[Federal Register Volume 71, Number 202 (Thursday, October 19, 2006)]
[Rules and Regulations]
[Pages 61836-61864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8611]



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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 229 and 238



Passenger Equipment Safety Standards; Miscellaneous Amendments and 
Attachment of Safety Appliances on Passenger Equipment; Final Rule

  Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 229 and 238

[Docket No. FRA-2005-23080, Notice No. 2]
RIN 2130-AB67


Passenger Equipment Safety Standards; Miscellaneous Amendments 
and Attachment of Safety Appliances on Passenger Equipment

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

ACTION: Final rule.

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SUMMARY: FRA is amending its existing regulations in an effort to 
address various mechanical issues relevant to the manufacture, 
efficient utilization, and safe operation of passenger equipment and 
trains that have arisen since FRA's original issuance of the Passenger 
Equipment Safety Standards. The miscellaneous amendments concentrate on 
the following five areas: Clarifying the terminology related to piston 
travel indicators; providing alternative design and additional 
inspection criteria for new passenger equipment not designed to allow 
inspection of the application and release of the brakes from outside 
the equipment; permitting some latitude in the use of passenger 
equipment with redundant air compressors when a limited number of the 
compressors become inoperative; recognizing current locomotive 
manufacturing techniques by permitting an alternative pneumatic 
pressure test for main reservoirs; and adding provisions to ensure the 
proper securement of unattended equipment. FRA is also clarifying the 
existing regulatory requirements related to the attachment of safety 
appliances and is mandating an identification and inspection protocol 
to address passenger equipment containing welded safety appliances or 
welded safety appliance brackets or supports. Finally, FRA is amending 
the regulations to permit railroads the ability to apply out-of-service 
credit to certain periodic maintenance requirements related to 
passenger equipment.

DATES: Effective Date: December 18, 2006. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of December 18, 2006.

ADDRESSES: Petitions: Any petitions for reconsideration related to 
Docket No. FRA-2005-23080, may be submitted by any of the following 
methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov including any personal information. Please 
see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of 
this document for Privacy Act information related to any submitted 
comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: George Scerbo, Office of Safety 
Assurance and Compliance, Motive Power & Equipment Division, RRS-14, 
Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, 
NW., Washington, DC 20590 (telephone 202-493-6247), or Thomas J. 
Herrmann, Deputy Assistant Chief Counsel, Office of Chief Counsel, Mail 
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Washington, DC 20590 (telephone 202-493-6036).

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    In September of 1994, the Secretary of Transportation convened a 
meeting of representatives from all sectors of the rail industry with 
the goal of enhancing rail safety. As one of the initiatives arising 
from this Rail Safety Summit, the Secretary announced that DOT would 
begin developing safety standards for rail passenger equipment over a 
five-year period. In November of 1994, Congress adopted the Secretary's 
schedule for implementing rail passenger equipment regulations and 
included it in the Federal Railroad Safety Authorization Act of 1994 
(the Act), Public Law Number 103-440, 108 Stat. 4619, 4623-4624 
(November 2, 1994). Section 215 of the Act, as now codified at 49 
U.S.C. 20133, provides as follows:

    (a) MINIMUM STANDARDS.--The Secretary of Transportation shall 
prescribe regulations establishing minimum standards for the safety 
of cars used by railroad carriers to transport passengers. Before 
prescribing such regulations, the Secretary shall consider--
    (1) the crashworthiness of the cars;
    (2) interior features (including luggage restraints, seat belts, 
and exposed surfaces) that may affect passenger safety;
    (3) maintenance and inspection of the cars;
    (4) emergency response procedures and equipment; and
    (5) any operating rules and conditions that directly affect 
safety not otherwise governed by regulations.
    The Secretary may make applicable some or all of the standards 
established under this subsection to cars existing at the time the 
regulations are prescribed, as well as to new cars, and the 
Secretary shall explain in the rulemaking document the basis for 
making such standards applicable to existing cars.
    (b) INITIAL AND FINAL REGULATIONS.--(1) The Secretary shall 
prescribe initial regulations under subsection (a) within 3 years 
after the date of enactment of the Federal Railroad Safety 
Authorization Act of 1994. The initial regulations may exempt 
equipment used by tourist, historic, scenic, and excursion railroad 
carriers to transport passengers.
    (2) The Secretary shall prescribe final regulations under 
subsection (a) within 5 years after such date of enactment.
    (c) PERSONNEL.--The Secretary may establish within the 
Department of Transportation 2 additional full-time equivalent 
positions beyond the number permitted under existing law to assist 
with the drafting, prescribing, and implementation of regulations 
under this section.
    (d) CONSULTATION.--In prescribing regulations, issuing orders, 
and making amendments under this section, the Secretary may consult 
with Amtrak, public authorities operating railroad passenger 
service, other railroad carriers transporting passengers, 
organizations of passengers, and organizations of employees. A 
consultation is not subject to the Federal Advisory Committee Act (5 
U.S.C. App.), but minutes of the consultation shall be placed in the 
public docket of the regulatory proceeding.

    The Secretary of Transportation has delegated these rulemaking 
responsibilities to the Federal Railroad Administrator. See 49 CFR 
1.49(m).

II. Proceedings to Date

    On June 17, 1996, FRA published an advanced notice of proposed 
rulemaking (ANPRM) concerning the establishment of comprehensive safety 
standards for railroad passenger

[[Page 61837]]

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 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 requesting 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 prepared a final rule establishing safety standards for 
passenger equipment, which was published on May 12, 1999. See 64 FR 
25540.
    After publication of the final rule, interested parties filed 
petitions seeking FRA's reconsideration of some of the requirements 
contained in the final rule. These petitions generally 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 relating to the inspection, testing, and maintenance of 
passenger equipment, the movement of defective passenger equipment, and 
other miscellaneous mechanical-related provisions contained in the 
final rule. See 65 FR 41284. On April 23, 2002 and June 25, 2002, FRA 
published two additional responses to the petitions for reconsideration 
addressing the remaining issues raised in the petitions. See 67 FR 
19970, and 67 FR 42892.
    Subsequent to the issuance of these responses, FRA and interested 
industry members began identifying various issues related to the new 
passenger equipment safety standards with the intent that FRA would 
address the issues through FRA's Railroad Safety Advisory Committee 
(RSAC). On May 20, 2003, FRA presented, and the RSAC accepted, the task 
of reviewing existing passenger equipment safety needs and programs and 
recommending consideration of specific actions useful to advance the 
safety of rail passenger service. The RSAC established the Passenger 
Equipment Working Group (Working Group) to handle this task and develop 
recommendations for the full RSAC to consider. Due to the variety of 
issues involved the Working Group established a number of smaller task 
forces, with specific expertise, to develop recommendations on various 
subject-specific issues. One of these task forces, the Mechanical 
Issues Task Force (Task Force), was assigned the job of identifying and 
developing issues and recommendations specifically related to the 
inspection, testing, and operation of passenger equipment as well as 
concerns related to the attachment of safety appliances on passenger 
equipment.
    The Task Force met several times between 2003 and late-2005 in 
order to develop detailed recommendations to the full Working Group. 
The Task Force recommendations became the recommendations of the 
Working Group and the full RSAC. The RSAC did not make any 
recommendations regarding the proposed provisions related to the 
attachment of safety appliances on passenger equipment and the proposed 
provision involving out-of-service credit. At the October 26-27, 2004 
meeting of the full Working Group, FRA withdrew the task related to the 
consideration of handling the attachment of safety appliances on 
passenger equipment from the RSAC. FRA determined that consensus on 
this issue could not be reached in the RSAC process and determined that 
it would have to proceed with these issues on its own. Therefore, FRA 
developed the proposed provisions related to the attachment of safety 
appliances unilaterally based on its own expertise in the area and 
based on discussions and information developed by the Working Group and 
Task Force. FRA also did not seek consensus in the RSAC process for the 
proposed provision related to out-of service credit. This issue was 
addressed on FRA's own accord in response to the American Public 
Transportation Association's (APTA) petition for rulemaking dated March 
28, 2005. Thus, FRA did not seek RSAC consensus on these issues. FRA 
reviewed and adopted the recommendations of the full RSAC and issued a 
Notice of Proposed Rulemaking (NPRM) on December 8, 2005. See 70 FR 
73070.
    The comment period for the above noted NPRM closed on February 17, 
2006. FRA received comments from two parties, the Brotherhood of 
Railway Carmen and APTA. The comments of these two parties were 
concentrated almost exclusively on the proposed provisions related to 
the attachment of safety appliances on passenger equipment. As the 
involved provisions were not developed through the RSAC process and the 
comments on those provisions could not be discussed with the members of 
the Working Group or Task Force and because FRA received no significant 
comments on any of the RSAC developed provisions proposed in the NPRM, 
FRA determined that there was no need to hold any further RSAC meetings 
related to this proceeding.
    Moreover, because this final rule retains all of the RSAC-
recommended provisions proposed in the NPRM without change, there was 
no need to seek the full RSAC's approval of this final rule. 
Consequently, FRA proceeded to draft this final rule without further 
input from the RSAC.

III. RSAC Overview

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

American Association of Private Railroad Car Owners (AAPRCO)
American Association of State Highway & Transportation Officials 
(AASHTO) APTA
American Short Line and Regional Railroad Association (ASLRRA)
American Train Dispatchers Association (ATDA)
Association of American Railroads (AAR)
Association of Railway Museums (ARM)
Association of State Rail Safety Managers (ASRSM)
Brotherhood of Locomotive Engineers and Trainmen (BLET)
Brotherhood of Maintenance of Way Employees Division (BMWED)
Brotherhood of Railroad Signalmen (BRS)
Federal Transit Administration (FTA)*
High Speed Ground Transportation Association (HSGTA)
International Association of Machinists and Aerospace Workers
International Brotherhood of Electrical Workers (IBEW)
Labor Council for Latin American Advancement (LCLAA)*
League of Railway Industry Women*
National Association of Railroad Passengers (NARP)
National Association of Railway Business Women*
National Conference of Firemen & Oilers
National Railroad Construction and Maintenance Association
National Railroad Passenger Corporation (Amtrak)
National Transportation Safety Board (NTSB)*
Railway Supply Institute (RSI)
Safe Travel America (STA)

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Secretaria de Communicaciones y Transporte*
Sheet Metal Workers International Association (SMWIA)
Tourist Railway Association Inc.
Transport Canada*
Transport Workers Union of America (TWU)
Transportation Communications International Union/BRC (TCIU/BRC)
United Transportation Union (UTU)

    *Indicates associate membership.

    When appropriate, FRA assigns a task to the RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, the RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The task force then provides that information to the 
working group for consideration. If a working group comes to unanimous 
consensus on recommendations for action, the package is presented to 
the RSAC for a vote. If the proposal is accepted by a simple majority 
of the RSAC, the proposal is formally recommended to FRA. FRA then 
determines what action to take on the recommendation. Because FRA staff 
has played an active role at the working group level in discussing the 
issues and options and in drafting the language of the consensus 
proposal, FRA is often favorably inclined toward the RSAC 
recommendation. However, FRA is in no way bound to follow the 
recommendation and the agency exercises its independent judgment on 
whether the recommended rule achieves the agency's regulatory goal, is 
soundly supported, and is in accordance with policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal. If the 
working group or the RSAC is unable to reach consensus on 
recommendations for action, FRA moves ahead to resolve the issue 
through traditional rulemaking proceedings.
    On May 20, 2003, FRA presented, and the RSAC accepted, the task of 
reviewing existing passenger equipment safety needs and programs and 
recommending consideration of specific actions useful to advance the 
safety of rail passenger service. The Working Group was established to 
handle this task and develop recommendations for the full RSAC to 
consider. Members of the Working Group, in addition to FRA, included 
the following:
    AAR, including members from BNSF Railway Company (BNSF), CSX 
Transportation, Incorporated (CSX), and Union Pacific Railroad Company 
(UP); APTA, including members from Illinois Commuter Rail Corporation 
(METRA), Long Island Rail Road (LIRR), Metro-North Railroad (MNR), 
Southeastern Pennsylvania Transportation Authority (SEPTA), Southern 
California Regional Rail Authority (SCRRA), Saint Gobian Sully NA, LDK 
Engineering, and Herzog Transit Services, Incorporated; Amtrak; AAPRCO; 
AASHTO; BLET; BRS; HSGTA; IBEW; NARP; RSI; SMWIA; STA; TCIU/BRC; TWU; 
and UTU.
    The NTSB met with the Working Group and provided staff advisors 
when possible. In addition, staff from the U.S. DOT Volpe National 
Transportation Systems Center (Volpe) attended many of the meetings and 
contributed to the technical discussions. Due to the variety of issues 
involved, the Working Group established a number of smaller task 
forces, with specific expertise, to develop recommendations on various 
subject-specific issues. Members of the task forces included various 
representatives from various organizations that were part of the larger 
Working Group. One of these task forces, the Mechanical Issues Task 
Force (Task Force), was assigned the job of identifying and developing 
issues and recommendations specifically related to the inspection, 
testing, and operation of passenger equipment as well as concerns 
related to the attachment of safety appliances on passenger equipment. 
Please refer to the preceding discussion in this document as well as 
the NPRM's preamble discussion for a complete overview of this 
proceeding both before and after the issuance of the NPRM. See 
Discussion in Paragraph II--Proceedings to Date; and 70 FR 73070 
through 73071.
    Throughout the preamble discussion of this final rule, FRA refers 
to comments, views, suggestions, or recommendations made by members of 
the Working Group or related Task Force. When using this terminology, 
FRA is referring to views, statements, discussions or positions 
identified or contained in either the minutes of the Working Group or 
Task Force meetings that were conducted during the development of the 
NPRM issued in this proceeding. These documents have been made part of 
the docket in this proceeding and are available for public inspection 
as discussed in the preceding ADDRESSES portion of this document. These 
points are discussed to show the origin of certain issues and the 
course of discussions on those issues at the task force or working 
group level. We believe this helps illuminate factors FRA has weighed 
in making its regulatory decisions, and the logic behind those 
decisions. The reader should keep in mind, of course, that only the 
full RSAC makes recommendations to FRA, and it is the consensus 
recommendation of the full RSAC on which FRA acted in developing the 
NPRM and this final rule.

IV. Technical Background

A. Redundancy of Air Compressors

    MU passenger locomotives are generally operated as married pairs, 
but in some cases they can be operated as single or triple units. In 
the case of the married pairs, each pair of MU locomotives share a 
single air compressor. When operated in triple units, the three MU 
locomotives generally share two air compressors, and single-unit MU 
locomotives are equipped with their own air compressor. The amount of 
air required to be produced by the air compressors is based on the size 
of the brake pipe and the brake cylinder reservoirs, the size of which 
is based on the calculated number of brake application-and-release 
cycles the train will encounter. In addition, the compressed air 
produced by the air compressors is shared within the consist either by 
utilizing a main reservoir equalizing pipe or, in single pipe systems, 
by utilizing the brake pipe which is then diverted to the brake 
cylinder supply reservoir and other air-operated devices by use of a 
governor arrangement. Therefore, a passenger train set consisting of 
numerous MU locomotives will have multiple air compressors providing 
the train consist with the necessary compressed air. FRA agrees with 
the determinations of the Task Force that a loss of compressed air from 
a limited number of air compressors in such a train will not adversely 
effect the operation of the train's brakes or other air-operated 
components on the train.
    Representatives of railroads and air brake manufacturers provided 
information demonstrating that the safety of a train set is not 
compromised when a predetermined number of inoperative air compressors 
are allowed to continue to operate in service on a MU train set. On 
such train sets, the air compressors are applied by technical 
specification to a certain number of cars such as one per married pair, 
two per triplet, and so on. The technical specifications for these air 
compressors generally allow for a duty cycle (percentage of operating 
capacity) for

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each air compressor that is something less than 50 percent. In fact, 
some technical specifications limit the air compressor duty cycle to 33 
percent. This means that on MU train sets the available air compressors 
are required to operate at only 33 to 50 percent of their operational 
capacity. One of the major reasons for imposing these low duty cycles 
is to ensure that adequate air pressure is available if one or more of 
the other air compressors in the train set is not operating properly. 
Thus, these systems are currently designed to function properly even in 
the event that a limited number of air compressors become inoperative 
while the train is in service. Moreover, even in the unlikely event 
that an MU passenger train set would lose all of its air compressors, 
then the air brakes would apply and would remain applied until 
sufficient compressed air is restored to the system. Consequently, FRA 
does not see any adverse impact on the operational safety of these 
types of trains if they are permitted to operate for a relatively short 
period of time with a limited number of air compressors being 
inoperative or ineffective.
    FRA did not receive any comments on the proposed provisions related 
to this issue. Thus, the final rule retains the proposed provisions 
without change and permits MU train sets with a limited number of 
inoperative or ineffective air compressors to continue to be used in 
passenger service until the next exterior calendar day mechanical 
inspection when found at such an inspection. The final rule requires a 
railroad to determine through data, analysis, or actual testing the 
number of inoperative or ineffective air compressors that could be in 
an MU train set without compromising the integrity or safety of the 
train set based on the size and type of train and the train's operating 
profile. The railroad is required to submit the maximum number of air 
compressors permitted to be inoperative or ineffective on its various 
trains to FRA before it can begin operation under the final rule 
provision and is required to retain and make available to FRA any data 
or analysis relied on to make those determinations. The final rule also 
requires a qualified maintenance person (QMP) to verify the safety and 
integrity of any train operating with inoperative or ineffective air 
compressors before the equipment continues in passenger service. In 
addition, the final rule retains the proposal provision requiring 
notification to the train crew of any inoperative or ineffective air 
compressors and requires that a record be maintained of the defective 
condition. FRA believes these provision will ensure the safety of 
passenger operations while providing the railroads additional 
flexibility in handling defective or inoperative equipment.

B. Pneumatic Testing of Locomotive Main Reservoirs

    The current regulations contained at 49 CFR 229.31(a) relating to 
main reservoir tests requires that a hydrostatic (water) test of a main 
reservoir be conducted before it is originally placed in service or 
before an existing main reservoir is placed back in service after being 
drilled as provided for in Sec.  229.31(c). At the Working Group and 
Task Force meetings, the manufacturers of main reservoirs requested the 
ability to conduct a pneumatic (air) test of the reservoirs in lieu of 
the currently required hydrostatic test. The request was limited to 
providing relief only for those tests required before a main reservoir 
is originally placed in service and after an existing main reservoir is 
drilled.
    The companies that manufacture reservoirs for the rail industry, 
whether the reservoir is utilized as a main reservoir or reservoir(s) 
utilized for other purposes, must have an American Society of 
Mechanical Engineers (ASME) certification. The reservoirs, both main 
and other, manufactured by these companies are designed and certified 
to meet the requirements of the ASME Boiler and Pressure Vessel Code. 
In addition, reservoirs utilized as main reservoirs on locomotives are 
also manufactured and certified to meet the requirements for such 
contained in part 229 of the Federal regulations. Currently, all 
passenger car reservoirs are pneumatically tested after fabrication and 
before the application of an interior protective coating. This process 
is utilized so that reservoirs may be repaired if the reservoir does 
not pass the initial test requirements. If the interior protective 
coating is applied prior to testing, any weld repairs cannot be 
performed, as the interior coating would be damaged.
    The rationale for originally requiring that the main reservoirs be 
tested hydrostatically was based on the safety concerns should a main 
reservoir catastrophically fail during the testing. The likelihood of 
injury is minimized by having the reservoir filled with a liquid rather 
than air. However, since the original drafting of the locomotive 
regulations, manufacturers of reservoirs have implemented and developed 
both equipment and procedures to ensure that test personnel are 
adequately shielded when conducting the testing. The manufacturers have 
been performing pneumatic testing on reservoir for years and FRA is not 
aware of any injury related to such testing in manufacturer-controlled 
facilities. Thus, the safety concerns originally attached to pneumatic 
testing have been minimized, if not eliminated, when conducted at 
properly equipped manufacturer facilities.
    The ASME code currently utilized by all manufacturers of main 
reservoirs allows for the pneumatic testing of the reservoirs when the 
introduction of liquid cannot be tolerated. The introduction of water 
to perform hydrostatic testing on main reservoirs creates a problem 
because, if the liquid is not completely removed and the reservoir 
interior completely dried, the moisture results in poor adhesion or a 
lower coating of film than required. This condition has the potential 
of causing interior corrosion and premature failure of the reservoir. 
Thus, rather than creating this potential, FRA believes that it would 
be both safer and more efficient to permit the manufacturers of main 
reservoirs to utilize pneumatic testing to meet the requirements 
contained in 49 CFR 229.31. FRA received no comments objecting to the 
flexibility proposed in the NPRM or suggesting additional restrictions 
or requirements. Consequently, this final rule retains the proposed 
amendments to the regulation without change to permit pneumatic testing 
of newly manufactured main reservoirs and reservoirs that are newly 
drilled and tested at a manufacturer's facility.
    It should be noted that the final rule retains the proposed 
restriction that limits the ability to conduct pneumatic testing of the 
main reservoirs at only those facilities with appropriate safeguards in 
place to ensure the safety of the personnel conducting the testing. 
After a reservoir is installed on a locomotive, FRA continues to 
believe that hydrostatic testing would be the only testing method that 
adequately ensures the safety and protection of the personnel that are 
performing the test or working near the installed reservoir. Regulatory 
language inserted at the end of paragraph (c) of Sec.  229.31 makes 
clear that pneumatic testing of a reservoir currently in use and newly 
drilled may only be conducted by a manufacturer of main reservoirs in a 
safe environment. In other circumstances, the final rule makes clear 
that a hydrostatic test of the reservoir must be conducted.

C. Design of New Passenger Equipment

    The manufacturers and railroad representatives on the Working Group 
and Task Force sought clarification of

[[Page 61840]]

the provision originally contained in 49 CFR 238.231(b). This section 
requires the brake systems on equipment ordered on or after September 
8, 2000, or placed in service on or after September 9, 2002, to be 
designed so as not to require an inspector to go on, under, or between 
the equipment to observe the brake actuation or release. At the Task 
Force meetings and in the NPRM, FRA made clear that the requirement was 
intended to be a design standard and was not intended to prohibit or 
limit the conduct of brake or mechanical inspections required to be 
conducted in part 238. See 70 FR 73074. FRA realizes that in order to 
perform many of the brake and mechanical inspections required by the 
regulations an inspector will have to go on, under, or between the 
equipment. FRA has acknowledged this practice and railroads have 
effectively conducted these types of inspections in this manner for 
decades.
    The plain language of existing Sec.  238.231(b) requires new 
equipment to be designed to allow direct observation of the brake 
actuation and release without fouling the equipment. The preamble to 
the original final rule discusses alternative design approaches using 
some type of piston travel indicator or piston cylinder pressure 
indicator on equipment whose design makes it impossible to meet this 
requirement. See 64 FR 25612 (May 12, 1999). FRA's intent was that this 
piston travel indicator could be a device similar to the definition of 
``actuator'' contained in Sec.  238.5 or some sort of piston cylinder 
pressure indicator. The rule text and related preamble make clear that 
the actuation and release of the brake (or a direct indication of such) 
be able to be observed without an inspector going on, under, or between 
the equipment. FRA does not believe that truck pressure indicators 
(which provide no information on piston travel or piston cylinder 
pressure) meet this requirement. FRA recognized that the envisioned 
``indicators'' discussed in the preamble to Sec.  238.231(b) may be 
ahead of the technological curve for passenger equipment currently 
being delivered and that which may be delivered in the future. Thus, 
FRA noted its willingness to discuss additional inspection protocols in 
lieu of applying piston travel indicators on such equipment.
    During the development of the NPRM, the Task Force discussed the 
issue in detail as a number of railroads were in the process of 
receiving new equipment, such as bi-level coaches and other low-slung 
equipment, the design of which does not allow observation of the brake 
actuation and release of the brake without going on, under, or between 
the equipment. Several railroads and manufacturers noted that the type 
of piston travel indicators envisioned by FRA to meet the Sec.  
238.231(b) requirement were not currently available, and even if they 
could be developed in the future, they would likely be a maintenance 
problem and unreliable. Representatives of rail labor also questioned 
the viability and need for the type of piston travel indicators 
discussed in the preamble to the original final rule. These 
participants did not believe that any type of mechanical indicator 
should take the place of direct visual inspection of the brake system 
components. Consequently, the members of the Task Force believed that 
the best approach to the issue was to provide additional inspection 
protocols for new equipment that are designed in a manner that makes 
observation of the actuation and release of the brakes impossible from 
outside the plane of the equipment rather than mandating the use of 
untested and potentially unreliable piston travel indicators.
    FRA and the Task Force believe that the brake system and mechanical 
components on bi-level and other low-slung passenger equipment can be 
adequately inspected through the daily brake and mechanical inspections 
currently required in the Federal regulations; provided, appropriate 
blue signal protections are established for the personnel required to 
perform such inspections. These daily inspections permit a visual 
inspection of a large percentage of the brake and mechanical components 
and over a period of a few days all portions of the brake system and 
mechanical components will be visually observed. However, because the 
necessary design of some new equipment makes the daily inspections of 
the equipment more difficult, does not permit visual observation of the 
brake actuation and release from outside the plane of the vehicle, and 
because no reliable mechanical device is currently available to provide 
a direct indication of such, FRA and the Task Force believed it was 
necessary to adopt additional inspection protocols for this type of 
equipment. Thus, the NPRM proposed an additional inspection regiment 
for newer equipment designed in such a manner.
    The requirements proposed in the NPRM that were related to this 
type of equipment were similar to those contained in a FRA Safety Board 
letter dated October 19, 2004, granting that portion of the 
Massachusetts Bay Transportation Authority's (MBTA) waiver petition 
seeking relief from the requirements of Sec.  238.231(b) for 28 
Kawasaki bi-level coaches. See Docket Number FRA-2004-18063. FRA did 
not receive any comments directly related to the proposed inspection 
protocols or the proposed approach to this issue. Thus, this final rule 
retains the proposed provisions with slight changes for purposes of 
clarity.
    The inspection protocols retained in this final rule will be 
applicable to equipment placed in service on or after September 9, 
2002, the design of which does not permit actual visual observation of 
the brake actuation and release. The final rule provisions will require 
such equipment to be equipped with either piston travel indicators or 
brake indicators as defined in Sec.  238.5. The equipment is also 
required to receive a periodic brake inspection by a QMP at intervals 
not to exceed five in-service days and the inspection must be performed 
while the equipment is over an inspection pit or on a raised track. In 
addition, the railroad performing the additional inspection is required 
to maintain a record of the inspection consistent with the existing 
record requirements related to Class I brake tests. FRA believes that 
these additional inspection requirements will ensure the safety and 
proper operation of the brake system on equipment which does not permit 
actual visual observation of the brake actuation and release without 
fouling the vehicle.
    FRA received one suggestion from APTA regarding the identification 
of cars that will be covered by the provisions added in these sections. 
APTA wanted to make clear that the railroad and car manufacturer would 
make an initial determination regarding the applicability of the 
requirements contained in this section and that FRA would oversee these 
determinations for accuracy. FRA agrees with this position as the 
railroad and car manufacturer are in the best position to make an 
initial determination. FRA will exercise its oversight when conducting 
sample car inspections as well as its regular inspection activity. FRA 
notes that the additional inspection requirements would be applicable 
to new cars constructed similar to the low-slung bi-level passenger 
coaches that were the subject of MBTA's waiver request discussed above.

D. Safety Appliances

    Several issues regarding the attachment of safety appliances on 
passenger equipment have arisen over the last decade. These issues 
generally involve the method by which safety appliances on existing 
passenger equipment are required to be attached,

[[Page 61841]]

either directly to the car or locomotive body or by use of a bracket or 
support. It has come to FRA's attention, due to the investigation of 
these issues, that a significant number of existing passenger cars and 
locomotives contain some safety appliances that are attached to the 
equipment by some form of welding, typically the welding of a bracket 
or plate to which the safety appliance is then mechanically fastened. 
In the last two decades, manufacturers of certain passenger equipment 
have used welding on some of the safety appliance arrangements of newly 
built equipment. Some segments of the passenger industry believe 
welding of these arrangements is acceptable and have sought a review of 
FRA's historical prohibition on the welding of safety appliance 
arrangements. These parties believe that new and improved welding 
technology, the implementation of new tracking standards, proper 
quality control, and historical documentation support the limited use 
of welding on certain safety appliance arrangements.
    Historically, FRA has required that safety appliances be 
mechanically fastened to the car structure. FRA has also historically 
required that any brackets or supports applied to a car structure 
solely for the purpose of securing a safety appliance must be 
mechanically fastened to the car body. See MP&E Technical Bulletin 98-
14 (June 15, 1998). FRA's prohibition on the weldment of safety 
appliances and their supports is based on its longstanding 
administrative interpretation of the regulatory ``manner of 
application'' provisions contained in 49 CFR part 231 which require 
that safety appliances be ``securely fastened'' with a specified 
mechanical fastener. See e.g., 49 CFR Sec. Sec.  231.12(c)(4); 
231.13(b)(4); 231.14(b)(4) and (f)(4)). FRA's historical prohibition on 
the welding of safety appliances is based on its belief that welds are 
not uniform, are subject to failure, and are very difficult to inspect 
to determine if the weld is broken or cracked. Mechanical fasteners, by 
contrast, are generally easier to inspect and tend to become noticeably 
loose prior to failure. FRA notes that many of its historical beliefs 
related to the welded attachment of safety appliance brackets and 
supports on passenger equipment are based on welding technologies that 
were in their infancy when first being utilized. In addition, many of 
FRA's concerns in this area are mitigated when appropriate welding 
standards covering quality control, initial manufacture, repair, and 
welder qualifications are established and implemented.
    Generally, FRA's longstanding interpretation of the regulation 
prohibiting the welding of safety appliances has not been seriously 
questioned or opposed since its inception. Virtually all freight 
railcars manufactured for use in the United States and passenger cars 
manufactured in the United States have their safety appliances and 
their safety appliance brackets and supports mechanically fastened to 
the car body, unless a specific exception has been provided by FRA or 
the regulations. FRA acknowledges that it has permitted limited welding 
of certain safety appliances or their brackets and supports on 
locomotives and tanks cars. See MP&E Technical Bulletins 98-48 and 00-
06 (June 15, 1998 and August 7, 2000, respectively). These exceptions 
were provided because there were no other alternative methods available 
for mechanically fastening these safety appliance arrangements.
    Currently, freight railroad equipment complies with the existing 
regulations and FRA's interpretation of those provisions. 
Traditionally, FRA has not permitted welding of safety appliance 
arrangements on freight equipment. In addition, the AAR does not permit 
the welding of safety appliance arrangements. FRA continues to believe 
that, except in limited circumstances, the safety appliances on freight 
equipment should not be attached with welding under any condition. This 
is primarily due to the extreme differences in use and inspection 
between passenger and freight equipment. See 70 FR 73076. Thus, FRA 
does not intend to permit welded safety appliances or their attachment 
in that segment of the industry. Consequently, FRA is limiting any 
relief being provided in this final rule to safety appliance 
arrangements on passenger equipment.
    Although FRA has remained consistent in its prohibition on the 
weldment of safety appliances and their supports, a significant amount 
of passenger equipment has been manufactured and used in revenue 
service for a number of years with safety appliances being attached to 
the car body using some form of welding. Currently, FRA is aware of 
approximately 3,000 passenger cars or locomotives that have safety 
appliances or safety appliance brackets or supports welded to the body 
of the equipment. Some units of this equipment were introduced into 
service within the last few years; others have been in service for more 
than a decade. Some of the 3,000 units noted above have been the 
subject of formal waiver requests pursuant to the provisions contained 
in 49 CFR Part 211. See Docket Numbers FRA-2000-8588 and FRA-2000-8044.
    In an effort to fully develop the issues relating to the welding of 
safety appliances on existing passenger equipment, FRA conducted an 
informal safety inquiry and subsequently submitted the issue to RSAC in 
this proceeding. On June 17, 2003, an informal safety inquiry was held 
in Washington, DC, where all interested parties were permitted to 
express their concerns relating to FRA's longstanding interpretation 
prohibiting welded of safety appliance arrangements. Representatives 
from APTA, AAR, consultants, manufacturers, and union representatives 
gave presentations or provided comments expressing their points of 
interests or concerns. FRA also referred the issue to the RSAC process 
in this proceeding, which in turn assigned the issue to the mechanical 
Task Force, to aid in developing and determining if there is a 
practical application where welding may be suitable and to consider 
methods by which FRA could revise or clarify its position for future 
guidance and regulatory standards. Although the Task Force engaged in 
productive discussions and developed considerable information relating 
to the issue, the Task Force could not reach a consensus on any 
recommendation. Consequently, on October 27, 2004, FRA withdrew the 
task related to the consideration of handling the attachment of safety 
appliances on passenger equipment from the RSAC and decided to proceed 
with the development of a regulatory proposal unilaterally.
    At the safety inquiry and the discussions within the Task Force, 
ATPA and its primary members all indicated that FRA needs to provide 
clarity and guidance to the industry relating to passenger car safety 
appliance arrangements, particularly in the area of attaching brackets 
and supports. FRA considered issues ranging from the initial 
manufacturing stage to the actual expected life cycle of a weld and the 
environment in which the equipment operates. FRA acknowledges that 
freight and passenger operations involve significantly different 
environments from a safety appliance standpoint, and likely justifies 
an allowance for welded safety appliance brackets and supports and in 
other instances where the design of a vehicle necessitates such use. In 
most cases, passenger equipment is inspected on a more regular basis, 
generally used in captive type service, and experiences far less 
coupling and uncoupling associated with switching moves inherent in 
freight operations. FRA also

[[Page 61842]]

recognizes that it would be extremely costly to the passenger industry 
to require existing equipment to be retrofitted with new safety 
appliances when the existing welded attachments have not shown a 
proclivity for failure at this time.
    Based on the information and views provided at both the informal 
safety inquiry and through the RSAC, FRA proposed provisions in the 
NPRM to clarify FRA's existing interpretations of the safety appliance 
regulations and to provide the passenger rail industry some latitude 
for existing passenger equipment with welded safety appliance brackets 
or supports in lieu of retrofitting nearly one-third of the fleet. The 
NPRM proposed a detailed inspection and repair program for existing 
passenger equipment with welded safety appliances or welded safety 
appliance brackets or supports. The NPRM also sought comments and 
information from interested parties on a variety of questions and 
concerns relating to both the proposed provisions and the general use 
of welding as a means of attaching safety appliance brackets and 
supports. See 70 FR 73077. The NPRM indicated FRA's willingness to 
consider certain welded safety appliance brackets and supports to be 
part of a car's body if viable and enforceable specifications could be 
developed that would ensure the safe and reliable attachment of such 
brackets and supports.
    FRA received comments from two parties regarding the proposed 
provisions and in response to the questions presented. BRC submitted 
comments requesting that FRA continue its prohibition on welding of 
safety appliances and require that safety appliances be mechanically 
fastened. BRC indicated that this approach would be consistent with 
FRA's historical application of the regulations. BRC stated that it was 
not convinced that welding was an effective manner of securement due to 
vibration and flex occurring on equipment while in transit. BRC 
provided several historical examples of instances when FRA took 
exception to certain welded safety appliances. FRA notes that the 
examples cited by BRC involved either instances of direct welding of 
the safety appliances to a car body, welding of safety appliances on 
freight equipment, or welding not conducted in accordance with any 
acceptable welding standard. BRC requested that if any change were made 
to the existing welding prohibition that they only be considered after 
the initiation and implementation of strict safety procedures covering 
the inspection, and repair of such welds as well as the qualifications 
and training of the individuals responsible for inspecting and welding 
such appliances.
    APTA's comments focused almost exclusively on the proposed 
provisions related to the welding of safety appliance brackets and 
supports. In response to questions asked in the NPRM, APTA provided 
detailed specifications for use by FRA for determining when a welded 
safety appliance bracket or support could be considered part of the 
car's body. These specifications included the strength, size, 
attachment, design criteria, and quality control procedures that any 
welded attachment would be required to meet. APTA comments fully 
discussed the implications and basis for its recommended 
specifications. APTA seeks to have these welding specifications applied 
to both new and existing equipment. APTA also sought to have the 
definition of what constitutes a defective weld clarified. APTA asserts 
that only a crack in a weld should be considered a defect and that 
anomalies in welds should not be considered. APTA contends that, if an 
anomaly is significant, it will eventually lead to a crack in the weld.
    APTA again noted that it believes both FRA and BRC are operating 
under two serious misconceptions relating to welding. The first is that 
the failure mode of welds used to attach a safety appliance and their 
related brackets or supports is difficult to detect. APTA asserts that 
failure of these welds is rare and even if there is a failure it will 
start with a small crack that grows very slowly. In the unlikely event 
that a crack were to even develop, it would take months or years for 
failure of the weld to occur. These cracks would be easy to detect with 
the visual inspections performed on safety appliances by railroads on a 
daily basis. The second misconception is that weld will have a higher 
failure rate toward the end of the life cycle of a piece of equipment. 
APTA asserts that older welds do not fail at any higher rate than newer 
welds. The endurance limits designed into these welds are so high that 
the welds will not fatigue over time regardless of number of stress 
cycles that occur. Because of this, there is no data available to FRA 
that show a higher failure rate due to the age of the weld. APTA also 
stressed that it was not advocating welding a safety appliance directly 
to a car body except in the limited circumstances identified in the 
NPRM when the design of the equipment makes it impossible to 
mechanically fasten the safety appliance.
    Based on consideration of these comments as well as previous 
information provided to FRA, the final rule is modifying some of the 
provisions proposed in the NPRM related to the attachment of safety 
appliances on passenger equipment. The final rule retains many of the 
provisions proposed in the NPRM but is being expanded to adopt APTA's 
recommendations for determining when a welded safety appliance bracket 
or support will be considered part of the car body and the definition 
of a defective weld. FRA believes that welding technologies have 
improved significantly over the last several decades. In addition, 
passenger operations provide a unique environment suitable to the use 
of welding as a means of attachment in certain situations. Moreover, 
FRA believes that APTA has provided a viable and enforceable 
specification for ensuring that welded safety appliance brackets and 
supports are securely, safely, and reliably attached to the equipment 
on which it is placed. Volpe reviewed the welding specifications at 
FRA's request and confirmed that safety appliance brackets or supports 
welded to the car body in accordance with the standards recommended by 
APTA would be at least as secure and reliable as a bracket or support 
attached with a mechanical fastener. FRA further believes that BRC's 
concerns are addressed by the final rule provisions because the final 
rule will only consider welded safety appliance brackets or supports to 
be part of the car body if stringent and verifiable standards are 
utilized when making the welded connection. In addition, the final rule 
will allow existing equipment with welded brackets or supports to 
continue in service only if it is inspected and repaired in accordance 
with the strict inspection and repair provisions contained in the rule. 
Consequently, FRA is including APTA's recommended specifications 
related to welded safety appliance brackets and supports in this final 
rule with slight modification for clarity and enforceability.
    The final rule also retains the proposed provisions providing the 
industry with the ability to develop standards relating to the safety 
appliance arrangements on new cars of special construction. FRA did not 
receive any comments on the proposed provisions and is retaining them 
in this final rule without change. Throughout the Railroad Safety 
Appliance Standards, currently contained in 49 CFR part 231; 
specifically, Sec.  231.12--Passenger-train cars with wide vestibules; 
Sec.  231.13--Passenger-train

[[Page 61843]]

cars with open-end platforms; Sec.  231.14--Passenger-train cars 
without end platforms; and Sec.  231.23--Unidirectional passenger-train 
cars adaptable to van-type semi-trailer use, there may be 
inconsistencies and/or opportunities for clarification in the 
construction of newly built passenger equipment. Many times, it is 
necessary to reference two or more sections of 49 CFR part 231 to 
determine if a newly constructed passenger vehicle meets the minimum 
requirements of the Federal regulations. However, criteria for most of 
today's new types of passenger car construction are found within 49 CFR 
231.18--Cars of special construction. This results from the fact that 
modern technology in construction of car-building often does not lend 
itself to ready application of the current 49 CFR 231 requirements. 
Rather, the designer must adapt several different requirements to meet 
as closely as possible construction of specific safety appliance 
arrangements in order to obtain compliance.
    Most passenger cars today are constructed outside the United 
States, and this has exacerbated the problem of varying interpretations 
of regulations and resulting safety appliance arrangements. At times, 
different requirements are applied to cars of similar design where both 
could have been constructed in the same manner. Substantial resources 
are spent on a regular basis by all parties concerned in review 
sessions to determine if a car is in compliance prior to construction; 
and even when the cars are delivered, problems have arisen.
    In an attempt to limit these problems, the final rule contains a 
method by which the industry may request approval of safety appliance 
arrangements on new equipment considered to be cars of special 
construction under 49 CFR part 231. The final rule will permit the 
industry to develop standards to address many of the new types of 
passenger equipment introduced into service. The final rule requires 
any such standards, and supporting documentation to be submitted to FRA 
for agency approval pursuant to the special approval process already 
contained in the regulation. The final rule makes clear that any 
approved standard will be enforceable against any person who violates 
or causes the violation of the approved standards and that the penalty 
schedule contained in Appendix A to 49 CFR part 231 will be used as 
guidance in assessing any applicable civil penalty. The goal of the 
regulation is to develop consistent safety appliance standards for each 
new type of passenger car not currently identified in the Federal 
regulations that ensures the construction of suitable safety appliance 
arrangements in compliance with 49 CFR part 231. FRA believes the final 
rule will reduce or eliminate reliance upon criteria for cars of 
special construction, will improve communication of safety appliance 
requirements to the industry, and will facilitate regulatory compliance 
where clarification or guidance is necessary.
    Portions of the final rule relating to new passenger equipment are 
already progressing. By letter dated September 2, 2005, FRA requested 
APTA to determine if it is feasible to form a group to specifically 
develop potential safety appliance standards for newly manufactured 
passenger equipment and provide guidance where existing Federal 
regulations are not specific to the design of a passenger car or 
locomotive. On October 11, 2005, APTA informed FRA that it is willing 
to undertake this effort and began conducting meetings in early 2006. 
FRA believes this approach provides an excellent avenue to take 
advantage of the knowledge and expertise possessed by rail operators 
and equipment manufactures when considering safety appliance 
arrangements on new passenger equipment of unique design. Under the 
provisions retained in this final rule, the standards and guidance 
developed by this group will need to be submitted to and approved by 
FRA pursuant to the special approval provisions contained at Sec.  
238.21.

E. Securement of Unattended Equipment

    The NPRM proposed various provisions related to the securement of 
unattended equipment. FRA did not receive any comments on the proposed 
provisions other than APTA's concurrence that the proposal 
appropriately captures existing practices of passenger railroads. Thus, 
this final rule retains the proposed provisions without change. FRA 
believes that the rational for addressing these issues on freight 
operations is equally applicable to passenger operations. The preamble 
to the final rule related to 49 CFR part 232 contains an in-depth 
discussion of the need to address these issues. See 66 FR 4156-4158 
(January 17, 2001). The approach proposed in the NPRM and retained in 
this final rule is also consistent with the guidance contained in FRA 
Safety Advisory 97-1. See 62 FR 49046 (September 15, 1997). Further, 
FRA is aware of several incidents on passenger and commuter operation 
involving the running away or inadvertent movement of unattended 
equipment.
    As passenger train consists are much shorter and do not possess the 
tonnage associated with freight trains, the final rule modifies the 
provisions contained in 49 CFR part 232 to make them more readily 
applicable to passenger operations. The requirements contained in this 
final rule are consistent with and based directly on current passenger 
industry practice. Thus, in FRA's view, they will have no economic or 
operational impact on passenger operations but will ensure that these 
best practices currently adopted by the industry are followed and 
complied with by making them part of the Federal regulations.
    The final rule requires that unattended equipment be secured by 
applying a sufficient number of hand or parking brakes to hold the 
equipment and will require railroads to develop and implement a process 
or procedure to verify that the applied hand or parking brakes will 
hold the equipment. The final rule also prohibits a practice known as 
``bottling the air'' in a standing cut of cars. The practice of 
``bottling the air'' occurs when a train crew sets out cars from a 
train with the air brakes applied and the angle cocks on both ends of 
the train closed, thus trapping the existing compressed air and 
conserving the brake pipe pressure in the cut of cars they intend to 
leave behind. This practice has the potential of causing, first, an 
unintentional release of the brakes on these cars and, ultimately, a 
runaway. A full discussion of the hazards related to this practice is 
contained in the preamble to the final rule related to freight power 
brakes. See 66 FR 4156-57. Virtually all railroads currently prohibit 
this practice in their operating rules.
    The final rule also mandates a minimum number of hand or parking 
brakes that must be applied on an unattended locomotive consist or 
train. Due to the relatively short length and low tonnage associated 
with passenger trains, FRA does not believe that the more stringent 
provisions contained in Sec.  232.103(n)(3) are necessary in a 
passenger train context. Thus, the final rule only requires that at 
least one hand or parking brake be applied in these circumstances; 
however, the number of applied hand or parking brakes will vary 
depending on the process or procedures developed and implemented by 
each covered railroad. In addition, the final rule requires railroads 
to develop and implement procedures for securing locomotives not 
equipped with a hand or parking brake and instructions for securing any 
locomotive left unattended. As noted previously, FRA is not aware of 
any railroad which does

[[Page 61844]]

not already have the required procedures or processes in place. Thus, 
FRA believes that these requirements will impose no burden on passenger 
operations covered by 49 CFR part 238.
    In addition to addressing specific issues relating to securing 
unattended equipment, the final rule also incorporates and adopts the 
industry's best practices related to the inspection and testing of hand 
and parking brakes. The final rule requires that the hand or parking on 
other than MU locomotives be inspected no less frequently than every 
368 days and that a record (either stencil, blue card, or electronic) 
be maintained and provided to FRA upon request. The final rule also 
requires the application and release of the hand or parking brake at 
each periodic mechanical inspection of passenger cars and unpowered 
vehicles under Sec.  238.307 and requires a complete inspection of 
these components every 368 days, with a record being maintained of this 
annual inspection. The inspection and testing intervals as well as the 
stenciling and record keeping requirements retained in the final rule 
are consistent with the current practices in the industry and will 
impose no additional burden on the industry.

V. Section-by-Section Analysis

Amendments to 49 CFR Part 229

Section 229.5 Definitions
    The final rule is retaining the proposed technical clarification to 
the definition of ``MU locomotive'' contained in this section. FRA did 
not receive any comments on this proposed modification. Thus, FRA is 
retaining the modification in this final rule without change. Section 
229.5 contains a number of definitions that define different types of 
locomotives covered by the various provisions contained in part 229. 
These include the general definition of ``locomotive'' as well as 
various types of locomotives including: ``control cab locomotive,'' 
``DMU locomotive,'' and ``MU locomotive.'' Representatives of various 
railroads and equipment manufacturers have expressed concern over these 
definitions, contending that they were confusing and contained some 
overlap making it difficult to determine which category a particular 
locomotive fell within.
    The definition of ``MU locomotive'' was recently reissued in its 
full length when the final rule on Locomotive Event Recorders was 
published on June 30, 2005. See 70 FR 37939. Subparagraph (2) of the 
current definition identifies an MU locomotive as ``a multiple unit 
operated electric locomotive * * * (2) without propelling motors but 
with one or more control stands.'' This portion of the MU locomotive 
definition is identical to the definition of ``control cab 
locomotive.'' In an effort to add clarity and to definitively 
distinguish a MU locomotive from a control cab locomotive, the final 
rule adds some limiting language to the definition of what constitutes 
a MU locomotive. Historically, FRA has only considered a locomotive 
without propelling motors to be a MU locomotive if it has the ability 
to pick-up primary power from a third rail or a pantograph. 
Consequently, the final rule adds this language to the existing 
definition of MU locomotive to make it consistent with FRA's historical 
enforcement and interpretation of the regulation.
Section 229.31 Main Reservoir Tests
    The final rule retains the proposed amendments to paragraphs (a) 
and (c) of this section to provide the manufacturers of main reservoirs 
the option to test main reservoirs pneumatically rather than 
hydrostatically as currently mandated. Other than APTA's comments 
supporting the provisions, FRA received no comments on the proposed 
amendments. The modifications will permit a main reservoir to receive a 
pneumatic test before it is originally placed in service or before an 
existing main reservoir is placed back in service after being drilled. 
As discussed in detail in Section B of the Technical Background portion 
of this document, the ASME code currently utilized by all manufacturers 
of main reservoirs allows for the pneumatic testing of the reservoirs 
when the introduction of liquid cannot be tolerated. The introduction 
of water to perform hydrostatic testing on main reservoirs creates a 
problem because if the liquid is not completely removed and the 
reservoir interior completely dried, the moisture results in poor 
adhesion or a lower coating of film than required. This condition has 
the potential of causing interior corrosion and premature failure of 
the reservoir.
    The rationale for originally requiring that the main reservoirs be 
tested hydrostatically was based on the safety concerns should a main 
reservoir catastrophically fail during the testing. The likelihood of 
injury is minimized by having the reservoir filled with a liquid rather 
than air. However, since the original drafting of the locomotive 
regulations, manufacturers of reservoirs have implemented and developed 
both equipment and procedures to ensure that test personnel are 
adequately shielded when conducting the testing. The manufacturers have 
been performing pneumatic testing on reservoirs for years and FRA is 
not aware of any injury related to such testing in manufacturer-
controlled facilities. Thus, the safety concerns originally attached to 
pneumatic testing have been minimized, if not eliminated, when 
conducted at properly equipped manufacturer facilities.
    In addition to the safety benefits related to pneumatic testing, 
FRA recognizes that all passenger car main reservoirs are pneumatically 
tested after fabrication and before the application of an interior 
protective coating. This process is utilized so that reservoirs may be 
repaired if the reservoir does not pass the initial the test 
requirements. If the interior protective coating were to be applied 
prior to testing, any weld repairs could not be performed, as the 
interior coating would be damaged. Thus, in recognition of current 
industry practice and in an effort to provide compliance options that 
are beneficial from a safety perspective, the final rule will to permit 
the manufacturers of main reservoirs to utilize pneumatic testing to 
meet the requirements contained in paragraphs (a) and (c) of this 
section. FRA believes that this flexibility increases both the safety 
and efficiency of testing newly manufactured main reservoirs and 
reservoirs that are newly drilled and tested at a manufacturer's 
facility.
    It should be noted that the final rule limits the ability to 
conduct pneumatic testing of the main reservoirs to only those 
facilities with appropriate safeguards in place to ensure the safety of 
the personnel conducting the testing. After a reservoir is installed on 
a locomotive, FRA believes that hydrostatic testing would be the only 
testing method that adequately ensures the safety and protection of the 
personnel that are performing the test or working near the installed 
reservoir. In order to make this intent clear, paragraph (c) contains 
language that plainly states that pneumatic testing of a reservoir 
currently in use and newly drilled may only be conducted by a 
manufacturer of main reservoirs in a suitably safe environment. In 
other circumstances, a hydrostatic test of the reservoir must be 
conducted.
Section 229.47 Emergency Brake Valve
Section 229.137 Sanitation, General Requirements
    The final rule is retaining the proposed technical clarification to 
paragraph (b) of Sec.  229.47 and paragraph

[[Page 61845]]

(b)(1)(iv) of Sec.  229.137. FRA did not receive any comments on these 
proposed clarifications and is retaining them in this final rule 
without change. FRA is making these clarifications in order to ensure 
that these sections are consistent with the new definition of ``DMU 
locomotive.'' The recently published final rule on Locomotive Event 
Recorders added the definition of ``DMU locomotive'' to 49 CFR part 
229. See 70 FR 37920 (June 30, 2005). This definition was added to part 
229 in order to specifically identify diesel-powered multiple unit 
locomotives. These types of locomotives are just starting to be used by 
a small number of passenger railroads and FRA wants to be sure that 
they are adequately addressed by the safety standards contained in part 
229. As these types of locomotives are fairly unique, they do not fit 
cleanly within the regulations as they pertain to traditional 
locomotives and MU locomotives. In some instances they are treated as 
traditional locomotives and in others they are treated as MU 
locomotives. In an effort to clarify the applicability of various 
provisions contained in part 229, FRA is amending Sec. Sec.  229.47 and 
229.137 to specifically state that DMU locomotives are covered by these 
provisions. These clarifications are consistent with FRA's historical 
application of the regulations to DMU locomotives.

Amendments to 49 CFR Part 238

Section 238.5 Definitions
    The final rule retains the proposed clarifying amendments to the 
definitions section contained in part 238 by revising the definition of 
``actuator'' currently contained in regulation and by adding a new 
definition for ``piston travel indicator.'' FRA did not receive any 
comments in response to the proposed amendments and is retaining them 
in this final rule without change. The term ``actuator'' used by FRA in 
the Passenger Equipment Safety Standards final rule is a term that many 
members of the passenger industry associate and use to identify a 
specific self-contained brake system component that typically consists 
of a cylinder, piston, and piston rod. FRA was not intending to 
identify this brake system component when it included the term in Sec.  
238.313(g)(3) of the original regulation. FRA also notes that the term 
actuator is used in the definition of ``piston travel'' in this section 
to refer to the brake system component described above.
    In order to prevent and limit any confusion on the part of the 
regulated community, the final rule modifies the definition of 
``actuator'' to describe the brake system component to which the term 
has traditionally been attached and which is what the term refers to in 
the definition of ``piston travel.'' In addition, the final rule is 
adding a new term to part 238 to describe the device originally defined 
as an ``actuator.'' Therefore, the final rule adds the term ``piston 
travel indicator'' to describe a device directly activated by the 
movement of the brake cylinder piston, the disc actuator, or the tread 
brake unit cylinder piston that provides an indication of piston 
travel. The final rule also replaces the term ``actuator'' in Sec.  
238.313(g)(3) with the term ``piston travel indicator.''
Section 238.17 Movement of Passenger Equipment With Other Than Power 
Brake Defects
    The final rule retains the proposed conforming change in paragraph 
(b) of this section to acknowledge the flexibility being provided Sec.  
238.303(e)(17) of this final rule relating to inoperative or 
ineffective air compressors on MU passenger equipment. As discussed in 
detail above in the Technical Background portion of the preamble and in 
the section-by-section discussion related to Sec.  238.303 below, the 
final rule permits certain MU passenger equipment with inoperative or 
ineffective air compressors to continue to be used in passenger service 
until the next exterior calendar day mechanical inspection.
Section 238.21 Special approval procedures
    The final rule retains the proposed conforming changes to 
paragraphs (a) and (c) of this section to recognize the requirements 
relating to safety appliances on both existing and new passenger 
equipment contained in Sec. Sec.  238.229 and 238.230 of this final 
rule. These conforming changes recognize the provisions of those 
sections that require a railroad to obtain FRA approval of welded 
safety appliance attachment or of an industry-wide standard relating to 
safety appliance arrangements on new passenger equipment of unique 
design.
Section 238.229 Safety appliances--general
    In this section, FRA is incorporating and clarifying its long-
standing administrative interpretations regarding the attachment of 
safety appliances and safety appliance brackets and supports. FRA is 
also requiring an inspection program for permitting existing passenger 
equipment to remain in service in lieu of requiring retro-fitting of 
the equipment to eliminate welded safety appliance brackets or 
supports. FRA adopted these provisions unilaterally and did not seek a 
recommendation or concurrence from RSAC. These issues are discussed 
above in the Technical Background section of the preamble to the final 
rule and in the preamble to the NPRM. See 70 FR 73075-78. As FRA sees 
no benefit in reproducing the entire discussion here, interested 
parties should refer to those discussions when considering the 
provisions contained in this section of the final rule.
    Based on consideration of the information provided by the RSAC 
Working Group when developing the NPRM as well as the comments 
submitted in response to the NPRM, the final rule is modifying some of 
the provisions proposed in the NPRM related to the attachment of safety 
appliances on passenger equipment. The final rule retains many of the 
provisions proposed in the NPRM but is being expanded to adopt APTA's 
recommendations for determining when a welded safety appliance bracket 
or support will be considered part of the car body. FRA believes that 
welding technologies have improved significantly over the last several 
decades. In addition, passenger operations provide a unique environment 
suitable to the use of welding as a means of attachment in certain 
situations. Moreover, FRA believes that APTA has provided a viable and 
enforceable specification for ensuring that welded safety appliance 
brackets and supports are securely, safely, and reliably attached to 
the equipment on which it is placed. Volpe reviewed APTA's welding 
specifications, at FRA's request, and confirmed that safety appliance 
brackets or supports welded to the car body in accordance with the 
standards recommended by APTA would be at least as secure and reliable 
as a bracket or support attached with a mechanical fastener. FRA 
further believes that BRC's concerns are addressed by the final rule 
provisions because the final rule will only consider welded safety 
appliance brackets or supports to be part of the car body if stringent 
and verifiable standards are utilized when making the welded 
connection. In addition, the final rule will allow existing equipment 
with welded brackets or supports to continue in service only if it is 
inspected and repaired in accordance with the strict inspection and 
repair provisions contained in the rule. Consequently, FRA is including 
APTA's recommended specifications related to welded safety

[[Page 61846]]

appliance brackets and supports in this final rule with slight 
modification for clarity and enforceability.
    Paragraphs (a) and (b) of this section contain FRA's long-standing 
administrative interpretations prohibiting the use of welding as a 
means of attaching or repairing either a safety appliance or a safety 
appliance bracket or support. Paragraph (a) makes clear that all 
passenger equipment continues to be subject to the statutory provisions 
contained in 49 U.S.C. chapter 203 as well as the regulatory provisions 
contained in 49 CFR part 231. Paragraph (b) incorporates FRA's long-
standing administrative interpretations regarding the welding of safety 
appliances and their supports. This paragraph makes clear that safety 
appliances and their brackets or supports are to be mechanically 
fastened to the car body and specifically states that welding as a 
method of attachment is generally prohibited. This paragraph also 
explains that FRA permits the welding of a brace or stiffener used in 
connection with mechanically fastened safety appliance and provides a 
definition of what constitutes a ``brace'' or ``stiffener'' in these 
arrangements.
    Paragraph (c) contains specific exceptions to FRA's general 
prohibition related to welded safety appliances and welded safety 
appliance brackets and supports for passenger equipment placed in 
service prior to January 1, 2007. The final rule reorganizes this 
paragraph from that proposed in the NPRM in order to provide clarity 
and to prevent any misunderstanding. This paragraph only addresses 
welded safety appliances on existing passenger equipment (i.e., 
equipment placed in service prior to January 1, 2007). Provisions 
related to welded safety appliances on new passenger equipment (i.e., 
equipment placed in service on or after January 1, 2007) are contained 
in Sec.  238.230 of this final rule. FRA believes that the segregation 
of these two types of vehicles provides a better understanding of the 
provisions related to each and allows them to be handled differently.
    Paragraph (c)(1) retains the proposed exception for passenger 
equipment placed in service prior to January 1, 2007, equipped with a 
safety appliance that is mechanically fastened to a bracket or support 
that is welded to the vehicle. Rather than require the retrofitting of 
existing equipment that currently contain safety appliance brackets or 
supports that are attached to the equipment by welding, FRA will permit 
the equipment to remain in service provided that the equipment is 
identified, inspected, and handled for repair in accordance with the 
provisions contained in paragraphs (e) through (k) of this section. FRA 
believes the identification and inspection plan required in this final 
rule will ensure the safe operation of equipment currently in service.
    The final rule also expands this paragraph to provide an exception 
for welded safety appliance brackets or supports that are determined to 
meet the requirements for being considered part of the car body 
contained in Sec.  238.230(b)(1) of this final rule. This paragraph 
exempts the safety appliance brackets and supports from any further 
periodic inspections if it is determined during the initial inspection 
that they are part of the car body, do not contain a defect, and are 
identified to FRA in writing. FRA wishes to make clear that all 
existing equipment with welded safety appliance brackets or supports 
must be given an initial inspection pursuant to paragraphs (g) through 
(i) of this section and must be handled for remedial action pursuant to 
paragraph (j) of this section. Thus, safety appliance brackets and 
supports determined to be part of the car body and meeting the other 
restrictions contained in this paragraph are only excepted from the 
future 6-year periodic inspections provided for in paragraph (g)(1) of 
this section.
    Paragraph (c)(2) of this final rule is modified from that proposed 
in the NPRM to apply only to existing passenger equipment with safety 
appliances directly welded to the equipment. As noted above, FRA 
believes that this makes the rule easier to understand. Provisions 
related to new passenger equipment with safety appliances directly 
welded to the equipment are contained in Sec.  238.230(b)(2) of this 
final rule. This paragraph acknowledges the fact that in some 
instances, due to the design of a vehicle, safety appliances are 
required to be directly attached to a piece of equipment by welding. 
Other than this clarifying change, the provision is identical to that 
proposed in the NPRM. This paragraph requires railroads to identify 
each piece of existing passenger equipment outfitted with a safety 
appliance welded directly to the vehicle and requires that any such 
safety appliances be inspected and handled in accordance with the 
inspection and repair provisions contained in paragraphs (g) through 
(k). FRA notes that only the specifically identified safety appliances 
will be required to be so inspected and handled.
    Paragraph (d) contains standards to clarify when a weld on a safety 
appliance and a safety appliance bracket or support is to be considered 
defective. This paragraph has been slightly modified from that proposed 
in the NPRM. In its comments, APTA recommended that a weld only be 
considered defective if it contained a crack. APTA asserted that 
including any anomaly affecting the strength of the weld would result 
in subjective application of the rule and would require inspectors to 
be specially trained to identify such anomalies. Moreover, APTA asserts 
that any failure of a weld would begin with a small crack that would 
grow very slowly. In the unlikely event that a crack were to even 
develop, it would take months or years for failure of the weld to occur 
and such cracks would be easy to detect with the visual inspections 
performed on safety appliances by railroads on a daily basis. FRA 
agrees with APTA's assertions. Thus, the final rule amends the proposed 
provision by limiting the definition of a weld defect to being a crack 
or fracture of any discernible length or width. FRA believes this 
approach is consistent with existing welding technology, ensures 
consistent application of the regulation, and will avoid excessive 
training of inspectors by limiting their inspection criteria. This 
paragraph also requires that any repairs made to a defective weld must 
be made in accordance with the inspection plans and remedial action 
provisions contained in paragraph (g) and (j) of this section.
    Paragraphs (e) and (f) retain the proposed provisions relating to a 
railroad's identification of all existing passenger equipment that 
contains a welded safety appliance bracket or support. FRA did not 
receive any comment directly related to these provisions in response to 
the NPRM and is retaining them without change in this final rule. 
Paragraph (e) requires the listing to be submitted to FRA by no later 
than December 31, 2006, and permits railroads to update the list if 
they identify equipment after that date. These paragraphs permit 
railroads to exclude certain safety appliances from the inspection 
provisions provided the railroad fully explains the basis for any such 
exclusion. FRA envisions such exclusions to be limited to situations 
where inspection of the weld is impossible or in situations where the 
size and quality of a weld are such to make inspection unnecessary 
(i.e., where the bracket or support is a structural member of the car). 
Paragraph (f) makes clear that FRA reserves the right to disapprove any 
exclusion proffered by a railroad by providing

[[Page 61847]]

written notification to the railroad of any such decision.
    Paragraphs (g) through (j) contain the inspection and repair 
criteria for any equipment identified with a welded safety appliance or 
welded safety appliance bracket or support. These paragraphs contain 
provisions concerning when visual inspections of the involved safety 
appliances would be required to be performed and address the 
qualifications of the individuals required to perform the inspections 
as well as the procedures to be utilized when performing the 
inspections. FRA considered various methods for inspecting the welds on 
the involved equipment including various types of non-destructive 
testing on smaller numbers of the involved welds. However, FRA 
continues to believe that periodic visual inspections of all the 
identified welds is the most effective and cost-efficient method of 
ensuring the proper condition of the attachments.
    Paragraph (h) identifies a number of different types of individuals 
that could be utilized by a railroad to perform the required visual 
inspections of welded safety appliances and welded safety appliance 
brackets and supports. FRA believes that these inspectors must be 
properly trained and qualified to identify defective weld conditions. 
Rather than limit a railroad's ability to utilize a number of its 
available personnel, FRA has attempted to list a number of different 
types of persons that would have the ability to conduct the required 
visual inspections based on railroad provided training or due to being 
certified under an accepted existing industry, national or 
international welding standard. This paragraph has been slightly 
modified from that proposed in the NPRM in order to remain consistent 
with this approach. The final rule recognizes that there are a number 
of existing national and international welding standards under which a 
person may be certified and that these standards may be modified on a 
regular basis. Thus, rather than attempting to incorporate these 
existing standards into the regulation, the final rule identifies many 
of the currently existing standards and makes clear that a more revised 
version of the identified standard is acceptable provided it is 
equivalent to the standard it updates. The final rule also acknowledges 
that there may be other nationally or internationally recognized 
welding standards that would be equivalent to those specifically 
identified and makes clear that certification under these other 
unspecified standards would be acceptable provided they are equivalent 
to one of the specifically identified welding certification standards.
    FRA expects that most railroads will utilize a qualified 
maintenance person (QMP) to conduct the inspections, as they are the 
individuals recognized to conduct most of the other brake and 
mechanical inspections required under part 238. FRA notes that a QMP 
would be required to receive at least four hours of training specific 
to weld defect identification and weld inspection procedures to be 
deemed qualified to perform the required periodic inspections. FRA did 
not receive any comments suggesting that more training of QMP's would 
be necessary and is retaining the four hour training requirement in 
this final rule.
    Paragraph (j) contains remedial actions that are required to be 
utilized in situations where a welded safety appliance or safety 
appliance bracket or support is found defective either during the 
periodic visual inspections or while otherwise in service. FRA did not 
receive any comments specifically related to the provisions contain in 
this section in response to the NPRM and is retaining them without 
change in this final rule. This paragraph makes clear that unless the 
defect is known to be the result of crash damage, the railroad must 
conduct a failure and engineering analysis to determine the cause of 
the defective condition. The remedial action provisions permit a 
defective welded safety appliance or safety appliance bracket or 
support to be reattached to a vehicle by either mechanical fastening or 
welding if the defective condition is due to crash damage or improper 
construction. Any welded repair would be required to be conducted in 
accordance with APTA's Standard for Passenger Rail Vehicle Structural 
Repair, SS-C&S-020-03 (September 2003).
    In conformance with Office of Management and Budget (OMB) Revised 
Circular A-119 (February 10, 1998), FRA is using a voluntary national 
standard in this paragraph of the final rule. FRA's use of a standard 
established by APTA is a means of establishing technical requirements 
without increasing the volume of the Code of Federal Regulations. See 1 
CFR part 51. In this final rule, FRA has incorporated the most current 
version of the APTA standard, however FRA understands that over time, 
APTA may revisit this standard and may update it. In such instances, 
FRA may approve the use of a more recent standard via the special 
approval procedures contained in Sec.  238.21. FRA also intends to 
regularly update the rule, most likely through the use of technical 
amendments, and would incorporate APTA's revised standards at that 
time. Federal law requires that a publication incorporated by reference 
be identified by its title, date, edition, author, publisher, and 
identification number, this final rule incorporates the most current 
APTA standard only. See 1 CFR 51.9(b)(2).
    In instances where the defective condition is due to inadequate 
design, such as unanticipated stresses or loads during service, the 
final rule requires that the safety appliance be mechanically attached, 
if possible, and requires railroads to develop a plan for submission to 
FRA detailing a schedule for mechanically fastening the safety 
appliances of safety appliance brackets or supports on all cars in that 
series of cars. The final rule retains these strict provisions because 
where inadequate design causes failure of the safety appliances it is 
an indication that there is likely a systemic problem for all cars 
similarly constructed.
    Paragraph (k) retains the proposed requirement related to 
maintaining records of both the inspections and any repairs made to 
welded safety appliances or welded safety appliance brackets or 
supports. FRA did not receive any comments related to these provisions 
in response to the NPRM and is retaining them in this final rule 
without change. These records will not only aid FRA's enforcement of 
the final rule provisions but will also provide invaluable information 
regarding the longevity and integrity of welded appliances and brackets 
or supports. The records required in this paragraph may be maintained 
in any format (written, electronic, etc.), but must be made available 
to FRA upon request.
Section 238.230 Safety Appliances--New Equipment
    This section contains requirements related to safety appliances on 
passenger equipment placed into service after January 1, 2007. This 
section reiterates FRA's long-standing prohibition on welding of safety 
appliance brackets or supports. Paragraph (b) incorporates FRA's long-
standing administrative interpretations regarding the welding of safety 
appliances and their supports. This paragraph makes clear that safety 
appliances and their brackets or supports are to be mechanically 
fastened to the car body and specifically states that welding as a 
method of attachment is generally prohibited except as specifically 
provided in this section. Paragraphs (b)(1) through (b)(3) contain the 
specific exceptions to FRA general prohibition on welded safety

[[Page 61848]]

appliances and their brackets or supports.
    Paragraph (b)(1) contains the criteria for determining when a 
safety appliance bracket or support will be considered part of the car 
body and thus, obviating the need to mechanically fasten the bracket or 
support to the body of the piece of equipment. As discussed above, FRA 
carefully considered suggestions that would allow limited use of 
welding to attach safety appliances brackets and supports on new 
passenger equipment. FRA believes that welding technologies have 
improved significantly over the last several decades. In addition, 
passenger operations provide a unique environment suitable to the use 
of welding as a means of attachment in certain situations. Moreover, 
FRA believes that APTA has provided a viable and enforceable 
specification for ensuring that welded safety appliance brackets and 
supports are securely, safely, and reliably attached to the equipment 
on which it is placed. Volpe reviewed APTA's welding specifications, at 
FRA's request, and confirmed that safety appliance brackets or supports 
welded to the car body in accordance with the standards recommended by 
APTA would be at least as secure and reliable as a bracket or support 
attached with a mechanical fastener. FRA further believes that BRC's 
concerns are addressed by the final rule provisions because the final 
rule will only consider welded safety appliance brackets or supports to 
be part of the car body if the stringent and verifiable standards 
contained in this paragraph are followed when making the welded 
connection. Consequently, FRA is including APTA's recommended 
specifications related to welded safety appliance brackets and supports 
in this paragraph with slight modification for clarity and 
enforceability.
    Paragraph (b)(1) contains specific criteria that must be met in 
order for a safety appliance bracket or support to be considered part 
of the car body. These include such things as: The surface to which the 
bracket or support is welded; the surface area of the weld; the type 
and size of the weld; the welding process that must be utilized; and 
the qualifications of the individual performing the weld. This 
paragraph also requires that any such bracket or support be inspected 
by a qualified person prior to being placed in service. This inspection 
may be conducted by either the manufacturer or the railroad; provided, 
a record of the inspection is maintained and made available to FRA upon 
request.
    In an effort to remain realistic and practical, paragraphs (b)(2) 
and (b)(3) of this section acknowledge that there may be instances 
where the design of a vehicle makes it impracticable to mechanically 
attach a safety appliance or a safety appliance bracket or support and 
necessitates the need to weld the safety appliance or the bracket or 
support. These paragraphs are identical to those proposed in the NPRM 
but have been reorganized for clarity. FRA did not receive any comments 
on these specific provisions and is retaining them in this final rule. 
FRA intends to make clear that the flexibility to utilize welding in 
these applications will be narrowly construed and will only be 
permitted in instances where a clear nexus between the equipment design 
and the need to weld a safety appliance or a safety appliance bracket 
or support exists.
    These paragraphs require a railroad to identify any such equipment 
prior to placing it in service and requires the railroad to clearly 
describe the necessity to weld the safety appliance or the bracket or 
support. In the case of a welded safety appliance bracket or support 
not considered to be part of the car body, the railroad must receive 
FRA's approval prior to placing the equipment in service and must 
describe the industry standard followed when making such an attachment. 
In the case of a safety appliance welded directly to the vehicle, the 
railroads must provide a detailed rationale explaining how the design 
of the vehicle or placement of the safety appliance requires the direct 
welding of the appliance to the equipment prior to placing the 
equipment in service. Paragraph (b)(2) and (b)(3) make clear that any 
new equipment containing a welded safety or a welded safety appliance 
bracket or support not considered part of the car body are required to 
be inspected and handled in accordance with the provisions contained in 
Sec.  238.229(g) through (k).
    Paragraph (c) is a new paragraph being added to this final rule to 
make clear that a welded safety appliance or a welded safety appliance 
bracket or support will be considered defective if any portion of the 
weld is considered defective pursuant to Sec.  238.229(d) of this part. 
FRA intends to make clear that any welded safety appliance bracket or 
support, even if considered part of the car body, is covered by this 
provision. This paragraph also makes clear that defective welds on 
safety appliances and safety appliance brackets and supports will be 
assessed under the penalty schedule contained in 49 CFR part 231, 
Appendix A. This paragraph further requires that any repair conducted 
to a welded safety appliance bracket or support considered part of the 
car body is to be conducted in accordance with APTA Standard SS-C&S-
020-03 that is incorporated by reference in Sec.  238.229.
    Paragraph (d) retains the proposed requirements that would permit 
the submission of industry-wide safety appliance arrangement standards 
to FRA for its approval. FRA did not receive any specific comments on 
these provisions in response to the NPRM and is retaining them in this 
final rule without change. As discussed in detail in the Section D of 
the Technical Background portion of the preamble, the Railroad Safety 
Appliance Standards currently contained in 49 CFR part 231 address a 
very limited number of different types of passenger equipment. The 
criteria for most of today's new types of passenger car construction 
are found within 49 CFR 231.18--Cars of special construction. This 
results from the fact that modern technology in construction of car-
building often does not lend itself to ready application of the 
existing 49 CFR part 231 requirements. Rather, the designer must adapt 
several different requirements to meet as closely as possible 
construction of specific safety appliance arrangements in order to 
obtain compliance. Most passenger cars today are constructed outside 
the United States, and this has exacerbated the problem of varying 
interpretations of regulations and resulting safety appliance 
arrangements. At times, different requirements are applied to cars of 
similar design where both could have been constructed in the same 
manner. Substantial resources are spent on a regular basis by all 
parties concerned in review sessions to determine if a car is in 
compliance prior to construction; and even when the cars are delivered, 
problems have arisen.
    In attempt to limit these problems, paragraph (d) provides a 
process by which the industry may request approval of safety appliance 
arrangements on new equipment considered to be cars of special 
construction under 49 CFR part 231. This paragraph will permit the 
industry to develop standards to address many of the new types of 
passenger equipment introduced into service. The final rule will 
require these standards, and supporting documentation to be submitted 
to FRA for FRA approval pursuant to the special approval process 
already contained in Sec.  238.21 of this regulation. This paragraph 
makes clear that any approved standard will be enforceable against any 
person who violates or causes the violation of the approved standard 
and that the penalty

[[Page 61849]]

schedule contained in Appendix A to 49 CFR part 231 will be used in 
assessing any applicable civil penalty.
    The goal of this final rule is to develop consistent safety 
appliance standards for each new type of passenger car not currently 
identified in the Federal regulations that ensure the construction of 
suitable safety appliance arrangements in compliance with 49 CFR part 
231. FRA believes the final rule will reduce or eliminate reliance upon 
criteria for cars of special construction, will improve communication 
of safety appliance requirements to the industry, and will facilitate 
regulatory compliance where clarification or guidance is necessary.
Section 238.231 Brake system
    Paragraph (b) retains the proposed provision relating to the design 
of passenger equipment placed in service for the first time on or after 
September 9, 2002. The final rule slightly amends the language of this 
provision for purposes of clarity and consistency. The final rule also 
retains the proposed additional inspection criteria for such equipment 
if it is not designed to permit visual observation of the brake 
actuation and release from outside the plane of the equipment. A full 
discussion of the development of these provisions is provided in 
Section C of the Technical Background portion of this document and need 
not be reiterated here. The plain language of paragraph (b), as issued 
in the 1999 Passenger Equipment Safety Standards final rule, required 
new equipment to be designed to allow direct observation of the brake 
actuation and release without fouling the equipment. The preamble to 
that final rule discusses alternative design approaches using some type 
of piston travel indicator or piston cylinder pressure indicator on 
equipment whose design makes it impossible to meet this requirement. 
See 64 FR 25612 (May 12, 1999).
    Subsequent to the issuance of the 1999 final rule, FRA recognized 
that the envisioned ``indicators'' discussed in the preamble of the 
final rule were ahead of the technological curve for passenger 
equipment currently being delivered and that which may be delivered in 
the future. Thus, FRA noted its willingness to the RSAC and the Task 
Force to consider alternatives to requiring piston travel indicators on 
such equipment. FRA and the members of the Task Force believed that the 
best approach to the issue was to provide additional inspection 
protocols for new equipment designed in a manner that makes observation 
of the actuation and release of the brakes impossible from outside the 
plane of the equipment in lieu of mandating the use of untested and 
potentially unreliable piston travel indicators. Because the necessary 
design of some new equipment makes the daily inspections of the 
equipment more difficult, does not permit visual observation of the 
brake actuation and release from outside the plane of the vehicle and 
because no reliable mechanical device is currently available to provide 
a direct indication of such, the NPRM proposed additional inspection 
protocols for this type of equipment. FRA did not receive any comments 
directly related to the proposed inspection protocols or the proposed 
approach to this issue. However, FRA is amending the proposed language 
to accurately capture the intent of the provision. Thus, this final 
rule language clearly identifies the design requirement that is to be 
met when practicable and details equipment and inspection requirements 
for equipment not meeting the general design requirement. The 
clarifying changes made in this final rule are consistent with the 
intent of the provision as originally proposed.
    The inspection regiment referenced in paragraph (b) will be 
applicable to equipment placed in service on or after September 9, 
2002, the design of which does not permit actual visual observation of 
the brake actuation and release. The requirements related to this type 
of equipment are similar to those contained in a FRA Safety Board 
letter dated October 19, 2004, granting that portion of the 
Massachusetts Bay Transportation Authority's (MBTA) waiver petition 
seeking relief from the requirements of Sec.  238.231(b) for 28 
Kawasaki bi-level coaches. See Docket Number FRA-2004-18063. The final 
rule requires such equipment to be equipped with either piston travel 
indicators or brake indicators as defined in Sec.  238.5. The equipment 
will also be required to receive a periodic brake inspection by a QMP 
at intervals not to exceed five in-service days and the inspection will 
have to be performed while the equipment is over an inspection pit or 
on a raised track. In addition, the railroad performing the inspection 
will be required to maintain a record of the inspection consistent with 
the existing record requirements related to Class I brake tests. The 
specific inspection criteria are discussed in more detail in the 
section-by-section analysis related to Sec.  238.313. FRA believes that 
these additional inspection requirements will ensure the safety and 
proper operation of the brake system on equipment which does not permit 
actual visual observation of the brake actuation and release without 
fouling the vehicle.
    FRA received one suggestion from APTA regarding the identification 
of cars that will be covered by this paragraph and the additional 
inspection requirements contained in Sec.  238.313(j). APTA wanted FRA 
to make clear that the railroad and car manufacturer would make an 
initial determination regarding the applicability of the requirements 
contained in this paragraph and that FRA would oversee these 
determinations for accuracy. FRA agrees with this position as the 
railroad and car manufacturer are in the best position to make an 
initial determination. FRA will exercise its oversight when conducting 
sample car inspections as well as its regular inspection activity. FRA 
notes that the additional inspection requirements would be applicable 
to new cars constructed similar to the low-slung bi-level passenger 
coaches that were the subject of MBTA's waiver request discussed above.
    Paragraph (h) of the final rule retains the proposed provisions 
related to the inspection of locomotive hand or parking brakes as well 
as proposed provisions addressing the securement of unattended 
equipment. Other than APTA's brief statement in support of the 
provisions, FRA did not receive any comments on these proposed 
provisions and is retaining them in this final rule without change. The 
final rule modifies existing paragraph (h)(3) to require that the hand 
or parking brake on other than MU locomotives be inspected no less 
frequently that every 368 days and that a record (either stencil, blue 
card, or electronic) be maintained and provided to FRA upon request. 
Similar provisions were previously contained in Sec.  232.10, prior to 
part 232's revision in January of 2001. However, FRA inadvertently 
failed to include hand brake inspection provisions in its original 
issuance of the Passenger Equipment Safety Standards. The inspection 
and testing intervals as well as the stenciling and record keeping 
requirements contained in paragraph (b)(3) are consistent with the 
current industry practices and will impose no additional burden on the 
industry.
    The final rule also retains the proposed addition of a new 
paragraph (h)(4) that contains specific requirements related to the 
securement of unattended equipment. A detailed discussion regarding the 
development of these provisions is contained in Section E of the 
Technical Background portion of the preamble. FRA believes that the 
rational for addressing these issues on freight operations is equally 
applicable to passenger operations. The preamble

[[Page 61850]]

to the final rule related to 49 CFR part 232 contains an in-depth 
discussion of the need to address these issues. See 66 FR 4156-58 
(January 17, 2001). The approach contained in this final rule is also 
consistent with the guidance contained in FRA Safety Advisory 97-1. See 
62 FR 49046 (September 15, 1997). The requirements contained in this 
paragraph are consistent with and based directly on current passenger 
industry practice. Thus, in FRA's view, the provisions will have no 
economic or operational impact on passenger operations but will ensure 
that these best practices currently adopted by the industry are 
followed and complied with by making them part of the Federal 
regulations.
    Paragraph (h)(4) requires that unattended equipment be secured by 
applying a sufficient number of hand or parking brakes to hold the 
equipment and will require railroads to develop and implement a process 
or procedure to verify that the applied hand or parking brakes will 
hold the equipment. The final rule also prohibits a practice known as 
``bottling the air'' in a standing cut of cars. A full discussion of 
the hazards related to this practice is contained in the preamble of 
the final rule related to freight power brakes. See 66 FR 4156-57. 
Virtually all railroads prohibit this practice in their operating 
rules, thus FRA does not believe any burden is being imposed on the 
railroads by including it in this rule.
    Paragraph (h)(4) also establishes the minimum number of hand or 
parking brakes that must be applied on an unattended locomotive consist 
or train. Due to the relatively short length and low tonnage associated 
with passenger trains, FRA does not believe that the more stringent 
provisions contained in Sec.  232.103(n)(3) are necessary in a 
passenger train context. Thus, this paragraph requires that at least 
one hand or parking brake be fully applied on an unattended passenger 
locomotive consist or passenger train; however, the number of applied 
hand or parking brakes will vary depending on the process or procedures 
developed and implemented by each covered railroad.
    Members of the Task Force sought clarification as to the meaning of 
the term ``fully applied'' as it relates to certain passenger equipment 
equipped with parking brakes. With the introduction of the spring 
applied parking brake, the parking brake can be ``conditioned to 
apply'' but may not be fully applied. Many spring applied parking brake 
arrangements usually incorporate an anti-compounding feature so the 
service brake application and parking brake application are not 
simultaneously applied. This arrangement is utilized to limit the 
thermal input that may occur if the forces from the service brake 
application and parking brake application are applied simultaneously. 
When the train is left unattended, the operator would ``condition'' the 
parking brake for application through a cab switch push button or by 
simply deactivating the cab through normal shutdown procedures. The 
brake equipment is either placed in an emergency brake condition or the 
brake pipe is vented to zero pressure at a service reduction rate. This 
brake equipment operation would result in brake cylinder pressure being 
applied to the brake units. The brake cylinder pressure provides 
sufficient force to create an equivalent force to that of the parking 
brake. If the equipment is not left on a source of compressed air, the 
brake cylinder pressure may be slowly depleted. When the brake cylinder 
pressure is gradually reduced, the parking brake gradually applies so 
that below a prescribed brake cylinder pressure, the parking brake is 
fully applied. In light of the preceding discussion, FRA intends to 
make clear that a spring applied parking brake will be considered 
``fully applied'' under paragraph (h)(4) if all steps have been take to 
permit its full application (i.e., ``conditioned to apply'').
    In addition, paragraph (h)(4) requires railroads to develop and 
implement procedures for securing locomotives not equipped with a hand 
or parking brake and develop, implement, and adopt instructions for 
securing any locomotive left unattended. As noted previously, FRA is 
not aware of any railroad which does not already have these procedures 
or processes in place. Thus, FRA believes that these requirements will 
not impose any burden on passenger operations covered by 49 CFR part 
238.
Section 238.303 Exterior calendar day mechanical inspection of 
passenger equipment
    Paragraph (e)(17) contains provisions requiring that air 
compressors, on passenger equipment so equipped, be in effective and 
operative condition. The provisions also provide flexibility to permit 
certain equipment found with ineffective or inoperative air compressors 
at its exterior calendar day mechanical inspection to continue in 
service until its next such inspection if various conditions are met by 
the railroad. Other than APTA's brief statement supporting these 
provisions, FRA did not receive any comments in response to the NPRM 
proposing the provisions. Thus, this final rule retains the proposed 
provisions without change. A full discussion regarding the development 
of these proposed provisions is contained in Section A of the Technical 
Background portion of the preamble.
    MU passenger locomotives are generally operated as married pairs 
but in some cases they can be operated as single or triple units. In 
the case of the married pairs, each pair of MU locomotives share a 
single air compressor. When operated in triple units, the three MU 
locomotives generally share two air compressors and single-unit MU 
locomotives are equipped with their own air compressor. The amount of 
air required to be produced by the air compressors is based on the size 
of the brake pipe and the brake cylinder reservoirs, the size of which 
are based on the calculated number of brake application and release 
cycles the train will encounter. In addition, the compressed air 
produced by the air compressors is shared within the consist by 
utilizing a main reservoir equalizing pipe or, in single pipe systems, 
through the brake pipe which is then diverted to the brake cylinder 
supply reservoir and other air operated devices by use of a governor 
arrangement. Therefore, a passenger train set consisting of numerous MU 
locomotives will have multiple air compressors providing the train 
consist with the necessary compressed air. FRA agrees with the 
determinations of the Task Force and the full RSAC that a loss of 
compressed air from a limited number of air compressors in such a train 
will not adversely effect the operation of the train's brakes or other 
air-operated components on the train.
    Paragraph (e)(17) permits MU train sets with a limited number of 
inoperative or ineffective air compressors to continue to be used in 
passenger service until the next exterior calendar day mechanical 
inspection when found at such an inspection. This paragraph requires a 
railroad to determine through data, analysis, or actual testing the 
maximum number of inoperative or ineffective air compressors that could 
be in an MU train set without compromising the integrity or safety of 
the train set based on the size and type of train and the train's 
operating profile. The railroad is required to submit the maximum 
number of air compressors permitted to be inoperative or ineffective on 
its various trains to FRA before it can begin operation under the 
provision and will be required to retain and make available to FRA any 
data or analysis relied on to make those determinations.
    Paragraph (e)(17) also requires a qualified maintenance person 
(QMP) to

[[Page 61851]]

verify the safety and integrity of any train operating with inoperative 
or ineffective air compressors before the equipment continues in 
passenger service. In addition, the final rule requires notification to 
the train crew of any inoperative or ineffective air compressors and 
requires that a record be maintained of the defective condition. FRA 
notes that this paragraph provides FRA with the authority to revoke a 
railroad's ability to utilize the flexibility contained in this 
paragraph if the railroad fails to comply with the maximum limits 
established for continued operation of inoperative air compressors or 
the maximum limits are not supported by credible and accurate data. FRA 
believes that the provisions contained in this paragraph will ensure 
the safety of passenger operations while providing the railroads 
additional flexibility in handling defective or inoperative equipment.
Section 238.307 Periodic mechanical inspection of passenger cars and 
unpowered vehicles used in passenger trains
    Paragraphs (c)(13) and (d) retain the proposed requirements related 
to the periodic inspection of hand or parking brakes on passenger cars 
and other unpowered vehicles. FRA did not receive any comments related 
to these provisions in response to the NPRM and is retaining them in 
this final rule without change. As noted previously, FRA inadvertently 
failed to include any hand brake inspection provisions in its original 
issuance of the Passenger Equipment Safety Standards. Thus, FRA raised 
the issue with the RSAC and the Task Force and they recommended 
inclusion of various provisions regarding the inspection of hand and 
parking brakes on passenger equipment.
    Paragraph (c)(13) requires that the hand or parking brake on 
passenger cars and unpowered vehicles used in passenger trains be 
applied and released at each periodic mechanical inspection. No record 
of this inspection would need to be prepared or retained. Based on 
information provided at the Task Force and Working Group meetings, all 
passenger operations currently conduct this type of inspection of the 
hand and parking brakes at each periodic mechanical inspection. 
Paragraph (d) requires a complete inspection of the hand or parking 
brake as well as their parts and connections on passenger cars and 
unpowered vehicles no less frequently than every 368 days. Paragraph 
(d) also requires that a record (either stencil, blue card, or 
electronic) be maintained and provided to FRA upon request. The 
inspection and testing intervals as well as the stenciling and 
recordkeeping requirements contained in this paragraph are consistent 
with the current practices in the industry and will impose no 
additional burden on the industry.
Section 238.313 Class I brake tests
    Paragraph (g)(3) contains a conforming change to make this 
paragraph consistent with the definition changes being made in Sec.  
238.5 relating to the terms ``actuator'' and ``piston travel 
indicator.'' As noted previously, the final rule modifies the 
definition of ``actuator'' to describe the brake system component to 
which the term has traditionally been attached and which is what the 
term refers to in the definition of ``piston travel.'' In addition, the 
final rule adds a new term to part 238 to describe the device 
originally defined as an ``actuator.'' Therefore, the final rule adds 
the term ``piston travel indicator'' to describe a device directly 
activated by the movement of the brake cylinder piston, the disc 
actuator, or the tread brake unit cylinder piston that provides an 
indication of piston travel. Consequently, a conforming change is being 
made in paragraph (g)(3) by replacing the term ``actuator'' with the 
term ``piston travel indicator'' in order to add clarity to the 
regulatory provision.
    Paragraph (j) retains the proposed requirements related to the 
periodic inspection of passenger equipment placed in service for the 
first time on or after September 9, 2002, the design of which does not 
permit actual visual observation of the brake actuation and release as 
required in Sec.  238.231(b). FRA did not receive any comments 
objecting to these provisions and is retaining them in this final rule 
without change. A detailed discussion related to the development and 
need for these provisions is contained in Section C of the Technical 
Background portion of the preamble and in the section-by-section 
analysis related to paragraph (b) of Sec.  238.231. As previously 
noted, the periodic inspection requirements contained in this paragraph 
are similar to those contained in a FRA Safety Board letter dated 
October 19, 2004, granting that portion of the Massachusetts Bay 
Transportation Authority's (MBTA) waiver petition seeking relief from 
the requirements of Sec.  238.231(b) for 28 Kawasaki bi-level coaches. 
See DOT Docket Number FRA-2004-18063.
    Paragraph (j) makes clear that the periodic inspection provisions 
for the identified types of equipment are in addition to all of the 
other inspection provisions contained in paragraphs (a) through (i) of 
this section and must be performed by a QMP. The provisions require 
equipment not meeting the design requirements contained in Sec.  
238.231(b)(1) to receive a periodic brake inspection at intervals not 
to exceed five in-service days and the inspection must be performed 
while the equipment is over an inspection pit or on a raised track. Any 
day or portion of a day that a piece of passenger equipment is actually 
used in passenger service constitute an ``in-service day.'' FRA 
continues to believe that five in-service days is appropriate and will 
permit the required inspection to be performed during weekends or on 
other days when the equipment is not being used. Thus, the operational 
and economic impact of this additional inspection requirement is 
significantly minimized. The periodic inspection must include all of 
the items and components identified in paragraphs (g)(1) through 
(g)(15) of this section. In addition, the railroad performing the 
periodic inspection will be required to maintain a record of the 
inspection consistent with the existing record requirements related to 
Class I brake tests. FRA believes that these additional inspection 
requirements will ensure the safety and proper operation of the brake 
system on equipment which does not permit actual visual observation of 
the brake actuation and release without fouling the vehicle.
Section 238.321 Out-of-service credit
    As discussed previously, FRA did not seek consensus in the RSAC 
process for the proposed provision related to out-of-service credit 
contained in the NPRM. The issue was addressed on FRA's own motion in 
this proceeding in response to APTA's petition for rulemaking dated 
March 28, 2005. Other than APTA's support of the provision, FRA did not 
receive any comments related to this provision in response to the NPRM. 
Thus, this final rule retains the provision without change.
    The provision contained in this section is modeled directly on the 
``out-of-use credit'' provision contained in the Locomotive Safety 
Standards at 49 CFR 229.33. The locomotive out-of-use credit has been 
effectively and safely utilized by the railroad industry for decades. 
As passenger equipment is generally captive service equipment, is 
generally less mechanically complex than locomotives, and because the 
provisions for which the credit will be utilized are time-based, FRA 
believes it is appropriate to permit passenger and commuter operations 
to receive credit for extended periods of time when equipment is not 
being used. The

[[Page 61852]]

provision will permit railroads to extend the dates for conducting 
periodic mechanical inspections and periodic brake maintenance required 
by Sec. Sec.  238.307 and 238.309 for equipment that is out of service 
for periods of at least 30 days. The final rule will require railroads 
to maintain records of any out-of-service days on the records related 
to the periodic attention. FRA does not see a safety concern with 
permitting this flexibility. In fact, the regulation already provides 
assurances that the brake systems on all passenger cars and unpowered 
vehicles are in proper condition after being out of service for 30 days 
or more by requiring that a single car test pursuant to Sec.  238.311 
is performed on the vehicle before being placed back in service. See 49 
CFR 238.311(e)(1).

VI. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures, and determined to be non-significant under 
both Executive Order 12866 and DOT policies and procedures (44 FR 
11034; Feb. 26, 1979). FRA has prepared and placed in the docket two 
regulatory evaluations addressing the economic impact of this rule. 
Document inspection and copying facilities are available at the 
Department of Transportation Central Docket Management Facility located 
in Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh 
Street, SW., Washington, DC 20590. Access to the docket may also be 
obtained electronically through the Web site for the DOT Docket 
Management System at http://dms.dot.gov. Photocopies may also be 
obtained by submitting a written request to the FRA Docket Clerk at 
Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No. 
FRA-2005-23080.
    FRA conducted two separate regulatory evaluations addressing the 
economic impact of this final rule. One regulatory evaluation addresses 
the economic impact of the provisions related to the safety appliance 
arrangements on passenger equipment. The other analysis addresses the 
economic impact of all of the other provisions contained in this final 
rule. As FRA developed the requirements related to safety appliance 
arrangements on passenger equipment unilaterally, FRA believes it is 
appropriate to provide a separate regulatory analysis regarding the 
economic impact of those provisions. As the analyses indicate, this 
final rule provides an overall economic savings to the industry due to 
the flexibility provided for in many of the provisions and because many 
of the requirements incorporate existing industry practice or provide 
an alternative means of compliance to what is presently mandated.
    The following table presents the estimated twenty-year monetary 
impacts associated with the provisions contained in this final rule. 
The table contains the estimated costs and benefits associated with 
this final rule and provides the total 20-year value as well as the 20-
year net present value (NPV) for each indicated item. The dollar 
amounts presented in this table have been rounded to the nearest 
thousand. For exact estimates, interested parties should consult the 
Regulatory Impact Analysis (RIA) that has been made part of the docket 
in this proceeding.

------------------------------------------------------------------------
                                           20-year total    20-year NPV
               Description                      ($)             ($)
------------------------------------------------------------------------
Costs:
    Periodic Brake Inspection of Low-          4,350,000       1,957,000
     Slung Equipment....................
    Periodic Inspection of Welded Safety       1,888,000       1,178,000
     Appliances.........................
    Air Compressor Records..............         250,000         132,000
                                         -------------------------------
        Total Costs.....................       5,488,000       3,268,000
                                         ===============================
Benefits:
    Pneumatic Testing of Main Reservoirs       5,940,000       3,147,000
    Avoided Cost of Piston Travel              1,790,000         890,000
     Indicators.........................
    Air Compressor--Equipment                 17,000,000       9,005,000
     Utilization........................
    Avoided Cost of Safety Appliance           9,000,000       8,370,000
     Retrofit...........................
    Out-of-Service Credit--Equipment           1,020,000         542,000
     Utilization........................
                                         -------------------------------
        Total Benefits..................      35,510,000      21,953,000
------------------------------------------------------------------------

    The economic benefits to the industry related to this final rule 
outweigh the economic costs by a ratio in excess of 6 to 1. FRA did not 
quantify the safety benefits for most of the provisions contained in 
this final rule as many of the provisions are based on improved 
manufacturing techniques, equipment reliability, or are the result of 
additional regulatory flexibility. However, with regard to the final 
rule provision related to the attachment of safety appliances on 
passenger equipment, FRA did consider the potential safety benefits 
related to the provisions. In addition to the potential avoided cost of 
retrofitting equipment containing welded safety appliances or welded 
safety appliance brackets or supports estimated at $9 million, FRA also 
believes there are potential safety benefits to be derived from the 
reduced risk of weld failure resulting from the inspection protocols 
for welded safety appliance attachments. The RIA notes two accidents 
that were the result of failed welded safety appliances and although 
FRA's database did not contain these accidents, there is no reason to 
believe that safety appliances in passenger operations are immune from 
failure. The lack of an accident record may be due to low risks 
involved in passenger operations, but also weld failure accidents are 
not generally reported in FRA systems that are geared more for 
accidents that stop rail operations. FRA believes that reducing the 
risk of weld failures will benefit passenger operations. FRA notes that 
if just 2 or 3 critical accidents are avoided over the 20-year period 
covered by the RIA, the final rule would be cost-justified by the 
safety benefits alone.
    FRA further notes that it did not estimate a cost for the 
requirements related to the securement of unattended equipment and the 
inspection of hand or parking brakes. The final rule provisions related 
to these issues are merely an incorporation of current industry 
practice. FRA is not aware of any passenger or commuter railroad that 
does not already conduct the final rule

[[Page 61853]]

inspections, maintain the records, or have the procedures in place.

Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impact on small entities. FRA has prepared and placed in the 
docket an Analysis of Impact on Small Entities (AISE) that assesses the 
small entity impact of this final rule. Document inspection and copying 
facilities are available at the Department of Transportation Central 
Docket Management Facility located in Room PL-401 on the Plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC 20590. 
Docket material is also available for inspection on the Internet at 
http://dms.dot.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Washington, DC 20590; please refer to Docket No. FRA-2005-23080.
    ``Small entity'' is defined in 5 U.S.C. 601 as a small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. The U.S. Small Business Administration (SBA) 
has authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a railroad business ``line-haul operation'' that 
has fewer than 1,500 employees and a ``switching and terminal'' 
establishment with fewer than 500 employees. SBA's ``size standards'' 
may be altered by Federal agencies, in consultation with SBA and in 
conjunction with public comment.
    Pursuant to that authority FRA has published a final statement of 
agency policy that formally establishes ``small entities'' as being 
railroads that meet the line-haulage revenue requirements of a Class 
III railroad. See 68 FR 24891 (May 9, 2003). Currently, the revenue 
requirements are $20 million or less in annual operating revenue. The 
$20 million limit is based on the Surface Transportation Board's 
threshold of a Class III railroad carrier, which is adjusted by 
applying the railroad revenue deflator adjustment (49 CFR part 1201). 
The same dollar limit on revenues is established to determine whether a 
railroad, shipper, or contractor is a small entity. FRA uses this 
alternative definition of ``small entity'' for this rulemaking.
    The AISE developed in connection with this final rule concludes 
that this final rule will not have a significant economic impact on a 
substantial number of small entities. Thus, FRA certifies that this 
final rule is not expected to have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act or Executive Order 13272.

Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) for review and approval in accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The sections that 
contain the new information collection requirements and the estimated 
time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
         CFR section             Respondent      Total annual     Average time     Total annual     burden cost
                                  universe        responses      per  response     burden hours         ($)
----------------------------------------------------------------------------------------------------------------
216.14--Special notice for    22 railroads...  9 forms........  5 minutes......  1 hour.........             $40
 repairs--passenger
 equipment.
229.47--Emergency Brake       22 railroads...  30 markings....  1 minute.......  1 hour.........              34
 Value--Marking Brake Pipe
 Valve as such.
    --DMU, MU, Control Cab    22 railroads...  5 markings.....  1 minute.......  .08 hour.......               3
     Locomotives--Marking
     Emergency Brake Valve
     as such.
238.7--Waivers..............  22 railroads...  5 waivers......  2 hours........  10 hours.......             400
238.15--Movement of           22 railroads...  1,000 cards/     3 minutes......  50 hours.......           2,500
 passenger equipment with                       tags.
 power brake defects, and.
    --Movement of passenger   22 railroads...  288 cards/tags.  3 minutes......  14 hours.......             700
     equipment that becomes
     defective en route.
    --Conditional             22 railroads...  144 notices....  3 minutes......  7 hours........             350
     requirement--Notificati
     ons.
238.17--Limitations on        22 railroads...  200 cards/tags.  3 minutes......  10 hours.......             340
 movement of passenger
 equipment containing
 defects found at calendar
 day inspection and on
 movement of passenger
 equipment that develops
 defects en route.
    --Special requisites for  22 railroads...  76 tags........  3 minutes......  4 hours........             136
     movement of passenger
     equipment with safety
     appliance defects.
    --Crew member             22 railroads...  38               30 seconds.....  .32 hour.......              11
     notifications.                             notifications.
238.21--Petitions for         22 railroads...  1 petition.....  16 hours.......  16 hours.......             640
 special approval of
 alternative standards.
    --Petitions for special   22 railroads...  1 petition.....  120 hours......  120 hours......           4,800
     approval of alternative
     compliance.
    --Petitions for special   22 railroads...  2 petitions....  40 hours.......  80 hours.......           3,200
     approval of pre-revenue
     service acceptance
     testing plan.
    --Comments on petitions.  Public/RR        4 comments.....  1 hour.........  4 hours........             280
                               Industry.
238.103--Fire Safety
    --Procuring new           5 equipment      4 equip.         300 hours......  1,200 hours....         120,800
     passenger equipment.      manuf.           designs.
    --Subsequent orders.....  5 equipment      4 equip.         45 hours.......  180 hours......          21,600
                               manuf.           designs.

[[Page 61854]]

 
    --Existing equipment--    5 manuf./22      5 analyses.....  30 hours.......  150 hours......          18,000
     fire safety analysis.     railroads.
    --Transferring passenger  22 railroads/    1 analysis.....  20 hours.......  20 hours.......           2,400
     cars/locomotives.         AAR.
238.107--Inspection/testing/  22 railroads...  7 reviews......  60 hours.......  420 hours......          16,800
 maintenance plans--Review
 by railroads.
238.109--Employee/contractor  22 railroads...  2 notifications  15 minutes.....  1 hour.........              40
 training.
    --Training employees:     7,500 employees  2,500 indiv/100  1.33 hours.....  3,458 hours....         117,572
     Mechanical Insp.                           trainers.
    --Recordkeeping.........  22 railroads...  2,500 records..  3 minutes......  125 hours......           5,000
238.111--Pre-revenue service  9 equipment      2 plans........  16 hours.......  32 hours.......           1,760
 acceptance testing plan:      manuf.
 Passenger equipment that
 has previously been used in
 service in the U.S.
Passenger equipment that has  9 equipment      2 plans........  192 hours......  384 hours......          38,400
 not been previously used in   manuf.
 service in the U.S.
Subsequent Order............  9 equipment      2 plans........  60 hours.......  120 hours......           9,600
                               manuf.
238.229--Safety Appliances    22 railroads...  22 lists.......  1 hour.........  22 hours.......             880
 (New Rqmnts).
    --Welded safety
     appliances considered
     defective: lists
    --Lists Identifying       22 railroads...  22 lists.......  60 minutes.....  22 hours.......             880
     Equip. w/Welded Saf.
     App.
    --Defective Welded Saf.   22 railroads...  4 tags.........  3 minutes......  .20 hr.........               7
     Appliance--Tags.
    --Notification to         22 railroads...  2 notifications  1 minute.......  .0333 hr.......               1
     Crewmembers about Non-
     Compliant Equipment.
    --Inspection plans......  22 railroads...  22 plans.......  16 hours.......  352 hours......          19,360
    --Inspection Personnel--  22 railroads...  44 employees...  4 hours........  176 hours......           7,040
     Training.
238.230--Safety Appliances--
 New Equipment (New
 Requirement)
    --Inspection Record of    22 railroads...  100 records....  6 minutes......  10 hours.......             340
     Welded Equipment by
     Qualified Employee.
    --Welded safety           22 railroads...  15 documents...  4 hours........  60 hours.......           2,400
     appliances:
     Documentation for
     equipment impractically
     designed to
     mechanically fasten
     safety appliances
     support.
238.231--Brake System (New
 Requirement)
    --Inspection and repair   22 railroads...  2,500 forms....  21 minutes.....  875 hours......          29,750
     of hand/parking brake:
     Records.
    --Procedures Verifying    22 railroads...  22 procedures..  2 hours........  44 hours.......           3,080
     Hold of Hand/Parking
     Brakes.
238.237--Automated
 monitoring
    --Documentation for       22 railroads...  3 documents....  2 hours........  6 hours........             240
     alerter/deadman control
     timing.
    --Defective alerter/      22 railroads...  25 tags........  3 minutes......  1 hour.........              50
     deadman control:
     Tagging.
238.303--Exterior calendar    22 railroads...  25 notices.....  1 minute.......  1 hour.........              50
 day mechanical inspection
 of passenger equipment:
 Notice of previous
 inspection.
    --Dynamic brakes not in   22 railroads...  50 tags/cards..  3 minutes......  3 hours........             150
     operating mode: Tag.
    --Conventional            22 railroads...  50 tags/cards..  3 minutes......  3 hours........             150
     locomotives equipped
     with inoperative
     dynamic brakes: Tagging
     (New Requirements).
    --MU passenger equipment  22 railroads...  4 documents....  2 hours........  8 hours........             560
     found with inoperative/
     ineffective air
     compressors at exterior
     calendar day
     inspection: Documents.
    --Written notice to       22 railroads...  100 messages or  3 minutes......  5 hours........             170
     train crew about                           notices.
     inoperative/ineffective
     air compressors.
    --Records of inoperative  22 railroads...  100 records....  2 minutes......  3 hours........             102
     air compressors.
    --Record of exterior      22 railroads...  2,376,920        10 minutes + 1   435,769 hours..      15,053,836
     calendar day mechanical                    records.         minute.
     inspection (Old
     Requirement).

[[Page 61855]]

 
238.305--Interior calendar
 day mechanical inspection
 of passenger cars
    --Tagging of defective    22 railroads...  540 tags.......  1 minute.......  9 hours........             306
     end/side doors.
    --Records of interior     22 railroads...  1,968,980        5 minutes + 1    196,898 hours..       6,891,428
     calendar day inspection.                   records.         minute.
238.307--Periodic mechanical
 inspection of passenger
 cars and unpowered vehicles
    --Alternative inspection  22 railroads...  2 notifications  5 hours........  10 hours.......             400
     intervals: Notice.
    --Notice of seats/seat    22 railroads...  200 notices....  2 minutes......  7 hours........             280
     attachments broken or
     loose.
    --Records of each         22 railroads...  19,284 records.  200 hrs. + 2     3,857,443 hours     131,156,920
     periodic mechanical                                         minutes.
     inspection.
    --Detailed documentation  22 railroads...  3 documents....  100 hours......  300 hours......          12,000
     of reliability
     assessments as basis
     for alternative
     inspection interval.
238.311--Single car test
    --Tagging to indicate     22 railroads...  25 tags........  3 minutes......  1 hour.........              34
     need for single car
     test.
238.313--Class I Brake Test
    --Record for additional   22 railroads...  15,600 records.  30 minutes.....  7,800 hours....         265,200
     inspection for
     passenger equipment
     that does not comply
     with Sec.
     238.231(b)(1) (New
     Requirement).
238.315--Class IA brake test
    --Notice to train crew    22 railroads...  18,250 verbal    5 seconds......  25 hours.......             850
     that test has been                         notices.
     performed.
    --Communicating signal:   22 railroads...  365,000 tests..  15 seconds.....  1,521 hours....          60,840
     tested and two-way
     radio system.
238.317--Class II brake test
    --Communicating signal:   22 railroads...  365,000 tests..  15 seconds.....  1,521 hours....          60,840
     tested and two-way
     radio system.
238.321--Out-of-service
 credit (New Requirement)
    --Passenger Car: Out-of-  22 railroads...  1,250 notations  2 minutes......  42 hours.......           1,428
     use notation.
238.445--Automated
 Monitoring
    --Performance             1 railroad.....  10,000 alerts..  10 seconds.....  28 hours.......               0
     monitoring: alerters/
     alarms.
    --Monitoring system:      1 railroad.....  21,900           20 seconds.....  122 hours......               0
     Self-test feature:                         notifications.
     Notifications.
238.503--Inspection,
 testing, and maintenance
 requirements
238.505--Program approval
 procedures
    --Submission of program.  1 railroad.....  1 program......  1,200 hours....  1,200 hours....          84,000
    --Comments on programs..  Rail Industry..  3 comments.....  3 hours........  9 hours........             360
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Robert Brogan at 202-493-
6292 or via e-mail at the following address: [email protected].
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, 725 17th St., NW., Washington, DC 20590; 
Attention: FRA OMB Desk Officer. OMB is required to make a decision 
concerning the collection of information requirements contained in this 
final rule between 30 and 60 days after publication of this document in 
the Federal Register. Therefore, a comment to OMB is best assured of 
having its full effect if OMB receives it within 30 days of 
publication.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the

[[Page 61856]]

distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, the agency may not issue a 
regulation with Federalism implications that imposes substantial direct 
compliance costs 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, the agency 
consults with State and local governments, or the agency consults with 
State and local government officials early in the process of developing 
the proposed regulation. Where a regulation has Federalism implications 
and preempts State law, the agency seeks to consult with State and 
local officials in the process of developing the regulation.
    This final rule has preemptive effect. Subject to a limited 
exception for essentially local safety hazards, its requirements will 
establish a uniform Federal safety standard that must be met, and state 
requirements covering the same subject are displaced, whether those 
standards are in the form of state statutes, regulations, local 
ordinances, or other forms of state law, including state common law. 
Section 20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulation, or order and that does not unreasonably burden 
interstate commerce. This is consistent with past practice at FRA, and 
within the Department of Transportation.
    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. This final rule will 
not have a substantial effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among various levels of government. This 
final rule will not have federalism implications that impose any direct 
compliance costs on State and local governments.
    FRA notes that the RSAC, which endorsed and recommended the 
majority of this rule, has as permanent members two organizations 
representing State and local interests: AASHTO and the Association of 
State Rail Safety Managers (ASRSM). Both of these State organizations 
concurred with the RSAC recommendation endorsing this rule. The RSAC 
regularly provides recommendations to the FRA Administrator for 
solutions to regulatory issues that reflect significant input from its 
State members. To date, FRA has received no indication of concerns 
about the Federalism implications of this rulemaking from these 
representatives or of any other representatives of State government. 
Consequently, FRA concludes that this final rule has no federalism 
implications, other than the preemption of state laws covering the 
subject matter of this final rule, which occurs by operation of law 
under 49 U.S.C. 20106 whenever FRA issues a rule or order.
    Elements of the final rule dealing with safety appliances affect an 
area of safety that has been pervasively regulated at the Federal level 
for over a century. Accordingly, the final rule amendments in that area 
will involve no impacts on Federal relationships.

Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(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 final rule 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)(20) of FRA's Procedures. 
See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:

    (c) Actions categorically excluded. Certain classes of FRA 
actions have been determined to be categorically excluded from the 
requirements of these Procedures as they do not individually or 
cumulatively have a significant effect on the human environment. * * 
* The following classes of FRA actions are categorically excluded: * 
* *
    (20) Promulgation of railroad safety rules and policy statements 
that do not result in significantly increased emissions or air or 
water pollutants or noise or increased traffic congestion in any 
mode of transportation.

    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this final 
rule is not a major Federal action significantly affecting the quality 
of the human environment.

Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), 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).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $120,700,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
The final rule will not result in the expenditure, in the aggregate, of 
$120,700,000 or more in any one year, and thus preparation of such a 
statement is not required.

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 (normally 
published in the Federal Register) 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 final rule in accordance with Executive 
Order 13211. FRA has determined that this final rule is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Consequently, FRA has determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.

Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency

[[Page 61857]]

docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78) or you may visit http://dms.dot.gov.

List of Subjects

49 CFR Part 229

    Locomotives, Main reservoirs, Penalties, Railroads, Railroad 
safety, Reporting and recordkeeping requirements.

49 CFR Part 238

    Incorporation by reference, Passenger equipment, Penalties, 
Railroad safety, Reporting and recordkeeping requirements, Safety 
appliances.

Adoption of the Amendments

0
For the reasons discussed in the preamble, FRA is amending parts 229 
and 238 of chapter II, subtitle B of Title 49, Code of Federal 
Regulations, as follows:

PART 229--[AMENDED]

0
1. The authority citation for part 229 continues to read as follows:

    Authority: 49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143, 
20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c), 
(m).


0
2. Section 229.5 is amended by revising the definition of ``MU 
locomotive'' to read as follows:


Sec.  229.5  Definitions.

* * * * *
    MU locomotive means a multiple unit operated electric locomotive--
    (1) With one or more propelling motors designed to carry freight or 
passenger traffic or both; or
    (2) Without propelling motors but with one or more control stands 
and a means of picking-up primary power such as a pantograph or third 
rail.
* * * * *

0
3. Section 229.31 is amended by revising paragraphs (a) and (c) to read 
as follows:


Sec.  229.31  Main reservoir tests.

    (a) Before it is placed in service, each main reservoir other than 
an aluminum reservoir shall be subjected to a pneumatic or hydrostatic 
pressure of at least 25 percent more than the maximum working pressure 
fixed by the chief mechanical officer. The test date, place, and 
pressure shall be recorded on Form FRA F 6180-49A, block eighteen. 
Except as provided in paragraph (c) of this section, at intervals that 
do not exceed 736 calendar days, each main reservoir other than an 
aluminum reservoir shall be subjected to a hydrostatic pressure of at 
least 25 percent more than the maximum working pressure fixed by the 
chief mechanical officer. The test date, place, and pressure shall be 
recorded on Form FRA F 6180-49A, and the person performing the test and 
that person's supervisor shall sign the form.
    (b) * * *
    (c) Each welded main reservoir originally constructed to withstand 
at least five times the maximum working pressure fixed by the chief 
mechanical officer may be drilled over its entire surface with telltale 
holes that are three-sixteenths of an inch in diameter. The holes shall 
be spaced not more than 12 inches apart, measured both longitudinally 
and circumferentially, and drilled from the outer surface to an extreme 
depth determined by the formula--

D = (.6PR/S-0.6P)

Where:

D = extreme depth of telltale holes in inches but in no case less 
than one-sixteenth inch;
P = certified working pressure in pounds per square inch;
S = one-fifth of the minimum specified tensile strength of the 
material in pounds per square inch; and
R = inside radius of the reservoir in inches.

    One row of holes shall be drilled lengthwise of the reservoir on a 
line intersecting the drain opening. A reservoir so drilled does not 
have to meet the requirements of paragraphs (a) and (b) of this 
section, except the requirement for a pneumatic or hydrostatic test 
before it is placed in use. Whenever any such telltale hole shall have 
penetrated the interior of any reservoir, the reservoir shall be 
permanently withdrawn from service. A reservoir now in use may be 
drilled in lieu of the tests provided for by paragraphs (a) and (b) of 
this section, but shall receive a hydrostatic test before it is 
returned to use or may receive a pneumatic test if conducted by the 
manufacturer in an appropriately safe environment.
* * * * *

0
4. Section 229.47 is amended by revising paragraph (b) to read as 
follows:


Sec.  229.47  Emergency brake valve.

* * * * *
    (b) DMU, MU, and control cab locomotives operated in road service 
shall be equipped with an emergency brake valve that is accessible to 
another crew member in the passenger compartment or vestibule. The 
words ``Emergency Brake Valve'' shall be legibly stenciled or marked 
near each valve or shall be shown on an adjacent badge plate.
* * * * *

0
5. Section 229.137 is amended by revising paragraph (b)(1)(vi) to read 
as follows:


Sec.  229.137  Sanitation, general requirements.

* * * * *
    (b) * * *
    (1) * * *
    (vi) Except as provided in Sec.  229.14 of this part, DMU, MU, and 
control cab locomotives designed for passenger occupancy and used in 
intercity push-pull service that are not equipped with sanitation 
facilities, where employees have ready access to railroad-provided 
sanitation in other passenger cars on the train at frequent intervals 
during the course of their work shift.
* * * * *

PART 238--[AMENDED]

0
6. The authority citation for part 238 continues 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.


0
7. Section 238.5 is amended by revising the definition of ``actuator'' 
and adding a definition of ``piston travel indicator'' to read as 
follows:


Sec.  238.5  Definitions.

* * * * *
    Actuator means a self-contained brake system component that 
generates the force to apply the brake shoe or brake pad to the wheel 
or disc. An actuator typically consists of a cylinder, piston, and 
piston rod.
* * * * *
    Piston Travel Indicator means a device directly activated by the 
movement of the brake cylinder piston, the disc brake actuator, or the 
tread brake unit cylinder piston that provides an indication of the 
piston travel.
* * * * *

0
8. Section 238.17 is amended by revising paragraph (b) introductory 
text to read as follows:


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

* * * * *
    (b) Limitations on movement of passenger equipment containing 
defects found at time of calendar day

[[Page 61858]]

inspection. Except as provided in Sec. Sec.  238.303(e)(15) and 
(e)(17), 238.305(c) and (d), and 238.307(c)(1), passenger equipment 
containing a condition not in conformity with this part at the time of 
its calendar day mechanical inspection may be moved from that location 
for repair if all of the following conditions are satisfied:
* * * * *

0
9. Section 238.21 is amended by revising paragraphs (a) and (c)(2) to 
read as follows:


Sec.  238.21  Special approval procedures.

    (a) General. The following procedures govern consideration and 
action upon requests for special approval of alternative standards 
under Sec. Sec.  238.103, 238.223, 238.229, 238.309, 238.311, 238.405, 
or 238.427; for approval of alternative compliance under Sec. Sec.  
238.201, 238.229, or 238.230; and for special approval of pre-revenue 
service acceptance testing plans as required by Sec.  238.111. 
(Requests for approval of programs for the inspection, testing, and 
maintenance of Tier II passenger equipment are governed by Sec.  
238.505.)
* * * * *
    (c) * * *
    (2) The elements prescribed in Sec. Sec.  238.201(b), 
238.229(j)(2), and 238.230(d); and
* * * * *

0
10. Section 238.229 is revised to read as follows:


Sec.  238.229  Safety appliances--general.

    (a) Except as provided in this part, all passenger equipment 
continues to be subject to the safety appliance requirements contained 
in Federal statute at 49 U.S.C. chapter 203 and in Federal regulations 
at part 231 of this chapter.
    (b) Except as provided in this part, FRA interprets the provisions 
in part 231 of this chapter that expressly mandate that the manner of 
application of a safety appliance be a bolt, rivet, or screw to mean 
that the safety appliance and any related bracket or support used to 
attach that safety appliance to the equipment shall be so affixed to 
the equipment. Specifically, FRA prohibits the use of welding as a 
method of attachment of any such safety appliance or related bracket or 
support. A ``safety appliance bracket or support'' means a component or 
part attached to the equipment for the sole purpose of securing or 
attaching of the safety appliance. FRA does allow the welded attachment 
of a brace or stiffener used in connection with a mechanically fastened 
safety appliance. In order to be considered a ``brace'' or 
``stiffener,'' the component or part shall not be necessary for the 
attachment of the safety appliance to the equipment and is used solely 
to provide extra strength or steadiness to the safety appliance.
    (c) Welded Safety Appliances. (1) Passenger equipment placed in 
service prior to January 1, 2007, that is equipped with a safety 
appliance, required by the ``manner of application'' provisions in part 
231 of this chapter to be attached by a mechanical fastener (i.e., 
bolts, rivets, or screws), and the safety appliance is mechanically 
fastened to a bracket or support that is attached to the equipment by 
welding may continue to be used in service provided all of the 
requirements in paragraphs (e) through (k) of this section are met. The 
welded safety appliance bracket or support only needs to receive the 
initial visual inspection required under paragraph (g)(1) of this 
section if all of the following conditions are met:
    (i) The welded safety appliance bracket or support meets all of the 
conditions contained in Sec.  238.230(b)(1) for being considered part 
of the car body;
    (ii) The weld on the safety appliance bracket or support does not 
contain any defect as defined in paragraph (d) of this section; and
    (iii) The railroad submits a written list to FRA identifying each 
piece of passenger equipment equipped with a welded safety appliance 
bracket or support as described in paragraph (c)(1)(i) and (c)(1)(ii) 
of this section and provides a description of the specific safety 
appliance bracket or support.
    (2) Passenger equipment placed in service prior to January 1, 2007, 
that is equipped with a safety appliance that is directly attached to 
the equipment by welding (i.e., no mechanical fastening of any kind) 
shall be considered defective and immediately handled for repair 
pursuant to the requirements contained in Sec.  238.17(e) unless the 
railroad meets the following:
    (i) The railroad submits a written list to FRA that identifies each 
piece of passenger equipment equipped with a welded safety appliance as 
described in paragraph (c)(2) of this section and provides a 
description of the specific safety appliance; and
    (ii) The involved safety appliance(s) on such equipment are 
inspected and handled pursuant to the requirements contained in 
paragraphs (g) through (k) of this section.
    (d) Defective welded safety appliance or welded safety appliance 
bracket or support. Passenger equipment with a welded safety appliance 
or a welded safety appliance bracket or support will be considered 
defective and shall be handled in accordance with Sec.  238.17(e) if 
any part or portion of the weld contains a defect. Any repairs made to 
such equipment shall be in accordance with the inspection plan required 
in paragraph (g) of this section and the remedial actions identified in 
paragraph (j) of this section. A defect for the purposes of this 
section means a crack or fracture of any visibly discernible length or 
width. When appropriate, civil penalties for improperly using or 
hauling a piece of equipment with a defective welded safety appliance 
or safety appliance bracket or support addressed in this section will 
be assessed as an improperly applied safety appliance pursuant to the 
penalty schedule contained in Appendix A to part 231 of this chapter 
under the appropriate defect code contained therein.
    (e) Identification of equipment. The railroad shall submit a 
written list to FRA that identifies each piece of passenger equipment 
equipped with a welded safety appliance bracket or support by January 
1, 2007. Passenger equipment placed in service prior to January 1, 
2007, but not discovered until after January 1, 2007, shall be 
immediately added to the railroad's written list and shall be 
immediately inspected in accordance with paragraph (g) through (k) of 
this section. The written list submitted by the railroad shall contain 
the following:
    (1) The equipment number;
    (2) The equipment type;
    (3) The safety appliance bracket(s) or support(s) affected;
    (4) Any equipment and any specific safety appliance bracket(s) or 
supports(s) on the equipment that will not be subject to the inspection 
plan required in paragraph (g) of this section;
    (5) A detailed explanation for any such exclusion recommended in 
paragraph (e)(4) of this section;
    (f) FRA's Associate Administrator for Safety reserves the right to 
disapprove any exclusion recommended by the railroad in paragraphs 
(c)(2)(i) and (d)(4) of this section and will provide written 
notification to the railroad of any such determination.
    (g) Inspection Plans. The railroad shall adopt and comply with and 
submit to FRA upon request a written safety appliance inspection plan. 
At a minimum, the plan shall include the following:
    (1) Except as provided in paragraph (c)(1) of this section, an 
initial visual inspection (within 1 year of date of publication) and 
periodic re-inspections (at intervals not to exceed 6 years) of each 
welded safety appliance bracket or support identified in paragraph (e) 
of

[[Page 61859]]

this section. If significant disassembly of a car is necessary to 
visually inspect the involved safety appliance bracket or support, the 
initial visual inspection may be conducted at the equipment's first 
periodic brake equipment maintenance interval pursuant to Sec.  238.309 
occurring after January 1, 2007.
    (2) Identify the personnel that will conduct the initial and 
periodic inspections and any training those individuals are required to 
receive in accordance with the criteria contained in paragraph (h) of 
this section.
    (3) Identify the specific procedures and criteria for conducting 
the initial and periodic safety appliance inspections in accordance 
with the requirements and criteria contained in paragraph (i) of this 
section.
    (4) Identify when and what type of potential repairs or potential 
remedial action will be required for any defective welded safety 
appliance bracket or support discovered during the initial or periodic 
safety appliance inspection in accordance with paragraph (j) of this 
section.
    (5) Identify the records that will be maintained that are related 
to the initial and periodic safety appliance inspections in accordance 
with the requirements contained in paragraph (k) of this section.
    (h) Inspection Personnel. The initial and periodic safety appliance 
inspections shall be performed by individuals properly trained and 
qualified to identify defective weld conditions. At a minimum, these 
personnel include the following:
    (1) A qualified maintenance person (QMP) with at least 4 hours of 
training specific to the identification of weld defects and the 
railroad's weld inspection procedures;
    (2) A current certified welding inspector (CWI) pursuant to 
American Welding Society Standard--AWS QC-1, Standard for AWS 
Certification of Welding Inspectors (1996) or its current revised 
equivalent;
    (3) A person possessing a current Canadian Welding Bureau (CWB) 
certification pursuant to the Canadian Standards Association Standard 
W59 (2003) or its current revised equivalent;
    (4) A person possessing a current level II or level III visual 
inspector certification from the American Society for Non-destructive 
Testing pursuant to Recommended Practice SNT-TC-1A--Personnel 
Qualification and Certification in Nondestructive Testing (2001) or its 
current revised equivalent; or
    (5) A person possessing a current certification under any other 
nationally or internationally recognized welding qualification standard 
that is equivalent to those identified in paragraphs (h)(2) through 
(h)(4) of this section.
    (i) Inspection Procedures. The initial and periodic safety 
appliance inspections shall be conducted in accordance with the 
procedures and criteria established in the railroad's inspection plan. 
At a minimum, these procedures and criteria shall include:
    (1) A complete visual inspection of the entire welded surface of 
any safety appliance bracket or support identified in paragraph (e) of 
this section.
    (2) The visual inspection shall occur after the complete removal of 
any dirt, grease, rust, or any other foreign matter from the welded 
portion of the involved safety appliance bracket or support. Removal of 
paint is not required.
    (3) The railroad shall disassemble any equipment necessary to 
permit full visual inspection of the involved weld.
    (4) Any materials necessary to conduct a complete inspection must 
be made available to the inspection personnel throughout the inspection 
process. These include but are not limited to such items as mirrors, 
magnifying glasses, or other location specific inspection aids. Remote 
viewing aids possessing equivalent sensitivity are permissible for 
restricted areas.
    (5) Any weld found with a defect as defined in paragraph (d) of 
this section during the initial or periodic safety appliance inspection 
shall be inspected by either a certified weld inspector identified in 
paragraphs (h)(2) through (h)(5) of this section or a welding or 
materials engineer possessing a professional engineer's license for a 
final determination. No car with a defect in the weld of a safety 
appliance or its attachment may continue in use until a final 
determination as to the existence of a defect is made by the personnel 
identified in this paragraph.
    (6) A weld finally determined to contain a defect shall be handled 
for repair in accordance with Sec.  238.17(e) and repaired in 
accordance with the remedial action criteria contained in paragraph (j) 
of this section.
    (j) Remedial Action. Unless a defect in a weld is known to have 
been caused by crash damage, the railroad shall conduct a failure and 
engineering analysis of any weld identified in paragraph (e) of this 
section determined to have a break or crack either during the initial 
or periodic safety appliance inspection or while otherwise in service 
to determine if the break or crack is the result of crash damage, 
improper construction, or inadequate design. Based on the results of 
the analysis, the repair of the involved safety appliance bracket or 
support shall be handled as follows:
    (1) A defect in a weld due to crash damage (i.e., impact of the 
safety appliance by an outside force during service or an accident) or 
improper construction (i.e., the weld did not conform to the engineered 
design) shall be reattached by either mechanically fastening the safety 
appliance or the safety appliance bracket or support to the equipment 
or welding the safety appliance bracket or support to the equipment in 
a manner that is at least as strong as the original design or at least 
twice the strength of a bolted mechanical attachment, whichever is 
greater. If welding is used to repair the damaged appliance, bracket, 
or support the following requirements shall be met:
    (i) The repair shall be conducted in accordance with the welding 
procedures contained in APTA Standard SS-C&S-020-03--Standard for 
Passenger Rail Vehicle Structural Repair (September 2003); or an 
alternative procedure approved by FRA pursuant to Sec.  238.21. The 
Director of the Federal Register approves incorporation by reference of 
the APTA Standard SS-C&S-020-03 (September 2003), ``Standard for 
Passenger Rail Vehicle Structural Repair,'' in this section in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a 
copy of the incorporated standard from the American Public 
Transportation Association, 1666 K Street, Washington, DC 20006. You 
may inspect a copy of the incorporated standard at the Federal Railroad 
Administration, Docket Clerk, 1120 Vermont Ave., NW., Suite 7000, 
Washington, DC 20590 or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html;
    (ii) A qualified individual under paragraph (h) of this section 
shall inspect the weld to ensure it is free of any cracks or fractures 
prior to the equipment being placed in-service;
    (iii) The welded safety appliance bracket or support shall receive 
a periodic safety appliance inspection pursuant to the requirements 
contained in paragraphs (g) through (i) of this section; and
    (iv) A record of the welded repair pursuant to the requirements of 
paragraph (k) of this section shall be maintained by the railroad.
    (2) A defect in the weld that is due to inadequate design (i.e., 
unanticipated stresses or loads during service) shall be

[[Page 61860]]

handled in accordance with the following:
    (i) The railroad must immediately notify FRA's Associate 
Administrator for Safety in writing of its discovery of a defective 
weld that is due to inadequate design;
    (ii) The involved safety appliance or the safety appliance bracket 
or support shall be reattached to the equipment by mechanically 
fastening the safety appliance or the safety appliance bracket or 
support to the equipment unless such mechanical fastening is 
impractical due to the design of the equipment;
    (iii) The railroad shall develop and comply with a written plan 
submitted to and approved by FRA's Associate Administrator for Safety 
detailing a schedule for all passenger equipment in that series of cars 
with a similar welded safety appliance bracket or support to have the 
involved safety appliance or the safety appliance bracket or support 
mechanically fastened to the equipment; and
    (iv) If a railroad determines that the design of the equipment 
makes it impractical to mechanically fasten the safety appliance or the 
safety appliance bracket or support to the equipment, then the railroad 
shall submit a request to FRA for special approval of alternative 
compliance pursuant to Sec.  238.21. Such a request shall explain the 
necessity for any relief sought and shall contain appropriate data and 
analysis supporting its determination that any alternative method of 
attachment provides at least an equivalent level of safety.
    (k) Records. Railroads shall maintain written or electronic records 
of the inspection and repair of the welded safety appliance brackets or 
supports on any equipment identified in paragraph (e) of this section. 
The records shall be made available to FRA upon request. At a minimum, 
these records shall include all of the following:
    (1) Training or certification records for any person performing any 
of the inspections or repairs required in this section.
    (2) The date, time, location, and identification of the person 
performing the initial and periodic safety appliance inspections for 
each piece of equipment identified in paragraph (e) of this section. 
This includes the identification of the person making any final 
determination as to the existence of a defect under paragraph (i)(5) of 
this section.
    (3) A record of all passenger equipment found with a safety 
appliance weldment that is defective either during the initial or 
periodic safety appliance inspection or while the equipment is in-
service. This record shall also identify the cause of the crack or 
fracture.
    (4) The date, time, location, identification of the person making 
the repair, and the nature of the repair to any welded safety appliance 
bracket or support identified in paragraph (e) of this section.

0
11. Section 238.230 is added to read as follows:


Sec.  238.230  Safety appliances--new equipment.

    (a) Applicability. This section applies to passenger equipment 
placed in service on or after January 1, 2007.
    (b) Welded Safety Appliances. Except as provided in this section, 
all passenger equipment placed into service on or after January 1, 
2007, that is equipped with a safety appliance, required by the 
``manner of application'' provisions in part 231 of this chapter to be 
attached by a mechanical fastener (i.e., bolts, rivets, or screws), 
shall have the safety appliance and any bracket or support necessary to 
attach the safety appliance to the piece of equipment mechanically 
fastened to the piece of equipment.
    (1) Safety appliance brackets or supports considered part of the 
car body. Safety appliance brackets or supports will be considered part 
of the car body and will not be required to be mechanically fastened to 
the piece of passenger equipment if all of the following are met:
    (i) The bracket or support is welded to a surface of the 
equipment's body that is at a minimum 3/16-inch sheet steel or 
structurally reinforced to provide the equivalent strength and rigidity 
of 3/16-inch sheet steel;
    (ii) The area of the weld is sufficient to ensure a minimum weld 
strength, based on yield, of three times the strength of the number of 
SAE grade 2, \1/2\ inch diameter bolts that would be required for each 
attachment;
    (iii) Except for any access required for attachment of the safety 
appliance, the weld is continuous around the perimeter of the surface 
of the bracket or support;
    (iv) The attachment is made with fillet welds at least 3/16-inch in 
size;
    (v) The weld is designed for infinite fatigue life in the 
application that it will be placed;
    (vi) The weld is performed in accordance with the welding process 
and the quality control procedures contained in the current American 
Welding Society (AWS) Standard, the Canadian Welding Bureau (CWB) 
Standard, or an equivalent nationally or internationally recognized 
welding standard;
    (vii) The weld is performed by an individual possessing the 
qualifications to be certified under the current AWS Standard, CWB 
Standard, or any equivalent nationally or internationally recognized 
welding qualification standard;
    (viii) The weld is inspected by an individual qualified to 
determine that all of the conditions identified in paragraph (b)(1)(i) 
through (b)(1)(vii) of this section are met prior to the equipment 
being placed in service; and
    (ix) A written or electronic record of the inspection required in 
paragraph (b)(1)(viii) of this section shall be retained by the 
railroad operating the equipment and shall be provided to FRA upon 
request. At a minimum, this record shall include the date, time, 
location, identification of the person performing the inspection, and 
the qualifications of the person performing the inspection.
    (2) Directly welded safety appliances. Passenger equipment that is 
equipped with a safety appliance that is directly attached to the 
equipment by welding (i.e., no mechanical fastening of any kind) may be 
placed in service only if the railroad meets the following:
    (i) The railroad submits a written list to FRA that identifies each 
piece of new passenger equipment equipped with a welded safety 
appliance as described in paragraph (b)(2) of this section and provides 
a description of the specific safety appliance;
    (ii) The railroad provides a detailed basis as to why the design of 
the vehicle or placement of the safety appliance requires that the 
safety appliance be directly welded to the equipment; and
    (iii) The involved safety appliance(s) on such equipment are 
inspected and handled pursuant to the requirements contained in Sec.  
238.229(g) through (k).
    (3) Other welded safety appliances and safety appliance brackets 
and supports. Except for safety appliance brackets and supports 
identified in paragraph (b)(1) of this section, safety appliance 
brackets and supports on passenger equipment shall not be welded to the 
car body unless the design of the equipment makes it impractical to 
mechanically fasten the safety appliance and it is impossible to meet 
the conditions for considering the bracket or support part of the car 
body contained in paragraph (b)(1) of this section. Prior to placing a 
piece of passenger equipment in service with a welded safety appliance 
bracket or support as described in this paragraph, the railroad shall 
submit documentation to FRA, for FRA's review and approval,

[[Page 61861]]

containing all of the following information:
    (i) Identification of the equipment by number, type, series, 
operating railroad, and other pertinent data;
    (ii) Identification of the safety appliance bracket(s) or 
support(s) not mechanically fastened to the equipment and not 
considered part of the car body under paragraph (b)(1) of this section;
    (iii) A detailed analysis describing the necessity to attach the 
safety appliance bracket or support to the equipment by a means other 
than mechanical fastening;
    (iv) A detailed analysis describing the inability to make the 
bracket or support part of the car body as provided for in paragraph 
(b)(1) of this section; and
    (v) A copy and description of the consensus or other appropriate 
industry standard used to ensure the effectiveness and strength of the 
attachment;
    (c) Inspection and repair. Passenger equipment with a welded safety 
appliance or a welded safety appliance bracket or support will be 
considered defective and shall be handled in accordance with Sec.  
238.17(e) if any part or portion of the weld is defective as defined in 
Sec.  238.229(d). When appropriate, civil penalties for improperly 
using or hauling a piece of equipment with a defective welded safety 
appliance or safety appliance bracket or support addressed in this 
section will be assessed pursuant to the penalty schedule contained in 
Appendix A to part 231 of this chapter under the appropriate defect 
code contained therein.
    (1) Any safety appliance bracket or support approved by FRA 
pursuant to paragraph (b)(3) of this section shall be inspected and 
handled in accordance with the requirements contained in Sec.  
238.229(g) through (k).
    (2) Any repair to a safety appliance bracket or support considered 
to be part of the car body under paragraph (b)(1) of this section shall 
be conducted in accordance with APTA Standard SS-C&S-020-03--Standard 
for Passenger Rail Vehicle Structural Repair (September 2003), or an 
alternative procedure approved by FRA pursuant to Sec.  238.21, and 
shall ensure that the repair meets the requirements contained in 
paragraphs (b)(1)(i) through (b)(1)(vii) of this section. The Director 
of the Federal Register approves incorporation by reference of the APTA 
Standard SS-C&S-020-03 (September 2003), ``Standard for Passenger Rail 
Vehicle Structural Repair,'' in this section in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the 
incorporated standard from the American Public Transportation 
Association, 1666 K Street, Washington, DC 20006. You may inspect a 
copy of the incorporated standard at the Federal Railroad 
Administration, Docket Clerk, 1120 Vermont Ave., NW., Suite 7000, 
Washington, DC 20590 or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to http://wwww.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (d) Passenger Cars of Special Construction. A railroad or a 
railroad's recognized representative may submit a request for special 
approval of alternative compliance pursuant to Sec.  238.21 relating to 
the safety appliance arrangements on any passenger car considered a car 
of special construction under Sec.  231.18 of this chapter. Any such 
petition shall be in the form of an industry-wide standard and at a 
minimum shall:
    (1) Identify the type(s) of car to which the standard would be 
applicable;
    (2) As nearly as possible, based upon the design of the equipment, 
ensure that the standard provides for the same complement of handholds, 
sill steps, ladders, hand or parking brakes, running boards, and other 
safety appliances as are required for a piece of equipment of the 
nearest approximate type already identified in part 231 of this 
chapter;
    (3) Comply with all statutory requirements relating to safety 
appliances contained at 49 U.S.C. 20301 and 20302;
    (4) Specifically address the number, dimension, location, and 
manner of application of each safety appliance contained in the 
standard;
    (5) Provide specific analysis regarding why and how the standard 
was developed and specifically discuss the need or benefit of the 
safety appliance arrangement contained in the standard;
    (6) Include drawings, sketches, or other visual aids that provide 
detailed information relating to the design, location, placement, and 
attachment of the safety appliances; and
    (7) Demonstrate the ergonomic suitability of the proposed 
arrangements in normal use.
    (e) Any industry standard approved pursuant to Sec.  238.21 will be 
enforced against any person who violates any provision of the approved 
standard or causes the violation of any such provision. Civil penalties 
will be assessed under part 231 of this chapter by using the applicable 
defect code contained in Appendix A to part 231 of this chapter.

0
12. Section 238.231 is amended by revising paragraph (b) and paragraph 
(h)(3) and by adding paragraph (h)(4) to read as follows:


Sec.  238.231  Brake system.

* * * * *
    (b) Where practicable, the design of passenger equipment ordered on 
or after September 8, 2000, or placed in service for the first time on 
or after September 9, 2002, shall not require an inspector to place 
himself or herself on, under, or between components of the equipment to 
observe brake actuation or release. Passenger equipment not designed in 
this manner shall be equipped and handled in accordance with one of the 
following:
    (1) Equipped with piston travel indicators as defined in Sec.  
238.5 or devices of similar design and inspected pursuant to the 
requirements contained in Sec.  238.313 (j); or
    (2) Equipped with brake indicators as defined in Sec.  238.5, 
designed so that the pressure sensor is placed in a location so that 
nothing may interfere with the air flow to brake cylinder and inspected 
pursuant to the requirements contained in Sec.  238.313 (j).
* * * * *
    (h) * * *
    (3) Except for MU locomotives, on locomotives so equipped, the hand 
or parking brake as well as its parts and connections shall be 
inspected, and necessary repairs made, as often as service requires but 
no less frequently than every 368 days. The date of the last inspection 
shall be either entered on Form FRA F 6180-49A, suitably stenciled or 
tagged on the equipment, or maintained electronically provided FRA has 
access to the record upon request.
    (4) A train's air brake shall not be depended upon to hold 
unattended equipment (including a locomotive, a car, or a train whether 
or not locomotive is attached). For purposes of this section, 
``unattended equipment'' means equipment left standing and unmanned in 
such a manner that the brake system of the equipment cannot be readily 
controlled by a qualified person. Unattended equipment shall be secured 
in accordance with the following requirements:
    (i) A sufficient number of hand or parking brakes shall be applied 
to hold the equipment. Railroads shall develop and implement a process 
or procedure to verify that the applied hand or parking brakes will 
sufficiently hold the equipment with the air brakes released;
    (ii) Except for equipment connected to a source of compressed air 
(e.g.,

[[Page 61862]]

locomotive or ground air source), prior to leaving equipment 
unattended, the brake pipe shall be reduced to zero at a rate that is 
no less than a service rate reduction;
    (iii) At a minimum, the hand or parking brake shall be fully 
applied on at least one locomotive or vehicle in an unattended 
locomotive consist or train;
    (iv) A railroad shall develop, adopt, and comply with procedures 
for securing any unattended locomotive required to have a hand or 
parking brake applied when the locomotive is not equipped with an 
operative hand or parking brake;
    (v) A railroad shall adopt and comply with instructions to address 
throttle position, status of the reverser lever, position of the 
generator field switch, status of the independent brakes, position of 
the isolation switch, and position of the automatic brake valve, or the 
functional equivalent of these items, on all unattended locomotives. 
The procedures and instruction shall take into account weather 
conditions as they relate to throttle position and reverser handle; and
    (vi) Any hand or parking brakes applied to hold unattended 
equipment shall not be released until it is known that the air brake 
system is properly charged.
* * * * *

0
13. Section 238.303 is amended by adding a new paragraph (e)(17) to 
read as follows:


Sec.  238.303  Exterior calendar day mechanical inspection of passenger 
equipment.

* * * * *
    (e) * * *
    (17) Each air compressor, on passenger equipment so equipped, shall 
be in effective and operative condition. MU passenger equipment found 
with an inoperative or ineffective air compressor at the time of its 
exterior calendar day mechanical inspection may remain in passenger 
service until the equipment's next exterior calendar day mechanical 
inspection where it must be repaired or removed from passenger service; 
provided, all of the following requirements are met:
    (i) The equipment has an inherent redundancy of air compressors, 
due to either the make-up of the train consist or the design of the 
equipment;
    (ii) The railroad demonstrates through verifiable data, analysis, 
or actual testing that the safety and integrity of a train is not 
compromised in any manner by the inoperative or ineffective air 
compressor. The data, analysis, or test shall establish the maximum 
number of air compressors that may be inoperative based on size of the 
train consist, the type of passenger equipment in the train, and the 
number of service and emergency brake applications typically expected 
in the run profile for the involved train;
    (iii) The involved train does not exceed the maximum number of 
inoperative or ineffective air compressors established in accordance 
with paragraph (e)(17)(ii) of this section;
    (iv) A qualified maintenance person determines and verifies that 
the inoperative or ineffective air compressor does not compromise the 
safety or integrity of the train and that it is safe to move the 
equipment in passenger service;
    (v) The train crew is informed in writing of the number of units in 
the train consist with inoperative or ineffective air compressors at 
the location where the train crew first takes charge of the train;
    (vi) A record is maintained of the inoperative or ineffective air 
compressor pursuant to the requirements contained in Sec.  
238.17(c)(4); and
    (vii) Prior to operating equipment under the provisions contained 
in this paragraph, the railroad shall provide in writing to FRA's 
Associate Administrator for Safety the maximum number of inoperative or 
ineffective air compressors identified in accordance with paragraph 
(e)(17)(ii) of this section.
    (viii) The data, analysis, or testing developed and conducted under 
paragraph (e)(17)(ii) of this section shall be made available to FRA 
upon request. FRA's Associate Administrator for Safety may revoke a 
railroad's ability to utilize the flexibility provided in this 
paragraph if the railroad fails to comply with the maximum limits 
established under paragraph (e)(17)(ii) or if such maximum limits are 
not supported by credible data or do not provide adequate safety 
assurances.

0
14. Section 238.307 is amended by adding paragraph (c)(13) and by 
revising paragraph (d) to read as follows:


Sec.  238.307  Periodic mechanical inspection of passenger cars and 
unpowered vehicles used in passenger trains.

* * * * *
    (c) * * *
    (13) The hand or parking brake shall be applied and released to 
determine that it functions as intended.
    (d) At intervals not to exceed 368 days, the periodic mechanical 
inspection shall specifically include the following:
    (1) Inspection of the manual door releases to determine that all 
manual door releases operate as intended; and
    (2) Inspection of the hand or parking brake as well as its parts 
and connections to determine that they are in proper condition and 
operate as intended. The date of the last inspection shall be either 
entered on Form FRA F 6180-49A, suitably stenciled or tagged on the 
equipment, or maintained electronically provided FRA has access to the 
record upon request.
* * * * *

0
15. Section 238.313 is amended by revising the first sentence of 
paragraph (g)(3) and by adding a new paragraph (j) to read as follows:


Sec.  238.313  Class I brake test.

* * * * *
    (g) * * *
    (3) Piston travel is within prescribed limits, either by direct 
observation, observation of a piston travel indicator, or in the case 
of tread or disc brakes by determining that the brake shoe or pad 
provides pressure to the wheel. * * *
* * * * *
    (j) In addition to complying with all the Class I brake test 
requirements performed by a qualified maintenance person as contained 
in paragraphs (a) through (i) of this section, railroads operating 
passenger equipment that is not designed to permit the visual 
observation of the brake actuation and release without the inspector 
going on, under, or between the equipment in accordance with Sec.  
238.231(b) shall perform an additional inspection. At a minimum, the 
additional inspection requirement for such equipment shall include all 
of the following:
    (1) An additional inspection by a qualified maintenance person of 
all items and components contained in paragraphs (g)(1) through (g)(15) 
of this section;
    (2) The additional inspection shall be conducted at an interval not 
to exceed five (5) in-service days and shall be conducted while the 
equipment is over an inspection pit or on a raised inspection track; 
and
    (3) A record of the additional inspection shall be maintained 
pursuant to the requirements contained in paragraph (h) of this 
section. This record can be combined with the Class I brake test 
record.
* * * * *

0
16. Section 238.321 is added to read as follows:


Sec.  238.321  Out-of-service credit.

    When a passenger car is out of service for 30 or more consecutive 
days or is out of service when it is due for any test or inspection 
required by Sec.  238.307 or Sec.  238.309 an out of use notation

[[Page 61863]]

showing the number of out of service days shall be made in the records 
required under Sec.  238.307(e) and Sec.  238.309(f). If the passenger 
car is out of service for one or more periods of at least 30 
consecutive days, the interval prescribed for any test or inspection 
required by Sec.  238.307 and Sec.  238.309 may be extended by the 
number of days in each period the passenger car is out of service since 
the last test or inspection in question. A movement made in accordance 
with Sec.  229.9 of this chapter or Sec.  238.17 is not considered 
service for the purposes of determining the out-of-service credit.

0
17. Appendix A to part 238 is amended by the following:
0
a. Adding a new entry for Sec. Sec.  238.229 and 238.230;
0
b. Revising the entry for Sec.  238.231(h)(3);
0
c. Adding a new entry for Sec.  238.231(h)(4);
0
d. Adding a new entry for Sec.  238.303(e)(17);
0
e. Adding a new entry for Sec.  238.307(c)(13);
0
f. Removing the entries for Sec.  238.307(d), (d)(3), (d)(4) and 
(d)(5);
0
g. Revising the entries for Sec.  238.307(d)(2) and (d)(3);
0
h. Adding new entries for Sec.  238.313(j) and (j)(3); and
0
i. Adding a new entry for Sec.  238.321 to read as follows:

Appendix A to Part 238--Schedule of Civil Penalties

* * * * *

------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
------------------------------------------------------------------------
 
                              * * * * * * *
238.229 Safety appliances--general:
    (e) Failure to properly identify equipment        2,500        5,000
     (per car)................................
    (g) Failure to adopt or comply with               2,500        5,000
     inspection plan..........................
    (h) Failure to use qualified person (per          2,500        5,000
     car).....................................
    (i) Failure to properly conduct initial or        2,500        5,000
     periodic inspection (per car)............
    (j) Failure to take proper remedial action        2,500        5,000
     (per car)................................
    (k) Failure to maintain records (per car).        2,000        4,000
238.230 Safety appliances--new equipment:
    (b)(2) Failure to identify welded                 2,500        5,000
     appliance (per car)......................
    (b)(3) Failure to receive approval for use        2,500        5,000
     (per car)................................
    (c)(2) Failure to make proper repair (per         2,500        5,000
     car).....................................
 
                              * * * * * * *
238.231 Brake system
 
                              * * * * * * *
    (h)(3) Hand or parking brake inspection or        2,500        5,000
     record (per car).........................
    (h)(4) Hand or parking brake not applied          5,000        7,500
     to hold unattended equipment or
     prematurely released.....................
 
                              * * * * * * *
238.303 Exterior mechanical inspection of
 passenger equipment:
 
                              * * * * * * *
    (e)(17) Air compressor inoperative........        2,500        5,000
 
                              * * * * * * *
238.307 Periodic mechanical inspection of
 passenger cars and unpowered vehicles:
 
                              * * * * * * *
    (c)(13) Hand or parking brake test not            2,500        5,000
     performed................................
 
                              * * * * * * *
    (d)(1) Manual door release not operate as         2,500        5,000
     intended.................................
    (d)(2) Hand or parking brake inspection           2,500        5,000
     not performed............................
 
                              * * * * * * *
238.313 Class I brake test:
 
                              * * * * * * *
    (j) Failure to perform additional Class I         5,000        7,500
     brake test...............................
    (j)(3) Failure to maintain record.........        2,000        4,000
 
                              * * * * * * *
238.321 Out-of-service credit.................        1,000        2,000
 
                              * * * * * * *
------------------------------------------------------------------------


[[Page 61864]]

* * * * *

    Issued in Washington, DC, on September 29, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 06-8611 Filed 10-18-06; 8:45 am]
BILLING CODE 4910-06-P