[Federal Register Volume 65, Number 128 (Monday, July 3, 2000)]
[Rules and Regulations]
[Pages 41284-41311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16522]



[[Page 41283]]

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Part VI





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 215, 220, and 238



Passenger Equipment Safety Standards; Final Rule

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

[[Page 41284]]


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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.

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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

[[Page 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

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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
------------------------------------------------------------------------
                                                       Power      Power
                                            Power      brake      brake
              Calendar year                 brake    defective   defect
                                            units      units     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
------------------------------------------------------------------------
                                         Inspection            Potential
                                           reports     Total   duplicate
                                          with More    units     units
             Calendar year                than one   reported   (half of
                                          matching     twice     total
                                            unit                 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

[[Page 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
----------------------------------------------------------------------------------------------------------------
                                                                                                         Defect
                                                                                   Units                 ratios
                                                             Power               inspected               after
                                                             brake    Potential    minus    Defective  adjusting
                      Calendar Year                          units    duplicate  potential    units       for
                                                           inspected    units     duplcate             potential
                                                                                   units               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
------------------------------------------------------------------------
                                        Defect      Defect
                                        ratios      ratios
                                        before       after
            Calendar year             adjustment  adjustment  Difference
                                          for         for
                                       potential   potential
                                      duplicates  duplicates
------------------------------------------------------------------------
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 multi-regional 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 re-issued 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

[[Page 41288]]

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-the-job 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 power-brake-related defect. Moreover, from the

[[Page 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 Sec. 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 Sec. 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 
Sec. 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 Secs. 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 Sec. 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 10\1/2\ 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

[[Page 41290]]

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 
Sec. 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 
Sec. 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 multi-factor 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

[[Page 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

[[Page 41292]]

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, Sec. 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 Sec. 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 Sec. 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

[[Page 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 Sec. 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 
long-distance 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

[[Page 41294]]

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 Sec. 238.305(c) and (d) and 
Sec. 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 
Secs. 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 Secs. 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 
Secs. 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 Sec. 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 Sec. 238.307 
to permit passenger cars found with defective seats to continue in 
passenger service. The modifications made in Sec. 238.307 contain 
various requirements related to the continued use of such equipment. 
The modifications being made to Sec. 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

[[Page 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

[[Page 41296]]

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 (Sec. 238.231(a)) 
and that the dynamic brakes on locomotives are operational within a 
very short time of being discovered defective (Sec. 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

[[Page 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-of-train 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

[[Page 41298]]

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 Sec. 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

[[Page 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 Sec. 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 Sec. 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 Sec. 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

[[Page 41300]]

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 non-complying 
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 non-complying 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 Sec. 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 
Sec. 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 Sec. 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

[[Page 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<Register> 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 Sec. 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 Sec. 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

[[Page 41302]]

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

[[Page 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 8\1/2\-inch and 10-inch diameter 
brake cylinders, currently contained at Sec. 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 Sec. 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 7\1/
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 7\1/2\ 
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 7\1/2\ 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

[[Page 41304]]

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 Secs. 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 Sec. 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 Sec. 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 Sec. 238.313(g)(4) and Sec. 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

[[Page 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:


Sec. 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:


Sec. 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:


Sec. 238.1  Purpose and scope.

* * * * *
    (c) Railroads to which this part applies shall be responsible for 
compliance with all of the requirements contained in Secs. 238.15, 
238.17, 238.19, 238.107, 238.109, and subpart D of this part effective 
January 1, 2002.
* * * * *

    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:


Sec. 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 
10\1/2\ 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.''
* * * * *

[[Page 41306]]

    Qualified person means a person who has received, as a part of the 
training, qualification, and designation program required under 
Sec. 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 Sec. 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:


Sec. 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 Sec. 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:


Sec. 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 
Secs. 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 Secs. 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:


Sec. 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. * * *
* * * * *

[[Page 41307]]

    (2) The date the defect was discovered;
* * * * *

Subpart B--Safety Planning and General Requirements--[Amended]

    12. The first sentence of Sec. 238.107(a) is revised to read as 
follows:


Sec. 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:


Sec. 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:


Sec. 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 two-way 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:


Sec. 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:


Sec. 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

[[Page 41308]]

location of the last exterior mechanical inspection;
    (2) Each express car, freight car, and each unit of intermodal 
equipment (e.g., RoadRailers<Register>) 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 Sec. 238.305 read as follows:


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

* * * * *
    (c) As part of the interior calendar day mechanical inspection, the 
railroad shall verify conformity with the following conditions, and 
nonconformity with any such condition renders the car defective 
whenever discovered in service, except as provided in paragraphs (c)(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 non-hazardous 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 
non-complying 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 non-complying 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:


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

* * * * *
    (c) The periodic mechanical inspection shall specifically include 
the

[[Page 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 Sec. 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 Sec. 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 5\1/8\ inches on standard type couplers (MCB contour 1904), 
or not more than 5\5/16\ 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 Sec. 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 Sec. 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 Sec. 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:


Sec. 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:


Sec. 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:


Sec. 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 8\1/2\-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

[[Page 41310]]

inches, it must be adjusted to nominally 7\1/2\ 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 two-way 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:


Sec. 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 two-way radio system 
meets this requirement.
* * * * *

    23. Section 238.317 is amended by revising paragraphs (d)(1) and 
(d)(3) to read as follows:


Sec. 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 two-way 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                        5,000                7,500
     unattended on grade or prematurely released......................
 
*                  *                  *                  *                  *                  *
                                                        *
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

[[Page 41311]]

 
    (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