[Federal Register Volume 67, Number 78 (Tuesday, April 23, 2002)]
[Rules and Regulations]
[Pages 19970-19995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9419]



[[Page 19969]]

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Part X





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 216 and 238



Passenger Equipment Safety Standards; Final Rule

  Federal Register / Vol. 67, No. 78 / Tuesday, April 23, 2002 / Rules 
and Regulations  

[[Page 19970]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 216 and 238

[FRA Docket No. PCSS-1, Notice No. 7]
RIN 2130-AB48


Passenger Equipment Safety Standards

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to certain of the petitions for 
reconsideration of FRA's May 12, 1999 final rule establishing 
comprehensive Federal safety standards for railroad passenger 
equipment. This document clarifies and amends the final rule.

EFFECTIVE DATE: The amendments to the final rule are effective June 24, 
2002.

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, DC 
20590 (telephone: 202-493-6300); Daniel Alpert, Trial Attorney, Office 
of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 10, Washington, 
DC 20590 (telephone: 202-493-6026); or Thomas Herrmann, Trial Attorney, 
Office of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 10, 
Washington, DC 20590 (telephone: 202-493-6036).

SUPPLEMENTARY INFORMATION:

Background

    On June 17, 1996, FRA published an Advance Notice of Proposed 
Rulemaking (ANPRM) concerning the establishment of comprehensive safety 
standards for railroad passenger equipment. See 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 passenger safety topics. Following consideration 
of comments received on the ANPRM and advice from FRA's Passenger 
Equipment Safety Standards Working Group (Working Group), FRA published 
a Notice of Proposed Rulemaking (NPRM) on September 23, 1997, to 
establish comprehensive safety standards for railroad passenger 
equipment. See 62 FR 49728. In addition to written comment on the NPRM, 
FRA also solicited oral comment at a public hearing held on November 
21, 1997. FRA considered the comments received on the NPRM and advice 
from its Working Group in preparing a final rule establishing 
comprehensive safety standards for railroad passenger equipment, which 
was published on May 12, 1999. See 64 FR 25540.
    Following publication of the final rule, parties filed petitions 
seeking FRA's reconsideration of requirements in the rule. These 
petitions principally related to the following subject areas: 
structural design; fire safety; training; inspection, testing, and 
maintenance; and movement of defective equipment. On July 3, 2000, FRA 
issued a response to the petitions for reconsideration concerning the 
final rule's requirements for the inspection, testing, and maintenance 
of passenger equipment, the movement of defective passenger equipment, 
and other related, miscellaneous provisions. See 65 FR 41284. FRA is 
hereby responding to all remaining issues raised in the petitions for 
reconsideration other than those issues concerning the fire safety 
portion of the final rule. This notice also clarifies the final rule in 
response to other issues and requests for interpretation that have 
arisen since publication of the rule. The amendments contained in this 
notice generally clarify requirements currently contained in the final 
rule or allow for greater flexibility in complying with the rule, and 
are within the scope of the issues and options discussed, considered, 
or raised in the NPRM. FRA will address the issues raised in the 
petitions for reconsideration concerning fire safety by separate notice 
in the Federal Register.
    The specific issues and recommendations raised by the petitioners 
and FRA's response to those petitions are discussed in detail in the 
``Section-by-Section Analysis'' portion of the preamble, below. The 
section-by-section analysis also contains a detailed discussion of each 
provision of the final rule which FRA has clarified or amended. This 
will enable the regulated community to more readily compare this 
document with the preamble discussions contained in both the final rule 
and the July 3, 2000 response document, and will thereby aid in 
understanding the requirements of the rule.

Section-by-Section Analysis

Amendments to 49 CFR Part 216

    FRA is revising Secs. 216.17 and 216.23 to correct typographical 
errors resulting from the final rule's amendments to part 216. These 
occurred when the phrase ``the FRA Regional Administrator'' was 
substituted throughout this part for the phrases ``the FRA Regional 
Director for Railroad Safety,'' ``the FRA Regional Director of Railroad 
Safety,'' ``a Regional Director,'' and ``the Regional Director.'' For a 
discussion of FRA's amendments to this section, see 64 FR 25575.

Amendments to 49 CFR Part 238

Subpart A--General

Section 238.1  Purpose and Scope

    FRA has amended this section by restoring paragraphs (c)(1)-(3) of 
the May 12, 1999 final rule. See 64 FR 25661. These paragraphs were 
unintentionally omitted from the rule when FRA amended paragraph (c) in 
the July 3, 2000 petition for reconsideration response document. See 65 
FR 41305.

Section 238.3  Applicability

    Following publication of the final rule, an issue arose involving 
the circumstances in which a railroad may use the exclusion from the 
requirements of the rule applicable to ``tourist, scenic, historic, or 
excursion operations,'' as specified in paragraph (c)(3). The issue 
concerned whether a train consisting of new passenger equipment could 
be operated with passengers (principally business and government 
officials) for demonstration purposes without complying with the 
requirements of the rule. As FRA explained, such a train operation is 
subject to the requirements of the rule and does not fall under the 
exclusion in paragraph (c)(3). FRA is amending the definition of 
``tourist, scenic, historic, or excursion operations'' in Sec. 238.5 to 
clarify this point, as discussed below.

Section 238.5  Definitions

    FRA is amending the definition of ``in service'' to make clear that 
passenger equipment is ``in service'' when it is in passenger or 
revenue service in the United States. See the discussion of 
Sec. 238.201, below, for an explanation of this clarification. FRA has 
also made a conforming change to this definition by substituting 
section ``238.305(d)'' for section ``238.305(c)(5).'' Section 
238.305(c)(5) was amended by the July 3, 2000 response to petitions for 
reconsideration. See 65 FR 41308.
    FRA is amending the definition of ``MIL-STD-882C'' to remove the 
``C'' designation. The final rule cited MIL-STD-882C as a formal safety 
methodology to guide railroads in identifying and then eliminating or 
reducing the risk posed by a hazard to an acceptable level. MIL-STD-882 
was updated on February 10, 2000, and designated as MIL-STD-882D, 
superceding MIL-STD-882C. (FRA has

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placed a copy of MIL-STD-882D in the public docket for this 
rulemaking.) This amendment makes clear that a railroad may use MIL-
STD-882D.
    FRA is removing the definition of ``monocoque'' and adding the new 
definition ``semi-monoque'' in its place. The term ``semi-monocoque''--
not ``monocoque''--was expressly used in the final rule text. Further, 
the definition of ``monocoque'' in the final rule actually described a 
``semi-monocoque'' structure by stating that the shell or skin acts as 
a single unit ``with the supporting frame'' to resist and transmit the 
loads acting on the structure. Reliance on the supporting frame to help 
resist and transmit loads-as opposed to resisting and transmitting 
loads on the shell or skin alone--makes a structure ``semi-monocoque,'' 
and FRA has clarified the rule accordingly.
    FRA is amending the definition of ``tourist, scenic, historic, or 
excursion operations,'' as noted above. As defined in Sec. 238.5 of the 
final rule, ``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.'' FRA recognizes that a 
train consisting of new passenger equipment that is operated for 
demonstration purposes is seemingly not conveying passengers to a 
particular destination as its principal purpose. However, the very 
usage of new passenger equipment, as opposed to antiquated equipment, 
and the clear business purposes of the train, distinguish such 
demonstration train operations from the class of train operations FRA 
intended to exclude from the requirements of the rule under 
Sec. 238.3(c)(3). Any person wishing to operate such a demonstration 
train that does not comply with a requirement of the rule must file a 
request for a waiver and obtain FRA's approval on the waiver request 
prior to commencing the demonstration train's operation.

Section 238.15  Movement of Passenger Equipment With Power Brake 
Defects

    FRA is modifying the requirements in paragraph (e)(2) that concern 
the movement of a passenger train with inoperative power brakes on the 
front or rear vehicle in instances where a handbrake on such a vehicle 
may not be accessible to a member of the train crew or may be located 
outside the interior of the vehicle. In the final rule, paragraph 
(e)(2)(ii) required that the train be operated at ``restricted speed 
not to exceed 20 mph,'' as one of the restrictions imposed on such 
movements. See 64 FR 25667. Following publication of the final rule, 
the National Railroad Passenger Corporation (Amtrak) raised the concern 
that the phrase ``restricted speed not to exceed 20 mph'' has a 
specific meaning which is different from simply stating that the 
``speed . . . shall be restricted to 20 mph or less,'' as used in 
paragraph (d)(2)(ii). FRA did not intend that the speed restriction in 
paragraph (e)(2)(ii) be different than the one specified in paragraph 
(d)(2)(ii), and FRA believes that the way in which the speed 
restriction is stated in paragraph (d)(2)(ii) more accurately reflects 
FRA's intent. Consequently, for consistency and to avoid confusion, FRA 
has amended paragraph (e)(2)(ii) to state that the speed of the train 
shall be restricted to 20 mph or less.
Subpart B--Safety Planning and General Requirements

Section 238.105  Train Electronic Hardware and Software Safety

    This section applies to electronic systems, subsystems and 
components used to control or monitor safety functions in passenger 
equipment ordered on or after September 8, 2000, and to such systems, 
subsystems and 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. For example, most new locomotives are controlled by 
microprocessors that respond to operator commands while making numerous 
automatic adjustments to locomotive systems to ensure efficient 
operation. FRA has renamed this section ``Train electronic hardware and 
software safety'' since the focus of this section is on electronic 
hardware and software--not on all hardware components as the term is 
generically used.
    In its petition for reconsideration, the American Public 
Transportation Association (APTA) requested that the term ``materially 
modified'' be specifically defined for purposes of the application of 
this section. APTA suggested that hardware or software used to control 
or monitor safety functions in passenger equipment is ``materially 
modified'' in at least the following circumstances: when 
microprocessor-based hardware components are added; and when changes 
are made to existing microprocessor-based hardware components that 
provide the vehicle with a new safety-related capability, or safety-
related functionality, or both. APTA cautioned that the definition 
should distinguish between software changes of a minor nature that have 
no safety impact and significant software changes, modifications, or 
upgrades that could have a safety impact. APTA believed that, through 
its requested clarifications to this section, railroads could implement 
minor software upgrades without triggering the full requirements of 
this section.
    FRA agrees that hardware or software used to control or monitor 
safety functions in passenger equipment is ``materially modified'' when 
microprocessor-based hardware components are added to the passenger 
equipment, and when changes are made to existing microprocessor-based 
hardware components that provide the vehicle with a new safety-related 
capability, or safety-related functionality, or both. FRA also believes 
that the term encompasses significant software changes, modifications, 
or upgrades that could have a safety impact. For instance, revision of 
executive software has the potential to fundamentally affect the 
safety-relevant characteristics of a system. Although FRA does not 
suggest that every ``patch'' designed to address an error or 
vulnerability would subject a system to this section's requirements, 
significant revision of code that alters the basic logic or protocols 
of the system should prompt a safety review. When a review is required, 
a railroad must examine the safety risks resulting from a change to the 
hardware and software components used in monitoring or controlling 
safety functions, including new risks not previously present and 
existing risks whose nature is affected by the change.
    FRA recognizes that the requirements of Sec. 238.105 lend 
themselves best to the design, analysis, and testing of hardware and 
software components used to control or monitor safety functions in new 
passenger equipment. A formal safety program is necessary to ensure the 
compatibility and safety of all the various hardware and software 
components used to control or monitor safety functions in newly 
constructed equipment. FRA does not intend that the material 
modification of an existing hardware or software component used to 
control or monitor safety functions in passenger equipment result in 
the analysis and testing of all such components in the equipment to the 
same extent as if the equipment were newly constructed. To the extent 
risk can be partitioned through preliminary analysis, the focus of the 
analysis and testing required by a ``material modification'' is placed 
on the

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materially modified component, the safe operation of the component in 
controlling or monitoring a safety function, and the compatibility of 
that component with the existing infrastructure, including whether the 
modification affects the safe operation of other components that 
control or monitor safety functions.
    FRA notes that the issue APTA has raised is similar to one facing 
FRA in a rulemaking on Standards for Development and Use of Processor-
Based Signal and Train Control Systems, published as an NPRM on August 
10, 2001. See 66 FR 42352; Docket No. FRA-2001-10160. Through the 
rulemaking, FRA seeks to ensure the safety of processor-based signal 
and train control systems in light of rapid and significant changes in 
locomotive design. FRA is also examining the appropriate relationship 
between train control systems and locomotive control systems, such as 
those subject to the requirements of this section. Because the 
rulemaking is focused on the safety of electronic control systems, it 
may ultimately lead FRA to amend or clarify the requirements of this 
section of the Passenger Equipment Safety Standards for purposes of 
consistency. As a result, FRA expects to consider further the 
requirements of this section as a whole with the Working Group as part 
of the second phase of the Passenger Equipment Safety Standards 
rulemaking.
    Following publication of the final rule, an issue was raised as to 
the application of Sec. 238.105 to cab signal systems. Cab signal 
systems are governed by 49 CFR part 236 and are affected by the 
requirements of Sec. 238.105 only to the extent they are commingled 
with other cab electronic systems (which currently should not be the 
case). The rulemaking on Standards for Development and Use of 
Processor-Based Signal and Train Control Systems is specifically 
devoted to the safety of processor-based signal and train control 
systems.
    FRA also notes that General Electric Transportation Systems (GETS) 
has raised concern that strict compliance to the requirements of 
Sec. 238.105 would result in a significant incremental change to the 
complexity, sophistication, and integrity required for all locomotive 
safety-related systems which interface with or include a 
microprocessor. GETS stated that Sec. 238.105(d) of the final rule 
could be interpreted to mean that any computer involved in safety-
related functions must be designed to be ``fail-safe'' or ``vital'' 
similar to the requirements applied to signal and train control systems 
in 49 CFR part 236. Further, GETS contended that because the definition 
of a ``safety-critical'' function includes a function that ``increases 
the risk of damage to passenger equipment,'' the requirements could be 
interpreted to mean that any microprocessor that may be utilized for 
reliability purposes alone must also be designed and implemented in a 
fail-safe manner. GETS stated that it has conducted a preliminary 
hazard analysis and functional fault tree on its Genesis locomotive 
microprocessor-based systems in accordance with the practices and 
criteria specified in Institute of Electrical and Electronics 
Engineers, Inc., (IEEE) Standard 1483, ``Standard for the Verification 
of Vital Functions in Processor-Based Systems Used in Rail Transit 
Control.'' GETS cited these as standard tools employed throughout the 
rail and transit industries for many years, and believed that they 
constitute an equivalent, alternate approach for applying a ``formal 
safety methodology'' to the hardware and software safety program 
specified in paragraph (b). GETS also noted that it has completed 
Failure Modes and Effects Analyses (FMEA's). GETS further stated that 
it has a comprehensive and robust process for designing, developing, 
and testing software used in safety-related applications. It explained 
that this process includes well-defined software design requirements, 
quality assurance practices, and exhaustive pre-revenue verification 
and validation testing. In addition, GETS stated that formal technical 
reviews are conducted as necessary at various phases in the software 
development program including during development of the software 
specifications, the software design document, the software test plan, 
and as part of the line-by-line code review. According to GETS, these 
software design, development, and verification and validation practices 
have produced highly reliable microprocessor-based systems that have 
proven to be safe and effective with hundreds of P42 locomotive-years 
and over 100 million miles in revenue service. GETS suggested that 
consideration be given to accepting the current, proven microprocessor-
based systems as implemented, and limiting the new requirements for 
software vitality to the next generation or the introduction of new 
technology train control systems, consistent with the rulemaking on 
Standards for Development and Use of Processor-Based Signal and Train 
Control Systems.
    As stated in the final rule, paragraph (c) provided in part that 
software that controls or monitors safety functions be considered 
safety-critical unless a completely redundant, failsafe, non-software 
means ensuring the same function is provided. Paragraph (d) required 
that hardware and software that controls or monitors passenger 
equipment safety functions include design feature(s) that result in a 
safe condition in the event of a hardware or software failure. See 64 
FR 25671. FRA is aware of specific electronic system failures that have 
occurred on passenger and freight locomotives that have presented 
safety concerns. As manufacturers intensify use of commercial off-the-
shelf operating systems and attempt greater integration of on-board 
functions (including eventually train control), the potential for 
uncovered hazards will increase unless action is taken to ensure 
greater rigor in safety analysis and testing before products are 
brought to market.
    However, on reconsideration, FRA agrees that this language is 
unnecessarily broad in requiring that all hardware and software that 
controls or monitors passenger equipment safety functions in effect be 
designed to fail safely in the event of a hardware or software failure. 
Consequently, FRA has amended this section by deleting the first 
sentence in paragraph (c) and by amending paragraph (d) to focus the 
requirement for vitality or functional redundancy on two key systems. 
First, hardware and software that controls or monitors a train's 
primary braking system shall fail safely by initiating a full service 
brake application in the event of a hardware or software failure; or 
access to direct manual control of the primary braking system (both 
service and emergency braking) shall be provided to the engineer. In 
the preamble to the final rule, FRA explicitly stated that 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. See 64 FR 25591. Second, hardware 
and software that controls or monitors the electronic ability to shut 
down the main power and fuel intake system shall either fail safely by 
shutting down the main power and intake of fuel in the event of an 
uncovered system failure; or the ability to shut down the main power 
and fuel intake system by non-electronic means shall be provided to the 
train crew. FRA desires that the train crew have the ability to shut 
down the main power and fuel intake system in the event of

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a collision, derailment, or fire, in particular, to mitigate the 
consequences of such occurrences. This has long been identified as a 
safety requirement for fossil-fuel locomotives. See 49 CFR Sec. 229.93. 
Obviously, it may also be critical to be able to reduce power to avoid 
or mitigate the seriousness of an accident to begin with, regardless of 
the type of motive power.
    FRA notes for clarity that the reference to reliability in 
paragraph (c), which is retained from the final rule, arises only 
within the context of systems that control or monitor safety functions, 
as stated in the initial text of the section. It is important that such 
systems be available and function as intended, since otherwise they may 
be circumvented out of expediency. FRA does not intend to address 
reliability of electronic systems except in this context.
    As a separate matter, FRA notes that it has amended paragraph (c) 
to add the phrase ``hardware and software'' where the word ``software'' 
previously was written. As paragraph (c) concerns the requirements of a 
hardware and software safety program, and the software and hardware 
work as a system, both components of the system should logically be 
identified together. This arises out of the nature of the systems and 
merely clarifies the intent of the final rule. FRA has made a similar 
change to paragraph (b).
    Finally, with respect to GETS's suggestion to use IEEE 1483 as a 
formal safety methodology for purposes of complying with the hardware 
and software safety program requirements, FRA notes that this IEEE 
consensus standard developed by the rail transit industry focuses 
principally on the verification process, which is only an element of 
the entire hardware and software safety program described in paragraph 
(b) and required by paragraph (a). As a general matter, IEEE 1483 does 
not address safety validation; the definition of requirements for safe 
operation; hazard severity and frequency assessment; hazard causes, 
effects and resolutions; or system and development design. While use of 
IEEE 1483 is appropriate for purposes of hardware and software safety 
verification, its use alone is not sufficient for purposes of complying 
with the hardware and software safety program requirements in this 
section. Nonetheless, the steps GETS has described to provide for 
hardware and software safety in its P42 locomotives indicate that GETS 
is in at least substantial compliance with the requirements of this 
section. GETS specifically cited performing failure modes and effects 
criticality analyses, as well as validation and verification testing--
all elements of the hardware and software safety program.

Section 238.109  Training, Qualification, and Designation Program

    FRA is amending paragraph (b)(6) to make clear that a railroad may 
offer to its employees and contractors the option of taking an oral 
examination--instead of a written examination--covering the equipment 
and tasks for which they are responsible. As originally promulgated, 
paragraph (b)(6) stated that such contractors and employees were 
required to pass a written examination. However, in the preamble to the 
final rule, FRA explained that paragraph (b) ``requires that employees 
pass either a written or oral examination.'' See 64 FR 25593. 
Consistent with the preamble discussion, FRA did not intend to restrict 
a railroad from offering oral examinations to its employees and 
contractors. Consequently, FRA has amended paragraph (b)(6) of this 
section to effectuate this intent.

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 a 
Tier II passenger equipment safety system.
    In its petition for reconsideration, Amtrak noted that Sec. 213.345 
of the Track Safety Standards already contains an approval process for 
equipment qualification testing, and that Secs. 238.21 and 238.111 
require the submission of test plans for FRA approval in the case of 
Tier II passenger equipment. Amtrak believed that the requirement to 
submit and obtain approval of pre-revenue service acceptance testing 
plans could substantially delay equipment testing.
    FRA has explained that it desires closer monitoring of Tier II 
passenger equipment because of safety concerns associated with the 
higher speeds at which this equipment will travel. Although closer 
monitoring may lengthen the testing process for this equipment, FRA 
believes that safety is better and more efficiently promoted by 
identifying safety concerns prior to placing the equipment in passenger 
service. While the Track Safety Standards focus on track/vehicle 
interaction, the plan required by this section permits a broader 
examination of the equipment's safety. Accordingly, FRA does not 
believe that a modification of the final rule is warranted. Of course, 
FRA will reasonably enforce the requirements for submission and 
approval of test plans. For instance, FRA notes that Sec. 238.111(b)(2) 
requires that a copy of a test plan be submitted to FRA at least 30 
days prior to conducting the testing. This 30-day period is for the 
benefit of FRA to allow sufficient time to review the test plan and 
arrange for FRA to witness the testing, as necessary. In some cases the 
approval, coordination, and testing may be able to be accomplished in 
less than 30 days.

Section 238.113  Emergency Window Exits

    In its petition for reconsideration, APTA requested clarification 
of four issues concerning this section. First, APTA requested that FRA 
clarify the meaning of ``main level'' as applied to gallery-type cars 
such as those operated by the Northeast Illinois Regional Commuter 
Railroad Corporation (Metra). APTA stated that approximately 30% of the 
seating capacity of these gallery cars is located in four separate 
gallery areas. APTA asked whether each of these galleries is a main 
level, or whether only the lower level of the car--containing 70% of 
the seating--is a main level. APTA stated that Metra would equip 
gallery areas with emergency window exits as they buy new cars and as 
they overhaul existing cars but could not add emergency windows to 
gallery areas by November 8, 1999.
    FRA recognizes that the term ``main level'' was not defined in the 
final rule. Nor did FRA intend to define ``main level'' strictly based 
on a percentage of passenger car seating capacity. FRA's use of the 
term ``main level'' was intended to exclude from the requirements of 
this section a level of a car that is principally used for passage 
between the door exits and passenger seating areas, or between 
passenger seating areas. Such an area is not principally used for 
seating and includes a stairwell landing between the two main levels of 
a conventional ``bi-level'' car. A conventional bi-level car has two 
main levels--an upper and a lower level--that are principally used for 
passenger seating.
    As FRA understands, the Metra cars referenced by APTA are equipped 
with eight emergency window exits. Four emergency window exits are 
located on each main level. The four separate gallery areas are located 
on the upper level of the cars; one gallery area is located on each 
side of each end of the cars; and each gallery area has one emergency 
window exit. On this basis, FRA makes clear that the Metra cars are

[[Page 19974]]

in compliance with paragraph (a) of this section.
    Second, APTA requested that the rule not require emergency window 
exits to be placed at the ends of a passenger car if staggering the 
window exits is not practical. APTA believed that, since windows at car 
ends are more likely to be damaged and rendered unusable in a 
collision, the rule should provide railroads the flexibility to place 
window exits at the locations that will most effectively allow for 
passengers to exit a car in an emergency.
    FRA agrees that emergency window exits need to be distributed 
throughout a passenger car so as to maximize passenger egress in a 
life-threatening situation. As the discussion in the final rule 
explains, safety is advanced by staggering the configuration of 
emergency window exits--instead of placing the exits directly across 
from each other on opposite sides of the car--and distributing the 
window exits as uniformly as practical throughout the car. See 64 FR 
25596. For a main level of a typical passenger car, this can be 
conceptualized as follows: Divide the car longitudinally into four 
equal quadrants from the forward (A) end to the rear (B) end; number 
the quadrants one through four, running from the A end to the B end; 
place one window in each quadrant; and locate the windows in the first 
and third quadrants on the opposite side of the car from the windows in 
the second and fourth quadrants. This represents the optimal placement 
of emergency window exits on a main level of a typical passenger car, 
and is required by paragraph (a)(1) where practical. Yet, as FRA noted 
in the final rule, other considerations may be taken into account, 
including the need to provide an unobstructed exit without diminishing 
normal seating capacity. As a result, where staggering is not 
practical, paragraph (a)(1) would allow the emergency window exits to 
be placed on opposite sides of the car, directly across from one 
another, provided at least two emergency window exits are located in 
each end of the car.
    FRA reiterates that use of the term ``in each end'' in paragraph 
(a)(1) refers to the forward and rear ends of a car as divided 
longitudinally by its center. This term does not literally refer to the 
extreme forward and rear ends of a passenger car, nor does it require 
that emergency window exits be placed at the extreme ends of a car. FRA 
also reiterates that railroads should be mindful that if the ends of a 
car crush in a collision, the window exits located at the car's ends 
may be rendered inoperable. FRA makes clear that paragraph (a)(1) does 
not require emergency window exits to be placed at the extreme ends of 
a passenger car.
    Third, APTA requested that FRA clarify the meaning of 
``unobstructed opening'' in paragraph (b). APTA suggested that an 
opening is obstructed only if an obstacle prevents or significantly 
delays the removal of a window, noting that seats and seat backs can 
help in an evacuation by providing passengers a surface to stand on and 
hold as they pass through the window. APTA also mentioned that some of 
the larger emergency window exits weigh more than fifty pounds, and 
that seat backs provide a surface on which to place these windows 
safely. Amtrak, in its petition for reconsideration, similarly 
requested that the term ``unobstructed opening'' be defined to make 
clear that items such as seat backs that project in front of the window 
but do not prevent removal of the emergency window do not violate the 
requirements of this section. Amtrak stated that, since the purpose of 
this section is to ensure ready access to and easy removal of the 
windows, objects such as seat backs should be allowed in front of the 
window opening so long as they do not impair access to and rapid and 
easy removal of the window in an emergency.
    FRA notes that the NTSB, in commenting on the NPRM, stated that 
emergency window exit dimensions should be based on the 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. See 64 FR 25595. FRA 
agreed with the NTSB and paragraph (b) of the final rule reflects these 
considerations. The size of the emergency window exit opening cannot be 
determined solely on the dimensions needed for an able-bodied passenger 
to exit through a window. Although FRA recognizes that use of a seat 
back may facilitate the escape of able-bodied passengers through a 
window, the same seat back may impair the removal of an injured person 
from the car or block an emergency responder fitted with a self-
contained breathing apparatus from entering through the window. 
Further, the requirements of paragraph (b) only apply to new passenger 
cars and only require that four windows on each main level be emergency 
window exits subject to this section's requirements. In consideration 
of APTA's and Amtrak's concerns, however, FRA is amending the paragraph 
to make clear that a seat back does not obstruct an emergency window 
exit opening if the seat back can be moved away from the opening's 
clearance without requiring the use of a tool or other implement. As a 
result, a seat back that can be manually reclined away from the minimum 
required 26-inch by 24-inch emergency window exit opening would not 
obstruct the opening for purposes of this paragraph.
    Finally, APTA requested that FRA clarify the meaning of ``rapid and 
easy removal'' in paragraph (a)(3). APTA asked if this paragraph 
requires that the window be designed to permit rapid and easy removal 
from not only the inside of a passenger car but also from the outside 
of the car as well. FRA is amending the paragraph to make clear that 
the emergency window exits required by this section need only be 
designed to permit rapid and easy removal from the inside of the car 
without requiring the use of a tool or other implement. As paragraph 
(a) applies to both new and existing passenger cars, FRA did not intend 
to require a retrofit of existing passenger cars so that the windows 
could also be accessed by emergency responders from the outside without 
requiring the use of a tool or other implement. Nevertheless, pursuant 
to 49 CFR 223.9(d), each window intended for emergency access by 
emergency responders for extricating passengers from both new and 
existing passenger cars must be clearly marked and have clear and 
understandable instructions posted for its use. In Phase II of this 
rulemaking FRA will examine with the Working Group the need for 
requirements concerning the ease of removing passenger car windows from 
the outside of the car, taking into consideration potential issues and 
concerns such as the unintentional dislodgement of the windows. FRA 
does note that, pursuant to Sec. 238.235(b), each powered, exterior 
side door on a new passenger car must be equipped with a manual 
override that is 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.
    In the final rule, FRA reserved paragraph (c) for emergency window 
exit marking and operating instruction requirements, which were 
specified in the Passenger Train Emergency Preparedness final rule, see 
63 FR 24630. FRA noted that in Phase II of the rulemaking FRA will 
consider integrating into part 238 the emergency window exit marking 
and operating instruction requirements specified in the Passenger Train 
Emergency Preparedness final rule, as well as consider revising the 
requirements as necessary. While FRA still intends to examine these 
requirements in Phase II,

[[Page 19975]]

FRA has in the interim inserted a reference to the marking and 
instruction requirements specified in the Passenger Train Emergency 
Preparedness final rule to make clear that there are marking and 
instruction requirements and identify where to locate these 
requirements.
Subpart C-Specific Requirements for Tier I Passenger Equipment

Section 238.201  Scope/Alternative Compliance

    Subpart C contains specific requirements for railroad passenger 
equipment operating at speeds not exceeding 125 mph. In general, except 
for the static end strength requirements (Sec. 238.203) and as 
otherwise provided in this subpart, the requirements of subpart C 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.
    Following publication of the final rule, a passenger car builder 
asked FRA at what point would a railcar, having undergone extensive 
rebuilding, be considered new and therefore subject to the requirements 
for new passenger equipment in subpart C. The builder explained that it 
has torn down and rebuilt passenger cars using all new materials except 
for their underframes and trucks. FRA makes clear that when a passenger 
car is torn down to its underframe and rebuilt, the requirements of 
subpart C do not apply unless otherwise specified (such as in 
Sec. 238.203). FRA considered the extent to which subpart C should 
apply to rebuilt passenger cars and generally decided against applying 
the requirements of the subpart to such rebuilt equipment. See 64 FR 
25601-2; see also the discussion of the definition ``ordered'' in 
Sec. 238.5 (64 FR 25577). Nonetheless, FRA has applied specific 
requirements of the rule to rebuilt equipment, such as the fire safety 
requirements in subpart B for materials placed in a passenger car 
during a rebuild (see Sec. 238.103(a)(2)). FRA notes that the builder's 
question does highlight the concern that even when a car is torn down 
to its underframe and could be fitted with new or improved structural 
features, the rule generally does not require that it be done. FRA will 
examine this concern further in Phase II of the rulemaking.
    The builder also asked FRA about the meaning of the term ``placed 
in service for the first time,'' which is used throughout rule--not 
only in subpart C--and its effect for purposes of equipment that has 
previously been placed in service in Canada or another country. FRA 
makes clear that the necessary implication of the term ``placed in 
service for the first time'' is that the equipment is placed in service 
for the first time in the United States. For example, where a 
requirement applies to passenger equipment placed in service for the 
first time on or after September 9, 2002, and the railroad desires to 
purchase passenger equipment operating in a foreign country, that 
equipment will be considered placed in service for the first time on or 
after September 9, 2002, if it is placed in service in the United 
States for the first time on or after this date. Consequently, the 
equipment will be subject to the requirements of the rule applicable to 
passenger equipment placed in service for the first time on or after 
September 9, 2002. As noted above, FRA has amended the definition of 
``In service'' in Sec. 238.5 to make this clear. Overall, this 
clarification is consistent with the pre-revenue service acceptance 
testing plan requirements in Sec. 238.111, which distinguish between 
passenger equipment that has previously been used in revenue service in 
the United States, and that equipment which has not.
    Similarly, for purposes of the presumption in Sec. 238.203(b) that 
passenger equipment placed in service before November 8, 1999, is 
presumed to comply with the 800,000-pound static end strength 
requirement in Sec. 238.203(a), the presumption only applies to 
passenger equipment placed in service in the United States prior to 
November 8, 1999. The builder had asked whether this presumption 
applied to passenger equipment operating in Canada prior to this date, 
and FRA makes clear that it does not. However, FRA believes that 
typical Canadian passenger equipment would meet the requirements of 
Sec. 238.203(a).
    FRA is only amending Sec. 238.201 to correct a typographical error 
in paragraph (a)(2). The reference to Sec. 238.203 in paragraph (a)(2) 
of the final rule was incorrectly stated as ``Sec. 238.203B.''

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.
    In the final rule, FRA included paragraphs (d) through (f) to 
provide a formalized process for seeking grandfathering approval of 
passenger equipment in use on a rail line or lines on November 8, 1999, 
not meeting the minimum static end strength requirements. These 
paragraphs set forth the content requirements for a petition, service 
of a petition, and commenting on a petition, as well as the process FRA 
follows in acting on a petition. FRA notes that, subsequent to the 
final rule, Sec. 238.203(g) was amended by a December 16, 1999 final 
rule that revised docket filing procedures for FRA rulemaking and 
adjudicatory dockets. See 64 FR 70193. Yet, the amendments to 
Sec. 238.203(g) only concerned the procedures for filing comments by 
interested parties.
    In its petition for reconsideration, Amtrak believed that paragraph 
(h)(1) provided that a hearing must be conducted in connection with all 
petitions; that this would deviate from the standard specified in FRA's 
rules of practice at 49 CFR 211.25(a) for convening a hearing; and that 
no need exists to deviate from this practice. Paragraph (h)(1) provided 
that FRA will conduct a hearing on a grandfathering petition in 
accordance with 49 CFR 211.25, which, among other things, states that a 
hearing will be held if required by statute or the Administrator finds 
it necessary or desirable. In the case of a petition for 
grandfathering, a hearing is not required by statute. Consequently, in 
reading these two sections together, paragraph (h)(1) would not require 
that a hearing be held on every petition for grandfathering. 
Nonetheless, FRA has amended the rule to make clear that a hearing will 
be held on a petition for grandfathering only if the FRA Administrator 
finds it necessary or desirable.
    Further, Amtrak stated that it may be appropriate for the scope of 
the potential grandfathering of passenger equipment to be modified to 
permit use of the grandfathered equipment for detour or other emergency 
operations on a rail line or lines other than the one or ones 
specifically approved for use without the necessity of a formal waiver 
being obtained in such an instance. FRA does not agree that the rule 
should provide such general flexibility to a railroad, as the rule is 
structured to address the safety of the equipment on a specific rail 
line or lines. The grandfathering petition may of course address this 
situation by specifying potential rail lines the equipment may need to 
use in detour or emergency situations and by seeking approval for use 
of these rail lines in accordance with the requirements of paragraph 
(d). Otherwise, FRA will address such a situation on a case-by-case 
basis.
    Finally, Amtrak stated that there is no apparent reason to specify 
that approved grandfathering petitions are subject to reopening per 
paragraph (h)(2). The rule provides for the

[[Page 19976]]

reopening of approved grandfathering petitions for cause stated so that 
FRA may retain oversight of grandfathered equipment. For instance, the 
facts or circumstances underlying the approval of a grandfathering 
petition may change over time and bring into question whether usage of 
the equipment continues to be in the public interest and consistent 
with railroad safety. Paragraph (h)(2) remains unchanged.
    As a final matter, for a discussion of the application of the 
presumption in paragraph (b) to passenger equipment in service in a 
foreign country before November 8, 1999, see the discussion of 
Sec. 238.201, above.

Section 238.205  Anti-Climbing Mechanism

    This section contains the vertical strength requirements for anti-
climbing mechanisms on rail passenger equipment. As stated in the final 
rule text, paragraph (a) applies to all passenger equipment placed in 
service for the first time on or after September 8, 2000. 64 FR 25675. 
However, the section-by-section analysis to the final rule incorrectly 
stated that paragraph (a) applied to all passenger equipment placed in 
service for the first time on or after November 8, 1999. 64 FR 25604. 
FRA makes clear that the September 8, 2000 applicability date as stated 
in the final rule text is correct.
    In its petition for reconsideration of the final rule, APTA asked 
FRA to reconsider the requirement in paragraph (b) 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. FRA had 
explained in the preamble to the final rule that specifying a vertical 
load resistance 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. See 64 
FR 25604. However, FRA recognized that implementing this anti-climbing 
requirement in the leading structure of cab cars and MU locomotives 
presented a significant challenge.
    In its petition, APTA stated that no car builder had been able to 
find a means of constructing a cab car or an MU locomotive meeting the 
anti-climbing requirement in paragraph (b). APTA explained that, due to 
dissimilar structures on the leading ends of a cab car and an MU 
locomotive on the one hand, and a conventional locomotive on the other, 
it is not possible to apply the load in the same manner on these 
structures. APTA contended that the final rule should not define 
requirements beyond what has proven to be achievable, and recommended 
that the current industry practice for anti-climbing mechanisms at the 
leading ends of cab cars and MU locomotives be retained, i.e, the 
strength requirements provided in paragraph (a).
    In a letter to APTA dated September 24, 1999, FRA announced that it 
would amend the rule to extend paragraph (b)'s compliance dates forward 
by one year and encouraged APTA to work with equipment builders to 
identify appropriate design criteria for cab car and MU locomotive 
anti-climbers within this additional one-year period. (A copy of this 
letter has been placed in the public docket for this rulemaking.) FRA 
agreed that the industry needed additional time to perfect practicable 
designs to meet the requirements of paragraph (b), but was concerned 
with excluding cab cars and MU locomotives from the requirement. If 
anything, the need for the requirement is greater in preventing injury 
in the context of passenger-occupied locomotives (cab cars and MU 
locomotives), where the engineer is located far forward in the vehicle.
    By letter dated November 21, 2000, APTA informed FRA of its 
progress in achieving a practical design standard. (A copy of this 
letter has been placed in the public docket for this rulemaking.) APTA 
explained that at least three car builders proposed strengthening the 
forward car body structure that supports the coupler, in order to 
withstand the required vertical loads. APTA stated that Bombardier had 
proposed meeting this requirement in building MU locomotives for the 
Long Island Railroad by designing the car body structure to resist an 
ultimate load of 200,000 pounds applied upward on the buffer beam and 
downward on the coupler carrier. APTA sought FRA's concurrence on this 
design approach, maintaining that the approach is consistent with the 
loading requirements that have traditionally been used to meet a 
100,000-pound (to yield) anti-climbing requirement. APTA stated that 
the industry currently has no other viable options for anti-climbing 
mechanism designs for cab cars and MU locomotives that would meet the 
requirements of paragraph (b), and that these vehicles do not lend 
themselves to the shelf-type anti-climbing mechanisms used on 
conventional locomotives.
    In a letter to APTA dated February 2, 2001, FRA explained that the 
intent of paragraph (b) was not to focus on strengthening a 
locomotive's draft arrangement, and therefore FRA could not agree that 
APTA's approach complied with paragraph (b). (A copy of this letter has 
been placed in the public docket for this rulemaking.) FRA's intent has 
been to encourage the use of anti-climbing mechanisms that help to 
prevent (1) debris from rising toward the cab and passenger 
compartments in the case of a highway-rail collision and (2) insofar as 
reasonably possible, any vertical disengagement that could reduce the 
effectiveness of collision and corner post arrangements (and consequent 
telescoping) in the case of collisions with other rail equipment. FRA 
intended to incorporate a feature of Association of American Railroads 
(AAR) Standard (S) 580 that appeared to be helpful in this regard 
(along with the requirements for improved collision posts and \1/2\-
inch or equivalent steel skin protecting the forward end structure). 
Conventional freight and passenger locomotives have generally 
implemented this requirement through use of a horizontal shelf 
arrangement that protrudes forward of the locomotive. In order to be 
effective, such an anti-climbing mechanism must be situated on the 
front of the vehicle in such a way as to encourage capture of the 
object in danger of rising and be strong enough to contain its rise. 
Ideally, such an arrangement would tend to interlock with the 
arrangement on the front of other rail vehicles. Certainly a coupler 
and drawbar can be helpful, but the capture surface of a coupler is 
narrow, and the chance of achieving coupling with another vehicle in 
higher force impacts is not high.
    FRA continues to have confidence that incorporation of a separate 
anti-climbing mechanism on the front of cab cars and MU locomotives is 
both feasible and warranted. This conclusion is supported in part by 
successful efforts in rail equipment design internationally. 
Nonetheless, FRA has accepted the fact that for cab cars and MU 
locomotives implementation of effective anti-climbing arrangements that 
comply with paragraph (b) will, in at least some cases, require more 
elaborate redesign than initially contemplated by FRA. Considering the 
further work that will be required to develop compliant designs and 
evaluate their compatibility and effectiveness, FRA has modified the 
rule to exclude cab car and MU locomotives from the additional forward-
end anti-climbing requirements in paragraph (b). Of course, cab car and 
MU locomotives will continue to be subject to the requirements of 
paragraph

[[Page 19977]]

(a). In Phase II of the rulemaking, FRA looks forward to restoring an 
appropriate requirement for cab car and MU locomotives, based on 
research results, continued input from APTA, and consultations with the 
Passenger Equipment Safety Standards Working Group as a whole.
    As a final point, FRA has no objection if a railroad wishes to 
exceed the traditional minimum standard of 100,000 pounds for the anti-
climbing capacity of the coupler carrier and buffer beam. However, FRA 
has amended paragraph (b) to remove the text stating that its 
requirements are ``in lieu of the forward end anti-climbing mechanism 
requirements described in paragraph (a) of this section.'' Because 
paragraph (a) states that certain tight-lock couplers satisfy the anti-
climbing mechanism requirements, the reference to paragraph (a) in 
paragraph (b) could have led to the misunderstanding that increasing 
the strength of the coupler would satisfy the requirements of paragraph 
(b) without the need for a separate anti-climbing mechanism. FRA did 
not intend such a result. Nevertheless, FRA is not aware of any serious 
deficiency in the 100,000-pound draft securement requirement, given the 
function it has typically played in crossing and train-to-train 
collisions. Existing draft arrangements should be sufficient to prevent 
override in those cases where coupler engagement is sufficient to 
arrest vertical movement (up to the strength of the coupler components 
and the drawbar itself).

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 for 
passenger equipment. The purpose of these requirements is generally to 
avoid a premature failure of the draft system so that the anti-climbing 
mechanism will have an opportunity to engage. As stated in the final 
rule text, this section applies to all passenger equipment placed in 
service for the first time on or after September 8, 2000. 64 FR 25675. 
However, the section-by-section analysis to the final rule incorrectly 
stated that this section applied to all passenger equipment placed in 
service for the first time on or after November 8, 1999. 64 FR 25605. 
FRA makes clear that the September 8, 2000 applicability date as stated 
in the final rule text is correct.

Section 238.211  Collision Posts

    This section contains the structural strength requirements for 
collision posts. As stated in the final rule text, paragraph (a) 
applies to all passenger equipment placed in service for the first time 
on or after September 8, 2000. 64 FR 25675. However, the section-by-
section analysis to the final rule incorrectly stated that paragraph 
(a) applied to all passenger equipment placed in service for the first 
time on or after November 8, 1999. 64 FR 25605. FRA makes clear that 
the September 8, 2000 applicability date as stated in the final rule 
text is correct.
    In its petition for reconsideration, APTA stated that FRA 
inadvertently changed the requirements of this section in the final 
rule contrary to FRA's intent and the Working Group's consensus. APTA 
maintained that consensus was reached for all passenger cars to have 
two full-height collision posts at each end, as well as not to require 
collision posts at the rear end of non-passenger carrying locomotives. 
APTA believed that paragraph (a)(1)(i), as stated in the final rule, 
would not require collision posts at both ends of any passenger 
equipment.
    FRA has revised paragraph (a)(1) to make clear that collision posts 
are required at each end of passenger equipment, unless otherwise 
expressly excepted. In the NPRM, FRA had generally proposed that all 
passenger equipment have collision posts at each end, see 62 FR 49804, 
and the preamble to the final rule does not at all indicate that FRA 
had so radically departed from the NPRM as to limit the requirements 
for collision posts to only one end of passenger equipment. FRA 
believes that the final rule did require collision posts at each end. 
Nevertheless, FRA is clarifying the requirements of this section by 
adding the words ``at each end'' to paragraph (a)(1)(i) to remove any 
ambiguity.
    Further, FRA has generally adopted APTA's request to amend this 
section to exempt the rear end of non-passenger occupied locomotives 
from the collision post requirements. FRA acknowledges that in 
preparing the final rule it seemingly overlooked APTA's comment on the 
NPRM questioning the need for collision posts at the rear end of non-
passenger occupied locomotives. In its comments on the NPRM, APTA 
stated that such collision posts could simply have the effect of adding 
weight to locomotives without providing any additional protection to 
the crew, and that no evidence had been presented that crewmembers of 
non-passenger carrying locomotives have been harmed by trailing 
passenger coaches overriding such locomotives from the rear. In 
addition, APTA had commented that passengers in a coach overriding the 
rear of a locomotive may be provided more protection by allowing the 
coach's collision posts to deform the rear of the locomotive, thereby 
absorbing and dissipating collision energy.
    FRA has amended this section to provide that collision posts are 
not required at the rear end of a locomotive that is designed to be 
occupied only at its forward end. As a result, rear collision posts 
will continue to be required on an MU locomotive and a cab car, as well 
as on any locomotive designed to be occupied at the rear. In the case 
of a conventional passenger locomotive designed only to be occupied at 
its forward end, rear collision posts will not be required for Tier I 
operations at this time. Nevertheless, FRA notes that, in considering 
occupant protection strategies for such locomotives, the focus of any 
collision post requirement should be on the rear end of the locomotive 
cab-not the rear of the locomotive in its entirety-as provided for Tier 
II passenger equipment in Sec. 238.411(b). (The locomotive cab is the 
volume normally occupied by the train crew in a locomotive.) As noted 
in the final rule, structural requirements for locomotives are also 
being considered in the Locomotive Crashworthiness Working Group of 
FRA's RSAC, and FRA expects further advances in locomotive 
crashworthiness safety to result from this separate proceeding.

Section 238.219  Truck-to-Car-Body Attachment

    This section contains the truck-to-car-body attachment strength 
requirements for Tier I passenger equipment. The final rule required 
the attachment to resist without failure a 2g vertical force on the 
mass of the truck and a force of 250,000 pounds acting in any 
horizontal direction on the truck.
    APTA, in its petition for reconsideration, stated that the 
requirement for the vertical and horizontal forces to be applied 
simultaneously on the truck (as explained in the preamble to the final 
rule) is not the industry practice and was never discussed at Working 
Group meetings. Accordingly, APTA believed that this requirement should 
not be included in the final rule without having input from the 
industry regarding its feasibility and impact. APTA stated that no 
truck-to-car-body attachments are designed to meet this requirement and 
cited potential operational and economic impacts that may result if any 
new equipment ordered would be incompatible with existing equipment as 
a result of this requirement. APTA disagreed with FRA's reasoning for 
this requirement, as

[[Page 19978]]

stated in the preamble to the final rule, that ``[r]equiring 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.'' (See discussion of Sec. 238.419, the Tier 
II counterpart to Sec. 238.219, at 64 FR 25634.) APTA maintained that 
the industry has always applied these loads separately because each 
load case addresses a different scenario. According to APTA, the 2g 
load criterion is typically used to ensure that the truck remains with 
the car body when it is lifted and is not intended for a collision 
scenario; whereas, the 250,000-pound horizontal load requirement is the 
principal strength criterion that has historically been applied to 
passenger equipment to keep the truck with the car body in a collision 
scenario. To meet the latter criterion, APTA explained that the 
vertical reaction to the load must also be considered in the analysis 
to ensure that the truck does not separate vertically. APTA therefore 
recommended that FRA address this reaction instead of addressing the 2g 
vertical and 250,000-pound horizontal loads together.
    Similarly, in discussing Sec. 238.419 in its petition for 
reconsideration, Amtrak believed the final rule to be inconsistent with 
long-standing industry practice by requiring that the 2g vertical and 
250,000-pound horizontal loads be applied simultaneously. Further, 
Bombardier raised concerns similar to APTA's and Amtrak's in discussing 
Sec. 238.419 in its petition for reconsideration. Bombardier noted in 
particular that since the 2g vertical load criterion is intended to 
keep the truck safely attached to the car body when lifted, the 
criterion is typically based on yield strength rather than on ultimate 
strength.
    FRA agrees with the petitioners that the 2g vertical load and the 
250,000-pound horizontal load on the truck do not need to be resisted 
simultaneously, and FRA has amended the rule to make this clear. (FRA 
announced this decision in a letter to APTA dated February 2, 2001, 
noted above.) At the same time, FRA has amended the rule to state that 
the truck-to-car-body attachment must withstand the resulting vertical 
reaction to the applied 250,000-pound horizontal load. Consequently, 
FRA has adopted the petitioners' recommendations on reconsideration, 
except for Bombardier's point that the 2g vertical load resistance 
requirement be based on yield strength rather than on ultimate 
strength. Use of a yield strength criterion may result in a more 
stringent requirement than one based on ultimate strength.

Section 238.223  Locomotive 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. The final rule required that external fuel tanks 
comply with the performance requirements 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 (RP-506), Performance Requirements for Diesel 
Electric Locomotive Fuel tanks, as adopted on July 1, 1995.
    In its petition for reconsideration, APTA noted that RP-506 
represents the first contemporary attempt to standardize fuel tank 
design for crash performance and that it was developed within the 
framework of conventional locomotive designs-i.e., locomotives with a 
separate fuel tank suspended beneath the underframe and located 
relatively close to the rails between the trucks. According to APTA, 
the passenger rail community has since utilized RP-506 as the starting 
point for further development of a standard for passenger locomotive 
fuel tanks that: (1) Specifically addresses the needs of the various 
passenger-type locomotives and their operation, and (2) builds upon and 
complements RP-506 by encouraging the incorporation of additional 
safety-related enhancements such as increased height above the rail and 
compartmentalization. APTA stated that one of its own standards meets 
these goals: APTA SS-C&S-007-98, ``Standard for Fuel Tank Integrity for 
Non-Passenger Carrying Passenger Locomotives,'' and requested that FRA 
expressly allow the use of this standard as an alternative to RP-506.
    Since the filing of its petition for reconsideration, APTA has 
petitioned FRA pursuant to Sec. 238.21 for a finding that its fuel tank 
safety standard, designated as APTA S-007-98REV10, provides at least an 
equivalent level of safety to the requirements contained in this 
section. APTA's petition is identified as DOT docket number FRA-2001-
8698; the petition and all documents in the docket are available for 
examination on the Internet at the DOT's Docket Management System Web 
site: http://dms.dot.gov. The proceedings on this petition will enable 
FRA to focus more closely on APTA's standard than in this response to 
petitions for reconsideration. For example, in examining how the APTA 
standard provides for safety and compares to the fuel tank requirements 
specified in this section, FRA is focusing on how the hazard of a 
jacknifed locomotive is addressed by the higher fuel tank ground 
clearance and other provisions of the APTA standard. Consequently, FRA 
has decided to deny APTA's petition for reconsideration request to 
modify the final rule to permit use of its fuel tank safety standard as 
an alternative to the requirements contained in this section. However, 
FRA makes clear that this denial in no way prejudices APTA's petition 
in docket number FRA-2001-8698. In fact, FRA is amending Sec. 238.223 
to better address petitions for special approval such as APTA's because 
the petition appears to encompass not only the external fuel tank 
safety standards specified in paragraph (a) but also the internal fuel 
tank safety standards specified in paragraph (b). As originally stated 
in the final rule, Sec. 238.223 did not expressly provide the 
opportunity to seek special approval of an alternative, internal fuel 
tank safety standard. FRA is actively investigating the suitability of 
APTA's fuel tank safety standard and expects to render a decision soon 
on its petition.
    Nonetheless, FRA notes that GETS has raised the concern that its 
Genesis P42 series locomotive fuel tank may not technically comply with 
Sec. 238.223. GETS states that the fuel tank is an integral part of the 
car body structure; elevated a minimum of 29 inches above the rail even 
with fully worn wheels; divided into four separate compartments, each 
with a maximum capacity of approximately 550 gallons; equipped with a 
fuel fill and vent system that minimizes the potential for fuel 
spillage in any locomotive orientation; designed with sloping end 
plates to deflect debris down and away from the fuel tank, and a wall 
thickness providing puncture resistance in excess of the FRA standard. 
However, GETS believes that significant structural modification to the 
Genesis car body and fuel tank design will be required if FRA mandates 
strict compliance to all the requirements in Appendix D for external 
fuel tanks. According to GETS, these modifications would likely include 
eliminating the sloping end plate design of the fuel tank (a change 
which GETS believes would degrade overall fuel tank safety) and also 
require extensive internal structural modification to meet the loading

[[Page 19979]]

conditions originally intended for conventional, frame-suspended fuel 
tanks that have lower clearances above the rail. GETS believes that FRA 
approval of APTA's fuel tank safety standard would eliminate any 
compliance concerns, stating that the Genesis fuel tank meets or 
exceeds all provisions of APTA's fuel tank standard.
    FRA recognizes that the Genesis locomotive fuel tank, as a fuel 
containment volume that is integral with a structural element of the 
locomotive not designed solely as a fuel container, would have met the 
definition of an ``integral'' fuel tank as proposed in the NPRM and 
seemingly complied with the requirements proposed for ``integral'' fuel 
tanks. See 62 FR 49793, 49805. However, as explained in the final rule, 
FRA removed the definition of ``integral fuel tank'' and instead 
specified requirements for ``internal'' and ``external'' fuel tanks to 
more clearly address FRA's safety concerns. See 64 FR 25611. Because 
the Genesis locomotive fuel tank extends outside the body structure of 
the locomotive, albeit to a significantly lesser degree than a 
conventional, frame-suspended fuel tank, the fuel tank is not 
``internal'' and therefore subject to the requirements for ``external'' 
fuel tanks in the final rule. Although GE's concerns were not raised in 
a petition for reconsideration of the final rule, FRA will address them 
concurrently with FRA's response to APTA's petition for fuel tank 
safety equivalency.
    FRA is amending the final rule to reconcile a discrepancy between 
the external and internal fuel tank safety standards. As stated in the 
final rule, paragraph (b)(3) provides in part that internal fuel tank 
bulkheads and skin shall at a minimum be equivalent to a 3/8-inch (6/
16-inch) thick steel plate with a yield strength of 25,000 pounds per 
square inch. Following publication of the final rule, FRA compared this 
requirement with those for external fuel tanks in Appendix D, which 
states in part: ``(4) Load case 4-penetration resistance. The minimum 
thickness of the sides, bottom sheet and end plates of the fuel tank 
shall be equivalent to a 5/16-inch steel plate with a 25,000 pounds-
per-square-inch yield strength . . . . The lower one third of the end 
plates shall have the equivalent penetration resistance . . . of a 3/4-
inch steel plate with a 25,000 pounds-per-square-inch yield strength . 
. . .'' As a result, the final rule would have required that certain 
portions of an internal fuel tank be stronger (equivalent to a 6/16-
inch steel plate) than similar portions of an external fuel tank 
(equivalent to a 5/16-inch steel plate). FRA did not intend that the 
internal fuel tank requirements be stricter in this regard. 
Consequently, FRA has amended Sec. 238.223(b) to replace the 3/8-inch 
thickness requirement with a 5/16-inch thickness requirement to be 
consistent with Appendix D.
    Finally, FRA notes that for purposes of advancing discussion in 
Phase II of the rulemaking FRA is concerned with fuel tanks on 
passenger equipment other than locomotives. Such fuel tanks may be 
found on head-end power generator cars, private cars, and express cars 
with engine-generator sets. Railroads should be mindful of the 
potential hazard posed by the presence of these fuel tanks in the event 
of a collision and derailment, and their contribution to fire. FRA will 
consider with the Working Group in Phase II whether to impose 
requirements on such fuel tanks.

Section 238.227  Suspension System

    This section contains requirements for the suspension system 
performance of Tier I passenger equipment. FRA is explaining but not 
amending the requirements of the final rule.
    In its petition for reconsideration, APTA requested that FRA 
recognize that most railroad passenger equipment experiences laterally 
oscillating trucks under some operating conditions and that most 
lateral oscillations are not hunting oscillations because they do not 
lead to a dangerous instability. APTA therefore asked FRA to clarify 
under what circumstances a lateral oscillation becomes a hunting 
oscillation for purposes of the rule.
    In paragraph (a), the final rule defines hunting oscillations as 
lateral oscillations of trucks that could lead to a dangerous 
instability. FRA recognizes that this definition of hunting 
oscillations is less definitive than the one provided for Tier II 
passenger equipment in Sec. 238.427(c), and in Secs. 213.333 and 
213.345 of the Track Safety Standards (49 CFR 213)-which is, ``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.'' Further, FRA recognizes that any instability could be 
dangerous under the right circumstances.
    As noted in the preamble to the final rule, Sec. 213.345 of the 
Track Safety Standards requires that train equipment operating at Class 
6 track speeds and above (above 90 mph for passenger equipment and 
above 80 mph for freight equipment) be qualified for operation by 
meeting, among other things, the 0.4g root mean square requirement. See 
64 FR 25612. In addition, Sec. 213.333 of the Track Safety Standards 
requires that an instrumented car which is representative of the other 
equipment assigned to service on the railroad track be operated over 
the track at the revenue speed profile at least twice within every 60 
days at Class 7 track speeds and above (above 110 mph), and that the 
lateral truck accelerations in the representative car must also not 
exceed the 0.4g root mean square requirement. See Sec. 213.333(k).
    In effect, the more specific hunting oscillation requirements of 
the Track Safety Standards apply to all Tier I passenger equipment 
operating at speeds greater than 90 mph, at least at the vehicle 
qualification stage. For Tier I passenger equipment operating at speeds 
not exceeding 90 mph, railroads are encouraged to follow as appropriate 
Secs. 213.333 and 213.345 of the Track Safety Standards, as well as 
Sec. 238.427(c) of the Passenger Equipment Safety Standards, for 
purposes of assuring compliance with Sec. 238.227(a). Although railroad 
passenger equipment operating at speeds not exceeding 90 mph is not 
subject to any of these more specific provisions, demonstrating 
compliance with the 0.4g root mean square requirement will nonetheless 
demonstrate compliance with Sec. 238.227(a). In general, FRA will 
evaluate whether hunting oscillations present a ``dangerous 
instability'' in light of these vehicle/track interaction criteria and 
general engineering knowledge and experience (e.g., possibility of 
wheel climb). In Phase II of the rulemaking, FRA will investigate more 
fully the safety implications of various types of lateral oscillations. 
As a result, more detailed requirements may be specified concerning 
hunting oscillations for all Tier I passenger equipment, and revisions 
to the more specific requirements for Tier II passenger equipment may 
be possible as well.

Section 238.235  Doors

    This section contains the requirements for exterior side 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 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

[[Page 19980]]

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 were not already equipped with such 
manual override devices were required to be retrofitted accordingly.
    In its petition for reconsideration, APTA explained that during 
Working Group meetings it had pointed out that certain passenger cars 
have quarter-point, dual-leafed door arrangements. According to APTA, 
each of these side door locations is equipped with a manual override 
device for one of the two door leafs, and each door leaf exceeds the 
dimensional requirements for an emergency door. APTA therefore 
requested that FRA clarify the rule to avoid requiring that each door 
leaf be equipped with a manual override device.
    FRA has decided that, in the case of dual-leafed doors and solely 
for purposes of the retrofit requirement in paragraph (a), only one 
door leaf of a dual-leafed door arrangement be required to respond to a 
manual override device by December 31, 1999. FRA previously informed 
APTA of this decision and is now amending paragraph (a) accordingly. 
Yet, FRA recognizes the limitation on emergency egress capacity through 
the route of the single panel that is responsive to the manual release 
when the other door leaf is not open. As a result, for purposes of the 
permanent requirement applicable to new passenger cars in paragraph 
(b), each door leaf in such a dual-leafed arrangement must be capable 
of responding to a manual override device located adjacent to the door.
    APTA's petition for reconsideration also raised concern with FRA's 
statement in the preamble to the May 12, 1999 final rule that a 
vestibule is not partitioned from the passenger compartment of a 
passenger car solely by the presence of a windscreen which extends no 
more than one-quarter of the width across the car from the wall to 
which it is attached. See 64 FR 25616. APTA stated that windscreens on 
some types of passenger cars extend one-third of the width across the 
car from the wall to which they are attached, and requested that FRA 
clarify the rule to acknowledge that these windscreens do not by 
themselves partition a passenger compartment from a vestibule.
    FRA notes that the preamble language referenced by APTA was 
intended to address the concerns of railroads that windscreens not be 
considered partitions. FRA did not intend that windscreens constitute 
partitions where there is an open passageway that allows employees and 
passengers to move freely between the vestibule and passenger 
compartments. Consequently, FRA's statement in the preamble concerning 
windscreens was unnecessarily restrictive. FRA makes clear that the 
presence of windscreens or other structures that extend across a 
portion of the width of a passenger car do not ``partition'' the 
vestibule from the passenger compartment provided there is an open 
passageway allowing unobstructed movement between the vestibule and 
passenger compartments. There would not be a door between the vestibule 
and passenger compartments in such circumstances. Of course for 
purposes of the permanent requirement applicable to new passenger cars 
in paragraph (b) each powered, exterior side door must have a manual 
override device, even if the door is located in a vestibule that is not 
partitioned from the passenger compartment.
    In the final rule, FRA reserved paragraph (d) for door exit marking 
and operating instruction requirements, which were specified in the 
Passenger Train Emergency Preparedness final rule, see 63 FR 24630. FRA 
intended in Phase II of the rulemaking to consider integrating into 
part 238 the door exit marking and operating instruction requirements 
specified in the Passenger Train Emergency Preparedness final rule, as 
well as consider revising the requirements as necessary. While FRA 
still intends to examine these requirements in Phase II, FRA has in the 
interim inserted a reference to the marking and instruction 
requirements specified in 49 CFR 239.107(a) to make clear that there 
are marking and instruction requirements and identify where to locate 
these requirements.

Section 238.237  Automated Monitoring

    This section requires an operational alerter or a deadman control 
device in the controlling locomotive of each passenger train operating 
in other than cab signal, automatic train control, or automatic train 
stop territory on or after November 8, 1999. 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, 
be equipped with a working alerter. As a result, it is prohibited to 
use a deadman control device alone on these new locomotives operating 
in other than cab signal, automatic train control, or automatic train 
stop territory.
    In its petition for reconsideration, APTA requested that FRA narrow 
the application of the restrictions in paragraph (d) which applied, as 
written, if the alerter or deadman control fails en route.'' See 64 FR 
25678. APTA explained that some controlling locomotives are equipped 
with both a deadman and an alerter, and stated that only if both 
features fail should the restrictions in paragraph (d) apply.
    FRA believes that the application of the restrictions in paragraph 
(d) should be consistent with the requirements in paragraph (a) for 
having an alerter or deadman feature. As a result, if a locomotive is 
required to be equipped with either a working alerter or a deadman 
feature pursuant to paragraph (a), and the locomotive is in fact 
equipped with both devices, then the restrictions in paragraph (d) 
would not apply if only one of the devices fails en route. Of course, 
alerter and deadman control features are safety appurtenances which are 
required to be in proper condition and safe to operate under FRA's 
Railroad Locomotive Safety Standards. See 49 CFR 229.7. Further, these 
appurtenances are also subject to the requirements of the Locomotive 
Safety Standards in 49 CFR 229.9 that govern the movement for repair of 
a defective safety appurtenance. FRA recognizes that an alerter is 
preferable to a deadman feature as a safety device and will reexamine 
in Phase II of the rulemaking the continued allowance of deadman 
features in lieu of alerters under part 238.
    In response to questions that have arisen since publication of the 
final rule, FRA is also amending this paragraph to clarify one of the 
remedial measure provisions. FRA makes clear that paragraph (d)(1)(i) 
requires a second person stationed in the locomotive cab as a remedial 
measure to be qualified on the signal system and trained to apply the 
emergency brake-not qualified on normal brake application procedures. 
FRA did not intend that this second person be required to be qualified 
on the brake application procedures in the way a locomotive engineer is 
qualified and certified under 49 CFR 240. This clarification will help 
avoid any further confusion and more appropriately express FRA's intent 
that the second person be required to know how to apply the emergency 
brake.
Subpart D--Inspection, Testing, and Maintenance Requirements for Tier I 
Passenger Equipment

Section 238.315  Class IA Brake Test

    This section contains the requirements for performing Class IA 
brake tests. As stated in the final rule, paragraph (c) allows a Class 
I or Class IA brake test to be performed at a shop

[[Page 19981]]

or yard site without requiring that the test be repeated at the first 
passenger terminal if the train remains on air and in the custody of 
the crew. 64 FR 25683. Paragraph (c) is intended to be an incentive for 
railroads to conduct Class IA brake tests at shop or yard locations 
where they can be performed more safely and easily than at a passenger 
terminal. FRA is therefore amending paragraph (c) to allow a train crew 
to receive notice that a Class IA brake test has been performed, rather 
than require that the train crew actually have custody of the train 
during and after the performance of the test. To the extent FRA 
encourages Class IA brake tests to be performed at shop or yard 
locations (likely in advance of the time train crews normally report 
for duty) FRA recognizes that requiring train crews to have custody of 
the trains in these circumstances is seemingly a disincentive to 
performing the tests at shop or yard locations. Allowing the train crew 
to receive notice that a Class IA brake test has been performed, 
together with the requirement that the train remain on a source of 
compressed air, continues to ensure safety and is consistent with FRA's 
intent.
    Additionally, following publication of the final rule FRA 
determined that the reference to a Class I brake test in paragraph (c) 
may cause confusion since subpart D contains specific requirements 
governing the performance of Class I brake tests and Class I brake 
tests must be performed by qualified maintenance persons presumably at 
shop or yard locations. As a result, FRA is amending paragraph (c) to 
remove the reference to a Class I brake test, consistent with the 
preamble discussion of this paragraph in the final rule which omits 
such reference as well. See 64 FR 25628.
    FRA has also revised this section by clarifying the inspection 
requirement contained in paragraph (f)(3), which is particular to MU 
locomotives. FRA makes clear that for MU locomotives that utilize an 
electric signal to communicate a service brake application and only a 
pneumatic signal to propagate an emergency brake application, the 
emergency brake application shall be tested to determine that it 
functions as intended. As stated in the final rule, paragraph (f)(3) 
required that for all MU equipment the emergency brake application and 
the deadman pedal or other emergency control device be tested and be 
determined to function as intended. Id. However, on reconsideration FRA 
recognizes that imposing such a requirement on all MU locomotives 
during a Class IA brake test is unnecessary.
    The intent of this provision is to ensure that an emergency brake 
application occurs in a train compromised of MU locomotives if an angle 
cock in the train is inadvertently closed. For certain MU locomotives 
an electric control wire or ``P'' wire is used to make service brake 
applications but the pneumatic train line is used for making emergency 
brake applications. If an angle cock is closed in a train made up of 
such MU locomotives, the engineer would be able to make regular service 
brake applications to slow or stop the train because the brake 
application signal is transmitted over the ``P'' wire. However, if the 
engineer attempts to apply the emergency brakes either through the 
engineer's control stand or the emergency dump valve, the signal to 
apply the emergency brakes would not travel beyond the closed angle 
cock. As a result, the engineer would not have full emergency braking 
ability.
    For the majority of MU locomotives, paragraph (f)(3) is unnecessary 
because a ``P'' wire circuit is used to apply both the service and 
emergency brakes throughout the train. For such locomotives, the 
inspection requirement in paragraph (f)(2) to determine that each brake 
sets and releases during a service brake application effectively tests 
to ensure that the emergency brakes also apply as intended. Even if an 
angle cock is closed on a train comprised of such MU locomotives, the 
signal communicating the emergency brake application will bypass the 
closed angle cock since it travels on the ``P'' wire and not on the 
pneumatic brake line.
    FRA has also removed the reference to the ``deadman pedal or other 
emergency control devices'' from paragraph (f)(3). This reference is 
not necessary since such devices typically initiate service brake 
applications--not emergency brake applications. Further, to the extent 
any such device would initiate an emergency brake application, testing 
of the emergency brake application is specially addressed in paragraph 
(f)(3) in those instances where it is necessary. For similar reasons, 
FRA is modifying Sec. 238.317(d)(2), below, which is the Class II brake 
test counterpart to this paragraph.

Section 238.317  Class II brake test

    FRA has revised this section by clarifying the inspection 
requirement contained in paragraph (d)(2), which is particular to MU 
locomotives. FRA makes clear that for MU locomotives that utilize an 
electric signal to communicate a service brake application and only a 
pneumatic signal to propagate an emergency brake application, the 
emergency brake application shall be tested to determine that it 
functions as intended. As stated in the final rule, paragraph (d)(2) 
required that for all MU equipment the emergency brake application and 
the deadman pedal or other emergency control device be tested and be 
determined to function as intended. Id. However, for effectively the 
same reasons discussed above for the Class IA brake test counterpart to 
this requirement in Sec. 238.315(f)(3), FRA recognizes that imposing 
such a requirement on all MU equipment during a Class II brake test is 
unnecessary.
    In performing a Class II brake test, paragraph (d)(1) requires that 
the railroad determine that the brakes on the rear unit of a train 
apply and release in response to a signal from the engineer's brake 
valve or controller of the leading or controlling unit, or a gauge at 
the rear of the train or in the cab of the rear unit indicates that 
brake pipe pressure changes are properly communicated at the rear of 
the train. For the majority of MU locomotives where a ``P'' wire 
circuit is used to apply both the service and emergency brakes 
throughout the train, paragraph (d)(2) is unnecessary because the 
inspection requirement in paragraph (d)(1) effectively tests the 
integrity of both the service and emergency brake application signals 
throughout the train. However, for those MU locomotives that use an 
electric control wire or ``P'' wire to make service brake applications 
but use the pneumatic train line for making emergency brake 
applications, the inspection requirement in paragraph (d)(1) is, by 
itself, insufficient to determine whether the emergency brakes will 
apply as intended. Hence, the need for this requirement.
Subpart E--Specific Requirements for Tier II Passenger Equipment

Section 238.411  Rear end structures of power car cabs

    As stated in the final rule, the rear end structure of a power car 
cab provides protection to crewmembers from intrusion of locomotive 
machinery or trailing cars into the cab 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

[[Page 19982]]

structural members must withstand and permits flexibility for using 
other equipment designs that provide equivalent structural protection. 
The required rear end structural protection results in considerably 
greater protection to the train operator than that provided by previous 
passenger equipment designs. Together, the front and rear end 
structural protection required by this rule for a power car cab make 
the cab a highly survivable crash refuge.
    In its petition for reconsideration, Bombardier raised concern that 
the 750,000-pound shear strength requirement for collision posts in 
paragraph (b)(1) of the final rule arose due to confusion between the 
loading requirements in the following sections: Sec. 238.405(a) 
(longitudinal static compressive strength); Sec. 238.409 (forward end 
structures of power car cabs); and Sec. 238.411. Bombardier explained 
that, for Amtrak's high-speed trainsets, compliance with the 2,100,000-
pound longitudinal static compressive strength requirement was met by 
applying the load at the vertical centerline of the underframe as 
follows: 300,000 pounds at each of the two front corner post locations, 
and 500,000 pounds at each of the three front collision post locations; 
300,000 pounds at each of the two rear corner post locations, and 
750,000 pounds at each of the two rear collision post locations. As 
such, the 750,000-pound force applied to the rear collision post 
locations was applied at the vertical centerline of the underframe-not 
at the shear connection at the top of the underframe-to demonstrate 
compliance with the longitudinal static compressive strength 
requirement in Sec. 238.405(a).
    Bombardier stated that the purpose of the rear collision and corner 
posts is to prevent intrusion into the cab from the rear. Bombardier 
noted that the total weight of all the components in the machinery 
compartment behind the power car cab is approximately 31,000 pounds and 
that these components are designed with an attachment strength to 
resist an 8g longitudinal load. According to Bombardier, to address the 
risk of incursion into the rear of the power car cab, the cab's rear 
collision posts were each designed to resist a shear load of 500,000 
pounds at the joint with the underframe. Bombardier recommended that 
Sec. 238.411(b)(1) be modified by substituting this 500,000-pound 
loading requirement for the 750,000-pound loading requirement for rear 
collision posts in the final rule.
    FRA has adopted Bombardier's request and modified paragraph (b)(1) 
accordingly. (FRA has also made a corresponding change to figure 2 to 
subpart E.) FRA recognizes that the strength of the power car cab's 
rear collision posts should not necessarily be dependent on the 
strength of the cab's front end structure, as the front and rear end 
structures are intended to protect against somewhat different hazards. 
The front end structure must protect against the greater hazard of a 
head-on collision with another train or object.

Section 238.419  Truck-to-Car-Body and Truck Component Attachment

    FRA has modified this section in response to petitions for 
reconsideration. See the discussion of the Tier I counterpart to this 
section at Sec. 238.219, above.

Section 238.421  Glazing

    This section contains the safety glazing requirements for Tier II 
passenger equipment exterior windows. FRA believes that the higher 
speed of Tier II passenger equipment necessitates more stringent 
glazing standards than those currently required by 49 CFR 223. 
Nonetheless, in response to comments on the NPRM, FRA decided to focus 
the final rule principally on more stringent safety glazing 
requirements for end-facing exterior windows as specified in paragraph 
(b), instead of all exterior windows. See 64 FR 25634. FRA did note, 
however, that well in advance of the final rule it had helped to 
develop the specifications for exterior window safety glazing of 
Amtrak's high-speed trainsets. FRA believes that these specifications 
provide excellent protection to the trainsets' occupants. As a result, 
FRA included the specifications as alternative standards in paragraph 
(c) for use by Amtrak in equipment ordered prior to May 12, 1999, with 
limitations on the replacement of windows.
    Following publication of the final rule, Amtrak petitioned FRA for 
reconsideration of the safety glazing requirements. In particular, 
Amtrak noted that the provision for end-facing exterior glazing in 
paragraph (b)(1) required testing at an impact angle of 90 degrees to 
the window's surface; whereas, paragraph (c) required that each end-
facing exterior window be tested at an impact angle equal to the angle 
between the window's surface as installed and the direction of travel. 
Amtrak stated that the requirement in paragraph (c) was consistent with 
the high-speed trainset specification and believed that complying with 
the requirement in paragraph (b) would likely require a thickening of 
the glazing which would protrude up to an inch outward from the 
otherwise streamlined surface of the power car. According to Amtrak, 
limiting the use of replacement windows conforming to paragraph (c) and 
ultimately compelling the use of windows conforming to paragraph (b) 
would thereby affect both the thermal and acoustic performance of its 
high-speed trainsets ordered prior to May 12, 1999.
    FRA is amending paragraph (c) to make clear that use of the 
alternative safety glazing standards specified in that paragraph is 
available to passenger equipment ordered prior to May 12, 1999, for the 
life of the equipment. The only Tier II passenger equipment subject to 
the provisions of paragraph (c) are Amtrak's high-speed trainsets 
ordered prior to May 12, 1999. FRA recognizes that well in advance of 
the final rule the exterior windows in these trainsets were specially 
designed for the particular shape of the trainsets and that replacement 
windows should be of the same design. As amended, there is now no 
limitation on using replacement windows conforming to paragraph (c) in 
these trainsets.
    Further, for passenger equipment not subject to the alternative 
standards specified in paragraph (c), FRA is also amending paragraph 
(b). As stated in the final rule, FRA had originally proposed that an 
end-facing exterior window resist an impact with a 12-pound steel 
sphere at an angle equal to the angle between the window's surface as 
installed and the direction of travel of the train. See 62 FR 49817. In 
response to comments on the proposal, FRA revised the rule text to 
require that the window glazing resist the impact with the 12-pound 
steel sphere at an impact angle of 90 degrees to the window's surface. 
See 64 FR 25634. However, upon reconsideration, FRA believes that this 
requirement was too strict. Although FRA agrees that specifying an 
impact angle of 90 degrees to the window's surface provides a uniform 
standard for production purposes, a point raised in comments on the 
NPRM, FRA recognizes that end-facing exterior windows on Tier II 
passenger equipment will likely be specially fitted for the design of 
this advanced equipment. Additionally, end-facing windows on power cars 
will be sloped away from the vertical plane to take advantage of 
aerodynamic designs and, therefore, any impact with the windows will 
likely occur at an angle less severe than 90 degrees to the surface of 
the windows.
    Consequently, FRA has amended paragraph (b)(1) to provide that each 
end-facing exterior window in a passenger car and a power car cab, in 
the orientation in which the window is

[[Page 19983]]

installed in the car or cab, shall resist the impact of a 12-pound 
solid steel sphere traveling (i) at the maximum speed at which the car 
will operate (ii) at an angle no less severe than horizontal to the 
car, with no penetration or spall. In all cases, an impact angle that 
is perpendicular (90 degrees) to the window's surface shall be 
considered the most severe impact angle for purposes of this 
requirement. Performance testing may be conducted using an impact angle 
that is perpendicular to the window's surface, but is not required. FRA 
has also amended paragraph (c)(1) for clarity and consistency but does 
not intend the amended paragraph to be more stringent than paragraph 
(c)(1) in the May 12, 1999 final rule. Describing the impact angle as 
the ``angle between the window's surface as installed and the direction 
of travel,'' as stated in paragraph (c)(1) in the May 12, 1999 final 
rule, may be less clear than describing the impact angle in terms of an 
object traveling horizontal to the vehicle and striking the window in 
the orientation in which the window is installed in the vehicle.
    In its petition for reconsideration, Amtrak also stated that the 
0.001-inch witness plate requirement for demonstration of anti-spalling 
performance is inconsistent with the high-speed trainset specification. 
Amtrak stated that the high-speed trainset specification provided for 
the use of a 0.002-inch witness plate, and that the testing of the 
high-speed trainsets' windows is complete and would have to be repeated 
using a thinner witness plate. FRA had understood that the anti-
spalling performance of the exterior window glazing on Amtrak's high-
speed trainsets would be measured using a 0.001-inch witness plate, in 
accordance with a May 8, 1994 specification for the trainsets. A 
witness plate having a thickness of 0.002 inches was apparently used 
instead. FRA notes that the difference between the two witness plates 
is not as significant when compared to the 0.006-inch thick witness 
plate allowed by 49 CFR 223. Further, assuming that the window glazing 
on Amtrak's high-speed trainsets would not pass the performance testing 
requirements if a 0.001-inch witness plate were used, this too may 
require a thickening of the glazing that would affect the thermal and 
acoustic performance of the trainsets. As a result, for purposes of the 
standards in paragraph (c) for equipment ordered prior to May 12, 1999, 
FRA is amending paragraph (c)(3)(ii) to permit anti-spalling 
performance to be demonstrated by use of a 0.002-inch thick witness 
plate. FRA continues to believe that use of a 0.001-inch thick witness 
plate in paragraph (b)(2) is appropriate for equipment ordered on or 
after May 12, 1999. FRA is correcting paragraph (b)(2) principally 
because the word ``inch'' was inadvertently omitted from the paragraph.
    As touched on above, in the final rule FRA decided not to impose on 
all Tier II passenger equipment the particular requirements for side-
facing exterior window glazing which FRA had proposed in the NPRM. See 
64 FR 25634-6. Instead, FRA required that Tier II power car cabs and 
passenger cars comply with either the existing side-facing exterior 
window glazing requirements specified in 49 CFR 223, or the alternative 
standards specified in paragraph (c), as appropriate. FRA included in 
the final rule's preamble the comments received on the proposed side-
facing exterior window glazing standards for purposes of advancing the 
discussion of these standards in Phase II of the rulemaking. FRA also 
noted that certain of the comments FRA had received on the proposed 
standards addressed the sufficiency of the existing safety glazing 
standards for all passenger equipment-both Tier I and Tier II- and for 
freight equipment as well. In fact, in the ANPRM FRA had sought comment 
concerning the sufficiency of the existing safety glazing standards in 
part 223 for all equipment-both freight and passenger. See 61 FR 30696. 
Nonetheless, the Passenger Equipment Safety Standards Working Group was 
generally reluctant to address changes to part 223 in this proceeding 
because of the complexity of the issues in the rulemaking, the 
satisfaction with existing standards, and the need for coordination 
with freight interests not represented on the Working Group. Id.
    FRA makes clear that it is concerned with the adequacy of the 
requirements of part 223 as they apply to both freight and passenger 
equipment, and these concerns need a fuller examination than has been 
done to date. FRA is therefore reiterating the principal concerns 
stated in the ANPRM-namely, that the witness plate used for testing 
under part 223 may be too thick, allowing spalling of pieces of glass 
large enough to cause injury; the impact test using a 24-pound cinder 
block is not repeatable; manufacturers of the window glazing or their 
products, or both, need to be certified (and, thereafter, periodically 
re-certified) by an independent testing laboratory; and the strength of 
the framing arrangement securing the glazing is not specified.
    In particular, the cinder block test specified in part 223 has 
proven impractical and, now, unrepeatable because the block is no 
longer manufactured. To accomplish the test, a current block must be 
cut down in size and have material ground from its inner core to reduce 
the gross weight to meet the cinder block specifications. Moreover, no 
frangibility requirement is specified for the block or the strength of 
the material. In addition, each manufacturer that provides glazing 
materials for use in achieving compliance with part 223 must certify 
that each type of glazing material being supplied for this purpose has 
been successfully tested in accordance with the requirements of part 
223 and that test verification data is available to the railroad or FRA 
on request. See 49 CFR 223, Appendix A, a(1). There is no requirement 
that the glazing products supplied to railroads be tested by an 
independent testing laboratory, and a glazing manufacturer's process of 
producing the glazing may have changed over time. FRA is also concerned 
that the glazing frame and gasket have sufficient strength to retain 
vehicle occupants in the event of a derailment or rollover. While the 
Passenger Equipment Safety Standards final rule does require securement 
of windows to resist both air pressure difference generated by passing 
trains and the impact forces the windows are required to withstand, see 
Secs. 238.221(b) and 238.421(d), part 223 contains no such express 
requirements. FRA will reexamine the requirements of part 223 in Phase 
II of the rulemaking or through another appropriate forum.
    As a separate matter, FRA also notes the concern for an appropriate 
ballistic impact test, as discussed in the preamble to the final rule. 
See 64 FR 25636. In the final rule, FRA deferred imposing new 
requirements for ballistic testing of exterior window glazing, except 
for purposes of the alternative glazing standards specified in 
paragraph (c). FRA will reexamine this issue in Phase II of the 
rulemaking or through another appropriate forum.

Section 238.423  Fuel tanks.

    This section contains the requirements for Tier II passenger 
equipment fuel tanks. Since the requirements for internal fuel tanks on 
Tier II passenger equipment are the same as those for Tier I passenger 
equipment in Sec. 238.223(b), FRA notes that it has modified the 
requirements of Sec. 238.223(b). Please see the discussion of 
Sec. 238.223(b), above.

[[Page 19984]]

Section 238.427  Suspension system.

    Paragraph (b) Car body accelerations. As stated in the final rule, 
paragraph (b) required that the steady-state lateral acceleration of 
passenger cars be less than 0.1g, as measured parallel to the car floor 
inside the passenger compartment, under all operating conditions. In 
its petition for reconsideration, Bombardier stated that Amtrak's high-
speed trainsets are designed to have a nominal steady-state lateral 
acceleration equal to 0.1g at nine inches of cant deficiency. 
Bombardier added that the actual operational cant deficiency will often 
be slightly higher than the nominal cant deficiency upon which the 
schedule is predicated due to allowable variations in operating speed, 
as well as in track cross level and curvature consistent with 49 CFR 
213, and believed that under normal operating conditions it may be 
common for the 0.1g acceleration level to be exceeded on some curves. 
Bombardier maintained that the 0.1g limit was established by the 
passenger rail industry to describe ride quality and not set a safety 
threshold, stating that the 0.1g criterion is based on a historically 
developed, long-standing AAR comfort limit and that the AAR Ride Index 
Table classifies a steady-state lateral acceleration of up to 0.11g as 
merely ``perceptible.'' Bombardier acknowledged that at some magnitude 
lateral acceleration creates the potential for injuries to passengers, 
and noted that operations are conducted in Europe with a steady-state 
lateral acceleration of up to 0.15g. Bombardier stated that the lean 
test requirement for vehicles intended for high cant deficiency 
operation under FRA's Track Safety Standards defines the maximum car 
body floor angle with respect to the horizontal when the vehicle is 
standing on track with a uniform superelevation equal to the intended 
target cant deficiency; that this requirement is intended to ensure 
that the nominal steady-state acceleration does not exceed 0.1g at the 
intended target cant deficiency; and that compliance with the static 
lean test requirement in the Track Safety Standards better defines and 
fulfills the intent of the steady-state lateral acceleration 
requirement. Bombardier added that if FRA is to define a maximum 
allowable steady-state lateral acceleration criterion, the maximum 
limit should be applicable to all high cant deficiency operations for 
both Tier I and Tier II passenger equipment since the potential for 
passenger injury resulting from such accelerations would be the same 
regardless of the type of equipment.
    Similarly Amtrak, in its petition for reconsideration, believed 
that a steady-state lateral acceleration limit of 0.1g for passenger 
cars is too strict as a Federal standard. Amtrak mentioned that it was 
providing passenger service in equipment with a steady-state lateral 
acceleration of 0.09g between New Haven and Boston without incident. 
Amtrak maintained, as Bombardier did, that FRA-sponsored research 
showed the discomfort level for ten percent of passenger car occupants 
to be at a steady-state lateral acceleration of 0.15g, with no impact 
to passengers at an acceleration of 0.1g. Amtrak added that the TGV 
operates in Europe within an acceleration limit of 0.12g, and that the 
ICE train operates within a 0.15g limit. Amtrak contended that a 0.12g 
limit would be more appropriate.
    In evaluating these petitions, FRA examined its experience with 
waivers of FRA's Track Safety Standards where FRA has permitted five or 
more inches of cant deficiency for passenger equipment operation. In 
addition, FRA reviewed the results of qualification testing of several 
high-speed vehicles that have been conducted in the past few years in 
accordance with subpart G of the Track Safety Standards. Tests 
involving both tilting and non-tilting equipment have shown that 
steady-state lateral acceleration levels below 0.1g are achievable in 
both types of equipment. Further, FRA notes that although there is no 
specific 0.1g limit in the Track Safety Standards, the roll angle 
requirement in Sec. 213.329 effectively restricts non-tilting passenger 
equipment to no more than six inches of cant deficiency and requires 
that tilting equipment be capable of limiting steady-state lateral 
accelerations to no more than 0.1g. This static lean test evaluates a 
vehicle's suspension system and tilt control system, if so equipped, in 
a static condition; whereas, paragraph (b) describes a limit on the 
steady-state lateral accelerations that are experienced by passengers 
under operating conditions. Paragraph (b) is a performance requirement 
concerning the actual dynamic operation of the suspension and tilt 
control systems. Amtrak's high-speed trainsets are designed with tilt 
control systems that compensate for part of the lateral accelerations 
that result from operating at speeds above the balance speed. If there 
were no car body tilt, a nine inch cant deficiency (nine inches of 
unbalance) would correspond to an equivalent lateral acceleration of 
0.15g. The tilt control systems would be expected to compensate for 70% 
of this acceleration, however, leaving a net acceleration of 0.05g to 
be experienced by a passenger.
    FRA believes that a limit of 0.1g for steady-state, car body 
lateral acceleration is consistent with U.S. rail industry practice. 
However, FRA recognizes that as stated in the final rule, compliance 
with the requirements of paragraph (b) must not only be demonstrated 
during the qualification testing of the equipment, but also continually 
for the operational life of the equipment. As a result, FRA has amended 
the final rule to distinguish between the steady-state lateral 
acceleration limit for qualification testing of the equipment and the 
limit for service operation of the equipment, in order to provide an 
operational tolerance level. As amended, paragraph (b) requires that 
steady-state, car body lateral acceleration be demonstrated not to 
exceed 0.1g at the maximum intended cant deficiency only during pre-
revenue service acceptance testing under Sec. 238.111 and Sec. 213.345 
of this chapter. FRA has introduced the phrase ``at the maximum 
intended cant deficiency'' to address the concern that, during pre-
revenue service acceptance testing, a slight increase in train speed or 
change in track geometry may result in an actual cant deficiency at a 
few locations above that which was intended. Such an increase in actual 
cant deficiency at these locations would result in a corresponding 
increase in steady-state lateral acceleration which may exceed 0.1g. In 
monitoring high-speed equipment, FRA's experience is that such isolated 
fluctuations in steady-state lateral acceleration caused by variances 
between the actual and intended cant deficiencies do not pose a larger 
safety concern. As amended, paragraph (b) also requires that steady-
state, car body lateral acceleration not exceed 0.12g when the 
equipment is in service. Because the higher 0.12g limit takes into 
account operational concerns such as unintended changes in cant 
deficiency, FRA has not added the phrase ``at the maximum intended cant 
deficiency.'' Overall, FRA believes that these amendments to paragraph 
(b) appropriately address the concern that the original requirements 
were too strict, while helping to ensure that passengers not experience 
undue steady-state lateral accelerations which could cause them to lose 
their balance and fall.
    FRA has also amended paragraph (b) to make clear that acceleration 
measurements shall be processed through a low-pass filter having a cut-
off frequency of 10 Hz. Processing car body acceleration data through a 
low-pass filter having a cut-off frequency of

[[Page 19985]]

10 Hz is consistent with the Track Safety Standards, and a low pass 
filter retains important information about track curvature. FRA has 
also amended the rule to define the term ``steady-state.'' Steady-state 
lateral acceleration shall be computed as the mathematical average of 
the accelerations in the body of a curve, between the spiral/curve 
points. In a compound curve, the average lateral acceleration shall be 
calculated over each curve segment.
    FRA has merged paragraph (d) of the final rule into paragraph (b) 
and changed the title of paragraph (b) to read, ``Car body 
accelerations.'' As paragraphs (b) and (d) of the final rule both 
established requirements for car body accelerations, FRA believes that 
having the requirements in separate paragraphs with separate titles was 
unnecessary and potentially confusing. Paragraph (d) of the final rule 
established limits for vertical acceleration, lateral acceleration, and 
the combination of lateral and vertical accelerations experienced by 
Tier II passenger equipment. As provided in the final rule, Tier II 
passenger equipment must be designed to meet these limits while 
traveling at the maximum operating speed over the intended route of the 
equipment.
    In its petition for reconsideration, Bombardier noted that the 
basis for the limits in paragraph (d) of the final rule appeared to 
have been FRA's experience with the ICE and X-2000 trainsets on 
Amtrak's Northeast Corridor (NEC) and that neither the ICE nor X-2000 
trainset could consistently meet the criteria as defined in the final 
rule because they exceeded the 0.3g peak-to-peak limit at revenue 
speeds at least 2-4 times per week. Bombardier further maintained that 
vehicle qualification tests conducted by FRA and Amtrak have 
demonstrated the impracticality of the 0.3g single event, peak-to-peak 
requirement. As an alternative to the requirements of the final rule, 
Bombardier recommended that car body accelerations be limited to the 
vehicle/track interaction safety limits defined in Sec. 213.333 at a 
speed up to 10 mph above the maximum operating speed. This approach, 
according to Bombardier, was proposed in the NPRM for the high-speed 
track safety standards and provides a margin of safety by requiring 
that the limits be met at a speed up to 10 mph above the maximum 
operating speed. Bombardier also recommended that car body acceleration 
limits be defined in terms of sustained oscillations rather than as 
single events, to ensure that operations not be unduly restricted for 
perturbations caused by track switches, etc.
    FRA makes clear that Tier II passenger equipment must demonstrate 
compliance with the requirements of former paragraph (d), now contained 
in paragraphs (b)(2) and (3), only during the pre-revenue service 
qualification testing of the equipment. These vertical and lateral car 
body acceleration limits are consistent with the limits contained in 
Sec. 213.345(b) of the Track Safety Standards for vehicle qualification 
testing. Under the Track Safety Standards, the vertical and lateral car 
body acceleration limits contained in Sec. 213.345(b) are more 
stringent than those specified in Sec. 213.333. However, like former 
Sec. 238.427(d), now Secs. 238.427(b)(2) and (3), compliance testing 
under Sec. 213.345 of the Track Safety Standards is required only at 
the vehicle qualification stage; whereas, under Sec. 213.333 of the 
Track Safety Standards, compliance testing is required monthly or 
yearly, as appropriate. FRA believes that the more stringent 
acceleration limits specified in Sec. 213.345(b) and Sec. 238.427(b)(2) 
are appropriate for system qualification testing and, as the equipment 
and track wear, those more restrictive limits should give way to the 
less restrictive limits specified in Sec. 213.333 for monitoring the 
safety of the system over its life.
    FRA notes that since paragraph (b)(2) considers a single event, car 
body acceleration to be a peak-to-peak value over a one second period, 
it should not matter whether the acceleration data is processed through 
a filter having a low-pass, cut-off frequency of 10 Hz or a band pass 
of 0.5 to 10 Hz. Further, the Track Safety Standards provide for the 
use of a low-pass filter having a cut-off frequency of 10 Hz to measure 
car body accelerations. As a result, FRA is amending the rule so that 
the acceleration limits be processed through a filter having a cut-off 
frequency of 10 Hz, consistent with the Track Safety Standards.
    Paragraph (c) Truck (hunting) acceleration. FRA is revising the 
title of this paragraph to more appropriately identify its 
requirements. The paragraph otherwise is unchanged.
    Paragraph (d) Overheat sensors. FRA is removing paragraph (e) of 
the final rule and redesignating it as paragraph (d). Original 
paragraph (d) of the final rule has been merged into (b), as noted 
above.

Section 238.429  Safety appliances

    This section contains the Tier II passenger equipment safety 
appliance requirements. In the final rule, FRA simplified and clarified 
how the Safety Appliance Standards contained in 49 CFR 231 and 49 
U.S.C. 20302(a) apply to Tier II passenger equipment, tailoring them 
specifically to this new and somewhat unconventional equipment. The 
final rule retained all of the requirements proposed in the NPRM, with 
one modification concerning sill steps.
    In its petition for reconsideration, Amtrak noted a concern with 
paragraph (f)(3) of this section, which addresses safety appliance 
requirements in the case where two high-speed trainsets are coupled 
together. Amtrak stated that the requirements of this paragraph will 
prevent its high-speed trainset fleet from developing its full design 
potential to use signal paths and station platform time. Paragraph 
(f)(3) of the final rule stated that if two trainsets are coupled to 
form a single train that is not semi-permanently coupled (i.e., that is 
coupled by an automatic coupler), the automatically coupled ends shall 
be equipped with hand brakes, sill steps, end handholds, and side 
handholds that meet the requirements contained in 49 CFR 231.14. 
However, if the trainsets are semi-permanently coupled, these safety 
appliances are not required. See 64 FR 25688.
    FRA understands and agrees with Amtrak's concern that the final 
rule would essentially negate the railroad's ability to connect two 
currently designed high-speed trainsets together to provide the 
passenger-carrying capacity of two high-speed trains running on one 
schedule. After reviewing the design of the currently operating high-
speed trainsets, FRA has determined that the requirements contained in 
paragraph (f)(3) regarding handbrakes, sill steps, and side handholds 
are either not appropriate or are unnecessary based on the design of 
the high-speed trainsets operated by Amtrak. The design of the power 
cars utilized in the high-speed trainsets does not require an 
individual to mount a sill step in order to couple and uncouple the 
trainsets. The coupling or uncoupling of the trainsets can be 
accomplished from ground level without the necessity of an individual 
going between the equipment. Thus, because the sill step is unnecessary 
there is no reason to equip the cars with side handholds as the purpose 
of these handholds would be to provide an individual standing on the 
sill step a secure place to hold on to the equipment. In addition, the 
requirement to have the ends of the trainsets equipped with a hand 
brake is misplaced. Paragraph (b) of this section already requires a 
semi-permanently coupled trainset to be equipped with a parking or hand 
brake capable of

[[Page 19986]]

holding the train on a three percent grade.
    Although FRA agrees that it is unnecessary for paragraph (f)(3) to 
require that the ends of the trainsets be equipped with hand brakes, 
sill steps, and side handholds for the reasons noted above, FRA does 
believe that an end handhold is necessary to ensure the safety of an 
individual while uncoupling the trainsets. An end handhold provides a 
secure fixture for individuals who are required to bend over the nose 
of the equipment to accomplish the coupling or uncoupling of the 
equipment. Consequently, FRA is amending paragraph (f)(3) of the final 
rule to require that when two trainsets are coupled together to form a 
single train that is not semi-permanently coupled, the automatically 
coupled ends must be equipped with at least an end handhold that meets 
the basic design and structural standards contained in this section.
    Amtrak's petition for reconsideration also noted its belief that 
safety appliances for its high-speed trainsets would be addressed by an 
FRA approval letter following a sample car inspection. A sample car 
inspection is an inspection FRA performs prior to the placement of a 
car in service to determine whether FRA would take exception to the 
safety appliance arrangement if the car were in service. FRA does not 
issue an ``approval'' letter as such but would inform the car builder 
or railroad as appropriate whether FRA would take exception to the 
safety appliance arrangement. FRA has performed a safety appliance 
inspection of Amtrak's high-speed trainsets and has been in discussions 
with Amtrak and the equipment manufacturer to address issues concerning 
the safety appliance arrangement.

Section 238.435  Interior Fittings and Surfaces

    This section contains requirements for Tier II passenger equipment 
interior fittings and surfaces. Once survivable space is ensured by 
vehicle structural strength and crash energy management features, the 
design of interior features and surfaces becomes an important factor in 
preventing or mitigating occupant injuries resulting from collisions or 
derailments.
    In its petition for reconsideration, Amtrak believed that paragraph 
(c) does not include a requirement for the seat attachment to resist a 
longitudinal force of 8g and requested that such a requirement be 
added. FRA notes that paragraphs (a) through (c) contain requirements 
for the design of passenger car seats and the strength of their 
attachments to the car body. Specifically, paragraph (c) contains 
lateral and vertical acceleration loading requirements for purposes of 
ensuring sufficient seat attachment strength. The longitudinal loading 
requirement is specified in paragraph (a), which states: ``Each seat 
back and seat attachment in a passenger car shall be designed to 
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 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.'' See 64 
FR 25688. As a result, no modification of the final rule is necessary 
to address Amtrak's concern; the requirement is already contained in 
the rule.
    FRA is amending paragraph (i) to correct a grammatical error by 
substituting the word ``are'' for the word ``is'' in a phrase in the 
first sentence.

Section 238.437  Emergency Communication

    This section requires an emergency communication system with back-
up power within a Tier II train. Following publication of the May 12, 
1999 final rule, an issue arose concerning the accessibility of 
emergency communication transmission units. As stated in the final 
rule, emergency communication transmission units are required to be 
accessible to both passengers and crewmembers. 64 FR 25689. However, 
following publication of the final rule, FRA learned from Amtrak that 
the emergency communication system in its high-speed trainsets was not 
accessible to passengers, but rather was designed to allow the train 
crew to provide evacuation and other instructions to passengers in an 
emergency situation consistent with the NPRM's discussion of the 
emergency communication proposed requirement. See 62 FR 49783.
    FRA acknowledges that in the NPRM the proposed rule text concerning 
emergency communication requirements was silent as to the accessibility 
of the communication system to passengers. However, FRA had believed 
the requirement for passenger accessibility to be implicit from the 
proposal that clear and understandable operating instructions be posted 
at or near each transmission location. See 62 FR 49820. The final rule 
made clear FRA's intent that the emergency communication system be 
accessible to passengers and be more than a one-way public address 
system from the crew to the passengers. FRA intended that such a system 
allow passengers to communicate with the train crew so as to bring to 
the crew's attention an emergency situation and otherwise allow 
passengers to communicate directly with the crew in an emergency. 
Amtrak has subsequently made accessible to passengers the emergency 
communication system transmission locations on its high-speed 
trainsets, and the system is now in compliance in this regard.
    Following publication of the final rule, FRA also learned from 
Amtrak that not all passenger cars in its high-speed trainsets have 
emergency communication system transmission locations at each end of 
the cars. The cafe car in each trainset actually has three transmission 
locations but only one at an end of the car, in the only vestibule in 
the car. The other two locations in the car are in the galley and the 
crew office. Further, both the first class and end coach cars have only 
one transmission location--that at a single end of each car in the only 
vestibule in the cars. Amtrak has stated that it would be difficult to 
install transmission locations at the non-vestibule ends of these cars 
so that both ends of the cars are equipped with an emergency 
communication system transmission station. These cars exceed 45 feet in 
length and would be required by the May 12, 1999 final rule to have two 
emergency communication transmission locations, one at each end of each 
car, adjacent to the car's end doors.
    In recognition that Amtrak's high-speed trainsets were in 
development in advance of both the proposed and final rules, FRA is 
amending paragraph (a) so that only one emergency communication 
transmission location is required in a passenger car ordered prior to 
May 12, 1999. For all other passenger cars exceeding 45 feet in length 
ordered on or after May 12, 1999, the rule will continue to require 
emergency communication transmission locations at each end of the cars.

Section 238.439  Doors

    This section contains the requirements for doors on Tier II 
passenger cars. In the final rule, FRA reserved paragraph (g) for door 
exit marking and operating instruction requirements, which were 
specified in the Passenger Train Emergency Preparedness final rule, see 
63 FR 24630. FRA intended in Phase II of the rulemaking to consider 
integrating into part 238 the door exit marking and operating 
instruction requirements specified in the Passenger Train Emergency 
Preparedness final rule, as well as consider revising the

[[Page 19987]]

requirements as necessary. While FRA still intends to examine these 
requirements in Phase II, FRA has in the interim inserted a reference 
to the marking and instruction requirements specified in 49 CFR 
239.107(a) to make clear that there are marking and instruction 
requirements and identify where to locate these requirements.

Section 238.443  Headlights

    This section contains requirements for headlights on Tier II power 
cars. In its petition for reconsideration, Amtrak noted that the power 
cars of its high-speed trainsets have two headlights, each headlight 
focused 1,000 feet ahead of the power cars. Amtrak was concerned 
whether its headlights complied with the requirements of this section. 
The final rule, as adopted without comment from the NPRM, required that 
a power car have at least two headlights producing no less than 200,000 
candela-one headlight focused to illuminate a person standing between 
the rails 1,500 feet ahead of the power car under clear weather 
conditions, and the other 800 feet ahead under the same circumstances. 
64 FR 25689. (For comparison, under Sec. 229.125(a), a Tier I 
locomotive used in road service would be required to have one headlight 
producing no less than 200,000 candela arranged to illuminate a person 
at least 800 feet ahead and in front of the headlight.)
    FRA explained in the preamble to the final rule that a headlight 
must be directed farther in front of a Tier II passenger train to 
illuminate a person than is currently required for existing equipment 
under 49 CFR 229.125(a). See 64 FR 25642. Because a Tier II passenger 
train will travel distances more quickly than a Tier I passenger train, 
the train operator will have less time to react to obstacles ahead of 
the train and will thereby require earlier awareness of these obstacles 
through a headlight directed farther in front of the train. In 
addition, a headlight focused farther in front of the train will 
provide earlier awareness to persons who may be in the path of the 
train.
    Addressing Amtrak's concern, FRA understands that the light emitted 
from the headlights on Amtrak's high-speed trainsets is directed at 
such an angle that each headlight can simultaneously illuminate a 
person 800 and 1,500 feet ahead of the trainsets. FRA believes that 
these headlights are consistent with the final rule and satisfy FRA's 
safety concerns. For clarity, however, FRA is amending this section to 
replace the phrase ``focused to illuminate'' with ``arranged to 
illuminate,'' as used in 49 CFR 229.125(a) and (b). This amendment 
makes clear that even if the headlight is not specifically focused at a 
person 800 feet or 1,500 feet ahead of the trainset as the case may be, 
the headlight is in compliance if it is arranged to illuminate a person 
800 feet or 1,500 feet ahead of the trainset, or both. Due to concerns 
regarding the handling of a power car with a defective headlight, 
discussed below, FRA has divided this section into two paragraphs with 
the clarifications discussed above contained in paragraph (a) of the 
section.
    Amtrak also raised concern in its petition for reconsideration that 
the failure of a single bulb in one of the two headlights on its power 
cars would seemingly result in the trainset being in violation. Amtrak 
noted that service delays could result if the headlights on Tier II 
power cars were required to be repaired immediately upon being found 
defective.
    FRA did not intend that a failure of a headlight on a Tier II power 
car be handled any more restrictively than the failure of a headlight 
on a Tier I locomotive. Under 49 CFR 229, a Tier I locomotive is 
permitted to continue in service with a defective headlight to the 
earlier of either the next calendar day inspection or the nearest 
forward point where the repairs necessary to bring it into compliance 
can be made. See 49 CFR 229.9(b). However, since headlights on Tier I 
locomotives are governed by part 229, which requires only one front 
headlight on such vehicles, FRA was in fact inclined to allow 
additional flexibility in using Tier II power cars with a defective 
headlight since Tier II power cars are required to have two headlights.
    As the requirements for headlights on Tier II power cars are 
contained in 49 CFR 238, the provisions regarding the movement of non-
running gear defects would apply to such headlights when they become 
defective. Thus, despite the concern raised by Amtrak in its petition, 
a power car with a defective headlight may continue to be used in 
passenger service until the power car's next calendar day mechanical 
inspection. FRA's intent when drafting the final rule was to permit a 
Tier II power car with one of its required headlights defective to 
continue to be used until its next calendar day mechanical inspection 
if: the car is tagged; the operation is deemed safe by a qualified 
individual; and operating restrictions are imposed, as appropriate. 
However, FRA did not intend to afford this broad latitude in using Tier 
II power cars when both of the required headlights become defective. In 
such instances, FRA intended that the power car's continued use be 
governed by restrictions similar to those imposed on a Tier I 
locomotive when its only required headlight becomes defective.
    Therefore, FRA has added paragraph (b) to this section to make 
clear that a Tier II power car with one defective headlight is to be 
handled as a non-running gear defect in accordance with the movement 
for repair provisions contained in Sec. 238.17. Thus, if one of the 
headlights on a Tier II power car becomes defective en route, the power 
car may continue in passenger service until the power car's next 
calendar day mechanical inspection, provided it has been properly 
inspected and tagged under Sec. 238.17(c). Paragraph (b) makes clear 
that when both headlights on a Tier II power car become defective, the 
power car may continue in passenger service only to the nearest forward 
location where the repairs necessary to bring the power car into 
compliance can be made or to the power car's next calendar day 
mechanical inspection, whichever occurs first. These are general 
requirements that govern the movement for repair of a Tier I locomotive 
with a defective headlight and are equally applicable to a Tier II 
power car with a similar non-complying condition. FRA has also amended 
Sec. 238.503(f) of this part for consistency. Section 238.503(f) 
provides that the movement of defective Tier II passenger equipment 
other than with power brake defects is governed by the requirements 
contained in Sec. 238.17 of this part.
Subpart F--Inspection, Testing, and Maintenance Requirements for Tier 
II Passenger Equipment.

Section 238.503  Inspection, Testing, and Maintenance Requirements

    Paragraph (f) of this section contains a reference to the 
requirements contained in Sec. 238.17 to indicate that those provisions 
also apply to the movement of Tier II passenger equipment with a 
condition not in compliance with part 238, excluding power brake 
defects. As explained in the preceding discussion of headlight 
requirements for Tier II power cars, FRA has amended this section to 
make clear that the provisions contained in Sec. 238.443(b) govern the 
movement of a power car with a headlight not in compliance with that 
section. This amendment is necessary because FRA had previously 
excluded Tier II power cars from the requirements for headlights 
contained in 49 CFR 229.125(a) and (b) that are otherwise applicable to 
other locomotives. See 49 CFR 229.3(c); 64 FR 25659.

[[Page 19988]]

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

Section 238.603  Safety Planning Requirements

    FRA has amended paragraphs (a)(3) and (b)(4) principally by 
substituting the term ``MIL-STD-882'' for ``MIL-STD-882C.'' As 
explained in the discussion of Sec. 238.5 above, the final rule cited 
MIL-STD-882C as a formal safety methodology to guide railroads in 
eliminating or reducing the risk posed by each hazard identified to an 
acceptable level. MIL-STD-882 was updated on February 10, 2000, and 
designated as MIL-STD-882D, superceding MIL-STD-882C. These amendments 
make clear that a railroad may use MIL-STD-882D. The amendments also 
make clear that railroads may continue to use other formal safety 
methodologies to guide them in eliminating or reducing safety hazards.

Appendix A to Part 238--Schedule of Civil Penalties

    Appendix A to this part contains the schedule of civil penalties to 
be used in connection with this part. Conforming changes are being made 
to the entries for Sec. 238.105, ``Train electronic hardware and 
software safety,'' and Sec. 238.427, ``Suspension system,'' based on 
changes to the final rule as discussed above.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This response to petitions for reconsideration of the final rule 
has been evaluated in accordance with Executive Order 12866 and DOT 
policies and procedures. Although the final rule met the criteria for 
being considered a significant rule under these policies and 
procedures, the amendments contained in this response to petitions for 
reconsideration of the final rule are not considered significant in the 
same way because they generally clarify requirements currently 
contained in the final rule or allow for greater flexibility in 
complying with the rule. These amendments and clarifications will, 
overall, reduce the cost of complying with the rule. However, this cost 
reduction has not specifically been calculated. FRA believes that these 
amendments and clarifications will have a minimal net effect on FRA's 
original analysis of the costs and benefits associated with the final 
rule.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of rules to assess their impact on small entities. 
FRA certifies that this response to petitions for reconsideration does 
not have a significant impact on a substantial number of small 
entities. Because the amendments contained in this document generally 
clarify requirements currently contained in the final rule or allow for 
greater flexibility in complying with the rule, FRA has concluded that 
there are no substantial economic impacts on small units of government, 
businesses, or other organizations.

Paperwork Reduction Act

    This response to petitions for reconsideration of the final rule 
does not change the information collection requirements contained in 
the original final rule.

Environmental Impact

    FRA has evaluated this response to petitions for reconsideration of 
the final rule in accordance with its ``Procedures for Considering 
Environmental Impacts'' (64 FR 28545; May 26, 1999) as required by the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.), other 
environmental statutes, Executive Orders, and related regulatory 
requirements. FRA has determined that this document is not a major FRA 
action requiring the preparation of an environmental impact statement 
or environmental assessment because it is categorically excluded from 
detailed environmental review pursuant to section 4(c) of FRA's 
Procedures.

Federalism Implications

    Executive Order 13132 provides in part that, to the extent 
practicable, no agency shall promulgate any regulation that has 
federalism implications, that imposes substantial direct compliance 
costs on State and local governments, and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local officials 
early in the process of developing the proposed regulation. See 64 FR 
43255; Aug. 10, 1999. FRA believes that this regulatory action will not 
have federalism implications that impose substantial direct compliance 
costs on State and local governments, and that this action is in 
compliance with Executive Order 13132. The amendments contained in this 
response to petitions for reconsideration of the final rule generally 
clarify requirements currently contained in the final rule or allow for 
greater flexibility in complying with the rule.
    FRA does note that States involved in the State Participation 
Program, pursuant to 49 CFR 212, may incur minimal costs associated 
with the training of their inspectors involved in the enforcement of 
the rule. Nonetheless, representatives of States were consulted in the 
development of the rule, in particular through the participation of the 
American Association of State Highway and Transportation Officials in 
the Passenger Equipment Safety Standards Working Group. See 64 FR 
25541. FRA also considered and addressed comments on the rulemaking 
from the New York Department of Transportation, North Carolina 
Department of Transportation, Washington State Department of 
Transportation, and the State of Vermont Agency of Transportation.
    In any event, Federal preemption of a State or local law occurs 
automatically as a result of the statutory provision contained at 49 
U.S.C. 20106 when FRA issues a regulation covering the same subject 
matter as a State or local law unless the State or local law is 
designed to reduce an essentially local safety hazard, is not 
incompatible with Federal law, and does not place an unreasonable 
burden on interstate commerce. See 49 CFR 238.13. It should be noted 
that the potential for preemption also exists under various other 
statutory and constitutional provisions, including the Locomotive 
Inspection Act (now codified at 49 U.S.C. 20701-20703) and the Commerce 
Clause of the United States Constitution.

Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355; May 22, 2001. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) that is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has evaluated 
this response to petitions for reconsideration of the final rule in

[[Page 19989]]

accordance with Executive Order 13211, and has determined that this 
regulatory action is not a ``significant energy action'' within the 
meaning of the Executive Order.

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. This response to petitions for 
reconsideration of the final rule will not result in the expenditure, 
in the aggregate, of $100,000,000 or more in any one year, and thus 
preparation of a statement was not required.

List of Subjects

49 CFR Part 216

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

49 CFR Part 238

    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. 20102-20104, 20107, 20111, 20133, 20701-
20702, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.

    2. Section 216.17 is amended by revising it to read as follows:


Sec. 216.17  Appeals.

    (a) Upon receipt of a Special Notice prescribed in Secs. 216.11, 
216.13, 216.14, or 216.15, a railroad may appeal the decision of the 
Inspector to the FRA Regional Administrator for the region in which the 
notice was given. The appeal shall be made by letter or telegram. The 
FRA Regional Administrator assigns an inspector, other than the 
inspector from whose decision the appeal is being taken, to reinspect 
the railroad freight car, locomotive, railroad passenger equipment, or 
track. The reinspection will be made immediately. 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. If on reinspection the decision 
of the original inspector is sustained, the FRA Regional Administrator 
notifies the railroad that the appeal has been denied.
    (b) A railroad whose appeal to the FRA Regional Administrator has 
been denied may, within thirty (30) days from the denial, appeal to the 
Administrator. After affording an opportunity for informal oral 
hearing, the Administrator may affirm, set aside, or modify, in whole 
or in part, the action of the FRA Regional Administrator.
    (c) The requirements of a Special Notice issued under this subpart 
shall remain in effect and be observed by a railroad pending appeal to 
the FRA Regional Administrator or to the Administrator.

    3. Section 216.23 is amended by revising it to read as follows:


Sec. 216.23  Consideration of recommendation.

    Upon receipt of a Notice of Track Conditions issued under 
Sec. 216.21, the FRA Regional Administrator prepares a recommendation 
to the Administrator concerning the issuance of an Emergency order 
removing the affected track from service. In preparing this 
recommendation, the FRA Regional Administrator considers all written or 
other material bearing on the condition of the track received from the 
railroad within three (3) calendar days of the issuance of the Notice 
of Track Conditions and also considers the report of the FRA Regional 
Track Engineer.

PART 238--[AMENDED]

    4. The authority citation for part 238 is revised to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20133, 20141, 20302-20303, 
20306, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

Subpart A--General

    5. Section 238.1 is amended by revising paragraph (c) to read as 
follows:


Sec. 238.1  Purpose and scope.

* * * * *
    (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 
January 1, 2002.
    (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 apply beginning 
September 9, 1999.

    6. Section 238.5 is amended by revising the definitions of In 
service and Tourist, scenic, historic, or excursion operations; 
removing the definitions MIL-STD-882C and Monocoque; and adding the 
definitions MIL-STD-882 and Semi-monocoque to read as follows:


Sec. 238.5  Definitions.

* * * * *
    In service, when used in connection with passenger equipment, 
means:
    (1) Passenger equipment subject to this part that is in passenger 
or revenue service in the United States; and
    (2) All other passenger equipment subject to this part in the 
United States, unless the passenger equipment:
    (i) Is being handled in accordance with Secs. 238.15, 238.17, 
238.305(d), 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

[[Page 19990]]

    (iv) Has been delivered in interchange but has not been accepted by 
the receiving railroad.
* * * * *
    MIL-STD-882 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.
* * * * *
    Semi-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.
* * * * *
    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. Train movements of new passenger equipment 
for demonstration purposes are not tourist, scenic, historic, or 
excursion operations.
* * * * *

    7. Section 238.15 is amended by revising paragraph (e)(2) to read 
as follows:


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

* * * * *
    (e) * * *
    (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 speed of the train shall be restricted to 20 mph or less; 
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.
* * * * *

Subpart B--Safety Planning and General Requirements

    8. Section 238.105 is amended by revising it to read as follows:


Sec. 238.105  Train electronic hardware and software safety.

    The requirements of this section apply to electronic 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 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 hardware and software system functions as intended.
    (c) The hardware and software safety program shall include a 
description of how the following will be accomplished, achieved, 
carried out, or implemented to ensure safety and reliability:
    (1) The hardware and software design process;
    (2) The hardware and software design documentation;
    (3) The hardware and software hazard analysis;
    (4) Hardware and software safety reviews;
    (5) Hardware and software hazard monitoring and tracking;
    (6) Hardware and software integration safety testing; and
    (7) Demonstration of overall hardware and software system safety as 
part of the pre-revenue service testing of the equipment.
    (d) (1) Hardware and software that controls or monitors a train's 
primary braking system shall either:
    (i) Fail safely by initiating a full service brake application in 
the event of a hardware or software failure that could impair the 
ability of the engineer to apply or release the brakes; or
    (ii) Access to direct manual control of the primary braking system 
(both service and emergency braking) shall be provided to the engineer.
    (2) Hardware and software that controls or monitors the ability to 
shut down a train's main power and fuel intake system shall either:
    (i) Fail safely by shutting down the main power and cutting off the 
intake of fuel in the event of a hardware or software failure that 
could impair the ability of the train crew to command that electronic 
function; or
    (ii) The ability to shut down the main power and fuel intake by 
non-electronic means shall be provided to the train crew.
    (e) The railroad shall comply with the elements of its hardware and 
software safety program that affect the safety of the passenger 
equipment.

    9. Section 238.109 is amended by revising paragraph (b)(6) to read 
as follows:


Sec. 238.109  Training, qualification, and designation program.

* * * * *
    (b) * * *
    (6) Require all employees and contractors to pass either a written 
or an oral examination covering the equipment and tasks for which they 
are responsible that are required by this part as well as the specific 
Federal regulatory requirements contained in this part related to 
equipment and tasks for which they are responsible;
* * * * *

    10. Section 238.113 is amended by revising paragraphs (a)(3), (b) 
and (c) to read as follows:


Sec. 238.113  Emergency window exits.

    (a) * * *
    (3) Each emergency window exit shall be designed to permit rapid 
and easy removal from the inside of the car 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 an 
unobstructed opening with minimum dimensions of 26 inches horizontally 
by 24 inches vertically. A seat back is not an obstruction if it can be 
moved away from the window opening without requiring the use of a tool 
or other implement.
    (c) Emergency window exits shall be marked, and instructions 
provided for their use, as required by Sec. 223.9(d) of this chapter.

Subpart C--Specific Requirements for Tier I Passenger Equipment

    11. Section 238.201 is amended by revising paragraph (a)(2) to read 
as follows:


Sec. 238.201  Scope/alternative compliance.

    (a) * * *
    (2) The structural standards of this subpart (Sec. 238.203-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:

[[Page 19991]]

    (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.
* * * * *

    12. Section 238.203 is amended by revising paragraph (h)(1) to read 
as follows:


Sec. 238.203  Static end strength.

* * * * *
    (h) Disposition of petitions.
    (1) If the Administrator finds it necessary or desirable, FRA will 
conduct a hearing on a petition in accordance with the procedures 
provided in Sec. 211.25 of this chapter.
* * * * *

    13. Section 238.205 is amended by revising paragraph (b) to read as 
follows:


Sec. 238.205  Anti-climbing mechanism.

* * * * *
    (b) Except for a cab car or an MU locomotive, 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 both an upward and 
downward vertical force of 200,000 pounds without failure.

    14. Section 238.211 is amended by revising paragraphs (a)(1)(i) and 
(a)(2) to read as follows:


Sec. 238.211  Collision posts.

    (a) * * *
    (1) * * *
    (i) Two full-height collision posts, located at approximately the 
one-third points laterally, at each end. 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
* * * * *
    (2) The requirements of this paragraph do not apply to unoccupied 
passenger equipment operating in a passenger train, or to the rear end 
of a locomotive if the end is unoccupied by design.
* * * * *

    15. Section 238.219 is amended by revising it to read as follows:


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 the following 
individually applied loads: 2g vertically on the mass of the truck; and 
250,000 pounds in any horizontal direction on the truck, along with the 
resulting vertical reaction to this load. 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 
component attached to the truck by design.

    16. Section 238.223 is amended by revising it to read as follows:


Sec. 238.223  Locomotive fuel tanks.

    Locomotive fuel tanks shall comply with either the following or an 
industry standard providing at least an equivalent level of safety if 
approved by FRA under Sec. 238.21:
    (a) External fuel tanks. External locomotive fuel tanks shall 
comply with the requirements contained in Appendix D to this part.
    (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 5/16-inch thick steel plate with a yield strength of 
25,000 pounds per square inch. 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.

    17. Section 238.235 is amended by revising paragraph (a)(3) and (d) 
to read as follows:


Sec. 238.235  Doors.

    (a) * * *
    (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. If the door is dual-leafed, only one 
of the door leafs is required to respond to the manual override device.
* * * * *
    (d) Door exits shall be marked, and instructions provided for their 
use, as required by Sec. 239.107(a) of this chapter.

    18. Section 238.237 is amended by revising the introductory text of 
paragraph (d) and revising paragraph (d)(1)(i) as follows:


Sec. 238.237  Automated monitoring.

* * * * *
    (d) The following procedures apply if the alerter or deadman 
control fails en route and causes the locomotive to be in non-
compliance with paragraph (a):
    (1)(i) A second person qualified on the signal system and trained 
to apply the emergency brake shall be stationed in the locomotive cab; 
or
* * * * *

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

    19. Section 238.315 is amended by revising paragraphs (c) and 
(f)(3) to read as follows:


Sec. 238.315  Class IA brake test.

* * * * *
    (c) A Class IA brake test may be performed at a shop or yard site 
and is not required to be repeated at the first passenger terminal if 
the train remains on a source of compressed air and:
    (1) The train remains in the custody of the train crew; or
    (2) The train crew receives notice that the Class IA brake test has 
been performed.
* * * * *
    (f) * * *
    (3) For MU locomotives that utilize an electric signal to 
communicate a service brake application and only a pneumatic signal to 
propagate an emergency brake application, the emergency brake 
application functions as intended.
* * * * *

    20. Section 238.317 is amended by revising paragraph (d)(2) to read 
as follows:


Sec. 238.317  Class II brake test.

* * * * *
    (d) * * *
    (2) For MU locomotives that utilize an electric signal to 
communicate a service brake application and only a pneumatic signal to 
propagate an emergency brake application, the emergency brake 
application functions as intended.
* * * * *

Subpart E-Specific Requirements for Tier II Passenger Equipment

    21. Section 238.411 is amended by revising paragraph (b)(1) to read 
as follows:


Sec. 238.411  Rear end structures of power car cabs.

* * * * *

[[Page 19992]]

    (b) * * *
    (1) A horizontal, longitudinal shear load of 500,000 pounds at its 
joint with the underframe without exceeding the ultimate strength of 
the joint; and
* * * * *

    22. Section 238.419 is amended by revising paragraph (a) to read as 
follows:


Sec. 238.419  Truck-to-car-body and truck component attachment.

    (a) The ultimate strength of the truck-to-car-body attachment for 
each unit in a train shall be sufficient to resist without failure the 
following individually applied loads: a vertical force equivalent to 2g 
acting on the mass of the truck; and a force of 250,000 pounds acting 
in any horizontal direction on the truck, along with the resulting 
vertical reaction to this load.
* * * * *

    23. Section 238.421 is amended by revising the introductory text of 
paragraph (b), revising paragraphs (b)(1) and (2), revising the 
introductory text of paragraph (c), and revising paragraphs (c)(1) and 
(3)(ii) to read as follows:


Sec. 238.421  Glazing.

* * * * *
    (b) Particular end-facing exterior glazing requirements. Each end-
facing exterior window in a passenger car and a power car cab shall 
also, in the orientation in which it is installed in the car:
    (1) Resist the impact of a 12-pound solid steel sphere traveling 
(i) at the maximum speed at which the car will operate (ii) at an 
impact angle no less severe than horizontal to the car, with no 
penetration or spall. An impact angle that is perpendicular (90 
degrees) to the window's surface shall be considered the most severe 
impact angle for purposes of this requirement; and
    (2) Demonstrate anti-spalling performance by the use of a 0.001-
inch thick aluminum witness plate, placed 12 inches from the window's 
surface during all impact tests. The witness plate shall contain no 
marks from spalled glazing particles after any impact test; and
* * * * *
    (c) Passenger equipment ordered prior to May 12, 1999. Each 
exterior window in passenger equipment ordered prior to May 12, 1999, 
may comply with the following glazing requirements in lieu of the 
requirements specified in paragraphs (a) and (b) of this section:
    (1) Each end-facing exterior window shall, in the orientation in 
which it is installed in the vehicle, resist the impact of a 12-pound 
solid steel sphere traveling (i) at the maximum speed at which the 
vehicle will operate (ii) at an impact angle no less severe than 
horizontal to the vehicle, with no penetration or spall. An impact 
angle that is perpendicular to the window's surface shall be considered 
the most severe impact angle for purposes of this requirement.
* * * * *
    (3) * * *
    (i) * * *
    (ii) Demonstrate anti-spalling performance by the use of a 0.002-
inch thick aluminum witness plate, placed 12 inches from the window's 
surface during all impact tests. The witness plate shall contain no 
marks from spalled glazing particles after any impact test; and
* * * * *

    24. Section 238.427 is amended by removing paragraph (e), and by 
revising paragraph (b), revising the heading of paragraph (c), and 
revising paragraph (d) to read as follows:


Sec. 238.427  Suspension system.

* * * * *
    (b) Car body accelerations. (1) A passenger car shall not operate 
under conditions that result in a steady-state lateral acceleration 
greater than 0.12g as measured parallel to the car floor inside the 
passenger compartment. During pre-revenue service acceptance testing of 
the equipment under Sec. 238.111 and Sec. 213.345 of this chapter, a 
passenger car shall demonstrate that steady-state lateral acceleration 
does not exceed 0.1g at the maximum intended cant deficiency.
    (2) While traveling at the maximum operating speed over the 
intended route, the train suspension system shall be designed to:
    (i) Limit the vertical acceleration, as measured by a vertical 
accelerometer mounted on the car floor, to no greater than 0.55g single 
event, peak-to-peak over a one second period;
    (ii) Limit lateral acceleration, as measured by a lateral 
accelerometer mounted on the car floor, to no greater than 0.3g single 
event, peak-to-peak over a one second period; and
    (iii) Limit the combination of lateral acceleration (aL) 
and vertical acceleration (aV) occurring over a one second 
period as expressed by the square root of (aL\2\ 
+aV\2\) to no greater than 0.6g, where aL may not 
exceed 0.3g and aV may not exceed 0.55g. Compliance with the 
requirements of paragraph (b)(2) shall be demonstrated during the pre-
revenue service acceptance testing of the equipment required under 
Sec. 238.111 and Sec. 213.345 of this chapter.
    (3) For purposes of this paragraph:
    (i) Car body acceleration measurements shall be processed through a 
filter having a cut-off frequency of 10 Hz; and
    (ii) Steady-state lateral acceleration shall be computed as the 
mathematical average of the accelerations in the body of a curve, 
between the spiral/curve points. In a compound curve, steady-state 
lateral acceleration shall be measured separately for each curve 
segment.
    (c) Truck (hunting) acceleration. * * *
    (d) Overheat sensors. Overheat sensors for each wheelset journal 
bearing shall be provided. The sensors may be placed either onboard the 
equipment or at reasonable intervals along the railroad's right-of-way.

    25. Section 238.429 is amended by revising paragraph (f)(3) to read 
as follows:


Sec. 238.429  Safety appliances.

* * * * *
    (f) * * *
    (3) If two trainsets are coupled to form a single train that is not 
semi-permanently coupled (i.e., that is coupled by an automatic 
coupler), the automatically coupled ends shall be equipped with an end 
handhold that is located and installed so that an individual can safely 
couple and uncouple the trainsets. The end handhold shall be not more 
than 16 inches from each side of the car and shall extend the remaining 
length of the end of the car. (If the equipment is designed with a 
tapered nose, the side of the car shall be determined based on the 
outer dimension of the tapered nose where the end handhold is 
attached.) The end handhold shall also meet the mechanical strength and 
design requirements contained in paragraphs (c), (d)(3), and (d)(6) of 
this section. If the trainsets are semi-permanently coupled, this 
safety appliance is not required.
* * * * *

    26. Section 238.435 is amended by revising paragraph (i) to read:


Sec. 238.435  Interior fittings and surfaces.

* * * * *
    (i) 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 are 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

[[Page 19993]]

with the requirements of this section, such testing shall be conducted 
in a similar manner.

    27. Section 238.437 is amended by revising paragraph (a) to read as 
follows:


Sec. 238.437  Emergency communication.

* * * * *
    (a) Except as further specified, transmission locations at each end 
of each passenger car, adjacent to the car's end doors, and accessible 
to both passengers and crewmembers without requiring the use of a tool 
or other implement. If the passenger car does not exceed 45 feet in 
length, or if the passenger car was ordered prior to May 12, 1999, only 
one transmission location is required;
* * * * *

    28. Section 238.439 is amended by revising paragraph (g) to read as 
follows:


Sec. 238.439  Doors.

* * * * *
    (g) Door exits shall be marked, and instructions provided for their 
use, as required by Sec. 239.107(a) of this chapter.
    29. Section 238.433 is amended by revising it to read as follows:


Sec. 238.443  Headlights.

    (a) Each power car shall be equipped with at least two headlights. 
Each headlight shall produce no less than 200,000 candela. One 
headlight shall be arranged to illuminate a person standing between the 
rails 800 feet ahead of the power car under clear weather conditions. 
The other headlight shall be arranged to illuminate a person standing 
between the rails 1,500 feet ahead of the power car under clear weather 
conditions.
    (b) A power car with a headlight not in compliance with the 
requirements of paragraph (a) of this section shall be moved in 
accordance with the following:
    (1) If one of the headlights is defective, the defect shall be 
considered a non-running gear defect subject to the provisions 
contained in Sec. 238.17 of this part.
    (2) If both headlights are defective, the power car shall be 
inspected and tagged in accordance with the requirements contained in 
Sec. 238.17(c) relating to non-running gear defects. The power car may 
continue to be used in passenger service only to the nearest forward 
location where the repairs necessary to bring the power car into 
compliance can be made or to the power car's next calendar day 
mechanical inspection, whichever occurs first.
    30. Figure 2 to subpart E is revised to read as follows:

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[[Page 19994]]

[GRAPHIC] [TIFF OMITTED] TR23AP02.006

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Subpart F--Specific Requirements for Tier II Passenger Equipment

    31. Section 238.503 is amended by revising paragraph (f) to read as 
follows:


Sec. 238.503  Inspection, testing, and maintenance requirements.

* * * * *
    (f) Movement of trains with other defects. The movement of a train 
with a defect other than a power brake defect shall be conducted in 
accordance with Sec. 238.17, with the following exceptions:
    (1) The movement of a Tier II power car with a non-complying 
headlight shall be conducted in accordance with Sec. 238.443(b) of this 
part; and
    (2) When a failure of a secondary brake on a Tier II passenger 
train occurs en route, that train may remain in service until its next 
scheduled calendar day Class I brake test equivalent at a speed no 
greater than the maximum safe operating speed demonstrated through 
analysis and testing for braking with the friction brake alone. The 
brake system shall be restored to 100 percent operation before the 
train departs that inspection location.
* * * * *

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

    32. Section 238.603 is amended by revising paragraphs (a)(3) and 
(b)(4) to read as follows:


Sec. 238.603  Safety planning requirements.

    (a) * * *
    (3) Eliminate or reduce the risk posed by each hazard identified to 
an acceptable level using a formal safety methodology such as MIL-STD-
882; and
* * * * *
    (b) * * *
    (4) Eliminate or reduce the risk posed by each hazard identified to 
an acceptable level using a formal safety methodology such as MIL-STD-
882;
* * * * *

    33. Appendix A to part 238 is amended by revising the entries for 
sections 238.105 and 238.427 to read as follows:

[[Page 19995]]

Appendix A to Part 238--Schedule of Civil Penalties \1\
---------------------------------------------------------------------------

    \1\ A penalty may be assessed against an individual only for a 
willful violation. Generally when two or more violations of these 
regulations are discovered with respect to a single unit of 
passenger equipment that is placed or continued in service by a 
railroad, the appropriate penalties set forth above are aggregated 
up to a maximum of $10,000 per day. However, failure to perform, 
with respect to a particular unit of passenger equipment, any of the 
inspections and tests required under subparts D and F of this part 
will be treated as a violation separate and distinct from, and in 
addition to, any substantive violative conditions found on that unit 
of passenger equipment. Moreover, the Administrator reserves the 
right to assess a penalty of up to $22,000 for any violation where 
circumstances warrant. See 49 CFR par 209, appendix A. Failure to 
observe any condition for movement of defective equipment set forth 
in Sec. 238.17 will deprive the railroad of the benefit of the 
movement-for-repair provision and make the railroad and any 
responsible individuals liable for penalty under the particular 
regulatory section(s) concerning the substantive defect(s) present 
on the unit of passenger equipment at the time of movement. Failure 
to observe any condition for the movement of passenger equipment 
containing defective safety appliances, other than power brakes, set 
forth in Sec. 238.17(e) will deprive the railroad of the movement-
for-repair provision and make the railroad and any responsible 
individuals liable for penalty under the particular regulatory 
section(s) contained in part 231 of this chapter or Sec. 238.429 
concerning the substantive defective condition. The penalties listed 
for failure to perform the exterior and interior mechanical 
inspections and tests required under Sec. 238.303 and Sec. 238.305 
may be assessed for each unit of passenger equipment contained in a 
train that is not properly inspected. Whereas, the penalties listed 
for failure to perform the brake inspections and tests under 
Sec. 238.313 through Sec. 238.319 may be assessed for each train 
that is not properly inspected.
---------------------------------------------------------------------------

* * * * *

------------------------------------------------------------------------
                                                               Willfull
                    Section                      Violation    violation
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
238.105  Train electronic hardware and
 software safety:
    (a), (b), (c) Failure to develop and              7,500       11,000
     maintain hardware and software safety....
    (d) Failure to include required design            5,000        7,500
     features.................................
    (e) Failure to comply with hardware and           5,000        7,500
     software safety program..................
 
*                  *                  *                  *
                  *                  *                  *
238.427  Suspension system....................        2,500        5,000
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------


    Issued in Washington, DC, on April 10, 2002.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-9419 Filed 4-22-02; 8:45 am]
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