[Federal Register Volume 73, Number 22 (Friday, February 1, 2008)]
[Rules and Regulations]
[Pages 6370-6413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-247]



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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 223 and 238



Passenger Train Emergency Systems; Emergency Communication, Emergency 
Egress, and Rescue Access; Final Rule

  Federal Register / Vol. 73, No. 22 / Friday, February 1, 2008 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 223 and 238

[Docket No. FRA-2006-25273, Notice No. 2]
RIN 2130-AB72


Passenger Train Emergency Systems; Emergency Communication, 
Emergency Egress, and Rescue Access

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

ACTION: Final rule.

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SUMMARY: This final rule is intended to further the safety of passenger 
train occupants through both enhancements and additions to FRA's 
existing requirements for emergency systems on passenger trains. In 
this final rule, FRA is enhancing existing requirements for emergency 
window exits and establishing requirements for rescue access windows 
for emergency responders to use to evacuate passenger train occupants. 
FRA is also enhancing passenger train emergency system requirements by 
expanding the application of existing requirements that are currently 
applicable only to passenger trains operating at speeds in excess of 
125 mph (Tier II passenger trains) to cover passenger trains operating 
at speeds at or below 125 mph (Tier I passenger trains) as well; in 
particular, these enhancements require that Tier I passenger trains be 
equipped with public address (PA) and intercom systems for emergency 
communication and that passenger cars provide emergency roof access for 
use by emergency responders. FRA is applying certain of the 
requirements to both existing and new passenger equipment, while other 
requirements apply to new passenger equipment only.

EFFECTIVE DATE: The final rule is effective April 1, 2008. The 
incorporation by reference of a certain publication listed in the rule 
is approved by the Director of the Federal Register as of April 1, 
2008. Petitions for reconsideration of this final rule must be received 
not later than March 17, 2008.

ADDRESSES: Any petition for reconsideration should reference Docket No. 
FRA-2006-25273, Notice No. 2, and be submitted by any of the following 
methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand Delivery or Courier: Docket Management Facility, U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. 
ET, Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: For detailed instructions on submitting petitions for 
reconsideration and additional information on the rulemaking process, 
see the Public Participation heading of the Supplementary Information 
section of this document. Note that all petitions for reconsideration 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided. Please see the Privacy Act 
heading below.
    Docket: For access to the docket to read background documents, 
comments, or petitions for reconsideration received, go to http://www.regulations.gov anytime, or to the Docket Management Facility, U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. 
ET, Monday through Friday, except Federal holidays. Follow the online 
instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT: Brenda J. Moscoso, Office of Safety, 
Staff Director, Planning and Evaluation, Mail Stop 25, Federal Railroad 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590 
(telephone 202-493-6282); Daniel L. Alpert, Trial Attorney, Office of 
Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., Washington, DC 20590 (telephone 202-493-6026); or 
Anna Nassif Winkle, Trial Attorney, Office of Chief Counsel, Mail Stop 
10, Federal Railroad Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 (telephone 202-493-6166).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Statutory Background
II. Proceedings to Date
    A. Proceedings To Carry Out the Initial Rulemaking Mandate
    B. Key Issues Identified for Future Rulemaking
    C. Railroad Safety Advisory Committee (RSAC) Overview
    D. Establishment of the Passenger Safety Working Group
    E. Establishment of the Emergency Preparedness Task Force
    F. Development of the Notice of Proposed Rulemaking (NPRM)
    G. Development of the Final Rule, including Response to Written 
Comments
III. Technical Background
    A. Change in the Composition of the Passenger Car Fleet
    B. National Transportation Safety Board (NTSB) Safety 
Recommendation on Windows
    C. Need for Emergency Communication Systems
    D. Window Technology
    E. American Public Transportation Association's (APTA) Standard 
for Emergency Evacuation Units
IV. General Overview of Requirements
    A. Emergency Window Exits and Rescue Access Windows
    B. Emergency Communication Systems--PA and Intercom Systems
    C. Emergency Roof Access
    D. Inspection, Testing, and Maintenance
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Act of 1995
    G. Energy Impact
    H. Trade Impact
    I. Privacy Act
VII. List of Subjects

I. Statutory Background

    In September of 1994, the Secretary of Transportation (Secretary) 
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 safety regulations and included it in the Federal 
Railroad Safety Authorization Act of 1994 (the Act), Pub. L. No. 103-
440, 108 Stat. 4619, 4623-4624 (November 2, 1994). Congress also 
authorized the Secretary to consult with various organizations involved 
in passenger train operations for purposes of prescribing and amending 
these regulations, as well as issuing orders pursuant to them. Section 
215 of the Act is codified at 49 U.S.C. 20133.

[[Page 6371]]

II. Proceedings to Date

A. Proceedings To Carry Out the Initial Rulemaking Mandate

    The Secretary delegated these rulemaking responsibilities to the 
Federal Railroad Administrator, see 49 CFR 1.49(m), and FRA formed the 
Passenger Equipment Safety Standards Working Group to provide FRA with 
advice in developing the regulations. On June 17, 1996, FRA published 
an advance notice of proposed rulemaking (ANPRM) concerning the 
establishment of comprehensive safety standards for railroad passenger 
equipment. See 61 FR 30672. The ANPRM provided background information 
on the need for such standards, offered preliminary ideas on 
approaching passenger safety issues, and presented questions on various 
passenger safety topics. Following consideration of comments received 
on the ANPRM and advice from FRA's Passenger Equipment Safety Standards 
Working Group, FRA published an 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 comprehensive 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 certain requirements 
contained in the rule. These petitions generally related to the 
following subject areas: structural design; fire safety; training; 
inspection, testing, and maintenance; and movement of defective 
equipment. To address the petitions, FRA grouped issues together and 
published in the Federal Register three sets of amendments to the final 
rule. Each set of amendments summarized the petition requests at issue, 
explained what action, if any, FRA decided to take in response to the 
issues raised, and described FRA's justifications for its decisions and 
any action taken. Specifically, 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 provisions 
related to mechanical issues contained in the final rule. See 65 FR 
41284. On April 23, 2002, FRA responded to all remaining issues raised 
in the petitions for reconsideration, with the exception of those 
relating to fire safety. See 67 FR 19970. Finally, on June 25, 2002, 
FRA completed its response to the petitions for reconsideration by 
publishing a response to the petitions for reconsideration concerning 
the fire safety portion of the rule. See 67 FR 42892. (For more 
detailed information on the petitions for reconsideration and FRA's 
response to them, please see these three rulemaking documents.) The 
product of this rulemaking was codified primarily at 49 CFR part 238 
and secondarily at 49 CFR parts 216, 223, 229, 231, and 232.
    Meanwhile, another rulemaking on passenger train emergency 
preparedness produced a final rule codified at 49 CFR part 239. See 63 
FR 24629 (May 4, 1998). The rule addresses passenger train emergencies 
of various kinds, including security situations, and requires the 
preparation, adoption, and implementation of emergency preparedness 
plans by railroads connected with the operation of passenger trains. 
The emergency preparedness plans must include elements such as 
communication, employee training and qualification, joint operations, 
tunnel safety, liaison with emergency responders, on-board emergency 
equipment, and passenger safety information. The rule requires each 
affected railroad to instruct its employees on the applicable 
provisions of its plan, and the plan adopted by each railroad is 
subject to formal review and approval by FRA. The rule also requires 
each railroad operating passenger train service to conduct emergency 
simulations to determine its capability to execute the emergency 
preparedness plan under the variety of emergency scenarios that could 
reasonably be expected to occur.
    In addition, in promulgating the rule, FRA established specific 
requirements for passenger train emergency systems. Among these are 
requirements that all emergency window exits and all windows intended 
for rescue access by emergency responders be marked and that 
instructions be provided for their use; and also requirements that all 
door exits intended for egress be lighted or marked, all door exits 
intended for rescue access by emergency responders be marked, and that 
instructions be provided for their use.

B. Key Issues Identified for Future Rulemaking

    While FRA had completed these rulemakings, FRA had identified 
various issues for possible future rulemaking, including those to be 
addressed following the completion of additional research, the 
gathering of additional operating experience, or the development of 
industry standards, or all three. One such issue concerned expanding 
the application of emergency system requirements pertaining to Tier II 
passenger equipment to Tier I passenger equipment as well. Another 
issue concerned specifying minimum numbers and locations of windows 
intended for emergency responder access to passenger cars, as 49 CFR 
223.9(d)(2) addressed only marking and instruction requirements and did 
not provide any express requirement that any rescue access windows be 
present. FRA and interested industry members also began identifying 
other issues related to the new passenger equipment safety standards 
and the passenger train emergency preparedness regulations. FRA decided 
to address these issues with the assistance of RSAC.

C. RSAC Overview

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to FRA's Administrator 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 and Transportation 
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     APTA;
     American Short Line and Regional Railroad Association 
(ASLRRA);
     American Train Dispatchers Association;
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employees Division;
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     Federal Transit Administration (FTA)*;
     Fertilizer Institute;
     High Speed Ground Transportation Association (HSGTA);
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace 
Workers;
     International Brotherhood of Electrical Workers (IBEW);

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     Labor Council for Latin American Advancement*;
     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);
     NTSB *;
     Railway Supply Institute (RSI);
    Indicates associate, non-voting membership.
     Safe Travel America (STA);
     Secretaria de Comunicaciones 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);
     Transportation Security Administration (TSA)*; and
     United Transportation Union (UTU).
    * Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, 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 individual 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 full RSAC for a vote. If the proposal is accepted by a 
simple majority of RSAC, the proposal is formally recommended to FRA. 
FRA then determines what action to take on the recommendation. Because 
FRA staff play 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 or final 
rule. Any such variations would be noted and explained in the 
rulemaking document issued by FRA. If the working group or RSAC is 
unable to reach consensus on a recommendation for action, FRA moves 
ahead to resolve the issue through traditional rulemaking proceedings.

D. Establishment of the Passenger Safety Working Group

    On May 20, 2003, FRA presented, and RSAC accepted, the task of 
reviewing existing passenger equipment safety needs and programs and 
recommending consideration of specific actions that could be useful in 
advancing the safety of rail passenger service. The RSAC established 
the Passenger Safety Working Group (Working Group) to handle this task 
and develop recommendations for the full RSAC to consider. Members of 
the Working Group, in addition to FRA, include the following:
     AAR, including members from BNSF Railway Company (BNSF), 
CSX Transportation, Inc., and Union Pacific Railroad Company;
     AAPRCO;
     AASHTO;
     Amtrak;
     APTA, including members from Bombardier, Inc., LDK 
Engineering, Herzog Transit Services, Inc., Long Island Rail Road 
(LIRR), Metro-North Commuter Railroad Company (Metro-North), Northeast 
Illinois Regional Commuter Railroad Corporation (Metra), Southern 
California Regional Rail Authority (Metrolink), and Southeastern 
Pennsylvania Transportation Authority (SEPTA);
     BLET;
     BRS;
     FTA;
     HSGTA;
     IBEW;
     NARP;
     RSI;
     SMWIA;
     STA;
     TCIU/BRC;
     TWU; and
     UTU.
    Staff from DOT's John A. Volpe National Transportation Systems 
Center (Volpe Center) attended all of the meetings and contributed to 
the technical discussions. In addition, staff from the NTSB met with 
the Working Group when possible. The Working Group has held ten 
meetings on the following dates and locations:
     September 9-10, 2003, in Washington, DC;
     November 6, 2003, in Philadelphia, PA;
     May 11, 2004, in Schaumburg, IL;
     October 26-27, 2004 in Linthicum/Baltimore, MD;
     March 9-10, 2005, in Ft. Lauderdale, FL;
     September 7, 2005 in Chicago, IL;
     March 21-22, 2006 in Ft. Lauderdale, FL;
     September 12-13, 2006 in Orlando, FL;
     April 17-18, 2007 in Orlando, FL; and
     December 11, 2007 in Ft. Lauderdale, FL.
    At the meetings in Chicago and Ft. Lauderdale in 2005, FRA met with 
representatives of Tri-County Commuter Rail and Metra, respectively, 
and toured their passenger equipment. The visits, which included 
demonstrations of emergency system features, were open to all members 
of the Working Group, and FRA believes they have added to the 
collective understanding of the Group in identifying and addressing 
passenger train emergency system issues.

E. Establishment of the Emergency Preparedness Task Force

    Due to the variety of issues involved, at its November 2003 meeting 
the Working Group established four task forces--smaller groups to 
develop recommendations on specific issues within each group's 
particular area of expertise. Members of the task forces include 
various representatives from the respective organizations that were 
part of the larger Working Group. One of these task forces 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. An NPRM on these topics was 
published on December 8, 2005 (see 70 FR 73069), and a final rule was 
published on October 19, 2006 (see 71 FR 61835). Another of these task 
forces was assigned the job of developing recommendations related to 
window glazing integrity, structural crashworthiness, and the 
protection of occupants during accidents and incidents. This work of 
this task force led to the publication of an NPRM focused on enhancing 
the front-end strength of cab cars and multiple-unit (MU) locomotives 
on August 1, 2007. See 72 FR 42016. Another task force, the Emergency 
Preparedness Task Force (Task Force), was established to identify

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issues and develop recommendations related to emergency systems, 
procedures, and equipment. Specifically, the Task Force was charged 
with evaluating APTA's standards for emergency systems for their 
incorporation by reference as Federal standards and requirements. These 
APTA standards are aimed at promoting the ability of passenger car 
occupants to reach, identify, and operate emergency exits under various 
conditions. The Task Force was also given the responsibility of 
addressing a number of other emergency systems issues and to recommend 
any research necessary to facilitate their resolution. Members of the 
Task Force, in addition to FRA, include, or have included, the 
following:
     Amtrak;
     APTA, including members from Bombardier, Ellcon National, 
Go Transit, Interfleet, Jacobs Civil Engineering, Jessup Manufacturing 
Company, Kawasaki Rail Car, Inc., LDK Engineering, LIRR, LTK, 
Luminator, Maryland Transit Administration, Massachusetts Bay 
Transportation Authority (MBTA), Metrolink, Metro-North, Northern 
Indiana Commuter Transit District (NICTD), SEPTA, San Diego Northern 
Commuter Railroad (Coaster), Permalight, PO's Ability USA, Inc., 
Prolink, Transit Design Group (TDG),Transit Safety Management (TSM), 
Translite, STV Inc., and Visual Marking Systems, Inc.;
     BLET;
     California Department of Transportation (Caltrans);
     FTA;
     NARP;
     RSI, including Globe Transportation Graphics;
     TWU; and
     UTU.
    While not voting members of the Task Force, representatives from 
the NTSB and from TSA, of the U.S. Department of Homeland Security 
(DHS), attended certain of the meetings and contributed to the 
discussions of the Task Force. In addition, staff from the Volpe Center 
attended all of the meetings and contributed to the technical 
discussions through their comments and presentations and by setting up 
various lighting, marking, and signage demonstrations.
    The Task Force has held 15 meetings on the following dates and 
locations:
     February 25-26, 2004, in Los Angeles, CA;
     April 14-15, 2004, in Cambridge, MA;
     July 7-8, 2004, in Washington, DC;
     September 13-14, 2004, in New York, NY;
     December 1-2, 2004, in San Diego, CA;
     February 16-17, 2005, in Philadelphia, PA;
     April 19-20, 2005, in Cambridge, MA;
     August 2-3, 2005, in Cambridge, MA;
     December 13-14, 2005, in Baltimore, MD;
     August 10, 2006, in Grapevine, TX;
     October 25-26, 2006, in Philadelphia, PA;
     December 6-7, 2006, in Washington, DC;
     March 28-29, 2007, in Los Angeles, CA;
     June 13-14, 2007, in San Francisco, CA; and
     October 17-18, 2007, in Arlington, VA.
    At meetings in Los Angeles, Cambridge, Washington, New York, San 
Diego, Philadelphia, and San Francisco, FRA met with representatives of 
Metrolink, MBTA, Amtrak, LIRR, Coaster, SEPTA, and Caltrans, 
respectively, and toured their passenger equipment. The visits were 
open to all members of the Task Force and included demonstration of 
emergency system features. As in the case of the Working Group visits, 
FRA believes they have added to the collective understanding of the 
Task Force in identifying and addressing passenger train emergency 
system issues for not only this rulemaking, but for future rulemakings 
as well.

F. Development of the NPRM

    The NPRM was developed to address a number of the concerns raised 
and issues discussed during the various Task Force and Working Group 
meetings. Minutes of each of these meetings have been made part of the 
docket in this proceeding and are available for public inspection. The 
Working Group reached full consensus on all the regulatory provisions 
contained in the NPRM at its meetings in March and September 2005. 
After the March 2005 meeting, the Working Group presented its 
recommendations to the full RSAC for concurrence at its meeting in May 
2005. All of the members of the full RSAC in attendance at its May 2005 
meeting accepted the regulatory recommendations submitted by the 
Working Group. Thus, the Working Group's recommendations became the 
full RSAC's recommendations to FRA. In October 2005, the full RSAC also 
recommended that FRA adopt a further recommendation from the Working 
Group at its September 2005 meeting--that FRA grant additional time for 
compliance with the proposal on rescue access windows. After reviewing 
the full RSAC's recommendations, FRA agreed that the recommendations 
provided a sound basis for a proposed rule and adopted the 
recommendations with generally minor changes for purposes of clarity 
and formatting in the Federal Register.
    The NPRM was published in the Federal Register on August 24, 2006 
(see 71 FR 50276), and FRA solicited public comment on it. FRA 
specifically invited comment on a number of issues related to the 
proposed requirements for the purpose of developing the final rule, in 
addition to notifying the public of its option to submit written 
comments on the NPRM and to request a public, oral hearing on the NPRM.

G. Development of the Final Rule, including Response to Written 
Comments

    This final rule is the product of FRA's review, consideration, and 
acceptance of the recommendations of the Task Force, Working Group, and 
full RSAC, and of the written comments on which they are based. FRA 
received two written comments in response to the publication of the 
NPRM: one from the NTSB; the other from Caltrans. The NTSB indicated 
that the NPRM was consistent with the intent of its safety 
recommendation to FRA relevant to these emergency systems, and 
expressed support for the proposed emergency communication system and 
emergency roof access requirements. Caltrans' comments related to the 
requirement for staggering the location of emergency window exits to 
the extent practical and to the proposed requirement for inspecting 
emergency roof access markings. As explained further below, after 
discussing the comments with the Task Force, the Task Force made 
consensus recommendations to resolve Caltrans' two concerns by 
clarifying in this preamble the requirement for staggering, and by 
granting Caltrans' request to extend the interval between inspections 
for roof access markings to a maximum of 368 days, instead of the 184 
days that FRA had proposed. FRA agrees with the underlying rationale 
for these recommendations and has modified the final rule accordingly. 
FRA did not receive a request for a public, oral hearing on the NPRM, 
and none was held.
    Throughout the preamble discussion of this final rule, FRA refers 
to comments, views, suggestions, or recommendations made by members of 
the Task Force, Working Group, and full RSAC, as they are identified or 
contained in the minutes of their

[[Page 6374]]

meetings. FRA does so to show the origin of certain issues and the 
nature of discussions concerning those issues at the Task Force, 
Working Group, and full RSAC level. FRA believes this serves to 
illuminate factors that it has weighed in making its regulatory 
decisions, as well as the logic behind those decisions. The reader 
should keep in mind, of course, that only the full RSAC makes 
recommendations to FRA and that it is the consensus recommendation of 
the full RSAC on which FRA is acting. However, as noted above, 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.

III. Technical Background

    Trends in new passenger car orders, experience with passenger train 
accidents, concern about emergency communication, and technological 
advances in emergency systems provided the main impetus for these 
enhancements and additions to FRA's standards for passenger train 
emergency systems, as highlighted below.

A. Change in the Composition of the Passenger Car Fleet

    While FRA was developing the Passenger Equipment Safety Standards 
and the Passenger Train Emergency Preparedness regulations in the 
1990s, the operation of multi-level passenger cars having two seating 
levels for passengers (i.e., bi-level cars) was common. However, the 
operation of multi-level passenger cars having three seating levels for 
passengers (i.e., cars with intermediate (or mezzanine) seating levels) 
was not as prevalent in the U.S. as it is today. As a result, in those 
rulemakings there was less focus on the need for applying emergency 
system safety standards to intermediate seating levels of multi-level 
passenger cars.
    Since that time, the composition of the Nation's commuter rail 
fleet has changed. Multi-level passenger cars with passenger seating in 
intermediate levels have become more prevalent and now account for over 
15 percent of all passenger cars. The intermediate seating levels in 
these multi-level passenger cars are normally located at the far ends 
of the cars and are connected to the upper and lower seating levels by 
stairs. Exterior side doors are also often located toward the ends of 
these cars to facilitate boarding and de-boarding. Given the constraint 
posed by station platform lengths and the desire to minimize station 
dwell time, railroads have turned to multi-level passenger cars with 
intermediate seating levels to meet much of the increased demand for 
service, to the extent that vertical clearances permit their operation.
    In light of the growing use of multi-level passenger cars with 
intermediate seating levels, this final rule helps to address the need 
to provide more explicit emergency system safety standards for these 
passenger cars.

B. NTSB Safety Recommendation on Windows

    On April 23, 2002, a BNSF freight train collided head on with a 
standing Metrolink passenger train near Placentia, CA, resulting in two 
fatalities and numerous injuries on the Metrolink train. Though not a 
contributing factor to the fatalities or injuries, the force of the 
collision blocked the rear end door and also blocked the rear stairway 
linking the upper and lower seating levels to the seating area on the 
intermediate level at the rear of the Metrolink cab car. Although 
passengers in that intermediate level seating area did exit through an 
emergency window, no windows on the intermediate level had been 
designated for rescue access, and consequently no instructions for 
emergency responders to gain access to the intermediate level through a 
window had been posted. Concerned with the extent of Federal 
requirements relating to rescuing passengers from the intermediate 
level of a multi-level passenger car, the NTSB issued Safety 
Recommendation R-03-21 to FRA on November 6, 2003. Safety 
Recommendation R-03-21 provides in full as follows:

Revise the language of 49 Code of Federal Regulations 238.113(a)(1) 
to reflect that appropriate exterior instructional signage 
describing the emergency removal procedure be required at emergency 
windows on all levels of a multiple-level passenger railcar.

    In a February 20, 2004 letter to the NTSB, FRA noted that its 
existing regulations do require that windows intended for emergency 
responder access on every level of a multi-level passenger car be 
clearly marked and that clear and understandable instructions for their 
removal be posted at or near the windows on the car's exterior. See 49 
CFR 223.9(d)(2). FRA also sent a letter to passenger railroads to make 
this clear in the event there was any confusion about these 
requirements. Nevertheless, the NTSB's recommendation highlighted the 
fact that several related concerns were not specifically addressed in 
FRA's regulations. One of these concerns was specifying minimum numbers 
and locations of windows intended for emergency responder access to 
passenger cars, as 49 CFR 223.9(d)(2) addressed only marking and 
instruction requirements and did not provide any express requirement 
that any such rescue access windows be present. A second prominent 
issue concerned specifying minimum numbers and locations of emergency 
window exits on any level of a multi-level passenger car--not just on 
main levels, as then provided in 49 CFR 238.113(a)(1).
    FRA informed the NTSB that it was reviewing and considering the 
necessity of making amendments to its safety standards for passenger 
trains through the RSAC process and that these and other passenger 
safety issues would be presented to the Working Group and the Task 
Force for their consideration. Therefore, FRA asked that the NTSB 
classify Safety Recommendation R-03-21 as ``Open--Acceptable 
Response,'' pending the results of this effort. (The NTSB 
classification ``Open--Acceptable Response'' means a ``[r]esponse by 
recipient indicates a planned action that would comply with the safety 
recommendation when completed.'') By letter dated June 2, 2004, the 
NTSB formally classified the recommendation as FRA requested.
    The Task Force reviewed the NTSB's recommendation and the related 
issues that FRA presented to it and agreed to address emergency window 
exits and rescue access windows on a broad basis, with the goal that 
windows for emergency egress and rescue access would be available on 
every level of a passenger car in the event that a stairway or interior 
door is compromised and access to the primary means of exit (doors) is 
blocked. To this end, the Task Force agreed to develop requirements for 
emergency window exits on non-main levels of multi-level passenger 
cars, and rescue access windows on all levels of these cars, thus 
addressing requirements for every seating level of a passenger car.

C. Need for Emergency Communication Systems

    Traditionally, conductors and assistant conductors have been relied 
upon to relay information to passengers in both normal and emergency 
situations through face-to-face communication or by use of the PA 
system. However, with smaller crew sizes, passengers may not be able to 
tell the crew about a medical emergency, report a fire on board the 
train, or provide notification of other safety issues as quickly as may 
be necessary. For instance, a passenger in the last car of a train 
needing to report an

[[Page 6375]]

emergency situation could potentially have to walk the entire length of 
the train to communicate with the conductor (assuming the crew is 
composed of an engineer and only one conductor). Further, if the 
conductor became incapacitated, passengers would need to communicate 
directly with the engineer.
    FRA also notes that the NTSB's report on its investigation of the 
February 9, 1996 collision near Secaucus, NJ, that involved two New 
Jersey Transit Rail Operations (NJTR) trains and resulted in three 
fatalities and numerous injuries, touches on the importance of 
emergency communication systems to prevent panic and further injuries. 
According to the NTSB report of the accident investigation,

    [a]lthough the train crews said that they went from car to car 
instructing passengers to remain seated, passengers said that they 
were not told about the severity of the situation and were concerned 
about a possible fire or being struck by an oncoming train. They 
therefore left the train and wandered around the tracks waiting for 
guidance, potentially posing a greater hazard because of the leaking 
fuel from train 1107.
    No crewmember used the public address system to communicate with 
passengers. By using the public address system, all passengers would 
have received the same message in less time than it would have taken 
the NJT employees to walk from car to car.

    The report also stated:

    Information about the possibility of a fire or a collision with 
an oncoming train could have been provided to passengers over the 
public address system to address their concerns and prevent them 
from leaving the train. The Safety Board concludes that the lack of 
public announcements addressing the passengers' concerns caused them 
to act independently, evacuate the train, and wander along the 
tracks, thus potentially contributing to the dangerous conditions at 
the collision site.

NTSB/RAR-97/01, at p. 27.

    In 1998, APTA recognized the importance of emergency communication 
systems when it issued APTA SS-PS-001-98, ``Standard for Passenger 
Railroad Emergency Communications,'' noting that the establishment and 
execution of communications among train crews, operations control 
personnel, and train passengers are of the utmost importance under 
normal circumstances. According to the APTA standard, during emergency 
situations such communications take on added importance in the task of 
assuring the safety of all involved.
    While the Passenger Equipment Safety Standards issued in 1999 by 
FRA contain requirements for two-way emergency communication systems 
for Tier II passenger equipment (trains operating at speeds exceeding 
125 mph, but not exceeding 150 mph), there are no requirements that 
Tier I passenger cars be equipped with any emergency communication 
system. In that rulemaking, concern had been raised about the 
practicability of applying such requirements to Tier I passenger 
equipment because of the interoperability of such equipment and the 
possible incompatibility of communications equipment in a Tier I 
passenger train. See 64 FR 25540, 25641 (May 12, 1999). Nevertheless, 
most existing passenger cars are equipped with PA systems, and intercom 
systems are common in new passenger cars.
    FRA notes that, while there are many possible ways for an emergency 
situation to arise on a passenger train, an emergency system may be 
useful in many situations, regardless of the origin of the emergency. 
In this regard, emergency communication systems provide the added 
benefit of conveying information about security threats and handling 
security concerns. According to TSA, terrorists have considered attacks 
on subways and trains in the U.S., and TSA has found that passenger 
railroads and subways in the U.S. are particularly high-consequence 
targets in terms of potential loss of life and economic disruption. 
DHS, including TSA, as well as DOT's FRA and FTA have been actively 
engaged in responding to the threat of terrorism to our Nation's rail 
system, and have undertaken numerous initiatives to advance the safety 
and security of railroad passengers, railroad employees, and the public 
as a whole. Consistent with this response, the ability of passengers to 
timely report suspicious items and suspicious activity onboard 
passenger trains to appropriate personnel increases the likelihood of 
detecting terrorist planning activity or an attempted attack and 
thwarting it, or at least disrupting it and minimizing its 
consequences. This would also be facilitated by the ability of the 
train crew to timely communicate emergency information and instructions 
to passengers in response to a security threat.
    FRA also notes that emergency system requirements for such features 
as emergency window exits and emergency lighting, which were not 
specifically developed to address security threats, may play a critical 
role in minimizing the consequences of a terrorist attack onboard a 
passenger train. The safety and security functions that passenger train 
emergency systems may serve make them vital, and further enhancements 
and additions to emergency systems should be explored both to reduce 
the risk of a terrorist attack to passenger trains, to minimize the 
consequences of such an attack if it occurs, and to promote passenger 
train safety overall.

D. Window Technology

    A ``zip-strip'' is a strip of rubber gasketing that holds a window 
panel in place and is capable of being pulled, or pried and then 
pulled, like a zipper from the panel that it holds. Zip-strips have 
been used for window removal for some time. Yet, the introduction of 
windows using zips-strips on both faces of the same window has allowed 
railroads to designate for rescue access those windows that are best 
suited for that purpose, without impacting the selection of emergency 
window exits or compromising compliance with safety glazing 
requirements. Before this technology was available, railroads that used 
zip-strips for window removal had to decide which windows would be 
designated for emergency egress and which would be designated for 
rescue access, as there was only one zip-strip available to open. 
Equipping cars with more rescue access windows with zip-strips meant 
having fewer emergency window exits, all things being equal, even 
though it would be preferable to have more emergency window exits than 
rescue access windows as occupants should normally begin to self-
evacuate via emergency window exits before emergency responders arrive 
to assist. Whereas railroads could generally designate any window for 
rescue access by providing instructions for removal using tools 
normally available to emergency responders to pop out a window, such as 
a sledge hammer or a fire axe, some railroads prefer to equip windows 
with exterior zips-strips for rescue access because they allow for 
window removal with less effort.
    In the NPRM, FRA did not propose that the rule require the use of 
zip-strips for rescue access windows. Nevertheless, FRA did propose to 
recognize ``dual-function windows,'' which serve as both emergency exit 
and rescue access windows, through the use of zip-strips on both faces 
of the window. FRA has adopted this proposal in the final rule. As 
explained below, ``dual-function windows'' afford railroads additional 
flexibility in the location of their windows in that railroads are not 
required to find locations for emergency window exits distinct from the 
locations specified for rescue access windows, and vice-versa.

[[Page 6376]]

E. APTA's Standard for Emergency Evacuation Units

    As FRA noted in the preamble to the final rule promulgating the 
Passenger Equipment Safety Standards, FRA has had under consideration a 
performance standard for emergency evacuation similar to that used in 
commercial aviation where a sufficient number of emergency exits must 
be provided to evacuate the maximum passenger load in a specified time 
for various types of emergency situations. See 64 FR 25550. FRA further 
noted that it would evaluate whether an APTA performance standard for 
emergency egress, then under development in APTA's PRESS Task Force, 
should be incorporated into FRA's standards. 64 FR 25551. FRA's intent 
is that such a performance standard would serve to supplement, as 
necessary, FRA's minimum requirements for emergency window exits and 
door exits.
    In 1999, APTA issued APTA SS-PS-003-98, ``Standard for Emergency 
Evacuation Units for Rail Passenger Cars.'' This standard assigns to 
doors and window exits a numerical value, referred to as an ``emergency 
evacuation unit'' (EEU), that is intended to correlate to the speed and 
ease of passenger egress. Each emergency window exit is assigned an EEU 
of 1, and each door leaf an EEU of 2. The standard defines the ``usable 
exit path'' (UXP) as the number of emergency window and door exits that 
can be used by passengers after an incident that requires emergency 
egress from the vehicle, and provides that the UXP be calculated as 
``the sum of EEUs for one side of the car less 50% of car end doors.'' 
The APTA standard also requires railroads to assign to each new 
passenger car a ``capacity exit factor'' (CXF), which is a value equal 
to the seating capacity of the car divided by 17 and rounded up to the 
next whole number, and to designate a sufficient number of exits to 
achieve a total EEU value equal to or larger than the CXF or the UXP.
    Although the basic approach to establishing egress requirements 
based on car configuration and occupant capacity was widely accepted, 
during development of the APTA standard several organizations raised 
issues regarding the methodology for assigning EEU values to exits. For 
instance, Volpe Center staff suggested that point values for windows be 
reduced to numbers that are approximately in proportion to estimated 
passenger flow rates as compared with low-platform doors without steps, 
and that upper-level windows receive no credit toward the minimum EEU 
criterion but still be required to provide exit paths for certain rare 
accident scenarios. It was also questioned whether egress rates through 
windows could be half as great as through single-leaf doors, as implied 
by the standard.
    The Task Force reviewed the APTA standard and recommended the 
continuation of evacuation test experiments and research to establish 
relative exit flow rates using different types of exits at distinct 
locations in the car, prior to considering adoption of the APTA 
standard into FRA's standards. To this end, the Volpe Center conducted 
a series of test experiments on commuter rail car evacuation in August 
2005, and in April and May 2006, in Boston, MA, with the cooperation of 
the MBTA. Test experiments were conducted under normal and emergency 
lighting conditions, and evaluated three different ways of evacuating a 
car: Directly into an adjoining car; to a high platform using one or 
more side doors; and to a simulated, low platform using side doors with 
stairways. A report, which is in the process of being finalized, will 
document the results of these test experiments. (Due to safety 
concerns, it is not anticipated that test experiments will be conducted 
using windows as a means of emergency egress.) FRA does note that the 
emergency evacuation approach underlying the requirements in this final 
rule is consistent with the basic approach taken in developing APTA's 
standard, as the requirements do take into consideration both car 
configuration and occupant capacity.

IV. General Overview of Requirements

A. Emergency Window Exits and Rescue Access Windows

    Among the most prominent issues identified for consideration by the 
Working Group were those involving emergency window exits and rescue 
access windows and how these windows relate to the emergency systems 
requirements overall. Emergency window exits are intended to supplement 
door exits, which serve as the preferred means of egress in an 
emergency situation, and provide an alternative means of emergency 
egress in life-threatening situations, should doors be rendered 
inaccessible or inoperable. Prior to this rulemaking FRA's regulations 
had required that each single-level car and each main level of a multi-
level passenger car have a minimum of four emergency window exits, 
either in a staggered configuration where practical or with one exit 
located in each side of each end, on each level; that these windows be 
designed to permit rapid and easy removal during an emergency without 
the use of a tool or other implement; and that conspicuous photo-
luminescent marking of the windows, as well as instructions for their 
use, be provided. FRA's regulations had also required that windows 
intended for rescue access be marked with retroreflective material, and 
that instructions for their use also be provided. However, FRA's 
regulations did not require any minimum number of rescue access windows 
for passenger cars.
    One of the basic principles underlying the final rule's 
requirements for both emergency window exits and rescue access windows 
has been to locate these windows in such a manner that passengers would 
be able to exit from, and emergency responders would be able to gain 
direct access to, each passenger compartment without requiring that 
they first go to another level of a car or through an interior door. 
Optimally, there would be a sufficient number of windows for passengers 
to exit from, and for emergency responders to get access to, the 
following: (i) Every level with passenger seating of a multi-level 
passenger railcar; (ii) both sides of the passenger railcar, in the 
event of a derailment where the exits on one side are compromised; and 
(iii) each end (half) of the passenger railcar, in the event that one 
end is crushed or the exits on that end are otherwise rendered 
inaccessible or inoperable. A constraint for both new and existing 
intermediate levels of multi-level passenger car designs is that there 
is limited space for side windows due to the presence of bathrooms, 
equipment closets, and side door exits. Thus, the Task Force 
recommended making the requirements flexible and consistent with 
existing car designs and, in certain cases, providing for exceptions. 
The exceptions for new equipment are limited to situations that arise 
from the need to provide accessible accommodations under the Americans 
with Disabilities Act of 1990 (ADA) in compartments where there are no 
more than four seats and a suitable alternative is provided. The Task 
Force recommended greater flexibility for existing equipment to avoid 
costly window installations where none had previously existed (e.g., 
relocating an electrical closet so that a space large enough to 
accommodate a new window could be cut into the side of the car).
    During Task Force discussions, it became apparent that the phrase 
``rapid and easy'' in the emergency window exit regulation was being 
interpreted in different ways by commuter railroads and car 
manufacturers. Some believed

[[Page 6377]]

that only the removal of the gasket had to be rapid and easy; however, 
FRA clarified that while FRA may have cited examples of gaskets that 
were becoming stuck and were therefore not removable in a rapid and 
easy fashion, the central goal of this provision is to create an 
opening that could be used for egress, which necessarily includes 
removal of the window panel as well. If the removal of the gasket is 
rapid and easy, but the removal of the window panel is not, the opening 
becomes less useful in an emergency situation, or in some cases, 
effectively non-existent. Several members of the Task Force also 
expressed their concern that the phrase ``rapid and easy'' was too 
subjective and not quantifiable. They requested that FRA adopt a more 
measurable performance-based standard instead. Yet, various proposals 
to do so based on a specific allotment of time to open the window were 
not adopted, as consensus was not reached on how that time would be 
determined. Variables such as a person's height, weight, strength, and 
awareness of emergency exit operation and procedures all could affect 
the ease of opening a window. For example, a railroad maintenance 
employee who installs emergency window exits or is otherwise trained on 
their use should be able to open a window more quickly than many 
passengers would be able to do. While there was general agreement that 
a time-performance standard should be based on the time taken by a 
representative sample of people to open the window, the Task Force was 
not in a position to specify that sample.
    Although unsuccessful at reaching consensus on an actual measure of 
``rapid and easy,'' the Task Force was able to agree that promoting 
``rapid and easy'' removal of emergency windows is desirable. A 
combination of interior car fixtures, such as headrests and luggage 
racks, as well as larger and heavier windows, can create a situation 
where the most effective and efficient method for removing a window is 
not immediately apparent. As a step towards promoting rapid and easy 
removal of the window and to address the situation of particular 
concern, the Task Force recommended requiring that instructions 
specifically take into account potential hindrances. The instructions 
may be in written or pictorial format, since including pictorials 
depicting the window removal method as part of the instructions can be 
extremely helpful.
    As for rescue access windows, the Task Force generally recommended 
requiring two windows on each level of a passenger car for rescue 
access (versus four as is required for emergency exit). The principal 
reason for requiring only two windows for rescue access is that rescue 
access windows are the third means of egress in the overall emergency 
evacuation approach, in which door exits serve as the first (preferred) 
means of egress and emergency window exits serve as the second. Rescue 
access windows have this tertiary role because they would be used as a 
means of last resort when passengers cannot evacuate themselves and 
require aid from emergency responders. The design of window gaskets 
also affects how many rescue access windows can be placed in a car, 
especially on levels where there is limited space for windows. For 
instance, on certain types of cars, zip-strips installed to facilitate 
rapid and easy removal of a window can be placed either on the interior 
or the exterior of the car, but not on both. In this case, if FRA were 
to require four rescue access windows, then a railroad that has cars 
with additional emergency window exits (i.e., beyond the minimum of 
four per main level) would likely just replace some of its emergency 
window exits with rescue access windows, resulting in fewer emergency 
window exits, and thereby limiting the more preferred means of egress. 
For the above reasons, as well as for the cost of retrofitting existing 
equipment, flexibility for locating rescue access windows in side doors 
was added for existing equipment.
    FRA did not propose, and the final rule does not make, any change 
to existing requirements for emergency window exits in sleeping 
compartments or similar private compartments. Yet, in establishing 
requirements for minimum numbers of rescue access windows in passenger 
cars, FRA is requiring that each sleeping compartment or similar 
private compartment in a passenger car have a rescue access window. FRA 
believes that this new requirement is consistent with current practice.

B. Emergency Communication Systems--PA and Intercom Systems

    While the Passenger Equipment Safety Standards issued in 1999 by 
FRA contain requirements for two-way (i.e., crew-to-passenger and 
passenger-to-crew) emergency communication systems for Tier II 
passenger equipment, FRA did not require that Tier I passenger cars be 
equipped with any emergency communication system. Nevertheless, most 
existing passenger cars are equipped with PA systems, and after 
discussing the benefits of PA systems in light of the challenge and 
expense of retrofitting older, existing passenger equipment with 
limited service life, the Task Force agreed that all passenger cars 
should, at a minimum, have functioning PA systems. A PA system allows 
the train crew to keep their passengers informed in an emergency 
situation and provide instructions to them in a timely manner. In 
particular, the train crew can provide instructions to passengers not 
to take an action that could place them in any greater danger, such as 
instructing them, as appropriate, to remain on the train and not 
endanger themselves by unnecessarily evacuating the train on their own.
    The Task Force also agreed that emergency communication systems in 
all new passenger cars should include intercom systems that would 
enable passengers to quickly communicate in emergency situations with 
the train crew. During the discussions in developing the NPRM 
concerning whether to require intercom systems on Tier I passenger 
equipment, some Task Force members expressed concern that if intercom 
systems were added at each end of a car, were conspicuously marked, and 
had instructions provided for their use, passengers may use them in 
non-emergency situations. Amtrak and various commuter railroads that 
operate cars with intercom systems indicated that they have 
successfully implemented measures to deter misuse, however, such as by 
placing the intercom transmission button under a protective covering 
(which also prevents accidental operation by a passenger leaning 
against it) and by marking it ``FOR EMERGENCY USE ONLY''.
    The emergency communication system requirements in this final rule 
generally reflect current practice for Tier I passenger equipment 
operating with PA and intercom systems and existing requirements for 
Tier II passenger equipment. FRA understands that those Tier I 
passenger cars that currently do not have PA systems are scheduled to 
be retired from service before the requirement to have PA systems on 
existing Tier I passenger equipment becomes effective.

C. Emergency Roof Access Locations

    Emergency roof access locations (i.e., roof hatches or structural 
weak points) can be especially useful in emergency situations where 
passenger cars have rolled onto their sides following certain collision 
and derailment scenarios. In such situations, doors, which are the 
preferred means of egress and access under normal circumstances, may be 
rendered inoperable due to structural damage to the door or the door 
pocket, or become extremely difficult to use because the car is no 
longer upright. Moreover, although emergency

[[Page 6378]]

responders may be able to enter a car that is on its side via a rescue 
access window, the removal of an injured occupant through a side window 
in such circumstances would likewise be difficult or complicated, 
especially depending upon the condition of the occupant.
    FRA's 1999 final rule on Passenger Equipment Safety Standards 
required emergency roof access locations for Tier II passenger 
equipment, but not for Tier I passenger equipment. The Task Force 
examined both these requirements and the APTA PRESS recommended 
practice RP-C&S-001-98, ``Recommended Practice for Passenger Equipment 
Roof Emergency Access,'' in recommending that emergency roof access 
requirements be applied to Tier I passenger equipment. FRA adopted the 
Task Force's recommendation and, in general, is requiring that each new 
passenger car (both Tier I and Tier II) have a minimum of two emergency 
roof access locations. Existing Tier I passenger cars are not subject 
to the requirements, while existing Tier II passenger cars continue to 
be subject to existing requirements. For further discussion and 
explanation of the requirements, including the treatment of Tier II 
power cars, please see the Section-by-Section Analysis of this preamble 
at Section V.

D. Inspection, Testing, and Maintenance

    This final rule amends Sec. Sec.  238.17, 238.303, and 238.305 
(which contain standards for movement of passenger equipment with other 
than power brake defects, for inspection of passenger equipment, and 
for repair of passenger equipment) by adding requirements for the 
inspection, testing, maintenance and repair of emergency communication 
systems, emergency roof access points, and rescue access markings. To 
allow railroads sufficient time to repair the equipment with minimal 
disruption to normal operations, however, flexibility is provided for 
operating equipment in passenger service with certain noncompliant 
conditions. In affording this flexibility, the final rule requires the 
railroad to adhere to specified procedures for the safe operation of 
the equipment.

V. Section-by-Section Analysis

    This section-by-section analysis explains the provisions of the 
final rule and any changes made from the 2006 NPRM. Of course, a number 
of the issues and provisions involving this rule have been discussed 
and addressed in detail in the preceding discussions. Accordingly, the 
preceding discussions should be considered in conjunction with those 
below and will be referenced as appropriate.

Amendments to 49 CFR Part 223, Safety Glazing Standards--Locomotives, 
Passenger Cars and Cabooses

Subpart A--General

Section 223.5 Definitions
    This section, which contains a set of definitions of terms used in 
part 223, has been modified to clarify the definition of one term and 
to remove the definitions of two terms that are no longer used in the 
part because of the removal of Sec.  223.9(d)(2).
    The definition of ``emergency window'' has been revised in this 
section, as well as in Sec.  238.5 of this chapter, to clarify that the 
purpose of an emergency window is egress, and thus an emergency window 
needs to be removable only from the inside of a passenger car. 
Accordingly, FRA has revised the definition of ``emergency window'' to 
mean the segment of a side-facing glazing panel that has been designed 
to permit rapid and easy removal from inside a passenger car in an 
emergency situation. FRA has also removed the definitions ``emergency 
responder'' and ``passenger train service'' in accordance with the 
removal of Sec.  223.9(d)(2), the only section in part 223 that 
referenced these terms. The definition ``emergency responder'' has been 
moved to part 238 of this chapter.

Subpart B--Specific Requirements

Section 223.9 Requirements for New or Rebuilt Equipment
    In the discussion of Sec.  223.5, FRA has noted that the definition 
of ``emergency window'' has been amended to clarify that the purpose of 
the windows is egress, and thus such a window would need to be 
removable only from the inside of a passenger car. Section 223.9(c) 
required ``at least four emergency opening windows.'' As the term 
``emergency opening window'' was not specifically defined--but had been 
understood to mean ``emergency window''--FRA has modified the rule text 
in Sec.  223.9(c) to require ``at least four emergency windows'' and 
restructured the section in order to provide more clarity.
    FRA has removed Sec.  223.9(d) and merged the requirements 
previously contained therein into Sec. Sec.  238.113 and 238.114 of 
part 238. The requirements in Sec.  223.9(d) had been added by FRA's 
May 4, 1998 final rule on Passenger Train Emergency Preparedness. See 
63 FR 24629, 24643. The Passenger Train Emergency Preparedness final 
rule required the marking of both emergency window exits and windows 
intended for rescue access, and also required that instructions be 
provided for their use. However, the requirements applied only to 
``each railroad providing passenger train service,'' a class of train 
service purposefully narrower than the general application section in 
part 223. See Sec.  223.9. Because FRA has addressed marking and 
instruction requirements for such windows in this train service in part 
238, and because the requirements of Sec.  223.9(d) did not apply to 
other equipment covered by part 223, they have been removed from part 
223, along with the corresponding definition of ``emergency responder'' 
and ``passenger train service.'' Further, removal of Sec.  223.9(d) 
avoids creating any confusion due to duplication of the marking and 
instruction requirements in two different parts of the CFR, especially 
since the marking requirements in part 238 that have been adopted by 
FRA vary somewhat from the ones that were contained in Sec.  223.9(d). 
Nevertheless, Sec.  223.8 will continue to alert the reader to 
additional requirements for emergency window exits for ``passenger 
equipment'' in part 238, as defined in that part.
    However, because the ``application'' section of part 223 is broader 
than that of part 238, FRA has been mindful not to alter the 
application of those part 223 requirements unaffected by the May 4, 
1998 amendments. Part 238 does not apply to ``tourist, scenic, 
historic, or excursion operations, whether on or off the general 
railroad system of transportation,'' see Sec.  238.3(c)(3); whereas, 
part 223 does not apply to ``locomotives, passenger cars and cabooses 
that are historical or antiquated equipment'' and are also ``used only 
for excursion, educational, recreational purposes or private 
transportation purposes,'' see Sec.  223.3(b)(3). As a result of this, 
for example, tourist equipment that is covered by part 223 because the 
equipment is not historical or antiquated and is required to be 
equipped with certified glazing in all windows pursuant to Sec.  
223.9(c) or 223.15(c), is still required to have four emergency windows 
(emergency window exits), despite its exclusion from the part 238 
requirements.

Appendix B to Part 223--Schedule of Civil Penalties

    This appendix contains a schedule of civil penalties to be used in 
connection with this part. Because such penalty schedules are 
statements of agency policy, notice and comment are not required prior 
to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA

[[Page 6379]]

invited comment on the penalty schedule, but no comment was received.
    FRA has amended the penalty schedule. As discussed above, FRA has 
merged the requirements of Sec.  223.9(d) into Sec. Sec.  238.113 and 
238.114. Accordingly, FRA has modified the schedule of civil penalties 
in appendix B to part 223 by removing the entries for paragraphs 
(d)(1)(i), (d)(1)(ii), (d)(2)(i), and (d)(2)(ii) of Sec.  223.9 and the 
associated penalties. FRA has also revised footnote 1 to clarify the 
use of penalty codes in the penalty schedule.

Amendments to 49 CFR Part 238, Passenger Equipment Safety Standards

Subpart A--General

Section 238.5 Definitions
    This section, which contains a set of definitions of terms used in 
part 238, has been modified to include definitions of terms used in 
modifications to part 238.
    FRA has added the definition of ``dual-function window'' to mean a 
window that is intended to serve as both an emergency window exit and a 
rescue access window. This term generally refers to a window that has a 
zip-strip, which is a strip in a window gasket that can be pulled from 
end to end to unlock the gasket and thus release the glazing, on both 
faces, so that it can be opened from both the inside of the car and the 
outside. (This definition also covers other methods of opening the same 
window from both the inside of the car and the outside.) The term has 
been added because it is referenced in Sec.  238.114(a)(5) as an 
exception to the requirements on the location of rescue access windows 
set forth in Sec.  238.114. Dual-function windows installed to meet the 
minimum requirements contained in Sec.  238.113 are not required to 
meet the Sec.  238.114 rescue access window location requirements, in 
order to recognize that a railroad that installs four compliant 
emergency window exits that are the dual-function type has also 
installed twice the number of rescue access windows required.
    FRA has revised the definition of ``emergency window'' to clarify 
that the purpose of an emergency window is egress, and thus such a 
window needs to be removable only from the inside of a passenger car. 
Accordingly, FRA has amended the definition to mean the segment of a 
side-facing glazing panel that has been designed to permit rapid and 
easy removal from inside a passenger car in an emergency situation. FRA 
has also revised the definition of this term in Sec.  223.5 for 
consistency and clarity.
    FRA has added the definition of ``intercom'' to mean a device 
through which voice communication can be transmitted and received. A 
transmission unit normally has a button, which has to be pressed to 
begin transmission or notify the crew on the receiving end of the 
intention to communicate using the system. An intercom may be a 
telephone apparatus. FRA has also added the definition of ``intercom 
system'' (or ``intercommunication system'') to mean a two-way, voice 
communication system. This system allows a passenger to communicate 
with a crewmember, typically by pressing a button, or lifting a 
telephone handset, or both.
    FRA has added the definition of ``intermediate level'' to mean a 
level of a multi-level passenger car that is used for passenger seating 
and is normally located between two main levels. An intermediate level 
normally contains two, separate seating areas, one at each end of the 
car, and is normally connected to each main level by stairs. The term 
``intermediate level'' is intended to distinguish a level used for 
passenger seating of a multi-level passenger car from a ``main level'' 
of such a car, as FRA has applied different requirements to the 
different passenger seating levels. Please see the discussion of ``main 
level,'' below.
    Previously, the regulatory text of part 238 did not define the term 
``main level,'' as used in Sec.  238.113. However, in the preamble to 
the April 23, 2002 final rule, FRA explained that the term ``main 
level'' was intended to exclude a level of a car that is ``principally 
used for passage between the door exits and passenger seating areas, or 
between seating areas,'' and noted that such an area is not 
``principally used for seating'' and includes a stairwell landing. See 
67 FR 19973. This distinction raised some concerns with respect to 
intermediate levels because their designation as main levels would 
hinge upon an interpretation of ``principally used'' for passenger 
seating. Some Task Force members believed that these levels were 
principally used for passenger seating because passengers who are 
seated there are spending more time on that level than the passengers 
who simply use that level to reach the upper level (or lower level). 
Others believed that the intermediate level was principally used for 
passage between levels because there was a greater volume of passengers 
passing through that level to reach the upper level (or passing through 
to reach the lower level, or both) than there were passengers seated on 
that level. In light of the concerns raised, FRA has defined 
``intermediate level,'' as discussed above, and has also defined ``main 
level'' as a level of a passenger car that contains a passenger 
compartment whose length is equal to or greater than half the length of 
the car. This definition establishes a more direct relationship between 
the number of occupants on a level of a car and the number of emergency 
window exits required on that level. The longer a level is, the more 
seats and exterior side windows it is able to accommodate. Since 
passenger cars are normally about 85 to 90 feet in length, a main level 
in such a car would be a level that contains a passenger compartment 
whose length is approximately 42.5 feet or more. Accordingly, there 
should be sufficient space for the required number of emergency window 
exits on a main level of a passenger car, whether or not there is a 
bathroom, kitchen, or equipment closet located on the same level.
    FRA has added the definition of ``PA system'' or ``public address 
system'' to mean a one-way, voice communication system. Such a system 
is used by train crew members to make announcements to passengers in 
both normal and emergency situations. Crew members may use the PA 
system to make routine station announcements as well as to communicate 
information regarding unusual occurrences, such as unexpected delays 
and emergencies. If a person requires immediate medical attention, the 
crew may also use the PA system to request assistance from someone 
onboard with medical training. Some PA systems have speakers located on 
the exterior of cars that are used to make announcements to persons in 
the vicinity of the train (e.g., passengers on a station platform).
    FRA has added the definition of ``passenger compartment'' to mean 
an area of a passenger car that consists of a seating area and any 
vestibule that is connected to the seating area by an open passageway. 
If a door separates the seating area from the vestibule, the vestibule 
is not part of the passenger compartment. See Figure 1c to subpart B. 
This definition was necessary to solidify the concept that passengers 
should not have to go through an interior door, which could get jammed, 
or to another level in order to reach an emergency window exit, and 
likewise, emergency responders should be able to directly access 
passengers in need of aid in each such compartment.
    Consistent with the amendments to part 223, discussed above, FRA 
has defined ``rescue access window'' as a side-facing exterior window 
intended for use by emergency responders to gain

[[Page 6380]]

access to passengers in an emergency situation. In some passenger cars, 
all windows may be capable of serving as both emergency window exits 
and rescue access windows. However, a railroad may choose not to 
designate one or more of these windows for rescue access for various 
reasons, including the presence of a third-rail shoe that could pose an 
electrocution hazard, or a high seatback next to the window that may 
pose a potential hindrance to window removal for windows that are 
designed to open by being pushed into the car.
    Some rescue access windows are designed with a zip-strip to release 
the window panel from its frame. In some cars, side-facing glazing 
systems are designed so that there is a zip-strip on only one side of 
the window panel. It is common for railroads to install such systems 
with a zip-strip on the exterior of the car for rescue access use, and 
also have one in the interior of the car for emergency egress use. 
However, to the extent that there may be only one zip-strip for a 
single glazing system, the railroad must decide whether to place the 
zip-strip on the exterior of the car for use in rescue access, or in 
the interior of the car for use in emergency egress.
    Although use of zip-strips in rescue access windows is common, FRA 
makes clear that they are not required. The adopted definition is a 
performance standard, and a rescue access window may be opened by other 
means, such as by shattering the window (if glass) or by popping the 
window out by applying force at one corner.
    Throughout the discussion of rescue access windows, Task Force 
members repeatedly emphasized, as the definition reflects, that these 
windows are intended for use by emergency responders to gain access to 
passengers in an emergency situation. In the process of reviewing the 
definitions in parts 223, 238, and 239 in composing the NPRM and this 
final rule, FRA noted that the term ``emergency responder'' was defined 
in parts 223 and 239, but not in part 238. As the adopted part 238 
definition of ``rescue access window'' includes the term ``emergency 
responder,'' FRA believed it was appropriate to add the definition of 
``emergency responder'' to part 238. The term has been defined to mean 
a member of a police or fire department, or other organization involved 
with public safety charged with providing or coordinating emergency 
services, who responds to a passenger train emergency.
    FRA has added the definition of ``retroreflective material'' to 
mean a material that is capable of reflecting light rays back to the 
light source and that conforms to the specifications for Type I 
Sheeting, as specified in ASTM International's (ASTM) Standard D 4956-
07, ``Standard Specification for Retroreflective Sheeting for Traffic 
Control.'' ASTM International defines Type I Sheeting as ``medium-
intensity retroreflective sheeting referred to as `engineering grade' 
and typically enclosed lens glass-bead sheeting,'' and FRA has 
incorporated the ASTM definition by reference. This newly added 
definition is consistent with the definition and requirements for 
retroreflective material markings for doors, windows, and roof 
locations intended for rescue access contained in APTA Standard SS-PS-
002-98, Rev. 3, ``Standard for Emergency Signage for Egress/Access of 
Passenger Rail Equipment.'' (As discussed further in the Section-by-
Section Analysis, Revision 3 of this Standard was authorized by APTA on 
October 7, 2007.) FRA notes that this APTA standard also requires that 
the retroreflective material be tested according to ASTM's Standard E 
810-03, ``Standard Test Method for Coefficient of Retroreflective 
Sheeting Utilizing the Coplanar Geometry.''
    FRA has added the definition of ``seating area'' to mean an area of 
a passenger car that normally contains passenger seating. An area with 
no actual seats but with anchors for securing wheelchairs is considered 
a seating area.
    FRA notes that the term ``vestibule'' is defined in part 238 to 
mean an area of a passenger car that normally does not contain seating 
and is used in passing from the seating area to the side exit doors. 
Although FRA has not revised the definition of ``vestibule,'' FRA makes 
clear that for purposes of part 238, a vestibule may be located 
anywhere along a car. The location of a vestibule is not restricted to 
the far ends of a car but may be elsewhere, such as in the middle of 
the car. As a result, what some in the passenger rail industry commonly 
refer to as an entranceway, by virtue of where it is located in a car, 
it is considered a vestibule for purposes of this part.
Section 238.17 Movement of Passenger Equipment With Other Than Power 
Brake Defects
    This section contains the requirements related to the movement of 
passenger equipment with a condition not in compliance with part 238, 
excluding a power brake defect, without civil penalty liability under 
this part. FRA has modified paragraphs (b) and (c) of this section to 
include a reference to the specific provisions added to the exterior 
calendar day mechanical inspection in Sec.  238.303(e)(18) regarding 
rescue-access-related markings, signage, and instructions. Section 
238.303(e)(18) requires that all rescue-access-related exterior 
markings, signage, and instructions required by Sec.  238.114 (rescue 
access windows) and Sec.  239.107(a)(2) (door exits intended for 
emergency access) be in place and, as applicable, conspicuous, and/or 
legible, and that certain conditions be met for continued use of the 
cars with defective markings, signage, or instructions. As these 
provisions contain specific requirements related to the continued use 
in passenger service of passenger cars found with defective rescue 
access signs, markings, or instructions, recognition of these specific 
limitations is included in both paragraphs (b) and (c) of this section. 
The requirements in Sec.  238.303(e)(18) and the conditions for 
continued use of passenger equipment with non-complying conditions are 
discussed in detail, below.
    In the NPRM, FRA noted that it was considering moving the emergency 
exit marking requirements contained in Sec.  239.107(a) into part 238, 
and FRA invited comment on whether FRA should do so in the final rule. 
FRA explained that since Sec.  239.107(a) contains requirements for 
door exit marking, signage, and operating instructions, the 
requirements of that section may more logically be situated in the very 
sections containing requirements for door exits in part 238, namely, 
Sec. Sec.  238.235 and 238.439. However, no comment was received on 
this matter, and the Task Force advised that it is not necessary to 
move these requirements into part 238 at this time. The Task Force 
noted that it would be advisable to consider incorporating by reference 
the APTA standard containing more specific requirements for emergency 
exit markings in a future rulemaking, instead of making non-substantive 
changes concerning where these requirements are currently stated in the 
CFR. FRA agreed with the Task Force's recommendation, and has left the 
rule unchanged in this regard at this time.

Subpart B--Safety Planning and General Requirements

Section 238.113 Emergency Window Exits
    Prior to this final rule, this section contained requirements for 
emergency window exits in single-level passenger cars and in main 
levels of multi-level passenger cars only. Again, emergency window 
exits are intended to

[[Page 6381]]

supplement door exits, which are normally the preferred means of egress 
in an emergency situation. Emergency windows provide an alternative 
means of emergency egress should doors be rendered inoperable or 
inaccessible. They also provide an additional means of egress in life-
threatening situations requiring very rapid exit, such as a fire on 
board or submergence of the car in a body of water.
    To ensure that emergency window exit requirements apply to every 
level with passenger seating, FRA has revised this section expressly to 
include emergency window exit requirements for any level with passenger 
seating in a multi-level passenger car. FRA has also revised this 
section to require that emergency window exit operating instructions 
specifically address the presence of interior fixtures that may hinder 
the removal of the window panel, to facilitate its rapid and easy 
removal.
    Paragraph (a). Paragraph (a), which applies to both new and 
existing passenger cars, has been modified to specify requirements for 
the number and location of emergency window exits on any level with 
passenger seating in a passenger car. The requirements for single-level 
passenger cars in paragraph (a)(1), and for main levels of multi-level 
passenger cars in paragraph (a)(2), have largely remained unchanged 
from the May 12, 1999, final rule in which they were adopted (64 FR 
25540, 25673). Under the 1999 final rule, single-level passenger cars 
were required to have a minimum of four emergency window exits, located 
``either in a staggered configuration where practical or with one 
located in each end of each side of each level.'' FRA has slightly 
modified this language by replacing the word ``end'' with ``end 
(half)'' to clarify that the term ``end'' does not refer to the extreme 
forward and rear ends of a car, but merely the front and rear halves of 
the car. See Figure 1 to subpart B. Additionally, the text has been 
reorganized to emphasize that a window is required in each end (half) 
of each side of the car and that, if practical, the windows are also to 
be in a staggered configuration. This clarification removes any 
ambiguity in the former rule text that wrongly suggested that one could 
choose to simply stagger the location of the windows without regard to 
having one window in each side of each end.
    FRA notes that Caltrans submitted a comment on the requirement that 
the emergency window exits be in a staggered configuration, where 
practical. In its comments, Caltrans stated that its California cars, 
which are bi-level, have emergency window exits that are not in a 
staggered configuration, but rather ``located symmetrically on each 
side of the vehicle''--i.e., on both sides directly across from each 
other. Caltrans also stated that the cars have eight emergency window 
exits in the upper level, twice as many emergency window exits than it 
believed were required under the rule. Nevertheless, Caltrans expressed 
concern that the emergency window exit configuration was not compliant 
with the requirement for staggering their location where practical, and 
requested that the rule make clear that for cars where the number of 
emergency window exits exceeds the minimum required for each side and 
each half of the car, the staggering of the emergency window exit 
locations is not required.
    Caltrans also stated in its comments that its Surfliner cars, which 
are also bi-level, have 23 emergency window exits on the upper level of 
each and at least four on the lower level of each car. In effect, every 
window frame in such cars contains an emergency window exit. As a 
result, Caltrans expressed concern that it would possibly have to 
eliminate emergency window exits in order to located them in a 
staggered configuration.
    FRA referred these comments to the Task Force for discussion and 
its recommendation. FRA expressed its views on Caltrans' comments and 
the Task Force agreed that Caltrans' cars were in compliance with the 
emergency window exit location requirements and that no change in the 
rule text is necessary. The Task Force also agreed with FRA's 
recommendation that, instead of modifying the rule, the preamble to 
this final rule clarify the intent and application of the emergency 
window exit location requirements.
    FRA emphasizes that a railroad is not required to stagger the 
location of emergency window exits when it is not practical to do so. 
Further, FRA makes clear that the requirement to stagger their location 
is principally a concern in a situation where only the minimum number 
of emergency window exits is present so as to maximize the rate of 
egress. That is, train occupants would not otherwise have to crowd the 
same two areas to escape out of a window where the minimum number of 
emergency window exits are paired across from one another, i.e., paired 
symmetrically with respect to the longitudinal centerline of the car. 
Yet, where more than the minimum number of required emergency window 
exits are present, train occupants have more window exits to escape 
through, and there is less concern that any one location would be 
crowded. Having examined Caltrans' California and Surfliner cars, and 
considered the number of emergency window exits present in each car, 
FRA believes that the cars are in compliance with the location 
requirements for emergency window exits.
    FRA does not believe it necessary to modify the final rule, 
however, especially since factors other than the number of emergency 
window exits need to be taken into account in deciding whether it is 
practical to stagger their location. Instead, FRA is providing the 
following examples of instances where it may not be practical to 
stagger the location of emergency window exits. For example, if a car 
has a symmetrical seating arrangement that includes face-to-face 
seating with tables or workstations in between, a railroad may decide 
to configure emergency window exits symmetrically with respect to the 
longitudinal centerline of the car. Face-to-face seating arrangements 
usually provide sufficient clear space for locating emergency window 
exits such that they are free of obstruction or potential hindrance by 
high seatbacks and thus may be more rapid and easy to operate in an 
emergency situation. Railroads may also decide not to stagger emergency 
window exits to avoid creating potentially hazardous situations such as 
would exist if an emergency window exit were located immediately above 
a third-rail shoe that could pose an electrocution hazard. In other 
instances, the presence of a rescue access window that does not also 
serve as an emergency window exit, the size of a window, or a 
combination of these, could make staggering the location of emergency 
window exits not practical.
    To illustrate the requirements of paragraph (a)(2), FRA has added 
Figure 1, as referenced above. FRA had invited comment in the NPRM on 
whether this and other figures proposed in the NPRM for inclusion in 
part 238 would be helpful in understanding the requirements of this 
part, and, if so, whether any additional figures should be included. 
FRA also noted that the proposed figures, which were not drawn to 
scale, represented possible ways of complying with the proposed 
requirements and should not be construed as depicting the only way to 
comply. While no written comments were received on this issue, both the 
Task Force and the Working Group recommended that FRA retain these 
figures in the final rule. FRA has decided to include the figures in 
the final rule as proposed.

[[Page 6382]]

    Paragraph (a)(3) contains the new requirements for emergency window 
exits on non-main levels with seating areas of multi-level passenger 
cars, including intermediate (or mezzanine) seating levels. The general 
intent of the paragraph is to have at least one emergency window exit 
that is accessible to passengers in each side of a passenger seating 
area without requiring the passengers to move to another level of the 
car or pass through a door. This will help ensure that, if a car rolls 
onto its side or if there is a hazard on one side of the train, an 
emergency window exit on the opposite side will be available to 
passengers and crew members for emergency egress. Nevertheless, as 
further discussed below, a constraint for intermediate levels of both 
new and existing multi-level passenger car designs is limited space due 
to the presence of bathrooms, equipment closets, and side door exits. 
Accordingly, the requirements for the number and location of emergency 
window exits in paragraph (a)(3) provide flexibility for, and are 
consistent with, existing passenger car designs.
    FRA notes that in light of adding the new definition of ``main 
level,'' some passenger cars will no longer have main levels. Such cars 
will thus be subject to the requirements for other levels with seating 
areas contained in paragraph (a)(3). For instance, none of the levels 
in a gallery-style car (a multi-level passenger car with a full-height, 
enclosed vestibule in the center) meet this definition of a ``main 
level.'' Yet, each of the four, separate seating areas in such a car is 
subject to the emergency window exit number and location requirements 
adopted in paragraph (a)(3). Further, the requirements of paragraph 
(a)(3) are consistent with the number and location of emergency windows 
on existing gallery-style passenger cars, will not impact current 
operations, and will not diminish the effect of FRA's existing 
requirements.
    Paragraph (a)(3)(i) of the final rule, which applies to both new 
and existing passenger cars on or after August 1, 2009, generally 
requires that non-main levels that are used for passenger seating have 
at least two emergency window exits that are accessible to passengers 
in each seating area without requiring the passengers to move to 
another level of the car or pass through an interior door. This 
provision is intended to address situations in which stairways could 
become structurally deformed and interior doors could be rendered 
inoperable as a result of a collision, derailment, or other accident, 
obstructing access to an emergency window exit or a side door exit on 
another level or in a vestibule area that is separated from the seating 
area by an interior door. Similarly, the provision is intended to 
address situations in which a passenger car rolls onto its side as a 
result of a collision, derailment, or other accident, by providing that 
at least one of these emergency window exits be required in each side 
of the passenger car, except as provided below. See Figures 2, 2a, and 
2b to subpart B.
    This provision also permits an emergency window exit to be located 
within an exterior side door in the passenger compartment of a non-main 
level, if it is not ``practical'' to place the window exit in the side 
of the seating area. It should be noted that, by definition, a side 
door is not considered to be located within the ``passenger 
compartment'' if an interior door separates the seating area from the 
area where the side door is located. The provision requires that there 
be an open passageway between the seating area and the vestibule, in 
such a circumstance. Use of the word ``practical'' allows railroads and 
car builders some discretion regarding the location of an emergency 
window exit in a non-main level of a car. For instance, this provision 
could be used to address situations where a window in a door in the 
same passenger compartment may be better suited for emergency egress 
than one in the seating area. In some cars, removal of the windows in 
the seating area may be hindered by seatbacks or other fixtures, while 
windows in the exterior side doors could potentially be more easily and 
rapidly removed. Since there would still be two accessible side windows 
in a passenger compartment, one on each side, there is no limitation on 
the number of seats that may be in the compartment. Moreover, the door 
itself is a means of emergency egress that, if operable, would allow 
more rapid and safe egress than exiting through a window. Nevertheless, 
because having two emergency exits at the very same location could 
result in both exits being rendered inoperable (as by car crush) or 
inaccessible (as by fire), FRA decided not to allow the unrestricted 
placement of emergency window exits in side doors. FRA makes clear 
that, all things being equal, emergency window exits should be placed 
in a location separate from side door exits. See Figure 2b to subpart 
B; compare to Figure 2a to subpart B.
    In determining the appropriate applicability date for the 
requirement to have emergency window exits in non-main levels of multi-
level passenger cars, it was noted that, while some passenger cars 
already have windows in each side of an intermediate-level seating 
area, these windows are not necessarily emergency window exits. 
Consequently, some time would be needed to change out the existing 
windows with emergency window exits or otherwise retrofit the windows 
with pull-handles and make any other modification necessary so that the 
windows would meet the requirements for emergency window exits. The 
final rule takes this concern into account, and otherwise affords 
railroads sufficient time to come into compliance, regardless of the 
state of the existing windows, by not making the requirement applicable 
until 18 months after publication of the final rule.
    Paragraph (a)(3)(ii) contains an exception for non-main levels of 
both new and existing multi-level passenger cars. It requires only one 
emergency window exit in a seating area in a passenger compartment with 
no more than four seats, if it would not be practical to place an 
emergency window exit in a side of the passenger compartment due to the 
need to provide accessible accommodations under the ADA and a suitable, 
alternate arrangement for emergency egress is provided. This exception 
would address concerns involving multi-level passenger cars serving 
passenger stations with high-platforms, such as on the Northeast 
Corridor. Because all passengers enter these cars on the intermediate 
level, and disabled passengers are not able to access accommodations on 
another level of the cars, any accommodations provided to passengers 
are located on the intermediate level. The final rule recognizes this 
fact, and the exception applies to both existing and new passenger 
cars. However, the exception is limited to situations that arise from 
the need to provide accessible accommodations under the ADA, as well as 
limited to those seating areas in passenger compartments where there 
are no more than four seats and where a suitable alternate arrangement 
for egress is provided. Use of the word ``practical'' in paragraph 
(a)(3)(ii) is intended to extend flexibility to car builders to locate 
an electrical locker or other equipment closet in a side of an 
intermediate level at one end of a passenger car without being required 
to place an emergency window exit in the same side at that location, 
provided the placement of the locker or closet is related to placement 
of ADA-accessible accommodations in the intermediate level at the other 
end of the car. The limitation concerning the maximum

[[Page 6383]]

number of seats in the passenger compartment is consistent with the 
maximum number of seats in existing designs for cars that are being 
manufactured with emergency window exits in only one side of each 
passenger compartment in an intermediate level.
    In requiring that a suitable, alternate arrangement for emergency 
egress be provided, such an arrangement must not require the use of a 
tool or implement to operate, and must be comparable to an emergency 
window exit in terms of being rapid and easy to use. As part of the 
Task Force's discussion during the development of the NPRM, Kawasaki 
presented a car design with a seating area separated from a vestibule 
by an interior door and an alternate arrangement for emergency egress 
to address having a distinct emergency window exit on only one side of 
the seating area. (A copy of this design has been placed in the docket 
for this rulemaking.) The interior door is designed with a removable 
window panel (with pull-handles on both sides) to allow passengers 
access to the vestibule in the event the door itself were inoperable. 
Further, once a passenger accesses the vestibule, there are two 
exterior side doors in the vestibule, one on each side, that each 
contain an emergency window exit. As a result, in this design, a means 
of exiting the car from the side that lacks the distinct emergency 
window exit is available to passengers.
    A combination of several factors makes this type of arrangement 
depicted by Kawasaki a suitable, alternate arrangement for emergency 
egress. First, the alternate emergency exit location provides a measure 
of redundancy, i.e., a safety factor, in that there are an exterior 
side door and an emergency window exit in the same door. The door, if 
operable, allows passengers and crewmembers to exit more expeditiously 
than through a window. In the event that this door is rendered 
inoperable, a window meeting the minimum dimension requirements in 
paragraph (c) is available. To the extent that both the door and its 
window are inaccessible or inoperable, and the side door exit on the 
opposite side of the vestibule is also inaccessible or inoperable, the 
exterior side door exits in the adjacent car's vestibule are then next 
in sequence for use, since this car design has no end-frame doors 
separating adjoining cars. In fact, should the end of the car become 
uncoupled from the adjacent car, the vestibule would be open at the 
end, allowing passengers direct access to the outside. Regarding the 
removable panel in the interior door leading to the vestibule, it 
should be noted that it is designed to be polycarbonate, rather than 
glass, making it significantly lighter, and thus easier to remove than 
a glass panel. Further, the opening created by removing the panel is 
large enough for a person to pass through it relatively quickly.
    Paragraph (a)(3)(iii) requires passenger cars that were both 
ordered prior to April 1, 2009 and placed in service prior to April 1, 
2011 to have a minimum of only one emergency window exit in a non-main 
level seating area in a passenger compartment with no more than eight 
seats, if it is not ``practicable'' to place a window exit in a side of 
the passenger compartment (due to the presence of a structure such as a 
bathroom, electrical locker, or kitchen). This exception is broader 
than the one in paragraph (a)(3)(ii), as it applies to non-main levels 
with more seats and is not dependent on providing accessible 
accommodations under the ADA. However, it does not apply to new cars. 
New car designs must take into consideration the need to provide an 
emergency window exit in each side of a passenger compartment.
    Use of the word ``practicable'' limits railroad discretion so that 
a car subject to this paragraph is required to have an emergency window 
exit in a side of a seating area, if a window suitable for such use is 
already located there. Nevertheless, FRA notes that a railroad is under 
no obligation to install a window in a side of a passenger compartment 
for purposes of providing an emergency window exit under this 
paragraph, if an emergency window exit is located in either (i) the 
other side of the same compartment or (ii) an exterior side door 
located in the same side of the compartment. Cutting through a side 
panel in an existing passenger car to install an emergency window exit 
is not required.
    Requirements for cars with sleeping compartments or similar private 
compartments have been clarified and moved from former paragraph (a)(2) 
to new paragraph (a)(4). Each level of a passenger car with a sleeping 
compartment or a similar private compartment intended to be occupied by 
a passenger or train crewmember continues to be required to have at 
least one emergency window exit in each such compartment. A private 
seating area (such as found on certain European trains or on some 
antiquated American trains) is a private compartment. FRA notes that, 
in a passenger car with only sleeping compartments, if all the sleeping 
compartment doors are locked, passengers in a compartment without an 
egress window would not be able to get into another compartment to use 
an emergency window exit. The rule clarifies that, for purposes of this 
paragraph, a kitchen, locomotive cab, or bathroom--whether public or 
private--is not considered a ``private compartment,'' however. In 
particular, a bathroom is not considered a ``private compartment'' for 
purposes of this requirement because a bathroom should normally be 
located either in a sleeping compartment or in a passenger compartment, 
both of which are subject to emergency window exit requirements. As a 
result, a passenger should have access to an emergency window exit upon 
exiting a bathroom.
    Paragraph (b). As part of the revision and reorganization of this 
section, paragraph (b) contains the same requirements for ease of 
operability of emergency window exits that were stated in former 
paragraph (a)(3) of the regulation. The only modification is that the 
applicability date of November 8, 1999, which was stated in the 
introductory text of paragraph (a), has been added directly to this 
paragraph (b). FRA notes that the Task Force considered alternatives to 
the existing standard for the ease of operating emergency window 
exits--one that would be capable of more objective quantification. One 
such alternative that was considered involved specifying a maximum 
pull-force for removing window gaskets and glazing, but the Task Force 
found it difficult to specify a uniform standard that would account for 
varying operating environments and weather conditions. Further 
discussion relating to the requirements of paragraph (b) is found below 
in the paragraph discussing the requirements for marking emergency 
window exits.
    Paragraph (c). Consistent with the reorganization and revision of 
this section, FRA has moved existing requirements for the dimensions of 
emergency window exits from former paragraph (b) to paragraph (c). The 
applicability date of the dimension requirements is unchanged from 
former paragraph (b); thus, the requirements continue to apply to each 
passenger car ordered on or after September 8, 2000, or first placed in 
service on or after September 9, 2002. FRA has slightly modified the 
requirements to allow an emergency window exit with an unobstructed 
opening of at least 24 inches horizontally by 26 inches vertically to 
be located within an exterior side door, in accordance with the 
requirements of paragraph (a)(3)(i) of this section, as discussed 
above. FRA makes clear that, for purposes of determining compliance 
with the emergency window exit dimension requirements, the dimensions 
of the

[[Page 6384]]

unobstructed opening are measured after the emergency window exit has 
been opened. For example, the transparent area of the window for 
viewing use by passengers or train crew members may be several inches 
smaller than the opening created once the window is removed, and that 
would be acceptable, as long as the opening satisfies the dimension 
requirements.
    The 1999 Passenger Equipment Safety Standards final rule required 
that an emergency window exit in a passenger car ordered on or after 
September 8, 2000, or placed in service for the first time on or after 
September 9, 2002, have an unobstructed opening with minimum dimensions 
of 26 inches horizontally by 24 inches vertically. Prior to the 
promulgation of this requirement, FRA had not specified the dimensions 
of emergency window exits. As a result, in the August 2006 NPRM, FRA 
stated that a window exit in such a passenger car that does not create 
an unobstructed opening meeting these minimum dimension requirements 
may not be considered an ``emergency window exit'' for purposes of this 
section and may not be marked as an ``emergency window exit.'' See 71 
FR 50288. Yet, FRA noted that it did not believe it necessary to modify 
or remove such a window exit, provided the passenger car containing the 
window exit is otherwise in compliance with all applicable emergency 
window exit requirements. Id.
    For example, FRA is aware of window exits that are not capable of 
creating openings of the required dimensions because of the presence of 
seatbacks that do not manually recline and may, therefore, obstruct 
passage through the window of a stretcher or an emergency responder 
with a self-contained breathing apparatus but not necessarily a 
passenger or crewmember. Certain emergency window exit designations 
appear to have been made independently of interior seat configurations, 
and this has resulted in the expense of relocating emergency window 
exit locations post-delivery. However, FRA does not intend to 
discourage a railroad from retaining these additional window exits in 
its passenger cars, even if they would not create openings of the 
required dimensions, out of the agency's concern for circumstances such 
as those present in the derailment of an Amtrak train near Mobile, AL, 
in September 1993. There, after a barge had struck and displaced a 
railroad bridge, an Amtrak train traversing the bridge derailed and 
fell into a bayou, drowning 42 passengers and two crewmembers, and 
killing three other crewmembers located in the lead locomotive. In what 
has been the Nation's deadliest passenger train accident in over 50 
years, train occupants needed to evacuate as quickly as possible from 
cars filling with water, potentially making the number of window exits 
more critical than their precise dimensions. (FRA is not suggesting 
that the cars lacked a sufficient number of exits; nor is FRA 
suggesting that their exits' dimensions were too small. FRA is citing 
this incident to show that circumstances can exist where there may be 
extreme urgency to exit a passenger car.)
    FRA invited comment on the issue of window exits in passenger cars 
ordered on or after September 8, 2000, or placed in service for the 
first time on or after September 9, 2002, that have window exits not 
meeting the minimum dimension requirements. FRA specifically invited 
comment on whether these window exits should be removed--i.e., replaced 
with conventional windows--and, to the extent that they should not be 
removed, whether any instructional marking on these windows should be 
permitted. Since these windows could be used for emergency egress if 
they are not removed, FRA also invited comment as to whether they 
should have to be tested periodically to ensure that they operate 
properly. FRA noted that railroads are currently required to test 
emergency window exits no less frequently than every 180 days using 
commonly accepted sampling techniques to determine how many windows to 
test. See Sec.  239.107 of this chapter. In general, these sampling 
techniques require that the greater the percentage of window exits that 
a railroad finds defective in a sample, the greater the percentage of 
windows that the railroad has to test in total (i.e., the number of 
windows that need to be tested is adjusted upward when defects are 
found). Specifically, sampling should be conducted to meet a 95-percent 
confidence level that no defective units remain and be in accord with 
either Military Standard MIL-STD-105(E), ``Sampling for Attributes,'' 
or American National Standards Institute (ANSI)/ASQC Z1.4-1993, 
``Sampling Procedures for Inspections by Attributes.'' (FRA notes that 
MIL-STD-105(E) was formally cancelled by the U.S. Department of Defense 
on February 27, 1995. The cancellation notice stated that future 
acquisitions should refer to acceptable non-Government standard 
sampling procedures and tables for inspection by attributes, such as 
ANSI/ASQZ Z1.4-1993.)
    FRA also noted that, although testing these window exits would 
appear desirable, a testing requirement may discourage railroads from 
retaining these window exits at all.
    The Task Force considered these issues and, for passenger cars 
ordered on or after September 8, 2000, or placed in service for the 
first time on or after September 9, 2002, recommended allowing 
railroads to designate as ``additional'' emergency window exits those 
windows that provide an unobstructed opening that is smaller than 24 
inches vertically by 26 inches horizontally but that would still be 
suitable for use in an emergency. The Task Force further recommended 
that such ``additional'' emergency window exits be marked for emergency 
exit, have instructions provided for their use, and be tested in the 
same manner as the emergency window exits designated for purposes of 
complying with the minimum number requirements of this section 238.113.
    FRA agrees with the recommendation of the Task Force and has 
revised paragraph (c) accordingly. There are now two exceptions to the 
requirements concerning dimensions, and they are contained in newly 
added paragraphs (c)(1) and (c)(2). The first exception, which was 
originally proposed in the NPRM as part of the text of paragraph (c), 
is that an emergency window exit located within an exterior side door 
in accordance with paragraph (a)(3)(i) of this section, may have an 
unobstructed opening with minimum dimensions of 24 inches horizontally 
by 26 inches vertically, rather than 26 inches by 24 inches. The second 
exception addresses the dimensions of ``additional'' emergency window 
exits. It provides that any additional emergency window exit, beyond 
the minimum number required by paragraph (a) of this section, that has 
been designated for emergency use by the railroad need not comply with 
the minimum dimension requirements in paragraph (c) of this section, 
but must otherwise comply with all applicable emergency window exit 
requirements. Under this new section, there is no obligation for a 
railroad to designate any such ``additional'' emergency window exits 
not meeting the minimum dimension requirements, in the same way that 
there is no obligation for a railroad to have more than the minimum 
number of emergency window exits that comply with the dimension 
requirements. Nevertheless, when a railroad does seek to have in its 
passenger cars more than the minimum number of emergency window exits, 
FRA encourages the railroad to follow the dimension requirements for 
those additional

[[Page 6385]]

window exits as well, all things being equal.
    In those circumstances where any additional emergency window exit 
cannot meet the dimension requirements, namely in the case of an 
existing passenger car where the seating configuration causes a 
seatback to obstruct part of the opening, but the window exit is still 
considered suitable for use in an emergency to exit the car, the 
railroad may designate it as an ``additional'' emergency window exit. 
FRA notes that while a railroad will most often designate an additional 
emergency window exit by marking it for use, designation could also 
occur by design (i.e., if a pull handle is present) or by written or 
verbal notice to passengers as part of the railroad's passenger safety 
awareness program.
    FRA chose not to adopt a similar exception to the dimension 
requirements for rescue access windows because the additional rescue 
access windows are not likely to be as useful in an emergency situation 
requiring immediate evacuation (e.g., to escape water, smoke or fire) 
as additional emergency window exits. This also helps to ensure that 
there will be no confusion as to whether or not the rescue access 
window is of the appropriate size to accommodate an emergency responder 
equipped with breathing equipment and a standard-sized stretcher. To 
the extent that emergency responders use emergency window exits to 
evacuate passengers (e.g., if a responder chose to enter through an 
already-opened emergency window exit rather than going through the 
process of pulling open a rescue access window), FRA expects that the 
training made available to emergency responders on affected railroads 
would include discussion on the fact that some of these window openings 
may have smaller dimensions than those required for the minimum number 
of emergency window exits specified in paragraph (a). At the same time, 
the Task Force also recognized that emergency responders are well-
trained and should be able to determine whether a window opening is 
large enough to accommodate a stretcher.
    Paragraph (d). As the final part of the reorganization and revision 
of this section, paragraph (d) has been added and contains the 
requirements for marking emergency window exits, as well as providing 
operating instructions for their use. Marking and operating instruction 
requirements for emergency window exits were formerly contained in 
Sec.  223.9(d)(1) of this chapter, and were referenced in paragraph (c) 
of this section. The requirements in Sec.  223.9(d)(1) have been to 
moved to paragraph (d) of this section and modified. Paragraph (d) 
requires that each emergency window exit be conspicuously marked with 
luminescent material on the inside of each car, and that legible and 
understandable operating instructions, including instructions for 
removing the window panel, be posted at or near each such window exit.
    Notably, paragraph (d) specifically requires that emergency window 
exit operating instructions address potential hindrances to removal of 
the window panel due to the presence of fixtures in the car. As 
discussed above, FRA became aware that the phrase ``rapid and easy'' in 
the requirement for emergency window exit ease of operability was not 
being interpreted uniformly. Central to the issue was the actual 
removal of the window panel in light of the weight of the window panel 
and the presence of interior fixtures near the window. It is not 
uncommon for a seatback to be located adjacent to an emergency window 
exit and for a luggage rack to be located above the exit. Even if the 
seatback does not affect compliance with the dimensions required for an 
unobstructed opening (especially in the case of a large window panel), 
it could, together with the presence of the luggage rack, hinder 
removal of the window. This combination of fixtures could create a 
situation where the most effective and efficient method for operating 
an emergency window exit would not be immediately apparent to a 
passenger, especially if the window were large and heavy. As a result, 
to promote the rapid and easy removal of the window panel, the Task 
Force recommended requiring that emergency window exit operating 
instructions specifically take into account such potential hindrances. 
Accordingly, if removal of a window (whether it is one of the minimum 
number required or an ``additional'' emergency window exit) may be 
hindered by the presence of a seatback, headrest, luggage rack, or 
other fixture, the instructions must state the method for allowing 
rapid and easy removal of the window panel, taking into account the 
fixture(s). This particular portion of the instructions may be in 
written or pictorial format to provide railroads the flexibility to 
convey the appropriate information to passengers, especially since a 
picture (pictogram) or pictures (pictograms) may potentially convey the 
information more readily than written instructions.
    FRA also notes that former Sec.  223.9(d)(1) required that the 
operating instructions for emergency window exits be ``clear and 
legible.'' FRA has modified this requirement by replacing the word 
``clear'' with the word ``understandable,'' so that railroads are 
required to post ``legible and understandable'' operating instructions. 
Use of the word ``clear'' in former Sec.  223.9(d) had created some 
confusion since it can have more than one meaning, and FRA believes 
this amendment eliminates any further confusion.
    Finally, FRA notes that existing requirements in parts 223 and 239 
for the marking of emergency exits, as well as existing requirements in 
part 238 for the marking of emergency communications transmission 
points, specify the use of luminescent materials. (Door exits intended 
for emergency egress may also be lighted, in accordance with Sec.  
239.107(a)(1).) Part 238 defines ``luminescent material'' as material 
that absorbs light energy when ambient levels of light are high and 
emits this stored energy when ambient levels of light are low, making 
the material appear to glow in the dark. See Sec.  238.5. Paragraph (d) 
continues to require that luminescent material be used to mark 
emergency window exits. However, as further discussed below, the Task 
Force has considered incorporating an APTA standard that would 
establish specific criteria for this material, including how bright the 
material must be and how long the material must stay luminescent.
    FRA's requirements to mark emergency window exits and other 
emergency exits originated with FRA Emergency Order No. 20. See 61 FR 
6876, (Feb. 22, 1996); and 61 FR 8703 (Mar. 5, 1996). Among its 
provisions, the emergency order required that ``no later than April 20, 
1996, commuter and intercity passenger railroads ensure that each 
emergency exit location is marked inside the car for passenger and crew 
information.'' In an effort to respond to this requirement as 
effectively as possible within the short timeframe required, affected 
railroads began to install photo-luminescent emergency exit markings 
that were available at the time. Many railroads installed signs made of 
zinc-sulfide, which were capable of providing luminance only for a 
period of less than 10 minutes in many cases. Subsequently, photo-
luminescent sign technology evolved, and other materials began to be 
used, such as strontium-aluminate, which is capable of providing high 
levels of luminance for much longer periods. Prices for such signage 
also decreased, making the cost of such ``high-performance, photo-
luminescent'' (HPPL) signs comparable to that of the

[[Page 6386]]

signs installed initially. Thus, in 1999, APTA issued APTA SS-PS-002-
98, ``Standard for Emergency Signage for Egress/Access of Passenger 
Rail Equipment,'' requiring the use of HPPL materials for all newly-
installed, passive emergency-exit signs and for the retrofit of 
existing cars at their remanufacture. According to Revision 2 of this 
APTA standard, issued in 2003, following a charge of five foot-candles 
for one hour, installed photo-luminescent markings had to emit not less 
than a minimum of 7.5 milli-candela per square meter (7.5 mcd/m\2\) for 
90 minutes after removal of the charging source. The APTA standard set 
the duration period of 90 minutes to correspond with the 90-minute 
duration requirement for emergency lighting contained in Sec.  238.115 
for new passenger cars, which affords a reasonable amount of time for 
passengers and crew members to wait for the arrival of emergency 
responders to remote accident sites. Depending on the circumstances, it 
could take more than an hour for crewmembers to evaluate an emergency 
situation, coordinate with the control center and emergency responders, 
notify passengers of the appropriate action(s) to take, and if 
necessary, begin to evacuate the train. In conditions of darkness, a 
brighter sign is more easily recognizable and facilitates 
identification of emergency exits.
    As noted, the Task Force has focused on revisions to this APTA 
standard for purposes of incorporating it into FRA's regulations. FRA 
considered incorporating elements of the APTA standard into this final 
rule so that emergency exit signs and intercom markings in passenger 
cars would be required to be made of HPPL material, and FRA invited 
comment on doing so. See 71 FR 50289. Although no written comments were 
received, the Task Force discussed at length issues associated with the 
development of HPPL material component requirements. One of the most 
difficult issues the Task Force addressed was the extent to which such 
requirements should apply to photo-luminescent signs and markings 
already installed in passenger cars. Task Force members were 
particularly concerned that lighting levels in enclosed vestibule areas 
in existing cars were not bright enough to charge photo-luminescent 
signs already in place such that they could meet the level of luminance 
required by the APTA standard. Field studies and laboratory tests 
revealed two issues: (1) In many cases, the levels of light in 
vestibules and other small areas were inadequate for photo-luminescent 
signs to perform as required by the APTA standard; and (2) sufficiently 
accurate off-axis illuminance measurements cannot be taken without the 
use of light meters especially designed to take such measurements--
certain commonly available light meters are not designed for such a 
purpose.
    FRA notes that the Task Force separately proposed revisions to the 
APTA standard to (1) allow flexibility for use of different types of 
charging light sources, (2) require that new HPPL signs meet the same 
luminance requirements with lower charging light levels, (3) allow 
alternative testing criteria using meters that do not measure off-axis 
illuminance accurately, (4) grandfather signs that are likely to 
perform as intended for 60 minutes, and (5) in small areas, to allow 
lower levels of luminance or use of larger signs to compensate for even 
lower light levels. The Task Force advised that requirements in the 
APTA standard for HPPL were very detailed and complex and not readily 
transferable directly into this final rule. Therefore, the Task Force 
recommended incorporating such requirements by reference into the CFR 
through a separate rulemaking, after the standard had been revised and 
authorized by APTA. These would include various other sign and marking 
requirements, including those addressing size, color, and contrast. FRA 
agreed with the Task Force's recommendation, and has not modified this 
final rule with respect to this issue. As discussed earlier, the 
standard was revised and thereafter authorized by APTA on October 7, 
2007. The standard is now designated as APTA SS-PS-002-98, Rev. 3, 
``Standard for Emergency Signage for Egress/Access of Passenger Rail 
Equipment.'' FRA intends to use this standard in a separate rulemaking 
that will add to and enhance FRA's marking and signage requirements for 
passenger train emergency systems.
Section 238.114 Rescue Access Windows
    FRA has established a new section that contains requirements for 
rescue access windows for both new and existing passenger cars. As 
discussed in detail above, this new section was prompted in part by the 
April 23, 2002 collision involving a Metrolink passenger train near 
Placentia, CA, and the ensuing NTSB Safety Recommendation (R-03-21) to 
FRA, which illustrated the potential importance of having rescue access 
windows on each level of a passenger car. The general intent of the 
provision is to provide a means of rescue access by emergency 
responders through a window directly into every passenger compartment 
on every level of a passenger car, in the event that a stairway or 
interior door is compromised and exterior doors are blocked.
    Paragraph (a). Paragraph (a) contains requirements specifying the 
minimum number and location of rescue access windows. These 
requirements apply on or after the effective date of the final rule to 
all passenger cars, except for certain, existing single-level cars. As 
noted above, although FRA's original regulations did not specifically 
require any minimum number of rescue access windows for passenger cars, 
they continue to require that windows that are intended for rescue 
access be marked and that instructions be provided for their operation. 
See Sec.  223.9(d)(2).
    Paragraph (a)(1) contains the number and location requirements for 
rescue access windows in single-level passenger cars. FRA is requiring 
that each single-level passenger car have a minimum of two rescue 
access windows. At least one rescue access window must be located in 
each side of the car, entirely within 15 feet of the centerline of the 
car, or entirely within 7\1/2\ feet of the centerline if the car does 
not exceed 45 feet in length. As discussed above, the Task Force 
recommended requiring two windows for rescue access (versus four, as is 
required for emergency exit) mainly because rescue access windows are 
the third means of egress in the overall emergency systems approach, 
with doors and emergency windows being the first and second means of 
emergency exit, respectively.
    Rescue access windows in a single-level passenger car are required 
to be located ``as close to the center of the car as possible,'' unlike 
emergency window exits which should be in a staggered configuration to 
the extent practical. See Figure 1a to subpart B; see also Figures 1b 
and 1c to subpart B. Staggering the location of emergency window exits 
is intended to (i) ensure that a window exit is available for egress in 
the event that one end of the car is deformed by placing window exits 
throughout the car; (ii) optimize the rate of egress, as passengers 
have less distance to move to reach a window exit; and (iii) avoid 
congestion that could occur if the window exits were all located 
adjacent to or directly opposite one another. Since, in general, a 
minimum of only one rescue access window per side, per level of a 
single-level passenger car is required, the best way to ensure that a 
window is available for access in the event that either end of the car 
is

[[Page 6387]]

deformed is to locate the window in the center portion of the car, 
which is generally less vulnerable to significant deformation in the 
event of a collision involving either end of the car. Congestion should 
likely not be an issue for rescue access window usage in a situation 
requiring emergency evacuation as most car occupants physically able to 
do so would likely have begun to self-evacuate through doors and 
emergency window exits prior to the arrival of emergency responders.
    To ensure that railroads have sufficient flexibility to select 
those window locations best suited for rescue access, a 30-foot section 
along the center of a typical 85- to 90-foot-long passenger car has 
been designated for their location. This flexibility allows railroads 
to take into consideration the location of external hazards (such as 
third-rail shoes); potential hindrances created by interior fixtures 
for those rescue access windows intended to be opened by being pushed 
inward into the passenger compartment; the location of emergency window 
exits in passenger cars without dual-function windows; and other 
factors that a railroad may deem relevant. For passenger cars not 
longer than 45 feet, approximately half the length of a standard 
passenger car, railroads have the flexibility to select a rescue access 
window from among approximately three windows along a 15-foot section 
in the center of the car.
    If the seating level is obstructed by an interior door or otherwise 
partitioned into separate seating areas, the regulation requires that 
each separate seating area have at least one rescue access window in 
each side of the seating area, located as near to the center of the car 
as practical. This requirement is consistent with the general objective 
of having at least one rescue access window on each side of a passenger 
seating area or passenger compartment. Nevertheless, FRA is not aware 
of any such single-level car in current operation in the United States 
to which this requirement would apply.
    FRA notes that on some single-level passenger cars, polycarbonate 
windows are installed in a channel in the window mask, which is itself 
installed in the car body with the frame compressed over the window to 
secure it. Removal of the window would require removal of the frame, 
which would be very difficult in an emergency situation. In addition, 
it would be costly for these cars to be retrofitted with glass windows 
(so that they could be shattered) or with zip-strip systems to 
literally un-zip the window panel from its frame and gasketing. On this 
type of equipment, the location requirement would be met by having a 
rescue access window available on each side of each end of the same 
passenger compartment, including in exterior side doors. An exception 
was crafted that permits the location of the rescue access windows in 
four exterior side doors. It was approved by the Task Force, Working 
Group, and the full RSAC, and has been adopted by FRA in this final 
rule. Moreover, as proposed in the NPRM, the final rule permits these 
windows to be located farther than 15 feet from the car's centerline, 
provided that there is at least one such window in each side of each 
end (half) of the same passenger compartment--a minimum of four rescue 
access windows, overall. FRA believes that effectively requiring a 
minimum of four rescue access windows, instead of two, is appropriate 
for granting flexibility for installing rescue access windows on 
existing equipment in side doors.
    Paragraph (a)(1)(ii) states the number and location requirements 
for rescue access windows for single-level passenger cars that were 
ordered prior to September 8, 2000, and placed in service prior to 
September 9, 2002, if equipped with manual door releases for at least 
two exterior side doors (or door leaves) in diagonally-opposite 
quadrants of the cars. The manual door release must be capable of 
releasing the door (or door leaf) to permit it to be opened without 
power from outside the car, be located adjacent to the door (or door 
leaf) which it controls, and be designed and maintained so that an 
emergency responder could access the release from outside the car 
without requiring the use of a tool or other implement. The 
requirements of paragraph (a)(1)(ii) become effective August 1, 2010. 
FRA decided to make these requirements applicable not until 18 months 
after publication of this final rule, in part because the passenger 
cars subject to this provision have safety features not otherwise 
required for cars of their age--i.e., manual releases capable of 
opening side doors from outside of the cars. Section 238.235(b) 
contains requirements for manual door releases, but only applies to 
passenger cars ordered on or after September 8, 2000, or placed in 
service for the first time on or after September 9, 2002.
    This paragraph also addresses those passenger cars equipped with 
compressed frame window systems in which rescue access windows will 
need to be retrofitted in the four side doors by replacing the 
polycarbonate glazing with glass that can be broken to gain access into 
the car. The 18-month implementation period allows for the time 
necessary to plan and carry out the retrofit without disrupting train 
service. In the interim, emergency responders will continue to rely on 
the manual door releases to open the side doors for rescue access 
purposes should the need arise.
    In paragraph (a)(2), FRA has adopted minimum requirements for the 
number and location of rescue access windows in main levels of multi-
level passenger cars. Each main level in a multi-level passenger car is 
subject to the same, minimum requirements provided for single-level 
passenger cars in paragraph (a)(1) of this section.
    In paragraph (a)(3), FRA has adopted minimum requirements for the 
number and location of rescue access windows in non-main levels of 
multi-level passenger cars with seating areas. These requirements and 
exceptions for non-main levels with passenger seating are also the same 
as those for emergency window exits on non-main levels with passenger 
seating. Specifically, paragraph (a)(3)(i) requires that any non-main 
level used for passenger seating in a multi-level passenger car have at 
least two rescue access windows in each seating area to permit 
emergency responders to reach occupants without requiring movement 
through an interior door or to another level of the car. At least one 
rescue access window must be located in each side of the seating area. 
A rescue access window can be located within an exterior side door in 
the passenger compartment if it is not practical to place the rescue 
access window in the side of the seating area. See Figure 2a to subpart 
B; compare to Figure 2b to subpart B.
    Paragraph (a)(3)(ii) requires only one rescue access window in a 
seating area in a passenger compartment of a non-main level if it is 
not practical to place a rescue access window in a side of the 
passenger compartment due to the need to provide accessible 
accommodations under the ADA; there are no more than four seats in the 
seating area; and a suitable, alternate arrangement for rescue access 
is provided. The rationale for this exception is the same as the one 
for emergency window exits in non-main levels of multi-level passenger 
cars in Sec.  238.113(a)(3)(ii), as discussed above.
    Paragraph (a)(3)(iii) requires that passenger cars both ordered 
prior to April 1, 2009 and placed in service prior to April 1, 2011 
have only one rescue access window in a seating area in a passenger 
compartment of a non-main level if it is not practicable to place a 
rescue access window in a side of the passenger compartment (due to the 
presence of a structure such as a bathroom, electrical locker, or 
kitchen)

[[Page 6388]]

and there are no more than eight seats in the seating area. For more 
background on this provision, please see the related discussion above 
for emergency window exits in such seating areas.
    In paragraph (a)(4), FRA has adopted minimum requirements for the 
number and location of rescue access windows for passengers cars with a 
sleeping compartment or similar private compartment. Each level of a 
passenger car with a sleeping compartment or a similar private 
compartment intended to be occupied by passengers or train crewmembers 
is now required to have a minimum of one rescue access window in each 
such compartment. For purposes of this paragraph, a bathroom, kitchen, 
and locomotive cab are not considered a ``compartment.'' These 
requirements reflect current practice. Amtrak cars with sleeping 
compartments are already equipped with a window in each such 
compartment that is capable of being used for both emergency egress and 
rescue access.
    Paragraph (a)(5) addresses the use of dual-function windows as 
rescue access windows. If on any level of a passenger car the emergency 
window exits installed to meet the minimum requirements of Sec.  
238.113 are intended to function as rescue access windows, the 
requirements of paragraphs (a)(1) through (a)(4) of this section for 
the number and location of rescue access windows are met for that 
level. Under this provision, four rescue access windows are required 
for cars with dual-function windows that do not have at least one 
rescue access window in each side within 15 feet of the centerline of 
the car.
    Paragraph (b). Paragraph (b) contains the requirements for the ease 
of operability of rescue access windows. The requirements apply on or 
after April 1, 2008, and require that each rescue access window be 
capable of being removed without unreasonable delay by an emergency 
responder using either a provided external mechanism, or tools or 
implements that are commonly available to the responder in a passenger 
train emergency, such as a sledge hammer or a pry bar. In the NPRM, FRA 
had proposed the same requirement except for the terminological 
difference that each rescue access window be capable of being removed 
``without undue delay.'' In the final rule, FRA has decided to use the 
words ``without unreasonable delay,'' however, in order to avoid any 
confusion with other uses of ``without undue delay'' in FRA's 
regulations. Nevertheless, for the purposes of this rulemaking, the 
proposed language in the NPRM and the text of this final rule are 
intended to mean the same thing with respect to the speed at which the 
rescue access windows must be capable of being removed.
    FRA makes clear that the adopted performance requirement for 
removing windows ``without unreasonable delay'' is intended to be less 
stringent than the performance requirement of ``rapid and easy'' that 
is specified for removing emergency window exits in Sec.  238.113. For 
example, using a sledge hammer to shatter a glass window would be 
considered removal without unreasonable delay. Windows that are not 
made of glass may also be designed to be removed without unreasonable 
delay by an emergency responder, through use of an axe, sledge hammer, 
or similar large impact tool to strike the window at an appropriate 
point so that the window panel will push inward.
    Paragraph (c). Paragraph (c) contains the requirements for the 
dimensions of rescue access windows. Each rescue access window in a 
passenger car, including a sleeping car, ordered on or after April 1, 
2009, or placed in service for the first time on or after April 1, 
2011, is required to have an unobstructed opening with minimum 
dimensions of 26 inches horizontally by 24 inches vertically. If the 
rescue access window is located within an exterior side door, in 
accordance with the requirements of paragraph (a)(3)(i) of this 
section, it is permitted to have an unobstructed opening with minimum 
dimensions of 24 inches horizontally by 26 inches vertically. FRA makes 
clear that a seatback is not considered an obstruction if it can be 
moved away from the window opening without requiring the use of a tool 
or other implement. The dimensions for rescue access window 
unobstructed openings are the same as those for emergency window exit 
unobstructed openings. Accordingly, FRA's reasoning for proposing and 
adopting these minimum dimensions for emergency window exits applies 
here to rescue access windows. These minimum dimensions are intended to 
allow an emergency responder equipped with a self-contained breathing 
apparatus to pass through the window, as well as allow a train occupant 
to be carried through the window on a standard-sized stretcher. As 
noted in the earlier discussion concerning emergency window exits, FRA 
chose not to adopt a similar exception to the dimension requirements 
for rescue access windows because the additional rescue access windows 
are not likely to be as useful in an emergency situation requiring 
immediate evacuation (e.g., to escape water, smoke, or fire) as 
additional emergency window exits. The requirement for minimum 
dimensions also helps ensure that there will be no confusion as to 
whether or not the window is of the appropriate size to accommodate a 
responder equipped with breathing equipment and a standard-sized 
stretcher.
    Paragraph (d). As discussed above, FRA has modified the 
requirements for rescue access window marking and operating 
instructions, which were formerly contained in Sec.  223.9(d)(2), and 
has moved them here to paragraph (d). Formerly, each rescue access 
window was required to be ``marked with a retroreflective, unique, and 
easily recognizable symbol or other clear'' marking. FRA has restated 
these requirements to make clear that rescue access windows must be 
marked with retroreflective material. Second, FRA makes clear that a 
unique and easily recognizable symbol, sign, or other conspicuous 
marking must be used to identify each rescue access window. FRA has 
replaced the word ``clear'' in the former requirements with the word 
``conspicuous'' and has added the word ``sign'' as another example of a 
conspicuous marking. The revisions make clear that use of 
retroreflective material to mark a rescue access window is a distinct 
requirement in itself that was adopted to enable emergency responders 
to quickly identify rescue access windows under conditions of darkness 
by shining a flashlight on a car. Second, the revisions make clear that 
the window must also be marked by a unique and easily recognized 
symbol, a sign (such as ``RESCUE ACCESS''), or other conspicuous 
marking (such as delineation of the window by means of a contrasting 
color). Both requirements could be met by the same marking.
    FRA also notes that the regulations formerly required that each 
railroad post ``clear and understandable'' window access instructions 
either at each rescue access window or at each end of the car. FRA has 
replaced the word ``clear'' with the word ``legible,'' so that 
railroads are required to post ``legible and understandable'' operating 
instructions. Use of the word ``clear'' in Sec.  223.9(d) had created 
some confusion, since it could have more than one meaning, and FRA 
believes the amendment eliminates any further confusion. FRA has also 
modified the requirements so that it is no longer permissible to have 
window access instructions solely at the end of the car. Instead, 
legible and understandable rescue access window instructions, including 
instructions for

[[Page 6389]]

removing the window, are required to be posted at or near each rescue 
access window. FRA agreed with the Task Force that rescue access 
efforts could be unduly delayed by posting rescue access window 
operating instructions at the end of a car, potentially more than 40 
feet away from the rescue access window to which the instructions 
apply.
    As noted above in the discussion of emergency window exits, the 
Task Force has focused on revisions to APTA SS-PS-002-98, Rev. 2, 
``Standard for Emergency Signage for Egress/Access of Passenger Rail 
Equipment,'' in order to recommend whether some or all of its contents 
should be incorporated into FRA's regulations. This APTA standard also 
contains detailed criteria for marking rescue access windows, including 
the use of retroreflective material. FRA invited comment on whether the 
criteria in the APTA standard or in draft revisions to this standard 
for marking rescue access windows were appropriate for use in the final 
rule. See 71 FR 50292. While no written comments were received on this 
issue, both the Task Force and the Working Group recommended that FRA 
add the criteria to the final rule. FRA agrees and has added a 
definition of ``retroreflective material'' that incorporates by 
reference criteria from ASTM's Standard D 4956-07 for Type I Sheeting. 
See the discussion in Sec.  238.5. This newly added definition is 
consistent with the definition and requirements for retroreflective 
markings for rescue access windows that are contained in Revision 3 of 
the APTA standard.
    In order to maintain optimum retroreflective properties of the base 
material, any retroreflective markings that have ink or pigment applied 
should utilize a translucent or semi-translucent ink, as per the 
manufacturer's instructions. A clear coat that protects against ultra-
violet light may be added to the markings to prevent fading. 
Retroreflectivity requirements shall be met if protective coatings or 
other materials for the enhancement of marking durability are used.
Section 238.121 Emergency Communication
    This new section establishes emergency communication requirements 
for Tier I passenger equipment and replaces the previous emergency 
communication system requirements in Sec.  238.437 for Tier II 
passenger equipment. Overall, the adopted requirements generally 
reflect current practice for Tier I passenger equipment and generally 
carry forward the former requirements for Tier II passenger equipment.
    In the NPRM, FRA had originally proposed to designate this section 
as Sec.  238.117 and redesignate Sec.  238.117 (Protection against 
personal injury) as Sec.  238.121. See 71 FR 50276, 50304. FRA had 
believed that such a redesignation would help keep the emergency system 
requirements together in section numbering sequence for the benefit of 
the user. However, concern has been raised that redesignating original 
sections of the May 12, 1999 Passenger Equipment Safety Standards rule 
could cause unnecessary confusion, and FRA has decided against the 
proposed redesignation. FRA has chosen instead to designate this 
section as Sec.  238.121. This new designation has no effect on the 
substance of the emergency communication requirements.
    Paragraph (a). Paragraph (a) contains requirements for PA systems 
for both existing and new Tier I and Tier II passenger cars. Most 
passenger cars used in commuter and intercity service are equipped with 
PA systems that train crews often use to notify passengers of the 
nature and expected duration of delays. If a person requires immediate 
medical attention, the crew may also use the PA system to request 
assistance from someone onboard with medical training. Railroad 
representatives on the Task Force noted that PA systems are 
particularly beneficial in the immediate aftermath of an accident to 
provide instructions for appropriate passenger action. In light of a 
security threat or other emergency situation requiring rapid evacuation 
of an area, crews may also use the PA system to instruct passengers to 
deboard as quickly as possible. If there is a hazard on one end of the 
train or one side of the train, crews may use the PA system to notify 
passengers of the hazard and direct them to use the appropriate exit 
route(s) that would avoid or minimize their exposure to the hazard. Of 
course, all things being equal, the safest place for passengers is to 
remain onboard the train. Deboarding could aggravate an emergency 
situation, particularly if passengers step onto the right-of-way on 
their own without direction from a crew member. Accordingly, the crew 
must have the means to provide passengers with appropriate instructions 
as soon as possible.
    Paragraph (a)(1) requires that on or after January 1, 2012, each 
Tier I passenger car be equipped with a PA system that provides a means 
for a crewmember to communicate to all train passengers in an emergency 
situation. FRA understands that existing Tier I passenger cars that 
currently do not have PA systems are scheduled to be retired before 
2012 and thus would be removed from service before the requirement 
would apply. FRA notes that APTA's PRESS Task Force is currently 
evaluating the feasibility of a wireless, two-way communication system 
that would function independently of the train line, i.e., not rely on 
the train line for power. The wireless system is intended to provide a 
means of two-way communication in the event that the train line is 
broken, as may occur as a result of certain collisions or derailments. 
However, FRA makes clear that it is not currently adopting a 
requirement in this section that the communication system be wireless; 
communication through use of a train line is still permitted.
    Paragraph (a)(2) contains requirements for new Tier I and all Tier 
II passenger cars. As is stated for existing Tier I passenger cars in 
paragraph (a)(1), this paragraph requires that each Tier I passenger 
car ordered on or after April 1, 2008, or placed in service for the 
first time on or after April 1, 2010, and all Tier II passenger cars be 
equipped with a PA system that provides a means for a crewmember to 
communicate to all train passengers in an emergency situation. In 
addition, PA systems in new Tier I and all Tier II passenger cars are 
required to provide a means for a crewmember to communicate in an 
emergency situation to persons in the immediate vicinity of the train 
(e.g., on the station platform). These requirements include the basic 
features of PA systems installed in most recently-manufactured Tier I 
passenger cars and in all existing Tier II passenger trains.
    Finally, it should be noted that the PA system may be part of the 
same system as the intercom system. A shared configuration is quite 
common on cars equipped with both PA and intercom systems.
    Paragraph (b). Paragraph (b) contains the requirements for intercom 
systems. Traditionally, conductors and assistant conductors have been 
relied upon to relay information to passengers in both normal and 
emergency situations through face-to-face interaction or by use of a PA 
system. However, with smaller crew sizes, such face-to-face 
communication may not be possible for passengers attempting to quickly 
communicate to the crew a medical emergency, safety concern, or 
security threat requiring immediate attention. For instance, a 
passenger in the last car of a train who needs to communicate a safety 
or security threat to a crewmember could potentially have to walk the 
entire length of the train to do

[[Page 6390]]

so (assuming the crew is composed of an engineer and one conductor, who 
in this circumstance would be in the first car at the time). 
Furthermore, if the conductor were incapacitated, passengers would need 
to communicate with the engineer. The Task Force therefore recommended 
and FRA decided that emergency communication systems in new passenger 
cars must include intercom systems to enable passengers to quickly 
communicate emergency situations to the train crew. These requirements 
reflect common intercom system configurations for new passenger cars.
    Specifically, paragraph (b)(1) contains the intercom system 
requirements for new Tier I and all Tier II passenger cars. Each Tier I 
passenger car ordered on or after April 1, 2008, or placed in service 
for the first time on or after April 1, 2010, and all Tier II passenger 
cars are required to be equipped with an intercom system that provides 
a means for passengers and crewmembers to communicate with each other 
in an emergency situation. Passenger cars that are at least 45 feet in 
length are required to have a minimum of one intercom in each end 
(half) of each car that is accessible to passengers without requiring 
the use of a tool or other implement. Although some passenger cars 
currently equipped with intercom systems have one located in each end 
(half), others have only one per car. An intercom in each end (half) of 
a car is intended to allow passengers to have access to an intercom 
within half a car length, which is normally 42 to 45 feet, and without 
having to pass into an adjoining car. As long as intercoms are 
accessible to passengers, they may be placed anywhere in each end 
(half) of the car and not necessarily in the far ends.
    Paragraph (b)(1) continues the logic of former Sec.  238.437 by 
requiring only one intercom for a passenger car that does not exceed 45 
feet in length, such as the Talgo passenger cars operated by Amtrak. As 
the length of a conventional passenger is typically between 85 and 90 
feet, FRA believes it appropriate to require a car not more than half 
that length to have only one intercom location. This paragraph also 
continues to require, as Sec.  238.437 formerly did, that a Tier II 
passenger car ordered prior to May 12, 1999, be equipped with only one 
intercom. The preamble to the April 23, 2002 final rule, which amended 
the May 12, 1999 final rule, explained that after FRA had proposed that 
intercoms be located at each end of a Tier II passenger car, Amtrak 
indicated that not all passenger cars in its high-speed trainsets had 
intercom transmission locations at each end of the cars. See 67 FR 
19986. Amtrak further noted that the intercoms would be difficult to 
install at the non-vestibule ends of the cars. As these trainsets were 
in development in advance of both the then-proposed and final rules, 
FRA made an exception for all cars ordered prior to May 12, 1999, and 
this final rule carries forward this exception.
    Some Task Force members were concerned that making the intercoms 
accessible to passengers without requiring the use of a tool or other 
implement could lead to misuse that could unnecessarily distract the 
train operator. However, representatives from Amtrak and various 
commuter railroads that operate cars with intercom systems indicated 
that they have successfully implemented measures to deter misuse. For 
instance, on some passenger cars, the intercom transmission device is 
located in a safety compartment designated and marked for emergency 
communications only. In the proposed rule, FRA invited comment on 
whether passenger misuse of intercom systems had been identified as a 
problem, and, if so, FRA invited suggestions for measures that could 
curb such misuse without rendering the systems inaccessible to 
passengers in an emergency. No comments were received on this issue, 
and FRA has decided to adopt the language as proposed. FRA makes clear 
that intercoms need to be accessible to passengers with disabilities to 
the extent required by the ADA and its implementing regulations.
    Paragraph (b)(2) requires that the location of each intercom 
intended for passenger use be clearly marked with luminescent material 
and that legible and understandable operating instructions be posted at 
or near each such intercom to facilitate passenger use. These 
requirements apply to each Tier I passenger car on or after April 1, 
2010, and continue to apply to each Tier II passenger car. During the 
development of the rule, some railroad representatives on the Task 
Force noted that although instructions are currently posted at the 
intercom locations on their cars, there are no luminescent markings. 
The Task Force therefore recommended that luminescent markings be 
required. FRA proposed to adopt such a requirement in this final rule, 
and invited comment on whether the luminescent material should be HPPL 
material, as discussed below. See 71 FR 50293. The final rule requires 
luminescent marking of each intercom location to ensure that the 
intercom can be easily identified for use in the event that both normal 
and emergency lighting are not functioning. The posted operating 
instructions, however, are not required to be luminescent. Some Task 
Force members indicated that the instructions may be easier to read 
when not luminescent.
    As noted in the discussion concerning emergency window exit 
signage, above, APTA SS-PS-002-98, ``Standard for Emergency Signage for 
Egress/Access of Passenger Rail Equipment,'' contains specific criteria 
for luminescent markings. The Task Force has focused on revisions to 
this APTA standard in order to recommend whether to incorporate some or 
all of its contents into part 238 by reference and thereby require that 
luminescent markings for intercoms comply with the standard as it 
relates to luminescent markings. APTA PRESS has also indicated that 
they intend to revise APTA SS-PS-001-98, ``Standard for Passenger 
Railroad Emergency Communications,'' to include more specific 
requirements for marking emergency communication systems. In the 
proposed rule, FRA invited comment on whether the luminescent material 
that would be required for marking should be HPPL material. FRA 
indicated that it would evaluate any comments received in considering 
whether a requirement for use of HPPL material should be established in 
the final rule.
    Although no written comments were received, the Task Force 
discussed at length issues associated with the development of HPPL 
material component requirements, as noted above. Ultimately, the Task 
Force advised that requirements in Revision 2 of APTA Standard SS-PS-
002-98, ``Standard for Emergency Signage for Egress/Access of Passenger 
Rail Equipment,'' for HPPL were very detailed and complex and not 
readily transferable directly into this final rule. Therefore, the Task 
Force recommended incorporating such requirements by reference into the 
CFR through a separate rulemaking, after the standard had been revised 
and authorized by APTA. These would include various other sign and 
marking requirements, including those addressing size, color, and 
contrast. FRA agreed with the Task Force's recommendation, and has not 
modified this final rule. Accordingly, the marking is only required to 
be luminescent. As noted, APTA authorized Revision 3 of the standard on 
October 7, 2007, and FRA intends to use this standard in a separate 
rulemaking that will add to and enhance FRA's marking and signage 
requirements for passenger train emergency systems.
    Paragraph (c). Paragraph (c) continues to require that PA and 
intercom systems on Tier II passenger trains have back-up

[[Page 6391]]

power for a minimum period of 90 minutes. See former Sec.  238.437(d). 
An example of a back-up power source is the main battery in a passenger 
car. PA and intercom systems may continue to draw back-up power from a 
source which provides power to other systems, as the main car battery 
does. These systems are not required to have a back-up power source 
that provides power exclusively for their operation. Additionally, it 
is permissible to meet this requirement using a main car battery 
located in another car, if the two cars are semi-permanently coupled as 
in the case of a married pair of MU locomotives.
    The Task Force approved a recommendation for a back-up power 
requirement for new Tier I passenger cars, similar to the requirements 
contained in Sec.  238.115(b)(4) for emergency lighting back-up power 
systems. That is, the back-up power system must be capable of 
operating: in all equipment orientations within 45 degrees of vertical; 
after the initial shock of a collision or derailment resulting in 
individually applied accelerations of 8g longitudinally, 4g laterally, 
and 4g vertically; and for at least 90 minutes. Yet, this 
recommendation was not forwarded to the Working Group, due to an 
oversight, prior to the publication of the NPRM. Given that backup 
power to the PA and intercom systems could be supplied by the same 
source as that for the emergency lighting system, and that the amount 
of power required would likely be only a fraction of that required for 
the emergency lighting system, FRA had no reason to believe that this 
recommendation would not have received the full support of the Working 
Group or full RSAC. As a result, FRA noted in the NPRM that it was 
considering inserting in the final rule a back-up power system 
requirement containing the provisions recommended by the Task Force, 
and FRA invited comment on doing so. In particular, FRA sought comment 
on whether the system needs to be capable of providing continuous 
communication over the 90-minute period, or only intermittent 
communication, which would draw less battery power. FRA noted that it 
may not be necessary to provide the means to communicate continuously 
for a 90-minute period, and FRA invited comment as to how many minutes 
of intermittent communication would need to be provided.
    While no written comments were received on this issue, the Task 
Force discussed the matter at length during its meeting held on October 
25-26, 2006. Both APTA and the UTU indicated that 90 minutes of 
continuous communication was unnecessary. Instead, the Task Force 
recommended that intermittent communication with the equivalent of 15 
minutes of continuous communication would be sufficient during a 90-
minute period. In order to ensure that the system will have enough 
power to support a total of 15 minutes of communication at any point 
during the 90-minute period, the Task Force agreed that the system 
must, at a minimum, support 15 minutes of continuous communication at 
the end of the 90-minute period (i.e., during minutes 76 through 90). 
The Working Group concurred with the Task Force's recommendations, and 
FRA has agreed to adopt them in this final rule. As a result, the final 
rule includes requirements for a back-up power system for both Tier I 
and Tier II passenger trains.
Section 238.123 Emergency Roof Access
    This new section contains emergency roof access requirements for 
Tier I and Tier II passenger cars ordered on or after April 1, 2009, or 
placed in service for the first time on or after April 1, 2011. 
Requirements for Tier II power cars and existing Tier II passenger cars 
remain in Sec.  238.441, as discussed below. The emergency roof access 
requirements for Tier II passenger equipment contained in former Sec.  
238.441 and APTA PRESS recommended practice RP-C&S-001-98, 
``Recommended Practice for Passenger Equipment Roof Emergency Access,'' 
serve as the basis for the requirements in this section. This APTA 
recommended practice contains additional useful information not 
included in this final rule; however, FRA notes that this final rule 
supersedes certain provisions of the recommended practice.
    In the NPRM, FRA originally proposed to designate this section as 
Sec.  238.118, see 71 FR 50276, 50304. FRA has chosen instead to 
designate this section as Sec.  238.123, consistent with the decision 
not to redesignate original sections of the May 12, 1999, Passenger 
Equipment Safety Standards final rule. This new designation has no 
effect on the substance of the emergency roof access requirements.
    Emergency roof access locations (roof hatches or structural weak 
points) can be especially useful in emergency situations where 
passenger cars have rolled onto their sides following certain collision 
and derailment scenarios. All things being equal, car rollover or tilt 
should result in more severe injuries than when a car remains upright, 
as occupants may be thrown greater distances inside the car. In turn, 
this risk increases the potential need for rescue access of the car's 
occupants because of the reduced likelihood that the occupants can 
evacuate the car on their own. In addition, when there is a rollover, 
doors, which are the preferred means of access under normal 
circumstances, may be blocked or otherwise rendered inoperable due to 
structural damage to the door or the door pocket. In particular, end 
doors, which due to the direction they face, would normally be better 
suited for use than side doors when a car has tilted or rolled onto its 
side, may also be blocked, jammed, or otherwise unavailable for use. 
Moreover, although emergency responders may be able to enter a car that 
is on its side via a rescue access window, the removal of an injured 
occupant through a side window in such circumstances can be difficult 
or complicated, especially depending upon the condition of the 
occupant.
    Paragraph (a). Paragraph (a) contains requirements for the number 
and dimensions of emergency roof access locations. Each passenger car 
ordered on or after April 1, 2009, or placed in service for the first 
time on or after April 1, 2011, must have a minimum of two emergency 
roof access locations. Although the May 12, 1999, final rule required 
Tier II passenger cars and power cars to have only one roof hatch for 
emergency roof entry or at least one structural weak point for properly 
equipped emergency personnel to quickly access a car, many new Tier I 
multi-level passenger cars are currently being manufactured with up to 
four structural weak points in the roof. In determining the minimum 
number of access points needed for new Tier I and Tier II passenger 
cars, the Task Force agreed it would be useful to protect the emergency 
roof access locations against crush at either end of the car. To do so 
would require placement of the locations away from the far ends of the 
car or, at a minimum, placement not in the same end (half) of the car 
in the event that the end with the access points becomes crushed. 
Second, the Task Force thought it prudent to facilitate rescue access 
by having the access points located within the bottom half of the car's 
roof, so that the bottom of the opening would be closer (lower) to the 
ground and thus, presumably, more easily accessible when the car is on 
its side. This would require having one access point on either side of 
the roof's longitudinal centerline. To accomplish both goals, the Task 
Force recommended having two access points

[[Page 6392]]

located at diagonally-opposite quadrants of the roof. See Figure 3 to 
subpart B.
    Under this new section, each roof access location is required to 
have a minimum opening of 26 inches longitudinally (i.e., parallel to 
the longitudinal axis of the car) by 24 inches laterally. These 
dimensions are consistent with the minimum dimension requirements for 
emergency window exits specified for new passenger cars in the 1999 
Passenger Equipment Safety Standards final rule, see 64 FR 25673, and 
were based on specifying opening requirements necessary to allow 
passage of an emergency responder equipped with a self-contained 
breathing apparatus or fire gear, as well as to allow passage of a 
person being carried on a backboard or basket stretcher, see 64 FR 
25595-25596. In discussing the issue of appropriate dimensions for 
emergency roof access locations, Task Force members noted that in order 
to gain access to a car via a structural weak point, a responder would 
normally have to cut through the roof skin, which is usually steel, and 
then through the lining. In some cases, a responder may have to cut 
through additional non-rigid structures. If the outside dimensions are 
only 26 inches longitudinally by 24 inches laterally, and multiple cuts 
through car structures are required to gain access to the passenger 
compartment, this could present a problem for emergency responders, 
since each subsequent cut made using a saw would potentially result in 
a smaller opening. Consequently, railroads and car builders would need 
to take this into account when designing structural weak points and 
ensure that the dimensions of the final cut in such circumstances would 
still result in an opening meeting the minimum dimension requirements. 
This concern is addressed further in the discussion of paragraph (d), 
below.
    Paragraph (b). Paragraph (b) provides that permissible means of 
emergency roof access include either a hatch, or a clearly marked 
structural weak point in the roof for access by properly equipped 
emergency response personnel. Structural weak points, commonly known as 
``soft spots,'' are usually created by routing cables, wiring, and 
piping in the roof of the car around the location designated for roof 
access. This paragraph affords railroads the flexibility of installing 
either roof hatches or providing structural weak points in the roof, as 
each individual railroad is in the best position to decide which one is 
preferable taking into consideration such factors as the car's intended 
use and the safety hazards presented by one versus the other. For 
example, although roof hatches could provide a means of self-evacuation 
in addition to a means of access, placing them in the roofs of electric 
MU locomotives, which rely on overhead catenary systems for power, 
could create an electrocution hazard for occupants attempting to self-
evacuate in an emergency.
    Paragraph (c). Paragraph (c) requires that emergency roof access 
points be located, insofar as practical, in such a manner that when a 
car is on its side: (i) One emergency roof access location is wholly 
within each half of the roof as divided top from bottom; and (ii) one 
emergency roof access location is wholly within each half of the roof 
as divided left from right. See Figure 3 to subpart B. Use of the word 
``practical'' allows railroads and car builders some discretion 
regarding the location of the access points and is necessary to 
accommodate particular equipment types. For instance, some electric MU 
equipment has pantographs that take up a significant portion of one end 
of the rooftop, making it difficult to place one emergency access 
location wholly within each half of the car's roof. Additionally, on 
some passenger cars that have luggage racks, it may be more practical 
to place the emergency access location so that it is not wholly within 
the bottom half of the car's roof (when the car is on its side) if 
doing so would facilitate rescue access by eliminating the need for 
emergency responders to cut through or maneuver around the luggage 
racks to get to passengers.
    Paragraph (d). Paragraph (d) contains provisions related to 
obstructions and requires that the ceiling space below each emergency 
roof access location be free from wire, cabling, conduit, and piping. 
Additionally, paragraph (d) requires that, where practicable, this 
space also be free of rigid secondary structure(s) (e.g., diffusers and 
diffuser support, lighting back fixtures, mounted PA equipment, and 
luggage racks). In determining the placement of the emergency roof 
access locations, railroads and manufacturers need to consider the 
requirements of Sec.  238.123 as a whole. Use of the word ``practical'' 
in paragraph (c) is intended to allow more discretion than would be 
allowed through use of the word ``practicable'' in this paragraph (d). 
For example, in a situation where placement of an emergency roof access 
location wholly within the bottom half of a car's roof (when the car is 
on its side) would result in obstruction by a rigid secondary 
structure, a railroad would be required to place the roof access 
location elsewhere so as to avoid the obstruction, even though this may 
result in its placement partially in both sides of the roof, or 
otherwise not wholly within each half of the roof. In such a situation, 
the rule recognizes that avoidance of the rigid secondary structure is 
more critical than the exact location of the emergency roof access 
location.
    If emergency roof access is provided by means of a hatch, it must 
be possible to push interior panels or liners out of their retention 
devices and into the interior of the vehicle after removing the hatch. 
For example, for car interior aesthetics, it would not be uncommon to 
cover the area below the hatch with lining and use a fastener like 
VELCRO(copyright) to secure the lining in place. This type of cover and 
securement make it possible for emergency responders to reach the 
interior of the vehicle by pushing in the lining after removing the 
hatch. This is just one example, and other types of covers and means of 
securement are permissible, provided emergency responders are able to 
push through them to reach the interior of the vehicle after removing 
the hatch.
    If emergency roof access is provided by means of a structural weak 
point, the rule states that it is permissible to cut through interior 
panels, liners, or other non-rigid secondary structures after making 
the cutout hole in the roof. However, any such additional cutting that 
is required must permit a minimum opening of the dimensions specified 
in paragraph (a) to be maintained. In this regard, having to make 
additional cuts could affect the size of the markings indicating the 
structural weak points, as provided in paragraph (e).
    Paragraph (e). Paragraph (e) contains requirements for providing 
markings of, and instructions for, emergency roof access locations. 
Each emergency roof access location is required to be clearly marked 
with retroreflective material of contrasting color. The retroreflective 
material is intended to enable emergency responders to quickly identify 
the access locations by shining a light on the roof. As discussed in 
the section-by-section analysis of the definition of ``retroreflective 
material,'' FRA has incorporated ASTM International's Standard D 4956-
07 by reference in the CFR.
    While FRA did not specifically request comment on applying this 
definition to roof access markings, FRA believes it logical to apply 
this definition here, in addition to applying it to rescue access 
windows in Sec.  238.114. The underlying reasons for using 
retroreflective material for roof access markings are the same as those 
for using the material for rescue access

[[Page 6393]]

window markings. Nevertheless, FRA notes that this definition has not 
been included in the emergency roof access marking requirements in 
Sec.  238.441 for existing Tier II passenger cars and power cars--only 
for new equipment. As a result, markings on existing equipment do not 
have to be removed and reapplied, should they not be in conformance 
with the retroreflectivity criteria applicable to markings on new 
equipment in this final rule.
    Paragraph (e) requires that legible and understandable instructions 
be posted at or near each emergency roof access location. These 
instructions are not required to be retroreflective for two principal 
reasons: it can be difficult to read writing on certain grades of 
retroreflective materials while shining light on them, and light used 
to identify the emergency rescue access locations should be available 
for reading the instructions as well. This is consistent with the 
requirements for marking rescue access windows. As an additional 
requirement, paragraph (e) requires that if emergency roof access is 
provided by means of a structural weak point, the line along which the 
roof skin is intended to be cut is required to be clearly marked with 
retroreflective material. The size of the border marking may have to be 
larger than 24 inches laterally by 26 inches longitudinally to ensure 
that any cuts in addition to the cut through the roof skin retain the 
minimum dimensions required for the opening. Structural weak points are 
also required to have a sign plate with a retroreflective border that 
states as follows:

CAUTION--DO NOT USE FLAME-CUTTING DEVICES

CAUTION--WARN PASSENGERS BEFORE CUTTING

CUT ALONG DASHED LINE TO GAIN ACCESS

ROOF CONSTRUCTION--[STATE RELEVANT DETAILS]

    In particular, warning must be provided against use of a flame-
cutting device during a rescue access attempt to avoid creation of a 
fire hazard. This is especially important since rescue access is 
usually a last resort for those who cannot self-evacuate due to being 
injured or disabled, as well as due to the lack of a viable exit. 
Emergency responders usually have a variety of tools available to them 
at the scene of an emergency, including a specialized saw which can be 
used to cut through steel, and do not have to rely on flame-cutting 
devices.

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

Section 238.303 Exterior Calendar Day Mechanical Inspection of 
Passenger Equipment
    This section contains the requirements related to the performance 
of exterior mechanical inspections of passenger cars (e.g., passenger 
coaches, MU locomotives, and cab cars) and unpowered vehicles used in a 
passenger train each calendar day that the equipment is used in 
service. Paragraph (e) of this section identifies the various 
components that are required to be inspected as part of the exterior 
calendar day mechanical inspection.
    As proposed, FRA is adding new paragraph (e)(18) to require that 
all rescue-access-related exterior markings, signage, and instructions 
required by Sec.  238.114 (rescue access windows) and Sec.  239.107 
(emergency exits) be in place and, as applicable, conspicuous, and/or 
legible. Paragraph (e)(18)(i) does permit passenger cars with any 
required rescue-access-related exterior markings, signage, or 
instructions that are missing, illegible, or inconspicuous, as 
applicable, to remain in passenger service until the equipment's fourth 
exterior calendar day mechanical inspection or next periodic mechanical 
inspection required under Sec.  238.307, whichever occurs first, after 
the noncompliant condition is discovered. The car must then be repaired 
or removed from service.
    The four-day repair flexibility is intended to allow railroads to 
schedule repairs at locations where they can be performed safely and in 
a manner that would avoid disrupting normal operations. Railroad 
representatives on the Task Force noted that not all yards are properly 
equipped for personnel to safely, effectively, or efficiently remove 
and replace signage on the exterior of cars. For example, work on the 
upper levels of cars can be more safely performed at maintenance 
facilities that have platform ladders. In addition, various vendors 
noted that signs and markings must be applied on a dry, clean surface 
at temperatures of approximately 65 degrees Fahrenheit and must be 
allowed to set for up to two hours. Graffiti may render a sign, 
marking, or instruction illegible and thus in need of replacement. 
Proper removal of a sign can be a long and tedious process because the 
adhesives used are difficult to remove. This, coupled with the 
conditions necessary for application of a sign, may make it an 
unfeasible task for some railroads to perform during an exterior 
calendar day mechanical inspection. Furthermore, some long-distance 
intercity train trips take three or four days to complete, and many of 
the en-route repair locations may not be appropriate places to make the 
repairs to signage. Removing a car from service for missing rescue 
access signage before it reaches its final destination could result in 
stranding passengers on platforms or require that the same number of 
passengers ride in a fewer number of cars, with fewer emergency exits 
available to them as a whole. Thus, the safety of both railroad 
employees and railroad passengers also necessitates that some 
flexibility be provided in making repairs.
    Paragraph (e)(18)(ii) provides even greater flexibility for use of 
passenger cars with required rescue-access-related exterior markings, 
signage, or instructions that are missing, illegible, or inconspicuous 
on a side of a level of a car that has more than 50 percent of the 
windows designated and properly marked for rescue access. Such a car is 
permitted to remain in passenger service until no later than the car's 
next periodic mechanical inspection required under Sec.  238.307, where 
the car must repaired or removed from service. In developing the rule, 
FRA agreed with the Task Force recommendation that this added 
flexibility for these types of cars recognizes the extra effort that a 
railroad undertakes by designating and identifying a greater number of 
rescue-access windows than is required by Sec.  238.114. A single act 
of vandalism may destroy multiple signs, markings, and instructions or 
render them illegible or inconspicuous. Placement or replacement of 
several signs could take more time than may be scheduled for 
maintenance of the car prior to the periodic mechanical inspection. FRA 
believes it makes little sense to require immediate repair of the 
damaged markings when more than a sufficient number meeting the 
requirements of Sec.  238.114 are still present on the equipment. 
Moreover, without such flexibility, railroads would likely be 
discouraged from designating more rescue-access windows than are 
required by Sec.  238.114.
    Similarly, paragraph (e)(18)(iii) provides flexibility for the 
continued use of a sleeping car that has more than two consecutive 
windows with any required rescue-access-related exterior markings, 
signage, or instructions at or near their locations that are missing, 
illegible, or inconspicuous. Such a car may be operated in passenger 
service until the car's next periodic mechanical inspection required 
under Sec.  238.307, when it would have to be repaired or removed from 
service. FRA believes this

[[Page 6394]]

flexibility is necessary because each sleeping compartment intended to 
be occupied by passengers or train crewmembers is required to have a 
minimum of one rescue access window in the compartment under Sec.  
238.114 and most sleeping compartments have only one window. If two 
consecutive windows were missing exterior markings, signage, or 
instructions, an emergency responder would still be readily able to 
gain access via the window by relying on the signage, markings, or 
instructions posted at a nearby window.
    Paragraph (e)(18)(iv) requires that a record of any noncomplying 
marking, signage, or instruction described in paragraphs (e)(18)(i) 
through (iii) be maintained. This record must contain the date and time 
that the defective condition was first discovered, and must be retained 
until all necessary repairs have been completed. These records are 
necessary for purposes of tracking when the defect was first discovered 
and will be utilized in determining when repairs have to be made on 
cars that remain in passenger service. Most commuter and intercity 
railroads already keep this type of record electronically.
Section 238.305 Interior Calendar Day Mechanical Inspection of 
Passenger Cars
    This section contains the requirements related to the performance 
of interior calendar day mechanical inspections of passenger cars 
(e.g., passenger coaches, MU locomotives, and cab cars) each calendar 
day that the equipment is used in service. Paragraph (c) identifies the 
various components that are required to be inspected as part of the 
interior calendar day mechanical inspection. Except as provided in 
paragraphs (c)(8) through (c)(12), and in paragraph (d), all 
noncomplying conditions under this section must be repaired at the time 
of the daily interior inspection or the equipment is required to be 
locked-out and empty in order to be placed or remain in passenger 
service. FRA notes that it has revised the introductory text of 
paragraph (c) to expressly reference paragraphs (c)(8) through (c)(12), 
removing the reference to paragraphs (c)(5) through (c)(7). Paragraphs 
(c)(5) through (c)(7) do not contain any exceptions themselves. 
Instead, paragraph (d) references these paragraphs, and it is by 
operation of paragraph (d) that exceptions are provided. FRA makes 
clear that removing the reference to paragraphs (c)(5) and (c)(7) in 
the introductory text of paragraph (c) does not have any effect on the 
exceptions currently provided in this section.
    As proposed in the NPRM, FRA has also slightly modified paragraph 
(c)(10) in order to add a condition under which a car with noncompliant 
end doors and side doors may continue in passenger service pursuant to 
paragraph (d) of this section. The former conditions for such operation 
were that at least one operative and accessible door be available on 
each side of the car and a notice be prominently displayed directly on 
the defective door indicating that the door is defective. In addition 
to those conditions, this paragraph now requires that the train crew be 
provided written notification of the noncompliant condition. This 
additional measure is intended to ensure that crewmembers are aware of 
a door that may not be available for use in an emergency situation that 
requires the off-loading of passengers. Without this additional 
measure, train crews may not realize a door is defective until they 
actually try to use it. If an emergency requiring the rapid off-loading 
of passengers should occur before the crew notices that the door is 
inoperative, then the crew might direct passengers to that door, which 
could unnecessarily delay the evacuation of the train.
    FRA has also added new paragraph (c)(12) to cover the inspection of 
PA and intercom systems. Paragraph (c)(12) contains requirements for 
ensuring that, on passenger cars so equipped, PA and intercom systems 
are operative and function as intended as part of the interior calendar 
day mechanical inspection. This paragraph also affords flexibility for 
handling noncompliant equipment, provided that the train crew is given 
written notification of the defect and a record of the time and date 
the defect was discovered is maintained. Thus, a passenger car with an 
inoperative or nonfunctioning PA or intercom system is permitted to 
remain in passenger service until no later than the car's fourth 
interior calendar day mechanical inspection or next periodic mechanical 
inspection required under Sec.  238.307, whichever occurs first, or for 
a passenger car used in long-distance intercity train service until the 
eighth interior calendar day mechanical inspection or next periodic 
mechanical inspection required under Sec.  238.307, whichever occurs 
first, after the noncompliant condition is discovered. At that time, 
the PA or intercom system, or both, would have to be repaired, or the 
car would have to be removed from service.
    In developing the rule, railroad representatives on the Task Force 
noted that PA systems are currently inspected on a daily basis and any 
necessary repairs are made at the first convenient opportunity. The 
provision requiring that the train crew be given written notification 
of any noncompliant PA or intercom system is intended to ensure that 
the crew is aware of any nonfunctioning system(s) and will not rely 
upon any such system for communication in the event of an emergency 
situation. Without such notification, the train crew could mistakenly 
rely on a system that is inoperative, which could potentially hinder 
resolution of an emergency situation where the crew relies on using the 
PA or intercom system to communicate instructions or warnings of 
hazards to passengers.
    In modifying paragraph (c), FRA has reserved paragraph (c)(11) for 
a contemplated requirement that all low-location emergency exit path 
markings be in place and conspicuous as part of the interior calendar 
day mechanical inspection. Low-location emergency exit path markings 
provide a visual means for passenger car occupants to locate emergency 
door exits under conditions of limited visibility due to darkness or 
the presence of smoke, or both. FRA intends to propose minimum 
standards for low-location emergency exit path markings in a separate 
NPRM on passenger train emergency systems.
    Finally, as discussed in the NPRM, FRA considered clarifying 
paragraph (c)(7), the interior calendar day inspection requirement that 
``[a]ll safety-related signage is in place and legible.'' 71 FR 50297. 
FRA considered including in paragraph (c)(7) express references to 
signage, as well as markings and instructions, required by parts 238 
and 239. FRA invited comment on whether such clarification should be 
provided in the final rule. No comment was received, and, in discussing 
this issue with the Task Force, the Task Force did not recommend making 
a change in the final rule, as this was already clear. FRA does not 
believe a change is necessary at this time, but may make modifications 
related to the possible incorporation by reference of the APTA signage 
standard in a future rulemaking.
Section 238.307 Periodic Mechanical Inspection of Passenger Cars and 
Unpowered Vehicles Used in Passenger Trains
    This section contains the requirements for performing periodic 
mechanical inspections on all passenger cars and all unpowered vehicles 
used in passenger trains. Paragraph (c) identifies the various 
components that are required to be inspected as part of the periodic 
mechanical inspection that is required to be conducted no less

[[Page 6395]]

frequently than every 184 days. FRA has modified paragraph (c)(5), 
which requires in paragraph (c)(5)(i) that emergency lighting systems 
be inspected no less frequently than every 184 days to determine that 
they are in place and operational, to reserve requirements in paragraph 
(c)(5)(ii) for the periodic inspection of other emergency systems in 
this timeframe, such as low-location exit path marking. As discussed 
above, FRA intends to propose minimum standards for low-location 
emergency exit path marking in a separate rulemaking on passenger train 
emergency systems.
    FRA notes that if emergency lighting is found to be defective at 
any time other than the periodic mechanical inspection required by 
paragraph (c)(5)(i), it still must be brought into compliance pursuant 
to the provisions contained in Sec.  238.17 related to non-running-gear 
defects.
    FRA had proposed to include periodic inspection requirements within 
the 184-day timeframe for emergency roof access markings and 
instructions. However, FRA has decided to require that emergency roof 
access markings and instructions be inspected no less frequently than 
every 368 days, as provided in paragraph (d) of this section. As 
discussed earlier, in commenting on the NPRM, Caltrans requested that 
FRA extend the interval between inspections for roof access markings 
and instructions to a maximum of 368 days, instead of the 184 days that 
FRA had proposed. Caltrans stated that it maintains its passenger 
equipment on a 120-day maintenance cycle, and that a requirement to 
inspect the roof access markings and instructions every 184 days would 
result in Caltrans having to inspect them every 120 days. Caltrans 
stated that this would increase costs and the potential for employee 
injury, as each of its inspection requires the use of a man-lift or 
harness for an employee to safely inspect the markings.
    This comment was referred to the Task Force and, with Caltrans' 
representatives present, the Task Force discussed this comment. 
Commuter railroads indicated that they had been operating cars with 
roof access locations for several years or more and that roof access 
markings and instructions had remained legible and conspicuous during 
that time. These railroads noted that vandalism has not been a concern 
for rooftops, and that vandals are much more likely to vandalize the 
sides of cars, which are much more easily accessible. Further, sign 
vendors stated that retroreflective roof access markings hold up well 
in the elements and should easily be expected to go for at least a year 
without becoming illegible or inconspicuous. The Task Force also 
considered that some railroads do not have facilities from which they 
can easily and safely observe the rooftops of their equipment, and 
agreed that inspecting roof access markings would be more safely 
conducted when the equipment is out of service at a maintenance 
facility. The Task Force recommended that FRA require emergency roof 
access markings and instructions to be inspected not less frequently 
than every 368 days, instead of the 184 days as proposed. FRA agrees 
with the Task Force's recommendation, considering the favorable 
maintenance experience cited and the potential costs involved. FRA 
believes that a yearly inspection of roof access markings and 
instructions is sufficient to ensure that they are in place, 
conspicuous, and legible.

Subpart E--Specific Requirements for Tier II Passenger Equipment

Section 238.437 [Reserved]
    This section formerly contained the emergency communication 
requirements for Tier II passenger equipment. These requirements have 
been moved to new Sec.  238.121 (``Emergency communication'') to be 
integrated with the new emergency communication system requirements for 
Tier I passenger equipment, as stated above. This is consistent with 
FRA's desire to prescribe, to the extent possible, the same emergency 
system requirements for all passenger trains, regardless of train 
speed. Section 238.437 is therefore being removed and reserved. Please 
see Sec.  238.121 for a discussion of the emergency communication 
system requirements for Tier II passenger equipment.
Section 238.441 Emergency Roof Access
    In issuing the Passenger Equipment Safety Standards, FRA required 
that Tier II passenger equipment have either a roof hatch or a clearly 
marked structural weak point in the roof to provide quick access for 
properly equipped emergency response personnel. See 64 FR 25689. FRA 
stated that the final rule did not contain such requirements for Tier I 
passenger equipment and that there was no consensus within the 
Passenger Equipment Safety Standards Working Group to do so. See 64 FR 
25642. Nevertheless, FRA noted that it believed that APTA PRESS Task 
Force efforts would address requirements for Tier I passenger equipment 
and that FRA intended to reexamine the requirements of this section in 
a future rulemaking with a view to applying emergency roof access 
requirements to Tier I passenger equipment. Id.
    As discussed above, in Sec.  238.123 FRA is applying emergency roof 
access requirements to Tier I passenger equipment and making the 
requirements the same for new Tier I and Tier II passenger cars. In 
doing so, FRA is revising Sec.  238.441, including the section heading, 
to reconcile the requirements of these sections and thereby limit the 
application of these separate requirements in Sec.  238.441 to existing 
Tier II passenger cars and to any Tier II power car (whether existing 
or new). At the same time, FRA is increasing the required dimensions of 
emergency roof access locations for existing Tier II passenger 
equipment, and providing general marking and instruction requirements 
for such equipment. FRA believes that existing Tier II passenger 
equipment is in compliance with these requirements, as revised, and 
that these revisions more closely approximate the requirements for new 
passenger equipment. FRA notes that all existing Tier II passenger cars 
were built with the same design, thus once an emergency responder has 
learned of the location of the roof access point on one passenger car, 
the responder has learned it for all passenger cars. Given this and the 
fact that there are a limited number of existing Tier II equipment, FRA 
has decided to limit the applicability of certain provisions to new 
Tier II passenger cars and power cars only.
    Paragraph (a). Specifically, paragraph (a) has been revised to 
limit its applicability to Tier II passenger cars and power cars both 
ordered prior to April 1, 2009 and placed in service for the first time 
prior to April 1, 2011. Paragraph (a) has also been modified to revise 
the dimensions of the required opening from 18 inches by 24 inches, to 
24 inches by 26 inches to be consistent with the requirements for Tier 
I passenger equipment. In addition, paragraph (a) has been revised to 
require that each emergency roof access location be conspicuously 
marked, and that legible and understandable operating instructions be 
posted at or near each such location.
    The fundamental differences between the requirements in Sec.  
238.123 for new passenger cars and those contained in revised paragraph 
(a) of Sec.  238.441 for existing Tier II passenger cars and Tier II 
power cars are as follows: The number of required emergency roof access 
locations (two in Sec.  238.123, and one in Sec.  238.441), the marking 
requirements (``conspicuously marked with

[[Page 6396]]

retroreflective material of contrasting color'' in Sec.  238.123, and 
``conspicuously marked'' in Sec.  238.441), and the specifications for 
their location (detailed specifications are contained in Sec.  238.123, 
while more general requirements are in Sec.  238.441). These 
differences reflect the consideration given to existing equipment built 
in compliance with Sec.  238.441 of the 1999 final rule, and also 
recognize that a requirement for two emergency roof access locations on 
a Tier II power car would not be reasonable given that the only 
normally occupied area in such a car is the cab compartment, in which 
only one emergency roof access location can be placed.
    Paragraph (b). Paragraph (b) has been revised to make clear that 
each Tier II passenger car ordered on or after April 1, 2009, or placed 
in service for the first time on or after April 1, 2011, is required to 
comply with the emergency roof access requirements specified in Sec.  
238.123. Section 238.123 subjects new Tier I and Tier II passenger cars 
to the same emergency roof access requirements, and this revision to 
paragraph (b) is intended to conform with that section's requirements.
    As specified in paragraph (b), new Tier II passenger cars are 
required to comply with the standards contained in Sec.  238.123, which 
were developed exclusively for passenger cars.
    Paragraph (c). Paragraph (c) has been added to address new Tier II 
power cars. FRA believes that Tier II power cars--both new and 
existing--should continue to be subject to emergency roof access 
requirements, and that the requirements for emergency roof access in 
Sec.  238.123 should generally apply to this equipment as well. 
However, as Sec.  238.123 was developed specifically for passenger 
cars, its requirements simply cannot be referenced in their entirety 
for Tier II power cars. In particular, unlike the requirements of Sec.  
238.123, only one emergency roof access location is necessary for a 
power car. As a result, FRA has specifically limited the portions of 
Sec.  238.123 that are applicable to new power cars. Paragraph (c) 
requires that each power car ordered on or after April 1, 2009, or 
placed in service for the first time on or after April 1, 2011, have a 
minimum of one emergency roof access location, with a minimum opening 
of 26 inches longitudinally by 24 inches laterally, and comply with the 
emergency roof access requirements specified in Sec. Sec.  238.123(b), 
(d), and (e).

Appendix A to Part 238--Schedule of Civil Penalties

    This appendix contains a schedule of civil penalties to be used in 
connection with this part. Because such penalty schedules are 
statements of agency policy, notice and comment are not required prior 
to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA invited 
comment on the proposed penalty schedule, but no comment was received.
    FRA has amended the penalty schedule to reflect changes made to 
part 238. Specifically, FRA has added entries for new Sec. Sec.  
238.114, 238.121, and 238.123; removed and reserved the entry for Sec.  
238.437; revised the entry for Sec.  238.441; revised footnote 1; and 
added footnote 2 to clarify the use of penalty codes in the penalty 
schedule.

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures, and determined not to be significant under 
both Executive Order 12866 and DOT policies and procedures. See 44 FR 
11034 (Feb. 26, 1979). FRA has prepared and placed in the docket a 
regulatory evaluation addressing the economic impact of this final 
rule. Document inspection and copying facilities are available at the 
Docket Management Facility, U.S. Department of Transportation, West 
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Docket material is also available for inspection 
on the Internet at http://www.regulations.gov. Photocopies may also be 
obtained by submitting a written request to the FRA Docket Clerk at 
Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to 
Docket No. FRA 2006-25273.
    Certain of the requirements reflect current industry practice, or 
restate existing regulations, or both. As a result, in calculating the 
costs of this final rule, FRA has neither included the costs of those 
actions that would be performed voluntarily in the absence of a 
regulation, nor has FRA included the costs of those actions that would 
be required by an existing regulation.
    As presented in the following table, FRA estimates that the present 
value (PV) of the total 20-year costs which the industry would be 
expected to incur to comply with the requirements in this final rule is 
$15.5 million:

                        20-Year PV Costs Incurred
------------------------------------------------------------------------
                                                              20-year PV
                        Description                           total ($)
------------------------------------------------------------------------
Costs:
(238.113) Emergency Window Exits:
  --Installation of pull handles/gaskets in two                   $4,050
   intermediate level windows..............................
  --Replacement of instructions for window removal to             10,800
   ensure that potential hindrances are addressed..........
  --Installation of pull handles/gaskets in four                   1,440
   intermediate level windows..............................
(238.114) Rescue Access Windows:
  --Installation of two windows per car....................      163,880
  --Marking and instructions...............................        3,840
(238.121) Emergency Communication:
  --Addition of second intercom transmission location......      213,675
  --Addition of outside speaker for public address system..      101,565
(238.123) Emergency Roof Access............................
  --Structural weak points--engineering redesign...........       80,000
  --Structural weak points--additional materials...........      117,250
  --Platform ladder........................................        1,700
(238.303, 238.305, and 238.307) Exterior, Interior, and       14,808,086
 Periodic Inspection, Testing, and Maintenance.............
                                                            ------------
    Total Costs............................................   15,506,286
------------------------------------------------------------------------

    If over the 20-year period covered by the regulatory evaluation the 
equivalent of 7.7 lives would be saved as a result of implementing the 
requirements (from a combination of fatalities prevented, and injuries 
avoided or minimized), the final rule would be cost-justified by the 
safety benefits alone. FRA believes it is reasonable to expect that the 
safety benefits would exceed the costs of the requirements. Although 
passenger railroads offer the traveling public one of the safest forms 
of transportation available, the potential for injuries and loss of 
life in certain situations is very high. Nevertheless, FRA cannot 
predict with reasonable confidence the actual numbers of lives that 
would be saved. The number and severity of each future passenger train 
accident or incident would determine the ultimate effectiveness of the 
requirements; these cannot be forecast with a level of precision that 
would allow us to predict the actual need for the measures in the rule. 
Yet, FRA believes that the requirements protect passengers and crew 
members against known safety concerns in a cost-effective manner. These 
safety concerns are discussed in

[[Page 6397]]

detail, above, in the preamble to this final rule.
    In particular, as discussed in Section III.C., the requirement for 
an intercom system on Tier I passenger trains is intended to allow 
passengers to communicate to the crew a medical emergency, report a 
fire onboard the train, or provide notification of other emergency 
situations as quickly as may be necessary. In fact, some passenger 
lives may have already been saved at least in part due to the 
availability of an intercom system because fellow passengers were able 
to use the intercom to alert a crewmember that a passenger onboard 
their car was experiencing a medical emergency. This led the crew to 
call the dispatcher to arrange for prompt medical attention at a nearby 
station. FRA believes that over the next 20 years the availability of 
an intercom system to passengers may save the life of one or more 
passengers experiencing a medical emergency.
    The availability of an intercom system to passengers may also save 
the life of one or more passengers in other emergency situations. For 
example, on December 7, 1993, a gunman opened fire onboard an LIRR 
commuter train traveling between New Hyde Park and Garden City, NY, 
killing 6 people and injuring 19 others before he was overpowered by 
passengers. No intercom system was available to the passengers, and the 
train crew was not aware of the situation until the train arrived at 
the next station where police happened to be present on the platform. 
The availability of an intercom system to passengers in such a 
situation could allow passengers to provide notification to the crew in 
a timely manner so that the crew could contact the appropriate 
authorities to obtain emergency assistance and take other necessary 
action. This may include providing a direct warning over the train's 
public address system both to passengers on the train as well as to 
passengers in the immediate vicinity of the train on the station 
platform. The final rule does require that Tier I passenger trains be 
equipped with public address systems.
    Further, over the past 20 years, other accidents and incidents have 
occurred where, if they were to recur, the availability of the safety 
features required by this final rule might save lives or prevent or 
minimize injuries. For instance, 11 lives were lost in a February 16, 
1996 collision between a Maryland Rail Commuter (MARC) train and an 
Amtrak passenger train in Silver Spring, Maryland. The collision 
breached a fuel tank of an Amtrak locomotive, spraying fuel into the 
lead vehicle of the MARC train, which erupted in fire. The fire and 
collision trapped a number of people in the lead vehicle. Having rescue 
access windows available to emergency responders on the scene of such a 
situation in the future might facilitate the rescue of one or more 
passengers.
    Similar accidents and incidents have unique circumstances that 
ultimately determine their severity in terms of casualties, and actual 
future events cannot be predicted with certainty. Nonetheless, it is 
possible that over the next 20 years the safety features required by 
this final rule will preserve life in a single event in an amount that 
exceeds the entire estimated costs of the rule.

B. 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 Docket Management Facility, U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material is 
also available for inspection on the Internet at http://www.regulations.gov. Photocopies may also be obtained by submitting a 
written request to the FRA Docket Clerk at Office of Chief Counsel, 
Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue, 
SE., Washington, DC 20590; please refer to Docket No. FRA 2006-25273.
    The AISE developed in connection with this final rule concludes 
that this rule will not have a significant economic impact on a 
substantial number of small entities. The principal entities impacted 
by the rule are governmental jurisdictions or transit authorities--none 
of which is small for purposes of the United States Small Business 
Administration (i.e., no entity serves a locality with a population 
less than 50,000). These entities also receive Federal transportation 
funds. Although these entities are not small, the level of costs 
incurred by each entity should generally vary in proportion to either 
the size of the entity, or the extent to which the entity purchases 
newly manufactured passenger equipment, or both. Tourist, scenic, 
excursion, and historic passenger railroad operations are exempt from 
the new requirements in the rule, and, therefore, these smaller 
operations will not incur any costs.
    The final rule does impact passenger car manufacturers. However, 
these entities are principally large international corporations that 
are not considered small entities. Some manufacturers and suppliers of 
emergency signage and communication systems may be impacted by the 
rule, and these may be small entities. Yet, FRA believes that any 
impact on these entities will neither be significant nor negative, to 
the extent that the demand for products and services that they provide 
actually increases.
    Having made these determinations, 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.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under 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:

----------------------------------------------------------------------------------------------------------------
                                 Respondent                                       Total annual
     CFR section--49 CFR          universe       Total annual     Average time    burden hours     Total annual
                                 (railroads)       responses      per response    (in minutes)     burden cost
----------------------------------------------------------------------------------------------------------------
238.113--Emergency Window                  22  662 markings....       60/90/120             964  $0 (Included in
 Exits: Markings and                                                                              Reg. Eval.).
 Instructions.
238.114--Rescue Access                     22  1,092 markings..              45             819  $0 (Included in
 Windows: Markings and                                                                            Reg. Eval.).
 Instructions.
238.121--Emergency                         22  116 markings....               5              10  $410.
 Communication--Intercom
 System: Markings and
 Instructions.

[[Page 6398]]

 
238.123--Emergency Roof                    22  232 marked                    30             116  $0 (Included in
 Access: Markings and                           locations.                                        Reg. Eval.).
 Instructions.
238.303--Exterior Calendar
 Day Mechanical Inspection of
 Passenger Equipment:
    --Repair/Replacement of                22  150 replacement               20              50  $2,050.
     Non-Complying Rescue                       markings.
     Access Markings.
    --Records of Non-                      22  150 records.....               2               5  $205.
     Complying Markings.
238.305--Interior Calendar
 Day Mechanical Inspection of
 Passenger Cars:
    --Non-Complying                        22  260                            1               9  $369.
     Conditions of End Doors                    notifications +
     and Side Doors of                          260 notices.
     Passenger Cars.
    --Written Notification to              22  300                            1               5  $205.
     Train Crew of                              notifications.
     Inoperative/Non-
     Functioning Public
     Address and Intercom
     Systems.
    --Records of Non-                      22  300 records.....               2              10  $410.
     Compliance with
     Requirements of Section
     238.305(d)(3).
238.307--Periodic Mechanical               22  32 replacement                20              11  $451.
 Inspection of Passenger Cars                   markings/
 and Unpowered Vehicles Used                    instructions.
 in Passenger Trains:
 Replacement of Non-complying
 Emergency Roof Access
 Markings and Instructions.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions, 
searching existing data sources, gathering or maintaining the needed 
data, and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at (202) 493-6292 or via e-mail at 
[email protected]; or contact Ms. Gina Christodoulou at (202) 493-
6139 or via e-mail at [email protected].
    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 final rule 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. Send any comments to: 
The Office of Management and Budget, 725 17th Street, NW., Washington, 
DC 20503, Attn: FRA OMB Desk Officer; or via e-mail at [email protected]. The OMB control number, when assigned, will be 
announced by separate notice in the Federal Register.
    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.

D. Federalism Implications

    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132, issued on August 4, 
1999, which directs Federal agencies to exercise great care in 
establishing policies that have federalism implications. See 64 FR 
43255. This final rule will not have a substantial direct 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.
    One of the fundamental Federalism principles, as stated in Section 
2(a) of Executive Order 13132, is that ``Federalism is rooted in the 
belief that issues that are not national in scope or significance are 
most appropriately addressed by the level of government closest to the 
people.'' Congress expressed its intent that there be national 
uniformity of regulation concerning railroad safety matters when it 
enacted 49 U.S.C. 20106, which provides that all regulations prescribed 
by the Secretary of Transportation with respect to railroad safety 
matters and the Secretary of Homeland Security with respect to railroad 
security matters preempt any State law, regulation, or order covering 
the same subject matter, except a provision necessary to eliminate or 
reduce an essentially local safety or security hazard that is not 
incompatible with a Federal law, regulation, or order and that does not 
unreasonably burden interstate commerce. This intent was expressed even 
more specifically in 49 U.S.C. 20133, which mandated that the Secretary 
of Transportation prescribe ``regulations establishing minimum 
standards for the safety of cars used by railroad carriers to transport 
passengers'' and consider such matters as ``emergency response 
procedures and equipment'' before prescribing such regulations. This 
final rule is intended to add to and enhance the regulations issued 
pursuant to 49 U.S.C. 20133.
    FRA notes that the above factors have been considered throughout 
the development of this final rule both internally and through 
consultation within the RSAC forum, as described in Section II of this 
preamble. The full RSAC, which, prior to the publication of the NPRM, 
reached consensus on the proposed rule text and recommended the 
proposal to FRA, has as permanent voting members two organizations 
representing State and local interests: AASHTO and ASRSM. As such, 
these State organizations concurred with the proposed requirements, 
which differ in only limited respects from the requirements contained 
in this final 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 from any other representative.
    For the foregoing reasons, FRA believes that this final rule is in 
accordance with the principles and criteria contained in Executive 
Order 13132.

[[Page 6399]]

E. Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(see 64 FR 28545 (May 26, 1999)) as required by the National 
Environmental Policy Act (see 42 U.S.C. 4321 et seq.), other 
environmental statutes, Executive Orders, and related regulatory 
requirements. FRA has determined that this final rule is not a major 
FRA action (requiring the preparation of an environmental impact 
statement or environmental assessment) because it is categorically 
excluded from detailed environmental review pursuant to section 
4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26, 1999). 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.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. No. 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 $100,000,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
The final rule will not result in the expenditure, in the aggregate, of 
$100,000,000 or more (as adjusted annually for inflation) in any one 
year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
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.

H. Trade Impact

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et 
seq.) prohibits Federal agencies from engaging in any standards or 
related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    FRA has assessed the potential effect of this final rule on foreign 
commerce and believes that its requirements are consistent with the 
Trade Agreements Act. The requirements imposed are safety standards, 
which, as noted, are not considered unnecessary obstacles to trade. 
Moreover, FRA has sought, to the extent practicable, to state the 
requirements in terms of the performance desired, rather than in more 
narrow terms restricted to a particular design, so as not to limit 
different, compliant designs by any manufacturer--foreign or domestic.
    For related discussion on the international effects of part 238, 
please see the preamble to the May 12, 1999 Passenger Equipment Safety 
Standards final rule on the topic of ``United States international 
treaty obligations.'' See 64 FR 25545.

I. Privacy Act

    Anyone is able to search the electronic form of all comments or 
petitions for reconsideration received into any of FRA's dockets by the 
name of the individual submitting the comment or petition for 
reconsideration (or signing the comment or petition for 
reconsideration, 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 (65 FR 19477-78), 
or you may visit http://DocketsInfo.dot.gov.

List of Subjects

49 CFR Part 223

    Glazing standards, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

49 CFR Part 238

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

The Rule

0
For the reasons discussed in the preamble, parts 223 and 238 of chapter 
II, subtitle B of title 49, Code of Federal Regulations are amended as 
follows:

PART 223--[AMENDED]

0
1. The authority citation for part 223 is revised to read as follows:

    Authority: 49 U.S.C. 20102-20103, 20133, 20701-20702, 21301-
21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.

Subpart A--General

0
2. Section 223.5 is amended by removing the definitions of ``Emergency 
responder'' and ``Passenger train service''; and by revising the 
definition of ``Emergency window'' to read as follows:


Sec.  223.5  Definitions.

* * * * *
    Emergency window means the segment of a side-facing glazing panel 
that has been designed to permit rapid and easy removal from inside a 
passenger car in an emergency situation.
* * * * *

Subpart B--Specific Requirements

0
3. Section 223.9 is amended by removing paragraph (d); and by revising 
paragraph (c) to read as follows:

[[Page 6400]]

Sec.  223.9  Requirements for new or rebuilt equipment.

* * * * *
    (c) Passenger cars, including self-propelled passenger cars, built 
or rebuilt after June 30, 1980, must be equipped with certified glazing 
in all windows and at least four emergency windows.

0
4. Appendix B to part 223 is amended by revising the entry for section 
223.9; and by revising footnote 1 to read as follows:

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

    \1\ A penalty may be assessed against an individual only for a 
willful violation. The Administrator reserves the right to assess a 
penalty of up to $27,000 for any violation where circumstances 
warrant. See 49 U.S.C. 21301, 21304, and 49 CFR part 209, appendix 
A. If more than one item is listed as a type of violation of a given 
section, each item is also designated by a ``penalty code,'' which 
is used to facilitate assessment of civil penalties, and which may 
or may not correspond to any subsection designation(s). For 
convenience, penalty citations will cite the CFR section and the 
penalty code, if any. FRA reserves the right, should litigation 
become necessary, to substitute in its complaint the CFR citation in 
place of the combined CFR and penalty code citation, should they 
differ.

------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
------------------------------------------------------------------------
223.9 New or rebuilt equipment:
    (a) Locomotives...........................       $2,500       $5,000
    (b) Cabooses..............................        2,500        5,000
    (c) Passenger cars........................        2,500        5,000
------------------------------------------------------------------------

* * * * *

PART 238--[AMENDED]

0
5. 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.

Subpart A--General

0
6. Section 238.5 is amended by revising the definition of ``Emergency 
window'' and by adding the definitions of ``Dual-function window,'' 
``Emergency responder,'' ``Intercom,'' ``Intercom system,'' 
``Intermediate level,'' ``Main level,'' ``PA System,'' ``Passenger 
compartment,'' ``Rescue access window,'' ``Retroreflective material,'' 
and ``Seating area'' to read as follows:


Sec.  238.5  Definitions.

* * * * *
    Dual-function window means a window that is intended to serve as 
both an emergency window exit and a rescue access window and that meets 
the applicable requirements set forth in both Sec. Sec.  238.113 and 
238.114.
* * * * *
    Emergency responder means a member of a police or fire department, 
or other organization involved with public safety charged with 
providing or coordinating emergency services, who responds to a 
passenger train emergency.
    Emergency window means the segment of a side-facing glazing panel 
that has been designed to permit rapid and easy removal from inside a 
passenger car in an emergency situation.
* * * * *
    Intercom means a device through which voice communication is 
transmitted and received.
    Intercom system means a two-way, voice communication system.
* * * * *
    Intermediate level means a level of a multi-level passenger car 
that is used for passenger seating and is normally located between two 
main levels. An intermediate level normally contains two, separate 
seating areas, one at each end of the car, and is normally connected to 
each main level by stairs.
* * * * *
    Main level means a level of a passenger car that contains a 
passenger compartment whose length is equal to or greater than half the 
length of the car.
* * * * *
    PA system (or public address system) means a one-way, voice 
communication system.
* * * * *
    Passenger compartment means an area of a passenger car that 
consists of a seating area and any vestibule that is connected to the 
seating area by an open passageway.
* * * * *
    Rescue access window means a side-facing exterior window intended 
for use by emergency responders to gain access to passengers in an 
emergency situation.
* * * * *
    Retroreflective material means a material that is capable of 
reflecting light rays back to the light source and that conforms to the 
specifications for Type I Sheeting as specified in ASTM International 
Standard D 4956-07, ``Standard Specification for Retroreflective 
Sheeting for Traffic Control.'' The Director of the Federal Register 
approves the incorporation by reference of this standard in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the 
incorporated standard from ASTM International, 100 Barr Harbor Drive, 
P.O. Box C700, West Conshohocken, PA 19428-2959. You may inspect a copy 
of the incorporated standard at the Federal Railroad Administration, 
Docket Clerk, 1200 New Jersey Avenue, SE., Washington, DC, 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/cfr/ibr-locations.html.
* * * * *
    Seating area means an area of a passenger car that normally 
contains passenger seating.
* * * * *

0
7. Section 238.17 is amended by revising the introductory text of 
paragraphs (b) and (c) 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 inspection. Except as provided in 
Sec. Sec.  238.303(e)(15), (e)(17) and (e)(18), 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:
* * * * *
    (c) Limitations on movement of passenger equipment that develops 
defects en route. Except as provided in Sec. Sec.  238.303(e)(15), 
(e)(17) and (e)(18), 238.305(c), 238.307(c)(1), and 238.503(f), 
passenger equipment that develops en route to its destination,

[[Page 6401]]

after its calendar day mechanical inspection is performed and before 
its next calendar day mechanical inspection is performed, any condition 
not in compliance with this part, other than a power brake defect, may 
be moved only if the railroad complies with all of the following 
requirements or, if applicable, the specified requirements in paragraph 
(e) of this section:
* * * * *

Subpart B--Safety Planning and General Requirements

0
8. Section 238.113 is revised to read as follows:


Sec.  238.113  Emergency window exits.

    (a) Number and location. Except as provided in paragraph (a)(3) of 
this section, the following requirements in this paragraph (a) apply on 
or after April 1, 2008--
    (1) Single-level passenger cars. Each single-level passenger car 
shall have a minimum of four emergency window exits. At least one 
emergency window exit shall be located in each side of each end (half) 
of the car, in a staggered configuration where practical. (See Figure 1 
to this subpart; see also Figures 1b and 1c to this subpart.)
    (2) Multi-level passenger cars--main levels. Each main level in a 
multi-level passenger car is subject to the same requirements specified 
for single-level passenger cars in paragraph (a)(1) of this section.
    (3) Multi-level passenger cars--levels with seating areas other 
than main levels.
    (i) Except as provided in paragraphs (a)(3)(ii) and (iii) of this 
section, on or after August 1, 2009, any level other than a main level 
used for passenger seating in a multi-level passenger car, such as an 
intermediate level, shall have a minimum of two emergency window exits 
in each seating area. The emergency window exits shall be accessible to 
passengers in the seating area without requiring movement through an 
interior door or to another level of the car. At least one emergency 
window exit shall be located in each side of the seating area. An 
emergency window exit may be located within an exterior side door in 
the passenger compartment if it is not practical to place the window 
exit in the side of the seating area. (See Figures 2 and 2a to this 
subpart.)
    (ii) Only one emergency window exit is required in a seating area 
in a passenger compartment if:
    (A) It is not practical to place an emergency window exit in a side 
of the passenger compartment due to the need to provide accessible 
accommodations under the Americans with Disabilities Act of 1990;
    (B) There are no more than four seats in the seating area; and
    (C) A suitable, alternate arrangement for emergency egress is 
provided.
    (iii) For passenger cars ordered prior to April 1, 2009, and placed 
in service prior to April 1, 2011, only one emergency window exit is 
required in a seating area in a passenger compartment if--
    (A) It is not practicable to place a window exit in a side of the 
passenger compartment (due to the presence of a structure such as a 
bathroom, electrical locker, or kitchen); and
    (B) There are no more than eight seats in the seating area.
    (4) Cars with a sleeping compartment or similar private 
compartment. Each level of a passenger car with a sleeping compartment 
or a similar private compartment intended to be occupied by a passenger 
or train crewmember shall have at least one emergency window exit in 
each such compartment. For purposes of this paragraph (a)(4), a 
bathroom, kitchen, or locomotive cab is not considered a 
``compartment.''
    (b) Ease of operability. On or after November 8, 1999, each 
emergency window exit shall be designed to permit rapid and easy 
removal from the inside of the car during an emergency situation 
without requiring the use of a tool or other implement.
    (c) Dimensions. Except as provided in paragraphs (c)(1) and (c)(2) 
of this section, each emergency window exit in a passenger car, 
including a sleeping car, ordered on or after September 8, 2000, or 
placed in service for the first time on or after September 9, 2002, 
shall have an unobstructed opening with minimum dimensions of 26 inches 
horizontally by 24 inches vertically. A seatback is not an obstruction 
if it can be moved away from the window opening without using a tool or 
other implement.
    (1) Emergency window exits in exterior side doors. An emergency 
window exit located within an exterior side door, in accordance with 
the requirements of paragraph (a)(3)(i) of this section, may have an 
unobstructed opening with minimum dimensions of 24 inches horizontally 
by 26 inches vertically.
    (2) Additional emergency window exits. Any emergency window exit in 
addition to the minimum number required by paragraph (a) of this 
section that has been designated for use by the railroad need not 
comply with the minimum dimension requirements in paragraph (c) of this 
section, but must otherwise comply with all requirements in this part 
applicable to emergency window exits.
    (d) Marking and instructions. (1) Each emergency window exit shall 
be conspicuously and legibly marked with luminescent material on the 
inside of each car to facilitate passenger egress.
    (2) Legible and understandable operating instructions, including 
instructions for removing the window, shall be posted at or near each 
such window exit. If window removal may be hindered by the presence of 
a seatback, headrest, luggage rack, or other fixture, the instructions 
shall state the method for allowing rapid and easy removal of the 
window, taking into account the fixture(s), and this portion of the 
instructions may be in written or pictorial format.

0
9. Section 238.114 is added to read as follows:


Sec.  238.114  Rescue access windows.

    (a) Number and location. Except as provided in paragraph (a)(1)(ii) 
of this section, the following requirements in this paragraph (a) apply 
on or after April 1, 2008--
    (1) Single-level passenger cars. Except as provided in this 
paragraph (a)(1) and in paragraphs (a)(1)(i), (a)(1)(ii), and (a)(5) of 
this section, each single-level passenger car shall have a minimum of 
two rescue access windows. At least one rescue access window shall be 
located in each side of the car entirely within 15 feet of the car's 
centerline, or entirely within 7\1/2\ feet of the centerline if the car 
does not exceed 45 feet in length. (See Figure 1a to this subpart; see 
also Figures 1b and 1c to this subpart.) If the seating level is 
obstructed by an interior door or otherwise partitioned into separate 
seating areas, each separate seating area shall have a minimum of one 
rescue access window in each side of the seating area, located as near 
to the center of the car as practical.
    (i) For a single-level passenger car ordered prior to April 1, 
2009, and placed in service prior to April 1, 2011, rescue access 
windows may be located farther than the above prescribed distances from 
the car's centerline, or located within exterior side doors, or both, 
if at least one rescue access window is located within each side of 
each end (half) of the same passenger compartment.
    (ii) For a single-level passenger car ordered prior to September 8, 
2000, and placed in service prior to September 9, 2002, the 
requirements of paragraph (a)(1) apply on or after August 1, 2009 if 
the car has at least two exterior side doors (or door leaves), each 
with a

[[Page 6402]]

manual override device, and such doors (or door leaves) are located one 
on each side of the car, in opposite ends (halves) of the car (i.e., in 
diagonally-opposite quadrants). The manual override device shall be--
    (A) Capable of releasing the door (or door leaf) to permit it to be 
opened without power from outside the car;
    (B) Located adjacent to the door (or door leaf) that it controls; 
and
    (C) Designed and maintained so that a person can access the 
override device from outside the car without using a tool or other 
implement.
    (2) Multi-level passenger cars--main levels. Each main level in a 
multi-level passenger car is subject to the same requirements specified 
for single-level passenger cars in paragraph (a)(1) of this section, 
with the exception of paragraph (a)(1)(ii), which is not applicable.
    (3) Multi-level passenger cars--levels with seating areas other 
than main levels. (i) Except as provided in paragraphs (a)(3)(ii) and 
(a)(3)(iii) of this section, any level other than a main level used for 
passenger seating in a multi-level passenger car, such as an 
intermediate level, shall have a minimum of two rescue access windows 
in each seating area. The rescue access windows shall permit emergency 
responders to gain access to passengers in the seating area without 
requiring movement through an interior door or to another level of the 
car. At least one rescue access window shall be located in each side of 
the seating area. A rescue access window may be located within an 
exterior side door in the passenger compartment if it is not practical 
to place the access window in the side of the seating area. (See 
Figures 2 and 2a of this subpart.)
    (ii) Only one rescue access window is required in a seating area in 
a passenger compartment if--
    (A) It is not practical to place a rescue access window in a side 
of the passenger compartment due to the need to provide accessible 
accommodations under the Americans with Disabilities Act of 1990;
    (B) There are no more than four seats in the seating area; and
    (C) A suitable, alternate arrangement for rescue access is 
provided.
    (iii) For passenger cars ordered prior to April 1, 2009, and placed 
in service prior to April 1, 2011, only one rescue access window is 
required in a seating area in a passenger compartment if--
    (A) It is not practicable to place an access window in a side of 
the passenger compartment (due to the presence of a structure such as a 
bathroom, electrical locker, or kitchen); and
    (B) There are no more than eight seats in the seating area.
    (4) Cars with a sleeping compartment or similar private 
compartment. Each level of a passenger car with a sleeping compartment 
or a similar private compartment intended to be occupied by a passenger 
or train crewmember shall have a minimum of one rescue access window in 
each such compartment. For purposes of this paragraph, a bathroom, 
kitchen, or locomotive cab is not considered a ``compartment.''
    (5) Dual-function windows. If, on any level of a passenger car, the 
emergency window exits installed to meet the minimum requirements of 
Sec.  238.113 are also intended to function as rescue access windows, 
the minimum requirements for the number and location of rescue access 
windows in paragraphs (a)(1) through (a)(4) of this section are also 
met for that level.
    (b) Ease of operability. On or after April 1, 2008, each rescue 
access window must be capable of being removed without unreasonable 
delay by an emergency responder using either--
    (1) A provided external mechanism; or
    (2) Tools or implements that are commonly available to the 
responder in a passenger train emergency.
    (c) Dimensions. Each rescue access window in a passenger car, 
including a sleeping car, ordered on or after April 1, 2009, or placed 
in service for the first time on or after April 1, 2011, shall have an 
unobstructed opening with minimum dimensions of 26 inches horizontally 
by 24 inches vertically. A rescue access window located within an 
exterior side door, in accordance with the requirements of paragraph 
(a)(3)(i) of this section, may have an unobstructed opening with 
minimum dimensions of 24 inches horizontally by 26 inches vertically. A 
seatback is not an obstruction if it can be moved away from the window 
opening without using a tool or other implement.
    (d) Marking and instructions. Each rescue access window shall be 
marked with retroreflective material. A unique and easily recognizable 
symbol, sign, or other conspicuous marking shall also be used to 
identify each such window. Legible and understandable window-access 
instructions, including instructions for removing the window, shall be 
posted at or near each rescue access window.

0
10. Add new Sec.  238.121 to read as follows:


Sec.  238.121  Emergency communication.

    (a) PA system (public address system). (1) Existing Tier I 
passenger cars. On or after January 1, 2012, each Tier I passenger car 
shall be equipped with a PA system that provides a means for a train 
crewmember to communicate by voice to passengers of his or her train in 
an emergency situation.
    (2) New Tier I and all Tier II passenger cars. Each Tier I 
passenger car ordered on or after April 1, 2008, or placed in service 
for the first time April 1, 2010, and all Tier II passenger cars shall 
be equipped with a PA system that provides a means for a train 
crewmember to communicate by voice to passengers of his or her train in 
an emergency situation. The PA system shall also provide a means for a 
train crewmember to communicate by voice in an emergency situation to 
persons in the immediate vicinity of his or her train (e.g., persons on 
the station platform). The PA system may be part of the same system as 
the intercom system.
    (b) Intercom system. (1) New Tier I and all Tier II passenger cars. 
Each Tier I passenger car ordered on or after April 1, 2008, or placed 
in service for the first time on or after April 1, 2010, and all Tier 
II passenger cars shall be equipped with an intercom system that 
provides a means for passengers and crewmembers to communicate by voice 
with each other in an emergency situation. Except as further specified, 
at least one intercom that is accessible to passengers without using a 
tool or other implement shall be located in each end (half) of each 
car. If any passenger car does not exceed 45 feet in length, or if a 
Tier II passenger car was ordered prior to May 12, 1999, only one such 
intercom is required. The intercom system may be part of the same 
system as the PA system.
    (2) Marking and instructions. The following requirements apply to 
each Tier I passenger car on or after April 1, 2010 and to all Tier II 
passenger cars:
    (i) The location of each intercom intended for passenger use shall 
be conspicuously marked with luminescent material; and
    (ii) Legible and understandable operating instructions shall be 
posted at or near each such intercom.
    (c) Back-up power. PA and intercom systems shall have a back-up 
power system capable of--
    (1) Operating in all equipment orientations within 45 degrees of 
vertical;
    (2) Operating after the initial shock of a collision or derailment 
resulting in the following individually applied accelerations:
    (i) Longitudinal: 8g;
    (ii) Lateral: 4g; and
    (iii) Vertical: 4g; and

[[Page 6403]]

    (3) Powering each system to allow intermittent emergency 
communication for a minimum period of 90 minutes. Intermittent 
communication shall be considered equivalent to continuous 
communication during the last 15 minutes of the 90-minute minimum 
period.

0
11. Section 238.123 is added to read as follows:


Sec.  238.123  Emergency roof access.

    Except as provided in Sec.  238.441 of this chapter--
    (a) Number and dimensions. Each passenger car ordered on or after 
April 1, 2009, or placed in service for the first time on or after 
April 1, 2011, shall have a minimum of two emergency roof access 
locations, each with a minimum opening of 26 inches longitudinally 
(i.e., parallel to the longitudinal axis of the car) by 24 inches 
laterally.
    (b) Means of access. Emergency roof access shall be provided by 
means of a hatch, or a conspicuously marked structural weak point in 
the roof for access by properly equipped emergency response personnel.
    (c) Location. Emergency roof access locations shall be situated as 
practical so that when a car is on its side--
    (1) One emergency access location is wholly within each half of the 
roof as divided top from bottom; and
    (2) One emergency access location is wholly within each half of the 
roof as divided left from right. (See Figure 3 to this subpart.)
    (d) Obstructions. The ceiling space below each emergency roof 
access location shall be free from wire, cabling, conduit, and piping. 
This space shall also be free of any rigid secondary structure (e.g., a 
diffuser or diffuser support, lighting back fixture, mounted PA 
equipment, or luggage rack) where practicable. If emergency roof access 
is provided by means of a hatch, it shall be possible to push interior 
panels or liners out of their retention devices and into the interior 
of the vehicle after removing the hatch. If emergency roof access is 
provided by means of a structural weak point, it shall be permissible 
to cut through interior panels, liners, or other non-rigid secondary 
structures after making the cutout hole in the roof, provided any such 
additional cutting necessary to access the interior of the vehicle 
permits a minimum opening of the dimensions specified in paragraph (a) 
to be maintained.
    (e) Marking and instructions. Each emergency roof access location 
shall be conspicuously marked with retroreflective material of 
contrasting color. As further specified, legible and understandable 
instructions shall be posted at or near each such location. If 
emergency roof access is provided by means of a structural weak point--
    (1) The retroreflective material shall conspicuously mark the line 
along which the roof skin shall be cut; and
    (2) A sign plate with a retroreflective border shall also state as 
follows:

CAUTION--DO NOT USE FLAME CUTTING DEVICES

CAUTION--WARN PASSENGERS BEFORE CUTTING

CUT ALONG DASHED LINE TO GAIN ACCESS

ROOF CONSTRUCTION--[STATE RELEVANT DETAILS]

0
12. Subpart B to part 238 is amended by adding Figures 1, 1a, 1b, 1c, 
2, 2a, 2b, and 3 to read as follows:

Sec.
Figure 1 to Subpart B of Part 238--Example of Location and 
Staggering of Emergency Window Exits--Sec.  238.113
Figure 1A to Subpart B of Part 238--Example of Location of Rescue 
Access Windows--Sec.  238.114
Figure 1B to Subpart B of Part 238--Example of Location and 
Staggering of Emergency Window Exits and Location of Rescue Access 
Windows--Sec. Sec.  238.113 and 238.114
Figure 1C to Subpart B of Part 238--Example of a Passenger 
Compartment Including a Vestibule Connected by an Open Passageway 
and Excluding a Vestibule Separated by an Interior Door--Sec. Sec.  
238.113 and 238.114
Figure 2 to Subpart B of Part 238--Example of a Multi-Level Car 
Complying with Window Location and Staggering Requirements--
Sec. Sec.  238.113 and 238.114
Figure 2A to Subpart B of Part 238--Example of an Intermediate Level 
Seating Area of a Multi-Level Car Complying With Window Location 
Requirements--Sec. Sec.  238.113 and 238.114
Figure 2B to Subpart B of Part 238--Example of an Intermediate Level 
Seating Area of a Multi-Level Car Complying With Window Location 
Requirements--Sec. Sec.  238.113 and 238.114
Figure 3 to Subpart B of Part 238--Example of Location and Marking 
of Structural Weak Points on Roof of Passenger Car--Sec.  238.123
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BILLING CODE 4910-06-C

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

0
13. Section 238.303 is amended by adding paragraph (e)(18) to read as 
follows:


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

* * * * *
    (e) * * *
    (18) All rescue-access-related exterior markings, signage, and 
instructions required by Sec.  238.114 and Sec.  239.107(a) of this 
chapter shall be in place and, as applicable, conspicuous or legible, 
or both.
    (i) Except as provided in paragraphs (e)(18)(ii) and (iii) of this 
section, passenger equipment that has any required rescue-access-
related exterior marking, signage, or instruction that is missing, 
illegible, or inconspicuous may remain in passenger service until no 
later than the equipment's fourth exterior calendar day mechanical 
inspection or next periodic mechanical inspection required under Sec.  
238.307, whichever occurs first, after the noncomplying condition is 
discovered, where the car shall be repaired or removed from service.
    (ii) A passenger car having more than 50 percent of the windows on 
a side of a level of the car designated and properly marked for rescue 
access that has any required rescue-access-related exterior marking, 
signage, or instruction that is missing, illegible, or inconspicuous on 
any of the other windows on that side and level of the car may remain 
in passenger service until no later than the car's next periodic 
mechanical inspection required under Sec.  238.307, where the car shall 
be repaired or removed from service.
    (iii) A passenger car that is a sleeping car that has more than two 
consecutive windows with any required rescue access-related exterior 
marking, signage, or instruction at or near their locations that is 
missing, illegible, or inconspicuous may remain in passenger service 
until no later than the car's next periodic mechanical inspection 
required under Sec.  238.307, where the car shall be repaired or 
removed from service.
    (iv) A record shall be maintained of any noncomplying marking, 
signage, or instruction described in paragraphs (e)(18)(i) through 
(iii) of this section that contains the date and time that the 
defective condition was first discovered. This record shall be retained 
until all necessary repairs are completed.
* * * * *

0
14. Section 238.305 is amended by revising paragraph (c) introductory 
text and paragraph (c)(10), and by adding paragraphs (c)(11) and 
(c)(12) to read as follows:


Sec.  238.305  Interior calendar day mechanical inspection of passenger 
cars.

* * * * *
    (c) As part of the interior calendar day mechanical inspection, the 
railroad shall verify conformity with the following conditions, and 
nonconformity with any such condition renders the car defective 
whenever discovered in service, except as provided in paragraphs (c)(8) 
through (c)(12) and paragraph (d) of this section.
* * * * *
    (10) All end doors and side doors operate safely and as intended. A 
noncomplying car may continue in passenger service pursuant to 
paragraph (d) of this section--
    (i) If at least one operative and accessible door is available on 
each side of the car;
    (ii) The train crew is provided written notification of the 
noncomplying condition; and
    (iii) A notice is prominently displayed directly on the defective 
door indicating that the door is defective.
    (11) [Reserved]
    (12) On passenger cars so equipped, public address and intercom 
systems shall be operative and function as intended. A passenger car 
with an inoperative or nonfunctioning public address or intercom system 
may remain in passenger service until no later than the car's fourth 
interior calendar day mechanical inspection or next periodic mechanical 
inspection required under Sec.  238.307, whichever occurs first, or for 
a passenger car used in long-distance intercity train service until the 
eighth interior calendar day mechanical inspection or next periodic 
mechanical inspection required under Sec.  238.307, whichever occurs 
first, after the noncomplying condition is discovered, where it shall 
be repaired or removed from service; provided, the train crew is given 
written notification of the noncomplying condition, and all of the 
requirements contained in paragraph (d)(3) of this section are met.
* * * * *

0
15. Section 238.307 is amended by revising paragraph (c) introductory 
text, paragraph (c)(5), and paragraph (d) to read as follows:


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

* * * * *
    (c) The periodic mechanical inspection shall specifically include 
the following interior and exterior mechanical components, which shall 
be inspected not less frequently than every 184 days. At a minimum, 
this inspection shall determine that:
* * * * *
    (5) With regard to the following emergency systems:
    (i) Emergency lighting systems required under Sec.  238.115 are in 
place and operational; and
    (ii) [Reserved]
* * * * *
    (d) At an interval not to exceed 368 days, the periodic mechanical 
inspection shall specifically include inspection of the following:
    (1) Manual door releases, to determine that all manual door 
releases operate as intended;
    (2) 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; and
    (3) Emergency roof access markings and instructions required under 
Sec.  238.123(e), to determine that they are in place and, as 
applicable, conspicuous or legible, or both.
* * * * *

Subpart E--Specific Requirements for Tier II Passenger Equipment


Sec.  238.437  [Removed]

0
16. Section 238.437 is removed and reserved.

0
17. Section 238.441 is revised to read as follows:


Sec.  238.441  Emergency roof access.

    (a) Existing passenger cars and power cars. Each passenger car and 
power car ordered prior to April 1, 2009 and placed in service for the 
first time prior to April 1, 2011, shall have a minimum of one roof 
hatch emergency access location with a minimum opening of 26 inches by 
24 inches, or at least one structural weak point in the roof providing 
a minimum opening of the same dimensions, to provide access for 
properly equipped emergency response personnel. Each emergency roof 
access location shall be conspicuously marked, and legible and 
understandable operating instructions shall be posted at or near each 
such location.
    (b) New passenger cars. Each passenger car ordered on or after 
April

[[Page 6413]]

1, 2009 or placed in service for the first time on or after April 1, 
2011, shall comply with the emergency roof access requirements 
specified in Sec.  238.123.
    (c) New power cars. Each power car ordered on or after April 1, 
2009, or placed in service for the first time on or after April 1, 
2011, shall have a minimum of one emergency roof access location, with 
a minimum opening of 26 inches longitudinally by 24 inches laterally, 
and comply with the emergency roof access requirements specified in 
Sec. Sec.  238.123(b), (d), and (e).

0
18. Appendix A to part 238 is amended by adding entries under subpart B 
for new sections 238.114, 238.121, and 238.123, under subpart E by 
removing and reserving the entry for section 238.437 and revising the 
entry for section 238.441, and by revising footnote 1 and adding 
footnote 2 to read as follows:

Appendix A to Part 238--Schedule of Civil Penalties 1 2
---------------------------------------------------------------------------

    \1\ A penalty may be assessed against an individual only for a 
willful violation. Generally when two or more violations of these 
regulations are discovered with respect to a single unit of 
passenger equipment that is placed or continued in service by a 
railroad, the appropriate penalties set forth above are aggregated 
up to a maximum of $16,000 per day. However, failure to perform, 
with respect to a particular unit of passenger equipment, any of the 
inspections and tests required under subparts D and F of this part 
will be treated as a violation separate and distinct from, and in 
addition to, any substantive violative conditions found on that unit 
of passenger equipment. Moreover, the Administrator reserves the 
right to assess a penalty of up to $27,000 for any violation where 
circumstances warrant. See 49 CFR part 209, appendix A.
    Failure to observe any condition for movement of defective 
equipment set forth in Sec.  238.17 will deprive the railroad of the 
benefit of the movement-for-repair provision and make the railroad 
and any responsible individuals liable for penalty under the 
particular regulatory section(s) concerning the substantive 
defect(s) present on the unit of passenger equipment at the time of 
movement.
    Failure to observe any condition for the movement of passenger 
equipment containing defective safety appliances, other than power 
brakes, set forth in Sec.  238.17(e) will deprive the railroad of 
the movement-for-repair provision and make the railroad and any 
responsible individuals liable for penalty under the particular 
regulatory section(s) contained in part 231 of this chapter or Sec.  
238.429 concerning the substantive defective condition.
    The penalties listed for failure to perform the exterior and 
interior mechanical inspections and tests required under Sec.  
238.303 and Sec.  238.305 may be assessed for each unit of passenger 
equipment contained in a train that is not properly inspected. 
Whereas, the penalties listed for failure to perform the brake 
inspections and tests under Sec.  238.313 through Sec.  238.319 may 
be assessed for each train that is not properly inspected.
    \2\ The penalty schedule uses section numbers from 49 CFR part 
238. If more than one item is listed as a type of violation of a 
given section, each item is also designated by a ``penalty code,'' 
which is used to facilitate assessment of civil penalties, and which 
may or may not correspond to any subsection designation(s). For 
convenience, penalty citations will cite the CFR section and the 
penalty code, if any. FRA reserves the right, should litigation 
become necessary, to substitute in its complaint the CFR citation in 
place of the combined CFR and penalty code citation, should they 
differ.

------------------------------------------------------------------------
                                                               Willful
                    Section                      Violation    violation
------------------------------------------------------------------------
           Subpart B--Safety Planning and General Requirements
 
                              * * * * * * *
238.114 Rescue access windows.................        2,500        5,000
 
                              * * * * * * *
238.121 Emergency communication...............        2,500        5,000
238.123 Emergency roof access.................        2,500        5,000
 
                              * * * * * * *
------------------------------------------------------------------------

Subpart E--Specific Requirements for Tier II Passenger Equipment


Sec.  238.437  [Reserved]

------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
                              * * * * * * *
238.441 Emergency roof access.................        2,500        5,000
 
                              * * * * * * *
------------------------------------------------------------------------


    Issued in Washington, DC, on January 17, 2008.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 08-247 Filed 1-31-08; 8:45 am]
BILLING CODE 4910-00-P