8330 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 223 and 239

[FRA Docket No. PTEP–1, Notice No. 1]

RIN 2130–AA96

Passenger Train Emergency

Preparedness

AGENCY: Federal Railroad

Administration (FRA), Department of

Transportation (DOT).

ACTION: Notice of proposed rulemaking.

SUMMARY: Pursuant to section 215 of the

Federal Railroad Safety Authorization

Act of 1994, FRA proposes a rule to

require minimum Federal safety

standards for the preparation, adoption,

and implementation of emergency

preparedness plans by railroads

connected with the operation of

passenger trains, including freight

railroads hosting the operations of rail

passenger service. The proposed rule

also requires each affected railroad to

instruct its employees on the plan’s

provisions. Elements of this emergency

preparedness plan would include

communication, employee training and

qualification, joint operations, tunnel

safety, liaison with emergency

responders, on-board emergency

equipment, and passenger safety

information. The plan adopted by each

affected railroad would be subject to

formal review and approval by FRA.

This proposal for emergency

preparedness regulations, which

formalizes a planning requirement and

identifies certain mandatory elements,

is the second phase in a four-phase

process that began in 1994. In the first

phase, FRA encouraged railroads to

examine their programs to determine

what improvements could be made,

while in the third phase, FRA will

review the railroad plans to determine

if all emergency preparedness issues

have been adequately addressed within

the varying contexts of railroad

operations. In the fourth phase, FRA

will review the implementation and

effectiveness of the proposed standards

and related voluntary developments,

and will address the need for further

rulemaking activity.

The proposed rule does not apply to

tourist and historic railroad operators.

However, after appropriate consultation

with the excursion railroad associations

to determine appropriate applicability

in light of financial, operational, or

other factors unique to such operations,

emergency preparedness requirements

for these operations may be prescribed

by FRA that are different from those

affecting other types of passenger

operations.

DATES: (1) Written comments: Written

comments must be received on or before

April 25, 1997. Comments received after

that date will be considered by FRA and

the Passenger Train Emergency

Preparedness Working Group in

preparing the final rule to the extent

possible without incurring additional

expense or delay. The docket will

remain open until the Working Group

proceedings are concluded. Requests for

formal extension of the comment period

must be made by April 10, 1997.

(2) Public hearings: FRA intends to

hold two public hearings, and the dates

of these hearings will be published in a

forthcoming notice in the Federal

Register. Anyone who desires to make

an oral statement at either of the

hearings must notify the Docket Clerk

by telephone (202–632–3198) or mail,

and must submit three copies of the oral

statement that he or she intends to make

at the hearing. The dates by which the

Docket Clerk must be notified about the

oral statement and receive the three

copies of this statement will be set forth

in the notice announcing the public

hearings.

ADDRESSES: Written Comments: Written

comments should identify the docket

number and must be submitted in

triplicate to the Docket Clerk, Office of

Chief Counsel, Federal Railroad

Administration, 400 Seventh Street,

S.W., Washington, D.C. 20590. Persons

desiring to be notified that their

comments have been received by FRA

should submit a stamped, self-addressed

postcard with their comments. The

Docket Clerk will indicate on the

postcard the date on which the

comments were received and will return

the card to the addressee. Written

comments will be available for

examination, both before and after the

closing date for written comments,

during regular business hours on the

Seventh floor of 1120 Vermont Avenue,

N.W. in Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Mr.

Edward R. English, Director, Office of

Safety Assurance and Compliance, FRA,

400 Seventh Street, S.W., Washington,

D.C. 20590 (telephone number: 202–

632–3349), or David H. Kasminoff, Esq.,

Trial Attorney, Office of Chief Counsel,

FRA, 400 Seventh Street, S.W.,

Washington, D.C. 20590 (telephone:

202–632–3191).

SUPPLEMENTARY INFORMATION:

Request for Comments

In accordance with Executive Order

12866, FRA is allowing 60 days for

comments. FRA believes that a 60-day

comment period is necessary for parties

with interests that were not represented

by the working group on passenger train

emergency preparedness that has been

established by the agency under 49

U.S.C. 20133.

Background

The overall safety record of

conventional intercity and commuter

passenger train operations in the United

States has been exemplary. However,

accidents continue to occur, often as a

result of factors beyond the control of

the passenger railroad. Further, the rail

passenger operating environment in the

United States is rapidly changing—

technology is advancing, equipment is

being designed for ever-higher speeds,

and many potential new operators of

passenger equipment are appearing.

With this more complex operating

environment, FRA must become more

proactive to ensure that operators of

passenger train service, as well as

freight railroads hosting passenger

operations, engage in careful, advance

planning to minimize the consequences

of emergencies that could occur. Even

minor incidents could easily develop

into life-threatening events if they are

not addressed in a timely and effective

manner.

In recent years, passenger train

accidents, such as the tragic ‘‘Sunset

Limited’’ passenger train derailment

near Mobile, Alabama in September

1993, have demonstrated the need to

improve the way railroads respond in

emergency situations. On September 22,

1993, at about 2:45 a.m., barges that

were being pushed by the towboat

Mauvilla in dense fog struck and

displaced the Big Bayou Canot railroad

bridge near Mobile, Alabama. At about

2:53 a.m., National Railroad Passenger

Corporation (Amtrak) train no. 2, the

Sunset Limited, en route from Los

Angeles, California to Miami, Florida

with 220 persons on board, struck the

displaced bridge and derailed. The three

locomotive units, the baggage and

dormitory cars, and two of the six

passenger cars fell into the water. The

fuel tanks on the locomotive units

ruptured, and the locomotive units and

the baggage and dormitory cars caught

fire. Forty-two passengers and five

crewmembers were killed, and 103

passengers were injured. The towboat’s

four crewmembers were not injured.

In a report on the accident released on

September 19, 1994, the National

Transportation Safety Board (NTSB)

determined that several circumstances

hampered emergency response efforts.

NTSB Railroad-Marine Accident Report

94/01. In its assessment of emergency
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8331

response at the accident site, the NTSB

noted that the location of the accident

was remote (accessible only by rail,

water, or air), fog in the area was dense

(requiring the use of radar to navigate

boats), limited modes of transportation

were available for bringing in personnel

and equipment, and the magnitude of

the accident was great. Nevertheless, the

NTSB concluded that, following the

delay while emergency responders

identified the location of the accident,

emergency response activities were

efficient and effective. The report did

find, however, that Amtrak did not have

an effective system in place to apprise

passengers of train safety features,

passengers were at a disadvantage

during evacuation due to the absence of

portable lighting on the passenger cars,

and emergency responders were at a

disadvantage because they were unable

to obtain an adequate passenger and

crew list from Amtrak until the next

day. The NTSB also noted that had the

Mobile County Emergency Management

Agency held drills to simulate a train

accident, the incident commander may

have known about Amtrak’s procedure

for accounting for passengers, and CSX

Transportation, Inc., the owner of the

bridge, may have had the correct

telephone number to contact the U.S.

Coast Guard.

Considerable effort has focused on

how to mitigate casualties after a train

accident occurs. In this regard, even

before the occurrence of the tragic

accident near Mobile, FRA had tasked

DOT’s Volpe National Transportation

Systems Center (TSC), in Cambridge,

Massachusetts, to perform research and

to recommend emergency preparedness

guidelines for passenger train operators.

The results were published at the end of

1993 as a publication entitled

‘‘RECOMMENDED EMERGENCY

PREPAREDNESS GUIDELINES FOR

PASSENGER TRAINS’’ (Volpe Report),

which is available to the public through

the National Technical Information

Service, Springfield, VA 22161 (DOT/

FRA/ORD–93–24—DOT–VNTSC–FRA–

93–23). The publication references

safety recommendations of the NTSB, as

well as many other publications on the

subject of emergency preparedness, and

contains recommended guidelines

designed to assist passenger train

operating systems and emergency

response organization management in

evaluating and modifying or

supplementing their emergency

response plans. A copy of the Volpe

Report has been placed in the public

docket for this rulemaking.

The Volpe Report recommendations

address guidelines relating to

emergency plans, procedures, and

training. In addition, guidelines for

passenger train and facility features

intended to shorten emergency response

time, improve the effectiveness of

evacuating passengers, and minimize

the effects of an emergency are

presented. The publication also lists

inter-organizational emergency

protocols, which include those of fire

departments, emergency medical

services (EMS), police departments,

public utilities, hospitals, and local,

State, regional, and Federal

governments.

In an effort to be proactive after the

accident near Mobile, FRA mailed the

Volpe Report to all intercity passenger

and commuter railroads, freight

railroads, the United Transportation

Union, and the Brotherhood of

Locomotive Engineers in March 1994 for

their information and guidance.

Concurrent with this mailing, FRA

invited the railroads to attend a

roundtable meeting in Washington,

D.C., on June 9, 1994, to discuss the

emergency preparedness issues

addressed in the publication. The 23-

member roundtable discussion was

comprised of representatives from the

following organizations:

Amtrak,

FRA,

Long Island Rail Road (LIRR),

MTA Metro-North Railroad (METRONORTH),

Northeast Illinois Regional Commuter

Railroad Corporation (METRA),

Peninsula Corridor Joint Powers Board

(CALTRAIN),

Port Authority Trans-Hudson

Corporation (PATH),

Southern California Regional Rail

Authority (METROLINK),

Southeastern Pennsylvania

Transportation Authority (SEPTA),

Tri-County Commuter Rail Authority

(TRI-RAIL),

TSC, and

Virginia Railway Express (VRE).

During the meeting, FRA agreed to

assist the passenger railroads in

establishing improved working

relationships with their host freight

railroads. FRA also promised to help the

passenger railroads in their emergency

response efforts in larger metropolitan

areas by contacting emergency response

agencies and eliciting more cooperation

between them. In addition, FRA stated

that it would conduct field visits to

several passenger railroads to study

their equipment and their emergency

response and training programs.

At that same meeting, the passenger

railroads agreed to provide stronger

supervisory oversight of their

emergency response and training

programs, and stated that they would

offer additional, structured ‘‘hands-on’’

training to their train crews concerning

the removal of emergency windows and

passenger evacuation. They also agreed

to develop programs for recurring

passenger car inspections, emphasizing

checking of emergency equipment such

as windows, tools, and fire

extinguishers. Further, they agreed to

improve their methods of apprising

passengers of emergency information, to

include seat drops, placards inside each

car, and messages in on-board

magazines. While FRA is encouraged

that passenger railroads have already

begun to incorporate the

recommendations of the Volpe Report

into their own emergency preparedness

plans, more progress by the entire

industry is needed.

As a result of concerns raised about

the safety of the operation of rail

passenger service, Congress enacted

section 215 of the Federal Railroad

Safety Authorization Act of 1994, Public

Law No. 103–440, 108 Stat. 4619, 4623–

4624 (November 2, 1994), entitled

‘‘Passenger Car Safety Standards.’’

Section 215, as now codified at 49

U.S.C. 20133, reads as follows:

§ 20133. Passenger cars.

(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
8332 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

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. 49 CFR 1.49(m).

FRA is committed to the maximum

feasible use of collaborative processes in

the development of safety regulations.

Consistent with the intent of Congress

that FRA consult with the railroad

industry, FRA invited various

organizations to participate in a working

group (Working Group) to focus on the

issues related to passenger train

emergency preparedness and build the

framework for the development of a

Notice of Proposed Rulemaking (NPRM)

and, ultimately, a final rule. FRA held

its first Working Group meeting on

August 8, 1995. The 33-member

Working Group was comprised of

representatives from the following

organizations:

American Public Transit Association

(APTA),

Amtrak,

Association of American Railroads

(AAR),

Brotherhood of Locomotive Engineers

(BLE),

CALTRAIN,

FRA,

LIRR,

Maryland Mass Transit Administration

(MARC),

Massachusetts Bay Transportation

Authority (MBTA),

METRA,

METRO-NORTH,

METROLINK,

National Association of Railroad

Passengers (NARP),

NTSB,

New Jersey Transit Rail Operations, Inc.

(NJTR),

Northern Indiana Commuter

Transportation District (NICTD),

PATH,

Safe Travel America (STA),

SEPTA,

TRI-RAIL,

TSC,

United Transportation Union (UTU),

and

VRE.

Regulations covering rail passenger

equipment safety standards—

inspection, testing, and maintenance of

passenger equipment; equipment design

and performance criteria related to

passenger and crew survivability in the

event of a train accident; and the safe

operation of passenger train service—

supplementing existing railroad safety

standards, will be covered by a separate

rulemaking and are being addressed by

a separate working group. Persons

wishing to receive more information

regarding this other rulemaking should

refer to FRA Docket No. PCSS–1 and

contact either Mr. Thomas Peacock,

Staff Director, Motive Power and

Equipment Division, Office of Safety

Assurance and Compliance, RRS–14,

FRA, 400 Seventh Street, S.W.,

Washington, D.C. 20590 (telephone

202–632–3338), or Daniel L. Alpert,

Esq., Trial Attorney, Office of Chief

Counsel, FRA, 400 Seventh Street, S.W.,

Washington, D.C. 20590 (telephone

202–632–3186).

The proposed rule was developed by

FRA in consultation with the Working

Group. The proposal incorporates

comments submitted by the Working

Group in response to a preliminary draft

of the proposed rule text. FRA expects

that the Working Group will help FRA

develop the final rule based on a

consensus process, with facts and

analysis flowing from both the Working

Group’s deliberations and information

submitted by commenters on this

NPRM. In accordance with 49 U.S.C.

20133(d), the evolving positions of the

Working Group members—as reflected

in the minutes of the group meetings

and associated documentation, together

with data provided by the membership

during their deliberations—will be

placed in the public docket of this

rulemaking. All comments submitted in

response to this NPRM will be provided

to the Working Group for their

consideration in preparation of the final

rule.

FRA convened the first meeting of the

Working Group on August 8, 1995, by

announcing that the purpose of the

meeting was to provide an opportunity

to collectively focus on evaluating

issues related to passenger train

emergency preparedness, as well as to

develop and formulate plans and

programs that would culminate in a

final rule. The discussion focused on

the key issues of emergency notification,

training of railroad employees and

emergency responders, suitability of onboard emergency equipment, and the

Volpe Report. While FRA did not limit

the Working Group’s discussions, the

agency requested that, at a minimum,

the following topics and issues should

be considered and addressed during the

consultation process for possible

inclusion in the rule:

• Types of safety equipment that

should be required in each passenger

car (e.g., fire extinguishers, saws,

hammers, and flashlights) including

where the equipment should be located,

who should have access to it, and how

to avoid pilferage;

• Training for railroad employees on

the use of on-board emergency

equipment;

• Frequency of inspection of on-board

emergency equipment;

• Effective marking of emergency

windows on each passenger car;

• Informing passengers about safety

procedures and emergency equipment,

including locations of exit doors and

windows;

• Demonstrations by on-board

crewmembers of emergency procedures

and exits after major station stops;

• Communication capabilities of onboard crewmembers;

• Requiring on-board crewmembers

to be trained to provide cardiopulmonary resuscitation (CPR) and/or

first aid treatment;

• Ensuring that on-board

crewmembers have contact telephone

numbers for control centers and local

authorities;

• Requiring preparation of an

emergency preparedness plan, including

periodic exercises to test employee

knowledge of proper procedures

involving passenger illness or injury,

stalled trains, evacuation procedures,

derailments, collisions, severe weather,

and security threats;

• Coordinating applicable portions of

emergency preparedness plans between

passenger railroads and freight railroads

that host these passenger operations;

• Extent to which safety action plans

should be regulated in terms of content

or format, and whether such plans

should be subject to FRA review and

approval;

• Training for auxiliary individuals

participating in passenger emergencies

(e.g., control center employees, on-board

service staff, and appropriate

supervisory and maintenance

personnel);

• Training for emergency responders

along passenger corridor routes;

• Accounting for the unique

emergency preparedness concerns

raised by passenger operations through

tunnels, on elevated structures, and in

electrified territory;

• Level of training specificity

required for each category of employee;

• Requiring passenger railroads to

develop and update inter-organizational

emergency protocols with local

communities, in order to augment safety

action plans;
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8333

• Providing emergency responders

with accurate passenger counts; and

• Emergency lighting in passenger

cars (e.g., floor strip lighting, flood

lighting, and emergency exit lighting),

including standards for testing and

reliability.

FRA deliberated at length with

members of the Working Group about

what the proposed rule would demand

of affected railroads, in order to achieve

the goal of optimizing their level of

preparedness when faced with

passenger train emergencies. The

consensus was that the final rule needed

to be flexible in its requirements to

allow each railroad to address the

unique characteristics of its individual

operation. The Working Group

recommended that FRA require each

affected railroad to prepare a formal

emergency preparedness plan covering

broad elements, such as: employee and

emergency responder training; on-board

crewmember responsibilities;

communication between the train crew

and the control center, and between the

control center and the emergency

responders; delineation of passenger

railroad and freight railroad

responsibilities in cases of joint

operations; and operations in tunnels or

over elevated structures. However, the

group urged FRA to afford railroads

considerable latitude to design and

administer emergency preparedness

plans that best address each railroad’s

specific safety issues and concerns, with

each plan then subject to review and

approval by FRA.

FRA incorporated the Working

Group’s recommendations into a draft

NPRM, and mailed the draft to the

group on December 14, 1995, along with

a copy of the minutes of the first

meeting of the Working Group. Copies

of both documents, and other relevant

enclosures, have been placed in the

public docket for this rulemaking. The

34-member Working Group held its

second meeting on February 6–7, 1996,

and was comprised of representatives

from the same organizations in

attendance at the first Working Group

meeting. The Working Group reviewed

the draft and presented its comments,

and a copy of the minutes of the second

meeting of the group has also been

included in the rulemaking docket. The

Working Group’s comments were then

incorporated into this NPRM. Through

subsequent communication with the

Working Group, additional specificity

has been incorporated into this

proposal.

While FRA has focused on crafting a

rule containing comprehensive

requirements in connection with

railroads adopting, implementing, and

complying with their emergency

preparedness plans, many details

remain unresolved concerning the

enforcement obligations that FRA will

impose in the final rule. Among the

broad range of possibilities, the final

rule could impose a ‘‘reasonable care’’

standard and focus on achieving

substantial compliance, with an

emphasis on determining whether each

railroad has demonstrated a general

effort to fulfill each of the elements of

its emergency preparedness plan. Under

this approach, for example, FRA would

verify whether a railroad has established

a training program for its employees on

the applicable provisions of the

emergency preparedness plan, and

could impose a civil penalty on a

railroad for failing to comply with this

basic element of emergency

preparedness. However, if FRA

concluded that the railroad had

properly adopted a training program,

but during the occurrence of an actual

emergency several employees failed

(under the stress of the situation) to

fulfill all of their responsibilities under

the emergency preparedness plan, FRA

would not penalize the railroad. Also, if

a railroad failed to designate an

employee to maintain a current list of

emergency telephone numbers, for use

by control center personnel to notify

outside emergency responders, adjacent

rail modes of transportation, and

appropriate railroad officials that a

passenger train emergency has occurred,

FRA could clearly penalize the railroad

for this omission. However, if a

railroad’s plan properly provided for the

maintenance of the list of emergency

telephone numbers, but one telephone

number on a long list of accurate

numbers was found by FRA to be out of

date, and thus incorrect, the railroad

would not face the imposition of a civil

penalty.

As an alternative, FRA could maintain

strict oversight by requiring compliance

with every individual element of the

emergency preparedness plan, and

impose a civil penalty in every instance

in which a railroad fails to achieve

compliance. Accordingly, under this

approach, a railroad could be penalized

for failing to constantly update its list of

emergency telephone numbers,

neglecting to distribute applicable

portions of its emergency preparedness

plan to all on-line emergency

responders, or operating a train with an

incorrect type of on-board emergency

equipment. Rather than stress the

concept of determining the overall level

of emergency preparedness achieved by

a railroad before the emergency occurs,

this enforcement philosophy would

specifically focus on whether the

railroad in fact complied with all of the

written emergency plan procedures for

implementing each plan element. FRA

invites commenters to address the

questions of what compliance

obligations should exist in the final rule,

in the context of requiring railroads to

adopt and implement procedures for

achieving emergency preparedness, and

what enforcement policy should be

exercised by the agency regarding those

obligations. Commenters are also asked

to review the language of the section-bysection analysis and rule text of the

proposed rule and to offer suggestions

on whether FRA’s expectations for

compliance with the emergency

preparedness plan elements are too

rigid, or not strict enough.

In drafting the final rule, FRA also

expects to incorporate all relevant

information derived from the

investigation of the accident involving

Amtrak train no. 1, the ‘‘Sunset

Limited,’’ which occurred in Hyder,

Arizona on October 9, 1995. In that

accident, the initial notification was

made by the Amtrak locomotive

engineer to the Southern Pacific

Transportation Company (SP) train

dispatcher’s office in Denver, Colorado,

which then notified the appropriate

local emergency response agencies. The

SP yardmaster in Phoenix Yard also

dialed 911 after hearing the engineer’s

radio transmissions to the train

dispatcher.

While the local emergency responders

stated that the accident was handled

well by all parties involved, the

responders noted that they were

hampered in reaching the accident site

by extremely rough terrain, initially

negotiable only by four-wheel drive

vehicles until graders and earth movers

created a trail for conventional vehicles.

The responders were somewhat

confused by being provided with only a

milepost location instead of a more

familiar identifier. The responders were

also frustrated by the lack of an accurate

passenger count, but Amtrak has stated

that once it has satellite cellular

telephone capabilities train conductors

will report passenger counts to a central

telephone number after leaving each

station. In addition, the responders

indicated that, although the emergency

lighting did not function on the

overturned passenger cars, passengers

were able to disembark through the car

doors and emergency windows.

FRA also expects to include

requirements in the final rule relating to

emergency egress from passenger trains,

based upon information obtained from

the investigations of the two recent train

accidents in New Jersey and Maryland.
8334 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

In the first accident, a near-head-on

collision occurred on February 9, 1996

between NJTR trains 1254 and 1107 at

milepost 2.8, on the borderline of

Secaucus and Jersey City, New Jersey.

Of the 331 passengers and crew on both

trains, two crewmembers and one

passenger were fatally injured, and an

additional 162 passengers reported

minor injuries. In the second accident,

a near-head-on collision occurred on

February 16, 1996 between MARC train

286 and Amtrak train 29 on CSX

Transportation, Inc., at Silver Spring,

Maryland, milepost 8.3. The accident

resulted in 11 fatalities, consisting of

three crewmembers and eight

passengers, and at least 12 non-fatal

injuries to passengers of the MARC

train.

While many of the questions raised by

the New Jersey and Maryland train

accidents are being addressed by the

working group which is considering

regulations covering rail passenger

equipment safety standards, the

important issue of emergency egress

must be addressed by this rulemaking.

Specifically, the Silver Spring accident

raised serious concerns as to whether

MARC passengers had sufficient

information about the location and

operation of emergency exits to enable

them to find and use those exits in an

emergency or accident. FRA believes

that all commuter and intercity

passenger railroads should review their

practices, in addition to marking the

exits, for providing this information. On

February 20, 1996, FRA issued

Emergency Order No. 20 (Notice No. 1),

which required prompt action to

immediately enhance passenger train

operating rules and emergency egress

and to develop an interim system safety

plan addressing cab car forward and

multiple unit (MU) operations. 61 FR

6876, Feb. 22, 1996. In pertinent part,

Notice No. 1 of the Emergency Order

stated:

[T]here is a need to ensure that emergency

exits are clearly marked and in operable

condition on all passenger lines, regardless of

the equipment used or train control system.

FRA’s regulations generally require that all

passenger cars be equipped with at least four

emergency opening windows, which must be

designed to permit rapid and easy removal

during a crisis situation. The investigation of

the Silver Spring accident has raised some

concerns that at least some of the occupants

of the MARC train attempted unsuccessfully

to exit through the windows. Whether those

same people eventually were among those

who exited safely, or whether those persons

were attempting to open windows that were

not emergency windows is not known at this

time. However, there is sufficient reason for

concern to require that measures be taken to

ensure that such windows are readily

identifiable and operable when they are

needed. Accordingly, the order requires that

any emergency windows that are not already

legibly marked as such on the inside and

outside be so marked, and that a

representative sample of all such windows be

examined to ensure operability. (FRA Safety

Glazing Standards, 49 CFR Part 223, require

that each passenger car have a minimum of

four emergency window exits ‘‘designed to

permit rapid and easy removal during a crisis

situation.’’)

61 FR 6880, Feb. 22, 1996.

On February 29, 1996, FRA issued

Notice No. 2 to Emergency Order No. 20

to refine three aspects of the original

order, including providing more

detailed guidance on the emergency

egress sampling provision. 61 FR 8703,

Mar. 5, 1996. In pertinent part, Notice

No. 2 of the Emergency Order stated:

The original order required but did not set

parameters for testing a representative

sample of emergency exits. The alteration to

the emergency egress provisions requires that

sampling of emergency window exits be

conducted in conformity with either of two

alternate methods commonly recognized for

such efforts. This modification provides a

degree of uniformity industry wide. These

methods require sampling meeting a 95

percent confidence level that all emergency

window exits operate properly (i.e., the

methods do not accept a defect rate of 5

percent). Although the original order would

have required testing all exits on a specific

series or type of car if one such car had a

defective window exit, the amended order

permits the use of these commonly accepted

sampling techniques to determine how many

additional windows in [sic] test. In general,

these principles require that the greater the

percentage of windows initially found

defective, the greater the percentage of

windows that will have to be tested.

In addition, FRA has modified the

emergency egress portion of the order to

clarify that the exterior marking requirement

applies to those windows that may be

employed for access by emergency

responders, which may be windows other

than, or in addition to, those designed for

emergency egress for passengers. In addition,

FRA has modified the interim system safety

plan portion of the order to require

discussion of the railroad’s programs and

plans for liaison with and training of

emergency responders with respect to

emergency access to passengers. The original

order required discussion only of methods

used to inform passengers of the location and

method of emergency exits.

61 FR 8703, Mar. 5, 1996.

On March 12, 1996, in response to the

MARC train accident in Silver Spring,

Maryland on February 16, 1996, the

NTSB issued ‘‘Safety

Recommendations’’ to both the

Maryland Mass Transit Administration

(R–96–4 through R–96–6) and FRA (R–

96–7). The NTSB was concerned

because the emergency quick-release

mechanisms for the exterior doors on

MARC’s Sumitomo rail cars are located

in a secured cabinet some distance from

the doors that they control, and the

emergency controls for each door are

not readily accessible and identifiable.

The NTSB recommends that emergency

quick-release mechanisms for exterior

doors on MARC cars be well marked

and relocated, so that they are

immediately adjacent to the door

control and readily accessible for

emergency escape. The NTSB also noted

that the left and right rear exterior side

doors of the first car and the front

interior end door and the right front

exterior door of the second car were

jammed, and observed that none of the

car doors had removable windows or

pop-out emergency escape panels (kick

panels) for use in an emergency.

In addition, the NTSB stated that

several train passengers were unaware

of the locations of emergency exits, and

none knew how to operate them. The

NTSB found that the interior emergency

window decals were not prominently

displayed and that one car had no

interior emergency window decals.

Also, the exterior emergency decals

were often faded or obliterated, and the

information on them, when legible,

directed emergency responders to

another sign at the end of the car for

instructions on how to open emergency

exits. The NTSB recommends that all

emergency exits be clearly identified,

with easily understood operating

instructions prominently located on

each car’s interior for use by passengers

and on the exterior for use by

emergency responders.

Based upon its investigation, the

NTSB recommends that FRA:

Inspect all commuter rail equipment to

determine whether it has: (1) easily

accessible interior emergency quick-release

mechanisms adjacent to exterior passageway

doors; (2) removable windows or kick panels

in interior and exterior passageway doors;

and (3) prominently displayed retroreflective

signage marking all interior and exterior

emergency exits. If any commuter equipment

lacks one or more or these features, take

appropriate emergency measures to ensure

corrective action until these measures are

incorporated into minimum passenger car

safety standards. (Class 1, Urgent Action) (R–

96–7)

Safety Recommendation R–96–7 at page

3.

On March 26, 1996, FRA convened a

joint meeting of the Passenger Train

Emergency Preparedness Working

Group and the Passenger Equipment

Safety Standards Working Group to

discuss the NTSB’s recommendations

and incorporate the Safety Board’s

findings, as appropriate, into each

working group’s rulemaking proceeding.
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8335

Fifty-seven members from 21 different

organizations attended the joint

meeting. Although some of the

recommendations involving structural

modifications to rail equipment will be

dealt with by the Passenger Equipment

Safety Standards Working Group, the

remaining NTSB recommendations

involving marking, inspection,

maintenance, and repair of emergency

exits are reflected in proposed

§ 223.9(d), entitled ‘‘Requirements for

new or rebuilt equipment,’’ and

proposed § 239.17, entitled ‘‘Emergency

exits.’’ The Section-by-Section Analysis

contains a detailed discussion of FRA’s

proposed requirements, particularly in

light of the two recent accidents in New

Jersey and Maryland and the NTSB’s

safety investigations and

recommendations.

In a letter to FRA dated June 24, 1996,

Mr. Donald N. Nelson, President of

Metro-North and Chairperson of APTA’s

Commuter Railroad Committee,

announced that commuter railroads

nationwide are implementing a series of

rail passenger safety initiatives building

on the safety provisions of FRA’s

Emergency Order No. 20 and the

NTSB’s Safety Recommendations R–96–

4 through R–96–7. In pertinent part, all

commuter rail authorities have

committed to early voluntary

implementation of the emergency

preparedness requirements proposed in

this NPRM, including requiring

inspection and testing of all emergency

window exits as part of routine car

maintenance to ensure correct operation

and ease of egress, offering emergency

responder training for every jurisdiction

within each commuter railroad’s service

area, and educating passengers on the

use of emergency exits on commuter

trains. The commuter railroads also

indicated that each one will ensure the

safety of its operation by adopting a

comprehensive system safety plan that:

(a) Defines the overall safety effort,

how it is to be implemented and the

staff required to maintain it;

(b) Establishes the safety interface

within the railroad, as well as with its

key outside agencies;

(c) Clearly indicates Senior

Management support for implementing

the safety plan and the railroad’s overall

commitment to safety;

(d) Establishes the safety philosophy

of the organization and provides the

means for implementation;

(e) Defines the authority and

responsibilities of the safety

organization and delineates the safety

related authority and responsibilities of

other departments; and

(f) Incorporates safety goals and

objectives into the overall corporate

strategic plan.

APTA’s Commuter Railroad Committee

letter at pages 1 and 2.

As part of the ongoing review process

within DOT, and subsequent to the

Working Group’s previous opportunities

to review the proposed rule text, FRA

implemented changes to the draft

regulatory text and preamble. FRA

initiated these changes in order to

strengthen the rule’s requirements and

establish more objective criteria for

FRA’s review of each railroad’s

emergency preparedness plan. In a letter

dated December 27, 1996, FRA sent a

copy of the revised regulatory text to

members of the Working Group, and

requested comments on issues that the

members wished to see included in the

preamble section of the proposal. FRA

requested that all comments be

submitted to FRA by the close of

business on January 8, 1997.

Development of the Passenger Safety

Program

As discussed above, this proposed

rule is one element of a comprehensive

effort to address the safety of rail

passenger service. In addition to this

rulemaking, FRA is currently addressing

related issues in several contexts.

Recent actions addressing passenger

safety needs have included, for instance,

Emergency Order No. 20, which

addressed on an interim basis key issues

regarding railroad operating rules,

inspection of required emergency

window exits, and emergency exit

signage and marking.

In the Passenger Equipment Safety

Standards Working Group, FRA is

examining possible requirements for

improved emergency egress features for

both retrofit and new construction.

Affected railroads have already

completed, or will complete by the end

of this calendar year, the removal of

latches requiring special tools for access

to manual releases on powered doors.

Separately, FRA is reviewing the totality

of emergency egress requirements and

the issue of their overall adequacy,

including the relocation of manual

releases to locations immediately

adjacent to end vestibule doors. FRA

anticipates that these efforts will be

advanced through a collaborative

rulemaking process. However, if

necessary to ensure prompt action, FRA

may propose specific requirements

based upon its own staff analysis.

In the context of improving railroad

communications, the Railroad Safety

Advisory Committee (RSAC) has

established a working group to

specifically address communication

facilities and procedures, with a strong

emphasis on passenger train emergency

requirements. FRA expects that that

group will report recommendations to

the RSAC early in 1997. FRA anticipates

that those recommendations will

address the issue of whether there

should be redundant communications

capability on all passenger trains.

Although that rulemaking will establish

minimum safety requirements with

respect to communications equipment,

it should be noted that intercity and

commuter railroads already make

extensive provision for ensuring

communication capabilities during

emergencies.

FRA plans a four-phase process to

address emergency preparedness. In

1994, FRA distributed the Volpe Report

described above and encouraged

railroads to examine their existing

programs to determine what

improvements could be made. This

rulemaking represents the second step

in this process, formalizing a planning

requirement and identifying certain

mandatory elements. The third phase

will begin as FRA reviews railroad plans

to determine that the issues presented

by the Volpe Report and the rule have

been adequately addressed within the

varying contexts of the commuter

authority operations. FRA will conduct

a detailed review of each plan.

Following review and formal approval

of written plan submissions, it will also

be necessary for FRA to determine how

the program is being implemented in

the field. FRA will also be interested in

determining how this effort is being

integrated into the overall system safety

planning process that commuter

authorities have agreed to undertake.

FRA is optimistic that this approach

will yield positive results, promoting

creativity and cross-fertilization of the

emergency preparedness planning

process through FRA, APTA, and other

channels. This give-and-take approach

should facilitate standardization of

matters involving interface with

passengers, while permitting continued

adaptation of programs to local needs.

The fourth phase would involve

FRA’s review, after having gained at

least a full year of actual experience

under the standards proposed here, of

the implementation and effectiveness of

the standards and related voluntary

developments. In this phase of activity,

FRA would work with interested parties

to evaluate whether further rulemaking

or other action might be necessary to

ensure that, for each program element,

standards and practices are sufficiently

precise and stringent to achieve the

desired improvements in emergency
8336 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

preparedness. Further, this review will

determine whether experience in

working with emergency responders

indicates that additional program

elements should be addressed.

Section-by-Section Analysis

FRA proposes to amend Part 223 to

Title 49, Code of Federal Regulations by

adding three new definitions and

requiring railroads operating passenger

train service to clearly mark emergency

windows. FRA also proposes to add Part

239 to Title 49, Code of Federal

Regulations specifically devoted to

prescribing minimum Federal safety

standards concerning the preparation,

adoption, and implementation of

emergency preparedness plans by

railroads connected with the operation

of passenger trains.

1. Definitions: Section 223.5

Section 223.5 would be reorganized

and definitions of three important terms

employed in the proposed passenger

train emergency preparedness

regulations would be added. The three

new defined terms are ‘‘emergency

responder,’’ ‘‘passenger train service,’’

and ‘‘railroad.’’ For ease of reference,

FRA proposes to define the term

‘‘railroad’’ so as to include the statutory

(49 U.S.C. 20102) definitions of both

‘‘railroad’’ and ‘‘railroad carrier’’ and to

clarify that those who provide railroad

transportation directly or through an

operating contractor are railroad

carriers. Thus, the term ‘‘railroad’’ is

clearly intended to include commuter

authorities. These terms are intended to

have the same meaning as in proposed

part 239 of this chapter.

Of course, the term ‘‘railroad,’’ as

used by FRA in the context of regulating

passenger train emergency

preparedness, is not controlled by the

definitions of ‘‘rail carrier’’ and

‘‘railroad’’ set forth in 49 U.S.C. 20102

(5) and (6). Likewise, FRA does not

intend for its definition of ‘‘railroad’’ to

have any bearing on how the term is

used for purposes of the regulatory

activities of the Surface Transportation

Board.

2. Requirements for New or Rebuilt

Equipment: Section 223.9

In accordance with the requirements

of 49 CFR 223.9(c) and 223.15(c), all

passenger cars must be equipped with at

least four emergency windows, which

must be designed to permit rapid and

easy removal during a crisis situation.

Proposed paragraph 223.9(d) requires

that all windows intended by a railroad

to be used during an emergency

situation be properly marked inside and

outside, and that the railroad post clear

and understandable instructions for

their use at the designated locations.

Paragraph 223.9(d)(1) requires that the

emergency windows be conspicuously

and legibly marked on the inside of the

car with luminescent material. FRA

realizes that during an emergency the

main power supply to the passenger

cars may become inoperative and that

crewmembers with portable flashlights

may be unavailable. Since lack of clear

identification or lighting could make it

difficult for passengers to find the

emergency exits, the proposed rule

requires luminescent material on all

emergency windows to assist and speed

passenger egress from the train during

an emergency. The marking of the

emergency windows must be

conspicuous enough so that a

reasonable person, even while enduring

the stress and panic of an emergency

evacuation, can determine where the

closest and most accessible emergency

route out of the car is located. In

addition, while this proposed section

does not prescribe a particular brand,

type, or color of luminescent paint or

material that a railroad must use to

identify a window exit, FRA expects

each railroad to select a material durable

enough to withstand the daily effects of

passenger traffic, such as the contact

that occurs as passengers enter and

leave the cars.

METROLINK, in noting that the last

line of paragraph 223.9(d) requires

‘‘each railroad [to] post clear and legible

operating instructions at or near such

exits,’’ stated that it assumes that the

referenced instructions relate to the

doors rather than the windows.

Paragraph 223.9(d)(2) requires that the

emergency windows intended for

emergency access by emergency

responders for extrication of passengers

be marked with retroreflective material.

Since FRA recognizes that not every

window will be equipped for emergency

access, railroads are required to choose

a retroreflective, unique and easily

recognizable symbol that will readily

attract the attention of emergency

responders. The proposed rule does not

require a specific size or shape for the

symbol, but FRA expects the railroad’s

emergency preparedness plan

developed pursuant to § 239.13 of this

chapter to contain a provision detailing

emergency responder access (along with

passenger car egress), consistent with

the evacuation strategy formulated

jointly by the passenger train operator

and the emergency responder

organizations, in accordance with the

emergency responder liaison provision

set forth in § 239.13(a)(5) of this chapter.

Of course, while the proposed rule

would not require emergency

responders to participate in evacuation

planning or strategy with the railroads,

the railroads would be required to offer

liaison assistance. FRA is working to

identify an appropriate marking that

might be capable of universal

recognition. Although the proposed rule

allows a marking that could consist of

a symbol or words (such as ‘‘RESCUE

ACCESS’’), FRA reserves the right to be

more prescriptive in the final rule based

upon a uniform pattern.

The proposed rule requires railroads

to post clear and understandable

instructions at designated locations

describing how to operate the

emergency windows. This paragraph

does not mandate that railroads use

specific words or phrases to guide the

passengers and emergency responders.

Instead, each railroad should evaluate

the operational characteristics of its

emergency windows, and select key

words or diagrams that adequately

inform the individuals who must use

them. While railroads are encouraged to

post comprehensive instructions, FRA

also realizes that during an emergency

situation every additional moment

devoted to reading and understanding

access or egress information places lives

at risk. In addition, FRA would already

expect passengers and emergency

responders to be familiar with the

location and operation of the railroad’s

emergency windows as a result of

emergency responder liaison activities

and passenger awareness programs

conducted in accordance with §§ 239.13

(a)(5) and (a)(7) of this chapter.

3. Appendix B to 49 CFR Part 223

FRA plans to revise Appendix B to 49

CFR Part 223—Schedule of Civil

Penalties, to include penalties for

violations of the provisions of § 223.9(d)

to be included in the final rule. Because

such penalty schedules are statements

of policy, notice and comment are not

required prior to their issuance. See 5

U.S.C. 553(b)(3)(A). Nevertheless,

commenters are invited to submit

suggestions to FRA describing the types

of actions or omissions that would

subject a person to the assessment of a

civil penalty. Commenters are also

invited to recommend what penalties

may be appropriate, based upon the

relative seriousness of each type of

violation.

4. Purpose and Scope: Section 239.1

Section 239.1(a) states that the

purpose of this part is to reduce the

magnitude of casualties in railroad

operations by ensuring that railroads

involved in passenger train operations

can effectively and efficiently manage

emergencies. Subsection (b) states that
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8337

these regulations provide minimum

standards for the subjects addressed,

and the affected railroads may adopt

more stringent requirements, so long as

they are not inconsistent with this part.

FRA does not in any way intend that the

subject matter of 49 CFR Part 239,

Passenger Train Emergency

Preparedness, be read to impose

burdens or requirements on emergency

responders who either participate with

railroads in emergency simulations

involving the operation of passenger

train service or respond to actual

emergency situations, or on any other

person who may be involved with the

aftermath of a passenger train

emergency not specified in proposed

§ 239.3 concerning applicability.

Accordingly, FRA does not intend to

restrict a State from adopting a law,

rule, regulation, order, or standard

affecting emergency responders.

5. Application: Section 239.3

As a general matter, FRA proposes

that this rule apply to all railroads that

operate passenger train service on the

general railroad system of

transportation, provide commuter or

other short-haul passenger train service

in a metropolitan or suburban area, or

host the operations of such passenger

train service. A public authority that

indirectly provides passenger train

service by contracting out the actual

operation to another railroad or

independent contractor would be

regulated by FRA as a railroad under the

provisions of the proposed rule.

Although the public authority would

ultimately be responsible for the

development and implementation of an

emergency preparedness plan (along

with all related recordkeeping

requirements), the railroad or other

independent contractor that operates the

authority’s passenger train service

would be expected to fulfill all of the

responsibilities under this part with

respect to emergency preparedness

planning, including implementation.

The proposed rule is structured to

apply to intercity and commuter service,

not tourist operations. At a later time,

FRA may propose application of the

rule, or some portion thereof, to tourist,

scenic, historic, and excursion railroads.

FRA’s regulatory authority permits it to

tailor the applicability sections of its

various regulations so as to expand or

contract the populations of railroads

covered by a particular set of

regulations. FRA has had jurisdiction

over all railroads since the Federal

Railroad Safety Act of 1970 was

enacted.

In considering the issue of requiring

emergency preparedness planning by

tourist and historic railroad operators in

the context of this rulemaking, FRA has

not yet had the opportunity to fully

consult with those railroads and their

associations to determine appropriate

applicability in light of financial,

operational, or other factors that may be

unique to such railroad operations.

After appropriate consultation with the

excursion railroad associations takes

place, emergency preparedness

requirements for these operations may

be prescribed by FRA that are different

from those affecting other types of

passenger train operations. These

requirements may be more or less

onerous, or simply different in detail,

depending in part on the information

gathered during FRA’s consultation

process.

The Federal Railroad Safety

Authorization Act of 1994 instructed

FRA to examine the unique

circumstances of tourist railroads when

establishing safety regulations. The Act,

which amended 49 U.S.C. 20103, stated

that:

In prescribing regulations that pertain to

railroad safety that affect tourist, historic,

scenic, or excursion railroad carriers, the

Secretary of Transportation shall take into

consideration any financial, operational, or

other factors that may be unique to such

railroad carriers. The Secretary shall submit

a report to Congress not later than September

30, 1995, on actions taken under this

subsection.

Public Law No. 103–440, § 217, 108

Stat. 4619, 4624 (November 2, 1994). In

addition, section 215 of that Act

specifically permits FRA to exempt

equipment used by tourist, historic,

scenic, and excursion railroads to

transport passengers from the initial

regulations that must be prescribed by

November 2, 1997. 49 U.S.C.

20133(b)(1). In its report to Congress

entitled ‘‘Regulatory Actions Affecting

Tourist Railroads,’’ FRA responded to

the direction in the statutory provision

and also provided additional

information related to tourist railroad

safety for consideration of the Congress.

FRA will address the emergency

preparedness concerns for these unique

types of operations at a later date in a

separate rulemaking proceeding. To

facilitate resolution of this issue, and a

significant number of related issues, the

Railroad Safety Advisory Committee

(RSAC) has established a Tourist and

Historic Railroads Working Group. As a

matter of cost efficiency, the Working

Group may elect to cover emergency

preparedness planning for tourist

railroads as part of a package of touristspecific safety proposals during a multiday consultation on several rulemaking

dockets. FRA would then issue a Notice

of Proposed Rulemaking addressing

issues in several dockets that pertain to

these smaller passenger operations.

In § 239.3(b)(2), FRA proposes that the

requirements of this part would not

apply to the operation of private

passenger train cars, including business

or office cars and circus trains. While

FRA believes that a private passenger

car operation should be held to the same

basic level of emergency preparedness

planning as other passenger train

operations, FRA intends to take into

account the financial burden imposed

by requiring private passenger car

owners and operators to conform to the

requirements of this part. Private

passenger cars are often hauled by host

railroads such as Amtrak and commuter

railroads, and these hosts often impose

their own safety requirements on the

operation of the private passenger cars.

Pursuant to this part, the host railroads

would already be required to have

emergency preparedness plans in place

to protect the safety of their own

passengers; the private car passengers

would presumably benefit from these

plans even without the rule directly

covering private car owners or

operators. In the case of non-revenue

passengers, including employees and

guests of railroads that are transported

in business and office cars, as well as

passengers traveling on circus trains, the

railroads would provide for their safety

in accordance with existing safety

operating procedures and protocols

relating to normal freight train

operations.

6. Preemptive Effect: Section 239.5

Section 239.5 informs the public as to

FRA’s views regarding the preemptive

effect of the proposed rule. While the

presence or absence of such a section

does not in itself affect the preemptive

effect of this part, it informs the public

concerning the statutory provision

which governs the preemptive effect of

these rules. Section 20106 of title 49 of

the United States Code provides that all

regulations prescribed by the Secretary

relating to railroad safety preempt any

State law, regulation, or order covering

the same subject matter, except a

provision necessary to eliminate or

reduce an essentially local safety hazard

that is not incompatible with a Federal

law, regulation, or order and that does

not unreasonably burden interstate

commerce. With the exception of a

provision directed at an essentially local

safety hazard, 49 U.S.C. 20106 preempts

any State regulatory agency rule

covering the same subject matter as

these regulations proposed today.

Of course, the subject matter of these

regulations covers only the preparation,
8338 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

adoption, and implementation of

emergency preparedness plans for

passenger train operations. Accordingly,

States are in no way preempted from

regulating any of the training

requirements or other activities of the

non-railroad emergency responders who

arrive at the scene of an emergency after

a railroad’s emergency preparedness

plan has been activated.

7. Definitions: Section 239.7

This section contains an extensive set

of definitions to introduce the

regulations. FRA intends these

definitions to clarify the meaning of

important terms as they are used in the

text of the proposed rule. The proposed

definitions are carefully worded in an

attempt to minimize the potential for

misinterpretation of the rule. Several of

the definitions introduce new concepts

which require further discussion.

Although the definition of

‘‘crewmember’’ is primarily intended to

cover persons who either perform onboard functions connected with the

movement of a train (e.g., a locomotive

engineer, conductor) or provide onboard service (e.g., an Amtrak food

service employee or sleeping car

attendant), a deadheading employee is

covered by the definition as well.

Accordingly, such an employee could

count as a ‘‘qualified’’ employee under

§ 239.101(a)(2)(iv) for purposes of

meeting a railroad’s minimum on-board

staffing requirements for its emergency

preparedness plan. However, during a

passenger train emergency situation, offduty employees would also be expected

to assume their appropriate roles under

the railroad’s emergency preparedness

plan and assist the passengers.

METROLINK indicated that on some

trains it has conductors who perform

the function of fare enforcement, and

recommended that FRA exclude these

individuals from the definition of

‘‘crewmember.’’ METROLINK also

requested that FRA exclude contract

food workers from the definition of

‘‘crewmember.’’

The term ‘‘control center’’ envisions

not only the traditional railroad concept

of a train dispatcher’s office, but also

railroad offices that are identified as

‘‘control centers’’ but only monitor

railroad operations, and modern system

operations centers such as those of CSX

Transportation, Inc., in Jacksonville,

Florida and the Burlington Northern

Santa Fe Corporation in Ft. Worth,

Texas. The term does not include a

location on a railroad with

responsibility for the security of railroad

property, personnel, or passengers.

It is very likely that control center

personnel are located at facilities which

are remote from the right-of-way. These

facilities should consist of the necessary

command, control, and communications

equipment to maintain normal train

operations, to control electric traction,

and to maintain communications

throughout the passenger train system.

In addition to these functions, the

control center should help coordinate

responses to emergencies by using

equipment such as radio

communications systems, direct

‘‘hotline’’ telephones, wayside power

removal controls, and ventilation

controls under the direction of

emergency responders, according to the

protocols and procedures of the

emergency preparedness plan.

Typical emergency scenarios

encompassed by the term ‘‘emergency’’

or ‘‘emergency situation’’ involving a

significant threat to the safety or health

of one or more persons requiring

immediate action may include one or

more of the following: illness or injury;

a stalled train in a tunnel or on a bridge;

collision with a person, including

suicides; collision or derailment; fire;

collision or derailment with a fire;

collision or derailment with water

immersion; severe weather conditions;

natural disasters; and security situations

(e.g., bombings, bomb threats, hijacking,

civil disorders, and other acts of

terrorism).

The term ‘‘qualified,’’ as used in the

rule, means employees who are trained

under an applicable emergency

preparedness plan’s components and

implies no provision or requirement for

Federal certification of persons who

perform those functions.

The definition of ‘‘railroad’’ is based

upon 49 U.S.C. 20102 (1) and (2), and

encompasses any person providing

railroad transportation directly or

indirectly, including a commuter rail

authority that provides railroad

transportation by contracting out the

operation of the railroad to another

person, as well as any form of

nonhighway ground transportation that

runs on rails or electromagnetic

guideways, but excludes urban rapid

transit not connected to the general

system.

The terms explained here are not

exhaustive of the definitions that are

proposed for inclusion in § 239.7. This

introduction merely provides a

sampling of the most important

concepts of the proposed rule. Many

other terms are defined and explained

in the section-by-section analysis when

analyzing the actual proposed rule text

to which they apply.

8. Responsibility for Compliance:

Section 239.9

Section 239.9 clarifies FRA’s position

that the requirements contained in the

proposed rules are applicable to any

‘‘person,’’ including a contractor, that

performs any function required by the

proposed rules. Although all sections of

the proposed rule address the duties of

a railroad, FRA intends that any person

who performs any action required by

this part on behalf of a railroad is

required to perform that action in the

same manner as required of a railroad or

be subject to FRA enforcement action.

For example, if an independent

contractor is hired by a railroad to

maintain its records of inspection,

maintenance, and repair of emergency

window and door exits, pursuant to

proposed § 239.17, the contractor would

be required to perform those duties in

the same manner as required by a

railroad.

9. Penalties: Section 239.11

Section 239.11 identifies the penalties

that FRA may impose upon any person,

including a railroad or an independent

contractor providing goods or services

to a railroad, that violates any

requirement of this part. These penalties

are authorized by 49 U.S.C. 21301,

21304, and 21311, formerly contained in

§ 209 of the Federal Railroad Safety Act

of 1970 (Safety Act) (49 U.S.C. 20101–

20117, 20131, 20133–20141, 20143,

21301, 21302, 21304, 21311, 24902, and

24905, and §§ 4(b)(1), (i), and (t) of

Public Law 103–272, formerly codified

at 45 U.S.C. 421, 431 et seq.). The

penalty provision parallels penalty

provisions included in numerous other

regulations issued by FRA under

authority of the provisions of law

formerly contained in the Safety Act.

Essentially, any person who violates any

requirement of this part or causes the

violation of any such requirement will

be subject to a civil penalty of at least

$500 and not more than $10,000 per

violation. Civil penalties may be

assessed against individuals only for

willful violations, and where a grossly

negligent violation or a pattern of

repeated violations creates an imminent

hazard of death or injury to persons, or

causes death or injury, a penalty not to

exceed $20,000 per violation may be

assessed. In addition, each day a

violation continues will constitute a

separate offense. Finally, a person may

be subject to criminal penalties for

knowingly and willfully falsifying

reports required by these regulations.

FRA believes that the inclusion of

penalty provisions for failure to comply

with the regulations is important in
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8339

ensuring that compliance is achieved

not only in terms of developing and

implementing emergency preparedness

plans, but also to better determine if

railroads are planning ahead to

minimize the consequences of

emergencies that could occur.

The final rule will include a schedule

of civil penalties in an Appendix A to

49 CFR Part 239, to be used in

connection with this part. Because such

penalty schedules are statements of

policy, notice and comment are not

required prior to their issuance. See 5

U.S.C. 553(b)(3)(A). Nevertheless,

commenters are invited to submit

suggestions to FRA describing the types

of actions or omissions under each

regulatory section that would subject a

person to the assessment of a civil

penalty. Commenters are also invited to

recommend what penalties may be

appropriate, based upon the relative

seriousness of each type of violation.

10. Emergency Preparedness Plan:

Section 239.101

In drafting the proposed rule, FRA

recognized that the operations of each

individual passenger train system must

be considered in the development and

implementation of effective emergency

preparedness programs. Factors which

should be considered include system

sizes and route locations, types of

passenger cars and motive power units,

types of right-of-way structures and

wayside facilities, and numbers of

passengers carried, as well as internal

railroad organizations and outside

emergency response resources. Under

the proposed rule, each railroad subject

to the regulation is required to establish

an emergency preparedness plan

designed to safely manage emergencies

and minimize subsequent trauma and

injury to passengers and on-board

railroad personnel. The plan must

reflect the railroad’s policies, plans, and

readiness procedures for addressing

emergencies. The railroad is expected to

employ its best efforts, under the

circumstances of the emergency

situation, to execute the provisions of its

plan.

In their development of emergency

preparedness plans, FRA encourages

railroads to integrate, as practicable, the

recommended guidelines contained in

the Volpe Report. The report provides a

comprehensive degree of specificity.

While the proposed rule does not

require the special level of detail

reflected in the Volpe Report, FRA

advocates that railroads voluntarily

incorporate such elements and items as

appropriate into the development of

their own emergency preparedness

plans, and exclude recommendations

only after judicious consideration.

While FRA stresses that each railroad

should retain latitude in developing an

emergency preparedness plan

appropriate for its operations, the plan

must provide a comprehensive

overview, make clear and positive

statements to railroad employees, and

contain implementation details

concerning the roles, responsibilities,

and expectations for employee

participation. The plan does not have to

be one single document with every

section applying to every railroad

employee and location; instead, the plan

may consist of multiple documents,

with a separate section of the plan

detailing the specific responsibilities for

each job category or function. In

instances where a freight railroad hosts

the operations of a passenger railroad,

both railroads would have to address

issues of emergency preparedness.

However, the rule would require the

hosting freight railroad to develop only

the applicable portions of an emergency

preparedness plan uniquely dealing

with the passenger operations not

otherwise addressed.

The majority of passenger train

operational difficulties are handled

effectively and do not become

emergencies. Since in many instances a

train crew can immediately take action

to resolve a problem and potential

emergency without evacuating the train,

existing emergency preparedness

policies de-emphasize immediate

evacuation from trains located between

stations unless passengers and crews are

in immediate danger. Accordingly, in

most situations, after notifying the

control center that a problem exists and

receiving permission, the train crew will

move the train to the nearest station or

safe location (e.g., outside a tunnel)

before taking further action. If the train

crew is unable to resolve the situation,

railroad personnel or outside emergency

responders may be sent to the

emergency scene to provide mechanical

aid, alternate transportation, or medical

assistance.

The effectiveness of a railroad’s

overall response under its emergency

preparedness plan will be greatly

influenced by the type of emergency

with which the train crew is presented

(e.g., injury or illness, stalled train,

suicide or accidental collision with a

person, derailment or collision, smoke

or fire, severe weather conditions or

natural disasters, and vandalism or

sabotage). The response will also be

affected by the characteristics and type

of train involved and the functional

status of electrical and mechanical

systems, including lighting, ventilation,

and public address systems. In addition,

the operational environment (e.g., a

train is located in a tunnel, on an

elevated structure, or in electrified

territory), and the type of right-of-way

structure or wayside facility must be

addressed, as appropriate, in each

railroad’s emergency preparedness plan.

The emergency preparedness plan

should establish a chain of command

which assigns functions and

responsibilities to appropriate passenger

railroad operating personnel, while

recognizing the authority and

responsibilities of emergency

responders. Coordination is important

to the ability of all parties to respond

appropriately to an emergency,

regardless of its size and location.

Documentation, including applicable

portions of the emergency preparedness

plan, protocols, and procedures within

rulebooks, manuals, and guidelines for

control center employees and on-board

personnel, provides the basic framework

for coordination between all internal

parties responding to an emergency.

This internal documentation should

address at least the following issues:

• Delineation of functions and

responsibilities during emergencies for

passenger railroad operating personnel,

including control center personnel;

• Telephone numbers of railroad

personnel and emergency responders

who need to be notified;

• Criteria for determining whether an

emergency exists and requires

assistance from emergency responders;

• Procedures for determining the

specific type, location, and severity of

the emergency, and thus which

response is appropriate;

• Procedures for notifying emergency

responders; and

• Procedures and decision-making

criteria for transferring incident

responsibility from the passenger

railroad operator to emergency

responders.

Section 239.101 sets forth the general

requirement that railroads shall develop

and comply with their own emergency

preparedness plans and written

procedures to implement their own

plans for addressing issues of

emergency preparedness, that meet

Federal minimum standards. Paragraph

239.101(a) requires all railroads affected

by this proposed part to develop and

implement written procedures to fulfill

each applicable element of this section.

Depending on the nature of a railroad’s

operations, as well as on whether its

operations involve a host freight

railroad, different elements of this

proposed section may be fulfilled by

more than one entity. While FRA

requires all elements of this section to
8340 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

be addressed for each passenger train

operation, the rule does not mandate

that every element be addressed in each

affected entity’s emergency

preparedness plan. Accordingly, if a

passenger train service operator relies

on its freight railroad host to notify

outside emergency responders after an

emergency occurs, FRA would permit

the freight railroad’s emergency

preparedness plan to address this

element. Provided that both entities

properly coordinate their emergency

preparedness plans (and include crossreference citations to each other’s plan),

the passenger train service operator’s

plan could omit this item and still be in

compliance with the proposed rule.

The proposed rule would not require

that the public authority and the

operating railroad or independent

contractor each file a separate

emergency preparedness plan with FRA

if the operating railroad or independent

contractor is the only party performing

a function under the regulation.

However, each party’s responsibility for

compliance with this part must be

clearly spelled out in the emergency

preparedness plan or plans that are filed

with FRA for approval covering the

entire passenger train service operation.

After approval of the plan or plans, FRA

may hold the public authority or the

other entity or both responsible for

compliance with this part.

FRA proposes to establish the

parameters for such a plan and defer to

the expertise of each individual railroad

to adopt a suitable emergency

preparedness plan for its railroad, in

accordance with these parameters. As

noted previously in the preamble to this

proposed rule, the emergency

preparedness plan may consist of

multiple documents, with a separate

document detailing the responsibilities

of each category of employee under the

railroad’s plan. Each railroad is also

encouraged to review the suggestions

provided in the Volpe Report before

developing an emergency preparedness

plan in accordance with the

requirements set forth in this section. In

developing the plan, railroads are

reminded that the goal of the proposed

rule is to maximize the safety of

passengers, railroad personnel,

emergency response personnel,

property, and the general public which

come in contact with the railroad by

providing for immediate notification of

outside law enforcement officials and

emergency responders. Railroads should

not instruct their on-board employees to

substitute as professional emergency

responders and delay notification of

appropriate railroad and outside

officials.

Paragraph 239.101(a)(1) sets forth the

requirement that the passenger train

crewmembers must communicate

immediately and effectively with each

other, as well as with the control center

and the passengers. Typically, in an

emergency situation the proposed rule

requires an on-board train crewmember

to immediately contact the control

center via a dependable on-board radio

or an alternate means of communication

(e.g., wayside railroad telephone, public

telephone, private residence telephone,

or cellular telephone) to advise

appropriate railroad officials of the

nature of the emergency and the type of

assistance required. After this initial

notification to the control center occurs,

the passengers must be informed of the

emergency and provided directions. As

appropriate, all passengers should be

accounted for (particularly in sleeping

compartments) so as to expedite

evacuation, if necessary, and to avoid

needless effort to search for ‘‘missing’’

persons.

METROLINK stated that the train

crewmember should notify the

passengers after consultation with the

control center and the control center

officer, unless the train must be

evacuated immediately. Also, the LIRR

recommended that FRA revise

paragraph 239.101(a)(1) in the final rule

to require an on-board crewmember to

remove all occupants of the train from

imminent danger as a first step after he

or she quickly and accurately assesses

the passenger train emergency situation.

FRA recognizes that each emergency

situation is unique, and may require

rapid decisionmaking by on-board

crewmembers on how best to ensure the

safety of the passengers. Moreover, it is

FRA’s expectation that railroads will

properly train their employees to

perform the requisite life-saving

functions after an emergency (e.g.,

relocation of passengers from a smokefilled car to a safer section of the train

or evacuation of the passengers from a

derailed car), in conjunction with their

responsibilities to assess the nature of

the emergency and notify the control

center as soon as practicable thereafter.

Accordingly, while FRA may conclude

in the course of investigating a specific

train incident or accident that a

particular employee’s egregious

mishandling of an emergency situation

warrants individual enforcement action

and/or enforcement action against the

railroad, we are reluctant to strictly

impose the precise order or manner in

which on-board crewmembers must

execute their individual responsibilities

under the railroad’s emergency

preparedness plan. However, in the

course of drafting the final rule text,

FRA may elect to incorporate

recommended practices as specific

directives to railroads concerning how

they must respond to the various types

of emergency situations most likely to

occur during passenger operations, such

as on-board fires, downed electrical

power sources, or passenger injuries

from a derailment.

Although the proposed rule does not

require a railroad to use a specific

means of communication, FRA expects

the railroad to select a method that is

effective and capable of reaching

pertinent railroad control centers and

on-board locations in order to comply

with the notification requirement of this

subsection. FRA further expects that

railroads will voluntarily build

redundancy into their emergency

preparedness plans by outfitting their

crewmembers with an immediately

available backup means of

communication, in the event that

primary communications systems are

either damaged during the emergency or

otherwise rendered inoperative. For

example, a cellular telephone could be

made available for use by on-board

crewmembers to contact the control

center in the event the locomotive radio

is inoperative. Also, on-board

crewmembers could still maintain

proper communication with the

passengers, in the event that regular or

emergency power was unavailable to

operate the train’s public address

system, by using portable megaphones.

Commenters are asked to discuss

whether the final rule should expand

the subsection’s language requiring

notification to mandate a specific

primary means of communication, and/

or whether the final rule should also

require each affected railroad to equip

its passenger trains with a secondary

means of communication in the event

that the primary means is unavailable.

This issue may be resolved in this

proceeding or in the context of the

forthcoming revision of the Radio

Standards and Procedures in 49 CFR

Part 220. That rulemaking was tasked to

the RSAC on April 1, 1996.

It is FRA’s understanding that many

railroads publish an emergency toll-free

telephone number in the employee

timetable which connects with the

control center office. Amtrak also has a

nationwide toll-free telephone number

which connects the caller to the

national Amtrak police desk in

Washington, DC, which is manned

around the clock. The rule does not

require that notification to either the

control center or the train passengers

occur within a precisely measured

number of minutes, rather it uses the
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8341

words ‘‘as soon as practicable’’ in order

to give railroads maximum flexibility.

FRA expects that in the totality of the

circumstances of the emergency

situation, the train crewmembers will

exercise their best judgment using the

railroad’s own emergency preparedness

plan procedures.

Under current practice, Amtrak’s

notification of the emergency

responders will vary slightly depending

on whether or not the passenger train

emergency occurs in Amtrak-dispatched

territory. In territory where trains are

dispatched by Amtrak, either the control

center will directly notify the

emergency responder or the control

center will notify Amtrak police, who

will then, as appropriate, notify

pertinent emergency responders, state

and federal agencies, and Amtrak

supervisors. In territory where trains are

not dispatched by Amtrak, the host

railroad control center will directly

notify the appropriate emergency

responders, government agencies, and

host railroad supervisors. Which

emergency responders and agencies are

notified depends on the nature of the

emergency. Most control centers have

emergency telephone numbers already

in their computer systems, usually

listed alphabetically by city, with hard

copy backups.

FRA is aware that each railroad’s

operations are somewhat unique, and

that the appropriate persons and

organizations who must be notified will

vary based upon the railroad’s

individual operating characteristics and

the actual type of emergency that

occurs. Accordingly, paragraph

239.101(a)(1)(ii) does not specify

emergency responder organizations

(e.g., fire departments, helicopter rescue

groups) or job titles or duties of

appropriate railroad officials whom the

control center must contact. The

subsection also does not specify which

control center employees may be

designated by the railroad to maintain

the list of emergency telephone

numbers; METROLINK recommended

that FRA require that the railroad

designate an employee function or

position to be responsible for

maintaining current emergency

telephone numbers, rather than a

particular employee. In addition, the

term ‘‘adjacent’’ is not defined (e.g., a

distance measurement from the

passenger train experiencing the

emergency to adjacent rail modes) for

purposes of determining which other

rail modes must be notified. Instead,

consistent with the Working Group’s

recommendation that the proposed rule

should provide each affected railroad

with flexibility to implement the rule’s

provisions, this subsection requires that

the emergency preparedness plan state

how the railroad will achieve the

appropriate notifications.

Paragraph 239.101(a)(2) requires that

the emergency preparedness plan

provide for initial and periodic training

at least once every two years of all

railroad employees who have

responsibilities under the plan, and that

the training address the role of each

affected employee. Adequate training is

integral to any safety program. This

subsection recognizes that the

successful implementation of an

emergency preparedness plan depends

upon the knowledge of the on-board and

control center personnel about the

system route characteristics, passenger

cars and motive power units, and

emergency plans, protocols, procedures,

and on-board emergency equipment. An

employee who has not been trained to

react properly during an emergency

situation may present a significant risk

to railroad personnel and passengers.

Employees must receive ‘‘hands-on’’

instruction concerning the location,

function, and operation of on-board

emergency equipment, stressing the

following:

• Opening emergency window, roof,

and door exits, with an emphasis on

operating them during adverse

conditions such as when a rail car is

overturned;

• Use of emergency tools and fire

extinguishers;

• Use of portable lighting when the

main power source is unavailable on a

passenger train; and

• Use of megaphones and public

address systems (if they are provided by

the railroad for communication

purposes).

The proposed rule affords the

passenger railroad operator a time

period of up to two years to provide

each session of ‘‘periodic’’ training after

the operator provides initial training in

the emergency preparedness plan’s

provisions to its employees. The

periodic training requirement is

intended to inform railroad personnel of

changes in procedures and equipment

and ensure that their skills remain at a

level that enables them to effectively

execute their responsibilities under the

emergency preparedness plan. In

addition, the recurrent training will

reinforce segments of the emergency

preparedness plan for individuals who

have not performed properly.

FRA concludes that the unique

operating characteristics of all the

different railroads subject to the

proposed rule, as well as the financial

costs involved with providing training,

would make it impractical to include a

calendar year or other more restrictive

or specific requirement for periodic

training in the proposed rule. Moreover,

assuming that FRA elects to specify in

the final rule that the upper limit of the

term ‘‘periodic’’ will remain at two

years, anytime the provisions of an

emergency preparedness plan are

invoked during an actual emergency, we

would count that event toward the

training requirement for those affected

employees.

FRA is interested in receiving

comments from railroads on the costs of

implementing the on-board personnel

training requirements of the proposed

rule. Specifically, FRA wants to

determine the extent of the current

training that railroads already provide to

their on-board employees (including

emergency preparedness training) as

part of regular operating rules training

programs. Comments are requested

concerning the estimated dollar amount

of the incremental additional costs

connected with modifying existing

training programs to comply with this

proposal. FRA is interested in

ascertaining whether the proposed

training requirements will add merely

de minimis costs to each railroad’s

existing training program or if

compliance would entail moderate or

significant additional costs.

As discussed in the analysis of

proposed § 239.103, FRA expects

railroads operating passenger train

service to conduct emergency

simulations to evaluate their overall

emergency response capabilities and

ensure that emergency preparedness

plans, procedures, and equipment

address the particular needs of various

types of passengers. Emergency

simulations can help railroads achieve

theses goals through careful selection of

the time and location of the simulation

and participation by personnel from the

railroads, outside emergency responder

organizations, and ‘‘volunteer

passengers’’. In addition to classroom

training, simulations provide employees

with a practical and realistic

understanding of rules, procedures,

trains, and right-of-way structures/

wayside facilities as they relate to

emergency response. FRA expects that

the employee training provided in

accordance with paragraph

239.101(a)(2) will include instruction on

the importance of emergency

simulations in achieving successful

implementation of the emergency

preparedness plan.

The proposed rule does not require

on-board personnel to receive training

in first aid or in CPR. Although FRA

initially considered including these

items as training requirements in the
8342 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

proposed rule, or at least mandating that

railroads offer employees the

opportunity to receive this training, the

consensus of the Working Group was

that both first aid and CPR training

should be excluded from the rule. The

Working Group stressed that the goal of

the proposed rule is to ensure that

emergency responders arrive promptly

at the scene of an emergency, not to

train on-board personnel to act as

emergency responders. The Working

Group also stated that even if FRA

requires a railroad to offer first aid and

CPR training, no railroad can literally

force an on-board crewmember to assist

an ailing passenger. Further, trains with

heavier passenger loadings are likely to

have on board one or more medical

professionals whose skills will be more

extensive, and better practiced, than

those of a crewmember whose primary

and recurring duties do not include

medical emergencies.

During the Working Group meeting on

February 7, 1996, Amtrak stated that it

is spending between $2.5 to $3 million

by fiscal year 1998 to train the chiefs of

on-board service and to provide for at

least one employee on every train being

trained to administer first aid and

perform CPR. Under the Amtrak plan,

employees will not be required to use

this training, merely to receive it.

Despite the extent of Amtrak’s

commitment to voluntarily providing

extensive first aid and CPR training,

Amtrak did not want these items

required in the final rule. Another

member of the Working Group,

Metrolink, stated that it has served

approximately eight million passengers

in three years of operation, and has

never had a passenger require CPR.

Metrolink also noted that commuter

railroads generally operate in populated

areas, with professional emergency

responders in most cases only minutes

away. The LIRR stated that it offers CPR

training to newly hired employees and

shows a refresher film to employees

every five years, but acknowledged that

it cannot force employees to administer

CPR. The railroad also noted that it

would never want the engineer to leave

the controls of the locomotive during an

emergency. NJTR indicated that its train

crews already have many duties to

perform during an emergency and that

first aid and CPR should be performed

by emergency medical services

personnel.

FRA invites commenters to submit

their views on whether the final rule

should include the issues of first aid

and CPR training. If FRA does decide to

address these issues, one option would

be to mandate that railroads offer their

employees first aid and CPR training,

without requiring employees to actually

use this training during an emergency.

Under this scenario, a railroad employee

who offered no assistance during an

emergency, because he or she feared

coming into contact with an injured or

ill passenger’s bodily fluids, would not

violate these regulations. (The

experience of the American Red Cross is

that volunteers who receive first aid and

CPR training, and appropriate

equipment, are motivated to provide

needed assistance when the time

comes.) The second option would be not

only to require railroads to train their

employees in first aid and CPR, but also

to mandate that employees use this

training during an emergency.

The proposed rule also does not

require railroads to record the number

of passengers riding on their trains at

any given time or to record how many

people get on and off at each train stop.

Although lack of an exact passenger

manifest may delay emergency

responders in determining when every

passenger has been removed from a

derailed or disabled train, the frequency

with which many passenger trains pick

up and discharge passengers would

create logistical difficulties for a train

operator. A train crew can usually

provide a good estimate to emergency

responders, so that they can respond

with the necessary personnel and

equipment. Moreover, it is doubtful that

emergency responders would simply

trust an exact passenger count provided

by a train crew and cease looking for

additional survivors of an emergency.

Commenters are invited to offer

proposals for training on-board

crewmembers to track the exact number

of passengers present on a train at any

given moment, and to include

suggestions on cost-efficient technology

for achieving this goal.

The proposed rule also requires

appropriate training of control center

personnel who affect the

implementation of a railroad’s

emergency response plan. FRA expects

the railroad to provide training only for

the requisite control center employees

designated under the plan to convey the

nature and extent of a passenger train’s

emergency to the emergency responder

organizations. Accordingly, FRA does

not wish to require training of other

control center employees who perform

merely incidental functions, e.g., a

clerical or other office employee who

receives a telephone call from a stalled

train.

The term ‘‘accurately measure’’ is

used in proposed paragraph

239.101(a)(2)(iii) relative to employee

qualification in a broad sense to mean

that the employee being tested will

show to the railroad sufficient

understanding of the emergency

preparedness plan subject area for

which he or she is responsible, and that

the employee can perform the duties

required under the plan in a safe and

effective manner. Proficiency must be

demonstrated by successful completion

of a written examination, but in

addition may be illustrated by an

interactive training program using a

computer, a practical demonstration of

understanding and ability, or an

appropriate combination of these in

accordance with this section.

This section permits railroads

discretion to design the tests that will be

employed (which for most railroads will

entail some modification of their

existing ‘‘book of rules’’ examination to

include new subject areas), provided

that the design addresses all relevant

elements of the emergency preparedness

plan. This section does not specify

things like the number of questions to

be asked or the passing score to be

obtained. It does, however, contain the

requirement that the test not be

conducted with open reference books

unless use of such materials is part of

a test objective. This section also

requires that the test be in writing. In

deciding to require a written test, FRA

was aware that the test taking skills of

some individuals may be deficient and

that some persons may have literacy

problems. However, FRA believes that

minimum reading and comprehension

skills are needed to assure proper

execution of an emergency preparedness

plan.

Paragraph 239.101(a)(2)(iv) requires

that at least one on-board crewmember

be qualified under the applicable

provisions of the railroad’s emergency

preparedness plan. For example, a

commuter railroad operates with a

three-person crew fully trained under

the applicable provisions of the

railroad’s emergency preparedness plan,

but includes an engineer trainee in the

locomotive cab who is not qualified

under the plan’s provisions. Since the

train already has a fully trained and

qualified crew operating the train, the

commuter railroad is in full compliance

with the proposed rule even though one

on-board crewmember is not qualified

under the emergency preparedness plan.

This paragraph may also apply if, for

example, a fully-trained passenger train

crew turns over the operation of its train

to a freight railroad train crew that is not

qualified under the passenger railroad’s

emergency preparedness plan. Provided

that the passenger train is operated by

the freight crew with at least one onboard crewmember of the passenger

train present who is qualified under the
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8343

passenger railroad’s emergency

preparedness plan, there would be no

violation of the proposed rule. Although

the proposed rule requires only one

qualified crewmember, FRA anticipates

that railroads will voluntarily elect to

train most, if not all, on-board

crewmembers in emergency response

procedures.

Paragraph 239.101(a)(3) contains the

requirement that freight railroads must

prepare emergency preparedness plans

addressing instances when they host the

operations of rail passenger service over

their lines. Even though freight railroads

may neither provide nor operate rail

passenger service themselves, and

therefore not be subject to most

requirements of the proposed rule, these

railroads still have certain significant

emergency preparedness

responsibilities. The emergency

preparedness plans for freight railroads

must, at a minimum, include

procedures for making emergency

responder notifications, and discuss

their general capabilities for rendering

assistance to the involved passenger

railroads during emergency situations.

The hosting freight railroads must

address any physical and operating

characteristics of their rail lines that

may affect the safety of these rail

passenger operations, e.g., evacuating

passengers from a train stalled in a

tunnel or on an elevated structure.

FRA expects a railroad that operates

rail passenger service over the line of a

freight railroad to review all of the

requirements imposed by the proposed

rule with the host railroad, and

coordinate their respective roles in

implementing a coherent response to an

emergency situation. While FRA

presumes that the freight railroad will

bear primary responsibility for ensuring

the emergency preparedness of any

railroad permitted to operate intercity

passenger or commuter trains over its

line, the proposed rule does not restrict

the host railroad and the operating

railroad from assigning responsibility

for compliance with this part via a

private contractual arrangement. FRA

included the coordination requirement

to ensure that all railroads involved in

a particular rail passenger service

operation understand each other’s

crucial role in planning for emergency

preparedness.

Paragraph 239.101(a)(4)(i) addresses

FRA’s expectations for compliance with

this part from railroads with operations

that include tunnels of considerable

length, where immediate passenger

egress is not feasible. In order to limit

the number of structures covered by this

proposed paragraph to the longer ones

that could be expected to present more

impediments to the safe and orderly

withdrawal of passengers from a

disabled train, tunnels of less than 1,000

feet are excluded. This limitation is

reasonable, considering that intercity

passenger trains seldom consist of less

than four cars and often have many

more cars than this, implying a

minimum total train length of 400 or

more feet. Most likely, a train of this or

greater length will have either the head

or rear end close to or outside of a

tunnel portal should an unplanned stop

occur in a tunnel less than 1,000 feet

long.

Over the years, passenger train

emergencies have occurred in tunnels

where existing emergency procedures

and tunnel characteristics, such as

lighting and communication

capabilities, were determined to be

inadequate. In order to better evaluate

tunnel safety issues related to

emergency preparedness, FRA requested

additional information from the railroad

industry. The results were summarized

in a report entitled ‘‘Tunnel Safety

Analysis’’ (Tunnel Report), which was

published by FRA in February 1990. A

copy of the report was also made

available to the rail passenger railroads

for their information and guidance, and

has been placed in the docket for this

rulemaking. FRA encourages all

railroads required to address tunnel

safety in their emergency preparedness

plans to consult the Tunnel Report for

guidance. FRA is also aware that many

State and local jurisdictions already

impose site-specific regulations to

address tunnel safety, and that most

railroads with operations involving

tunnels have long-standing internal

emergency tunnel procedures.

Paragraph 239.101(a)(4)(ii) proposes

that railroads operating on elevated

structures, over drawbridges, and in

electrified territory, incorporate

emergency preparedness procedures

into their plans to address these unique

physical characteristics. For example, in

an emergency in electrified territory, the

control center should be responsible for

issuing instructions to deenergize the

electrical power. Also, the train crew

and emergency responders should know

how, when, and when not to remove onboard power from the train, including

traction power, train-lined (head-end)

power to individual cars, and battery

source power.

Paragraph 239.101(a)(4)(iii) recognizes

that the emergency preparedness plans

of certain freight and passenger

railroads will need to address the

unique safety concerns posed by

adjacent rail modes of transportation.

For example, employees of a freight

railroad to which this part applies, who

have knowledge of or observe an

emergency in a common corridor, e.g.,

fire, derailment, or intrusion by rapid

transit rail equipment or vehicles, must

be required by the plan to immediately

notify the control center with details.

The control center must attempt to

determine the exact location of the

incident, any condition that would

affect safe passage by affected trains or

road vehicles, and whether hazardous

materials are involved, and then initiate

appropriate responsive action.

Many emergencies require response

from outside emergency responder

organizations in addition to the railroad.

Proper coordination of roles between all

of the organizations that may respond to

an emergency is essential to ensure

timely and effective response, since the

number of passengers carried and the

railroad operating environment may be

quite different according to the type of

service and routes. Paragraph

229.101(a)(5) recognizes that the

successful implementation of any

emergency preparedness plan depends

upon the affected railroads maintaining

current working relationships with the

emergency responder organizations, so

that each party can learn of the full

preparedness capabilities that the other

can offer during an emergency. In this

regard, each railroad’s emergency

preparedness plan must provide for

distribution to emergency responders of

railroad equipment diagrams and

manuals, right-of-way maps,

information on physical characteristics

such as tunnels, bridges, and electrified

territory, and other related materials. In

order to continually reinforce the

familiarization of the emergency

responder organizations with the

railroads’ protocols, procedures,

operations, and equipment, the

proposed rule requires railroads to

periodically distribute applicable

portions of the plan to emergency

responders at least once every three

years, even if no changes have been

implemented. Further, since the

knowledge and ability to carry out

procedures and use emergency

equipment are essential to the success of

emergency response actions, the

proposal requires the railroads to

promptly notify emergency responders

whenever material alterations to the

plan occur (e.g., revisions to emergency

exit information, pertinent changes in

system route characteristics or railroad

equipment operated on the system, or

updates to names and telephone

numbers of relevant contact officials on

the railroad).

FRA wants to ensure that the

emergency responders will receive the

maximum amount of available
8344 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

information about a railroad’s

operations in advance of an emergency,

and hopes that emergency responders

will voluntarily study the material

distributed and participate in

emergency simulations. However, the

proposed rule would only require that

affected railroads make the operations

information available to emergency

responders, and that the responders

merely be invited to participate in

emergency simulations. FRA has no

authority to penalize an emergency

responder organization if it chooses to

ignore the distributed information or

refuses to attend simulations with the

railroad. Likewise, the proposed rule

would not hold a railroad accountable

for an emergency responder

organization’s unwillingness to enter

into a liaison relationship, provided that

the railroad made the liaison

opportunities known and available to

the responders.

In its comments on the revised

regulatory text, METROLINK questioned

the meaning in paragraph

239.101(a)(5)(ii) of the phrase

‘‘maintaining an awareness of each

emergency responders’ capability.’’

METROLINK noted that its operations

include 33 different fire districts, over

50 ambulance companies, and 45 police

agencies, and contended that

maintaining this type of awareness is

not a railroad function. METROLINK

also stressed that the proposed rule does

not require emergency responders to

notify each affected railroad when their

capabilities change, and stated that it is

the responsibility of the emergency

responders to establish mutual aid with

other local agencies when emergency

situations exceed their capabilities. In

addition, METROLINK indicated that it

lacks the technical capacity to know or

understand when a significant change

may occur in an emergency responder’s

response capability.

FRA is aware of the great number of

jurisdictions that intercity trains operate

through, and that it is neither simple

nor inexpensive for passenger train

operators to provide material and

familiarization to every outside

emergency response organization within

all individual communities along each

route. Some commuter train operators

have developed booklets and videotapes

to illustrate equipment and describe

entry and evacuation procedures for its

trains and certain right-of-way facilities.

However, Amtrak stated at the Working

Group meetings that because it operates

through thousands of jurisdictions with

thousands of potential emergency

responder organizations located

throughout the United States, it would

have difficulty complying with this

paragraph.

While FRA considers the

establishment of liaison relationships

between railroads involved with rail

passenger operations and emergency

responders crucial to achieving the

goals of the proposed rule, the agency is

also fully aware of the unique

circumstances of Amtrak’s operations.

Commenters are invited to suggest

either how Amtrak can best comply

with the emergency responder liaison

requirement as set forth in the proposed

rule, or whether the final rule should

establish a different standard for

railroads that operate in territories with

large numbers of potential emergency

responders to contact. Any commenter

proposing two or more sets of standards

should also suggest what numerical or

mileage criteria should be used to

distinguish the railroads, and state how

these differing standards would still

ensure adequate levels of safety and

emergency preparedness.

Paragraph 239.101(a)(6) states that

each railroad’s emergency preparedness

plan shall indicate the types of on-board

emergency equipment and the location

on each passenger car. Although the

proposed rule requires a minimum of

only one fire extinguisher and one pry

bar per passenger car, and one flashlight

per on-board crewmember, FRA would

strongly encourage each railroad to

voluntarily supplement this list of onboard emergency equipment. Further,

FRA recognizes that there may be

special local interests that might need to

be accommodated, particularly in cases

of public authorities operating

passenger train service within only one

territory. While national uniformity to

the extent practicable of laws,

regulations, and orders related to

railroad safety is important, FRA does

not wish to decrease the level of

emergency preparedness already in

place on a passenger railroad.

FRA must determine whether the

final rule should specifically address

special circumstances that may exist in

local jurisdictions throughout the

country on a categorical basis, which are

currently subject to more stringent

requirements than the minimum

quantities of on-board emergency

equipment set forth in the proposed

rule. Accordingly, FRA invites

comments on what types and quantities

of on-board emergency equipment

railroads are currently required to carry

pursuant to laws in the local

jurisdictions in which they operate.

FRA also invites comments on the

reasons for these more stringent

requirements. Depending on the

comments received, FRA may adopt the

minimums set forth in the text of the

proposed rule or decide to broaden the

coverage and requirements of

§ 239.101(a)(6) by specifying additional

types and/or quantities of on-board

emergency equipment that some or all

railroads must carry on each passenger

car.

This paragraph does not require

railroads to instruct their passengers

about either the location or use of the

on-board emergency equipment. As

stated, FRA is committed to crafting a

final rule that avoids micromanagement

of the provisions of a railroad’s

emergency preparedness plan. FRA

recognizes that passengers might benefit

from receiving routine instructions

about the location and operation of onboard emergency equipment during

each train trip, in the event that the

crewmembers are injured or otherwise

unable to access the equipment before

the outside emergency responders

arrive. However, FRA is also aware from

its consultations with the Working

Group that pilferage of on-board

emergency equipment is a serious

problem on many passenger railroads,

and that specifically focusing the

attention of passengers on where the

equipment is located would only

exacerbate the problem. Clearly, the

equipment can only help both

crewmembers and passengers during an

emergency if it is available for proper

use. Also, members of the Working

Group stressed that regular riders on

intercity or commuter operations are

probably already familiar with the onboard emergency equipment by virtue of

their frequent presence on the train, and

would not benefit from any additional

required information.

Since the rulemaking on rail

passenger equipment safety standards is

still ongoing, FRA is unable to state

whether railroads will be required to

install permanent or auxiliary

emergency lighting on their rail cars.

However, whatever requirements

eventually appear in a new set of

regulations at 49 CFR Part 238,

paragraph 239.101(a)(6)(ii) states that

auxiliary portable lighting must be

available for assistance in an emergency

and should be routinely maintained and

replaced as necessary. The proposed

rule does not require that every rail

passenger car have such lighting, but the

train itself must carry enough portable

lighting capable of fostering passenger

evacuation. In its comments on

paragraph 239.101(a)(6)(ii) of the

revised regulatory text, METROLINK

stated that FRA needs to define the

phrase ‘‘auxiliary portable lighting must

be accessible,’’ and questioned whether

a flashlight is an acceptable form of
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8345

such lighting. FRA intends for a

handheld flashlight, such as a flashlight

with a ‘‘D’’ cell, to be one of the means

of satisfying the auxiliary portable

lighting requirement.

Finally, paragraph 239.101(a)(7)

requires railroads to make passengers

aware of emergency procedures to

follow before an emergency situation

develops, thus enabling them to respond

properly during the emergency. All

passenger awareness efforts must

emphasize that passengers must follow

the directions of the train crew during

an emergency. If passengers are on a

disabled train, but are not injured or

facing imminent danger, they could

safely await the arrival of trained

emergency responders with appropriate

evacuation equipment. However, in a

serious emergency involving smoke or

fire, passengers may have to evacuate

the train before emergency responders

arrive. Thus, operators of rail passenger

service should take steps to increase

passenger awareness about basic

evacuation procedures. Since

passengers could inadvertently

jeopardize their own safety, it is

appropriate for them to take the

initiative only if the crewmembers are

incapacitated.

Passenger railroads must educate

passengers about their role in

cooperating in emergencies by

conspicuously and legibly posting

emergency instructions inside each

passenger car, and by utilizing at least

one of the additional methods

designated in this paragraph to provide

safety awareness information. These

methods include distributing

pamphlets, posting information in

stations on signs or on video monitors,

and the review of procedures by

crewmembers via public address

announcements. All brochures and

signage must emphasize that passengers

must follow the directions of the train

crew during an emergency.

Although paragraph

239.101(a)(7)(ii)(A) permits a railroad to

fulfill the secondary passenger

education requirement of the proposed

rule by making on-board

announcements, the proposed language

does not specify the frequency with

which these announcements must be

made during a train run. While FRA

believes that, with regard to intercity

service, announcements are appropriate

after at least each major passenger pickup point, commenters are invited to

suggest ways of providing safety

information to all new riders without

becoming repetitious to the remaining

passengers. In addition, while the

proposed rule requires railroads to

utilize only one additional method to

disseminate safety awareness

information to passengers, FRA

encourages railroads to employ as many

of the options as possible based on

operating and budgetary considerations.

The information in the various

sources of passenger safety awareness

information must be consistent in

content and sufficient for first-time

users of the railroad, but not so

overwhelming as to arouse undue

concern. All information must be

printed or spoken in English, but

railroads serving large non-English

speaking communities should consider

providing information in other

languages as well. Materials for persons

who are visually impaired should be

printed in large type format and in

braille. Finally, for persons with other

types of disabilities, appropriate

passenger awareness materials should

provide information about evacuation

policies and procedures and other

emergency actions, to the extent

practicable.

Passenger awareness education

should include information that may

permit passengers to accomplish the

following:

• Recognize and immediately report

potential emergencies to crewmembers;

• Recognize hazards;

• Recognize and know how and when

to operate appropriate emergencyrelated features and equipment, such as

fire extinguishers, train doors, and

emergency exits; and

• Recognize the potential special

needs of fellow passengers during an

emergency, such as children, the

elderly, and disabled persons.

Paragraph 239.101(a)(7)(iii) requires

railroads to perform surveys of their

passengers in order to learn how

successful the passenger awareness

program activities have been in

apprising passengers of the procedures

that must be followed during an

emergency. In addition to verifying that

passengers can locate and operate the

emergency window and door exits in

the event of an evacuation, the surveys

must determine that passengers know

where the safety information is posted

in the car and that during an emergency

they must follow the directions of the

train crew.

Although the railroad is required to

maintain records of the information

obtained from its passenger surveys, the

proposal does not mandate that

railroads ask passengers to complete

written questionnaires. Instead of

handing out questionnaire surveys at

station stops and hoping that passengers

will voluntarily elect to either provide

responses in narrative form or fill in

answers to multiple choice questions,

the railroad could direct its employees

to wait at either station stops or onboard

trains and orally read the questions to

selected members of the traveling public

who voluntarily agree to participate.

The oral responses would then be

recorded by the railroad in writing on

records that would be maintained at the

system headquarters for the railroad and

at the division headquarters for each

division where the surveys were

conducted (i.e., the records availability

must be division specific). The records

can consist of multiple documents, and

may contain separate sections covering

locations of the safety information on

the cars and knowledge of the safety

procedures to follow in an emergency.

Additionally, railroads must make these

survey records available to duly

authorized FRA representatives for

inspection and copying (e.g.,

photocopying or handwritten

notetaking) during normal business

hours.

The proposal specifies that a railroad

must survey a representative sample of

passengers at least once during each

calendar year to determine the

effectiveness of its passenger awareness

activities. FRA is not proposing a

methodology for conducting this

sampling, nor is it requiring that the

surveys be distributed at every station

stop or along particular major lines.

FRA is confident that each railroad will

use due dilgence in surveying a

statistically significant cross section of

its customer population in order to

periodically update and improve its

passenger safety awareness information

and amend its emergency preparedness

plan, as appropriate. Although FRA is

proposing that railroads conduct the

surveys at least annually, we expect that

after the initial education effort takes

place in the first year that the rule is in

effect the ridership awareness level will

reach a percentage in the range of

between 60 to 75 percent. If this

increased awareness level occurs, as

reflected in a high rate of correct survey

responses, FRA believes that the

requirement could be modified to

permit railroads to conduct the surveys

at least once every three years. FRA

seeks public comment on both whether

the final rule should permit railroads to

conduct surveys less frequently than

annually, and if so, on what would be

an appropriate minimum percentage of

public awareness that must be reached

before less frequent surveying would be

justified.

Since the issue of passenger surveys

was not fully developed with the

Working Group during the drafting of

this proposal, FRA looks forward to

working with the members of the
8346 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

Working Group during the final rule

phase to develop the most effective

means of verifying that the passenger

awareness program activities will

achieve their objectives. In this regard,

FRA seeks comments on whether the

survey process anticipated by this

proposal can be a reliable measure of

the effectiveness of the passenger

information programs or whether there

are more efficient or less expensive

means than surveys to determine the

success of these programs, such as focus

groups or unstructured meetings and

discussions with members of the

traveling public. Commenters from

railroads are urged to discuss what

sampling techniques they currently use

when they conduct customer

satisfaction surveys in order to assist

them in improving passenger comfort,

determining if railroad employees are

providing proper customer service, and

planning timetable schedules.

Since proposed paragraph

239.101(a)(7)(ii) requires railroads to

utilize an additional method of

providing safety information without

specifying how frequently the

information must be provided,

commenters are encouraged to address

this issue by indicating whether each

railroad should be allowed to study the

results of the passenger surveys in order

to determine the effectiveness and

proper timing of passenger safety

awareness program activities

appropriate for its operation.

Accordingly, instead of specifying a

fixed maximum time interval between

utilization of the additional forms of

program activity, FRA could elect to

require that railroads determine the

optimal frequency that best serves their

passengers. In addition, it is expected

that as the traveling public grows more

accustomed to reading and

understanding the emergency

instructions posted inside all passenger

cars on bulkhead signs, seatback decals,

or seat cards the need for redundant

reminders (e.g., on-board

announcements, ticket envelope safety

information, or public service

announcements), especially at frequent

time intervals, will greatly diminish.

Moreover, depending on the additional

method selected, different time intervals

may be appropriate. For example, while

it may be suitable for a railroad to

distribute safety awareness information

on a seat drop every three months, the

railroad may conclude that it should

arrange for public service

announcements on a weekly basis.

Commenters recommending inclusion

of fixed timeframes for providing

passengers with additional methods of

safety awareness information are urged,

if possible, to provide scientific or

sociological data and/or cost estimates

to support their suggested time

intervals.

11. Passenger Train Emergency

Simulations: Section 239.103

Section 239.103 recognizes that one of

the most effective training techniques is

a simulation of specific emergency

scenarios. Simulations may vary from a

small-scale drill or tabletop exercise for

just one train crew or control center

operator, to a full-scale emergency

exercise involving several levels of

railroad management that includes the

voluntary participation of fire

departments, ambulance and emergency

medical service units, local police,

sheriff and state police organizations,

local emergency auxiliary groups, and

state and federal regulatory agencies.

While simulations are primarily

designed to demonstrate that railroad

employees can quickly and efficiently

manage an emergency situation to

ensure that emergency responders arrive

quickly, simulations are also intended

to determine whether train crews are

properly trained to get passengers out of

an imperiled train.

The tabletop exercise is the simplest

to stage, as it involves only a meeting

room and knowledgeable managers and

employees from the passenger train

operator and the appropriate responding

organizations who voluntarily

participate. For an imaginary

emergency, the actions to be taken by

the appropriate personnel are described;

the time, equipment, and personnel

necessary are estimated; and potential

problems are predicted. Conflicts of

functional areas, lack of equipment,

procedural weaknesses or omissions,

communication difficulties, and

confusing terminology are among the

problems which can be identified.

Passenger train operators can drill

their train crews, other on-board

personnel, supervisors, and control

center operators on emergency operating

procedures by posing a hypothetical

emergency for employees to resolve

without dispatching emergency

responders to the scene. A drill could

also involve the voluntary participation

of personnel of a particular response

organization, e.g., a fire department. The

same type of problems as indicated for

the tabletop exercise can be identified,

and the actual response capabilities of

personnel in terms of their knowledge of

procedures and equipment can be

evaluated.

Full-scale emergency exercises

require weeks of carefully organized

plans involving all participating

organizations and will involve the

expenditure of funds for both the

training and actual full-scale exercise.

Recording or videotaping the scenes and

conversations in key areas of the

exercise itself will serve as valuable

classroom training for later years. A fullscale exercise is the total application of

the resources of the passenger railroad

operator and the voluntarily

participating emergency response

organizations. Such an exercise can

reveal the degree of familiarity of both

the passenger train system and

emergency response organization

personnel with train operations, the

physical layout of trains, right-of-way

structures and wayside facilities,

emergency exits, and emergency

equipment. Thus, shortcomings in the

emergency preparedness plan and

specific response protocols and

procedures, as well as equipment, can

be identified and corrected.

FRA is seriously evaluating whether

tabletop exercises should be afforded

the same weight in the final rule as fullscale simulations for purposes of

demonstrating the readiness of a

railroad to successfully react to a

passenger train emergency, and we are

considering requiring that each railroad

conduct a minimum number of its

simulations as full-scale exercises. In

this regard, FRA is skeptical as to

whether a tabletop exercise can equal

the comprehensiveness of a full-scale

exercise and be a highly effective means

of determining whether a railroad is

adequately prepared for the likely

variety of emergency scenarios that

could occur on its lines, as well as an

important training tool for the train

crews, control center employees, and

members of the emergency responder

community who elect to participate. In

considering whether to strengthen the

emergency simulation requirement, FRA

is aware that realistic full-scale

simulations that enable all participants

to practice using the on-board

emergency equipment and emergency

exits, and encourage the emergency

responders to become personally

familiar with passenger equipment and

applicable railroad operations, could

prove invaluable in helping railroads

and the emergency responder

community to manage real emergencies

in ways that tabletop exercises cannot.

However, FRA is also aware that the

financial and logistical costs of

conducting full-scale simulations are

undoubtedly higher, including the need

to close railroad tracks during the hours

of the simulation, opportunity costs for

the railroads due to lost use of the

passenger equipment that is employed
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8347

in the simulations, unavailability of

firefighting and rescue equipment for

other emergencies while the simulations

are being conducted, and salary costs for

many or all of the simulation

participants.

In order to best determine whether the

final rule should require full-scale

emergency simulations in conjunction

with tabletop exercises, or perhaps in

place of such exercises, FRA must

carefully weigh the expected costs and

potential benefits of all available

options. FRA therefore seeks public

comment on the perceived effectiveness

of both full-scale emergency simulations

and tabletop exercises, including a

discussion of whether tabletop exercises

can achieve the equivalent level of

emergency preparedness as full-scale

simulations. FRA is particularly

interested in receiving comments from

the emergency responder community,

especially from those members who

have participated in either emergency

simulations or actual emergency

situations with railroads.

To achieve a maximum level of

effectiveness, drills and exercises

should reinforce classroom training in

emergency response and passenger

evacuation for the passenger train

operator personnel and the emergency

response units who voluntarily

participate. Procedures should also be

included to teach personnel to identify

the emergency and distinguish its

unique demands, and to follow through

with the appropriate responses. In

addition, the drills and exercises should

be planned to minimize hazards which

could create an actual emergency or

cause injuries and to provide a

mechanism for simultaneous testing and

reinforcement of emergency operating

procedures for specific types of

emergencies and evacuation procedures.

Moreover, the drills and exercises

should test the communication

capabilities and coordination of the

passenger operator with the emergency

responders, as well as the operability

and effectiveness of emergency

equipment.

Paragraph (b) requires each railroad

that provides commuter or other shorthaul passenger train service to conduct

an emergency simulation at least once

during every two calendar year on all

major lines, and include at least 50

percent of the major lines in the total

number of simulations held during any

given calendar year. Since FRA has

determined that a train crew on a

commuter or other short-haul operation

will usually operate a train along the

same line for an extended period of

time, and that emergency responder

organization personnel tend to be linespecific in terms of their familiarity

with a railroad’s operations, it is crucial

that each affected railroad provide

adequate opportunities along all of its

major lines for its employees and the

responder community to obtain

emergency simulation training. While

FRA anticipates that each commuter or

short-haul railroad will conduct

emergency simulations as frequently as

possible on its entire system, the

proposal applies only to operations over

major lines so that the railroad can best

reach the most heavily traveled portions

of its system while conserving limited

resources. In this regard, FRA

recognizes that emergency responder

organizations tend to be densely located

along the major lines of commuter and

short-haul railroad operations.

FRA seeks public comment on

whether the final rule should require a

different timetable for accomplishing

emergency simulations along each major

route and/or require a greater total

number of emergency simulations

during any given calendar year. In this

regard, since emergency simulations are

such an important means for a railroad

to measure its degree of emergency

preparedness, FRA is considering

strengthening the final rule to require

that each railroad conduct a sufficient

number of emergency simulations so

that each major line will be included at

least once during every calendar year,

instead of only once during every two

calendar years.

Although the proposal sets forth a

requirement for each commuter and

short-haul railroad to perform

emergency simulations on all of its

major lines, FRA does not expect the

railroad to require all employees along

those lines who are trained under the

emergency preparedness plan to attend

the simulations, nor do we expect the

railroad to invite all potential

emergency responders along those lines

to participate. While FRA hopes that

over the long term all railroad

employees involved in the operation of

passenger train service, as well as the

applicable members of the emergency

responder community, will have the

opportunity to participate in this

valuable training exercise and enhance

their individual emergency

preparedness skills, the simulations are

also intended to identify shortcomings

in each railroad’s emergency

preparedness plan and specific response

protocols and procedures. The railroad

must discuss the identified weaknesses

and overall effectiveness of the

emergency preparedness plan with the

simulation participants at the debriefing

and critique session held under

proposed § 239.105, and then initiate

any appropriate improvements and/or

amendments to the plan. As part of this

review process, FRA expects the

railroad to revise its training program

and liaison relationships with the

emergency responder community, in

accordance with proposed § 239.101.

Accordingly, while the proposed rule

does not mandate that affected railroads

conduct numerous simulations all along

the major lines so as to include every

possible participant, FRA concludes

that the lessons learned from the

required debriefing and critique

sessions will have far reaching benefits.

In order to ensure that each affected

railroad evaluates its overall emergency

response capabilities through careful

selection of the appropriate scenarios

and locations on each of its main lines

for the emergency simulations, the

proposal requires each railroad to

organize simulations that will

adequately test the performance of the

railroad’s program under the variety of

emergency situations that could

reasonably be expected to occur on the

operation. For example, a railroad

operating in territory that includes

underground tunnels will need to

conduct simulations to test the

railroad’s ability to ensure employee

and passenger safety during an

emergency situation occurring in this

unique environment. Adequate lighting

and sources of air in tunnels and

underwater tubes are critical for

successful passenger evacuation during

emergencies. Further, emergency

responders depend on sufficient lighting

for visibility during fire suppression and

rescue operations. If the railroad intends

to evacuate passengers by using cross

passages and/or fire doors leading to the

opposite track area, or a separate center

passageway between the adjacent track

areas, the simulation should include

practice in the requisite evacuation

protocols and procedures.

In the case of a railroad providing

intercity passenger service involving a

number of lines operated over long

distances, such as the coast-to-coast

service provided by Amtrak, the need

for the railroad to carefully plan its

simulations and concurrently examine

the effectiveness of its emergency

preparedness plan under a variety of

scenarios becomes crucial. Many of

Amtrak’s lines run for hundreds of

miles through remote locations that

could include risks from tunnel

mishaps, natural disasters (e.g., fires,

floods, and earthquakes), hazardous

material leaks, and/or acts of terrorism.

Further, because of the length of time

required to travel these lines, the same

train will be operated by more than one

crew and may involve operation over
8348 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

the line of a freight railroad. Since

Amtrak’s lines traverse numerous

populated communities throughout the

United States, an emergency situation

could require the assistance of any

number of potentially thousands of

emergency responders from these

locations.

While FRA is not proposing at this

time to require operators of intercity

service to conduct additional emergency

simulations along its lines in order to

reach a greater proportion of employees

and members of the emergency response

community (equivalent to the number

required on the major lines of railroads

that provide commuter or other shorthaul service), we do expect such

railroads to plan simulations that

sufficiently test the elements of their

emergency preparedness plan under the

variety of circumstances that could

occur in intercity service. Although FRA

recognizes that the length and diversity

of Amtrak’s operations limit the

potential benefits from resources spent

on conducting emergency simulations,

the proposed rule requires Amtrak to

conduct at least two full-scale or

tabletop exercises per year on each of its

business units. However, FRA is

considering imposing more rigorous

requirements in the final rule on

operators of intercity service such as

Amtrak in order to ensure the requisite

level of emergency preparedness. By

considering each of the emergency

scenarios that could possibly occur on

the different segments of the railroad

(e.g., simulations of a derailment at a

remote location where emergency

responder assistance is not immediately

available, an on-board fire inside a

tunnel or on a bridge, a derailment

involving a freight train carrying a

hazardous materials spill, etc.), Amtrak

can carefully design a program to fulfill

its overall emergency response needs.

While we recognize that the term

‘‘business unit’’ represents the current

organizational structure of Amtrak in

1997, and have therefore incorporated

that concept into the proposed rule,

FRA expects to craft a term for inclusion

in the final rule that has broader

applicability.

While the proposal requires railroads

that provide intercity passenger train

service to conduct two emergency

simulations on each business unit or

other major organizational element

during each calendar year, FRA seeks

public comment on whether this

number should be increased in the final

rule. Commenters, especially those

representing members of the emergency

response community, are encouraged to

discuss how their recommended

minimum number of required

emergency simulations can best achieve

the rule’s emergency preparedness

objectives in a cost beneficial manner

that does not compromise rail safety. In

recommending an optimal minimum

number of emergency simulations,

commenters are specifically urged to

opine on how a passenger railroad as

diverse as Amtrak, which operates

coast-to-coast service under a wide

variety of operating conditions through

the jurisdictions of numerous

emergency responders, can best achieve

the emergency preparedness goals of

this section throughout its entire system

without expending a disproportionate

amount of its limited resources.

12. Debriefing and Critique: Section

239.105

Section 239.105 recognizes the value

of conducting a formal evaluation

process after the occurrence of either an

actual emergency situation or an

emergency simulation such as a fullscale or tabletop exercise to determine

what lessons can be learned. To increase

the effectiveness of the evaluation of an

emergency simulation, railroad

personnel should be designated as

evaluators to provide a perspective on

how well the emergency preparedness

plan and procedures were carried out.

Although not required by the proposed

rule, railroads are also encouraged to

invite outside emergency response

organizations and other outside

observers to participate as evaluators.

Evaluators should be given copies of the

railroad’s emergency preparedness plan

before the simulation is conducted, and

a preliminary meeting should be held to

familiarize the evaluators with the drill

or exercise and assign functional areas

of concern for evaluation (e.g.,

communications, evacuation times).

Depending on the elaborateness of the

simulation, evaluators may also choose

to use video cameras to record the

sequence of events, actions of

personnel, and use of emergency

equipment.

The purpose of a debriefing and

critique session is to review with

railroad personnel the reports of

evaluators, present comments or

observations from other persons, and to

assess the need for any remedial action,

either to correct deficiencies or to

generally improve the effectiveness of

the emergency operations and

procedures. Persons responsible for

conducting the sessions should be

instructed by the railroad to ask

questions that will test emergency

preparedness procedures, assess

training, and evaluate equipment. After

a simulation, these persons should

debrief all participants (including

simulated victims, if any) who can offer

valuable insights and thus help the

railroad to revise its procedures. The

debriefing session should help to

determine what emergency

preparedness or response procedures

could not be used because of the special

circumstances of either the train or the

passengers, and whether coordination

between the railroad and the emergency

responders requires improvement.

The above method of conducting postsimulation debriefing and critique

sessions should also be used by

railroads to evaluate reactions to actual

emergencies. Weaknesses in emergency

preparedness procedures and

equipment and areas for improving

training should be identified, and the

railroad shall amend its emergency

preparedness plan in accordance with

proposed § 239.201. All persons

involved should be debriefed.

Although the term ‘‘emergency or

emergency situation’’ is defined in

proposed § 239.7 to include a collision

with a person, including suicides, FRA

does expect a railroad to conduct a

debriefing and critique session after

every grade crossing accident. While the

railroad would still be expected to

invoke its emergency preparedness plan

in the event of a grade crossing accident,

the goal of this proposed rule is to

ensure that railroads effectively and

efficiently manage passenger train

emergencies. Accordingly, FRA does not

intend for the debriefing and critique

requirements of this section to apply

when an emergency situation involves

only a motorist or pedestrian who has

been injured or killed, and does affect

the passengers onboard the train. In

addition, a railroad cannot count its

activation of the emergency

preparedness plan under these

circumstances for purposes of satisfying

the emergency simulation requirements

of § 239.103. While a significant

derailment with one or more injured

passengers or a fire on a passenger train

would undoubtedly involve significant

threats to passenger safety, and therefore

require a debriefing and critique

session, the proposed rule leaves open

the question of what other types of

emergency situations would trigger the

requirements of this section. Since the

threshold issue of what constitutes a

‘‘significant threat’’ to the safety or

health of one or more persons requiring

immediate action has not been fully

determined by either FRA or the

Working Group, FRA is seeking public

comment on what sorts of situations to

include in the final rule under the

definition of ‘‘emergency’’ or

‘‘emergency situation’’ set forth in

proposed § 239.7.
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8349

The proposed rule does not require

railroads to use a prescribed FRA form

or other specific document at the

debriefing and critique sessions, nor

does the proposed rule set forth specific

questions that railroads must ask after a

simulation or actual emergency.

However, as a result of whatever

means the railroad selects to ascertain

the effectiveness of its emergency

preparedness plan, paragraph (b)

requires the railroad to determine the

functional capabilities of the on-board

communications equipment, the

timeliness of the required emergency

notifications, and the overall efficiency

of the emergency responders and the

emergency egress of the passengers.

In order to achieve the goals of this

proposed section, and to comply with

the debriefing and critique

recordkeeping requirement of paragraph

(c), evaluators should be provided with

critique sheets, to be collected and used

in the debriefing and critique sessions

conducted by the railroads. At a

minimum, whatever documentation the

railroad selects to comply with

paragraph (c) should contain the date(s)

and location(s) of the simulation and the

debriefing and critique session, and

should include the names of all

participants. Under the proposed rule,

the critique sheets, or equivalent

records, would then be maintained by

the railroad at its system and applicable

division headquarters, and be made

available for FRA inspection and

copying during normal business hours.

FRA invites comments on whether the

final rule should specify additional

types of issues that must be addressed

by railroads at debriefing and critique

sessions (in addition to the five issues

required to be addressed in proposed

paragraph (b)), or whether each railroad

should retain some flexibility to develop

it own approach to conducting these

sessions. In this regard, FRA encourages

comments on the relative value of the

final rule requiring discussion and

documentation of any or all of the

following questions:

• Did on-board personnel try to

initiate a radio call immediately?

• How long did it take for on-board

personnel to reach and inform the

control center of the emergency

situation?

• What was the method of

notification to the control center? Was

the method an on-board radio or a

wayside radio (if equipped)?

• Was there adequate radio

communication equipment? Was it used

properly? Did it work properly?

• Did on-board personnel know the

proper emergency telephone number to

call from the wayside telephone?

• Did on-board personnel identify

him/herself to the control center by

name and location?

• Did on-board personnel report the

number (approximate or actual, as

appropriate) and status of the

passengers?

• Did on-board personnel make

audible, appropriate announcements to

passengers? How many minutes elapsed

after the simulation or emergency began

before the first announcement was

made?

• Did on-board personnel properly

operate the fire extinguishers?

• Did on-board personnel request

deenergization of the third rail or

catenary power?

• Did on-board personnel request the

halting of train movements?

• How long did it take for the first

emergency response unit to arrive at the

emergency scene?

• How long did it take to completely

evacuate the train or right-of-way

structure or wayside facility and/or

extinguish a fire (real or simulated)?

In its comments on the revised

regulatory text, METROLINK stated that

if a commuter railroad performs a

tabletop exercise or simulation it cannot

follow the criteria for a debriefing and

critique session set forth in this section.

Specifically, METROLINK contends that

during field drill and tabletop exercise

simulations the railroads usually do not

involve real passengers and do not

notify the emergency responders via the

normal means of communication.

Moreover, the emergency responders do

not respond with lights and sirens as

they would under real emergency

conditions.

13. Emergency Exits: Section 239.107

In the course of normal passenger

train operations, persons enter and exit

passenger cars at a station platform

through doors on the side of the train.

However, when a disabled train cannot

be moved to the nearest station,

alternative evacuation methods must be

employed. Emergency access to and

egress from a passenger car may be

achieved through outside doors, end

doors, and windows. In some

emergencies, such as when a fire is

confined to a single passenger car,

persons may be moved through the end

door(s) to an adjacent car. In other

emergencies, transfer of all the

passengers from the disabled train may

be required.

Not all passenger cars have vestibule

side doors on both ends, and in some

equipment, operation of these doors has

required considerable effort, including

hand tools. If a power loss occurs,

crewmembers may be unable to open

either or both of the car vestibule side

doors from the normal key control

station in the car. If side-door

emergency controls permit opening of

only one sliding door, it could prove

difficult to move certain individuals

through it. Also, if the vestibule side

doors cannot be opened immediately

from either the inside or the outside,

persons may panic and could be injured

as others attempt to leave the car.

Commuter railroads have agreed to

FRA’s request that arrangements

requiring hand tools (coins and pencils)

be retrofitted. Two railroads with

significant numbers of affected cars are

already completing this work, and this

issue will be separately addressed in the

forthcoming NPRM on Passenger

Equipment Safety Standards. The

Passenger Equipment Safety Standards

Working Group will be evaluating other

improvements in door design and

operation. Paragraph 239.107(a) requires

that all doors intended by a railroad to

be used during an emergency situation

be properly marked inside and outside,

and that the railroad post clear and

understandable instructions for their

use at the designated locations.

Paragraph 239.107(a)(1) requires that

the emergency egress exits be

conspicuously and legibly marked on

the inside of the car with luminescent

material or be properly lighted. FRA

realizes that during an emergency the

main power supply to the passenger

cars may become inoperative and that

crewmembers with portable flashlights

may be unavailable. Since lack of clear

identification or lighting could make it

difficult for passengers to find the

emergency door exits, the proposed rule

requires luminescent material on all

emergency egress door exits (or

secondary auxiliary lighting near these

exits) to assist and speed passenger

egress from the train during an

emergency. The marking of the

emergency door exits must be

conspicuous enough so that a

reasonable person, even while enduring

the stress and panic of an emergency

evacuation, can determine where the

closest and most accessible emergency

route out of the car is located. In

addition, while this proposed section

does not prescribe a particular brand,

type, or color of luminescent paint or

material that a railroad must use to

identify an exit, FRA expects each

railroad to select a material durable

enough to withstand the daily effects of

passenger traffic, such as the contact

that occurs as passengers enter and

leave the cars.

Paragraph 239.107(a)(2) requires that

the emergency door exits intended for

emergency access by emergency
8350 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

responders for extrication of passengers

be marked with retroreflective material,

so that the emergency responders can

easily distinguish them from the

nonaccessible doors simply by shining

their flashlights or other portable

lighting on the marking or symbol

selected by the railroad. Again, while

this proposed section does not prescribe

that a railroad use a particular brand,

type, or color of retroreflective material

to identify an access location, FRA

expects each railroad to select a material

durable enough to withstand the daily

effects of weather and passenger

contact, and capable of resisting, to the

extent possible, the effects of heat and

fire. If all doors are equally operable

from the exterior, no designation would

be useful, nor would any be required. In

a separate rulemaking, FRA’s Passenger

Equipment Safety Standards Working

Group (FRA Docket No. PCSS–1) will

address appropriate requirements for

periodic maintenance and replacement

of the emergency door exit markings.

The proposed rule requires railroads

to post clear and understandable

instructions at designated locations

describing how to operate the

emergency door exits. This section does

not mandate that railroads use specific

words or phrases to guide the

passengers and emergency responders.

Instead, each railroad should evaluate

the operational characteristics of its

emergency door exits, and select key

words or diagrams that adequately

inform the individuals who must use

them. While railroads are encouraged to

post comprehensive instructions, FRA

also realizes that during an emergency

situation every additional moment

devoted to reading and understanding

access or egress information places lives

at risk. In addition, FRA would already

expect passengers and emergency

responders to be familiar with the

location and operation of the railroad’s

emergency door exits as a result of

emergency responder liaison activities

and passenger awareness programs

conducted in accordance with proposed

§ 239.101 (a)(5) and (a)(7).

Paragraph (b) requires each railroad

operating passenger train service to

properly consider the nature and

characteristics of its operations and

passenger equipment to plan for routine

and scheduled inspection, maintenance,

and repair of all windows and door exits

intended for either emergency egress or

rescue access by emergency responders.

In the case of emergency window exits,

the inspection, maintenance, and repair

activities should be performed

consistent with the requirements of part

223 of this chapter. While the proposed

rule does not require railroads to

perform these tasks in accordance with

a specific timetable or methodology,

except with respect to the periodic

sampling requirement for emergency

window exits discussed below, FRA

expects each railroad to develop and

implement procedures for achieving the

goals of this paragraph. Visual

inspections must be performed

periodically to verify that no emergency

exit has a broken release mechanism or

other overt sign that would render it

unable to function in an emergency.

Maintenance, including lubrication or

scheduled replacement of depreciated

parts or mechanisms, must be

performed in accordance with standard

industry practice and/or manufacturer

recommendations. All emergency exits

that are found during the course of an

inspection or maintenance cycle to be

broken, disabled, or otherwise incapable

of performing their intended safety

function must be repaired before the

railroad may return the car to passenger

service.

Carrying forward requirements

currently contained in FRA’s Emergency

Order No. 20, the proposed rule also

requires each railroad to periodically

test a representative sample of

emergency window exits on its

passenger cars to verify their proper

operation. The sampling of these

emergency window exits must be

conducted in conformity with either of

two commonly recognized alternate

methods, which will provide a degree of

uniformity industry wide. Both methods

require sampling meeting a 95-percent

confidence level that all emergency

window exits operate properly (i.e., the

methods do not accept a defect rate of

5 percent). Rather than require railroads

to test all window exits on a specific

type or series of car if one car has a

defective window exit, the proposed

rule permits the railroads to use

commonly accepted sampling

techniques to determine how many

additional windows to test. In general,

these principles require that the greater

the percentage of windows exits that a

railroad finds defective, the greater the

percentage of windows that the railroad

will have to test. Specifically, sampling

must be conducted to meet a 95-percent

confidence level that no defective units

remain in the universe and be in accord

with either Military Standard MIL–

STD–105(D) Sampling for Attributes or

American National Standards Institute

ANSI–ASQC Z1.4–1993 Sampling

Procedures for Inspections by

Attributes. Defective units must be

repaired before the passenger car is

returned to service.

The proposal specifies that a railroad

must test a representative sample of

emergency window exits on its cars at

least once during every 180 days to

verify their proper operation. However

commenters are encouraged to address

this issue by indicating whether the

sampling should occur on an annual

basis, or on a less frequent basis.

Commenters are also urged, if possible,

to provide scientific data and/or cost

estimates to support their suggested

sampling interval.

The inspection, maintenance, and

repair records concerning emergency

window and door exits must be retained

at the system headquarters for the

railroad and at the division

headquarters for each division where

the inspections, maintenance, or repairs

are performed (i.e., the records

availability must be division specific).

The records can consist of multiple

documents, and may contain separate

sections covering inspection,

maintenance, and repair or separate

sections covering different types of

passenger equipment. Additionally,

railroads must make these inspection,

maintenance, and repair records

available to duly authorized FRA

representatives for inspection and

copying (e.g., photocopying or

handwritten notetaking) during normal

business hours.

METROLINK commented that in

order to avoid the unnecessary burden

of maintaining duplicate records, the

rule should require railroads to store all

of the maintenance records for the

emergency window and door exits at the

site of the inspections. In METROLINK’s

case, that site would be the applicable

division headquarters, which is no more

than 15 miles from its system

headquarters. METROLINK also noted

that paragraph 239.107(c) does not

indicate for how long the inspection

records must be retained, and

recommended that since the current

rule calls for major service inspections

to be retained for 180 days (or until the

next inspection is performed) the final

rule should establish a similar

timeframe.

14. Emergency Preparedness Plan;

Filing and Approval: Section 239.201

Section 239.201 specifies the process

for review and approval of each

railroad’s emergency preparedness plan

by FRA. The intent of the review and

approval is to be constructive, rather

than restrictive. It is anticipated that the

railroads will develop and implement

varied plans based upon the special

circumstances involving their

individual operations. Under the

proposal, FRA would also require that

the railroad summarize its internal

discussions and deliberative processes
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8351

to explain how the railroad’s unique

and individual operating characteristics

determined how each issue was finally

addressed in the emergency

preparedness plan. Specifically, FRA

expects the railroad to include a review

of the analysis that led to each element

of the emergency preparedness plan it

submits to FRA for approval, including

a consideration of the expected

monetary costs and anticipated safety

benefits associated with each section of

the plan.

In its comments, METROLINK stated

that the term ‘‘analysis’’ in the phrase

‘‘shall include a summary of the

railroad’s analysis supporting each plan

element and describing how each

condition on the railroad’s property is

addressed in the plan’’ is vague and

lacking in direction. METROLINK then

asked whether FRA expects to receive a

cost benefit analysis, systems approach,

or safety value analysis. In addition,

METROLINK questioned whether the

term ‘‘condition on the railroad’s

property’’ concerns elements of the plan

such as earthquakes, wind, and power

outages.

FRA will conduct a review of each

plan so that there can be an open

discussion of the plan’s provisions from

which all concerned parties can benefit.

However, in order to ensure compliance

with minimum plan requirements FRA

will review each plan in detail prior to

approval and implementation. FRA

expects to involve members of the

Passenger Train Emergency

Preparedness Working Group in

developing benchmark criteria for plan

approvals to simplify plan development

and approval. It is anticipated that this

criteria will address program elements

that include the following:

• Specific course content for training

programs of on-board personnel, control

center personnel, and other key

employees;

• Minimum requirements for

emergency exercises, including

frequency and content of drills with

emergency responders and simulations

to determine rapidity of emergency

evacuations under varying scenarios;

• Specific means for providing

emergency safety information to

passengers, similar to on-board briefings

provided in commercial aviation;

• Detailed requirements for tunnel

safety, including lighting and

equipment; and

• Additional attention to emergency

equipment, by prescribing types and

numbers of various kinds of equipment

that may be useful under varying

operating scenarios.

FRA will also review all plan

amendments prior to their going into

effect. FRA requests comment on

whether there are any categories of plan

amendments that should be permitted to

go into effect immediately, prior to

review and approval, because they

constitute improvements for which

implementation delay should be

avoided.

All persons, such as contractors, who

perform any action on behalf of a

railroad will be required to conform to

the emergency preparedness plans in

effect on the railroads upon which they

are working. Persons whose employees

are working under a railroad’s approved

emergency preparedness plan need not

submit a separate plan to FRA for

review and approval. For example, if a

railroad hires an outside independent

contractor to conduct an emergency

simulation pursuant to 49 CFR 239.103,

the contractor must perform this task in

accordance with the railroad’s plan.

However, if a freight railroad train crew

operates a passenger train for a

commuter rail authority, the freight

railroad must coordinate the applicable

portions of its emergency preparedness

plan with the corresponding portions of

the commuter rail authority’s, unless an

assignment of responsibility for

compliance is made under 49 CFR

239.101(a)(3).

The proposed rule does not

specifically call for the involvement of

railroad employees or their

representatives in the process of

designing or reviewing the emergency

preparedness plan, because the

responsibility for having a plan that

conforms with this rule lies with the

employer. However, it should be noted

that the success of an emergency

preparedness plan will require the

willing cooperation of all persons whose

duties or personal safety are affected by

the plan.

15. Retention of Emergency

Preparedness Plan: Section 239.203

The emergency preparedness plan

and all subsequent amendments must be

retained at the system headquarters for

the railroad and at the division

headquarters for each division where

the plan is in effect (i.e., the records

availability must be division specific).

The emergency preparedness plan may

consist of multiple documents or

booklets and may contain separate

sections covering the varying job

functions and plan responsibilities of

on-board and control center personnel.

Additionally, railroads must make their

emergency preparedness plan records

available to duly authorized FRA

representatives for inspection and

copying (e.g., photocopying or

handwritten notetaking) during normal

business hours.

16. Operational (efficiency) tests:

Section 239.301

Section 239.301 contains the

requirement that railroads monitor the

routine performance of employees who

have individual responsibilities under

the emergency preparedness plan to

verify that the employee can perform

the duties required under the plan in a

safe and effective manner. It permits the

railroad to test proficiency by requiring

the employee to complete a written or

oral examination, an interactive training

program using a computer, a practical

demonstration of understanding and

ability, or an appropriate combination of

these in accordance with this section.

This testing can also involve check rides

and control center visits, along with

unannounced, covert observation of the

employees.

This section requires a railroad to

keep a record of the date, time, place,

and result of each operational

(efficiency) test that was performed in

accordance with its emergency

preparedness plan. Each record must

identify the railroad officer

administering the test of each employee.

Accordingly, by identifying the specific

data points that each record must

provide, this section will promote the

examination of relevant information

from captured data sources, enabling

FRA to better determine the

effectiveness of a railroad’s emergency

preparedness plan. Written or electronic

records must be kept of these

operational (efficiency) tests for one

calendar year after the end of the year

in which the test was conducted,

available for inspection and copying by

FRA during normal business hours.

17. Electronic recordkeeping: Section

239.303

Section 239.303 authorizes railroads

to retain their operational (efficiency)

test records by electronic recordkeeping,

subject to the conditions set forth in that

provision. This provision provides an

alternative for railroads retaining certain

information, as required in proposed

§ 239.301. FRA realizes that requiring

railroads to retain the information in

paper form would impose additional

administrative and storage costs, and

that computer storage of these

documents would also enable railroads

to immediately update any amendments

to their operational testing programs.

Each participating railroad must have

the essential components of a computer

system, i.e., a desktop computer and

either a facsimile machine or a printer

connected to retrieve and produce
8352 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

records for immediate review. The

material retrieved in hard copy form

must contain relevant information

organized in usable format to render the

data completely understandable. The

documents must be made available for

FRA inspection during normal business

hours, which FRA interprets as the

times and days of the week when

railroads conduct their regular business

transactions. Nevertheless, FRA reserves

the right to review and examine the

documents prepared in accordance with

the Passenger Train Emergency

Preparedness regulations at any

reasonable time if situations warrant.

Additionally, each railroad must

provide adequate security measures to

limit employee access to its electronic

data processing system and must

prescribe who can create, modify, or

delete data from the database. Although

FRA does not identify the management

position capable of instituting changes

in the database, each railroad must

indicate the source authorized to make

such changes. Each railroad must also

designate who will be authorized to

authenticate the hard copies produced

from the electronic format. In short,

each railroad electing to electronically

retain its records must ensure the

integrity of the information and prevent

possible tampering of data, enabling

FRA to fully execute its enforcement

responsibilities.

Regulatory Impact

Executive Order 12866 and DOT

Regulatory Policies and Procedures

This proposed rule has been

evaluated in accordance with existing

policies and procedures. Due to the

intense public interest in the subject

matter of the proposed rule, the

proposed rule is considered to be

significant under both Executive Order

12866 and DOT policies and procedures

(44 FR 11034; February 26, 1979). FRA

has prepared and placed in the docket

a regulatory analysis addressing the

economic impact of the proposed rule.

It may be inspected and photocopied at

the Office of Chief Counsel, FRA,

Seventh Floor, 1120 Vermont Avenue,

N.W., in Washington, D.C. Photocopies

may also be obtained by submitting a

written request to the FRA Docket Clerk

at Office of Chief Counsel, Federal

Railroad Administration, 400 Seventh

Street, S.W., Washington, D.C. 20590.

As part of the benefit-cost analysis,

FRA has assessed quantitative

measurements of costs and benefits

expected from the adoption of the

proposed rule. The Net Present Value

(NPV) of the total 20-year costs which

the industry is expected to incur is

$4.285 million. Following is a

breakdown of the costs by requirement.

Section Requirement Cost

239.101, 201, 203 .. Emergency Preparedness Plan (EPP) ............................................................................................................ $105,754

Control Center Notification .............................................................................................................................. 957

On-board Personnel Training .......................................................................................................................... 0

Control Center Personnel Training .................................................................................................................. 55,520

Joint Operations .............................................................................................................................................. 16,562

Parallel Operations .......................................................................................................................................... 1,297

Emergency Responder Liaison

—Provide EPP to Responders ........................................................................................................................ 12,741

—Awareness of Responder Capabilities ......................................................................................................... 56,928

On-board Emergency Equipment

—One Fire Extinguisher/Car ........................................................................................................................... 147,801

—One Pry Bar/Car .......................................................................................................................................... 92,066

—Instruction on Pry Bar Use .......................................................................................................................... 242,868

Passenger Safety Awareness

—Permanent On-board Procedures ................................................................................................................ 65,611

—Periodic Reinforcement ................................................................................................................................ 0

—Annual Customer Surveys ........................................................................................................................... 26,616

239.103, 105 .......... Passenger Train Emergency Simulations ....................................................................................................... 969,140

239.107 .................. Emergency Exits

—Marking—Interior .......................................................................................................................................... 450,525

—Marking—Exterior ........................................................................................................................................ 1,347,505

—Inspection and Recordkeeping .................................................................................................................... 327,948

239.301 .................. Operational Efficiency Tests ............................................................................................................................ 590,441

Total ................ .......................................................................................................................................................................... 4,510,280

Each year there are passenger train

accidents which result in one or more

fatalities. In the last ten years there have

been about seven passenger train

accidents which resulted in a significant

loss of life. FRA does not know how

many commuter or intercity train

accidents will occur in the future.

Although the passenger rail industry has

a very high level of safety, the potential

for injuries and loss of life in certain

emergency situations is very high. FRA

believes that the proposed rule

represents a cost-effective approach to

providing a reasonable level of

protection against known threats to

human life, and that if only two

fatalities were to be avoided over a

twenty-year period then the rule would

be cost beneficial. Accordingly, while

FRA cannot predict with confidence the

likelihood of particular accident

circumstances in which particular rule

elements will be useful, FRA believes

that it is reasonable to expect that the

measures called for in this proposal

would prevent or mitigate the severity

of injuries greater in value than the costs

of developing and implementing

emergency preparedness plans.

Monetary benefit levels associated

with several of the proposed

requirements are not estimated due to

lack of data. FRA would greatly

appreciate receiving information and

comments regarding the benefits that

would result from complying with the

distinct requirements proposed. It

should be noted that FRA expects total

benefits to exceed total costs for the

proposed rule, and that the rule’s

provisions are necessary components of

FRA’s overall initiatives for passenger

train emergency preparedness.

Included within the $4,510,280 total

cost figure are proposed requirements

for equipping each passenger car with a

pry bar, marking and inspecting

emergency exits, and providing

passengers with emergency situation

procedures that will ensure that each
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8353

passenger is able to escape from a life

threatening situation on his or her own

initiative. The NPV of the twenty-year

cost associated with the requirements

aimed at ensuring that in a life

threatening situation passengers trapped

in a car would be afforded enough

opportunity to escape safely is $1.2

million.

Section Requirement Cost

239.101 .................. Pry Bars

—One Pry Bar per Car .................................................................................................................................... $ 92,066

—Instruction on Pry Bar Use .......................................................................................................................... 242,868

Passenger Safety Awareness

—Permanent Car Procedures ......................................................................................................................... 65,611

—Periodic Reinforcement ................................................................................................................................ 0

Annual Customer Surveys ............................................................................................................................... 26,616

239.107 .................. Marking Emergency Exits—Interior ................................................................................................................. 450,525

Inspection of Emergency Exits ........................................................................................................................ 327,948

Total ................ .......................................................................................................................................................................... 1,193,820

These costs would be justified if the

next passenger train emergency

situation is handled in such a way that

loss of life is contained.

As previously noted, FRA is allowing

60 days for comments and invites public

comment on the issue of regulatory

impact. FRA seeks comment and/or data

to help identify or quantify other factors

that may affect the benefits or costs of

the proposal, including alternatives that

were not explored by the Working

Group and any costs or benefits

associated with such alternatives.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980

(5 U.S.C. 601 et seq.) requires an

assessment of the impacts of proposed

rules on small entities. This proposed

rule affects intercity and commuter

passenger railroads. Commuter railroads

are part of larger transit organizations

that receive Federal funds. The

American Public Transit Association

(APTA) represents the interests of

commuter railroads in regulatory

matters. Further, the proposed standards

were developed by FRA in consultation

with a Working Group that included

Amtrak, individual commuter railroads,

and APTA.

Entities impacted by the proposed

rule are governmental jurisdictions or

transit authorities, none of which are

small for purposes of the United States

Small Business Administration (i.e., no

entity operates in a locality with a

population of under 50,000 people).

Smaller commuter railroads will not be

affected disproportionately. The level of

costs incurred by each organization

should vary in proportion to the

organization’s size. For instance,

railroads with fewer employees and

fewer passenger cars will have lower

costs associated with both employee

efficiency testing and emergency exit

inspections.

Smaller passenger rail operations

such as tourist, scenic, excursion, and

historic railroads are excepted from the

proposed rule. The proposed rule does

not affect small entities.

A joint FRA/industry working group

formed by the RSAC is currently

developing recommendations regarding

the applicability of FRA regulations,

including this one, to tourist, scenic,

historic, and excursion railroads. After

appropriate consultation with the

excursion railroad associations takes

place, emergency preparedness

requirements for these operations may

be proposed by FRA that are different

from those affecting other types of

passenger train operations. These

requirements may be more or less

onerous, or simply different in detail,

depending in part on the information

gathered during FRA’s consultation

process.

Paperwork Reduction Act

The proposed rule contains

information collection requirements.

FRA has submitted these information

collection requirements 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. 3507(d) et seq.). FRA has

endeavored to keep the burden

associated with this proposal as simple

and minimal as possible. The proposed

sections that contain the new and/or

revised 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 annualburden hours

Total annual

burden cost

223..9d/ 239.107:

A. Emergency egress ..... 17 RRs ........ 1,300 new decals ................... 4 minutes ............................... 621 $18,630

4,575 replace decals ............. 7 minutes ............................... ........................ ........................

1,300 new decals ................... ................................................ ........................ ........................

B. Emergency exits ......... 17 RRs ........ 6,320 new decals ................... 4 minutes ............................... 824 24,720

................................................ 7 minutes ............................... ........................ ........................

239.107(b) .............................. 17 RRs ........ 1,800 tests ............................. 20 minutes (18 minutes to

perform test and 2 minutes

for recordkeeping).

600 18,000

239.101/239.201 .................... 17 RRs ........ 17 plans ................................. 158 hours ............................... 2,685 90,168

17 RRs ........ 17 amendments ..................... 1.6 hours ................................ 27 756

239.101 (1)(i) .......................... 17 RRs ........ N/A ......................................... Usual and customary procedure—No new paperwork.N/A N/A

239.101 (1)(ii) ......................... 17 RRs ........ N/A ......................................... Usual and customary procedure—No new paperwork.N/A N/A

239.101 (1)(ii) ......................... 5 RRs .......... 5 updates of records .............. 1 hour .................................... 5 140

239.101 (a)(3) ........................ 33 RRs ........ 33 negotiations ...................... 16 hours ................................. 528 19,800

239.101 (a)(7)(ii) .................... 5 RRs .......... 1,300 passenger cars ............ 5 minutes per bulkhead card 108 2,808
8354 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

CFR section Respondent

universe Total annual responses Average time per response Total annualburden hours

Total annual

burden cost

5 safety messages ................. 1 hour per RR to develop

safety message.

5 190

239.105 .................................. 17 RRs ........ 66 records .............................. 30 minutes per record ........... 33 924

239.301/ 239.303 ................... 17 RRs ........ 11,600 tests ........................... 8 minutes per test .................. 1,547 58,786

239.101 (a)(5) ........................ 16 RRs ........ 16 reponses to distribute info

to emergency responders.

2 hours ................................... 32 896

1 RR (Amtrak).1 response to distribute info

to emergency responders.

100 hours ............................... 100 2,800

16 RRs ........ 16 updates of emergency responder records.30 minutes per updated ......... 8 224

1RR (Amtrak).1 update of emergency responder records.5 hours ................................... 5 140

All estimates include the time for

reviewing instructions; searching

existing data sources; gathering or

maintaining the needed data; and

reviewing the information. Pursuant to

44 U.S.C. 3506(c)(2)(B), FRA solicits

comments concerning: whether these

information collection requirements are

necessary for the proper performance of

the functions of FRA, including whether

the information has practical utility; the

accuracy of FRA’s estimates of the

burden of the information collection

requirements; the quality, utility, and

clarity of the information to be

collected; and whether the burden of

collection of information on those who

are to respond, including through the

use of automated collection techniques

or other forms of information

technology, may be minimized. For

information or a copy of the paperwork

package submitted to OMB, please

contact Ms. Gloria Swanson at 202–632–

3318.

Organizations and individuals

desiring to submit comments on the

collection of information requirements

should submit their views in writing to

the Office of Management and Budget,

Attention: Desk Officer for the Federal

Railroad Administration, Office and

Information and Regulatory Affairs,

New Executive Office Building, 726

Jackson Place, N.W., Washington, D.C.

20503, and should also send a copy of

their comments to Ms. Gloria D.

Swanson, Federal Railroad

Administration, RRS–21.1, 400 Seventh

Street, S.W., Washington D.C. 20590.

Copies of any such comments should

also be submitted to the docket of this

rulemaking at the mailing address for

the Docket Clerk provided above.

OMB is required to make a decision

concerning the collection of information

requirements contained in this NPRM

between 30 and 60 days after

publication of this document in the

Federal Register. Therefore, a comment

to OMB is best assured of having its full

effect if OMB receives it within 30 days

of publication. The final rule will

respond to any OMB or public

comments on the information collection

requirements contained in this proposal.

FRA is not authorized to impose a

penalty on persons for violating

information collection requirements

which do not display a current OMB

control number, if required. FRA

intends to obtain current OMB control

numbers for any new information

collection requirements resulting from

this rulemaking action prior to the

effective date of a final rule. The OMB

control number, when assigned, will be

announced in the Federal Register.

Environmental Impact

FRA has evaluated these proposed

regulations in accordance with its

procedures for ensuring full

consideration of the environmental

impact of FRA actions, as required by

the National Environmental Policy Act

(42 U.S.C. 4321 et seq.), and related

directives. This notice meets the criteria

that establish this as a non-major action

for environmental purposes.

Federalism Implications

This proposed rule has been analyzed

in accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

the proposed rule does not have

sufficient federalism implications to

warrant the preparation of a Federalism

Assessment. The fundamental policy

decision providing that Federal

regulations should govern aspects of

service provided by municipal and

public benefit corporations (or agencies)

of State governments is embodied in the

statute quoted above. FRA has made

every effort to provide reasonable

flexibility to State-level decision making

and has included commuter authorities

as full partners in development of this

proposed rule.

List of Subjects

49 CFR Part 223

Railroad safety, Glazing standards.

49 CFR Part 239

Railroad safety, Passenger train

emergency preparedness.

Request for Public Comments

FRA proposes to amend part 223 and

adopt a new part 239 of Title 49, Code

of Federal Regulations, as set forth

below. FRA solicits comments on all

aspects of the proposed rule whether

through written submissions, or

participation in the public hearing, or

both. FRA may make changes in the

final rule based on comments received

in response to this notice.

The Proposed Rule

In consideration of the foregoing, FRA

proposes to amend chapter II of Title 49,

Code of Federal Regulations as follows:

PART 223—[AMENDED]

1. The authority citation for part 223

is revised to read as follows:

Authority: 49 U.S.C. 20102–20103, 20105–

20114, 20133, 20701, 21301–21302, and

21304; Sec. 215, Pub. L. No. 103–440, 108

Stat. 4623–4624 (49 U.S.C. 20133); and 49

CFR 1.49(c), (g), (m).

2. By revising § 223.5 to read as

follows:

§ 223.5 Definitions.

As used in this part—

Caboose means a car in a freight train

intended to provide transportation for

crewmembers.

Certified glazing means a glazing

material that has been certified by the

manufacturer as having met the testing

requirements set forth in Appendix A of

this part and that has been installed in

such a manner that it will perform its

intended function.

Designated service means exclusive

operation of a locomotive under the

following conditions:
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8355

(1) The locomotive is not used as an

independent unit or the controlling unit

is a consist of locomotives except when

moving for the purpose of servicing or

repair within a single yard area;

(2) The locomotive is not occupied by

operating or deadhead crews outside a

single yard area; and

(3) The locomotive is stenciled

‘‘Designated Service—DO NOT

OCCUPY’’.

Emergency opening window means

that segment of a side facing glazing

location which has been designed to

permit rapid and easy removal during a

crisis situation.

Emergency responder means a

qualified member of a police or fire

department, or other organization

involved with public safety, who

responds to a passenger train

emergency.

End facing glazing location means any

location where a line perpendicular to

the plane of the glazing material makes

a horizontal angle of 50 degrees or less

with the centerline of the locomotive,

caboose or passenger car. Any location

which, due to curvature of the glazing

material, can meet the criteria for either

a front facing location or a side facing

location shall be considered a front

facing location.

Locomotive means a self-propelled

unit of equipment designed primarily

for moving other equipment. It does not

include self-propelled passenger cars.

Locomotive cab means that portion of

the superstructure designed to be

occupied by the crew while operating

the locomotive.

Passenger car means a unit of rolling

equipment intended to provide

transportation for members of the

general public and includes selfpropelled cars designed to carry

baggage, mail, express and passengers.

Passenger train service means the

transportation of persons (other than

employees, contractors, or persons

riding equipment to observe or monitor

railroad operations) in intercity

passenger service, commuter or other

short-haul service.

Railroad means:

(1) Any form of non-highway ground

transportation that runs on rails or

electromagnetic guideways, including:

(i) Commuter or other short-haul rail

passenger service in a metropolitan or

suburban area and commuter railroad

service that was operated by the

Consolidated Rail Corporation on

January 1, 1979, and

(ii) High speed ground transportation

systems that connect metropolitan areas,

without regard to whether those systems

use new technologies not associated

with traditional railroads, but does not

include rapid transit operations in an

urban area that are not connected to the

general railroad system of transportation

and

(2) A person that provides railroad

transportation, whether directly or by

contracting out operation of the railroad

to another person.

Rebuilt locomotive, caboose or

passenger car means a locomotive,

caboose or passenger car that has

undergone overhaul which has been

identified by the railroad as a capital

expense under Surface Transportation

Board accounting standards.

Side facing glazing location means

any location where a line perpendicular

to the plane of the glazing material

makes an angle of more than 50 degrees

with the centerline of the locomotive,

caboose or passenger car.

Windshield means the combination of

individual units of glazing material of

the locomotive, passenger car, or

caboose that are positioned in an end

facing glazing location.

Yard is a system of auxiliary tracks

used exclusively for the classification of

passenger or freight cars according to

commodity or destination; assembling

of cars for train movement; storage of

cars; or repair of equipment.

Yard caboose means a caboose that is

used exclusively in a single yard area.

Yard locomotive means a locomotive

that is operated only to perform

switching functions within a single yard

area.

3. In § 223.9, paragraph (d) is added

to read as follows:

§ 223.9 Requirements for new or rebuilt

equipment.

* * * * *

(d) Marking. Each railroad providing

passenger train service shall ensure that:

(1) All emergency windows are

conspicuously and legibly marked with

luminescent material on the inside of

each car to facilitate passenger egress.

Each railroad shall post clear and legible

operating instructions at or near such

exits.

(2) All windows intended for

emergency access by emergency

responders for extrication of passengers

are marked with a retroreflective,

unique, and easily recognizable symbol

or other clear marking. Each railroad

shall post clear and understandable

window access instructions either at

each window or at the car ends.

4. Part 239 is added to read as follows:

PART 239—PASSENGER TRAIN

EMERGENCY PREPAREDNESS

Subpart A—General

Sec.

239.1 Purpose and scope.

239.3 Application.

239.5 Preemptive effect.

239.7 Definitions.

239.9 Responsibility for compliance.

239.11 Penalties.

Subpart B—Specific Requirements

239.101 Emergency preparedness plan.

239.103 Passenger train emergency

simulations.

239.105 Debriefing and critique.

239.107 Emergency exits.

Subpart C—Review, Approval, and

Retention of Emergency Preparedness

Plans

239.201 Emergency preparedness plan;

filing and approval.

239.203 Retention of emergency

preparedness plan.

Subpart D—Operational (Efficiency) Tests;

Inspection of Records and Recordkeeping

239.301 Operational (efficiency) tests.

239.303 Electronic recordkeeping.

Appendix A to Part 239—Schedule of Civil

Penalties (Reserved)

Authority: 49 U.S.C. 20102–20103, 20105–

20114, 20133, 21301, 21304, and 21311; Sec.

215, Pub. L. No. 103–440, 108 Stat. 4623–

4624 (49 U.S.C. 20133); and 49 CFR 1.49 (c),

(g), (m).

Subpart A—General

§ 239.1 Purpose and scope.

(a) The purpose of this part is to

reduce the magnitude and severity of

casualties in railroad operations by

ensuring that railroads involved in

passenger train operations can

effectively and efficiently manage

passenger train emergencies.

(b) This part prescribes minimum

Federal safety standards for the

preparation, adoption, and

implementation of emergency

preparedness plans by railroads

connected with the operation of

passenger trains, and requires each

affected railroad to instruct its

employees on the plan’s provisions.

This part does not restrict railroads from

adopting and enforcing additional or

more stringent requirements not

inconsistent with this part.

§ 239.3 Application.

(a) Except as provided in paragraph

(b), this part applies to all:

(1) Railroads that operate intercity or

commuter passenger train service on

standard gage track which is part of the

general railroad system of

transportation;
8356 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

(2) Railroads that provide commuter

or other short-haul rail passenger train

service in a metropolitan or suburban

area [as described by 49 U.S.C.

20102(1)], including public authorities

operating passenger train service; and

(3) Freight railroads hosting the

operation of passenger train service

described in paragraph (a)(1) or (a)(2) of

this section.

(b) This part does not apply to:

(1) Rapid transit operations in an

urban area that are not connected with

the general railroad system of

transportation;

(2) Operation of private cars,

including business/office cars and

circus trains; or

(3) Tourist, scenic, historic, or

excursion operations, whether on or off

the general railroad system.

§ 239.5 Preemptive effect.

Under 49 U.S.C. 20106 [formerly

§ 205 of the Federal Railroad Safety Act

of 1970 (45 U.S.C. 434)], issuance of

these regulations preempts any State

law, rule, regulation, order, or standard

covering the same subject matter, except

a provision necessary to eliminate or

reduce an essentially local safety

hazard, that is not incompatible with

Federal law or regulation and does not

unreasonably burden interstate

commerce.

§ 239.7 Definitions.

As used in this part—

Adjacent rail modes of transportation

includes other railroads, trolleys, light

rail, and heavy transit.

Crewmember means a person, other

than a passenger, who performs either:

(1) On-board functions connected

with the movement of the train or

(2) On-board service.

Control center means a central

location on a railroad with

responsibility for directing the safe

movement of trains.

Division headquarters means the

location designated by the railroad

where a high-level operating manager

(e.g., a superintendent, division

manager, or equivalent), who has

jurisdiction over a portion of the

railroad, has an office.

Emergency or emergency situation

means an unexpected event related to

the operation of passenger train service

involving a significant threat to the

safety or health of one or more persons

requiring immediate action.

Emergency preparedness plan means

one or more documents focusing on

preparedness and response in dealing

with a passenger train emergency.

Emergency responder means a

qualified member of a police or fire

department, or other organization

involved with public safety, who

responds to a passenger train

emergency.

Emergency window means that

segment of a side facing glazing location

which has been designed to permit

rapid and easy removal in an emergency

situation.

Joint operations means rail operations

conducted by more than one railroad on

the same track regardless of whether

such operations are the result of:

(1) Contractual arrangements between

the railroads;

(2) Order of a governmental agency or

a court of law; or

(3) Any other legally binding

directive.

Passenger train service means the

transportation of persons (other than

employees, contractors, or persons

riding equipment to observe or monitor

railroad operations) by railroad in

intercity passenger service, commuter,

or other short-haul passenger service.

Private car means a rail passenger car

used to transport non-revenue

passengers on an occasional contractual

basis, and includes business/office cars

and circus trains.

Qualified means a status attained by

an employee who has successfully

completed any required training for, has

demonstrated proficiency in, and has

been authorized by the employer to

perform the duties of a particular

position or function.

Railroad means:

(1) Any form of non-highway ground

transportation that runs on rails or

electromagnetic guideways, including:

(i) Commuter or other short-haul rail

passenger service in a metropolitan or

suburban area and commuter railroad

service that was operated by the

Consolidated Rail Corporation on

January 1, 1979, and

(ii) High speed ground transportation

systems that connect metropolitan areas,

without regard to whether those systems

use new technologies not associated

with traditional railroads, but does not

include rapid transit operations in an

urban area that are not connected to the

general railroad system of transportation

and

(2) A person that provides railroad

transportation, whether directly or by

contracting out operation of the railroad

to another person.

Railroad officer means any

supervisory employee of a railroad.

System headquarters means the

location designated by the railroad as

the general office for the railroad

system.

§ 239.9 Responsibility for compliance.

Although the requirements of this part

are stated in terms of the duty of a

railroad, when any person, including a

contractor for a railroad, performs any

function required by this part, that

person (whether or not a railroad) is

required to perform that function in

accordance with this part.

§ 239.11 Penalties.

Any person who violates any

requirement of this part or causes the

violation of any such requirement is

subject to a civil penalty of at least $500

and not more than $10,000 per

violation, except that: Penalties may be

assessed against individuals only for

willful violations, and, where a grossly

negligent violation or a pattern of

repeated violations has created an

imminent hazard of death or injury to

persons, or has caused death or injury,

a penalty not to exceed $20,000 per

violation may be assessed. Each day a

violation continues shall constitute a

separate offense. A person may also be

subject to the criminal penalties

provided for in 49 U.S.C. 21311

(formerly codified in 45 U.S.C. 438(e))

for knowingly and willfully falsifying

reports required by this part. Appendix

A contains a schedule of civil penalty

amounts used in connection with this

part.

Subpart B—Specific Requirements

§ 239.101 Emergency preparedness plan.

(a) Each railroad to which this part

applies shall adopt and comply with

written emergency preparedness plan

procedures for implementing each plan

element, including those listed below.

(1) Communication. (i) Initial and onboard notification. An on-board

crewmember shall quickly and

accurately assess the passenger train

emergency situation and then notify the

control center as soon as practicable by

the quickest available means. The train

crewmember shall then inform the

passengers about the nature of the

emergency and indicate what corrective

countermeasures are in progress.

(ii) Notifications by control center.

The control center shall promptly notify

outside emergency responders, adjacent

rail modes of transportation, and

appropriate railroad officials that a

passenger train emergency has occurred.

Each railroad shall designate an

employee responsible for maintaining

current emergency telephone numbers

for use in making such notifications.

(2) Employee training and

qualification. (i) On-board personnel.

The railroad’s emergency preparedness

plan shall address individual employee
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8357

responsibilities, and provide for initial

and periodic training at least once every

two years on the applicable plan

provisions, including, as a minimum:

(A) Rail equipment familiarization;

(B) Situational awareness;

(C) Passenger evacuation;

(D) Coordination of functions; and

(E) ‘‘Hands-on’’ instruction concerning

the location, function, and

operation of on-board emergency

equipment.

(ii) Control center personnel. The

railroad’s emergency preparedness plan

shall require initial and periodic

training at least once every two years of

responsible control center personnel on

appropriate courses of action for each

potential emergency situation.

(iii) Testing of on-board and control

center personnel. A railroad shall have

procedures for testing a person being

evaluated for qualification under the

emergency preparedness plan. The

testing methods selected by the railroad

shall be:

(A) Designed to accurately measure an

individual employee’s knowledge of his

or her responsibilities under the plan;

(B) Objective in nature;

(C) Administered in written form; and

(D) Conducted without reference to

open reference books or other materials

except to the degree the person is being

tested on his or her ability to use such

reference books or materials.

(iv) On-board staffing. Each passenger

train shall have a minimum of one onboard crewmember who is qualified

under the applicable emergency

preparedness plan’s provisions.

(3) Joint operations. (i) Each freight

railroad hosting passenger train service

shall have an emergency preparedness

plan addressing its specific

responsibilities consistent with this

part.

(ii) Each railroad that operates

passenger train service over the line of

a freight railroad shall coordinate the

applicable portions of its emergency

preparedness plan with the

corresponding portions of the freight

railroad’s emergency preparedness plan,

to ensure that an optimum level of

preparedness is achieved. Nothing in

this paragraph shall restrict the ability

of the railroads to provide for an

appropriate assignment of responsibility

for compliance with this part among

those railroads through a joint operating

agreement or other binding contract.

However, the assignor shall not be

relieved of responsibility for compliance

with this part.

(4) Special circumstances. (i) Tunnels.

When applicable, the railroad’s

emergency preparedness plan shall

reflect readiness procedures designed to

ensure passenger safety in an emergency

situation occurring in a tunnel of 1,000

feet or more in length. The railroad’s

emergency preparedness plan shall

address, as a minimum, availability of

emergency lighting, access to emergency

evacuation exits, benchwall readiness,

ladders for detraining, effective radio or

other communication between on-board

crewmembers and the control center,

and options for assistance from other

trains.

(ii) Other operating considerations.

When applicable, the railroad’s

emergency preparedness plan shall

address passenger train emergency

procedures involving operations on

elevated structures, including

drawbridges, and in electrified territory.

(iii) Parallel operations. When

applicable, the railroad’s emergency

preparedness plan shall provide for

coordination of emergency efforts where

adjacent rail modes of transportation

run parallel to either the passenger

railroad or freight railroad hosting

passenger operations.

(5) Liaison with emergency

responders. Each railroad to which this

part applies shall establish and maintain

a working relationship with the on-line

emergency responders by, as a

minimum:

(i) Distributing applicable portions of

its current emergency preparedness plan

at least once every three years, or

whenever the railroad materially

changes its plan in a manner that could

reasonably be expected to affect the

railroad’s interface with the on-line

emergency responders, whichever

occurs earlier, including documentation

concerning the railroad’s equipment and

the physical characteristics of its line,

necessary maps, and the names and

telephone numbers of relevant railroad

officers to contact;

(ii) Maintaining an awareness of each

emergency responders’ capabilities; and

(iii) Inviting emergency responders to

participate in emergency simulations,

including tabletop exercises.

(6) On-board emergency equipment.

(i) General. Each railroad’s emergency

preparedness plan shall designate the

types of on-board emergency equipment

and indicate their location(s) on each

passenger car. This equipment shall

include, at a minimum:

(A) One fire extinguisher per

passenger car;

(B) One pry bar per passenger car; and

(C) One flashlight per on-board

crewmember.

(ii) On-board emergency lighting.

Consistent with the requirements of 49

CFR Part 238, auxiliary portable lighting

must be accessible.

(iii) Maintenance. Each railroad’s

emergency preparedness plan shall

provide for scheduled maintenance and

replacement of on-board emergency

equipment and lighting.

(7) Passenger safety information. (i)

General. Each railroad’s emergency

preparedness plan shall provide for

passenger awareness of emergency

procedures, to enable passengers to

respond properly during an emergency.

(ii) Passenger awareness program

activities. Each railroad shall

conspicuously and legibly post

emergency instructions inside all

passenger cars (e.g., on car bulkhead

signs, seatback decals, or seat cards) and

shall utilize one or more of the

following additional methods to provide

safety awareness information:

(A) On-board announcements;

(B) Laminated wallet cards;

(C) Ticket envelopes;

(D) Timetables;

(E) Station signs or video monitors;

(F) Public service announcements; or

(G) Seat drops.

(iii) Passenger surveys. Each railroad

shall survey representative samples of

passengers at least once during each

calendar year to determine the

effectiveness of its passenger awareness

program activities, and shall improve its

program, as appropriate, in accordance

with the information developed.

(A) The survey shall be designed to

examine passenger awareness of the

location(s) on the passenger car of the

available safety information and verify

passenger knowledge of the safety

procedures to be followed in the event

of an emergency.

(B) The railroad shall inform each

surveyed passenger that completion of

the survey is strictly voluntary.

(C) Each railroad shall maintain

records of its passenger surveys at its

system headquarters and applicable

division headquarters. These records

shall be made available to

representatives of FRA for inspection

and copying during normal business

hours.

(b) [Reserved]

§ 239.103 Passenger train emergency

simulations.

(a) General. Each railroad operating

passenger train service shall conduct

emergency simulations, either full-scale

or tabletop exercises, in order to

determine its capability to execute the

emergency preparedness plan under the

variety of scenarios that could

reasonably be expected to occur on its

operation, and ensure coordination with

all emergency responders who

voluntarily agree to participate in the

emergency simulations.
8358 Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules

(b) Frequency of the emergency

simulations. Each railroad that provides

commuter or other short-haul passenger

train service shall conduct a sufficient

number of emergency simulations so

that each major line will be included at

least once during every two calendar

years and the number of simulations

performed during any given calendar

year will include at least 50 percent of

the total number of major lines. Each

railroad that provides intercity

passenger train service shall conduct at

least two emergency simulations during

each calendar year for each business

unit or other major organizational

element.

(c) Definition. As used in this section,

in the case of a railroad that provides

commuter or other short-haul passenger

train service, major line includes each

principal route and its branches.

(d) Actual emergency situations.

Provided that a railroad conducts a

debriefing and critique session meeting

the requirements of § 239.105 of this

subpart, a railroad may count the

activation of its emergency

preparedness plan during an actual

emergency situation toward the

minimum number of simulations

required under this section. However, a

railroad may substitute the activation of

its emergency preparedness plan to

satisfy no more than 50 percent of the

total number of simulations required

under this section.

§ 239.105 Debriefing and critique.

(a) General. Each railroad operating

passenger train service shall conduct a

debriefing and critique session after

each passenger train emergency

situation or simulation to determine the

effectiveness of its emergency

preparedness plan, and shall improve

and/or amend its plan, as appropriate,

in accordance with the information

developed.

(b) Purpose of debriefing and critique

information. The debriefing and critique

session shall be designed to determine,

at a minimum:

(1) Whether the on-board

communications equipment functioned

properly;

(2) The elapsed time between the

occurrence of the emergency situation

or simulation and notification to the

emergency responders involved;

(3) Whether the control center

promptly initiated the required

notifications;

(4) How quickly and effectively the

emergency responders responded after

notification; and

(5) The efficiency of passenger egress

from the car through the emergency

exits.

(c) Records. Each railroad shall

maintain records of its debriefing and

critique sessions at its system

headquarters and applicable division

headquarters. These records shall be

made available to representatives of

FRA for inspection and copying during

normal business hours.

§ 239.107 Emergency exits.

(a) Marking. Each railroad operating

passenger train service shall ensure that

each of the following occur.

(1) All door exits intended for

emergency egress are either lighted or

conspicuously and legibly marked with

luminescent material on the inside of

the car. Each railroad shall post clear

and understandable instructions at or

near such exits.

(2) All door exits intended for

emergency access by emergency

responders for extrication of passengers

are marked with retroreflective material.

Each railroad shall post clear and

understandable instructions at each

such door.

(b) Inspection, maintenance, and

repair. Consistent with the requirements

of part 223 of this chapter, each railroad

operating passenger train service shall

provide for scheduled inspection,

maintenance, and repair of emergency

window and door exits. Each railroad

shall test a representative sample of

emergency window exits on its cars at

least once every 180 days to verify their

proper operation, and shall repair a

defective unit before returning the car to

service.

(c) Records. Each railroad operating

passenger service shall maintain records

of its inspection, maintenance, and

repair of emergency window and door

exits at its system headquarters and

applicable division headquarters. These

records shall be made available to

representatives of FRA for inspection

and copying during normal business

hours.

Subpart C—Review, Approval, and

Retention of Emergency Preparedness

Plans

§ 239.201 Emergency preparedness plan;

filing and approval.

(a) Filing. Each railroad to which this

part applies shall file one copy of its

emergency preparedness plan with the

Associate Administrator for Safety,

Federal Railroad Administration, 400

Seventh Street, S.W., Washington, D.C.

20590, not more than 180 days after (the

effective date of the final rule), or not

less than 90 days prior to commencing

passenger operations, whichever is later.

The emergency preparedness plan shall

include the name, title, address, and

telephone number of the primary person

to be contacted with regard to review of

the plan, and shall include a summary

of the railroad’s analysis supporting

each plan element and describing how

each condition on the railroad’s

property is addressed in the plan. Each

subsequent amendment to a railroad’s

emergency preparedness plan shall be

filed with FRA not less than 60 days

prior to the proposed effective date.

(b) Approval. (1) Within 180 days of

receipt of each initial plan, and within

60 days in the case of a railroad

commencing or hosting passenger

operations after the initial deadline for

plan submissions, FRA will conduct a

formal review of the emergency

preparedness plan. FRA will then notify

the primary railroad contact person of

the results of the review, whether the

emergency preparedness plan has been

approved by FRA, and if not approved,

the specific points in which the plan is

deficient. If an emergency preparedness

plan is not approved by FRA, the

railroad shall amend its plan to correct

all deficiencies (and provide FRA with

a corrected copy) not later than 30 days

following receipt of FRA’s written

notice that the plan was not approved.

(2) FRA will review each proposed

plan amendment within 45 days of

receipt. FRA will then notify the

primary railroad contact person of the

results of the review, whether the

proposed amendment has been

approved by FRA, and if not approved,

the specific points in which the

proposed amendment is deficient. The

railroad shall correct any deficiencies

and file the corrected amendment prior

to implementing the amendment.

(3) Following initial approval of a

plan or amendment, FRA may reopen

consideration of the plan or amendment

for cause stated.

§ 239.203 Retention of emergency

preparedness plan.

Each railroad to which this part

applies shall retain one copy of its

emergency preparedness plan and one

copy of each subsequent amendment to

its emergency preparedness plan at its

system and division headquarters, and

shall make such records available to

representatives of FRA for inspection

and copying during normal business

hours.

Subpart D—Operational (Efficiency)

Tests; Inspection of Records and

Recordkeeping

§ 239.301 Operational (efficiency) tests.

(a) Each railroad to which this part

applies shall periodically conduct

operational (efficiency) tests of its on-
Federal Register / Vol. 62, No. 36 / Monday, February 24, 1997 / Proposed Rules 8359

board and control center employees to

determine the extent of compliance with

its emergency preparedness plan.

(b) Each railroad to which this part

applies shall maintain a record of the

date, time, place, and result of each

operational (efficiency) test that was

performed in accordance with

paragraph (a) of this section. Each

record shall specify the name of the

railroad officer who administered the

test and the name of each employee

tested. The conduct of the test shall be

documented in writing and the

documentation shall contain sufficient

information to identify the relevant facts

relied on for evaluation purposes.

(c) These records shall be retained at

the system headquarters of the railroad

and at the division headquarters for

each division where the tests are

conducted for one calendar year after

the end of the calendar year to which

they relate. These records shall be made

available to representatives of FRA for

inspection and copying during normal

business hours.

§ 239.303 Electronic recordkeeping.

(a) Each railroad to which this part

applies is authorized to retain by

electronic recordkeeping the

information prescribed in § 239.301,

provided that all of the following

conditions are met:

(1) The railroad adequately limits and

controls accessibility to such

information retained in its database

system and identifies those individuals

who have such access;

(2) The railroad has a terminal at the

system headquarters and at each

division headquarters;

(3) Each such terminal has a desk-top

computer (i.e., monitor, central

processing unit, and keyboard) and

either a facsimile machine or a printer

connected to the computer to retrieve

and produce information in a usable

format for immediate review by FRA

representatives;

(4) The railroad has a designated

representative who is authorized to

authenticate retrieved information from

the electronic system as true and

accurate copies of the electronically

kept records; and

(5) The railroad provides

representatives of FRA with immediate

access to these records for inspection

and copying during normal business

hours and provides printouts of such

records upon request.

(b) [Reserved]

Appendix A to Part 239—Schedule of

Civil Penalties [Reserved]

Issued in Washington, D.C., on February

19, 1997.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 97–4489 Filed 2–21–97; 8:45 am]

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