1999, paragraphs (a)(1) and (b)(1) of 
Sec. 229.141 do not apply to ``passenger equipment'' as defined in 
Sec. 238.5 of this chapter, unless such equipment is excluded from the 
requirements of Secs. 238.203 through 238.219, and Sec. 238.223 of this 
chapter by operation of Sec. 238.201(a)(2) of this chapter.
    (e) Paragraphs (a)(2) through (a)(4), and (b)(2) through (b)(4) of 
Sec. 229.141 do not apply to ``passenger equipment'' as defined in 
Sec. 238.5 of this chapter that is placed in service for the first time 
on or after September 8, 2000, unless such equipment is excluded from 
the requirements of Secs. 238.203 through

[[Page 25660]]

238.219, and Sec. 238.223 of this chapter by operation of 
Sec. 238.201(a)(2) of this chapter.

PART 231--[AMENDED]

    13. The authority citation for part 231 is revised to read as 
follows:

    Authority: 49 U.S.C. 20102-03, 20131, 20301-03, 21301-02, 21304; 
49 CFR 1.49(c), (m).

    14. Section 231.0 is amended by redesignating paragraphs (c) 
through (e) as paragraphs (d) through (f), respectively; by revising 
paragraph (a); and by adding a new paragraph (c) to read as follows:


Sec. 231.0  Applicability and penalties.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
this part applies to all standard gage railroads.
    (b) * * *
    (c) Except for the provisions governing uncoupling devices, this 
part does not apply to Tier II passenger equipment as defined in 
Sec. 238.5 of this chapter (i.e., passenger equipment operating at 
speeds exceeding 125 mph but not exceeding 150 mph).
* * * * *

PART 232--[AMENDED]

    15. The authority citation for part 232 is revised to read as 
follows:

    Authority: 49 U.S.C. 20102-03, 20133, 20141, 20301-03, 20306, 
21301-02, 21304; 49 CFR 1.49 (c), (m).

    16. Section 232.0 is amended by redesignating paragraphs (c) 
through (e) as paragraphs (d) through (f), respectively; by revising 
paragraph (a); and by adding a new paragraph (c) to read as follows:


Sec. 232.0  Applicability and penalties.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
this part applies to all standard gage railroads.
    (b) * * *
    (c) Except for Secs. 232.2 and 232.21 through 232.25, this part 
does not apply to a ``passenger train'' or ``passenger equipment'' as 
defined in Sec. 238.5 of this chapter that is subject to the inspection 
and testing requirements contained in part 238 of this chapter.
* * * * *
    17. Part 238 is added to read as follows:

PART 238--PASSENGER EQUIPMENT SAFETY STANDARDS

Subpart A--General

Sec.
238.1  Purpose and scope.
238.3  Applicability.
238.5  Definitions.
238.7  Waivers.
238.9  Responsibility for compliance.
238.11  Civil penalties.
238.13  Preemptive effect.
238.15  Movement of passenger equipment with power brake defects.
238.17  Movement of passenger equipment with other than power brake 
defects.
238.19  Reporting and tracking defective passenger equipment.
238.21  Special approval procedure.
238.23  Information collection.

Subpart B--Safety Planning and General Requirements

238.101  Scope.
238.103  Fire safety.
238.105  Train hardware and software safety.
238.107  Inspection, testing, and maintenance plan.
238.109  Training, qualification, and designation program.
238.111  Pre-revenue service acceptance testing plan.
238.113  Emergency window exits.
238.115  Emergency lighting.
238.117  Protection against personal injury.
238.119  Rim-stamped straight-plate wheels.

Subpart C--Specific Requirements for Tier I Passenger Equipment

238.201  Scope/alternative compliance.
238.203  Static end strength.
238.205  Anti-climbing mechanism.
238.207  Link between coupling mechanism and car body.
238.209  Forward-facing end structure of locomotives.
238.211  Collision posts.
238.213  Corner posts.
238.215  Rollover strength.
238.217  Side structure.
238.219  Truck-to-car-body attachment.
238.221  Glazing.
238.223  Locomotive fuel tanks.
238.225  Electrical system.
238.227  Suspension system.
238.229  Safety appliances.
238.231  Brake system.
238.233  Interior fittings and surfaces.
238.235  Doors.
238.237  Automated monitoring.

Subpart D--Inspection, Testing, and Maintenance Requirements for 
Tier I Passenger Equipment

238.301  Scope.
238.303  Exterior calendar day mechanical inspection of passenger 
equipment.
238.305  Interior calendar day mechanical inspection of passenger 
cars.
238.307  Periodic mechanical inspection of passenger cars and 
unpowered vehicles used in passenger trains.
238.309  Periodic brake equipment maintenance.
238.311  Single car test.
238.313  Class I brake test.
238.315  Class IA brake test.
238.317  Class II brake test.
238.319  Running brake test.

Subpart E--Specific Requirements for Tier II Passenger Equipment

238.401  Scope.
238.403  Crash energy management.
238.405  Longitudinal static compressive strength.
238.407  Anti-climbing mechanism.
238.409  Forward end structures of power car cabs.
238.411  Rear end structures of power car cabs.
238.413  End structures of trailer cars.
238.415  Rollover strength.
238.417  Side loads.
238.419  Truck-to-car-body and truck component attachment.
238.421  Glazing.
238.423  Fuel tanks.
238.425  Electrical system.
238.427  Suspension system.
238.429  Safety appliances.
238.431  Brake system.
238.433  Draft system.
238.435  Interior fittings and surfaces.
238.437  Emergency communication.
238.439  Doors.
238.441  Emergency roof entrance location.
238.443  Headlights.
238.445  Automated monitoring.
238.447  Train operator's controls and power car cab layout.

Subpart F--Inspection, Testing, and Maintenance Requirements for Tier 
II Passenger Equipment

238.501  Scope.
238.503  Inspection, testing, and maintenance requirements.
238.505  Program approval procedure.

Subpart G--Specific Safety Planning Requirements for Tier II Passenger 
Equipment

238.601  Scope.
238.603  Safety planning requirements.

Appendix A to Part 238--Schedule of Civil Penalties

Appendix B--Test Methods and Performance Criteria for the Flammability 
and Smoke Emission Characteristics of Materials Used in Passenger Cars 
and Locomotive Cabs

Appendix C to Part 238--Suspension System Safety Performance Standards

Appendix D to Part 238--Requirements for External Fuel Tanks on Tier I 
Locomotives

Appendix E to Part 238--General Principles of Reliability-Based 
Maintenance Programs

    Authority: 49 U.S.C. 20103, 20107, 20133, 20141, 20302-03, 
20306, and 20701-02; 49 CFR 1.49.

Subpart A--General


Sec. 238.1  Purpose and scope.

    (a) The purpose of this part is to prevent collisions, derailments, 
and other occurrences involving railroad passenger equipment that cause 
injury or death to railroad employees, railroad passengers, or the 
general public; and to

[[Page 25661]]

mitigate the consequences of such occurrences to the extent they cannot 
be prevented.
    (b) This part prescribes minimum Federal safety standards for 
railroad passenger equipment. This part does not restrict a railroad 
from adopting and enforcing additional or more stringent requirements 
not inconsistent with this part.
    (c) Railroads to which this part applies shall be responsible for 
compliance with all of the requirements contained in Secs. 238.15, 
238.17, 238.19, 238.107, 238.109, and subpart D of this part effective 
July 12, 2001.
    (1) A railroad may request earlier application of the requirements 
contained in Secs. 238.15, 238.17, 238.19, 238.107, 238.109, and 
subpart D upon written notification to FRA's Associate Administrator 
for Safety. Such a request shall indicate the railroad's readiness and 
ability to comply with all of the provisions referenced in paragraph 
(c) introductory text of this section.
    (2) Except for paragraphs (b) and (c) of Sec. 238.309, a railroad 
may specifically request earlier application of the maintenance and 
testing provisions contained in Secs. 238.309 and 238.311 
simultaneously. In order to request earlier application of these two 
sections, the railroad shall indicate its readiness and ability to 
comply with all of the provisions contained in both of those sections.
    (3) Paragraphs (b) and (c) of Sec. 238.309 shall apply beginning 
September 9, 1999.


Sec. 238.3  Applicability.

    (a) Except as provided in paragraph (c) 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; and
    (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.
    (b) Railroads that permit to be used or hauled on their lines 
passenger equipment subject to this part, in violation of a power brake 
provision of this part or a safety appliance provision of this part, 
are subject to the power brake and safety appliance provisions of this 
part with respect to such operations.
    (c) This part does not apply to:
    (1) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation;
    (2) A railroad that operates only on track inside an installation 
that is not part of the general railroad system of transportation;
    (3) Tourist, scenic, historic, or excursion operations, whether on 
or off the general railroad system of transportation; or
    (4) Circus trains.


Sec. 238.5  Definitions.

    As used in this part--
    AAR means the Association of American Railroads.
    APTA means the American Public Transit Association.
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    Alerter means a device or system installed in the locomotive cab to 
promote continuous, active locomotive engineer attentiveness by 
monitoring select locomotive engineer-induced control activities. If 
fluctuation of a monitored locomotive engineer-induced control activity 
is not detected within a predetermined time, a sequence of audible and 
visual alarms is activated so as to progressively prompt a response by 
the locomotive engineer. Failure by the locomotive engineer to 
institute a change of state in a monitored control, or acknowledge the 
alerter alarm activity through a manual reset provision, results in a 
penalty brake application that brings the locomotive or train to a 
stop.
    Anti-climbing mechanism means the parts at the ends of adjoining 
vehicles in a train that are designed to engage when subjected to large 
buff loads to prevent the override of one vehicle by another.
    Bind means restrict the intended movement of one or more brake 
system components by obstruction, increased friction, or reduced 
clearance.
    Block of cars means one car or multiple cars in a solid unit 
coupled together for the purpose of being added to, or removed from, a 
train as a solid unit.
    Brake, air or power brake means a combination of devices operated 
by compressed air, arranged in a system, and controlled manually, 
electrically, or pneumatically, by means of which the motion of a rail 
car or locomotive is retarded or arrested.
    Brake, disc means a retardation system used on some rail vehicles, 
primarily passenger equipment, that utilizes flat metal discs as the 
braking surface instead of the wheel tread.
    Brake, dynamic means a train braking system whereby the kinetic 
energy of a moving train is used to generate electric current at the 
locomotive traction motors, which is then dissipated through banks of 
resistor grids or back into the catenary or third rail system.
    Brake, effective means a brake that is capable of producing its 
required design retarding force on the train. A rail car's air brake is 
not considered effective if its piston travel is in excess of the 
maximum prescribed limits.
    Brake indicator means a device, actuated by brake cylinder 
pressure, which indicates whether brakes are applied or released.
    Brake, inoperative means a primary brake that, for any reason, no 
longer applies or releases as intended or is otherwise ineffective.
    Brake, on-tread friction means a braking system that uses a brake 
shoe that acts on the tread of the wheel to retard the vehicle.
    Brake, parking or hand brake means a brake that can be applied and 
released by hand to prevent movement of a stationary rail car or 
locomotive.
    Brake pipe means the system of piping (including branch pipes, 
angle cocks, cutout cocks, dirt collectors, hoses, and hose couplings) 
used for connecting locomotives and all rail cars for the passage of 
air to control the locomotive and car brakes.
    Brake, power means ``air brake'' as that term is defined in this 
section.
    Brake, primary means those components of the train brake system 
necessary to stop the train within the signal spacing distance without 
thermal damage to friction braking surfaces.
    Brake, secondary means those components of the train brake system 
which develop supplemental brake retarding force that is not needed to 
stop the train within signal spacing distances or to prevent thermal 
damage to friction braking surfaces.
    Brake shoes or pads aligned with tread or disc means that the 
surface of the brake shoe or pad, respectively, engages the surface of 
the wheel tread or disc, respectively, to prevent localized thermal 
stress.
    Braking system, blended means a braking system where the primary 
brake and one or more secondary brakes are automatically combined to 
stop the train. If the secondary brakes are unavailable, the blended 
brake uses the primary brake alone to stop the train.
    Calendar day means a time period running from one midnight to the 
next midnight on a given date.
    Class I brake test means a complete passenger train brake system 
test and inspection (as further specified in Sec. 238.313) performed by 
a qualified

[[Page 25662]]

maintenance person to ensure that the air brake system is 100 percent 
effective.
    Class IA brake test means a test and inspection (as further 
specified in Sec. 238.315) performed by a qualified person of the air 
brake system on each car in a passenger train to ensure that the brakes 
apply and release on each car in the train in response to train line 
commands.
    Class II brake test means a test and inspection (as further 
specified in Sec. 238.317) performed by a qualified person of brake 
pipe integrity and continuity from the controlling locomotive to the 
rear unit of a passenger train.
    Collision posts means structural members of the end structures of a 
vehicle that extend vertically from the underframe to which they are 
securely attached and that provide protection to occupied compartments 
from an object penetrating the vehicle during a collision.
    Control valves means that part of the air brake equipment on each 
rail car or locomotive that controls the charging, application, and 
release of the air brakes, in response to train line commands.
    Corner posts means structural members located at the intersection 
of the front or rear surface with the side surface of a rail vehicle 
and which extend vertically from the underframe to the roof. Corner 
posts may be combined with collision posts to become part of the end 
structure.
    Crack means a fracture without complete separation into parts, 
except that, in a casting, a shrinkage crack or hot tear that does not 
significantly diminish the strength of the member is not a crack.
    Crash energy management means an approach to the design of rail 
passenger equipment which controls the dissipation of energy during a 
collision to protect the occupied volumes from crushing and to limit 
the decelerations on passengers and crewmembers in those volumes. This 
may be accomplished by designing energy-absorbing structures of low 
strength in the unoccupied volumes of a rail vehicle or passenger train 
to collapse in a controlled manner, while providing higher structural 
strength in the occupied volumes. Energy deflection can also be part of 
a crash energy management approach. Crash energy management can be used 
to help provide anti-climbing resistance and to reduce the risk of 
train buckling during a collision.
    Crash refuge means a volume with structural strength designed to 
maximize the survivability of crewmembers stationed in the locomotive 
cab during a collision.
    Crewmember means a railroad employee called to perform service 
covered by the Federal hours of service laws at 49 U.S.C. 21103 and 
subject to the railroad's operating rules and program of operational 
tests and inspections required in Sec. 217.9 and Sec. 217.11 of this 
chapter.
    Critical buckling stress means the minimum stress necessary to 
initiate buckling of a structural member.
    Emergency brake application means an irretrievable brake 
application resulting in the maximum retarding force available from the 
train brake system.
    Emergency window means that segment of a side-facing glazing panel 
which has been designed to permit rapid and easy removal in an 
emergency situation.
    End structure means the main support structure projecting upward 
from the underframe of a locomotive, passenger car, or other rail 
vehicle. The end structure is securely attached to the underframe at 
each end of a rail vehicle.
    50th -percentile adult male means a person weighing 164 pounds 
(plus or minus 3 pounds) and possessing the following dimensions: erect 
sitting height: 35.7 inches (plus or minus 0.1 inch); hip breadth 
(sitting): 14.7 inches (plus or minus 0.7 inch); hip circumference 
(sitting): 42 inches; waist circumference (sitting): 32 inches (plus or 
minus 0.6 inch); chest depth: 9.3 inches (plus or minus 0.2 inch); and 
chest circumference: 37.4 inches (plus or minus 0.6 inch).
    Foul means restrict the intended movement of one or more brake 
system components because the component is snagged, entangled, or 
twisted.
    FRA means the Federal Railroad Administration.
    Fuel tank, external means a fuel containment volume that extends 
outside the car body structure of a locomotive.
    Fuel tank, internal means a fuel containment volume that does not 
extend outside the car body structure of a locomotive.
    Full-height collision post, corner post, or side frame post means 
any vertical framing member in the rail car body structure that spans 
the distance between the underframe and the roof at the car body 
section where the post is located. For collision posts located at the 
approximate third points laterally of an end frame, the term ``full-
height'' applies to posts that extend and connect to supporting 
structural members in the roof at the location of the posts, or to a 
beam connected to the top of the end-frame and supported by the roof 
rails (or anti-telescoping plate), or to both.
    Full service application means a brake application which results in 
a brake cylinder pressure at the service limiting valve setting or 
equivalent.
    Glazing, end-facing means a glazing panel located where a line 
perpendicular to the exterior surface of the panel makes an angle of 50 
degrees or less with the longitudinal center line of the rail vehicle 
in which the panel is installed. A glazing panel that curves so as to 
meet the definition for both side-facing and end-facing glazing is 
considered end-facing glazing.
    Glazing, exterior means a glazing panel that is an integral part of 
the exterior skin of a rail vehicle and has a surface exposed to the 
outside environment.
    Glazing, side-facing means a glazing panel located where a line 
perpendicular to the exterior surface of the panel makes an angle of 
more than 50 degrees with the longitudinal center line of the rail 
vehicle in which the panel is installed.
    Handrails means safety appliances installed on either side of a 
rail vehicle's exterior doors to assist passengers and crewmembers to 
safely board and depart the vehicle.
    Head end power means power generated on board the locomotive of a 
passenger train used for purposes other than propelling the train, such 
as cooking, heating, illumination, ventilation and air conditioning.
    In passenger service/in revenue service means a train or passenger 
equipment that is carrying, or available to carry, passengers. 
Passengers need not have paid a fare in order for the equipment to be 
considered in passenger or in revenue service.
    In service, when used in connection with passenger equipment, 
means:
    (1) Passenger equipment subject to this part that is in passenger 
or revenue service; and
    (2) All other passenger equipment subject to this part, unless the 
passenger equipment:
    (i) Is being handled in accordance with Secs. 238.15, 238.17, 
238.305(c)(5), or 238.503(f), as applicable;
    (ii) Is in a repair shop or on a repair track;
    (iii) Is on a storage track and is not carrying passengers; or
    (iv) Has been delivered in interchange but has not been accepted by 
the receiving railroad.
    Interior fitting means any component in the passenger compartment 
which is mounted to the floor, ceiling, sidewalls, or end walls and 
projects into the passenger compartment more than 25

[[Page 25663]]

mm (1 in.) from the surface or surfaces to which it is mounted. 
Interior fittings do not include side and end walls, floors, door 
pockets, or ceiling lining materials, for example.
    Lateral means the horizontal direction perpendicular to the 
direction of travel.
    Locomotive means a piece of on-track rail equipment, other than hi-
rail, specialized maintenance, or other similar equipment, which may 
consist of one or more units operated from a single control stand with 
one or more propelling motors designed for moving other passenger 
equipment; with one or more propelling motors designed to transport 
freight or passenger traffic, or both; or without propelling motors but 
with one or more control stands. This term does not include a 
locomotive propelled by steam power unless it is used to haul an 
intercity or commuter passenger train. Nor does this term include a 
freight locomotive when used to haul a passenger train due to failure 
of a passenger locomotive.
    Locomotive cab means the compartment or space on board a locomotive 
where the control stand is located and which is normally occupied by 
the engineer when the locomotive is operated.
    Locomotive, cab car means rail rolling equipment intended to 
provide transportation for members of the general public that is 
without propelling motors but equipped with one or more control stands.
    Locomotive, controlling means the locomotive from which the 
locomotive engineer exercises control over the train.
    Locomotive, MU means rail rolling equipment self-propelled by any 
power source and intended to provide transportation for members of the 
general public; however, this term does not include an MU locomotive 
propelled by steam power unless it is used to haul an intercity or 
commuter passenger train.
    Longitudinal means in a direction parallel to the normal direction 
of travel.
    Luminescent material means material that absorbs light energy when 
ambient levels of light are high and emits this stored energy when 
ambient levels of light are low, making the material appear to glow in 
the dark.
    L/V ratio means the ratio of the lateral force that any wheel 
exerts on an individual rail to the vertical force exerted by the same 
wheel on the rail.
    MIL-STD-882C means a military standard issued by the United States 
Department of Defense to provide uniform requirements for developing 
and implementing a system safety plan and program to identify and then 
eliminate the hazards of a system or reduce the associated risk to an 
acceptable level.
    Monocoque means a type of rail vehicle construction where the shell 
or skin acts as a single unit with the supporting frame to resist and 
transmit the loads acting on the rail vehicle.
    Mph means miles per hour.
    95th -percentile adult male means, except as used in 
Sec. 238.447(f)(2), a person weighing 215 pounds and possessing the 
following dimensions: erect sitting height: 38 inches; hip breadth 
(sitting): 16.5 inches; hip circumference (sitting): 47.2 inches; waist 
circumference (sitting): 42.5 inches; chest depth: 10.5 inches; and 
chest circumference 44.5 inches.
    Occupied volume means the volume of a rail vehicle or passenger 
train where passengers or crewmembers are normally located during 
service operation, such as the operating cab and passenger seating and 
sleeping areas. The entire width of a vehicle's end compartment that 
contains a control stand is an occupied volume. A vestibule is 
typically not considered occupied, except when it contains a control 
stand for use as a control cab.
    Ordered, as applied to acquisition of equipment, means that the 
acquiring entity has given a notice to proceed to manufacture the 
equipment that represents a firm financial commitment to compensate the 
manufacturer for the contract price of the equipment or for damages if 
the order is nullified. Equipment is not ordered if future exercise of 
a contract option is required to place the remanufacturing process in 
motion.
    Override means to climb over the normal coupling or side buffers 
and linking mechanism and impact the end of the adjoining rail vehicle 
or unit above the underframe.
    Passenger car means rail rolling equipment intended to provide 
transportation for members of the general public and includes a self-
propelled car designed to carry passengers, baggage, mail, or express. 
This term includes a passenger coach, cab car, and an MU locomotive. In 
the context of articulated equipment, ``passenger car'' means that 
segment of the rail rolling equipment located between two trucks. This 
term does not include a private car.
    Passenger coach means rail rolling equipment intended to provide 
transportation for members of the general public that is without 
propelling motors and without a control stand.
    Passenger equipment--means
    (1) All powered and unpowered passenger cars, locomotives used to 
haul a passenger car, and any other rail rolling equipment used in a 
train with one or more passenger cars. Passenger equipment includes--
    (i) A passenger coach,
    (ii) A cab car,
    (iii) A MU locomotive,
    (iv) A locomotive not intended to provide transportation for a 
member of the general public that is used to power a passenger train, 
and
    (v) Any non-self-propelled vehicle used in a passenger train, 
including an express car, baggage car, mail car, freight car, or a 
private car.
    (2) In the context of articulated equipment, ``passenger 
equipment'' means a segment of rail rolling equipment located between 
two trucks that is used in a train with one or more passenger cars. 
This term does not include a freight locomotive when used to haul a 
passenger train due to failure of a passenger locomotive.
    Passenger station means a location designated in a railroad's 
timetable where passengers are regularly scheduled to get on or off any 
train.
    Permanent deformation means the undergoing of a permanent change in 
shape of a structural member of a rail vehicle.
    Person means an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor.
    Piston travel means the amount of linear movement of the air brake 
hollow rod (or equivalent) or piston rod when forced outward by 
movement of the piston in the brake cylinder or actuator and limited by 
the brake shoes being forced against the wheel or disc.
    Power car means a rail vehicle that propels a Tier II passenger 
train or is the lead vehicle in a Tier II passenger train, or both.
    Pre-revenue service acceptance testing plan means a document, as 
further specified in Sec. 238.111, prepared by a railroad that explains 
in detail how pre-revenue service tests of passenger equipment 
demonstrate that the equipment meets Federal safety standards and the 
railroad's own safety requirements.
    Primary responsibility means the task that a person performs at 
least 50 percent of the time. The totality of the circumstances will be 
considered on a case-by-case basis in circumstances

[[Page 25664]]

where an individual does not spend 50 percent of his or her day engaged 
in any one readily identifiable type of activity.
    Private car means rail rolling equipment that is used only for 
excursion, recreational, or private transportation purposes. A private 
car is not a passenger car.
    Public highway-rail grade crossing means a location where a public 
highway, road or street, including associated sidewalks or pathways, 
crosses one or more active railroad tracks at grade.
    Qualified maintenance person means a qualified person who has 
received, as a part of the training, qualification, and designation 
program required under Sec. 238.109, instruction and training that 
includes ``hands-on'' experience (under appropriate supervision or 
apprenticeship) in one or more of the following functions: 
troubleshooting, inspection, testing, maintenance, or repair of the 
specific train brake and other components and systems for which the 
person is assigned responsibility. This person shall also possess a 
current understanding of what is required to properly repair and 
maintain the safety-critical brake or mechanical components for which 
the person is assigned responsibility. Further, the qualified 
maintenance person shall be a person whose primary responsibility 
includes work generally consistent with the above-referenced functions 
and is designated to:
    (1) Conduct Class I brake tests under this part;
    (2) Conduct exterior calendar day mechanical inspections on MU 
locomotives or other passenger cars and unpowered vehicles under this 
part; or
    (3) Determine whether equipment not in compliance with this part 
may be moved as required by Sec. 238.17.
    Qualified person means a person determined by a railroad to have 
the knowledge and skills necessary to perform one or more functions 
required under this part. The railroad determines the qualifications 
and competencies for employees designated to perform various functions 
in the manner set forth in this part.
    Railroad means any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways and any entity providing 
such transportation, including--
    (i) Commuter or other short-haul railroad 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.
    Refresher training means periodic retraining required by a railroad 
for employees or contractors to remain qualified to perform specific 
equipment inspection, testing, or maintenance functions.
    Repair point means a location designated by a railroad where 
repairs of the type necessary occur on a regular basis. A repair point 
has, or should have, the facilities, tools, and personnel qualified to 
make the necessary repairs. A repair point need not be staffed 
continuously.
    Respond as intended means to produce the result that a device or 
system is designed to produce.
    Rollover strength means the strength provided to protect the 
structural integrity of a rail vehicle in the event the vehicle leaves 
the track and impacts the ground on its side or roof.
    Roof rail means the longitudinal structural member at the 
intersection of the side wall and the roof sheathing.
    Running brake test means a test (as further specified in 
Sec. 238.319) performed by a qualified person of a train system or 
component while the train is in motion to verify that the system or 
component functions as intended.
    Running gear defect means any condition not in compliance with this 
part which involves a truck component, a propulsion system component, a 
draft system component, a wheel, or a wheel component.
    Safety appliance means an appliance required under 49 U.S.C. 
chapter 203, excluding power brakes. The term includes automatic 
couplers, hand brakes, sill steps, handholds, handrails, or ladder 
treads made of steel or a material of equal or greater mechanical 
strength used by the traveling public or railroad employees that 
provide a means for safely coupling, uncoupling, or ascending or 
descending passenger equipment.
    Safety-critical means a component, system, or task that, if not 
available, defective, not functioning, not functioning correctly, not 
performed, or not performed correctly, increases the risk of damage to 
passenger equipment or injury to a passenger, crewmember, or other 
person.
    Semi-permanently coupled means coupled by means of a drawbar or 
other coupling mechanism that requires tools to perform the uncoupling 
operation. Coupling and uncoupling of each semi-permanently coupled 
unit in a train can be performed safely only while at a maintenance or 
shop location where personnel can safely get under a unit or between 
units.
    Shear strength means the ability of a structural member to resist 
forces or components of forces acting perpendicular to compression or 
tension forces, or both, in the member.
    Shock absorbent material means material designed to prevent or 
mitigate injuries due to impact by yielding and absorbing much of the 
energy of impact.
    Side posts means main vertical structural elements in the sides of 
a rail vehicle.
    Side sill means that portion of the underframe or side at the 
bottom of the rail vehicle side wall.
    Single car test means a comprehensive test (as further specified in 
Sec. 238.311) of the functioning of all critical brake system 
components installed on an individual passenger car or unpowered 
vehicle, other than a self-propelled passenger car, used or allowed to 
be used in a passenger train.
    Single car test device means a device capable of controlling the 
application and release of the brakes on an individual passenger car or 
an unpowered vehicle, other than a self-propelled passenger car, 
through pneumatic or electrical means.
    Skin means the outer covering of a fuel tank and a rail vehicle. 
The skin may be covered with another coating of material such as 
fiberglass.
    Spall, glazing means small pieces of glazing that fly off the back 
surface of the glazing when an object strikes the front surface.
    Switching service means the classification of freight cars 
according to commodity or destination; assembling of cars for train 
movements; changing the position of cars for purposes of loading, 
unloading, or weighing; placing of locomotives and cars for repair or 
storage; or moving of rail equipment in connection with work service 
that does not constitute a train movement.
    Telescope means override an adjoining rail vehicle or unit and 
penetrate into the interior of that adjoining vehicle or unit because 
of compressive forces.
    Terminal means a starting point or ending point of a single 
scheduled trip for a train, where passengers may get on or off a train. 
Normally, this location is a point where the train would reverse 
direction or change destinations.
    Tier I means operating at speeds not exceeding 125 mph.

[[Page 25665]]

    Tier II means operating at speeds exceeding 125 mph but not 
exceeding 150 mph.
    Tourist, scenic, historic, or excursion operations means railroad 
operations that carry passengers, often using antiquated equipment, 
with the conveyance of the passengers to a particular destination not 
being the principal purpose.
    Trailer car means a rail vehicle that neither propels a Tier II 
passenger train nor is the leading unit in a Tier II passenger train. A 
trailer car is normally without a control stand and is normally 
occupied by passengers.
    Train means a locomotive unit or locomotive units coupled, with or 
without cars. For the purposes of the provisions of this part related 
to power brakes, the term ``train'' does not include such equipment 
when being used in switching service.
    Train brake communication line means the communication link between 
the locomotive and passenger equipment in a train by which the brake 
commands are transmitted. This may be a pneumatic pipe, electrical 
line, or radio signal.
    Train, commuter means a passenger train providing commuter service 
within an urban, suburban, or metropolitan area. The term includes a 
passenger train provided by an instrumentality of a State or a 
political subdivision of a State.
    Train, long-distance intercity passenger means a passenger train 
that provides service between large cities more than 125 miles apart 
and is not operated exclusively in the National Railroad Passenger 
Corporation's Northeast Corridor.
    Train, passenger means a train that transports or is available to 
transport members of the general public. If a train is composed of a 
mixture of passenger and freight equipment, that train is a passenger 
train for purposes of this part.
    Train, short-distance intercity passenger means a passenger train 
that provides service exclusively on the National Railroad Passenger 
Corporation's Northeast Corridor or between cities that are not more 
than 125 miles apart.
    Train, Tier II passenger means a short-distance or long-distance 
intercity passenger train providing service at speeds that include 
those exceeding 125 mph but not exceeding 150 mph.
    Trainset, passenger means a passenger train.
    Transverse means in a direction perpendicular to the normal 
direction of travel.
    Ultimate strength means the load at which a structural member 
fractures or ceases to resist any load.
    Uncoupling mechanism means the arrangement for operating the 
coupler by any means.
    Underframe means the lower horizontal support structure of a rail 
vehicle.
    Unit means passenger equipment of any type, except a freight 
locomotive when used to haul a passenger train due to failure of a 
passenger locomotive.
    Unoccupied volume means the volume of a rail vehicle or passenger 
train which does not contain seating and is not normally occupied by 
passengers or crewmembers.
    Vehicle, rail means passenger equipment of any type and includes a 
car, trailer car, locomotive, power car, tender, or similar vehicle. 
This term does not include a freight locomotive when used to haul a 
passenger train due to failure of a passenger locomotive.
    Vestibule means an area of a passenger car that normally does not 
contain seating and is used in passing from the seating area to the 
side exit doors.
    Witness plate means a thin foil placed behind a piece of glazing 
undergoing an impact test. Any material spalled or broken from the back 
side of the glazing will dent or mark the witness plate.
    Yard means a system of tracks within defined limits provided for 
the making up of trains, storing of cars, or other purposes.
    Yard air test means a train brake system test conducted using a 
source of compressed air other than a locomotive.
    Yield strength means the ability of a structural member to resist a 
change in length caused by a heavy load. Exceeding the yield strength 
may cause permanent deformation of the member.


Sec. 238.7  Waivers.

    (a) A 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 the person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for waiver under this section shall 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. 238.9  Responsibility for compliance.

    (a) A railroad subject to this part shall not--
    (1) Use, haul, permit to be used or hauled on its line, offer in 
interchange, or accept in interchange any train or passenger equipment, 
while in service,
    (i) That has one or more conditions not in compliance with a safety 
appliance or power brake provision of this part; or
    (ii) That has not been inspected and tested as required by a safety 
appliance or power brake provision of this part; or
    (2) Use, haul, offer in interchange, or accept in interchange any 
train or passenger equipment, while in service,
    (i) That has one or more conditions not in compliance with a 
provision of this part, other than the safety appliance and power brake 
provisions of this part, if the railroad has actual knowledge of the 
facts giving rise to the violation, or a reasonable person acting in 
the circumstances and exercising reasonable care would have that 
knowledge; or
    (ii) That has not been inspected and tested as required by a 
provision of this part, other than the safety appliance and power brake 
provisions of this part, if the railroad has actual knowledge of the 
facts giving rise to the violation, or a reasonable person acting in 
the circumstances and exercising reasonable care would have that 
knowledge; or
    (3) Violate any other provision of this part.
    (b) For purposes of this part, passenger equipment will be 
considered in use prior to departure but after it has received, or 
should have received, the inspection required under this part for 
movement and is deemed ready for passenger service.
    (c) Although the duties imposed by this part are generally stated 
in terms of the duty of a railroad, any person as defined in 
Sec. 238.5, including a contractor for a railroad, who performs any 
function covered by this part must perform that function in accordance 
with this part.


Sec. 238.11  Penalties.

    (a) Any person, as defined in Sec. 238.5, 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

[[Page 25666]]

constitute a separate offense. See Appendix A to this part for a 
statement of agency civil penalty policy.
    (b) 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.


Sec. 238.13  Preemptive effect.

    Under 49 U.S.C. 20106, issuance of the regulations in this part 
preempts any State law, regulation, or order covering the same subject 
matter, except an additional or more stringent law, regulation, or 
order that is necessary to eliminate or reduce an essentially local 
safety hazard; that is not incompatible with a law, regulation, or 
order of the United States Government; and that does not unreasonably 
burden interstate commerce.


Sec. 238.15  Movement of passenger equipment with power brake defects.

    Beginning July 12, 2001 the following provisions of this section 
apply to railroads operating Tier I passenger equipment covered by this 
part. A railroad may request earlier application of these requirements 
upon written notification to FRA's Associate Administrator for Safety 
as provided in Sec. 238.1(c) of this part.
    (a) General. This section contains the requirements for moving 
passenger equipment with a power brake defect without liability for a 
civil penalty under this part. Railroads remain liable for the movement 
of passenger equipment under 49 U.S.C. 20303(c). For purposes of this 
section, Sec. 238.17, and Sec. 238.503, a ``power brake defect'' is a 
condition of a power brake component, or other primary brake component, 
that does not conform with this part. (Passenger cars and other 
passenger equipment classified as locomotives under part 229 of this 
chapter are also covered by the movement restrictions contained in 
Sec. 229.9 of this chapter for those defective conditions covered by 
part 229 of this chapter.)
    (b) Limitations on movement of passenger equipment containing a 
power brake defect found during a Class I or IA brake test. Except as 
provided in paragraph (c) of this section (which addresses brakes that 
become defective en route after a Class I or IA brake test was 
performed), a commuter or passenger train that has in its consist 
passenger equipment containing a power brake defect found during a 
Class I or IA brake test (or, for Tier II trains, the equivalent) may 
only be moved, without civil penalty liability under this part--
    (1) If all of the following conditions are met:
    (i) The train is moved for purposes of repair, without passengers;
    (ii) The applicable operating restrictions in paragraphs (d) and 
(e) of this section are observed; and
    (iii) The passenger equipment is tagged, or information is 
recorded, as prescribed in paragraph (c)(2) of this section; or
    (2) If the train is moved for purposes of scrapping or sale of the 
passenger equipment that has the power brake defect and all of the 
following conditions are met:
    (i) The train is moved without passengers;
    (ii) The movement is at a speed of 15 mph or less; and
    (iii) The movement conforms with the railroad's air brake or power 
brake instructions.
    (c) Limitations on movement of passenger equipment in passenger 
service that becomes defective en route after a Class I or IA brake 
test. Passenger equipment hauled or used in service in a commuter or 
passenger train that develops a power brake defect while en route to 
another location after receiving a Class I or IA brake test (or, for 
Tier II trains, the equivalent) may be hauled or used by a railroad for 
repair, without civil penalty liability under this part, if the 
applicable operating restrictions set forth in paragraphs (d) and (e) 
of this section are complied with and all of the following requisites 
are satisfied:
    (1) En route defect. At the time of the train's Class I or IA brake 
test, the passenger equipment in the train was properly equipped with 
power brakes that comply with this part. The power brakes on the 
passenger equipment become defective while it is en route to another 
location.
    (2) Record. At the place where the railroad first discovers the 
defect, a tag or card is placed on both sides of the defective 
passenger equipment, or an automated tracking system is provided, with 
the following information about the defective passenger equipment:
    (i) The reporting mark and car or locomotive number;
    (ii) The name of the inspecting railroad;
    (iii) The name of the inspector;
    (iv) The inspection location and date;
    (v) The nature of each defect;
    (vi) The destination of the equipment where it will be repaired; 
and
    (vii) The signature, if possible, and job title of the person 
reporting the defective condition.
    (3) Automated tracking system. Automated tracking systems used to 
meet the tagging requirements contained in paragraph (c)(2) of this 
section may be reviewed and monitored by FRA at any time to ensure the 
integrity of the system. FRA's Associate Administrator for Safety may 
prohibit or revoke a railroad's ability to utilize an automated 
tracking system in lieu of tagging if FRA finds that the automated 
tracking system is not properly secure, is inaccessible to FRA or a 
railroad's employees, or fails to adequately track or monitor the 
movement of defective equipment. Such a determination will be made in 
writing and will state the basis for such action.
    (4) Conditional requirement. In addition, if an en route failure 
causes power brakes to be cut out or renders the brake inoperative on 
passenger equipment, the railroad shall:
    (i) Determine the percentage of operative power brakes in the train 
based on the number of brakes known to be cut out or otherwise 
inoperative, using the formula specified in paragraph (d)(1) of this 
section;
    (ii) Notify the person responsible for the movement of trains of 
the percent of operative brakes and movement restrictions on the train 
imposed by paragraph (d) of this section;
    (iii) Notify the mechanical department of the failure; and
    (iv) Confirm the percentage of operative brakes by a walking 
inspection at the next location where the railroad reasonably judges 
that it is safe to do so.
    (d) Operating restrictions based on percent operative power brakes 
in train.
    (1) Computation of percent operative power brakes.
    (i) Except as specified in paragraphs (d)(1)(ii) and (iii) of this 
section, the percentage of operative power brakes in a train shall be 
determined by dividing the number of axles in the train with operative 
power brakes by the total number of axles in the train.
    (ii) For equipment with tread brake units (TBUs), the percentage of 
operative power brakes shall be determined by dividing the number of 
operative TBUs by the total number of TBUs.
    (iii) Each cut-out axle on a locomotive that weighs more than 
200,000 pounds shall be counted as two cut-out axles for the purposes 
of calculating the percentage of operative brakes. Unless otherwise 
specified by the railroad, the friction braking effort over all other 
axles shall be considered uniform.
    (iv) The following brake conditions not in compliance with this 
part are not considered inoperative power brakes for purposes of this 
section:
    (A) Failure or cutting out of secondary brake systems;

[[Page 25667]]

    (B) Inoperative or otherwise defective handbrakes or parking 
brakes;
    (C) Excessive piston travel that does not render the power brakes 
ineffective; and
    (D) Power brakes overdue for inspection, testing, maintenance, or 
stenciling under this part.
    (2) All passenger trains developing 50-74 percent operative power 
brakes. A passenger train that develops inoperative power brake 
equipment resulting in at least 50 percent but less than 75 percent 
operative power brakes may be used only as follows:
    (i) The train may be moved in passenger service only to the next 
forward passenger station;
    (ii) The speed of the train shall be restricted to 20 mph or less; 
and
    (iii) After all passengers are discharged, the defective equipment 
shall be moved to the nearest location where the necessary repairs can 
be made.
    (3) Commuter, short-distance intercity, and short-distance Tier II 
passenger trains developing 75-99 percent operative power brakes.
    (i) 75-84 percent operative brakes. Commuter, short-distance 
intercity, and short-distance Tier II passenger trains which develop 
inoperative power brake equipment resulting in at least 75 percent but 
less than 85 percent operative brakes may be used only as follows:
    (A) The train may be moved in passenger service only to the next 
forward location where the necessary repairs can be made; however, if 
the next forward location where the necessary repairs can be made does 
not have the facilities to handle the safe unloading of passengers, the 
train may be moved past the repair location in service only to the next 
forward passenger station in order to facilitate the unloading of 
passengers; and
    (B) The speed of the train shall be restricted to 50 percent of the 
train's maximum allowable speed or 40 mph, whichever is less; and
    (C) After all passengers are discharged, the defective equipment 
shall be moved to the nearest location where the necessary repairs can 
be made.
    (ii) 85-99 percent operative brakes. Commuter, short-distance 
intercity, and short-distance Tier II passenger trains which develop 
inoperative power brake equipment resulting in at least 85 percent but 
less than 100 percent operative brakes may only be used as follows:
    (A) The train may be moved in passenger service only to the next 
forward location where the necessary repairs can be made; however, if 
the next forward location where the necessary repairs can be made does 
not have the facilities to handle the safe unloading of passengers, the 
train may be moved past the repair location in service only to the next 
forward passenger station in order to facilitate the unloading of 
passengers; and
    (B) After all passengers are discharged, the defective equipment 
shall be moved to the nearest location where the necessary repairs can 
be made.
    (4) Long-distance intercity and long-distance Tier II passenger 
trains developing 75-99 operative power brakes.
    (i) 75-84 percent operative brakes. Long-distance intercity and 
long-distance Tier II passenger trains which develop inoperative power 
brake equipment resulting in at least 75 percent but less than 85 
percent operative brakes may be used only if all of the following 
restrictions are observed:
    (A) The train may be moved in passenger service only to the next 
forward repair location identified for repair of that equipment by the 
railroad operating the equipment in the list required by 
Sec. 238.19(d); however, if the next forward repair location does not 
have the facilities to handle the safe unloading of passengers, the 
train may be moved past the designated repair location in service only 
to the next forward passenger station in order to facilitate the 
unloading of passengers; and
    (B) The speed of the train shall be restricted to 50 percent of the 
train's maximum allowable speed or 40 mph, whichever is less; and
    (C) After all passengers are discharged, the defective equipment 
shall be moved to the nearest location where the necessary repairs can 
be made.
    (ii) 85-99 percent operative brakes. Long-distance intercity and 
long-distance Tier II passenger trains which develop inoperative power 
brake equipment resulting in at least 85 percent but less than 100 
percent operative brakes may be used only if all of the following 
restrictions are observed:
    (A) The train may be moved in passenger service only to the next 
forward repair location identified for repair of that equipment by the 
railroad operating the equipment in the list required by 
Sec. 238.19(d); however, if the next forward repair location does not 
have the facilities to handle the safe unloading of passengers, the 
train may be moved past the designated repair location in service only 
to the next forward passenger station in order to facilitate the 
unloading of passengers; and
    (B) After all passengers are discharged, the defective equipment 
shall be moved to the nearest location where the necessary repairs can 
be made.
    (e) Operating restrictions on passenger trains with inoperative 
power brakes on the front or rear unit. If the power brakes on the 
front or rear unit in any passenger train are completely inoperative 
the following shall apply:
    (1) If the handbrake is located inside the interior of the car:
    (i) A qualified person shall be stationed at the handbrake on the 
unit;
    (ii) The car shall be locked-out and empty except for the railroad 
employee manning the handbrake; and
    (iii) Appropriate speed restrictions shall be placed on the train 
by a qualified person;
    (2) If the handbrake is located outside the interior of the car or 
is inaccessible to a qualified person:
    (i) The car shall be locked-out and empty;
    (ii) The train shall be operated at restricted speed not to exceed 
20 mph; and
    (iii) The car shall be removed from the train or repositioned in 
the train at the first location where it is possible to do so.
    (f) Special Notice for Repair. Nothing in this section authorizes 
the movement of passenger equipment subject to a Special Notice for 
Repair under part 216 of this chapter unless the movement is made in 
accordance with the restrictions contained in the Special Notice.


Sec. 238.17  Movement of passenger equipment with other than power 
brake defects.

    Beginning July 12, 2001 the following provisions of this section 
apply to railroads operating Tier I passenger equipment covered by this 
part. A railroad may request earlier application of these requirements 
upon written notification to FRA's Associate Administrator for Safety 
as provided in Sec. 238.1(c) of this part.
    (a) General. This section contains the requirements for moving 
passenger equipment with other than a power brake defect. (Passenger 
cars and other passenger equipment classified as locomotives under part 
229 of this chapter are also covered by the movement restrictions 
contained in Sec. 229.9 of this chapter for those defective conditions 
covered by part 229 of this chapter.)

[[Page 25668]]

    (b) Limitations on movement of passenger equipment containing 
defects found at time of calendar day inspection. Except as provided in 
Secs. 238.303(e)(15) and 238.305(c)(5), passenger equipment containing 
a condition not in conformity with this part at the time of its 
calendar day mechanical inspection may be moved from that location for 
repair if all of the following conditions are satisfied:
    (1) If the condition involves a running gear defect, the defective 
equipment is not used in passenger service and is moved in a non-
revenue train;
    (2) If the condition involves a non-running gear defect, the 
defective equipment may be used in passenger service in a revenue train 
provided that a qualified maintenance person determines that it is safe 
to do so, and if so, the car is locked out and empty, and all movement 
restrictions are observed except that the car may be occupied by a 
member of the train crew or a railroad employee to the extent necessary 
to safely operate the train;
    (3) The requirements of paragraphs (c)(3) and (c)(4) of this 
section are met; and
    (4) The special requirements of paragraph (e) of this section, if 
applicable, are met.
    (c) Usual limitations on movement of passenger equipment that 
develops defects en route. Except as provided in Secs. 238.303(e)(15) 
and 238.503(f), passenger equipment that develops en route to its 
destination, after its calendar day inspection was performed and before 
its next calendar day mechanical inspection is performed, any defect 
not in compliance with this part, other than a power brake defect, may 
be moved only if the railroad complies with all of the following 
requirements and, if applicable, the special requirements in paragraph 
(e) of this section:
    (1) Prior to movement of equipment with a potential running gear 
defect, a qualified maintenance person shall determine if it is safe to 
move the equipment in passenger service and, if so, the maximum speed 
and other restrictions necessary for safely conducting the movement. If 
appropriate, these determinations may be made based upon a description 
of the defective condition provided by a crewmember. If the 
determinations required by this paragraph are made by an off-site 
qualified maintenance person based on a description of the defective 
condition by on-site personnel, then a qualified maintenance person 
shall perform a physical inspection of the defective equipment, at the 
first location possible, to verify the description of the defect 
provided by the on-site personnel.
    (2) Prior to movement of equipment with a non-running gear defect, 
a qualified person or a qualified maintenance person shall determine if 
it is safe to move the equipment in passenger service and, if so, the 
maximum speed and other restrictions necessary for safely conducting 
the movement. If appropriate, these determinations may be made based 
upon a description of the defective condition provided by the on-site 
personnel.
    (3) Prior to movement of any defective equipment, the qualified 
person or qualified maintenance person shall notify the crewmember in 
charge of the movement of the defective equipment, who in turn shall 
inform all other crewmembers of the presence of the defective 
condition(s) and the maximum speed and other restrictions determined 
under paragraph (c)(1) or (c)(2) of this section. The movement shall be 
made in conformance with such restrictions.
    (4) The railroad shall maintain a record of all defects reported 
and their subsequent repair in the defect tracking system required in 
Sec. 238.19. In addition, prior to movement of the defective equipment, 
a tag or card placed on both sides of the defective equipment, or an 
automated tracking system, shall record the following information about 
the defective equipment:
    (i) The reporting mark and car or locomotive number;
    (ii) The name of the inspecting railroad;
    (iii) The name of the inspector, inspection location, and date;
    (iv) The nature of each defect;
    (v) Movement restrictions and safety restrictions, if any;
    (vi) The destination of the equipment where it will be repaired; 
and
    (vii) The signature, if possible, as well as the job title and 
location of the person making the determinations required by this 
section.
    (5) Automated tracking system. Automated tracking systems used to 
meet the tagging requirements contained in paragraph (c)(4) of this 
section may be reviewed and monitored by FRA at any time to ensure the 
integrity of the system. FRA's Associate Administrator for Safety may 
prohibit or revoke a railroad's ability to utilize an automated 
tracking system in lieu of tagging if FRA finds that the automated 
tracking system is not properly secure, is inaccessible to FRA or a 
railroad's employees, or fails to adequately track or monitor the 
movement of defective equipment. Such a determination will be made in 
writing and will state the basis for such action.
    (6) After a qualified maintenance person or a qualified person 
verifies that the defective equipment is safe to remain in service as 
required in paragraphs (c)(1) and (c)(2) of this section, the defective 
equipment that develops a condition not in compliance with this part 
while en route may continue in passenger service not later than the 
next calendar day mechanical inspection, if the requirements of this 
paragraph are otherwise fully met.
    (d) Inspection of roller bearings on equipment involved in a 
derailment.
    (1) A railroad shall not continue passenger equipment in service 
that has a roller bearing whose truck was involved in a derailment 
unless the bearing has been inspected and tested by:
    (i) Visual examination to determine whether it shows any sign of 
damage; and
    (ii) Spinning freely its wheel set or manually rotating the bearing 
to determine whether the bearing makes any unusual noise.
    (2) The roller bearing shall be disassembled from the axle and 
inspected internally if:
    (i) It shows any external sign of damage;
    (ii) It makes any unusual noise when its wheel set is spun freely 
or the bearing is manually rotated;
    (iii) Its truck was involved in a derailment at a speed of more 
than 10 miles per hour; or
    (iv) Its truck was dragged on the ground for more than 200 feet.
    (e) Special requisites for movement of passenger equipment with 
safety appliance defects. Consistent with 49 U.S.C. 20303, passenger 
equipment with a safety appliance not in compliance with this part or 
with part 231 of this chapter, if applicable, may be moved--
    (1) If necessary to effect repair of the safety appliance;
    (2) From the point where the safety appliance defect was first 
discovered by the railroad to the nearest available location on the 
railroad where the necessary repairs required to bring the passenger 
equipment into compliance can be made or, at the option of the 
receiving railroad, the equipment may be received and hauled for repair 
to a point on the receiving railroad's line that is no farther than the 
point on the delivering railroad's line where the repair of the defect 
could have been made;
    (3) If a tag placed on both sides of the passenger equipment or an 
automated tracking system contains the information required under 
paragraph (c)(4) of this section; and

[[Page 25669]]

    (4) After notification of the crewmember in charge of the movement 
of the defective equipment, who in turn shall inform all other 
crewmembers of the presence of the defective condition(s).
    (f) Special Notice for Repair. Nothing in this section authorizes 
the movement of equipment subject to a Special Notice for Repair under 
part 216 of this chapter unless the movement is made in accordance with 
the restrictions contained in the Special Notice.


Sec. 238.19  Reporting and tracking defective passenger equipment.

    (a) General. Beginning July 12, 2001 each railroad shall have in 
place a reporting and tracking system for passenger equipment with a 
defect not in conformance with this part. A railroad may request 
earlier application of these requirements upon written notification to 
FRA's Associate Administrator for Safety as provided in Sec. 238.1(c) 
of this part. The reporting and tracking system shall record the 
following information:
    (1) The identification number of the defective equipment;
    (2) The date the defect occurred;
    (3) The nature of the defect;
    (4) The determination made by a qualified person or qualified 
maintenance person on whether the equipment is safe to run;
    (5) The name of the qualified person or qualified maintenance 
person making such a determination;
    (6) Any operating restrictions placed on the equipment; and
    (7) Repairs made and the date that they were made.
    (b) Retention of records. At a minimum, each railroad shall keep 
the records described in paragraph (a) of this section for one periodic 
maintenance interval for each specific type of equipment as described 
in the railroad's inspection, testing, and maintenance plan required by 
Sec. 238.107. FRA strongly encourages railroads to keep these records 
for longer periods of time because they form the basis for future 
reliability-based decisions concerning test and maintenance intervals 
that may be developed pursuant to Sec. 238.307(b).
    (c) Availability of records. Railroads shall make defect reporting 
and tracking records available to FRA upon request.
    (d) List of power brake repair points. Railroads operating long-
distance intercity and long-distance Tier II passenger equipment shall 
designate locations, in writing, where repairs to passenger equipment 
with a power brake defect will be made and shall provide the list to 
FRA's Associate Administrator for Safety and make it available to FRA 
for inspection and copying upon request. Railroads operating these 
trains shall designate a sufficient number of repair locations to 
ensure the safe and timely repair of passenger equipment. These 
designations shall not be changed without at least 30 days' advance 
written notice to FRA's Associate Administrator for Safety.


Sec. 238.21  Special approval procedure.

    (a) General. The following procedures govern consideration and 
action upon requests for special approval of alternative standards 
under Secs. 238.103, 238.223, 238.309, 238.311, 238.405, or 238.427; 
for approval of alternative compliance under Sec. 238.201; and for 
special approval of pre-revenue service acceptance testing plans as 
required by Sec. 238.111. (Requests for approval of programs for the 
inspection, testing, and maintenance of Tier II passenger equipment are 
governed by Sec. 238.505.)
    (b) Petitions for special approval of alternative standard. Each 
petition for special approval of an alternative standard shall 
contain--
    (1) The name, title, address, and telephone number of the primary 
person to be contacted with regard to review of the petition;
    (2) The alternative proposed, in detail, to be substituted for the 
particular requirements of this part;
    (3) Appropriate data or analysis, or both, establishing that the 
alternative will provide at least an equivalent level of safety; and
    (4) A statement affirming that the railroad has served a copy of 
the petition on designated representatives of its employees, together 
with a list of the names and addresses of the persons served.
    (c) Petitions for special approval of alternative compliance. Each 
petition for special approval of alternative compliance shall contain--
    (1) The name, title, address, and telephone number of the primary 
person to be contacted with regard to the petition;
    (2) The elements prescribed in Sec. 238.201(b); and
    (3) A statement affirming that the railroad has served a copy of 
the petition on designated representatives of its employees, together 
with a list of the names and addresses of the persons served.
    (d) Petitions for special approval of pre-revenue service 
acceptance testing plan.
    (1) Each petition for special approval of a pre-revenue service 
acceptance testing plan shall contain--
    (i) The name, title, address, and telephone number of the primary 
person to be contacted with regard to review of the petition; and
    (ii) The elements prescribed in Sec. 238.111.
    (2) Three copies of each petition for special approval of the pre-
revenue service acceptance testing plan shall be submitted to the 
Associate Administrator for Safety, Federal Railroad Administration, 
1120 Vermont Ave., N.W., Mail Stop 25, Washington, D.C. 20590.
    (e) Federal Register notice. FRA will publish a notice in the 
Federal Register concerning each petition under paragraphs (b) and (c) 
of this section.
    (f) Comment. Not later than 30 days from the date of publication of 
the notice in the Federal Register concerning a petition under 
paragraphs (b) or (c) of this section, any person may comment on the 
petition.
    (1) Each comment shall set forth specifically the basis upon which 
it is made, and contain a concise statement of the interest of the 
commenter in the proceeding.
    (2) Three copies of each comment shall be submitted to the 
Associate Administrator for Safety, Federal Railroad Administration, 
1120 Vermont Ave., Mail Stop 25, Washington, D. C. 20590.
    (3) The commenter shall certify that a copy of the comment was 
served on each petitioner.
    (g) Disposition of petitions.
    (1) FRA will conduct a hearing on a petition in accordance with the 
procedures provided in Sec. 211.25 of this chapter.
    (2) If FRA finds that the petition complies with the requirements 
of this section or that the proposed plan is acceptable or changes are 
justified, or both, the petition will be granted, normally within 90 
days of its receipt. If the petition is neither granted nor denied 
within 90 days, the petition remains pending for decision. FRA may 
attach special conditions to the approval of the petition. Following 
the approval of a petition, FRA may reopen consideration of the 
petition for cause stated.
    (3) If FRA finds that the petition does not comply with the 
requirements of this section, or that the proposed plan is not 
acceptable or that the proposed changes are not justified, or both, the 
petition will be denied, normally within 90 days of its receipt.
    (4) When FRA grants or denies a petition, or reopens consideration 
of the petition, written notice is sent to the petitioner and other 
interested parties.

[[Page 25670]]

Sec. 238.23  Information collection.

    (a) The information collection requirements of this part were 
reviewed by the Office of Management and Budget pursuant to the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. seq.) and are 
assigned OMB control number 2130-0544.
    (b) The information collection requirements are found in the 
following sections: Secs. 238.1, 238.7, 238.11, 238.15, 238.17, 238.19, 
238.21, 238.103, 238.105, 238.107, 238.109, 238.111, 238.201, 238.203, 
238.211, 238.223, 238.231, 238.237, 238.301, 238.303, 238.305, 238.307, 
238.309, 238.311, 238.313, 238.315, 238.317, 238.403, 238.405, 238.421, 
238.423, 238.427, 238.431, 238.437, 238.441, 238.445, 238.447, 238.503, 
238.505, and 238.603.

Subpart B--Safety Planning and General Requirements


Sec. 238.101  Scope.

    This subpart contains safety planning and general safety 
requirements for all railroad passenger equipment subject to this part.


Sec. 238.103  Fire safety.

    (a) Materials. (1) Materials used in constructing a passenger car 
or a cab of a locomotive ordered on or after September 8, 2000, or 
placed in service for the first time on or after September 9, 2002, 
shall meet the test performance criteria for flammability and smoke 
emission characteristics as specified in Appendix B to this part, or 
alternative standards issued or recognized by an expert consensus 
organization after special approval of FRA under Sec. 238.21.
    (2) On or after November 8, 1999, materials introduced in a 
passenger car or a locomotive cab, as part of any kind of rebuild, 
refurbishment, or overhaul of the car or cab, shall meet the test 
performance criteria for flammability and smoke emission 
characteristics as specified in Appendix B to this part, or alternative 
standards issued or recognized by an expert consensus organization 
after special approval of FRA under Sec. 238.21.
    (b) Certification. A railroad shall require certification that a 
representative sample of combustible materials to be--
    (1) Used in constructing a passenger car or a locomotive cab, or
    (2) Introduced in a passenger car or a locomotive cab, as part of 
any kind of rebuild, refurbishment, or overhaul of the car or cab, has 
been tested by a recognized independent testing laboratory and that the 
results show the representative sample complies with the requirements 
of paragraph (a) of this section at the time it was tested.
    (c) Fire safety analysis for procuring new passenger equipment. In 
procuring new passenger equipment, each railroad shall ensure that fire 
safety considerations and features in the design of the equipment 
reduce the risk of personal injury and equipment damage caused by fire 
to an acceptable level using MIL-STD-882C as a guide or an alternative, 
formal safety methodology. To this end, each railroad shall complete a 
written fire safety analysis for the passenger equipment being 
procured. In conducting the analysis, the railroad shall--
    (1) Take effective steps to design the equipment to be sufficiently 
fire resistant so that fire detection devices permit evacuation of all 
passengers and crewmembers before fire, smoke, or toxic fumes cause 
injury to any passenger or crewmember.
    (2) Identify, analyze, and prioritize the fire hazards inherent in 
the design of the equipment.
    (3) Reasonably ensure that a ventilation system in the equipment 
does not contribute to the lethality of a fire.
    (4) Identify in writing any train component that is a risk of 
initiating fire and which requires overheat protection. An overheat 
detector shall be installed in any component when the analysis 
determines that an overheat detector is necessary.
    (5) Identify in writing any unoccupied train compartment that 
contains equipment or material that poses a fire hazard, and analyze 
the benefit provided by including a fire or smoke detection system in 
each compartment so identified. A fire or smoke detector shall be 
installed in any unoccupied compartment when the analysis determines 
that such equipment is necessary to ensure sufficient time for the safe 
evacuation of passengers and crewmembers from the train. For purposes 
of this section, an unoccupied train compartment means any part of the 
equipment structure that is not normally occupied during operation of 
the train, including a closet, baggage compartment, food pantry, etc.
    (6) Determine whether any occupied or unoccupied space requires a 
portable fire extinguisher and, if so, the proper type and size of the 
fire extinguisher for each location. As required by Sec. 239.101 of 
this chapter, each passenger car is required to have a minimum of one 
portable fire extinguisher. If the analysis performed indicates that 
one or more additional portable fire extinguishers are needed, such 
shall be installed.
    (7) On a case-by-case basis, the railroad shall analyze the benefit 
provided by including a fixed, automatic fire-suppression system in any 
unoccupied train compartment that contains equipment or material that 
poses a fire hazard, and determine the proper type and size of the 
automatic fire-suppression system for each location. A fixed, automatic 
fire suppression system shall be installed in any unoccupied 
compartment when the analysis determines that such equipment is 
practical and necessary to ensure sufficient time for the safe 
evacuation of passengers and crewmembers from the train.
    (8) Describe the analysis and testing necessary to--
    (i) Demonstrate that the fire protection approach taken in the 
design of the equipment will meet the fire protection requirements of 
this part, and
    (ii) Select materials which help provide sufficient fire resistance 
to reasonably ensure adequate time to detect a fire and safely evacuate 
the passengers and crewmembers.
    (9) Explain how safety issues are resolved in relation to cost and 
performance issues in the design of the equipment to reduce the risk of 
each fire hazard.
    (d) Fire safety analysis for existing passenger equipment. (1) Not 
later than July 10, 2000, each passenger railroad shall complete a 
preliminary fire safety analysis for each category of existing rail 
equipment and current rail service.
    (2) Not later than July 10, 2001, each such railroad shall--
    (i) Complete a final fire safety analysis for any category of 
existing passenger equipment and service evaluated during the 
preliminary fire safety analysis as likely presenting an unacceptable 
risk of personal injury. In conducting the analysis, the railroad shall 
consider the extent to which materials comply with the test performance 
criteria for flammability and smoke emission characteristics as 
specified in Appendix B to this part or alternative standards approved 
by FRA under this part.
    (ii) Take remedial action to reduce the risk of personal injuries 
to an acceptable level in any such category, if the railroad finds the 
risk to be unacceptable. In considering remedial action, a railroad is 
not required to replace material found not to comply with the test 
performance criteria for flammability and smoke emission 
characteristics required by this part, if:
    (A) The risk of personal injuries from the material is negligible 
based on the railroad's operating environment and the material's size, 
or location, or both; or

[[Page 25671]]

    (B) The railroad takes alternative action which reduces the risk of 
personal injuries to an acceptable level.
    (3) Not later than July 10, 2003, each such railroad shall--
    (i) Complete a fire safety analysis for all categories of equipment 
and service. In completing this analysis, the railroad shall, as far as 
practicable, determine the extent to which remaining materials comply 
with the test performance criteria for flammability and smoke emission 
characteristics as specified in Appendix B to this part or alternative 
standards approved by FRA under this part.
    (ii) Take remedial action to reduce the risk of personal injuries 
to an acceptable level in any such category, if the railroad finds the 
risk to be unacceptable. In considering remedial action, a railroad is 
not required to replace material found not to comply with the test 
performance criteria for flammability and smoke emission 
characteristics required by this part, if:
    (A) The risk of personal injuries from the material is negligible 
based on the railroad's operating environment and the material's size, 
or location, or both; or
    (B) The railroad takes alternative action which reduces the risk of 
personal injuries to an acceptable level.
    (4) Where possible prior to transferring existing equipment to a 
new category of service, but in no case more than 90 days following 
such a transfer, the passenger railroad shall complete a new fire 
safety analysis taking into consideration the change in railroad 
operations and shall effect prompt action to reduce any identified risk 
to an acceptable level.
    (5) As used in this paragraph, ``category of rail equipment and 
current rail service'' shall be determined by the railroad based on 
relevant fire safety risks, including available ignition sources, 
presence or absence of heat/smoke detection systems, known variations 
from the required material test performance criteria or alternative 
standards approved by FRA, and availability of rapid and safe egress to 
the exterior of the vehicle under conditions secure from fire, smoke, 
and other hazards.
    (e) Inspection, testing, and maintenance. Each railroad shall 
develop and adopt written procedures for the inspection, testing, and 
maintenance of all fire safety systems and fire safety equipment on the 
passenger equipment it operates. The railroad shall comply with those 
procedures that it designates as mandatory for the safety of the 
equipment and its occupants.


Sec. 238.105  Train hardware and software safety.

    These requirements of this section apply to hardware and software 
used to control or monitor safety functions in passenger equipment 
ordered on or after September 8, 2000, and such components implemented 
or materially modified in new or existing passenger equipment on or 
after September 9, 2002.
    (a) The railroad shall develop and maintain a written hardware and 
software safety program to guide the design, development, testing, 
integration, and verification of computer software and hardware that 
controls or monitors equipment safety functions.
    (b) The hardware and software safety program shall be based on a 
formal safety methodology that includes a Failure Modes, Effects, 
Criticality Analysis (FMECA); verification and validation testing for 
all hardware and software components and their interfaces; and 
comprehensive hardware and software integration testing to ensure that 
the software functions as intended.
    (c) Under the hardware and software safety program, software that 
controls or monitors safety functions shall be considered safety-
critical unless a completely redundant, failsafe, non-software means 
ensuring the same function is provided. The hardware and software 
safety program shall include a description of how the following will be 
accomplished, achieved, carried out, or implemented to ensure software 
safety and reliability:
    (1) The software design process;
    (2) The software design documentation;
    (3) The software hazard analysis;
    (4) Software safety reviews;
    (5) Software hazard monitoring and tracking;
    (6) Hardware and software integration safety tests; and
    (7) Demonstration of overall software safety as part of the pre-
revenue service tests of equipment.
    (d) Hardware and software that controls or monitors passenger 
equipment safety functions shall include design feature(s) that result 
in a safe condition in the event of a computer hardware or software 
failure.
    (e) The railroad shall comply with the elements of its hardware and 
software safety program that affect the safety of the passenger 
equipment.


Sec. 238.107  Inspection, testing, and maintenance plan.

    (a) General. Beginning July 12, 2001 the following provisions of 
this section apply to railroads operating Tier I passenger equipment 
covered by this part. A railroad may request earlier application of 
these requirements upon written notification to FRA's Associate 
Administrator for Safety as provided in Sec. 238.1(c).
    (b) Each railroad shall develop, and provide to FRA upon request, a 
detailed inspection, testing, and maintenance plan consistent with the 
requirements of this part. This plan shall include a detailed 
description of the following:
    (1) Inspection procedures, intervals, and criteria;
    (2) Test procedures and intervals;
    (3) Scheduled preventive maintenance intervals;
    (4) Maintenance procedures; and
    (5) Special testing equipment or measuring devices required to 
perform inspections and tests.
    (c) The inspection, testing, and maintenance plan required by this 
section is not intended to address and should not include procedures to 
address employee working conditions that arise in the course of 
conducting the inspections, tests, and maintenance set forth in the 
plan. When requesting a copy of the railroad's plan, FRA does not 
intend to review any portion of the plan that relates to employee 
working conditions.
    (d) The inspection, testing, and maintenance plan required by this 
section shall be reviewed by the railroad annually.


Sec. 238.109  Training, qualification, and designation program.

    (a) Beginning July 12, 2001 each railroad shall have adopted a 
training, qualification, and designation program for employees and 
contractors that perform safety-related inspections, tests, or 
maintenance of passenger equipment, and trained such employees and 
contractors in accordance with the program. A railroad may request 
earlier application of these requirements upon written notification to 
FRA's Associate Administrator for Safety as provided in Sec. 238.1(c). 
For purposes of this section, a ``contractor'' is defined as a person 
under contract with the railroad or an employee of a person under 
contract with the railroad to perform any of the tasks required by this 
part.
    (b) As part of this program, the railroad shall, at a minimum:
    (1) Identify the tasks related to the inspection, testing, and 
maintenance that must be performed on each type of equipment that the 
railroad operates;
    (2) Develop written procedures for the performance of the tasks 
identified;
    (3) Identify the skills and knowledge necessary to perform each 
task;
    (4) Develop or incorporate a training curriculum that includes 
classroom and

[[Page 25672]]

``hands-on'' lessons designed to impart the skills and knowledge 
identified as necessary to perform each task. The developed or 
incorporated training curriculum shall specifically address the Federal 
regulatory requirements contained in this part that are related to the 
performance of the tasks identified;
    (5) Require all employees and contractors to successfully complete 
the training course that covers the equipment and tasks for which they 
are responsible as well as the specific Federal regulatory requirements 
contained in this part related to equipment and tasks for which they 
are responsible;
    (6) Require all employees and contractors to pass a written 
examination covering the equipment and tasks for which they are 
responsible as well as the specific Federal regulatory requirements 
contained in this part related to equipment and tasks for which they 
are responsible;
    (7) Require all employees and contractors to individually 
demonstrate ``hands-on'' capability to successfully perform the tasks 
required to be performed as part of their duties on the type equipment 
to which they are assigned;
    (8) Require supervisors to complete the program that covers the 
employees whom they supervise, including refresher training;
    (9) Require supervisors to exercise oversight to ensure that all 
the identified tasks are performed in accordance with the railroad's 
written procedures;
    (10) Designate in writing that each employee and contractor has the 
knowledge and skills necessary to perform the safety-related tasks that 
are part of his or her job;
    (11) Require periodic refresher training at an interval not to 
exceed three years that includes classroom and ``hands-on'' training, 
as well as testing;
    (12) Add new equipment to the qualification and designation program 
prior to its introduction to revenue service; and
    (13) Maintain records adequate to demonstrate that each employee 
and contractor performing safety-related tasks on passenger equipment 
is currently qualified to do so. These records shall be adequate to 
distinguish the qualifications of the employee or contractor as a 
qualified person or as a qualified maintenance person.


Sec. 238.111  Pre-revenue service acceptance testing plan.

    (a) Passenger equipment that has previously been used in revenue 
service in the United States. For passenger equipment that has 
previously been used in revenue service in the United States, each 
railroad shall test the equipment on its system prior to placing such 
equipment in revenue service for the first time on its railroad to 
ensure the compatibility of the equipment with the railroad's operating 
system (including the track, and signal system). A description of such 
testing shall be retained by the railroad and made available to FRA for 
inspection and copying upon request. For purposes of this paragraph, 
passenger equipment that has previously been used in revenue service in 
the United States means:
    (1) The actual equipment used in such service;
    (2) Equipment manufactured identically to that actual equipment; 
and
    (3) Equipment manufactured similarly to that actual equipment with 
no material differences in safety-critical components or systems.
    (b) Passenger equipment that has not been used in revenue service 
in the United States. Before using passenger equipment for the first 
time on its system that has not been used in revenue service in the 
United States, each railroad shall:
    (1) Prepare a pre-revenue service acceptance testing plan for the 
equipment which contains the following elements:
    (i) An identification of any waivers of FRA or other Federal safety 
regulations required for the testing or for revenue service operation 
of the equipment;
    (ii) A clear statement of the test objectives. One of the principal 
test objectives shall be to demonstrate that the equipment meets the 
safety requirements specified in this part when operated in the 
environment in which it is to be used;
    (iii) A planned schedule for conducting the testing;
    (iv) A description of the railroad property or facilities to be 
used to conduct the testing;
    (v) A detailed description of how the testing is to be conducted, 
including a description of the criteria to be used to evaluate the 
equipment's performance;
    (vi) A description of how the test results are to be recorded;
    (vii) A description of any special instrumentation to be used 
during the tests;
    (viii) A description of the information or data to be obtained;
    (ix) A description of how the information or data obtained is to be 
analyzed or used;
    (x) A description of any criteria to be used as safety limits 
during the testing;
    (xi) A description of the criteria to be used to measure or 
determine the success or failure of the tests. If acceptance is to be 
based on extrapolation of less than full-level testing results, the 
analysis to be done to justify the validity of the extrapolation shall 
be described;
    (xii) Quality control procedures to ensure that the inspection, 
testing, and maintenance procedures are followed;
    (xiii) Criteria to be used for the revenue service operation of the 
equipment; and
    (xiv) A description of any testing of the equipment that has 
previously been performed.
    (2) Submit a copy of the plan to FRA at least 30 days prior to 
testing the equipment and include with that submission notification of 
the times and places of the pre-revenue service tests to permit FRA 
observation of such tests. For Tier II passenger equipment, the 
railroad shall obtain FRA approval of the plan under the procedures 
specified in Sec. 238.21.
    (3) Comply with the plan, including fully executing the tests 
required by the plan.
    (4) Document in writing the results of the tests. For Tier II 
passenger equipment, the railroad shall report the results of the tests 
to the FRA Associate Administrator for Safety at least 90 days prior to 
its intended operation of the equipment in revenue service.
    (5) Correct any safety deficiencies identified in the design of the 
equipment or in the inspection, testing, and maintenance procedures, 
uncovered during the testing. If safety deficiencies cannot be 
corrected by design changes, the railroad shall impose operational 
limitations on the revenue service operation of the equipment that are 
designed to ensure that the equipment can operate safely. For Tier II 
passenger equipment, the railroad shall comply with any operational 
limitations imposed by the FRA Associate Administrator for Safety on 
the revenue service operation of the equipment for cause stated 
following FRA review of the results of the test program. This section 
does not restrict a railroad from petitioning FRA for a waiver of a 
safety regulation under the procedures specified in part 211 of this 
chapter.
    (6) Make the plan and documentation kept pursuant to that plan 
available for inspection and copying by FRA upon request.
    (7) For Tier II passenger equipment, obtain approval from the FRA 
Associate Administrator for Safety prior to placing the equipment in 
revenue service. The Associate Administrator grants such approval upon 
a showing of the

[[Page 25673]]

railroad's compliance with the applicable requirements of this part.
    (c) If a railroad plans a major upgrade or introduction of new 
technology on Tier II passenger equipment that has been used in revenue 
service in the United States and that affects a safety system on such 
equipment, the railroad shall follow the procedures specified in 
paragraph (b) of this section prior to placing the equipment in revenue 
service with such a major upgrade or introduction of new technology.


Sec. 238.113  Emergency window exits.

    (a) The following requirements apply on or after Novermber 8, 
1999--
    (1) Each passenger car shall have a minimum of four emergency 
window exits, either in a staggered configuration where practical or 
with one exit located in each end of each side of the passenger car. If 
the passenger car has multiple levels, each main level shall have a 
minimum of four emergency window exits, either in a staggered 
configuration where practical or with one exit located in each end of 
each side on each level.
    (2) Each sleeping car, and any similarly designed car having a 
number of separate compartments intended to be occupied by passengers 
or train crewmembers, shall have at least one emergency window exit in 
each compartment.
    (3) Each emergency window exit shall be designed to permit rapid 
and easy removal during an emergency situation without requiring the 
use of a tool or other implement.
    (b) Each emergency window exit in a passenger car, including a 
sleeper car, ordered on or after September 8, 2000, or placed in 
service for the first time on or after September 9, 2002, shall have a 
minimum unobstructed opening with dimensions of 26 inches horizontally 
by 24 inches vertically.
    (c) Marking and instructions. [Reserved]


Sec. 238.115  Emergency lighting.

    (a) This section applies to each passenger car ordered on or after 
September 8, 2000, or placed in service for the first time on or after 
September 9, 2002. This section applies to each level of a multi-level 
passenger car.
    (b) Emergency lighting shall be provided in each passenger car and 
shall include the following:
    (1) A minimum, average illumination level of 1 foot-candle measured 
at floor level adjacent to each exterior door and each interior door 
providing access to an exterior door (such as a door opening into a 
vestibule);
    (2) A minimum, average illumination level of 1 foot-candle measured 
25 inches above floor level along the center of each aisle and 
passageway;
    (3) A minimum illumination level of 0.1 foot-candle measured 25 
inches above floor level at any point along the center of each aisle 
and passageway; and
    (4) A back-up power system capable of:
    (i) Operating in all equipment orientations within 45 degrees of 
vertical;
    (ii) Operating after the initial shock of a collision or derailment 
resulting in the following individually applied accelerations:
    (A) Longitudinal: 8g;
    (B) Lateral: 4g; and
    (C) Vertical: 4g; and
    (iii) Operating all emergency lighting for a period of at least 90 
minutes without a loss of more than 40% of the minimum illumination 
levels specified in this paragraph (b).


Sec. 238.117  Protection against personal injury.

    On or after November 8, 1999, all moving parts, high voltage 
equipment, electrical conductors and switches, and pipes carrying hot 
fluids or gases on all passenger equipment shall be appropriately 
equipped with interlocks or guards to minimize the risk of personal 
injury. This section does not apply to the interior of a private car.


Sec. 238.119  Rim-stamped straight-plate wheels.

    (a)(1) Except as provided in paragraph (a)(2) of this section, on 
or after November 8, 1999, no railroad shall place or continue in 
service any vehicle, other than a private car, that is equipped with a 
rim-stamped straight-plate wheel if a brake shoe acts on the tread of 
the wheel for the purpose of slowing the vehicle.
    (2) A commuter railroad may continue in service a vehicle equipped 
with a Class A, rim-stamped straight-plate wheel mounted on an inboard-
bearing axle until the railroad exhausts its replacement stock of 
wheels held as of May 12, 1999, provided the railroad does not modify 
the operation of the vehicle in any way that would result in increased 
thermal input to the wheel during braking.
    (b) A rim-stamped straight-plate wheel shall not be used as a 
replacement wheel on a private car that operates in a passenger train 
if a brake shoe acts on the tread of the wheel for the purpose of 
slowing the car.
    (c) The requirements of this section do not apply to a wheel that 
is periodically tread-braked for a short duration by automatic 
circuitry for the sole purpose of cleaning the wheel tread surface.

Subpart C--Specific Requirements for Tier I Passenger Equipment


Sec. 238.201  Scope/alternative compliance.

    (a) Scope. (1) This subpart contains requirements for railroad 
passenger equipment operating at speeds not exceeding 125 miles per 
hour. As stated in Sec. 238.229, all such passenger equipment remains 
subject to the safety appliance requirements contained in Federal 
statute at 49 U.S.C. chapter 203 and in FRA regulations at part 231 and 
Sec. 232.2 of this chapter. Unless otherwise specified, these 
requirements only apply to passenger equipment ordered on or after 
September 8, 2000 or placed in service for the first time on or after 
September 9, 2002.
    (2) The structural standards of this subpart (Sec. 238.203B-static 
end strength; Sec. 238.205--anti-climbing mechanism; Sec. 238.207--link 
between coupling mechanism and car body; Sec. 238.209--forward-facing 
end structure of locomotives; Sec. 238.211--collision posts; 
Sec. 238.213--corner posts; Sec. 238.215--rollover strength; 
Sec. 238.217--side structure; Sec. 238.219--truck-to-car-body 
attachment; and Sec. 238.223--locomotive fuel tanks) do not apply to 
passenger equipment if used exclusively on a rail line:
    (i) With no public highway-rail grade crossings;
    (ii) On which no freight operations occur at any time;
    (iii) On which only passenger equipment of compatible design is 
utilized; and
    (iv) On which trains operate at speeds not exceeding 79 mph.
    (b) Alternative compliance. Passenger equipment of special design 
shall be deemed to comply with this subpart, other than Sec. 238.203, 
for the service environment in which the petitioner proposes to operate 
the equipment if the FRA Associate Administrator for Safety determines 
under paragraph (c) of this section that the equipment provides at 
least an equivalent level of safety in such environment with respect to 
the protection of its occupants from serious injury in the case of a 
derailment or collision. In making a determination under paragraph (c) 
the Associate Administrator shall consider, as a whole, all of those 
elements of casualty prevention or mitigation relevant to the integrity 
of the equipment that are addressed by the requirements of this 
subpart.
    (c)(1) The Associate Administrator may only make a finding of 
equivalent safety and compliance with this subpart,

[[Page 25674]]

other than Sec. 238.203, based upon a submission of data and analysis 
sufficient to support that determination. The petition shall include:
    (i) The information required by Sec. 238.21(c);
    (ii) Information, including detailed drawings and materials 
specifications, sufficient to describe the actual construction of the 
equipment of special design;
    (iii) Engineering analysis sufficient to describe the likely 
performance of the equipment in derailment and collision scenarios 
pertinent to the safety requirements for which compliance is required 
and for which the equipment does not conform to the specific 
requirements of this subpart; and
    (iv) A quantitative risk assessment, incorporating the design 
information and engineering analysis described in this paragraph, 
demonstrating that the equipment, as utilized in the service 
environment for which recognition is sought, presents no greater hazard 
of serious personal injury than equipment that conforms to the specific 
requirements of this subpart.
    (2) Any petition made under this paragraph is subject to the 
procedures set forth in Sec. 238.21, and will be disposed of in 
accordance with Sec. 238.21(g).


Sec. 238.203  Static end strength.

    (a)(1) Except as further specified in this paragraph or in 
paragraph (d), on or after November 8, 1999 all passenger equipment 
shall resist a minimum static end load of 800,000 pounds applied on the 
line of draft without permanent deformation of the body structure.
    (2) For a passenger car or a locomotive, the static end strength of 
unoccupied volumes may be less than 800,000 pounds if:
    (i) Energy absorbing structures are used as part of a crash energy 
management design of the passenger car or locomotive, and
    (ii) The passenger car or locomotive resists a minimum static end 
load of 800,000 pounds applied on the line of draft at the ends of its 
occupied volume without permanent deformation of the body structure.
    (3) For a locomotive placed in service prior to November 8, 1999, 
as an alternative to resisting a minimum static end load of 800,000 
pounds applied on the line of draft without permanent deformation of 
the body structure, the locomotive shall resist a horizontal load of 
1,000,000 pounds applied along the longitudinal center line of the 
locomotive at a point on the buffer beam construction 12 inches above 
the center line of draft without permanent deformation of the body 
structure. The application of this load shall not be distributed over 
an area greater than 6 inches by 24 inches. The alternative specified 
in this paragraph is not applicable to a cab car or an MU locomotive.
    (4) The requirements of this paragraph do not apply to:
    (i) A private car; or
    (ii) Unoccupied passenger equipment operating at the rear of a 
passenger train.
    (b) Passenger equipment placed in service before November 8, 1999 
is presumed to comply with the requirements of paragraph (a)(1) of this 
section, unless the railroad operating the equipment has knowledge, or 
FRA makes a showing, that such passenger equipment was not built to the 
requirements specified in paragraph (a)(1).
    (c) When overloaded in compression, the body structure of passenger 
equipment shall be designed, to the maximum extent possible, to fail by 
buckling or crushing, or both, of structural members rather than by 
fracture of structural members or failure of structural connections.
    (d) Grandfathering of non-compliant equipment for use on a 
specified rail line or lines. 
    (1) Grandfathering approval is equipment and line specific. 
Grandfathering approval of non-compliant equipment under this paragraph 
is limited to usage of the equipment on a particular rail line or 
lines. Before grandfathered equipment can be used on another rail line, 
a railroad must file and secure approval of a grandfathering petition 
under paragraph (d)(3) of this section.
    (2) Temporary usage of non-compliant equipment. Any passenger 
equipment placed in service on a rail line or lines before November 8, 
1999 that does not comply with the requirements of paragraph (a)(1) may 
continue to be operated on that particular line or (those particular 
lines) if the operator of the equipment files a petition seeking 
grandfathering approval under paragraph (d)(3) before November 8, 1999. 
Such usage may continue while the petition is being processed, but in 
no event later than May 8, 2000, unless the petition is approved.
    (3) Petitions for grandfathering. Petitions for grandfathering 
shall include:
    (i) The name, title, address, and telephone number of the primary 
person to be contacted with respect to the petition;
    (ii) Information, including detailed drawings and material 
specifications, sufficient to describe the actual construction of the 
equipment;
    (iii) Engineering analysis sufficient to describe the likely 
performance of the static end strength of the equipment and the likely 
performance of the equipment in derailment and collision scenarios 
pertinent to the equipment's static end strength;
    (iv) A description of risk mitigation measures that will be 
employed in connection with the usage of the equipment on a specified 
rail line or lines to decrease the likelihood of accidents involving 
the use of the equipment; and
    (v) A quantitative risk assessment, incorporating the design 
information, engineering analysis, and risk mitigation measures 
described in this paragraph, demonstrating that the use of the 
equipment, as utilized in the service environment for which recognition 
is sought, is in the public interest and is consistent with railroad 
safety.
    (e) Service. Three copies of each petition shall be submitted to 
the Associate Administrator for Safety, Federal Railroad 
Administration, 1120 Vermont Ave., Mail Stop 25, Washington, D.C. 
20590.
    (f) Federal Register notice. FRA will publish a notice in the 
Federal Register concerning each petition under paragraph (d) of this 
section.
    (g) Comment. Not later than 30 days from the date of publication of 
the notice in the Federal Register concerning a petition under 
paragraph (d) of this section, any person may comment on the petition.
    (1) Each comment shall set forth specifically the basis upon which 
it is made, and contain a concise statement of the interest of the 
commenter in the proceeding.
    (2) Three copies of each comment shall be submitted to the 
Associate Administrator for Safety, Federal Railroad Administration, 
1120 Vermont Ave., Mail Stop 25, Washington, D. C. 20590.
    (3) The commenter shall certify that a copy of the comment was 
served on each petitioner.
    (h) Disposition of petitions.
    (1) FRA will conduct a hearing on a petition in accordance with the 
procedures provided in Sec. 211.25 of this chapter.
    (2) If FRA finds that the petition complies with the requirements 
of this section and that the proposed usage is in the public interest 
and consistent with railroad safety, the petition will be granted, 
normally within 90 days of its receipt. If the petition is neither 
granted nor denied within 90 days, the petition remains pending for 
decision. FRA may

[[Page 25675]]

attach special conditions to the approval of the petition. Following 
the approval of a petition, FRA may reopen consideration of the 
petition for cause stated.
    (3) If FRA finds that the petition does not comply with the 
requirements of this section or that the proposed usage is not in the 
public interest and consistent with railroad safety, the petition will 
be denied, normally within 90 days of its receipt.
    (4) When FRA grants or denies a petition, or reopens consideration 
of the petition, written notice is sent to the petitioner and other 
interested parties.


Sec. 238.205  Anti-climbing mechanism.

    (a) Except as provided in paragraph (b) of this section, all 
passenger equipment placed in service for the first time on or after 
September 8, 2000 shall have at both the forward and rear ends an anti-
climbing mechanism capable of resisting an upward or downward vertical 
force of 100,000 pounds without failure. When coupled together in any 
combination to join two vehicles, AAR Type H and Type F tight-lock 
couplers satisfy this requirement.
    (b) Each locomotive ordered on or after September 8, 2000, or 
placed in service for the first time on or after September 9, 2002, 
shall have an anti-climbing mechanism at its forward end capable of 
resisting an upward or downward vertical force of 200,000 pounds 
without failure, in lieu of the forward end anti-climbing mechanism 
requirements described in paragraph (a) of this section.


Sec. 238.207  Link between coupling mechanism and car body.

    All passenger equipment placed in service for the first time on or 
after September 8, 2000 shall have a coupler carrier at each end 
designed to resist a vertical downward thrust from the coupler shank of 
100,000 pounds for any normal horizontal position of the coupler, 
without permanent deformation. For passenger equipment that is 
connected by articulated joints that comply with the requirements of 
Sec. 238.205(a), such passenger equipment also complies with the 
requirements of this section.


Sec. 238.209  Forward-facing end structure of locomotives.

    The skin covering the forward-facing end of each locomotive shall 
be:
    (a) Equivalent to a \1/2\ inch steel plate with a 25,000 pounds-
per-square-inch yield strength--material of a higher yield strength may 
be used to decrease the required thickness of the material provided at 
least an equivalent level of strength is maintained;
    (b) Designed to inhibit the entry of fluids into the occupied cab 
area of the equipment; and
    (c) Affixed to the collision posts or other main vertical 
structural members of the forward end structure so as to add to the 
strength of the end structure.
    (d) As used in this section, the term ``skin'' does not include 
forward-facing windows and doors.


Sec. 238.211  Collision posts.

    (a) Except as further specified in this paragraph and paragraphs 
(b) and (c) of this section--
    (1) All passenger equipment placed in service for the first time on 
or after September 8, 2000 shall have either:
    (i) Two full-height collision posts, located at approximately the 
one-third points laterally. Each collision post shall have an ultimate 
longitudinal shear strength of not less than 300,000 pounds at a point 
even with the top of the underframe member to which it is attached. If 
reinforcement is used to provide the shear value, the reinforcement 
shall have full value for a distance of 18 inches up from the 
underframe connection and then taper to a point approximately 30 inches 
above the underframe connection; or
    (ii) An equivalent end structure that can withstand the sum of 
forces that each collision post in paragraph (a)(1)(i) of this section 
is required to withstand. For analysis purposes, the required forces 
may be assumed to be evenly distributed at the end structure at the 
underframe joint.
    (2) The requirements of this paragraph do not apply to unoccupied 
passenger equipment operating in a passenger train.
    (b) Each locomotive, including a cab car and an MU locomotive, 
ordered on or after September 8, 2000, or placed in service for the 
first time on or after September 9, 2002, shall have at its forward 
end, in lieu of the structural protection described in paragraph (a) of 
this section, either:
    (1) Two forward collision posts, located at approximately the one-
third points laterally, each capable of withstanding:
    (i) A 500,000-pound longitudinal force at the point even with the 
top of the underframe, without exceeding the ultimate strength of the 
joint; and
    (ii) A 200,000-pound longitudinal force exerted 30 inches above the 
joint of the post to the underframe, without exceeding the ultimate 
strength; or
    (2) An equivalent end structure that can withstand the sum of the 
forces that each collision post in paragraph (b)(1)(i) of this section 
is required to withstand.
    (c) The end structure requirements in paragraphs (a) and (b) of 
this section apply only to the ends of a semi-permanently coupled 
consist of articulated units, provided that:
    (1) The railroad submits to the FRA Associate Administrator for 
Safety under the procedures specified in Sec. 238.21 a documented 
engineering analysis establishing that the articulated connection is 
capable of preventing disengagement and telescoping to the same extent 
as equipment satisfying the anti-climbing and collision post 
requirements contained in this subpart; and
    (2) FRA finds the analysis persuasive.


Sec. 238.213  Corner posts.

    (a) Each passenger car shall have at each end of the car, placed 
ahead of the occupied volume, two full-height corner posts capable of 
resisting:
    (1) A horizontal load of 150,000 pounds at the point of attachment 
to the underframe without failure;
    (2) A horizontal load of 20,000 pounds at the point of attachment 
to the roof structure without failure; and
    (3) A horizontal load of 30,000 pounds applied 18 inches above the 
top of the floor without permanent deformation.
    (b) For purposes of this section, the orientation of the applied 
horizontal loads shall range from longitudinal inward to transverse 
inward.


Sec. 238.215  Rollover strength.

    (a) Each passenger car shall be designed to rest on its side and be 
uniformly supported at the top (``roof rail''), the bottom cords 
(``side sill'') of the side frame, and, if bi-level, the intermediate 
floor rail. The allowable stress in the structural members of the 
occupied volumes for this condition shall be one-half yield or one-half 
the critical buckling stress, whichever is less. Local yielding to the 
outer skin of the passenger car is allowed provided that the resulting 
deformations in no way intrude upon the occupied volume of the car.
    (b) Each passenger car shall also be designed to rest on its roof 
so that any damage in occupied areas is limited to roof sheathing and 
framing. Other than roof sheathing and framing, the allowable stress in 
the structural members of the occupied volumes for this condition shall 
be one-half yield or one-half the critical buckling stress, whichever 
is less. Deformation to the roof sheathing and framing is allowed to 
the extent necessary to permit the vehicle to be supported directly on 
the top chords of the side frames and end frames.

[[Page 25676]]

Sec. 238.217  Side structure.

    Each passenger car shall comply with the following:
    (a) Side posts and corner braces. 
    (1) For modified girder, semi-monocoque, or truss construction, the 
sum of the section moduli in inches \3\--about a longitudinal axis, 
taken at the weakest horizontal section between the side sill and side 
plate--of all posts and braces on each side of the car located between 
the body corner posts shall be not less than 0.30 multiplied by the 
distance in feet between the centers of end panels.
    (2) For modified girder or semi-monocoque construction only, the 
sum of the section moduli in inches \3\--about a transverse axis, taken 
at the weakest horizontal section between the side sill and side 
plate--of all posts, braces and pier panels, to the extent available, 
on each side of the car located between body corner posts shall be not 
less than 0.20 multiplied by the distance in feet between the centers 
of end panels.
    (3) The center of an end panel is the point midway between the 
center of the body corner post and the center of the adjacent side 
post.
    (4) The minimum section moduli or thicknesses specified in 
paragraph (a) of this section may be adjusted in proportion to the 
ratio of the yield strength of the material used to that of mild open-
hearth steel for a car whose structural members are made of a higher 
strength steel.
    (b) Sheathing. 
    (1) Outside sheathing of mild, open-hearth steel when used flat, 
without reinforcement (other than side posts) in a side frame of 
modified girder or semi-monocoque construction shall not be less than 
1/8 inch nominal thickness. Other metals may be used of a thickness in 
inverse proportion to their yield strengths.
    (2) Outside metal sheathing of less than \1/8\ inch thickness may 
be used only if it is reinforced so as to produce at least an 
equivalent sectional area at a right angle to reinforcements as that of 
the flat sheathing specified in paragraph (b)(1) of this section.
    (3) When the sheathing used for truss construction serves no load-
carrying function, the minimum thickness of that sheathing shall be not 
less than 40 percent of that specified in paragraph (b)(1) of this 
section.


Sec. 238.219  Truck-to-car-body attachment.

    Passenger equipment shall have a truck-to-car-body attachment with 
an ultimate strength sufficient to resist without failure a force of 2g 
vertical on the mass of the truck and a force of 250,000 pounds in any 
horizontal direction on the truck. For purposes of this section, the 
mass of the truck includes axles, wheels, bearings, the truck-mounted 
brake system, suspension system components, and any other components 
attached to the truck by design.


Sec. 238.221  Glazing.

    (a) Passenger equipment shall comply with the applicable Safety 
Glazing Standards contained in part 223 of this chapter, if required by 
that part.
    (b) Each exterior window on a locomotive cab and a passenger car 
shall remain in place when subjected to:
    (1) The forces described in part 223 of this chapter; and
    (2) The forces due to air pressure differences caused when two 
trains pass at the minimum separation for two adjacent tracks, while 
traveling in opposite directions, each train traveling at the maximum 
authorized speed.


Sec. 238.223  Locomotive fuel tanks.

    (a) External fuel tanks. External locomotive fuel tanks shall 
comply with the requirements contained in Appendix D to this part, or 
an industry standard providing at least an equivalent level of safety 
if approved by FRA under Sec. 238.21.
    (b) Internal fuel tanks.
    (1) Internal locomotive fuel tanks shall be positioned in a manner 
to reduce the likelihood of accidental penetration from roadway debris 
or collision.
    (2) Internal fuel tank vent systems shall be designed so they do 
not become a path of fuel loss in any tank orientation due to a 
locomotive overturning.
    (3) Internal fuel tank bulkheads and skin shall at a minimum be 
equivalent to a \3/8\-inch thick steel plate with a 25,000 pounds-per-
square-inch yield strength. Material of a higher yield strength may be 
used to decrease the required thickness of the material provided at 
least an equivalent level of strength is maintained. Skid plates are 
not required.


Sec. 238.225  Electrical system.

    All passenger equipment shall comply with the following:
    (a) Conductors. Conductor sizes shall be selected on the basis of 
current-carrying capacity, mechanical strength, temperature, 
flexibility requirements, and maximum allowable voltage drop. Current-
carrying capacity shall be derated for grouping and for operating 
temperature.
    (b) Main battery system.
    (1) The main battery compartment shall be isolated from the cab and 
passenger seating areas by a non-combustible barrier.
    (2) Battery chargers shall be designed to protect against 
overcharging.
    (3) If batteries are of the type to potentially vent explosive 
gases, the battery compartment shall be adequately ventilated to 
prevent the accumulation of explosive concentrations of these gases.
    (c) Power dissipation resistors.
    (1) Power dissipating resistors shall be adequately ventilated to 
prevent overheating under worst-case operating conditions as determined 
by the railroad.
    (2) Power dissipation grids shall be designed and installed with 
sufficient isolation to prevent combustion.
    (3) Resistor elements shall be electrically insulated from resistor 
frames, and the frames shall be electrically insulated from the 
supports that hold them.
    (d) Electromagnetic interference and compatibility.
    (1) The operating railroad shall ensure electromagnetic 
compatibility of the safety-critical equipment systems with their 
environment. Electromagnetic compatibility may be achieved through 
equipment design or changes to the operating environment.
    (2) The electronic equipment shall not produce electrical noise 
that affects the safe performance of train line control and 
communications or wayside signaling systems.
    (3) To contain electromagnetic interference emissions, suppression 
of transients shall be at the source wherever possible.
    (4) All electronic equipment shall be self-protected from damage or 
improper operation, or both, due to high voltage transients and long-
term over-voltage or under-voltage conditions. This includes protection 
from both power frequency and harmonic effects as well as protection 
from radio frequency signals into the microwave frequency range.


Sec. 238.227  Suspension system.

    On or after November 8, 1999--
    (a) All passenger equipment shall exhibit freedom from hunting 
oscillations at all operating speeds. If hunting oscillations do occur, 
a railroad shall immediately take appropriate action to prevent 
derailment. For purposes of this paragraph, hunting oscillations shall 
be considered lateral oscillations of trucks that could lead to a 
dangerous instability.
    (b) All passenger equipment intended for service above 110 mph 
shall demonstrate stable operation during pre-revenue service 
qualification tests at all operating speeds up to 5 mph in

[[Page 25677]]

excess of the maximum intended operating speed under worst-case 
conditions--including component wear--as determined by the operating 
railroad.
    (c) Nothing in this section shall affect the requirements of part 
213 of this chapter as they apply to passenger equipment as provided in 
that part.


Sec. 238.229  Safety appliances.

    Except as provided in this part, all passenger equipment continues 
to be subject to the safety appliance requirements contained in Federal 
statute at 49 U.S.C. chapter 203 and in Federal regulations at part 231 
and Sec. 232.2 of this chapter.


Sec. 238.231  Brake system.

    Except as otherwise provided in this section, on or after September 
9, 1999 the following requirements apply to all passenger equipment and 
passenger trains.
    (a) A passenger train's primary brake system shall be capable of 
stopping the train with a service application from its maximum 
authorized operating speed within the signal spacing existing on the 
track over which the train is operating.
    (b) The brake system design of passenger equipment ordered on or 
after September 8, 2000 or placed in service for the first time on or 
after September 9, 2002, shall not require an inspector to place 
himself or herself on, under, or between components of the equipment to 
observe brake actuation or release.
    (c) Passenger equipment shall be provided with an emergency brake 
application feature that produces an irretrievable stop, using a brake 
rate consistent with prevailing adhesion, passenger safety, and brake 
system thermal capacity. An emergency brake application shall be 
available at any time, and shall be initiated by an unintentional 
parting of the train.
    (d) A passenger train brake system shall respond as intended to 
signals from a train brake control line or lines. Control lines shall 
be designed so that failure or breakage of a control line will cause 
the brakes to apply or will result in a default to control lines that 
meet this requirement.
    (e) Introduction of alcohol or other chemicals into the air brake 
system of passenger equipment is prohibited.
    (f) The operating railroad shall require that the design and 
operation of the brake system results in wheels that are free of 
condemnable cracks.
    (g) Disc brakes shall be designed and operated to produce a surface 
temperature no greater than the safe operating temperature recommended 
by the disc manufacturer and verified by testing or previous service.
    (h) Hand brakes and parking brakes.
    (1) Except for a locomotive that is ordered before September 8, 
2000 or placed in service for the first time before Sepbember 9, 2002, 
and except for MU locomotives, all locomotives shall be equipped with a 
hand or parking brake that can:
    (i) Be applied or activated by hand;
    (ii) Be released by hand; and
    (iii) Hold the loaded unit on the maximum grade anticipated by the 
operating railroad.
    (2) Except for a private car and locomotives addressed in paragraph 
(h)(1) of this section, all other passenger equipment, including MU 
locomotives, shall be equipped with a hand brake that meets the 
requirements for hand brakes contained in part 231 of this chapter and 
that can:
    (i) Be applied or activated by hand;
    (ii) Be released by hand; and
    (iii) Hold the loaded unit on the maximum grade anticipated by the 
operating railroad.
    (i) Passenger cars shall be equipped with a means to apply the 
emergency brake that is accessible to passengers and located in the 
vestibule or passenger compartment. The emergency brake shall be 
clearly identified and marked.
    (j) Locomotives equipped with blended brakes shall be designed so 
that:
    (1) The blending of friction and dynamic brake to obtain the 
correct retarding force is automatic;
    (2) Loss of power or failure of the dynamic brake does not result 
in exceeding the allowable stopping distance;
    (3) The friction brake alone is adequate to safely stop the train 
under all operating conditions; and
    (4) Operation of the friction brake alone does not result in 
thermal damage to wheels or disc rotor surface temperatures exceeding 
the manufacturer's recommendation.
    (k) For new designs of braking systems, the design process shall 
include computer modeling or dynamometer simulation of train braking 
that shows compliance with paragraphs (f) and (g) of this section over 
the range of equipment operating speeds. A new simulation is required 
prior to implementing a change in operating parameters.
    (l) Locomotives ordered on or after September 8, 2000 or placed in 
service for the first time on or after September 9, 2002, shall be 
equipped with effective air coolers or dryers that provide air to the 
main reservoir with a dew point at least 10 degrees F. below ambient 
temperature.
    (m) When a passenger train is operated in either direct or 
graduated release, the railroad shall ensure that all the cars in the 
train consist are set up in the same operating mode.


Sec. 238.233  Interior fittings and surfaces.

    (a) Each seat in a passenger car shall--
    (1) Be securely fastened to the car body so as to withstand an 
individually applied acceleration of 4g acting in the lateral direction 
and 4g acting in the upward vertical direction on the deadweight of the 
seat or seats, if held in tandem; and
    (2) Have an attachment to the car body of an ultimate strength 
capable of resisting simultaneously:
    (i) The longitudinal inertial force of 8g acting on the mass of the 
seat; and
    (ii) The load associated with the impact into the seatback of an 
unrestrained 95th-percentile adult male initially seated behind the 
seat, when the floor to which the seat is attached decelerates with a 
triangular crash pulse having a peak of 8g and a duration of 250 
milliseconds.
    (b) Overhead storage racks in a passenger car shall provide 
longitudinal and lateral restraint for stowed articles. Overhead 
storage racks shall be attached to the car body with sufficient 
strength to resist loads due to the following individually applied 
accelerations acting on the mass of the luggage stowed as determined by 
the railroad:
    (1) Longitudinal: 8g;
    (2) Vertical: 4g; and
    (3) Lateral: 4g.
    (c) Other interior fittings within a passenger car shall be 
attached to the car body with sufficient strength to withstand the 
following individually applied accelerations acting on the mass of the 
fitting:
    (1) Longitudinal: 8g;
    (2) Vertical: 4g; and
    (3) Lateral: 4g.
    (d) To the extent possible, all interior fittings in a passenger 
car, except seats, shall be recessed or flush-mounted.
    (e) Sharp edges and corners in a locomotive cab and a passenger car 
shall be either avoided or padded to mitigate the consequences of an 
impact with such surfaces.
    (f) Each seat provided for a crewmember regularly assigned to 
occupy the cab of a locomotive and each floor-mounted seat in the cab 
shall be secured to the car body with an attachment having an ultimate 
strength capable of withstanding the loads due to the following 
individually applied accelerations acting on the combined mass of the 
seat and a 95th-percentile adult male occupying it:

[[Page 25678]]

    (1) Longitudinal: 8g;
    (2) Lateral: 4g; and
    (3) Vertical: 4g.
    (g) If, for purposes of showing compliance with the requirements of 
this section, the strength of a seat attachment is to be demonstrated 
through sled testing, the seat structure and seat attachment to the 
sled that is used in such testing must be representative of the actual 
seat structure in, and seat attachment to, the rail vehicle subject to 
the requirements of this section. If the attachment strength of any 
other interior fitting is to be demonstrated through sled testing, for 
purposes of showing compliance with the requirements of this section, 
such testing shall be conducted in a similar manner.


Sec. 238.235  Doors.

    (a) By December 31, 1999, each powered, exterior side door in a 
vestibule that is partitioned from the passenger compartment of a 
passenger car shall have a manual override device that is:
    (1) Capable of releasing the door to permit it to be opened without 
power from inside the car;
    (2) Located adjacent to the door which it controls; and
    (3) Designed and maintained so that a person may readily access and 
operate the override device from inside the car without requiring the 
use of a tool or other implement.
    (b) Each passenger car ordered on or after September 8, 2000, or 
placed in service for the first time on or after September 9, 2002 
shall have a minimum of two exterior side doors, each door providing a 
minimum clear opening with dimensions of 30 inches horizontally by 74 
inches vertically.

    Note: The Americans with Disabilities Act (ADA) Accessibility 
Specifications for Transportation Vehicles also contain requirements 
for doorway clearance (See 49 CFR part 38).

Each powered, exterior side door on each such passenger car shall have 
a manual override device that is:
    (1) Capable of releasing the door to permit it to be opened without 
power from both inside and outside the car;
    (2) Located adjacent to the door which it controls; and
    (3) Designed and maintained so that a person may access the 
override device from both inside and outside the car without requiring 
the use of a tool or other implement.
    (c) A railroad may protect a manual override device used to open a 
powered, exterior door with a cover or a screen capable of removal 
without requiring the use of a tool or other implement.
    (d) Marking and instructions. [Reserved]


Sec. 238.237  Automated monitoring.

    (a) Except as further specified in this paragraph, on or after 
November 8, 1999 a working alerter or deadman control shall be provided 
in the controlling locomotive of each passenger train operating in 
other than cab signal, automatic train control, or automatic train stop 
territory. If the controlling locomotive is ordered on or after 
September 8, 2000, or placed into service for the first time on or 
after September 9, 2002, a working alerter shall be provided.
    (b) Alerter or deadman control timing shall be set by the operating 
railroad taking into consideration maximum train speed and capabilities 
of the signal system. The railroad shall document the basis for setting 
alerter or deadman control timing and make this documentation available 
to FRA upon request.
    (c) If the train operator does not respond to the alerter or 
maintain proper contact with the deadman control, it shall initiate a 
penalty brake application.
    (d) The following procedures apply if the alerter or deadman 
control fails en route:
    (1)(i) A second person qualified on the signal system and brake 
application procedures shall be stationed in the locomotive cab; or
    (ii) The engineer shall be in constant communication with a second 
crewmember until the train reaches the next terminal.
    (2)(i) A tag shall be prominently displayed in the locomotive cab 
to indicate that the alerter or deadman control is defective, until 
such device is repaired; and
    (ii) When the train reaches its next terminal or the locomotive 
undergoes its next calender day inspection, whichever occurs first, the 
alerter or deadman control shall be repaired or the locomotive shall be 
removed as the controlling locomotive in the train.

Subpart D--Inspection, Testing, and Maintenance Requirements for 
Tier I Passenger Equipment


Sec. 238.301  Scope.

    (a) This subpart contains requirements pertaining to the 
inspection, testing, and maintenance of passenger equipment operating 
at speeds not exceeding 125 miles per hour. The requirements in this 
subpart address the inspection, testing, and maintenance of the brake 
system as well as other mechanical and electrical components covered by 
this part.
    (b) Beginning July 12, 2001 the requirements contained in this 
subpart shall apply to railroads operating Tier I passenger equipment 
covered by this part. A railroad