41284 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 215, 220, and 238

[FRA Docket No. PCSS–1, Notice No. 6]

RIN 2130–AA95

Passenger Equipment Safety

Standards

AGENCY: Federal Railroad

Administration (FRA), Department of

Transportation (DOT).

ACTION: Final rule; response to petitions

for reconsideration.

SUMMARY: This document specifically

responds to the petitions for

reconsideration related to the

inspection, testing, maintenance, and

movement of defective equipment

provisions that FRA received in

response to its May 12, 1999 final rule

establishing comprehensive Federal

safety standards for railroad passenger

equipment. This document clarifies and

amends the final rule as it relates to

these provisions.

EFFECTIVE DATE: The amendments to the

final rule are effective July 3, 2000.

FOR FURTHER INFORMATION, CONTACT:

Ronald Newman, Staff Director, Motive

Power and Equipment Division, Office

of Safety Assurance and Compliance,

FRA, 1120 Vermont Avenue, Mail Stop

25, Washington, DC 20590 (telephone:

202-493–6300); Daniel Alpert, Trial

Attorney, Office of Chief Counsel, FRA,

1120 Vermont Avenue, Mail Stop 10,

Washington, DC 20590 (telephone: 202–

493–6026); or Thomas Herrmann, Trial

Attorney, Office of Chief Counsel, FRA,

1120 Vermont Avenue, Mail Stop 10,

Washington, DC 20590 (telephone: 202–

493–6036).

SUPPLEMENTARY INFORMATION:

Background

On May 12, 1999, FRA issued a final

rule establishing comprehensive Federal

safety standards for railroad passenger

equipment. See 64 FR 25540. FRA

received petitions for reconsideration of

the final rule from nine separate parties.

These petitions sought reconsideration

of numerous provisions contained in the

final rule which generally involved the

following major topics: structural

design; fire safety; training; inspection,

testing, and maintenance; and

movement of defective equipment. The

purpose of this document is to address

the issues raised in the petitions for

reconsideration relating to the final rule

requirements regarding the inspection,

testing, and maintenance of passenger

equipment and the movement of such

equipment when it becomes defective as

well as other miscellaneous provisions

related to those topics. FRA believes

that it is necessary to address these

issues as quickly as possible in order to

allow railroads sufficient time to

complete the development of the

training protocols required by the final

rule and to begin the process of training

their employees on the requirements of

the final rule. Due to the complexity of

some of the structural and fire safety

issues raised in the petitions for

reconsideration and because FRA’s

technical staff has concentrated its

attention on resolving the issues related

to the grandfathering of existing

passenger equipment, FRA intends to

respond to the issues raised in the

petitions for reconsideration that are

related to fire safety and the structural

design of passenger equipment in a

separate notice that will be published in

the Federal Register in the near future.

In response to the final rule, FRA

received petitions for reconsideration

from five parties raising various issues

relating to the inspection, testing,

maintenance, and movement for repair

provisions contained in the final rule.

These petitioners included:

American Association of Private Railroad Car

Owners, Inc. (AAPRCO),

American Public Transit Association (APTA),

Brotherhood of Railway Carmen Division of

the Transportation Communications

International Union (BRC),

National Railroad Passenger Corporation

(Amtrak), and

Transportation Workers Union of America

(TWU).

The specific issues and

recommendations raised by these

petitioners, and FRA’s response to those

petitions are discussed in detail in the

‘‘Section-by-Section Analysis’’ portion

of the preamble. The section-by-section

analysis also contains a detailed

discussion of each provision which is

being clarified or amended from the

May 12, 1999 final rule. This will enable

the regulated community to more

readily compare this document with the

preamble discussions contained in the

final rule and will aid the regulated

community in understanding the

requirements of the rule. All of the

changes being made to the final rule in

this response to the petitions for

reconsideration are intended to be

clarifying or technical amendments or

are within the scope of the issues and

options discussed, considered, and

raised in either the 1997 Notice of

Proposed Rulemaking (NPRM) or the

final rule.

The following discussion is intended

to address the general concerns raised

by the BRC regarding FRA’s collection

and reliance on the power brake defect

ratios contained in FRA’s database. The

BRC submitted a petition for

reconsideration which raised numerous

issues regarding power brake defect

ratios and their use in this proceeding.

In its petition the BRC contends that

data developed in joint field inspections

(i.e., FRA, BRC, and the carriers) during

the Passenger Equipment Safety

Standards process have been ignored in

favor of traditional FRA safety data. The

BRC asserts the data it developed

regarding inspections by carmen and

train crews were ignored by FRA when

developing the NPRM and final rule and

that FRA instead relied on data

contained in its database. The BRC

maintains that the data upon which

FRA has relied to justify the new safety

regulations are highly suspect,

inaccurate, and unreliable.

The BRC contends that its own review

of FRA safety data has uncovered

instances where the same inspection

data have been counted twice, three

times, and even six times when

calculating power brake defect ratios.

BRC further states that it has uncovered

numerous incidents in which FRA

conducted power brake inspections

while equipment is not connected to a

source of compressed air, and contends

that these types of inspections uncover

only the most obvious defects in the

power brake system. Thus, they contend

that other defects that are less obvious,

but no less dangerous, are not detected

in these types of inspections. The BRC

contends that FRA’s inclusion of these

types of inspections causes an artificial

deflation of power brake defect ratios

since the entire brake system is not

inspected. The BRC contends that the

deflation of these ratios is demonstrated

by FRA in the 1998 NPRM proposing

modification of the power brake

regulations related to freight operations

(63 FR 48294; Sept. 9, 1998). The BRC

argues that although FRA noted an

average freight power brake defect ratio

of 3.9 percent in the 1998 NPRM, data

collected in joint FRA, BRC and carrier

inspections under various Safety

Assurance and Compliance (SACP)

initiatives reveal actual defect ratios of

over 20 to 25 percent. The BRC asserts

that FRA considered these data issues to

be important enough to hold a public

meeting on May 27, 1999 to discuss the

issues related to FRA’s inspection and

reporting practices. Consequently, in a

letter dated May 10, 1999, and in its

petition, the BRC requested withdrawal

of the final rule until more reliable

safety data exist or are developed to

justify the final rule.

Although the BRC’s petition for

reconsideration alludes to several

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41285

concerns regarding FRA’s collection and

reporting of power brake defect data, the

petition does not allege that the

accident/incident data presented by

FRA in the final rule were inaccurate. In

the May 12, 1999, final rule, FRA noted

that its accident/incident data related to

intercity passenger and commuter train

operations support the general

assumption that the current practices of

these operations in the area of power

brake inspection, testing, and

maintenance are for the most part

sufficient to ensure the safety of the

public. See 64 FR 25556. The final rule

noted that between January 1, 1990, and

October 31, 1996, there were only five

brake-related accidents involving

commuter and intercity passenger

railroad equipment and that no

casualties resulted from any of these

accidents. The total damage to railroad

equipment reported to FRA totaled

approximately $650,000, or $96,000

annually.

In the final rule, FRA also noted that

between January 1, 1995, and October

31, 1996, FRA inspected approximately

13,000 commuter and intercity

passenger rail units for compliance with

49 CFR part 232. FRA noted that the

power brake defect ratio for these units

during this period was approximately

0.8 percent. Furthermore, during this

same period FRA inspected

approximately 6,300 locomotives for

compliance with 49 CFR part 229. The

brake defect ratio for these units was

approximately 4.65 percent. See 64 FR

25556–57. Although these defect ratios

were presented in the general preamble

portion of the final rule and the NPRM,

there is nothing in either document or

in the specific discussions of the various

provisions proposed in the NPRM or

retained in the final rule to indicate that

these defect ratios were relied upon or

used as a basis for developing any of the

provisions. They were merely presented

for illustrative purposes and were only

relied on to the limited extent as

discussed below.

The allegations regarding FRA’s

collection and reporting of power brake

defect ratios raised by the BRC in its

petition are virtually identical to the

issues the organization raised with

regard to the 1998 NPRM on freight

power brakes or are directly related to

those concerns. Therefore, FRA believes

it is necessary to provide a general

discussion explaining the limitations of

using defect data collected by FRA, how

defect data are used by FRA when

developing a regulation, and how defect

data are collected by FRA. As the

concerns raised by BRC are applicable

to FRA’s collection of defect data for

both freight and passenger equipment,

the discussion will generally discuss

freight defect data and the concerns

related to that data raised at a public

meeting conducted on May 27, 1999,

but are equally applicable to defect data

on passenger equipment.

Data on brake defects are collected by

FRA inspectors as they do general rail

equipment inspections and during

special projects conducted under the

SACP. FRA has consistently maintained

that the power brake defect data it

collects are not suitable for use in any

statistical analysis of brake defects. In

order to perform a statistically valid

analysis, either all cars and locomotives

must be inspected (prohibitively

expensive), or a statistically valid

sample must be collected. For the

sample to be valid for the purpose of

statistical analysis, the sample must be

randomly selected so that it will

represent the same characteristics as the

universe of data. Random samples have

several unique characteristics. They are

unbiased, meaning that each unit has

the same chance of being selected.

Random samples are independent, or

the selection of one unit has no

influence on the selection of other units.

Most statistical methods depend on

independence and lack of bias. Without

a randomized sample design, there can

be no dependable statistical analysis,

and no way to measure sampling error,

no matter how the data are modified.

Random sampling ‘‘statistically

guarantees’’ the accuracy of the results.

The sampling method used for regular

FRA inspections is not random. It is

more of a combination between a

judgment sample and an opportunity

sample. The opportunity sample

basically just takes the first sample

population that comes along, while the

judgment sample is based on ‘‘expert’’

opinion. The sampling method used for

SACP inspections is also a judgment

sample, where FRA is focusing its

inspections on a specific safety concern.

This method is extremely prone to bias,

as FRA is typically investigating known

problem areas. Furthermore, some SACP

inspections are joint inspections with

rail labor representatives. Consequently,

it is unknown whether the final reports

reflect only FRA defects, as many of the

joint inspections had both railroad and

FRA defects recorded.

Neither the regular FRA inspections

nor the SACP inspections were designed

for random data collection. Although

both are very useful to FRA, they were

not designed for this purpose, and the

data should be used carefully. FRA

believes that data collected during

routine inspections are the most likely

data to accurately reflect the condition

of the fleet. However, both FRA

inspection data and SACP data lack any

measuring device; a defect is a defect,

and no distinction is made between a

critical defect versus a minor defect.

Furthermore, the estimated correlation

coefficients between defects and

accidents were not found to be

statistically significant. This does not

mean that defects cannot lead to

collisions or derailments as the lack of

correlation could easily be a result of

non-random sampling. Therefore, the

data collected both during routine FRA

inspections and under SACP cannot be

used as a proxy for data collected by

means of a random sample for the

purpose of statistical analysis. The

sample is not random, so no dependable

statistical analysis may be performed.

Consequently, FRA did not and will not

use the data regarding power brake

defects for the purpose of conducting a

purely statistical analysis.

Power brake defect ratios were not

specifically relied on when developing

any provision contained in the final rule

or in the NPRM which preceded the

final rule. Although power brake defect

ratios were considered, they were not

used as the exclusive or necessary basis

for any of the provisions proposed in

the NPRM or contained in the final rule.

They were generally used to aid FRA in

identifying problem areas, which in turn

helped FRA identify brake issues and

practices that needed to be addressed.

For example, the existence of high

power brake defect ratios at a particular

location or on a particular railroad

likely indicated the existence of certain

practices or procedures that created or

contributed to the high defect levels. As

is evident from the discussions of the

various requirements contained in both

the NPRM and in the final rule, FRA

considered a massive amount of

information and data when developing

the rule.

Although the data regarding defect

ratios contained in FRA’s database have

limited usefulness in the context of

developing a regulation, the data are

very useful to FRA in other ways. The

data are useful in measuring a railroad’s

general compliance level and aid in

identifying problem areas or locations.

This information aids FRA in allocating

its inspection forces and permits FRA to

focus its enforcement on locations or

issues which are in the greatest need of

such scrutiny. By focusing its

enforcement in this manner, FRA is able

to make the best use of its limited

resources.

Although the preceding discussion

details the limitations of using the data

collected by FRA regarding power brake

defects when developing a regulation,

FRA believes that a more detailed

41286 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

discussion of FRA’s collection of power

brake defect data is needed in order to

address the issues raised or alluded to

by the BRC in its petition. As noted

above, FRA conducted a public meeting

on May 27, 1999, in order to address

general concerns raised by various

parties regarding the accuracy of the

FRA’s power brake defect data and to

provide interested parties the

opportunity to develop the issues they

generally raised in oral and written

comments regarding the data. Although

this public meeting was held in

connection with the NPRM regarding

power brake regulations related to

freight operations, many of the issues

are identical to the issues raised by the

BRC in its petition in this proceeding.

At this May 27, 1999, public meeting,

representatives of several labor

organizations raised issues regarding the

accuracy and use of the power brake

defect data complied by FRA. These

commenters generally alleged that the

method by which FRA collects power

brake defect data results in the

underreporting of defects which in turn

results in a systematic deflation of

power brake defect ratios.

Specific issues raised at this public

meeting and in subsequent written

comments include: the overreporting of

units inspected during FRA inspections;

the calculation and deflation of the

power brake defect ratio; the inspection

procedures used by FRA that tend to

exclude certain categories of power

brake defects; potential discrepancies in

the input data relative to the activity

codes from FRA field inspection reports

to FRA’s database; the performance of

power brake inspections by FRA

inspectors on cars that are not properly

charged or connected to a source of

compressed air; FRA’s reliance on the

railroads for the total number of cars

inspected; and the wide variance

between FRA inspectors and FRA

regions in the number of units

inspected, the number of defects

reported, and the resulting defect ratios.

In order to understand some of the

issues raised, it is necessary to

understand how inspection data

developed by an FRA inspector are

entered into FRA’s database. FRA

Motive Power & Equipment (MP&E)

inspectors conduct inspections of

railroad passenger and freight

equipment pursuant to various parts of

the Federal regulations contained in

title 49 of the Code of Federal

Regulations. Principally, these include

inspections under the following: part

215—Freight Car Safety Standards; part

229—Locomotive Safety Standards; part

231—Safety Appliance Standards; and

part 232—Power Brakes and Drawbars.

When performing an inspection under

each of these parts, an FRA inspector

will fill out the appropriate inspection

form which indicates the number of

units inspected under each part as well

as the number of defective conditions

found on those units. In the context of

performing power brake inspections

under part 232, an inspection of a car

means a unit count of one. When this

type of inspection is conducted,

inspectors inspect various brake-related

car components such as: Foundation

brake rigging, air hoses, angle cocks,

brake shoes, and, where possible, piston

travel. When an inspector performs an

inspection of a brake test required under

part 232, the unit count for such a test

is the train consist, block of cars, or car

being tested. For example, when an

inspector observes the performance of

an initial terminal brake test, the entire

train would constitute one unit count.

The BRC has raised various issues

regarding FRA’s calculation of power

brake defect ratios both at the public

meeting and in its petition. Several of

these concerns involve the potential

overreporting of the number of units

inspected which then results in the

deflation of power brake defect ratios.

One concern addressed the practice of

counting a single car or locomotive as a

unit count under each of the MP&E

regulations that it is inspected under.

For example, a freight car, MU

locomotive, or passenger car could be

considered a unit count under part 215,

part 229, part 231, and part 232

respectively if an FRA inspector were to

inspect that car or locomotive under

each of those provisions. Thus, one

vehicle could be represented as three

unit counts. It is claimed that this

practice inflates the number of units

inspected and thus, deflates defect

ratios. This concern would be valid if

FRA were to attempt to express a defect

ratio for combined parts of the CFR. For

example, if FRA were to attempt to

express an MP&E defect ratio (a

combination of parts 215, 229, 231, and

232), then the method by which FRA

collects data would result in an inflation

of the number of units inspected and the

resulting defect ratio would be skewed.

For purposes of analysis, FRA’s

database is constructed so that defect

ratios are expressed only in terms of

each separate part of the CFR.

A second concern, raised at both the

public meeting and in BRC’s petition,

involves the potential of duplicate

inspection reports being submitted by

different FRA inspectors when engaged

in team inspections. The BRC alleges

that FRA inspectors are significantly

inflating the number of power brake

units being inspected by submitting

duplicate reports for the same

inspection activity when groups of FRA

inspectors perform inspections at the

same location. In an effort to investigate

this concern, FRA designed a computer

program to search for potentially

duplicate inspection reports submitted

during the years of 1995 through 1998.

Table 1 displays the figures regarding

power brake inspections conducted by

FRA for the years of 1995 through 1998

that are contained in FRA’s database.

TABLE 1.—POWER BRAKE INSPECTIONS AND DEFECT RATIOS: 1995

THROUGH 1998

Calendar

year

Power

brake

units

Power

brake

defective

units

Power

brake

defect

ratios

1995 .......... 611,824 24,387 .03986

1996 .......... 646,140 28,795 .04456

1997 .......... 582,685 26,004 .04463

1998 .......... 585,663 26,286 .04488

In order to identify potential

duplicate reports, the computer program

was designed to identify inspection

reports in which two or more FRA

inspectors were in the same county, on

the same day, on the same railroad, and

in which at least one unit-count code

matched. Table 2 displays the results of

this search, showing the number of

potential duplicate reports that were

submitted from 1995 through 1998 and

showing the potential number of

overreported units.

TABLE 2.—POTENTIAL DUPLICATE

POWER BRAKE INSPECTIONS: 1995

THROUGH 1998

Calendar year

Inspection reports

with

More

than

one

matching unit

Total

units reported

twice

Potential

duplicate

units

(half of

total

units)

1995 .............. 39 1,965 983

1996 .............. 154 12,646 6,323

1997 .............. 342 19,482 9,741

1998 .............. 182 8,692 4,346

Table 3 and Table 4 display the

impact of the potential duplicate reports

on the calculation of power brake defect

ratios. FRA believes that the data

contained in Table 3 and Table 4

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41287

establish that the impact of potential

duplicate reports on the defect ratios

presented in the NPRM is insignificant

when considered in the context of

nationwide data.

TABLE 3.—REVISED POWER BRAKE DATA CONSIDERING POTENTIAL DUPLICATE REPORTS: 1995 THROUGH 1998

Calendar Year

Power

brake

units inspected

Potential duplicate

units

Units inspected

minus potential

duplcate

units

Defective

units

Defect

ratios

after adjusting

for potential

duplicate

units

1995 ..................................................................................................................................... 611,824 983 610,841 24,387 .03992

1996 ..................................................................................................................................... 646,140 6,323 639,817 28,795 .04501

1997 ..................................................................................................................................... 582,685 9,741 572,994 26,004 .04539

1998 ..................................................................................................................................... 585,663 4,346 581,317 26,286 .04522

TABLE 4.—EFFECT OF POTENTIAL DUPLICATE REPORTS ON POWER

BRAKE DEFECT RATIOS: 1995

THROUGH 1998

Calendar

year

Defect

ratios

before

adjustment for

potential

duplicates

Defect

ratios

after adjustment

for potential

duplicates

Difference

1995 ............ .03986 .03992 .00006

1996 ............ .04456 .04501 .00045

1997 ............ .04463 .04539 .00076

1998 ............ .04488 .04522 .00034

It should be noted that the numbers

presented in Tables 2 through Table 4

overstate the actual impact of potential

duplicate inspection reports. For the

year 1998, FRA conducted an in-depth

analysis of the potential duplicate

reports found by the computer program.

The computer program identified 393

potential duplicate inspection reports

for the year 1998. However, included in

this grouping were unique inbound

inspection reports, outbound inspection

reports and split inspection reports. In

addition, there were inspection reports

from inspectors who worked in the

same county, but at different locations.

Each of these reports was removed from

the 393 potentially duplicate inspection

reports identified by the computer

program based on a report-by-report

analysis of each of the reports by FRA

MP&E specialists. This analysis left 182

potential duplicate reports for 1998,

which were used to calculate the figures

presented in Tables 2 through 4 for

1998. Although these tables note 182

potential duplicate inspection reports

involving 8,692 units (4,346 duplicates),

a further analysis of the reports by FRA

found that only 54 of the inspection

reports were actually found to be

duplicative. These 54 duplicate

inspection reports involved the

overreporting of just 3,073 units rather

than the 4,346 units identified in Table

2. As an in-depth analysis was not

performed on the potential duplicate

inspection reports identified by the

computer program for the years of 1995

through 1997, the figures provided for

those years in all likelihood greatly

overstate the actual number of duplicate

claims submitted in each of those years.

Thus, the actual impact of duplicate

inspection reports is even less than the

small percentages indicated in Table 4

above.

Although the impact of duplicate

inspection reports is insignificant, FRA

believes that a brief discussion of how

these duplicate inspection reports

happened is necessary in order to assure

interested parties that such occurrences

are rare and that FRA has taken steps to

avoid these inaccuracies. In 1994, FRA

had four inspection forms for the

Agency’s five inspection disciplines.

The Operating Practices and Hazardous

Materials disciplines shared the same

form. FRA also had a Quality

Improvement Plan (QIP) daily activity

report form to help the Agency track

resource allocations, including the

amount of time required to perform

certain inspections. When ‘‘team

inspections’’ occurred, one inspector

completed the inspection report for the

entire team. However, each inspector on

the team was also required to complete

a separate QIP report to receive credit

for the inspection. On January 1, 1995,

a newly developed single inspection

form (FRA 6180.96) for all disciplines

became operational. Furthermore, in

May of 1995, FRA discontinued the

collection of QIP-time data based on

FRA’s conclusion that it had adequate

information from previous QIP reports

regarding the time it takes to conduct

various inspections. In addition, the

new inspection form incorporated many

of the previous QIP codes. In August

1995, FRA converted to a data collection

system using personal computers.

After conducting the analysis

discussed above, it was determined that

26 FRA MP&E inspectors inadvertently

prepared all of the involved duplicate

inspection reports. Furthermore, FRA

was not aware that the new computer

system did not filter out duplicate

inspection reports. After becoming

aware of these problems based on

reports from its field personnel, FRA

specifically addressed the issue of

inspection reporting at FRA’s multiregional conference conducted in 1998.

At this conference, FRA’s Office of

Safety management provided specific

guidance on preparing reports that

would eliminate potential duplicate

reporting. During this same period, FRA

also changed its computer software to

give inspectors credit for inspections

while at the same time preventing

potential duplicate reporting.

Furthermore, on March 5, 1999, FRA reissued reporting procedures designed to

prevent duplicate inspection reports

when team inspections are conducted.

These procedures were issued to all

Federal and State inspection personnel

and to all FRA Regional Administrators

and Deputy Regional Administrators.

Subsequent to the public meeting

conducted in May of 1999, FRA made

two modifications to the summary data

produced by its database in order to

clarify the meaning of the data and to

avoid misunderstanding by outside

parties. The first modification relates to

safety appliance inspections conducted

under 49 CFR part 231. The summary

data previously contained the heading

‘‘SA & PB (cars and locomotives).’’ This

heading may have caused some

confusion because the heading suggests

that it applies to both safety appliance

and power brake inspections when in

reality the data captured under this

heading only concern safety appliance

41288 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

inspections under part 231. This

heading has been modified to read ‘‘SA

(cars and locomotives)’’ to more

accurately reflect the information

contained under this heading. FRA has

also modified the summary data by

eliminating the calculation of an MP&E

defect ratio. As discussed above, FRA

believes that the calculation of a

composite MP&E defect ratio is

inappropriate based on the way FRA

collects the information contained in its

database and would result in a deflation

of MP&E defect ratios. Therefore, defect

ratios will only be presented for each

separate MP&E CFR part.

In response to the issue raised

regarding FRA’s practice of conducting

brake inspections under part 232 while

cars are not connected to a source of

compressed air or not completely

charged with air, FRA has developed a

separate reporting code for brake

inspections conducted in this manner.

This reporting code will become

effective in mid-2000 and will indicate

when brake inspections are conducted

on cars or trains that are not charged

with compressed air. Although FRA

agrees that the most thorough brake

inspection is performed when a car or

train is charged, a large majority of the

brake components on a car can be

inspected for abnormalities without the

actual application of the air brakes. For

example, the following defects can all

be discovered regardless of whether a

car or train is charged with air or not:

cut-out air brakes, brake connection

pins missing, brake rigging down or

dragging, brake shoes worn to the extent

that the backing plate comes in contact

with the tread of the wheel, angle cocks

missing or broken, retainer valves

broken or missing, and air brake piping

bent or broken. When FRA inspectors

conduct train air brake tests, they

inspect all of the components noted

above as well as the operation of the

train air brakes while under the required

air pressures. FRA has conducted

inspections of brake equipment in this

manner for decades and will continue to

conduct brake inspections under part

232 on equipment that is both on and

off a source of compressed air.

Moreover, the issue of inspecting cars

for brake defects while not connected to

a source of compressed air is a very

infrequent occurrence in the passenger

equipment context. Virtually all

passenger equipment is inspected by

FRA while it is connected to a source

of compressed air. FRA believes that the

addition of a code to identify those

inspections conducted while equipment

is not connected to a source of

compressed air will provide a more

accurate assessment of defective brake

system components.

Two other issues raised by various

individuals at the May 27, 1999, public

meeting concerned FRA’s reliance on

railroads to determine the number of

cars inspected and the wide variation

among FRA inspectors and among FRA

Office of Safety regions with regard to

the number of units inspected and

defects reported. FRA acknowledges

that FRA inspectors frequently rely on

information provided by the railroad

regarding car counts when initially

conducting an inspection, information

that is sometimes higher than the actual

number of cars being inspected.

However, in most instances FRA

inspectors request a copy of the consist

prior to finalizing their inspection

reports to ensure a proper unit count.

FRA has issued guidance to its

inspectors to ensure that the unit counts

on all inspections are accurate.

Although FRA acknowledges that the

number of brake inspections conducted

varies somewhat from inspector to

inspector and from region to region,

FRA contends that these variations are

the result of competing priorities and

varying workloads within each region.

FRA makes every effort to standardize

its inspection activities by providing

substantial training to each of its

inspectors. This training is comprised of

both classroom and on-the-job training.

In addition to basic and advanced

training provided through FRA’s field

liaison training staff, classroom training

is also conducted at least once a year at

the regional or multi-regional

conferences. Product-specific training is

provided by manufacturers, suppliers,

and other sources (e.g., General Electric,

General Motors-EMD, and Westinghouse

Air Brake Company). Many FRA regions

also conduct discipline-specific

conferences, with training on new

regulations and issues provided by

various subject matter experts. On-thejob training is provided through FRA

Regional Specialists and senior

inspectors. These individuals will work

one-on-one with the inspectors on the

various types of inspections that the

inspector is required to conduct. FRA

also frequently issues enforcement

guidance to its inspectors in the form of

technical bulletins in order to ensure

consistent enforcement of the

regulations.

The BRC’s petition also asserts that

FRA ignored the data developed by its

organization when developing the final

rule. However, the final rule discussed

in detail the information provided by

the BRC, compiled by carmen stationed

at Union Station in Washington, DC

from January 1996 through February of

1997, describing defective conditions

allegedly found on Amtrak trains

traveling through Union Station. See 64

FR 25567. The BRC submitted this data

in support of its contention that large

numbers of defects were being

discovered on long-distance passenger

trains and that the existing 1,000-mile

intermediate brake interval for such

trains should not be extended or

eliminated. In the discussion, FRA

noted that the lack of detail in the

information submitted by the BRC,

made it is impossible to determine

whether the vast majority of the alleged

defective conditions were contrary to

the Federal regulations or whether the

conditions were merely contrary to

Amtrak’s voluntary maintenance

standards or operating practices. In

addition, based on the description of

some of the conditions, they would not

be considered defective conditions

under current Federal regulations.

Furthermore, the vast majority of the

conditions alleged in the document

were not power brake defects, and thus,

under the current regulations, would

not have been required to have been

inspected at a 1,000-mile inspection;

nor did the regulations in effect at the

time of BRC’s inspections mandate any

type of mechanical inspection on

passenger equipment, except under 49

CFR parts 223 (glazing), 231 (safety

appliances), and 232 (power brakes).

Moreover, the vast majority of the

alleged conditions were mechanical and

wheel defects which would not be

addressed in a power brake inspection.

In the final rule, FRA also made clear

that the documentation submitted by

the BRC regarding defective conditions

found on cars at Union Station in

Washington, DC did not indicate a

safety problem on long-distance

intercity passenger trains. Assuming

that all of the cars cited in the BRC’s

submission were in fact defective as

alleged, it appears that approximately

750 cars were defective. However, the

documentation also reveals that

approximately 1,300 trains were

inspected; thus, using a conservative

estimate of 10 cars per train,

approximately 13,000 cars were

inspected. Therefore, approximately

only six percent of the cars inspected

were found to contain either a brake

defect or other mechanical defect.

Furthermore, of the approximate 750

cars alleged to have been found

defective, only approximately 20

percent of those cars contained a defect

related to power brakes. Consequently,

only about one to two percent of the

total cars inspected contained a powerbrake-related defect. Moreover, from the

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41289

information provided, it appears that

none of the trains contained in the BRC

submission was involved in any type of

accident or incident related to the

defective conditions alleged.

Section-by-Section Analysis

Amendments to 49 CFR Part 215

A clarifying amendment is being

made to the applicability provisions of

this part contained in § 215.3. The

modification is being made to clarify

that the requirements contained in this

part do not apply to express cars and

other unpowered vehicles being hauled

in a passenger train that is inspected,

tested, maintained, and operated

pursuant to the Passenger Equipment

Safety Standards contained in part 238.

FRA believes that this clarification is

consistent with FRA’s existing general

policy not to subject this type of

equipment to the requirements of part

215. FRA also believes this clarifying

change is necessary to avoid potential

misunderstandings of the

interrelationship between part 215 and

part 238. FRA further believes that the

applicability of the inspection, testing,

and maintenance requirements

contained in part 238 to this type of

equipment will adequately ensure the

safety and proper operation of this

equipment when used in passenger

operations. It should be noted that when

this type of equipment is used in a

freight train the requirements of part

215 will become applicable to its

operation. Furthermore, the

applicability or non-applicability of part

215 to this equipment is not in any way

intended to affect the use or

classification of the equipment under

other provisions contained in Title 49 of

the Code of Federal Regulations.

Amendments to 49 CFR Part 220

A technical amendment to part 220,

addressing communications in

connection with railroad operations, is

made to the definition of ‘‘train’’

contained in § 220.5. The technical

amendment merely adds a reference to

part 238 in that definition to ensure that

trains operated under the testing

provisions of part 238 are covered by

the railroad communication

requirements of part 220.

Amendments to 49 CFR Part 238

Section 238.1 Purpose and Scope

Paragraph (c) has been modified in

response to petitions filed by APTA and

Amtrak. Both these parties

recommended that FRA extend the date

by which railroads covered by the final

rule must adopt and comply with a

training, qualification, and designation

program required by § 238.109. Both of

these petitioners contend that the date

of compliance required in the final rule

(July 12, 2001) provides an insufficient

time for railroads to establish and

implement the required training

programs. In a letter dated September

30, 1999, FRA separately responded to

these two petitions. In that letter, FRA

agreed to extend the period of time by

which railroads must adopt training

programs and train their workforces

under the final rule to December 31,

2001. Thus, conforming changes have

been made in this paragraph to indicate

that railroads will not be responsible for

compliance with the provisions

contained in §§ 238.15, 238.17, 238.19,

238.107, 238.109, and subpart D of this

part until January 1, 2002.

As FRA stated in the final rule, FRA

recognizes the interrelationship between

the proper training of railroad personnel

and the implementation of the

provisions on inspection, testing, and

maintenance and on movement of

defective equipment. See 64 FR 25575.

In order for railroads to comply with the

requirements related to the inspection,

testing, and maintenance and the

requirements regarding the movement of

defective equipment, the railroads must

first be provided a sufficient amount of

time to develop and implement proper

training programs. Therefore, as the date

by which railroads are to adopt training

programs required by this final rule and

to train their workforces has been

extended until the end of 2001, this

paragraph has been modified to indicate

that the provisions on inspection,

testing, and maintenance and on

movement for repair do not become

applicable until that time. Of course, the

statutory provision at 49 U.S.C. 20303

will continue to apply to movements for

repair of cars that are defective under 49

CFR parts 231 or 232.

Section 238.5 Definitions

A new definition of the term

‘‘actuator’’ is added in response to the

Transport Workers Union of America

(TWU) concerns regarding the final

rule’s allowance to rely on brake

indicators during the performance of

Class IA brake tests. The TWU’s petition

indicates that there may be some

misunderstanding of the difference

between brake indicators, allowed to be

used during Class IA brake tests, and

actuators, which are permitted to be

relied upon during Class I brake tests. A

‘‘brake indicator’’ is generally a device

actuated by brake cylinder pressure that

indicates whether the brakes are applied

or released. In contrast, an ‘‘actuator’’ is

a device directly activated by the

movement of the brake cylinder piston

that provides an indication of piston

travel. Thus, because an actuator is tied

directly to the movement of the brake

cylinder piston and because direct

observation of the brake cylinder piston

is not possible or extremely difficult on

some passenger equipment, FRA has

allowed and will continue to allow the

use of these devices to determine proper

piston travel on passenger equipment as

part of Class I brake tests. A brake

indicator is useful and is appropriate for

Class IA and Class II brake tests.

The definition of ‘‘effective brake’’ is

also being slightly modified in response

to TWU’s petition, which generally

contended that vehicles with excessive

piston travel should be considered to

have inoperative or ineffective brakes

when calculating the percentage of

operative brakes in a train under

§ 238.15. It appears that part of TWU’s

concern may be based on a

misunderstanding as to what constitutes

excessive piston travel sufficient to

render a brake ineffective. In order to

add clarity to the issue, FRA believes it

is necessary to explain that a brake will

not be considered ineffective until its

piston travel exceeds the maximum

prescribed limits for the brake.

Although the final rule did not contain

specific piston travel limits for various

brake systems, the intent of the final

rule was to retain the specific piston

travel limits contained in the existing

regulations. See 49 CFR 232.11(c). Thus,

this definition is being modified to

clarify that on vehicles equipped with

nominal 12-inch stroke brake cylinders,

the brake will not be considered

effective if the piston travel exceeds

101⁄2 inches.

The definition of ‘‘primary

responsibility’’ has been slightly

modified in response to a petition for

reconsideration submitted by APTA.

APTA’s petition sought clarification of

whether the time spent by supervisors

of mechanical employees would be

considered consistent with the duties

that a qualified maintenance person

(QMP) would be required to perform

when determining a supervisor’s

primary responsibility. FRA’s intent

when issuing the final rule was to allow

supervisory mechanical personnel to be

considered QMP’s if they were

otherwise properly trained as required

by this final rule. Therefore, the

definition of ‘‘primary responsibility’’

has been modified in order to clarify

that time spent supervising employees

engaged in the functions of

troubleshooting, inspection, testing,

maintenance, or repair of train brake

and mechanical components and

systems covered by this part shall be

considered work that is generally

41290 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

consistent with the function of

troubleshooting of such systems and

components. The final rule also made

clear that the totality of the

circumstances should be considered in

those situations where an employee

does not spend 50 percent of the day

engaged in any one readily identifiable

type of activity.

The definition of ‘‘qualified person’’

has also been modified, in response to

a petition from the TWU. The definition

in the final rule reads as follows:

Qualified person means a person

determined by the railroad to have the

knowledge and skills necessary to perform

one or more functions required under this

part. The railroad determines the

qualifications and competencies for

employees designated to perform various

functions in the manner set forth in this part.

See 64 FR 25664. In its petition, the

TWU contends that this definition of

‘‘qualified person’’ is so broad that a

railroad could lawfully consider just

about anyone to be a qualified person.

Due to this, the TWU recommends that

any task for which the final rule

requires to be performed by a qualified

person be changed to require that the

task be performed by either a carman or

a QMP. Although FRA disagrees with

the assertion that a ‘‘qualified person’’

should not be permitted to perform the

tasks identified in the final rule that the

person is able to perform properly, FRA

does agree that the definition of

‘‘qualified person’’ contained in the

final rule may be overly vague and

susceptible to abuse and

misunderstanding. Therefore, the

definition of a ‘‘qualified person’’ is

being modified in order to clarify what

is required of a railroad when it

designates a person as qualified to

perform a particular task.

The modified definition of ‘‘qualified

person’’ is intended to clarify that the

person is to receive training pursuant to

the training, qualification, and

designation program required under

§ 238.109. The definition also makes

clear that although a person may be

deemed a ‘‘qualified person’’ for the

performance of one task, that same

person may or may not be considered a

‘‘qualified person’’ for the performance

of another task. The final rule permits

certain tasks to be performed by a

‘‘qualified person.’’ For example, these

tasks include the performance of some

brake inspections, interior mechanical

inspections, and the handling of

defective equipment in some

circumstances. FRA would expect

employees performing these various

tasks to have different levels of training.

For example, a person receiving

appropriate training to be deemed a

‘‘qualified person’’ for the purpose of

performing Class IA brake tests should

not be deemed a ‘‘qualified person’’ for

the purpose of moving defective

equipment or performing interior

mechanical inspections, unless specific

training is provided that individual

which specifically covers those tasks.

The modified definition stresses that the

individual must have received

appropriate training to perform the task

for which the railroad is assigning the

person responsibility to perform.

The definition of ‘‘running gear

defect’’ is also being modified, in

response to petitions from APTA and

Amtrak. The modified definition

eliminates propulsion system

components from the definition. As the

definition contained in the final rule

pertains only to conditions not in

compliance with part 238 and because

part 238 does not cover propulsion

system components for the most part,

FRA agrees with the petitioners that the

definition of ‘‘running gear defect’’

contained in the final rule creates

confusion as to how locomotives with

propulsion system defects must be

handled. FRA believes that propulsion

system defects, which are found on

locomotives, are sufficiently covered by

part 229 of this chapter, containing

locomotive safety standards. Thus,

locomotives with conditions that are not

in compliance with part 229 should be

handled in accordance with the

provisions contained in that part

regarding the movement of defective

equipment. The only potential

propulsion system component directly

addressed in part 238 is dynamic

brakes, and separate handling

restrictions have been imposed in the

final rule and clarified in this document

when this component is found to be

inoperative. See 64 FR 25679 and

discussion of § 238.305(e)(15) below.

Consequently, propulsion system

components have been removed from

the definition of ‘‘running gear defect.’’

Although the TWU’s petition requests

modification of the definitions of

‘‘bind’’ and ‘‘foul,’’ FRA believes that

the definitions of these terms in the

final rule are sufficiently clear. See 64

FR 25661–62. The TWU contends that

the definitions of these terms fail to

address every possible condition that

could affect the proper operation of a

brake system. FRA believes that the

conditions noted by TWU as not being

covered by these definitions are

sufficiently covered by the definition of

‘‘effective brake’’ contained in the final

rule. See 64 FR 25661. Thus, even

though a condition may not cause a

brake to ‘‘bind’’ or ‘‘foul,’’ the condition

would cause the brake not to be an

‘‘effective brake’’ as defined in the final

rule. Furthermore, FRA is modifying the

language contained in the Class I brake

test requirements regarding the

operation of the brake rigging to include

language that the rigging or system

mounted on a car for transmission of the

braking force operates as intended and

does not bind or foul. Therefore, even

though a condition may not cause the

brake rigging to ‘‘bind’’ or ‘‘foul,’’ the

condition could cause the brake not to

operate as intended and thus, render the

brake ineffective.

TWU’s petition also seeks

clarification of the definition of

‘‘switching service’’ to further explain

what constitutes a ‘‘train movement.’’

Although FRA does not believe that the

final rule definition of ‘‘switching

service’’ needs to be modified, a brief

discussion of what constitutes a ‘‘train

movement’’ may be useful. FRA’s

determination of whether the movement

of cars is a ‘‘train movement,’’

potentially subject to some of the

requirements of this part, or a

‘‘switching movement’’ is and will be

based on the voluminous case law

developed by various courts of the

United States. FRA’s general rule of

thumb as to whether a trip constitutes

a ‘‘train movement’’ requires five or

more cars (in a passenger context this

number would likely be lower) coupled

together that are hauled a distance of at

least one mile without a stop to set off

or pick up a car and not moving for the

purpose of assembling or disassembling

a train. However, FRA may consider

movements of less than one mile ‘‘train

movements’’ if various circumstances

exist. In determining whether a

particular movement constitutes a ‘‘train

movement,’’ FRA conducts a multifactor analysis based upon the

discussions contained in various court

decisions on the subject. See, e.g.,

United States v. Seaboard Air Line R.R.,

361 U.S. 78 (1959); Louisville &

Jeffersonville Bridge Co. v. United

States, 249 U.S. 543 (1919). The

following factors are taken into

consideration by FRA: the purpose of

the movement; the distance traveled

without a stop to set out or pick up cars;

the number of cars hauled; and the

hazards associated with the particular

route traveled (e.g., the existence of

public or private crossings with or

without active crossing warning

systems, the steepness of the grade, the

existence of curves, any other

conditions that minimize the

locomotive engineer’s sight distance,

and any other conditions that may

create a greater need for power brakes

during the movement). The existence of

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41291

any of these hazards would tend to

weigh towards the finding of a ‘‘train

movement,’’ since these are the types of

hazards against which the power brake

provisions of the Federal rail safety laws

were designed to give protection.

Section 238.9 Responsibility for

Compliance

Amtrak petitioned FRA for

reconsideration of this section to clarify

the responsibility of a railroad or other

entity that is involved in the operation

of passenger trains but does not

maintain the equipment used in such

trains. Amtrak noted that it is a contract

operator of commuter service in at least

one urban area where it does not

exercise any control over who performs

the maintenance of the commuter

equipment it operates. In this

circumstance, Amtrak reported it has no

contractual responsibility for ensuring

that the condition of the equipment

complies with applicable legal

requirements. Amtrak also explained

that four commuter operations are

conducted on Amtrak’s Northeast

Corridor (NEC) using equipment that is

not maintained by Amtrak. Amtrak

believed that the regulation would

appear to impose upon an entity, such

as itself, that operates passenger trains

as a contractor, or that allows commuter

authorities to operate passenger trains

on its rail lines, responsibility to ensure

that equipment maintained by other

entities is in full compliance with the

regulation. Amtrak noted the expense

involved if it were to ensure that

equipment maintained by other entities

is in full compliance with the

regulation, including potential

operational delays. Assuming FRA did

not intend to require entities like

Amtrak to perform independent

inspections on equipment maintained

by others, Amtrak requested that FRA

amend this section by adding the

following paragraph: ‘‘For purposes of

this section, a railroad that hauls, or

permits to be hauled on its line, any

passenger train or passenger equipment

shall not be required to perform

independent inspections of equipment

maintained by entities that are not

selected by the railroad and under

control of the railroad in performing the

maintenance of equipment services.’’

Amtrak further stated that it does not

dispute responsibility for hauling, or

permitting to be hauled, equipment if it

has actual knowledge of a condition that

does not comply with the standards.

As explained in the preamble to the

final rule, paragraphs (a)(1) and (a)(2)

prohibit a railroad subject to part 238

from committing a series of specified

acts with respect to a train or a piece of

passenger equipment while the train or

passenger equipment is in service if it

has a condition that does not comply

with part 238 or if it has not been

inspected and tested as required by part

238. In particular, consistent with 49

U.S.C. chapter 203, paragraph (a)(1)

imposes a strict liability standard with

respect to violations of the safety

appliance and power brake provisions

of part 238. In addition to the acts

prohibited by paragraph (a)(2) (that is,

the use, haul, offering in interchange, or

accepting in interchange of defective or

not properly inspected equipment),

paragraph (a)(1) prohibits a railroad

from merely permitting the use or haul

on its line of such equipment if it does

not conform with the safety appliance

and power brake provisions. See 49 CFR

238.3(b). By contrast, paragraph (a)(2)

imposes a lower standard of liability for

using, hauling, delivering in

interchange, or accepting in interchange

a train or passenger equipment that is

defective or not properly inspected, in

violation of another provision of this

part; a railroad subject to this part is

liable only if it knew, had notice, or

should have known of the existence of

either the defective condition of the

equipment or the failure to inspect and

test.

As noted, the liability standard

contained in paragraph (a)(1) is

consistent with longstanding Federal

law. FRA did not intend to impose any

new standard on railroads through

paragraph (a)(1), at least insofar as this

paragraph subjects railroads to liability

for permitting the use on their lines of

equipment with a defective power brake

or safety appliance. As a result, even

before this final rule, Amtrak has been

subject to liability for permitting

equipment with a defective power brake

or safety appliance to be operated over

its NEC trackage. Likewise, the Nation’s

freight railroads have been—and are—

subject to liability for permitting the use

on their lines of Amtrak or other

passenger equipment with such

defective conditions. As paragraph (a)(1)

effectively restates otherwise applicable

Federal law, FRA has not adopted

Amtrak’s request for reconsideration as

it relates to paragraph (a)(1). FRA notes

that the safety appliance and power

brake laws do not specifically impose

inspection requirements on Amtrak or a

freight railroad to inspect passenger

equipment merely because the

equipment is used on its lines, though

these laws would subject Amtrak or a

freight railroad to liability for permitting

the use on their lines of Amtrak or other

passenger equipment with such

defective conditions. However, FRA

generally does not intend to hold a

freight railroad or Amtrak responsible

for passenger equipment not in

compliance with part 238 merely

because the passenger equipment

operates over the freight railroad’s or

Amtrak’s trackage. Further, FRA does

not intend to hold Amtrak responsible

for passenger equipment not in

compliance with part 238 merely

because it provides the crews to operate

the passenger equipment. FRA would

look for more of a connection between

the railroad and the defective condition

of the equipment than these.

As this discussion indicates, a

number of entities may be involved in

a single passenger train operation. For

example, the following entities (and/or

others) may be involved in the operation

of a commuter railroad: a local

governmental authority may fund and

organize the commuter rail operation,

and own the passenger equipment; a

freight railroad may host the operation

by providing the trackage over which

the passenger trains operate and

dispatching the trains; Amtrak may

provide the crews to operate the trains;

and another entity may inspect, test,

and maintain the equipment. Here, the

freight railroad, Amtrak, and the entity

maintaining the equipment are all

performing services for, or on behalf of,

the governmental authority funding and

organizing the operation. As a result, the

governmental authority holds ultimate

responsibility for the condition of the

passenger equipment and compliance

with these passenger equipment safety

standards.

Of course, as provided in paragraph

(c), any other person who performs any

action on behalf of a railroad or any

person who performs any action

covered by this part is required to

perform that action in the same manner

as required of a railroad or be subject to

FRA enforcement action. Continuing

with the above example, the contractor

who inspects, tests, and maintains the

passenger equipment on behalf of the

governmental authority (the railroad) is

thereby subject to liability for failing to

perform properly an inspection required

by this part, for instance. Whether this

contractor is otherwise a railroad in its

own right, as Amtrak is, is not necessary

for purposes of its assumption of

responsibility for compliance with part

238. ]

As noted above, paragraph (a)(2)

imposes a lower standard of liability for

using, hauling, delivering in

interchange, or accepting in interchange

a train or passenger equipment that is

defective or not properly inspected, in

violation of a provision of this part other

than a power brake or safety appliance

41292 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

provision. A railroad subject to this part

is liable only if it knew, had notice, or

should have known of the existence of

either the defective condition of the

equipment or the failure to inspect and

test. (Again, paragraph (a)(1) imposes a

strict liability standard with respect to

violations of the safety appliance and

power brake provisions of part 238.) As

written, paragraph (a)(2) effectively

embodies Amtrak’s reconsideration

request. First of all, Amtrak (or a freight

or other host railroad) is in no way

subject to liability for merely permitting

to be hauled or used on its trackage a

train or passenger equipment that is

defective or not properly inspected in

violation of a provision of this part other

than a power brake or safety appliance

provision. Further, Amtrak is not

subject to liability for merely using,

hauling, delivering in interchange, or

accepting in interchange a train or

passenger equipment that is defective or

not properly inspected, in violation of a

provision of this part other than a power

brake or safety appliance provision. As

a result, Amtrak is not subject to

liability for merely providing the crews

to operate the passenger equipment in

the commuter railroad example

discussed above. FRA notes that, as a

general matter, paragraph (a)(2) is not

drafted to impose a strict liability

standard on railroads for using or

hauling passenger equipment that is

defective or not properly inspected, in

violation of a provision of this part other

than a power brake or safety appliance

provision. As a result, even if Amtrak

were potentially subject to liability for

using or hauling passenger equipment

under paragraph (a)(2)—as in the case

where it uses or hauls its own

equipment; or inspects, tests, and

maintains passenger equipment on

behalf of another railroad—Amtrak

would not incur liability in fact unless

it knew, had notice, or should have

known of the existence of either the

defective condition of the equipment or

the failure to inspect and test (other

than for a power brake or safety

appliance provision).

The TWU, in its petition for

reconsideration, suggested that

paragraph (a)(2) is at best misleading

and open to misinterpretation with

respect to current statutory

requirements, focusing on use of the

phrase ‘‘other than safety appliance and

power brake provisions of this part.’’

However, as discussed above, § 238.9 is

specially drafted to retain the specific

liability standards of the power brake

and safety appliance laws, through

inclusion of paragraph (a)(1). Paragraph

(a)(2), and its use of the phrase ‘‘other

than safety appliance and power brake

provisions of this part,’’ cannot be read

in isolation of paragraph (a)(1), which

specifically addresses power brakes and

safety appliances. FRA makes clear that

§ 238.9 does not exclude safety

appliances and power brakes from the

compliance requirements.

Though not the subject of a petition

for reconsideration, FRA notes for

clarification that a violation of

paragraph (a)(3) would include failing to

keep a record required by this part;

failing to submit a test plan required by

this part; and failing to perform an

analysis required by this part. A railroad

is strictly liable for any such violation.

Of course, FRA retains enforcement

discretion whether to assess a penalty or

take other action in these and any other

instances of non-compliance with part

238.

Section 238.15 Movement of Passenger

Equipment With Power Brake Defects

A conforming change has been made

to the introductory text of this section

to indicate that the requirements

contained in the section do not become

effective until January 1, 2002. As noted

previously, by letter dated September

30, 1999, FRA extended the period of

time by which railroads must adopt

training programs and train their

workforces under the final rule to

December 31, 2001. This letter was

issued in response to petitions for

reconsideration submitted by APTA and

Amtrak. In the letter, FRA noted the

interrelationship between the proper

training of railroad personnel and the

implementation of the provisions on

inspection, testing, and maintenance

and on movement of defective

equipment. Consequently, this

modification is consistent with the date

by which a railroad is to have

completed the training of its employees.

Paragraphs (b) and (c)(2) of this

section have been slightly modified in

response to petitions submitted by

Amtrak and the TWU seeking

clarification of the liability standards

related to the movement of defective

equipment. The provisions regarding a

railroad’s responsibility for compliance

contained in § 238.9, and discussed in

detail above, make clear that a strict

liability standard will be applied to

power brake components not in

compliance with the requirements of

this part. In order to ensure that there

is no misunderstanding regarding this

standard of liability, FRA has modified

the language contained in paragraphs (b)

and (c)(2) to reflect the fact that a

railroad must have knowledge of the

existence of a defective condition in

order to haul a car for the purposes of

repair under the provisions contained in

this section. The modifications made to

these paragraphs make clear that such

knowledge will be established by

tagging the defective equipment or

entering the existence of the defective

condition into an automated tracking

system. Consequently, if a railroad lacks

knowledge of the existence of a power

brake defect and uses the defective

equipment, then the railroad may be

held liable for civil penalties.

Similarly, paragraph (c) of this section

has been slightly modified in order to

clarify that passenger equipment which

develops ineffective or inoperative

brakes while en route may be moved for

repair without civil penalty liability

only if all of the requirements contained

in this section are met. Although this

was FRA’s intent when including the

requirements contained in this

paragraph, the specific wording of the

paragraph may have caused some

parties to misinterpret or misunderstand

its meaning. Thus, if FRA were to

discover a unit of passenger equipment

being used or hauled with inoperative

or ineffective brakes without the

provisions of paragraph (c) being

otherwise met, then a violation may be

assessed pursuant to this paragraph for

improper movement of an en route

power brake defect.

A clarifying change has been made to

paragraph (d)(1)(ii) of this section

regarding the calculation of operative

brakes on trains equipped with tread

brake units (TBUs). FRA believes that

the wording of the final rule may have

created some uncertainty as to how the

percentage of operative brakes is to be

calculated on trains equipped with a

mixture of TBUs and other types of

brakes. The change clarifies FRA’s

intent when issuing the final rule that

the calculation of operative brakes based

on the number of operative TBUs is for

trains equipped solely with TBUs. See

64 FR 25583. For example, if a train

utilizes a mixture of TBU and disc

brakes, the calculation of the percentage

of operative brakes is to be determined

by first dividing the number of axles in

the train with operative brakes by the

total number of axles in the train and

then multiplying that fraction

(expressed as a decimal fraction) by 100.

FRA received a petition from the

TWU requesting elimination of the final

rule’s list of conditions that do not

render power brakes inoperative for

purposes of calculating the percentage

of operative brakes. FRA disagrees that

such an approach is necessary. The

purpose of the calculation is to

determine the percentage of operative

brakes, and the conditions listed in

paragraph (d)(1)(iv) of the final rule do

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41293

not render the power brakes inoperative.

Many of the listed conditions constitute

a violation under other provisions

contained in the final rule or another

regulatory provision for which separate

penalties are provided.

A cut-out or ineffective power brake

is an inoperative power brake, but the

failure or cutting out of a secondary

brake system does not result in

inoperative power brakes; for example,

failure of the dynamic brake does not

render the power brake inoperative.

Furthermore, inoperative handbrakes or

power brakes overdue for maintenance

or stenciling do not render the power

brakes inoperative on the car and

should not be deemed inoperative

power brakes for purposes of the

calculation. The final rule and other

regulations contain separate penalties

for operating a car that has an

inoperative handbrake, is overdue for

maintenance, lacks the proper

stenciling, or is not properly inspected

and tested. Although FRA disagrees that

the list of conditions contained in

paragraph (d)(1)(iv) should be

eliminated, clarifying language has been

added to paragraph (d)(1)(iv) to ensure

that the conditions listed are not to be

considered inoperative power brakes for

purposes of calculating the percentage

of operative brakes but are considered

power brake defects under other

provisions of part 238.

Paragraph (d)(1)(iv)(C) of this section

is also being slightly modified in

response to the TWU’s petition

indicating some confusion regarding

when a car with excessive piston travel

should not be considered to have

inoperative brakes for the purpose of

calculating the percentage of operative

brakes pursuant to paragraph (d). When

including the exception contained in

this paragraph, it was FRA’s intent to

recognize that some brake systems are

required to have certain piston travel

ranges at the time that a Class I brake

test is performed that do not necessarily

render the brakes ineffective if those

piston travel ranges are exceeded while

the equipment is en route. Thus,

although a car may be found with piston

travel that exceeds the Class I brake test

limits, such excess travel does not

render the brakes inoperative until the

piston travel exceeds the outside limits

established for that particular type of

piston design. However, piston travel

that exceeds the applicable Class I brake

test limits would be considered a

defective condition if the piston travel

were not adjusted at the time that a

Class I brake test were performed, and

would be considered a partial failure to

perform a Class I brake test pursuant to

§ 238.313(g). In order to clarify this

intent, FRA has not only modified the

language contained in this paragraph

but has also modified the definition of

‘‘effective brake’’ and the Class I brake

test requirements to include the existing

piston travel limitations that are

applicable to vehicles equipped with

nominal 12-inch stroke brake cylinders.

See 49 CFR 232.11(c) and 232.12(f)(1).

The TWU’s petition also raises

concerns, many of which were raised in

response to the NPRM, regarding the

final rule provisions governing the

movement of defective equipment and

the potential allowance for railroads to

utilize an automated tracking system

rather than directly tagging defective

equipment. After a review of the

petition, FRA believes that it is

unnecessary to modify any of the

provisions contained in the final rule

regarding these issues. FRA concedes

that the requirements regarding the

movement of equipment with defective

power brakes allow such equipment to

be moved to the nearest forward

location where the necessary repairs can

be effectuated and in some instances to

be moved past a location where the

necessary repairs could be conducted.

FRA believes that the requirements

contained in the final rule are fully

consistent with Congress’ intent when

enacting the statutory provisions

regarding the movement of such

equipment nearly a century ago. The

preamble to the final rule provided a

detailed discussion outlining FRA’s

position on this issue and need not be

reiterated here. See 64 FR 25568–72,

25581–85. It should be noted that there

are concerns in the context of passenger

train operations that do not exist in the

freight arena when determining whether

a location is one where the necessary

repairs can be made. Chief among these

concerns is the safety of the passengers

on the train with the power brake defect

and the safety of passengers on

following trains. FRA believes these two

overriding concerns provide sufficient

justification for permitting passenger

train operations greater flexibility in

moving defective equipment than is

available to a freight operator.

FRA also believes that the definition

of ‘‘repair point’’ contained in the final

rule is sufficiently clear and does not

require modification as requested in the

TWU petition. The preamble to the final

rule makes clear that the determination

of whether a location should be

considered a location where necessary

repairs can be made is one which must

be conducted on a case-by-case basis

after consideration of a variety of

factors. See 64 FR 25571, 25584–85.

FRA continues to believe that it is

virtually impossible to develop a

standard establishing what constitutes a

location where repairs can be made that

would address the variety of operations

covered by the final rule and that such

determinations are best left to FRA’s

inspectors in the field. Id.

FRA also sees no reason to modify the

requirement that operators of longdistance passenger trains designate the

locations where repairs can be

conducted on the equipment they

operate. Although FRA agrees that this

provision puts the control of what

locations constitute repair locations in

the hands of the railroad, FRA believes

that the operators of these long-distance

intercity trains are in the best position

to determine which locations have the

necessary expertise to handle the repairs

of the somewhat advanced braking

systems utilized in passenger trains.

Due to the unique technologies used on

the brake systems of these operations

and the unique operating environments,

the facilities and personnel necessary to

conduct proper repairs on this

equipment are somewhat specialized

and limited. Moreover, the final rule

contains a broad performance-based

requirement that railroads operating this

equipment designate a sufficient

number of repair locations to ensure the

safe and timely repair of the equipment.

Contrary to the beliefs of some labor

representatives, FRA believes that this

performance standard provides FRA

sufficient grounds to institute civil

penalty enforcement actions or take

other enforcement actions if, based on

its expertise and experience, FRA

believes the railroad is failing to

designate an adequate number of repair

locations.

FRA also believes that the final rule

fully addressed the concerns of various

labor representatives regarding the use

of automated tracking systems in lieu of

direct tagging of defective equipment.

See 64 FR 25572, 25582. FRA believes

that provisions must be provided to

allow railroads to take advantage of

existing and developing technologies

regarding the electronic maintenance

and retention of records. FRA believes

that the use of such a medium to track

defective equipment can expedite the

identification and repair of defective

equipment and, thus, reduce the time

that defective equipment is operated in

passenger service. Furthermore, the

final rule contains specific provisions

regarding FRA’s ability to monitor and

review a railroad’s automated tracking

system and provides FRA the ability to

prohibit or revoke a railroad’s ability to

utilize such a system in lieu of directly

tagging defective equipment if FRA

finds that the automated tracking system

is not properly secure, is inaccessible to

41294 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

FRA or a railroad’s employees, or fails

to adequately track and monitor the

movement of defective equipment.

Moreover, if the automated tracking

system developed and implemented by

a railroad does not accurately and

adequately record the information

required by this part, the railroad would

be in violation of the movement for

repair provisions and subject to civil

penalty liability for the subsequent

defect for which the unit was being

hauled for repair.

Section 238.17 Movement of Passenger

Equipment With Other Than Power

Brake Defects

A conforming change has been made

to the introductory text of this section

to indicate that the requirements

contained in the section do not become

applicable until January 1, 2002. As

noted previously, by letter dated

September 30, 1999, FRA extended the

period of time by which railroads must

adopt training programs and train their

workforces under the final rule to

December 31, 2001. Consequently, this

modification is consistent with the date

by which a railroad is to complete the

training of its employees.

Paragraph (b) of this section has been

slightly modified to include a reference

to the exceptions contained in

§ 238.305(c) and (d) and § 238.307(c)(1)

regarding the continued use in

passenger service of passenger cars

found with certain interior defects

found at the car’s interior calendar day

mechanical inspection. In response to

petitions filed by APTA and Amtrak,

FRA has modified the provisions

contained in §§ 238.305 and 238.307 to

permit passenger cars found with

certain types of interior defects at a

daily interior inspection to continue in

passenger service until its next interior

calendar day mechanical inspection.

The modifications made in §§ 238.305

and 238.307 contain various

operational, mechanical, and inspection

requirements related to the continued

use of such equipment. The

modifications being made to §§ 238.305

and 238.307 are discussed in detail

below.

Paragraph (c) of this section has been

slightly modified to include a reference

to the exception contained in

§ 238.307(c)(1) regarding the continued

use in passenger service of passenger

cars found with defective seats while en

route. In response to petitions filed by

APTA and Amtrak, FRA has modified

the provisions contained in § 238.307 to

permit passenger cars found with

defective seats to continue in passenger

service. The modifications made in

§ 238.307 contain various requirements

related to the continued use of such

equipment. The modifications being

made to § 238.307 are discussed in

detail below.

Paragraph (d) of this section has been

modified in response to a petition

submitted by APTA requesting

modification of the requirements related

to the inspection of the roller bearings

on passenger equipment involved in a

derailment. FRA agrees that the

requirements for roller bearing

inspections on derailed equipment

contained in the final rule were

essentially a reiteration of the

requirements contained in part 215 of

this chapter related to such inspections

on freight cars. FRA recognizes that the

freight car inspection requirements are

not easily applicable to many types of

passenger equipment because the

wheels on such equipment cannot be

spun freely or manually rotated.

Therefore, FRA is modifying the

provisions contained in paragraph (d)(1)

to allow the inspection of the roller

bearings on derailed passenger

equipment to be in accordance with the

railroad’s procedures for handling

defective equipment. The APTA PRESS

Maintenance Committee is currently in

the process of developing a standard

regarding the inspection, testing, and

maintenance of cars that have derailed,

to serve as a guide to all passenger

railroads. FRA expect railroads to adopt

those procedures or incorporate similar

procedures for handling derailed

equipment and will enforce those

procedures that are adopted.

Paragraph (d)(2) has also been slightly

modified to incorporate the

recommendations proposed by APTA in

its petition. This paragraph requires that

a roller bearing be disassembled from

the axle and inspected internally if any

one of the four enumerated conditions

exists. The modifications being made to

this paragraph clarify that an on-track

rolling test of the wheel set will be

considered sufficient to meet the

requirement that the wheel set be spun

freely. As noted above, the wheels on

many types of passenger equipment

cannot be spun freely; thus, alternate

method of inspection is necessary. FRA

also adopts APTA’s suggestion to

require disassembly of the roller bearing

if the truck on the equipment was

dragged on the ground for more than

100 feet, which is more stringent than

the 200-foot threshold contained in the

final rule.

FRA finds the concerns raised by the

TWU in its petition regarding the

inadequacies of the final rule provisions

relating to the movement of defective

passenger equipment to be based on a

general misunderstanding of the

provisions contained both in this part

and in 49 CFR part 215. The TWU

generally asserts that the movement

restrictions of the final rule need to be

modified to be at least as restrictive as

the requirements contained in part 215

regarding the movement of defective

freight cars. The petition also asserts

that qualified persons should not be

allowed to make any of the

determinations required in this section

and that on-site personnel should not be

permitted to relay information to

qualified personnel via radio.

In FRA’s view, the provisions

contained in the final rule of part 238

regarding the movement of defective

equipment are in many ways more

stringent than the requirements related

to freight cars contained in part 215. For

example, a passenger car found with a

defect in the running gear (which

include virtually all of the components

addressed in part 215) may not be

moved in passenger service from the

point where the car receives a calendar

day mechanical inspection and may

only be used in passenger service until

its next calendar day mechanical

inspection if such a condition is found

en route and the car is properly tagged.

Whereas, a freight car containing a part

215 defect could potentially be used in

freight service under part 215 from

subsequent mechanical inspections and

could remain in use for numerous days

and for hundreds of miles, provided the

car is properly tagged.

FRA also believes that the TWU’s

objection to the final rule allowance that

a ‘‘qualified person’’ may approve the

continued use of a defective passenger

vehicle is somewhat misplaced. The

final rule only permits a ‘‘qualified

person’’ to authorize the continued use

of a vehicle with a non-running-gear

defect, which is a defective condition

that does not affect the mechanical

operation of the equipment and is

generally a defect in the interior of the

vehicle that is specific to a passenger

car. The final rule requires that the

continued use of a vehicle containing a

running gear defect (defects similar to

those addressed in part 215) must be

authorized by a ‘‘qualified maintenance

person.’’ Furthermore, the clarifications

contained in this document establish

that a ‘‘qualified person’’ must receive

specific training covering the tasks he or

she is deemed qualified to perform.

FRA also believes that the TWU’s

request for elimination of the final rule

provisions permitting on-site personnel

to relay information to qualified

personnel (QMP or QP) regarding

defective equipment ignores the reality

of current passenger operations and fails

to acknowledge the fact that

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41295

mechanical-type personnel are not

readily available at every location on a

railroad’s line of road. Moreover,

requiring passenger trains to sit at

locations until qualified personnel can

physically arrive to inspect the

equipment is not prudent in many cases

and could endanger the passengers on

both the train waiting to be inspected

and on trailing trains. Furthermore,

when such off-site determinations are

made, the final rule allows that the

equipment with running gear defects be

moved only to the next forward location

where the equipment can be inspected

by a QMP to verify the description of

the defect provided by the on-site

personnel.

It should also be noted that prior to

the issuance of the final rule there were

no Federal requirements addressing the

inspection of mechanical components

on passenger equipment or limitations

on the movement of passenger

equipment with defective mechanical

components. FRA’s general intent when

issuing the final rule was to capture the

best practices of the industry with

regard to the inspection and testing of

passenger equipment and attempt to

codify current best practices with regard

to the movement of defective

equipment, which have generally

proven to be safe and effective. Thus,

FRA did not intend to impose every

requirement applicable to the inspection

and movement of freight equipment in

a rule designed for passenger

operations, nor did it view such a

requirement as necessary.

Section 238.19 Reporting and Tracking

of Repair to Defective Passenger

Equipment

A conforming change is being made to

paragraph (a) of this section to indicate

that the requirements contained in the

section do not become applicable until

January 1, 2002. As noted previously, by

letter dated September 30, 1999, FRA

extended the period of time by which

railroads must adopt training programs

and train their workforces under the

final rule to December 31, 2001.

Consequently, this modification is

consistent with the date by which a

railroad is required to complete the

training of its employees. The title of

this section has also been slightly

modified to clarify the purpose of the

requirements contained in this section.

Paragraph (a)(2) of this section is

being slightly modified in order to

clarify the information which must be

retained in the reporting and tracking

system. The modification clarifies that

the date that a defective condition is

discovered must be included in the

retained information. FRA recognizes

that the final rule requirement to record

the date on which the defect occurred

would be impossible to determine in

many instances and it was not FRA’s

intent to require the recording of that

information. Rather, FRA intended that

the date on which the defective

condition was discovered by the

railroad to be recorded and has

modified the final rule language

accordingly.

Subpart B—Safety Planning and

General Requirements

Section 238.107 Inspection, Testing,

and Maintenance Plan

A conforming change is being made to

paragraph (a) of this section to indicate

that the requirements contained in the

section do not become applicable until

January 1, 2002. As noted previously, by

letter dated September 30, 1999, FRA

extended the period of time by which

railroads must adopt training programs

and train their workforces under the

final rule to December 31, 2001.

Consequently, this modification is

consistent with the date by which a

railroad is required to complete the

training of its employees.

Section 238.109 Training,

Qualification, and Designation Program

Paragraphs (a) and (b) of this section

are being amended in accordance with

FRA’s letter dated September 30, 1999,

addressed to representatives of APTA

and Amtrak in response to their

petitions for reconsideration of the

provisions contained in this section.

APTA and Amtrak petitioned for

reconsideration of this section as

providing an insufficient time for

railroads to establish and implement

training programs. APTA’s petition

notes that several commuter railroads

will be unable to comply because of the

large number of employees that must be

trained. According to the petition, it

will take up to three years to administer

the training programs to these railroads’

current employees and one year initially

to prepare and validate the training

courses. The APTA petition specifically

references the potential impact on the

Long Island Rail Road, and on July 27,

1999, FRA received a letter describing

the potential impact on this railroad.

The Long Island Rail Road and Amtrak

submissions both raise logistical

concerns associated with implementing

the training programs because of their

large workforces.

APTA’s petition further states that to

efficiently and effectively meet the

three-year refresher training

requirement in the final rule, railroads

need to provide the new training

program to one-third of their workforce

every year. The petition notes that if

railroads initially train more than that

percentage in one year, they must

retrain that same percentage of their

workforce every third year, resulting in

an inefficient training workload now

and in the future. For this reason and

the others discussed above, the petitions

request that FRA allow railroads 48

months from the date of the publication

of the final rule to adopt training

programs and train their workforces as

required by this section.

The final rule recognizes the

interrelationship between the proper

training of railroad personnel and the

implementation of the inspection,

testing, and maintenance and movement

of defective equipment provisions

contained in the final rule. See 64 FR

25575. In order for railroads to comply

with the requirements related to the

inspection, testing, and maintenance

requirements and the requirements

regarding the movement of defective

equipment, the railroads must first be

provided a sufficient amount of time to

develop and implement proper training

programs. The final rule further states

that the process of developing training

programs or modifying existing

programs to meet the requirements of

the final rule should be completed

within a year, and that railroads will

need several months to a year to rotate

their employees through the programs

in order not to disrupt the operation of

their railroads. Accordingly, the final

rule provided railroads with 26 months

from the date of publication of the final

rule to develop and train their

employees as required by the rule.

After carefully considering the

submitted petitions, FRA responded to

the petitions in a letter dated September

30, 1999. In that letter, FRA agreed to

extend the date by which railroads must

adopt training programs and train their

workforces under the final rule to no

later than December 31, 2001. Paragraph

(a) of this section has been amended to

reflect this extension. In that letter, FRA

noted that its principal concern in

granting any additional time to railroads

is delaying the date by which the final

rule’s inspection, testing, and

maintenance requirements must apply.

In particular, there are now generally no

Federal inspection, testing, and

maintenance requirements for exterior

and interior (non-brake) mechanical

components of passenger cars, and

consequently no immediate regulatory

means for FRA to ensure that such

components meet minimum levels of

safety.

In the September 30, 1999 letter, FRA

made clear that the chief objective of the

41296 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

training requirements contained in this

section is to ensure that the appropriate

passenger railroad employees and

contractors understand the Federal

inspection, testing, and maintenance

requirements as they relate to their

involvement with railroad passenger

equipment. FRA believed that the

additional two years, requested in the

petitions, to implement the training

requirements requested was not

necessary since the focus of the required

training is to be on the Federal

inspection, testing, and maintenance

requirements, not on voluntary railroad

or industry standards. FRA also noted

that, with the exception of newly

emerging passenger railroads, passenger

railroads are not starting from a blank

slate to train their workforces. Passenger

railroads should already have training

programs in place, and these training

programs could be adapted to include

the training specifically required by this

section. Furthermore, both the APTA

inspection, testing, and maintenance

standards, and those FRA inspection,

testing, and maintenance standards

required under this part, are based on

the current best practices of the

passenger railroad industry. Neither

arose from a vacuum.

In FRA’s response letter, FRA

recognized that some of the specific

requirements contained in this section

could be easily misunderstood to cover

inspection, testing, and maintenance

tasks not required by part 238—such as

those tasks required only under an

APTA or Amtrak maintenance standard.

This was not FRA’s intent when issuing

the final rule. Therefore, FRA noted that

it would amend the language contained

in this section to clarify that the focus

of the training required in this section

is on the Federal inspection, testing, and

maintenance requirements for passenger

equipment in this part. Consequently,

paragraph (a) and paragraphs (b)(1)

through (b)(7) have been slightly

modified in order to clarify that the

focus of the training required under this

section is the Federal requirements

related to the inspection, testing, and

maintenance of passenger equipment.

The September 30, 1999, letter also

responded to the concerns of APTA,

Amtrak, and the Long Island Rail Road

regarding the issue of refresher training.

In the letter, FRA agreed that it would

amend the refresher training interval

contained in the final rule to alleviate

the concern that large portions of a

railroad’s workforce would be required

to undergo refresher training under this

section in the same year due to

condensing the initial training period to

less than three years. FRA noted that the

final rule would have permitted

refresher training to be conducted at

intervals of less than three years and

thus, provide railroads with the ability

to accelerate their retaining of some

employees to relieve workforce

allocation issues. However, FRA

believes that it is more important for

passenger railroads to initially train

their workforces pursuant to the

requirements of this section and direct

their resources in this regard, rather

than be immediately concerned with the

need to provide refresher training soon

after the initial training is completed.

Therefore, FRA stated that it would

amend the final rule to allow those

individuals trained by no later than

December 31, 2001, pursuant to this

section, not to undergo their first

refresher training until four years after

the completion of their original training.

Thereafter, such individuals would be

required to undergo refresher training at

an interval not to exceed three years, as

currently provided in the final rule.

FRA also made clear, that for

individuals trained after December 31,

2001, under this section, (e.g., new

hires) the refresher training interval

would remain at three years as provided

in the final rule. Consequently,

paragraph (b)(11) has been amended to

include the extension of the first

refresher training cycle for employees

initially trained prior to January 1, 2002.

One concern raised by APTA in its

petition for reconsideration, which was

not addressed in FRA’s response letter,

is the issue of the transferability of an

individual’s training credentials from

one railroad to another either in the

context of the individual changing his

or her employer or working for multiple

railroads while remaining in the employ

of only one railroad. Nothing in the final

rule prohibits a railroad from utilizing

training provided to one of its

employees by another railroad in order

to qualify that employee. In FRA’s view,

the previous training would have to

cover the tasks and equipment for

which the employee will have

responsibility on the ‘‘successor’’

railroad and the previous training

would have to be adequately

documented by the training railroad,

such documentation provided to the

‘‘successor’’ railroad, and maintained by

the ‘‘successor’’ railroad. Furthermore,

the transferring employee’s period for

refresher training would start to run

from the time of the employee’s

previous training received on the other

railroad.

Subpart C—Specific Requirements for

Tier I Passenger Equipment

Section 238.231 Brake System

This section contains general brake

system performance requirements that

apply on or after September 9, 1999, to

Tier I passenger equipment except as

otherwise provided. APTA, in its

petition for reconsideration, states that

this section fails to make clear if the

requirements in this section apply to

new or existing equipment, or both.

APTA believes that, while most

equipment will meet the performance

requirements in this section, applying

new design requirements to existing

equipment invariably causes problems

and may result in a number of waiver

requests to FRA. FRA’s intent when

issuing the final rule was to require the

provisions contained in this section to

apply to all Tier I passenger equipment,

both existing and new, unless otherwise

specifically stated to be applicable only

to new equipment. Except as discussed

below, FRA is not aware of any existing

passenger equipment which would not

meet the requirements contained in this

section nor does APTA’s petition

provide any indication of equipment

that could not meet the requirements. If

such equipment exists, FRA would

expect necessary modification to be

made to the equipment or appropriate

waivers to be submitted to FRA for its

consideration.

FRA acknowledges that the provisions

related to the operation and design of

locomotives equipped with blended

brakes contained in paragraph (j) should

have been applicable only to new

locomotives. Although there is no

existing documentation or information

available to FRA to indicate that

existing locomotives would not meet the

requirements of paragraph (j)(1)-(j)(3) of

this paragraph, verification that existing

locomotives meet the requirements

could be very expensive and time

consuming. Compliance with paragraph

(j)(4) may be problematic for some

equipment designs and this is an

important reason for insisting on

appropriate maintenance of dynamic

brakes. Furthermore, there are other

requirements contained both in this

section and in this part which ensure

that a train’s primary braking system is

capable of stopping a train within the

existing signal spacing (§ 238.231(a))

and that the dynamic brakes on

locomotives are operational within a

very short time of being discovered

defective (§ 238.303(e)(15)).

Consequently, FRA has amended

paragraph (j) to clarify that it applies

only to new locomotives equipped with

blended braking systems. Narrowing the

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41297

application of this provision will allow

proper testing to be conducted when the

equipment is being designed and

assembled.

A new paragraph (h)(3) is being added

in order to clarify the general

requirements related to the use of hand

brakes found in paragraphs (h)(1) and

(h)(2) of this section. Because the final

rule contains specific provisions

requiring passenger equipment to be

equipped with hand brakes, FRA

believes that the addition of the existing

general requirements regarding their use

constitutes a clarifying amendment to

the hand brake requirements. FRA’s

inclusion of specific provisions

requiring passenger equipment to be

equipped with hand brakes establishes

FRA’s intent that those hand brakes are

to be used in at least the same manner

as required under the existing

regulations. The provisions contained in

this paragraph merely incorporate the

existing general requirements related to

the setting and releasing of hand brakes

and will impose no additional burden

on the railroads. See 49 CFR 232.13(f).

The language has been slightly modified

from that contained in the existing

regulations for purposes of clarity.

Paragraph (m) of this section is being

modified in response to Amtrak’s

petition, which asserts that it currently

permits trains to operate with up to two

cars in the consist being operated in

direct release mode while the rest of the

train operates in graduated release

mode. It is also FRA’s understanding

that the direct release cars operated by

Amtrak in this fashion are hauled at the

rear of the train. The reason Amtrak

hauls cars in this manner is because

some vehicles it operates in its

passenger trains are equipped with AB

type brake valves which can be operated

only in a direct release mode. Thus,

under the final rule the hauling of just

one of these cars would require the rest

of the train to be changed over to a

direct release mode. FRA is not aware

of any safety issues that have arisen

from Amtrak’s current method of

operation and agrees with Amtrak’s

assertion that operation in this manner

would not affect the stopping distance

of a train. Furthermore, FRA’s intent

when including this provision in the

final rule was to incorporate the current

best practices of Amtrak and its

operation of express equipment.

Consequently, paragraph (m) is

modified to allow no more than two cars

to be operated in direct release mode

when the rest of the train is operated in

graduated release mode provided those

cars are hauled at the rear of the train.

A new paragraph (n) is added to this

section to include the existing

procedures for eliminating the presence

of compressed air in a vehicle’s brake

system prior to adjusting piston travel or

working on brake rigging. As FRA is

clarifying the requirements related to

excessive piston travel and to adjusting

piston travel while performing Class I

brake tests, FRA believes, that for

purposes of clarity and to avoid

misunderstandings, it is also necessary

to include the existing basic procedures

that are to be undertaken prior to

making such adjustments. These

procedures address the safety of

employees responsible for making

piston travel or brake rigging

adjustments by ensuring that the brake

system or brake system components on

which they will be working are void of

all compressed air. The procedures

contained in this new paragraph are

currently contained in the existing

power brake regulations and are

currently part of virtually every

railroad’s operating and inspection

practices. See 49 CFR 232.12(j).

Therefore, no new burden is being

created by FRA’s retention of these

existing provisions.

A new paragraph (o) is added to this

section to clarify and alert the operators

of passenger trains that they may be

required to comply with the provisions

requiring the use of a two-way end-oftrain device (EOT) contained in part 232

of this chapter. This addition is merely

for the purpose of clarity. The

provisions regarding two-way EOTs are

currently applicable to certain passenger

train operations, and the inclusion of

this paragraph is not intended to expand

the applicability of those provisions but

merely to inform passenger train

operators of their potential applicability.

Amtrak raised an issue in its petition

regarding the requirements contained in

paragraph (h)(1) for equipping new

locomotives with a hand or parking

brake. Amtrak sought clarification as to

whether a pneumatically operated

parking brake would meet the manual

application and release requirements of

this paragraph. Amtrak’s petition did

not provide a specific description or

design of the pneumatically operated

parking brake for which it sought

clarification. A pneumatically operated

parking brake would meet the

requirements of this section if it were

designed to permit the manual

application and release of the brake in

some fashion. The ability to manually

apply or release the brake would not

have to be the primary means of

applying or releasing the brake, but

manual capability must be available if

necessary.

Subpart D—Inspection, Testing, and

Maintenance Requirements for Tier I

Passenger Equipment

Section 238.301 Scope

A conforming change is being made to

paragraph (b) of this section to indicate

that the requirements contained in

subpart D do not become applicable

until January 1, 2002. As noted

previously, by letter dated September

30, 1999, FRA extended the period of

time by which railroads must adopt

training programs and train their

workforces under the final rule to

December 31, 2001. Consequently, this

modification is consistent with the date

for when a railroad is required to

complete the training of its employees.

Section 238.303 Exterior Calendar Day

Mechanical Inspection of Passenger

Equipment

Paragraph (b) of this section regarding

the performance of exterior mechanical

inspections on cars added to a passenger

train is being modified in response to

petitions filed by APTA and AAPRCO.

Both these parties contend that the

requirement to perform an exterior

mechanical inspection at the time a

passenger car or private car is added to

a train is overly burdensome and

unnecessary. They contend that at many

locations where such cars are added to

trains there is not a QMP available to

perform such an inspection. They also

note that there is currently no

requirement to perform such an

inspection when cars are added a

passenger train and there has been no

indication of any safety hazard being

caused by this practice. Furthermore,

they assert that the final rule already

requires that a car added to a train must

receive an exterior mechanical

inspection sometime on the day on

which it is added to the train. APTA

also contends that passenger equipment

used on commuter operations do not sit

for long periods on sidings, no more

than a weekend at most, and other cars

that are in trains that remain together

but not used over a weekend are not

required to receive such an inspection

before they are used; thus, the rule lacks

consistency.

After consideration of the petitions

received, FRA believes that there is a

significant difference between

traditional passenger equipment hauled

by most commuter and intercity

operations and the express and

intermodal equipment being hauled by

some passenger trains. FRA agrees that

the need to mechanically inspect

traditional passenger equipment and

private cars immediately upon their

being added to a train is not as great as

41298 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

when express or freight-type cars are

added to a train. Currently, when

traditional passenger equipment and

private cars are added to a passenger

train, there is no requirement to conduct

a mechanical inspection, and at many

locations such inspections are not

performed. FRA has found no indication

of safety being compromised by these

practices and agrees that requiring such

an inspection could have significant

cost implications to some operations.

Furthermore, FRA agrees that traditional

passenger equipment is less prone to

developing mechanical defects than is

freight equipment because the passenger

equipment is not switched in and out of

trains as often and does not undergo the

rigors inherent to the loading and

unloading of freight equipment.

Moreover, any equipment added to a

passenger train that does not receive a

mechanical inspection when added will

be required to receive an exterior

mechanical inspection sometime during

that calendar day on which the car is

added to the train. Consequently, the

final rule has been amended to permit

traditional passenger cars and private

cars to be added to a train without

receiving an exterior mechanical

inspection under this section, provided

that the vehicle had received an exterior

mechanical inspection pursuant to this

section on the last day it was used in

passenger service and the train crew

operating the train to which the vehicle

is added is notified of the date, time,

and location of that inspection.

However, the current practice within

the industry is to conduct thorough

mechanical inspections on express cars,

intermodal equipment (e.g.,

RoadRailers’’), and other freight-type

equipment at the time it is added to a

passenger train. Furthermore, this type

of equipment is relatively new, and its

performance history is not as clear as

traditional passenger equipment.

Moreover, FRA also agrees that this type

of equipment carries a greater potential

of developing exterior mechanical

defects because this equipment is

subject to the more frequent switching

and the stresses of loading and

unloading inherent in its use.

Consequently, the final rule requirement

that these types of cars must receive an

exterior mechanical inspection pursuant

to this section at the time they are added

to a train unless they received such an

inspection within the previous calendar

day is retained. In such circumstances,

the train crew must be notified of the

date, time, and location where the

previous exterior mechanical inspection

was performed.

As noted above, paragraph (b) of the

final rule has also been modified to

clarify that the train crew must be

notified of the date, time, and location

where the previous exterior mechanical

inspection was performed in order to

add a car without performing an exterior

mechanical inspection at the time it is

added to a train. The final rule merely

stated that the train crew must be

provided ‘‘documentation’’ of the

previous mechanical inspection. See 64

FR 25617, 25678. However, as APTA

correctly asserts in its petition, the final

rule does not indicate how or in what

form the documentation is to be

provided. To clarify the issue, FRA is

amending the final rule to indicate that

the train crew must be notified of the

date, time, and location that the

previous exterior mechanical inspection

was performed on the vehicle in order

to be excepted from the requirement to

perform a mechanical inspection at the

time the vehicle is added to the train.

FRA intends to make clear that this

notification may be provided in any

format that best suits the railroad’s

operation. Thus, for example, the

notification may be either written,

electronic, or by radio.

Paragraph (e)(7)(ii) has been slightly

modified in response to APTA’s petition

which asserts that the final rule

requirement that each friction side

bearing not run in contact unless

designed to carry weight fails to

recognize the design of some passenger

equipment. APTA claims that this

requirement fails to recognize passenger

equipment, such as Metra gallery cars,

which are designed to operate in contact

but to carry no weight. FRA agrees that

the final rule fails to cover this type of

equipment, which was not FRA’s intent

when issuing the final rule. When

issuing the final rule, FRA did not

realize that the side bearings on some

passenger equipment are designed to

operate in contact but carry no weight.

Consequently, FRA is modifying the

final rule to require that the friction side

bearings do not run in contact unless

designed to operate in that manner. FRA

believes this amended language permits

the use of equipment with friction side

bearings designed to operate in contact

but carry no weight, while also

prohibiting the use of equipment that is

not designed to operate with friction

side bearings in contact unless the

equipment is designed to carry weight.

Paragraph (e)(8)(x) has also been

slightly modified to clarify the

requirement contained in that paragraph

in response to Amtrak’s petition. In its

petition, Amtrak contends that

paragraphs (e)(8)(iii) and (e)(8)(x) of the

final rule appear to be in conflict

because paragraph (e)(8)(iii) allows

some leeway when a break in a rim

exists based on the width of the tread;

whereas, (e)(8)(x) would make any break

in the rim condemnable. Paragraph

(e)(8) of the final rule contains a listing

of wheel conditions that would render

a wheel defective. The conditions

contained in this paragraph are identical

to the wheel conditions identified in

part 229 related to locomotives. See 49

CFR 229.75. FRA agrees with the

comments provided by Amtrak, and will

modify paragraph (e)(8)(x) to clarify that

the language contained in the provision

related to cracks or breaks in the rim of

a wheel is intended to be limited by the

language contained in paragraph

(e)(8)(iii) regarding breaks in the rim of

a wheel. Paragraph (e)(8)(x) is intended

to cover situations where there is a

crack in the rim of a wheel which may

not constitute a break under

subparagraph (iii). This would include

thermal and other cracks that do not

actually result in the rim being broken.

Paragraph (e)(15) of this section is

being amended in response to a petition

for reconsideration submitted by APTA

requesting that defective dynamic

brakes on an MU locomotive not be

considered a running gear defect

pursuant to the movement of defective

equipment provisions contained in

§ 238.17. APTA contends that the

restrictions imposed in the final rule

treating dynamic brakes on MU

locomotives as running gear defects will

create equipment shortages on some

passenger operations because

equipment found with defective

dynamic brakes would not be permitted

to continue in service until repaired.

APTA asserts that FRA’s treatment of

these brake systems is inconsistent with

FRA’s discussions in the final rule

regarding blended braking systems and

dynamic brakes on conventional

locomotives. APTA requests that MU

locomotives discovered with defective

dynamic brakes be permitted to

continue in service to their next exterior

calendar day inspection. APTA

contends that thermal damage to the

wheels on these vehicles will not occur

in such a short period of time.

After consideration of APTA’s

petition, FRA agrees that the final rule

requirements related to defective

dynamic brakes on MU locomotives

may have the potential to create certain

operational difficulties on some

railroads that were not envisioned by

FRA when issuing the final rule.

Although FRA continues to believe that

extended use of an MU locomotive with

defective dynamic brakes significantly

increases the potential for causing

thermal stress to the wheels of the

vehicle, FRA must agree that there is no

evidence showing that use of an MU

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41299

locomotive with no dynamic brakes for

a short period of time (less than 48

hours) will result in thermal stress to

the wheels. Consequently, the final rule

is being amended specifically to include

requirements for the handling of MU

locomotives discovered with defective

dynamic brakes. The amended

provisions are similar to the final rule

provisions regarding conventional

locomotives in that both sets of

provisions require locomotives

discovered with defective dynamic

brakes to be conspicuously tagged in the

cab of the locomotive and require the

locomotive engineer to be notified in

writing that the dynamic brakes on the

locomotive are inoperative. A copy of

the required tag will meet the

requirement for written notification.

The amendment to the final rule will

accept APTA’s recommendation and

will allow MU locomotives discovered

with dynamic brakes to continue in

service until the locomotive’s next

exterior mechanical inspection. Thus, if

an MU locomotive’s dynamic brakes are

discovered defective during the

performance of an exterior calendar day

inspection mechanical inspection, it

may continue to be used in passenger

service until the performance of the

locomotive’s next exterior calendar day

mechanical inspection under this part,

provided it is properly tagged and the

locomotive engineer informed of the

defective condition in writing.

Similarly, if an MU locomotive is

discovered to have inoperative dynamic

brakes while en route, it may continue

to be used in passenger service only

until its next exterior calendar day

inspection is required to be performed

and the tagging and notification

requirements noted above would apply.

FRA believes that the flexibility

provided by these modifications is

consistent with the recommendations of

APTA and is sufficient to allow a

railroad to arrange for appropriate

repairs to be made to the locomotives

without interrupting or significantly

impacting the service it provides to the

public.

A new paragraph (e)(16) has been

added in response to petitions

submitted by APTA and Amtrak

requesting elimination of the 92-day

periodic mechanical inspection

contained in § 238.307 of the final rule.

As discussed in detail below, FRA is

granting APTA’s and Amtrak’s petition

and thus, is moving some of the

inspection requirements contained in

the 92-day periodic mechanical

inspection to the exterior and interior

calendar day mechanical inspections.

APTA’s petition suggested that the

roller bearing inspection requirements

contained in the 92-day periodic

inspection be moved to the exterior

calendar day inspection. FRA accepts

this suggestion and thus, this new

paragraph contains the roller bearing

inspection requirements previously

contained in § 238.307(c)(6) of the final

rule. See 64 FR 25681.

A technical change has been made to

paragraph (g)(2)(iv) of this section to

clarify the nature of the record that must

be retained regarding the performance of

exterior mechanical inspections. The

final rule requires that the signature of

the inspector was to be part of the

record; however, the final rule

specifically allows the record to be

maintained electronically. Thus, FRA’s

intent when issuing the final rule was

to allow some type of electronic

signature or electronic identification to

serve as the inspector’s signature. In

order to avoid confusion, this paragraph

has been modified to clarify that the

signature or some type of electronic

identification of the inspector must be

included in the required record.

The TWU’s petition objects to the

exterior mechanical inspection

provisions contained in the final rule

contending that the provisions do not

meet or are not as stringent as the

requirements contained in 49 CFR part

215 related to the mechanical inspection

of freight cars and thus, do not ensure

the safety of the traveling public. FRA

disagrees with this assessment for

several reasons. First, it should be noted

that no Federal requirements currently

exist regarding the mechanical

inspection of passenger equipment.

However, most passenger railroad

operations conduct mechanical

inspections on their equipment and

these practices have generally ensured

the safety of the equipment. Thus, the

rule’s intent was to capture and codify

the current best industry practices

related to the mechanical inspection of

passenger equipment.

Secondly, the mechanical inspection

provisions contained in the final rule

cover many of the same mechanical

components addressed in part 215 and

further require that an exterior

mechanical inspection be performed on

passenger equipment by a highly

qualified inspector every calendar day

that the equipment is in service.

Whereas, under part 215, freight

equipment is only required to be

mechanically inspected when the

equipment is added to a train and the

inspection may or may not be performed

by a highly qualified inspector. See 49

CFR 215.13 and Appendix D to part 215.

Thus, in the freight context a car may

be used for multiple days without

receiving any additional mechanical

inspection but the one it received when

being added to the train. Therefore,

although the mechanical inspection

requirements of the final rule are not

identical to those contained in part 215,

FRA believes they are equally if not

more stringent than those contained in

part 215 and are more than sufficient to

ensure the safety of passenger train

operations. Finally, as discussed in

detail above, FRA believes that the

movement restrictions imposed by the

final rule on passenger equipment

containing a mechanical defect are

comparable to the restrictions placed on

freight equipment containing similar

defects under part 215.

Section 238.305 Interior Calendar Day

Mechanical Inspection of Passenger

Cars

Paragraph (c) is being modified and a

new paragraph (d) is being added in

response to petitions filed by APTA and

Amtrak requesting modification of the

movement provisions related to certain

‘‘minor’’ interior defects and their

request that the 92-day periodic

mechanical inspection be eliminated.

APTA and Amtrak assert that the

interior stenciling, marking, vestibule

lighting provisions, and the

requirements relating to trap doors and

seats should not be treated as stringently

as other non-running gear defects under

the movement of defective equipment

provisions contained in § 238.17 of the

final rule. These parties contend that

equipment containing conditions not in

compliance with the above noted

requirements should be permitted to be

moved out of an interior calendar day

inspection without having the car

locked out and empty as the final rule

requires. They request that the

equipment be permitted to remain in

passenger service until the vehicle’s

next interior mechanical inspection.

APTA asserts that requiring equipment

with these ‘‘minor’’ defects to be locked

out and empty will actually create more

safety problems than it solves.

According to APTA, the final rule

requirement would require passengers

to be crowded on to fewer cars and

would result in more passengers

standing in the aisles and in vestibules,

creating environments where more

injuries are likely to occur.

FRA tends to agree with the concerns

raised by both APTA and Amtrak and is

reorganizing paragraph (c) to allow

equipment with certain non-complying

interior conditions to remain in

passenger service if the non-complying

conditions are discovered during an

interior calendar day mechanical

inspection. The non-complying

conditions to which FRA is extending

41300 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

some flexibility include the

requirements related to stenciling and

marking, trap doors, vestibule

illumination, and doors. A new

paragraph (d) contains provisions for

allowing equipment with these noncomplying conditions to remain in

passenger service and requires certain

determinations to be made by a

qualified person or QMP prior to

continuing the equipment in service and

that a record be maintained of the noncomplying condition. Although the

intent of the final rule was to generally

have mechanical inspections conducted

at locations where all necessary repairs

could be conducted, FRA recognizes

that some interior inspections may be

conducted at outlying locations or at a

location lacking the necessary parts or

components to fix a particular defective

condition. However, in order to remain

consistent with the general intent of the

final rule, paragraph (d) requires a

qualified person or QMP to determine

that the necessary repairs cannot be

made at the time the interior mechanical

inspection is performed. FRA believes

that if the necessary repairs can be

conducted with the equipment and

supplies available, and within the time

available, the repairs should be made.

In addition to the requirements

contained in paragraph (d), paragraph

(c) contains specific requirements based

on the defective condition involved

when continuing certain equipment in

passenger service after being found in

non-compliance during an interior

calendar day mechanical inspection.

The additional conditions are intended

to ensure the safety of passengers and

are attached to the requirements related

to the continued used of non-complying

trap doors, vestibule lighting, and doors.

The additional requirements attached to

the continued use of a car with a

defective door are the same as those

contained in the final rule. FRA intends

to make clear that the restrictions and

flexibility permitted in paragraphs (c)

and (d) are only applicable to

equipment found with a non-complying

condition discovered at an interior

calendar day mechanical inspection.

Interior non-complying conditions that

are discovered while a piece of

equipment is en route, must be handled

in accordance with the provisions for

such en route defects contained in

§ 238.17 of the final rule. Although FRA

believes some leeway should be

provided when certain non-complying

conditions are discovered at the time

that an interior mechanical inspection is

being performed, FRA believes that the

railroad should be able to take adequate

steps to ensure that equipment found

with non-complying conditions while

en route are moved to locations where

necessary repairs can be performed

either prior to or at the next required

interior mechanical inspection.

Paragraph (c) has also been modified

to include a provision which was part

of the 92-day periodic mechanical

inspection contained in § 238.307(c) of

the final rule. This modification is being

made in response to petitions submitted

by APTA and Amtrak requesting

elimination of the 92-day periodic

mechanical inspection. As discussed in

detail below, FRA is granting APTA’s

and Amtrak’s petition and thus, is

moving some of the inspection

requirements contained in the 92-day

periodic mechanical inspection to the

exterior and interior calendar day

mechanical inspections. APTA’s

petition suggested that the requirements

related to the condition of floors on

passenger cars contained in the 92-day

periodic inspection be moved to the

exterior calendar day inspection. FRA

accepts this suggestion and thus,

paragraph (c) contains the inspection

requirements related to floors

previously contained in § 238.307(c)(1)

of the final rule. See 64 FR 25680.

A technical change has been made to

the paragraph redesignated as paragraph

(f)(2)(iv) of this section to clarify the

nature of the record that must be

retained regarding the performance of

interior mechanical inspections. The

final rule requires that the signature of

the inspector was to be part of the

record; however, the final rule

specifically allows the record to be

maintained electronically. Thus, FRA’s

intent when issuing the final rule was

to allow some type of electronic

signature or electronic identification to

serve as the inspector’s signature. In

order to avoid confusion, this paragraph

has been modified to clarify that the

signature or a unique electronic

identification of the inspector must be

included in the required record.

The TWU again objects to the final

rule’s provision which allows a

qualified person to perform the interior

mechanical inspection required by this

section. The TWU contends that the

determination of who is considered to

be a qualified person is left totally to the

discretion of the railroad and thus,

recommends that a QMP be required to

perform these inspections. FRA

continues to disagree with the

contention raised by the TWU. FRA

believes that the clarifications made to

the definition of ‘‘qualified person,’’

discussed in detail above, address the

concerns of TWU and ensure that

properly trained individuals perform

these inspections. Furthermore, the final

rule made clear that FRA’s original

position was to require the interior

inspections to be performed by qualified

maintenance persons. However, after

several discussions with members of the

Working Group and several other

representatives of passenger railroads,

FRA determined that the training and

experience typical of QMPs is not

necessary and often does not apply to

inspecting interior safety components of

passenger equipment. In addition, the

flexibility created by permitting

someone less qualified than a qualified

maintenance person can reduce the cost

of performing the mechanical safety

inspection since the most economical

way to accomplish the mechanical

inspection is to combine the exterior

inspection with the Class I brake test,

and then have a crewmember inspect on

arrival at the final terminal or have a

trained coach cleaner combine the

interior coach inspection with coach

cleaning. Moreover, the type of

components being inspected during an

interior mechanical inspection do not

affect the general operation of the train

and do not require the extensive

knowledge of the interrelationship

between the mechanical components or

brake system components that would be

necessary when performing an exterior

mechanical inspection or Class I brake

test.

Section 238.307 Periodic Mechanical

Inspection of Passenger Cars and

Unpowered Vehicles Used in Passenger

Trains

This section has been amended in

response to petitions submitted by

APTA and Amtrak regarding the final

rule requirement to conduct periodic

mechanical inspections at a 92-day

interval. Both APTA and Amtrak

contend that the industry does not

currently inspect passenger equipment

at this interval. Some railroads

periodically inspect their equipment

more frequently and many inspect their

equipment on a less frequent basis. Both

petitioners note that FRA did not

propose a 92-day inspection interval in

the NPRM and believe that the increase

in the frequency of such inspection is

unjustified and inconsistent with

current industry practice. APTA

contends that the final rule requirement

to conduct a 92-day periodic

mechanical inspection will seriously

impact equipment utilization and will

require its member railroads to purchase

approximately 30–60 new passenger

coaches in order to have a sufficient

number of replacement units available

when cars are removed from service to

have the inspection performed. The

purchase of these replacement units will

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41301

cost the industry approximately $45–90

million dollars. Amtrak also

recommends that periodic intervals of

180 days and 365 days be provided for

RoadRailer and express cars,

respectively, due to the fact that they are

less complicated than other types of

passenger equipment and their safety

record does not justify more frequent

periodic mechanical inspections.

In the final rule, FRA made clear that

its adoption of the 92-day periodic

mechanical inspection interval was an

attempt to incorporate the current

practices of the industry. See 64 FR

25620. When issuing the final rule FRA

believed that railroads were conducting

periodic mechanical inspection at

cycles that were less than 92 days. After

review of the petitions, it appears that

several railroads conduct periodic

mechanical inspections and

maintenance at intervals which are

greater than 92 days. As it was not

FRA’s intention to significantly alter the

current inspection practices when

proposing the 92-day periodic interval,

FRA grants the petitions of APTA and

Amtrak to the extent that they request

elimination of the 92-day periodic

mechanical inspection interval. Thus,

the final rule is being amended, as

requested by the petitioners, by

eliminating the 92-day periodic

inspection and requiring a 184-day

periodic mechanical inspection interval

similar to that proposed in the NPRM.

See 62 FR 49809. Therefore, many of the

components required by the final rule to

be inspected on a 92-day basis are being

moved to a 184-day cycle and the

requirements related to the inspection of

passenger car floors and roller bearings

are being moved to the exterior calendar

day inspection provisions as discussed

above. Consequently, paragraph (c) of

this section is being modified to require

periodic mechanical inspection of

passenger equipment at 184-day

intervals.

Two of the requirements contained in

paragraph (c) are also being modified in

response to Amtrak’s petition seeking

clarification of the periodic inspection

requirements related to draft gears and

center casting on trucks. Amtrak

contends that the final rule is unclear as

to what steps must be taken to ensure

that these two components are in proper

condition. Amtrak seeks clarification

that the requirement that center castings

are not cracked or broken does not

require that the cars be jacked and the

trucks rolled out. Amtrak also seeks

clarification that the determination that

a car’s draft gear is not broken does not

require the dropping of the cover plates

under the car. Amtrak contends that

imposition of either of these procedures

will greatly increase the cost of

performing periodic mechanical

inspections. As it was not FRA’s intent

to require the extensive type of

inspections that Amtrak details in its

petition, the final rule is amended to

clarify that cover plates do not need to

be dropped when inspecting draft gears

and that cars do not need to be jacked

and trucks rolled out when determining

whether center castings are broken at

the periodic mechanical inspection.

Although FRA believes that the most

effective method of determining

whether center casting on trucks are

cracked or broken is to jack the car and

roll out the truck, FRA recognizes the

cost and time implications of requiring

such an inspection every 184 days.

However, FRA believes this type of

extensive inspection should be

performed periodically. Consequently,

in accordance with the recommendation

made by APTA in its petition, the final

rule is amended to require this

extensive inspection of a truck center

casting at the COT&S cycle provided in

§ 238.309 for the vehicle. FRA believes

this is an opportune time in which to

conduct this inspection and will impose

the least burden on the railroads.

It should be noted that FRA is not

granting APTA’s petition as it relates to

the extension of the inspection of

couplers. APTA’s petition requested

extension of the inspection requirement

regarding the distance between coupler

guard arm and the knuckle nose to a

period consistent with a vehicle’s

COT&S interval. APTA contends that in

order to conduct this inspection cars

must be uncoupled and that the final

rule requirement to conduct this

inspection every 184 days will require

unnecessary uncoupling of train

consists that rarely experience

undesired partings. Although FRA

recognizes the impact of the inspection

requirement, FRA finds no reason to

extend the interval related to this

inspection requirement and believes

that railroads will not be substantially

affected by retaining the final rule

interval. Furthermore, in response to the

NPRM, APTA requested that the coupler

inspection requirements be moved to

the periodic mechanical inspection

interval, which FRA did in the final

rule. See 64 FR 25561, 25620, 25681.

FRA will not now extend the inspection

interval further without credible data

showing that the component will not

fail between the periodic inspection

interval. In paragraph (b) of this section

in the final rule, FRA provided railroads

the option to develop alternative

intervals for performing inspections for

specific components or equipment

based on a more quantitative reliability

assessment completed as part of their

system safety programs. The final rule

contained a detail discussion regarding

a railroad’s use of reliability

assessments to change the periodic

inspection intervals contained in the

final rule. See 64 FR 25621–22, 25680,

and 25704–05. Individual railroads may

want to pursue the extension of the

coupler inspection requirement through

this approach.

The requirement related to the

inspection of seats and seat attachments

which will be contained in paragraph

(c)(1) of this modified section is

amended to include provisions for

moving equipment discovered with

non-complying seats or seat

attachments. FRA agrees with the

general statements of Amtrak and APTA

that this interior component should not

be handled in the same manner as other

non-running gear defects pursuant to

§ 238.17 of the final rule. FRA agrees

that it makes no sense to lock-out an

entire car when only one seat is found

broken or loose, which can be isolated

and rendered unuseable without

impacting the safety of the people

traveling on the train. Although FRA

believes that defective seats should be

repaired as soon as possible, FRA

recognizes that repairs to this

component may be more difficult in

some circumstances than the repairs

required to fix other interior

components. FRA also agrees that the

safety impacts of locking-out an entire

car is probably greater than the safety

impacts of allowing passengers on a car

with a seat that is rendered unuseable.

Thus, separate requirements related to

the handling of equipment found with

non-complying seats or seat attachments

are being included in this paragraph.

This paragraph permits a car that is

found with a non-complying seat to be

used in passenger service until the

performance of an interior calendar day

mechanical inspection on the day

following the discovery of the defective

condition, provided the seat is rendered

unuseable, a notice is prominently

displayed on the seat, and a record is

maintained with the date and time that

the non-complying condition was

discovered.

A technical change has been made to

the paragraph redesignated as paragraph

(e)(1) of this section to clarify the nature

of the record that must be retained

regarding the performance of interior

mechanical inspections. The final rule

requires that the signature of the

inspector was to be part of the record;

however, the final rule specifically

allows the record to be maintained

electronically. Thus, FRA’s intent when

41302 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

issuing the final rule was to allow some

type of electronic signature or electronic

identification to serve as the inspector’s

signature. In order to avoid confusion,

this paragraph has been modified to

clarify that the signature or some type

of electronic identification of the

inspector must be included in the

required record. This paragraph has also

be reorganized, with no substantive

change, in order to bring it into

conformity with the record keeping

provisions contained in other sections

of the final rule.

Section 238.309 Periodic Brake

Equipment Maintenance

Paragraph (d) of this section is being

modified in response to Amtrak’s

petition seeking recognition of its

current practice of performing periodic

brake system maintenance on

equipment equipped with AB, ABD,

ABDX, and equivalent brake systems.

Amtrak contends that AB-type brake

valves have proven very reliable and

that there is no COT&S cycle for these

types of brake valves in freight

operations. Amtrak asserts that it has

over 450 cars equipped with AB-type

brake systems and because such brake

systems are not a 26–C or equivalent

brake system the final rule would

impose a three year COT&S

maintenance interval on these cars.

Amtrak contends that it has conducted

COT&S on these types of brake systems

on a six-year cycle since 1982 and this

interval has proven safe and reliable.

Thus, Amtrak asserts that reducing the

COT&S interval for these vehicles

would result in a significant cost burden

to the railroad with no safety

justification for such a reduction.

FRA agrees with Amtrak’s concerns

and is granting its petition as it relates

to this issue. When issuing the final

rule, it was FRA’s intent to incorporate

existing industry practices as they relate

to the performance of COT&S on

passenger equipment. At that time, FRA

staff working on this rulemaking were

not aware that Amtrak operated some

vehicles equipped with AB-type brake

systems. FRA agrees that the current

COT&S interval of six years conducted

on this type of equipment has proven

safe and reliable. Consequently, the

final rule is amended to provide a six

year COT&S interval for passenger

coaches and other unpowered vehicles

equipped with AB-type brake systems.

It should be noted that the BRC’s

petition generally asserts that increases

in the time interval for COT&S provided

in the final rule have not been bolstered

by significant safeguards for dry air. The

rationale for the COT&S intervals

provided in the final rule are fully

explained in the section-by-section

analysis related to this section in the

final rule. FRA points out that the

extension of the COT&S interval related

to MU locomotives draws a distinction

between locomotive fleets that are 100

percent equipped with air dryers and

those locomotive fleets that are not so

equipped. The preamble to the final rule

also explains that virtually all of the

required COT&S intervals are based on

extensive tests or previous waivers

granted by FRA for which service

experience has been satisfactory. See 64

FR 25622–23.

Section 238.311 Single Car Test

Paragraph (e)(1) of this section is

being modified in response to

AAPRCO’s petition seeking an

exception for private cars from the

requirement to perform a single car test

on any vehicle which is placed in

service after being out of service for 30

days or more. AAPRCO contends that

the final rule requirement contained in

this paragraph imposes a significant cost

to the owners of private cars. They

assert that private cars are used on an

occasional basis in many instances and

may sit for months in between trips.

Furthermore, they contend that the cost

and availability of locations where

single car tests can be performed on a

private car makes the requirement

overly burdensome to private car

owners. The AAPRCO contends that the

yearly single car test required by Amtrak

during the annual inspection of a

private car is sufficient to ensure the

integrity of the brake systems on such

equipment. FRA agrees with the

concerns raised by AAPRCO in its

petition. Consequently, FRA is

amending the final rule to exclude

private cars from the requirement to

have a single car test performed when

such a car is placed in service after

being out of service for 30 days or more.

Section 238.313 Class I Brake Test

Paragraph (c) of this section regarding

the performance of a Class I brake test

on cars added to a passenger train is

being modified in response to petitions

filed by APTA and AAPRCO. Both these

parties contend that the requirement to

perform a Class I brake test at the time

a passenger vehicle is added to a train

is overly burdensome and unnecessary.

They contend that at many locations

where such cars are added to trains

there is not a QMP available to perform

such an inspection. They also note that

under current regulations when cars are

added to a passenger train only an

intermediate-type brake test is required

on the cars being added. Furthermore,

they assert that the final rule requires

that cars added to a train must receive

a Class I brake test sometime during the

day in which they are added to the

train. APTA also notes that FRA’s

treatment of cars being added to a train

is more stringent than the current and

final rule requirements for cars

departing on the first run of the day that

are already entrained. Under the final

rule cars in a train may depart on their

first run of the day with only a Class IA

brake test being performed.

Consequently, these petitioners request

that cars added to a train be permitted

to be added after the performance of a

Class I or Class IA brake test.

After consideration of the petitions

received, FRA believes that the final

rule requirement that a Class I brake test

be performed on cars added to a

passenger train is overly burdensome

and somewhat inconsistent with the

current regulatory provision when

equipment is added to a passenger train.

FRA agrees that the final rule

requirement that a Class I brake test be

performed when the equipment is

added to a train is inconsistent with the

requirements related to performing a

Class IA brake test prior to the first run

of a train on any given calendar day.

FRA also recognizes that equipment

may be added to a passenger train at a

location where a QMP is not readily

available to perform a Class I brake test.

Furthermore, any equipment added to a

passenger train that does not receive a

Class I brake test when added to a train

is required to receive a Class I brake test

sometime during that calendar day on

which the car is added to the train.

Moreover, FRA believes that a Class IA

brake test, although performed by a

person likely to be less qualified than a

QMP, generally ensures that the brake

system on a piece of equipment operates

as intended. Consequently, the final rule

has been amended to require that when

a vehicle is added to a train it must

receive either a Class I or Class IA brake

test unless the vehicle had received a

Class I brake test pursuant to this

section within the previous calendar

day, has not been off a source of

compressed air for more than four hours

prior to being added to the train, and the

train crew operating the train to which

the vehicle is added is notified of the

date, time, and location of that

inspection.

As noted above, paragraph (c) of the

final rule has also been modified to

clarify that the train crew must be

notified of the date, time, and location

where the previous Class I brake test

was performed in order to add a vehicle

to a train without performing either a

Class I or Class IA brake test at the time

it is added to a train. The final rule

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41303

merely stated that the train crew must

be provided ‘‘documentation’’ of the

previous brake test. See 64 FR 25682.

However, as APTA correctly asserts in

its petition, the final rule does not

indicate how or in what form the

documentation is to be provided. To

clarify the issue, FRA is amending the

final rule to indicate that the train crew

must be notified of the date and time

that the previous Class I brake test was

performed on the vehicle and the

location where that inspection was

performed on the vehicle in order to be

excepted from the requirement to

perform a Class I or Class IA brake test

at the time the vehicle is added to the

train. FRA intends to make clear that

this notification may be provided in any

format that best suits the railroad’s

operation. Thus, the notification may be

either written, electronic, or via radio

communication.

A clarifying change is being made to

paragraph (g) of this section to explain

that a Class I brake test is to be

performed at the air pressure at which

the train will be operated but not less

than 90 psi. Although the final rule did

not contain this specific requirement,

FRA believes that it was understood that

all the brake tests in this part were to

be performed at either the pressure at

which the train would be operated or 90

psi, whichever is greater, and it is

currently standard industry practice to

perform brake tests at these pressures.

Consequently, in order to prevent any

confusion or misunderstanding, the

final rule is being amended to

specifically state that the brake test is to

be performed at the pressure at which

the train will be operated or at 90 psi,

whichever is greater.

Paragraph (g)(3) is being modified in

response to the petition submitted by

the TWU, which indicated that some

confusion exists regarding what

constitutes an effective brake. In order

to prevent misunderstandings and avoid

confusion, the final rule is being

modified to clarify the difference

between Class I brake test piston travel

limits and the piston travel limits at

which a brake will be considered not to

be effective. As part of this clarification,

the existing piston travel requirements

related to the performance of initial

terminal inspections on vehicles

equipped with 81⁄2-inch and 10-inch

diameter brake cylinders, currently

contained at § 232.12(f), are being added

to this paragraph. Although these piston

travel limits and adjustment

requirements were not specifically

included in the final rule, it was clearly

FRA’s intent to have the requirements

remain in effect for passenger

equipment containing such brake

systems. FRA believes this modification

also clarifies the definition of ‘‘effective

brake’’ by making clear that although a

car may be found with piston travel that

exceeds the Class I brake test limits, and

that piston travel must be adjusted at a

Class I brake test, such excess travel

does not render the brakes inoperative

until the piston travel exceeds the

outside limits established for that

particular type of piston design.

However, piston travel that exceeds the

applicable Class I brake test limits

would be considered a defective

condition if the piston travel were not

adjusted at the time that a Class I brake

test was performed, and would be

considered a partial failure to perform a

Class I brake test pursuant to

§ 238.313(g). FRA also believes that the

modifications being made to this

paragraph more clearly delineate how

the brakes are to be inspected during the

performance of a Class I brake test.

The language added to this paragraph

clarifies that if the piston travel on a

standard 12-inch stroke brake cylinder

is found to be more than 9 inches or less

than 7 inches of piston travel at the time

that a Class I brake test is performed, it

must be adjusted to nominally 71⁄2

inches. It should be noted that this

adjustment requirement is slightly

different from the existing 7-inch

nominal adjustment requirement.

However, this change is consistent with

the requirements proposed by FRA in

the 1998 NPRM related to brake system

safety standards for freight and other

non-passenger trains and equipment.

See 63 FR 48340, 48363. The change is

based on a request from the industry to

change the nominal adjustment for these

brake cylinders to 71⁄2 inches from 7

inches because several railroads were

finding it extremely difficult to adjust

piston travel to precisely 7 inches and

that in some cases the adjustment would

be marginally less than 7 inches and,

thus, require readjustment. Therefore, in

order to provide a small measure for

error when adjusting piston travel, FRA

proposed that the adjustment be

changed to nominally 71⁄2 inches for

freight equipment containing these

types of brake systems. FRA believes

this same margin for error should be

extended to passenger equipment

containing a similar brake system and,

thus, has incorporated the change in

this paragraph.

Paragraphs (g)(4) and (g)(15) are being

modified in response to petitions

submitted by Amtrak and AAPRCO.

Both these parties seek clarification of

the final rule requirement that the

communicating signal system is tested

and known to be operating as intended

and the requirement that the

communication of brake pipe pressure

changes at the rear of the train is

verified. These parties assert that the

requirement regarding operation and

testing of the communicating signal

system should either be deleted or

clarified to acknowledge that a tested

and operating two-way radio system

meets the requirement. Amtrak notes

that it has not maintained the electric

feature in the communication train line

because the railroad uses radios carried

by train crew members to serve the same

function. Amtrak also seeks clarification

of the requirement to verify

communication of brake pipe pressure

changes at the rear of the train to permit

this requirement to be met through

observation of the application and

release of the brakes on the rear car of

the train. Amtrak seeks this clarification

to ensure that an air gauge is not

required at the rear of passenger trains,

which would be consistent with the

existing regulations.

FRA supports the positions discussed

above and believes that there is nothing

in the final rule to indicate that the

practices discussed above would not

meet the requirements contained in the

final rule. In fact, it was FRA’s intent to

consider a tested and operated two-way

radio system to meet the requirement in

paragraph (g)(4) of the final rule as well

as to permit visual observation of the

application and release of the rear car to

serve as a method for verifying that

proper communication of brake pipe

changes at the rear of the train under

paragraph (g)(15), which is currently

permitted. However, in order to avoid

confusion or misunderstanding, the

final rule is being modified to

acknowledge acceptance of the practices

discussed above.

Paragraph (g)(11) of this section is

being slightly modified in response to a

petition submitted by the TWU. In its

petition, the TWU requests modification

of the definitions of ‘‘bind’’ and ‘‘foul,’’

contending that the definitions of these

terms fail to address every possible

condition that could affect the proper

operation of a brake system. FRA

believes that the conditions noted by

TWU as not being covered by these

definitions are sufficiently covered by

the definition of ‘‘effective brake’’

contained in the final rule. See 64 FR

25661. Thus, even though a condition

may not cause a brake to ‘‘bind’’ or

‘‘foul,’’ the condition would cause the

brake not to be an ‘‘effective brake’’ as

defined in the final rule. In order to

fully address TWU’s concerns, FRA is

modifying the language contained in

paragraph (g)(11), regarding the

operation of the brake rigging, to

include language that the rigging or

41304 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

system mounted on a car for

transmission of the braking force

operates as intended and does not bind

or foul. This modification is intended to

clarify that even though a condition may

not cause the brake rigging to ‘‘bind’’ or

‘‘foul,’’ the condition could cause the

brake not to operate as intended and,

thus, render the brake ineffective.

Paragraph (h) of this section is being

amended in order to make the record

keeping requirements pertaining to

Class I brake tests consistent with the

record keeping requirements applicable

to mechanical inspections addressed in

§§ 238.303 through 238.307. Rather than

specifically requiring that a written

record of the performance of a Class I

brake test be maintained in the cab of

the controlling locomotive, FRA

believes that a railroad should be

allowed to maintain records in a fashion

that best suits their operations and that

the record keeping requirements related

to inspections, mechanical and brake, be

consistent. FRA also believes that the

provisions must be revised to allow

railroads to take advantage of existing

and developing technologies regarding

the electronic maintenance and

retention of records. Consequently, this

paragraph is being amended to make it

consistent with the record keeping

provisions applicable to the

performance of mechanical inspections.

The petitions of the BRC and the

TWU raise general objections to FRA’s

renaming of the various brake

inspections and departing from the

terminology used in the current

regulations, and also object to an

approach which allows major brake

tests to be performed anytime during a

calendar day. As these parties raised

these same objections when both the

ANPRM and the NPRM were issued,

FRA believes that the issues have been

fully addressed in the preambles to the

NPRM and the final rule. See 62 FR

49737–39, 64 FR 25563, and 25624–28.

Contrary to the contentions of these

parties, FRA does not believe that the

final rule’s designation of the brake

inspections as Class I, Class IA, and

Class II in any way conflicts with

previous case law regarding the

inspection of passenger equipment. FRA

continues to believe that the

classifications contained in the final

rule clearly delineate what is required at

each inspection, better clarify when

each inspection is to be performed, and

avoid the potential confusion caused by

the terminology used in the present

regulations.

Section 238.315 Class IA Brake Test

A clarifying change is being made to

paragraph (f) of this section to explain

that a Class IA brake test is to be

performed at the air pressure at which

the train will be operated. This

clarifying change is identical to the

change made in § 238.313 regarding

Class I brakes tests. Although the final

rule did not contain this specific

requirement, FRA believes that it was

understood that all the brake tests in

this part were to be performed at this

pressure, and it is standard industry

practice to perform brake tests at the

pressure at which a train will be

operated. Consequently, in order to

prevent any confusion or

misunderstanding, the final rule is being

amended to specifically state that the

brake test is to be performed at the

pressure at which the train will be

operated.

Paragraphs (f)(5) and (f)(6) of this

section are being slightly modified in

order to conform with the clarifying

changes being made with regard to the

Class I brake test requirements. The

modifications made in these paragraphs

clarify that the requirement to have a

tested and operating communicating

signal system may be met by having a

tested and operating two-way radio

system, and that verification that brake

pipe changes are being communicated at

the rear of the train may be

accomplished through observation of

the application and release of the brakes

on the rear car of the train. These

clarifying changes are identical to the

changes made in § 238.313(g)(4) and

(g)(15) discussed above.

The TWU’s petition raises the same

objection to allowing the use of brake

indicators as was raised in the TWU’s

response to the NPRM. The TWU again

asserts that brake indicators should not

be permitted to be used to perform a

brake inspection because they are prone

to malfunction and do not prove a true

indication as to whether the brakes

operate as intended. In the final rule,

FRA acknowledged the concerns raised

by various commenters regarding the

use of piston travel indicators and

agreed that indicators do not provide

100 percent certainty that the brakes are

effective. However, FRA noted that

brake system piston travel or piston

cylinder pressure indicators have been

used with satisfactory results for many

years and that the indicators have

proven themselves effective enough to

be preferable to requiring an inspector

to assume a dangerous position.

Moreover, the use of a brake indicator

is only permitted to be relied on to aid

in the performance of a Class IA brake

test when such an inspection is required

to be performed at a location where it

is impossible or hazardous to the safety

of the inspector to physically observe

the application and release of the

brakes.

Section 238.317 Class II Brake Test

Paragraph (d)(1) of this section is

being modified in order to clarify the

method by which a railroad must verify

that the brakes on the rear car of a train

apply and release in response to signals

from the engineer’s brake valve when

conducting a Class II brake test. The

second clause of this paragraph has

been slightly modified to acknowledge

that a gauge ‘‘or similar device’’ at the

rear of the train indicates that brake

pipe pressure changes are properly

communicated. FRA is adding the

words ‘‘or similar device’’ in order to

clarify that an indicator that provides a

positive indication regarding the

increase and decrease in brake pipe

pressure at the rear car may be utilized

to meet this requirement in lieu of direct

observation of the application and

release of the brakes on the rear car in

a train.

Paragraph (d)(3) of this section is

being slightly modified in order to

conform with the clarifying changes

being made with regard to the Class I

and Class IA brake test requirements.

The modification made in this

paragraph clarifies that the requirement

to have a tested and operating

communicating signal system may be

met by having a tested and operating

two-way radio system. This clarifying

change is identical to the changes made

in § 238.313(g)(4) and § 238.315(f)(6)

discussed above.

Appendix A to Part 238—Schedule of

Civil Penalties

Appendix A to this part contains the

schedule of civil penalties to be used in

connection with this part. Conforming

changes are being made to the schedule

of civil penalties based on the changes

being made to the final rule discussed

in detail above.

Regulatory Impact

Executive Order 12866 and DOT

Regulatory Policies and Procedures

This response to petitions for

reconsideration of the final rule has

been evaluated in accordance Executive

Order 12866 and DOT policies and

procedures. Although the final rule met

the criteria for being considered a

significant rule under those policies and

procedures, the amendments contained

in this response to petitions for

reconsideration of the final rule are not

considered significant because they

either clarify requirements currently

contained in the final rule or allow for

greater flexibility in complying with the

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41305

rule. The economic impact of the

amendments and clarifications

contained in this response to petitions

for reconsideration will generally

reduce the cost of compliance with the

rule. However, the cost reduction will

be of a minimal nature and does not

alter FRA’s original analysis of the costs

and benefits associated with the original

final rule.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980

(5 U.S.C. 601 et seq.) requires a review

of rules to assess their impact on small

entities. FRA certifies that this response

to petitions for reconsideration does not

have a significant impact on a

substantial number of small entities.

Because the amendments contained in

this document either clarify

requirements currently contained in the

final rule or allow for greater flexibility

in complying with the rule, FRA has

concluded that there are no substantial

economic impacts on small units of

government, businesses, or other

organizations.

Paperwork Reduction Act

This response to petitions for

reconsideration of the final rule does

not change any of the information

collection requirements contained in the

original final rule.

Environmental Impact

FRA has evaluated this response to

petitions for reconsideration of the final

rule in accordance with its ‘‘Procedures

for Considering Environmental Impacts’’

(FRA Procedures)(64 FR 28545, May 26,

1999) as required by the National

Environmental Policy Act (42 U.S.C.

4321 et seq.), other environmental

statutes, Executive Orders, and related

regulatory requirements. FRA has

determined that this document is not a

major FRA action (requiring the

preparation of an environmental impact

statement or environmental assessment)

because it is categorically excluded from

detailed environmental review pursuant

to section 4(c) of FRA’s Procedures.

Federalism Implications

FRA believes it is in compliance with

Executive Order 13132. Because the

amendments contained in this response

to petitions for reconsideration of the

final rule either clarify requirements

currently contained in the final rule or

allow for greater flexibility in complying

with the rule, this document will not

have a substantial effect on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. This response to

petitions for reconsideration of the final

rule will not have federalism

implications that impose any direct

compliance costs on State and local

governments.

List of Subjects

49 CFR Part 215

Freight, Penalties, Railroad safety,

Reporting and recordkeeping

requirements.

49 CFR Part 220

Penalties, Radio, Railroad safety,

Reporting and recordkeeping

requirements.

49 CFR Part 238

Passenger equipment, Penalties,

Railroad safety, Reporting and

recordkeeping requirements.

The Rule

PART 215—[AMENDED]

1. The authority citation for part 215

is revised to read as follows:

Authority: 49 U.S.C. 20103, 20107; 28

U.S.C. 2461, note; and 49 CFR 1.49.

2. Section 215.3 is amended by

adding a new paragraph (c)(4) to read as

follows:

§ 215.3 Application.

* * * * *

(c) * * *

(4) Operated in a passenger train and

that is inspected, tested, maintained,

and operated pursuant to the

requirements contained in part 238 of

this chapter.

PART 220—[AMENDED]

3. The authority citation for part 220

is revised to read as follows:

Authority: 49 U.S.C. 20102–20103, 20107,

21301–21302, 21304, 21311; 28 U.S.C. 2461,

note; and 49 CFR 1.49.

4. Section 220.5 is amended by

revising the definition of Train to read

as follows:

§ 220.5 Definitions.

* * * * *

Train means one or more locomotives

coupled with or without cars, requiring

an air brake test in accordance with 49

CFR part 232 or part 238, except during

switching operations or where the

operation is that of classifying and

assembling rail cars within a railroad

yard for the purpose of making or

breaking up trains.

* * * * *

PART 238—[AMENDED]

5.–6. The authority citation for part

238 is revised to read as follows:

Authority: 49 U.S.C. 20103, 20107, 20133,

20141, 20302–20303, 20306, 20701–20702;

28 U.S.C. 2461, note; and 49 CFR 1.49.

Subpart A—General—[Amended]

7. Section 238.1(c) is revised to read

as follows:

§ 238.1 Purpose and scope.

* * * * *

(c) Railroads to which this part

applies shall be responsible for

compliance with all of the requirements

contained in §§ 238.15, 238.17, 238.19,

238.107, 238.109, and subpart D of this

part effective January 1, 2002.

* * * * *

8. Section 238.5 is amended by

adding a definition for Actuator, and

revising the definitions for Brake,

effective, Primary responsibility,

Qualified person, and Running gear

defect to read as follows:

§ 238.5 Definitions.

* * * * *

Actuator means a device directly

actuated by the movement of the brake

cylinder piston which provides an

indication of the piston travel.

* * * * *

Brake, effective means a brake that is

capable of producing its required

designed retarding force on the train. A

brake is not effective if its piston travel

is in excess of the maximum prescribed

limits. On vehicles equipped with

nominal 12-inch stroke brake cylinders,

the brake is not effective if its piston

travel exceeds 101⁄2 inches.

* * * * *

Primary responsibility means the task

that a person performs during at least 50

percent of the time that the person is

working. The totality of the

circumstances will be considered on a

case-by-case basis in circumstances

where an individual does not spend 50

percent of his or her workday engaged

in any one readily identifiable type of

activity. Time spent supervising

employees engaged in the functions of

troubleshooting, inspection, testing,

maintenance, or repair of train brake

and mechanical components and

systems covered by this part shall be

considered work which is generally

consistent with the function of

troubleshooting of such systems and

components for the purpose of the

definition of this term and the definition

of ‘‘Qualified Maintenance Person.’’

* * * * *

41306 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

Qualified person means a person who

has received, as a part of the training,

qualification, and designation program

required under § 238.109, instruction

and training necessary to perform one or

more functions required under this part.

The railroad is responsible for

determining that the person has the

knowledge and skills necessary to

perform the required function for which

the person is assigned responsibility.

The railroad determines the

qualifications and competencies for

employees designated to perform

various functions in the manner set

forth in this part. Although the rule uses

the term ‘‘qualified person’’ to describe

a person responsible for performing

various functions required under this

part, a person may be deemed qualified

to perform some functions but not

qualified to perform other functions. For

example, although a person may be

deemed qualified to perform the Class II

brake test required by this part, that

same person may or may not be

qualified to perform the Class IA brake

test or authorize the movement of

defective equipment under this part.

The railroad will determine the required

functions for which an individual will

be deemed a ‘‘qualified person’’ based

upon the instruction and training the

individual has received pursuant to

§ 238.109 on a particular function.

* * * * *

Running gear defect means any

condition not in compliance with this

part which involves a truck component,

a draft system component, a wheel, or

a wheel component.

* * * * *

9. Section 238.15 is amended by

revising the first sentence of the

introductory text, paragraphs (b),

introductory text, (c), introductory text,

(c)(2), introductory text, (d)(1)(ii),

(d)(1)(iv), and (d)(1)(iv)(C) to read as

follows:

§ 238.15 Movement of passenger

equipment with power brake defects.

Beginning on January 1, 2002, the

following provisions of this section

apply to railroads operating Tier I

passenger equipment covered by this

part. * * *

* * * * *

(b) Limitations on movement of

passenger equipment containing a

power brake defect at the time a Class

I or IA brake test is performed. Except

as provided in paragraph (c) of this

section (which addresses brakes that

become defective en route after a Class

I or IA brake test was performed), a

commuter or passenger train that has in

its consist passenger equipment

containing a power brake defect at the

time that a Class I or IA brake test (or,

for Tier II trains, the equivalent) is

performed may only be moved, without

civil penalty liability under this part—

***

* * * * *

(c) Limitations on movement of

passenger equipment in passenger

service that becomes defective en route

after a Class I or IA brake test. Passenger

equipment hauled or used in service in

a commuter or passenger train that

develops inoperative or ineffective

power brakes or any other power brake

defect while en route to another location

after receiving a Class I or IA brake test

(or, for Tier II trains, the equivalent)

may be hauled or used by a railroad for

repair, without civil penalty liability

under this part, if the applicable

operating restrictions set forth in

paragraphs (d) and (e) of this section are

complied with and all of the following

requisites are satisfied:

* * * * *

(2) Record. A tag or card is placed on

both sides of the defective passenger

equipment, or an automated tracking

system is provided, with the following

information about the defective

passenger equipment:

* * * * *

(d) * * *

(ii) For trains equipped with only

tread brake units (TBUs), the percentage

of operative power brakes shall be

determined by dividing the number of

operative TBUs by the total number of

TBUs in the train.

* * * * *

(iv) The following brake conditions

not in compliance with this part do not

render power brakes inoperative for

purposes of this calculation:

* * * * *

(C) Piston travel that is in excess of

the Class I brake test limits required in

§ 238.313 but that does not exceed the

maximum prescribed limits for

considering the brakes to be effective;

and

* * * * *

10. Section 238.17 is amended by

revising the first sentence of the

introductory text, paragraphs (b),

introductory text, (c), introductory text,

(d)(1), (d)(2)(ii), and (d)(2)(iv) to read as

follows:

§ 238.17 Movement of passenger

equipment with other than power brake

defects.

Beginning on January 1, 2002, the

following provisions of this section

apply to railroads operating Tier I

passenger equipment covered by this

part. * * *

* * * * *

(b) Limitations on movement of

passenger equipment containing defects

found at time of calendar day

inspection. Except as provided in

§§ 238.303(e)(15), 238.305(c) and (d),

and 238.307(c)(1), passenger equipment

containing a condition not in

conformity with this part at the time of

its calendar day mechanical inspection

may be moved from that location for

repair if all of the following conditions

are satisfied: * * *

* * * * *

(c) Limitations on movement of

passenger equipment that develops

defects en route. Except as provided in

§§ 238.303(e)(15), 238.307(c)(1), and

238.503(f), passenger equipment that

develops en route to its destination,

after its calendar day mechanical

inspection is performed and before its

next calendar day mechanical

inspection is performed, any condition

not in compliance with this part, other

than a power brake defect, may be

moved only if the railroads complies

with all of the following requirements

or, if applicable, the special

requirements in paragraph (e) of this

section:

* * * * *

(d) Inspection of roller bearing on

equipment involved in a derailment.

(1) A railroad shall not continue

passenger equipment in service that has

a roller bearing whose truck was

involved in a derailment unless the

bearing has been inspected and tested in

accordance with the railroad’s

procedures for handling defective

equipment.

(2) * * *

(ii) It makes any unusual noise when

its wheel set is spun freely (an on-track

rolling test is acceptable) or when the

bearing is manually rotated;

(iii) * * *

(iv) Its truck was dragged on the

ground for more than 100 feet.

* * * * *

11. Section 238.19 is amended by

revising the section heading, the first

sentence of paragraph (a) and paragraph

(a)(2) to read as follows:

§ 238.19 Reporting and tracking of repairs

to defective passenger equipment.

(a) General. Beginning on January 1,

2002, each railroad shall have in place

a reporting and tracking system for

passenger equipment with a defect not

in conformance with this part. * * *

* * * * *

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41307

(2) The date the defect was

discovered;

* * * * *

Subpart B—Safety Planning and

General Requirements—[Amended]

12. The first sentence of § 238.107(a)

is revised to read as follows:

§ 238.107 Inspection, testing, and

maintenance plan.

(a) General. Beginning on January 1,

2002, the following provisions of this

section apply to railroads operating Tier

I passenger equipment covered by this

part. * * *

* * * * *

13. Section 238.109 is amended by

revising the first sentence of paragraph

(a), by revising paragraphs (b)(1)

through (b)(7) and paragraph (b)(11) to

read as follows:

§ 238.109 Training, qualification, and

designation program.

(a) Beginning on January 1, 2002, each

railroad shall have adopted a training,

qualification, and designation program

for employees and contractors that

perform any of the inspections, tests, or

maintenance required by this part, and

shall have trained such employees and

contractors in accordance with the

program. * * *

* * * * *

(b) As part of this program, the

railroad shall, at a minimum:

(1) Identify the tasks related to the

inspection, testing, and maintenance

required by this part that must be

performed on each type of equipment

that the railroad operates;

(2) Develop written procedures for the

performance of the tasks identified in

paragraph (b)(1) of this section;

(3) Identify the skills and knowledge

necessary to perform each task

identified in paragraph (b)(1) of this

section;

(4) Adopt a training curriculum that

includes classroom and ‘‘hands-on’’

lessons designed to impart the skills and

knowledge identified as necessary to

perform each task identified in

paragraph (b)(1) of this section. The

training curriculum shall specifically

address the Federal regulatory

requirements contained in this part that

are related to the performance of the

tasks identified;

(5) Require all employees and

contractors to successfully complete the

training course that covers the

equipment and tasks for which they are

responsible that are required by this part

as well as the specific Federal regulatory

requirements contained in this part

related to equipment and tasks for

which they are responsible;

(6) Require all employees and

contractors to pass a written

examination covering the equipment

and tasks for which they are responsible

that are required by this part as well as

the specific Federal regulatory

requirements contained in this part

related to equipment and tasks for

which they are responsible;

(7) Require all employees and

contractors to individually demonstrate

‘‘hands-on’’ capability to successfully

perform the tasks required by this part

that must be performed as part of their

duties on the type equipment to which

they are assigned;

* * * * *

(11) Require periodic refresher

training, at an interval not to exceed

three years, that includes classroom and

‘‘hands-on’’ training, as well as testing;

except, employees and contractors that

have completed their initial training

under this part prior to January 1, 2002,

shall not be required to complete their

first periodic refresher training until

four years after the completion of their

initial training, and every three years

thereafter;

* * * * *

Subpart C—Specific Requirements for

Tier I Passenger Equipment—

[Amended]

14. Section 238.231 is amended by

revising paragraphs (j), introductory

text, and (m) and by adding new

paragraphs (h)(3), (n), and (o) to read as

follows:

§ 238.231 Brake system.

* * * * *

(h) * * *

(3) The air brake shall not be

depended upon to hold equipment

standing unattended on a grade

(including a locomotive, a car, or a train

whether or not a locomotive is

attached). When required, a sufficient

number of hand brakes shall be applied

to hold the train or equipment before

the air brakes are released. Any hand

brakes applied to hold equipment shall

not be released until it is known that the

air brake system is properly charged.

* * * * *

(j) Locomotives ordered after

September 8, 2000, or placed in service

for the first time after September 9,

2002, that are equipped with blended

brakes shall be designed so that: * * *

* * * * *

(m) When a passenger train is

operated in either direct or graduated

release—

(1) all the cars in the train consist

shall be set up in the same operating

mode or

(2) up to two cars may be operated in

direct release mode when the rest of the

cars in the train are operated in

graduated release mode, provided that

the cars operated in direct release mode

are hauled at the rear of the train

consist.

(n) Before adjusting piston travel or

working on brake rigging, the cutout

cock in the brake pipe branch must be

closed and the air reservoirs must be

voided of all compressed air. When

cutout cocks are provided in brake

cylinder pipes, these cutout cocks may

be closed, and air reservoirs need not be

voided of all compressed air.

(o) All passenger trains to which this

part applies shall comply with the

requirements covering the use of twoway end-of-train devices contained in

part 232 of this chapter.

* * * * *

Subpart D—Inspection, Testing, and

Maintenance Requirements for Tier I

Passenger Equipment—[Amended]

15. Section 238.301 is amended by

revising the first sentence of paragraph

(b) to read as follows:

§ 238.301 Scope.

* * * * *

(b) Beginning on January 1, 2002, the

requirements contained in this subpart

shall apply to railroads operating Tier I

passenger equipment covered by this

part.* * *

* * * * *

16. Section 238.303 is amended by

revising paragraphs (b), (e)(7)(ii),

(e)(8)(x), (e)(15)(i), and (g)(2)(iv) and by

adding a new paragraph (e)(16) to read

as follows:

§ 238.303 Exterior calendar day

mechanical inspection of passenger

equipment.

* * * * *

(b) Each passenger car and each

unpowered vehicle added to a passenger

train shall receive an exterior calendar

day mechanical inspection in

accordance with the following:

(1) Except as provided in paragraph

(b)(2) of this section, each passenger car

and each unpowered vehicle added to a

passenger train shall receive an exterior

calendar day mechanical inspection at

the time it is added to the train unless

notice is provided to the train crew that

an exterior mechanical inspection was

performed on the car or vehicle on the

last day it was used in passenger

service. The notice required by this

section shall contain the date, time, and

41308 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

location of the last exterior mechanical

inspection;

(2) Each express car, freight car, and

each unit of intermodal equipment (e.g.,

RoadRailers) added to a passenger

train shall receive an exterior calendar

day mechanical inspection at the time it

is added to the train, unless notice is

provided to the train crew that an

exterior mechanical inspection was

performed on the car within the

previous calendar day. The notice

required by this section shall contain

the date, time, and location of the last

exterior mechanical inspection.

* * * * *

(e) * * *

(7) * * *

(ii) Each friction side bearing does not

run in contact unless designed to

operate in that manner; and

* * * * *

(8) * * *

(x) Except as provided in paragraph

(e)(8)(iii) of this section, a crack or break

in the flange, tread, rim, plate, or hub;

* * * * *

(15) * * *

(i) MU locomotives equipped with

dynamic brakes found not to be in

operating mode or containing a

defective condition which prevents the

proper operation of the dynamic brakes

shall be handled in accordance with the

following requirements:

(A) A tag bearing the words

‘‘inoperative dynamic brakes’’ shall be

securely displayed in a conspicuous

location in the cab of the locomotive

and contain the locomotive number, the

date and location where the condition

was discovered, and the signature of the

individual who discovered the

condition;

(B) The locomotive engineer shall be

informed in writing that the dynamic

brakes on the locomotive are inoperative

at the location where the locomotive

engineer first takes charge of the train;

and

(C) The inoperative or defective

dynamic brakes shall be repaired or

removed from service by or at the

locomotive’s next exterior calendar day

mechanical inspection.

* * * * *

(16) All roller bearings do not have

any of the following conditions:

(i) A sign of having been overheated

as evidenced by discoloration or other

telltale sign of overheating, such as

damage to the seal or distortion of any

bearing component;

(ii) A loose or missing cap screw;

(iii) A broken, missing, or improperly

applied cap screw lock; or

(iv) A seal that is loose or damaged or

permits leakage of lubricant in clearly

formed droplets.

* * * * *

(g) * * *

(2) * * *

(iv) The signature or electronic

identification of the inspector.

* * * * *

17. Section 238.305 is amended as

follows:

a. Paragraphs (d) and (e) are

redesignated as paragraphs (e) and (f).

b. A new paragraph (d) is added.

c. Paragraph (c) and redesignated

paragraph (f)(2)(iv) are revised. The

addition and revisions to § 238.305 read

as follows:

§ 238.305 Interior calendar day mechanical

inspection of passenger cars.

* * * * *

(c) As part of the interior calendar day

mechanical inspection, the railroad

shall verify conformity with the

following conditions, and

nonconformity with any such condition

renders the car defective whenever

discovered in service, except as

provided in paragraphs (c)(5) through

(c)(10), and paragraph (d) of this section:

(1) All fan openings, exposed gears

and pinions, exposed moving parts of

mechanisms, pipes carrying hot gases

and high-voltage equipment, switches,

circuit breakers, contactors, relays, grid

resistors, and fuses are installed in nonhazardous locations or equipped with

guards to prevent personal injury.

(2) Floors of passageways and

compartments are free from oil, water,

waste, or any obstruction that creates a

slipping, tripping, or fire hazard, and

floors are properly treated to provide

secure footing.

(3) All D rings, pull handles, or other

means to access manual door releases

are in place based on a visual

inspection.

(4) All emergency equipment,

including a fire extinguisher, pry bar,

auxiliary portable lighting, and first aid

kits, as applicable, are in place.

(5) The words ‘‘Emergency Brake

Valve’’ are legibly stenciled or marked

near each brake pipe valve or shown on

an adjacent badge plate.

(6) All doors and cover plates

guarding high voltage equipment are

marked ‘‘Danger—High Voltage’’ or with

the word ‘‘Danger’’ and the normal

voltage carried by the parts so protected.

(7) All safety-related signage is in

place and legible.

(8) All trap doors safely operate and

securely latch in place in both the up

and down position. A non-complying

car may continue in passenger service

pursuant to paragraph (d) of this

section, if the trap door can be secured

by locking out the door for which it is

used.

(9) All vestibule steps are illuminated.

A non-complying car may continue in

passenger service pursuant to paragraph

(d) of this section, if the car will be used

solely in high-platform service.

(10) All end doors and side doors

operate safely and as intended. A noncomplying car may continue in

passenger service pursuant to paragraph

(d) of this section, if at least one

operative and accessible door is

available on each side of the car; and a

notice is prominently displayed directly

on the defective door indicating that the

door is defective.

(d) Any passenger car found not to be

in compliance with the requirements

contained in paragraphs (c)(5) through

(c)(10) of this section at the time of its

interior calendar day mechanical

inspection may remain in passenger

service until the car’s next interior

calendar day mechanical inspection

where it must be repaired or removed

from passenger service; provided, all of

the specific conditions contained in

paragraphs (c)(8) through (c)(10) of this

section are met and all of the following

requirements are met:

(1) A qualified person or a qualified

maintenance person determines that the

repairs necessary to bring the car into

compliance cannot be performed at the

time that the current day’s interior

mechanical inspection is conducted;

(2) A qualified person or a qualified

maintenance person determines that it

is safe to move the equipment in

passenger service; and

(3) A record is maintained of the noncomplying condition with the date and

time that the condition was first

discovered.

* * * * *

(f) * * *

(2) * * *

(iv) The signature or electronic

identification of the inspector.

* * * * *

18. Section 238.307 is amended as

follows:

a. Paragraph (d) is removed,

b. Paragraphs (e) through (g) are

redesignated as paragraphs (d) through

(f) respectively, and

c. Paragraph (c) and redesignated

paragraph (e)(1) are revised to read as

follows:

§ 238.307 Periodic mechanical inspection

of passenger cars and unpowered vehicles

used in passenger trains.

* * * * *

(c) The periodic mechanical

inspection shall specifically include the

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41309

following interior and exterior

mechanical components, which shall be

inspected not less frequently than every

184 days. At a minimum, this

inspection shall determine that:

(1) Seats and seat attachments are not

broken or loose. If a car is found with

a seat that is not in compliance with this

requirement while being used between

periodic mechanical inspections, the

equipment may continue to be used in

passenger service until the performance

of an interior calendar day mechanical

inspection pursuant to § 238.305 on the

day following the discovery of the

defective condition provided the seat is

rendered unuseable, a notice is

prominently displayed on the seat, and

a record is maintained with the date and

time that the non-complying condition

was discovered.

(2) Luggage racks are not broken or

loose.

(3) All beds and bunks are not broken

or loose, and all restraints or safety

latches and straps are in place and

function as intended.

(4) A representative sample of

emergency window exits on the

railroad’s passenger cars properly

operate, in accordance with the

requirements of § 239.107 of this

chapter.

(5) Emergency lighting systems are

operational.

(6) With regard to switches:

(i) All hand-operated switches

carrying currents with a potential of

more than 150 volts that may be

operated while under load are covered

and are operative from the outside of the

cover;

(ii) A means is provided to display

whether the switches are open or

closed; and

(iii) Switches not designed to be

operated safely while under load are

legibly marked with the voltage carried

and the words ‘‘must not be operated

under load’’.

(7) Each coupler is in the following

condition:

(i) The distance between the guard

arm and the knuckle nose is not more

than 51⁄8 inches on standard type

couplers (MCB contour 1904), or not

more than 55⁄16 inches on D&E couplers;

(ii) The free slack in the coupler or

drawbar not absorbed by friction

devices or draft gears is not more than

1⁄2 inch; and

(iii) The draft gear is not broken, to

the extent possible without dropping

cover plates.

(8) All trucks are equipped with a

device or securing arrangement to

prevent the truck and car body from

separating in case of derailment.

(9) All center castings on trucks are

not cracked or broken, to the extent

possible without jacking the car and

rolling out the trucks. However, an

extensive inspection of all center

castings shall be conducted by jacking

the equipment and rolling out the trucks

at each COT&S cycle provided in

§ 238.309 for the equipment.

(10) All mechanical systems and

components of the equipment are free of

all the following general conditions that

endanger the safety of the crew,

passengers, or equipment:

(i) A continuous accumulation of oil

or grease;

(ii) Improper functioning of a

component;

(iii) A crack, break, excessive wear,

structural defect, or weakness of a

component;

(iv) A leak;

(v) Use of a component or system

under a condition that exceeds that for

which the component or system is

designed to operate; and

(vi) Insecure attachment of a

component.

(11) All of the items identified in the

exterior calendar day mechanical

inspection contained at § 238.303 are in

conformity with the conditions

prescribed in that section.

(12) All of the items identified in the

interior calendar day mechanical

inspection contained at § 238.305 are in

conformity with the conditions

prescribed in that section.

* * * * *

(e) Records. (1) A record shall be

maintained of each periodic mechanical

inspection required to be performed by

this section. This record may be

maintained in writing or electronically,

provided FRA has access to the record

upon request. The record shall be

maintained either in the railroad’s files,

the cab of the locomotive, or a

designated location in the passenger car.

The record shall be retained until the

next periodic mechanical inspection of

the same type is performed and shall

contain the following information:

(i) The date of the inspection;

(ii) The location where the inspection

was performed;

(iii) The signature or electronic

identification of the inspector; and

(iv) The signature or electronic

identification of the inspector’s

supervisor.

* * * * *

19. Section 238.309 is amended by

revising paragraph (d) to read as

follows:

§ 238.309 Periodic brake equipment

maintenance.

* * * * *

(d) Passenger coaches and other

unpowered vehicles. The brake

equipment on each passenger coach and

each unpowered vehicle used in a

passenger train shall be cleaned,

repaired, and tested at intervals in

accordance with following schedule:

(1) Every 2,208 days for a coach or

vehicle equipped with an AB-type brake

system.

(2) Every 1,476 days for a coach or

vehicle equipped with a 26–C or

equivalent brake system; and

(3) Every 1,104 days for a coach or

vehicle equipped with other than an

AB, ABD, ABDX, 26–C, or equivalent

brake system.

* * * * *

20. Section 238.311 is amended by

revising paragraph (e)(1) to read as

follows:

§ 238.311 Single car test.

* * * * *

(e) * * *

(1) Except for private cars, a car or

vehicle is placed in service after having

been out of service for 30 days or more;

or

* * * * *

21. Section 238.313 is amended by

revising paragraphs (c), (g), introductory

text, (g)(3), (g)(4), (g)(11), (g)(15), and (h)

to read as follows:

§ 238.313 Class I brake test.

* * * * *

(c) Each passenger car and each

unpowered vehicle added to a passenger

train shall receive a Class I or Class IA

brake test at the time it is added to the

train unless notice is provided to the

train crew that a Class I brake test was

performed on the car within the

previous calendar day and the car has

not been disconnected from a source of

compressed air for more than four hours

prior to being added to the train. The

notice required by this section shall

contain the date, time, and location of

the last Class I brake test.

* * * * *

(g) A Class I brake test shall be

performed at the air pressure at which

the train’s air brakes will be operated,

but not less than 90 psi, and shall be

made to determine and ensure that:

* * * * *

(3) Piston travel is within prescribed

limits, either by direct observation,

observation of an actuator, or in the case

of tread brakes by determining that the

brake shoe provides pressure to the

wheel. For vehicles equipped with 81⁄2-

inch or 10-inch diameter brake

cylinders, piston travel shall be within

7 to 9 inches. If piston travel is found

to be less than 7 inches or more than 9

41310 Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations

inches, it must be adjusted to nominally

71⁄2 inches. Proper release of the brakes

can be determined by observation of the

clearance between the brake shoe and

the wheel or between the brake pad and

the brake disc.

(4) The communicating signal system

is tested and known to be operating as

intended; a tested and operating twoway radio system meets this

requirement;

* * * * *

(11) The brake rigging or the system

mounted on the car for the transmission

of the braking force operates as intended

and does not bind or foul so as to

impede the force delivered to a brake

shoe, impede the release of a brake shoe,

or otherwise adversely affect the

operation of the brake system;

* * * * *

(15) The communication of brake pipe

pressure changes at the rear of the train

is verified, which may be accomplished

by observation of an application and

release of the brakes on the last car in

the train.

* * * * *

(h) Records. A record shall be

maintained of each Class I brake test

performed.

(1) This record may be maintained in

writing or electronically, provided FRA

has access to the record upon request.

(2) The written or electronic record

must contain the following information:

(i) The date and time that the Class I

brake test was performed;

(ii) The location where the test was

performed;

(iii) The identification number of the

controlling locomotive of the train;

(iv) The total number of cars

inspected during the test; and

(v) The signature or electronic

identification of the inspector.

(3) This record shall be maintained at

the place where the inspection is

conducted or at one central location and

shall be retained for at least 92 days.

* * * * *

22. Section 238.315 is amended by

revising paragraphs (f), introductory

text, (f)(5) and (f)(6) to read as follows:

§ 238.315 Class IA brake test.

* * * * *

(f) A Class IA brake test shall be

performed at the air pressure at which

the train’s air brakes will be operated

and shall determine and ensure that:

* * * * *

(5) The communication of brake pipe

pressure changes at the rear of the train

is verified, which may be accomplished

by observation of an application and

release of the brakes on the last car in

the train; and

(6) The communicating signal system

is tested and known to be operating as

intended; a tested and operating twoway radio system meets this

requirement.

* * * * *

23. Section 238.317 is amended by

revising paragraphs (d)(1) and (d)(3) to

read as follows:

§ 238.317 Class II brake test.

* * * * *

(d) * * *

(1) The brakes on the rear unit of the

train apply and release in response to a

signal from the engineer’s brake valve or

controller of the leading or controlling

unit, or a gauge or similar device located

at the rear of the train or in the cab of

the rear unit indicates that brake pipe

pressure changes are properly

communicated at the rear of the train;

(2) * * *

(3) The communicating signal system

is tested and known to be operating as

intended; a tested and operating twoway radio system meets this

requirement.

* * * * *

24. Appendix A to part 238 is

amended as follows:

a. The entry for section 238.231 is

revised;

b. In the entry for section 238.303 by

adding (e)(16);

c. In the entry for section 238.305 by

revising (c)(1) through (c)(9) and adding

(c)(10), (c)(11), and (f);

d. In the entry for section 238.307 by

revising (c)(1) through (c)(7), adding

(c)(8) through (c)(10), (d), (e)(1), and

(e)(1)(i)–(iv); and

e. In the entry for section 238.313 by

adding (g)(3).

The revisions and additions read as

follows:

Appendix A to Part 238—Schedule of

Civil Penalties 1

* * * * *

Section Violation Willful violation

*******

238.231 Brake System (a)–(g), (i)–(n) .............................................................................................. 2,500 5,000

(h)(1), (2) Hand or parking brake missing or inoperative ............................................................. 5,000 7,500

(h)(3) Hand or parking brake not applied to hold equipment unattended on grade or prematurely released ...................................................................................................................... 5,000 7,500

*******

238.303 Exterior mechanical inspection of passenger equipment:

*******

(e)(16) Roller bearings:

(i) Overheated ........................................................................................................................ 5,000 7,500

(ii) Cap screw loose or missing ............................................................................................. 2,500 5,000

(iii) Cap screw lock broken or missing .................................................................................. 1,000 2,000

(iv) Seal loose, damaged, or leaks lubricant ......................................................................... 2,500 5,000

*******

238.305 Interior mechanical inspection of passenger equipment:

*******

(c)(1) Failure to protect against personal injury ........................................................................... 2,500 5,000

(c)(2) Floors not free of condition that creates hazard ................................................................ 2,500 5,000

(c)(3) Access to manual door release not in place ...................................................................... 2,000 4,000

(c)(4) Emergency equipment not in place .................................................................................... 1,000 2,000

(c)(5) Emergency brake valve not stenciled or marked ............................................................... 2,500 5,000

(c)(6) Door or cover plates not properly marked .......................................................................... 2,500 5,000

(c)(7) Safety signage not in place or legible ................................................................................ 1,000 2,000

(c)(8) Trap door unsafe or improperly secured ............................................................................ 2,500 5,000

Federal Register / Vol. 65, No. 128 / Monday, July 3, 2000 / Rules and Regulations 41311

Section Violation Willful violation

(c)(9) Vestibule steps not illuminated ........................................................................................... 2,000 4,000

(c)(10) Door not safely operate as intended ................................................................................ 2,500 5,000

(c)(11) Seat broken, loose, or not properly attached ................................................................... 2,500 5,000

(f) Record of inspection:

(1), (4) Failure to maintain record of inspection .................................................................... 2,000 4,000

(2) Record contains insufficient information .......................................................................... 1,000 2,000

*******

238.307 Periodic mechanical inspection of passenger cars and unpowered vehicles:

*******

(c)(1) Seat or seat attachment broken or loose ........................................................................... 2,500 5,000

(c)(2) Luggage rack broken or loose ............................................................................................ 2,500 5,000

(c)(3) Bed, bunks, or restraints broken or loose .......................................................................... 2,500 5,000

(c)(4) Emergency window exit not properly operate .................................................................... 2,500 5,000

(c)(5) Emergency lighting not operational .................................................................................... 2,500 5,000

(c)(6) Switches not in proper condition ........................................................................................ 2,500 5,000

(c)(7) Coupler not in proper condition .......................................................................................... 2,500 5,000

(c)(8) Truck not equipped with securing arrangement ................................................................. 2,500 5,000

(c)(9) Truck center casting cracked or broken ............................................................................. 5,000 7,500

(c)(10) General conditions endangering crew, passengers ......................................................... 2,500 5,000

(d) Manual door release not operate as intended ........................................................................ 2,500 5,000

(e)(1) Failure to maintain record of inspection ............................................................................. 2,000 4,000

(i)–(iv) Record contains insufficient information .................................................................... 1,000 2,000

*******

238.313 Class I brake test:

*******

(g) * * *

(3) Failure to adjust piston travel (per car) ............................................................................ 2,500 5,000

*******

* * * * *

Issued in Washington, D.C., on June 19,

2000.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 00–16522 Filed 6–30–00; 8:45 am]

BILLING CODE 4910–06–P