`[Federal Register Volume 71, Number 164 (Thursday, August 24, 2006)]
[Proposed Rules]
[Pages 50276-50313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7099]



[[Page 50275]]

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Part VI





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 223 and 238



Passenger Train Emergency Systems; Proposed Rule

  Federal Register / Vol. 71, No. 164 / Thursday, August 24, 2006 / 
Proposed Rules  

[[Page 50276]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 223 and 238

[Docket No. FRA-2006-25273, Notice No. 1]
RIN 2130-AB72


Passenger Train Emergency Systems

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

ACTION: Notice of proposed rulemaking (NPRM).

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

DATES: (1) Written comments must be received by October 23, 2006. 
Comments received after that date will be considered to the extent 
possible without incurring additional expense or delay.
    (2) FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to September 25, 2006, one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2006-25273 may 
be submitted by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov including any personal information. Please 
see the Privacy Act heading in the ``Supplementary Information'' 
section of this document for Privacy Act information related to any 
submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Brenda J. Moscoso, Office of Safety, 
Operations Research Analyst, RRS-23, Mail Stop 25, Federal Railroad 
Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 
(telephone 202-493-6282); Daniel L. Alpert, Trial Attorney, Office of 
Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120 
Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6026); or 
Anna Nassif Winkle, Trial Attorney, Office of Chief Counsel, Mail Stop 
10, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Washington, DC 20590 (telephone 202-493-6166).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Statutory Background
II. Proceedings to Date
    A. Railroad Safety Advisory Committee (RSAC) Overview
    B. Establishment of the Passenger Safety Working Group
    C. Establishment of the Emergency Preparedness Task Force
    D. Development of the NPRM
III. Technical Background
    A. Change in Passenger Car Fleet Composition
    B. NTSB Safety Recommendation on Windows
    C. Need for Emergency Communication Systems
    D. Window Technology
    E. APTA's Standard for Emergency Evacuation Units
IV. General Overview of Proposed Requirements
    A. Emergency Window Exits and Rescue Access Windows
    B. Emergency Communications--Public Address and Intercom Systems
    C. Emergency Roof Access
    D. Inspection, Testing, and Maintenance
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Act of 1995
    G. Energy Impact
    H. Privacy Act
List of Subjects

I. Statutory Background

    In September of 1994, the Secretary of Transportation convened a 
meeting of representatives from all sectors of the rail industry with 
the goal of enhancing rail safety. As one of the initiatives arising 
from this Rail Safety Summit, the Secretary announced that DOT would 
begin developing safety standards for rail passenger equipment over a 
5-year period. In November of 1994, Congress adopted the Secretary's 
schedule for implementing rail passenger equipment safety regulations 
and included it in the Federal Railroad Safety Authorization Act of 
1994 (the Act), Public Law No. 103-440, 108 Stat. 4619, 4623-4624 
(November 2, 1994). Congress also authorized the Secretary to consult 
with various organizations involved in passenger train operations for 
purposes of prescribing and amending these regulations, as well as 
issuing orders pursuant to them. Section 215 of the Act is codified at 
49 U.S.C. 20133.

II. Proceedings to Date

    The Secretary of Transportation delegated these rulemaking 
responsibilities to the Federal Railroad Administrator, see 49 CFR 
1.49(m), and FRA formed the Passenger Equipment Safety Standards 
Working Group to provide FRA advice in developing the regulations. On 
June 17, 1996, FRA published an advance notice of proposed rulemaking 
(ANPRM) concerning the establishment of

[[Page 50277]]

comprehensive safety standards for railroad passenger equipment. See 61 
FR 30672. The ANPRM provided background information on the need for 
such standards, offered preliminary ideas on approaching passenger 
safety issues, and presented questions on various passenger safety 
topics. Following consideration of comments received on the ANPRM and 
advice from FRA's Passenger Equipment Safety Standards Working Group, 
FRA published an NPRM on September 23, 1997, to establish comprehensive 
safety standards for railroad passenger equipment. See 62 FR 49728. In 
addition to requesting written comment on the NPRM, FRA also solicited 
oral comment at a public hearing held on November 21, 1997. FRA 
considered the comments received on the NPRM and prepared a final rule 
establishing comprehensive safety standards for passenger equipment, 
which was published on May 12, 1999. See 64 FR 25540.
    After publication of the final rule, interested parties filed 
petitions seeking FRA's reconsideration of certain requirements 
contained in the rule. These petitions generally related to the 
following subject areas: structural design; fire safety; training; 
inspection, testing, and maintenance; and movement of defective 
equipment. To address the petitions, FRA grouped issues together and 
published in the Federal Register three sets of amendments to the final 
rule. Each set of amendments summarized the petition requests at issue, 
explained what action, if any, FRA decided to take in response to the 
issues raised, and described FRA's justifications for its decisions and 
any action taken. Specifically, on July 3, 2000, FRA issued a response 
to the petitions for reconsideration relating to the inspection, 
testing, and maintenance of passenger equipment, the movement of 
defective passenger equipment, and other miscellaneous provisions 
related to mechanical issues contained in the final rule. See 65 FR 
41284. On April 23, 2002, FRA responded to all remaining issues raised 
in the petitions for reconsideration, with the exception of those 
relating to fire safety. See 67 FR 19970. Finally, on June 25, 2002, 
FRA completed its response to the petitions for reconsideration by 
publishing a response to the petitions for reconsideration concerning 
the fire safety portion of the rule. See 67 FR 42892. (For more 
detailed information on the petitions for reconsideration and FRA's 
response to them, please see these three rulemaking documents.) The 
product of this rulemaking was codified primarily at 49 CFR part 238 
and secondarily at 49 CFR parts 216, 223, 229, 231, and 232.
    Meanwhile, another rulemaking on passenger train emergency 
preparedness produced a final rule codified at 49 CFR part 239. See 63 
FR 24629; May 4, 1998. The rule addresses passenger train emergencies 
of various kinds, including security situations, and requires the 
preparation, adoption, and implementation of emergency preparedness 
plans by railroads connected with the operation of passenger trains. 
The emergency preparedness plans must include elements such as 
communication, employee training and qualification, joint operations, 
tunnel safety, liaison with emergency responders, on-board emergency 
equipment, and passenger safety information. The rule requires each 
affected railroad to instruct its employees on the applicable 
provisions of its plan, and the plan adopted by each railroad is 
subject to formal review and approval by FRA. The rule also requires 
each railroad operating passenger train service to conduct emergency 
simulations to determine its capability to execute the emergency 
preparedness plan under the variety of emergency scenarios that could 
reasonably be expected to occur. In addition, among the rule's other 
requirements, the rule provides that (i) all emergency window exits and 
all windows intended for rescue access by emergency responders be 
marked and that instructions be provided for their use (see 49 CFR 
223.9(d)); and (ii) all door exits intended for egress be lighted or 
marked, all door exits intended for rescue access by emergency 
responders be marked, and that instructions be provided for the use of 
both (see 49 CFR 239.107(a)).
    Although FRA had completed these rulemakings, FRA had identified 
various issues for possible future rulemaking, including those to be 
addressed following the completion of additional research, the 
gathering of additional operating experience, or the development of 
industry standards, or all three. One such issue concerned expanding 
the application of emergency system requirements applicable to Tier II 
passenger equipment to Tier I passenger equipment as well. FRA and 
interested industry members also began identifying other issues related 
to the new passenger equipment safety standards and the passenger train 
emergency preparedness regulations. FRA decided to address these issues 
with the assistance of FRA's Railroad Safety Advisory Committee.

A. Railroad Safety Advisory Committee (RSAC) Overview

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

American Association of Private Railroad Car Owners (AARPCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employees Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Federal Transit Administration (FTA)*;
High Speed Ground Transportation Association (HSGTA);
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA)*;
League of Railway Industry Women*;
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women*;
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB)*;
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte*;
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada*;
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC); and

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United Transportation Union (UTU).

*Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The task force then provides that information to the 
working group for consideration. If a working group comes to unanimous 
consensus on recommendations for action, the package is presented to 
the full RSAC for a vote. If the proposal is accepted by a simple 
majority of RSAC, the proposal is formally recommended to FRA. FRA then 
determines what action to take on the recommendation. Because FRA staff 
play an active role at the working group level in discussing the issues 
and options and in drafting the language of the consensus proposal, FRA 
is often favorably inclined toward the RSAC recommendation. However, 
FRA is in no way bound to follow the recommendation, and the agency 
exercises its independent judgment on whether the recommended rule 
achieves the agency's regulatory goal, is soundly supported, and is in 
accordance with policy and legal requirements. Often, FRA varies in 
some respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. If the working 
group or RSAC is unable to reach consensus on recommendations for 
action, FRA moves ahead to resolve the issue through traditional 
rulemaking proceedings.

B. Establishment of the Passenger Safety Working Group

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

C. Establishment of the Emergency Preparedness Task Force

    Due to the variety of issues involved, at its November 2003 meeting 
the Working Group established four smaller task forces, with specific 
expertise, to develop recommendations on those issues within each 
group's particular area of expertise. Members of the task forces 
include various representatives from the respective organizations that 
were part of the larger Working Group. One of these task forces was 
assigned the job of identifying and developing issues and 
recommendations specifically related to the inspection, testing, and 
operation of passenger equipment as well as concerns related to the 
attachment of safety appliances on passenger equipment, and helped to 
develop an NPRM on these topics that was published on December 8, 2005. 
See 70 FR 73069. Another of these task forces, the Emergency 
Preparedness Task Force (Task Force), was established to identify 
issues and develop recommendations related to emergency systems, 
procedures, and equipment. Specifically, the Task Force was charged 
with evaluating APTA's standards for emergency systems for their 
incorporation by reference as Federal standards and requirements. These 
APTA standards are aimed at promoting the ability of passenger car 
occupants to reach, identify, and operate emergency exits under various 
conditions. The Task Force was also given the responsibility of 
addressing a number of other emergency system issues and to recommend 
any research necessary to facilitate their resolution. Members of the 
Task Force, in addition to FRA, include the following:
     Amtrak;
     APTA, including members from Bombardier, Ellcon National, 
Interfleet, Jacobs Civil Engineering, Jessup Manufacturing Company, 
Kawasaki Rail Car, Inc., LDK Engineering, LIRR, LTK, Luminator, 
Maryland Transit Administration, Massachusetts Bay Commuter Rail 
Corporation (MBCR), Metrolink, MNR, Northern Indiana Commuter Transit 
District (NICTD), SEPTA, San Diego Northern Commuter Railroad 
(Coaster), Permalight, PO's Ability USA, Inc, Prolink, Transit Design 
Group (TDG), Transit Safety Management (TSM), Translite, and STV Inc.;
     BLET;
     California Department of Transportation (Caltrans);
     NARP;
     RSI, including Globe Transportation Graphics; and
     UTU.
    While not voting members of the Task Force, representatives from 
the NTSB and from the Transportation Security Administration (TSA) of 
the U.S. Department of Homeland Security (DHS) attended certain of the 
meetings and contributed to the discussions of the Task Force. In 
addition, staff from the Volpe Center attended all of the

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meetings and contributed to the technical discussions through their 
comments and presentations and by setting up various lighting, marking, 
and signage demonstrations.
    The Task Force met on the following dates at the following 
locations:
     February 25-26, 2004, in Los Angeles, CA;
     April 14-15, 2004, in Cambridge, MA;
     July 7-8, 2004, in Washington, DC;
     September 13-14, 2004, in New York, NY;
     December 1-2, 2004, in San Diego, CA;
     February 16-17, 2005, in Philadelphia, PA;
     April 19-20, 2005, in Cambridge, MA;
     August 2-3, 2005, in Cambridge, MA; and
     December 13-14, 2005, in Baltimore, MD.
    At the meetings in Los Angeles, Cambridge, Washington, New York, 
San Diego, and Philadelphia, FRA met with representatives of Metrolink, 
MBCR, Amtrak, LIRR, Coaster, and SEPTA, respectively, and toured their 
passenger equipment. The visits were open to all members of the Task 
Force and included demonstration of emergency system features. As in 
the case of the Working Group visits, FRA believes they have added to 
the collective understanding of the Task Force in identifying and 
addressing passenger train emergency system issues.

D. Development of the NPRM

    This NPRM was developed to address a number of the concerns raised 
and issues discussed during the various Task Force and Working Group 
meetings. Minutes of each of these meetings have been made part of the 
docket in this proceeding and are available for public inspection. The 
Working Group reached full consensus on all the regulatory provisions 
contained in this proposal at its meetings in March and September 2005. 
After the March 2005 meeting, the Working Group presented its 
recommendations to the full RSAC for concurrence at its meeting in May 
2005. All of the members of the full RSAC in attendance at its May 2005 
meeting accepted the regulatory recommendations submitted by the 
Working Group. Thus, the Working Group's recommendations became the 
full RSAC's recommendations to FRA in this matter. In October 2005, the 
full RSAC also recommended that FRA adopt a further recommendation from 
the Working Group at its September 2005 meeting: That FRA grant 
additional time for compliance with the proposal on rescue access 
windows. After reviewing the full RSAC's recommendations, FRA agreed 
that the recommendations provided a sound basis for a proposed rule and 
adopted the recommendations with generally minor changes for purposes 
of clarity and formatting in the Federal Register.
    This NPRM is the product of FRA's review, consideration, and 
acceptance of the recommendations of the Task Force, Working Group, and 
full RSAC. Throughout the preamble discussion of this proposal, FRA 
refers to comments, views, suggestions, or recommendations made by 
members of the Task Force, Working Group, and full RSAC, as they are 
identified or contained in the minutes of their meetings. FRA does so 
to show the origin of certain issues and the nature of discussions 
concerning those issues at the Task Force, Working Group, and full RSAC 
level. FRA believes this serves to illuminate factors it has weighed in 
making its regulatory decisions, as well as the logic behind those 
decisions. The reader should keep in mind, of course, that only the 
full RSAC makes recommendations to FRA, and it is the consensus 
recommendation of the full RSAC on which FRA is acting. However, as 
noted above, FRA is in no way bound to follow the recommendation, and 
the agency exercises its independent judgment on whether the 
recommended rule achieves the agency's regulatory goal, is soundly 
supported, and is in accordance with policy and legal requirements.

III. Technical Background

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

A. Change in Passenger Car Fleet Composition

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

B. NTSB Safety Recommendation on Windows

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

    Revise the language of 49 Code of Federal Regulations 
238.113(a)(1) to reflect that appropriate exterior instructional 
signage describing the emergency removal procedure

[[Page 50280]]

be required at emergency windows on all levels of a multiple-level 
passenger railcar.

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

C. Need for Emergency Communication Systems

    Traditionally, conductors and assistant conductors have been relied 
upon to relay information to passengers in both normal and emergency 
situations through face-to-face communication or by use of the PA 
system. However, with smaller crew sizes, passengers may not be able to 
communicate to the crew a medical emergency, report a fire on board the 
train, or provide notification of other safety issues as quickly as may 
be necessary. For instance, a passenger in the last car of a train 
needing to report an emergency situation could potentially have to walk 
the entire length of the train to communicate with the conductor 
(assuming the crew is composed of an engineer and only one conductor). 
Further, if the conductor became incapacitated, passengers would need 
to communicate directly with the engineer.
    FRA also notes that the NTSB accident investigation report of the 
February 9, 1996 collision near Secaucus, NJ, that involved two New 
Jersey Transit Rail Operations (NJTR) trains and resulted in three 
fatalities and numerous injuries, touches on the importance of 
emergency communications to prevent panic and further injuries. 
According to the NTSB report of the accident investigation,

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

    The report also stated that

    [i]nformation about the possibility of a fire or a collision 
with an oncoming train could have been provided to passengers over 
the public address system to address their concerns and prevent them 
from leaving the train. The Safety Board concludes that the lack of 
public announcements addressing the passengers' concerns caused them 
to act independently, evacuate the train, and wander along the 
tracks, thus potentially contributing to the dangerous conditions at 
the collision site. NTSB/RAR-97/01, at p. 27.

    In 1998, APTA recognized the importance of emergency communications 
when it issued APTA SS-PS-001-98, ``Standard for Passenger Railroad 
Emergency Communications,'' noting that the establishment and execution 
of communications among train crews, operations control personnel and 
train passengers are of the utmost importance under normal 
circumstances. According to the APTA standard, during emergency 
situations such communications take on added importance in the task of 
assuring the safety of all involved.
    While the Passenger Equipment Safety Standards issued in 1999 by 
FRA contain requirements for two-way emergency communication systems 
for Tier II passenger equipment (trains operating at speeds exceeding 
125 mph, but not exceeding 150 mph), there are no requirements that 
Tier I passenger cars be equipped with any emergency communication 
system. In that rulemaking, concern had been raised about the 
practicality of applying such requirements to Tier I passenger 
equipment because of the interoperability of such equipment and the 
possible incompatibility of communications equipment in a Tier I 
passenger train. See 64 FR 25540, 25641; May 12, 1999. Nevertheless, 
today most existing passenger cars are equipped with PA systems, and 
intercom systems are common in new passenger cars.
    FRA notes that, while there are many possible ways for an emergency 
situation to arise on a passenger train, an emergency system may be 
useful in many situations, regardless of the origin of the emergency. 
In this regard, emergency communication systems provide the added 
benefit of conveying information about security threats and handling 
security concerns. According to TSA, terrorists have considered attacks 
on subways and trains in the U.S., and TSA has found that passenger 
railroads and subways in the U.S. are particularly high-consequence 
targets in terms of potential loss of life and economic disruption. 
DHS, including TSA, as well as DOT's FRA and FTA have been actively 
engaged in responding to the threat of terrorism to our Nation's rail 
system, and the initiatives that have been undertaken to do so are too 
numerous to detail in this NPRM. Consistent with this response, the 
ability of passengers to timely report suspicious items and suspicious 
activity onboard passenger trains to appropriate personnel increases 
the likelihood of

[[Page 50281]]

detecting a terrorist attack and thwarting it, or at least disrupting 
it and minimizing its consequences. This would also be facilitated by 
the ability of the train crew to timely communicate emergency 
information and instructions to passengers in response to a security 
threat.
    FRA also notes that emergency system requirements for such features 
as emergency window exits and emergency lighting, which were not 
specifically developed to address security threats, may play a critical 
role in minimizing the consequences of a terrorist attack on board a 
passenger train. The safety and security functions that passenger train 
emergency systems may serve make them vital, and further enhancements 
and additions to emergency systems should be explored both to minimize 
the risk of a terrorist attack to passenger trains, to reduce the 
death, injuries, and other consequences of such an attack if it occurs, 
and to promote passenger train safety overall.

D. Window Technology

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

E. APTA's Standard for Emergency Evacuation Units

    As FRA noted in the preamble to the final rule promulgating the 
Passenger Equipment Safety Standards, FRA has had under consideration a 
performance standard for emergency evacuation similar to that used in 
commercial aviation where a sufficient number of emergency exits must 
be provided to evacuate the maximum passenger load in a specified time 
for various types of emergency situations. See 64 FR 25550. FRA further 
noted that it would evaluate whether an APTA performance standard for 
emergency egress, then under development in APTA's PRESS Task Force, 
should be incorporated into FRA's standards. 64 FR 25551. FRA's intent 
is that such a performance standard would serve to supplement, as 
necessary, FRA's minimum requirements for emergency window exits and 
door exits.
    In 1999, APTA issued APTA SS-PS-003-98, ``Standard for Emergency 
Evacuation Units for Rail Passenger Cars.'' This standard assigns to 
doors and window exits a numerical value, referred to as an ``emergency 
evacuation unit'' (EEU), that is intended to correlate to the speed and 
ease of passenger egress. Each emergency window exit is assigned an EEU 
of 1, and each door leaf an EEU of 2. It defines the ``usable exit 
path'' (UXP) as the number of emergency window and door exits that can 
be used by passengers after an incident that requires emergency egress 
from the vehicle, and requires that it be calculated as ``the sum of 
EEUs for one side of the car less 50% of car end doors.'' The APTA 
standard requires railroads to assign to each new passenger car a 
``capacity exit factor'' (CXF), which is a value equal to the seating 
capacity of the car divided by 17 and rounded up to the next whole 
number, and to designate a sufficient number of exits to achieve a 
total EEU value equal to the larger of the CXF or the UXP.
    Although the basic approach to establishing egress requirements 
based on car configuration and occupant capacity was widely accepted, 
during development of the APTA standard several organizations raised 
issues regarding the methodology for assigning EEU values to exits. For 
instance, Volpe Center staff suggested that point values for windows be 
reduced to numbers that are approximately in proportion to estimated 
passenger flow rates as compared with low-platform doors without steps, 
and that upper-level windows receive no credit toward the minimum EEU 
criterion but still be required to provide exit paths for certain rare 
accident scenarios. It was also questioned whether egress rates through 
windows could be half as great as through single-leaf doors, as implied 
by the standard.
    The Emergency Preparedness Task Force reviewed the APTA standard 
and recommended the continuation of evacuation tests and research to 
establish relative exit flow rates using different types of exits at 
distinct locations in the car, prior to considering adoption of the 
APTA standard into FRA's standards. To this end, the Volpe Center is 
conducting a series of evacuations tests. FRA does note that the 
emergency evacuation approach underlying the proposals in this NPRM is 
consistent with the basic approach taken in developing APTA's standard, 
as FRA proposals do take into consideration car configuration and 
occupant capacity.

IV. General Overview of Proposed Requirements

A. Emergency Window Exits and Rescue Access Windows

    Among the most prominent issues identified for consideration by the 
Working Group were those involving emergency window exits and rescue 
access windows and how these windows relate to the emergency systems 
requirements overall. Emergency window exits are intended to supplement 
door exits, which serve as the preferred means of egress in an 
emergency situation, and provide an alternative means of emergency 
egress in life-threatening situations, should doors be rendered 
inaccessible or inoperable. Existing regulations require that each 
single-level car and each main level of a multi-level passenger car 
have a minimum of four emergency window exits, either in a staggered 
configuration where practical or with one exit located in each side of 
each end, on each level. These windows must be designed to permit rapid 
and easy removal during

[[Page 50282]]

an emergency without the use of a tool or other implement. Conspicuous 
photo-luminescent marking of the windows, as well as instructions for 
their use, are also required. Windows intended for rescue access must 
be marked with retroreflective material, and instructions for their use 
must also be provided. However, FRA's regulations currently do not 
require any minimum number of rescue access windows for passenger cars.
    One of the basic principles underlying the proposed requirements 
for both emergency window exits and rescue access windows has been to 
locate these windows in such a manner that passengers would be able to 
exit from, and emergency responders would be able to gain direct access 
to, each passenger compartment without requiring that they first go to 
another level of a car or through an interior door. Optimally, there 
would be a sufficient number of windows for passengers to exit from, 
and for emergency responders to get access to, the following: (i) Every 
level with passenger seating of a multiple-level passenger railcar; 
(ii) both sides of the car, in the event of a derailment where the 
exits on one side are compromised; and (iii) each end (half) of the 
car, in the event that one end is crushed or the exits on that end are 
otherwise rendered inaccessible or inoperable. A constraint for both 
new and existing intermediate levels of multi-level passenger car 
designs is that there is limited space for side windows due to the 
presence of bathrooms, equipment closets, and side door exits. Thus, 
the Task Force agreed to make the proposed requirements flexible and 
consistent with existing car designs and, in certain cases, provide for 
exceptions. The exceptions for new equipment are limited to situations 
that arise from the need to provide accessible accommodations under the 
Americans with Disabilities Act of 1990 in compartments where there are 
no more than four seats and a suitable alternative is provided. The 
Task Force recommended greater flexibility for existing equipment to 
avoid costly window installations where none had previously existed 
(e.g., relocating an electrical closet so that a space large enough to 
accommodate a new window could be cut into the side of the car).
    During Task Force discussions, it became apparent that the phrase 
``rapid and easy'' in the emergency window exit regulation was being 
interpreted in different ways by commuter railroads and car 
manufacturers. Some believed that only the removal of the gasket had to 
be rapid and easy; however, FRA clarified that while FRA may have cited 
examples of gaskets that were becoming stuck and were therefore not 
removable in a rapid and easy fashion, the central goal of this 
provision was to create an opening that could be used for egress, which 
necessarily includes removal of the window panel as well. If the 
removal of the gasket is rapid and easy, but the removal of the window 
panel is not, the opening becomes less useful in an emergency 
situation, or in some cases, effectively non-existent. Several members 
of the Task Force also expressed their concern that the phrase ``rapid 
and easy'' was too subjective and not quantifiable. They requested that 
FRA adopt a more measurable performance-based standard instead. Yet, 
various proposals to do so based on a specific allotment of time to 
open the window were not adopted, as consensus was not reached on how 
that time would be determined. Variables such as height, weight, 
strength, and awareness of emergency exit operation and procedures all 
could affect the ease of opening a window. For example, a railroad 
maintenance employee who installs emergency window exits or is 
otherwise trained on their use should be able to open a window more 
quickly than many passengers would be able to do. While there was 
general agreement that a time-performance standard should be based on 
the time taken by a representative sample of people to open the window, 
the Task Force was not in a position to specify that sample.
    Although unsuccessful at reaching consensus on an actual measure of 
``rapid and easy,'' the Task Force was able to agree that promoting 
``rapid and easy'' removal of emergency windows is desirable. A 
combination of fixtures, such as headrests and luggage racks, as well 
as larger and heavier windows, can create a situation where the most 
effective and efficient method for removing a window is not immediately 
apparent. As a step towards promoting rapid and easy removal of the 
window and to address the situation of particular concern, the Task 
Force recommended requiring that instructions specifically take into 
account potential hindrances. The instructions may be in written or 
pictorial format, since including pictorials depicting the window 
removal method as part of the instructions can be extremely helpful.
    As for rescue access windows, the Task Force generally recommended 
requiring two windows on each level of a passenger car for rescue 
access (versus four as is required for emergency exit). The principal 
reason for requiring only two windows for rescue access is that rescue 
access windows are the third means of egress in the overall emergency 
evacuation approach, in which door exits serve as the first (preferred) 
means of egress and emergency window exits serve as the second. Rescue 
access windows have this tertiary role because they would be used as a 
means of last resort when passengers cannot evacuate themselves and 
require aid from emergency responders. The design of window gaskets 
also affects how many rescue access windows can be placed in a car, 
especially on levels where there is limited space for windows. For 
instance, on certain types of cars, zip-strips installed to facilitate 
rapid and easy removal of a window can be installed either on the 
interior or the exterior of the car, but not on both. In this case, if 
FRA were to require four rescue access windows, then a railroad that 
has cars with additional emergency window exits (i.e., beyond the 
minimum of four per main level) would likely just replace some of its 
emergency window exits with rescue access windows, resulting in fewer 
emergency window exits, and thereby limiting the more preferred means 
of egress. For the above reasons, as well as for the cost of 
retrofitting existing equipment, flexibility for locating rescue access 
windows in side doors was added for existing equipment.
    FRA is not proposing changes to existing requirements for emergency 
window exits in sleeping compartments or similar private compartments. 
Yet, FRA is proposing rescue access window requirements for such 
compartments. Although this proposal would establish new requirements, 
the proposal reflects current practice.

B. Emergency Communication Systems--Public Address and Intercom Systems

    As discussed above, while the Passenger Equipment Safety Standards 
issued in 1999 by FRA contain requirements for two-way emergency 
communication systems for Tier II passenger equipment, there are 
currently no requirements that Tier I passenger cars be equipped with 
any emergency communication system. Nevertheless, today most existing 
passenger cars are equipped with PA systems, and after discussing the 
benefits of PA systems in light of the challenge and expense of 
retrofitting older, existing passenger equipment with limited service 
life, the Task Force agreed that all passenger cars should, at a 
minimum, have functioning PA systems. The PA system would allow the 
train crew to keep their passengers informed in an emergency situation 
and provide guidance to all passengers in a

[[Page 50283]]

timely manner, thereby reducing the likelihood that passengers would 
take an action that could place them in any greater danger.
    The Task Force also agreed that emergency communication systems in 
all new passenger cars should include intercom systems that would 
enable passengers to quickly communicate in emergency situations with 
the train crew. During the discussions concerning whether to require 
intercom systems on Tier I passenger equipment, some Task Force members 
expressed concern that if intercom systems were added at each end of a 
car, were conspicuously marked, and had instructions provided for their 
use, passengers may use them in non-emergency situations. Amtrak and 
various commuter railroads that operate cars with intercom systems 
indicated that they have successfully implemented measures to deter 
misuse, however, such as by placing the intercom transmission button 
under a protective covering (which also prevents accidental operation 
by a passenger leaning against it) and by marking it ``FOR EMERGENCY 
USE ONLY.''
    The recommended emergency communication system requirements 
developed by the Task Force generally reflect current practice for Tier 
I passenger equipment operating with intercom systems and existing 
requirements for Tier II passenger equipment. FRA understands that 
those Tier I passenger cars that currently do not have PA systems are 
scheduled to be retired from service before the proposed requirement to 
have PA systems on existing Tier I passenger equipment would become 
effective.

C. Emergency Roof Access Locations

    Emergency roof access locations (roof hatches or structural weak 
points) can be especially useful in emergency situations where 
passenger cars have rolled onto their sides following certain collision 
and derailment scenarios. In such situations, doors, which are the 
preferred means of egress and access under normal circumstances, may be 
rendered inoperable due to structural damage to the door or the door 
pocket, or extremely difficult to use because the car is no longer 
upright. Moreover, although emergency responders may be able to enter a 
car that is on its side via a rescue access window, the removal of an 
injured occupant through a side window in such circumstances would 
likewise be difficult or complicated, especially depending upon the 
condition of the occupant.
    Existing FRA regulations require emergency roof access locations 
for Tier II passenger equipment, but not for Tier I passenger 
equipment. The Task Force examined these requirements and APTA PRESS 
recommended practice RP-C&S-001-98, ``Recommended Practice for 
Passenger Equipment Roof Emergency Access,'' in recommending that 
emergency roof access requirements be applied to Tier I passenger 
equipment. FRA adopted the Task Force's recommendation and, in general, 
is proposing that each new passenger car (both Tier I and Tier II) have 
a minimum of two emergency roof access locations. Existing Tier I 
passenger cars would not be subject to the proposed requirements, while 
existing Tier II passenger cars would continue to be subject to 
existing requirements. For further discussion and explanation of the 
proposed requirements, please see the Section-by-Section Analysis of 
this preamble at Section V.

D. Inspection, Testing, and Maintenance

    FRA is proposing to modify Sec. Sec.  238.17, 238.303, and 238.305 
(which contain standards for movement of passenger equipment with other 
than power brake defects, for inspection of passenger equipment, and 
for repair of passenger equipment) to include requirements for the 
inspection, testing, maintenance and repair of emergency communication 
systems, emergency roof access points, and rescue access markings. To 
allow railroads sufficient time to repair the equipment with minimal 
disruption to normal operations, flexibility would be provided for 
operating equipment in passenger service with certain non-compliant 
conditions. In affording this flexibility, the rule would require the 
railroad to adhere to specified procedures for the safe operation of 
the equipment.

V. Section-by-Section Analysis

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

Subpart A--General

Section 223.5 Definitions
    This section, which contains a set of definitions relevant to the 
regulations contained in part 223, would be modified to clarify a 
definition, and to delete two definitions that would no longer be 
relevant due to proposed modifications of this part, specifically, the 
deletion of Sec.  223.9(d)(2).
    The definition of ``emergency window'' would be revised to clarify 
that the purpose of an emergency window is for egress, and thus needs 
to be removable only from the inside of a passenger car. Accordingly, 
FRA proposes to revise the definition of ``emergency window'' to mean 
that segment of a side-facing glazing panel which has been designed to 
permit rapid and easy removal from inside a passenger car in an 
emergency situation. FRA is also proposing that the terms ``emergency 
responder'' and ``passenger train service'' be deleted in accordance 
with the proposal to delete Sec.  223.9(d)(2), the only section in part 
223 that references these terms. The term ``emergency responder'' would 
be moved to part 238.

Subpart B--Specific Requirements

Section 223.9 Requirements for new or rebuilt equipment
    In the discussion of Sec.  223.5, FRA noted that the definition of 
``emergency window'' would be amended to clarify that the purpose of 
the windows is for egress, and thus would need to be removable only 
from the inside of a passenger car. Section 223.9(c) currently requires 
``at least four emergency opening windows.'' As the term ``emergency 
opening window'' is not specifically defined--but has been understood 
to mean ``emergency window''--FRA believed that it would be best to 
modify the rule text in Sec.  223.9(c) to require ``at least four 
emergency windows'' in order to provide more clarity.
    FRA is proposing to delete the requirements in Sec.  223.9(d) and 
merge them into Sec. Sec.  238.113 and 238.114 of part 238. The 
requirements in Sec.  223.9(d) were added by FRA's May 4, 1998 final 
rule on Passenger Train Emergency Preparedness. See 63 FR 24629, 24643. 
The Passenger Train Emergency Preparedness final rule required the 
marking of both emergency window exits and windows intended for rescue 
access, and also required that instructions be provided their use. 
However, the requirements applied only to ``each railroad providing 
passenger train service,'' a class of train service purposefully 
narrower than the general application section in part 223. See Sec.  
223.3. Because FRA is proposing to address marking and instruction 
requirements for such windows in this train service in part 238, and 
because the requirements of Sec.  223.9(d) do not apply to other 
equipment covered by part 223, they may be removed from part 223, along 
with the corresponding definition of ``emergency responder'' and 
``passenger train service.'' Further, deletion of Sec.  223.9(d) would 
avoid creating any confusion due to duplication of the marking and 
instruction requirements in two different parts of the CFR, especially

[[Page 50284]]

since the proposed marking requirements in part 238 that were adopted 
by the full RSAC vary somewhat from the ones currently found in Sec.  
223.9(d). Nevertheless, Sec.  223.8 will continue to alert the reader 
to additional requirements for emergency window exits for ``passenger 
equipment'' in part 238, as defined in that part.
    However, because the general application section of part 223 is 
broader than that in part 238, FRA has been mindful not to alter the 
application of those requirements unaffected by the May 4, 1998 
amendments. Part 238 does not apply to ``tourist, scenic, historic, or 
excursion operations, whether on or off the general railroad system of 
transportation,'' see Sec.  238.3(c)(3); whereas, part 223 does not 
apply to ``locomotives, passenger cars and cabooses that are historical 
or antiquated equipment'' and are also ``used only for excursion, 
educational, recreational purposes or private transportation 
purposes,'' see Sec.  223.3(b)(3). As a result, to the extent tourist 
equipment is covered by part 223 because the equipment is not 
historical or antiquated and is required to be equipped with certified 
glazing in all windows pursuant to Sec. Sec.  223.9(c) or 223.15(c), 
such equipment would still be required to have four emergency windows 
(emergency window exits), despite its exclusion from the part 238 
requirements.

Appendix B to Part 223--Schedule of Civil Penalties

    This appendix contains a schedule of civil penalties to be used in 
connection with this part. Because such penalty schedules are 
statements of agency policy, notice and comment are not required prior 
to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, as 
discussed above, FRA is proposing that the requirements of Sec.  
223.9(d) be merged into Sec. Sec.  238.113 and 238.114 of part 238. 
Thus, FRA is proposing that the schedule of civil penalties in appendix 
B to part 223 be modified accordingly, by deleting the entries for 
paragraphs (d)(1)(i), (d)(1)(ii), (d)(2)(i), and (d)(2)(ii) and the 
associated penalties.

Proposed Amendments to 49 CFR Part 238, Passenger Equipment Safety 
Standards

Subpart A--General

Section 238.5 Definitions
    This section, which contains a set of definitions relevant to the 
regulations contained in part 238, would be modified to include new 
definitions relevant to the proposed modifications to part 238.
    FRA proposes to add the definition of ``dual-function window'' to 
mean a window that is intended to serve as both an emergency window 
exit and a rescue access window. This term generally refers to a window 
that has a zip-strip, which is a strip in a window gasket that can be 
pulled from end to end to unlock the gasket and thus release the 
glazing, on both faces so that it can be opened from both the inside of 
the car and the outside. (This definition would also cover other 
methods of opening the same window from both the inside of the car and 
the outside.) The term is being added because it is referenced in Sec.  
238.114(a)(5) as an exception to the requirements on the location of 
rescue access windows set forth in Sec.  238.114. Dual-function windows 
installed to meet the minimum requirements proposed in Sec.  238.113 
would not be required to meet the Sec.  238.114 location requirements, 
in order to recognize that a railroad that installs four compliant 
emergency window exits that are the dual-function type has also 
installed twice the number of rescue access windows that would be 
required.
    FRA proposes to revise the definition of ``emergency window'' to 
clarify that the purpose of an emergency window is for egress, and thus 
only needs to be removable from the inside of a passenger car. 
Accordingly, FRA proposes to revise the definition to mean that segment 
of a side-facing glazing panel which has been designed to permit rapid 
and easy removal from inside a passenger car in an emergency situation. 
FRA is also proposing to revise the definition of this term in Sec.  
223.5 for consistency and clarity.
    FRA proposes to add the definition of ``intercom'' to mean a device 
through which voice communication can be transmitted and received. A 
transmission unit normally has a button, which has to be depressed to 
begin transmission or notify the crew on the receiving end of the 
intention to communicate using the system. An intercom may be a 
telephone apparatus. FRA is also proposing to add the definition of 
``intercom system'' (or ``intercommunication system'') to mean a two-
way, voice communication system. This system allows a passenger to 
communicate with a crew member, typically by depressing a button, or 
lifting a telephone handset, or both.
    FRA proposes to add the definition of ``intermediate level'' to 
mean a level of a multi-level passenger car that is used for passenger 
seating and is normally located between two main levels. An 
intermediate level normally contains two, separate seating areas, one 
at each end of the car, and is normally connected to each main level by 
stairs. The term ``intermediate level'' is intended to distinguish a 
level used for passenger seating of a multi-level passenger car from a 
``main level'' of such as car, as FRA is proposing to apply different 
requirements to the different passenger seating levels. Please see the 
discussion of ``main level.''
    Currently, the regulatory text of part 238 does not define the term 
``main level,'' as used in Sec.  238.113. However, in the preamble to 
the April 23, 2002 final rule, FRA explained that the term ``main 
level'' was intended to exclude a level of a car that is ``principally 
used for passage between the door exits and passenger seating areas, or 
between seating areas,'' and noted that such an area is not 
``principally used for seating'' and includes a stairwell landing. See 
67 FR 19973. This distinction raised some concerns with respect to 
intermediate levels because their designation as main levels would 
hinge upon an interpretation of ``principally used'' for passenger 
seating. Some Task Force members believed that these levels were 
principally used for passenger seating because passengers who are 
seated there are spending more time on that level than the passengers 
who simply use that level to reach the upper level (or lower level). 
Others believed that the intermediate level was principally used for 
passage between levels because there was a greater volume of passengers 
passing through that level to reach the upper level (or passing through 
to reach the lower level, or both) than there were passengers seated on 
that level. In light of the concern raised, FRA is proposing to define 
``intermediate level,'' as discussed above, and is also proposing to 
define ``main level'' as a level of a passenger car that contains a 
passenger compartment whose length is equal to or greater than half the 
length of the car. This definition would establish a more direct 
relationship between the number of occupants on a level of a car and 
the number of emergency window exits required on that level. The longer 
a level is, the more seats and exterior side windows it is able to 
accommodate. Since passenger cars are normally about 85 to 90 feet in 
length, a main level in such a car would be a level that contains a 
passenger compartment whose length is approximately 42.5 feet or more. 
Accordingly, there should be sufficient space for the required number 
of emergency window exits on a main level of a passenger car, whether 
or not there is a bathroom, kitchen, or

[[Page 50285]]

equipment closet located on the same level.
    FRA proposes to add the definition ``passenger compartment'' to 
mean an area of a passenger car that consists of a seating area and any 
vestibule that is connected to the seating area by an open passageway. 
If a door separates the seating area from the vestibule, the vestibule 
is not part of the passenger compartment. See Figure 1c to subpart B. 
This definition was necessary to solidify the concept that passengers 
should not have to go through an interior door, which could get jammed, 
or to another level in order to reach an emergency window exit, and 
likewise, emergency responders should be able to directly access 
passengers in need of aid in each such compartment.
    FRA proposes to add the definition ``PA system'' or ``public 
address system'' to mean a one-way, voice communication system. Such a 
system is used by train crew members to make announcements to 
passengers in both normal and emergency situations. On some railroads, 
crew members use the PA system to make station announcements. Other 
railroads limit its use to communicate information regarding unusual 
occurrences, such as unexpected delays and emergencies. Some PA systems 
have speakers located on the exterior of cars that are used to make 
announcements to persons in the vicinity of the train (e.g., passengers 
on a station platform).
    Consistent with the proposed amendments to part 223, discussed 
above, FRA proposes to define ``rescue access window'' as a side-facing 
exterior window intended for use by emergency responders to gain access 
to passengers in an emergency situation. In some passenger cars, all 
windows may be capable of serving as both emergency window exits and 
rescue access windows. However, a railroad may choose not to designate 
one or more of these windows for rescue access for various reasons, 
including the presence of a third-rail shoe that could pose an 
electrocution hazard, or a high seat back next to the window that may 
pose a potential hindrance to window removal for windows that are 
designed to open by being pushed into the car.
    Some rescue access windows are designed with a zip-strip to release 
the window panel from its frame. In some cars, side-facing glazing 
systems are designed so that there is a zip-strip on only one side of 
the window panel. It is common for railroads to install such systems 
with a zip-strip on the exterior of the car for rescue access use, and 
also have one in the interior of the car for emergency egress use. 
However, to the extent that there may be only one zip-strip for a 
single glazing system, the railroad must decide whether to place the 
zip-strip on the exterior of the car for use in rescue access, or in 
the interior of the car for use in emergency egress.
    Although use of zip-strips in rescue access windows is common, FRA 
makes clear that they would not be required. The proposed definition is 
a performance standard, and a rescue access window may be opened by 
other means, such as by shattering the window (if glass) or popping the 
window out by applying force at one corner.
    Throughout the discussion of rescue access windows, Task Force 
members repeatedly emphasized, as the definition reflects, that these 
windows are intended for use by emergency responders to gain access to 
passengers in an emergency situation. In the process of reviewing the 
definitions in parts 223, 238, and 239 in composing this NPRM, FRA 
noted that the term ``emergency responder'' is defined in parts 223 and 
239, but not in part 238. As the proposed part 238 definition of 
``rescue access window'' includes the term ``emergency responder,'' FRA 
believes it is appropriate to add ``emergency responder'' to part 238. 
The term would be defined to mean a member of a police or fire 
department, or other organization involved with public safety charged 
with providing or coordinating emergency services, who responds to a 
passenger train emergency.
    FRA proposes to add a definition of ``seating area'' to mean an 
area of a passenger car that normally contains passenger seating. An 
area with no actual seats but with anchors for securing wheel chairs 
would be considered a seating area.
    FRA notes that the term ``vestibule'' is currently defined in part 
238 to mean an area of a passenger car that normally does not contain 
seating and is used in passing from the seating area to the side exit 
doors. Although FRA is not revising the definition of ``vestibule,'' 
FRA makes clear that for purposes of part 238, a vestibule may be 
located anywhere along a car. The location of a vestibule is not 
restricted to the far ends of a car but may be elsewhere, such as in 
the middle of the car. As a result, what some in the passenger rail 
industry commonly refer to as an entranceway, by virtue of where its 
located in a car, is considered a vestibule for purposes of this part.
Section 238.17 Movement of Passenger Equipment With Other Than Power 
Brake Defects
    This section contains the requirements related to the movement of 
passenger equipment with a condition not in compliance with part 238, 
excluding a power brake defect, without civil penalty liability under 
this part. FRA proposes to modify paragraphs (b) and (c) of this 
section to include a reference to the specific provisions being added 
to the exterior, calendar day mechanical inspection in proposed Sec.  
238.303(e)(18) regarding rescue-access-related markings, signage, and 
instructions. Proposed Sec.  238.303(e)(18) would require that all 
rescue-access-related exterior markings, signage, and instructions 
required by proposed Sec.  238.114 (rescue access windows) and Sec.  
239.107(a)(2) be in place and, as applicable, conspicuous, and/or 
legible, and that certain conditions be met for continued use of the 
cars with defective markings, signage, or instructions. As these 
proposed provisions contain specific requirements related to the 
continued use in passenger service of passenger cars found with 
defective rescue access signs, markings, or instructions, recognition 
of these specific limitations needs to be included in both paragraphs 
(b) and (c) of this section. The proposed requirements in Sec.  
238.303(e)(18) and the proposed conditions for continued use of 
passenger equipment with non-complying conditions are discussed in 
detail below.
    FRA notes that it is considering moving the emergency exit marking 
requirements contained in Sec.  239.107(a) into part 238. Since Sec.  
239.107(a) contains door exit marking, signage, and operating 
instruction requirements, the requirements of this section may more 
logically be situated in the very sections containing requirements for 
doors in part 238, namely, Sec. Sec.  238.235 and 238.439. If the 
requirements in Sec.  239.107(a) are moved into part 238, FRA would 
make any necessary conforming changes to part 238, and modify this 
proposed section in publishing the final rule. FRA invites comment 
whether the requirements of Sec.  239.107(a) should be moved into part 
238.

Subpart B--Safety Planning and General Requirements

Section 238.113 Emergency Window Exits
    This section currently contains requirements for emergency window 
exits in single-level passenger cars and main levels of multi-level 
passenger

[[Page 50286]]

cars. Emergency window exits are intended to supplement door exits, 
which are normally the preferred means of egress in an emergency 
situation. Emergency windows provide an alternative means of emergency 
egress should doors be rendered inoperable or inaccessible. They also 
provide an additional means of egress in life-threatening situations 
requiring very rapid exit, such as a fire on board or submergence of 
the car in a body of water.
    To ensure that emergency window exit requirements apply to every 
level with passenger seating, FRA is proposing to revise this section 
to expressly include emergency window exit requirements for any level 
with passenger seating in a multi-level passenger car. FRA is also 
proposing to revise this section to require that emergency window exit 
operating instructions specifically address the presence of interior 
fixtures that may hinder the removal of the window panel, to facilitate 
its rapid and easy removal.
    Paragraph (a), which applies to both new and existing passenger 
cars, would be modified to specify requirements for the number and 
location of emergency window exits on any level with passenger seating 
in a passenger car. The requirements for single-level passenger cars in 
proposed paragraph (a)(1), and for main levels of multi-level passenger 
cars in proposed paragraph (a)(2), would effectively remain unchanged. 
The current requirements for single-level passenger cars require a 
minimum of four emergency window exits, located ``either in a staggered 
configuration where practical or with one located in each end of each 
side of each level.'' FRA is proposing to slightly modify this language 
by replacing the word ``end'' with ``end (half)'' to clarify that the 
term ``end'' does not refer to the extreme forward and rear ends of a 
car, but merely the front half and rear halves of the car. See Figure 1 
to subpart B. Additionally, the text would be reorganized to emphasize 
that a window would be required in each end (half) of each side of the 
car and that, if practical, the windows would also be in a staggered 
configuration. This clarification would remove any ambiguity in the 
current rule text that wrongly suggests that one could choose to simply 
stagger the windows without regard to having one window in each side of 
each end. To illustrate the requirements of paragraph (a)(2), FRA is 
proposing to add Figure 1 to subpart B, as referenced above. FRA 
invites comment on whether this and other figures proposed in this NPRM 
for inclusion in part 238 would be helpful in understanding the 
requirements of this part, and, if so, whether any additional figures 
should be included. FRA also notes that the proposed figures, which are 
not drawn to scale, represent possible ways of complying with the 
proposed requirements and should not be construed as depicting the only 
way to comply.
    Paragraph (a)(3) would contain the requirements for emergency 
window exits on non-main levels with seating areas of multi-level 
passenger cars, including intermediate (or mezzanine) seating levels. 
The general intent of the proposal is to have at least one emergency 
window exit that is accessible to passengers in each side of a 
passenger seating area without requiring the passengers to move to 
another level of the car or pass through a door. This would help ensure 
that, if a car rolled onto its side or if there was a hazard on one 
side of the train, an emergency window exit on the opposite side would 
be available to passengers and crew members for emergency egress. 
Nevertheless, as further discussed below, a constraint for intermediate 
levels of both new and existing multi-level passenger car designs is 
limited space due to the presence of bathrooms, equipment closets, and 
side door exits. Accordingly, the requirements proposed for the number 
and location of emergency window exits in paragraph (a)(3) provide 
flexibility for, and are consistent with, existing passenger car 
designs.
    FRA notes that in light of the proposed definition of ``main 
level,'' some passenger cars would no longer have main levels. Such 
cars would thus be subject to the proposed requirements for other 
levels with seating areas contained in paragraph (a)(3). For instance, 
none of the levels in a gallery-style car (a multi-level passenger car 
with a full-height, enclosed vestibule in the center) would meet the 
proposed definition of a ``main level.'' Yet, each of the four, 
separate seating areas in such a car would be subject to the emergency 
window exit number and location requirements proposed in paragraph 
(a)(3). Further, the proposed requirements are consistent with the 
number and location of emergency windows on existing gallery-style 
passenger cars, would not impact current operations, and would not 
diminish the effect of FRA's existing requirements.
    Paragraph (a)(3)(i) would require that non-main levels that are 
used for passenger seating have at least two emergency window exits 
that are accessible to passengers in each seating area without 
requiring the passengers to move to another level of the car or pass 
through an interior door. This proposal is intended to address 
situations in which stairways could become structurally deformed and 
interior doors could be rendered inoperable as a result of a collision, 
derailment, or other accident, obstructing access to an emergency 
window exit or a side door exit on another level or in a vestibule area 
that is separated from the seating area by an interior door. Similarly, 
the proposal is intended to address situations in which a passenger car 
has rolled onto its side as a result of a collision, derailment, or 
other accident, by providing that at least one of these emergency 
window exits would be required in each side of the passenger car, 
except as provided below. See Figures 2, 2a, and 2b to subpart B.
    The proposed rule provides flexibility for locating an emergency 
window exit within an exterior side door in the passenger compartment 
of a non-main level, if it is not ``practical'' to place the window 
exit in the side of the seating area. It should be noted that, by 
definition, a side door would not be considered located within the 
``passenger compartment'' if an interior door separates the seating 
area from the area where the side doors are located. The provision 
would require that there be an open passageway between the seating area 
and the vestibule, in such a circumstance. Use of the word 
``practical'' would allow railroads and car builders some discretion 
regarding the location of an emergency window exit in a non-main level 
of a car. For instance, this provision could be used to address 
situations where a window in a door in the same passenger compartment 
may be better suited for emergency egress than one in the seating area. 
In some cars, removal of the windows in the seating area may be 
hindered by seat backs or other fixtures, while windows in the exterior 
side doors could be more easily and rapidly removed. Since there would 
still be two accessible side windows in a passenger compartment, one on 
each side, there would be no limitation on the number of seats that may 
be in the compartment. Moreover, the door itself is a means of 
emergency egress that, if operable, would allow more rapid and safe 
egress than exiting through a window. Nevertheless, because having two 
emergency exits at the very same location could result in both exits 
being rendered inoperable (as by car crush) or inaccessible (as by 
fire), FRA is not proposing to allow the unrestricted

[[Page 50287]]

placement of emergency window exits in side doors. FRA makes clear 
that, all things being equal, emergency window exits should be placed 
in a separate location from side door exits. See Figure 2b to subpart 
B; compare to Figure 2a to subpart B.
    In determining the appropriate applicability date for the proposed 
requirement to have emergency window exits in non-main levels of multi-
level passenger cars, it was noted that, while some passenger cars 
already have windows in each side of an intermediate level seating 
area, these windows are not necessarily emergency window exits. 
Consequently, some time would be needed to change out the existing 
windows with emergency window exits or otherwise retrofit the windows 
with pull-handles and make any other modification necessary so that the 
windows would meet the requirements for emergency window exits. The 
proposal takes this into account, and otherwise would afford railroads 
sufficient time to come into compliance regardless of the state of the 
existing windows, by phasing the requirement in over an 18-month period 
from the date of publication of the final rule.
    Paragraph (a)(3)(ii) contains a proposed exception for non-main 
levels of multi-level passenger cars that would require only one 
emergency window exit in a seating area in a passenger compartment with 
no more than four seats, if it would not be practical to place an 
emergency window exit in a side of the passenger compartment due to the 
need to provide accessible accommodations under the ADA and a suitable, 
alternate arrangement for emergency egress is provided. This proposed 
exception would address concerns involving multi-level passenger cars 
serving passenger stations with high-platforms, such as on the 
Northeast Corridor. Because all passengers enter the cars on the 
intermediate level, and disabled passengers would not be able to access 
accommodations on another level of the cars, any accommodations 
provided to passengers would have to be located on the intermediate 
level. The proposal recognizes this need, and the proposed exception 
would apply to both existing and new passenger cars but would be 
limited to situations that arise from the need to provide accessible 
accommodations under the ADA and limited to passenger compartments 
where there are no more than four seats and a suitable alternative for 
egress is provided. FRA makes clear that use of the word ``practical'' 
in paragraph (a)(3)(ii) would extend flexibility to car builders to 
locate an electrical locker or other equipment closet in a side of an 
intermediate level at one end of a passenger car without being required 
to place an emergency window exit in the same side at that location, 
provided the placement of the locker or closet is related to placement 
of ADA-accessible accommodations in the intermediate level at the other 
end of the car. The limitation concerning the maximum number of seats 
in the passenger compartment is consistent with the maximum number of 
seats in existing designs for cars that are being manufactured with 
emergency window exits in only one side of each passenger compartment 
in an intermediate level.
    The proposal would also require that a suitable, alternative 
arrangement for emergency egress be provided. Such an arrangement 
should not require the use of a tool or implement to operate, and 
should be comparable to an emergency window exit in terms of being 
rapid and easy to use. As part of the Task Force's discussion during 
the development of the proposed rule, Kawasaki presented a car design 
with a seating area separated from a vestibule by an interior door and 
an alternative arrangement for emergency egress. The interior door 
would be designed with a removable window panel (with pull-handles on 
both sides) to allow passengers access to the vestibule, if the door 
itself were inoperable. Further, in the vestibule the exterior side 
door located on the same side as the one in the seating area without 
the emergency window exit would itself contain an emergency window 
exit. As a result, a means of exiting the car from that side would be 
available to passengers. FRA notes that a combination of several 
factors would render this arrangement a suitable, alternate means of 
emergency egress. First, the alternate emergency exit location would 
provide a measure of redundancy, i.e., a safety factor, in that there 
would both be an exterior side door and an emergency window exit in the 
same door. The door, if operable, should allow passengers and crew 
members to exit more expeditiously than through a window. In the event 
that this door would be rendered inoperable, a window meeting the 
minimum dimension requirements in proposed paragraph (c) would then be 
available. To the extent both the door and its window were rendered 
inoperable, the exterior side door exits in the adjacent car's 
vestibule would then be next in sequence for use since this car design 
has no end-frame doors separating adjoining cars. Should the end of the 
car become uncoupled from the adjacent car, the vestibule would be open 
at the end, allowing passengers direct access to the outside. Further, 
the panel in the interior door leading to the vestibule would not be 
glass but a polycarbonate, which is significantly lighter than glass 
and thus easier to remove, and the opening in the interior door would 
be large enough for a person to pass through it relatively quickly.
    Paragraph (a)(3)(iii) would require passenger cars ordered both 
prior to 14 months after the publication of the final rule and placed 
in service prior to 38 months after the publication of the final rule 
to have a minimum of only one emergency window exit in a non-main level 
seating area in a passenger compartment with no more than eight seats, 
if it is not ``practicable'' to place a window exit in a side of the 
passenger compartment (due to the presence of such structures as a 
bathroom, electrical locker, or kitchen). This exception would be 
broader than the one in paragraph (a)(3)(ii) as it would apply to non-
main levels with more seats and would not be dependent on providing 
accessible accommodations under the ADA. However, it would not apply to 
new cars. New car designs should take into consideration the need to 
provide an emergency window exit in each side of a passenger 
compartment.
    Use of the word ``practicable'' would limit railroad discretion so 
that a car would be required to have an emergency window exit in a side 
of a seating area, if a window were already located there. 
Nevertheless, FRA notes that a railroad would be under no obligation to 
install a window in a side of a passenger compartment for purposes of 
providing an emergency window exit, if an emergency window exit were 
located in either (i) the other side of the same compartment or (ii) an 
exterior side door located in the same side of the compartment. Cutting 
through a side panel in an existing passenger car to install an 
emergency window exit would not be required.
    Requirements for cars with sleeping compartments or similar private 
compartments would be clarified and moved from existing paragraph 
(a)(2) to proposed paragraph (a)(4). Each level of a passenger car with 
a sleeping compartment or a similar private compartment intended to be 
occupied by a passenger or train crew member would continue to be 
required to have at least one emergency window exit in each such 
compartment. A private seating area (such as one found on certain 
European trains or on some antiquated American trains) is a private 
compartment. FRA notes that, in a passenger car with only sleeping 
compartments, if all the sleeping

[[Page 50288]]

compartment doors are locked, passengers in a compartment without an 
egress window would not be able to get into another compartment to use 
an emergency window exit. The rule would clarify that, for purposes of 
this paragraph, a kitchen, locomotive cab, or bathroom--whether public 
or private--is not considered a ``private compartment,'' however. In 
particular, bathrooms are distinguishable from sleeping compartments 
because a passenger could leave a private bathroom to access an 
emergency window exit in the sleeping compartment, and a passenger can 
leave a public bathroom to access an emergency window exit in the 
passenger compartment.
    As part of the proposed revision and reorganization of this 
section, paragraph (b) would contain the same requirements for ease of 
operability of emergency window exits that are currently stated in 
paragraph (a)(3) of the existing regulation. The only modification 
would be that the applicability date of November 8, 1999, which is 
currently stated in the introductory text of paragraph (a), be added 
directly to this paragraph. FRA notes that the Task Force considered 
alternatives to the existing standard for the ease of operating 
emergency window exits--one that would be capable of more objective 
quantification. One such alternative that was considered involved 
specifying a maximum pull-force for removing window gaskets and 
glazing, but the Task Force found it difficult to specify a uniform 
standard that would account for varying operating environments and 
weather conditions. Further discussion relating to the requirements of 
proposed paragraph (b) is found below in the paragraph discussing 
proposed requirements for marking emergency window exits.
    Consistent with the proposed reorganization and revision of this 
section, FRA is proposing to move existing requirements for the 
dimensions of emergency window exits from paragraph (b) to paragraph 
(c). The applicability date of the dimension requirements is unchanged 
from current paragraph (b); thus the requirements continue to apply to 
each passenger car ordered on or after September 8, 2000, or first 
placed in service on or after September 9, 2002. FRA is proposing a 
slight modification to the requirements to allow an emergency window 
exit with an unobstructed opening of at least 24 inches horizontally by 
26 inches vertically to be located within an exterior side door, in 
accordance with the proposed requirements of paragraph (a)(3)(i) of 
this section. FRA makes clear that, for purposes of determining 
compliance with the emergency window exit dimension requirements, the 
dimensions of the unobstructed opening are measured after the emergency 
window exit has been opened. The transparent area of the window for 
viewing use by passengers may be several inches smaller than the 
opening created once the window is removed, and that would be 
acceptable.
    FRA notes that a window exit in a passenger car ordered on or after 
September 8, 2000, or placed in service for the first time on or after 
September 9, 2002, that does not create an unobstructed opening meeting 
the minimum dimension requirements of this paragraph may not be 
considered an ``emergency window exit'' for purposes of this section 
and may not be marked as an ``emergency window exit.'' Nevertheless, 
FRA is not seeking to require that such a window exit be modified or 
removed, provided the passenger car is otherwise in compliance with all 
applicable emergency window exit requirements. For example, FRA is 
aware of window exits that do not create openings of the required 
dimensions because of the presence of seat backs that do not manually 
recline, and may therefore obstruct passage through the window of a 
stretcher or an emergency responder with a self-contained breathing 
apparatus but not a passenger or crewmember. It is not FRA's intent to 
discourage a railroad from retaining these additional window exits in 
its passenger cars, for circumstances such as those present in the 
derailment of an Amtrak train near Mobile, Alabama in 1993. There, six 
passenger cars fell into a bayou and submerged, drowning 42 passengers 
and two crewmembers in those cars, and killing all three crewmembers in 
the locomotive. In what has been the U.S.'s deadliest passenger train 
accident in over 50 years, train occupants needed to evacuate the cars 
as quickly as possible, potentially making the number of window exits 
more critical than their precise dimensions. (FRA is not suggesting 
that the cars lacked a sufficient number of exits, or that their 
dimensions were too small.)
    Nevertheless, FRA is inviting comment on window exits in passenger 
cars ordered on or after September 8, 2000, or placed in service for 
the first time on or after September 9, 2002, that have unobstructed 
openings not meeting the minimum dimension requirements of this 
paragraph. As FRA has noted, these window exits are not ``emergency 
window exits,'' and may not be identified as emergency window exits. 
However, FRA is not seeking to have these window exits removed, and is 
instead considering that pull-handles on these window exits may state 
or retain instructional markings such as ``pull to open.'' FRA invites 
comment on whether these window exits should or should not be removed, 
and, to the extent that they should not be removed, whether any 
instructional marking on these windows should be permitted. Since these 
windows could be used for emergency egress, if they are not removed, 
FRA also invites comment as to whether they should have to be tested 
periodically to ensure that they operate properly. Railroads are 
currently required to test emergency window exits no less frequently 
than every 180 days using commonly accepted sampling techniques to 
determine how many windows to test. In general, these principles 
require that the greater the percentage of window exits that a railroad 
finds defective, the greater the percentage of windows that the 
railroad will have to test. Specifically, sampling must be conducted to 
meet a 95-percent confidence level that no defective units remain and 
be in accord with either Military Standard MIL-STD-105(D), ``Sampling 
for Attributes,'' or American National Standards Institute ANSI-ASQC 
Z1.4-1993, ``Sampling Procedures for Inspections by Attributes.'' 
Although testing these window exits would appear desirable, a testing 
requirement may discourage railroads from retaining these windows at 
all.
    As the final part of the proposed reorganization and revision of 
this section, paragraph (d) would contain the requirements for marking 
emergency window exits, as well as providing operating instructions for 
their use. Marking and operating instruction requirements for emergency 
window exits are currently contained in Sec.  223.9(d)(1) of this 
chapter, and are currently referenced in paragraph (c) of this section. 
The requirements in Sec.  223.9(d)(1) would be moved to proposed 
paragraph (d) of this section and be modified. This paragraph would 
require that each emergency window exit be conspicuously marked with 
luminescent material on the inside of each car, and that legible and 
understandable operating instructions, including instructions for 
removing the window panel, be posted at or near each such window exit.
    Notably, proposed paragraph (d) would specifically require that 
emergency window exit operating instructions address potential 
hindrances to removal of the window

[[Page 50289]]

panel due to the presence of fixtures in the car. As discussed above, 
FRA became aware that the phrase ``rapid and easy'' in the requirement 
for emergency window exit ease of operability was not being interpreted 
uniformly. Central to the issue was the actual removal of the window 
panel in light of the weight of the window panel and the presence of 
interior fixtures near the window. It is not uncommon for a seatback to 
be located adjacent to an emergency window exit and for a luggage rack 
to be located above the exit. Even if the seat back does not affect 
compliance with the dimensions required for an unobstructed opening 
(especially in the case of a large window panel), it could, together 
with the presence of the luggage rack, hinder removal of the window. 
This combination of fixtures could create a situation where the most 
effective and efficient method for operating an emergency window exit 
would not be immediately apparent to a passenger, especially if the 
window were large and heavy. As a result, to promote the rapid and easy 
removal of the window panel, the Task Force recommended requiring that 
emergency window exit operating instructions specifically take into 
account such potential hindrances. Accordingly, if window removal may 
be hindered by the presence of a seatback, headrest, luggage rack, or 
other fixture, the instructions would be required to state the method 
for allowing rapid and easy removal of the window panel, taking into 
account the fixture(s). This particular portion of the instructions 
would be allowed to be in written or pictorial format to provide 
railroads the flexibility to convey the appropriate information to 
passengers, especially since a picture (pictogram) or pictures 
(pictograms) may potentially convey the information more readily than 
written instructions.
    FRA also notes that Sec.  223.9(d)(1) currently requires that the 
operating instructions for emergency window exits be ``clear and 
legible.'' FRA proposes to modify this requirement by replacing the 
word ``clear'' with the word ``understandable,'' so that railroads 
would be required to post ``legible and understandable'' operating 
instructions. Use of the word ``clear'' in Sec.  223.9(d) has created 
some confusion since it can have more than one meaning, and FRA 
believes the proposal would eliminate any further confusion.
    Finally, FRA notes that existing requirements in parts 223 and 239 
for the marking of emergency exits, as well as existing requirements in 
part 238 for the marking of emergency communications transmission 
points, specify the use of luminescent materials. (Door exits intended 
for emergency egress may also be lighted, in accordance with Sec.  
239.107(a)(1).) Part 238 defines ``luminescent material'' as material 
that absorbs light energy when ambient levels of light are high and 
emits this stored energy when ambient levels of light are low, making 
the material appear to glow in the dark. See Sec.  238.5. Proposed 
paragraph (d) would continue to require that luminescent material be 
used to mark emergency window exits. However, as further discussed 
below, the Task Force has been considering incorporating an APTA 
standard that would establish specific criteria for this material, 
including how bright the material must be and how long the material 
must stay luminescent.
    FRA's requirements to mark emergency window exits and other 
emergency exits originated with FRA Emergency Order No. 20. See 61 FR 
6876, Feb. 22, 1996; and 61 FR 8703, Mar. 5, 1996. Among its 
provisions, the Emergency Order required that ``no later than April 20, 
1996, commuter and intercity passenger railroads ensure that each 
emergency exit location is marked inside the car for passenger and crew 
information.'' In an effort to respond to this requirement as 
effectively as possible within the short timeframe required, affected 
railroads began to install photo-luminescent emergency exit markings 
that were available at the time. Many railroads installed signs made of 
zinc-sulfide, which were capable of providing luminance for a period of 
less than 10 minutes only in many cases. Following this, photo-
luminescent sign technology evolved, and materials, such as strontium-
aluminate, which is capable of providing high levels of luminance for 
much longer periods, began to be used. Prices for such signage also 
decreased, making the cost of such ``high-performance, photo-
luminescent'' (HPPL) signs comparable to that of the signs installed 
initially. Thus, in 1999, APTA issued APTA SS-PS-002-98, ``Standard for 
Emergency Signage for Egress/Access of Passenger Rail Equipment,'' 
requiring the use of HPPL materials for all newly installed passive 
emergency exit signs and for the retrofit of existing cars at their 
remanufacture. According to Revision 2 of this APTA standard, issued in 
2003, following a charge of five foot-candles for one hour, photo-
luminescent markings that are installed must emit a minimum of not less 
than 7.5 milli-candela per square meter (7.5 mcd/m\2\) for 90 minutes 
after removal of the charging source. The duration period of 90 minutes 
corresponds with the 90-minute duration requirement for emergency 
lighting contained in Sec.  238.115 for new passenger cars and is based 
on a reasonable amount of time for passengers and crew members to wait 
for the arrival of emergency responders to remote accident sites. 
Depending on the circumstances, it could take more than an hour for 
crewmembers to evaluate an emergency situation, coordinate with the 
control center and emergency responders, notify passengers on the 
appropriate action(s) to take, and if necessary, begin to evacuate the 
train. It is also possible for a seemingly minor emergency situation to 
evolve into a more significant one requiring evacuation. In conditions 
of darkness, a brighter sign is more easily recognizable and 
facilitates identification of emergency exits. These points have been 
discussed within the Task Force, and the Task Force has been focusing 
on revisions to the APTA standard for purposes of incorporating it into 
FRA's regulations. FRA is considering incorporating elements of this 
APTA standard into the final rule arising from this NPRM so that 
emergency exit signs in passenger cars would be required to be made of 
HPPL material, and FRA invites comment on doing so. FRA will evaluate 
the comments received in considering what standard should be 
established in the final rule.
Section 238.114 Rescue Access Windows
    FRA is proposing to establish a new section that would contain 
requirements for rescue access windows for both new and existing 
passenger cars. As discussed in detail, above, this proposed section 
was prompted in part by the April 23, 2002 collision involving a 
Metrolink passenger train near Placentia, CA, and the ensuing NTSB 
Safety Recommendation (R-03-21) to FRA, which illustrated the potential 
importance of having rescue access windows on each level of a passenger 
car. The general intent of the proposal is to provide a means of rescue 
access by emergency responders through a window directly into every 
passenger compartment on every level of a passenger car, in the event 
that a stairway or interior door is compromised and exterior doors are 
blocked.
    Paragraph (a) would contain requirements specifying the minimum 
number and location of rescue access windows. These requirements would 
apply on or after the effective date of the final rule to all passenger 
cars, except

[[Page 50290]]

for certain, existing single-level cars. As noted above, FRA's current 
regulations do not specifically require any minimum number of rescue 
access windows for passenger cars; however, they do require that 
windows that are intended for rescue access be marked and that 
instructions be provided for their operation. See Sec.  223.9(d)(2).
    Paragraph (a)(1) would contain the number and location requirements 
for rescue access windows in single-level passenger cars. FRA is 
proposing that each single-level passenger car be required to have a 
minimum of two rescue access windows. At least one rescue access window 
would have to be located in each side of the car, entirely within 15 
feet of the centerline of the car, or entirely within 7\1/2\ feet of 
the centerline if the car does not exceed 45 feet in length. As 
discussed above, the Task Force recommended requiring two windows for 
rescue access (versus four, as is required for emergency exit) mainly 
because rescue access windows are the third means of egress in the 
overall emergency systems approach, with doors and emergency windows 
being the first and second means of emergency exit.
    Rescue access windows in a single-level passenger car would be 
required to be located ``as close to the center of the car as 
possible,'' unlike emergency window exits which should be in a 
staggered configuration to the extent practical. See Figure 1a to 
subpart B; see also Figures 1b and 1c to subpart B. Staggering the 
location of emergency window exits is intended to: (i) Ensure that a 
window exit is available for egress in the event of crush at one end of 
the car by making available window exits throughout the rest of the 
car; (ii) optimize the rate of egress, as passengers have less distance 
to walk to reach a window exit; and (iii) avoid congestion that could 
occur if the window exits were all located adjacent to or directly 
opposite one another. Since, in general, a minimum of only one rescue 
access window per side, per level of a single-level passenger car would 
be required, the best way to ensure that a window would be available 
for access in the event that one end of a car is crushed would be to 
locate the window in the center portion of the car, which is generally 
less vulnerable to crush in the event of a collision. Congestion should 
likely not be an issue for rescue access window usage as car occupants 
should have likely begun to self-evacuate through doors and emergency 
window exits to the extent possible prior to the arrival of emergency 
responders.
    To ensure that railroads have sufficient flexibility to select 
those window locations best suited for rescue access, a 30-foot section 
along the center of a typical 85- to 90-foot-long passenger car would 
be designated for their location. This flexibility would allow 
railroads to take into consideration the location of external hazards 
(such as third-rail shoes); potential hindrances created by interior 
fixtures for those rescue access windows intended to be opened by being 
pushed inward into the passenger compartment; the location of emergency 
window exits in passenger cars without dual-function windows; and other 
factors that a railroad may deem relevant. For passenger cars not 
longer than 45 feet, approximately half the length of a standard 
passenger car, railroads would have the flexibility to select a rescue 
access window from among approximately three windows along a 15-foot 
section in the center of the car.
    If the seating level is obstructed by an interior door or otherwise 
partitioned into separate seating areas, the proposal would require 
that each separate seating area have at least one rescue access window 
in each side of the seating area, located as near to the center of the 
car as practical. This proposed requirement is consistent with the 
general objective of having at least one rescue access window on each 
side of a passenger seating area or passenger compartment. 
Nevertheless, FRA is not aware of any such single-level car in current 
operation in the United States to which this proposed requirement would 
apply.
    FRA notes that on some single level passenger cars, polycarbonate 
windows are installed in a channel in the window mask, which is itself 
installed in the car body with the frame compressed over the window to 
secure it. Removal of the window would require removal of the frame, 
which would be very difficult in an emergency situation. In addition, 
it would be costly for these cars to be retrofitted with glass windows 
(so that they could be shattered) or with zip-strip systems to 
literally un-zip the window panel from its frame and gasketing. On this 
type of equipment, the location requirement would be met by having a 
rescue access window available on each side of each end of the same 
passenger compartment, including in exterior side doors. An exception 
was crafted that would permit the location of the rescue access windows 
in four exterior side doors, and it was approved by the Task Force, 
Working Group, and the full RSAC. Although the recommended text was 
silent as to whether the windows were required to be located within 15 
feet of the car's centerline, FRA makes clear that no such restriction 
was intended to apply. As a result, FRA is expressly proposing that 
these windows could be located farther than 15 feet from the car's 
centerline, provided that there would be at least one such window in 
each side of each end (half) of the same passenger compartment--a 
minimum of four rescue access windows, overall. FRA believes that 
effectively requiring a minimum of four rescue access windows, instead 
of two, would be appropriate for granting flexibility for installing 
rescue access windows on existing equipment in side doors.
    Proposed paragraph (a)(1)(ii) would address the number and location 
requirements for rescue access windows for single-level passenger cars 
that were ordered prior to September 8, 2000, and placed in service 
prior to September 9, 2002, if equipped with manual door releases for 
at least two exterior side doors (or door leaves) in diagonally 
opposite quadrants of the cars. The manual door release would have to 
be capable of releasing the door (or door leaf) to permit it to be 
opened without power from outside the car, be located adjacent to the 
door (or door leaf) which it controls, and be designed and maintained 
so that an emergency responder could access the release from outside 
the car without requiring the use of a tool or other implement. The 
requirements of proposed paragraph (a)(1)(ii) would become effective 18 
months after publication of the final rule. FRA decided to propose to 
allow this additional time to install rescue access windows at least in 
part because these passenger cars are equipped with manual releases 
capable of opening side doors from outside of the car, as provided in 
Sec.  238.235(b), even though such releases are not required for such 
older passenger cars by that section.
    This proposed paragraph would also address those passenger cars 
equipped with compressed frame window systems in which rescue access 
windows would need to be retrofitted in the four side doors by 
replacing the polycarbonate glazing with glass that could be broken to 
gain access into the car. The 18-month implementation period would 
allow for the time necessary to plan and carry out the retrofit without 
disrupting train service. In the interim, emergency responders would 
continue to rely on the manual door releases to open the side doors for 
rescue access purposes should the need arise.
    In paragraph (a)(2) FRA is proposing minimum requirements for the 
number and location of rescue access windows in main levels of multi-
level passenger cars. Each main level in a multi-level

[[Page 50291]]

passenger car would be subject to the same, minimum requirements 
proposed for single-level passenger cars in paragraph (a)(1) of this 
section.
    In paragraph (a)(3) FRA is proposing minimum requirements for the 
number and location of rescue access windows in non-main levels of 
multi-level passenger cars with seating areas. These proposed 
requirements and exceptions for non-main levels with passenger seating 
would also be the same as those for emergency window exits on non-main 
levels with passenger seating. Specifically, paragraph (a)(3)(i) would 
require that any other level used for passenger seating in a multi-
level passenger car have at least two rescue access windows in each 
seating area to permit emergency responders to reach occupants without 
requiring movement through an interior door or to another level of the 
car. At least one rescue access window would have to be located in each 
side of the seating area. A rescue access window could be located 
within an exterior side door in the passenger compartment if it is not 
practical to place the rescue access window in the side of the seating 
area. See Figure 2a to subpart B; compare to Figure 2b to subpart B.
    Paragraph (a)(3)(ii) would require only one rescue access window in 
a seating area in a passenger compartment of a non-main level if it is 
not practical to place a rescue access window in a side of the 
passenger compartment due to the need to provide accessible 
accommodations under the ADA; there are no more than four seats in the 
seating area; and a suitable, alternate arrangement for rescue access 
is provided. The rationale for this exception is the same as the one 
for emergency window exits in non-main levels of multi-level passenger 
cars in proposed Sec.  238.113(a)(3)(ii), as discussed above.
    Proposed paragraph (a)(3)(iii) would provide that passenger cars 
both ordered prior to 14 months after publication of the final rule and 
placed in service prior to 38 months after publication of the final 
rule be required to have only one rescue access window in a seating 
area in a passenger compartment of a non-main level if it is not 
practicable to place a rescue access window in a side of the passenger 
compartment (due to the presence of such structures as a bathroom, 
electrical locker, or kitchen) and there are no more than eight seats 
in the seating area. For more background on this proposal, please see 
the related discussion above for emergency window exits in such seating 
areas.
    In paragraph (a)(4) FRA is proposing minimum requirements for the 
number and location of rescue access windows for passengers cars with a 
sleeping compartment or similar private compartment. Each level of a 
passenger car with a sleeping compartment or a similar private 
compartment intended to be occupied by passengers or train crewmembers 
would be required to have a minimum of one rescue access window in each 
such compartment. For purposes of this paragraph, a bathroom, kitchen, 
and locomotive cab are not considered a ``compartment.'' These proposed 
requirements reflect current practice. Amtrak cars with sleeping 
compartments are already equipped with a window in each such 
compartment that is capable of being used for both emergency egress and 
rescue access.
    Proposed paragraph (a)(5) would address the use of dual-function 
windows as rescue access windows. If on any level of a passenger car 
the emergency window exits installed to meet the minimum requirements 
of Sec.  238.113 are intended to function as rescue access windows, the 
requirements of paragraphs (a)(1) through (a)(4) of this section for 
the number and location of rescue access windows would be met for that 
level. Under this provision, four rescue access windows would be 
required for cars with dual-function windows that do not have at least 
one rescue access window in each side within 15 feet of the centerline 
of the car.
    Proposed paragraph (b) would contain the requirements for the ease 
of operability of rescue access windows. The requirements would apply 
on or after the effective date of the final rule, and would require 
that each rescue access window be capable of being removed without 
undue delay by an emergency responder using either a provided external 
mechanism, or tools or implements that are commonly available to the 
responder in a passenger train emergency, such as a sledge hammer or a 
pry bar. FRA notes that the proposed performance requirement for 
removing windows ``without undue delay'' is intended to be less 
stringent than the performance requirement of ``rapid and easy'' for 
emergency window exits. For example, using a sledge hammer to shatter a 
glass window would be considered removal without undue delay. Windows 
that are not made of glass may also be designed to be removed without 
undue delay by an emergency responder, through use of an axe, sledge 
hammer or similar large impact tool to strike the window at an 
appropriate point so that the window panel will push inward.
    Proposed paragraph (c) would contain the requirements for the 
dimensions of rescue access windows. Each rescue access window in a 
passenger car, including a sleeping car, ordered on or after 14 months 
after publication of the final rule, or placed in service for the first 
time on or after 38 months after publication of the final rule, would 
be required to have an unobstructed opening with minimum dimensions of 
26 inches horizontally by 24 inches vertically. A rescue access window 
located within an exterior side door, in accordance with the 
requirements of proposed paragraph (a)(3)(i) of this section, would be 
permitted to have an unobstructed opening with minimum dimensions of 24 
inches horizontally by 26 inches vertically. A seatback would not be 
considered an obstruction if it could be moved away from the window 
opening without requiring the use of a tool or other implement. The 
proposed dimensions for rescue access window unobstructed openings 
would be the same as those for emergency window exit unobstructed 
openings. Accordingly, FRA's reasoning for proposing these minimum 
dimensions for emergency window exits applies here. These minimum 
dimensions should allow an emergency responder equipped with a self-
contained breathing apparatus to pass through the window, as well as 
allow a person to be carried through the window on a stretcher of 
common size.
    As discussed above, FRA is proposing that existing rescue access 
window marking and operating instruction requirements, which are 
contained in Sec.  223.9(d)(2), be modified and moved to paragraph (d) 
of Sec.  238.114. Each rescue access window is currently required to be 
``marked with a retroreflective, unique, and easily recognizable symbol 
or other clear'' marking. FRA is proposing to restate these 
requirements to make clear that rescue access windows must be marked 
with retroreflective material. Second, FRA is making clear that a 
unique and easily recognizable symbol, sign, or other conspicuous 
marking must be used to identify each rescue access window. FRA would 
replace the word ``clear'' in the existing requirements with the word 
``conspicuous'' and add the word ``sign'' as another example of a 
conspicuous marking. This revision would make clear that use of 
retroreflective material to mark a rescue access window is a distinct 
requirement in itself, to enable emergency responders to quickly 
identify rescue access windows under conditions of darkness by shining 
a

[[Page 50292]]

flashlight on a car. Second, the revision would make clear that the 
window must also be marked by a unique and easily recognized symbol, a 
sign (such as ``RESCUE ACCESS''), or other conspicuous marking (such as 
delineation of the window by means of a contrasting color). Both 
requirements could be met by the same marking. Current regulations also 
require that each railroad post ``clear and understandable'' window 
access instructions either at each rescue access window or at each end 
of the car. FRA is proposing that the word ``clear'' be replaced with 
the word ``legible,'' so that railroads would be required to post 
``legible and understandable'' operating instructions. Use of the word 
``clear'' in Sec.  223.9(d) has created some confusion since it can 
have more than one meaning, and FRA believes the proposal would 
eliminate any further confusion.
    As noted above in the discussion of emergency window exits, the 
Task Force has been focusing on draft revisions to APTA SS-PS-002-98, 
Rev. 2, ``Standard for Emergency Signage for Egress/Access of Passenger 
Rail Equipment,'' in order to recommend whether some or all of its 
contents should be incorporated into FRA's regulations. This APTA 
Standard also contains detailed criteria for marking rescue access 
windows, including the use of retroreflective material. FRA invites 
comment on whether the criteria in the APTA Standard or in draft 
revisions to this Standard for marking rescue access windows are 
appropriate for use in the final rule.
    FRA is also proposing to modify current requirements so that it 
would no longer be permissible to have window access instructions 
solely at the end of the car. Instead, legible and understandable 
rescue access window instructions, including instructions for removing 
the window, would be required to be posted at or near each rescue 
access window. The Task Force agreed that rescue access efforts could 
be unduly delayed by posting rescue access window operating 
instructions at the end of a car, potentially more than 40 feet away 
from the rescue access window to which the instructions apply.
Section 238.117 Emergency Communications
    Currently, Sec.  238.117 contains requirements for ``protection 
against personal injury,'' e.g., installing guards on moving parts of 
passenger equipment. FRA is proposing to redesignate this Sec.  238.117 
as Sec.  238.121. In its place, FRA is proposing that this section 
contain the requirements for systems that may be used for passenger and 
crew communication in the event of an emergency. This would keep the 
emergency system requirements together in section numbering sequence 
for benefit of the reader. This proposed section would establish 
emergency communication requirements for Tier I passenger equipment and 
replace the current emergency communication's requirements in Sec.  
238.437 for Tier II passenger equipment. Overall, the proposed 
requirements generally reflect current practice for Tier I passenger 
equipment and existing requirements for Tier II passenger equipment.
    Paragraph (a) contains proposed requirements for public address 
(PA) systems for both existing and new Tier I and Tier II passenger 
cars. Most passenger cars used in commuter and intercity service are 
equipped with PA systems that train crews often use to notify 
passengers of the nature and expected duration of delays. If a person 
requires immediate medical attention, the crew may also use the PA to 
request assistance from someone onboard with medical training. Railroad 
representatives on the Task Force noted that PA systems are 
particularly beneficial in the immediate aftermath of an accident to 
provide instructions for appropriate passenger action. In light of a 
security threat or other emergency situation requiring rapid evacuation 
of an area, crews may also use the PA system to instruct passengers to 
deboard as quickly as possible. If there is a hazard on one end of the 
train or one side of the train, crews may use the PA system to notify 
passengers of the hazard and direct them to use the appropriate exit 
route(s) that would avoid or minimize their exposure to the hazard. Of 
course, all things being equal, the safest place for passengers is to 
remain onboard the train. Deboarding could aggravate an emergency 
situation, particularly if passengers step onto the right-of-way. 
Accordingly, the crew must have the means to provide passengers with 
appropriate instructions as soon as possible.
    Paragraph (a)(1) would require that on or after January 1, 2012, 
each Tier I passenger car be equipped with a PA system that provides a 
means for a crewmember to communicate to all train passengers in an 
emergency situation. FRA understands that existing Tier I passenger 
cars that currently do not have PA systems are scheduled to be retired 
before 2012 and thus would be removed from service before the 
requirement would apply.
    FRA notes that APTA's PRESS Task Force is currently evaluating the 
feasibility of a wireless, two-way communication system that would 
function independently of the train line, i.e., not rely on the train 
line for power. The wireless system is intended to provide a means of 
two-way communication in the event that the train line is broken, as 
may occur as a result of certain collisions or derailments. However, 
FRA makes clear that it is not currently proposing to require in this 
section that the communication system be wireless; communication 
through use of a train line would be permitted.
    Paragraph (a)(2) contains proposed requirements for new Tier I and 
all Tier II passenger cars. As is stated for existing Tier I passenger 
cars in proposed paragraph (a)(1), this paragraph would require that 
each Tier I passenger car ordered on or after 60 days after publication 
of the final rule, or placed in service for the first time on or after 
26 months after publication of the final rule, and all Tier II 
passenger cars be equipped with a PA system that provides a means for a 
crewmember to communicate to all train passengers in an emergency 
situation. In addition, PA systems in new Tier I and all Tier II 
passenger cars would be required to provide a means for a crewmember to 
communicate in an emergency situation to persons in the immediate 
vicinity of the train (e.g., on the station platform). These proposed 
requirements include the basic features of PA systems installed in most 
recently-manufactured Tier I passenger cars and in all existing Tier II 
passenger trains.
    Finally, it should be noted that the PA system may be part of the 
same system as the intercom system. A shared configuration is quite 
common on cars equipped with both PA and intercom systems.
    Paragraph (b) contains the proposed requirements for intercom 
systems. Traditionally, conductors and assistant conductors have been 
relied upon to relay information to passengers in both normal and 
emergency situations through face-to-face interaction or by use of a PA 
system. However, with smaller crew sizes, such face-to-face 
communication may not be possible for passengers to quickly communicate 
to the crew a medical emergency, safety concern, or security threat 
requiring immediate attention. For instance, a passenger in the last 
car of a train who needs to communicate a safety or security threat to 
a crewmember could potentially have to walk the entire length of the 
train to do so (assuming the crew is composed of an engineer and one 
conductor, who in this circumstance would be in the first car at the 
time). Furthermore, if the

[[Page 50293]]

conductor were incapacitated, passengers would need to communicate with 
the engineer. The Task Force therefore recommended that emergency 
communication systems in new passenger cars should include intercom 
systems to enable passengers to quickly communicate emergency 
situations to the train crew. These proposed requirements reflect 
common intercom system configurations for new passenger cars.
    Specifically, paragraph (b)(1) contains the proposed intercom 
system requirements for new Tier I and all Tier II passenger cars. Each 
Tier I passenger car ordered on or after 60 days after publication of 
the final rule, or placed in service for the first time on or after 26 
months after publication of the final rule, and all Tier II passenger 
cars would be required to be equipped with an intercom system that 
provides a means for passengers and crewmembers to communicate with 
each other in an emergency situation. Passenger cars that are at least 
45 feet in length would be required to have a minimum of one intercom 
in each end (half) of each car that is accessible to passengers without 
requiring the use of a tool or other implement. Although some passenger 
cars currently equipped with intercom systems have one located in each 
end, others have only one per car. An intercom in each half of a car is 
proposed so that passengers would have access to an intercom within 
half a car length, which is normally 42 to 45 feet, and would not have 
to pass into an adjoining car. As long as intercoms are accessible to 
passengers, they may be placed anywhere in each end (half) of the car 
and not necessarily in the far ends.
    Proposed paragraph (b)(1) would continue the logic of existing 
Sec.  238.437 by requiring only one intercom for a passenger car that 
does not exceed 45 feet in length, such as the Talgo passenger cars 
operated by Amtrak. As the length of a conventional passenger is 
typically between 85 and 90 feet, FRA believes it appropriate to 
require a car not more than half that length to have only one intercom 
location. This proposed paragraph would also continue to require, as 
Sec.  238.437 currently does, that a Tier II passenger car ordered 
prior to May 12, 1999, be equipped with only one intercom. This 
exception corresponds to the current requirements for Tier II passenger 
equipment, as discussed in the April 23, 2002, final rule. See 67 FR 
19986. The preamble to that rule explained that after FRA had proposed 
that intercoms be located at each end of a Tier II passenger car, 
Amtrak indicated that not all passenger cars in its high-speed 
trainsets had intercom transmission locations at each end of the cars, 
and further noted that the intercoms would be difficult to install at 
the non-vestibule ends of the cars. As these trainsets were in 
development in advance of both the then-proposed and final rules, FRA 
made an exception for all cars ordered prior to May 12, 1999.
    Some Task Force members were concerned that making the intercoms 
accessible to passengers without requiring the use of a tool or other 
implement could lead to misuse that could unnecessarily distract the 
train operator. However, representatives from Amtrak and various 
commuter railroads that operate cars with intercom systems indicated 
that they have successfully implemented measures to deter misuse. For 
instance, on some passenger cars, the intercom transmission device is 
located in a safety compartment designated and marked for emergency 
communications only. FRA invites comment on whether passenger misuse of 
intercom systems has been identified as a problem, and, if so, FRA 
invites suggestions for measures that could curb such misuse without 
rendering the systems inaccessible to passengers in an emergency. FRA 
makes clear that intercoms would need to be accessible to passengers 
with disabilities to the extent required by the ADA and its 
implementing regulations.
    Paragraph (b)(2) would require that the location of each intercom 
intended for passenger use be clearly marked with luminescent material 
and that legible and understandable operating instructions be posted at 
or near each such intercom to facilitate passenger use. These 
requirements would apply to each Tier I passenger car on or after 26 
months after publication of the final rule, and continue to apply to 
each Tier II passenger car. Some railroad representatives noted that 
although instructions are currently posted at the intercom locations on 
their cars, there are no luminescent markings. Thus, luminescent 
marking of each intercom location is proposed to ensure that the 
intercom can be easily identified for use in the event that both normal 
and emergency lighting are not functioning. The posted operating 
instructions, however, would not need to be luminescent under the 
proposal, as some Task Force members have indicated that the 
instructions may be easier to read when not luminescent.
    As noted in the discussion concerning emergency window exit 
signage, above, APTA SS-PS-002-98, Rev. 2, ``Standard for Emergency 
Signage for Egress/Access of Passenger Rail Equipment,'' contains 
specific criteria for luminescent markings. The Task Force has been 
focusing on additional revisions to this APTA Standard in order to 
recommend whether to incorporate some or all of its contents into part 
238 by reference and thereby require that luminescent markings for 
intercoms comply with the Standard as it relates to luminescent 
markings. APTA PRESS has also indicated that they will revise APTA SS-
PS-001-98, ``Standard for Passenger Railroad Emergency 
Communications,'' to include more specific requirements for marking 
emergency communication systems. In the meantime, FRA invites comment 
whether the luminescent material that would be required by this 
proposed paragraph should be HPPL material. FRA will evaluate any 
comments received in considering whether a requirement for use of HPPL 
material should be established in the final rule.
    Paragraph (c) would continue to require that PA and intercom 
systems on Tier II passenger trains have back-up power for a minimum 
period of 90 minutes. See Sec.  238.437(d). An example of a back-up 
power source is a passenger car battery. The Task Force approved a 
recommendation for a back-up power requirement for new Tier I passenger 
cars, similar to the requirements contained in Sec.  238.115(b)(4) for 
emergency lighting back-up power systems. That is, the back-up power 
system would have to be capable of operating in: all equipment 
orientations within 45 degrees of vertical; after the initial shock of 
a collision or derailment resulting in individually applied 
accelerations of 8g longitudinally, 4g laterally, and 4g vertically; 
and for at least 90 minutes. Yet, this recommendation was not forwarded 
to the Working Group, due to an oversight. Given that backup power to 
the PA and intercom systems could be supplied by the same source as 
that for the emergency lighting system, and that the amount of power 
required would likely be only a fraction of that required for the 
emergency lighting system, FRA has no reason to believe that this 
recommendation would not have received the full support of the Working 
Group or full RSAC. As a result, FRA is considering inserting in the 
final rule a back-up power system requirement containing the provisions 
recommended by the Task Force, and FRA invites comment on doing so. In 
particular, FRA seeks comment whether the system needs to be capable of 
providing continuous communication over the 90-minute period, or only 
intermittent

[[Page 50294]]

communication, which would draw less battery power. Providing the means 
to communicate continually for a 90-minute period may not be necessary, 
and FRA invites comment as to how many minutes of intermittent 
communication would need to be provided.
Section 238.118 Emergency Roof Access
    This section, which is being proposed for addition to part 238, 
contains emergency roof access requirements for Tier I and Tier II 
passenger cars ordered on or after 14 months after publication of the 
final rule, or placed in service for the first time on or after 38 
months after publication of the final rule. Requirements for Tier II 
power cars and existing Tier II passenger cars remain in Sec.  238.441, 
as discussed below. The emergency roof access requirements for Tier II 
passenger equipment contained in Sec.  238.441 and APTA PRESS 
recommended practice RP-C&S-001-98, ``Recommended Practice for 
Passenger Equipment Roof Emergency Access,'' served as the basis for 
the proposed requirements in this section.
    Emergency roof access locations (roof hatches or structural weak 
points) can be especially useful in emergency situations where 
passenger cars have rolled onto their sides following certain collision 
and derailment scenarios. All things being equal, car rollover or tilt 
should result in more severe injuries than when a car remains upright, 
as occupants may be thrown greater distances inside the car. This 
increases the potential need for rescue access of the car's occupants 
by correspondingly reducing the likelihood that the occupants can 
evacuate the car on their own. In such a situation, doors, which are 
the preferred means of access under normal circumstances, may be 
rendered inoperable due to structural damage to the door or the door 
pocket, as a result of the incident. In particular, end doors, which 
due to the direction they face would normally be better suited for use 
than side doors when a car has tilted or rolled onto its side, may also 
be blocked, jammed, or otherwise unavailable for use. Moreover, 
although emergency responders may be able to enter a car that is on its 
side via a rescue access window, the removal of an injured occupant 
through a side window in such circumstances can be difficult or 
complicated, especially depending upon the condition of the occupant.
    Paragraph (a) contains proposed requirements for the number and 
dimensions of emergency roof access locations. Each passenger car 
ordered on or after 14 months after publication of the final rule, or 
placed in service for the first time on or after 38 months after 
publication of the final rule, must have a minimum of two emergency 
roof access locations. Although Tier II passenger cars and power cars 
are currently required to have at least one roof hatch for emergency 
roof entry or at least one structural weak point for properly equipped 
emergency personnel to quickly access a car, many new Tier I multi-
level passenger cars are currently being manufactured with up to four 
structural weak points in the roof. In determining the minimum number 
of access points needed for new Tier I and Tier II passenger cars, the 
Emergency Preparedness Task Force agreed it would be useful to protect 
the emergency roof access location against crush at either end of the 
car. To do so would require placement of the location away from the far 
ends of the car or, at a minimum, placement not in the same end (half) 
of the car in the event that the end with the access points becomes 
crushed. Second, the Task Force thought it prudent to facilitate rescue 
access by having the access points located within the bottom half of 
the car's roof, so that the bottom of the opening would be closer 
(lower) to the ground and thus, presumably, more easily accessible when 
the car is on its side. This would require having one access point on 
either side of the roof's longitudinal centerline. To accomplish both 
goals, the Task Force recommended having two access points located at 
diagonally opposite quadrants of the roof. See Figure 3 to subpart B.
    Under the proposal, each roof access location would be required to 
have a minimum opening of 26 inches longitudinally (i.e., parallel to 
the longitudinal axis of the car) by 24 inches laterally. These 
dimensions are consistent with the minimum dimension requirements for 
emergency window exits specified for new passenger cars in the 1999 
Passenger Equipment Safety Standards final rule, see 64 FR 25673, and 
were based on specifying opening requirements necessary to allow 
passage of an emergency responder equipped with a self-contained 
breathing apparatus or fire gear, as well as to allow passage of a 
person being carried on a backboard or basket stretcher, see 64 FR 
25595-25596.
    In discussing the issue of appropriate dimensions for emergency 
roof access locations, Task Force members noted that in order to gain 
access to a car via a structural weak point, a responder would normally 
have to cut through the roof skin, which is usually steel, and then 
through the lining. In some cases, a responder may have to cut through 
additional non-rigid structures. If the outside dimensions are only 26 
inches longitudinally by 24 inches laterally, and multiple cuts through 
car structures are required to gain access to the passenger 
compartment, this could present a problem for emergency responders, 
since each subsequent cut made using a saw would potentially result in 
a smaller opening. Consequently, railroads and car builders would need 
to take this into account when designing structural weak points and 
ensure that the dimensions of the final cut in such circumstances would 
still result in an opening meeting the minimum dimension requirements.
    Paragraph (b) would provide that permissible means of emergency 
roof access include either a hatch, or a clearly marked structural weak 
point in the roof for access by properly equipped emergency response 
personnel. Structural weak points, commonly known as ``soft spots,'' 
are usually created by routing cables, wiring, and piping in the roof 
of the car around the location designated for roof access. The proposal 
would afford railroads the flexibility of installing either roof 
hatches or providing structural weak points in the roof, as each 
individual railroad would be in the best position to decide which one 
is preferable taking into consideration such factors as the car's 
intended use and the safety hazards presented by one versus the other. 
For example, although roof hatches could provide a means of self-
evacuation in addition to a means of access, placing them in the roofs 
of multiple-unit (MU) locomotives which rely on overhead catenary 
systems for power could create an electrocution hazard for occupants 
attempting to self-evacuate in an emergency.
    Paragraph (c) would require that emergency roof access points be 
located, insofar as practical, in such a manner that when a car is on 
its side: (i) One emergency roof access location is wholly within each 
half of the roof as divided top from bottom; and (ii) one emergency 
roof access location is wholly within each half of the roof as divided 
left from right. See Figure 3 to subpart B. Use of the word 
``practical'' would allow railroads and car builders some discretion 
regarding the location of the access points and would be necessary to 
accommodate particular equipment types. For instance, some electric MU 
equipment has pantographs that take up a significant portion of one end 
of the rooftop, making it difficult to place one emergency access 
location wholly within each half of the car's roof.

[[Page 50295]]

Additionally, on some passenger cars that have luggage racks, it may be 
more practical to place the emergency access location so that it is not 
wholly within the bottom half of the car's roof (when the car is on its 
side) if doing so would facilitate rescue access by eliminating the 
need for emergency responders to cut through or maneuver around the 
luggage racks to get to passengers.
    Paragraph (d) contains proposed requirements related to 
obstructions and would require that the ceiling space below each 
emergency roof access location be free from wire, cabling, conduit, and 
piping. Additionally, paragraph (d) would require that, where 
practicable, this space also be free of rigid secondary structure(s) 
(e.g., diffusers and diffuser support, lighting back fixtures, mounted 
PA equipment, and luggage racks). In determining the placement of the 
emergency roof access locations, railroads and manufacturers would need 
to consider the requirements of Sec.  238.118 as a whole. Use of the 
word ``practical'' in paragraph (c) is intended to allow more 
discretion than use of the word ``practicable'' in this paragraph (d). 
For example, in a situation where placement of an emergency roof access 
location wholly within the bottom half of a car's roof (when the car is 
on its side) would result in obstruction by a rigid secondary 
structure, a railroad would be required to place the roof access 
location elsewhere so as to avoid the obstruction, even though this may 
result in its placement partially in both sides of the roof, or 
otherwise not wholly within each half of the roof. In such a situation, 
the rule would recognize that avoidance of the rigid secondary 
structure would be more critical than the exact location of the 
emergency roof access location.
    If emergency roof access is provided by means of a hatch, it must 
be possible to push interior panels or liners out of their retention 
devices and into the interior of the vehicle after removing the hatch. 
For example, for car interior aesthetics, it would not be uncommon to 
cover the area below the hatch with lining and use velcro to secure the 
lining in place. This type of cover and securement would make it 
possible for emergency responders to reach the interior of the vehicle 
by pushing in the lining after removing the hatch. This is just one 
example, and other types of covers and means of securement would be 
permissible provided emergency responders would be able to push through 
them to reach the interior of the vehicle after removing the hatch.
    If emergency roof access is provided by means of a structural weak 
point, the proposal states that it shall be permissible to cut through 
interior panels, liners, or other non-rigid secondary structures after 
making the cutout hole in the roof. However, any such additional 
cutting that would be required must permit a minimum opening of the 
dimensions specified in paragraph (a) to be maintained. In this regard, 
having to make additional cuts could affect the size of the markings 
indicating the structural weak points, as proposed to be required in 
paragraph (e).
    Paragraph (e) contains proposed requirements for providing markings 
of, and instructions for, emergency roof access locations. Each 
emergency roof access location would be required to be clearly marked 
with retroreflective material of contrasting color. The retroreflective 
material is intended to enable emergency responders to quickly identify 
the access locations by shining a light on the roof. FRA notes that 
APTA is in the process of revising APTA SS-PS-002-98, Rev. 2, 
``Standard for Emergency Signage for Egress/Access of Passenger Rail 
Equipment,'' which contains more specific requirements for 
retroreflectivity than provided for in this NPRM. The Task Force has 
been reviewing draft revisions to this standard and intends to make a 
recommendation concerning its incorporation into part 238, once the 
standard is revised. As a result, the final rule may incorporate more 
detailed APTA retroreflectivity criteria for marking emergency roof 
access locations.
    Paragraph (e) also proposes to require that legible and 
understandable instructions be posted at or near each emergency roof 
access location. These instructions would not need to be 
retroreflective for two principal reasons: it can be difficult to read 
writing on certain grades of retroreflective materials while shining 
light on them, and light used to identify the emergency rescue access 
locations would likely be available for reading the instructions as 
well. This proposal is consistent with the existing and proposed 
requirements for marking rescue access windows. As an additional 
requirement, paragraph (e) proposes that if emergency roof access is 
provided by means of a structural weak point, the line along which the 
roof skin would be cut would be required to be clearly marked with 
retroreflective material. The size of the border marking may have to be 
larger than 24 inches laterally by 26 inches longitudinally to ensure 
that any cuts in addition to the cut through the roof skin would retain 
the minimum dimensions required for the opening. Structural weak points 
would also be required to have a sign plate with a retroreflective 
border that states as follows:
    CAUTION--DO NOT USE FLAME-CUTTING DEVICES.
    CAUTION--WARN PASSENGERS BEFORE CUTTING.
    CUT ALONG DASHED LINE TO GAIN ACCESS.
    ROOF CONSTRUCTION--[STATE RELEVANT DETAILS].
    In particular, the proposal would require providing a warning 
against use of a flame-cutting device during a rescue access attempt to 
avoid creation of a fire hazard. This is especially important since 
rescue access is usually a last resort for those who cannot self-
evacuate due to being injured or disabled, as well as due to the lack 
of a viable exit. Emergency responders usually have a variety of tools 
available to them at the scene of an emergency, including a specialized 
saw which can be used to cut through steel, and do not have to rely on 
flame-cutting devices.
Section 238.121 Protection Against Personal Injury
    As discussed above, FRA is proposing to redesignate current Sec.  
238.117 (``Protection against personal injury'') as Sec.  238.121 with 
no substantive change to the section's requirements.

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

Section 238.303 Exterior Calendar Day Mechanical Inspection of 
Passenger Equipment
    This section contains the proposed requirements related to the 
performance of exterior mechanical inspections of passenger cars (e.g., 
passenger coaches, MU locomotives, and cab cars) and unpowered vehicles 
used in a passenger train each calendar day that the equipment is used 
in service. Paragraph (e) of this section identifies the various 
components that are required to be inspected as part of the exterior 
calendar day mechanical inspection.
    FRA proposes to insert a new paragraph (e)(18) that would require 
that all rescue-access-related exterior markings, signage, and 
instructions required by proposed Sec.  238.114 (rescue access windows) 
and existing Sec.  239.107 (emergency exits) be in place and, as 
applicable, conspicuous, and/or legible. Proposed paragraph (e)(18)(i) 
would allow passenger cars with any required rescue-access-related 
exterior markings, signage, or instructions that are missing, 
illegible, or inconspicuous, as applicable, to remain in passenger 
service until the equipment's fourth

[[Page 50296]]

exterior calendar day mechanical inspection or next periodic mechanical 
inspection required under Sec.  238.307, whichever occurs first, after 
the non-complying condition is discovered, where it would have to be 
repaired or removed from service.
    The four-day repair flexibility is proposed to allow railroads to 
schedule repairs at locations where they can be performed safely and in 
a manner that would avoid disrupting normal operations. Railroad 
representatives on the Task Force noted that not all yards are properly 
equipped for personnel to safely, effectively, or efficiently remove 
and replace signage on the exterior of cars. For example, work on the 
upper levels of cars can be more safely performed at maintenance 
facilities that have platform ladders. In addition, various vendors 
noted that signs and markings must be applied on a dry, clean surface 
at temperatures of approximately 65 degrees Fahrenheit and must be 
allowed to set for up to two hours. Graffiti may render a sign, 
marking, or instruction illegible and thus in need of replacement. 
Proper removal of a sign can be a long and tedious process because the 
adhesives used are difficult to remove. This coupled with the 
conditions necessary for application of a sign may make it an 
unfeasible task for some railroads to perform during an exterior 
calendar day mechanical inspection. Furthermore, some long-distance 
intercity train trips take three or four days to complete and many of 
the en-route repair locations may not be appropriate places to make the 
repairs to signage. Removing a car from service for missing rescue 
access signage before it reaches its final destination could result in 
stranding passengers on platforms or require that the same number of 
passengers ride in a fewer number of cars, with fewer emergency exits 
available to them as a whole. Thus, the safety of both railroad 
employees and railroad passengers necessitates that some flexibility be 
provided that would allow equipment to continue to operate in service 
for a sufficient amount of time to reach a suitable repair location or 
the train's final destination.
    In paragraph (e)(18)(ii), FRA proposes to provide even greater 
flexibility for use of passenger cars with required rescue-access-
related exterior markings, signage, or instructions that are missing, 
illegible, or inconspicuous on a side of a level of a car that has more 
than 50 percent of the windows designated and properly marked for 
rescue access. Such a car would be permitted to remain in passenger 
service until no later than the car's next periodic mechanical 
inspection required under Sec.  238.307, where it would have to be 
repaired or removed from service. FRA agrees with the Task Force 
recommendation that this added flexibility for these types of cars 
recognizes the extra effort that a railroad undertakes by designating 
and identifying a greater number of rescue-access windows than would be 
required under proposed Sec.  238.114. A single act of vandalism may 
destroy multiple signs, markings, and instructions or render them 
illegible or inconspicuous. Placement or replacement of several signs 
could take more time than may be scheduled for maintenance of the car 
prior to the periodic mechanical inspection. FRA believes it would make 
little sense to require immediate repair of the damaged markings when 
more than a sufficient number meeting the requirements of proposed 
Sec.  238.114 are still present on the equipment. Moreover, without 
such flexibility, railroads would likely be discouraged from 
designating more rescue-access windows than are proposed to be required 
by Sec.  238.114.
    Similarly, proposed paragraph (e)(18)(iii) would provide 
flexibility for the continued use of a sleeping car that has more than 
two consecutive windows with any required rescue-access-related 
exterior markings, signage, or instructions at or near their locations 
that are missing, illegible, or inconspicuous. Such a car may be 
operated in passenger service until the car's next periodic mechanical 
inspection required under Sec.  238.307, where it would have to be 
repaired or removed from service. FRA believes this flexibility is 
necessary because each sleeping compartment intended to be occupied by 
passengers or train crewmembers would be required to have a minimum of 
one rescue access window in the compartment under proposed Sec.  
238.114 and most sleeping compartments have only one window. If two 
consecutive windows were missing exterior markings, signage, or 
instructions, an emergency responder would still be readily able to 
gain access via the window by relying on the signage, markings, or 
instructions posted at a nearby window.
    Proposed paragraph (e)(18)(iv) requires that a record of any non-
complying marking, signage, or instruction described in paragraphs 
(e)(18)(i) through (iii) be maintained. The record would have to 
contain the date and time that the defective condition was first 
discovered and be retained until all necessary repairs were completed. 
These records are necessary for purposes of tracking when the defect 
was first discovered and would be utilized in determining when repairs 
would have to be made on cars that remain in passenger service. Most 
commuter and intercity railroads already keep these type of records 
electronically.
Section 238.305 Interior Calendar Day Mechanical Inspection of 
Passenger Cars
    This section contains the requirements related to the performance 
of interior calendar day mechanical inspections of passenger cars 
(e.g., passenger coaches, MU locomotives, and cab cars) each calendar 
day that the equipment is used in service. Paragraph (c) identifies the 
various components that are required to be inspected as part of the 
interior calendar day mechanical inspection. Under the current rule, 
all en route-defects and all noncomplying conditions under this section 
must be repaired at the time of the daily interior inspection or the 
equipment is required to be locked-out and empty in order to be placed 
or remain in passenger service, with the exception of non-complying 
conditions related to paragraphs (c)(5) through (c)(10).
    FRA is proposing to slightly modify existing paragraph (c)(10) in 
order to add a condition under which a car with non-compliant end doors 
and side doors may continue in passenger service pursuant to paragraph 
(d) of this section. The current conditions for such operation are: 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. In addition to 
those conditions, FRA proposes to require that the train crew be 
provided written notification of the non-complying condition. This 
additional condition would ensure that crewmembers are aware of a door 
that may not be available for use in an emergency situation that 
requires the off-loading of passengers. Under the existing regulation, 
train crews may not realize a door is defective until they actually try 
to use it. If an emergency requiring the rapid off-loading of 
passengers should occur before the crew notices that the door is 
inoperative, then the crew might direct passengers to that door, which 
could unnecessarily delay the evacuation of the train.
    FRA is also proposing to add new paragraph (c)(12) to cover the 
inspection of PA and intercom systems. Paragraph (c)(12) contains 
proposed requirements for ensuring that, on passenger cars so equipped, 
PA and intercom systems are operative and function as intended as part 
of the interior calendar day mechanical inspection. This paragraph

[[Page 50297]]

also proposes flexibility for handling non-complying equipment, 
provided the train crew is given written notification of the defect and 
a record of the time and date the defect was discovered is maintained. 
Thus, a passenger car with an inoperative or non-functioning PA or 
intercom system would be permitted to remain in passenger service until 
no later than the car's fourth interior calendar day mechanical 
inspection or next periodic mechanical inspection required under Sec.  
238.307, whichever occurs first, or for a passenger car used in long-
distance intercity train service until the eighth interior calendar day 
mechanical inspection or next periodic mechanical inspection required 
under Sec.  238.307, whichever occurs first, after the non-complying 
condition is discovered. At that time, the PA or intercom system, or 
both, would have to be repaired, or the car would have to be removed 
from service.
    Railroad representatives on the Task Force noted that PA systems 
are currently inspected on a daily basis and any necessary repairs are 
made at the first convenient opportunity. The provision requiring that 
the train crew be given written notification of any non-compliant PA or 
intercom is proposed to ensure that the crew is aware of any non-
functioning system(s) and will not rely upon any such system for 
communication in the event of an emergency situation. Without such 
notification, the train crew could mistakenly rely on a system that is 
inoperative, which could potentially hinder resolution of an emergency 
situation where the crew relies on using the PA or intercom system to 
communicate instructions or warnings of hazards to passengers.
    In proposing to modify paragraph (c), FRA is reserving paragraph 
(c)(11) for a contemplated requirement that all low-location emergency 
exit path markings required by Sec.  238.116 be in place and 
conspicuous as part of the interior calendar day mechanical inspection. 
Low-location emergency exit path markings provide a visual means for 
passenger car occupants to locate emergency door exits under conditions 
of limited visibility due to darkness or the presence of smoke, or 
both. FRA intends to propose minimum standards for low-location 
emergency exit path markings by a separate NPRM as new Sec.  238.116, 
and this document proposes to reserve Sec.  238.116 for inclusion of 
these minimum standards at a later time.
    Finally, FRA notes that it is considering clarifying paragraph 
(c)(7), the interior calendar day inspection requirement that ``[a]ll 
safety-related signage is in place and legible.'' FRA is considering 
including in paragraph (c)(7) express references to signage, as well as 
markings and instructions, required by parts 238 and 239. FRA invites 
comment on whether such clarification should be provided in the final 
rule.
Section 238.307 Periodic Mechanical Inspection of Passenger Cars and 
Unpowered Vehicles Used in Passenger Trains
    This section contains the requirements for performing periodic 
mechanical inspections on all passenger cars and all unpowered vehicles 
used in passenger trains. Paragraph (c) identifies the various 
components that are required to be inspected as part of the periodic 
mechanical inspection that is required to be conducted no less 
frequently than every 184 days. FRA proposes to modify paragraph 
(c)(5), which currently requires that emergency lighting systems be 
operational, to include other emergency systems such as emergency roof 
access markings and instructions. Specifically, paragraph (c)(5)(i) 
would continue to require that emergency lighting systems required 
under Sec.  238.115 are in place and operational, and paragraph 
(c)(5)(iii) would require that emergency roof access markings and 
instructions required under proposed Sec.  238.118(e) are in place and, 
as applicable, conspicuous, and/or legible. FRA does note that if 
emergency lighting is found to be defective at any time other than the 
periodic mechanical inspection, it must be brought into compliance 
pursuant to the provisions contained in Sec.  238.17 related to non-
running-gear defects.
    In proposing the modification, FRA is reserving paragraph 
(c)(5)(ii) for a contemplated requirement that electrical low-location 
emergency exit path markings required by Sec.  238.116 be in place and 
operational. As discussed above, FRA intends to propose minimum 
standards for low-location emergency exit path markings by a separate 
NPRM as new Sec.  238.116.

Subpart E--Specific Requirements for Tier II Passenger Equipment

Section 238.437 [Reserved]
    This section formerly contained the emergency communication 
requirements for Tier II passenger equipment. These requirements would 
be moved to new Sec.  238.117 (``Emergency communications'') to be 
integrated with the new emergency communication requirements for Tier I 
passenger equipment, as stated above. This is consistent with FRA's 
desire to prescribe, to the extent possible, the same emergency system 
requirements for all passenger trains, regardless of train speed. 
Section 238.437 is therefore being removed and reserved. Please see 
Sec.  238.117 for a discussion of the emergency communication 
requirements for Tier II passenger equipment.
Section 238.441 Emergency Roof Access
    In issuing the Passenger Equipment Safety Standards, FRA required 
that Tier II passenger equipment have either a roof hatch or a clearly 
marked structural weak point in the roof to provide quick access for 
properly equipped emergency response personnel. See 64 FR 25689. FRA 
stated that the final rule did not contain such requirements for Tier I 
passenger equipment and that there was no consensus within the 
Passenger Equipment Safety Standards Working Group to do so. See 64 FR 
25642. Nevertheless, FRA noted that it believed that APTA PRESS Task 
Force efforts would address requirements for Tier I passenger equipment 
and that FRA intended to reexamine the requirements of this section in 
future rulemaking with a view to applying emergency roof access 
requirements to Tier I passenger equipment. Id.
    As discussed above, FRA is proposing in Sec.  238.118 to apply 
emergency roof access requirements to Tier I passenger equipment and to 
make the requirements the same for new Tier I and Tier II passenger 
cars. In doing so, FRA is proposing to revise Sec.  238.441, including 
the section heading, to reconcile the requirements of these sections 
and thereby limit the application of these separate requirements in 
Sec.  238.441 to existing Tier II passenger cars and to any Tier II 
power car (whether existing or new). At the same time, FRA is proposing 
to increase the required dimensions of emergency roof access locations 
for existing Tier II passenger equipment and for any power car, and to 
provide general marking and instruction requirements for such 
equipment. FRA believes that existing Tier II passenger equipment would 
be in compliance with the proposed revisions to this section and that 
these revisions would more closely approximate the requirements 
proposed for new passenger equipment.
    Specifically, paragraph (a) would be revised to limit its 
applicability to Tier II passenger cars both ordered prior to 14 months 
after publication of the final rule and placed in service for the first

[[Page 50298]]

time prior to 38 months after publication of the final rule, and to 
Tier II power cars. As specified in proposed paragraph (b), new Tier II 
passenger cars would be required to comply with the standards contained 
in proposed Sec.  238.118, which were developed exclusively for 
passenger cars. Paragraph (a) would also be modified to revise the 
dimensions of the required opening from 18 inches by 24 inches, to 24 
inches by 26 inches to be consistent with the proposed requirements for 
Tier I passenger equipment. In addition, paragraph (a) would be revised 
to require that each emergency roof access location be conspicuously 
marked, and that legible and understandable operating instructions be 
posted at or near each such location.
    The fundamental differences between the requirements proposed in 
Sec.  238.118 for new passenger cars and those proposed in revised 
paragraph (a) of Sec.  238.441 for existing Tier I passenger cars and 
for Tier II power cars are as follows: the number of required emergency 
roof access locations--two in proposed Sec.  238.118, and one in 
existing Sec.  238.441--and the specifications for their location--
detailed specifications are proposed in Sec.  238.118, while more 
general requirements would be in Sec.  238.441. These differences 
reflect the consideration given to existing equipment built in 
compliance with Sec.  238.441 of the 1999 final rule, and also 
recognize that a requirement for two emergency roof access locations on 
a Tier II power car would not be reasonable given that the only 
normally occupied area in such a car is the cab compartment, in which 
only one emergency roof access location can be placed.
    Paragraph (b) would be revised to make clear that each passenger 
car ordered on or after 14 months after publication of the final rule, 
or placed in service for the first time on or after 38 months after 
publication of the final rule, would be required to comply with the 
emergency roof access requirements specified in Sec.  238.118. Section 
238.118 proposes to subject new Tier I and Tier II passenger cars to 
the same emergency roof access requirements, and this revision to 
paragraph (b) is intended to conform with that proposal.

Appendix A to Part 238--Schedule of Civil Penalties

    Appendix A to part 238 contains a schedule of civil penalties for 
use in connection with this part. FRA intends to revise the schedule of 
civil penalties in issuing the final rule to reflect revisions made to 
part 238. Because such penalty schedules are statements of agency 
policy, notice and comment are not required prior to their issuance. 
See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to 
submit suggestions to FRA describing the types of actions or omissions 
for each proposed regulatory section that would subject a person to the 
assessment of a civil penalty. Commenters are also invited to recommend 
what penalties may be appropriate, based upon the relative seriousness 
of each type of violation.

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034; 
Feb. 26, 1979). FRA has prepared and placed in the docket a regulatory 
evaluation addressing the economic impact of this proposed rule. 
Document inspection and copying facilities are available at the DOT 
Central Docket Management Facility located in Room PL-401 on the Plaza 
level of the Nassif Building, 400 Seventh Street, SW., Washington, DC 
20590. Access to the docket may also be obtained electronically through 
the Web site for the DOT Docket Management System at http://dms.dot.gov. Photocopies may also be obtained by submitting a written 
request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10, 
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, 
DC 20590; please refer to Docket No. FRA-2006-25273. FRA invites 
comments on the regulatory evaluation.
    Certain of the proposed requirements reflect current industry 
practice, or restate existing regulations, or both. As a result, in 
calculating the costs of this proposed rule, FRA has neither included 
the costs of those actions that would be performed voluntarily in the 
absence of a regulation, nor has FRA included the costs of those 
actions that would be required by an existing regulation.
    As presented in the following table, FRA estimates that the present 
value (PV) of the total 20-year costs which the industry would be 
expected to incur to comply with the requirements proposed in this rule 
is $15.4 million:

                        20-Year PV Costs Incurred
------------------------------------------------------------------------
                                                              20-year PV
                        Description                             total
------------------------------------------------------------------------
Costs:
    (238.113) Emergency Window Exits
        --Installation of pull handles/gaskets in two             $4,050
         intermediate level windows........................
        --Replacement of instructions for window removal to       10,880
         ensure that potential hindrances are addressed....
        --Installation of pull handles/gaskets in four             1,440
         intermediate level windows........................
    (238.114) Rescue Access Windows
        --Installation of two windows per car..............      163,880
        --Marking and instructions.........................       11,640
    (238.117) Emergency Communications
        --Addition of second intercom transmission location      213,675
        --Addition of outside speaker for public address         101,526
         system............................................
    (238.118) Emergency Roof Access
        --Structural weak points--engineering redesign.....       80,000
        --Structural weak points--additional materials.....      117,250
    (238.303, 238.305, and 238.307) Exterior, Interior, and   14,717,246
     Periodic Inspection, Testing, and Maintenance.........
                                                            ------------
            Total Costs....................................   15,421,507
------------------------------------------------------------------------


[[Page 50299]]

    If over the 20-year period covered by the regulatory evaluation the 
equivalent of 7.7 lives would be saved as a result of implementing the 
proposed requirements (from a combination of fatalities prevented, and 
injuries avoided or minimized), the proposed rule would be cost-
justified by the safety benefits alone. FRA believes it is reasonable 
to expect that the safety benefits would exceed the costs of the 
proposed requirements. Although passenger railroads offer the traveling 
public one of the safest forms of transportation available, the 
potential for injuries and loss of life in certain situations is very 
high. Nevertheless, FRA cannot predict with reasonable confidence the 
actual numbers of lives that would be saved. The number and severity of 
each future passenger train accident or incident would determine the 
ultimate effectiveness of the proposed requirements; these cannot be 
forecasted with a level of precision that would allow us to predict the 
actual need for the measures proposed in the rule. Yet, FRA believes 
that the proposed requirements would protect passengers and crew 
members against known safety concerns in a cost-effective manner. These 
safety concerns are discussed in detail, above, in the preamble to this 
proposed rule.
    In particular, as discussed in Section III.C., the proposed 
requirement for an intercom system on Tier I passenger trains is 
intended to allow passengers to communicate to the crew a medical 
emergency, report a fire onboard the train, or provide notification of 
other emergency situations as quickly as may be necessary. In fact, 
some passenger lives may have already been saved at least in part due 
to the availability of an intercom system because fellow passengers 
were able to use the intercom to alert a crew member that a passenger 
onboard their car was experiencing a medical emergency. This led the 
crew to call the dispatcher to arrange for prompt medical attention at 
a nearby station. FRA believes that over the next 20 years the 
availability of an intercom system to passengers may save the life of 
one or more passengers experiencing a medical emergency.
    The availability of an intercom system to passengers may also save 
the life of one or more passengers in other emergency situations. For 
example, on December 7, 1993, a gunman opened fire onboard a LIRR 
commuter train traveling between New Hyde Park and Garden City, NY, 
killing 6 people and injuring 19 others before he was overpowered by 
passengers. No intercom system was available to the passengers, and the 
train crew was not aware of the situation until the train arrived at 
the next station where police happened to be present on the platform. 
The availability of an intercom system to passengers in such a 
situation could allow passengers to provide notification to the crew in 
a timely manner so that the crew could contact the appropriate 
authorities to obtain emergency assistance and take other necessary 
action. This may include providing a direct warning over the train's 
public address system both to passengers on the train as well as to 
passengers in the immediate vicinity of the train on the station 
platform. FRA is, of course, proposing to require that Tier I passenger 
trains be equipped with public address systems.
    Further, over the past 20 years, other accidents and incidents have 
occurred where, if they were to recur, the availability of the safety 
features proposed in this rule may save lives or prevent or minimize 
injuries. For instance, eleven lives were lost in a February 16, 1996 
collision between a Maryland Rail Commuter (MARC) train and an Amtrak 
passenger train in Silver Spring, Maryland. The collision breached a 
fuel tank of an Amtrak locomotive, spraying fuel into the lead vehicle 
of the MARC train, which erupted in fire. The fire and collision 
trapped a number of people in the lead vehicle. Having rescue access 
windows available to emergency responders on the scene of such a 
situation may facilitate the rescue of one or more passengers.
    FRA notes that similar accidents and incidents have unique 
circumstances which ultimately determine their severity in terms of 
casualties, and again emphasizes that actual future events cannot be 
predicted with certainty. Nonetheless, it is possible that over the 
next 20 years the safety features proposed to be required by this rule 
would preserve life in a single event in an amount that exceeds the 
entire estimated costs of the rule.
    FRA seeks comments and input from all interested parties regarding 
the estimates and statements contained in the regulatory evaluation 
developed in connection with this NPRM.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impact on small entities. FRA has prepared and placed in the 
docket an Analysis of Impact on Small Entities (AISE) that assesses the 
small entity impact of this proposal. Document inspection and copying 
facilities are available at the DOT's Central Docket Management 
Facility located in Room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC 20590. Docket 
material is also available for inspection on the Internet at http://dms.dot.gov. Photocopies may also be obtained by submitting a written 
request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10, 
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, 
DC 20590; please refer to Docket No. FRA-2005-23080.
    The AISE developed in connection with this NPRM concludes that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. The principal entities impacted 
by the rule would be governmental jurisdictions or transit authorities-
none of which is small for purposes of the United States Small Business 
Administration (i.e., no entity serves a locality with a population 
less than 50,000). These entities also receive Federal transportation 
funds. Although these entities are not small, the level of costs 
incurred by each entity should generally vary in proportion to either 
the size of the entity, or the extent to which the entity purchases 
newly manufactured passenger equipment, or both. Tourist, scenic, 
excursion, and historic passenger railroad operations would be exempt 
from the rule, and, therefore, these smaller operations would not incur 
any costs.
    The rule would impact passenger car manufacturers. However, these 
entities are principally large international corporations that would 
not be considered small entities. Some manufacturers and suppliers of 
emergency signage and communication systems may be impacted by the 
rule, and these may be small entities. Yet, FRA believes that any 
impact on these entities would neither be significant nor negative, to 
the extent demand for products and services they provide actually 
increases.
    Having made these determinations, FRA certifies that this proposed 
rule is not expected to have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act or Executive Order 13272.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) for review and approval in accordance with the Paperwork

[[Page 50300]]

Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The sections that 
contain the new information collection requirements and the estimated 
time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                  Respondent                       Average time
      CFR Section--49 CFR          universe       Total annual     per response    Total annual    Total annual
                                  (railroads)       responses        (minutes)     burden hours     burden cost
----------------------------------------------------------------------------------------------------------------
238.113--Emergency Window                   22  482 markings....       60/90/120             694         $27,760
 Exits: Marking and
 Instructions.
238.114--Rescue Access                      22  964 markings....              45             723            \1\0
 Windows: Marking and
 Instructions.
238.117--Emergency                          22  116 markings....               5              10             400
 Communications: Intercom
 System--Marking and
 Instructions.
238.118--Emergency Roof                     22  234 marked                    30             117           4,680
 Access: Marking and                             locations.
 Instructions.
238.303--Exterior Calendar Day
 Mechanical Inspection of
 Passenger Equipment:
    --Repair/Replacement of                 22  150 replacement               20              50           2,000
     Non-complying Rescue                        markings.
     Access Window Markings.
    --Records of Non-complying              22  150 records.....               2               5             200
     Rescue Access Window
     Markings.
238.305--Interior Calendar Day
 Mechanical Inspection of
 Passenger Cars:
    --Non-complying Conditions              22  260                            1               9             360
     of End Doors and Side                       notifications
     Doors.                                      +260 notices.
    --Written Notification to               22  300                            1               5             200
     Train Crew of Inoperative/                  notifications.
     Non-functioning Public
     Address and Intercom
     Systems.
238.307--Periodic Mechanical                22  260 replacement               20              87          3,480
 Inspection of Passenger Cars:                   markings.
 Replacement of Non-complying
 Emergency Roof Access Marking
 and Instructions.
----------------------------------------------------------------------------------------------------------------
\1\ Incl. in RIA.

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning the following issues: 
whether these information collection requirements are necessary for the 
proper performance of the functions of FRA, including whether the 
information has practical utility; the accuracy of FRA's estimates of 
the burden of the information collection requirements; the quality, 
utility, and clarity of the information to be collected; and whether 
the burden of collection of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology, may be minimized. For information or a 
copy of the paperwork package submitted to OMB, contact Mr. Robert 
Brogan at (202) 493-6292.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail 
Stop 17, Washington, DC 20590.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this NPRM between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. The final rule will respond 
to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of a final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. Federalism Implications

    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132, issued on 
August 4, 1999, which directs Federal agencies to exercise great care 
in establishing policies that have federalism implications. See 64 FR 
43255. This proposed rule will not have a substantial direct effect on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among 
various levels of government.
    One of the fundamental federalism principles, as stated in Section 
2(a) of Executive Order 13132, is that ``[f]ederalism is rooted in the 
belief that issues that are not national in scope or significance are 
most appropriately addressed by the level of government closest to the 
people.'' Congress expressed its intent that there be national 
uniformity of regulation concerning railroad safety matters when it 
issued 49 U.S.C. 20106, which provides that all regulations prescribed 
by the Secretary relating to railroad safety preempt any State law, 
regulation, or order covering the same subject matter, except a 
provision necessary to eliminate or reduce an essentially local safety 
hazard that is not incompatible with a Federal law, regulation, or 
order and that does not unreasonably burden interstate commerce. This 
intent was expressed even more specifically in 49 U.S.C. 20133, which 
mandated that the Secretary of Transportation prescribe ``regulations 
establishing minimum standards for the safety of cars used by railroad 
carriers to transport passengers'' and consider such things as 
``emergency response procedures and

[[Page 50301]]

equipment'' before prescribing such regulations. This proposed rule is 
intended to add to and enhance the regulations issued pursuant to 49 
U.S.C. 20133.
    FRA notes that the above factors have been considered throughout 
the development of this NPRM both internally and through consultation 
within the RSAC forum, as described in Section II of this preamble. The 
full RSAC, which reached consensus on the proposed rule text before 
recommending the proposal to FRA, has as permanent voting members two 
organizations representing State and local interests: AASHTO and ASRSM. 
As such, these State organizations concurred with the proposed 
requirements. The RSAC regularly provides recommendations to the FRA 
Administrator for solutions to regulatory issues that reflect 
significant input from its State members. To date, FRA has received no 
indication of concerns about the Federalism implications of this 
rulemaking from these representatives or from any other representative.
    For the foregoing reasons, FRA believes that this proposed rule is 
in accordance with the principles and criteria contained in Executive 
Order 13132.

E. Environmental Impact

    FRA has evaluated this proposed regulation in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545, May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this proposed regulation is not a major FRA action 
(requiring the preparation of an environmental impact statement or 
environmental assessment) because it is categorically excluded from 
detailed environmental review pursuant to section 4(c)(20) of FRA's 
Procedures. 64 FR 28547, May 26, 1999. In accordance with section 4(c) 
and (e) of FRA's Procedures, the agency has further concluded that no 
extraordinary circumstances exist with respect to this regulation that 
might trigger the need for a more detailed environmental review. As a 
result, FRA finds that this proposed regulation is not a major Federal 
action significantly affecting the quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) [currently $120,700,000] in any 1 year, and 
before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. The proposed rule would not result 
in the expenditure, in the aggregate, of $120,700,000 or more in any 
one year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this NPRM in accordance with Executive Order 
13211. FRA has determined that this NPRM is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this regulatory action is 
not a ``significant energy action'' within the meaning of Executive 
Order 13211.

H. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78) or you may visit http://dms.dot.gov.

List of Subjects

49 CFR Part 223

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

49 CFR Part 238

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

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
parts 223 and 238 of chapter II, subtitle B of Title 49, Code of 
Federal Regulations, as follows:

PART 223--[AMENDED]

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

    Authority: 49 U.S.C. 20102-03, 20133, 20701-02, 21301-02, 21304; 
28 U.S.C. 2461, note; and 49 CFR 1.49.

Subpart A--General

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


Sec.  223.5  Definitions.

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

Subpart B--Specific Requirements

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


Sec.  223.9  Requirements for new or rebuilt equipment.

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

[[Page 50302]]

PART 238--[AMENDED]

    4. The authority citation for part 238 continues to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20133, 20141, 20302-20303, 
20306, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

Subpart A--General

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


Sec.  238.5  Definitions.

* * * * *
    Dual-function window means a window that is intended to serve as 
both an emergency window exit and a rescue access window and that meets 
the applicable requirements set forth in both Sec. Sec.  238.113 and 
238.114.
* * * * *
    Emergency responder means a member of a police or fire department, 
or other organization involved with public safety charged with 
providing or coordinating emergency services, who responds to a 
passenger train emergency.
    Emergency window means that segment of a side-facing glazing panel 
which has been designed to permit rapid and easy removal from inside a 
passenger car in an emergency situation.
* * * * *
    Intercom means a device through which voice communication is 
transmitted and received.
    Intercom system means a two-way, voice communication system.
* * * * *
    Intermediate level means a level of a multi-level passenger car 
that is used for passenger seating and is normally located between two 
main levels. An intermediate level normally contains two, separate 
seating areas, one at each end of the car, and is normally connected to 
each main level by stairs.
* * * * *
    Main level means a level of a passenger car that contains a 
passenger compartment whose length is equal to or greater than half the 
length of the car.
* * * * *
    PA system (or public address system) means a one-way, voice 
communication system.
* * * * *
    Passenger compartment means an area of a passenger car that 
consists of a seating area and any vestibule that is connected to the 
seating area by an open passageway.
    Rescue access window means a side-facing exterior window intended 
for use by emergency responders to gain access to passengers in an 
emergency situation.
* * * * *
    Seating area means an area of a passenger car that normally 
contains passenger seating.
* * * * *
    6. Section 238.17 is amended by revising the introductory text of 
paragraphs (b) and (c) to read as follows:


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

* * * * *
    (b) Limitations on movement of passenger equipment containing 
defects found at time of calendar day inspection. Except as provided in 
Sec. Sec.  238.303(e)(15), (e)(17) and (e)(18), 238.305(c) and (d), and 
238.307(c)(1), passenger equipment containing a condition not in 
conformity with this part at the time of its calendar day mechanical 
inspection may be moved from that location for repair if all of the 
following conditions are satisfied:
* * * * *
    (c) Limitations on movement of passenger equipment that develops 
defects en route. Except as provided in Sec. Sec.  238.303(e)(15), 
(e)(17) and (e)(18), 238.305(c), 238.307(c)(1), and 238.503(f), 
passenger equipment that develops en route to its destination, after 
its calendar day mechanical inspection is performed and before its next 
calendar day mechanical inspection is performed, any condition not in 
compliance with this part, other than a power brake defect, may be 
moved only if the railroad complies with all of the following 
requirements or, if applicable, the special requirements in paragraph 
(e) of this section:
* * * * *

Subpart B--Safety Planning and General Requirements

    7. Section 238.113 is revised to read as follows:


Sec.  238.113  Emergency window exits.

    (a) Number and location. Except as provided in paragraph (a)(3) of 
this section, the following requirements apply on or after [DATE 60 
DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN FEDERAL REGISTER].
    (1) Single-level passenger cars. Each single-level passenger car 
shall have a minimum of four emergency window exits. At least one 
emergency window exit shall be located in each side of each end (half) 
of the car, in a staggered configuration where practical. (See Figure 1 
to this subpart; see also Figures 1b and 1c to this subpart.)
    (2) Multi-level passenger cars--main levels. Each main level in a 
multi-level passenger car is subject to the same requirements specified 
for single-level passenger cars in paragraph (a)(1) of this section.
    (3) Multi-level passenger cars--levels with seating areas other 
than main levels. (i) Except as provided below, on or after [DATE 18 
MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL 
REGISTER] any level other than a main level used for passenger seating 
in a multi-level passenger car, such as an intermediate level, shall 
have a minimum of two emergency window exits in each seating area. The 
emergency window exits shall be accessible to passengers in the seating 
area without requiring movement through an interior door or to another 
level of the car. At least one emergency window exit shall be located 
in each side of the seating area. An emergency window exit may be 
located within an exterior side door in the passenger compartment if it 
is not practical to place the window exit in the side of the seating 
area. (See Figures 2 and 2a to this subpart; compare to Figure 2b of 
this subpart.)
    (ii) Only one emergency window exit is required in a seating area 
in a passenger compartment if:
    (A) It is not practical to place an emergency window exit in a side 
of the passenger compartment due to the need to provide accessible 
accommodations under the Americans with Disabilities Act of 1990;
    (B) There are no more than four seats in the seating area; and
    (C) A suitable, alternate arrangement for emergency egress is 
provided.
    (iii) For passenger cars ordered prior to [DATE 14 MONTHS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and 
placed in service prior to [DATE 38 MONTHS AFTER DATE OF PUBLICATION OF 
THE FINAL RULE IN THE FEDERAL REGISTER], only one emergency window exit 
is required in a seating area in a passenger compartment if it is not 
practicable to place a window exit in a side of the passenger 
compartment (due to the presence of such structures as a bathroom, 
electrical locker, or kitchen) and there are no more than eight seats 
in the seating area.

[[Page 50303]]

    (4) Cars with a sleeping compartment or similar private 
compartment. Each level of a passenger car with a sleeping compartment 
or a similar private compartment intended to be occupied by a 
passengers or train crewmember shall have at least one emergency window 
exit in each such compartment. For purposes of this paragraph (a)(4), a 
bathroom, kitchen, or locomotive cab is not considered a 
``compartment.''
    (b) Ease of operability. On or after November 8, 1999, each 
emergency window exit shall be designed to permit rapid and easy 
removal from the inside of the car during an emergency situation 
without requiring the use of a tool or other implement.
    (c) Dimensions. Each emergency window exit in a passenger car, 
including a sleeping car, ordered on or after September 8, 2000, or 
placed in service for the first time on or after September 9, 2002, 
shall have an unobstructed opening with minimum dimensions of 26 inches 
horizontally by 24 inches vertically. An emergency window exit located 
within an exterior side door, in accordance with the requirements of 
paragraph (a)(3)(i) of this section, may have an unobstructed opening 
with minimum dimensions of 24 inches horizontally by 26 inches 
vertically. A seatback is not an obstruction if it can be moved away 
from the window opening without requiring the use of a tool or other 
implement.
    (d) Marking and instructions. (1) Each emergency window exit shall 
be conspicuously and legibly marked with luminescent material on the 
inside of each car to facilitate passenger egress.
    (2) Legible and understandable operating instructions, including 
instructions for removing the window, shall be posted at or near each 
such window exit. If window removal may be hindered by the presence of 
a seatback, headrest, luggage rack, or other fixture, the instructions 
shall state the method for allowing rapid and easy removal of the 
window, taking into account the fixture(s), and this portion of the 
instructions may be in written or pictorial format.
    8. Section 238.114 is added to read as follows:


Sec.  238.114  Rescue access windows.

    (a) Number and location. Except as provided in paragraph (a)(1)(ii) 
of this section, the following requirements apply on or after [DATE 60 
DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL 
REGISTER].
    (1) Single-level passenger cars. Except as provided in this 
paragraph (a)(1) and in paragraphs (a)(1)(i), (a)(1)(ii), and (a)(5) of 
this section, each single-level passenger car shall have a minimum of 
two rescue access windows. At least one rescue access window shall be 
located in each side of the car entirely within 15 feet of the car's 
centerline, or entirely within 7\1/2\ feet of the centerline if the car 
does not exceed 45 feet in length. (See Figure 1a to this subpart; see 
also Figures 1b and 1c to this subpart.) If the seating level is 
obstructed by an interior door or otherwise partitioned into separate 
seating areas, each separate seating area shall have a minimum of one 
rescue access window in each side of the seating area, located as near 
to the center of the car as practical.
    (i) For a single-level passenger car ordered prior to [DATE 14 
MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL 
REGISTER], and placed in service prior to [DATE 38 MONTHS AFTER DATE OF 
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], rescue access 
windows may be located farther than the above prescribed distances from 
the car's centerline, or located within exterior side doors, or both, 
if at least one rescue access window is located within each side of 
each end (half) of the same passenger compartment.
    (ii) For a single-level passenger car ordered prior to September 8, 
2000, and placed in service prior to September 9, 2002, the 
requirements of paragraph (a)(1) of this section apply on or after 
[DATE 18 MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE 
FEDERAL REGISTER] if the car has at least two exterior side doors (or 
door leaves), each with a manual override device, and such doors (or 
door leaves) are located one on each side of the car, in opposite ends 
(halves) of the car (i.e., in diagonally opposite quadrants). The 
manual override device shall be:
    (A) Capable of releasing the door (or door leaf) to permit it to be 
opened without power from outside the car;
    (B) Located adjacent to the door (or door leaf) which it controls; 
and
    (C) Designed and maintained so that a person may access the 
override device from outside the car without requiring the use of a 
tool or other implement.
    (2) Multi-level passenger cars--main levels. Each main level in a 
multi-level passenger car is subject to the same requirements specified 
for single-level passenger cars in paragraph (a)(1) of this section, 
with the exception of paragraph (a)(1)(ii), which is not applicable.
    (3) Multi-level passenger cars--levels with seating areas other 
than main levels. (i) Except as provided below, any level other than a 
main level used for passenger seating in a multi-level passenger car, 
such as an intermediate level, shall have a minimum of two rescue 
access windows in each seating area. The rescue access windows shall 
permit emergency responders to gain access to passengers in the seating 
area without requiring movement through an interior door or to another 
level of the car. At least one rescue access window shall be located in 
each side of the seating area. A rescue access window may be located 
within an exterior side door in the passenger compartment if it is not 
practical to place the access window in the side of the seating area. 
(See Figures 2 and 2a of this subpart; compare to Figure 2b of this 
subpart.)
    (ii) Only one rescue access window is required in a seating area in 
a passenger compartment if:
    (A) It is not practical to place a rescue access window in a side 
of the passenger compartment due to the need to provide accessible 
accommodations under the Americans with Disabilities Act of 1990;
    (B) There are no more than four seats in the seating area; and
    (C) A suitable, alternate arrangement for rescue access is 
provided.
    (iii) For passenger cars ordered prior to [DATE 14 MONTHS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and 
placed in service prior to [DATE 38 MONTHS AFTER DATE OF PUBLICATION OF 
THE FINAL RULE IN THE FEDERAL REGISTER], only one rescue access window 
is required in a seating area in a passenger compartment if it is not 
practicable to place an access window in a side of the passenger 
compartment (due to the presence of such structures as a bathroom, 
electrical locker, or kitchen) and there are no more than eight seats 
in the seating area.
    (4) Cars with a sleeping compartment or similar private 
compartment. Each level of a passenger car with a sleeping compartment 
or a similar private compartment intended to be occupied by a passenger 
or train crewmember shall have a minimum of one rescue access window in 
each such compartment. For purposes of this paragraph, a bathroom, 
kitchen, or locomotive cab is not considered a ``compartment.''
    (5) Dual-function windows. If, on any level of a passenger car, the 
emergency window exits installed to meet the minimum requirements of 
Sec.  238.113 of this part are also intended to function as rescue 
access windows, the minimum requirements for the number and location of 
rescue access windows in

[[Page 50304]]

paragraphs (a)(1) through (a)(4) of this section are also met for that 
level.
    (b) Ease of operability. On or after [DATE 60 DAYS AFTER DATE OF 
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], each rescue 
access window must be capable of being removed without undue delay by 
an emergency responder using either:
    (1) A provided external mechanism; or
    (2) Tools or implements that are commonly available to the 
responder in a passenger train emergency.
    (c) Dimensions. Each rescue access window in a passenger car, 
including a sleeping car, ordered on or after [DATE 14 MONTHS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], or 
placed in service for the first time on or after [DATE 38 MONTHS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], shall 
have an unobstructed opening with minimum dimensions of 26 inches 
horizontally by 24 inches vertically. A rescue access window located 
within an exterior side door, in accordance with the requirements of 
paragraph (a)(3)(i) of this section, may have an unobstructed opening 
with minimum dimensions of 24 inches horizontally by 26 inches 
vertically. A seatback is not an obstruction if it can be moved away 
from the window opening without requiring the use of a tool or other 
implement.
    (d) Marking and instructions. Each rescue access window shall be 
marked with retroreflective material. A unique and easily recognizable 
symbol, sign, or other conspicuous marking shall also be used to 
identify each such window. Legible and understandable window-access 
instructions, including instructions for removing the window, shall be 
posted at or near each rescue access window.


Sec.  238.117  [Redesignated as Sec.  238.121]

    9. Redesignate Sec.  238.117 as Sec.  238.121.
    10. Add new Sec.  238.117 to read as follows:


Sec.  238.117  Emergency communications.

    (a) PA system (public address system)--(1) Existing Tier I 
passenger cars. On or after January 1, 2012, each Tier I passenger car 
shall be equipped with a PA system that provides a means for a 
crewmember to communicate to all train passengers in an emergency 
situation.
    (2) New Tier I and all Tier II passenger cars. Each Tier I 
passenger car ordered on or after [DATE 60 DAYS AFTER DATE OF 
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], or placed in 
service for the first time [DATE 26 MONTHS AFTER DATE OF PUBLICATION OF 
THE FINAL RULE IN THE FEDERAL REGISTER], and all Tier II passenger cars 
shall be equipped with a PA system that provides a means for a 
crewmember to communicate to all train passengers in an emergency 
situation. The PA system shall also provide a means for a crewmember to 
communicate in an emergency situation to persons in the immediate 
vicinity of the train (e.g., on the station platform). The PA system 
may be part of the same system as the intercom system.
    (b) Intercom system.--(1) New Tier I and all Tier II passenger 
cars. Each Tier I passenger car ordered on or after [DATE 60 DAYS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], or 
placed in service for the first time on or after [DATE 26 MONTHS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and all 
Tier II passenger cars shall be equipped with an intercom system that 
provides a means for passengers and crewmembers to communicate with 
each other in an emergency situation. Except as further specified, at 
least one intercom that is accessible to passengers without requiring 
the use of a tool or other implement shall be located in each end 
(half) of each car. If any passenger car does not exceed 45 feet in 
length, or if a Tier II passenger car was ordered prior to May 12, 
1999, only one such intercom is required. The intercom system may be 
part of the same system as the PA system.
    (2) Marking and instructions. The following requirements to apply 
to each Tier I passenger car on or after [DATE 26 MONTHS AFTER DATE OF 
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] and to all Tier 
II passenger cars:
    (i) The location of each intercom intended for passenger use shall 
be clearly marked with luminescent material; and
    (ii) Legible and understandable operating instructions shall be 
posted at or near each such intercom.
    (c) Back-up power. PA and intercom systems on Tier II passenger 
trains shall have back-up power for a minimum period of 90 minutes.
    11. Section 238.118 is added to read as follows:


Sec.  238.118  Emergency roof access.

    Except as provided in Sec.  238.441--
    (a) Number and dimensions. Each passenger car ordered on or after 
[DATE 14 MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE 
FEDERAL REGISTER], or placed in service for the first time on or after 
[DATE 38 MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE 
FEDERAL REGISTER], shall have a minimum of two emergency roof access 
locations, each with a minimum opening of 26 inches longitudinally 
(i.e., parallel to the longitudinal axis of the car) by 24 inches 
laterally.
    (b) Means of access. Emergency roof access shall be provided by 
means of a hatch, or a clearly marked structural weak point in the roof 
for access by properly equipped emergency response personnel.
    (c) Location. Emergency roof access locations shall be situated as 
practical so that when a car is on its side:
    (1) One emergency access location is wholly within each half of the 
roof as divided top from bottom; and
    (2) One emergency access location is wholly within each half of the 
roof as divided left from right. (See Figure 3 to this subpart.)
    (d) Obstructions. The ceiling space below each emergency roof 
access location shall be free from wire, cabling, conduit, and piping. 
This space shall also be free of any rigid secondary structure (e.g., a 
diffuser or diffuser support, lighting back fixture, mounted PA 
equipment, luggage rack) where practicable. If emergency roof access is 
provided by means of a hatch, it shall be possible to push interior 
panels or liners out of their retention devices and into the interior 
of the vehicle after removing the hatch. If emergency roof access is 
provided by means of a structural weak point, it shall be permissible 
to cut through interior panels, liners, or other non-rigid secondary 
structures after making the cutout hole in the roof, provided any such 
additional cutting necessary to access the interior of the vehicle 
permits a minimum opening of the dimensions specified in paragraph (a) 
of this section to be maintained.
    (e) Marking and instructions. Each emergency roof access location 
shall be conspicuously marked with retroreflective material of 
contrasting color. As further specified, legible and understandable 
instructions shall be posted at or near each such location. If 
emergency roof access is provided by means of a structural weak point:
    (1) The retroreflective material shall conspicuously mark the line 
along which the roof skin shall be cut; and
    (2) A sign plate with a retroreflective border shall also state:
    CAUTION--DO NOT USE FLAME CUTTING DEVICES.

[[Page 50305]]

    CAUTION--WARN PASSENGERS BEFORE CUTTING.
    CUT ALONG DASHED LINE TO GAIN ACCESS.
    ROOF CONSTRUCTION--[STATE RELEVANT DETAILS]

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

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


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

* * * * *
    (e) * * *
    (18) All rescue-access-related exterior markings, signage, and 
instructions required by Sec.  238.114 and Sec.  239.107(a) of this 
chapter shall be in place and, as applicable, conspicuous, or legible, 
or both.
    (i) Except as provided in paragraphs (e)(18)(ii) and (iii) of this 
section, passenger equipment that has any required rescue-access-
related exterior marking, signage, or instruction that is missing, 
illegible, or inconspicuous may remain in passenger service until no 
later than the equipment's fourth exterior calendar day mechanical 
inspection or next periodic mechanical inspection required under Sec.  
238.307, whichever occurs first, after the non-complying condition is 
discovered, where it shall be repaired or removed from service.
    (ii) A passenger car having more than 50 percent of the windows on 
a side of a level of the car designated and properly marked for rescue 
access that has any required rescue-access-related exterior marking, 
signage, or instruction that is missing, illegible, or inconspicuous on 
any of the other windows on that side and level of the car may remain 
in passenger service until no later than the car's next periodic 
mechanical inspection required under Sec.  238.307, where it shall be 
repaired or removed from service.
    (iii) A passenger car that is a sleeping car that has more than two 
consecutive windows with any required rescue-access-related exterior 
marking, signage, or instruction at or near their locations that is 
missing, illegible, or inconspicuous may remain in passenger service 
until no later than the car's next periodic mechanical inspection 
required under Sec.  238.307, where it shall be repaired or removed 
from service.
    (iv) A record shall be maintained of any non-complying marking, 
signage, or instruction described in paragraphs (e)(18)(i) through 
(iii) of this section that contains the date and time that the 
defective condition was first discovered. This record shall be retained 
until all necessary repairs are completed.
* * * * *
    13. Section 238.305 is amended by revising paragraphs (c) 
introductory text and (c)(10), and adding paragraphs (c)(11) and 
(c)(12) to read as follows:


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

* * * * *
    (c) As part of the interior calendar day interior 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)(12), and paragraph (d) of this section.
* * * * *
    (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; the train crew is provided 
written notification of the non-complying condition; and a notice is 
prominently displayed directly on the defective door indicating that 
the door is defective.
    (11) [Reserved]
    (12) On passenger cars so equipped, public address and intercom 
systems shall be operative and function as intended. A passenger car 
with an inoperative or non-functioning public address or intercom 
system may remain in passenger service until no later than the car's 
fourth interior calendar day mechanical inspection or next periodic 
mechanical inspection required under Sec.  238.307, whichever occurs 
first, or for a passenger car used in long-distance intercity train 
service until the eighth interior calendar day mechanical inspection or 
next periodic mechanical inspection required under Sec.  238.307, 
whichever occurs first, after the non-complying condition is 
discovered, where it shall be repaired or removed from service; 
provided, the train crew is given written notification of the non-
complying condition, and all of the requirements contained in paragraph 
(d)(3) of this section are met.
* * * * *
    14. Section 238.307 is amended by revising paragraphs (c) 
introductory text and (c)(5) to read as follows:


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

* * * * *
    (c) The periodic mechanical inspection shall specifically include 
the following interior and exterior mechanical components, which shall 
be inspected not less frequently than every 184 days. At a minimum, 
this inspection shall determine that:
* * * * *
    (5) With regard to the following emergency systems:
    (i) Emergency lighting systems required under Sec.  238.115 are in 
place and operational; and
    (ii) [Reserved]
    (iii) Emergency roof access markings and instructions required 
under Sec.  238.118 (e) are in place and, as applicable, conspicuous, 
or legible, or both.
* * * * *

Subpart E--Specific Requirements for Tier II Passenger Equipment


Sec.  238.437  [Removed and Reserved]

    15. Section 238.437 is removed and reserved.
    16. Section 238.441 is revised to read as follows:


Sec.  238.441  Emergency roof access.

    (a) Each passenger car ordered prior to [DATE 14 MONTHS AFTER DATE 
OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] and placed in 
service for the first time prior to [DATE 38 MONTHS AFTER DATE OF 
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and each power 
car shall have a minimum of one roof hatch emergency access location 
with a minimum opening of 26 inches by 24 inches, or at least one 
structural weak point in the roof providing a minimum opening of the 
same dimensions, to provide access for properly equipped emergency 
response personnel. Each emergency roof access location shall be 
conspicuously marked, and legible and understandable operating 
instructions shall be posted at or near each such location.
    (b) Each passenger car ordered on or after [DATE 14 MONTHS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], or 
placed in service for the first time on or after [DATE 38 MONTHS AFTER 
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER,] shall 
comply with the emergency roof access requirements specified in Sec.  
238.118.

    Issued in Washington, DC, on August 17, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
BILLING CODE 4910-06-P

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[FR Doc. 06-7099 Filed 8-23-06; 8:45 am]
BILLING CODE 4910-06-C`