61836 Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 229 and 238 

[Docket No. FRA–2005–23080, Notice No. 

2] 

RIN 2130–AB67 

Passenger Equipment Safety 

Standards; Miscellaneous 

Amendments and Attachment of Safety 

Appliances on Passenger Equipment 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FRA is amending its existing 

regulations in an effort to address 

various mechanical issues relevant to 

the manufacture, efficient utilization, 

and safe operation of passenger 

equipment and trains that have arisen 

since FRA’s original issuance of the 

Passenger Equipment Safety Standards. 

The miscellaneous amendments 

concentrate on the following five areas: 

Clarifying the terminology related to 

piston travel indicators; providing 

alternative design and additional 

inspection criteria for new passenger 

equipment not designed to allow 

inspection of the application and release 

of the brakes from outside the 

equipment; permitting some latitude in 

the use of passenger equipment with 

redundant air compressors when a 

limited number of the compressors 

become inoperative; recognizing current 

locomotive manufacturing techniques 

by permitting an alternative pneumatic 

pressure test for main reservoirs; and 

adding provisions to ensure the proper 

securement of unattended equipment. 

FRA is also clarifying the existing 

regulatory requirements related to the 

attachment of safety appliances and is 

mandating an identification and 

inspection protocol to address passenger 

equipment containing welded safety 

appliances or welded safety appliance 

brackets or supports. Finally, FRA is 

amending the regulations to permit 

railroads the ability to apply out-ofservice credit to certain periodic 

maintenance requirements related to 

passenger equipment. 

DATES: Effective Date: December 18, 

2006. The incorporation by reference of 

certain publications listed in the rule is 

approved by the Director of the Federal 

Register as of December 18, 2006. 

ADDRESSES: Petitions: Any petitions for 

reconsideration related to Docket No. 

FRA–2005–23080, 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– 

0001. 

• 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: 

George Scerbo, Office of Safety 

Assurance and Compliance, Motive 

Power & Equipment Division, RRS–14, 

Mail Stop 25, Federal Railroad 

Administration, 1120 Vermont Avenue, 

NW., Washington, DC 20590 (telephone 

202–493–6247), or Thomas J. Herrmann, 

Deputy Assistant Chief Counsel, Office 

of Chief Counsel, Mail Stop 10, Federal 

Railroad Administration, 1120 Vermont 

Avenue, NW., Washington, DC 20590 

(telephone 202–493–6036). 

SUPPLEMENTARY INFORMATION: 

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 five-year period. In November of 

1994, Congress adopted the Secretary’s 

schedule for implementing rail 

passenger equipment regulations and 

included it in the Federal Railroad 

Safety Authorization Act of 1994 (the 

Act), Public Law Number 103–440, 108 

Stat. 4619, 4623–4624 (November 2, 

1994). Section 215 of the Act, as now 

codified at 49 U.S.C. 20133, provides as 

follows: 

(a) MINIMUM STANDARDS.—The 

Secretary of Transportation shall prescribe 

regulations establishing minimum standards 

for the safety of cars used by railroad carriers 

to transport passengers. Before prescribing 

such regulations, the Secretary shall 

consider— 

(1) the crashworthiness of the cars; 

(2) interior features (including luggage 

restraints, seat belts, and exposed surfaces) 

that may affect passenger safety; 

(3) maintenance and inspection of the cars; 

(4) emergency response procedures and 

equipment; and 

(5) any operating rules and conditions that 

directly affect safety not otherwise governed 

by regulations. 

The Secretary may make applicable some 

or all of the standards established under this 

subsection to cars existing at the time the 

regulations are prescribed, as well as to new 

cars, and the Secretary shall explain in the 

rulemaking document the basis for making 

such standards applicable to existing cars. 

(b) INITIAL AND FINAL 

REGULATIONS.—(1) The Secretary shall 

prescribe initial regulations under subsection 

(a) within 3 years after the date of enactment 

of the Federal Railroad Safety Authorization 

Act of 1994. The initial regulations may 

exempt equipment used by tourist, historic, 

scenic, and excursion railroad carriers to 

transport passengers. 

(2) The Secretary shall prescribe final 

regulations under subsection (a) within 5 

years after such date of enactment. 

(c) PERSONNEL.—The Secretary may 

establish within the Department of 

Transportation 2 additional full-time 

equivalent positions beyond the number 

permitted under existing law to assist with 

the drafting, prescribing, and implementation 

of regulations under this section. 

(d) CONSULTATION.—In prescribing 

regulations, issuing orders, and making 

amendments under this section, the Secretary 

may consult with Amtrak, public authorities 

operating railroad passenger service, other 

railroad carriers transporting passengers, 

organizations of passengers, and 

organizations of employees. A consultation is 

not subject to the Federal Advisory 

Committee Act (5 U.S.C. App.), but minutes 

of the consultation shall be placed in the 

public docket of the regulatory proceeding. 

The Secretary of Transportation has 

delegated these rulemaking 

responsibilities to the Federal Railroad 

Administrator. See 49 CFR 1.49(m). 

II. Proceedings to Date 

On June 17, 1996, FRA published an 

advanced notice of proposed 

rulemaking (ANPRM) concerning the 

establishment of comprehensive safety 

standards for railroad passenger 


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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 Working Group, 

FRA published a Notice of Proposed 

Rulemaking (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 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 some of the 

requirements contained in the final rule. 

These petitions generally related to the 

following subject areas: structural 

design; fire safety; training; inspection, 

testing, and maintenance; and 

movement of defective equipment. 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 

mechanical-related provisions 

contained in the final rule. See 65 FR 

41284. On April 23, 2002 and June 25, 

2002, FRA published two additional 

responses to the petitions for 

reconsideration addressing the 

remaining issues raised in the petitions. 

See 67 FR 19970, and 67 FR 42892. 

Subsequent to the issuance of these 

responses, FRA and interested industry 

members began identifying various 

issues related to the new passenger 

equipment safety standards with the 

intent that FRA would address the 

issues through FRA’s Railroad Safety 

Advisory Committee (RSAC). On May 

20, 2003, FRA presented, and the RSAC 

accepted, the task of reviewing existing 

passenger equipment safety needs and 

programs and recommending 

consideration of specific actions useful 

to advance the safety of rail passenger 

service. The RSAC established the 

Passenger Equipment Working Group 

(Working Group) to handle this task and 

develop recommendations for the full 

RSAC to consider. Due to the variety of 

issues involved the Working Group 

established a number of smaller task 

forces, with specific expertise, to 

develop recommendations on various 

subject-specific issues. One of these task 

forces, the Mechanical Issues Task Force 

(Task Force), 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. 

The Task Force met several times 

between 2003 and late-2005 in order to 

develop detailed recommendations to 

the full Working Group. The Task Force 

recommendations became the 

recommendations of the Working Group 

and the full RSAC. The RSAC did not 

make any recommendations regarding 

the proposed provisions related to the 

attachment of safety appliances on 

passenger equipment and the proposed 

provision involving out-of-service 

credit. At the October 26–27, 2004 

meeting of the full Working Group, FRA 

withdrew the task related to the 

consideration of handling the 

attachment of safety appliances on 

passenger equipment from the RSAC. 

FRA determined that consensus on this 

issue could not be reached in the RSAC 

process and determined that it would 

have to proceed with these issues on its 

own. Therefore, FRA developed the 

proposed provisions related to the 

attachment of safety appliances 

unilaterally based on its own expertise 

in the area and based on discussions 

and information developed by the 

Working Group and Task Force. FRA 

also did not seek consensus in the RSAC 

process for the proposed provision 

related to out-of service credit. This 

issue was addressed on FRA’s own 

accord in response to the American 

Public Transportation Association’s 

(APTA) petition for rulemaking dated 

March 28, 2005. Thus, FRA did not seek 

RSAC consensus on these issues. FRA 

reviewed and adopted the 

recommendations of the full RSAC and 

issued a Notice of Proposed Rulemaking 

(NPRM) on December 8, 2005. See 70 FR 

73070. 

The comment period for the above 

noted NPRM closed on February 17, 

2006. FRA received comments from two 

parties, the Brotherhood of Railway 

Carmen and APTA. The comments of 

these two parties were concentrated 

almost exclusively on the proposed 

provisions related to the attachment of 

safety appliances on passenger 

equipment. As the involved provisions 

were not developed through the RSAC 

process and the comments on those 

provisions could not be discussed with 

the members of the Working Group or 

Task Force and because FRA received 

no significant comments on any of the 

RSAC developed provisions proposed in 

the NPRM, FRA determined that there 

was no need to hold any further RSAC 

meetings related to this proceeding. 

Moreover, because this final rule 

retains all of the RSAC-recommended 

provisions proposed in the NPRM 

without change, there was no need to 

seek the full RSAC’s approval of this 

final rule. Consequently, FRA 

proceeded to draft this final rule 

without further input from the RSAC. 

III. RSAC Overview 

In March 1996, FRA established the 

RSAC, which provides a forum for 

developing consensus recommendations 

on rulemakings and other safety 

program issues. The Committee 

includes representation from all of the 

agency’s major customer groups, 

including railroads, labor organizations, 

suppliers and manufacturers, and other 

interested parties. A list of member 

groups follows: 

American Association of Private 

Railroad Car Owners (AAPRCO) 

American Association of State Highway 

& Transportation Officials (AASHTO) 

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) 


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61838 Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations 

Secretaria de Communicaciones 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) 

United Transportation Union (UTU) 

*Indicates associate membership. 

When appropriate, FRA assigns a task 

to the RSAC, and after consideration 

and debate, RSAC may accept or reject 

the task. If accepted, the 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 RSAC for a 

vote. If the proposal is accepted by a 

simple majority of the RSAC, the 

proposal is formally recommended to 

FRA. FRA then determines what action 

to take on the recommendation. Because 

FRA staff has played 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. If the 

working group or the RSAC is unable to 

reach consensus on recommendations 

for action, FRA moves ahead to resolve 

the issue through traditional rulemaking 

proceedings. 

On May 20, 2003, FRA presented, and 

the RSAC accepted, the task of 

reviewing existing passenger equipment 

safety needs and programs and 

recommending consideration of specific 

actions useful to advance the safety of 

rail passenger service. The Working 

Group was established to handle this 

task and develop recommendations for 

the full RSAC to consider. Members of 

the Working Group, in addition to FRA, 

included the following: 

AAR, including members from BNSF 

Railway Company (BNSF), CSX 

Transportation, Incorporated (CSX), and 

Union Pacific Railroad Company (UP); 

APTA, including members from Illinois 

Commuter Rail Corporation (METRA), 

Long Island Rail Road (LIRR), MetroNorth Railroad (MNR), Southeastern 

Pennsylvania Transportation Authority 

(SEPTA), Southern California Regional 

Rail Authority (SCRRA), Saint Gobian 

Sully NA, LDK Engineering, and Herzog 

Transit Services, Incorporated; Amtrak; 

AAPRCO; AASHTO; BLET; BRS; 

HSGTA; IBEW; NARP; RSI; SMWIA; 

STA; TCIU/BRC; TWU; and UTU. 

The NTSB met with the Working 

Group and provided staff advisors when 

possible. In addition, staff from the U.S. 

DOT Volpe National Transportation 

Systems Center (Volpe) attended many 

of the meetings and contributed to the 

technical discussions. Due to the variety 

of issues involved, the Working Group 

established a number of smaller task 

forces, with specific expertise, to 

develop recommendations on various 

subject-specific issues. Members of the 

task forces included various 

representatives from various 

organizations that were part of the larger 

Working Group. One of these task 

forces, the Mechanical Issues Task Force 

(Task Force), 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. Please refer to the preceding 

discussion in this document as well as 

the NPRM’s preamble discussion for a 

complete overview of this proceeding 

both before and after the issuance of the 

NPRM. See Discussion in Paragraph II—

Proceedings to Date; and 70 FR 73070 

through 73071. 

Throughout the preamble discussion 

of this final rule, FRA refers to 

comments, views, suggestions, or 

recommendations made by members of 

the Working Group or related Task 

Force. When using this terminology, 

FRA is referring to views, statements, 

discussions or positions identified or 

contained in either the minutes of the 

Working Group or Task Force meetings 

that were conducted during the 

development of the NPRM issued in this 

proceeding. These documents have been 

made part of the docket in this 

proceeding and are available for public 

inspection as discussed in the preceding 

ADDRESSES portion of this document. 

These points are discussed to show the 

origin of certain issues and the course 

of discussions on those issues at the task 

force or working group level. We believe 

this helps illuminate factors FRA has 

weighed in making its regulatory 

decisions, and 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 acted in 

developing the NPRM and this final 

rule. 

IV. Technical Background 

A. Redundancy of Air Compressors 

MU passenger locomotives are 

generally operated as married pairs, but 

in some cases they can be operated as 

single or triple units. In the case of the 

married pairs, each pair of MU 

locomotives share a single air 

compressor. When operated in triple 

units, the three MU locomotives 

generally share two air compressors, 

and single-unit MU locomotives are 

equipped with their own air 

compressor. The amount of air required 

to be produced by the air compressors 

is based on the size of the brake pipe 

and the brake cylinder reservoirs, the 

size of which is based on the calculated 

number of brake application-and-release 

cycles the train will encounter. In 

addition, the compressed air produced 

by the air compressors is shared within 

the consist either by utilizing a main 

reservoir equalizing pipe or, in single 

pipe systems, by utilizing the brake pipe 

which is then diverted to the brake 

cylinder supply reservoir and other airoperated devices by use of a governor 

arrangement. Therefore, a passenger 

train set consisting of numerous MU 

locomotives will have multiple air 

compressors providing the train consist 

with the necessary compressed air. FRA 

agrees with the determinations of the 

Task Force that a loss of compressed air 

from a limited number of air 

compressors in such a train will not 

adversely effect the operation of the 

train’s brakes or other air-operated 

components on the train. 

Representatives of railroads and air 

brake manufacturers provided 

information demonstrating that the 

safety of a train set is not compromised 

when a predetermined number of 

inoperative air compressors are allowed 

to continue to operate in service on a 

MU train set. On such train sets, the air 

compressors are applied by technical 

specification to a certain number of cars 

such as one per married pair, two per 

triplet, and so on. The technical 

specifications for these air compressors 

generally allow for a duty cycle 

(percentage of operating capacity) for 


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Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations 61839 

each air compressor that is something 

less than 50 percent. In fact, some 

technical specifications limit the air 

compressor duty cycle to 33 percent. 

This means that on MU train sets the 

available air compressors are required to 

operate at only 33 to 50 percent of their 

operational capacity. One of the major 

reasons for imposing these low duty 

cycles is to ensure that adequate air 

pressure is available if one or more of 

the other air compressors in the train set 

is not operating properly. Thus, these 

systems are currently designed to 

function properly even in the event that 

a limited number of air compressors 

become inoperative while the train is in 

service. Moreover, even in the unlikely 

event that an MU passenger train set 

would lose all of its air compressors, 

then the air brakes would apply and 

would remain applied until sufficient 

compressed air is restored to the system. 

Consequently, FRA does not see any 

adverse impact on the operational safety 

of these types of trains if they are 

permitted to operate for a relatively 

short period of time with a limited 

number of air compressors being 

inoperative or ineffective. 

FRA did not receive any comments on 

the proposed provisions related to this 

issue. Thus, the final rule retains the 

proposed provisions without change 

and permits MU train sets with a 

limited number of inoperative or 

ineffective air compressors to continue 

to be used in passenger service until the 

next exterior calendar day mechanical 

inspection when found at such an 

inspection. The final rule requires a 

railroad to determine through data, 

analysis, or actual testing the number of 

inoperative or ineffective air 

compressors that could be in an MU 

train set without compromising the 

integrity or safety of the train set based 

on the size and type of train and the 

train’s operating profile. The railroad is 

required to submit the maximum 

number of air compressors permitted to 

be inoperative or ineffective on its 

various trains to FRA before it can begin 

operation under the final rule provision 

and is required to retain and make 

available to FRA any data or analysis 

relied on to make those determinations. 

The final rule also requires a qualified 

maintenance person (QMP) to verify the 

safety and integrity of any train 

operating with inoperative or ineffective 

air compressors before the equipment 

continues in passenger service. In 

addition, the final rule retains the 

proposal provision requiring 

notification to the train crew of any 

inoperative or ineffective air 

compressors and requires that a record 

be maintained of the defective 

condition. FRA believes these provision 

will ensure the safety of passenger 

operations while providing the railroads 

additional flexibility in handling 

defective or inoperative equipment. 

B. Pneumatic Testing of Locomotive 

Main Reservoirs 

The current regulations contained at 

49 CFR 229.31(a) relating to main 

reservoir tests requires that a hydrostatic 

(water) test of a main reservoir be 

conducted before it is originally placed 

in service or before an existing main 

reservoir is placed back in service after 

being drilled as provided for in 

§ 229.31(c). At the Working Group and 

Task Force meetings, the manufacturers 

of main reservoirs requested the ability 

to conduct a pneumatic (air) test of the 

reservoirs in lieu of the currently 

required hydrostatic test. The request 

was limited to providing relief only for 

those tests required before a main 

reservoir is originally placed in service 

and after an existing main reservoir is 

drilled. 

The companies that manufacture 

reservoirs for the rail industry, whether 

the reservoir is utilized as a main 

reservoir or reservoir(s) utilized for 

other purposes, must have an American 

Society of Mechanical Engineers 

(ASME) certification. The reservoirs, 

both main and other, manufactured by 

these companies are designed and 

certified to meet the requirements of the 

ASME Boiler and Pressure Vessel Code. 

In addition, reservoirs utilized as main 

reservoirs on locomotives are also 

manufactured and certified to meet the 

requirements for such contained in part 

229 of the Federal regulations. 

Currently, all passenger car reservoirs 

are pneumatically tested after 

fabrication and before the application of 

an interior protective coating. This 

process is utilized so that reservoirs may 

be repaired if the reservoir does not pass 

the initial test requirements. If the 

interior protective coating is applied 

prior to testing, any weld repairs cannot 

be performed, as the interior coating 

would be damaged. 

The rationale for originally requiring 

that the main reservoirs be tested 

hydrostatically was based on the safety 

concerns should a main reservoir 

catastrophically fail during the testing. 

The likelihood of injury is minimized 

by having the reservoir filled with a 

liquid rather than air. However, since 

the original drafting of the locomotive 

regulations, manufacturers of reservoirs 

have implemented and developed both 

equipment and procedures to ensure 

that test personnel are adequately 

shielded when conducting the testing. 

The manufacturers have been 

performing pneumatic testing on 

reservoir for years and FRA is not aware 

of any injury related to such testing in 

manufacturer-controlled facilities. Thus, 

the safety concerns originally attached 

to pneumatic testing have been 

minimized, if not eliminated, when 

conducted at properly equipped 

manufacturer facilities. 

The ASME code currently utilized by 

all manufacturers of main reservoirs 

allows for the pneumatic testing of the 

reservoirs when the introduction of 

liquid cannot be tolerated. The 

introduction of water to perform 

hydrostatic testing on main reservoirs 

creates a problem because, if the liquid 

is not completely removed and the 

reservoir interior completely dried, the 

moisture results in poor adhesion or a 

lower coating of film than required. This 

condition has the potential of causing 

interior corrosion and premature failure 

of the reservoir. Thus, rather than 

creating this potential, FRA believes 

that it would be both safer and more 

efficient to permit the manufacturers of 

main reservoirs to utilize pneumatic 

testing to meet the requirements 

contained in 49 CFR 229.31. FRA 

received no comments objecting to the 

flexibility proposed in the NPRM or 

suggesting additional restrictions or 

requirements. Consequently, this final 

rule retains the proposed amendments 

to the regulation without change to 

permit pneumatic testing of newly 

manufactured main reservoirs and 

reservoirs that are newly drilled and 

tested at a manufacturer’s facility. 

It should be noted that the final rule 

retains the proposed restriction that 

limits the ability to conduct pneumatic 

testing of the main reservoirs at only 

those facilities with appropriate 

safeguards in place to ensure the safety 

of the personnel conducting the testing. 

After a reservoir is installed on a 

locomotive, FRA continues to believe 

that hydrostatic testing would be the 

only testing method that adequately 

ensures the safety and protection of the 

personnel that are performing the test or 

working near the installed reservoir. 

Regulatory language inserted at the end 

of paragraph (c) of § 229.31 makes clear 

that pneumatic testing of a reservoir 

currently in use and newly drilled may 

only be conducted by a manufacturer of 

main reservoirs in a safe environment. 

In other circumstances, the final rule 

makes clear that a hydrostatic test of the 

reservoir must be conducted. 

C. Design of New Passenger Equipment 

The manufacturers and railroad 

representatives on the Working Group 

and Task Force sought clarification of 


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the provision originally contained in 49 

CFR 238.231(b). This section requires 

the brake systems on equipment ordered 

on or after September 8, 2000, or placed 

in service on or after September 9, 2002, 

to be designed so as not to require an 

inspector to go on, under, or between 

the equipment to observe the brake 

actuation or release. At the Task Force 

meetings and in the NPRM, FRA made 

clear that the requirement was intended 

to be a design standard and was not 

intended to prohibit or limit the 

conduct of brake or mechanical 

inspections required to be conducted in 

part 238. See 70 FR 73074. FRA realizes 

that in order to perform many of the 

brake and mechanical inspections 

required by the regulations an inspector 

will have to go on, under, or between 

the equipment. FRA has acknowledged 

this practice and railroads have 

effectively conducted these types of 

inspections in this manner for decades. 

The plain language of existing 

§ 238.231(b) requires new equipment to 

be designed to allow direct observation 

of the brake actuation and release 

without fouling the equipment. The 

preamble to the original final rule 

discusses alternative design approaches 

using some type of piston travel 

indicator or piston cylinder pressure 

indicator on equipment whose design 

makes it impossible to meet this 

requirement. See 64 FR 25612 (May 12, 

1999). FRA’s intent was that this piston 

travel indicator could be a device 

similar to the definition of ‘‘actuator’’

contained in § 238.5 or some sort of 

piston cylinder pressure indicator. The 

rule text and related preamble make 

clear that the actuation and release of 

the brake (or a direct indication of such) 

be able to be observed without an 

inspector going on, under, or between 

the equipment. FRA does not believe 

that truck pressure indicators (which 

provide no information on piston travel 

or piston cylinder pressure) meet this 

requirement. FRA recognized that the 

envisioned ‘‘indicators’’ discussed in 

the preamble to § 238.231(b) may be 

ahead of the technological curve for 

passenger equipment currently being 

delivered and that which may be 

delivered in the future. Thus, FRA 

noted its willingness to discuss 

additional inspection protocols in lieu 

of applying piston travel indicators on 

such equipment. 

During the development of the NPRM, 

the Task Force discussed the issue in 

detail as a number of railroads were in 

the process of receiving new equipment, 

such as bi-level coaches and other lowslung equipment, the design of which 

does not allow observation of the brake 

actuation and release of the brake 

without going on, under, or between the 

equipment. Several railroads and 

manufacturers noted that the type of 

piston travel indicators envisioned by 

FRA to meet the § 238.231(b) 

requirement were not currently 

available, and even if they could be 

developed in the future, they would 

likely be a maintenance problem and 

unreliable. Representatives of rail labor 

also questioned the viability and need 

for the type of piston travel indicators 

discussed in the preamble to the 

original final rule. These participants 

did not believe that any type of 

mechanical indicator should take the 

place of direct visual inspection of the 

brake system components. 

Consequently, the members of the Task 

Force believed that the best approach to 

the issue was to provide additional 

inspection protocols for new equipment 

that are designed in a manner that 

makes observation of the actuation and 

release of the brakes impossible from 

outside the plane of the equipment 

rather than mandating the use of 

untested and potentially unreliable 

piston travel indicators. 

FRA and the Task Force believe that 

the brake system and mechanical 

components on bi-level and other lowslung passenger equipment can be 

adequately inspected through the daily 

brake and mechanical inspections 

currently required in the Federal 

regulations; provided, appropriate blue 

signal protections are established for the 

personnel required to perform such 

inspections. These daily inspections 

permit a visual inspection of a large 

percentage of the brake and mechanical 

components and over a period of a few 

days all portions of the brake system 

and mechanical components will be 

visually observed. However, because the 

necessary design of some new 

equipment makes the daily inspections 

of the equipment more difficult, does 

not permit visual observation of the 

brake actuation and release from outside 

the plane of the vehicle, and because no 

reliable mechanical device is currently 

available to provide a direct indication 

of such, FRA and the Task Force 

believed it was necessary to adopt 

additional inspection protocols for this 

type of equipment. Thus, the NPRM 

proposed an additional inspection 

regiment for newer equipment designed 

in such a manner. 

The requirements proposed in the 

NPRM that were related to this type of 

equipment were similar to those 

contained in a FRA Safety Board letter 

dated October 19, 2004, granting that 

portion of the Massachusetts Bay 

Transportation Authority’s (MBTA) 

waiver petition seeking relief from the 

requirements of § 238.231(b) for 28 

Kawasaki bi-level coaches. See Docket 

Number FRA–2004–18063. FRA did not 

receive any comments directly related to 

the proposed inspection protocols or the 

proposed approach to this issue. Thus, 

this final rule retains the proposed 

provisions with slight changes for 

purposes of clarity. 

The inspection protocols retained in 

this final rule will be applicable to 

equipment placed in service on or after 

September 9, 2002, the design of which 

does not permit actual visual 

observation of the brake actuation and 

release. The final rule provisions will 

require such equipment to be equipped 

with either piston travel indicators or 

brake indicators as defined in § 238.5. 

The equipment is also required to 

receive a periodic brake inspection by a 

QMP at intervals not to exceed five inservice days and the inspection must be 

performed while the equipment is over 

an inspection pit or on a raised track. In 

addition, the railroad performing the 

additional inspection is required to 

maintain a record of the inspection 

consistent with the existing record 

requirements related to Class I brake 

tests. FRA believes that these additional 

inspection requirements will ensure the 

safety and proper operation of the brake 

system on equipment which does not 

permit actual visual observation of the 

brake actuation and release without 

fouling the vehicle. 

FRA received one suggestion from 

APTA regarding the identification of 

cars that will be covered by the 

provisions added in these sections. 

APTA wanted to make clear that the 

railroad and car manufacturer would 

make an initial determination regarding 

the applicability of the requirements 

contained in this section and that FRA 

would oversee these determinations for 

accuracy. FRA agrees with this position 

as the railroad and car manufacturer are 

in the best position to make an initial 

determination. FRA will exercise its 

oversight when conducting sample car 

inspections as well as its regular 

inspection activity. FRA notes that the 

additional inspection requirements 

would be applicable to new cars 

constructed similar to the low-slung bilevel passenger coaches that were the 

subject of MBTA’s waiver request 

discussed above. 

D. Safety Appliances 

Several issues regarding the 

attachment of safety appliances on 

passenger equipment have arisen over 

the last decade. These issues generally 

involve the method by which safety 

appliances on existing passenger 

equipment are required to be attached, 


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either directly to the car or locomotive 

body or by use of a bracket or support. 

It has come to FRA’s attention, due to 

the investigation of these issues, that a 

significant number of existing passenger 

cars and locomotives contain some 

safety appliances that are attached to the 

equipment by some form of welding, 

typically the welding of a bracket or 

plate to which the safety appliance is 

then mechanically fastened. In the last 

two decades, manufacturers of certain 

passenger equipment have used welding 

on some of the safety appliance 

arrangements of newly built equipment. 

Some segments of the passenger 

industry believe welding of these 

arrangements is acceptable and have 

sought a review of FRA’s historical 

prohibition on the welding of safety 

appliance arrangements. These parties 

believe that new and improved welding 

technology, the implementation of new 

tracking standards, proper quality 

control, and historical documentation 

support the limited use of welding on 

certain safety appliance arrangements. 

Historically, FRA has required that 

safety appliances be mechanically 

fastened to the car structure. FRA has 

also historically required that any 

brackets or supports applied to a car 

structure solely for the purpose of 

securing a safety appliance must be 

mechanically fastened to the car body. 

See MP&E Technical Bulletin 98–14 

(June 15, 1998). FRA’s prohibition on 

the weldment of safety appliances and 

their supports is based on its 

longstanding administrative 

interpretation of the regulatory ‘‘manner 

of application’’ provisions contained in 

49 CFR part 231 which require that 

safety appliances be ‘‘securely fastened’’

with a specified mechanical fastener. 

See e.g., 49 CFR §§ 231.12(c)(4); 

231.13(b)(4); 231.14(b)(4) and (f)(4)). 

FRA’s historical prohibition on the 

welding of safety appliances is based on 

its belief that welds are not uniform, are 

subject to failure, and are very difficult 

to inspect to determine if the weld is 

broken or cracked. Mechanical 

fasteners, by contrast, are generally 

easier to inspect and tend to become 

noticeably loose prior to failure. FRA 

notes that many of its historical beliefs 

related to the welded attachment of 

safety appliance brackets and supports 

on passenger equipment are based on 

welding technologies that were in their 

infancy when first being utilized. In 

addition, many of FRA’s concerns in 

this area are mitigated when appropriate 

welding standards covering quality 

control, initial manufacture, repair, and 

welder qualifications are established 

and implemented. 

Generally, FRA’s longstanding 

interpretation of the regulation 

prohibiting the welding of safety 

appliances has not been seriously 

questioned or opposed since its 

inception. Virtually all freight railcars 

manufactured for use in the United 

States and passenger cars manufactured 

in the United States have their safety 

appliances and their safety appliance 

brackets and supports mechanically 

fastened to the car body, unless a 

specific exception has been provided by 

FRA or the regulations. FRA 

acknowledges that it has permitted 

limited welding of certain safety 

appliances or their brackets and 

supports on locomotives and tanks cars. 

See MP&E Technical Bulletins 98–48 

and 00–06 (June 15, 1998 and August 7, 

2000, respectively). These exceptions 

were provided because there were no 

other alternative methods available for 

mechanically fastening these safety 

appliance arrangements. 

Currently, freight railroad equipment 

complies with the existing regulations 

and FRA’s interpretation of those 

provisions. Traditionally, FRA has not 

permitted welding of safety appliance 

arrangements on freight equipment. In 

addition, the AAR does not permit the 

welding of safety appliance 

arrangements. FRA continues to believe 

that, except in limited circumstances, 

the safety appliances on freight 

equipment should not be attached with 

welding under any condition. This is 

primarily due to the extreme differences 

in use and inspection between 

passenger and freight equipment. See 70 

FR 73076. Thus, FRA does not intend to 

permit welded safety appliances or their 

attachment in that segment of the 

industry. Consequently, FRA is limiting 

any relief being provided in this final 

rule to safety appliance arrangements on 

passenger equipment. 

Although FRA has remained 

consistent in its prohibition on the 

weldment of safety appliances and their 

supports, a significant amount of 

passenger equipment has been 

manufactured and used in revenue 

service for a number of years with safety 

appliances being attached to the car 

body using some form of welding. 

Currently, FRA is aware of 

approximately 3,000 passenger cars or 

locomotives that have safety appliances 

or safety appliance brackets or supports 

welded to the body of the equipment. 

Some units of this equipment were 

introduced into service within the last 

few years; others have been in service 

for more than a decade. Some of the 

3,000 units noted above have been the 

subject of formal waiver requests 

pursuant to the provisions contained in 

49 CFR Part 211. See Docket Numbers 

FRA–2000–8588 and FRA–2000–8044. 

In an effort to fully develop the issues 

relating to the welding of safety 

appliances on existing passenger 

equipment, FRA conducted an informal 

safety inquiry and subsequently 

submitted the issue to RSAC in this 

proceeding. On June 17, 2003, an 

informal safety inquiry was held in 

Washington, DC, where all interested 

parties were permitted to express their 

concerns relating to FRA’s longstanding 

interpretation prohibiting welded of 

safety appliance arrangements. 

Representatives from APTA, AAR, 

consultants, manufacturers, and union 

representatives gave presentations or 

provided comments expressing their 

points of interests or concerns. FRA also 

referred the issue to the RSAC process 

in this proceeding, which in turn 

assigned the issue to the mechanical 

Task Force, to aid in developing and 

determining if there is a practical 

application where welding may be 

suitable and to consider methods by 

which FRA could revise or clarify its 

position for future guidance and 

regulatory standards. Although the Task 

Force engaged in productive discussions 

and developed considerable information 

relating to the issue, the Task Force 

could not reach a consensus on any 

recommendation. Consequently, on 

October 27, 2004, FRA withdrew the 

task related to the consideration of 

handling the attachment of safety 

appliances on passenger equipment 

from the RSAC and decided to proceed 

with the development of a regulatory 

proposal unilaterally. 

At the safety inquiry and the 

discussions within the Task Force, 

ATPA and its primary members all 

indicated that FRA needs to provide 

clarity and guidance to the industry 

relating to passenger car safety 

appliance arrangements, particularly in 

the area of attaching brackets and 

supports. FRA considered issues 

ranging from the initial manufacturing 

stage to the actual expected life cycle of 

a weld and the environment in which 

the equipment operates. FRA 

acknowledges that freight and passenger 

operations involve significantly 

different environments from a safety 

appliance standpoint, and likely 

justifies an allowance for welded safety 

appliance brackets and supports and in 

other instances where the design of a 

vehicle necessitates such use. In most 

cases, passenger equipment is inspected 

on a more regular basis, generally used 

in captive type service, and experiences 

far less coupling and uncoupling 

associated with switching moves 

inherent in freight operations. FRA also 


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recognizes that it would be extremely 

costly to the passenger industry to 

require existing equipment to be 

retrofitted with new safety appliances 

when the existing welded attachments 

have not shown a proclivity for failure 

at this time. 

Based on the information and views 

provided at both the informal safety 

inquiry and through the RSAC, FRA 

proposed provisions in the NPRM to 

clarify FRA’s existing interpretations of 

the safety appliance regulations and to 

provide the passenger rail industry 

some latitude for existing passenger 

equipment with welded safety 

appliance brackets or supports in lieu of 

retrofitting nearly one-third of the fleet. 

The NPRM proposed a detailed 

inspection and repair program for 

existing passenger equipment with 

welded safety appliances or welded 

safety appliance brackets or supports. 

The NPRM also sought comments and 

information from interested parties on a 

variety of questions and concerns 

relating to both the proposed provisions 

and the general use of welding as a 

means of attaching safety appliance 

brackets and supports. See 70 FR 73077. 

The NPRM indicated FRA’s willingness 

to consider certain welded safety 

appliance brackets and supports to be 

part of a car’s body if viable and 

enforceable specifications could be 

developed that would ensure the safe 

and reliable attachment of such brackets 

and supports. 

FRA received comments from two 

parties regarding the proposed 

provisions and in response to the 

questions presented. BRC submitted 

comments requesting that FRA continue 

its prohibition on welding of safety 

appliances and require that safety 

appliances be mechanically fastened. 

BRC indicated that this approach would 

be consistent with FRA’s historical 

application of the regulations. BRC 

stated that it was not convinced that 

welding was an effective manner of 

securement due to vibration and flex 

occurring on equipment while in transit. 

BRC provided several historical 

examples of instances when FRA took 

exception to certain welded safety 

appliances. FRA notes that the examples 

cited by BRC involved either instances 

of direct welding of the safety 

appliances to a car body, welding of 

safety appliances on freight equipment, 

or welding not conducted in accordance 

with any acceptable welding standard. 

BRC requested that if any change were 

made to the existing welding 

prohibition that they only be considered 

after the initiation and implementation 

of strict safety procedures covering the 

inspection, and repair of such welds as 

well as the qualifications and training of 

the individuals responsible for 

inspecting and welding such 

appliances. 

APTA’s comments focused almost 

exclusively on the proposed provisions 

related to the welding of safety 

appliance brackets and supports. In 

response to questions asked in the 

NPRM, APTA provided detailed 

specifications for use by FRA for 

determining when a welded safety 

appliance bracket or support could be 

considered part of the car’s body. These 

specifications included the strength, 

size, attachment, design criteria, and 

quality control procedures that any 

welded attachment would be required to 

meet. APTA comments fully discussed 

the implications and basis for its 

recommended specifications. APTA 

seeks to have these welding 

specifications applied to both new and 

existing equipment. APTA also sought 

to have the definition of what 

constitutes a defective weld clarified. 

APTA asserts that only a crack in a weld 

should be considered a defect and that 

anomalies in welds should not be 

considered. APTA contends that, if an 

anomaly is significant, it will eventually 

lead to a crack in the weld. 

APTA again noted that it believes 

both FRA and BRC are operating under 

two serious misconceptions relating to 

welding. The first is that the failure 

mode of welds used to attach a safety 

appliance and their related brackets or 

supports is difficult to detect. APTA 

asserts that failure of these welds is rare 

and even if there is a failure it will start 

with a small crack that grows very 

slowly. In the unlikely event that a 

crack were to even develop, it would 

take months or years for failure of the 

weld to occur. These cracks would be 

easy to detect with the visual 

inspections performed on safety 

appliances by railroads on a daily basis. 

The second misconception is that weld 

will have a higher failure rate toward 

the end of the life cycle of a piece of 

equipment. APTA asserts that older 

welds do not fail at any higher rate than 

newer welds. The endurance limits 

designed into these welds are so high 

that the welds will not fatigue over time 

regardless of number of stress cycles 

that occur. Because of this, there is no 

data available to FRA that show a higher 

failure rate due to the age of the weld. 

APTA also stressed that it was not 

advocating welding a safety appliance 

directly to a car body except in the 

limited circumstances identified in the 

NPRM when the design of the 

equipment makes it impossible to 

mechanically fasten the safety 

appliance. 

Based on consideration of these 

comments as well as previous 

information provided to FRA, the final 

rule is modifying some of the provisions 

proposed in the NPRM related to the 

attachment of safety appliances on 

passenger equipment. The final rule 

retains many of the provisions proposed 

in the NPRM but is being expanded to 

adopt APTA’s recommendations for 

determining when a welded safety 

appliance bracket or support will be 

considered part of the car body and the 

definition of a defective weld. FRA 

believes that welding technologies have 

improved significantly over the last 

several decades. In addition, passenger 

operations provide a unique 

environment suitable to the use of 

welding as a means of attachment in 

certain situations. Moreover, FRA 

believes that APTA has provided a 

viable and enforceable specification for 

ensuring that welded safety appliance 

brackets and supports are securely, 

safely, and reliably attached to the 

equipment on which it is placed. Volpe 

reviewed the welding specifications at 

FRA’s request and confirmed that safety 

appliance brackets or supports welded 

to the car body in accordance with the 

standards recommended by APTA 

would be at least as secure and reliable 

as a bracket or support attached with a 

mechanical fastener. FRA further 

believes that BRC’s concerns are 

addressed by the final rule provisions 

because the final rule will only consider 

welded safety appliance brackets or 

supports to be part of the car body if 

stringent and verifiable standards are 

utilized when making the welded 

connection. In addition, the final rule 

will allow existing equipment with 

welded brackets or supports to continue 

in service only if it is inspected and 

repaired in accordance with the strict 

inspection and repair provisions 

contained in the rule. Consequently, 

FRA is including APTA’s recommended 

specifications related to welded safety 

appliance brackets and supports in this 

final rule with slight modification for 

clarity and enforceability. 

The final rule also retains the 

proposed provisions providing the 

industry with the ability to develop 

standards relating to the safety 

appliance arrangements on new cars of 

special construction. FRA did not 

receive any comments on the proposed 

provisions and is retaining them in this 

final rule without change. Throughout 

the Railroad Safety Appliance 

Standards, currently contained in 49 

CFR part 231; specifically, § 231.12—

Passenger-train cars with wide 

vestibules; § 231.13—Passenger-train 


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cars with open-end platforms; 

§ 231.14—Passenger-train cars without 

end platforms; and § 231.23—

Unidirectional passenger-train cars 

adaptable to van-type semi-trailer use, 

there may be inconsistencies and/or 

opportunities for clarification in the 

construction of newly built passenger 

equipment. Many times, it is necessary 

to reference two or more sections of 49 

CFR part 231 to determine if a newly 

constructed passenger vehicle meets the 

minimum requirements of the Federal 

regulations. However, criteria for most 

of today’s new types of passenger car 

construction are found within 49 CFR 

231.18—Cars of special construction. 

This results from the fact that modern 

technology in construction of carbuilding often does not lend itself to 

ready application of the current 49 CFR 

231 requirements. Rather, the designer 

must adapt several different 

requirements to meet as closely as 

possible construction of specific safety 

appliance arrangements in order to 

obtain compliance. 

Most passenger cars today are 

constructed outside the United States, 

and this has exacerbated the problem of 

varying interpretations of regulations 

and resulting safety appliance 

arrangements. At times, different 

requirements are applied to cars of 

similar design where both could have 

been constructed in the same manner. 

Substantial resources are spent on a 

regular basis by all parties concerned in 

review sessions to determine if a car is 

in compliance prior to construction; and 

even when the cars are delivered, 

problems have arisen. 

In an attempt to limit these problems, 

the final rule contains a method by 

which the industry may request 

approval of safety appliance 

arrangements on new equipment 

considered to be cars of special 

construction under 49 CFR part 231. 

The final rule will permit the industry 

to develop standards to address many of 

the new types of passenger equipment 

introduced into service. The final rule 

requires any such standards, and 

supporting documentation to be 

submitted to FRA for agency approval 

pursuant to the special approval process 

already contained in the regulation. The 

final rule makes clear that any approved 

standard will be enforceable against any 

person who violates or causes the 

violation of the approved standards and 

that the penalty schedule contained in 

Appendix A to 49 CFR part 231 will be 

used as guidance in assessing any 

applicable civil penalty. The goal of the 

regulation is to develop consistent 

safety appliance standards for each new 

type of passenger car not currently 

identified in the Federal regulations that 

ensures the construction of suitable 

safety appliance arrangements in 

compliance with 49 CFR part 231. FRA 

believes the final rule will reduce or 

eliminate reliance upon criteria for cars 

of special construction, will improve 

communication of safety appliance 

requirements to the industry, and will 

facilitate regulatory compliance where 

clarification or guidance is necessary. 

Portions of the final rule relating to 

new passenger equipment are already 

progressing. By letter dated September 

2, 2005, FRA requested APTA to 

determine if it is feasible to form a 

group to specifically develop potential 

safety appliance standards for newly 

manufactured passenger equipment and 

provide guidance where existing 

Federal regulations are not specific to 

the design of a passenger car or 

locomotive. On October 11, 2005, APTA 

informed FRA that it is willing to 

undertake this effort and began 

conducting meetings in early 2006. FRA 

believes this approach provides an 

excellent avenue to take advantage of 

the knowledge and expertise possessed 

by rail operators and equipment 

manufactures when considering safety 

appliance arrangements on new 

passenger equipment of unique design. 

Under the provisions retained in this 

final rule, the standards and guidance 

developed by this group will need to be 

submitted to and approved by FRA 

pursuant to the special approval 

provisions contained at § 238.21. 

E. Securement of Unattended 

Equipment 

The NPRM proposed various 

provisions related to the securement of 

unattended equipment. FRA did not 

receive any comments on the proposed 

provisions other than APTA’s 

concurrence that the proposal 

appropriately captures existing practices 

of passenger railroads. Thus, this final 

rule retains the proposed provisions 

without change. FRA believes that the 

rational for addressing these issues on 

freight operations is equally applicable 

to passenger operations. The preamble 

to the final rule related to 49 CFR part 

232 contains an in-depth discussion of 

the need to address these issues. See 66 

FR 4156–4158 (January 17, 2001). The 

approach proposed in the NPRM and 

retained in this final rule is also 

consistent with the guidance contained 

in FRA Safety Advisory 97–1. See 62 FR 

49046 (September 15, 1997). Further, 

FRA is aware of several incidents on 

passenger and commuter operation 

involving the running away or 

inadvertent movement of unattended 

equipment. 

As passenger train consists are much 

shorter and do not possess the tonnage 

associated with freight trains, the final 

rule modifies the provisions contained 

in 49 CFR part 232 to make them more 

readily applicable to passenger 

operations. The requirements contained 

in this final rule are consistent with and 

based directly on current passenger 

industry practice. Thus, in FRA’s view, 

they will have no economic or 

operational impact on passenger 

operations but will ensure that these 

best practices currently adopted by the 

industry are followed and complied 

with by making them part of the Federal 

regulations. 

The final rule requires that 

unattended equipment be secured by 

applying a sufficient number of hand or 

parking brakes to hold the equipment 

and will require railroads to develop 

and implement a process or procedure 

to verify that the applied hand or 

parking brakes will hold the equipment. 

The final rule also prohibits a practice 

known as ‘‘bottling the air’’ in a 

standing cut of cars. The practice of 

‘‘bottling the air’’ occurs when a train 

crew sets out cars from a train with the 

air brakes applied and the angle cocks 

on both ends of the train closed, thus 

trapping the existing compressed air 

and conserving the brake pipe pressure 

in the cut of cars they intend to leave 

behind. This practice has the potential 

of causing, first, an unintentional 

release of the brakes on these cars and, 

ultimately, a runaway. A full discussion 

of the hazards related to this practice is 

contained in the preamble to the final 

rule related to freight power brakes. See 

66 FR 4156–57. Virtually all railroads 

currently prohibit this practice in their 

operating rules. 

The final rule also mandates a 

minimum number of hand or parking 

brakes that must be applied on an 

unattended locomotive consist or train. 

Due to the relatively short length and 

low tonnage associated with passenger 

trains, FRA does not believe that the 

more stringent provisions contained in 

§ 232.103(n)(3) are necessary in a 

passenger train context. Thus, the final 

rule only requires that at least one hand 

or parking brake be applied in these 

circumstances; however, the number of 

applied hand or parking brakes will 

vary depending on the process or 

procedures developed and implemented 

by each covered railroad. In addition, 

the final rule requires railroads to 

develop and implement procedures for 

securing locomotives not equipped with 

a hand or parking brake and instructions 

for securing any locomotive left 

unattended. As noted previously, FRA 

is not aware of any railroad which does 


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not already have the required 

procedures or processes in place. Thus, 

FRA believes that these requirements 

will impose no burden on passenger 

operations covered by 49 CFR part 238. 

In addition to addressing specific 

issues relating to securing unattended 

equipment, the final rule also 

incorporates and adopts the industry’s 

best practices related to the inspection 

and testing of hand and parking brakes. 

The final rule requires that the hand or 

parking on other than MU locomotives 

be inspected no less frequently than 

every 368 days and that a record (either 

stencil, blue card, or electronic) be 

maintained and provided to FRA upon 

request. The final rule also requires the 

application and release of the hand or 

parking brake at each periodic 

mechanical inspection of passenger cars 

and unpowered vehicles under 

§ 238.307 and requires a complete 

inspection of these components every 

368 days, with a record being 

maintained of this annual inspection. 

The inspection and testing intervals as 

well as the stenciling and record 

keeping requirements retained in the 

final rule are consistent with the current 

practices in the industry and will 

impose no additional burden on the 

industry. 

V. Section-by-Section Analysis 

Amendments to 49 CFR Part 229 

Section 229.5 Definitions 

The final rule is retaining the 

proposed technical clarification to the 

definition of ‘‘MU locomotive’’

contained in this section. FRA did not 

receive any comments on this proposed 

modification. Thus, FRA is retaining the 

modification in this final rule without 

change. Section 229.5 contains a 

number of definitions that define 

different types of locomotives covered 

by the various provisions contained in 

part 229. These include the general 

definition of ‘‘locomotive’’ as well as 

various types of locomotives including: 

‘‘control cab locomotive,’’ ‘‘DMU 

locomotive,’’ and ‘‘MU locomotive.’’

Representatives of various railroads and 

equipment manufacturers have 

expressed concern over these 

definitions, contending that they were 

confusing and contained some overlap 

making it difficult to determine which 

category a particular locomotive fell 

within. 

The definition of ‘‘MU locomotive’’

was recently reissued in its full length 

when the final rule on Locomotive 

Event Recorders was published on June 

30, 2005. See 70 FR 37939. 

Subparagraph (2) of the current 

definition identifies an MU locomotive 

as ‘‘a multiple unit operated electric 

locomotive * * * (2) without propelling 

motors but with one or more control 

stands.’’ This portion of the MU 

locomotive definition is identical to the 

definition of ‘‘control cab locomotive.’’

In an effort to add clarity and to 

definitively distinguish a MU 

locomotive from a control cab 

locomotive, the final rule adds some 

limiting language to the definition of 

what constitutes a MU locomotive. 

Historically, FRA has only considered a 

locomotive without propelling motors to 

be a MU locomotive if it has the ability 

to pick-up primary power from a third 

rail or a pantograph. Consequently, the 

final rule adds this language to the 

existing definition of MU locomotive to 

make it consistent with FRA’s historical 

enforcement and interpretation of the 

regulation. 

Section 229.31 Main Reservoir Tests 

The final rule retains the proposed 

amendments to paragraphs (a) and (c) of 

this section to provide the 

manufacturers of main reservoirs the 

option to test main reservoirs 

pneumatically rather than 

hydrostatically as currently mandated. 

Other than APTA’s comments 

supporting the provisions, FRA received 

no comments on the proposed 

amendments. The modifications will 

permit a main reservoir to receive a 

pneumatic test before it is originally 

placed in service or before an existing 

main reservoir is placed back in service 

after being drilled. As discussed in 

detail in Section B of the Technical 

Background portion of this document, 

the ASME code currently utilized by all 

manufacturers of main reservoirs allows 

for the pneumatic testing of the 

reservoirs when the introduction of 

liquid cannot be tolerated. The 

introduction of water to perform 

hydrostatic testing on main reservoirs 

creates a problem because if the liquid 

is not completely removed and the 

reservoir interior completely dried, the 

moisture results in poor adhesion or a 

lower coating of film than required. This 

condition has the potential of causing 

interior corrosion and premature failure 

of the reservoir. 

The rationale for originally requiring 

that the main reservoirs be tested 

hydrostatically was based on the safety 

concerns should a main reservoir 

catastrophically fail during the testing. 

The likelihood of injury is minimized 

by having the reservoir filled with a 

liquid rather than air. However, since 

the original drafting of the locomotive 

regulations, manufacturers of reservoirs 

have implemented and developed both 

equipment and procedures to ensure 

that test personnel are adequately 

shielded when conducting the testing. 

The manufacturers have been 

performing pneumatic testing on 

reservoirs for years and FRA is not 

aware of any injury related to such 

testing in manufacturer-controlled 

facilities. Thus, the safety concerns 

originally attached to pneumatic testing 

have been minimized, if not eliminated, 

when conducted at properly equipped 

manufacturer facilities. 

In addition to the safety benefits 

related to pneumatic testing, FRA 

recognizes that all passenger car main 

reservoirs are pneumatically tested after 

fabrication and before the application of 

an interior protective coating. This 

process is utilized so that reservoirs may 

be repaired if the reservoir does not pass 

the initial the test requirements. If the 

interior protective coating were to be 

applied prior to testing, any weld 

repairs could not be performed, as the 

interior coating would be damaged. 

Thus, in recognition of current industry 

practice and in an effort to provide 

compliance options that are beneficial 

from a safety perspective, the final rule 

will to permit the manufacturers of 

main reservoirs to utilize pneumatic 

testing to meet the requirements 

contained in paragraphs (a) and (c) of 

this section. FRA believes that this 

flexibility increases both the safety and 

efficiency of testing newly 

manufactured main reservoirs and 

reservoirs that are newly drilled and 

tested at a manufacturer’s facility. 

It should be noted that the final rule 

limits the ability to conduct pneumatic 

testing of the main reservoirs to only 

those facilities with appropriate 

safeguards in place to ensure the safety 

of the personnel conducting the testing. 

After a reservoir is installed on a 

locomotive, FRA believes that 

hydrostatic testing would be the only 

testing method that adequately ensures 

the safety and protection of the 

personnel that are performing the test or 

working near the installed reservoir. In 

order to make this intent clear, 

paragraph (c) contains language that 

plainly states that pneumatic testing of 

a reservoir currently in use and newly 

drilled may only be conducted by a 

manufacturer of main reservoirs in a 

suitably safe environment. In other 

circumstances, a hydrostatic test of the 

reservoir must be conducted. 

Section 229.47 Emergency Brake Valve 

Section 229.137 Sanitation, General 

Requirements 

The final rule is retaining the 

proposed technical clarification to 

paragraph (b) of § 229.47 and paragraph 


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(b)(1)(iv) of § 229.137. FRA did not 

receive any comments on these 

proposed clarifications and is retaining 

them in this final rule without change. 

FRA is making these clarifications in 

order to ensure that these sections are 

consistent with the new definition of 

‘‘DMU locomotive.’’ The recently 

published final rule on Locomotive 

Event Recorders added the definition of 

‘‘DMU locomotive’’ to 49 CFR part 229. 

See 70 FR 37920 (June 30, 2005). This 

definition was added to part 229 in 

order to specifically identify dieselpowered multiple unit locomotives. 

These types of locomotives are just 

starting to be used by a small number 

of passenger railroads and FRA wants to 

be sure that they are adequately 

addressed by the safety standards 

contained in part 229. As these types of 

locomotives are fairly unique, they do 

not fit cleanly within the regulations as 

they pertain to traditional locomotives 

and MU locomotives. In some instances 

they are treated as traditional 

locomotives and in others they are 

treated as MU locomotives. In an effort 

to clarify the applicability of various 

provisions contained in part 229, FRA is 

amending §§ 229.47 and 229.137 to 

specifically state that DMU locomotives 

are covered by these provisions. These 

clarifications are consistent with FRA’s 

historical application of the regulations 

to DMU locomotives. 

Amendments to 49 CFR Part 238 

Section 238.5 Definitions 

The final rule retains the proposed 

clarifying amendments to the 

definitions section contained in part 238 

by revising the definition of ‘‘actuator’’

currently contained in regulation and by 

adding a new definition for ‘‘piston 

travel indicator.’’ FRA did not receive 

any comments in response to the 

proposed amendments and is retaining 

them in this final rule without change. 

The term ‘‘actuator’’ used by FRA in the 

Passenger Equipment Safety Standards 

final rule is a term that many members 

of the passenger industry associate and 

use to identify a specific self-contained 

brake system component that typically 

consists of a cylinder, piston, and piston 

rod. FRA was not intending to identify 

this brake system component when it 

included the term in § 238.313(g)(3) of 

the original regulation. FRA also notes 

that the term actuator is used in the 

definition of ‘‘piston travel’’ in this 

section to refer to the brake system 

component described above. 

In order to prevent and limit any 

confusion on the part of the regulated 

community, the final rule modifies the 

definition of ‘‘actuator’’ to describe the 

brake system component to which the 

term has traditionally been attached and 

which is what the term refers to in the 

definition of ‘‘piston travel.’’ In 

addition, the final rule is adding a new 

term to part 238 to describe the device 

originally defined as an ‘‘actuator.’’

Therefore, the final rule adds the term 

‘‘piston travel indicator’’ to describe a 

device directly activated by the 

movement of the brake cylinder piston, 

the disc actuator, or the tread brake unit 

cylinder piston that provides an 

indication of piston travel. The final 

rule also replaces the term ‘‘actuator’’ in 

§ 238.313(g)(3) with the term ‘‘piston 

travel indicator.’’

Section 238.17 Movement of Passenger 

Equipment With Other Than Power 

Brake Defects 

The final rule retains the proposed 

conforming change in paragraph (b) of 

this section to acknowledge the 

flexibility being provided 

§ 238.303(e)(17) of this final rule 

relating to inoperative or ineffective air 

compressors on MU passenger 

equipment. As discussed in detail above 

in the Technical Background portion of 

the preamble and in the section-bysection discussion related to § 238.303 

below, the final rule permits certain MU 

passenger equipment with inoperative 

or ineffective air compressors to 

continue to be used in passenger service 

until the next exterior calendar day 

mechanical inspection. 

Section 238.21 Special approval 

procedures 

The final rule retains the proposed 

conforming changes to paragraphs (a) 

and (c) of this section to recognize the 

requirements relating to safety 

appliances on both existing and new 

passenger equipment contained in 

§§ 238.229 and 238.230 of this final 

rule. These conforming changes 

recognize the provisions of those 

sections that require a railroad to obtain 

FRA approval of welded safety 

appliance attachment or of an industrywide standard relating to safety 

appliance arrangements on new 

passenger equipment of unique design. 

Section 238.229 Safety appliances—

general 

In this section, FRA is incorporating 

and clarifying its long-standing 

administrative interpretations regarding 

the attachment of safety appliances and 

safety appliance brackets and supports. 

FRA is also requiring an inspection 

program for permitting existing 

passenger equipment to remain in 

service in lieu of requiring retro-fitting 

of the equipment to eliminate welded 

safety appliance brackets or supports. 

FRA adopted these provisions 

unilaterally and did not seek a 

recommendation or concurrence from 

RSAC. These issues are discussed above 

in the Technical Background section of 

the preamble to the final rule and in the 

preamble to the NPRM. See 70 FR 

73075–78. As FRA sees no benefit in 

reproducing the entire discussion here, 

interested parties should refer to those 

discussions when considering the 

provisions contained in this section of 

the final rule. 

Based on consideration of the 

information provided by the RSAC 

Working Group when developing the 

NPRM as well as the comments 

submitted in response to the NPRM, the 

final rule is modifying some of the 

provisions proposed in the NPRM 

related to the attachment of safety 

appliances on passenger equipment. 

The final rule retains many of the 

provisions proposed in the NPRM but is 

being expanded to adopt APTA’s 

recommendations for determining when 

a welded safety appliance bracket or 

support will be considered part of the 

car body. FRA believes that welding 

technologies have improved 

significantly over the last several 

decades. In addition, passenger 

operations provide a unique 

environment suitable to the use of 

welding as a means of attachment in 

certain situations. Moreover, FRA 

believes that APTA has provided a 

viable and enforceable specification for 

ensuring that welded safety appliance 

brackets and supports are securely, 

safely, and reliably attached to the 

equipment on which it is placed. Volpe 

reviewed APTA’s welding 

specifications, at FRA’s request, and 

confirmed that safety appliance brackets 

or supports welded to the car body in 

accordance with the standards 

recommended by APTA would be at 

least as secure and reliable as a bracket 

or support attached with a mechanical 

fastener. FRA further believes that 

BRC’s concerns are addressed by the 

final rule provisions because the final 

rule will only consider welded safety 

appliance brackets or supports to be part 

of the car body if stringent and 

verifiable standards are utilized when 

making the welded connection. In 

addition, the final rule will allow 

existing equipment with welded 

brackets or supports to continue in 

service only if it is inspected and 

repaired in accordance with the strict 

inspection and repair provisions 

contained in the rule. Consequently, 

FRA is including APTA’s recommended 

specifications related to welded safety 


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appliance brackets and supports in this 

final rule with slight modification for 

clarity and enforceability. 

Paragraphs (a) and (b) of this section 

contain FRA’s long-standing 

administrative interpretations 

prohibiting the use of welding as a 

means of attaching or repairing either a 

safety appliance or a safety appliance 

bracket or support. Paragraph (a) makes 

clear that all passenger equipment 

continues to be subject to the statutory 

provisions contained in 49 U.S.C. 

chapter 203 as well as the regulatory 

provisions contained in 49 CFR part 

231. Paragraph (b) incorporates FRA’s 

long-standing administrative 

interpretations regarding the welding of 

safety appliances and their supports. 

This paragraph makes clear that safety 

appliances and their brackets or 

supports are to be mechanically 

fastened to the car body and specifically 

states that welding as a method of 

attachment is generally prohibited. This 

paragraph also explains that FRA 

permits the welding of a brace or 

stiffener used in connection with 

mechanically fastened safety appliance 

and provides a definition of what 

constitutes a ‘‘brace’’ or ‘‘stiffener’’ in 

these arrangements. 

Paragraph (c) contains specific 

exceptions to FRA’s general prohibition 

related to welded safety appliances and 

welded safety appliance brackets and 

supports for passenger equipment 

placed in service prior to January 1, 

2007. The final rule reorganizes this 

paragraph from that proposed in the 

NPRM in order to provide clarity and to 

prevent any misunderstanding. This 

paragraph only addresses welded safety 

appliances on existing passenger 

equipment (i.e., equipment placed in 

service prior to January 1, 2007). 

Provisions related to welded safety 

appliances on new passenger equipment 

(i.e., equipment placed in service on or 

after January 1, 2007) are contained in 

§ 238.230 of this final rule. FRA believes 

that the segregation of these two types 

of vehicles provides a better 

understanding of the provisions related 

to each and allows them to be handled 

differently. 

Paragraph (c)(1) retains the proposed 

exception for passenger equipment 

placed in service prior to January 1, 

2007, equipped with a safety appliance 

that is mechanically fastened to a 

bracket or support that is welded to the 

vehicle. Rather than require the 

retrofitting of existing equipment that 

currently contain safety appliance 

brackets or supports that are attached to 

the equipment by welding, FRA will 

permit the equipment to remain in 

service provided that the equipment is 

identified, inspected, and handled for 

repair in accordance with the provisions 

contained in paragraphs (e) through (k) 

of this section. FRA believes the 

identification and inspection plan 

required in this final rule will ensure 

the safe operation of equipment 

currently in service. 

The final rule also expands this 

paragraph to provide an exception for 

welded safety appliance brackets or 

supports that are determined to meet the 

requirements for being considered part 

of the car body contained in 

§ 238.230(b)(1) of this final rule. This 

paragraph exempts the safety appliance 

brackets and supports from any further 

periodic inspections if it is determined 

during the initial inspection that they 

are part of the car body, do not contain 

a defect, and are identified to FRA in 

writing. FRA wishes to make clear that 

all existing equipment with welded 

safety appliance brackets or supports 

must be given an initial inspection 

pursuant to paragraphs (g) through (i) of 

this section and must be handled for 

remedial action pursuant to paragraph 

(j) of this section. Thus, safety appliance 

brackets and supports determined to be 

part of the car body and meeting the 

other restrictions contained in this 

paragraph are only excepted from the 

future 6-year periodic inspections 

provided for in paragraph (g)(1) of this 

section. 

Paragraph (c)(2) of this final rule is 

modified from that proposed in the 

NPRM to apply only to existing 

passenger equipment with safety 

appliances directly welded to the 

equipment. As noted above, FRA 

believes that this makes the rule easier 

to understand. Provisions related to new 

passenger equipment with safety 

appliances directly welded to the 

equipment are contained in 

§ 238.230(b)(2) of this final rule. This 

paragraph acknowledges the fact that in 

some instances, due to the design of a 

vehicle, safety appliances are required 

to be directly attached to a piece of 

equipment by welding. Other than this 

clarifying change, the provision is 

identical to that proposed in the NPRM. 

This paragraph requires railroads to 

identify each piece of existing passenger 

equipment outfitted with a safety 

appliance welded directly to the vehicle 

and requires that any such safety 

appliances be inspected and handled in 

accordance with the inspection and 

repair provisions contained in 

paragraphs (g) through (k). FRA notes 

that only the specifically identified 

safety appliances will be required to be 

so inspected and handled. 

Paragraph (d) contains standards to 

clarify when a weld on a safety 

appliance and a safety appliance bracket 

or support is to be considered defective. 

This paragraph has been slightly 

modified from that proposed in the 

NPRM. In its comments, APTA 

recommended that a weld only be 

considered defective if it contained a 

crack. APTA asserted that including any 

anomaly affecting the strength of the 

weld would result in subjective 

application of the rule and would 

require inspectors to be specially 

trained to identify such anomalies. 

Moreover, APTA asserts that any failure 

of a weld would begin with a small 

crack that would grow very slowly. In 

the unlikely event that a crack were to 

even develop, it would take months or 

years for failure of the weld to occur and 

such cracks would be easy to detect 

with the visual inspections performed 

on safety appliances by railroads on a 

daily basis. FRA agrees with APTA’s 

assertions. Thus, the final rule amends 

the proposed provision by limiting the 

definition of a weld defect to being a 

crack or fracture of any discernible 

length or width. FRA believes this 

approach is consistent with existing 

welding technology, ensures consistent 

application of the regulation, and will 

avoid excessive training of inspectors by 

limiting their inspection criteria. This 

paragraph also requires that any repairs 

made to a defective weld must be made 

in accordance with the inspection plans 

and remedial action provisions 

contained in paragraph (g) and (j) of this 

section. 

Paragraphs (e) and (f) retain the 

proposed provisions relating to a 

railroad’s identification of all existing 

passenger equipment that contains a 

welded safety appliance bracket or 

support. FRA did not receive any 

comment directly related to these 

provisions in response to the NPRM and 

is retaining them without change in this 

final rule. Paragraph (e) requires the 

listing to be submitted to FRA by no 

later than December 31, 2006, and 

permits railroads to update the list if 

they identify equipment after that date. 

These paragraphs permit railroads to 

exclude certain safety appliances from 

the inspection provisions provided the 

railroad fully explains the basis for any 

such exclusion. FRA envisions such 

exclusions to be limited to situations 

where inspection of the weld is 

impossible or in situations where the 

size and quality of a weld are such to 

make inspection unnecessary (i.e., 

where the bracket or support is a 

structural member of the car). Paragraph 

(f) makes clear that FRA reserves the 

right to disapprove any exclusion 

proffered by a railroad by providing 


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written notification to the railroad of 

any such decision. 

Paragraphs (g) through (j) contain the 

inspection and repair criteria for any 

equipment identified with a welded 

safety appliance or welded safety 

appliance bracket or support. These 

paragraphs contain provisions 

concerning when visual inspections of 

the involved safety appliances would be 

required to be performed and address 

the qualifications of the individuals 

required to perform the inspections as 

well as the procedures to be utilized 

when performing the inspections. FRA 

considered various methods for 

inspecting the welds on the involved 

equipment including various types of 

non-destructive testing on smaller 

numbers of the involved welds. 

However, FRA continues to believe that 

periodic visual inspections of all the 

identified welds is the most effective 

and cost-efficient method of ensuring 

the proper condition of the attachments. 

Paragraph (h) identifies a number of 

different types of individuals that could 

be utilized by a railroad to perform the 

required visual inspections of welded 

safety appliances and welded safety 

appliance brackets and supports. FRA 

believes that these inspectors must be 

properly trained and qualified to 

identify defective weld conditions. 

Rather than limit a railroad’s ability to 

utilize a number of its available 

personnel, FRA has attempted to list a 

number of different types of persons 

that would have the ability to conduct 

the required visual inspections based on 

railroad provided training or due to 

being certified under an accepted 

existing industry, national or 

international welding standard. This 

paragraph has been slightly modified 

from that proposed in the NPRM in 

order to remain consistent with this 

approach. The final rule recognizes that 

there are a number of existing national 

and international welding standards 

under which a person may be certified 

and that these standards may be 

modified on a regular basis. Thus, rather 

than attempting to incorporate these 

existing standards into the regulation, 

the final rule identifies many of the 

currently existing standards and makes 

clear that a more revised version of the 

identified standard is acceptable 

provided it is equivalent to the standard 

it updates. The final rule also 

acknowledges that there may be other 

nationally or internationally recognized 

welding standards that would be 

equivalent to those specifically 

identified and makes clear that 

certification under these other 

unspecified standards would be 

acceptable provided they are equivalent 

to one of the specifically identified 

welding certification standards. 

FRA expects that most railroads will 

utilize a qualified maintenance person 

(QMP) to conduct the inspections, as 

they are the individuals recognized to 

conduct most of the other brake and 

mechanical inspections required under 

part 238. FRA notes that a QMP would 

be required to receive at least four hours 

of training specific to weld defect 

identification and weld inspection 

procedures to be deemed qualified to 

perform the required periodic 

inspections. FRA did not receive any 

comments suggesting that more training 

of QMP’s would be necessary and is 

retaining the four hour training 

requirement in this final rule. 

Paragraph (j) contains remedial 

actions that are required to be utilized 

in situations where a welded safety 

appliance or safety appliance bracket or 

support is found defective either during 

the periodic visual inspections or while 

otherwise in service. FRA did not 

receive any comments specifically 

related to the provisions contain in this 

section in response to the NPRM and is 

retaining them without change in this 

final rule. This paragraph makes clear 

that unless the defect is known to be the 

result of crash damage, the railroad 

must conduct a failure and engineering 

analysis to determine the cause of the 

defective condition. The remedial action 

provisions permit a defective welded 

safety appliance or safety appliance 

bracket or support to be reattached to a 

vehicle by either mechanical fastening 

or welding if the defective condition is 

due to crash damage or improper 

construction. Any welded repair would 

be required to be conducted in 

accordance with APTA’s Standard for 

Passenger Rail Vehicle Structural 

Repair, SS–C&S–020–03 (September 

2003). 

In conformance with Office of 

Management and Budget (OMB) Revised 

Circular A–119 (February 10, 1998), 

FRA is using a voluntary national 

standard in this paragraph of the final 

rule. FRA’s use of a standard established 

by APTA is a means of establishing 

technical requirements without 

increasing the volume of the Code of 

Federal Regulations. See 1 CFR part 51. 

In this final rule, FRA has incorporated 

the most current version of the APTA 

standard, however FRA understands 

that over time, APTA may revisit this 

standard and may update it. In such 

instances, FRA may approve the use of 

a more recent standard via the special 

approval procedures contained in 

§ 238.21. FRA also intends to regularly 

update the rule, most likely through the 

use of technical amendments, and 

would incorporate APTA’s revised 

standards at that time. Federal law 

requires that a publication incorporated 

by reference be identified by its title, 

date, edition, author, publisher, and 

identification number, this final rule 

incorporates the most current APTA 

standard only. See 1 CFR 51.9(b)(2). 

In instances where the defective 

condition is due to inadequate design, 

such as unanticipated stresses or loads 

during service, the final rule requires 

that the safety appliance be 

mechanically attached, if possible, and 

requires railroads to develop a plan for 

submission to FRA detailing a schedule 

for mechanically fastening the safety 

appliances of safety appliance brackets 

or supports on all cars in that series of 

cars. The final rule retains these strict 

provisions because where inadequate 

design causes failure of the safety 

appliances it is an indication that there 

is likely a systemic problem for all cars 

similarly constructed. 

Paragraph (k) retains the proposed 

requirement related to maintaining 

records of both the inspections and any 

repairs made to welded safety 

appliances or welded safety appliance 

brackets or supports. FRA did not 

receive any comments related to these 

provisions in response to the NPRM and 

is retaining them in this final rule 

without change. These records will not 

only aid FRA’s enforcement of the final 

rule provisions but will also provide 

invaluable information regarding the 

longevity and integrity of welded 

appliances and brackets or supports. 

The records required in this paragraph 

may be maintained in any format 

(written, electronic, etc.), but must be 

made available to FRA upon request. 

Section 238.230 Safety Appliances—

New Equipment 

This section contains requirements 

related to safety appliances on 

passenger equipment placed into service 

after January 1, 2007. This section 

reiterates FRA’s long-standing 

prohibition on welding of safety 

appliance brackets or supports. 

Paragraph (b) incorporates FRA’s longstanding administrative interpretations 

regarding the welding of safety 

appliances and their supports. This 

paragraph makes clear that safety 

appliances and their brackets or 

supports are to be mechanically 

fastened to the car body and specifically 

states that welding as a method of 

attachment is generally prohibited 

except as specifically provided in this 

section. Paragraphs (b)(1) through (b)(3) 

contain the specific exceptions to FRA 

general prohibition on welded safety 


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appliances and their brackets or 

supports. 

Paragraph (b)(1) contains the criteria 

for determining when a safety appliance 

bracket or support will be considered 

part of the car body and thus, obviating 

the need to mechanically fasten the 

bracket or support to the body of the 

piece of equipment. As discussed above, 

FRA carefully considered suggestions 

that would allow limited use of welding 

to attach safety appliances brackets and 

supports on new passenger equipment. 

FRA believes that welding technologies 

have improved significantly over the 

last several decades. In addition, 

passenger operations provide a unique 

environment suitable to the use of 

welding as a means of attachment in 

certain situations. Moreover, FRA 

believes that APTA has provided a 

viable and enforceable specification for 

ensuring that welded safety appliance 

brackets and supports are securely, 

safely, and reliably attached to the 

equipment on which it is placed. Volpe 

reviewed APTA’s welding 

specifications, at FRA’s request, and 

confirmed that safety appliance brackets 

or supports welded to the car body in 

accordance with the standards 

recommended by APTA would be at 

least as secure and reliable as a bracket 

or support attached with a mechanical 

fastener. FRA further believes that 

BRC’s concerns are addressed by the 

final rule provisions because the final 

rule will only consider welded safety 

appliance brackets or supports to be part 

of the car body if the stringent and 

verifiable standards contained in this 

paragraph are followed when making 

the welded connection. Consequently, 

FRA is including APTA’s recommended 

specifications related to welded safety 

appliance brackets and supports in this 

paragraph with slight modification for 

clarity and enforceability. 

Paragraph (b)(1) contains specific 

criteria that must be met in order for a 

safety appliance bracket or support to be 

considered part of the car body. These 

include such things as: The surface to 

which the bracket or support is welded; 

the surface area of the weld; the type 

and size of the weld; the welding 

process that must be utilized; and the 

qualifications of the individual 

performing the weld. This paragraph 

also requires that any such bracket or 

support be inspected by a qualified 

person prior to being placed in service. 

This inspection may be conducted by 

either the manufacturer or the railroad; 

provided, a record of the inspection is 

maintained and made available to FRA 

upon request. 

In an effort to remain realistic and 

practical, paragraphs (b)(2) and (b)(3) of 

this section acknowledge that there may 

be instances where the design of a 

vehicle makes it impracticable to 

mechanically attach a safety appliance 

or a safety appliance bracket or support 

and necessitates the need to weld the 

safety appliance or the bracket or 

support. These paragraphs are identical 

to those proposed in the NPRM but have 

been reorganized for clarity. FRA did 

not receive any comments on these 

specific provisions and is retaining 

them in this final rule. FRA intends to 

make clear that the flexibility to utilize 

welding in these applications will be 

narrowly construed and will only be 

permitted in instances where a clear 

nexus between the equipment design 

and the need to weld a safety appliance 

or a safety appliance bracket or support 

exists. 

These paragraphs require a railroad to 

identify any such equipment prior to 

placing it in service and requires the 

railroad to clearly describe the necessity 

to weld the safety appliance or the 

bracket or support. In the case of a 

welded safety appliance bracket or 

support not considered to be part of the 

car body, the railroad must receive 

FRA’s approval prior to placing the 

equipment in service and must describe 

the industry standard followed when 

making such an attachment. In the case 

of a safety appliance welded directly to 

the vehicle, the railroads must provide 

a detailed rationale explaining how the 

design of the vehicle or placement of the 

safety appliance requires the direct 

welding of the appliance to the 

equipment prior to placing the 

equipment in service. Paragraph (b)(2) 

and (b)(3) make clear that any new 

equipment containing a welded safety 

or a welded safety appliance bracket or 

support not considered part of the car 

body are required to be inspected and 

handled in accordance with the 

provisions contained in § 238.229(g) 

through (k). 

Paragraph (c) is a new paragraph 

being added to this final rule to make 

clear that a welded safety appliance or 

a welded safety appliance bracket or 

support will be considered defective if 

any portion of the weld is considered 

defective pursuant to § 238.229(d) of 

this part. FRA intends to make clear that 

any welded safety appliance bracket or 

support, even if considered part of the 

car body, is covered by this provision. 

This paragraph also makes clear that 

defective welds on safety appliances 

and safety appliance brackets and 

supports will be assessed under the 

penalty schedule contained in 49 CFR 

part 231, Appendix A. This paragraph 

further requires that any repair 

conducted to a welded safety appliance 

bracket or support considered part of 

the car body is to be conducted in 

accordance with APTA Standard SS–

C&S–020–03 that is incorporated by 

reference in § 238.229. 

Paragraph (d) retains the proposed 

requirements that would permit the 

submission of industry-wide safety 

appliance arrangement standards to 

FRA for its approval. FRA did not 

receive any specific comments on these 

provisions in response to the NPRM and 

is retaining them in this final rule 

without change. As discussed in detail 

in the Section D of the Technical 

Background portion of the preamble, the 

Railroad Safety Appliance Standards 

currently contained in 49 CFR part 231 

address a very limited number of 

different types of passenger equipment. 

The criteria for most of today’s new 

types of passenger car construction are 

found within 49 CFR 231.18—Cars of 

special construction. This results from 

the fact that modern technology in 

construction of car-building often does 

not lend itself to ready application of 

the existing 49 CFR part 231 

requirements. Rather, the designer must 

adapt several different requirements to 

meet as closely as possible construction 

of specific safety appliance 

arrangements in order to obtain 

compliance. Most passenger cars today 

are constructed outside the United 

States, and this has exacerbated the 

problem of varying interpretations of 

regulations and resulting safety 

appliance arrangements. At times, 

different requirements are applied to 

cars of similar design where both could 

have been constructed in the same 

manner. Substantial resources are spent 

on a regular basis by all parties 

concerned in review sessions to 

determine if a car is in compliance prior 

to construction; and even when the cars 

are delivered, problems have arisen. 

In attempt to limit these problems, 

paragraph (d) provides a process by 

which the industry may request 

approval of safety appliance 

arrangements on new equipment 

considered to be cars of special 

construction under 49 CFR part 231. 

This paragraph will permit the industry 

to develop standards to address many of 

the new types of passenger equipment 

introduced into service. The final rule 

will require these standards, and 

supporting documentation to be 

submitted to FRA for FRA approval 

pursuant to the special approval process 

already contained in § 238.21 of this 

regulation. This paragraph makes clear 

that any approved standard will be 

enforceable against any person who 

violates or causes the violation of the 

approved standard and that the penalty 


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schedule contained in Appendix A to 49 

CFR part 231 will be used in assessing 

any applicable civil penalty. 

The goal of this final rule is to 

develop consistent safety appliance 

standards for each new type of 

passenger car not currently identified in 

the Federal regulations that ensure the 

construction of suitable safety appliance 

arrangements in compliance with 49 

CFR part 231. FRA believes the final 

rule will reduce or eliminate reliance 

upon criteria for cars of special 

construction, will improve 

communication of safety appliance 

requirements to the industry, and will 

facilitate regulatory compliance where 

clarification or guidance is necessary. 

Section 238.231 Brake system 

Paragraph (b) retains the proposed 

provision relating to the design of 

passenger equipment placed in service 

for the first time on or after September 

9, 2002. The final rule slightly amends 

the language of this provision for 

purposes of clarity and consistency. The 

final rule also retains the proposed 

additional inspection criteria for such 

equipment if it is not designed to permit 

visual observation of the brake actuation 

and release from outside the plane of 

the equipment. A full discussion of the 

development of these provisions is 

provided in Section C of the Technical 

Background portion of this document 

and need not be reiterated here. The 

plain language of paragraph (b), as 

issued in the 1999 Passenger Equipment 

Safety Standards final rule, required 

new equipment to be designed to allow 

direct observation of the brake actuation 

and release without fouling the 

equipment. The preamble to that final 

rule discusses alternative design 

approaches using some type of piston 

travel indicator or piston cylinder 

pressure indicator on equipment whose 

design makes it impossible to meet this 

requirement. See 64 FR 25612 (May 12, 

1999). 

Subsequent to the issuance of the 

1999 final rule, FRA recognized that the 

envisioned ‘‘indicators’’ discussed in 

the preamble of the final rule were 

ahead of the technological curve for 

passenger equipment currently being 

delivered and that which may be 

delivered in the future. Thus, FRA 

noted its willingness to the RSAC and 

the Task Force to consider alternatives 

to requiring piston travel indicators on 

such equipment. FRA and the members 

of the Task Force believed that the best 

approach to the issue was to provide 

additional inspection protocols for new 

equipment designed in a manner that 

makes observation of the actuation and 

release of the brakes impossible from 

outside the plane of the equipment in 

lieu of mandating the use of untested 

and potentially unreliable piston travel 

indicators. Because the necessary design 

of some new equipment makes the daily 

inspections of the equipment more 

difficult, does not permit visual 

observation of the brake actuation and 

release from outside the plane of the 

vehicle and because no reliable 

mechanical device is currently available 

to provide a direct indication of such, 

the NPRM proposed additional 

inspection protocols for this type of 

equipment. FRA did not receive any 

comments directly related to the 

proposed inspection protocols or the 

proposed approach to this issue. 

However, FRA is amending the 

proposed language to accurately capture 

the intent of the provision. Thus, this 

final rule language clearly identifies the 

design requirement that is to be met 

when practicable and details equipment 

and inspection requirements for 

equipment not meeting the general 

design requirement. The clarifying 

changes made in this final rule are 

consistent with the intent of the 

provision as originally proposed. 

The inspection regiment referenced in 

paragraph (b) will be applicable to 

equipment placed in service on or after 

September 9, 2002, the design of which 

does not permit actual visual 

observation of the brake actuation and 

release. The requirements related to this 

type of equipment are similar to those 

contained in a FRA Safety Board letter 

dated October 19, 2004, granting that 

portion of the Massachusetts Bay 

Transportation Authority’s (MBTA) 

waiver petition seeking relief from the 

requirements of § 238.231(b) for 28 

Kawasaki bi-level coaches. See Docket 

Number FRA–2004–18063. The final 

rule requires such equipment to be 

equipped with either piston travel 

indicators or brake indicators as defined 

in § 238.5. The equipment will also be 

required to receive a periodic brake 

inspection by a QMP at intervals not to 

exceed five in-service days and the 

inspection will have to be performed 

while the equipment is over an 

inspection pit or on a raised track. In 

addition, the railroad performing the 

inspection will be required to maintain 

a record of the inspection consistent 

with the existing record requirements 

related to Class I brake tests. The 

specific inspection criteria are discussed 

in more detail in the section-by-section 

analysis related to § 238.313. FRA 

believes that these additional inspection 

requirements will ensure the safety and 

proper operation of the brake system on 

equipment which does not permit actual 

visual observation of the brake actuation 

and release without fouling the vehicle. 

FRA received one suggestion from 

APTA regarding the identification of 

cars that will be covered by this 

paragraph and the additional inspection 

requirements contained in § 238.313(j). 

APTA wanted FRA to make clear that 

the railroad and car manufacturer would 

make an initial determination regarding 

the applicability of the requirements 

contained in this paragraph and that 

FRA would oversee these 

determinations for accuracy. FRA agrees 

with this position as the railroad and car 

manufacturer are in the best position to 

make an initial determination. FRA will 

exercise its oversight when conducting 

sample car inspections as well as its 

regular inspection activity. FRA notes 

that the additional inspection 

requirements would be applicable to 

new cars constructed similar to the lowslung bi-level passenger coaches that 

were the subject of MBTA’s waiver 

request discussed above. 

Paragraph (h) of the final rule retains 

the proposed provisions related to the 

inspection of locomotive hand or 

parking brakes as well as proposed 

provisions addressing the securement of 

unattended equipment. Other than 

APTA’s brief statement in support of the 

provisions, FRA did not receive any 

comments on these proposed provisions 

and is retaining them in this final rule 

without change. The final rule modifies 

existing paragraph (h)(3) to require that 

the hand or parking brake on other than 

MU locomotives be inspected no less 

frequently that every 368 days and that 

a record (either stencil, blue card, or 

electronic) be maintained and provided 

to FRA upon request. Similar provisions 

were previously contained in § 232.10, 

prior to part 232’s revision in January of 

2001. However, FRA inadvertently 

failed to include hand brake inspection 

provisions in its original issuance of the 

Passenger Equipment Safety Standards. 

The inspection and testing intervals as 

well as the stenciling and record 

keeping requirements contained in 

paragraph (b)(3) are consistent with the 

current industry practices and will 

impose no additional burden on the 

industry. 

The final rule also retains the 

proposed addition of a new paragraph 

(h)(4) that contains specific 

requirements related to the securement 

of unattended equipment. A detailed 

discussion regarding the development of 

these provisions is contained in Section 

E of the Technical Background portion 

of the preamble. FRA believes that the 

rational for addressing these issues on 

freight operations is equally applicable 

to passenger operations. The preamble 


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to the final rule related to 49 CFR part 

232 contains an in-depth discussion of 

the need to address these issues. See 66 

FR 4156–58 (January 17, 2001). The 

approach contained in this final rule is 

also consistent with the guidance 

contained in FRA Safety Advisory 97–

1. See 62 FR 49046 (September 15, 

1997). The requirements contained in 

this paragraph are consistent with and 

based directly on current passenger 

industry practice. Thus, in FRA’s view, 

the provisions will have no economic or 

operational impact on passenger 

operations but will ensure that these 

best practices currently adopted by the 

industry are followed and complied 

with by making them part of the Federal 

regulations. 

Paragraph (h)(4) requires that 

unattended equipment be secured by 

applying a sufficient number of hand or 

parking brakes to hold the equipment 

and will require railroads to develop 

and implement a process or procedure 

to verify that the applied hand or 

parking brakes will hold the equipment. 

The final rule also prohibits a practice 

known as ‘‘bottling the air’’ in a 

standing cut of cars. A full discussion of 

the hazards related to this practice is 

contained in the preamble of the final 

rule related to freight power brakes. See 

66 FR 4156–57. Virtually all railroads 

prohibit this practice in their operating 

rules, thus FRA does not believe any 

burden is being imposed on the 

railroads by including it in this rule. 

Paragraph (h)(4) also establishes the 

minimum number of hand or parking 

brakes that must be applied on an 

unattended locomotive consist or train. 

Due to the relatively short length and 

low tonnage associated with passenger 

trains, FRA does not believe that the 

more stringent provisions contained in 

§ 232.103(n)(3) are necessary in a 

passenger train context. Thus, this 

paragraph requires that at least one 

hand or parking brake be fully applied 

on an unattended passenger locomotive 

consist or passenger train; however, the 

number of applied hand or parking 

brakes will vary depending on the 

process or procedures developed and 

implemented by each covered railroad. 

Members of the Task Force sought 

clarification as to the meaning of the 

term ‘‘fully applied’’ as it relates to 

certain passenger equipment equipped 

with parking brakes. With the 

introduction of the spring applied 

parking brake, the parking brake can be 

‘‘conditioned to apply’’ but may not be 

fully applied. Many spring applied 

parking brake arrangements usually 

incorporate an anti-compounding 

feature so the service brake application 

and parking brake application are not 

simultaneously applied. This 

arrangement is utilized to limit the 

thermal input that may occur if the 

forces from the service brake application 

and parking brake application are 

applied simultaneously. When the train 

is left unattended, the operator would 

‘‘condition’’ the parking brake for 

application through a cab switch push 

button or by simply deactivating the cab 

through normal shutdown procedures. 

The brake equipment is either placed in 

an emergency brake condition or the 

brake pipe is vented to zero pressure at 

a service reduction rate. This brake 

equipment operation would result in 

brake cylinder pressure being applied to 

the brake units. The brake cylinder 

pressure provides sufficient force to 

create an equivalent force to that of the 

parking brake. If the equipment is not 

left on a source of compressed air, the 

brake cylinder pressure may be slowly 

depleted. When the brake cylinder 

pressure is gradually reduced, the 

parking brake gradually applies so that 

below a prescribed brake cylinder 

pressure, the parking brake is fully 

applied. In light of the preceding 

discussion, FRA intends to make clear 

that a spring applied parking brake will 

be considered ‘‘fully applied’’ under 

paragraph (h)(4) if all steps have been 

take to permit its full application (i.e., 

‘‘conditioned to apply’’). 

In addition, paragraph (h)(4) requires 

railroads to develop and implement 

procedures for securing locomotives not 

equipped with a hand or parking brake 

and develop, implement, and adopt 

instructions for securing any locomotive 

left unattended. As noted previously, 

FRA is not aware of any railroad which 

does not already have these procedures 

or processes in place. Thus, FRA 

believes that these requirements will not 

impose any burden on passenger 

operations covered by 49 CFR part 238. 

Section 238.303 Exterior calendar day 

mechanical inspection of passenger 

equipment 

Paragraph (e)(17) contains provisions 

requiring that air compressors, on 

passenger equipment so equipped, be in 

effective and operative condition. The 

provisions also provide flexibility to 

permit certain equipment found with 

ineffective or inoperative air 

compressors at its exterior calendar day 

mechanical inspection to continue in 

service until its next such inspection if 

various conditions are met by the 

railroad. Other than APTA’s brief 

statement supporting these provisions, 

FRA did not receive any comments in 

response to the NPRM proposing the 

provisions. Thus, this final rule retains 

the proposed provisions without 

change. A full discussion regarding the 

development of these proposed 

provisions is contained in Section A of 

the Technical Background portion of the 

preamble. 

MU passenger locomotives are 

generally operated as married pairs but 

in some cases they can be operated as 

single or triple units. In the case of the 

married pairs, each pair of MU 

locomotives share a single air 

compressor. When operated in triple 

units, the three MU locomotives 

generally share two air compressors and 

single-unit MU locomotives are 

equipped with their own air 

compressor. The amount of air required 

to be produced by the air compressors 

is based on the size of the brake pipe 

and the brake cylinder reservoirs, the 

size of which are based on the 

calculated number of brake application 

and release cycles the train will 

encounter. In addition, the compressed 

air produced by the air compressors is 

shared within the consist by utilizing a 

main reservoir equalizing pipe or, in 

single pipe systems, through the brake 

pipe which is then diverted to the brake 

cylinder supply reservoir and other air 

operated devices by use of a governor 

arrangement. Therefore, a passenger 

train set consisting of numerous MU 

locomotives will have multiple air 

compressors providing the train consist 

with the necessary compressed air. FRA 

agrees with the determinations of the 

Task Force and the full RSAC that a loss 

of compressed air from a limited 

number of air compressors in such a 

train will not adversely effect the 

operation of the train’s brakes or other 

air-operated components on the train. 

Paragraph (e)(17) permits MU train 

sets with a limited number of 

inoperative or ineffective air 

compressors to continue to be used in 

passenger service until the next exterior 

calendar day mechanical inspection 

when found at such an inspection. This 

paragraph requires a railroad to 

determine through data, analysis, or 

actual testing the maximum number of 

inoperative or ineffective air 

compressors that could be in an MU 

train set without compromising the 

integrity or safety of the train set based 

on the size and type of train and the 

train’s operating profile. The railroad is 

required to submit the maximum 

number of air compressors permitted to 

be inoperative or ineffective on its 

various trains to FRA before it can begin 

operation under the provision and will 

be required to retain and make available 

to FRA any data or analysis relied on to 

make those determinations. 

Paragraph (e)(17) also requires a 

qualified maintenance person (QMP) to 


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verify the safety and integrity of any 

train operating with inoperative or 

ineffective air compressors before the 

equipment continues in passenger 

service. In addition, the final rule 

requires notification to the train crew of 

any inoperative or ineffective air 

compressors and requires that a record 

be maintained of the defective 

condition. FRA notes that this 

paragraph provides FRA with the 

authority to revoke a railroad’s ability to 

utilize the flexibility contained in this 

paragraph if the railroad fails to comply 

with the maximum limits established 

for continued operation of inoperative 

air compressors or the maximum limits 

are not supported by credible and 

accurate data. FRA believes that the 

provisions contained in this paragraph 

will ensure the safety of passenger 

operations while providing the railroads 

additional flexibility in handling 

defective or inoperative equipment. 

Section 238.307 Periodic mechanical 

inspection of passenger cars and 

unpowered vehicles used in passenger 

trains 

Paragraphs (c)(13) and (d) retain the 

proposed requirements related to the 

periodic inspection of hand or parking 

brakes on passenger cars and other 

unpowered vehicles. FRA did not 

receive any comments related to these 

provisions in response to the NPRM and 

is retaining them in this final rule 

without change. As noted previously, 

FRA inadvertently failed to include any 

hand brake inspection provisions in its 

original issuance of the Passenger 

Equipment Safety Standards. Thus, FRA 

raised the issue with the RSAC and the 

Task Force and they recommended 

inclusion of various provisions 

regarding the inspection of hand and 

parking brakes on passenger equipment. 

Paragraph (c)(13) requires that the 

hand or parking brake on passenger cars 

and unpowered vehicles used in 

passenger trains be applied and released 

at each periodic mechanical inspection. 

No record of this inspection would need 

to be prepared or retained. Based on 

information provided at the Task Force 

and Working Group meetings, all 

passenger operations currently conduct 

this type of inspection of the hand and 

parking brakes at each periodic 

mechanical inspection. Paragraph (d) 

requires a complete inspection of the 

hand or parking brake as well as their 

parts and connections on passenger cars 

and unpowered vehicles no less 

frequently than every 368 days. 

Paragraph (d) also requires that a record 

(either stencil, blue card, or electronic) 

be maintained and provided to FRA 

upon request. The inspection and 

testing intervals as well as the stenciling 

and recordkeeping requirements 

contained in this paragraph are 

consistent with the current practices in 

the industry and will impose no 

additional burden on the industry. 

Section 238.313 Class I brake tests 

Paragraph (g)(3) contains a 

conforming change to make this 

paragraph consistent with the definition 

changes being made in § 238.5 relating 

to the terms ‘‘actuator’’ and ‘‘piston 

travel indicator.’’ As noted previously, 

the final rule modifies the definition of 

‘‘actuator’’ to describe the brake system 

component to which the term has 

traditionally been attached and which is 

what the term refers to in the definition 

of ‘‘piston travel.’’ In addition, the final 

rule adds a new term to part 238 to 

describe the device originally defined as 

an ‘‘actuator.’’ Therefore, the final rule 

adds the term ‘‘piston travel indicator’’

to describe a device directly activated 

by the movement of the brake cylinder 

piston, the disc actuator, or the tread 

brake unit cylinder piston that provides 

an indication of piston travel. 

Consequently, a conforming change is 

being made in paragraph (g)(3) by 

replacing the term ‘‘actuator’’ with the 

term ‘‘piston travel indicator’’ in order 

to add clarity to the regulatory 

provision. 

Paragraph (j) retains the proposed 

requirements related to the periodic 

inspection of passenger equipment 

placed in service for the first time on or 

after September 9, 2002, the design of 

which does not permit actual visual 

observation of the brake actuation and 

release as required in § 238.231(b). FRA 

did not receive any comments objecting 

to these provisions and is retaining 

them in this final rule without change. 

A detailed discussion related to the 

development and need for these 

provisions is contained in Section C of 

the Technical Background portion of the 

preamble and in the section-by-section 

analysis related to paragraph (b) of 

§ 238.231. As previously noted, the 

periodic inspection requirements 

contained in this paragraph are similar 

to those contained in a FRA Safety 

Board letter dated October 19, 2004, 

granting that portion of the 

Massachusetts Bay Transportation 

Authority’s (MBTA) waiver petition 

seeking relief from the requirements of 

§ 238.231(b) for 28 Kawasaki bi-level 

coaches. See DOT Docket Number FRA–

2004–18063. 

Paragraph (j) makes clear that the 

periodic inspection provisions for the 

identified types of equipment are in 

addition to all of the other inspection 

provisions contained in paragraphs (a) 

through (i) of this section and must be 

performed by a QMP. The provisions 

require equipment not meeting the 

design requirements contained in 

§ 238.231(b)(1) to receive a periodic 

brake inspection at intervals not to 

exceed five in-service days and the 

inspection must be performed while the 

equipment is over an inspection pit or 

on a raised track. Any day or portion of 

a day that a piece of passenger 

equipment is actually used in passenger 

service constitute an ‘‘in-service day.’’

FRA continues to believe that five inservice days is appropriate and will 

permit the required inspection to be 

performed during weekends or on other 

days when the equipment is not being 

used. Thus, the operational and 

economic impact of this additional 

inspection requirement is significantly 

minimized. The periodic inspection 

must include all of the items and 

components identified in paragraphs 

(g)(1) through (g)(15) of this section. In 

addition, the railroad performing the 

periodic inspection will be required to 

maintain a record of the inspection 

consistent with the existing record 

requirements related to Class I brake 

tests. FRA believes that these additional 

inspection requirements will ensure the 

safety and proper operation of the brake 

system on equipment which does not 

permit actual visual observation of the 

brake actuation and release without 

fouling the vehicle. 

Section 238.321 Out-of-service credit 

As discussed previously, FRA did not 

seek consensus in the RSAC process for 

the proposed provision related to out-ofservice credit contained in the NPRM. 

The issue was addressed on FRA’s own 

motion in this proceeding in response to 

APTA’s petition for rulemaking dated 

March 28, 2005. Other than APTA’s 

support of the provision, FRA did not 

receive any comments related to this 

provision in response to the NPRM. 

Thus, this final rule retains the 

provision without change. 

The provision contained in this 

section is modeled directly on the ‘‘outof-use credit’’ provision contained in 

the Locomotive Safety Standards at 49 

CFR 229.33. The locomotive out-of-use 

credit has been effectively and safely 

utilized by the railroad industry for 

decades. As passenger equipment is 

generally captive service equipment, is 

generally less mechanically complex 

than locomotives, and because the 

provisions for which the credit will be 

utilized are time-based, FRA believes it 

is appropriate to permit passenger and 

commuter operations to receive credit 

for extended periods of time when 

equipment is not being used. The 


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provision will permit railroads to 

extend the dates for conducting periodic 

mechanical inspections and periodic 

brake maintenance required by 

§§ 238.307 and 238.309 for equipment 

that is out of service for periods of at 

least 30 days. The final rule will require 

railroads to maintain records of any outof-service days on the records related to 

the periodic attention. FRA does not see 

a safety concern with permitting this 

flexibility. In fact, the regulation already 

provides assurances that the brake 

systems on all passenger cars and 

unpowered vehicles are in proper 

condition after being out of service for 

30 days or more by requiring that a 

single car test pursuant to § 238.311 is 

performed on the vehicle before being 

placed back in service. See 49 CFR 

238.311(e)(1). 

VI. Regulatory Impact and Notices 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule has been evaluated in 

accordance with existing policies and 

procedures, and determined to be nonsignificant under both Executive Order 

12866 and DOT policies and procedures 

(44 FR 11034; Feb. 26, 1979). FRA has 

prepared and placed in the docket two 

regulatory evaluations addressing the 

economic impact of this rule. Document 

inspection and copying facilities are 

available at the Department of 

Transportation 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–

2005–23080. 

FRA conducted two separate 

regulatory evaluations addressing the 

economic impact of this final rule. One 

regulatory evaluation addresses the 

economic impact of the provisions 

related to the safety appliance 

arrangements on passenger equipment. 

The other analysis addresses the 

economic impact of all of the other 

provisions contained in this final rule. 

As FRA developed the requirements 

related to safety appliance arrangements 

on passenger equipment unilaterally, 

FRA believes it is appropriate to provide 

a separate regulatory analysis regarding 

the economic impact of those 

provisions. As the analyses indicate, 

this final rule provides an overall 

economic savings to the industry due to 

the flexibility provided for in many of 

the provisions and because many of the 

requirements incorporate existing 

industry practice or provide an 

alternative means of compliance to what 

is presently mandated. 

The following table presents the 

estimated twenty-year monetary impacts 

associated with the provisions 

contained in this final rule. The table 

contains the estimated costs and 

benefits associated with this final rule 

and provides the total 20-year value as 

well as the 20-year net present value 

(NPV) for each indicated item. The 

dollar amounts presented in this table 

have been rounded to the nearest 

thousand. For exact estimates, 

interested parties should consult the 

Regulatory Impact Analysis (RIA) that 

has been made part of the docket in this 

proceeding. 

Description 20-year total 

($) 

20-year NPV 

($) 

Costs: 

Periodic Brake Inspection of Low-Slung Equipment ........................................................................................ 4,350,000 1,957,000 

Periodic Inspection of Welded Safety Appliances ........................................................................................... 1,888,000 1,178,000 

Air Compressor Records .................................................................................................................................. 250,000 132,000 

Total Costs ................................................................................................................................................ 5,488,000 3,268,000 

Benefits: 

Pneumatic Testing of Main Reservoirs ............................................................................................................ 5,940,000 3,147,000 

Avoided Cost of Piston Travel Indicators ......................................................................................................... 1,790,000 890,000 

Air Compressor—Equipment Utilization ........................................................................................................... 17,000,000 9,005,000 

Avoided Cost of Safety Appliance Retrofit ....................................................................................................... 9,000,000 8,370,000 

Out-of-Service Credit—Equipment Utilization .................................................................................................. 1,020,000 542,000 

Total Benefits ............................................................................................................................................ 35,510,000 21,953,000 

The economic benefits to the industry 

related to this final rule outweigh the 

economic costs by a ratio in excess of 

6 to 1. FRA did not quantify the safety 

benefits for most of the provisions 

contained in this final rule as many of 

the provisions are based on improved 

manufacturing techniques, equipment 

reliability, or are the result of additional 

regulatory flexibility. However, with 

regard to the final rule provision related 

to the attachment of safety appliances 

on passenger equipment, FRA did 

consider the potential safety benefits 

related to the provisions. In addition to 

the potential avoided cost of retrofitting 

equipment containing welded safety 

appliances or welded safety appliance 

brackets or supports estimated at $9 

million, FRA also believes there are 

potential safety benefits to be derived 

from the reduced risk of weld failure 

resulting from the inspection protocols 

for welded safety appliance 

attachments. The RIA notes two 

accidents that were the result of failed 

welded safety appliances and although 

FRA’s database did not contain these 

accidents, there is no reason to believe 

that safety appliances in passenger 

operations are immune from failure. The 

lack of an accident record may be due 

to low risks involved in passenger 

operations, but also weld failure 

accidents are not generally reported in 

FRA systems that are geared more for 

accidents that stop rail operations. FRA 

believes that reducing the risk of weld 

failures will benefit passenger 

operations. FRA notes that if just 2 or 3 

critical accidents are avoided over the 

20-year period covered by the RIA, the 

final rule would be cost-justified by the 

safety benefits alone. 

FRA further notes that it did not 

estimate a cost for the requirements 

related to the securement of unattended 

equipment and the inspection of hand 

or parking brakes. The final rule 

provisions related to these issues are 

merely an incorporation of current 

industry practice. FRA is not aware of 

any passenger or commuter railroad that 

does not already conduct the final rule 


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inspections, maintain the records, or 

have the procedures in place. 

Regulatory Flexibility Act and Executive 

Order 13272 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) and Executive Order 

13272 require a review of proposed and 

final rules to assess their impact on 

small entities. FRA has prepared and 

placed in the docket an Analysis of 

Impact on Small Entities (AISE) that 

assesses the small entity impact of this 

final rule. Document inspection and 

copying facilities are available at the 

Department of Transportation 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. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 as a small business concern that is 

independently owned and operated, and 

is not dominant in its field of operation. 

The U.S. Small Business Administration 

(SBA) has authority to regulate issues 

related to small businesses, and 

stipulates in its size standards that a 

‘‘small entity’’ in the railroad industry is 

a railroad business ‘‘line-haul 

operation’’ that has fewer than 1,500 

employees and a ‘‘switching and 

terminal’’ establishment with fewer than 

500 employees. SBA’s ‘‘size standards’’

may be altered by Federal agencies, in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to that authority FRA has 

published a final statement of agency 

policy that formally establishes ‘‘small 

entities’’ as being railroads that meet the 

line-haulage revenue requirements of a 

Class III railroad. See 68 FR 24891 (May 

9, 2003). Currently, the revenue 

requirements are $20 million or less in 

annual operating revenue. The $20 

million limit is based on the Surface 

Transportation Board’s threshold of a 

Class III railroad carrier, which is 

adjusted by applying the railroad 

revenue deflator adjustment (49 CFR 

part 1201). The same dollar limit on 

revenues is established to determine 

whether a railroad, shipper, or 

contractor is a small entity. FRA uses 

this alternative definition of ‘‘small 

entity’’ for this rulemaking. 

The AISE developed in connection 

with this final rule concludes that this 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. Thus, FRA 

certifies that this final rule is not 

expected to have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act or Executive Order 13272. 

Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). The sections 

that contain the new information 

collection requirements and the 

estimated time to fulfill each 

requirement are as follows: 

CFR section Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

Total annual 

burden cost 

($) 

216.14—Special notice for repairs—

passenger equipment.

22 railroads ........... 9 forms .................. 5 minutes .............. 1 hour .................... $40 

229.47—Emergency Brake Value—

Marking Brake Pipe Valve as such.

22 railroads ........... 30 markings .......... 1 minute ................ 1 hour .................... 34 

—DMU, MU, Control Cab Locomotives—Marking Emergency 

Brake Valve as such.

22 railroads ........... 5 markings ............ 1 minute ................ .08 hour ................. 3 

238.7—Waivers ...................................... 22 railroads ........... 5 waivers ............... 2 hours .................. 10 hours ................ 400 

238.15—Movement of passenger equipment with power brake defects, and.22 railroads ........... 1,000 cards/tags ... 3 minutes .............. 50 hours ................ 2,500 

—Movement of passenger equipment that becomes defective en 

route.

22 railroads ........... 288 cards/tags ...... 3 minutes .............. 14 hours ................ 700 

—Conditional requirement—Notifications.22 railroads ........... 144 notices ........... 3 minutes .............. 7 hours .................. 350 

238.17—Limitations on movement of 

passenger equipment containing defects found at calendar day inspection and on movement of passenger 

equipment that develops defects en 

route.

22 railroads ........... 200 cards/tags ...... 3 minutes .............. 10 hours ................ 340 

—Special requisites for movement 

of passenger equipment with 

safety appliance defects.

22 railroads ........... 76 tags .................. 3 minutes .............. 4 hours .................. 136 

—Crew member notifications ......... 22 railroads ........... 38 notifications ...... 30 seconds ........... .32 hour ................. 11

238.21—Petitions for special approval 

of alternative standards.

22 railroads ........... 1 petition ............... 16 hours ................ 16 hours ................ 640 

—Petitions for special approval of 

alternative compliance.

22 railroads ........... 1 petition ............... 120 hours .............. 120 hours .............. 4,800 

—Petitions for special approval of 

pre-revenue service acceptance 

testing plan.

22 railroads ........... 2 petitions ............. 40 hours ................ 80 hours ................ 3,200 

—Comments on petitions ............... Public/RR Industry 4 comments .......... 1 hour .................... 4 hours .................. 280 

238.103—Fire Safety 

—Procuring new passenger equipment.5 equipment manuf 4 equip. designs ... 300 hours .............. 1,200 hours ........... 120,800 

—Subsequent orders ...................... 5 equipment manuf 4 equip. designs ... 45 hours ................ 180 hours .............. 21,600 


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CFR section Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

Total annual 

burden cost 

($) 

—Existing equipment—fire safety 

analysis.

5 manuf./22 railroads.5 analyses ............. 30 hours ................ 150 hours .............. 18,000 

—Transferring passenger cars/locomotives.22 railroads/AAR ... 1 analysis .............. 20 hours ................ 20 hours ................ 2,400 

238.107—Inspection/testing/maintenance plans—Review by railroads.22 railroads ........... 7 reviews ............... 60 hours ................ 420 hours .............. 16,800 

238.109—Employee/contractor training 22 railroads ........... 2 notifications ........ 15 minutes ............ 1 hour .................... 40 

—Training employees: Mechanical 

Insp.

7,500 employees .. 2,500 indiv/100 

trainers.

1.33 hours ............. 3,458 hours ........... 117,572 

—Recordkeeping ............................ 22 railroads ........... 2,500 records ........ 3 minutes .............. 125 hours .............. 5,000 

238.111—Pre-revenue service acceptance testing plan: Passenger equipment that has previously been used 

in service in the U.S.

9 equipment manuf 2 plans .................. 16 hours ................ 32 hours ................ 1,760 

Passenger equipment that has not been 

previously used in service in the U.S.

9 equipment manuf 2 plans .................. 192 hours .............. 384 hours .............. 38,400 

Subsequent Order .................................. 9 equipment manuf 2 plans .................. 60 hours ................ 120 hours .............. 9,600 

238.229—Safety Appliances (New 

Rqmnts).

22 railroads ........... 22 lists ................... 1 hour .................... 22 hours ................ 880 

—Welded safety appliances considered defective: lists 

—Lists Identifying Equip. w/Welded 

Saf. App.

22 railroads ........... 22 lists ................... 60 minutes ............ 22 hours ................ 880 

—Defective Welded Saf. Appliance—Tags.22 railroads ........... 4 tags .................... 3 minutes .............. .20 hr ..................... 7 

—Notification to Crewmembers 

about Non-Compliant Equipment.

22 railroads ........... 2 notifications ........ 1 minute ................ .0333 hr ................. 1 

—Inspection plans .......................... 22 railroads ........... 22 plans ................ 16 hours ................ 352 hours .............. 19,360 

—Inspection Personnel—Training .. 22 railroads ........... 44 employees ....... 4 hours .................. 176 hours .............. 7,040 

238.230—Safety Appliances—New 

Equipment (New Requirement) 

—Inspection Record of Welded 

Equipment by Qualified Employee.

22 railroads ........... 100 records ........... 6 minutes .............. 10 hours ................ 340 

—Welded safety appliances: Documentation for equipment 

impractically designed to mechanically fasten safety appliances support.

22 railroads ........... 15 documents ....... 4 hours .................. 60 hours ................ 2,400 

238.231—Brake System (New Requirement) 

—Inspection and repair of hand/ 

parking brake: Records.

22 railroads ........... 2,500 forms ........... 21 minutes ............ 875 hours .............. 29,750 

—Procedures Verifying Hold of 

Hand/Parking Brakes.

22 railroads ........... 22 procedures ....... 2 hours .................. 44 hours ................ 3,080 

238.237—Automated monitoring 

—Documentation for alerter/ 

deadman control timing.

22 railroads ........... 3 documents ......... 2 hours .................. 6 hours .................. 240 

—Defective alerter/deadman control: Tagging.22 railroads ........... 25 tags .................. 3 minutes .............. 1 hour .................... 50 

238.303—Exterior calendar day mechanical inspection of passenger 

equipment: Notice of previous inspection.

22 railroads ........... 25 notices ............. 1 minute ................ 1 hour .................... 50 

—Dynamic brakes not in operating 

mode: Tag.

22 railroads ........... 50 tags/cards ........ 3 minutes .............. 3 hours .................. 150 

—Conventional locomotives 

equipped with inoperative dynamic brakes: Tagging (New Requirements).

22 railroads ........... 50 tags/cards ........ 3 minutes .............. 3 hours .................. 150 

—MU passenger equipment found 

with inoperative/ineffective air 

compressors at exterior calendar 

day inspection: Documents.

22 railroads ........... 4 documents ......... 2 hours .................. 8 hours .................. 560 

—Written notice to train crew about 

inoperative/ineffective air compressors.

22 railroads ........... 100 messages or 

notices.

3 minutes .............. 5 hours .................. 170 

—Records of inoperative air compressors.22 railroads ........... 100 records ........... 2 minutes .............. 3 hours .................. 102 

—Record of exterior calendar day 

mechanical inspection (Old Requirement).

22 railroads ........... 2,376,920 records 10 minutes + 1 

minute.

435,769 hours ....... 15,053,836 


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Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations 61855 

CFR section Respondent 

universe 

Total annual 

responses 

Average time per 

response 

Total annual 

burden hours 

Total annual 

burden cost 

($) 

238.305—Interior calendar day mechanical inspection of passenger cars 

—Tagging of defective end/side 

doors.

22 railroads ........... 540 tags ................ 1 minute ................ 9 hours .................. 306 

—Records of interior calendar day 

inspection.

22 railroads ........... 1,968,980 records 5 minutes + 1 

minute.

196,898 hours ....... 6,891,428 

238.307—Periodic mechanical inspection of passenger cars and 

unpowered vehicles 

—Alternative inspection intervals: 

Notice.

22 railroads ........... 2 notifications ........ 5 hours .................. 10 hours ................ 400 

—Notice of seats/seat attachments 

broken or loose.

22 railroads ........... 200 notices ........... 2 minutes .............. 7 hours .................. 280 

—Records of each periodic mechanical inspection.22 railroads ........... 19,284 records ...... 200 hrs. + 2 minutes.3,857,443 hours .... 131,156,920 

—Detailed documentation of reliability assessments as basis for 

alternative inspection interval.

22 railroads ........... 3 documents ......... 100 hours .............. 300 hours .............. 12,000 

238.311—Single car test 

—Tagging to indicate need for single car test.22 railroads ........... 25 tags .................. 3 minutes .............. 1 hour .................... 34 

238.313—Class I Brake Test 

—Record for additional inspection 

for passenger equipment that 

does not comply with 

§ 238.231(b)(1) (New Requirement).

22 railroads ........... 15,600 records ...... 30 minutes ............ 7,800 hours ........... 265,200 

238.315—Class IA brake test 

—Notice to train crew that test has 

been performed.

22 railroads ........... 18,250 verbal notices.5 seconds ............. 25 hours ................ 850 

—Communicating signal: tested 

and two-way radio system.

22 railroads ........... 365,000 tests ........ 15 seconds ........... 1,521 hours ........... 60,840 

238.317—Class II brake test 

—Communicating signal: tested 

and two-way radio system.

22 railroads ........... 365,000 tests ........ 15 seconds ........... 1,521 hours ........... 60,840 

238.321—Out-of-service credit (New 

Requirement) 

—Passenger Car: Out-of-use notation.22 railroads ........... 1,250 notations ..... 2 minutes .............. 42 hours ................ 1,428 

238.445—Automated Monitoring 

—Performance monitoring: alerters/ 

alarms.

1 railroad ............... 10,000 alerts ......... 10 seconds ........... 28 hours ................ 0 

—Monitoring system: Self-test feature: Notifications.1 railroad ............... 21,900 notifications 20 seconds ........... 122 hours .............. 0 

238.503—Inspection, testing, and maintenance requirements 

238.505—Program approval procedures 

—Submission of program ............... 1 railroad ............... 1 program ............. 1,200 hours ........... 1,200 hours ........... 84,000 

—Comments on programs ............. Rail Industry .......... 3 comments .......... 3 hours .................. 9 hours .................. 360 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. For 

information or a copy of the paperwork 

package submitted to OMB, contact 

Robert Brogan at 202–493–6292 or via email at the following address: 

robert.brogan@dot.gov. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to the Office of 

Management and Budget, 725 17th St., 

NW., Washington, DC 20590; Attention: 

FRA OMB Desk Officer. OMB is 

required to make a decision concerning 

the collection of information 

requirements contained in this final rule 

between 30 and 60 days after 

publication of this 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. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

Federalism Implications 

Executive Order 13132, ‘‘Federalism’’

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 


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distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with Federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the proposed regulation. 

Where a regulation has Federalism 

implications and preempts State law, 

the agency seeks to consult with State 

and local officials in the process of 

developing the regulation. 

This final rule has preemptive effect. 

Subject to a limited exception for 

essentially local safety hazards, its 

requirements will establish a uniform 

Federal safety standard that must be 

met, and state requirements covering the 

same subject are displaced, whether 

those standards are in the form of state 

statutes, regulations, local ordinances, 

or other forms of state law, including 

state common law. Section 20106 of 

Title 49 of the United States Code 

provides that all regulations prescribed 

by the Secretary related 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 is consistent with past 

practice at FRA, and within the 

Department of Transportation. 

FRA has analyzed this final rule in 

accordance with the principles and 

criteria contained in Executive Order 

13132. This final rule will not have a 

substantial effect on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among various levels of 

government. This final rule will not 

have federalism implications that 

impose any direct compliance costs on 

State and local governments. 

FRA notes that the RSAC, which 

endorsed and recommended the 

majority of this rule, has as permanent 

members two organizations representing 

State and local interests: AASHTO and 

the Association of State Rail Safety 

Managers (ASRSM). Both of these State 

organizations concurred with the RSAC 

recommendation endorsing this rule. 

The RSAC regularly provides 

recommendations to the FRA 

Administrator for solutions to regulatory 

issues that reflect significant input from 

its State members. To date, FRA has 

received no indication of concerns 

about the Federalism implications of 

this rulemaking from these 

representatives or of any other 

representatives of State government. 

Consequently, FRA concludes that this 

final rule has no federalism 

implications, other than the preemption 

of state laws covering the subject matter 

of this final rule, which occurs by 

operation of law under 49 U.S.C. 20106 

whenever FRA issues a rule or order. 

Elements of the final rule dealing with 

safety appliances affect an area of safety 

that has been pervasively regulated at 

the Federal level for over a century. 

Accordingly, the final rule amendments 

in that area will involve no impacts on 

Federal relationships. 

Environmental Impact 

FRA has evaluated this final rule 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 final rule not a 

major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

See 64 FR 28547, May 26, 1999. Section 

4(c)(20) reads as follows: 

(c) Actions categorically excluded. Certain 

classes of FRA actions have been determined 

to be categorically excluded from the 

requirements of these Procedures as they do 

not individually or cumulatively have a 

significant effect on the human environment. 

* * * The following classes of FRA actions 

are categorically excluded: * * * 

(20) Promulgation of railroad safety rules 

and policy statements that do not result in 

significantly increased emissions or air or 

water pollutants or noise or increased traffic 

congestion in any mode of transportation. 

In accordance with section 4(c) and 

(e) of FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this final rule 

is not a major Federal action 

significantly affecting the quality of the 

human environment. 

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 

$120,700,000 or more (adjusted 

annually for inflation) in any 1 year, and 

before promulgating any final rule for 

which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’

detailing the effect on State, local, and 

tribal governments and the private 

sector. The final rule will not result in 

the expenditure, in the aggregate, of 

$120,700,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

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 final rule in accordance 

with Executive Order 13211. FRA has 

determined that this final rule is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this regulatory action is 

not a ‘‘significant energy action’’ within 

the meaning of Executive Order 13211. 

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 


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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 229 

Locomotives, Main reservoirs, 

Penalties, Railroads, Railroad safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 238 

Incorporation by reference, Passenger 

equipment, Penalties, Railroad safety, 

Reporting and recordkeeping 

requirements, Safety appliances. 

Adoption of the Amendments 

■ For the reasons discussed in the 

preamble, FRA is amending parts 229 

and 238 of chapter II, subtitle B of Title 

49, Code of Federal Regulations, as 

follows: 

PART 229—[AMENDED] 

■ 1. The authority citation for part 229 

continues to read as follows: 

Authority: 49 U.S.C. 20102–03, 20107, 

20133, 20137–38, 20143, 20701–03, 21301–

02, 21304; 28 U.S.C. 2401, note; and 49 CFR 

1.49(c), (m). 

■ 2. Section 229.5 is amended by 

revising the definition of ‘‘MU 

locomotive’’ to read as follows: 

§ 229.5 Definitions. 

* * * * * 

MU locomotive means a multiple unit 

operated electric locomotive—

(1) With one or more propelling 

motors designed to carry freight or 

passenger traffic or both; or 

(2) Without propelling motors but 

with one or more control stands and a 

means of picking-up primary power 

such as a pantograph or third rail. 

* * * * * 

■ 3. Section 229.31 is amended by 

revising paragraphs (a) and (c) to read as 

follows: 

§ 229.31 Main reservoir tests. 

(a) Before it is placed in service, each 

main reservoir other than an aluminum 

reservoir shall be subjected to a 

pneumatic or hydrostatic pressure of at 

least 25 percent more than the 

maximum working pressure fixed by the 

chief mechanical officer. The test date, 

place, and pressure shall be recorded on 

Form FRA F 6180–49A, block eighteen. 

Except as provided in paragraph (c) of 

this section, at intervals that do not 

exceed 736 calendar days, each main 

reservoir other than an aluminum 

reservoir shall be subjected to a 

hydrostatic pressure of at least 25 

percent more than the maximum 

working pressure fixed by the chief 

mechanical officer. The test date, place, 

and pressure shall be recorded on Form 

FRA F 6180–49A, and the person 

performing the test and that person’s 

supervisor shall sign the form. 

(b) * * * 

(c) Each welded main reservoir 

originally constructed to withstand at 

least five times the maximum working 

pressure fixed by the chief mechanical 

officer may be drilled over its entire 

surface with telltale holes that are threesixteenths of an inch in diameter. The 

holes shall be spaced not more than 12 

inches apart, measured both 

longitudinally and circumferentially, 

and drilled from the outer surface to an 

extreme depth determined by the 

formula—

D = (.6PR/S–0.6P) 

Where: 

D = extreme depth of telltale holes in inches 

but in no case less than one-sixteenth 

inch; 

P = certified working pressure in pounds per 

square inch; 

S = one-fifth of the minimum specified 

tensile strength of the material in pounds 

per square inch; and 

R = inside radius of the reservoir in inches. 

One row of holes shall be drilled 

lengthwise of the reservoir on a line 

intersecting the drain opening. A 

reservoir so drilled does not have to 

meet the requirements of paragraphs (a) 

and (b) of this section, except the 

requirement for a pneumatic or 

hydrostatic test before it is placed in 

use. Whenever any such telltale hole 

shall have penetrated the interior of any 

reservoir, the reservoir shall be 

permanently withdrawn from service. A 

reservoir now in use may be drilled in 

lieu of the tests provided for by 

paragraphs (a) and (b) of this section, 

but shall receive a hydrostatic test 

before it is returned to use or may 

receive a pneumatic test if conducted by 

the manufacturer in an appropriately 

safe environment. 

* * * * * 

■ 4. Section 229.47 is amended by 

revising paragraph (b) to read as follows: 

§ 229.47 Emergency brake valve. 

* * * * * 

(b) DMU, MU, and control cab 

locomotives operated in road service 

shall be equipped with an emergency 

brake valve that is accessible to another 

crew member in the passenger 

compartment or vestibule. The words 

‘‘Emergency Brake Valve’’ shall be 

legibly stenciled or marked near each 

valve or shall be shown on an adjacent 

badge plate. 

* * * * * 

■ 5. Section 229.137 is amended by 

revising paragraph (b)(1)(vi) to read as 

follows: 

§ 229.137 Sanitation, general 

requirements. 

* * * * * 

(b) * * * 

(1) * * * 

(vi) Except as provided in § 229.14 of 

this part, DMU, MU, and control cab 

locomotives designed for passenger 

occupancy and used in intercity pushpull service that are not equipped with 

sanitation facilities, where employees 

have ready access to railroad-provided 

sanitation in other passenger cars on the 

train at frequent intervals during the 

course of their work shift. 

* * * * * 

PART 238—[AMENDED] 

■ 6. 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. 

■ 7. Section 238.5 is amended by 

revising the definition of ‘‘actuator’’ and 

adding a definition of ‘‘piston travel 

indicator’’ to read as follows: 

§ 238.5 Definitions. 

* * * * * 

Actuator means a self-contained brake 

system component that generates the 

force to apply the brake shoe or brake 

pad to the wheel or disc. An actuator 

typically consists of a cylinder, piston, 

and piston rod. 

* * * * * 

Piston Travel Indicator means a 

device directly activated by the 

movement of the brake cylinder piston, 

the disc brake actuator, or the tread 

brake unit cylinder piston that provides 

an indication of the piston travel. 

* * * * * 

■ 8. Section 238.17 is amended by 

revising paragraph (b) introductory text 

to read as follows: 

§ 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 


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61858 Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations 

inspection. Except as provided in 

§§ 238.303(e)(15) and (e)(17), 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: 

* * * * * 

■ 9. Section 238.21 is amended by 

revising paragraphs (a) and (c)(2) to read 

as follows: 

§ 238.21 Special approval procedures. 

(a) General. The following procedures 

govern consideration and action upon 

requests for special approval of 

alternative standards under §§ 238.103, 

238.223, 238.229, 238.309, 238.311, 

238.405, or 238.427; for approval of 

alternative compliance under 

§§ 238.201, 238.229, or 238.230; and for 

special approval of pre-revenue service 

acceptance testing plans as required by 

§ 238.111. (Requests for approval of 

programs for the inspection, testing, and 

maintenance of Tier II passenger 

equipment are governed by § 238.505.) 

* * * * * 

(c) * * * 

(2) The elements prescribed in 

§§ 238.201(b), 238.229(j)(2), and 

238.230(d); and 

* * * * * 

■ 10. Section 238.229 is revised to read 

as follows: 

§ 238.229 Safety appliances—general. 

(a) Except as provided in this part, all 

passenger equipment continues to be 

subject to the safety appliance 

requirements contained in Federal 

statute at 49 U.S.C. chapter 203 and in 

Federal regulations at part 231 of this 

chapter. 

(b) Except as provided in this part, 

FRA interprets the provisions in part 

231 of this chapter that expressly 

mandate that the manner of application 

of a safety appliance be a bolt, rivet, or 

screw to mean that the safety appliance 

and any related bracket or support used 

to attach that safety appliance to the 

equipment shall be so affixed to the 

equipment. Specifically, FRA prohibits 

the use of welding as a method of 

attachment of any such safety appliance 

or related bracket or support. A ‘‘safety 

appliance bracket or support’’ means a 

component or part attached to the 

equipment for the sole purpose of 

securing or attaching of the safety 

appliance. FRA does allow the welded 

attachment of a brace or stiffener used 

in connection with a mechanically 

fastened safety appliance. In order to be 

considered a ‘‘brace’’ or ‘‘stiffener,’’ the 

component or part shall not be 

necessary for the attachment of the 

safety appliance to the equipment and is 

used solely to provide extra strength or 

steadiness to the safety appliance. 

(c) Welded Safety Appliances. (1) 

Passenger equipment placed in service 

prior to January 1, 2007, that is 

equipped with a safety appliance, 

required by the ‘‘manner of application’’

provisions in part 231 of this chapter to 

be attached by a mechanical fastener 

(i.e., bolts, rivets, or screws), and the 

safety appliance is mechanically 

fastened to a bracket or support that is 

attached to the equipment by welding 

may continue to be used in service 

provided all of the requirements in 

paragraphs (e) through (k) of this section 

are met. The welded safety appliance 

bracket or support only needs to receive 

the initial visual inspection required 

under paragraph (g)(1) of this section if 

all of the following conditions are met: 

(i) The welded safety appliance 

bracket or support meets all of the 

conditions contained in § 238.230(b)(1) 

for being considered part of the car 

body; 

(ii) The weld on the safety appliance 

bracket or support does not contain any 

defect as defined in paragraph (d) of this 

section; and 

(iii) The railroad submits a written list 

to FRA identifying each piece of 

passenger equipment equipped with a 

welded safety appliance bracket or 

support as described in paragraph 

(c)(1)(i) and (c)(1)(ii) of this section and 

provides a description of the specific 

safety appliance bracket or support. 

(2) Passenger equipment placed in 

service prior to January 1, 2007, that is 

equipped with a safety appliance that is 

directly attached to the equipment by 

welding (i.e., no mechanical fastening of 

any kind) shall be considered defective 

and immediately handled for repair 

pursuant to the requirements contained 

in § 238.17(e) unless the railroad meets 

the following: 

(i) The railroad submits a written list 

to FRA that identifies each piece of 

passenger equipment equipped with a 

welded safety appliance as described in 

paragraph (c)(2) of this section and 

provides a description of the specific 

safety appliance; and 

(ii) The involved safety appliance(s) 

on such equipment are inspected and 

handled pursuant to the requirements 

contained in paragraphs (g) through (k) 

of this section. 

(d) Defective welded safety appliance 

or welded safety appliance bracket or 

support. Passenger equipment with a 

welded safety appliance or a welded 

safety appliance bracket or support will 

be considered defective and shall be 

handled in accordance with § 238.17(e) 

if any part or portion of the weld 

contains a defect. Any repairs made to 

such equipment shall be in accordance 

with the inspection plan required in 

paragraph (g) of this section and the 

remedial actions identified in paragraph 

(j) of this section. A defect for the 

purposes of this section means a crack 

or fracture of any visibly discernible 

length or width. When appropriate, civil 

penalties for improperly using or 

hauling a piece of equipment with a 

defective welded safety appliance or 

safety appliance bracket or support 

addressed in this section will be 

assessed as an improperly applied safety 

appliance pursuant to the penalty 

schedule contained in Appendix A to 

part 231 of this chapter under the 

appropriate defect code contained 

therein. 

(e) Identification of equipment. The 

railroad shall submit a written list to 

FRA that identifies each piece of 

passenger equipment equipped with a 

welded safety appliance bracket or 

support by January 1, 2007. Passenger 

equipment placed in service prior to 

January 1, 2007, but not discovered 

until after January 1, 2007, shall be 

immediately added to the railroad’s 

written list and shall be immediately 

inspected in accordance with paragraph 

(g) through (k) of this section. The 

written list submitted by the railroad 

shall contain the following: 

(1) The equipment number; 

(2) The equipment type; 

(3) The safety appliance bracket(s) or 

support(s) affected; 

(4) Any equipment and any specific 

safety appliance bracket(s) or 

supports(s) on the equipment that will 

not be subject to the inspection plan 

required in paragraph (g) of this section; 

(5) A detailed explanation for any 

such exclusion recommended in 

paragraph (e)(4) of this section; 

(f) FRA’s Associate Administrator for 

Safety reserves the right to disapprove 

any exclusion recommended by the 

railroad in paragraphs (c)(2)(i) and (d)(4) 

of this section and will provide written 

notification to the railroad of any such 

determination. 

(g) Inspection Plans. The railroad 

shall adopt and comply with and submit 

to FRA upon request a written safety 

appliance inspection plan. At a 

minimum, the plan shall include the 

following: 

(1) Except as provided in paragraph 

(c)(1) of this section, an initial visual 

inspection (within 1 year of date of 

publication) and periodic re-inspections 

(at intervals not to exceed 6 years) of 

each welded safety appliance bracket or 

support identified in paragraph (e) of 


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this section. If significant disassembly of 

a car is necessary to visually inspect the 

involved safety appliance bracket or 

support, the initial visual inspection 

may be conducted at the equipment’s 

first periodic brake equipment 

maintenance interval pursuant to 

§ 238.309 occurring after January 1, 

2007. 

(2) Identify the personnel that will 

conduct the initial and periodic 

inspections and any training those 

individuals are required to receive in 

accordance with the criteria contained 

in paragraph (h) of this section. 

(3) Identify the specific procedures 

and criteria for conducting the initial 

and periodic safety appliance 

inspections in accordance with the 

requirements and criteria contained in 

paragraph (i) of this section. 

(4) Identify when and what type of 

potential repairs or potential remedial 

action will be required for any defective 

welded safety appliance bracket or 

support discovered during the initial or 

periodic safety appliance inspection in 

accordance with paragraph (j) of this 

section. 

(5) Identify the records that will be 

maintained that are related to the initial 

and periodic safety appliance 

inspections in accordance with the 

requirements contained in paragraph (k) 

of this section. 

(h) Inspection Personnel. The initial 

and periodic safety appliance 

inspections shall be performed by 

individuals properly trained and 

qualified to identify defective weld 

conditions. At a minimum, these 

personnel include the following: 

(1) A qualified maintenance person 

(QMP) with at least 4 hours of training 

specific to the identification of weld 

defects and the railroad’s weld 

inspection procedures; 

(2) A current certified welding 

inspector (CWI) pursuant to American 

Welding Society Standard—AWS QC–1, 

Standard for AWS Certification of 

Welding Inspectors (1996) or its current 

revised equivalent; 

(3) A person possessing a current 

Canadian Welding Bureau (CWB) 

certification pursuant to the Canadian 

Standards Association Standard W59 

(2003) or its current revised equivalent; 

(4) A person possessing a current 

level II or level III visual inspector 

certification from the American Society 

for Non-destructive Testing pursuant to 

Recommended Practice SNT–TC–1A—

Personnel Qualification and 

Certification in Nondestructive Testing 

(2001) or its current revised equivalent; 

or 

(5) A person possessing a current 

certification under any other nationally 

or internationally recognized welding 

qualification standard that is equivalent 

to those identified in paragraphs (h)(2) 

through (h)(4) of this section. 

(i) Inspection Procedures. The initial 

and periodic safety appliance 

inspections shall be conducted in 

accordance with the procedures and 

criteria established in the railroad’s 

inspection plan. At a minimum, these 

procedures and criteria shall include: 

(1) A complete visual inspection of 

the entire welded surface of any safety 

appliance bracket or support identified 

in paragraph (e) of this section. 

(2) The visual inspection shall occur 

after the complete removal of any dirt, 

grease, rust, or any other foreign matter 

from the welded portion of the involved 

safety appliance bracket or support. 

Removal of paint is not required. 

(3) The railroad shall disassemble any 

equipment necessary to permit full 

visual inspection of the involved weld. 

(4) Any materials necessary to 

conduct a complete inspection must be 

made available to the inspection 

personnel throughout the inspection 

process. These include but are not 

limited to such items as mirrors, 

magnifying glasses, or other location 

specific inspection aids. Remote 

viewing aids possessing equivalent 

sensitivity are permissible for restricted 

areas. 

(5) Any weld found with a defect as 

defined in paragraph (d) of this section 

during the initial or periodic safety 

appliance inspection shall be inspected 

by either a certified weld inspector 

identified in paragraphs (h)(2) through 

(h)(5) of this section or a welding or 

materials engineer possessing a 

professional engineer’s license for a 

final determination. No car with a defect 

in the weld of a safety appliance or its 

attachment may continue in use until a 

final determination as to the existence 

of a defect is made by the personnel 

identified in this paragraph. 

(6) A weld finally determined to 

contain a defect shall be handled for 

repair in accordance with § 238.17(e) 

and repaired in accordance with the 

remedial action criteria contained in 

paragraph (j) of this section. 

(j) Remedial Action. Unless a defect in 

a weld is known to have been caused by 

crash damage, the railroad shall conduct 

a failure and engineering analysis of any 

weld identified in paragraph (e) of this 

section determined to have a break or 

crack either during the initial or 

periodic safety appliance inspection or 

while otherwise in service to determine 

if the break or crack is the result of crash 

damage, improper construction, or 

inadequate design. Based on the results 

of the analysis, the repair of the 

involved safety appliance bracket or 

support shall be handled as follows: 

(1) A defect in a weld due to crash 

damage (i.e., impact of the safety 

appliance by an outside force during 

service or an accident) or improper 

construction (i.e., the weld did not 

conform to the engineered design) shall 

be reattached by either mechanically 

fastening the safety appliance or the 

safety appliance bracket or support to 

the equipment or welding the safety 

appliance bracket or support to the 

equipment in a manner that is at least 

as strong as the original design or at 

least twice the strength of a bolted 

mechanical attachment, whichever is 

greater. If welding is used to repair the 

damaged appliance, bracket, or support 

the following requirements shall be met: 

(i) The repair shall be conducted in 

accordance with the welding procedures 

contained in APTA Standard SS–C&S–

020–03—Standard for Passenger Rail 

Vehicle Structural Repair (September 

2003); or an alternative procedure 

approved by FRA pursuant to § 238.21. 

The Director of the Federal Register 

approves incorporation by reference of 

the APTA Standard SS–C&S–020–03 

(September 2003), ‘‘Standard for 

Passenger Rail Vehicle Structural 

Repair,’’ in this section in accordance 

with 5 U.S.C. 552(a) and 1 CFR part 51. 

You may obtain a copy of the 

incorporated standard from the 

American Public Transportation 

Association, 1666 K Street, Washington, 

DC 20006. You may inspect a copy of 

the incorporated standard at the Federal 

Railroad Administration, Docket Clerk, 

1120 Vermont Ave., NW., Suite 7000, 

Washington, DC 20590 or at the 

National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html; 

(ii) A qualified individual under 

paragraph (h) of this section shall 

inspect the weld to ensure it is free of 

any cracks or fractures prior to the 

equipment being placed in-service; 

(iii) The welded safety appliance 

bracket or support shall receive a 

periodic safety appliance inspection 

pursuant to the requirements contained 

in paragraphs (g) through (i) of this 

section; and 

(iv) A record of the welded repair 

pursuant to the requirements of 

paragraph (k) of this section shall be 

maintained by the railroad. 

(2) A defect in the weld that is due to 

inadequate design (i.e., unanticipated 

stresses or loads during service) shall be 


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61860 Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations 

handled in accordance with the 

following: 

(i) The railroad must immediately 

notify FRA’s Associate Administrator 

for Safety in writing of its discovery of 

a defective weld that is due to 

inadequate design; 

(ii) The involved safety appliance or 

the safety appliance bracket or support 

shall be reattached to the equipment by 

mechanically fastening the safety 

appliance or the safety appliance 

bracket or support to the equipment 

unless such mechanical fastening is 

impractical due to the design of the 

equipment; 

(iii) The railroad shall develop and 

comply with a written plan submitted to 

and approved by FRA’s Associate 

Administrator for Safety detailing a 

schedule for all passenger equipment in 

that series of cars with a similar welded 

safety appliance bracket or support to 

have the involved safety appliance or 

the safety appliance bracket or support 

mechanically fastened to the equipment; 

and 

(iv) If a railroad determines that the 

design of the equipment makes it 

impractical to mechanically fasten the 

safety appliance or the safety appliance 

bracket or support to the equipment, 

then the railroad shall submit a request 

to FRA for special approval of 

alternative compliance pursuant to 

§ 238.21. Such a request shall explain 

the necessity for any relief sought and 

shall contain appropriate data and 

analysis supporting its determination 

that any alternative method of 

attachment provides at least an 

equivalent level of safety. 

(k) Records. Railroads shall maintain 

written or electronic records of the 

inspection and repair of the welded 

safety appliance brackets or supports on 

any equipment identified in paragraph 

(e) of this section. The records shall be 

made available to FRA upon request. At 

a minimum, these records shall include 

all of the following: 

(1) Training or certification records 

for any person performing any of the 

inspections or repairs required in this 

section. 

(2) The date, time, location, and 

identification of the person performing 

the initial and periodic safety appliance 

inspections for each piece of equipment 

identified in paragraph (e) of this 

section. This includes the identification 

of the person making any final 

determination as to the existence of a 

defect under paragraph (i)(5) of this 

section. 

(3) A record of all passenger 

equipment found with a safety 

appliance weldment that is defective 

either during the initial or periodic 

safety appliance inspection or while the 

equipment is in-service. This record 

shall also identify the cause of the crack 

or fracture. 

(4) The date, time, location, 

identification of the person making the 

repair, and the nature of the repair to 

any welded safety appliance bracket or 

support identified in paragraph (e) of 

this section. 

■ 11. Section 238.230 is added to read 

as follows: 

§ 238.230 Safety appliances—new 

equipment. 

(a) Applicability. This section applies 

to passenger equipment placed in 

service on or after January 1, 2007. 

(b) Welded Safety Appliances. Except 

as provided in this section, all passenger 

equipment placed into service on or 

after January 1, 2007, that is equipped 

with a safety appliance, required by the 

‘‘manner of application’’ provisions in 

part 231 of this chapter to be attached 

by a mechanical fastener (i.e., bolts, 

rivets, or screws), shall have the safety 

appliance and any bracket or support 

necessary to attach the safety appliance 

to the piece of equipment mechanically 

fastened to the piece of equipment. 

(1) Safety appliance brackets or 

supports considered part of the car 

body. Safety appliance brackets or 

supports will be considered part of the 

car body and will not be required to be 

mechanically fastened to the piece of 

passenger equipment if all of the 

following are met: 

(i) The bracket or support is welded 

to a surface of the equipment’s body that 

is at a minimum 3/16-inch sheet steel or 

structurally reinforced to provide the 

equivalent strength and rigidity of 3/16- 

inch sheet steel; 

(ii) The area of the weld is sufficient 

to ensure a minimum weld strength, 

based on yield, of three times the 

strength of the number of SAE grade 2, 

1⁄2 inch diameter bolts that would be 

required for each attachment; 

(iii) Except for any access required for 

attachment of the safety appliance, the 

weld is continuous around the 

perimeter of the surface of the bracket 

or support; 

(iv) The attachment is made with fillet 

welds at least 3/16-inch in size; 

(v) The weld is designed for infinite 

fatigue life in the application that it will 

be placed; 

(vi) The weld is performed in 

accordance with the welding process 

and the quality control procedures 

contained in the current American 

Welding Society (AWS) Standard, the 

Canadian Welding Bureau (CWB) 

Standard, or an equivalent nationally or 

internationally recognized welding 

standard; 

(vii) The weld is performed by an 

individual possessing the qualifications 

to be certified under the current AWS 

Standard, CWB Standard, or any 

equivalent nationally or internationally 

recognized welding qualification 

standard; 

(viii) The weld is inspected by an 

individual qualified to determine that 

all of the conditions identified in 

paragraph (b)(1)(i) through (b)(1)(vii) of 

this section are met prior to the 

equipment being placed in service; and 

(ix) A written or electronic record of 

the inspection required in paragraph 

(b)(1)(viii) of this section shall be 

retained by the railroad operating the 

equipment and shall be provided to 

FRA upon request. At a minimum, this 

record shall include the date, time, 

location, identification of the person 

performing the inspection, and the 

qualifications of the person performing 

the inspection. 

(2) Directly welded safety appliances. 

Passenger equipment that is equipped 

with a safety appliance that is directly 

attached to the equipment by welding 

(i.e., no mechanical fastening of any 

kind) may be placed in service only if 

the railroad meets the following: 

(i) The railroad submits a written list 

to FRA that identifies each piece of new 

passenger equipment equipped with a 

welded safety appliance as described in 

paragraph (b)(2) of this section and 

provides a description of the specific 

safety appliance; 

(ii) The railroad provides a detailed 

basis as to why the design of the vehicle 

or placement of the safety appliance 

requires that the safety appliance be 

directly welded to the equipment; and 

(iii) The involved safety appliance(s) 

on such equipment are inspected and 

handled pursuant to the requirements 

contained in § 238.229(g) through (k). 

(3) Other welded safety appliances 

and safety appliance brackets and 

supports. Except for safety appliance 

brackets and supports identified in 

paragraph (b)(1) of this section, safety 

appliance brackets and supports on 

passenger equipment shall not be 

welded to the car body unless the 

design of the equipment makes it 

impractical to mechanically fasten the 

safety appliance and it is impossible to 

meet the conditions for considering the 

bracket or support part of the car body 

contained in paragraph (b)(1) of this 

section. Prior to placing a piece of 

passenger equipment in service with a 

welded safety appliance bracket or 

support as described in this paragraph, 

the railroad shall submit documentation 

to FRA, for FRA’s review and approval, 


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containing all of the following 

information: 

(i) Identification of the equipment by 

number, type, series, operating railroad, 

and other pertinent data; 

(ii) Identification of the safety 

appliance bracket(s) or support(s) not 

mechanically fastened to the equipment 

and not considered part of the car body 

under paragraph (b)(1) of this section; 

(iii) A detailed analysis describing the 

necessity to attach the safety appliance 

bracket or support to the equipment by 

a means other than mechanical 

fastening; 

(iv) A detailed analysis describing the 

inability to make the bracket or support 

part of the car body as provided for in 

paragraph (b)(1) of this section; and 

(v) A copy and description of the 

consensus or other appropriate industry 

standard used to ensure the 

effectiveness and strength of the 

attachment; 

(c) Inspection and repair. Passenger 

equipment with a welded safety 

appliance or a welded safety appliance 

bracket or support will be considered 

defective and shall be handled in 

accordance with § 238.17(e) if any part 

or portion of the weld is defective as 

defined in § 238.229(d). When 

appropriate, civil penalties for 

improperly using or hauling a piece of 

equipment with a defective welded 

safety appliance or safety appliance 

bracket or support addressed in this 

section will be assessed pursuant to the 

penalty schedule contained in 

Appendix A to part 231 of this chapter 

under the appropriate defect code 

contained therein. 

(1) Any safety appliance bracket or 

support approved by FRA pursuant to 

paragraph (b)(3) of this section shall be 

inspected and handled in accordance 

with the requirements contained in 

§ 238.229(g) through (k). 

(2) Any repair to a safety appliance 

bracket or support considered to be part 

of the car body under paragraph (b)(1) 

of this section shall be conducted in 

accordance with APTA Standard SS–

C&S–020–03—Standard for Passenger 

Rail Vehicle Structural Repair 

(September 2003), or an alternative 

procedure approved by FRA pursuant to 

§ 238.21, and shall ensure that the repair 

meets the requirements contained in 

paragraphs (b)(1)(i) through (b)(1)(vii) of 

this section. The Director of the Federal 

Register approves incorporation by 

reference of the APTA Standard SS–

C&S–020–03 (September 2003), 

‘‘Standard for Passenger Rail Vehicle 

Structural Repair,’’ in this section in 

accordance with 5 U.S.C. 552(a) and 1 

CFR part 51. You may obtain a copy of 

the incorporated standard from the 

American Public Transportation 

Association, 1666 K Street, Washington, 

DC 20006. You may inspect a copy of 

the incorporated standard at the Federal 

Railroad Administration, Docket Clerk, 

1120 Vermont Ave., NW., Suite 7000, 

Washington, DC 20590 or at the 

National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to http://wwww.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

(d) Passenger Cars of Special 

Construction. A railroad or a railroad’s 

recognized representative may submit a 

request for special approval of 

alternative compliance pursuant to 

§ 238.21 relating to the safety appliance 

arrangements on any passenger car 

considered a car of special construction 

under § 231.18 of this chapter. Any such 

petition shall be in the form of an 

industry-wide standard and at a 

minimum shall: 

(1) Identify the type(s) of car to which 

the standard would be applicable; 

(2) As nearly as possible, based upon 

the design of the equipment, ensure that 

the standard provides for the same 

complement of handholds, sill steps, 

ladders, hand or parking brakes, 

running boards, and other safety 

appliances as are required for a piece of 

equipment of the nearest approximate 

type already identified in part 231 of 

this chapter; 

(3) Comply with all statutory 

requirements relating to safety 

appliances contained at 49 U.S.C. 20301 

and 20302; 

(4) Specifically address the number, 

dimension, location, and manner of 

application of each safety appliance 

contained in the standard; 

(5) Provide specific analysis regarding 

why and how the standard was 

developed and specifically discuss the 

need or benefit of the safety appliance 

arrangement contained in the standard; 

(6) Include drawings, sketches, or 

other visual aids that provide detailed 

information relating to the design, 

location, placement, and attachment of 

the safety appliances; and 

(7) Demonstrate the ergonomic 

suitability of the proposed arrangements 

in normal use. 

(e) Any industry standard approved 

pursuant to § 238.21 will be enforced 

against any person who violates any 

provision of the approved standard or 

causes the violation of any such 

provision. Civil penalties will be 

assessed under part 231 of this chapter 

by using the applicable defect code 

contained in Appendix A to part 231 of 

this chapter. 

■ 12. Section 238.231 is amended by 

revising paragraph (b) and paragraph 

(h)(3) and by adding paragraph (h)(4) to 

read as follows: 

§ 238.231 Brake system. 

* * * * * 

(b) Where practicable, the design of 

passenger equipment ordered on or after 

September 8, 2000, or placed in service 

for the first time on or after September 

9, 2002, shall not require an inspector 

to place himself or herself on, under, or 

between components of the equipment 

to observe brake actuation or release. 

Passenger equipment not designed in 

this manner shall be equipped and 

handled in accordance with one of the 

following: 

(1) Equipped with piston travel 

indicators as defined in § 238.5 or 

devices of similar design and inspected 

pursuant to the requirements contained 

in § 238.313 (j); or 

(2) Equipped with brake indicators as 

defined in § 238.5, designed so that the 

pressure sensor is placed in a location 

so that nothing may interfere with the 

air flow to brake cylinder and inspected 

pursuant to the requirements contained 

in § 238.313 (j). 

* * * * * 

(h) * * * 

(3) Except for MU locomotives, on 

locomotives so equipped, the hand or 

parking brake as well as its parts and 

connections shall be inspected, and 

necessary repairs made, as often as 

service requires but no less frequently 

than every 368 days. The date of the last 

inspection shall be either entered on 

Form FRA F 6180–49A, suitably 

stenciled or tagged on the equipment, or 

maintained electronically provided FRA 

has access to the record upon request. 

(4) A train’s air brake shall not be 

depended upon to hold unattended 

equipment (including a locomotive, a 

car, or a train whether or not locomotive 

is attached). For purposes of this 

section, ‘‘unattended equipment’’ means 

equipment left standing and unmanned 

in such a manner that the brake system 

of the equipment cannot be readily 

controlled by a qualified person. 

Unattended equipment shall be secured 

in accordance with the following 

requirements: 

(i) A sufficient number of hand or 

parking brakes shall be applied to hold 

the equipment. Railroads shall develop 

and implement a process or procedure 

to verify that the applied hand or 

parking brakes will sufficiently hold the 

equipment with the air brakes released; 

(ii) Except for equipment connected to 

a source of compressed air (e.g., 


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locomotive or ground air source), prior 

to leaving equipment unattended, the 

brake pipe shall be reduced to zero at 

a rate that is no less than a service rate 

reduction; 

(iii) At a minimum, the hand or 

parking brake shall be fully applied on 

at least one locomotive or vehicle in an 

unattended locomotive consist or train; 

(iv) A railroad shall develop, adopt, 

and comply with procedures for 

securing any unattended locomotive 

required to have a hand or parking brake 

applied when the locomotive is not 

equipped with an operative hand or 

parking brake; 

(v) A railroad shall adopt and comply 

with instructions to address throttle 

position, status of the reverser lever, 

position of the generator field switch, 

status of the independent brakes, 

position of the isolation switch, and 

position of the automatic brake valve, or 

the functional equivalent of these items, 

on all unattended locomotives. The 

procedures and instruction shall take 

into account weather conditions as they 

relate to throttle position and reverser 

handle; and 

(vi) Any hand or parking brakes 

applied to hold unattended equipment 

shall not be released until it is known 

that the air brake system is properly 

charged. 

* * * * * 

■ 13. Section 238.303 is amended by 

adding a new paragraph (e)(17) to read 

as follows: 

§ 238.303 Exterior calendar day 

mechanical inspection of passenger 

equipment. 

* * * * * 

(e) * * * 

(17) Each air compressor, on 

passenger equipment so equipped, shall 

be in effective and operative condition. 

MU passenger equipment found with an 

inoperative or ineffective air compressor 

at the time of its exterior calendar day 

mechanical inspection may remain in 

passenger service until the equipment’s 

next exterior calendar day mechanical 

inspection where it must be repaired or 

removed from passenger service; 

provided, all of the following 

requirements are met: 

(i) The equipment has an inherent 

redundancy of air compressors, due to 

either the make-up of the train consist 

or the design of the equipment; 

(ii) The railroad demonstrates through 

verifiable data, analysis, or actual 

testing that the safety and integrity of a 

train is not compromised in any manner 

by the inoperative or ineffective air 

compressor. The data, analysis, or test 

shall establish the maximum number of 

air compressors that may be inoperative 

based on size of the train consist, the 

type of passenger equipment in the 

train, and the number of service and 

emergency brake applications typically 

expected in the run profile for the 

involved train; 

(iii) The involved train does not 

exceed the maximum number of 

inoperative or ineffective air 

compressors established in accordance 

with paragraph (e)(17)(ii) of this section; 

(iv) A qualified maintenance person 

determines and verifies that the 

inoperative or ineffective air compressor 

does not compromise the safety or 

integrity of the train and that it is safe 

to move the equipment in passenger 

service; 

(v) The train crew is informed in 

writing of the number of units in the 

train consist with inoperative or 

ineffective air compressors at the 

location where the train crew first takes 

charge of the train; 

(vi) A record is maintained of the 

inoperative or ineffective air compressor 

pursuant to the requirements contained 

in § 238.17(c)(4); and 

(vii) Prior to operating equipment 

under the provisions contained in this 

paragraph, the railroad shall provide in 

writing to FRA’s Associate 

Administrator for Safety the maximum 

number of inoperative or ineffective air 

compressors identified in accordance 

with paragraph (e)(17)(ii) of this section. 

(viii) The data, analysis, or testing 

developed and conducted under 

paragraph (e)(17)(ii) of this section shall 

be made available to FRA upon request. 

FRA’s Associate Administrator for 

Safety may revoke a railroad’s ability to 

utilize the flexibility provided in this 

paragraph if the railroad fails to comply 

with the maximum limits established 

under paragraph (e)(17)(ii) or if such 

maximum limits are not supported by 

credible data or do not provide adequate 

safety assurances. 

■ 14. Section 238.307 is amended by 

adding paragraph (c)(13) and by revising 

paragraph (d) to read as follows: 

§ 238.307 Periodic mechanical inspection 

of passenger cars and unpowered vehicles 

used in passenger trains. 

* * * * * 

(c) * * * 

(13) The hand or parking brake shall 

be applied and released to determine 

that it functions as intended. 

(d) At intervals not to exceed 368 

days, the periodic mechanical 

inspection shall specifically include the 

following: 

(1) Inspection of the manual door 

releases to determine that all manual 

door releases operate as intended; and 

(2) Inspection of the hand or parking 

brake as well as its parts and 

connections to determine that they are 

in proper condition and operate as 

intended. The date of the last inspection 

shall be either entered on Form FRA F 

6180–49A, suitably stenciled or tagged 

on the equipment, or maintained 

electronically provided FRA has access 

to the record upon request. 

* * * * * 

■ 15. Section 238.313 is amended by 

revising the first sentence of paragraph 

(g)(3) and by adding a new paragraph (j) 

to read as follows: 

§ 238.313 Class I brake test. 

* * * * * 

(g) * * * 

(3) Piston travel is within prescribed 

limits, either by direct observation, 

observation of a piston travel indicator, 

or in the case of tread or disc brakes by 

determining that the brake shoe or pad 

provides pressure to the wheel. * * * 

* * * * * 

(j) In addition to complying with all 

the Class I brake test requirements 

performed by a qualified maintenance 

person as contained in paragraphs (a) 

through (i) of this section, railroads 

operating passenger equipment that is 

not designed to permit the visual 

observation of the brake actuation and 

release without the inspector going on, 

under, or between the equipment in 

accordance with § 238.231(b) shall 

perform an additional inspection. At a 

minimum, the additional inspection 

requirement for such equipment shall 

include all of the following: 

(1) An additional inspection by a 

qualified maintenance person of all 

items and components contained in 

paragraphs (g)(1) through (g)(15) of this 

section; 

(2) The additional inspection shall be 

conducted at an interval not to exceed 

five (5) in-service days and shall be 

conducted while the equipment is over 

an inspection pit or on a raised 

inspection track; and 

(3) A record of the additional 

inspection shall be maintained pursuant 

to the requirements contained in 

paragraph (h) of this section. This 

record can be combined with the Class 

I brake test record. 

* * * * * 

■ 16. Section 238.321 is added to read 

as follows: 

§ 238.321 Out-of-service credit. 

When a passenger car is out of service 

for 30 or more consecutive days or is out 

of service when it is due for any test or 

inspection required by § 238.307 or 

§ 238.309 an out of use notation 


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Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations 61863 

showing the number of out of service 

days shall be made in the records 

required under § 238.307(e) and 

§ 238.309(f). If the passenger car is out 

of service for one or more periods of at 

least 30 consecutive days, the interval 

prescribed for any test or inspection 

required by § 238.307 and § 238.309 

may be extended by the number of days 

in each period the passenger car is out 

of service since the last test or 

inspection in question. A movement 

made in accordance with § 229.9 of this 

chapter or § 238.17 is not considered 

service for the purposes of determining 

the out-of-service credit. 

■ 17. Appendix A to part 238 is 

amended by the following: 

■ a. Adding a new entry for §§ 238.229 

and 238.230; 

■ b. Revising the entry for 

§ 238.231(h)(3); 

■ c. Adding a new entry for 

§ 238.231(h)(4); 

■ d. Adding a new entry for 

§ 238.303(e)(17); 

■ e. Adding a new entry for 

§ 238.307(c)(13); 

■ f. Removing the entries for 

§ 238.307(d), (d)(3), (d)(4) and (d)(5); 

■ g. Revising the entries for 

§ 238.307(d)(2) and (d)(3); 

■ h. Adding new entries for § 238.313(j) 

and (j)(3); and 

■ i. Adding a new entry for § 238.321 to 

read as follows: 

Appendix A to Part 238—Schedule of 

Civil Penalties 

* * * * * 

Section Violation Willful 

violation 

* * * * * * * 

238.229 Safety appliances—general: 

(e) Failure to properly identify equipment (per car) ................................................................................................. 2,500 5,000 

(g) Failure to adopt or comply with inspection plan ................................................................................................. 2,500 5,000 

(h) Failure to use qualified person (per car) ............................................................................................................ 2,500 5,000 

(i) Failure to properly conduct initial or periodic inspection (per car) ....................................................................... 2,500 5,000 

(j) Failure to take proper remedial action (per car) .................................................................................................. 2,500 5,000 

(k) Failure to maintain records (per car) .................................................................................................................. 2,000 4,000 

238.230 Safety appliances—new equipment: 

(b)(2) Failure to identify welded appliance (per car) ................................................................................................ 2,500 5,000 

(b)(3) Failure to receive approval for use (per car) .................................................................................................. 2,500 5,000 

(c)(2) Failure to make proper repair (per car) .......................................................................................................... 2,500 5,000 

* * * * * * * 

238.231 Brake system 

* * * * * * * 

(h)(3) Hand or parking brake inspection or record (per car) .................................................................................... 2,500 5,000 

(h)(4) Hand or parking brake not applied to hold unattended equipment or prematurely released ........................ 5,000 7,500 

* * * * * * * 

238.303 Exterior mechanical inspection of passenger equipment: 

* * * * * * * 

(e)(17) Air compressor inoperative ........................................................................................................................... 2,500 5,000 

* * * * * * * 

238.307 Periodic mechanical inspection of passenger cars and unpowered vehicles: 

* * * * * * * 

(c)(13) Hand or parking brake test not performed ................................................................................................... 2,500 5,000 

* * * * * * * 

(d)(1) Manual door release not operate as intended ............................................................................................... 2,500 5,000 

(d)(2) Hand or parking brake inspection not performed ........................................................................................... 2,500 5,000 

* * * * * * * 

238.313 Class I brake test: 

* * * * * * * 

(j) Failure to perform additional Class I brake test ................................................................................................... 5,000 7,500 

(j)(3) Failure to maintain record ................................................................................................................................ 2,000 4,000 

* * * * * * * 

238.321 Out-of-service credit ........................................................................................................................................ 1,000 2,000 

* * * * * * * 


cprice-sewell on PROD1PC66 with RULES2
61864 Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations 

* * * * * Issued in Washington, DC, on September 

29, 2006. 

Joseph H. Boardman, 

Federal Railroad Administrator. 

[FR Doc. 06–8611 Filed 10–18–06; 8:45 am] 

BILLING CODE 4910–06–P 


cprice-sewell on PROD1PC66 with RULES2