[Federal Register Volume 75, Number 5 (Friday, January 8, 2010)]
[Rules and Regulations]
[Pages 1180-1233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31411]



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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 238



Passenger Equipment Safety Standards; Front End Strength of Cab Cars 
and Multiple-Unit Locomotives; Final Rule

  Federal Register / Vol. 75 , No. 5 / Friday, January 8, 2010 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 238

[Docket No. FRA-2006-25268, Notice No. 2]
RIN 2130-AB80


Passenger Equipment Safety Standards; Front End Strength of Cab 
Cars and Multiple-Unit Locomotives

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 by amending existing regulations to enhance 
requirements for the structural strength of the front end of cab cars 
and multiple-unit (MU) locomotives. These enhancements include the 
addition of requirements concerning structural deformation and energy 
absorption by collision posts and corner posts at the forward end of 
this equipment. The requirements are based on standards specified by 
the American Public Transportation Association (APTA). FRA is also 
making clarifying amendments to existing regulations for the structural 
strength of passenger equipment and is clarifying its views on the 
preemptive effect of this part.

DATES: Effective Date: This final rule is effective March 9, 2010. 
Petitions for reconsideration of this final rule must be received not 
later than February 22, 2010.

ADDRESSES: Any petition for reconsideration of the final rule should 
reference Docket No. FRA-2006-25268, 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, 1200 New Jersey Avenue, SE., West Building Ground 
Floor, Room W12-140, Washington, DC 20590.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, 1200 New Jersey Avenue, SE., West Building Ground 
Floor, Room W12-140, Washington, DC, between 9 a.m. and 5 p.m. Monday 
through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: 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., 
Monday through Friday, except Federal holidays. Follow the online 
instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT: Gary G. Fairbanks, Specialist, Motive 
Power and Equipment Division, Office of Railroad Safety, RRS-14, Mail 
Stop 25, Federal Railroad Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 (telephone 202-493-6282); Eloy E. Martinez, 
Program Manager, Equipment and Operating Practices Division, Office of 
Railroad Development, Federal Railroad Administration, 55 Broadway, 
Cambridge, Massachusetts 02142 (telephone 617-494-2599); or 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).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Statutory Background
II. Proceedings to Date
    A. Proceedings To Carry Out the Initial 1994 Rulemaking Mandate
    B. Key Issues Identified for Future Rulemaking
    C. RSAC Overview
    D. Establishment of the Passenger Safety Working Group in May 
2003
    E. Establishment of the Crashworthiness/Glazing Task Force in 
November 2003
    F. Development of the NPRM Published in August 2007
    G. Development of This Final Rule
III. Technical Background
    A. Predominant Types of Passenger Rail Service
    B. Front End Frame Structures of Cab Cars and MU Locomotives
    C. Accident History
    D. FRA and Industry Standards for Front End Frame Structures of 
Cab Cars and MU Locomotives
    E. Testing of Front End Frame Structures of Cab Cars and MU 
Locomotives
    1. FRA-Sponsored Dynamic Testing in 2002
    a. Test Article Designs
    b. Dynamic Impact Testing
    c. Analysis
    2. Industry-Sponsored Quasi-Static Testing in 2001
    a. Test Article Design
    b. Quasi-Static Testing
    c. Analysis
    3. FRA-Sponsored Dynamic and Quasi-Static Testing in 2008
    a. Test Article Design
    b. Dynamic Testing of a Collision Post
    c. Quasi-Static Testing of Collision and Corner Posts
    d. Analysis
    F. Approaches for Specifying Large Deformation Requirements
    G. Crash Energy Management and the Design of Front End Frame 
Structures of Cab Cars and MU Locomotives
    H. European Standard EN 15227 FCD, Crashworthiness Requirements 
for Railway Vehicle Bodies
IV. Discussion of Specific Comments and Conclusions
    A. Technical Comments
    1. Crash Energy Management
    2. Dynamic Performance Requirements
    3. Alternative Corner Post Requirements for Designs With 
Stepwells
    4. Use of Testing and Analysis To Demonstrate Compliance
    5. Submission of Test Plans for FRA Review
    6. Whether the Requirements Affect Vehicle Weight
    7. System Safety
    8. Other Comments
    B. Preemption
    1. Whether FRA Characterized Its Views on Preemption as the RSAC 
Consensus
    2. Whether FRA's Views Are Consistent With 49 U.S.C. 20106, as 
Amended
    3. Whether FRA's Views on Preemption Affect Safety
    4. Whether FRA's Views on Preemption Affect Recovery for Victims 
of Railroad Accidents
    5. How a State May Act as the Owner and Not the Regulator of a 
Railroad
    6. How State Regulation of Push-Pull Operations Is Preempted
    7. Whether It Was Necessary To Discuss Preemption in the NPRM
    8. Whether FRA Has Authority To Express Its Views on Preemption
    9. What Impelled FRA's Views on Preemption
    10. Whether FRA's Views on Preemption Affect FELA
    11. Whether Preemption Applies Under the Locomotive (Boiler) 
Inspection Act
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 Reform Act of 1995
    G. Energy Impact
    H. Trade Impact
    I. Privacy Act

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

[[Page 1181]]

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), 
Public Law 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.

II. Proceedings to Date

A. Proceedings To Carry Out the Initial 1994 Rulemaking Mandate

    The Secretary delegated these rulemaking responsibilities to the 
Administrator of the Federal Railroad Administration, 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, e.g., to mark all emergency window exits and all windows 
intended for rescue access by emergency responders, to light or mark 
all door exits intended for egress, to mark all door exits intended for 
rescue access by emergency responders, and to provide instructions for 
the use of such exits and means of rescue access.

B. Key Issues Identified for Future Rulemaking

    Although 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 enhancing 
the requirements for corner posts on cab cars and MU locomotives. See 
64 FR 25607. FRA requirements for corner posts were based on 
conventional industry practice at the time, which had not proven 
adequate in then-recent side swipe collisions with cab cars leading. 
Id. FRA explained that those requirements were being adopted as an 
interim measure to prevent the introduction of equipment not meeting 
the requirements, that FRA was assisting APTA in preparing an industry 
standard for corner post arrangements on cab cars and MU locomotives, 
and that adoption of a suitable Federal standard would be an immediate 
priority. Id. In broader terms, this issue concerned the behavior of 
cab car and MU locomotive end frames when overloaded, as during an 
impact with maintenance-of-way equipment or with a highway vehicle at a 
highway-rail grade crossing, and thus concerned collision post strength 
as well. FRA and interested industry members also began identifying 
other issues related to the passenger equipment safety standards and 
the passenger train emergency preparedness regulations. FRA decided to 
address these issues with the assistance of FRA's Railroad Safety 
Advisory Committee (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 stakeholders, including 
railroads, labor organizations, suppliers and manufacturers, and other

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interested parties. A list of member groups follows:
     American Association of Private Railroad Car Owners 
(AARPCO);
     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 Employes 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);
     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);
     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 recommendation 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 an 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(s) through traditional rulemaking 
proceedings or other action.

D. Establishment of the Passenger Safety Working Group in May 2003

    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. RSAC established the 
Passenger Safety Working Group (Working Group) to handle this task and 
develop recommendations for the full RSAC body 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. The Working Group has held 13 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;
     December 11, 2007 in Ft. Lauderdale, FL;
     June 18, 2008, in Baltimore, MD;
     November 13, 2008, in Washington, DC; and
     June 8, 2009, in Washington, DC.
    At the meetings in Chicago and Ft. Lauderdale in 2005, FRA met with 
representatives of Tri-Rail (the South Florida Regional Transportation 
Authority) and Metra, respectively, and toured their passenger 
equipment. The visits 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 equipment safety issues.

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E. Establishment of the Crashworthiness/Glazing Task Force in November 
2003

    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 included 
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 established to identify issues and develop recommendations 
related to emergency systems, procedures, and equipment, and helped to 
develop an NPRM on these topics that was published on August 24, 2006, 
see 71 FR 50276, and a final rule that was published on February 1, 
2008, see 73 FR 6370. Another task force, the Crashworthiness/Glazing 
Task Force (Task Force), was assigned the job of developing 
recommendations related to glazing integrity, structural 
crashworthiness, and the protection of occupants during accidents and 
incidents. Specifically, this Task Force was charged with developing 
recommendations for glazing qualification testing and for cab car and 
MU locomotive end frame optimization. (Glazing and cab car/MU 
locomotive end frame issues are being handled separately, and glazing 
is not a subject of this final rule.) The Task Force was also given the 
responsibility of addressing a number of other issues related to 
glazing, structural crashworthiness, and occupant protection and 
recommending any research necessary to facilitate their resolution. 
Members of the Task Force, in addition to FRA, include the following:
     AAR;
     Amtrak;
     APTA, including members from Bombardier, Inc., General 
Electric Transportation Systems, General Motors-Electro-Motive 
Division, Kawasaki Rail Car, Inc., LDK Engineering, LIRR, LTK 
Engineering Services, Maryland Transit Administration, Massachusetts 
Bay Transportation Authority (MBTA), Metrolink, Metro-North, Northern 
Indiana Commuter Transportation District (NICTD), Hyundai Rotem 
Company, Saint Gobian Sully NA, San Diego Northern Commuter Railroad 
(Coaster), SEPTA, and STV, Inc.;
     BLET;
     California Department of Transportation (Caltrans);
     NARP;
     RSI; and
     UTU.
    While not voting members of the Task Force, representatives from 
the NTSB attended 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.
    The Task Force held seven meetings on the following dates and 
locations:
     March 17-18, 2004, in Cambridge, MA;
     May 13, 2004, in Schaumburg, IL;
     November 9, 2004, in Boston, MA;
     February 2-3, 2005, in Cambridge, MA;
     April 21-22, 2005, in Cambridge, MA;
     August 11, 2005, in Cambridge, MA; and
     September 9-10, 2008, in Cambridge, MA.

F. Development of the NPRM Published in August 2007

    The NPRM was developed to address concerns raised and issues 
discussed about cab car and MU locomotive front end frame structures 
during the Task Force meetings and pertinent 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. Except for one 
issue, which is discussed below, the Working Group reached consensus on 
the principal regulatory provisions contained in the NPRM at its 
meeting in September 2005. After the September 2005 meeting, the 
Working Group presented its recommendations to the full RSAC body for 
concurrence at its meeting in October 2005. All of the members of the 
full RSAC in attendance at its October 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.
    After reviewing the full RSAC's recommendations, FRA agreed that 
the recommendations provided a good basis for a proposed rule, but that 
test standards and performance criteria more suitable to cab cars and 
MU locomotives without flat forward ends or with energy absorbing 
structures used as part of a crash energy management design (CEM), or 
both, should be specified. The NPRM therefore provided an option for 
the dynamic testing of cab cars and MU locomotives as a means of 
demonstrating compliance with the rule. However, FRA made clear that 
the proposal was not the result of an RSAC recommendation. Otherwise, 
FRA adopted the RSAC's 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 1, 2007, 
see 72 FR 42016, and FRA solicited public comment on it. FRA notified 
the public of its option to submit written comments on the NPRM and to 
request a public, oral hearing on the NPRM. FRA also invited comment on 
a number of specific issues related to the proposed requirements for 
the purpose of developing the final rule.

G. Development of This Final Rule

    This final rule is the product of FRA's review and consideration of 
the recommendations of the Task Force, Working Group, and full RSAC, 
and the written comments to the docket. FRA received written comments 
in response to the publication of the NPRM from a wide array of 
interested parties. Specifically, FRA received three separate comments 
from members of the U.S. Congress: (1) From Senator Kent Conrad, 
Senator Byron Dorgan, and Congressman Earl Pomeroy; (2) from 
Congressman James Oberstar, Chairman, House Committee on Transportation 
and Infrastructure, and Congressman Bennie Thompson, Chairman, House 
Committee on Homeland Security; and (3) from Congressman Adam Schiff. 
FRA also received comments from the AAR and APTA, which represent 
freight and passenger railroads, respectively, as well as comments from 
Caltrans and the Peninsula Corridor Joint Powers Board (Caltrain), 
which are involved in providing passenger rail service. The BLET and 
UTU submitted comments on behalf of the railroad employees whom they 
represent. In addition, FRA received comments from rail car 
manufacturers Bombardier and Colorado Railcar Manufacturing (CRM), as 
well as from the firm of Raul V. Bravo + Associates, Inc. (RVB). FRA 
also received comments from other interested parties: the American 
Association for Justice (AAJ), formerly known as the Association of 
Trial Lawyers of America, and the California Public Utilities 
Commission (CPUC). All Aboard Washington (AAWA), an advocacy 
organization for promoting

[[Page 1184]]

rail service in the Pacific Northwest, and a private citizen also 
commented on the NPRM. At about the same time as the written comment 
period closed on October 1, 2007, management of DOT rulemaking dockets 
was transitioning from DOT to the Federal Docket Management System at 
http://www.regulations.gov. This transition led to some delay in the 
posting of comments to the Web site; however, FRA has considered all 
such comments in preparing this final rule.
    FRA notes that Congressman Adam Schiff made a request that FRA hold 
public hearings to receive oral comment on the NPRM in Los Angeles or 
Glendale, CA, so that those who have a ``deeply-felt'' concern for rail 
safety could be heard. As stated in a January 30, 2008 letter to 
Congressman Schiff, FRA discussed this request with the Congressman's 
staff and was informed that the Congressman had decided to reserve his 
request that FRA convene public hearings on the NPRM. (A copy of this 
letter has been placed in the public docket for this rulemaking.) No 
public hearing was held in response to the NPRM.
    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. 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 acts. 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

    Transporting passengers by rail in the U.S. is very safe. Since the 
beginning of 1978, about 12.5 billion passengers have traveled by rail, 
based on reports filed monthly with FRA. The number of rail passengers 
has steadily increased over the years, and since the year 2000 has 
averaged more than 525 million passengers per year. On a passenger-mile 
basis, with an average of about 16.1 billion passenger-miles per year 
since 2000, rail travel is about as safe as scheduled airline service 
and intercity bus transportation, and it is far safer than private 
motor vehicle travel. Passenger rail accidents--while always to be 
avoided--have a very high passenger survival rate.
    Yet, as in any form of transportation, there are risks inherent in 
passenger rail travel. For this reason, FRA continually works to 
improve the safety of passenger rail operations. FRA's efforts include 
sponsoring the research and development of safety technologies, 
providing technical support for industry specifications and standards, 
and engaging in cooperative rulemaking efforts with key industry 
stakeholders. FRA has focused in particular on enhancing the 
crashworthiness of passenger trains.
    In a passenger train collision or derailment, the principal 
crashworthiness risks that occupants face are the loss of safe space 
inside the train from crushing of the train structure and, as the train 
decelerates, the risk of secondary impacts with interior surfaces. 
Therefore, the principal goals of the crashworthiness research 
sponsored by FRA are twofold: First, to preserve a safe space in which 
occupants can ride out the collision or derailment, and, then, to 
minimize the physical forces to which occupants are subjected when 
impacting surfaces inside a passenger train as the train decelerates. 
Though not a part of this final rule, other crashworthiness research 
focuses on related issues such as fuel tank safety, for equipment with 
a fuel tank, and the associated risk of fire if the fuel tank is 
breached during the collision or derailment.
    The results of ongoing research on cab car and MU locomotive front 
end frame structures help demonstrate both the effectiveness and the 
practicality of the structural enhancements in this final rule to make 
this equipment more crashworthy. This research is discussed below, 
along with other technical information providing the background for 
this rulemaking.

A. Predominant Types of Passenger Rail Service

    FRA's focus on cab car and MU locomotive crashworthiness should be 
considered in the context of the predominant types of passenger rail 
service in North America. The first involves operation of passenger 
trains with conventional locomotives in the lead, typically pulling 
consists of passenger coaches and other cars such as baggage cars, 
dining cars, and sleeping cars. Such trains are common on long-
distance, intercity rail routes operated by Amtrak. On a daily basis, 
however, most passenger rail service is provided by commuter railroads, 
which typically operate one or both of the two most predominant types 
of service: Push-pull service and MU locomotive service.
    Push-pull service is passenger train service typically operated, in 
one direction of travel, with a conventional locomotive in the rear of 
the train pushing the consist (the ``push mode'') and with a cab car in 
the lead position of the train; and, in the opposite direction of 
travel, the service is operated with the conventional locomotive in the 
lead position of the train pulling the consist (the ``pull mode'') and 
with the cab car in the rear of the train. (A cab car is both a 
passenger car, in that it has seats for passengers, and a locomotive, 
in that it has a control cab from which the engineer can operate the 
train.) Control cables run the length of the train, as do electrical 
lines providing power for heat, lights, and other purposes.
    MU locomotive service is passenger rail service involving trains 
consisting of self-propelled electric or diesel MU locomotives. MU 
locomotives may operate individually but typically operate semi-
permanently coupled together as a pair or triplet with a control cab at 
each end of the consist. During peak commuting hours, multiple pairs or 
triplets of MU locomotives, or a combination of both, are typically 
operated together as a single passenger train in MU service. This type 
of service does not make use of a conventional locomotive as a primary 
means of motive power. MU locomotive service is very similar to push-
pull service as operated in the push mode with the cab car in the lead.
    By focusing on enhancements to cab car and MU locomotive 
crashworthiness, FRA seeks to enhance the safety of the two most 
typical forms of passenger rail service in the U.S.

B. Front End Frame Structures of Cab Cars and MU Locomotives

    Structurally, MU locomotives and cab cars built in the same period 
are very similar. Both are designed to be occupied by passengers and to 
operate as the lead units of passenger trains. The principal 
distinction is that cab cars do not have motors to propel themselves. 
Unlike MU locomotives and cab cars, conventional locomotives are not 
designed to be occupied by passengers--only by operating crewmembers. 
Concern has been raised about the safety of cab car-led and MU 
locomotive train service due to the closer proximity of the engineer 
and

[[Page 1185]]

passengers to the leading end of the train than in conventional 
locomotive-led service.
    The principal purpose of cab car and MU locomotive front end frame 
structures is to provide protection for the engineer and passengers in 
the event of a collision where the superstructure of the vehicle is 
directly engaged and the underframe is either not engaged or only 
indirectly engaged in the collision. In the event of impacts with 
objects above the underframe of a cab car or MU locomotive, the end 
frame members are the primary source of protection for the engineer and 
the passengers. There are various types of cab cars and MU locomotives 
in current use. As discussed below, flat-nosed, single-level cab cars 
have been used for purposes of FRA-sponsored crashworthiness research. 
(The cab cars were originally constructed as MU locomotives but had 
their traction motors removed for testing.) Flat-nosed designs are 
representative of a large portion of the cab car and MU locomotive 
fleet.
    In a typical flat-nosed cab car, the end frame is composed of 
several structural elements that act together to resist inward 
deformations under load. The base of the end frame structure is 
composed of the end/buffer beam, which is directly connected to the 
draft sill of the vehicle. For cars that include stepwells, the side 
sills of the underframe generally do not directly connect to the end/
buffer beam. There are four major vertical members connected to the 
end/buffer beam: two collision posts located approximately at the one-
third points along the length of the beam; and two corner posts located 
at the outermost points of the beam. These structural elements are also 
connected together through two additional lateral members: a lateral 
member/shelf located just below the window frame structure; and an 
anti-telescoping plate at the top. The attachment of the end frame 
structure to the rest of the vehicle typically occurs at three 
locations. The first location is at the draft sill at the level of the 
underframe. This is the main connection where a majority of any 
longitudinal load applied to the end frame is reacted into the 
underframe of the vehicle. There are two other connections at the cant/
roof rail located at each side of the car just below the level of the 
roof. When a longitudinal load is applied to the end frame, it is 
reacted by the draft sill and the cant rails into the main car body 
structure. A schematic of a typical arrangement is depicted in Figure 1 
(although not every cab car or MU locomotive necessarily has every 
component shown).
[GRAPHIC] [TIFF OMITTED] TR08JA10.000

C. Accident History

    In a collision involving the front end of a cab car or an MU 
locomotive, it is vitally important that the end frame behaves in a 
ductile manner, absorbing some of the collision energy in order to 
maintain sufficient space in which the engineer and passengers can ride 
out the event. Several collisions have occurred where the 
superstructure of a leading cab car has been loaded but the underframe 
of the car has not. These collisions demonstrate a need for better 
protecting the cab engineer and passengers from external threats. One 
example of a collision where the end frame did not effectively absorb 
collision energy occurred in Portage, IN, in 1998 when a NICTD train 
consisting of MU locomotives struck a tractor-tandem trailer carrying 
steel coils that had become immobilized on a grade crossing.\1\ The 
leading MU locomotive impacted a steel coil at a point centered on one 
of its collision posts, the collision post failed, and the steel coil 
penetrated into the interior of the locomotive, resulting in three 
fatalities. Little of the collision energy was absorbed by the 
collision post, because the post had failed before it could deform in 
any significant way.
---------------------------------------------------------------------------

    \1\ National Transportation Safety Board, ``Collision of 
Northern Indiana Commuter Transportation District Train 102 with a 
Tractor-Trailer Portage, Indiana, June 18, 1998,'' RAR-99-03, 07/26/
1999. This report is available on the NTSB's Web site at: http://www.ntsb.gov/publictn/1999/RAR9903.pdf.
---------------------------------------------------------------------------

    There are additional examples of incidents where the end frame of a 
cab car or an MU locomotive was engaged during a collision and a loss 
of survivable volume ensued due to the failure of end frame structures. 
In a collision in Secaucus, NJ, in 1996, a cab car-led New Jersey 
Transit Rail Operations (NJTR) train impacted a conventional 
locomotive-led NJTR

[[Page 1186]]

train.\2\ At the collision interface, the conventional locomotive 
pushed in or tore loose the collision and corner posts of the cab car. 
The underframe of the cab car was not loaded. The engineers of both 
trains and one passenger in the cab car were fatally injured. Also in 
1996 in Silver Spring, MD, a collision occurred between a cab car-led 
Maryland Area Rail Commuter (MARC) train and a conventional locomotive-
led Amtrak train. In the collision, the front left collision and corner 
posts of the cab car were pushed in and torn loose. The underframe of 
the cab car was not loaded.\3\ Three crewmembers and eight passengers 
on the MARC train were fatally injured as result of the collision and 
ensuing fire. Earlier, on January 18, 1993, near Gary, IN, two NICTD 
trains collided corner-to-corner on intersecting tracks that shared a 
bridge. One of the trains was at rest and the other had a speed 
estimated to be 32 mph. The left front corner posts and adjacent car 
body sidewall structures were destroyed on the leading MU locomotive of 
each train. Seven passengers were fatally injured.\4\
---------------------------------------------------------------------------

    \2\ National Transportation Safety Board, ``Near Head-On 
Collision and Derailment of Two New Jersey Transit Commuter Trains 
Near Secaucus, New Jersey, February 9, 1996,'' RAR-97-01, 03/25/
1997. This report is available on the NTSB's Web site at: http://www.ntsb.gov/publictn/1997/RAR9701.pdf.
    \3\ National Transportation Safety Board, ``Collision and 
Derailment of Maryland Rail Commuter MARC Train 286 and National 
Railroad Passenger Corporation AMTRAK Train 29 Near Silver Spring, 
Maryland, on February 16, 1996,'' RAR-97-02, 06/17/1997. This report 
is available on the NTSB's Web site at: http://www.ntsb.gov/publictn/1997/RAR9702.pdf.
    \4\ National Transportation Safety Board, ``Collision between 
Northern Indiana Commuter Transportation District Eastbound Train 7 
and Westbound Train 12 Near Gary, Indiana, on January 18, 1993,'' 
RAR-93-03, 12/7/1993.
---------------------------------------------------------------------------

    The preceding collisions were used to characterize types of loading 
conditions, which led to the development of a simplified, generalized 
test scenario, in furtherance of the goal of establishing methods for 
measuring the crashworthiness performance of end frame structures and 
developing strategies for incrementally improving their survivability 
under a range of impact conditions. Although the speeds associated with 
certain past events are greater than the speed at which full protection 
can currently be provided, and even though enhancements to passenger 
train emergency features and other requirements unrelated to 
crashworthiness, such as fire safety, may overall do as much or more to 
prevent or mitigate the consequences of these types of events, these 
collisions do provide indicative loading conditions for developing 
structural enhancements that can improve crashworthiness performance.
    FRA also notes that on January 26, 2005, in Glendale, CA, a 
collision involving an unoccupied sport utility vehicle (SUV) (that was 
intentionally parked on the track by a private citizen), two Metrolink 
commuter trains, and a standing freight train resulted in 11 fatalities 
and numerous injuries. Eight of the fatalities occurred on a cab car-
led commuter train, which derailed after striking the SUV, causing the 
cab car to be guided down a railroad siding, which resulted in an 
impact at an approximate speed of 49 mph with the standing freight 
train. After the collision with the standing freight train, the rear 
end of the lead cab car buckled laterally, obstructing the right-of-way 
of an oncoming, conventional locomotive-led commuter train. The rear 
end of the cab car raked the side of the conventional locomotive-led 
train, which was moving at an approximate speed of 51 mph, crushing 
occupied areas of that train. This incident involved enormous 
quantities of kinetic energy, and the underframe of the leading cab car 
crushed more than 20 feet inward. Because the strength of the end frame 
ultimately depends on the strength of the underframe, which failed 
here, stronger collision posts and corner posts on the front end of the 
leading cab car would have been, in themselves, of little benefit in 
absorbing the collision energy. For this reason, as discussed below, 
FRA has been exploring other crashworthiness strategies, such as CEM, 
to help mitigate the effects of collisions involving higher impact 
speeds. Nevertheless, CEM will also require proper end frame 
performance in order to function as intended.

D. FRA and Industry Standards for Front End Frame Structures of Cab 
Cars and MU Locomotives

    Both the Federal government and the passenger railroad industry 
have been working together to improve the crashworthiness of cab cars 
and MU locomotives. As noted above, in 1999, after several years of 
development and in consultation with a working group comprised of key 
industry stakeholders, FRA promulgated the Passenger Equipment Safety 
Standards final rule. The rule included end frame structure 
requirements and additional crashworthiness-related requirements for 
cab cars, MU locomotives, and other passenger equipment. In particular, 
the final rule provided for strengthened collision posts for new cab 
cars and MU locomotives (i.e., those ordered on or after September 8, 
2000, or placed in service for the first time on or after September 9, 
2002).
    APTA also issued industry standards in 1999, in furtherance of its 
initiative to continue the development and maintenance of voluntary 
industry standards for the safety of railroad passenger equipment. In 
particular, APTA Safety Standard (SS)-C&S-013-99, Standard for Corner 
Post Structural Strength for Railroad Passenger Equipment, and SS-C&S-
014-99, Standard for Collision Post Structural Strength for Railroad 
Passenger Equipment, included provisions on end frame designs for cab 
cars and MU locomotives. (Copies of these standards have been placed in 
the public docket for this rulemaking.) Specifically, these APTA 
standards included increased industry requirements for the strength of 
cab car and MU locomotive vertical end frame members--collision posts 
and corner posts. The 1999 APTA standards also included industry 
requirements for the deformation of these end frame vertical members, 
specifying that they must be able to sustain ``severe deformation'' 
before failure of the connections to the underframe and roof structures 
occurs.
    In January 2000, APTA requested that FRA develop information on the 
effectiveness of APTA's then-recently introduced Manual of Standards 
and Recommended Practices for Rail Passenger Equipment, which included 
APTA SS-C&S-013-99 and APTA SS-C&S-014-99, and FRA's then-recently 
issued Passenger Equipment Safety Standards rule. This review was 
intended to look in particular at what increase in crashworthiness was 
obtained for cab cars and MU locomotives through the combination of 
these standards and regulations. FRA shared APTA's interest and 
included full-scale impact tests and associated planning and analysis 
activities in its overall research plan to gather this information. FRA 
then developed the details of the testing process in conjunction with 
APTA's Passenger Rail Equipment Safety Standards (PRESS) Construction 
and Structural (C&S) Subcommittee.
    Around this same time, questions arose in the passenger rail 
industry in applying the APTA standards for collision posts and corner 
posts to new cab cars and MU locomotives. Views differed as to what the 
standards actually specified--namely, the meaning of ``severe 
deformation'' in the provisions calling for corner and collision posts 
to sustain ``severe deformation'' before failure of the posts' 
attachments. Consequently, there was not common agreement as to whether

[[Page 1187]]

particular designs met the standards. On May 22, 2003, APTA's PRESS 
Committee accepted the recommendation of its C&S Subcommittee to 
replace these provisions in the standards concerning ``severe 
deformation'' with a recommended practice that the corner and collision 
post attachments be able to sustain minimum prescribed loads with 
negligible deformation. APTA SS-C&S-013-99 and SS-C&S-014-99 were then 
incorporated in their entirety into APTA SS-C&S-034-99, Rev. 1, 
Standard for the Design and Construction of Passenger Railroad Rolling 
Stock. (A copy of APTA SS-C&S-034-99, Rev. 1, has been placed in the 
public docket for this rulemaking. As discussed below, the latest 
revision, Rev. 2, of APTA SS-C&S-034-99 is available on APTA's Web site 
at http://www.aptastandards.com/portals/0/PRESS_pdfs/Construcstruct/construcstruct%20reaffirm/APTA%20SS-CS-034-99%20Rev%202-Approved.pdf. 
The larger compilation of standards and recommended practices for rail 
passenger equipment of which this standard is a part, APTA's Manual of 
Standards and Recommended Practices for Rail Passenger Equipment, is 
available on APTA's Web site at http://aptastandards.com/PublishedDocuments/PublishedStandards/PRESS/tabid/85/Default.aspx.)
    When the decision to turn the provisions concerning ``severe 
deformation'' into a recommended practice was made, ongoing research 
from full-scale impact tests was showing that a substantial increase in 
cab car and MU locomotive crashworthiness could be achieved by 
designing the posts to first deform and thereby absorb collision energy 
before failing.\5\ As discussed below, in August 2005, APTA's PRESS C&S 
Subcommittee accepted a revised ``severe deformation'' standard for 
collision and corner posts. The standard includes requirements for 
minimum energy absorption and maximum deflection. The standard thereby 
eliminates a deficiency in the 1999 APTA standards by specifying test 
criteria to objectively measure ``severe deformation'' (or large 
deformation).
---------------------------------------------------------------------------

    \5\ Mayville, R., Johnson, K., Tyrell, D., Stringfellow, R., 
``Rail Vehicle Cab Car Collision and Corner Post Designs According 
to APTA S-034 Requirements,'' American Society of Mechanical 
Engineers, Paper No. IMECE2003-44114, November 2003. This document 
is available on the Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2003/rail_cw_2003_11.pdf. All of the 
published Volpe Center papers and reports on rail equipment 
crashworthiness can be found at: http://www.volpe.dot.gov/sdd/pubs-crash.html.
---------------------------------------------------------------------------

    The NPRM in this rulemaking was based on APTA SS-C&S-034-99, Rev. 
1, and proposed dynamic performance requirements in the alternative to 
the quasi-static, large deformation criteria in the APTA Standards. In 
response to the NPRM, members of industry disagreed with including 
FRA's proposed dynamic performance requirements in the rule and 
requested that FRA demonstrate actual compliance with both the quasi-
static and the dynamic large deformation requirements that were 
proposed. As detailed below, these tests were performed in the spring 
and summer of 2008. FRA has sought to retain the dynamic performance 
requirements as an alternative to the quasi-static requirements, in 
particular because the dynamic performance requirements facilitate 
evaluation of equipment without a flat front-end or traditional corner 
or collision posts. After discussion within the Task Force, consensus 
was reached on including dynamic performance requirements in appendix F 
to part 238 as an alternative to the enhanced collision and corner post 
requirements in Sec. Sec.  238.211 and 238.213 of this final rule. As 
discussed below, the enhanced requirements in Sec. Sec.  238.211 and 
238.213 essentially codify the current APTA standards.

E. Testing of Front End Frame Structures of Cab Cars and MU Locomotives

    This section summarizes the work done by FRA and the passenger rail 
industry on developing the technical information to support regulations 
requiring that corner and collision posts in cab car and MU locomotive 
front end frames fail in a controlled manner when overloaded. Due to 
the collaborative work of FRA with the passenger rail industry, APTA's 
current passenger rail equipment standards include deformation 
requirements, which prescribe how these vertical members should perform 
when overloaded quasi-statically.
1. FRA-Sponsored Dynamic Testing in 2002
    Two full-scale, grade-crossing impact tests were conducted in June 
2002 as part of an ongoing series of FRA-sponsored crashworthiness 
tests of passenger rail equipment carried out with the support of the 
Volpe Center at FRA's Transportation Technology Center (TTC) in Pueblo, 
CO. The purpose of these two tests was to evaluate incremental 
improvements in the crashworthiness performance, in highway-rail grade-
crossing collision scenarios, of modern corner and collision post 
designs when compared against the performance of older designs. The 
grade-crossing tests were intended to address the concern of occupant 
vulnerability to bulk crushing resulting from offset/oblique collisions 
where the primary load-resisting-structure is the equipment's end frame 
design.
a. Test Article Designs
    Two end frame designs were developed. The first end frame design 
was representative of typical designs of passenger rail vehicles in the 
1990s prior to 1999. The first end frame design is referred to as the 
``1990s design.'' The second end frame design incorporated all the 
enhancements required beginning in 1999 by FRA's Passenger Equipment 
Safety Standards in part 238 and also recommended beginning in 1999 by 
APTA's standards for corner post and collision post structures, 
respectively, SS-C&S-013-99 and SS-C&S-014-99. The second end frame 
design is referred to as the State-of-the-Art (SOA) design. The two end 
frame designs developed were then retrofitted onto two Budd Pioneer 
passenger rail cars for testing.
    The SOA design differed principally from the 1990s design by having 
higher values for static loading of the end frame structure and by 
specifically addressing the performance of the collision and corner 
posts when overloaded. As noted above, the 1999 APTA standards for cab 
car and MU locomotive end frame structures included the following 
statement for both corner and collision posts:

    [The] post and its supporting structure shall be designed so 
that when it is overloaded * * * failure shall begin as bending or 
buckling in the post. The connections of the post to the supporting 
structure, and the supporting car body structure, shall support the 
post up to its ultimate capacity. The ultimate shear and tensile 
strength of the connecting fasteners or welds shall be sufficient to 
resist the forces causing the deformation, so that shear and tensile 
failure of the fasteners or welds shall not occur, even with severe 
deformation of the post and its connecting and supporting structural 
elements.

(See paragraph 4.1 of APTA SS-C&S-013-99, and paragraph 3.1 of APTA SS-
C&S-014-99.) Although the term ``severe deformation'' was not 
specifically defined in the APTA standards, discussions with APTA 
technical staff led to specifying ``severe deformation'' in the SOA 
design as a horizontal crush of the corner and collisions posts for a 
distance equal to the posts' depth. Some failure of the parent material 
in the posts was allowable, but no failure would be

[[Page 1188]]

allowed in the welded connections, as the integrity of the welded 
connections prevents complete separation of the posts from their 
connections.
    An additional difference in the designs was the exclusion of the 
stepwells for the SOA design, to allow for extended side sills from the 
body bolster to the end/buffer beam. By bringing the side sills forward 
to support the end/buffer beam directly at the corners, the end/buffer 
beam can be developed to a size similar to the one for the 1990s 
design. In fact, recent cab car procurements have provided for 
elimination of the stepwells at the ends of the cars.
    As compared to the 1990s design, the SOA design had the following 
enhancements: more substantial corner posts; a bulkhead sheet 
connecting the collision and corner posts, extending from the floor to 
the transverse member connecting the posts; and a longer side sill that 
extended along the engineer's compartment to the end beam, removing the 
presence of a stepwell. In addition to changes in the cross-sectional 
sizes and thickness of some structural members, another change in the 
SOA design was associated with the connection details for the corner 
posts. In comparison to the corner posts, the collision posts of both 
the 1990s and SOA designs penetrated both the top and bottom flanges of 
both the end/buffer beam and the anti-telescoping plate. This was based 
upon typical practice in the early 1990s for the 1990s design, and a 
provision in the APTA standard for the SOA design. Yet, the corner 
posts differed in that the corner posts for the 1990s design did not 
penetrate both the top and bottom flanges of the end/buffer and anti-
telescoping beams, while those in the SOA design did. The SOA design 
therefore had a significantly stiffer connection that was better able 
to resist torsional loads transferred to the anti-telescoping plate.
b. Dynamic Impact Testing
    As noted, two full-scale, grade-crossing impact tests were 
conducted in June 2002. In each test a single cab car impacted a 
40,000-pound steel coil resting on a frangible table at a nominal speed 
of 14 mph. The steel coil was situated such that it impacted the corner 
post above the cab car's end sill. The principal difference between the 
two tests involved the end frame design tested: In one test, the cab 
car was fitted with the 1990s end frame design; in the other, the cab 
car was fitted with the SOA end frame design.
    Prior to the tests, the crush behaviors of the cars and their 
dynamic responses were simulated with car crush and collision dynamics 
models. The car crush model was used to determine the force/crush 
characteristics of the corner posts, as well as their modes of 
deformation.\6\ The collision dynamics model was used to predict the 
extent of crush of the corner posts as a function of impact velocity, 
as well as predict the three-dimensional accelerations, velocities, and 
displacements of the cars and coil.\7\ Pre-test analyses of the models 
were used in determining the initial test conditions and 
instrumentation test requirements.
---------------------------------------------------------------------------

    \6\ Martinez, E., Tyrell, D., Zolock, J., ``Rail-Car Impact 
Tests with Steel Coil: Car Crush,'' American Society of Mechanical 
Engineers, Paper No. JRC2003-1656, April 2003. This document is 
available on the Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2003/rail_cw_2003_4.pdf.
    \7\ Jacobsen, K., Tyrell, D., Perlman, A.B., ``Rail Car Impact 
Tests with Steel Coil: Collision Dynamics,'' American Society of 
Mechanical Engineers, Paper No. JRC2003-1655, April 2003. This 
document is available on the Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2003/rail_cw_2003_3.pdf.
---------------------------------------------------------------------------

    The impact speed of approximately 14 mph for both tests was chosen 
so that there would be significant intrusion (more than 12 inches) into 
the engineer's cab in the test of the 1990s design, and limited 
intrusion (less than 12 inches) in the test of the SOA design. This 12-
inch deformation metric was chosen to demarcate the amount of intrusion 
that would leave sufficient space for the engineer to ride out the 
collision safely.
    During the full-scale test of the 1990s design, the impact force 
transmitted to the end structure exceeded the corner post's predicted 
strength, and the corner post separated from its upper attachment. Upon 
impact, the corner post began to hinge near the contact point with the 
coil; subsequently, tearing at the upper connection occurred. The 
intensity of the impact ultimately resulted in the failure of the upper 
connection of the corner post to the anti-telescoping plate. More than 
30 inches of deformation occurred and the survivable space for the 
engineer was lost.
    By contrast, during the test of the SOA end frame design, the 
corner post remained attached. The maximum rearward deformation 
measured was approximately 9 inches. The results of this test showed 
that the SOA end frame design is sufficient to prevent the engineer 
from being crushed in such an impact.
c. Analysis
    The SOA design performed very closely to pre-test predictions made 
by the finite element and collision dynamics models. See Figure 2, 
below. As noted, the SOA design crushed approximately 9 inches in the 
longitudinal direction.

[[Page 1189]]

[GRAPHIC] [TIFF OMITTED] TR08JA10.001

    Pre-test analyses for the 1990s design using the car crush model 
and collision dynamics model were in close agreement with the 
measurements taken during the actual testing of the cab car end frame 
built to this design. The pre-test analyses also nearly overlay the 
test results for the force/crush characteristic of the SOA design. As a 
result, FRA believes that both sets of models are capable of predicting 
the modes of structural deformation and the total amount of energy 
consumed during a collision. Careful application of finite-element 
modeling allows accurate prediction of the crush behavior of rail car 
structures.
    Both the methodologies used to design the cab car end frames and 
the results of the tests show that significant increases in rail 
passenger equipment crashworthiness can be achieved if greater 
consideration is given to the manner in which structural elements 
deform when overloaded. Modern methods of analysis can accurately 
predict structural crush (severe deformation) and consequently can be 
used with confidence to develop structures that collapse in a 
controlled manner. Modern testing techniques allow the verification of 
the crush behavior of such structures.
2. Industry-Sponsored Quasi-Static Testing in 2001
    While FRA's full-scale, dynamic testing program was being planned 
and conducted with input from key industry representatives, several 
passenger railroads were incorporating in procurement specifications 
the then-newly promulgated Federal regulations and industry standards 
issued in 1999. Specifically, both LIRR and Metro-North had contracted 
with Bombardier for the development of a new MU locomotive design, the 
M7 series. Bombardier conducted a series of qualifying quasi-static 
tests on a mock-up, front-end structure of an M7, including a severe 
deformation test of the collision post. In addition to the severe 
deformation test, the other end frame members were also tested 
elastically at the enhanced loads specified in the APTA standards. The 
severe deformation qualification test was conducted on February 20, 
2001.
a. Test Article Design
    The mock-up test article was developed for the front end of an M7 
cab car. The first 19.25 feet of the car was fabricated with great 
fidelity between the car's body bolster and the extreme most forward 
end. The mock-up contained all structural elements, but did not contain 
the corner post rub plates, the plymetal floor, any interior finishing, 
windows, doors, bonnet, or similar components.
b. Quasi-Static Testing
    Load was applied at incrementally increasing levels with hydraulic 
jacks while being measured by load cells at the rear of the 
longitudinal end frame members. Initially, the elastic limit was 
determined for the post, and then the large deformation test was 
conducted. The test was stopped, for safety considerations, prior to 
full separation of the collision post with the end/buffer beam.
    The maximum deflection in the collision post before yielding 
occurred at a position 42 inches above the end beam, near the top of 
the plates used to reinforce the collision post. The plastic shape the 
collision post acquired during testing was `V'-shaped, with a plastic 
hinge occurring at 42 inches above the end beam. Some cracking and 
material failure occurred at the connection of the post with the end 
beam. The anti-telescoping plate was pulled down roughly three inches, 
and load was shed to the corner post via the shelf member and the 
bulkhead sheet. The shape that

[[Page 1190]]

the collision post experienced was very similar to what was observed 
from the dynamic testing of the SOA corner post, as discussed above.
c. Analysis
    Under FRA sponsorship, the Volpe Center, with cooperation from 
Bombardier, conducted non-linear, large deformation analyses to 
evaluate the performance of the cab car corner and collision posts of 
the SOA end frame design and the Bombardier M7 design under dynamic 
test conditions. One of the purposes of this research was to determine 
whether the level of crashworthiness demonstrated by the SOA prototype 
design could actually be achieved by a general production design--here, 
the M7 design. Pre-test analysis predictions of the dynamic performance 
of the SOA corner post closely matched test measurements.\8\ A similar 
analysis of the corner post was performed on the M7 design, and the 
results compared closely with the SOA design test and analysis results. 
Overall, the crashworthiness performance of the collision posts of the 
SOA and M7 designs were found to be essentially the same, and the M7 
corner post design was even found to perform better than the SOA corner 
post design. This latter difference in performance was attributable to 
the sidewall support in the M7 design, which was not present in the SOA 
design.
---------------------------------------------------------------------------

    \8\ Martinez, E., Tyrell, D., Zolock, J. Brassard, J., ``Review 
of Severe Deformation Recommended Practice Through Analyses--
Comparison of Two Cab Car End Frame Designs,'' American Society of 
Mechanical Engineers, Paper No. RTD2005-70043, March 2005. This 
document is available on the Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2005/rail_cw_2005_03.pdf.
---------------------------------------------------------------------------

    Having established the fidelity of the models and modeling 
approach, a number of comparative simulations were conducted of both 
the SOA end frame and the M7 end frame under both dynamic and quasi-
static test conditions to assess the equivalency of the two different 
tests for demonstrating compliance with the severe deformation 
criteria. For both sets of tests, the modes of deformation were very 
similar at the same extent of longitudinal displacement, and the 
locations where material failure occurred were also similar. In 
addition, the predicted force-crush characteristics showed reasonable 
agreement within the repeatability of the tests. Figure 3, below, shows 
a comparison of the deformation mode for the M7's collision post, as 
observed from the quasi-static testing that was conducted and as 
predicted for the dynamic loading condition.
[GRAPHIC] [TIFF OMITTED] TR08JA10.002

3. FRA-Sponsored Dynamic and Quasi-Static Testing in 2008
    In 2008, a full-scale dynamic test and two quasi-static tests were 
performed on the posts of an SOA end frame. These tests were designed 
to evaluate the dynamic and quasi-static methods for demonstrating 
energy absorption of the collision and corner posts. The tests focused 
on the collision and corner posts individually because of their 
critical positions in protecting the engineer and passengers in a 
collision where only the superstructure, not the underframe, is loaded.
a. Test Article Design
    The SOA design was originally developed for the Budd Pioneer car 
for the 2002 dynamic impact testing. For the testing in 2008, only a 
Budd M1 car was available, so the design had to be modified to fit a 
Budd M1. The design

[[Page 1191]]

of an end frame for retrofit onto the cab end of a Budd Pioneer car was 
modified to account for differences between the two car designs. In 
addition, reinforcements to the M1 car body and connections from the 
end frame to the car body were designed and fabricated.
    The design of the SOA end frame itself required only a few 
modifications to adapt to the M1 car body. Due to the rounded nature of 
the M1 car body as compared to the Pioneer car body, the lateral extent 
of the anti-telescoping beam was changed slightly so that it extended 
beyond the corner post by 1.5 inches, as compared to 1.0 inches for the 
Pioneer car.
b. Dynamic Testing of a Collision Post
    For this test, a 14,000-pound cart impacted a standing car at a 
speed of 18.7 mph. The cart had a rigid coil shape mounted on the 
leading end that concentrated the impact load on the car's collision 
post. The test was conducted against the NPRM's proposed requirements 
for protecting the engineer's space--namely, that there be no more than 
10 inches of permanent, longitudinal deformation and none of the 
attachments of any of the structural members separate.
    During the test, the collision post deformed approximately 7.4 
inches and absorbed approximately 138,000 foot-pounds of energy. The 
attachment between the post and the anti-telescoping beam remained 
intact. The connection between the post and the buffer beam did not 
completely separate; however, the forward flange and both side webs 
fractured. The post itself did not completely fail. There was material 
failure in the back and the sides of the post at the impact location. 
Overall, the end frame was successful in absorbing energy and 
preserving space for the engineer and the passengers. Figure 4 depicts 
three deformation states from the dynamic test: initial contact of the 
crash cart with the end frame, the greatest intrusion of the end frame, 
and the final deformation state.
[GRAPHIC] [TIFF OMITTED] TR08JA10.003

c. Quasi-Static Testing of Collision and Corner Posts
    A quasi-static collision post test was run to compare the quasi-
static and the dynamic performance requirements proposed in the NPRM 
and to demonstrate the efficacy of the quasi-static test method. The 
NPRM proposed that the collision post absorb at least 135,000 foot-
pounds of energy in no more than 10 inches of longitudinal, permanent 
deformation. Load was applied with the same fixture for the dynamic 
test. This fixture had a diameter of 48 inches and a width of 36 
inches. The fixture was made of a thick, stiff material and reinforced 
so that it did not deform or absorb energy. Longitudinal string 
potentiometers at several locations recorded the deformation of the 
post. Four load cells, connected in parallel, measured the load being 
applied into the post. The force and the displacement were cross-
plotted and the integral was used to calculate the energy absorbed 
during the test.
    The test car was coupled to a reaction car. As the load from the 
hydraulic ram was introduced to the car through the collision post, it 
was reacted through the couplers. The mode of deformation in the quasi-
static collision post test was very similar to the mode of deformation 
seen in the dynamic collision post test. The collision post pulled down 
on the anti-telescoping beam. The post was loaded past 15 inches of 
deformation and did eventually fail completely in the middle. The 
collision post fractured as it separated from the buffer beam. After 11 
inches of crush, the post had absorbed 110,000 foot-pounds of energy. 
Based on the unloading characteristic measured during the test, 11 
inches of crush is approximately equal to 10 inches of permanent 
deformation. Since the collision post and end frame were supposed to 
absorb 135,000 foot-pounds of energy in 10 inches of permanent 
deformation, but only absorbed 110,000 foot-pounds of energy for that 
distance, the test article did not pass the test requirements.
    Design details warranted a closer look in determining why the test 
was unsuccessful. The specimens taken at the location of the fracture 
revealed that an internal gusset on the post coincided with an exterior 
shelf tab. The gusset locations were within specification for these 
posts. However, there is some flexibility with the location of the 
gusset relative to the location to the shelf tab. In both the dynamic 
and quasi-static tests, the fracture occurred at the location of both 
the gusset and the shelf welds. The rigid gusset did not allow the post 
to oval as it deformed, causing the fracture at the back of the post.
    Attention turned to conducting a test of the corner post. The NPRM 
proposed that the corner post absorb at least 120,000 foot-pounds of 
energy with no more than 10 inches of permanent, longitudinal 
deformation. The same fixture was used for this test as for the 
collision post testing. The fixture was centered on the corner post. In 
response to the results of the quasi-static test of the collision post, 
the shelf was redesigned so that the tab was removed and the depth of 
the shelf was decreased. This reduced the number of welds at the corner 
and back of the post. However, because the corner post was not designed 
with internal gussets, gusset design details did not need to be 
addressed.

[[Page 1192]]

    In the quasi-static corner post test, the end frame deformed as 
expected and absorbed energy while deforming. The anti-telescoping beam 
was pulled down significantly and the shelf and bulkhead were deformed. 
The connection between the corner post and the buffer beam fractured, 
but the post did not separate completely. Also, the connection between 
the shelf and the post fractured, but the post itself did not fracture. 
The post and end frame absorbed 136,000 foot-pounds of energy in 11 
inches of crush. After elastic recoil, 11 inches of crush is the 
equivalent of 10 inches of permanent deformation; thus, the test was 
successful.
    The testing program demonstrated repeatable methods for assessing 
the energy-absorbing capability of end frame structures. These methods 
include both dynamic and quasi-static tests where energy absorption and 
permanent deformation are used as limiting criteria. The tests also 
show the improved crashworthiness of the SOA design.
d. Analysis
    Analysis is a crucial part of conducting a full-scale test. Based 
on the results of the 2002 full-scale dynamic test in which a heavy 
steel coil impacted the corner post of an SOA end frame design, some 
fracture was expected in certain key end frame components during the 
2008 tests. For this reason, a material failure model, based on the 
Bao-Wierzbicki fracture criterion, was implemented in the finite 
element model of the car end frame using ABAQUS/Explicit. The finite 
element model with material failure was used to assess the effect of 
fracture on the deformation behavior of car end structures during 
quasi-static loading and dynamic impact and, in particular, the ability 
of such structures to absorb energy.
    The material failure model was implemented in ABAQUS/Explicit for 
use with shell elements. A series of preliminary calculations was first 
conducted to assess the effects of element type and mesh refinement on 
the deformation and fracture behavior of structures similar to those 
found on cab car and MU locomotive end frames, and to demonstrate that 
the Bao-Wierzbicki failure model can be effectively applied using shell 
elements.
    Model parameters were validated through comparison to the results 
of the 2002 testing. Material strength and failure parameters were 
derived from test data for A710 steel. The model was then used to 
simulate the three full-scale tests that were conducted during 2008 as 
part of the FRA program--dynamic impact testing of a collision post, 
and quasi-static load testing of a collision post and a corner post. 
Analysis of the results of the two collision post tests revealed the 
need for revisions to both the design of some key end frame components 
and to key material failure parameters. Using the revised model, pre-
test predictions for the outcome of the corner post test were found to 
be in very good agreement with the actual test results.
    Overall, the results of the tests in comparison with their pretest 
analyses show that, at this time, actual testing is necessary to 
demonstrate performance. However, as modeling methods improve and are 
shown to predict failure and energy absorption more accurately, there 
is the potential that use of analysis alone will in the future be 
acceptable for demonstrating crashworthiness performance.

F. Approaches for Specifying Large Deformation Requirements

    As discussed above, APTA's initial ``severe deformation'' standard 
for corner and collision posts, published in 1999, did not contain 
specific methodologies or criteria for demonstrating compliance with 
the standard. Consequently, the dynamic tests performed by FRA and the 
Volpe Center, static tests performed by members of the rail industry, 
and analyses conducted by the Volpe Center and its contractors all 
helped to develop the base of information needed to identify the types 
of analyses and test methodologies to use. Further, evaluation of the 
test data, with the analyses providing a supporting framework, allowed 
development of appropriate criteria to demonstrate compliance.
    The principal criteria developed involve energy absorption through 
end frame deformation and the maximum amount of that deformation. As 
shown by FRA and industry testing, energy can be imparted to 
conventional flat-nosed cab cars and MU locomotives either dynamically 
or quasi-statically. As shown by Volpe Center analyses, currently 
available engineering tools can be used to predict the results of such 
tests. Given the complexity of such analyses, and commensurate 
uncertainties, there is a benefit to maintaining dynamic testing as an 
alternative for evaluating compliance with any ``severe deformation'' 
standard.
    There are tradeoffs between quasi-static and dynamic testing of cab 
car and MU locomotive end frames. Both sets of tests prescribe a 
minimum amount of energy for end frame deformation. However, the manner 
in which the energy is applied is different, and the setup of the two 
types of tests is different. As demonstrated by the tests conducted by 
Bombardier, quasi-static tests can be conducted by rail equipment 
manufacturers at their own facilities. Dynamic tests require a segment 
of railroad track with appropriate wayside facilities; there are few 
such test tracks available. Nevertheless, dynamic tests do not require 
detailed knowledge of the car structure to be tested, and allow for a 
wide range of structural designs. Quasi-static tests require intimate 
knowledge of the structure being tested, to assure appropriate support 
and loading conditions, and development of quasi-static test protocols 
requires assumptions about the layout of the structure, confining 
structural designs. In addition, dynamic tests more closely approximate 
accident conditions than quasi-static tests do.
    In August 2005, APTA's PRESS C&S Subcommittee accepted a revised 
``severe deformation'' standard for collision and corner posts. The 
standard includes requirements for minimum energy absorption and 
maximum deflection. The form of the standard is largely based on the 
testing done by Bombardier, and therefore is quasi-static. The standard 
eliminates a deficiency of the 1999 standard by specifying test 
criteria to objectively measure ``severe deformation.'' The standard 
can be readily applied to conventional flat-nosed cab cars and MU 
locomotives but is more difficult to apply to shaped-nosed cab cars and 
MU locomotives or those with CEM designs, or both.
    In addition, APTA as well as several equipment manufacturers have 
expressed an interest in maintaining the presence of a stairwell on the 
side of the cab car or MU locomotive opposite from where the locomotive 
engineer is situated. This feature enables multi-level boarding from 
both low and higher platforms. As such, FRA and the APTA PRESS C&S 
Subcommittee worked together to develop language associated with 
providing a safety equivalent to the requirements stipulated for cab 
car and MU locomotive corner posts in terms of energy absorption and 
end frame deformation. The Subcommittee agreed that for this 
arrangement there is sufficient protection afforded by the presence of 
two corner posts (an end corner post ahead of the stepwell and an 
internal corner post behind the stepwell) that are situated in front of 
the occupied space. The load requirements stipulated for such posts 
differ in that the longitudinal requirements are not equal to the 
transverse requirements.

[[Page 1193]]

This in effect changes the shape of these posts so that they are not 
equal in both width and height. For the end corner post ahead of the 
stepwell, the longitudinal loading requirements are smaller than the 
transverse ones. The opposite is true for the corner post behind the 
stepwell. It was agreed to allow for the combined contribution of both 
sets of corner posts, together, to provide an equivalent level of 
protection to that required for corner posts in standard cab car and MU 
locomotive configurations. See the discussion in the Section-by-Section 
Analysis on the structural requirements for cab cars and MU locomotives 
with a stairwell located on the side of the equipment opposite from 
where the locomotive engineer controls the train.

G. Crash Energy Management and the Design of Front End Frame Structures 
of Cab Cars and MU Locomotives

    Research has shown that passenger rail equipment crashworthiness in 
train-to-train collisions can be significantly increased if the 
equipment structure is engineered to crush in a controlled manner. One 
manner of doing so is to design sacrificial crush zones into unoccupied 
locations in the equipment. These zones are designed to crush 
gracefully, with a lower initial force and increased average force. 
With such crush zones, energy absorption is shared by multiple cars 
during the collision, consequently helping to preserve the integrity of 
the occupied areas. While developed principally to protect occupants in 
train-to-train collisions, such crush zones can also potentially 
significantly increase crashworthiness in highway-rail grade-crossing 
collisions.\9\
---------------------------------------------------------------------------

    \9\ Tyrell, D.C., Perlman, A.B., ``Evaluation of Rail Passenger 
Equipment Crashworthiness Strategies,'' Transportation Research 
Record 1825, pp. 8-14, National Academy Press, 2003. This document 
is available on the Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2003/rail_cw_2003_12.pdf.
---------------------------------------------------------------------------

    The approach of including crush zones in passenger rail equipment 
is termed CEM, and it extends from current, conventional practice. 
Current practice for passenger equipment operated at speeds not 
exceeding 125 mph (i.e., Tier I passenger equipment under part 238) 
requires that the equipment be able to support large loads without 
permanent deformation or failure, but does not specifically address how 
the equipment behaves when it crushes. CEM prescribes that car 
structures crush in a controlled manner when overloaded and absorb 
collision energy. In fact, for passenger equipment operating at speeds 
exceeding 125 mph but not exceeding 150 mph (i.e., Tier II passenger 
equipment under part 238), the equipment must be designed with a CEM 
system to dissipate kinetic energy during a collision, see Sec.  
238.403, and Amtrak's Acela Express trainsets were designed with a CEM 
system complying with this requirement.
    FRA notes that Metrolink is in the process of procuring a new fleet 
of cars utilizing CEM technology. As part of its response to the 
Glendale, CA train incident on January 26, 2005, Metrolink determined 
that CEM design specifications should be included in this planned 
procurement, and, in coordination with APTA, approached FRA and FTA to 
draft such specifications. In turn, FRA and FTA formed the ad hoc Crash 
Energy Management Working Group in May 2005. This working group 
included government engineers and participants from the rail industry, 
including passenger railroads, suppliers, labor organizations, and 
industry consultants, many of whom also participated in the 
Crashworthiness/Glazing Task Force. The working group developed a 
detailed technical specification for crush zones in passenger cars for 
Metrolink to include in its procurement specification, as well as for 
other passenger railroads to include in future procurements of their 
own. Metrolink released its specification as part of an invitation for 
bid, and then awarded the contract to manufacture the equipment to 
Rotem, a division of Hyundai, now Hyundai Rotem Company (Rotem).
    Rotem has developed a shaped-nose, CEM design for new Metrolink cab 
cars. Because of the shaped-nose, it is more difficult to engineer 
structural members identifiable as full-height collision posts and 
corner posts that extend from the underframe to the cantrail or 
roofline at the front end, as specified in the current APTA standard. 
Consequently, to meet the APTA standard, Rotem has to locate the 
collision and corner posts inboard of the crush zone, rather than place 
them at the extreme front end of the cab car. Further, as currently 
written, the APTA quasi-static standard does not expressly take into 
account the energy-absorption capability of the crush zone, even if the 
crush zone would likely be engaged in a grade-crossing impact. Although 
the APTA standard acknowledges the use of shaped-nose and CEM designs, 
there remains uncertainty in the standard associated with demonstration 
of compliance by such designs. (The APTA standard does provide that on 
cars with CEM designs, compliance may be demonstrated either through 
analysis or testing as agreed to by the vehicle builder and purchaser, 
but no test methodology or criteria are provided.)
    Dynamic performance criteria place fewer constraints on the layout 
of the cab car or MU locomotive end structure and allow the energy-
absorption capability of the crush zone(s) to be expressly taken into 
account in the design of the collision and corner post structures. As 
noted, this final rule allows for the application of dynamic 
performance requirements for collision and corner post structures of 
cab cars and MU locomotives. FRA believes that the results of the 
crashworthiness research discussed above provide strong support for 
including dynamic performance requirements as alternatives to the 
quasi-static requirements for collision and post requirements in this 
rule, and that it is particularly necessary to address what FRA 
believes will be a growing number of cab cars and MU locomotives 
utilizing CEM designs.

H. European Standard EN 15227 FCD, Crashworthiness Requirements for 
Railway Vehicle Bodies

    In the NPRM, FRA discussed that then-preliminary European standard 
prEN 15227 FCD, Crashworthiness Requirements for Railway Vehicle 
Bodies, included four collision scenarios. This standard is no longer 
preliminary and is consequently referred to throughout this document as 
EN 15227, without the preliminary ``pr'' designation. Collision 
Scenario 3 of the European standard involves a ``train unit front end 
impact with a large road vehicle on a level crossing.'' The standard 
requires commuter and intercity trains to be able to sustain an impact 
with a deformable object weighing 33 kips (15,000 kg) at a speed up to 
68 mph (110 kph). Calibration tests on components and numerical 
simulations of the scenario are recommended for showing compliance.
    FRA has noted key differences between the European standard and the 
dynamic testing collision scenarios that FRA proposed for both 
collision posts and corner posts, below, including the amount of energy 
involved and the character of the object. Assuming that the mass of the 
train is more than about 25 times as great as the mass of the object 
(in that the mass of the train roughly corresponds to the mass of a 
commuter train made up of a cab car, four coaches, and a locomotive; or 
made up of six MU locomotives), then the total energy dissipated in an 
EN 15227 Collision Scenario 3-impact is 5.0 million foot-pounds. The 
total energy absorbed in the collision scenarios included in this final 
rule are 135,000

[[Page 1194]]

foot-pounds for the collision post and 120,000 foot-pounds for the 
corner post. However, in the European standard, the impacted object is 
deformable and potentially absorbs a significant amount of the 
available energy; in the collision scenarios included in this final 
rule, the object is rigid, and virtually all of the energy is absorbed 
by the cab car or MU locomotive.
    A recent paper describes the performance of the SOA end frame in 
both the FRA and the EN grade-crossing collision scenarios.\10\ 
Specifically, testing and analysis of the SOA end frame's performance 
in appendix F's collision post test scenario was compared to an 
analysis of the SOA end frame's performance in EN15227's Collision 
Scenario 3.
---------------------------------------------------------------------------

    \10\ Llana, P., ``Structural Crashworthiness Standards 
Comparison: Grade-Crossing Collision Scenarios,'' American Society 
of Mechanical Engineers, Paper No. RTDF2009-18030, October, 2009. 
This document is available on the Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2009/09-18030.pdf.
---------------------------------------------------------------------------

Table 1
    Table 1 summarizes a few key crashworthiness parameters and results 
from the testing and analysis conducted. Application of the FRA 
scenario involved only one car; whereas the EN 15227 scenario involved 
a complete consist or train unit. The difference in weight of one car, 
80 kips, versus that of a complete consist, 767 kips, was an order of 
magnitude. In the FRA scenario, the 14-kip impact object was tested 
striking the car at 19 mph, resulting in 170 ft-kips of initial kinetic 
energy. Whereas in the EN 15227 scenario, the 767-kip consist was 
analyzed striking the deformable lorry at 53 mph, resulting in 72,000 
ft-kips of initial kinetic energy. The difference in the amount of 
initial kinetic energy involved between the two scenarios was two 
orders of magnitude. Similarly, the impacting objects were quite 
different. As noted earlier, the FRA scenario provides for a rigid 
impact object; whereas in the EN 15227 scenario, the impact object is 
deformable. In the FRA scenario, this resulted in the energy being 
mostly absorbed by the impacted collision post, with virtually no 
energy absorbed by the impact object. Whereas in the EN 15227 scenario, 
both the first car and the impact object absorbed large amounts of 
energy, with very little energy absorbed by one collision post.

  Table 1--Comparison of SOA End Frame Performance Applying Appendix F
        Collision Post Standard and EN 15227 Collision Scenario 3
------------------------------------------------------------------------
                                                      Application of EN
                                 Application of        15227 collision
          Parameter           Appendix F collision       scenario 3
                                  post standard         specification
------------------------------------------------------------------------
Type of Train...............  Single car: 80 kips.  Complete train unit:
                                                     767 kips.
Impact Object...............  Rigid cart: 14 kips.  Deformable lorry: 33
                                                     kips.
Impact Speed................  19 mph (cart).......  53 mph (consist).
Initial Kinetic Energy......  170 ft-kips.........  72,000 ft-kips.
Energy Absorbed.............  End frame: 138 ft-    Leading car: 1370 ft-
                               kips; Cart: ~0;       kips; Lorry: 950 ft-
                               Collision post: 105   kips; Collision
                               ft-kips.              post: 89 ft-kips.
Pass/Fail Criteria..........  Intrusion <= 10 in.,  Preserve survival
                               no separation.        spaces, mean
                                                     deceleration <
                                                     7.5g.
------------------------------------------------------------------------

    As the table shows in summary form, the key parameters of these two 
scenarios are very different, though they are both grade-crossing 
collision scenarios involving rail vehicles with impact objects. 
Additionally, comparing the complexity of the analysis required for 
each scenario, application of the FRA scenario is simpler to analyze. 
In analyzing the FRA scenario, fewer vehicles are involved, initial 
kinetic energy is lower, deformations are less, and the deformations 
that result are virtually all in the car and not the impact object.
    Overall, FRA believes that the following conclusions can be drawn 
about the standards in appendix F and those specified in EN 15227's 
Collision Scenario 3. The appendix F standards concentrate the load on 
a single post, above the underframe; can be applied to both CEM and 
non-CEM equipment; and can potentially be used to demonstrate 
compliance either through analysis or testing. The EN 15227 grade-
crossing collision specification distributes the load across the entire 
end structure; imparts a significant amount of load in the underframe 
and roof structure; assumes the use of CEM equipment; and can be used 
to demonstrate compliance through analysis only. Moreover, FRA believes 
that its dynamic collision scenario is not only easier to analyze, but 
easier to test than the EN 15227 scenario and imparts more energy to 
the impacted post than in the EN 15227 scenario.

IV. Discussion of Specific Comments and Conclusions

    As noted above, FRA received written comments on the NPRM from 
representatives of government; various organizations, including 
railroad labor; railroads; railroad car manufacturers; railroad 
engineering firms; and as well as private citizens. The comments can 
principally be divided into two groups: comments of a technical nature 
affecting the substance of the requirements proposed, and comments as 
to the preemptive effect of the requirements proposed. FRA found that 
these groupings serve the organization of this final rule, even though 
some comments do not fit neatly into either grouping. Please note that 
certain comments are not discussed in either of these two groupings; 
instead, they are discussed directly in the Section-by-Section Analysis 
or in the Regulatory Impact and Notices portion of this final rule.

A. Technical Comments

    This section contains the discussion of technical comments on the 
NPRM, as well as comments closely associated with these technical 
comments. FRA has endeavored to group the comments together by issue to 
the extent possible, rather than by commenter. Please note that the 
order in which the comments are discussed, whether by issue or by 
commenter, is not intended to reflect the significance of the comment 
raised or the standing of the commenter.
    Please also note that following the submission of these written 
comments, FRA convened the Task Force and Working Group to consider and 
discuss the comments and to help achieve consensus on recommendations 
for this final rule. As a result, certain of these comments have been 
superseded by changes made in the rule text from the NPRM to this final 
rule, and they should not necessarily be understood to reflect the 
positions of the commenters with

[[Page 1195]]

respect to the requirements of the final rule. Nevertheless, FRA is 
setting out all of the comments received and is responding to each of 
them here so that FRA's positions are clearly understood.
1. Crash Energy Management
    Caltrans raised concern with FRA's mention of CEM designs in the 
NPRM, believing that no rail equipment that features a CEM design has 
been built, that including CEM in the preamble implied that the NPRM 
included a CEM requirement, and that the implication that CEM designs 
may provide for a higher level of safety would expose those railroads 
not employing CEM designs to litigation for not selecting the ``safer'' 
design as identified by FRA.
    FRA notes that Amtrak's Acela Express trainsets use CEM, and CEM is 
used in European and other vehicles. FRA does believe that, all other 
things being equal, CEM designs are superior in crashworthiness to 
conventional designs. Yet, as FRA stated in the preamble to the NPRM, 
FRA's recognition that fuller application of CEM technologies to cab 
cars and MU locomotives could enhance their safety would not nullify 
the preemptive effect of the standards arising from the rulemaking. FRA 
continually strives to enhance railroad safety, has an active research 
program focused on doing so, and sets safety standards that it believes 
are necessary and appropriate for the time that they are issued with a 
view to amending those standards as circumstances change. FRA has 
imposed, and will continue to impose, the requirements that it deems 
necessary for the safe operation of cab cars and MU locomotives in all 
of the configurations in which they will be operated. FRA is not 
requiring CEM in this final rule.
    RVB also raised concerns with the NPRM for its application to CEM 
designs. RVB asked why the ``static strength'' requirements had to be 
met if the CEM requirements for energy absorption are met. RVB stated 
that the required amount of energy can be absorbed by CEM structures 
using considerably smaller collision and corner posts.
    FRA understands that there are potential alternative arrangements 
using CEM that may place the end frame structure outboard of the crush 
elements or behind the crush elements. If the end frame is situated 
outboard of the crush elements (or crash energy absorbers), then the 
end frame will likely serve as the means for assuring planar 
introduction of the load into the crush elements, allowing them to 
react in a progressive, controlled collapse. To accomplish this energy 
transfer to the crush elements, the end frame must be very rigid, which 
can make meeting the severe deformation requirements for the end frame 
more difficult to achieve. Nonetheless, as long as the system of 
structural and CEM elements protecting the occupied volume performs 
well under the dynamic performance requirements provided in appendix F 
of this final rule, FRA is confident that sufficient protection is 
provided to passengers and crewmembers alike. For end frame members 
inboard of the crush elements, it is likely that they will serve as the 
reaction points for the crush elements. As in the case of end frame 
members outboard of the crush elements, to support the load introduced 
by the crush elements the end frame may have to be very rigid. As a 
result, meeting the severe deformation requirements for the end frame 
may also be more difficult to achieve. Yet, again, as long as the 
system of structural and CEM elements protecting the occupied volume 
performs well under the dynamic performance requirements provided in 
appendix F of this final rule, FRA is confident that the system 
provides sufficient protection for passengers and crewmembers.
    Additionally, FRA would like to make clear that the energy-
absorption requirements in this rulemaking should not be confused with 
energy absorption as part of a CEM approach. While inclusion of energy-
absorption requirements is consistent with FRA's approach to 
incrementally build on traditional crashworthiness requirements, and 
whereas CEM is an advanced crashworthiness approach, FRA did not intend 
that the energy-absorption requirements in this rulemaking be 
considered part of a CEM approach. Instead, FRA's inclusion of energy-
absorption requirements in this rulemaking is intended to address 
traditional cab car and MU locomotive designs that have very strong 
underframes with relatively weaker superstructures, for which it is 
vitally important to provide protection to crewmembers and passengers 
in the event that the superstructure is impacted. FRA is incorporating 
mature technology and design practice to extend from linear-elastic 
requirements to elastic-plastic requirements together with descriptions 
of allowable deformations without complete failure of the system.
    RVB additionally commented that in the NPRM the collision and 
corner posts must be designed for yield strength in the case where the 
posts are behind the CEM structure and used as support for the CEM 
structure. RVB believed that this proposed requirement conflicted with 
the allowance in the NPRM for the posts to resist loads up to their 
ultimate strength. RVB believed that, by requiring yield strength in 
such case, the ultimate strength of the post would be much greater than 
the amount specified.
    FRA understands the complexities introduced by using a CEM design 
that behaves significantly differently than a conventional cab car or 
an MU locomotive because of its crush zone(s). This is one of the 
reasons FRA proposed the option to test such designs dynamically, and 
one of the reasons why FRA has included alternative, dynamic 
performance requirements in this final rule. FRA has modified the 
dynamic performance requirements in the final rule from those proposed 
in the NPRM, and FRA believes that these modifications will help to 
address concerns with applying the requirements to CEM designs.
    RVB also commented that since, by definition, a CEM system requires 
a structure that facilitates controlled collapse of the crush zone(s), 
the proposal would result in a much higher load imparted to the 
underframe than by the 800,000-pound compression load requirement, 
exceeding the yield strength of the structure. RVB claimed that this 
was another area of significant over-design that was unaddressed in the 
NPRM. RVB added that by disallowing correction of static strength 
requirements as they are taken up by CEM systems, a vehicle would be 
heavier than it needs to be, use more energy to operate, and exert more 
force on wheels and rails that would increase maintenance costs for 
equipment and track.
    FRA believes that the commenter is incorrect in its assertions. FRA 
agrees that for CEM designs the overall average load that the structure 
must resist may exceed 800,000 pounds. However, this load is typically 
spread over a significantly larger area than just the line of draft of 
the vehicle, as specified for vehicles not utilizing CEM designs. 
Because the capacity of a vehicle incorporating a CEM design to resist 
compression loads elastically may be taken into account, FRA does not 
believe that this will result in over-design of the vehicle. In 
addition, FRA wishes to dispel the belief that a heavier vehicle would 
be necessary to meet the requirements proposed in the NPRM and those 
contained in this final rule. Crashworthiness features from clean-sheet 
designs can occupy the same space as other material and not weigh in 
excess of the structure(s) being replaced. There is considerable leeway 
in

[[Page 1196]]

designing such systems so that no additional weight is required. 
Moreover, the vehicle body structure itself typically accounts for only 
between 25 to 35 percent of the final weight of a vehicle, which 
minimizes the significance of any weight added to the vehicle to comply 
with the requirements of this final rule.
    RVB further commented that one means of recognizing a CEM vehicle 
addressing the static end strength requirements would be for this part 
238 to specify the minimum amount of energy that must be absorbed by 
each end of a vehicle in a train in a specified collision scenario. 
According to RVB, dynamic testing of the entire crush zone or testing 
of the critical crush zone elements, in conjunction with suitable 
analysis, would be required to confirm compliance, and acceptance 
criteria would include verification that (i) the required minimum 
energy has been absorbed, (ii) the occupied volume is not compromised, 
and (iii) climbing/telescoping does not occur under the collision 
scenario. For a CEM vehicle, RVB believed that this should be in place 
of the specific strength requirements for the collision and corner 
posts, and allow evaluation of the car ends as a system.
    FRA recognizes the possibilities raised by the commenter. FRA 
intends to work with the APTA PRESS C&S Subcommittee to consolidate 
knowledge gained from the Metrolink CEM design effort to support 
development of such criteria. Inclusion of such criteria in this part 
238 would be the subject of a separate rulemaking activity, however, 
and such criteria are not included in this final rule.
    RVB additionally commented that the NPRM suggested that a 
manufacturer with a CEM system may choose to conduct two dynamic tests 
instead of conducting quasi-static tests on the individual components. 
RVB believed the practical situation is that the structure needed to 
support the CEM system would almost certainly meet the quasi-static 
requirements proposed in the NPRM. According to RVB, if a dynamic test 
were to be conducted for a CEM system, it would seem to serve the 
public better to conduct a dynamic test that verifies the performance 
of the entire CEM system, not just for how it protects against a steel 
coil.
    As noted above, FRA plans on working with the industry to address 
the issue of more comprehensive requirements for CEM systems. However, 
with regard to specific application of the requirements of this final 
rule, a dynamic test of a CEM structural system as contemplated by the 
commenter may not in itself demonstrate that the superstructure has the 
strength to protect against the collision scenarios addressed in this 
rulemaking. In such a dynamic test of a CEM structural system, the 
entire end structure of the vehicle would potentially absorb all of the 
collision load. Yet, this final rule specifically targets grade-
crossing collision scenarios where only portions of the superstructure 
are loaded. It is therefore believed that analysis and component 
testing, not a full-scale test alone, would be necessary to verify the 
design of a complete CEM system.
    In its comments, RVB stated that the NPRM introduced requirements 
that would make manufacturers design to the actual strength of some 
components rather than rely on the yield stress as a measure of 
strength. RVB believed that this approach is sensible, particularly as 
CEM systems are introduced, in that such systems rely on controlled 
(plastic) deformation and operation at the maximum strength (load) 
capacity of structural members in collisions. Nevertheless, RVB 
believed that there are still numerous transportation requirements that 
are based on yield strength and that these impose constraints on the 
design of CEM members that may not be sensible, including the anti-
climbing arrangement and the collision and corner post load cases for 
application points well above the underframe. According to RVB, FRA 
should consider moving to a true strength approach for all components 
as it stated is being done in much of the structural engineering 
community.
    FRA notes that the commenter is focused on CEM systems for which 
the rule will probably not be applied for some time, and, if sooner, 
for systems FRA would have to review individually because such systems 
are sufficiently different from conventional designs. The requirements 
based on yield strength work well for non-CEM designs and facilitate 
their testing and use.
    RVB also commented on FRA's statement in the NPRM that an energy- 
absorption requirement of 5 megajoules (MJ) will effectively prevent a 
cab car from being used in the lead position for Tier II equipment. RVB 
believed that this magnitude of energy absorption is feasible for cab 
cars.
    FRA recognizes that advancements have been made in the ability of 
CEM systems to absorb energy. However, FRA continues to believe that 
for operational speeds in excess of 125 mph, as a rule of general 
applicability for our nation's railroads, no passengers should be 
allowed in the lead vehicle. Tier II passenger equipment can operate at 
speeds where the amount of energy required to be dissipated is too 
large for any vehicle design to survive a direct impact. Yet, with use 
of advanced system designs such as Positive Train Control (PTC) and 
CEM, the risk may potentially be minimized, and FRA would consider such 
cases individually in the context of the particular environment in 
which the equipment would operate.
    In its comments on the NPRM, Caltrain stated that it would be far 
more appropriate for FRA to define a risk assessment methodology and 
prescriptions for addressing risk, letting designers provide 
alternatives such as CEM that deliver the required performance. 
Caltrain asked why a collision post inboard of a CEM system would be 
required to resist the same load as a collision post where there is no 
CEM system. Caltrain stated that presumably the load would be reduced 
as the CEM system performs its function, so that a substantially 
lighter collision post could be used to protect the passenger space, if 
the CEM system does not otherwise eliminate altogether the need for an 
interior collision post. Caltrain believed that if it is the intent of 
FRA to provide this level of flexibility, FRA should make this clear.
    It is indeed FRA's intent to provide flexibility for vehicle 
designs with CEM features. In the final rule, FRA has added appendix F 
to part 238 to provide dynamic performance requirements as alternatives 
to both the collision and corner post quasi-static requirements. These 
dynamic performance requirements specify the performance of the end 
frame, were prepared with CEM designs in mind, and provide the designer 
leeway in choosing how that performance will be achieved. Nonetheless, 
FRA is not defining a risk assessment methodology and prescriptions for 
addressing risk, as an alternative to the collision and corner post 
quasi-static requirements. FRA believes that appendix F to part 238 
provides the flexibility needed while assuring safety with more 
certainty than by performance of a risk assessment alone.
2. Dynamic Performance Requirements
    FRA received a number of comments on its proposal to include 
dynamic performance requirements as an option to demonstrate compliance 
with the severe deformation requirements for collision and corner 
posts. In addition to inviting general comment on the proposal, FRA 
invited specific comment on the dynamic testing collision scenarios 
included in the proposed rule, including suggestions for any 
alternative

[[Page 1197]]

collision scenario or way to address possible future designs. FRA also 
invited specific comment whether this final rule should provide for all 
cab cars and MU locomotives to be tested dynamically to demonstrate 
compliance--whether or not they have a shaped-nosed design or a CEM 
design--and, if so, whether the collision scenarios included in the 
proposed rule are appropriate or whether another collision scenario 
would be.
    CPUC supported FRA's intent to allow full-scale crash testing as an 
alternative to quasi-static testing to determine the crashworthiness of 
a prototype cab car or MU locomotive. APTA expressed support for FRA's 
approach to bring the Federal structural requirements for cab cars and 
MU locomotives up to current industry standards, including quasi-static 
tests with specific pass/fail requirements to demonstrate the ability 
of collision and corner posts to undergo severe deformations prior to 
failure. (APTA did advise that FRA make sure to reference in the 
preamble and section-by-section analysis APTA's most current industry 
standard, APTA SS-C&S-034-99, Rev. 2--not Rev. 1.) APTA appreciated 
FRA's concern that future vehicles utilizing CEM designs may require 
different treatment in Federal structural regulations than those with 
traditional flat-nosed designs. However, APTA had several concerns 
about including the proposed dynamic test option to accommodate such 
designs in the final rule. Noting that FRA has conducted an extensive 
full-scale collision test program to gain confidence in predictive, 
finite element analysis models and to support development of industry 
standards and rulemaking, APTA believed that FRA should not include a 
dynamic test scenario in the regulation unless and until similar 
testing supports it. APTA urged FRA to conduct appropriate testing and 
defer inclusion of dynamic testing in the regulation, even as an 
option, until those test results are available and validate the model.
    As discussed in the ``Technical Background'' portion of this 
preamble, the testing described by APTA has been completed. In 2008 a 
full-scale dynamic test and two full-scale quasi-static tests were 
performed on the posts of an SOA end frame. These tests were designed 
to evaluate the dynamic and quasi-static methods for demonstrating 
energy absorption by--and graceful deformation of--the collision and 
corner posts. FRA believes that these tests support inclusion of the 
quasi-static and dynamic performance requirements of this final rule 
and address APTA's concerns.
    APTA also mentioned that in the NPRM FRA stated that alternative, 
dynamic performance requirements are necessary because shaped-nose 
designs may not have readily identifiable, full-height corner and 
collision posts. APTA stated that, although FRA referred to the CRM and 
Rotem designs as potential examples of shaped-nose designs, both these 
designs include easily identifiable, full-height collision and corner 
posts behind the shaped nose. According to APTA, all evidence points to 
having collision and corner posts up to their full height as key design 
features to protect the engineer and passengers from front-end 
collisions.
    FRA believes that the dynamic performance requirements in this 
final rule allow in particular for innovative designs that protect the 
occupied volume for its full height, even without what would be 
identified as full-height collision and corner posts. Whether or not 
the Rotem and CRM designs have full-height collision and corner post 
structures does not address FRA's underlying concern that the 
requirements in this final rule would otherwise be too restrictive 
without the alternative standards based on dynamic testing. For 
instance, the Stadler Rail equipment procured by the Capital 
Metropolitan Transportation Authority (CMTA) in Austin, TX, has no 
readily identifiable collision or corner post structures and yet has 
been found to behave well under analysis using the dynamic performance 
requirements in this final rule. By not allowing for such design 
innovation, potential use of alternative designs that could demonstrate 
compliance would be unnecessarily restricted.
    Further, APTA questioned the safety implications of allowing such 
key features as full-height collision and corner posts to be optional. 
APTA stated that all the full-scale testing done by FRA, all the model-
validation testing, and all the knowledge gained of how the end frame 
performs in collisions pertain to equipment with these design features. 
Until such safety implications are better understood, APTA believed the 
inclusion of alternative, dynamic performance requirements to be 
premature. Overall, APTA was not convinced that the proper foundation 
has been established for adding these dynamic performance requirements 
to the final rule, nor was APTA convinced that a single dynamic test 
demonstrates full equivalency for the range of protections provided by 
traditional full-height collision and corner posts.
    As provided in the final rule, FRA makes clear that the occupied 
volume must be protected for its full height, utilizing either the 
quasi-static or the dynamic performance requirements. FRA expects that 
for traditional flat-nosed designs, the occupied volume will be 
protected for its full height by means of full-height collision and 
corner posts. Yet, for other designs, this protection of the occupied 
volume for its full height could be achieved by the performance of the 
entire end frame acting together to prevent intrusion and absorb 
energy. FRA believes that there are many potential ways of providing 
protection for the full height of the occupied volume, and this is 
reflected in the final rule.
    In its comments on the NPRM, RVB stated that use in dynamic testing 
of a proxy object that is essentially a steel coil has a historical 
basis resulting from only a few accidents. RVB believed that the 
European approach of using a proxy vehicle would be more sensible and 
that it was not clear why FRA would resist adopting aspects of that 
approach that are in widespread use in Europe and other countries.
    As discussed earlier, FRA notes that use of a proxy object that 
deforms (a deformable lorry, e.g.) adds undue complexity to the 
analysis of impacts. In addition, development of a proxy object with a 
repeatable crush response is, in itself, a daunting task, and the cost 
of developing such an object for each car manufacturer is not cost 
beneficial. Nevertheless, FRA has modified from the NPRM the manner in 
which the dynamic testing is conducted, to address related concerns 
about use of the proxy object. Further, FRA believes that the grade-
crossing collision scenarios on which the dynamic testing is based 
challenges the end frame members in a way that can clearly demonstrate 
the ability of the end frame to resist significant impact loads.
    RVB also commented that it was unclear why FRA decided to position 
the proxy object 19 inches from the car center in the collision post 
dynamic test. RVB stated that not all collision posts are located 19 
inches from the centerline, and believed it would seem better to center 
the proxy object at the post itself.
    FRA notes that the location of the collision posts is dictated by 
the need to place the posts at the one-third points laterally, along 
the end of the vehicle. With this in mind, positioning the proxy object 
19 inches from the car center is intended to engage the end frame where 
the collision post structure will be. Nevertheless, because the 
alternative, dynamic performance requirements

[[Page 1198]]

more fully test the end frame as an integrated whole rather than as 
individual structural elements, and are not intended to test the 
strength of an individual element quasi-statically, it is not necessary 
to specify that the impact be centered on the collision post structure.
    RVB further commented that the NPRM seemed to impose essentially 
the same energy-absorption requirements on both the collision and the 
corner posts in the alternative, dynamic performance requirements, and 
RVB was unclear if this was FRA's intent. RVB claimed that there is 
practically no difference between the 20 and 21 mph impact speeds that 
were proposed for the dynamic performance requirements, asserting that 
the target speeds used for actual testing would need to be higher than 
these values to ensure that the speeds are achieved.
    FRA notes that in conducting a dynamic test there are alternative 
means of imparting impact energy into the front end of the cab car or 
MU locomotive. Speed is only one of the elements that make up impact 
energy. FRA has taken this fact into account in preparing the final 
rule and restated the dynamic performance requirements in terms of the 
amount of collision energy imparted. No specific test speeds are 
stated. Yet, the amount of collision energy is specific for each test 
of the two types of post structures, and each amount of collision 
energy was carefully chosen based upon input from industry 
stakeholders. FRA makes clear that it is not necessary to impart higher 
levels of energy than specified in this final rule to assure that the 
requirements are met. Of course, these requirements are minimum 
standards and may be exceeded by the manufacturer.
    Additionally, RVB commented that the top of the deformable anti-
climber of the FRA CEM-design is approximately 24 inches above the top 
of the underframe. RVB believed that an impact with a circular proxy 
object centered 30 inches above the top of the underframe, as proposed 
in the NPRM, could result in a ramp and alter the trajectory of the 
object in an undesirable manner. As a result, RVB believed it unclear 
how much energy would actually be imparted as intended to the 
structural elements, and that it may not be prudent to conduct a 
dynamic test in this manner for such a design to demonstrate its 
compliance.
    FRA notes that the FRA CEM-design is intended to act as a complete 
system so that even if a ramp were to form on the deformable anti-
climber, the end frame structure would be able to resist intrusion by 
the proxy object into the occupied space of the vehicle. The deformable 
anti-climber can absorb a significant amount of energy prior to 
bottoming out even when loaded in an offset manner. Nevertheless, to 
minimize the potential for off-axis rotations, FRA has reconsidered use 
of the standing proxy object specified in the NPRM to be struck by a 
moving cab car or MU locomotive, and has specified instead use of a 
proxy object connected to a moving crash cart to strike a standing cab 
car or MU locomotive.
    In its comments on the NPRM, Caltrain raised concern with the 
testing performed by FRA to validate the effectiveness of the proposed 
collision and corner post requirements. Caltrain stated that the 1998 
NICTD grade-crossing accident in Portage, IN, was recreated with a 
40,000-pound steel coil at an impact test speed of 14 mph. Caltrain 
stated that the test speed used to recreate this accident was far lower 
than in most grade-crossing accidents, and that the test did not 
actually compare the proposed design to one that was compliant with 
part 238. Caltrain believed that data from a higher-speed test, using 
equipment that is compliant with part 238, would be more useful in 
evaluating potential solutions.
    As discussed earlier, the SOA design is compliant with part 238 and 
has been tested. Further, the test cited by the commenter was carefully 
designed to overload only the structure of interest, and was not 
intended to replicate the actual collision speed. Moreover, FRA 
emphasizes that in this rulemaking the agency is taking an incremental 
approach to improving safety by enhancing the current end frame design 
of cab cars and MU locomotives. As noted, FRA is separately exploring 
the application of CEM to provide protection against even higher speed 
events.
    In its comments on the NPRM, Caltrans stated that any dynamic 
testing requirement, even as an option, should be founded in actual 
testing and validation of the variables and proposed design criteria. 
Caltrans mentioned that although FRA has conducted tests that simulate 
a collision with a highway vehicle carrying a roll of coiled steel, the 
actual tests as conducted had significantly lower impact speeds and 
greater allowable deformation requirements. Caltrans maintained that 
until a real-time crash test has been conducted and analyzed by FRA 
that uses identical testing variables, inclusion of a standard for 
dynamic testing of end frame designs is premature.
    FRA notes that the energy involved in the earlier testing 
supporting the NPRM was in fact equivalent to that proposed in the 
NPRM. Nevertheless, additional dynamic testing has been performed in 
support of the requirements in this final rule. Specifically, as 
discussed in the ``Technical Background'' section, a dynamic test was 
successfully conducted on April 16, 2008, and the dynamic performance 
requirements in this final rule are based on the actual test conditions 
and amount of collision energy imparted.
    Caltrans also commented that FRA needs to clarify whether full-
height collision and corner post tests are required if the alternative, 
dynamic performance requirements are used, and if not, whether FRA has 
performed a structural analysis showing that safety may be maintained 
in the absence of full-height posts. Caltrans cited FRA's statement 
that dynamic testing is essential as an option for validating car 
designs that feature non-flat front ends. Yet, Caltrans believed that 
current car designs that feature non-flat front ends, CRM's diesel MU 
locomotive and Metrolink's new Rotem cab car, both feature full-height 
collision and corner posts.
    FRA makes clear that the fact that testing collision and corner 
posts dynamically is provided as an alternative in the final rule does 
not mean that protecting the full height of the occupied volume is 
optional under such circumstances. For traditional end frame designs 
(i.e., flat-nosed designs) tested dynamically, full-height collision 
and corner posts are certainly not optional. Yet, FRA believes that the 
rule must continue to allow flexibility for other design approaches 
that may use different shapes and structures to protect the full height 
of the occupied volume. For example, FRA notes that novel designs may 
effectively prevent intrusion into the occupied volume through 
application of the concept of deflection--to deflect objects away from 
the vehicle. For such design approaches, full-height collision and 
corner posts are not necessarily required, provided, of course, that 
the occupied volume is nonetheless protected for its full height. FRA 
has conducted analysis to show that safety can be maintained in the 
absence of full-height collision and corner posts. Manufacturers 
attempting to meet the requirements of this final rule must perform the 
detailed structural analyses to show that safety is maintained in the 
absence of these structures.
    In its comments on the NPRM, Bombardier raised a number of concerns 
with the proposal to include an option for a dynamic method of 
demonstrating compliance with the proposed severe-

[[Page 1199]]

deformation requirements for collision and corner posts. Bombardier 
believed the proposal to be contrary to the recommendation of the Task 
Force in developing the NPRM. Bombardier stated that it supported the 
general industry consensus that such dynamic performance requirements 
should not be included as an option, contending that the proposed 
dynamic tests were impractical, had not been fully validated, did not 
adequately test a realistic production design end structure, raised 
safety concerns, and would be costly. FRA will address each comment in 
turn.
    Bombardier stated that due to the significantly higher static load 
design requirements for collision posts (compared to corner posts), 
collision posts would be much more substantial in size and strength 
than corner posts. However, because the proposed dynamic test defined 
only a 1.0 mph difference between the impact speeds to test both 
collision and corner post structures, Bombardier believed this 
illustrated the sensitivity in the size of the post required to resist 
such a small increase in impact velocity. According to Bombardier, a 
1.0 mph difference in test speeds would approach the accuracy 
achievable for a full-scale impact test, and, from a practical 
perspective, would create various technical and commercial problems, 
most likely require re-testing if the actual test speed were only 
marginally above or below the target speed. For instance, Bombardier 
claimed that if the actual impact speed during the test of a corner 
post were 1.0 mph above the target speed for corner posts (i.e., at the 
impact speed required to qualify a collision post) there would be a 
high probability that the corner post would fail and a re-test of 
another production end frame would be required. Similarly, Bombardier 
maintained that if the post were tested at a speed slightly below the 
target value, it may not absorb the energy required in the proposed 
regulation and, again, a re-test would likely be required to verify 
compliance.
    FRA notes that the dynamic performance requirements proposed in the 
NPRM were intended to be both practical and achievable, as illustrated 
by the fact that the proposed quasi-static requirements would have 
required the same levels of energy absorption. These levels of energy 
absorption were chosen after comparing the performance of the FRA-
developed, SOA end frame with a production model tested by the 
commenter. Moreover, the commenter worked in conjunction with FRA and 
the Volpe Center to assess the degree of incremental improvement that 
is reasonably achievable for collision and corner posts, and a paper 
was published on this topic. (See ``Review of Severe Deformation 
Recommended Practice Through Analyses--Comparison of Two Cab Car End 
Frame Designs,'' cited above.) There are various ways to achieve the 
impact speeds with the precision required for either the proposed 
collision post or corner post tests, and the speeds were intended to be 
minimum speeds that could be exceeded by the manufacturers (as FRA's 
requirements are safety minimums). Nonetheless, FRA has revised the 
dynamic performance requirements in this final rule to state the 
requirements in terms of collision energy rather than collision speed. 
Like the collision speeds proposed in the NPRM, the specified levels of 
collision energy may also be exceeded.
    Bombardier also commented that, while FRA had conducted analysis to 
determine the severe deformation characteristics of a collision post, 
no dynamic testing had been conducted to verify the acceptability or 
practicality of the dynamic test proposed for collision posts. 
Bombardier stated that, while a dynamic test had been conducted on the 
SOA corner post, that test used a significantly different proxy object 
mass (40,000 lbs vs. 10,000 lbs) and different impact speed (14 mph vs. 
21 mph) than that proposed in the NPRM. Bombardier maintained that, 
although FRA analysis showed these to be ``equivalent'' tests, the 
actual qualification test proposed in the NPRM had never been 
validated. Bombardier compared this situation to the proposed changes 
to the large-object impact test for forward-facing glazing, which the 
Task Force separately considered, stating that FRA predicted that a 
test based on energy using a different mass and impact speed would be 
equivalent to the current glazing requirements but that subsequent 
tests that were conducted at the request of industry to validate the 
proposed requirement confirmed that the proposed tests were not 
equivalent. Therefore, Bombardier contended that until FRA conducts and 
validates the proposed dynamic tests for both a collision post and a 
corner post on a production-model end frame, it would be premature to 
include such requirements in this part.
    As discussed in the ``Technical Background'' section, FRA makes 
clear that the testing cited by the commenter was completed 
successfully on April 16, 2008, following submission of these comments. 
The collision post and the entire SOA end frame performed well under 
the impact conditions prescribed and maintained the requisite safe 
volume for the locomotive engineer. Equivalency of the testing has been 
validated.\11\ With regard to glazing, FRA believes that a fuller 
discussion of glazing is necessary in a separate forum, including a 
discussion of the glazing testing cited by the commenter and the 
current glazing test requirements. Nevertheless, FRA does not believe 
that the agency is required to conduct such testing on a production 
design. FRA does have the responsibility to demonstrate that the rules 
to be imposed on the industry are achievable and do not impose undue 
economic costs. Yet, this can be accomplished in different ways, 
including engineering analysis, prototype testing, and analysis of 
information provided by the industry on its production designs. This 
process was followed in the development of the proposed performance 
standards supporting this final rule.
---------------------------------------------------------------------------

    \11\ Priante, M., Llana, P., Jacobsen, K., Tyrell, D., Perlman, 
A.B., ``A Dynamic Test of a Collision Post of a State-of-the-Art End 
Frame Design,'' American Society of Mechanical Engineers, Paper No. 
RTDF2008-74020, September 2008. This document is available on the 
Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2008/08-74020.pdf.
---------------------------------------------------------------------------

    In addition, Bombardier commented that on several occasions 
industry members pointed out to FRA that, while the full-scale test of 
the SOA corner post design was valuable to validate specific design 
features and characteristics, the SOA design did not fully represent a 
production design. Bombardier stated that on a production-version end 
frame (flat-nosed), the corner post is set back from the collision post 
in the longitudinal direction by about 6 inches to accommodate car 
clearance during curve negotiation, and both the collision and corner 
posts are connected laterally by the lateral shelf and bulkhead. 
According to Bombardier, this arrangement would cause the proxy object 
to impact the structure between the collision and corner posts, rather 
than directly impact the corner post, in a dynamic test of a 
production-model corner post. Bombardier likewise believed that for a 
flat-nosed cab car, the proxy object would impact the structure between 
the collision and corner posts at 18 inches from the outside of the 
vehicle, instead of on the corner post (stating, e.g., that the coil 
would contact the sheathing on a flat-nosed cab car about 4\1/2\; 
inches ahead of the corner post), and that this would be greater for a 
non-flat-nosed car. According to Bombardier, this would result in both 
the collision and corner posts sharing the impact load and that it 
would therefore be possible to design a structure with a weaker corner 
post than

[[Page 1200]]

would be required to meet the quasi-static requirements.
    As FRA has noted, FRA intends that the dynamic performance 
requirements be applicable to end frame designs that may not have 
identifiable corner post or collision post structures. For such 
designs, it is expected that the end frame will act more as an 
integrated whole in resisting an impact load, rather than having one 
structural element to resist the load by itself. Nonetheless, the final 
rule directs that the impact loads be applied to the end frame at the 
corner post and collision post locations. FRA does note that use of a 
crash cart to impart these loads is not specifically required by this 
final rule (even though FRA generally assumes that a cart will be used 
for purposes of the discussion in this preamble and in the examples 
provided in the rule text). Use of a crash cart is intended to help 
achieve a more repeatable testing methodology and better focus the 
impact loads than through use of the proxy object proposed in the NPRM, 
but allowance is provided for variation in the test set-up so that a 
car builder may tailor a test in a way that is best suited for a 
particular design within the requirements specified.
    Bombardier further commented that, as FRA noted in the NPRM, 
industry members had raised concerns regarding the safety of conducting 
full-scale, dynamic testing of collision and corner posts. While these 
members acknowledged that all testing, including that required for 
quasi-static testing, requires attention to safety, Bombardier believed 
that it is much easier to manage the safety of a quasi-static test, 
which is conducted in a controlled lab/shop environment, than the type 
of dynamic tests proposed in the NPRM. Noting that during the dynamic 
test of the SOA corner post one side of the vehicle completely lifted 
off the rail, Bombardier raised concern about the potential likelihood 
and consequence of a derailment occurring in a dynamic test of a 
production-design vehicle at a higher speed, especially one with a 
shaped-nose. Bombardier believed that there would be particular safety 
concern in conducting the proposed dynamic test because the 10,000-
pound proxy object would be positioned between the rails directly in 
front of the test vehicle and fall directly in front of the vehicle. 
Bombardier therefore stated that it would be premature to include the 
proposed dynamic tests in a Federal regulation, until FRA conducts and 
validates the safety of these tests on a collision post and a corner 
post for both a flat-nosed and a shaped-nose, production-model end 
frame.
    As discussed earlier, FRA has modified the alternative, dynamic 
performance requirements in this final rule so that the testing 
methodology is safer and more repeatable. Specifically, FRA has 
modified the testing methodology so that the proxy object is set in 
motion to strike a standing cab car or MU locomotive. The resultant 
speed of the cab car or MU locomotive from being struck by the object 
is expected to be approximately 3 mph. Even if a cart connected to the 
proxy object should derail during the test, the cart is much lighter 
than a cab car or MU locomotive, and would present a much lesser safety 
hazard than would a derailment of those heavier vehicles. FRA believes 
that this revised test methodology sufficiently addresses the safety 
concerns raised by the commenter.
    Bombardier also commented that while the NPRM indicated that a 
dynamic test option is needed to address cars with shaped noses or CEM 
designs, or both, all of the analysis and testing that had been 
conducted had been directed to assure that flat-nosed cab end 
structures undergo ``graceful,'' severe deformation and maximize the 
energy absorbed by the post structure before total failure of the top 
or bottom post connections occurs. Bombardier believed that utilizing a 
dynamic test to validate a shaped-nose design significantly deviates 
from the original intent of the severe-deformation requirements. 
According to Bombardier, shaped-nose designs would inherently be much 
stiffer than flat-nosed designs, and as a result would have a much 
greater tendency to deflect the proxy object rather than absorb the 
energy through severe structural deformation. Bombardier therefore 
maintained that the proposed dynamic test option would not be a measure 
of the severe-deformation performance of shaped-nose designs. 
Additionally, Bombardier stated that CEM designs would have well-
defined, severe-deformation requirements that typically require 
significantly more energy absorption than that defined in the NPRM for 
collision and corner posts, and as such, requiring the proposed dynamic 
(severe-deformation) test option would be redundant. Consequently, 
Bombardier recommended that the proposed requirements for the dynamic 
test option be deleted and that the proposed quasi-static test 
requirements for the collision and corner posts be retained for only 
flat-nosed designs.
    FRA notes that the goal of dynamic testing is preservation of a 
survivable space for the train crew and passengers. Flat-nosed designs 
must be able to absorb energy and deform gracefully because these 
designs are inherently required to interact with objects that threaten 
the superstructure of the car. Yet, FRA disagrees with not allowing the 
industry the alternative to use dynamic performance requirements. A 
dynamic test does not have to be conducted--it is provided as an 
alternative to demonstrate compliance. There are certain designs for 
which it would be difficult, if not impossible, to test quasi-
statically, such as the Stadler Rail equipment procured by the CMTA. 
Moreover, for a quasi-static test in which the front end of the car is 
not flat, or the post is not centered on the specified impact point, 
applying a high force could cause the impactor shape to shift 
vertically or laterally, when all it should do is move longitudinally. 
The benefit of a dynamic test as an alternative is that the force would 
be applied quickly and the test could be conducted properly, even if 
the cart moved laterally or vertically and derailed.
    Bombardier also commented that it did not agree with the 
justifications outlined in the NPRM for including alternative, dynamic 
performance requirements. Bombardier stated that there was significant 
discussion in the NPRM about CEM and European standard EN 15227, 
Crashworthiness Requirements for Railway Vehicle Bodies, and its four 
collision scenarios. Bombardier believed that extreme care must be 
taken when comparing such a European standard with the severe-
deformation requirements proposed in the NPRM and in the current APTA 
standards. According to Bombardier, FRA must clarify that EN 15227 is a 
standard for the qualification of a CEM system, where a large quantity 
of energy is absorbed, and not a severe deformation standard for 
collision and corner posts where a very small amount of energy 
absorption is required. However, Bombardier did agree that the approach 
in the European standard should be taken into consideration at the time 
when CEM standards are developed for North American application.
    FRA believes that it was appropriate in the NPRM to reference the 
European standard and its adoption of dynamic test standards. FRA did 
not intend to indicate that the European standard was comparable to the 
dynamic performance requirements proposed in the NPRM, and FRA did 
highlight several differences between them. As noted above, FRA has 
made a more technical comparison of the European deformable-lorry 
requirements and the dynamic performance requirements in this final 
rule. This effort involved

[[Page 1201]]

taking FRA's prototype end frame design and using finite element 
analysis to compare its performance with the European specification and 
the final rule's requirements. Significant differences were found 
between the rule's dynamic performance requirements and those described 
in the European standard, including: the safety of conducting such 
testing, the repeatability of the results obtained, the ease of 
analysis, and the focus on the performance of the superstructure of the 
cab car or MU locomotive. The FRA dynamic performance requirements 
entail lower amounts of collision energy designed to provide repeatable 
results under conditions that are readily analyzable with a clear means 
of assessing adequate performance. The same was not found to be true of 
the European standard.
    In its comments on the NPRM, CRM raised concern with actual dynamic 
testing of collision and corner posts using curved-shaped equipment, 
believing that the curved shape can be addressed in a quasi-static test 
but that the results would likely differ with those from a dynamic 
test.
    FRA notes that, although the manner of load application can vary, 
dynamic testing provides immediate feedback as to how the tested 
structure will perform in an actual collision. Quasi-static testing of 
a shaped structure has to simplify for how the load enters the 
structure and reacts; consequently, the test results may not be truly 
reflective of actual performance. For this reason, FRA believes that 
the alternative, dynamic performance requirements in this final rule 
are better applicable to non-traditionally-shaped cab cars and MU 
locomotives.
    CRM also commented that the dynamic testing proposed for the corner 
post of an aerodynamically-shaped car would impart larger lateral and 
vertical loads on the corner post than on the collision post.
    As FRA has noted, the dynamic performance requirements included in 
this final rule facilitate testing of end frame designs without readily 
identifiable collision or corner post structures. In this light, 
instead of focusing on whether an individual corner post or collision 
post structure is capable of resisting an applied load, the focus is 
more appropriately placed on the ability of the end frame structure as 
an integrated whole to withstand the impact. In fact, the end frame may 
be intentionally shaped to deflect a striking object, which would be an 
acceptable means of complying with the dynamic performance 
requirements.
    Additionally, CRM raised concern about the repeatability of energy-
absorbing testing, stating that it has found that physical properties, 
such as yield, can be 30-percent higher than the published minimum. CRM 
asked if FRA has experience in the repeatability of identical energy-
absorption tests with substantially-varying material properties, noting 
that repeatability studies it had seen were for multiple test samples 
made with both the same heat and physical properties.
    FRA recognizes that material variability is a concern. 
Manufacturers may need to request that specific material testing be 
conducted when ordering materials for constructing cab cars and MU 
locomotives in compliance with this rule. Nevertheless, differences in 
yield strength are not as important as differences in the elongation to 
failure of the material, because most of the performance of interest is 
associated with plastic deformations. FRA has conducted dynamic and 
quasi-static tests of nominally the same design with varied results in 
energy absorption. This experience has demonstrated the importance of 
validating analysis through testing. Small design details can have 
dramatic effects and should be considered carefully in highly loaded 
areas.
3. Alternative Corner Post Requirements for Designs With Stepwells
    The BLET raised concern with the proposed corner post requirements 
for cab cars and MU locomotives utilizing low-level passenger boarding 
on the non-operating side of the cab end. The BLET believed that the 
proposed requirements for corner post resistance were significantly 
lower than those for the operating side. The BLET stated that it has 
consistently voiced the position that current crashworthiness 
protection for this equipment is so low that the only practical 
recourse a locomotive engineer has after realizing a collision is 
impending is to place the train's brakes in emergency and flee the 
operating cab, running through the car toward the rear. While the BLET 
did believe that the standards proposed in Sec.  238.213(b) would mark 
a significant improvement for the engineer's immediate worksite, it 
believed that lesser, non-operating side requirements in Sec.  
238.213(c) would still create a Hobson's choice for a locomotive 
engineer in the seconds immediately preceding a collision. Claiming 
that there would be a much greater potential for the non-operating side 
of the car to deform in such a way as to provide insufficient 
survivability, the BLET stated that both sides of the equipment should 
be required to withstand the same level of force. The BLET added that 
it is noteworthy that the non-operating side of the equipment is 
typically located on the ``railroad'' side of the train and that, as a 
result, impacts on that side are more likely to involve railroad 
equipment, producing higher collision forces. Similarly, in a frontal 
raking collision between two trains made of up this equipment, the BLET 
believed that the two ``weaker'' corners would meet, with potentially 
catastrophic consequences for passengers and crewmembers alike. The 
BLET also stated that the Volpe Center had researched and tested 
stepwell configurations and determined that it was viable to design a 
stepwell that was capable of supporting the end/buffer beam so that the 
non-operating side of the cab could comply with proposed Sec.  
238.213(b).
    FRA notes that, after a review and analysis of technical 
information, both FRA and APTA's PRESS C&S Subcommittee determined that 
the proposed alternative arrangement would provide a level of safety 
equivalent to that on locomotive engineer's side of the cab end. 
Moreover, the analysis did not show that an impact on the non-operating 
side of the cab end would be more likely to spread damage across the 
full width of the cab end as described by the commenter. Nevertheless, 
in light of the comments raised, FRA conducted a further review and 
analysis of the available technical information. That review and 
analysis reaffirmed FRA's determination that the engineer and other 
occupants would not be placed at greater risk as a result of the corner 
post arrangement on the non-operating side of the cab end. FRA has 
therefore decided to retain this provision in the final rule. However, 
the final rule contains an additional requirement that FRA review and 
approve plans for manufacturing cab cars and MU locomotives with this 
corner post design arrangement. Each plan must detail how the corner 
post requirements will be met, including what the acceptance criteria 
will be to evaluate compliance. FRA believes that this close oversight 
will help to alleviate concerns that the manufactured designs are in 
any way less safe for crewmembers and passengers to occupy.
    Another commenter on the NPRM, Caltrans, expressed its support of 
the proposed requirement that car designs featuring low-level passenger 
boarding in an end vestibule opposite from the engineer's seating 
location have two corner posts on that non--operating side of the car. 
However, Caltrans stated that the rule must make clear that this 
requirement applies only to those cars

[[Page 1202]]

with a passenger loading stepwell in the same vestibule as the 
engineer's control location. Caltrans believed that this provision 
should not encompass its car design where the engineer is located on 
the second level of the car and the side door is on the opposite side 
on the lower level.
    FRA agrees with the comment raised by Caltrans and makes clear that 
the provision does not apply to a design where the stepwell and 
engineer's cab are not in the very same vestibule.
    APTA's comments on the NPRM expressed support for the proposal to 
allow vehicle designs with two corner posts on the non-engineer's side 
of the cab end. According to APTA, this proposal would allow vehicles 
to continue to have stepwells for low-platform boarding, which APTA 
noted is an operational necessity for many passenger railroads. APTA 
did raise concern that neither the preamble nor the proposed rule text 
specifically acknowledged that the corner post ahead of the stepwell be 
allowed to fail when applying the loads to the corner post behind the 
stepwell. APTA believed that allowing a structural member to fail as 
part of a test or analysis is an unusual concept for a Federal 
regulation and that it warrants clear discussion in the preamble.
    FRA agrees that testing a post all the way through to complete 
failure has safety implications and should not be done without thorough 
analysis first. As noted, FRA has modified this provision to require 
FRA review and approval of a plan, including acceptance criteria, to 
evaluate compliance with these corner post requirements. FRA believes 
that this oversight will help to address the concern raised by the 
commenter.
4. Use of Testing and Analysis To Demonstrate Compliance
    FRA requested specific comment on whether and under what 
circumstances analysis and scale model or fixture testing might be 
acceptable to demonstrate compliance with the alternative, dynamic 
performance requirements. A number of comments were received in 
response to this request, and in addressing them FRA discusses their 
application to both the quasi-static and the dynamic performance 
requirements, as appropriate.
    Bombardier commented that the severe-deformation requirements 
proposed in the NPRM (for either the quasi-static or the dynamic 
performance requirements) would result in a significant, added cost for 
cab cars and MU locomotives, particularly as a percentage of the 
overall procurement cost for small orders. Bombardier contended that if 
these severe-deformation requirements were truly considered to be 
safety requirements, then it is imperative that they be required for 
all new equipment, regardless of the size of the order. Bombardier 
noted that since the proposed quasi-static requirements were also 
contained in an APTA standard (APTA SS-C&S-034-99, Rev. 2), the quasi-
static requirements would not impose a greater cost burden on the 
industry than what it already accepts. However, Bombardier maintained 
that the actual cost to conduct dynamic testing, which would be 
expected to be done at a location offsite of the manufacturer's 
facility, would most likely be much greater than for quasi-static 
testing. Consequently, before any dynamic performance requirements are 
included in the regulation, Bombardier believed that a proper cost-
benefit analysis would be needed and that it was not evident from the 
information in the public docket that a valid cost-benefit analysis had 
been conducted. Bombardier noted that the section-by-section analysis 
seemed to imply that verification of compliance with either the quasi-
static or dynamic performance requirements would require an actual 
test, while the preamble did state that modern methods of analysis can 
accurately predict structural crush (severe deformation) and 
consequently can be used with confidence to develop structures that 
collapse in a controlled manner. Bombardier added that the proposed 
rule text was itself silent as to whether an actual test would be 
required or whether analysis could be used to verify compliance with 
the severe-deformation requirements. Bombardier therefore believed that 
FRA should clarify what would be required to demonstrate compliance 
with the severe-deformation requirements and should include the 
associated costs in the cost-benefit analysis.
    FRA notes that it did ask the commenter and other members of the 
Task Force to provide FRA with estimated costs for each testing 
alternative for FRA to review. FRA did not receive this specific cost 
information. FRA agrees with Bombardier that the cost of meeting the 
quasi-static test requirements is likely not to add to the costs of 
manufacturing or purchasing new passenger equipment. However, FRA does 
not agree that the costs of dynamic testing would be greater than the 
costs of quasi-static testing. Based upon the testing program sponsored 
by FRA at the TTC in Pueblo, CO, the overall cost of conducting either 
quasi-static or dynamic testing should be comparable. But even more 
important, FRA believes that dynamic testing provides at least the same 
level of confidence in the safety of the equipment tested as through 
quasi-static testing, and a manufacturer or railroad could voluntarily 
choose to conduct dynamic testing. The voluntary act of a manufacturer 
or railroad would provide sufficient evidence that dynamic testing does 
not materially add to costs, and no specific benefit-cost analysis is 
needed to provide a voluntary alternative. As FRA has noted, FRA does 
agree that actual physical testing should be required and that large 
orders, as well as small orders alike, should undergo actual testing. 
Yet, as discussed elsewhere in this preamble, FRA does not believe that 
actual physical testing of a complete, production-design vehicle is 
required, and FRA recognizes in particular the potential cost of doing 
so for small car orders.
    CRM also raised concerns as to the cost of demonstrating compliance 
with the regulation to manufacturers of small orders of cab cars or MU 
locomotives. CRM believed that consideration needs to be given to these 
manufacturers to protect them from undue financial and schedule 
hardships.
    FRA has taken into account the costs of this final rule to 
manufacturers of small orders of cab cars or MU locomotives. As noted, 
FRA believes that for both large and small orders, the manufacturer 
must perform actual physical testing. However, FRA does not believe 
that actual physical testing of a complete, production-design vehicle 
is required. FRA recognizes in particular the potential cost of doing 
so for small order sizes. Compliance may be demonstrated by a 
combination of engineering analysis and physical testing on a smaller 
scale.
    CRM further commented that destructive testing could be very 
expensive. CRM stated that its customers generally order in small 
quantities, often in the range of two to three cars. According to CRM, 
producing a 19.25-foot long section of the end of a car for destructive 
testing would represent a considerable, additional expenditure. CRM 
therefore requested that FRA clarify that the test sample need not be a 
large end section of the car, noting that as the NPRM is focused on the 
post structure and its attachments, the test sample should be limited 
to just that. CRM nonetheless estimated the costs of quasi-static 
testing to be approximately $250,000 for each design after a capital 
expenditure of $75,000 for test fixtures.

[[Page 1203]]

    FRA agrees that the entire car need not be tested. Bombardier has 
conducted quasi-static end frame tests where the end of the car was 
tested only to the body bolster; this would be appropriate. (See 
``Review of Severe Deformation Recommended Practice Through Analyses--
Comparison of Two Cab Car End Frame Designs,'' cited above.) There are 
a variety of ways of testing the end frame structure that would not 
require production of a test specimen of the 19.25-foot size described. 
Current testing of end frames (both dynamically as well as a quasi-
statically) is intended to ensure that the superstructure with some 
supporting structure can deform gracefully while not allowing permanent 
deformations in the car body structure too much of a distance behind 
the connection points. As a result, considerably smaller test articles 
may be used, provided of course that both the collision post and corner 
post structures are subject to actual testing. In addition, FRA 
believes that the costs estimated by CRM for testing are too high, 
absent more specific cost information from the commenter, and that any 
expenditure for test fixtures should be a one-time cost that could be 
spread over many orders.
    In addition, CRM proposed that analysis be allowed in lieu of 
actual testing for orders of less than 50 cars, provided that the 
analysis methods have been validated by actual testing. In its comments 
on the NPRM, Caltrain also requested clarification whether actual 
testing is required to demonstrate compliance, or whether analysis 
would be acceptable. Caltrain believed that it had been decided that 
for purposes of complying with the APTA collision and corner posts 
standards on which this rulemaking is based, current computer finite 
element modeling methods were adequate to verify design performance, in 
part due to the cost associated with destructive testing.
    FRA believes that there is no substitute for conducting actual 
testing, as we have seen from the quasi-static test of the collision 
post that did not meet the energy-absorbing requirement due to the 
location of a rigid gusset, even though the modeling showed that it 
would.\12\ In particular, because there are always some uncertainties 
associated with new designs and materials, some degree of testing is 
required whether for material characterization or sub-assembly testing 
to confirm that the modes of deformation and failure are modeled 
appropriately. FRA recognizes that after several designs have been 
tested and approved, perhaps future designs that are very similar to 
the older designs could be accepted through analysis only. The 
individual car builder would still have to demonstrate good experience 
conducting large deformation analyses, including material failure.
---------------------------------------------------------------------------

    \12\ Muhlanger, M., Llana, P., Tyrell, D., ``Dynamic and Quasi-
Static Grade Crossing Collision Tests,'' American Society of 
Mechanical Engineers, Paper No. JRC2009-63035, March 2009. This 
document is available on the Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2009/09-63035.pdf.
---------------------------------------------------------------------------

    APTA stated that FRA asked for specific comment on whether and 
under what circumstances analysis and scale model or fixture testing 
might be acceptable to demonstrate compliance with the dynamic 
performance requirements. APTA stated that this was a key question, 
noting that the rule text proposed that compliance ``be demonstrated.'' 
APTA believed that either a test or analysis could apparently fulfill 
the requirement and that there was no indication or guidance of when 
analysis would suffice in lieu of testing. APTA recommended that, until 
the industry, in partnership with FRA, can reasonably describe under 
what circumstances a test must be done and when analysis alone is 
sufficient, the option for dynamic testing should not be included.
    FRA notes that due to uncertainty associated with progression of 
material failure, some level of actual physical testing is necessary. 
But this uncertainty is not limited to demonstrating compliance with 
the dynamic performance requirements; it would also apply for 
demonstrating compliance with the quasi-static requirements. In this 
preamble to the final rule, FRA is providing additional guidance in 
response to similar comments received on the need for and extent of 
actual physical testing. In general, FRA believes that a combination of 
actual physical testing and analysis is appropriate to demonstrate 
compliance with the requirements in this final rule, and FRA encourages 
manufacturers to approach FRA should they have any questions or 
concerns about demonstrating the compliance of cab cars or MU 
locomotives they manufacture with this final rule's requirements.
5. Submission of Test Plans for FRA Review
    In part because FRA recognized that questions may arise in applying 
the proposed dynamic performance requirements in situations not clearly 
anticipated today, FRA requested comment on whether this final rule 
should include either an option or a requirement that the test 
methodology be submitted for FRA review prior to the conduct of 
destructive testing.
    APTA commented that it believed such pre-approval to be unwise. 
APTA stated that delay awaiting FRA approval would impact schedules, 
extend the already extensive procurement process, and expose car 
builders to liquidated damages should FRA review be delayed. Instead, 
if FRA were to impose a requirement to submit a test plan, APTA 
recommended that FRA include a presumption that the plan is approved by 
some reasonable time after submittal to FRA, to avoid increasing the 
commercial risk to car builders. Caltrans' comments raised similar 
concern with the inclusion of a requirement that test plans be 
submitted to FRA for approval, asserting a great possibility of project 
delay while the railroad or its contract equipment supplier is awaiting 
FRA's response. In addition, CRM commented that, while its involvement 
with Volpe Center staff in the analysis and testing of its equipment 
has been very informative and helpful, it did not recommend mandating 
the submittal of test plans. CRM believed that doing so would require 
FRA to budget for a staff to support this effort in a timely manner so 
that delivery schedules remain unaffected. Nonetheless, CRM recommended 
that FRA publish guidelines for preparing analyses and conducting tests 
so that manufacturers know to follow an approach with which FRA agrees.
    In response to these comments, FRA makes clear that it welcomes the 
submittal of test plans for its review. For instance, if a manufacturer 
were to conduct a test without using appropriate instrumentation or 
without applying a load at the appropriate location, a new test would 
likely be costly and would likely have been avoided had a test plan 
been submitted to FRA for review. Nevertheless, FRA agrees with the 
commenters and, in general, is not imposing new submittal requirements. 
As noted, however, FRA is requiring the submission and approval of 
plans to ensure compliance with the alternative corner post 
requirements for the non-engineer's side of the cab end of vehicles 
with stepwells for low-level platform boarding. See Sec.  238.213(c) 
and appendix F. FRA does encourage submission of other plans for the 
safety of new designs that are significantly different than 
conventional equipment, and FRA believes that manufacturers would 
benefit by approaching FRA before such designs are complete to prevent 
the need for redesign or retrofit. In this regard, FRA notes that Sec.  
238.111

[[Page 1204]]

(Pre-revenue service acceptance testing plan) contains specific 
requirements for the preparation and submittal of pre-revenue service 
acceptance testing plans for passenger equipment that has not been used 
in revenue service in the United States. Pursuant to Sec.  
238.111(b)(2), such plans must be submitted to FRA at least 30 days 
prior to conducting the testing, but FRA approval is required for Tier 
II passenger equipment only. Of course, it is within the purview of FRA 
to review the crashworthiness of all equipment prior to its placement 
in service, and to assess the compliance of all equipment with the 
requirements of the Federal railroad safety laws and regulations.
6. Whether the Requirements Affect Vehicle Weight
    AWA commented that, while it stands firmly for rail safety, it was 
concerned with any policies or institutions that have the effect of 
limiting the development and operation of passenger trains and pushing 
existing or potential rail passengers onto already crowded highways and 
putting more people at greater risk. As stated in its comments, AWA 
believed the NPRM to be the latest in a series of FRA rules that 
attempt to enforce safety by adding yet more heavy metal to already 
massive passenger trains. AWA raised concern with increasing the weight 
of America's ``uniquely bulky'' passenger rail fleet compared with the 
``extremely safe, lighter'' trains of Switzerland, Germany, Sweden, or 
Japan, and how the added monetary costs of such heavier trains in terms 
of purchase and greater energy consumption may discourage or inhibit 
passenger rail carriers from acquiring rail cars or running passenger 
trains. AWA recommended FRA reconsider its action and consider the 
impacts of mandating even heavier and costlier ``steel-wheeled 
Hummers.'' AWA recommended that FRA look to harmonize passenger rail 
car construction and safety standards with the widely-accepted 
standards of the International Union of Railways (UIC), a worldwide 
organization for the promotion of rail transport and cooperation, so 
that rail agencies and operators can afford to provide more people with 
passenger rail service. Similarly, a private citizen principally 
commented that rather than increasing crashworthiness requirements and 
the weight of cab cars, FRA should first investigate whether existing 
UIC standards for end strength and buff strength would provide equal or 
better safety than the current FRA standards. The commenter believed 
that increasing the weight of passenger equipment should be a major 
concern from both an economic and an environmental point of view, 
causing greater wear on the track, increased energy consumption, and 
decreased operational performance. The commenter believed that reducing 
car weight and enabling use of European designs can reduce costs, and 
that there is a definite environmental and economic impact from having 
collision standards that differ from those in Europe or Asia.
    As noted earlier, FRA wishes to dispel the belief that there is a 
meaningful correlation between an increase in a vehicle's 
crashworthiness and its weight. As FRA has stated, crashworthiness 
features from clean-sheet designs can occupy the same space as other 
material and not weigh in excess of the structure(s) being replaced. 
There is considerable leeway in designing such systems so that no 
additional weight is required, and the car body structure itself 
typically accounts for only between 25 to 35 percent of the final car 
weight. In fact, FRA found that the FRA/Volpe SOA end frame design 
added less than 500 pounds to vehicle weight. This difference is less 
than a one-percent increase in the weight of the vehicle over a typical 
1990s design, but represents a considerable increase in improved 
crashworthiness performance. A vehicle with such a design was found 
capable of safely withstanding the same collision scenario at nearly a 
50-percent greater collision speed--or more than double the amount of 
collision energy--as opposed to one without.
    Further, the requirements in this final rule are performance-
driven, similar to the new European standards calling for scenario-
defined loading of the superstructure with energy and displacement 
evaluation criteria, as discussed above. In fact, the two are in much 
closer harmony when compared with FRA's more traditional requirements 
for cab cars and MU locomotives. The two sets of requirements differ 
principally in how compliance is demonstrated. FRA believes that the 
methods called for in this final rule are significantly less 
complicated than the methods provided in the European standards, while 
addressing similar concerns.
    Nonetheless, as FRA has previously stated, the rail operating 
environment in the United States generally requires passenger equipment 
to operate commingled with very heavy and long freight trains, often 
over track with frequent highway-rail grade-crossings used by heavy 
highway equipment. European and Asian passenger operations, on the 
other hand, are generally intermingled with freight equipment of lesser 
weight, and in many cases highway-rail grade-crossings also pose lesser 
hazards to passenger trains in Europe and Asia due to lower highway 
vehicle weight. FRA is necessarily concerned with the level of safety 
provided by passenger equipment designed to European and other 
international standards when such equipment is intended to be operated 
in the United States and must ensure that the designs are appropriate 
for the nation's operating environment. FRA does believe that these new 
requirements for collision posts and corner posts will significantly 
enhance the performance of the posts in protecting occupants of cab 
cars and MU locomotives, while having little if any effect on total 
vehicle weight.
7. System Safety
    Caltrain's comments on the NPRM raised issues not only on the NPRM 
itself but also on FRA's overall approach to regulation. Caltrain 
asserted that if the entire system, made up of components that may not 
be compliant with specific FRA regulations, can be shown to be as safe 
or safer than a system made up of components that individually meet 
FRA's regulations, then the true mission of both FRA and the railroad 
has been met. Caltrain recommended that FRA reword the NPRM so as not 
to discourage railroads from taking a systems-based approach to safety. 
In this regard, Caltrain recommended that FRA direct some of its 
research funds toward examining the safe use of CEM designs that do not 
have an inner structure compliant with part 238, to improve energy 
efficiency as well as international trade possibilities.
    FRA notes that there are already procedures in place to allow the 
operation of equipment built to alternative standards. FRA permits such 
flexibility and has reviewed and approved the proposed operation of 
alternatively-designed equipment for CMTA. Moreover, FRA has 
established the Engineering Task Force of the Passenger Safety Working 
group to produce a set of technical evaluation criteria and procedures 
for passenger rail equipment built to alternative designs. The 
technical evaluation criteria and procedures are intended to provide an 
engineering-based method of comparing the crashworthiness of 
alternatively-designed equipment to the crashworthiness of equipment 
designed to the structural standards set forth in part 238. The initial 
focus of this effort will be on Tier I standards. When completed, the 
criteria and procedures would not only form a technical basis

[[Page 1205]]

for making determinations concerning equivalent safety pursuant to 
Sec.  238.201 but also provide a technical framework for presenting 
evidence to FRA in support of any request for waiver of the compressive 
(buff) strength requirement set forth in Sec.  238.203. See, generally, 
49 CFR part 211 (Rules of Practice). The criteria and procedures could 
be incorporated into part 238 at a later date after notice and 
opportunity for public comment.
    However, FRA strongly believes that, based upon research already 
conducted on application of CEM to conventional passenger rail 
equipment, the prescribed occupied-volume strength is required to serve 
as the foundation against which crush elements can react and thereby 
achieve high levels of energy absorption in reasonable crush distances 
while not creating too severe an interior deceleration environment.
    Caltrain raised additional concern with FRA's approach in the NPRM 
to mitigate risk by increasing the survivability of an incident rather 
than by implementing a broader, systems approach that would first take 
into account the railroad's efforts to avoid the incident altogether or 
lower its probability of occurrence. Caltrain cited and agreed with 
FRA's promotion of system safety planning in the railroad industry, but 
believed that FRA has applied system safety planning in too limited a 
way. Caltrain believed that the NPRM focuses on increasing the 
survivability of a low-probability event, and thus mandates the 
solution rather than encourage the railroad to avoid the incident 
altogether. Caltrain stated that focusing on safety at the component 
level provides a lower return on investment than by broadening that 
focus to the system level. Caltrain cited the Washington Metropolitan 
Area Transit Authority's (WMATA) approach to addressing the safety of 
its operations on tracks that parallel freight operations. Caltrain 
stated that after WMATA first mitigated the risk of derailing its own 
trains into the freight railroad's right-of-way by maintaining its 
vehicles and tracks to tight standards, WMATA ultimately decided to 
install an intrusion detection system to provide warning of freight 
train derailments fouling WMATA's tracks. Caltrain believed that if 
WMATA had taken the approach presented in the NPRM, however, rather 
than a system safety approach, WMATA would have bought larger and 
heavier vehicles, incurred additional and continuing costs as a result, 
and would nonetheless not have avoided the risk of injury to passengers 
and crewmembers should a collision occur.
    As Caltrain noted, FRA does encourage railroads to engage in system 
safety planning, and FRA even proposed to make system safety planning a 
requirement for passenger railroads. See 62 FR 49728, 49800. Elements 
of system safety planning are a part of the Passenger Equipment Safety 
Standards, see discussion at 64 FR 25548-25550, and FRA is newly 
examining system safety requirements for passenger railroads in the 
Passenger Safety Working Group's Passenger Safety Task Force. Moreover, 
FRA has long followed a policy of focusing on both collision-mitigation 
and collision-avoidance measures, as both are necessary for safe 
railroading. Collision-mitigation measures alone do not eliminate the 
risk of injuries to passenger and crewmembers should a collision occur, 
but neither do collision-avoidance measures eliminate the risk of a 
collision in any currently-practical way given, e.g., the potential 
(however remote) for a rail to suddenly break under a train and cause a 
derailment. FRA therefore applies complementary approaches to reducing 
overall risk, including tightening track safety standards and 
implementing PTC systems. (On July 21, 2009, FRA published an NPRM 
implementing a requirement of the Rail Safety Improvement Act of 2008 
(RSIA of 2008), Div. A of Public Law 110-432; 122 Stat. 4848 et seq. 
(Oct. 16, 2008), that certain passenger and freight railroads install 
PTC systems, see 74 FR 35950.) It is nonetheless paramount to 
establish, in addition to collision-avoidance methods, a base minimum 
level of crashworthiness performance.
    Here, as a regulatory agency issuing a rule of general 
applicability for passenger equipment that may be operated commingled 
with freight trains and over public highway-rail grade-crossings used 
by heavy highway vehicles, FRA believes that certain minimum 
enhancements to collision mitigation measures are necessary. These 
enhancements have been developed with the industry and can be readily 
met as a result of improvements and maturity in design techniques 
available to manufacturers. FRA notes that WMATA operates in a 
different environment as a rapid transit system not connected to the 
general railroad system, and WMATA is not subject to FRA's 
jurisdiction. But even WMATA cannot eliminate the risk of a collision 
altogether, and collisions of WMATA trains have resulted in significant 
loss of life and damage. On June 22, 2009, a WMATA train traveling in a 
curve struck the rear end of another WMATA train, which had stopped for 
a station. The lead car of the oncoming train telescoped and overrode 
the rear car of the stopped train by about 50 feet, resulting in 9 
fatalities and numerous injuries. See letter dated September 22, 2009, 
from Deborah A.P. Hersman, Chairman, NTSB, to Joseph C. Szabo, 
Administrator, FRA, conveying Safety Recommendations R-09-20 and -21 
(Urgent), and R-09-22. This letter is available on the NTSB's Web site 
at: http://www.ntsb.gov/Recs/letters/2009/R09_20_21_22.pdf. Four and 
a half years earlier, on November 3, 2004, a non-revenue WMATA train 
rolled backwards down a grade and struck a train that was in the 
process of discharging and loading passengers at a station. The car at 
the rear end of the striking train overrode the leading end of the 
first car of the stopped train and sustained a loss of about 34 linear 
feet of the passenger occupant volume, which was almost half the length 
of the passenger compartment. Had the passenger compartment not been 
empty, the loss of that length of occupant volume could have caused 
numerous fatalities. See ``Collision Between Two Washington 
Metropolitan Area Transit Authority Trains at the Woodley Park-Zoo/
Adams Morgan Station in Washington, DC, November 3, 2004,'' NTSB Report 
No. RAR-06-01, adopted on March 23, 2006. This report is available on 
the NTSB's Web site at: http://www.ntsb.gov/publictn/2006/RAR0601.pdf.
8. Other Comments
    Bombardier commented that the structural loads (including those for 
severe deformation) defined in APTA SS-C&S-034-99, Rev. 2, specify 
requirements for collision and corner posts that act together with the 
supporting car body structure and intervening connections. To make this 
regulation consistent with the industry standard, therefore, Bombardier 
recommended that this final rule adopt the same approach.
    FRA agrees with the commenter and has modified this final rule 
accordingly. The intent has always been to have the entire end frame 
act as a system and resist intrusion of objects that threaten the 
superstructure of the cab car or MU locomotive.
    CRM sought to extend the effective date of the final rule so as not 
to impact existing orders. In addition, CPUC supported FRA's proposed 
applicability dates for the collision and corner post requirements as 
enhancements to safety while still allowing manufacturers and industry 
buyers adequate time to develop and provide the required

[[Page 1206]]

additional cab car and MU locomotive strengthening.
    FRA did not intend to impact existing orders. While this final rule 
may have an effective date of March 9, 2010 the new collision and 
corner posts requirements apply to cab cars and MU locomotives ordered 
on or after May 10, 2010, or placed in service for the first time March 
8, 2012. This date range is consistent with other applicability dates 
imposed by FRA, and FRA believes they are achievable.
    In other comments on the NPRM, the BLET expressed disappointment 
that the proposed rule did not include general cab standards. The BLET 
stated that, while the proposed rule would make significant and 
meaningful strides in improving crashworthiness, no consideration has 
been given to any other ergonomic issue, including cab size, vibration, 
noise, and seat construction. The BLET believed that equipment is 
evolving to the point where locomotive engineers are confined to 
essentially small cages, creating both safety and security risks that 
are foreseeable and avoidable.
    FRA understands that this rule does not address general cab 
standards. Instead, this rule is focused on improving the 
crashworthiness of the front end structure of cab cars and MU 
locomotives in the event of an impact generating collision forces that 
overload the superstructure of the car. General cab standards include 
consideration of structural layout, ergonomics, and human factors, and 
would need to be addressed in a separate RSAC effort.
    Caltrain commented on FRA's statement in the NPRM that FRA's 
crashworthiness research program focuses on two objectives: 
preservation of a safe space in which occupants can ride out a 
collision or derailment, and minimization of physical forces to which 
occupants are subjected when impacting surfaces inside a passenger 
train as the train decelerates. Caltrain did not believe that the NPRM 
adequately addressed the second objective. Caltrain stated that the 
amount of energy absorbed by the collision and corner posts will not 
significantly lower secondary-impact velocities.
    FRA notes that for events that primarily load the superstructure 
(i.e., end frame) of the cab car or MU locomotive, secondary-impact 
response for passengers is not a real concern. For example, since 
highway vehicles weigh much less than trains, a collision with a 
highway vehicle at a grade crossing would not impart dangerously high 
decelerations to the train or the train occupants but could impart 
significant loads to the end frame, making protection of the occupied 
volume paramount.
    In addition, Caltrain commented that making the car body stronger 
seems secondary to preventive measures, and even contrary to FRA's 
stated objective of reducing secondary-impact velocities. Caltrain 
stated that in a train-to-train collision, rigid non-CEM vehicles will 
experience higher secondary-impact velocities than vehicles equipped 
with CEM and that by focusing on the specific approach in the NPRM, FRA 
may be overlooking more cost-effective solutions.
    FRA notes that it is not necessarily true that use of CEM will 
result in lower secondary-impact forces in a train-to-train collision. 
Secondary-impact forces may actually be higher as part of a CEM-design 
that mitigates initial impact forces by dissipating the forces more 
evenly throughout the train. Test data has shown cars in a CEM-train to 
have higher secondary-impact velocities.

B. Preemption

    A number of comments were filed on the topic of Federal preemption 
concerning the safety of operating a cab car or an MU locomotive as the 
leading unit of a passenger train, as well as concerning passenger 
equipment safety in general. Several of these comments were from 
members of Congress. These and other comments on the topic of Federal 
preemption are generally grouped by issue and are addressed below.
1. Whether FRA Characterized Its Views on Preemption as the RSAC 
Consensus
    Several commenters raised the concern that FRA's statements in the 
NPRM wrongly conveyed the idea that a consensus had been expressed 
within RSAC on the preemptive effect of the rulemaking. Specifically, 
the BLET, which is an RSAC member and was a participant in RSAC 
meetings on the rulemaking, asserted that RSAC never addressed, much 
less reached consensus on, the preemptive effect of the proposed rule. 
The BLET contended that FRA erroneously claimed that RSAC agreed by 
consensus to the preemption provision espoused in the NPRM, stating 
that RSAC meeting documents reflect discussion of technical issues 
only. The UTU, which also is an RSAC member and was a participant in 
RSAC meetings on the rulemaking as well, similarly commented that it 
was never involved in any discussions regarding the preemption of State 
common law. The UTU disagreed with FRA's characterization of how 
federalism issues were addressed by RSAC, citing FRA's statement in the 
NPRM that FRA had received no indication of concerns about the 
federalism implications of the rulemaking. The CPUC also raised the 
same issue, referring to the UTU's comment that the UTU was not 
involved in any discussions regarding the preemption of State common 
law. The CPUC itself commented that the ASRSM's RSAC representative 
advised the CPUC that it too could not recall a discussion regarding 
the preemption of State law.
    FRA makes clear that it did not intend to convey that RSAC had 
reached consensus on FRA's statements in the NPRM as to preemption. 
Indeed, FRA did not make preemption an issue within RSAC on which it 
sought consensus. Nonetheless, FRA believes that commenters have read 
too much into what FRA did say in the NPRM. In discussing the 
federalism implications of the rulemaking in Section V.A. of the NPRM's 
preamble, FRA stated the following:

    [F]ederalism concerns have been considered in the development of 
this NPRM both internally and through consultation within the RSAC 
forum, as described in Section II of this preamble, above. The full 
RSAC, which reached consensus on the proposal (with the exception 
discussed above concerning cab cars and MU locomotives without flat-
ends or with CEM designs, or both) and then recommended it 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 (again, with 
the exception noted above). 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 on the Committee.

72 FR 42036. FRA did state that RSAC, with one exception, had reached 
consensus on the proposed requirements. These requirements were the 
amendments to Sec. Sec.  238.205 (Anti-climbing mechanism), 238.211 
(Collision posts), and 238.213 (Corner posts). For this reason, FRA 
explicitly mentioned that consensus had not been reached on dynamic 
test standards for cab cars and MU locomotives. FRA should have made 
clearer that it did not intend to convey that RSAC's consensus included 
the proposed modification to Sec.  238.13 (Preemptive effect), or any 
of FRA's views on preemption. FRA did not consider Sec.  238.13 a 
proposed requirement, and FRA did not make it an issue for which 
consensus was

[[Page 1207]]

sought. To the extent that FRA had discussed preemption in RSAC, FRA 
had explained to RSAC members what it has told the public and continues 
to say regarding the permissibility of a railroad not to operate Tier I 
passenger trains in a push-pull configuration--in particular, the 
freedom of a State or local authority funding its own railroad to 
direct that its railroad not operate trains in push-pull fashion. (See 
below for a fuller discussion of this issue.)
    FRA also believes that some confusion may have arisen from FRA's 
use of customary language discussing the federalism implications of its 
rulemaking actions in general and the consultation afforded through 
RSAC. Because FRA's rulemaking actions have preemptive effect by virtue 
of 49 U.S.C. 20106 (Section 20106), discussed further below, RSAC 
serves as a forum in which FRA can consult with State and local 
officials early in the process of developing proposed regulations in 
accordance with the executive order on federalism. FRA recognizes the 
value in such consultations and the ability of State and local 
interests to raise federalism concerns with proposed regulatory 
actions. Here, no federalism concerns had been raised in RSAC regarding 
the proposed requirements in the rulemaking--what would become national 
standards through a final rule--and FRA represented that fact using a 
customary formulation. FRA did not intend that representation to mean 
that RSAC members had no objections to any of FRA's statements on 
federalism in the NPRM. FRA makes clear that no such meaning or 
implication was intended.
2. Whether FRA's Views Are Consistent With 49 U.S.C. 20106, as Amended
    A number of commenters, including members of Congress, raised 
concern that FRA's statements in the NPRM were not consistent with 
revisions made to 49 U.S.C. 20106 by the Implementing Recommendations 
of the 9/11 Commission Act of 2007 (9/11 Commission Act of 2007), 
Public Law 110-53, Aug. 3, 2007. Congressmen James Oberstar and Bennie 
Thompson jointly commented that they had strong concern over the 
preemption language included in the preamble. They requested that FRA 
issued a revised NPRM to delete portions of the preamble inconsistent 
with revisions made to Section 20106. In the alternative, the 
Congressmen believed that FRA should include a revised preemptive 
effect discussion in the preamble of the final rule to reflect 
Congress' intent that such regulations do not preempt State tort 
claims. The Congressmen commented that Congress did not intend that the 
Federal Railroad Safety Act of 1970 (FRSA) (formerly 45 U.S.C. 421 et 
seq., now repealed and reenacted as positive law primarily in chapter 
201 of title 49) would be interpreted to prevent injured victims from 
asserting their rights under common law, and raised concern that FRA's 
views on preemption may serve to immunize negligent railroad companies 
and prevent train derailment victims from holding these companies 
accountable for their injuries. The Congressmen stated that the 9/11 
Commission Act of 2007 clarified that Section 20106 is intended as a 
limited preemption provision to prevent States from implementing their 
own rail safety regulations in certain instances and was not designed 
to preempt cases brought by victims of railroad derailments. The 
Congressmen believed that the law sends a loud and clear message that 
FRSA in no way preempts State common law claims and to the extent the 
U.S. Supreme Court has construed a Congressional intent to federally 
preempt State law claims against railroads Congress has cleared up any 
confusion. Accordingly, the Congressmen believed that statements in the 
preamble to the NPRM containing language attempting to preempt State 
common law standards contradicts Congressional intent and subverts the 
legislative determination that Congress does not want to leave victims 
of negligent railroads without any recourse.
    Three other members of Congress also jointly commented on FRA's 
statements in the NPRM concerning preemption and requested that FRA 
revise its discussion in light of the revisions made to Section 20106 
by the 9/11 Commission Act of 2007. Senators Kent Conrad and Byron 
Dorgan and Congressman Earl Pomeroy noted that section 1528 of the 9/11 
Commission Act of 2007 clarified the intent of Congress with respect to 
the preemptive effect of FRSA but that, perhaps as a result of 
chronology, the preamble to the NPRM made no reference to the 
Congressional action. The Congressmen believed that certain statements 
in the preamble could be interpreted to contradict the language that 
Congress had just enacted and that it would be inappropriate to issue a 
final rule that does not accurately reflect current law. The 
Congressmen cited as an example the statement ``FRA believes that it 
has preempted any State law, regulation, or order, including State 
common law.'' The Congressmen raised concern that this statement could 
be read to undermine the intent of Congress that FRSA not preclude 
victims of railroad accidents from seeking redress under State law for 
their injuries and losses, and could inform the interpretation of FRSA 
by the courts or other interested parties. The Congressmen requested 
that FRA revise the preamble to make explicit reference to the 
amendments to Section 20106 and make clear that FRSA does not prevent 
victims of railroad accidents from holding railroad companies to 
account for their actions in a court of law.
    In addition to members of Congress, the AAJ commented that in the 
9/11 Commission Act of 2007 Congress reiterated its intent to preserve 
State tort claims against negligent railroads. The AAJ asserted that 
section 1528 of this law sends a loud and clear message that Section 
20106 in no way preempts State common law claims and that to the extent 
the U.S. Supreme Court has construed a Congressional intent in Section 
20106 to preempt State law, Congress has cleared up any confusion. The 
AAJ concluded that there is no room for argument that the 9/11 
Commission Act of 2007 does anything but restore the rights of victims 
to sue negligent railroads under State law. Finally, the BLET commented 
that it could not be clearer that Congress intended to preserve State 
common law causes of action in the circumstances defined in the 9/11 
Commission Act of 2007. The BLET stated that the conference report on 
the legislation makes clear that Congress did not intend to preempt all 
State causes of action in every area where FRA has issued--or has 
considered but declined to issue--safety regulations. The BLET also 
commented that when FRA published the NPRM, the bill was on the 
President's desk.
    FRA believes it important to address the comments raised as to why 
the NPRM does not reflect the changes made to Section 20106 by the 9/11 
Commission Act of 2007. FRA believes that the timing of the NPRM's 
issuance has led to misunderstandings reflected in the comments. 
Although the NPRM was published on August 1, 2007, it was issued by FRA 
on July 26, 2007. At the time of the NPRM's issuance, Congress was 
still deliberating the legislation: the Senate agreed to it that same 
day, and the House passed it the following day, July 27, 2007. When 
Congress cleared the bill for the White House, the NPRM was being 
processed for publication at the Federal Register. Consequently, the 
NPRM did not reflect any changes made to Section 20106 by the 9/11 
Commission Act of 2007, signed by the President on August 3, 2007.

[[Page 1208]]

    As discussed elsewhere in this final rule, FRA is amending the 
existing preemption provision in this part, Sec.  238.13 (Preemptive 
effect), to conform to the revisions made to Section 20106 by the 9/11 
Commission Act of 2007. FRA makes clear that any statement in the NPRM 
that is contrary to Section 20106, as amended effective August 3, 2007, 
should be ignored. Nonetheless, FRA believes that its statements in the 
NPRM are consistent with the 9/11 Commission Act of 2007's 
clarification to Section 20106 and that there may have been 
misunderstandings as to the meaning of FRA's statements in the NPRM, 
relating in particular to what the commenters intend the terms 
``claim'' and ``standard'' to mean. FRA believes that some of the 
comments overstate what FRA said in the NPRM about the preemptive 
effect of Section 20106, even prior to its amendment.
    FRA was careful to convey that Federal preemption under Section 
20106 applied to standards of care under State law--as opposed to 
claims (causes of action) under State law. They are different. As 
discussed further below, the 9/11 Commission Act of 2007 added new 
subsection (b) to Section 20106 to clarify the preemptive effect of 
FRSA so as not to restrict enumerated ``causes of action'' under State 
law. While FRA's regulations may preempt the standard of care, they do 
not preempt the underlying action in tort. In this regard, FRA did not 
make the broad statement by itself that ``FRA believes that it has 
preempted any State law, regulation, or order, including State common 
law.'' FRA made that statement only in a fuller sentence that expressly 
limited its meaning: ``FRA believes that it has preempted any State 
law, regulation, or order, including State common law, concerning the 
operation of a cab car or MU locomotive as the leading unit of a 
passenger train.'' See 72 FR 42036. In this instance, FRA did intend to 
convey that where a claim is based on a State standard concerning the 
operation of a cab car or MU locomotive, FRA has through its regulatory 
actions preempted any State standard that restricts the push-pull 
operation of a Tier I passenger train. However, FRA did not--and does 
not--find that any claim under State law is preempted merely because a 
train is operating in push-pull mode. FRA believes this to be 
consistent with the 9/11 Commission Act of 2007. A fuller discussion 
follows.
    This rule preempts State common law standards of care. The Supreme 
Court has spoken clearly on the subject of preempting State common law 
by Section 20106. The question was squarely presented to the Court in 
CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993), which involved a 
grade-crossing collision. One of the respondent's claims in the case 
was that, despite FRA's Track Safety Standards (49 CFR part 213) which 
permit a maximum speed of 60 m.p.h. over the Class Four track involved 
in the case and train speed at the collision being below 60 m.p.h., 
``petitioner [CSX] breached its common-law duty to operate its train at 
a moderate and safe rate of speed.'' Id. at 673. The Court's answer was 
``[w]e hold that, under the FRSA, Federal regulations adopted by the 
Secretary of Transportation pre-empt respondent's negligence action 
only insofar as it asserts that petitioner's train was traveling at an 
excessive speed.'' Id. at 676. In reaching that judgment, the Court 
reasoned that ``[a]ccording to Sec.  [20106], applicable Federal 
regulations may pre-empt any state `law, rule, regulation, order, or 
standard relating to railroad safety.' Legal duties imposed on 
railroads by the common law fall within the scope of these broad 
phrases.'' Id. at 664. The Supreme Court very plainly held that the 
State common law standard of care was preempted by FRA's Track Safety 
Standards, but that the underlying negligence action was not. That is 
completely in accord with the amendment Congress enacted to Section 
20106 in section 1528 of the 9/11 Commission Act of 2007.
    The Supreme Court's interpretation of Section 20106 was confirmed 
and further explained in a subsequent case involving a grade-crossing 
wreck in which the plaintiff had alleged that the railroad negligently 
failed to maintain adequate warning devices at the grade-crossing in 
question. The Supreme Court held:

    Sections 646.214(b)(3) and (4) [the Federal Highway 
Administration regulations mandating the installation of particular 
warning devices when certain conditions exist] ``cover the subject 
matter'' of the adequacy of warning devices installed with the 
participation of Federal funds. As a result, the FRSA pre-empts 
respondent's state tort claim that the advance warning signs and 
reflectorized crossbucks installed at the Oakwood Church Road 
crossing were inadequate. Because the TDOT [Tennessee Department of 
Transportation] used Federal funds for the signs' installation, 
Sec. Sec.  646.214(b)(3) and (4) governed the selection and 
installation of the devices. And because the TDOT determined that 
warning devices other than automatic gates and flashing lights were 
appropriate, its decision was subject to the approval of the FHWA. 
See 23 CFR 646.214(b)(4). Once the FHWA approved the project and the 
signs were installed using Federal funds, the Federal standard for 
adequacy displaced Tennessee statutory and common law addressing the 
same subject, thereby pre-empting respondent's claim.

Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 358-359 (2000). It 
could not be clearer that, before Congress amended Section 20106 in 
2007, it provided for preemption of State common law by DOT 
regulations.
    Congress was moved to amend Section 20106 by two court cases, 
Lundeen v. Canadian Pacific Ry. Co., 507 F.Supp.2d 1006 (D.Minn. 2007), 
and Mehl v. Canadian Pacific Ry., Ltd., 417 F.Supp.2d 1104 (D.N.D. 
2006), which left without a legal remedy tort plaintiffs injured in a 
hazardous material release from a train wreck in Minot, ND. The judge's 
opinion in Lundeen said:

    Preemption bars private claims for FRA violations. Congress has 
given the Secretary of Transportation ``exclusive authority'' to 
impose civil penalties and request injunctions for violations of the 
railroad safety regulations. \FN4\ 49 U.S.C. 20111(a); Abate v. S. 
Pac. Transp. Co., 928 F.2d 167, 170 (5th Cir. 1991) (``The structure 
of the FRSA indicates that Congress intended to give Federal 
agencies, not private persons, the sole power of enforcement.'').
    FN4. The single exception to the Secretary's exclusive authority 
exists when the Federal government fails to act promptly. In such 
cases, state government agencies can file suit, impose penalties, or 
seek injunctions. 49 U.S.C. 20113.
    Indeed, the FRSA has ``absolved railroads from any common law 
liability for failure to comply with the safety regulations.'' Mehl, 
417 F.Supp.2d at 1120. This is the regulatory scheme which Congress 
has imposed. And when Congress has clearly spoken, any relief from 
its regime must come from Congress rather than the Courts. Private 
actions against railroads based on Federal regulations are 
preempted.

Lundeen, supra at 1016.
    The amendment to Section 20106 made by section 1528 of the 9/11 
Commission Act of 2007 did not change the text the Supreme Court has 
interpreted. Instead, Congress enacted a very precise cure for the 
problem presented by Lundeen and Mehl by amending Section 20106 to 
redesignate the then-existing language of the section as subsection 
(a), and adding new subsections (b) and (c). Subsection (a) provides 
that a State may adopt or continue in force a law, regulation or order 
related to railroad safety or security, until the Secretary of 
Transportation (with respect to safety) or the Secretary of Homeland 
Security (with respect to security) has acted to cover the subject 
matter. Once there are Federal requirements covering a particular 
subject, a State may adopt or continue only an additional or more

[[Page 1209]]

stringent law, regulation, or order if it is necessary to eliminate or 
reduce an essentially local safety or security hazard, is not 
incompatible with Federal law, and does not unreasonably burden 
interstate commerce. New subsection (b) clarifies that causes of action 
under State tort law may be available to injured parties if they are 
based on the violation of the Federal standard of care created by a 
Federal regulation or order, or violation of a plan required to be 
created by Federal regulation or order. New subsection (c) provides 
that nothing in the section creates a Federal cause of action or 
Federal question jurisdiction, so that tort cases can be heard in State 
court.
    New subsection (b) to Section 20106 makes clear that, as the 
Supreme Court held in Easterwood, regulations or orders issued by the 
Secretary of Transportation preempt the State standard of care, but not 
the underlying cause of action in tort, thereby preserving the ability 
of injured parties to seek redress in court.
    Since FRA's Track Safety Standards were involved in both Easterwood 
and Lundeen, they are especially apt for illuminating FRA's 
interpretation of the amended statute. The Track Safety Standards 
substantially subsume the subject matters of standards for railroad 
track and train speeds over it and, therefore, preempt State standards, 
both statutory and common law, pertaining to those subjects. 
Nevertheless, under Section 20106(b)(1)(A), a private plaintiff may 
bring a tort action for damages alleging injury as a result of 
violation of the Track Safety Standards, such as for train speed 
exceeding the maximum speed permitted under 49 CFR 213.9 over the class 
of track being traversed. Similarly, under Section 20106(b)(1)(B), a 
private plaintiff may bring a tort action for damages alleging injury 
as a result of violation of a railroad's continuous welded rail (CWR) 
plan required by the Track Safety Standards (the key issue in Lundeen). 
Provisions of a railroad's CWR plan that exceed the requirements of 
part 213 are not included in the Federal standard of care. Under 
Section 20106(b)(1)(C), a private plaintiff may bring a tort action for 
damages alleging injury as a result of violation of a State law, 
regulation, or order that is not incompatible with subsection (a)(2), 
such as Ohio's regulation of minimum track clearances in rail yards 
found not to be preempted in Tyrrell v. Norfolk Southern Ry. Co., 248 
F.3d 517 (6th Cir. 2001).
    It is a settled principle of statutory construction that, if the 
statute is clear and unambiguous, it must be applied according to its 
terms. Carcieri v. Salazar, 129 S.Ct. 1058 (U.S., 2009). Read by 
itself, Section 20106(a) preempts State standards of care, but does not 
expressly say whether anything replaces the preempted standards of care 
for purposes of tort suits. The focus of that provision is clearly on 
who regulates railroad safety: the Federal government or the States. It 
is about improving railroad safety, for which Congress deems nationally 
uniform standards to be necessary in the great majority of cases. That 
purpose has collateral consequences for tort law which new Section 
20106, subsections (b) and (c) address. New subsection (b)(1) creates 
three exceptions to the possible consequences flowing from subsection 
(a). One of those exceptions ((b)(1)(B)) precisely addresses an issue 
presented in Lundeen that Congress wished to rectify: it allows 
plaintiffs to sue a railroad in tort for violation of its own plan, 
rule, or standard that it created pursuant to a regulation or order 
issued by either of the Secretaries. None of those exceptions covers a 
plan, rule, or standard that a regulated entity creates for itself in 
order to produce a higher level of safety than Federal law requires, 
and such plans, rules, or standards were not at issue in Lundeen. The 
key concept of Section 20106(b) is permitting actions under State law 
seeking damages for personal injury, death, or property damage to 
proceed using a Federal standard of care. A plan, rule, or standard 
that a regulated entity creates pursuant to a Federal regulation 
logically fits the paradigm of a Federal standard of care--Federal law 
requires it and determines its adequacy. A plan, rule, or standard, or 
portions of one, that a regulated entity creates on its own in order to 
exceed the requirements of Federal law does not fit the paradigm of a 
Federal standard of care--Federal law does not require it and, past the 
point at which the requirements of Federal law are satisfied, says 
nothing about its adequacy. That is why FRA believes that Section 
20106(b)(1)(B) covers the former, but not the latter. The basic purpose 
of the statute--improving railroad safety--is best served by 
encouraging regulated entities to do more than the law requires and 
would be disserved by increasing potential tort liability of regulated 
entities that choose to exceed Federal standards, which would 
discourage them from ever exceeding Federal standards again.
    In this manner, Congress adroitly preserved its policy of national 
uniformity of railroad safety regulation expressed in Section 
20106(a)(1) and assured plaintiffs in tort cases involving railroads, 
such as Lundeen, of their ability to pursue their cases by clarifying 
that Federal railroad safety regulations preempt the standard of care, 
not the underlying causes of action in tort. Under this interpretation, 
all parts of the statute are given meanings that work together 
effectively and serve the safety purposes of the statute. Because the 
language of the statute is clear, there is no need to resort to the 
legislative history to properly interpret the statute. See Ratzlaf v. 
United States, 510 U.S. 135, 147-148 (1994) (``[W]e do not resort to 
legislative history to cloud a statutory text that is clear.'').
3. Whether FRA's Views on Preemption Affect Safety
    The BLET commented that FRA's views on preemption serve to immunize 
the railroad industry for its actions or inactions, contrary to FRA's 
duties as a safety regulator. The BLET stated that immunizing railroads 
from liability in all cases except where a Federal regulation or 
statute is violated will diminish safety and increase costs to the 
public in the long run, asserting that the public will bear the cost of 
damages caused by private railroads who have acted negligently but not 
in violation of a Federal law or regulation. The BLET believed that 
FRA's views on preemption will make FRA's minimum safety standards a 
ceiling above which no railroad will venture, to avoid voluntary 
exposure to liability flowing from a failure to adhere to its own 
higher standard. The BLET maintained that, thereafter, higher standards 
will not come about except through rulemaking, which it viewed as a 
time-consuming and somewhat imprecise process. In addition, the BLET 
commented that even if FRA's views protect publicly-funded 
transportation agencies, the decision to do so should be a State one.
    FRA believes that the BLET's comments minimize the significance of 
FRA's safety regulations. FRA has issued detailed safety regulations 
covering a broad range of areas, and has both ongoing and planned 
safety rulemaking activities on a variety of topics. It is not a small 
matter for a railroad to maintain compliance with every applicable 
safety regulation issued by FRA, and that responsibility continues only 
to increase. In particular, this responsibility is growing as FRA 
implements the numerous safety rulemaking mandates in the RSIA of 2008. 
Moreover, the RSIA of 2008 itself added to the body of railroad safety 
statutory laws with which railroads must comply. These efforts are all 
directed toward promoting safety--the safety of railroad employees, 
passengers,

[[Page 1210]]

and the public, overall--in a systematic and comprehensive way.
    The BLET is clearly incorrect in arguing that FRA is immunizing 
railroads from tort liability except where they violate a Federal 
safety standard. State law, both statutory and common law, is preempted 
only where FRA's regulations substantially subsume the subject matter 
of the State law and FRA's regulations, while extensive, are not 
encyclopedic. The BLET's contention that a railroad that complies with 
the Federal standard of care set by Federal law should nevertheless be 
held to be negligent for the very behavior required by Federal law 
would make a nullity of Federal railroad safety laws. If the BLET's 
view were to be adopted, the effective railroad safety standard would 
be set by the most recent jury verdict in each State and national 
uniformity of safety regulation would no longer exist. That is clearly 
inconsistent with the statute and the case law.
    Nor does FRA believe that our views on preemption will preclude 
railroads from exceeding Federal railroad safety standards. Railroads 
regularly exceed these standards now. A railroad that abides only by 
the minimum Federal safety standards would constantly run the risk of 
incurring civil penalty liability. For example, because wheels wear 
from use, no freight railroad would logically operate its fleet of rail 
equipment at the very minimum Federal safety standards for wheels; any 
usage of the equipment would potentially wear the wheels out of 
compliance, rendering them defective per se under 49 CFR part 215. 
Similarly, no railroad would logically maintain its track to the very 
minimum standards allowed by FRA's Track Safety Standards, as the 
railroad should know that any usage of the track could potentially 
bring it out of compliance by, for example, widening the gage. See 49 
CFR 213.9. Further, as discussed above, FRA believes that Congress has 
encouraged railroads to exceed Federal safety standards and that 
Section 20106 does not increase the potential tort liability of 
railroads that choose to do so.
    In addition, FRA disagrees that its duties as a safety regulator 
preclude it from providing its views on the preemptive effect of its 
regulations. A variety of considerations go into setting safety 
standards, including their relationship to other safety laws and 
standards. For example, as noted in the NPRM, FRA has directed 
extensive efforts to provide for the safety of Tier I passenger-
occupied equipment operated as the leading units of passenger trains, 
such as by providing for increased collision post strength for the 
forward ends of cab cars and MU locomotives in the 1999 final rule. Had 
FRA intended to impose restrictions in the 1999 final rule on operating 
this equipment in the lead, FRA may have acted differently in imposing 
the crashworthiness requirements that it did on this equipment. This 
very final rule FRA is issuing today will enhance crashworthiness 
requirements for cab cars and MU locomotives, specifically recognizing 
that this equipment is operated as the leading units of passenger 
trains.
    Finally, FRA believes that the comments raised essentially 
disregard the possibility that FRA requirements may in fact be more 
restrictive than State law would be. In the original Passenger 
Equipment Safety Standards rulemaking, for example, FRA addressed a 
number of comments from State departments of transportation that 
applying the static end strength (or ``buff'' strength) requirements, 
Sec.  238.203, to existing passenger equipment was too restrictive. See 
64 FR 25544-25545. FRA also addressed similar comments on other 
provisions of the rule, such as from the Washington State Department of 
Transportation, which believed FRA had not justified the requirements 
for side structure, Sec.  238.217. See 64 FR 25608-25609. Potentially, 
these States may have deemed less restrictive requirements appropriate.
4. Whether FRA's Views on Preemption Affect Recovery for Victims of 
Railroad Accidents
    The AAJ asserted that Federal preemption would prevent victims of 
the 2005 Glendale, CA, Metrolink derailment from seeking justice, that 
common carriers like Metrolink owe the highest degree of care to their 
passengers, and that if a court affords deference to FRA's preamble, 
the NPRM would effectively render that obligation meaningless. Similar 
to other comments that have been raised, the AAJ commented that State 
common law should govern railroad safety issues in that they are unique 
to each community and therefore more effectively addressed under State 
law. The AAJ believed that Federal regulations cannot effectively 
ensure that the public is protected from hazards caused by a railroad's 
inability to follow operating rules. The AAJ maintained that Federal 
regulations are minimum standards and are not intended to provide 
maximum protection, asserting that the justice system offers a 
deterrent against railroad companies' violations of Federal, State, and 
local regulations. The AAJ stated that the public needs a mechanism to 
compensate individuals for losses suffered at the hands of negligent 
railroad operators or otherwise these injured individuals could become 
a burden to the public.
    FRA notes that it has already addressed, above, comments that State 
common law should govern railroad safety issues. The 9/11 Commission 
Act of 2007 expressly clarified the criteria providing for State law 
causes of action but left untouched the provisions in Section 20106 
governing national uniformity of regulation. Once the Secretary of 
Transportation has covered a subject matter through a regulation or 
order, and thus established a Federal standard of care, Section 20106 
preempts State standards of care regarding this subject matter. 
Nonetheless, FRA believes it important to address specifically the 
AAJ's claim that FRA's views would prevent the victims of the Glendale 
incident from seeking justice.
    The Glendale derailment was the result of a deliberate, criminal 
act. The perpetrator was found guilty of 11 counts of murder. Surely, 
nothing FRA has said about Federal preemption should be construed in 
any way to mean that victims of the Glendale derailment may not seek 
redress against the criminal perpetrator.
    Nor should anything FRA has said about Federal preemption be 
construed to mean that these victims may not pursue negligence claims 
against Metrolink. As discussed elsewhere in this preamble, FRA agrees 
that railroads owe their passengers and employees a high degree of care 
and that victims of railroad accidents may hold railroads accountable 
in tort for their actions. Surely nothing FRA has said should be 
interpreted to preclude a claim for negligence based on a railroad's 
failure to comply with a Federal law, standard, or order or, where none 
of those apply, State law. In this regard, FRA believes that the AAJ's 
comments significantly minimize the degree to which railroads are in 
fact responsible for complying with a broad range of safety laws, 
regulations (such as this final rule), and orders, with a host of new 
requirements arising from the RSIA of 2008, as noted above. To a 
considerable degree, this reflects a difference of view over whether 
safety standards are better set by twelve jurors good and true, most of 
whom probably do not know anything about railroad safety, or by experts 
in railroad safety to whom Congress has assigned the task. Of course, 
those jurors can do a fine job of finding the facts and applying the 
legal standard to them. In a recent case involving Federal preemption 
under a U.S. Food and Drug Administration (FDA) regulation, the

[[Page 1211]]

Supreme Court eloquently explained why Congress's decision to preempt 
State common law makes sense:

    [I]n the context of this legislation excluding common-law duties 
from the scope of pre-emption would make little sense. State tort 
law that requires a manufacturer's catheters to be safer, but hence 
less effective, than the model the FDA has approved disrupts the 
federal scheme no less than state regulatory law to the same effect. 
Indeed, one would think that tort law, applied by juries under a 
negligence or strict-liability standard, is less deserving of 
preservation. A state statute, or a regulation adopted by a state 
agency, could at least be expected to apply cost-benefit analysis 
similar to that applied by the experts at the FDA: How many more 
lives will be saved by a device which, along with its greater 
effectiveness, brings a greater risk of harm? A jury, on the other 
hand, sees only the cost of a more dangerous design, and is not 
concerned with its benefits; the patients who reaped those benefits 
are not represented in court. As Justice BREYER explained in Lohr, 
it is implausible that the MDA [Medical Device Amendments] was meant 
to ``grant greater power (to set state standards `different from, or 
in addition to' federal standards) to a single state jury than to 
state officials acting through state administrative or legislative 
lawmaking processes.'' 518 U.S., at 504, 116 S.Ct. 2240. That 
perverse distinction is not required or even suggested by the broad 
language Congress chose in the MDA,\FN4\ and we will not turn 
somersaults to create it.

Riegel v. Medtronic, Inc. 128 S.Ct. 999, 1008 (U.S., 2008). (Footnote 
omitted.)
    The Supreme Court's logic is equally applicable to regulations 
under the Federal railroad safety laws, including this one.
5. How a State May Act as the Owner and Not the Regulator of a Railroad
    FRA received comment from the CPUC indicating that there was 
confusion as to what FRA intended to convey by explaining the 
difference between a State acting as an ``owner'' of a railroad--in 
distinction to a regulator of a railroad--in directing a railroad's 
operations. The CPUC commented that it understood that FRA interprets 
Section 20106 so that States that own or control a passenger railroad 
may impose more stringent standards on their railroad(s) than those 
prescribed in the NPRM, as long as the more stringent State standards 
are not in conflict with the Federal standards and are wholly distinct 
and not derived from the statutory provision--i.e., not a part of the 
State's regulatory authority over passenger railroads but resulting 
from its status as an owner of a passenger railroad. The CPUC then 
concluded that since FRA has ``approved'' of cab car-forward operations 
of Tier I passenger trains, States may not prohibit these operations on 
passenger railroads they own since such a restriction would conflict 
with the NPRM. Yet, the CPUC then understood that if the State wishes 
to increase the load-bearing capability of collision posts, corner 
posts and other structural elements, it may where it is the owner of 
the passenger railroad. The CPUC asserted that FRA was in effect 
establishing a Federal public safety policy that permits States to 
raise safety requirements above minimum Federal standards on railroads 
they own but limits States to the minimum standards on private 
railroads. The CPUC believed that this policy would severely limit 
State police powers even when State regulation neither conflicts with 
Federal law or regulation nor unreasonably burdens interstate commerce.
    FRA appreciates the CPUC's comments for purposes of clarifying 
FRA's discussion in the NPRM concerning the application of preemption 
to the actions of a State or local entity in the role of ``owner'' of a 
railroad versus those of a State or local entity in the role of 
regulator of a railroad. FRA has pointed out that commuter rail service 
is typically provided by public benefit corporations chartered by State 
or local governments. This legal arrangement essentially places the 
State or local entity in the role of ``owner'' of the railroad, and FRA 
sought to make clear that when a State or local governmental entity 
acts in this capacity to direct that the railroad exceed FRA's 
standards, it is not acting as a regulator of railroad operations. 
Instead, it is effectively acting in a private capacity concerning the 
operation of its own railroad. The fact that it is a public entity does 
not somehow convert its action into a law, regulation, or order related 
to railroad safety that invokes the statutory provisions governing the 
preemptive effect of FRA's regulation of this area.
    Specifically, FRA intended to make clear that when a State acts in 
this private capacity to direct its own railroad to exceed FRA's 
requirements or prohibit its own railroad from doing something FRA's 
requirements permit, it need not be concerned with satisfying Section 
20106(a)'s three-part, ``essentially local safety or security hazard'' 
exception for State regulation, as the State's action is wholly 
distinct, and does not derive, from the exception provided in the 
statute. This latter point may not have been conveyed clearly enough in 
the NPRM; FRA is restating it here for clarity. Further, FRA makes 
clear that even though States and local entities may act in a private 
capacity concerning their own railroads, this fact does not alter in 
any way FRA's views as to the preemptive effect of FRA's comprehensive 
regulation of passenger equipment safety, and the safe operation of cab 
cars and MU locomotives in particular, when the State or local 
governmental entity is acting in a regulatory capacity. Nor does FRA 
mean in any way to suggest that because States and local entities may 
act in a private capacity concerning their own railroad, a State or 
local court or jury has the ability to decide how the railroad should 
have acted. FRA makes clear that its views on a State or local entity's 
ability to run its own railroad do not extend to a State or local court 
or jury's ability to apply a standard of care that deviates from the 
Federal standard of care established by an FRA regulation or order.
    Additionally, FRA sought to make clear in the NPRM that even when 
the State or local governmental entity acts in this private capacity 
and directs that its passenger railroad operate in a manner more 
stringent than FRA's requirements, it may not direct that its railroad 
operate in a manner inconsistent with FRA's requirements. The CPUC's 
comments indicate that there may have been some confusion on this 
point, however. The CPUC believed that FRA has ``approved'' of cab car-
forward operations of Tier I passenger trains, and that, as a result, 
States may not prohibit these operations on passenger railroads they 
own since such a restriction would conflict with the NPRM. FRA did not 
intend such conclusions to be drawn. First, FRA makes clear that our 
regulations permit but do not require cab car-forward operations of 
Tier I-compliant passenger trains; there is no FRA approval process. 
Moreover, the fact that FRA's regulations permit cab car-forward 
operations does not prohibit a State, acting in a private capacity as 
the owner of its own railroad, from deciding not to use cab car-forward 
operations. For example, in no way would a State's decision directing 
its own railroad to operate each of its trains with a conventional 
locomotive in the lead conflict with any regulatory decision FRA has 
made. Both methods of operation are permitted under FRA's regulations 
and operators are free to choose among permitted methods of operation. 
(See the separate discussion on push-pull train operations, below.) The 
CPUC's comments indicate that it understood the overall issue when it 
noted that if the State wishes to increase the load-bearing capability 
of collision posts, corner posts and other structural elements of its 
equipment, it may if it is the owner of the passenger railroad.

[[Page 1212]]

Indeed, that analysis applies in the same way to cab car-forward 
operations of Tier I passenger trains.
    FRA also wishes to make clear that in no way did FRA intend to 
convey that freight railroads operate under less stringent safety 
standards--including those voluntarily imposed--because the railroads 
are typically owned by non-governmental entities. The CPUC additionally 
commented that the balance determined by FRA in weighing freight 
railroad safety with the business of freight railroading is heavily 
slanted towards the railroad industry at the expense of public safety 
since the public is subjected to ``minimum'' railroad safety 
regulations and the States are prohibited from requiring more stringent 
regulation. In the NPRM, FRA compared a State or local governmental 
entity's ability to act in a private capacity concerning the operation 
of its own railroad to that of a non-governmental entity that owns a 
freight railroad, for purposes of illustrating how the public entity is 
permitted to act in a private capacity to direct that its passenger 
railroad operate in a manner more stringent than FRA's requirements and 
not implicate preemption concerns. FRA believed this comparison 
particularly appropriate because freight railroads--like passenger 
railroads--regularly exceed FRA's safety standards as a matter of 
course, and they are encouraged to do so. Surely, a governmental entity 
that owns a freight railroad may choose to exceed FRA's requirements 
without concern for implicating the statutory provision governing 
preemption. While the CPUC's comment may not have been directed to this 
discussion in the NPRM, FRA believes that this clarification is helpful 
to place the discussion in a fuller context.
6. How State Regulation of Push-Pull Operations Is Preempted
    Congressman Adam Schiff commented that FRA's views in the NPRM may 
have the effect of preempting State laws on pushing trains with cab 
cars in the lead. He stated that in response to the January 2005 
Metrolink derailment in Glendale, CA, he had placed in the FY2006 
transportation appropriations bill a measure that led FRA to conduct a 
historical study of push-pull passenger rail operations that found that 
derailments and general fatalities were somewhat higher when push-pull 
trains were operated in the push mode. He believed that FRA's views 
could threaten the authority of States to require a higher level of 
passenger train safety or to seek redress for a wide variety of unsafe 
railroad practices, stating that the role of FRA is to adopt 
regulations to protect the traveling public from injury and death 
because of unsafe railroad operations and that State and local 
regulators must be allowed to take further steps to ensure that public 
transportation is as safe as possible. He additionally commented that 
any regulatory action should be avoided that may preempt States and 
localities from regulating railroad safety in ways that do not affect 
interstate commerce but do improve passenger safety, and believed that 
preemption should seldom be employed but on those rare occasions when 
it is required and that it should be used to set a floor and never a 
ceiling on the public's safety and well-being. As a result, he 
requested that FRA clarify that Federal preemption will not affect 
local and State limitations on the use of cab cars as the leading units 
of passenger trains, asserting that such regulations are designed to 
increase public safety and will not affect the national operations of 
rail service providers or rail car manufacturers.
    FRA notes first that the nature of Federal preemption under Section 
20106, even as amended, is that States and localities are restricted 
from acting as regulators concerning the operation of trains with cab 
cars in the lead, given Federal regulation of the matter. Nonetheless, 
as discussed earlier, FRA believes that in fact States and localities 
have the capability to act in a non-regulatory way either as owners or 
funders of commuter rail systems to restrict the operation of trains 
with cab cars in the lead, and, preemption concerns aside, could 
seemingly do so more directly. FRA will use the example of Metrolink, 
which operates wholly within the State of California and is a joint 
powers authority comprised of five county transportation planning 
agencies: The Los Angeles County Metropolitan Transportation Authority, 
the Orange County Transportation Authority, the Riverside County 
Transportation Commission, San Bernardino Associated Governments, and 
the Ventura County Transportation Commission. FRA makes clear that the 
representatives of those California counties who are designated as 
members of Metrolink's board of directors are not preempted from 
directing that Metrolink not run trains with cab cars as the leading 
units. Nor would the State of California be preempted from conditioning 
any grant of State funds to Metrolink on its not running trains with 
cab cars as the leading units. Preemption does not apply in either 
situation.
    While the authority does not apply in this situation, Congress has 
addressed Congressman Schiff's concerns in another way to some extent. 
The statute provides that States may regulate until the Secretary of 
Transportation prescribes a regulation or issues an order covering the 
subject matter of the State regulation. The statute also provides that 
a State may adopt or continue in force an additional or more stringent 
law, regulation, or order related to railroad safety or security when 
the law, regulation, or order is necessary to eliminate or reduce an 
essentially local safety hazard, is not incompatible with a law, 
regulation, or order of the United States Government, and does not 
unreasonably burden interstate commerce. Thus, while Congress 
prescribed national uniformity of railroad safety regulation, it also 
provided exceptions through which States can address matters Congress 
or FRA has not. Where FRA does regulate, the clear expectation is that 
the States will participate in the rulemaking process. If a State has a 
better idea or perceives a risk others have not seen, that State has 
several avenues through which it can get its concerns addressed. The 
State can petition FRA for rulemaking. The State can participate in 
RSAC and help formulate recommendations to the Administrator of FRA for 
regulatory action. The State can comment on notices of proposed 
rulemaking FRA issues. In these ways, State ideas and concerns can be 
embodied in uniform national regulations in keeping with the policy 
Congress established in the statute. The overwhelming majority of 
railroad safety issues are capable of being handled in uniform national 
regulations, and should be.
    FRA also notes that although the study cited by Congressman Schiff 
tended to favor conventional locomotive-led train service over cab car- 
and MU locomotive-led train service for resistance to derailment in 
highway-rail grade-crossing collisions on the raw data, no 
statistically significant difference was found between the modes of 
operation. See ``Report to the House and Senate Appropriations 
Committees: The Safety of Push-Pull and Multiple-Unit Locomotive 
Passenger Rail Operations,'' June 2006, available on FRA's Web site at: 
http://www.fra.dot.gov/downloads/safety/062606FRAPushPullLetterandReport.pdf. The accident record did show a 
higher fatality rate for occupants of cab car-led trains than occupants 
of conventional locomotive-led trains in commuter service, yet

[[Page 1213]]

(passenger occupied) MU locomotive-led trains compiled a superior 
safety record and experienced fatality rates less than conventional 
locomotive-led trains or any competing mode of transportation. The 
report explained that FRA's broad approach to safety is to focus on 
areas of the highest risk and thus the greatest potential for safety 
gains and that, by contrast, a narrower focus on one aspect of the 
safety issues (cab car- or MU locomotive-led operations versus 
conventional locomotive-led operations) could result in simply shifting 
risk from one place to another. FRA noted that compared to cab car- or 
MU locomotive-led trains, conventional locomotive led-trains may reduce 
the number of fatalities due to loss of occupant volume at the 
colliding interface, but in more serious events the structural crush is 
passed back to other areas of the train, potentially increasing the 
risk to other train occupants. The September 12, 2008 head-on train 
collision in Chatsworth, CA, which resulted in the deaths of 25 people 
and the injury of numerous others, involved a conventional locomotive-
led Metrolink train. The NTSB and FRA are currently investigating the 
collision and the NTSB has not yet determined the probable cause of the 
accident. Nevertheless, preliminary information indicates that most, if 
not all, of the passenger fatalities resulted from structural crush 
caused by collision energy passed through the locomotive. FRA has not 
evaluated the Chatsworth accident to determine whether the outcome 
would have been different had the cab car at the rear of the train been 
the leading unit. However, the Chatsworth accident tragically 
exemplifies that risks are inherent in any mode of passenger train 
operation and that the safety focus must necessarily be broader than 
just restricting cab cars from operating as the leading units of 
passenger trains.
7. Whether It Was Necessary To Discuss Preemption in the NPRM
    The AAJ commented that inclusion of ``overbroad'' preemption 
analysis in the NPRM was unnecessary because it has no substantive 
effect on the regulation and is not binding on courts. Moreover, the 
AAJ claimed that FRA provided no reasoned explanation for what it 
believed was an unauthorized attempt to expand the reach of FRSA 
preemption. The AAJ also stated that FRA buried the preemption 
discussion within the text of the preamble without any mention of it in 
the summary of the NPRM, and believed that the title and summary of the 
NPRM hid the fact that FRA appeared to circumvent Congress and declare 
retroactive and future application of Federal preemption to the issue 
of pushing passenger trains with cab cars in the lead.
    In response to these comments, which are also addressed in part 
below, FRA notes that it did explain why it was discussing preemption 
in the NPRM, stating that ``since issues have arisen regarding the 
preemptive effect of this part on the safety of operating a cab car as 
the leading unit of a passenger train, FRA believes that clarification 
of its views on the matter is needed to address any misunderstanding.'' 
72 FR 42028. In particular, in discussing the preemptive effect of part 
238, FRA sought to distinguish preemption of State regulation from a 
State's ability to act in a private capacity to restrict cab cars from 
operating as the leading units of passenger trains, as discussed above, 
thereby effectively achieving the same result. In fact, despite FRA's 
efforts to clarify its views, comments on the NPRM demonstrate that 
there still is confusion as to FRA's views. By the statements in the 
preamble of this final rule, FRA hopes to definitively clear up this 
confusion so that FRA's views are understood as FRA intends that they 
be.
    Moreover, FRA believes that a reading of the NPRM shows anything 
but an intent to hide its views on preemption concerning the operation 
of a cab car as the leading unit of a passenger train. The NPRM 
concerned the crashworthiness of cab cars and MU locomotives and was 
not that large a rulemaking document. The NPRM itself contained a table 
of contents, which identified where ``Federalism Implications'' were 
discussed in the preamble. See 72 FR 42017. The section on ``Federalism 
Implications'' in turn pointed the reader further to the discussion of 
Sec.  238.13 (Preemptive effect) in the section-by-section analysis. 
Nonetheless, to the extent that a member of the public interested in 
the safety of cab cars and MU locomotives may not read beyond the 
Summary section of this final rule, FRA is stating in the Summary that 
this final rule clarifies FRA's views on the preemptive effect of this 
part.
8. Whether FRA Has Authority To Express Its Views on Preemption
    The BLET stated that FRA's comments on preemption improperly 
address matters reserved for the Legislative and Judicial Branches and 
raise serious separation-of-powers questions. The BLET termed 
``troubling'' that FRA's views were the latest in a series of similar 
actions by Executive Branch agencies. The BLET stated that Congress 
expresses its intent and that courts address questions about the 
intent, and that Congress can step in and overrule the judiciary as was 
done with passage of the 9/11 Commission Act of 2007.
    Similarly, the AAJ commented that FRA does not have authority to 
regulate with force of law, absent a clear and express delegation of 
that authority from Congress. The AAJ stated that FRA may exercise 
preemptive authority if Congress has explicitly delegated the authority 
and does so in a way that is consistent with Congressional intent. The 
AAJ claimed that Congress has never delegated preemptive authority to 
FRA and has provided instead a very limited scope of preemption under 
FRSA, asserting that FRA is not permitted to adopt regulations which 
preempt an individual's common law tort remedies. The AAJ further 
commented that Congress has not shown any intent to preempt State tort 
law actions or to prevent causes of action based on Federal law and 
regulations, citing case law. The AAJ cited in particular to Sprietsma 
v. Mercury Marine, 537 U.S. 51 (2002), to support its assertion that 
any Congressional desire to achieve uniformity in transportation safety 
regulation does not justify preemption of common law claims.
    FRA notes that some of these comments overlap with other comments 
that FRA has addressed. As to comments questioning FRA's authority to 
express its views on preemption, FRA believes its authority to do so 
arises out of its very authority to preempt State and local laws. There 
is no question that the Supremacy Clause of Article VI of the U.S. 
Constitution provides Congress with the power to preempt State law. 
``Preemption may result not only from action taken by Congress itself: 
A Federal agency acting within the scope of its congressionally 
delegated authority may preempt state regulation.'' Louisiana Public 
Service Commission v. FCC, 476 U.S. 355, 369 (1986). Since Congress 
provided that delegation very forthrightly in Section 20106 and the 
Supreme Court has interpreted the statute to provide for preemption of 
State law by FRA regulations, there can be no real question that FRA 
has authority to preempt State regulation. See the discussion elsewhere 
in this preamble of the Easterwood and Shanklin cases.
    By virtue of FRA's authority to preempt State law and the 
President's direction in Executive Order 13132 that agencies discuss 
the preemptive effect of their rules in the preambles to those rules, 
FRA may express its views as to the preemptive effect of its 
regulations.

[[Page 1214]]

The BLET surely would expect FRA to do so if a State or locality were 
to pass a law, or a State or local court were to issue an order, that 
potentially endangered the safety of the BLET's members and which FRA 
believed was preempted by Federal law. In this regard, in providing for 
national uniformity of regulation, Section 20106 protects against the 
potential for ever-changing and conflicting State and local standards 
adopted by individual juries, which could compromise railroad safety. 
Moreover, it would be irrational to forbid FRA from expressing its 
views as to the preemptive effect of its regulations when such FRA 
views have in fact been found to merit deference. See Union Pacific RR 
v. California Public Utilities Comm'n, 346 F.3d 851, 867 (9th Cir. 
2003). That case, in which FRA argued that some of its regulations are 
preemptive and some are not, also well illustrates the benefits for the 
courts of FRA clearly discussing what FRA intends to preempt and what 
it does not. The Supreme Court has made clear that it expects such 
agency discussions of preemption.
    As we explained in Hillsborough County v. Automated Medical 
Laboratories, Inc., 471 U.S. 707, 718, 105 S.Ct. 2371, 2377, 85 L.Ed.2d 
714 (1985), it is appropriate to expect an administrative regulation to 
declare any intention to pre-empt state law with some specificity:

    ``[B]ecause agencies normally address problems in a detailed 
manner and can speak through a variety of means, * * * we can expect 
that they will make their intentions clear if they intend for their 
regulations to be exclusive.

California Coastal Com'n v. Granite Rock Co. 480 U.S. 572, 583 (1987).
    FRA notes in particular that the case cited by the AAJ, Sprietsma 
v. Mercury Marine, does not apply to national uniformity of railroad 
safety regulation or the preemption of State common law by such 
regulations. Sprietsma involved a different statute, the Federal Boat 
Safety Act, which contains an express savings clause stating that 
``[c]ompliance with this chapter [46 U.S.C. chapter 43] or standards, 
regulations, or orders prescribed under this chapter does not relieve a 
person from liability at common law or under State law.'' 46 U.S.C. 
4311(g). Common law standards of care are not preempted under the 
Federal Boat Safety Act, because Congress expressly said otherwise. 
(The United States itself argued as amicus curiae in support of the 
Supreme Court's holding.) Congress has, however, expressly provided for 
Federal preemption in the railroad safety area when the Secretary of 
Transportation has issued a regulation or order covering a particular 
subject matter. See prior discussion of Section 20106.
9. What Impelled FRA's Views on Preemption
    The BLET asserted that FRA's discussion of preemption in the NPRM 
was a ``naked attempt'' to influence the outcome of a judicial appeal 
in which a railroad appellant was the defendant. The BLET stated that 
FRA made the outstanding claim that the possibility that the 1999 final 
rule would be amended at some unspecified later date preempts all State 
law by the complete absence of a standard, which preemption FRA then 
activated retroactively by publishing the NPRM. In this regard, the 
BLET cited the following passage from the NPRM:

    FRA specifically stated in the final rule that additional effort 
needed to be made to enhance corner post safety standards for cab 
cars and MU locomotives--leading to the NPRM that FRA is issuing 
today. 64 FR at 25607. However, FRA made clear that the very fact 
that it identified the possibility of specifying additional 
regulations did not nullify the preemptive effect of the final rule, 
both in terms of the issues addressed by the specific requirements 
imposed, and those as to which FRA considered specific requirements 
but ultimately chose to allow a more flexible approach.

72 FR 42030. The BLET asserted its belief that FRA transformed the 
addition of security language to the rail safety preemption statute in 
2002 into preemption of State common law pertaining to standards that 
were not imposed in 1999. The BLET commented that the 2002 amendment to 
then-existing Section 20106 did nothing more than extend current safety 
preemption to matters of rail security and, given that the NPRM is a 
proposed safety rule, the BLET contended that the mere fact that 
Congress extended preemption from safety to security matters provided 
no basis whatsoever for FRA to address the subject. Further, the BLET 
alleged that FRA ``put its thumbs on the scale of justice'' in stating 
that FRA had prohibited cab car-forward operations for Tier II but not 
for Tier I equipment and that FRA's choice was intended to be 
preemptive of State standards. The BLET maintained that there is 
substantial evidence that FRA published its preamble discussion to 
assist Metrolink in its appeal of a California court decision in which 
preemption relating to cab car-forward operations was an issue. The 
BLET stated that when the 1999 final rule was published, FRA never even 
suggested that the prohibition pertaining to cab car-forward operation 
of Tier II passenger equipment preempted all State and local law 
concerning the subject of cab car-forward operation of Tier I 
equipment, including common law.
    FRA notes that the BLET's comments highlight an inadvertent error 
in the NPRM in which the verb ``to make'' was stated in the past tense 
rather than the present tense. In the passage set out above, FRA had 
intended to state the following:

    However, FRA makes clear that the very fact that it identified 
the possibility of specifying additional regulations did not nullify 
the preemptive effect of the final rule, both in terms of the issues 
addressed by the specific requirements imposed, and those as to 
which FRA considered specific requirements but ultimately chose to 
allow a more flexible approach.

Emphasis added. FRA does recognize that in stating ``to make'' in the 
past tense, the passage erroneously conveys that FRA made that explicit 
statement in the 1999 final rule. FRA did not make that statement in 
the 1999 final rule. Nonetheless, in a similarly-worded passage on the 
next page of the NPRM, the NPRM correctly stated the following:

    FRA's decision to revisit in this NPRM subjects addressed in the 
1999 final rule does not change the preemptive effect of the 
comprehensive requirements imposed in that rule. As noted earlier, 
FRA's recognition in the 1999 final rule that additional work needed 
to be completed to enhance the crashworthiness of cab cars and MU 
locomotives does not nullify the preemptive effect of the standards 
then imposed for this equipment.

72 FR 42031. As this passage helps makes clear, FRA's point in citing 
the 1999 final rule was surely not to change what was stated in that 
final rule. FRA's point was to note that in promulgating the 1999 final 
rule FRA identified the possibility of specifying additional 
regulations to enhance safety after the completion of additional 
research efforts, but that identifying that possibility did not nullify 
the preemptive effect of that final rule on State or local standards. 
In the same way, FRA's recognition in this final rule that fuller 
application of CEM technologies to cab cars and MU locomotives could 
enhance their safety is not intended to nullify the preemptive effect 
of the standards arising from the rulemaking. FRA reiterates that it 
continually strives to enhance railroad safety, has an active research 
program focused on doing so, and sets safety standards that it believes 
are necessary and appropriate for the time that they are issued with a 
view to amending those standards as

[[Page 1215]]

circumstances change. If FRA's regulations were not accorded preemptive 
effect merely because FRA may amend its regulations at some point in 
the future, preemption would never apply, nor, it seems, would 
preemptive effect seemingly be accorded to any DOT regulation because 
DOT may amend any of its regulations in the future.
    In addition, FRA believes that the BLET's comments make too much 
out of FRA's mention of the Homeland Security Act of 2002's amendment 
to 49 U.S.C. 20106 that added language concerning the preemptive effect 
of rail security regulations and orders. See 72 FR 42028. FRA noted 
that Section 20106 had been amended and FRA stated that it was 
proposing to amend Sec.  238.13 (Preemptive effect) so that the 
regulatory section was more consistent with the revised statutory 
language addressing railroad security. Id. After doing so, FRA then 
explained as follows:

    In addition, since issues have arisen regarding the preemptive 
effect of this part on the safety of operating a cab car as the 
leading unit of a passenger train, FRA believes that clarification 
of its views on the matter is needed to address any 
misunderstanding. As described below, through a variety of 
initiatives spanning more than a decade, FRA has comprehensively and 
intentionally covered the subject matter of the requirements for 
passenger equipment, planning for the safe use of passenger 
equipment, and the manner in which passenger equipment is used.

Id. It is the discussion ``described below'' that resulted in virtually 
every comment made by the BLET on FRA's preemption views. FRA 
reiterates those views except as they are expressly changed in this 
final rule. FRA clearly separated mention of the 2002 statutory 
amendment from the rest of the discussion. FRA notes that it proposed 
amending Sec.  238.13 in part to reflect expressly that FRA's Passenger 
Equipment Safety Standards have a role in rail security. For example, 
if a passenger train collision were caused by intentional terrorist 
act, FRA's crashworthiness requirements would help to protect 
survivable space for the train occupants, FRA's fire safety standards 
would help lessen the likelihood that a fire would result, FRA's 
passenger train emergency system requirements would help facilitate 
both passenger escape and rescue, and other FRA standards would likely 
help mitigate the consequences of the act.
    While FRA has addressed the BLET comment as to what was said in the 
1999 final rule, FRA again emphasizes that FRA is not only authorized 
to express its views as to the preemptive effect of its regulations and 
orders but has an obligation to do so when issues arise as to their 
preemptive effect. The NPRM was not the first occasion for FRA to 
express its views on the preemptive effect of this part on the safety 
of operating a cab car as the leading unit of a passenger train, and 
FRA clarified its views in light of misunderstandings that had arisen. 
That some confusion appears to have remained even after FRA did so in 
the NPRM is reason for FRA to believe that it may not have been clear 
enough, which has led FRA to be detailed in its responses to all of the 
preemption comments on the NPRM. Preemption is both complex and 
important; it merits extensive discussion when that is necessary to 
convey a complete understanding of the issues. It was necessary in this 
NPRM because the preemptive effect of FRA's actions had widely been 
misunderstood. FRA recognizes that the NPRM was published during 
ongoing litigation concerning the operation of a train with a cab car 
as the leading unit, but the underlying incident, other incidents, and 
concerns as to enhancing the end structure of cab cars and MU 
locomotives were the impetus for issuing the NPRM and for its timing. 
FRA cannot stand silent about the meaning and effect of its rules 
because litigation is underway. Litigation is often underway or 
imminent somewhere. If litigation were a bar to rulemaking or to full 
explanations of rules FRA issues, very little rulemaking would get 
done. FRA tries to explain its regulatory actions fully and clearly 
trusting that those explanations will assist the regulated community 
and the courts alike and believing that it is our job to do so. FRA 
does that to advance railroad safety. FRA is consistently an advocate 
for railroad safety, and its rules and interpretations of those rules 
are intended to protect and enhance the safety of railroad employees 
and passengers, and citizens in the vicinity of railroads, and the 
property of everyone within range. Of course, expressions of the 
agency's views are likely to help or hurt the case of some particular 
litigant, but that is not FRA's concern. As recited above, Union 
Pacific RR v. California Public Utilities Comm'n, 346 F.3d 851, 867 
(9th Cir. 2003), well illustrates that FRA's forthright and clear 
expression of its views may help one litigant on some claims and the 
other side on other claims in the same case. FRA does not take or alter 
its positions based on who the litigants are.
    When, however, it appears that a court or courts have misconstrued 
FRA's regulations, the agency has an obligation in the interest of 
safety to correct the record. After all, FRA issued the regulation or 
interpretation as it did because that represented FRA's best expert 
judgment concerning how to advance railroad safety. Necessarily, in the 
agency's view, a misconstruction of its regulations is likely to impair 
railroad safety and permitting that impairment to continue is 
unacceptable.
    Both the technical aspects of railroad safety and preemption under 
49 U.S.C. 20106 are arcane and difficult subjects on which the 
regulated community and courts, alike, are entitled to the best 
explanations the technical experts at FRA can provide. In the case that 
appears to concern the BLET, it seems that the discussion of preemption 
in the NPRM did assist a California appellate court, and that is 
entirely appropriate.
10. Whether FRA's Views on Preemption Affect FELA
    The BLET asserted that FRA's views on preemption conflict with 
legislatively promulgated and judicially recognized rights under the 
Federal Employers' Liability Act (FELA), 45 U.S.C. 51 et seq. (FELA 
provides that employees of common carriers by railroad engaged in 
interstate or foreign commerce may recover for work-related injuries 
caused in whole or in part by their employer's negligence.) The BLET 
stated that FELA has been liberally construed and that juries are given 
great leeway to determine whether there has been negligence or not. The 
BLET noted that FRA did not mention whether its views on preemption 
extended to FELA, but the BLET believed that FRA has created 
unnecessary tension with FELA by limiting theories of liability to 
violations of positive regulation--and excluding from liability that 
which has not been regulated. The BLET recommended that FRA avoid 
creating any such conflict by essentially limiting FRA's statements on 
preemption to what the statute expressly states and referencing the 
statute.
    As the BLET points out, FRA made no reference to FELA in FRA's 
discussion of preemption in the NPRM. FRA does not understand the basis 
for the BLET's concern that FRA is somehow ``limiting theories of 
liability to violations of positive regulation--and excluding from 
liability that which has not been regulated.'' Neither the NPRM nor 
this final rule does that. The statute and the regulation plainly state 
that a Federal standard of care created by regulation displaces State 
standards of care covering the same subject matter. State

[[Page 1216]]

standards of care covering other subject matter are not preempted. 
FRA's discussion was limited to Federal railroad safety laws, 
regulations, and orders for which FRA has responsibility to administer 
or enforce. FELA is a railroad labor law, which FRA neither administers 
nor enforces. FELA is also a Federal law and, therefore, not expressly 
a subject of preemption under 49 U.S.C. 20106. Occasionally, however, 
conflicts arise between Federal statutes and courts must resolve them. 
Courts have concluded that, in certain circumstances, Federal railroad 
safety laws may preclude some FELA claims.
    Several courts have decided, for example, that the FRSA precludes 
an action under FELA where a railroad employee claims that he or she 
was injured because of a negligently excessive train speed, and where 
the train was not exceeding the speed limit set by FRSA regulations. 
These courts have reasoned that permitting such FELA claims would be 
contrary to ``Congress' intent [in passing the FRSA] that railroad 
safety regulations be nationally uniform to the extent practicable.'' 
Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir. 2001); see 
also Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 776 (7th Cir. 
2000); Rice v. Cincinnati, New Orleans & Pac. Ry. Co., 955 F.Supp. 739, 
740-41 (E.D.Ky. 1997); Thirkill v. J.B. Hunt Transp., Inc., 950 F.Supp. 
1105, 1107 (N.D.Ala. 1996). But see Earwood v. Norfolk S. Ry. Co., 845 
F.Supp. 880, 891 (N.D.Ga. 1993) (concluding that a FELA action based on 
excessive speed was not precluded by the FRSA).

Tufariello v. Long Island R. Co., 458 F.3d 80, 86 (C.A.2 (N.Y.), 2006). 
Nothing in this final rule changes how courts resolve perceived 
conflicts between Federal railroad safety laws and FELA claims. As the 
examples cited above show, Federal courts were already applying 
preclusion analyses based on Section 20106 to reconcile Federal 
railroad safety laws, where they apply, and FELA. Courts regularly 
interpret Federal statutes that present potential conflicts, and FRA 
anticipates that courts hearing FELA cases will have little difficulty 
reconciling FELA and the current text of Section 20106.
11. Whether Preemption Applies Under the Locomotive (Boiler) Inspection 
Act
    The AAR commented that FRA gave incomplete guidance on preemption 
by referring only to Section 20106 in the NPRM. While the AAR took no 
issue with what FRA stated regarding Section 20106, the AAR pointed out 
that preemption also applies under the Locomotive (Boiler) Inspection 
Act (LBIA) to requirements affecting locomotives and the NPRM would 
affect locomotive requirements. (The LBIA was repealed and reenacted as 
positive law in 49 U.S.C. ch. 207 (sections 20701-20703), 
``Locomotives,'' by Public Law 103-272 (July 5, 1994); FRA is 
nonetheless referring to these provisions by their former name as they 
are commonly known.) The AAR stated that the LBIA preempts all 
requirements pertaining to locomotives, regardless of whether there is 
a Federal requirement addressing the subject matter of a State 
requirement. According to the AAR, a requirement could be preempted by 
the LBIA even if it is not preempted under Section 20106. The AAR noted 
that FRA recognizes preemption under the LBIA, citing 49 CFR 230.5, the 
preemption provision for FRA's Steam Locomotive Inspection and 
Maintenance Standards, which states in part: ``The Locomotive Boiler 
Inspection Act (49 U.S.C. 20701-20703) preempts all State laws or 
regulations concerning locomotive safety. Napier v. Atlantic Coast Line 
R.R., 272 U.S. 605 (1926).''
    The AAR added that in issuing this standard, FRA explained that 
while Section 20106 ``would ordinarily set the standard for preemption 
of a rule issued under [49 U.S.C.] 20701, the broader field preemption 
provided by the LBIA (as interpreted by the courts) seems the more 
appropriate standard to apply in light of this rule's subject matter.'' 
64 FR 62828, 62836 (Nov. 17, 1999). The AAR believed the same is true 
here and that to portray the scope of Federal preemption accurately, 
Sec.  238.13 needs to refer to both Section 20106 and the LBIA. The AAR 
suggested amending Sec.  238.13 by adding the above-referenced 
statement from Sec.  230.5.
    FRA believes that the AAR is correct and that preemption under the 
LBIA also applies to locomotives covered by part 238. FRA recognizes 
that the LBIA has been consistently interpreted as totally preempting 
the field of locomotive safety, extending to the design, the 
construction, and the material of every part of the locomotive and 
tender and all appurtenances thereof. Although the LBIA has no 
preemption provision, it has been held to preempt the entire field of 
locomotive safety. See Napier v. Atlantic Coast R.R., 272 U.S. 605 
(1926). The 1999 Passenger Equipment Safety Standards final rule was 
issued in part under the authority of the LBIA, sections 20701-20702, 
as was the NPRM in this rulemaking.
    This rulemaking directly imposes requirements on locomotives, as 
both cab cars and MU locomotives are locomotives. They are also 
considered passenger cars under part 238. The subject matter of part 
238 is broader than just locomotives and passenger cars, covering all 
passenger equipment, which includes baggage, private, and other cars. 
Because of the broad subject matter of part 238 and the fact that the 
(former) FRSA rulemaking authority now codified in 49 U.S.C. 20103 was 
a basis for the rule, FRA originally cited the FRSA preemption 
provision codified in 49 U.S.C. 20106. However, that action was not 
meant to exclude the possibility of preemption under the LBIA applying 
as well.
    FRA has not been presented with an actual issue involving a 
passenger locomotive where FRA views on the effect of Federal 
preemption would differ depending on whether preemption under FRSA or 
the LBIA applies. Because the courts have consistently held since 
Napier in 1926 that the LBIA preempts the field of the design, the 
construction, and the material of every part of the locomotive and 
tender and all appurtenances thereof, FRA has presumed that preemption 
under the LBIA applies. Nevertheless, it is good regulatory practice to 
say so explicitly and FRA now does that. FRA amends Sec.  238.13 at 
this time citing the LBIA.

V. Section-by-Section Analysis

Amendments to 49 CFR Part 238, Passenger Equipment Safety Standards

Subpart A--General
Section 238.13 Preemptive Effect
    This section informs the public as to FRA's views regarding the 
preemptive effect of this part. As discussed above, FRA is amending 
this section to conform to the revisions made to Section 20106 by the 
9/11 Commission Act of 2007.
    FRA notes that its discussion of the comments raised on the NPRM 
provides detailed analysis of the preemptive effect of this part, and 
FRA is not repeating that discussion here. FRA also notes that the 
preemptive effect of this part is discussed in the section on ``Federal 
Implications'' in Section VI.D. of the preamble to this final rule.
Subpart C--Specific Requirements for Tier I Passenger Equipment
Section 238.205 Anti-Climbing Mechanism
    In the NPRM, FRA proposed to amend paragraph (a) of this section to 
correct an error in the rule text. In relevant part, this paragraph 
stated that ``all passenger equipment * * * shall have at both the 
forward and rear ends an anti-climbing mechanism capable of resisting 
an

[[Page 1217]]

upward or downward vertical force of 100,000 pounds without failure.'' 
However, FRA had intended that the words ``without failure'' actually 
read as ``without permanent deformation,'' as stated in the preamble 
accompanying the issuance of this paragraph. Specifically, FRA 
explained in the accompanying preamble that the anti-climbing mechanism 
must be capable of resisting an upward or downward vertical force of 
100,000 pounds ``without permanent deformation.'' See 64 FR 25604; May 
12, 1999. Use of the ``without permanent deformation'' criterion is 
consistent with North American industry practice, and FRA had not 
intended to relax that practice. Consequently, FRA had proposed to 
correct Sec.  238.205(a) expressly to require that the anti-climbing 
mechanism be capable of resisting an upward or downward vertical force 
of 100,000 pounds without permanent deformation.
    In comments on the NPRM, CRM was supportive of the clarification to 
this anti-climbing provision, but CRM raised concern about the 
precedent set by making the clarification retroactive. As a result, CRM 
wanted it made clear that the date for the change be stated 
prospectively in the CFR itself.
    FRA brought this issue before the Task Force for its consideration. 
The consensus of the Task Force was to correct the rule text for all 
passenger equipment placed in service for the first time once the final 
rule takes effect, and to leave the rule text in its original for 
passenger equipment already placed in service. The Task Force could not 
cite an instance where passenger equipment subject to the requirements 
of this section and already placed in service had not been constructed 
with an anti-climbing mechanism capable of resisting an upward or 
downward vertical force of 100,000 pounds without permanent 
deformation. For this reason, the Task Force believed there was no real 
safety concern in leaving the rule text in its original for existing 
passenger equipment.
    FRA agrees with the Task Force's recommendation here and finds 
that, under the circumstances, it is appropriate to modify the rule 
text to apply the clarification to all passenger equipment placed in 
service for the first time on or after the effective date of the final 
rule. The rule text modification will take place immediately for such 
equipment newly placed in service, given that all equipment being 
placed in service now should meet this requirement.
    FRA notes that it has set out the entire text of this section for 
ease of use, although FRA is amending paragraph (a) only. No change to 
paragraph (b) has been made or is intended.
Section 238.209 Forward End Structure of Locomotives, Including Cab 
Cars and MU Locomotives
    FRA is principally amending this section by revising it and adding 
a new paragraph (b) so that the forward end structure of a cab car or 
an MU locomotive may comply with the requirements of appendix F to this 
part in lieu of the requirements of either Sec.  238.211 (Collision 
posts) or Sec.  238.213 (Corner posts), or both, provided that the end 
structure is designed to protect the occupied volume for its full 
height, from the underframe to the anti-telescoping plate (if used) or 
roof rails. See the discussion of Sec. Sec.  238.211 and 238.213 and 
appendix F, below.
    In part because of this change, FRA is amending the heading of this 
section to make clear that the requirements apply to cab cars and MU 
locomotives. Cab cars and MU locomotives are locomotives and have been 
subject to the requirements of this section since its issuance. FRA has 
also shortened ``[f]orward-facing end structure'' to ``[f]orward end 
structure,'' in the section heading. FRA believes that referring to the 
forward or front end structure is appropriate since this section 
already referred to the ``forward end structure'' in former paragraph 
(c) of the section, redesignated as paragraph (a)(1)(iii), and, as 
noted above, this section is being amended to expressly reference 
requirements for cab cars and MU locomotives that are stated in this 
final rule as applying to the forward end structure.
    Nonetheless, FRA makes clear that it is not changing the original 
requirements of this section for the skin covering the forward-facing 
end of each locomotive; FRA has only redesignated these requirements as 
paragraph (a) of this section. FRA does note that an issue has arisen 
whether the skin must be made of steel plate, or whether a material of 
lesser yield strength may be used. FRA makes clear that the intent of 
this section has always been to allow for use of material of lesser 
yield strength that, due to its increased thickness, e.g., provides 
strength at least equivalent to that for the steel plate specified. For 
instance, aluminum material of lesser yield strength may be used to 
comply with the requirements of paragraph (a) if it is of sufficient 
thickness to provide at least the strength equivalent to that of a 
steel plate that is \1/2\-inch thick and has a yield strength of 25,000 
pounds-per-square-inch.
Section 238.211 Collision Posts
    This final rule enhances requirements for collision posts at the 
forward ends of cab cars and MU locomotives. The enhancements are based 
on the provisions of paragraphs (a) through (d) of section 5.3.1.3.1, 
Cab-end collision posts, of APTA SS-C&S-034-99, Rev. 2. FRA has 
modified the provisions of this APTA standard for purposes of their 
adoption as a Federal regulation.
    FRA is setting out Sec.  238.211 in its entirety in the rule text 
for ease of use. In the NPRM, FRA had elided paragraphs (a)(1) and 
(a)(2) and paragraph (b)(1) of this section, using asterisks to 
represent that the text of these paragraphs would be unchanged. 
However, FRA is including these paragraphs in this final rule so that 
this section, as amended, may be read more easily in its entirety.
    Paragraph (b) formerly required that each locomotive, including a 
cab car and an MU locomotive, ordered on or after September 8, 2000, or 
placed in service for the first time on or after September 9, 2002, 
have two collision posts at its forward end, each post capable of 
withstanding a 500,000-pound longitudinal force at the point even with 
the top of the underframe and a 200,000-pound longitudinal force 
exerted 30 inches above the joint of the post to the underframe. These 
requirements were based on AAR Standard S-580, and had been the 
industry practice for all locomotives built since August 1990. See 64 
FR 25606. Subsequently, industry standards for locomotive 
crashworthiness were enhanced, with APTA focusing on standards for 
passenger-occupied locomotives, i.e., cab cars and MU locomotives, and 
the AAR focusing on standards for freight locomotives. The AAR's 
efforts helped support development of the locomotive crashworthiness 
rulemaking, published as a final rule on June 28, 2006. See 71 FR 
36887. That final rule specifically addresses the safety of 
conventional locomotives and does not apply to passenger-occupied 
locomotives. Nevertheless, FRA believes that conceptual approaches 
taken in the locomotive crashworthiness final rule are applicable to 
this rulemaking, as discussed below. To clearly delineate the 
relationship between the locomotive crashworthiness final rule and part 
238, FRA has inserted a cross-reference in the introductory text of 
paragraph (b) to indicate that since the locomotive requirements for 
collision posts in subpart D of part 229 became effective for 
locomotives manufactured on or after January 1, 2009, those more

[[Page 1218]]

stringent requirements--and not the requirements of this paragraph--
apply to conventional locomotives.
    In the NPRM, FRA proposed correcting paragraph (b)(2) so that the 
rule text is consistent with the clear intent of the provision. As 
explained in the preamble accompanying the issuance of this paragraph 
in the May 12, 1999 final rule, paragraph (b)(2) provides for the use 
of an equivalent end structure in place of the two forward collision 
posts described in paragraph (b)--specifically, paragraphs (b)(1)(i) 
and (b)(1)(ii). See 64 FR 25606. However, the rule text made express 
reference only to the collision posts in ``paragraph (b)(1)(i) of this 
section.'' This provision was not intended to be limited to the 
collision posts described in paragraph (b)(1)(i) alone, but instead to 
the collision posts described in paragraph (b)(1) as a whole--both 
paragraphs (b)(1)(i) and (b)(1)(ii). As a result, FRA proposed to 
correct this clear error in the rule text.
    In its comments on the NPRM, the BLET raised concern with this 
provision, first noting the purpose of collision posts as explained by 
FRA in the final rule governing the crashworthiness of freight 
locomotives. According to the BLET, because the height and positioning 
of the collision posts are what creates the survivable space during an 
accident, FRA imposes strict standards if a railroad wants to deviate 
from the AAR S-580 standard in the locomotive crashworthiness final 
rule. The BLET therefore found problematic that paragraph (b)(2) would 
provide for an equivalent end structure that could withstand the sum of 
the forces each collision post must withstand, in lieu of the two 
collision posts. The BLET believed that the level of protection 
provided by two collision posts is greater than the sum of the forces 
because of added energy dissipation provided by the outer sheeting of 
the locomotive superstructure. Additionally, the BLET believed that a 
differently-designed end structure that meets the equivalency 
requirement may or may not--depending upon its design and 
construction--provide the same amount of survivable space during an 
accident. Accordingly, the BLET urged FRA to revise paragraph (b)(2) in 
a way that addresses both of these concerns.
    As FRA discussed in the NPRM, FRA proposed to correct paragraph 
(b)(2) of this section so that use of an equivalent end structure would 
be allowed only in place of the two forward collision posts described 
in paragraphs (b)(1)(i) and (b)(1)(ii) of this section--not paragraph 
(b)(1)(i) alone. FRA sought to clear up a discrepancy between the rule 
text and the preamble explaining the provision, as well a lack of 
consistency within this paragraph (b) as a whole. FRA has interpreted 
this provision in accordance with the preamble to the May 12, 1999 
final rule, and would not consider any locomotive front end structures 
constructed otherwise to be compliant.
    FRA understands the BLET to be concerned that, even given this 
background, an end structure built in accordance with this corrected 
paragraph would present safety concerns. In large part for reasons 
discussed elsewhere in this final rule in support of new paragraph (c) 
of this section, FRA disagrees. Paragraph (c) of this section is 
essentially the counterpart to--and an enhancement of--the requirements 
of this paragraph (b) for new cab cars and MU locomotives. New 
paragraph (c) of this section applies to all cab cars and MU 
locomotives ordered on or after May 10, 2010, or placed in service for 
the first time on or after March 8, 2012. Further, as noted earlier, as 
a result of FRA's locomotive crashworthiness final rule cited by the 
BLET, paragraph (b) does not apply to conventional passenger 
locomotives that are manufactured on or after January 1, 2009, as they 
are subject to the requirements of subpart D of part 229. Paragraph (b) 
of this section therefore has limited applicability for new passenger 
locomotives, essentially only those new cab cars and MU locomotives 
ordered prior to May 10, 2010, and placed in service for the first time 
prior to March 8, 2012.
    FRA notes that paragraph (b)(2) is intended to assure a minimum 
level of overall end frame performance that prevents intrusions into 
the occupied volume, including the locomotive engineer's cab. End 
frames designed compliant with paragraph (b)(2) are intended to act as 
a system to help keep objects out of the cab. FRA wishes to allow for 
design innovation where alternative structures can be utilized that 
will provide equivalent levels of protection. There are examples of 
alternative, end frame arrangements that provide equivalent protection 
and are shaped so as to help deflect the object as the end frame 
deforms, thereby preventing intrusion into the cab area. FRA does not 
believe that use of structures designed compliant with paragraph (b)(2) 
places engineers at greater risk than use of traditional collision post 
structures compliant with paragraph (b)(1).
    FRA has redesignated former paragraph (c) as paragraph (d), revised 
it, and added a new paragraph (c) in its place. New paragraphs 
(c)(2)(i) and (c)(2)(ii) are similar to paragraphs (b)(1)(i) and 
(b)(1)(ii) of this section. One principal difference is that the final 
rule requires that each collision post be able to support the specified 
forces for angles up to 15 degrees from the longitudinal. In effect, 
this requires each post to support a significant lateral load, and is 
intended to reflect the uncertainty in the direction that a load is 
imparted during an impact. The requirement is also intended to 
encourage the use of collision posts with closed (e.g., rectangular) 
cross-sections, rather than with open (e.g., I-beam) cross-sections. 
Beams with open cross-sections tend to twist and bend across the weaker 
axis when overloaded, regardless of the direction of load. Beams with 
closed cross-sections are less likely to twist when overloaded, and are 
more likely to sustain a higher load as they deform, absorbing more 
energy.
    Paragraph (c)(2)(iii) does not have a counterpart in paragraph (b). 
This paragraph requires that the collision post be able to support a 
60,000-pound horizontal force applied anywhere along its length, from 
its attachment to floor-level structure up to its attachment to roof-
level structure. This requirement is intended to provide a minimum 
level of collision post strength at any point along its full height--
not only at its connection to the underframe or at 30 inches above that 
point. The requirement must also be met for any angle within 15 degrees 
of the longitudinal axis.
    FRA notes that the forces specified in paragraph (c)(2) that the 
collision posts are required to withstand are more appropriately 
described as horizontal forces, not merely longitudinal forces, as they 
are applied at any angle within 15 degrees of the longitudinal axis, 
the same as provided in Section 5.3.1.3.1 of APTA SS-C&S-034-99, Rev. 
2, on which this paragraph is based. Although the proposed rule text in 
the NPRM did not explicitly describe these forces as ``horizontal 
forces,'' FRA is doing so in this final rule to be consistent with the 
APTA standard and to make the rule text more clear.
    As discussed earlier, FRA received a number of comments on 
paragraph (c)(3), originally proposed as paragraph (c)(2) in the NPRM. 
FRA has modified this paragraph as a result, and this paragraph 
represents the consensus recommendation of RSAC. FRA had proposed that 
each collision post also be able to absorb a prescribed amount of 
energy while deforming and without separating from its supporting 
structure. This proposed requirement was intended to provide a level of 
protection similar to the SOA end frame design, as

[[Page 1219]]

discussed earlier in the Technical Background section of the preamble, 
above. To comply with this requirement, the NPRM proposed that a quasi-
static test, such as the test conducted by Bombardier on the M7 design, 
be used to show compliance. The NPRM also presented the option of 
dynamic testing to demonstrate compliance.
    As discussed earlier, FRA believes that dynamic performance 
requirements have been sufficiently validated and that dynamic testing 
should be included as an alternative for demonstrating compliance. 
However, FRA agrees with the Task Force in developing the final rule 
that instead of including in this paragraph an option for the dynamic 
testing of cab cars and MU locomotives, as was proposed in the NPRM, 
alternative requirements based on dynamic testing be included in 
appendix F to this part. Although FRA believes that the dynamic 
performance requirements will be applied to shaped-nose designs or CEM 
designs, or designs with both, these requirements may also be applied 
to conventional flat-nosed designs. Please see the ``Discussion of 
Specific Comments and Conclusions'' portion of the preamble, above, for 
additional guidance on the requirements of paragraph (c)(3).
    As proposed in the NPRM, FRA has redesignated existing paragraph 
(c) as paragraph (d) of this section. No other change is intended.
    There is no paragraph (e) in this final rule. In the NPRM, FRA 
cited examples of shaped-nosed designs that place the engineer back 
from the extreme forward end of the vehicle and offer the potential for 
significantly increased protection for the engineer in collisions. In 
this regard, FRA had proposed to add a paragraph (e) to provide relief 
from utilization of a traditional end frame structure, provided that an 
equivalent level of protection is afforded occupants by the components 
of a CEM system. See 72 FR 42038. The intent was to recognize that an 
equivalent level of protection may be provided against intrusion into 
occupied space, and that end frame structures could be set back from 
the very end of the cab car or MU locomotive as part of a CEM system. 
In the FRA CEM design tested in March 2006, the end frame structure was 
reinforced in order to support the loads introduced through the 
deformable anti-climber. Significantly more energy was absorbed in the 
deformation of the crush zone elements than the combined requirements 
outlined for both collision and corner posts while preserving all space 
for the locomotive engineer and passengers.\13\ In the CEM design being 
procured by Metrolink, an equivalent end frame structure is placed 
outboard of occupied space with crush elements between the very end of 
the nose and the equivalent end frame structure of the cab car. For a 
grade-crossing collision above the underframe of the cab car, it is 
expected that perhaps an order of magnitude or larger of collision 
energy will be absorbed prior to any deformations into occupied space.
---------------------------------------------------------------------------

    \13\ Tyrell, D., Jacobsen, K., Martinez, E., ``A Train-to-Train 
Impact Test of Crash Energy Management Passenger Rail Equipment: 
Structural Results,'' American Society of Mechanical Engineers, 
Paper No. IMECE2006-13597, November 2006. This document is available 
on the Volpe Center's Web site at: http://www.volpe.dot.gov/sdd/docs/2006/rail_cw_2006_07.pdf.
---------------------------------------------------------------------------

    Nonetheless, FRA has decided that proposed paragraph (e) is not 
necessary to retain in this final rule. Dynamic performance 
requirements are provided as alternative requirements in appendix F to 
this part, and are therefore available to apply to cab cars and MU 
locomotives with CEM designs. The ability to apply dynamic performance 
requirements to the end frame structure provides the relief that was 
intended by the addition of proposed paragraph (e), and this final rule 
will help to facilitate the introduction of cab cars and MU locomotive 
with CEM designs.
Section 238.213 Corner Posts
    This final rule enhances requirements for corner posts at the 
forward ends of cab cars and MU locomotives. The enhancements are based 
on the provisions of paragraphs (a) through (d) of Section 5.3.2.3.1, 
Cab end corner posts, and Section 5.3.2.3.3, Cab end-non-operator side 
of cab-alternate requirements of APTA SS-C&S-034-99, Rev. 2. FRA has 
modified the provisions of this APTA standard for purposes of their 
adoption as a Federal regulation. Together with the enhanced 
requirements for collision posts, this action will increase the 
strength of the front end structure of cab cars and MU locomotives up 
to what the main structure can support, and also require explicit 
consideration of the behavior of the front end structure when 
overloaded.
    As proposed in the NPRM, FRA has revised this section in its 
entirety. FRA has revised this section by re-designating former 
paragraph (b) as paragraph (a)(2), making conforming changes to 
paragraph (a), and adding new paragraphs (b) and (c). FRA has made 
conforming changes to paragraph (a) so that it is consistent with this 
section in its entirety, as revised. In particular, FRA has re-stated 
the corner post requirements in terms of ``force'' resisted, rather 
than ``load'' resisted. However, FRA makes clear that no change is 
intended to the formerly stated requirements; on the contrary, FRA is 
using the same terminology throughout this section so as to minimize 
any confusion that may result from using different terms when the same 
meaning is intended.
    Paragraph (b) is intended to augment the requirements of paragraph 
(a) for cab cars and MU locomotives ordered on or after May 10, 2010, 
or placed in service for the first time on or after March 8, 2012. 
Paragraph (b)(2) therefore requires that higher loads be resisted at 
the specified locations than its counterpart in paragraph (a).
    Paragraph (b)(3) includes quasi-static performance requirements for 
demonstrating that the corner posts absorb energy while deforming. In 
the NPRM, proposed paragraph (b)(2)(i) contained quasi-static test 
requirements for demonstrating energy absorption and deformation. The 
proposed requirements were intended to provide a level of protection 
similar to the SOA end frame design, as described in the Technical 
Background portion of the preamble, above. A quasi-static test, similar 
to the test conducted by Bombardier on the M7, would be appropriate to 
demonstrate compliance. Additionally, proposed paragraph (b)(2)(ii) 
provided for dynamic qualification of the energy absorption and 
deformation requirements, as an alternative to demonstrating compliance 
quasi-statically. FRA proposed that the end structure would need to be 
capable of withstanding a frontal impact with a proxy object intended 
to approximate lading carried by a highway vehicle under specific 
conditions.
    As discussed earlier, FRA believes that dynamic performance 
requirements have been sufficiently validated and that dynamic testing 
should be included as an alternative for demonstrating compliance. 
However, FRA agrees with the Task Force in developing the final rule 
that instead of including in this paragraph an option for the dynamic 
testing of cab cars and MU locomotives, as was proposed in the NPRM, 
alternative requirements based on dynamic testing be included in 
appendix F to this part. Although FRA believes that the dynamic 
performance requirements will be applied to shaped-nose designs or CEM 
designs, or designs with both, the requirements may also be applied to 
conventional flat-nosed designs. Please see the ``Discussion of 
Specific Comments and Conclusions'' portion of the preamble, above, for

[[Page 1220]]

additional guidance on the requirements of paragraph (b)(3).
    FRA notes that collision posts have more available space and a 
stronger support structure than corner posts due to their location in 
the middle of the end frame. Hence, they can absorb more energy than 
corner posts, and the energy absorption requirements specified for 
collision posts in this final rule are greater than those specified for 
corner posts, as a result. Nevertheless, these new requirements for 
corner posts more than double the amount of energy required for the 
posts to fail, when compared to the 1990s end frame design.
    Paragraph (c) prescribes the requirements for corner posts in cab 
cars and MU locomotives ordered on or after May 10, 2010, or placed in 
service for the first time on or after March 8, 2012, utilizing low-
level passenger boarding on the side of the equipment opposite from 
where the locomotive engineer is seated. A graphical description of the 
forward end of a cab car or an MU locomotive utilizing low-level 
passenger boarding on the non-operating side of the cab end is provided 
in Figure 1 to subpart C. In this arrangement, the non-operating side 
of the vehicle is protected by two corner posts (an end corner post 
ahead of the stepwell and an internal corner post behind the stepwell) 
that are situated in front of the occupied space and provide protection 
for the occupied space; the rule allows for the combined contribution 
of both sets of corner posts to provide an equivalent level of 
protection to that required for the corner post design arrangement in 
other configurations.
    As discussed earlier, FRA received a number of comments on this 
provision as proposed in the NPRM. In particular, the BLET raised 
concern that this provision could lead to a diminution of safety by 
designing the corner post ahead of the stepwell to be weaker than the 
one behind the stepwell. Although FRA has explained that safety is not 
diminished, the final rule contains an additional requirement that FRA 
review and approve plans for manufacturing cab cars and MU locomotives 
with this corner post design arrangement. Each plan must detail how the 
corner post requirements will be met, including what the acceptance 
criteria will be to evaluate compliance. FRA believes that this close 
oversight will help to alleviate concerns that the manufactured designs 
are in any way less safe for crewmembers and passengers to occupy.
    Specifically, paragraph (c) requires that the corner post load 
requirements of paragraph (b) be met for the corner post on the 
operating side of the cab. The requirements for the two corner posts on 
the side opposite from the engineer's control stand are described in 
paragraphs (c)(2) and (c)(3). The structural requirements for the end 
corner post ahead of the stepwell are described in paragraph (c)(2). 
The higher magnitude forces applied in the longitudinal direction will 
result in a corner post that is wider than it is deep. The structural 
load requirements for the corner post behind the stepwell are described 
in paragraph (c)(3). The higher magnitude forces applied in the 
transverse direction will result in a corner post that is deeper than 
it is wide.
    In paragraph (c)(4), FRA is also requiring that the combination of 
the corner post ahead of the stepwell and the corner post behind the 
stepwell be capable of absorbing collision energy while deforming. The 
requirements of this paragraph are virtually identical to those for 
corner ports subject to paragraph (b)(3). In the NPRM, proposed 
paragraph (c)(3)(i) contained quasi static test requirements for 
demonstrating energy absorption and deformation. Additionally, proposed 
paragraph (c)(3)(ii) provided for dynamic qualification of the energy 
absorption and deformation requirements, as an alternative to 
demonstrating compliance quasi-statically. As noted earlier, FRA agreed 
with the Task Force in developing this final rule that instead of 
including in this paragraph an option for the dynamic testing of cab 
cars and MU locomotives, as was proposed in the NPRM, alternative 
requirements based on dynamic testing be included in appendix F to this 
part. This has been done.
    There is no paragraph (d) in this final rule. Similar to the 
proposed addition of Sec.  238.211(e), discussed above, FRA had 
proposed to add a paragraph (d) to provide relief from utilization of a 
traditional end frame structure, provided that an equivalent level of 
protection is afforded occupants by the components of a CEM system. See 
72 FR 42038. The intent was to recognize that an equivalent level of 
protection may be provided against intrusion into occupied space, and 
that end frame structures could be set back from the very end of the 
cab car or MU locomotive as part of a CEM system. In the FRA CEM design 
tested in March 2006, the end frame structure was reinforced in order 
to support the loads introduced through the deformable anti-climber. 
Significantly more energy was absorbed in the deformation of the 
deformable anti-climber than the combined requirements outlined for 
both collision and corner posts while preserving all space for the 
locomotive engineer and passengers. Id. In the CEM design being 
procured by Metrolink, an equivalent end frame structure is placed 
outboard of occupied space with crush elements between the very end of 
the nose and the equivalent end frame structure of the cab car. For a 
grade-crossing collision above the underframe of the cab car, it is 
expected that perhaps an order of magnitude or larger of collision 
energy will be absorbed prior to any deformations into occupied space.
    Nonetheless, FRA has decided that proposed paragraph (d) is not 
necessary to retain in this final rule. Dynamic performance 
requirements are provided as alternative requirements in appendix F to 
this part, and are therefore available to apply to cab cars and MU 
locomotives with CEM designs. The ability to apply dynamic performance 
requirements to the end frame structure provides the relief that was 
intended by the addition of proposed paragraph (d), and this final rule 
will help to facilitate the introduction of cab cars and MU locomotive 
with CEM designs.

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 in light of the proposed 
changes to part 238. No comment was received.
    FRA does not find it necessary to amend the penalty schedule as a 
result of the changes made to part 238 by this final rule. This final 
rule amends existing sections of part 238 for which guideline penalty 
amounts are already provided in the penalty schedule. As a result, the 
penalty schedule remains unchanged.
    As noted in the NPRM, in December 2006 FRA published proposed 
statements of agency policy that would amend the schedules of civil 
penalties issued as appendixes to FRA's safety regulations, including 
part 238. See 71 FR 70589; Dec. 5, 2006. The proposed revisions are 
intended to reflect more accurately the safety risks associated with 
violations of the rail safety laws and regulations, as well as to make 
sure that the civil penalty amounts are consistent across all safety 
regulations. Although the schedules are statements of agency policy, 
and FRA has authority to issue the revisions without having to follow 
the notice and comment

[[Page 1221]]

procedures of the Administrative Procedure Act, FRA provided members 
and representatives of the general public an opportunity to comment on 
the proposed revisions before amending them. FRA has evaluated all of 
the comments received in preparing final statements of agency policy, 
and the schedule of civil penalties to part 238 may be revised as a 
result of that separate proceeding, independent of this rulemaking.

Appendix F to Part 238--Alternative Dynamic Performance Requirements 
for Front End Structures of Cab Cars and MU Locomotives

    FRA is adding appendix F to part 238 to provide alternatives to the 
requirements of Sec. Sec.  238.211 and 238.213. Cab cars and MU 
locomotives are not required to comply with both the requirements of 
those sections and the requirements of this appendix. Either set of 
requirements is adequate for the purpose, depending on the technical 
challenge(s) presented.
    As specified in Sec.  238.209(b), the forward end of a cab car or 
an MU locomotive may comply with the requirements of this appendix in 
lieu of the requirements of either Sec.  238.211 or Sec.  238.213, or 
both. The requirements of this appendix are intended to be equivalent 
to the requirements of those sections and allow for the application of 
dynamic performance criteria to cab cars and MU locomotives as an 
alternative to the requirements of those sections. The alternative 
dynamic performance requirements are applicable to all cab cars and MU 
locomotives and may, in particular, be helpful for evaluating the 
compliance of cab cars and MU locomotives with shaped-noses or CEM 
designs, or both. In any case, the end structure must be designed to 
protect the occupied volume for its full height, from the underframe to 
the anti-telescoping plate (if used) or roof rails.
    FRA notes that, in developing the NPRM, concern was raised as to 
the safety of conducting full-scale, dynamic testing; the technical 
tradeoffs between quasi-static test requirements and dynamic test 
requirements were discussed in the Technical Background section of the 
preamble to the NPRM. FRA explained that there are safety concerns 
associated with both quasi-static and dynamic testing, and in a quasi-
static test particular care must be taken due to the potential for the 
sudden release of stored energy should there be material failure. 
Proper planning and execution of each test are required. Nonetheless, 
FRA has revised the dynamic performance requirements to minimize safety 
concerns, as discussed earlier in the preamble to this final rule. 
(Again, by noting that caution must be exercised in planning and 
executing the tests, FRA does not intend in any way to oust the 
jurisdiction of the Occupational Safety and Health Administration of 
the U.S. Department of Labor with regard to the safety of employees 
performing the tests.)
    FRA notes that the approach in this appendix is similar to that 
followed in the locomotive crashworthiness final rule, in which the 
front end structure requirements are principally stated in the form of 
performance criteria for given collision scenarios. See appendix E to 
part 229; 71 FR 36915. In that final rule, FRA adopted performance 
criteria, rather than more prescriptive design standards, to allow for 
greater flexibility in the design of locomotives and better encourage 
innovation in locomotive designs. See 71 FR 36895-36898. Of course, the 
requirements in Sec. Sec.  238.211 and 238.213 are forms of performance 
criteria; the distinction is that the performance criteria relate to 
quasi-static loading conditions--instead of dynamic loading conditions.
    Please see the ``Discussion of Specific Comments and Conclusions'' 
section in the preamble, above, for additional guidance on the 
requirements of this appendix and of paragraph (b)(3) in particular for 
cab cars and MU locomotives utilizing low-level passenger boarding on 
the non-operating side of the cab.

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 it has been determined not to be 
significant under either Executive Order 12866 or DOT policies and 
procedures (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-2006-25268.
    Through this final rule, FRA is enhancing its minimum requirements 
for the performance of collision posts and corner posts on cab cars and 
MU locomotives. These requirements apply only to newly constructed 
passenger equipment used as cab cars or MU locomotives. The 
requirements are based on current industry standards for front end 
frame structures, which, to FRA's knowledge, every cab car or MU 
locomotive currently in production for operation in the United States 
already meets. As such, the requirements are not expected to affect any 
units in production or planned for production for operation in the 
United States. This rule essentially codifies these industry standards 
and will likely not cause railroads to incur costs beyond those they 
already incur voluntarily. In this regard, it is also likely that this 
rule will lead to no additional safety benefits, because, as previously 
mentioned, industry already makes cab cars and MU locomotives that meet 
these requirements and is assumed to do so in the absence of this final 
rule.
    The rule's requirements may affect cab cars and MU locomotives from 
other potential manufacturers of equipment for operation in the United 
States if the equipment is of a design that does not meet current 
industry standards. However unlikely this scenario, FRA's analysis 
considers the hypothetical costs and benefits of requiring equipment 
subject to this final rule from a non-compliant design to be made 
compliant with the rule's requirements. Since there are alternative 
methods to meet the requirements of this final rule, the level of cost 
burden would depend on the method used. For purposes of analysis, FRA 
selected a method that would serve as a reasonable proxy. The analysis 
assumes that costs would stem from slightly higher costs of producing 
the equipment and slightly higher energy costs resulting from operating 
the equipment in proportion to its assumed additional weight. (FRA 
notes that although the analysis assumes that the additional weight 
would be one quarter of one percent (0.25%) of the weight of the 
equipment, FRA is not making a finding that a cab car or MU locomotive 
would necessarily be heavier as a result of manufacturing it in 
compliance with this final rule.) At the same time, the analysis 
assumes that benefits would arise from increased safety for passengers 
and crewmembers--safety that is provided by a more crashworthy end 
frame structure that is assumed to result both

[[Page 1222]]

in some fatalities avoided and in injuries avoided.
    In particular, assuming the number of new cab cars and MU 
locomotives that would not be built to these requirements and that 
therefore would be affected by this rule increases by 3 percent 
annually for the 20 years following implementation of this rule, FRA's 
analysis finds that, at a 7 percent discount rate, adopting this rule 
would cost $4,056,265 in 2007 dollars over the 20-year period. The 
analysis further assumes that it would not be unreasonable to attain 
total safety benefits for the 20-year period of $16,334,389 in 2007 
dollars at a 7 percent discount rate, meaning that net benefits at a 7 
percent discount rate would be $12,278,124. Analyzed at an incremental 
level, this rule would then result in an average cost of $1,304 per 
unit in 2007 dollars and would yield average benefits of $5,252 per 
unit in 2007 dollars. Average net benefits for each unit constructed in 
compliance with this rule would then be $3,948 in 2007 dollars. At a 3 
percent discount rate, adopting this rule would then cost $7,367,882 in 
2007 dollars and would yield total benefits of $22,081,319 in 2007 
dollars. Net benefits at a 3 percent discount rate would then be 
$14,713,437 in 2007 dollars. Calculated at the per unit basis at a 3 
percent discount rate, adopting this rule would then cost $2,369 on 
average per unit in 2007 dollars and would result in benefits of $7,100 
on average per unit in 2007 dollars. Thus, average net benefits per 
unit at a 3 percent discount rate would then be $4,731 in 2007 dollars.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure that the potential impact of this rule on small entities 
was properly considered, FRA developed this rule in accordance with 
Executive Order 13272 (``Proper Consideration of Small Entities in 
Agency Rulemaking'') and DOT's policies and procedures to promote 
compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The Regulatory Flexibility Act requires an agency to review regulations 
to assess their impact on small entities. An agency must conduct a 
regulatory flexibility analysis unless it determines and certifies that 
a rule is not expected to have a significant impact on a substantial 
number of small entities.
    As discussed in earlier sections of this preamble, the principal 
goals of crashworthiness rules promulgated by FRA are twofold: first, 
preserve a safe space for occupants, and, next, minimize the forces 
that occupants are subjected to when impacting interior surfaces. The 
APTA standards developed in 1999, and revised in 2003 and 2006, provide 
that new cab cars and MU locomotives have front end structures with 
corner and collision posts able to sustain minimum prescribed loads and 
absorb collision energy. This rule codifies these industry standards, 
which are based on quasi-static performance criteria. This rule also 
includes dynamic performance criteria that can be applied to any type 
of front end structure design (shaped-nose, CEM, flat-nosed, or 
otherwise) in lieu of the quasi-static performance criteria, which 
should reduce the uncertainty involved in demonstrating compliance. 
Inclusion of these alternative criteria should also enable car builders 
to more easily incorporate alternative, front end structure designs, 
which may lead to safer, less costly, or otherwise improved cab cars 
and MU locomotives.
    FRA notes that the crashworthiness requirements proposed in the 
NPRM and contained in this final rule were developed in consultation 
with a working group that includes Amtrak, individual commuter 
railroads, individual passenger car manufacturers, and APTA, which 
represents commuter railroads and passenger car manufacturers in 
rulemaking matters. As discussed in earlier sections of this preamble, 
the quasi-static performance criteria in the final rule are basically 
unchanged from the NPRM, while FRA has restated the alternative, 
dynamic performance criteria principally to make the criteria easier to 
apply.
    FRA has considered all of the comments submitted to the rulemaking 
docket and appreciates the information provided by the many parties. No 
comments were received specifically regarding FRA's initial analysis of 
the impact of this rule on small entities. As discussed below, FRA is 
certifying that this final rule will result in ``no significant 
economic impact on a substantial number of small entities.''
    The universe of the entities considered by FRA comprises only those 
small entities that can reasonably be expected to be directly affected 
by the provisions of this rule. ``Small entity'' is defined in 5 U.S.C. 
601(3) as having the same meaning as ``small business concern'' under 
section 3 of the Small Business Act. This includes any small business 
concern that is independently owned and operated, and is not dominant 
in its field of operation. Section 601(4) likewise includes within the 
definition of ``small entities'' not-for-profit enterprises that are 
independently owned and operated, and are not dominant in their field 
of operations. The U.S. Small Business Administration (SBA) stipulates 
``size standards'' for small entities. It provides that the largest a 
for-profit railroad business firm may be (and still classify as a 
``small entity'') is 1,500 employees for ``Line-Haul Operating'' 
railroads, and 500 employees for ``Short-Line Operating'' railroads. 
Additionally, section 601(5) defines as ``small entities'' governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000.
    SBA size standards may be altered by Federal agencies in 
consultation with SBA, and in conjunction with public comment. Pursuant 
to the authority provided to it by SBA, FRA has published a final 
policy, which formally establishes small entities as railroads that 
meet the line haulage revenue requirements of a Class III railroad. 
Currently, the revenue requirements are $20 million or less in annual 
operating revenue, adjusted annually for inflation. The $20 million 
limit (adjusted annually for inflation) is based on the Surface 
Transportation Board's threshold of a Class III railroad carrier, which 
is adjusted by applying the railroad revenue deflator adjustment.
    The principal entities subject to this rule by application of Sec.  
238.3(a)(1) are governmental jurisdictions or transit authorities that 
provide commuter rail service--none of which is small for purposes of 
the SBA (i.e., no entity serves a locality with a population less than 
50,000). These entities also receive Federal transportation funds. 
Intercity rail service providers Amtrak and the Alaska Railroad 
Corporation are also subject to this rule under Sec.  238.3(a)(1), but 
they are not small entities and likewise receive Federal transportation 
funds. While other railroads are subject to this final rule by the 
application of Sec.  238.3, FRA is not aware of any railroad subject to 
this rule that is a small entity that will be impacted by this rule. 
For example, railroads that provide short-haul rail passenger train 
service in a metropolitan or suburban area as specified in Sec.  
238.3(a)(2) are subject to this rule, but FRA is not aware that any 
railroad in existence that would fall in this category (and is not 
otherwise a commuter railroad) operates with cab cars or MU 
locomotives, or intends to acquire any new cab cars or MU locomotives 
that would be subject to the requirements of this final rule, or both. 
Tourist, scenic, excursion, and historic passenger railroad operations 
are exempt from part 238; therefore, these smaller operations would not 
incur any costs from this final rule.

[[Page 1223]]

    Having made these determinations, FRA certifies that this final 
rule will not 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 to the Office of Management and Budget (OMB) for review 
and approval in accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). The section that contains a new information 
collection requirement (49 CFR 238.213) and the estimated time to 
fulfill that requirement are both summarized in the following table. 
The table summarizes the information collection requirements arising 
out of the May 12, 1999 Passenger Equipment Safety Standards final 
rule, 64 FR 25540. Please note that the table does not include those 
information collection requirements added by the February 1, 2008 
Passenger Train Emergency Systems final rule, 73 FR 6370, as they are 
covered under a separate approval, OMB No. 2130-0576, which is current 
until March 31, 2011.

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
216.14--Special Notice for         27 railroads.......  9 forms............  5 minutes..........               1
 Repairs.
    --Passenger Equipment........
229.47--Emergency Brake Valve....
    --Marking Brake Pipe Valve as  27 railroads.......  30 markings........  1 minute...........               1
     Such.
    --MU, Cab Car Locomotives--    27 railroads.......  5 markings.........  1 minute...........             .08
     Marking Emergency Brake
     Valve as Such.
238.7--Waivers...................  27 railroads.......  5 waivers..........  2 hours............              10
238.15--Movement of Passenger
 Equipment with Power Brake
 Defects.
    --Defects Found at Inspection  27 railroads.......  1,000 tags.........  3 minutes..........              50
     Point.
    --Defects Developed en Route.  27 railroads.......  288 tags...........  3 minutes..........              14
    --Conditional requirement--    27 railroads.......  144 notifications..  3 minutes..........               7
     Notification.
238.17--Movement of Passenger
 Equipment with Other Than Power
 Brake Defects.
    --Defects Found at Inspection  27 railroads.......  200 tags...........  3 minutes..........              10
     Point.
    --Defects Developed en Route.  27 railroads.......  76 tags............  3 minutes..........               4
    --Special Requisites--         27 railroads.......  38 notifications...  30 seconds.........             .32
     Movement of Passenger
     Equipment with Safety
     Appliance Defect--Crewmember
     Notifications.
238.21--Petitions for Special      27 railroads.......  1 petition.........  16 hours...........              16
 Approval of Alternative
 Standards.
    --Petitions for Special        27 railroads.......  1 petition.........  120 hours..........             120
     Approval of Alternative
     Compliance.
    --Petitions for Special        27 railroads.......  10 petitions.......  40 hours...........             400
     Approval of Pre-Revenue
     Service Acceptance Testing
     Plan.
    --Comments on petitions......  public/railroad      4 comments.........  1 hour.............               4
                                    industry.
238.103--Fire Safety.............
    --Procuring New Pass.          2 new railroads....  2 analyses.........  150 hours..........             300
     Equipment--Fire Safety
     Analysis.
    --Existing Equipment--Final    27 railroads.......  1 analysis.........  40 hours...........              40
     Fire Safety Analysis.
    --Transferring/Changing        27 railroads.......  3 analyses.........  20 hours...........              60
     Existing Equipment--Revised
     Fire Safety Analysis.
238.107--Inspection, Testing, and  27 railroads.......  12 reviews.........  60 hours...........             720
 Maintenance Plans--Review by
 Railroads.
238.109--Employee/Contractor
 Training.
    --Training Employees and       7,500 employees/     2,500 employees/     1.33 hours.........           3,458
     Contractors--Mech.             contractors.         contractors/100
     Inspection.                                         trainers.
    --Recordkeeping--Employee/     27 railroads.......  2,500 records......  3 minutes..........             125
     Contractor Current
     Qualifications.
238.111--Pre-Revenue Service
 Acceptance Testing Plan.
    --Passenger Equipment That     9 equipment          2 plans............  16 hours...........              32
     Has Previously Been Used in    manufacturers.
     Revenue Service in the U.S.
    --Passenger Equipment That     9 equipment          2 plans............  192 hours..........             384
     Has Not Been Previously Used   manufacturers.
     in Revenue Service in the
     U.S.
    --Subsequent Equipment Orders  9 equipment          2 plans............  60 hours...........             120
                                    manufacturers.
238.213--Corner Posts--Plans (New  27 railroads.......  10 plans...........  40 hours...........             400
 Requirement).
238.229--Safety Appliances.......
    --Welded Safety Appliances     27 railroads.......  27 lists...........  1 hour.............              27
     Considered Defective: Lists.
    --Lists Identifying Equipment  27 railroads.......  27 lists...........  1 hour.............              27
     with Welded Safety
     Appliances.
    --Defective Welded Safety      27 railroads.......  4 tags.............  3 minutes..........             .20
     Appliances--Tags.
    --Notification to Crewmembers  27 railroads.......  2 notifications....  1 minute...........           .0333
     about Non-Compliant
     Equipment.
    --Inspection Plans...........  27 railroads.......  27 plans...........  16 hours...........             432
    --Inspection Personnel--       27 railroads.......  54 employees.......  4 hours............             216
     Training.

[[Page 1224]]

 
    --Remedial action: Defect/     27 railroads.......  1 record...........  2.25 hours.........               2
     Crack in Weld--Record.
    --Petitions for Special        27 railroads.......  15 petitions.......  4 hours............              60
     Approval of Alternative
     Compliance--Impractical
     Equipment Design.
    --Records of Inspection/       27 railroads.......  3,054 records......  12 minutes.........             611
     Repair of Welded Safety
     Appliance Brackets/Supports.
238.230--Safety Appliances--New
 Equipment.
    --Inspection Record of Welded  27 railroads.......  100 records........  6 minutes..........              10
     Equipment by Qualified
     Employee.
    --Welded Safety Appliances:    27 railroads.......  15 documents.......  4 hours............              60
     Documentation for Equipment
     Impractically Designed to
     Mechanically Fasten Safety
     Appliance Support.
238.231--Brake System............
    --Inspection and Repair of     27 railroads.......  2,500 forms........  21 minutes.........             875
     Hand/Parking Brake: Records.
    --Procedures Verifying Hold    27 railroads.......  27 procedures......  2 hours............              54
     of Hand/Parking Brake.
238.237--Automated Monitoring....
    --Documentation for Alerter/   27 railroads.......  3 documents........  2 hours............               6
     Deadman Control Timing.
    --Defective Alerter/Deadman    27 railroads.......  25 tags............  3 minutes..........               1
     Control: Tagging.
238.303--Exterior Calendar Day
 Mechanical Inspection of
 Passenger Equipment.
    --Notice of Previous           27 railroads.......  25 notices.........  1 minute...........               1
     Inspection for Added
     Equipment.
    --Dynamic Brakes Not in        27 railroads.......  50 tags............  3 minutes..........               3
     Operating Mode: Tag.
    --Conventional Locomotives     27 railroads.......  50 tags............  3 minutes..........               3
     Equipped with Inoperative
     Dynamic Brakes: Tagging.
    --MU Passenger Equipment       27 railroads.......  4 documents........  2 hours............               8
     Found with Inoperative/
     Ineffective Air Compressor
     at Exterior Calendar Day
     Inspection: Documents.
    --Written Notice to Train      27 railroads.......  100 notices........  3 minutes..........               5
     Crew about Inoperative/
     Ineffective Air Compressors.
    --Records of Inoperative Air   27 railroads.......  100 records........  2 minutes..........               3
     Compressors.
    --Record of Exterior Calendar  27 railroads.......  2,376,920 records..  10 minutes + 1              435,769
     Day Mechanical Inspection.                                               minute.
238.305--Interior Calendar Day
 Mechanical Inspection of
 Passenger Cars.
    --Tagging of Defective End/    27 railroads.......  540 tags...........  1 minute...........               9
     Side Doors.
    --Records of Interior          27 railroads.......  1,968,980 records..  5 minutes + 1               196,898
     Calendar Day Inspection.                                                 minute.
238.307--Periodic Mechanical
 Inspection of Passenger Cars and
 Unpowered Vehicles.
    --Alternative Inspection       27 railroads.......  2 notifications....  5 hours............              10
     Intervals: Notifications.
    --Notice of Seats/Seat         27 railroads.......  200 notices........  2 minutes..........               7
     Attachments Broken or Loose.
    --Records of Each Periodic     27 railroads.......  19,284 records.....  200 hours/2 minutes       3,857,443
     Mechanical Inspection.
    --Detailed Documentation of    27 railroads.......  5 documents........  100 hours..........             500
     Reliability Assessments as
     Basis for Alternative
     Inspection Interval.
238.311--Single Car Test.........
    --Tagging to Indicate Need     27 railroads.......  50 tags............  3 minutes..........               3
     for Single Car Test.
238.313--Class I Brake Test......
    --Record for Additional        27 railroads.......  15,600 records.....  30 minutes.........           7,800
     Inspection for Passenger
     Equipment That Does Not
     Comply with Sec.
     238.231(b)(1).
238.315--Class IA Brake Test.....
    --Notice to Train Crew That    27 railroads.......  18,250 verbal        5 seconds..........              25
     Test Has Been Performed.                            notices.
    --Communicating Signal Tested  27 railroads.......  365,000 tests......  15 seconds.........           1,521
     and Operating.
238.317--Class II Brake Test.....
    --Communicating Signal Tested  27 railroads.......  365,000 tests......  15 seconds.........           1,521
     and Operating.
238.321--Out-of-Service Credit...
    --Passenger Car: Out-of-Use    27 railroads.......  1,250 notes........  2 minutes..........              42
     Notation.
238.445--Automated Monitoring....

[[Page 1225]]

 
    --Performance Monitoring:      1 railroad.........  10,000 alerts......  10 seconds.........              28
     Alerters/Alarms.
    --Monitoring System: Self-     1 railroad.........  21,900               20 seconds.........             122
     Test Feature: Notifications.                        notifications.
238.503--Inspection, Testing, and  1 railroad.........  1 plan.............  1,200 hours........           1,200
 Maintenance Requirements--Plans.
238.505--Program Approval
 Procedures.
    --Submission of Program/Plans  rail industry......  3 comments.........  3 hours............               9
     and Comments on Programs.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions, 
searching existing data sources, gathering or maintaining the needed 
data, and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan, Office 
of Safety Information Clearance Officer, at 202-493-6292 or via e-mail 
at [email protected]; or Ms. Kimberly Toone, Office of 
Administration Information Clearance Officer, at 202-493-6132 or via e-
mail at [email protected].
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, 725 17th St., NW., Washington, DC 20590, 
Attn: FRA OMB Desk Officer, 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.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132, ``Federalism'' (64 FR 
43255, Aug. 10, 1999). Executive Order 13132 requires FRA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, the agency may not issue 
a regulation with federalism implications that imposes substantial 
direct compliance costs and that is not required by statute, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, the agency 
consults with State and local governments, or the agency consults with 
State and local government officials early in the process of developing 
the regulation. Where a regulation has federalism implications and 
preempts State law, the agency seeks to consult with State and local 
officials in the process of developing the regulation.
    FRA has determined that this final rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, nor on the distribution of power and 
responsibilities among the various levels of government. In addition, 
FRA has determined that this final rule will not impose substantial 
direct compliance costs on State and local governments. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    However, this final rule has preemptive effect. As discussed 
earlier, FRA is clarifying the preemptive effect of this final rule and 
the underlying regulations it is proposing to amend. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to Section 20106. The intent of Section 20106 is to promote 
national uniformity in railroad safety and security standards. 49 
U.S.C. 20106(a)(1). 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 ``the crashworthiness of the cars'' before 
prescribing the regulations. This final rule is intended to add to and 
enhance these regulations, originally issued on May 12, 1999, pursuant 
to 49 U.S.C. 20133. Thus, subject to a limited exception for 
essentially local safety or security hazards, this final rule 
establishes a uniform Federal safety standard that must be met, and 
State requirements covering the same subject matter are displaced, 
whether those State requirements are in the form of a State law, 
including common law, regulation, or order. In particular, FRA believes 
that it has preempted any State law, regulation, or order, including 
State common law standards of care, concerning the operation of a cab 
car or MU locomotive as the leading unit of a passenger train.
    As discussed earlier, FRA notes that RSAC, which endorsed and 
recommended adoption of the requirements of this final rule, has as 
permanent members two organizations representing State and local 
interests: AASHTO and ASRSM. Both of these State organizations 
concurred with the RSAC recommendation endorsing the requirements of 
this final rule. RSAC regularly provides recommendations to the 
Administrator of FRA for solutions to regulatory issues that reflect 
significant input from its State members. As discussed earlier, FRA has 
received federalism concerns in comments on the NPRM from members of 
RSAC, from the CPUC, and from other commenters. FRA again makes clear 
that the RSAC recommendation to the Administrator on the NPRM neither

[[Page 1226]]

contained a preemption provision in the rule text, nor did it include 
the interpretive discussion in the preamble to the NPRM. Nor did RSAC, 
which includes AASHTO and ASRSM, address the comments raised on 
preemption in developing this final rule. Nonetheless, FRA believes 
that this final rule is in accordance with the principles and criteria 
contained in Executive Order 13132, which says ``where national 
standards are required by Federal statutes, consult with appropriate 
State and local officials in developing those standards.'' The 
standards are embodied in the rule text, and the rule text was the 
subject of the consultations that focused principally on what the 
substantive requirements of the rule should be.
    FRA notes that the BLET commented that FRA, in developing the NPRM, 
did not consult with any truly local interests, asserting that AASHTO 
and ASRSM are comprised of State--not local--executive branch 
representatives. Further, the BLET commented that there was no evidence 
that FRA had consulted with any member of a State or local legislative 
or judicial branch, or a State's attorney general. The BLET contended 
that FRA's preamble comments created a significant Federal question and 
required consultation under Executive Order 13132 that had not been 
performed.
    FRA believes that local interests are sufficiently represented 
through RSAC for purposes of the consultations required to be 
undertaken by FRA in developing proposed regulations under Executive 
Order 13132. For instance, FRA understands that while all State 
departments of transportation are active members of AASHTO, several 
sub-State transportation agencies are associate members, including 
local transportation officials. Further, even though ASRSM is comprised 
of State officials, FRA has not relied on the fact that another RSAC 
member, APTA, itself has as members local government agencies and 
metropolitan planning organizations. APTA took no issue with FRA's 
views on preemption. Instead, APTA ``applaud[ed] FRA's strong 
leadership on the issues surrounding Federal preemption of State and 
local regulation,'' stating in particular that ``consistent standards 
are absolutely vital to the safe, efficient operation of the nation's 
rail system.'' Further, FRA believes it fair to consider commuter 
railroads on RSAC to represent local interests in part as they are 
generally the products of local governments for providing rail service 
for the benefit of their local metropolitan areas. For example, as 
noted earlier, Metrolink is a joint powers authority comprised of five 
county transportation planning agencies in southern California. These 
local transportation agencies are surely local interests with the 
meaning of Executive Order 13132 and are the appropriate ones to 
consult because they are the only local interests likely to have the 
relevant technical knowledge. Moreover, FRA did not receive any adverse 
comment from any local official on FRA's views as to the preemptive 
effect of the rulemaking. (The CPUC of course commented adversely on 
behalf of the State of California.) It is also worth noting in this 
context that local governments have no role at all under the Federal 
railroad safety laws in regulating railroad safety--that which is not 
done by the Federal Government is reserved to the States. FRA believes 
that it has satisfied the consultation requirements in the Executive 
Order.
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final rule has no 
federalism implications, other than the preemption of State laws 
covering the subject matter of this final rule, which occurs by 
operation of law under Section 20106 whenever FRA issues a rule or 
order, and under the LBIA (49 U.S.C. 20701-20703) by its terms. 
Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this final rule is not required.

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. 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 stated in the NPRM that it had evaluated this rulemaking in 
accordance with Executive Order 13211 and had determined that the 
rulemaking is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy. In comments on the NPRM, 
however, some commenters disagreed with FRA's determination. In sum, 
the

[[Page 1227]]

commenters claimed that this rulemaking would increase the weight of 
passenger rail equipment and would adversely affect energy usage 
because heavier railcars require more energy to operate.
    FRA continues to find that this regulatory action is not a 
``significant energy action'' within the meaning of Executive Order 
13211. As discussed above, the requirements in this final rule are 
based on current industry standards for front end frame structures, 
which, to FRA's knowledge, every cab car and MU locomotive currently in 
production for operation in the United States already meets. As such, 
the standards are not expected to affect any units in production or 
planned for production for operation in the United States. This rule 
essentially codifies these industry standards and will likely not cause 
railroads to incur costs beyond those that they already incur 
voluntarily.
    Moreover, even when FRA has assumed that a cab car or MU locomotive 
would be heavier as a result of manufacturing it to comply with the 
requirements of this final rule, operation of the slightly heavier cab 
car or MU locomotive is assumed to result in only a slightly higher 
energy cost. This assumed energy cost is minimal and in proportion to 
the assumed additional weight of the equipment--increases of one 
quarter of one percent (0.25%) in both the energy cost and equipment 
weight. Nonetheless, FRA has not made a finding that a cab car or MU 
locomotive would necessarily be heavier as a result of manufacturing it 
in compliance with this final rule.

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.
    In issuing the NPRM, FRA assessed the potential effect of this 
rulemaking on foreign commerce and believed that the proposed 
requirements would be consistent with the Trade Agreements Act. FRA 
noted that the proposed requirements are safety standards, which are 
not considered unnecessary obstacles to trade. Moreover, FRA 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.
    In commenting on the NPRM, the CPUC concurred with FRA that the 
safety of passenger cars is paramount and that legitimate safety 
objectives are not considered unnecessary obstacles to the foreign 
commerce of the United States. In its comments, however, Caltrain 
disagreed with FRA's assertions and asked that FRA reconsider its 
proposal. Caltrain recommended that FRA allow alternative, proven 
designs to be considered when presented as components of an entire 
system, rather than requiring the alternative designs to meet the 
requirements of the regulation as written for any vehicle on any 
railroad.
    FRA maintains that its actions in this rulemaking are consistent 
with the Trade Agreements Act. This final rule is a rule of general 
applicability, intended to apply to Tier I passenger vehicles in 
general use. The alternative performance requirements in appendix F 
provide flexibility in vehicle design for use on any railroad. FRA did 
not intend to specify requirements for vehicles operating under 
particular conditions on a particular railroad. Nonetheless, existing 
FRA regulations provide separate processes for considering the safety 
of vehicles in such circumstances, and they are also neutral with 
respect to the country of origin of the vehicles.
    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 in 49 CFR Part 238

    Passenger equipment, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

The Rule

0
For the reasons discussed in the preamble, FRA amends part 238 of 
chapter II, subtitle B of title 49, Code of Federal Regulations, as 
follows:

PART 238--[AMENDED]

0
1. 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
2. Revise Sec.  238.13 to read as follows:


Sec.  238.13  Preemptive effect.

    (a) Under 49 U.S.C. 20106, issuance of these regulations preempts 
any State law, regulation, or order covering the same subject matter, 
except an additional or more stringent law, regulation, or order that 
is necessary to eliminate or reduce an essentially local safety or 
security hazard; is not incompatible with a law, regulation, or order 
of the United States Government; and does not unreasonably burden 
interstate commerce.
    (b) This part establishes Federal standards of care for railroad 
passenger equipment. This part does not preempt an action under State 
law seeking damages for personal injury, death, or property damage 
alleging that a party has failed to comply with the Federal standard of 
care established by this part, including a plan or program required by 
this part. Provisions of a plan or program that exceed the requirements 
of this part are not included in the Federal standard of care.
    (c) Under 49 U.S.C. 20701-20703 (formerly the Locomotive (Boiler) 
Inspection Act), the field of locomotive safety is preempted, extending 
to the design, the construction, and the material of every part of the 
locomotive and tender and all appurtenances thereof. To the extent that 
the regulations in this part establish requirements affecting 
locomotive safety, the scope of preemption is provided by 49 U.S.C. 
20701-20703.

Subpart C--Specific Requirements for Tier I Passenger Equipment

0
3. Revise Sec.  238.205 to read as follows:


Sec.  238.205  Anti-climbing mechanism.

    (a) Except as provided in paragraph (b) of this section, all 
passenger equipment placed in service for the first time on or after 
September 8, 2000, and prior to March 9, 2010, shall have at both the 
forward and rear ends an anti-

[[Page 1228]]

climbing mechanism capable of resisting an upward or downward vertical 
force of 100,000 pounds without failure. All passenger equipment placed 
in service for the first time on or after March 9, 2010, shall have at 
both the forward and rear ends an anti-climbing mechanism capable of 
resisting an upward or downward vertical force of 100,000 pounds 
without permanent deformation. When coupled together in any combination 
to join two vehicles, AAR Type H and Type F tight-lock couplers satisfy 
the requirements of this paragraph (a).
    (b) Except for a cab car or an MU locomotive, each locomotive 
ordered on or after September 8, 2000, or placed in service for the 
first time on or after September 9, 2002, shall have an anti-climbing 
mechanism at its forward end capable of resisting both an upward and 
downward vertical force of 200,000 pounds without failure. Locomotives 
required to be constructed in accordance with subpart D of part 229 of 
this chapter shall have an anti-climbing mechanism in compliance with 
Sec.  229.206 of this chapter, in lieu of the requirements of this 
paragraph.

0
4. Revise Sec.  238.209 to read as follows:


Sec.  238.209  Forward end structure of locomotives, including cab cars 
and MU locomotives.

    (a)(1) The skin covering the forward-facing end of each locomotive, 
including a cab car and an MU locomotive, shall be:
    (i) Equivalent to a \1/2\-inch steel plate with a yield strength of 
25,000 pounds-per-square-inch--material of a higher yield strength may 
be used to decrease the required thickness of the material provided at 
least an equivalent level of strength is maintained;
    (ii) Designed to inhibit the entry of fluids into the occupied cab 
area of the equipment; and
    (iii) Affixed to the collision posts or other main vertical 
structural members of the forward end structure so as to add to the 
strength of the end structure.
    (2) As used in this paragraph (a), the term ``skin'' does not 
include forward-facing windows and doors.
    (b) The forward end structure of a cab car or an MU locomotive may 
comply with the requirements of appendix F to this part in lieu of the 
requirements of either Sec.  238.211 (Collision posts) or Sec.  238.213 
(Corner posts), or both, provided that the end structure is designed to 
protect the occupied volume for its full height, from the underframe to 
the anti-telescoping plate (if used) or roof rails.

0
5. Revise Sec.  238.211 to read as follows:


Sec.  238.211  Collision posts.

    (a) Except as further specified in this paragraph, paragraphs (b) 
through (d) of this section, and Sec.  238.209(b)--
    (1) All passenger equipment placed in service for the first time on 
or after September 8, 2000, shall have either:
    (i) Two full-height collision posts, located at approximately the 
one-third points laterally, at each end. Each collision post shall have 
an ultimate longitudinal shear strength of not less than 300,000 pounds 
at a point even with the top of the underframe member to which it is 
attached. If reinforcement is used to provide the shear value, the 
reinforcement shall have full value for a distance of 18 inches up from 
the underframe connection and then taper to a point approximately 30 
inches above the underframe connection; or
    (ii) An equivalent end structure that can withstand the sum of 
forces that each collision post in paragraph (a)(1)(i) of this section 
is required to withstand. For analysis purposes, the required forces 
may be assumed to be evenly distributed at the end structure at the 
underframe joint.
    (2) The requirements of this paragraph (a) do not apply to 
unoccupied passenger equipment operating in a passenger train, or to 
the rear end of a locomotive if the end is unoccupied by design.
    (b) Except for a locomotive that is constructed on or after January 
1, 2009, and is subject to the requirements of subpart D of part 229 of 
this chapter, each locomotive, including a cab car and an MU 
locomotive, ordered on or after September 8, 2000, or placed in service 
for the first time on or after September 9, 2002, shall have at its 
forward end, in lieu of the structural protection described in 
paragraph (a) of this section, either:
    (1) Two forward collision posts, located at approximately the one-
third points laterally, each capable of withstanding:
    (i) A 500,000-pound longitudinal force at the point even with the 
top of the underframe, without exceeding the ultimate strength of the 
joint; and
    (ii) A 200,000-pound longitudinal force exerted 30 inches above the 
joint of the post to the underframe, without exceeding the ultimate 
strength; or
    (2) An equivalent end structure that can withstand the sum of the 
forces that each collision post in paragraph (b)(1) of this section is 
required to withstand.
    (c)(1) Each cab car and MU locomotive ordered on or after May 10, 
2010, or placed in service for the first time on or after March 8, 
2012, shall have at its forward end, in lieu of the structural 
protection described in paragraphs (a) and (b) of this section, two 
forward collision posts, located at approximately the one-third points 
laterally, meeting the requirements set forth in paragraphs (c)(2) and 
(c)(3) of this section:
    (2) Each collision post acting together with its supporting car 
body structure shall be capable of withstanding the following loads 
individually applied at any angle within 15 degrees of the longitudinal 
axis:
    (i) A 500,000-pound horizontal force applied at a point even with 
the top of the underframe, without exceeding the ultimate strength of 
either the post or its supporting car body structure;
    (ii) A 200,000-pound horizontal force applied at a point 30 inches 
above the top of the underframe, without exceeding the ultimate 
strength of either the post or its supporting car body structure; and
    (iii) A 60,000-pound horizontal force applied at any height along 
the post above the top of the underframe, without permanent deformation 
of either the post or its supporting car body structure.
    (3) Prior to or during structural deformation, each collision post 
acting together with its supporting car body structure shall be capable 
of absorbing a minimum of 135,000 foot-pounds of energy (0.18 
megajoule) with no more than 10 inches of longitudinal, permanent 
deformation into the occupied volume, in accordance with the following:
    (i) The collision post shall be loaded longitudinally at a height 
of 30 inches above the top of the underframe;
    (ii) The load shall be applied with a fixture, or its equivalent, 
having a width sufficient to distribute the load directly into the webs 
of the post, but of no more than 36 inches, and either:
    (A) A flat plate with a height of 6 inches; or
    (B) A curved surface with a diameter of no more than 48 inches; and
    (iii) There shall be no complete separation of the post, its 
connection to the underframe, its connection to either the roof 
structure or anti-telescoping plate (if used), or of its supporting car 
body structure.
    (d) The end structure requirements of this section apply only to 
the ends of a semi-permanently coupled consist of articulated units, 
provided that:
    (1) The railroad submits to FRA under the procedures specified in 
Sec.  238.21 a documented engineering analysis establishing that the 
articulated connection is capable of preventing disengagement and 
telescoping to the same extent as equipment satisfying the anti-
climbing and collision post

[[Page 1229]]

requirements contained in this subpart; and
    (2) FRA finds the analysis persuasive.

0
6. Revise Sec.  238.213 to read as follows:


Sec.  238.213  Corner posts.

    (a)(1) Except as further specified in paragraphs (b) and (c) of 
this section and Sec.  238.209(b), each passenger car shall have at 
each end of the car, placed ahead of the occupied volume, two full-
height corner posts, each capable of resisting together with its 
supporting car body structure:
    (i) A 150,000-pound horizontal force applied at a point even with 
the top of the underframe, without exceeding the ultimate strength of 
either the post or its supporting car body structure;
    (ii) A 20,000-pound horizontal force applied at the point of 
attachment to the roof structure, without exceeding the ultimate 
strength of either the post or its supporting car body structure; and
    (iii) A 30,000-pound horizontal force applied at a point 18 inches 
above the top of the underframe, without permanent deformation of 
either the post or its supporting car body structure.
    (2) For purposes of this paragraph (a), the orientation of the 
applied horizontal forces shall range from longitudinal inward to 
lateral inward.
    (b)(1) Except as provided in paragraph (c) of this section, each 
cab car and MU locomotive ordered on or after May 10, 2010, or placed 
in service for the first time on or after March 8, 2012, shall have at 
its forward end, in lieu of the structural protection described in 
paragraph (a) of this section, two corner posts ahead of the occupied 
volume, meeting all of the requirements set forth in paragraphs (b)(2) 
and (b)(3) of this section:
    (2) Each corner post acting together with its supporting car body 
structure shall be capable of withstanding the following loads 
individually applied toward the inside of the vehicle at all angles in 
the range from longitudinal to lateral:
    (i) A 300,000-pound horizontal force applied at a point even with 
the top of the underframe, without exceeding the ultimate strength of 
either the post or its supporting car body structure;
    (ii) A 100,000-pound horizontal force applied at a point 18 inches 
above the top of the underframe, without permanent deformation of 
either the post or its supporting car body structure; and
    (iii) A 45,000-pound horizontal force applied at any height along 
the post above the top of the underframe, without permanent deformation 
of either the post or its supporting car body structure.
    (3) Prior to or during structural deformation, each corner post 
acting together with its supporting car body structure shall be capable 
of absorbing a minimum of 120,000 foot-pounds of energy (0.16 
megajoule) with no more than 10 inches of longitudinal, permanent 
deformation into the occupied volume, in accordance with the following:
    (i) The corner post shall be loaded longitudinally at a height of 
30 inches above the top of the underframe;
    (ii) The load shall be applied with a fixture, or its equivalent, 
having a width sufficient to distribute the load directly into the webs 
of the post, but of no more than 36 inches and either:
    (A) A flat plate with a height of 6 inches; or
    (B) A curved surface with a diameter of no more than 48 inches; and
    (iii) There shall be no complete separation of the post, its 
connection to the underframe, its connection to either the roof 
structure or anti-telescoping plate (if used), or of its supporting car 
body structure.
    (c)(1) Each cab car and MU locomotive ordered on or after May 10, 
2010, or placed in service for the first time on or after March 8, 
2012, utilizing low-level passenger boarding on the non-operating side 
of the cab end shall meet the corner post requirements of paragraph (b) 
of this section for the corner post on the side of the cab containing 
the control stand. In lieu of the requirements of paragraph (b) of this 
section, and after FRA review and approval of a plan, including 
acceptance criteria, to evaluate compliance with this paragraph (c), 
each such cab car and MU locomotive may have two corner posts on the 
opposite (non-operating) side of the cab from the control stand meeting 
all of the requirements set forth in paragraphs (c)(2) through (c)(4) 
of this section:
    (2) One corner post shall be located ahead of the stepwell and, 
acting together with its supporting car body structure, shall be 
capable of withstanding the following horizontal loads individually 
applied toward the inside of the vehicle:
    (i) A 150,000-pound longitudinal force applied at a point even with 
the top of the underframe, without exceeding the ultimate strength of 
either the post or its supporting car body structure;
    (ii) A 30,000-pound longitudinal force applied at a point 18 inches 
above the top of the underframe, without permanent deformation of 
either the post or its supporting car body structure;
    (iii) A 30,000-pound longitudinal force applied at the point of 
attachment to the roof structure, without permanent deformation of 
either the post or its supporting car body structure;
    (iv) A 20,000-pound longitudinal force applied at any height along 
the post above the top of the underframe, without permanent deformation 
of either the post or its supporting car body structure;
    (v) A 300,000-pound lateral force applied at a point even with the 
top of the underframe, without exceeding the ultimate strength of 
either the post or its supporting car body structure;
    (vi) A 100,000-pound lateral force applied at a point 18 inches 
above the top of underframe, without permanent deformation of either 
the post or its supporting car body structure; and
    (vii) A 45,000-pound lateral force applied at any height along the 
post above the top of the underframe, without permanent deformation of 
either the post or its supporting car body structure.
    (3) A second corner post shall be located behind the stepwell and, 
acting together with its supporting car body structure, shall be 
capable of withstanding the following horizontal loads individually 
applied toward the inside of the vehicle:
    (i) A 300,000-pound longitudinal force applied at a point even with 
the top of the underframe, without exceeding the ultimate strength of 
either the post or its supporting car body structure;
    (ii) A 100,000-pound longitudinal force applied at a point 18 
inches above the top of the underframe, without permanent deformation 
of either the post or its supporting car body structure;
    (iii) A 45,000-pound longitudinal force applied at any height along 
the post above the top of the underframe, without permanent deformation 
of either the post or its supporting car body structure;
    (iv) A 100,000-pound lateral force applied at a point even with the 
top of the underframe, without exceeding the ultimate strength of 
either the post or its supporting car body structure;
    (v) A 30,000-pound lateral force applied at a point 18 inches above 
the top of the underframe, without permanent deformation of either the 
post or its supporting car body structure; and
    (vi) A 20,000-pound lateral force applied at any height along the 
post above the top of the underframe, without permanent deformation of

[[Page 1230]]

either the post or its supporting car body structure.
    (4) Prior to or during structural deformation, the two posts in 
combination acting together with their supporting body structure shall 
be capable of absorbing a minimum of 120,000 foot-pounds of energy 
(0.16 megajoule) in accordance with the following:
    (i) The corner posts shall be loaded longitudinally at a height of 
30 inches above the top of the underframe;
    (ii) The load shall be applied with a fixture, or its equivalent, 
having a width sufficient to distribute the load directly into the webs 
of the post, but of no more than 36 inches and either:
    (A) A flat plate with a height of 6 inches; or
    (B) A curved surface with a diameter of no more than 48 inches; and
    (iii) The corner post located behind the stepwell shall have no 
more than 10 inches of longitudinal, permanent deformation. There shall 
be no complete separation of the corner post located behind the 
stepwell, its connection to the underframe, its connection to either 
the roof structure or anti-telescoping plate (if used), or of its 
supporting car body structure. The corner post ahead of the stepwell is 
permitted to fail. (A graphical description of the forward end of a cab 
car or an MU locomotive utilizing low-level passenger boarding on the 
non-operating side of the cab end is provided in Figure 1 to subpart C 
of this part.)

0
7. Add Figure 1 to Subpart C of Part 238 to read as follows:
[GRAPHIC] [TIFF OMITTED] TR08JA10.004


0
8. Add appendix F to part 238 to read as follows:

Appendix F to Part 238--Alternative Dynamic Performance Requirements 
for Front End Structures of Cab Cars and MU Locomotives

    As specified in Sec.  238.209(b), the forward end of a cab car 
or an MU locomotive may comply with the requirements of this 
appendix in lieu of the requirements of either Sec.  238.211 
(Collision posts) or Sec.  238.213 (Corner posts), or both. The 
requirements of this appendix are intended to be equivalent to the 
requirements of those sections and allow for the application of 
dynamic performance criteria to cab cars and MU locomotives as an 
alternative to the requirements of those sections. The alternative 
dynamic performance requirements are applicable to all cab cars and 
MU locomotives, and may in particular be helpful for evaluating the 
compliance of cab cars and MU locomotives with shaped-noses or crash 
energy management designs, or both. In any case, the end structure 
must be designed to protect the occupied volume for its full height, 
from the underframe to the anti-telescoping plate (if used) or roof 
rails.
    The requirements of this appendix are provided only as 
alternatives to the requirements of Sec. Sec.  238.211 and 238.213, 
not in addition to the requirements of those sections. Cab cars and 
MU locomotives are not required to comply with both the requirements 
of those sections and the requirements of this appendix, together.

Alternative Requirements for Collision Posts

    (a)(1) In lieu of meeting the requirements of Sec.  238.211, the 
front end frame acting together with its supporting car body 
structure shall be capable of absorbing a minimum of 135,000 foot-
pounds of energy (0.18 megajoule) prior to or during structural 
deformation by withstanding a frontal impact with a rigid object in 
accordance with all of the requirements set forth in paragraphs 
(a)(2) through (a)(4) of this appendix:
    (2)(i) The striking surface of the object shall be centered at a 
height of 30 inches above the top of the underframe;
    (ii) The striking surface of the object shall have a width of no 
more than 36 inches and a diameter of no more than 48 inches;
    (iii) The center of the striking surface shall be offset by 19 
inches laterally from the center of the cab car or MU locomotive, 
and on the weaker side of the end frame if the end frame's strength 
is not symmetrical; and
    (iv) Only the striking surface of the object interacts with the 
end frame structure.
    (3) As a result of the impact, there shall be no more than 10 
inches of longitudinal, permanent deformation into the occupied 
volume. There shall also be no complete separation of the post, its 
connection to the underframe, its connection to either the roof 
structure or the anti-telescoping plate (if used), or of its 
supporting car body structure. (A graphical description of the 
frontal impact is provided in Figure 1 to this appendix.)
    (4) The nominal weights of the object and the cab car or MU 
locomotive, as ballasted, and the speed of the object may be 
adjusted

[[Page 1231]]

to impart the minimum of 135,000 foot-pounds of energy (0.18 
megajoule) to be absorbed (Ea), in accordance with the following 
formula: Ea = E0-Ef

Where:

E0 = Energy of initially moving object at impact = \1/2\ 
m1*V0\2\.
Ef = Energy after impact = \1/2\ (m1 + 
m2)*Vf\2\.
V0 = Speed of initially moving object at impact.
Vf = Speed of both objects after collision = 
m1*V0/(m1 + m2).
m1 = Mass of initially moving object.
m2 = Mass of initially standing object.

    (Figure 1 shows as an example a cab car or an MU locomotive 
having a weight of 100,000 pounds and the impact object having a 
weight of 14,000 pounds, so that a minimum speed of 18.2 mph would 
satisfy the collision-energy requirement.)

Alternative Requirements for Corner Posts

    (b)(1) In lieu of meeting the requirements of Sec.  238.213, the 
front end frame acting together with its supporting car body 
structure shall be capable of absorbing a minimum of 120,000 foot-
pounds of energy (0.16 megajoule) prior to or during structural 
deformation by withstanding a frontal impact with a rigid object in 
accordance with all of the requirements set forth in paragraphs 
(b)(2) through (b)(4) of this appendix:
    (2)(i) The striking surface of the object shall be centered at a 
height of 30 inches above the top of the underframe;
    (ii) The striking surface of the object shall have a width of no 
more than 36 inches and a diameter of no more than 48 inches;
    (iii) The center of the striking surface shall be aligned with 
the outboard edge of the cab car or MU locomotive, and on the weaker 
side of the end frame if the end frame's strength is not 
symmetrical; and
    (iv) Only the striking surface of the object interacts with the 
end frame structure.
    (3)(i) Except as provided in paragraph (b)(3)(ii) of this 
appendix, as a result of the impact, there shall be no more than 10 
inches of longitudinal, permanent deformation into the occupied 
volume. There shall also be no complete separation of the post, its 
connection to the underframe, its connection to either the roof 
structure or the anti-telescoping plate (if used), or of its 
supporting car body structure. (A graphical description of the 
frontal impact is provided in Figure 2 to this appendix.); and
    (ii) After FRA review and approval of a plan, including 
acceptance criteria, to evaluate compliance with this paragraph (b), 
cab cars and MU locomotives utilizing low-level passenger boarding 
on the non-operating side of the cab may have two, full-height 
corner posts on that side, one post located ahead of the stepwell 
and one located behind it, so that the corner post located ahead of 
the stepwell is permitted to fail provided that--
    (A) The corner post located behind the stepwell shall have no 
more than 10 inches of longitudinal, permanent deformation; and
    (B) There shall be no complete separation of that post, its 
connection to the underframe, its connection to either the roof 
structure or the anti-telescoping plate (if used), or of its 
supporting car body structure.
    (4) The nominal weights of the object and the cab car or MU 
locomotive, as ballasted, and the speed of the object may be 
adjusted to impart the minimum of 120,000 foot-pounds of energy 
(0.16 megajoule) to be absorbed (Ea), in accordance with the 
following formula: Ea = E0-Ef

Where:

E0 = Energy of initially moving object at impact = \1/2\ 
m1*V0\2\.
Ef = Energy after impact = \1/2\ (m1 + 
m2)*Vf\2\.
V0 = Speed of initially moving object at impact.
Vf = Speed of both objects after collision = 
m1*V0/(m1 + m2).
m1 = Mass of initially moving object.
m2 = Mass of initially standing object.

    (Figure 2 shows as an example a cab car or an MU locomotive 
having a weight of 100,000 pounds and the impact object having a 
weight of 14,000 pounds, so that a minimum speed of 17.1 mph would 
satisfy the collision-energy requirement.)
BILLING CODE 4910-06-P

[[Page 1232]]

[GRAPHIC] [TIFF OMITTED] TR08JA10.005


[[Page 1233]]


[GRAPHIC] [TIFF OMITTED] TR08JA10.006


    Issued in Washington, DC, on December 31, 2009.
Karen J. Rae,
Deputy Administrator.
[FR Doc. E9-31411 Filed 1-7-10; 8:45 am]
BILLING CODE 4910-06-C