24630 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 223 and 239

[FRA Docket No. PTEP–1, Notice No. 3]

RIN 2130–AA96

Passenger Train Emergency

Preparedness

AGENCY: Federal Railroad

Administration (FRA), Transportation

(DOT).

ACTION: Final rule.

SUMMARY: FRA is issuing minimum

Federal safety standards for the

preparation, adoption, and

implementation of emergency

preparedness plans by railroads

connected with the operation of

passenger trains, including all railroads

hosting the operations of rail passenger

service. The rule also requires each

affected railroad to instruct its

employees on the provisions of its plan.

Emergency preparedness plans must

address such subjects as

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 will be subject to

formal review and approval by FRA.

These emergency preparedness

regulations constitute 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 these standards and

related voluntary developments, and

will address the need for further

rulemaking activity.

The final rule does not apply to

tourist and historic railroad operations.

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.

EFFECTIVE DATE: July 6, 1998.

ADDRESSES: Any petition for

reconsideration should reference FRA

Docket No. PTEP–1, Notice No. 3, and

be submitted in triplicate to the Docket

Clerk, Office of Chief Counsel, Federal

Railroad Administration, 400 Seventh

Street, S.W., Mail Stop 10, Washington,

D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Mr.

Edward R. English, Director, Office of

Safety Assurance and Compliance, FRA,

400 Seventh Street, S.W., RRS–10, Mail

Stop 25, 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., RCC–12, Mail

Stop 10, Washington, D.C. 20590

(telephone: 202–632-3191).

SUPPLEMENTARY INFORMATION:

Background

On February 24, 1997, FRA published

in the Federal Register a notice of

proposed rulemaking (NPRM) to amend

part 223, entitled Safety Glazing

Standards—Locomotives, Passenger

Cars and Cabooses,’’ by revising § 223.5

and adding a new paragraph in § 223.9

to require the marking of emergency

windows, and to add a new ‘‘Part 239—

Passenger Train Emergency

Preparedness.’’ 62 FR 8330. The

proposed part 239 set forth minimum

Federal safety standards for the

preparation, adoption, and

implementation of emergency

preparedness plans by railroads

connected with passenger train

operations, including railroads hosting

the operations of rail passenger service.

In addition, the NPRM prescribed

marking, inspection, maintenance, and

repair requirements for all emergency

window and door exits intended for

egress by passengers or for access by

emergency responders.

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 those

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

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 slowed during

evacuation by the absence of emergency

lighting on the passenger cars, and

emergency responders were hindered by

their inability to obtain an adequate

passenger and crew list from Amtrak

until the next day. The NTSB also noted

that if the Mobile County Emergency

Management Agency had held drills to

simulate a train accident, the incident

commander might have learned about

Amtrak’s procedure for accounting for

passengers, and CSX Transportation,

Inc. (CSX Transportation), the owner of

the bridge and trackage, might have
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24631

obtained 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 are

presented 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. 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 an

agency-sponsored roundtable meeting in

Washington, D.C., on June 9, 1994, to

discuss the emergency preparedness

issues addressed in the publication. The

23 persons attending the roundtable

included representatives from FRA and

the following other organizations:

Amtrak,

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 (TRIRAIL),

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

newsletters. While FRA was encouraged

that passenger railroads had already

begun to incorporate the

recommendations of the Volpe Report

into their own emergency preparedness

procedures and policies, more progress

by the entire industry was 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, Pub.

L. No. 103–440, 108 Stat. 4619, 4623–

4624 (November 2, 1994), entitled

‘‘Passenger Car Safety Standards,’’

which amended 49 U.S.C. 20133 to read

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

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

passenger train emergency preparedness

working group (Working Group) to focus

on the issues related thereto and build

the framework for the development of a

Notice of Proposed Rulemaking (NPRM)

and, ultimately, the final rule. FRA held

its first Working Group meeting on

August 8, 1995. The 33-member

Working Group was comprised of
24632 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

representatives from FRA and the

following other organizations:

American Public Transit Association (APTA),

Amtrak,

Association of American Railroads (AAR),

Brotherhood of Locomotive Engineers (BLE),

CALTRAIN,

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 (NJTR),

Northern Indiana Commuter Transportation

District (NICTD),

PATH,

Safe Travel America (STA),

SEPTA,

TRI–RAIL,

TSC,

United Transportation Union (UTU), and

VRE.

Regulations covering comprehensive

safety standards for rail passenger

equipment—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, are

covered by a separate rulemaking and

are being addressed by a separate

working group. The NPRM on passenger

equipment safety standards was

published in the Federal Register on

September 23, 1997. 62 FR 49728.

Persons wishing to receive more

information regarding this other

rulemaking should refer to FRA Docket

No. PCSS–1 and contact either Mr.

Edward Pritchard, Acting Staff Director,

Motive Power and Equipment Division,

Office of Safety Assurance and

Compliance, FRA, 400 Seventh Street,

S.W., RRS–14, Mail Stop 25,

Washington, D.C. 20590 (telephone

202–632–3348), 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).

Both the proposed rule and final rule

on passenger train emergency

preparedness were developed by FRA in

consultation with the Working Group.

The proposal incorporated comments

submitted by the Working Group in

response to a preliminary draft of the

proposed rule text, and all comments

submitted in response to the NPRM

were provided to members of the

Working Group for their consideration

in preparation of the final rule. The

Working Group then helped 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 all commenters on the

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—have been

placed in the public docket of this

rulemaking.

In announcing the first meeting of the

Working Group on August 8, 1995, FRA

stated 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 on-board

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) or first

aid treatment or both;

• 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;

• 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 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.
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24633

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, were 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 is also included in the rulemaking

docket. The Working Group’s comments

were then incorporated into the NPRM

that was published in the Federal

Register on February 24, 1997. 62 FR

8330.

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

remained unresolved at the NPRM stage

concerning the enforcement obligations

that FRA should impose in the final

rule. Among the broad range of

possibilities, FRA noted that 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 genuine

good faith 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 the railroad for failing

to comply with this basic element of its

emergency preparedness plan. 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 likely not penalize either the

railroad or the individuals. Also, if a

railroad failed to designate an employee

to maintain a current list of emergency

telephone numbers, 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, FRA

could use its prosecutorial discretion to

elect not to impose a civil penalty on

the railroad.

As an alternative, FRA noted in the

NPRM that the agency 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 failed 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 each and every on-line

emergency responder, or operating a

train with an incorrect type of on-board

emergency equipment. Rather than

stressing a determination of the overall

level of emergency preparedness

achieved by a railroad before an

emergency ever 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

invited 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 were also

asked to review the language of the

section-by-section 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

were too rigid, or not strict enough.

Although FRA did not receive many

written comments on how the agency

should define its enforcement

philosophy concerning the final rule,

the consensus of the Working Group

was that FRA should not penalize a

railroad that has displayed its best

efforts in achieving compliance and that

FRA should focus on evaluating the

overall quality of the emergency

preparedness plan rather than on

finding possible minor deficiencies. The

Working Group also stated that FRA

should not necessarily measure the

success of an emergency preparedness

plan based solely upon the outcome of

an emergency situation. In this regard,

the Working Group noted that even if a

railroad meticulously prepares a

comprehensive and detailed emergency

preparedness plan, the severity level of

an emergency and the ‘‘real life’’

reactions to a crisis situation by a

railroad’s employees (even assuming

that the railroad properly trained the

employees on the applicable plan’s

provisions in accordance with

§ 239.101(a)(2)) may prevent a railroad

from achieving a favorable result in a

specific emergency scenario.

Accordingly, the Working Group urged

FRA to evaluate a railroad’s response to

an emergency situation based upon how

precisely the railroad adopted and

complied with its written emergency

preparedness plan, and not necessarily

upon the actual results of the plan’s

implementation.

Consistent with both the Working

Group’s recommendations and FRA’s

stated policy in 49 CFR part 209 with

respect to deciding whether

enforcement action is the best method

for addressing noncompliance,

representatives of FRA and States

participating under 49 CFR part 212 will

consider a number of different factors

before recommending the assessment of

a civil penalty involving the

requirements of this rule. These factors

include:

• The inherent seriousness of the

violation;

• The kind and degree of potential

safety hazard presented by the violation

under the circumstances;

• Any actual harm to persons or

property already caused by the

violation;

• The offending person’s general level

of compliance;

• The offending person’s recent

history of compliance with the

particular rule involved, especially at

the particular location involved;

• Whether a remedy other than a civil

penalty (ranging from a warning to an

emergency order) is appropriate under

the circumstances; and

• Other factors relevant in the

immediate circumstances.

In drafting the final rule, FRA has

incorporated relevant information

derived from the investigation of the

accident involving Amtrak train 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
24634 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

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 has also included requirements

in the final rule relating to emergency

egress from passenger trains, based

upon information obtained from the

investigations of the two more recent

train accidents in New Jersey and

Maryland. 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, at Silver Spring,

Maryland, milepost 8.3. The accident

resulted in 11 fatalities, involving 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 currently being addressed

by the working group which is

considering regulations covering rail

passenger equipment safety, the

important issue of emergency egress is

being addressed by this emergency

preparedness rulemaking. Specifically,

the Maryland 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 in addition

to marking the emergency exits, all

commuter and intercity passenger

railroads should review their practices

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 were

located in a secured cabinet some

distance from the doors that they

control, and the emergency controls for

each door were not readily accessible

and identifiable. The NTSB

recommended that emergency quickrelease 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
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24635

exits. The NTSB recommended 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 each car’s exterior,

for use by emergency responders.

Based upon its investigation, the

NTSB recommended 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.

Fifty-seven members from 21 different

organizations attended the joint

meeting. Although some of the

recommendations involving structural

modifications to rail equipment are

being 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

§ 223.9(d), entitled ‘‘Requirements for

new or rebuilt equipment,’’ and

§ 239.17, entitled ‘‘Emergency exits.’’

The Section-by-Section Analysis

contains a detailed discussion of FRA’s

new requirements, particularly in light

of the two 1996 accidents in New Jersey

and Maryland and the NTSB’s safety

investigations and recommendations.

In a letter to FRA dated June 24, 1996,

Donald N. Nelson, President of MetroNorth and Chairperson of APTA’s

Commuter Railroad Committee,

announced that commuter railroads

nationwide were implementing a series

of rail passenger safety initiatives

building on the 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 committed to

early voluntary implementation of the

emergency preparedness requirements

proposed in the 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 rule text of the NPRM,

FRA implemented changes to the draft

proposed regulatory text and preamble.

FRA initiated those 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 proposed 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. The NPRM

was then published in the Federal

Register on February 24, 1997.

In a letter to the Working Group dated

August 8, 1997, FRA noted that it had

completed its review of the oral and

written comments on the NPRM. As part

of the drafting process of the final rule,

FRA invited members of the Working

Group to attend a meeting on August 28,

1997 to discuss a number of significant

issues that had been identified by the

commenters and to consider FRA’s

recommendations. Based upon the

helpful participation and cooperation of

the Working Group at that meeting, FRA

then completed the final rule. A copy of

the minutes of the August 28, 1997

Working Group meeting is included in

the public docket for this rulemaking,

and a detailed discussion of the meeting

follows in the ‘‘Discussion of Comments

and Conclusions’’ portion of this final

rule.

Development of the Passenger Safety

Program

As discussed above, this final rule is

one element of a comprehensive effort

to improve the safety of rail passenger

service. In addition to this rulemaking,

FRA is currently dealing with related

issues in several contexts. Recent

actions concerning 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 completed 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

the 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, FRA’s Railroad Safety

Advisory Committee (RSAC) established

a working group to specifically address

communication facilities and

procedures, with a strong emphasis on

passenger train emergency

requirements. The NPRM in this

proceeding was published on June 26,

1997, reflecting the consensus

recommendations of the RSAC. The

final rule will address the need for

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 is engaged in a four-phase

process to address emergency

preparedness. In the first phase, in 1994,
24636 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

FRA distributed the Volpe Report (as

described above) and encouraged

railroads to examine their existing

programs to determine what

improvements could be made. The

present 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 preliminary review and

final approval of written plan

submissions, FRA will determine how

the program is being implemented in

the field. FRA will also be interested in

learning 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 will involve FRA’s

review, after gaining at least a full year

of actual experience under the standards

enacted here, of the implementation and

effectiveness of the standards and

related voluntary developments. In this

phase of activity, FRA will 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

preparedness. Further, this review will

determine whether experience in

working with emergency responders

indicates that additional program

elements should be addressed.

Discussion of Comments and

Conclusions

A total of 15 responses were received

by FRA concerning the NPRM. Prior to

the two public hearings that were held

in Chicago, Illinois and New York, New

York, five organizations submitted

written comments: American

Association of Private Railroad Car

Owners, Inc. (AAPRCO); LIRR; METRA;

METROLINK; and UTU. At the public

hearing held in Chicago on April 4,

1997, six organizations were

represented: APTA; Des Plaines, Illinois

Fire Department; Office of Emergency

Management of DuPage County, Illinois;

Illinois Law Enforcement Training

Standards Board; METRA; and the

Village of Wheeling, Illinois. At the

public hearing held in New York City

on April 7, 1997, four organizations

were represented: APTA; BLE;

Omniglow Corporation (Omniglow); and

UTU. Ten organizations and one

individual submitted post-hearing

written comments: AAPRCO; AAR;

Amtrak; APTA; CALTRAIN; Littleton,

Colorado Fire Department; LIRR;

NICTD; NTSB; UTU; and Kieran Darcy.

In a letter to the members of the

Working Group dated August 8, 1997,

FRA noted that a significant number of

issues and concerns had been raised by

commenters on the NPRM. In the spirit

of continuing the meaningful

partnership on development of the

emergency preparedness rule, FRA

convened a meeting of the Working

Group in Washington, D.C. on August

28 1997, in order to discuss the major

issues addressed in the comments and

at the public hearings and consider

changes to the proposal for inclusion in

the final rule. Among the issues

discussed at this meeting were the:

categories of employees required to be

‘‘qualified’’ personnel for purposes of

carrying out responsibilities under the

emergency preparedness plan; types and

numbers of emergency simulations

required of railroads; elements of

passenger information programs; the

process of formal review and approval

of the emergency preparedness plan by

FRA; and adoption of a single

emergency preparedness plan for each

passenger service operation by the

passenger railroad and its host

railroad(s). Discussions follow with

respect to the primary issues raised by

the commenters and/or discussed by the

Working Group during the consultative

process. In light of the comments

received, FRA has reconsidered some of

the proposals.

1. FRA proposed that a minimum of

one on-board crewmember on a train be

qualified under the plan. Should FRA

revise the definition of ‘‘crewmember’’

in the final rule to exclude on-board

service personnel from the category of

on-board staff that a railroad must

qualify under the applicable provisions

of its emergency preparedness plan?

Should FRA increase the minimum

number of crewmembers that must be

qualified?

The NPRM defined a ‘‘crewmember’’

as ‘‘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,’’ and

proposed that ‘‘each passenger train

shall have a minimum of one on-board

crewmember who is qualified under the

applicable emergency preparedness

plan’s provisions.’’ 62 FR at 8356, 8357.

FRA acknowledges the safety benefit in

having each railroad provide emergency

preparedness training to every on-board

employee (including employees of

contractors), and anticipates that

railroads will voluntarily elect to train

most, if not all, on-board personnel in

emergency response procedures, but

FRA recognizes the practical limits of an

expansive definition of ‘‘crewmember.’’

Among the comments received, APTA

noted that the proposed definition of

‘‘crewmember’’ is overbroad, and brings

in classes of workers such as security

forces, service providers, marketing

staff, survey takers, and hosts. Certain

contract vendors providing services

such as food and beverage are neither

railroad personnel nor passengers, yet

would appear to fall under the proposed

definition. Also, some commuter

operations lease out a bar or club car,

and APTA believes that those personnel

should not be included in the

definition. The additional training

expenses associated with qualifying this

category of non-operating railroad

employees under the railroad’s

emergency preparedness plan would not

be cost effective. APTA, therefore,

requested that the definition of

‘‘crewmember’’ be revised to cover only

operating personnel. Also, since onboard service personnel typically work

for Amtrak in intercity service, APTA

stated that the concept should not be

applied to commuter railroads.

METROLINK commented that some of

its conductors perform the function of

fare enforcement conductors, and

should be excluded from the definition

of ‘‘crewmember.’’ In addition,

METROLINK noted that since it may

contract out food service on some of its

intercity trains, these contract workers

should also be excluded from coverage

in the final rule.

The UTU believed that a passenger

train should not be dispatched unless

the conductor is the qualified

crewmember under the emergency

preparedness plan, and noted that in

serious accidents, the engineer cannot

respond because of personal injury or

damage to the locomotive radio system.

In addition, the UTU stated that onboard personnel are not qualified on the

physical characteristics of the railroad

and may be asleep at the time of an

accident. If a train has a crewmember

who is qualified under the emergency

preparedness plan, along with a

conductor from a freight railroad who is

qualified on the physical characteristics

of the railroad, the two individuals
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24637

could coordinate emergency efforts. The

BLE stated that the training that is

developed for the qualified individual

responsible for communications must

include the engineer in order to reflect

a redundancy factor for on-board

personnel, and noted that the final rule

should not count on-board

crewmembers employed as service

attendants as qualified crewmembers.

Upon careful consideration of the

comments, FRA concludes that rail

passenger safety will be enhanced by

limiting the definition of

‘‘crewmember’’ to exclude on-board

railroad and contractor employees who

have little knowledge of emergency

preparedness issues and railroad

operations (e.g., security forces,

marketing staff), while simultaneously

requiring that all operating employees

(and sleeping car and coach attendants

on trains operating in intercity service)

be qualified under the emergency

preparedness plan. In reaching this

conclusion, FRA recognizes that

individuals who merely sell food and

beverages to passengers onboard a

passenger train, but are not involved

with the train’s operation, may be

incidental to the railroad’s overall plan

for emergency preparedness. However,

FRA believes that sleeping car and

coach attendants on intercity trains can

play a very key role in precipitating

passenger evacuation during the

aftermath of an emergency.

Unlike passengers on commuter

trains, who generally remain aboard

their trains for short time periods and

have minimal direct dealings with

crewmembers, passengers traveling in

overnight trains have frequent contact

with their coach and sleeping car

attendants. While commuter trains

generally operate through densely

populated metropolitan or suburban

areas, intercity-passenger trains, by their

very nature, face a greater likelihood

that if an emergency situation occurs it

will happen in a remote area not readily

accessible by members of the emergency

responder community. The location of

the emergency, unclear jurisdictional

authority, lack of road access, lack of

emergency equipment, or unavailability

of knowledgeable and skilled personnel

could prevent police, emergency

medical technicians, or other emergency

response personnel from making a

timely response and hamper evacuation.

The coach and sleeping car attendants

will be aware of the approximate

number of passengers on board the

intercity train and likely know how

many passengers with impaired

mobility may be unable to evacuate the

train on their own through the

emergency window and door exits or

who risk injury if they try to do so.

Accordingly, since these attendants

could prove invaluable in assisting both

the passengers and the emergency

responders during the initial period

after the occurrence of the emergency,

FRA concludes that the emergency

preparedness plan must provide for

proper training of these individuals.

FRA also recognizes that in the

aftermath of an emergency the

crewmembers will have many important

responsibilities, including maintaining

contact with the control center, ensuring

proper protection of the train, and

providing for the safety of the

passengers. If the emergency involves a

collision or derailment, one or more of

the crewmembers may be injured and

unable to carry out his or her duties. In

an effort to increase the number of

crewmembers who will be available to

implement the railroad’s emergency

preparedness plan, the final rule

requires that all on-board operating

employees be qualified under the

applicable provisions of the emergency

preparedness plan. See

§ 239.101(a)(2)(vi). Of course, in the

event that a railroad operates a train

with the engineer as the only

crewmember, then the railroad will be

in full compliance provided that the

engineer is fully trained and qualified

under the plan.

Accordingly, FRA is revising the

definition of ‘‘crewmember,’’ as it

applies for purposes of intercity service,

to include both operating employees on

board the train (i.e., railroad employees,

or employees of contractors to railroads,

who have been assigned to perform

service subject to the Federal hours of

service laws during a tour or duty) and

individuals who serve as sleeping car or

coach attendants. Instead of permitting

an intercity train to operate with a

minimum of only one crewmember who

is qualified under the railroad’s

emergency preparedness plan, the final

rule requires that all on-board operating

employees be trained and qualified

under the plan’s provisions. However, a

narrow exception will exist when a

freight train crew serves as the relief

crew on a passenger train. In this

limited circumstance, the final rule

permits the passenger train to operate,

provided that at least one on-board

operating crewmember from the

passenger train is properly trained and

qualified under the railroad’s plan and

available to perform excess service in

the event of an emergency situation. See

49 U.S.C. 21102(a) and 21103. For

purposes of all other categories of

passenger train service, FRA is revising

the definition of ‘‘crewmember’’ to

apply only to operating employees on

board the train (i.e., railroad employees,

or employees of contractors to railroads,

who have been assigned to perform

service subject to the Federal hours of

service laws during a tour or duty), but

exclude persons who provide on-board

food or beverage service or security

protection. In addition, all of the onboard operating employees (along with

sleeping car and coach attendants

assigned to intercity service) must be

trained and qualified under the plan’s

provisions.

2. Should tabletop exercises not count

toward the requirement to conduct

emergency simulations, and instead

should at least one full-scale simulation

be required during the time period

specified? If so, should the minimum

number of activities be adjusted to

reflect the increased quality of the

simulation program? Should railroads

be required to develop training

programs for emergency responders and

their organizations?

Although FRA noted in the NPRM

that a tabletop exercise is relatively easy

to orchestrate, ‘‘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,’’ FRA

stated that it might include a

comprehensive requirement in the final

rule involving multiple numbers of fullscale disaster simulations. See 62 FR at

8346. The NPRM set forth a requirement

for railroads operating passenger train

service to conduct emergency

simulations, either full-scale or table

exercises, in order to determine their

capabilities to execute their emergency

preparedness plans. 62 FR at 8257,

8258. The proposal required each

commuter or short-haul railroad to

conduct enough simulations to include

each major line at least once during

every two calendar years at least 50

percent of the total number of major

lines during any given calendar year.

Railroads providing intercity passenger

train service were to conduct at least

two emergency simulations during each

calendar year for each business unit or

other major organizational element.

Comments Received

Amtrak stressed that tabletop

simulation exercises can accomplish

many of the same objectives as full-scale

exercises, but at a much lower cost. It

noted that the actual emergency

response activities required when real

accidents occur also provide an ongoing

source of preparedness and insight with

respect to possible improvements.

Amtrak also opined that tabletop

simulations, plus actual emergency
24638 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

response situations that inevitably

occur, should be sufficient to

accomplish the objectives of evaluating

and improving the ability of railroads

and emergency responders to function

effectively in the event of an accident.

Amtrak recommended that if the final

rule requires some actual full-scale

experiences each year, an actual

response, accompanied by an

appropriate debriefing and critique,

satisfy that requirement.

APTA stated that the simulation

requirement should be either deleted or

made optional, and noted that

commuter railroads agree with the

intent of the regulation, but object to a

prescriptive approach. APTA observed

that simulations, especially full-scale

ones, are time consuming, expensive,

and benefit a small percentage of

employees. It stated that in view of

these factors, the requirement to

perform simulations at all combined

with the requirement to perform

simulations on 50 percent of main lines

each year, goes beyond what is

necessary for emergency preparedness.

APTA also noted that since

emergency responders are not required

to attend, commuter railroads often hold

full-scale training sessions that are

poorly attended. It argued that each

railroad should be permitted to

maintain operational flexibility to

determine the best way to involve

emergency responders.

The LIRR noted that emergency

response agency costs vary and are

difficult to uantify, since the majority of

fire departments and ambulance crews

are volunteers. Since they are

volunteers, it may be difficult for the

LIRR to get them to attend many drills.

However, there are costs for equipment

usage (e.g., fuel) and for medical

supplies (e.g., bandages and splints).

The railroad noted that, including

preparation, it takes two full months to

plan a full-scale simulation, integrate it

with the responding agencies,

coordinate and integrate it with the

railroad’s own transportation people

(track time, service disruptions,

alternative means of transportation,

development of the program and

scenario), and then complete the drill.

Internally, the LIRR uses tabletop

exercises extensively for procedure

review and testing. They are used in

areas where it is difficult to get track

time and run the railroad, and are less

effective than practical, experiential

drills and training because of the

minimal amount of exposure to the

emergency responders.

CALTRAIN commented that tabletop

exercises should be accorded the same

weight and emphasis as actual field

drills. Tabletop exercises, with followup debrief and critique, are very

effective and less administratively

burdensome. Certain exercises, such as

window removal or after-dark

conditions, can be performed as part of

a tabletop drill by moving to the nearest

rail facility. Subsequent to the Working

Group meeting held in Washington, D.C.

on August 28, 1997, CALTRAIN

recommended that any full activation of

the emergency preparedness plan in

either an actual accident or other

emergency situation count as a

simulation, instead of only triggering a

180-day extension of the timeframe in

which to perform the full-scale

simulation, while if no such activation

occurred, then the two-year cycle would

apply. Since a ‘‘real’’ activation would

be fully evaluated and modifications

would be made, a ‘‘simulated’’ drill

would be burdensome and redundant.

Also, while CALTRAIN makes

reasonable efforts to contact and invite

area agencies, attendance is not

mandatory. It argued that the final rule

should discuss ‘‘best efforts to contact,

train, and participate’’ in drills, since

response agencies have budgetary and

other issues with which to contend that

affects their ability to participate in

emergency drills on any given day.

METRA commented that it has 13

major lines, and would have to hold 6.5

simulations each year under the

proposal. It noted that the participants

would also have to be trained before

each simulation, and under proposed 49

CFR 239.105, debriefing and critique

sessions would be held afterward.

METRA assumes that responder

preplanning requires three weeks, the

actual simulation takes two to four

weeks to plan and coordinate, and the

critique is performed a week after the

simulation and compiled and acted

upon the following week, for a total of

58.5 weeks spent performing 6.5

simulations. Under the proposal,

METRA contends that it would have to

conduct more than five simulations per

year due to its system size and number

of major routes. Even if the personnel

and budget could be found to plan and

conduct this level of simulation every

year, METRA believes that it is

questionable that the region’s

emergency responders could participate

at this level.

METRA states that the Illinois Law

Enforcement and Standards Board has

certified METRA’s program for training

all law enforcement personnel

throughout Illinois, and requests that a

‘‘Train the Trainer’’ program be added

to the final rule as a means of ensuring

a qualified response to passenger train

emergencies. METRA’s concern is that

many of the fire departments overlap to

such an extent, that by performing the

set number of route simulations in the

proposal, some of the departments

could be involved in three or more

simulations per year. Because of

liability and publicity concerns, most

fire departments would elect to be fully

involved, but too many simulations may

dilute the aggressiveness of the

emergency responders. METRA

suggested that the number of required

simulations should be reduced in the

final rule to only two per year, and that

videotaping of emergency simulations

could be used in the preparation of

training for future simulations.

In its comments, the NTSB expressed

concern that a railroad could comply

with the rule by only performing

tabletop exercises each time it conducts

an emergency simulation. The NTSB

stated that a tabletop simulation

exercise is not equal to a comprehensive

full-scale exercise, since only a fullscale exercise involving personnel and

equipment can demonstrate an

organization’s capability and readiness

to respond to a disaster. It also noted

that full-scale exercises best afford a

railroad the ability to assess the

effectiveness of its emergency response

plan and to identify the resources

necessary to support its plan in an

actual emergency, as well as to uncover

specific problems, and that emergency

response personnel can only become

familiar with railroad equipment by

participating in full-scale search-andrescue scenarios.

The Office of Emergency Management

of DuPage County, Illinois commented

that a simulation is a much better means

of training emergency responders to

respond to a significant emergency than

a classroom alone. However, DuPage

County has three METRA lines running

through it (and a fourth in planning),

and would have to perform two

simulations annually in addition to

meeting other Federal emergency

planning requirements. The commenter

noted that although a tabletop exercise

is a great way to discuss policy and talk

about what will likely happen, until a

person actually goes into the field and

stands next to the rail car or has to move

injured persons off the second level of

a rail car, it is impossible to know how

one really does it.

The Des Plaines, Illinois Fire

Department believes that its employees

get more knowledge through individual

training at the departmental level than

they can from mass casualty situations

or large-scale incidents, and notes that

individual training ensures that all

personnel go through the hours of

classes and go out on a train to touch
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24639

it, open its doors, and take a window

out. Employees can also attempt to

extricate a dummy from the train. In a

large-scale drill, personnel are assigned

to sectors, and depending on the sector

to which they are assigned, will obtain

the knowledge of just that one piece of

the mass casualty situation, and will not

receive the broad spectrum.

The UTU commented that the

railroads should concentrate on case

histories more than large-scale drills. It

stated that large-scale drills are

expensive and time consuming, tie up

the railroad, and do not provide much

learning opportunity.

In light of the written comments and

testimony at the two public hearings

from members of the emergency

response community, FRA has

reconsidered its proposal and is

eliminating the provision for performing

a tabletop exercise in lieu of a full-scale

exercise, but scaling back the simulation

requirement to involve only one

meaningful full-scale simulation

(performed either annually or every two

years depending on the size of the

railroad). A railroad that is considered

larger, i.e., its operation includes either

at least 150 route miles or 200 million

passenger miles annually, must conduct

at least one full-scale simulation

annually, regardless of the number of

major lines or business organizational

elements on its operation. Each railroad

operating passenger train service is also

required to develop a training program

available to all on-line emergency

responders who could reasonably be

expected to respond during an

emergency situation, with an emphasis

upon access to railroad equipment,

location of railroad facilities, and

communications interface. The training

program will provide information to

emergency responders who may lack the

opportunity to participate in an actual

simulation. The railroads could either

offer the training directly or make the

training information and materials

available to State training institutes,

firefighter organizations (e.g., National

Fire Protection Association), or State

police academies.

The consensus of the commenters was

that it takes each railroad months to

plan a full-scale simulation, to conduct

the drill, and to complete the debriefing

and critique session. Although some

full-scale simulation training is

essential, many of the commenters

(including members of local fire

departments) stated that emergency

responders also need ‘‘hands-on’’

training for railroad equipment, which

is better effected through ‘‘hands-on’’

classroom training. Classroom training

permits a railroad to run a number of

evolutions, allows many groups of

individuals to have access to the

equipment to achieve equipment

familiarization, and enables emergency

responders to practice lifting the rail

equipment. While disaster simulations

key on one incident (e.g., a hazardous

materials incident or a train collision

and a resulting fire), a classroom

scenario can cover many different types

of incidents. One commenter noted that

if it had to spend a disproportionate

amount of its time conducting

numerous simulations, it would be

forced to scale back its current program

for training members of the emergency

responder community.

FRA agrees with the commenters that

the financial and logistical costs of

conducting full-scale simulations are

significantly higher than those for

tabletop simulations, including the

opportunity costs of lost revenue and

the need to take railroad track and

equipment out of service during the

simulation. FRA also acknowledges that

during ‘‘hands-on’’ classroom training a

greater number of individuals receive

direct access to railroad equipment than

occurs during a large-scale drill. FRA

encourages each railroad to voluntarily

conduct tabletop exercises to identify

the emergency response capabilities of

its personnel in terms of their

knowledge of procedures and

equipment. However, FRA has decided

that the safety objectives of this

rulemaking are best served by requiring

railroads to conduct at least a minimal

number of comprehensive, full-scale

simulations to determine whether a

railroad is adequately prepared for the

likely variety of emergency scenarios

that could occur on its lines.

In reaching its decision to focus on a

smaller number of larger scale

simulations, FRA also acknowledged

that under regulations established by

the Federal Emergency Assistance

Agency (FEMA), States are eligible to

receive financial assistance for disaster

preparedness under the Disaster

Preparedness Improvement Grant

Program. See 44 CFR Part 300. Under

this program, States can receive FEMA

money for training and to test and

exercise procedures for their efforts in

disaster response. While emergency

responder organizations can receive

funds to participate in railroad accident

exercises and simulations, many of

these same responder groups must also

budget their limited time and resources

in preparing for all other types of

potential disasters that could strike their

communities, e.g., airplane crashes,

floods, and earthquakes. FRA

recognized that if the final rule required

railroads to conduct significant numbers

of full-scale simulations, and they

received full participation from the

emergency responder community, the

limited funds available from FEMA

might prove inadequate to meet the

overall disaster-preparedness needs of

the States and local jurisdictions.

Intercity operations present special

challenges. Amtrak noted that full-scale

simulations cause significant burdens,

and argued that the final rule should

permit tabletop simulations in lieu of

full-scale ones. As an operator of seven

different commuter services in this

country, Amtrak noted that it would be

involved in a great number of

simulations on commuter lines, as well

as its intercity service, and stated that

full-scale emergency exercises involve

weeks of preparation, commitment of

physical resources, and expenditure of

funds for actual implementation of the

exercise. Track and equipment would be

out of service during the placement,

conduct, and removal of equipment

from the drill site. Significant

disruption of normal operations on a

rail line could occur in connection with

conducting a simulation. Passengers and

shippers could be inconvenienced and

equipment utilization adversely

affected.

3. What elements should be included

in passenger information programs?

Should surveys be required in the final

rule?

The NPRM required each railroad to

conspicuously and legibly post

emergency instructions inside all

passenger cars (e.g., on car bulkhead

signs, seatback decals, or seat cards) and

use one or more additional methods to

provide safety awareness information

(i.e., on-board announcements,

laminated wallet cards, ticket

envelopes, timetables, station signs or

video monitors, public service

announcements, or seat drops). 62 FR at

8357. The proposal also expected each

railroad to survey representative

samples of passengers at least annually

to determine the effectiveness of its

passenger awareness program activities,

and to improve its program, as

appropriate based on the information

developed. 62 FR at 8357.

APTA commented that while

commuter railroads should be required

to develop and use passenger emergency

awareness programs, the features of the

programs should be left to each

commuter railroad’s discretion. It stated

that the final rule should be based on

performance, not the command-andcontrol approach in the proposal. APTA

also argued that the prescription

favoring certain types of signage should

be removed from the final rule, and the

safety awareness requirement changed
24640 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

to merely list examples of possible

methods of disseminating safety

awareness information. APTA noted

that each commuter railroad has its own

unique approach to developing and

using tools to make passengers aware of

emergency instructions inside passenger

cars, and should retain flexibility to find

the right mix of passenger

communication techniques. APTA

contended that unless the passenger

information requirement allows a

railroad latitude to use innovative

means or new technology to deliver

safety information, a railroad would

have to apply for a waiver to develop or

use the new program or technology,

thus delaying its introduction.

The LIRR also commented on the

issue of passenger awareness program

activities. The railroad suggested that

safety awareness information could be

printed on a pocket-sized card in order

to remind customers of the basics of

what to do in the event of an emergency

situation. FRA notes that

§ 239.101(a)(7)(ii), as proposed, already

permits a railroad to disseminate

information to passengers on

‘‘laminated wallet cards.’’ 62 FR at 8357.

FRA agrees with the two commenters

that requiring railroads to choose among

only the seven listed additional

methods of providing safety awareness

information to their customers is too

restrictive, and could discourage

railroads from being innovative. FRA

fully expects most railroads to use either

on-board service announcements,

laminated wallet cards, ticket

envelopes, timetables, station signs or

video monitors, public service

announcements, or seat drops as the

second means of ensuring the

effectiveness of their passenger safety

awareness programs. However, FRA

encourages the use of alternate but

equally effective approaches, especially

if validated by information deduced

from the debriefing and critique

sessions held after passenger train

emergency situations or simulations.

FRA is not, however, revising the

requirement that railroads post

emergency instructions inside all

passenger cars. In the event of an

emergency, passengers may experience

panic and momentarily forget any

information that may have been

conveyed by the crew before the train’s

departure (e.g., through an on-board

announcement). FRA believes that an

important part of the successful

implementation of this rule depends on

railroads posting convenient and

conspicuous reminders to their

passengers of the important safety

procedures to follow in the event of an

emergency. Such a requirement will

also provide a measure of consistency,

benefiting passengers who use more

than one service provider.

Upon review of the comments on the

passenger survey requirement, FRA

concludes that the financial cost to each

passenger railroad of developing and

conducting a survey capable of reaching

a statistically significant cross-section of

its customer population in order to

periodically update and improve its

passenger safety awareness information

greatly exceeds any potential benefit.

Accordingly, FRA is deleting this

requirement from the final rule.

In proposing the survey requirement,

FRA presumed that railroads would

merely include additional questions on

customer satisfaction surveys currently

used to assess passenger comfort and

assist railroads in timetable planning.

FRA assumed that the additional costs

to the railroad industry would therefore

be minimal. However, three railroads

and APTA commented on FRA’s

proposal, convincing FRA that unless

the rule required each railroad to

employ a rigorous and scientific survey

methodology, most oral and written

surveys would likely be completed only

by those passengers who are either

regular riders already familiar with

emergency procedures or dissatisfied

riders who have complaints about train

service. Without such a financially

burdensome requirement, the survey

results would be of little or no value to

the railroads in verifying passenger

awareness of the location(s) on the

passenger car of safety information or

knowledge of safety procedures to be

followed in the event of an emergency.

Accordingly, since any changes made by

the railroads to their passenger

awareness programs might be

predicated upon inaccurate or

incomplete information, FRA believes

that a survey requirement would likely

not benefit passenger safety.

Consistent with FRA’s conclusion,

APTA commented that although

passenger surveys may be useful in

determining passenger safety awareness,

there is no guarantee that they will be

useful in fact. APTA stated that since

completion of the survey is voluntary on

the part of the public, the survey would

not provide any real knowledge to the

railroad of passenger awareness of

emergency preparedness.

APTA also disagreed with FRA’s

estimate that the survey requirement

would entail no additional cost to each

railroad, noting that DOT recently

estimated that on-board transit surveys

cost $12 per completed survey (DOT–

97–08, as reported in the Urban

Transportation Monitor). Based upon

360 million passenger trips daily and a

sample size of one percent, APTA

concluded that the total cost to survey

commuter rail passengers would be

$21,600,000 (360/2 × .01 × $12.00).

Although APTA realized that the cost

might be smaller, depending on the

number of surveys done and number of

questions asked, it stressed that the final

cost would be more than incidental.

Amtrak commented that the survey

requirement is unnecessary and

undesirable, and could undermine the

public’s opinion of the safety of train

travel. It noted that no other

transportation mode is required to

conduct surveys of passengers’ levels of

knowledge of safety information or

procedures. Instead of performing

mandatory surveys, Amtrak

recommended that railroads focus on

providing passengers with the

information necessary for them to

function in the event of an emergency,

as is currently done in the airline

industry. Amtrak shared APTA’s

concern that since public participation

in the survey is voluntary, railroads

would have serious concerns about the

objectivity and validity of the results

obtained.

NICTD opposed the use of passenger

surveys to determine knowledge or

compliance and stated that despite the

rule’s flexibility in the methodology of

surveys, surveys would not in and of

themselves measurably contribute to

overall passenger education concerning

emergency situations. NICTD stated that

the education and ongoing training of

train crews concerning emergency

situations is more productive and cost

effective, since train crews are

ultimately responsible for dealing with

passengers in these situations.

NICTD also questioned the cost/

benefit factor of having employees

orally survey passengers aboard trains

or at train stops, arguing that the use of

written surveys distributed to

passengers boarding trains, or provided

as seat drops, would not guarantee

completion of the forms. Further,

NICTD stressed that the requirement to

survey a ‘‘representative sample of

passengers’’ each calendar year cannot

be assured by the survey process,

whether the survey is done orally or in

writing. Oral surveys may be viewed by

passengers as annoying, who will then

refuse to cooperate, and written surveys

will likely be completed only by those

passengers who are inclined to respond.

The LIRR commented that it performs

at least one customer-satisfaction survey

per year, at a cost of $155,000 per

survey, and on a case-by-case basis

performs targeted surveys to assist in a

decision-making process. The LIRR’s

Market Development area input shows
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24641

that the response rate should be at least

45 percent to allow for valid projection

of the sample findings to the whole

population. However, the LIRR’s normal

response rate of mail-back surveys that

it has conducted in the past, without

incentives, is only 15 percent.

4. Should FRA modify the

requirement that the agency conduct a

formal review and approval of each

railroad’s emergency preparedness plan

within 180 days of receipt of the plan

from the railroad?

The NPRM stated that within 180

days of receipt of each initial emergency

preparedness plan, and within 60 days

in the case of a railroad commencing or

hosting passenger operations after the

initial deadline for plan submissions,

FRA would conduct a formal review of

the plan. 62 FR at 8358. FRA would

then notify the railroad of the results of

the review, whether the plan had been

approved by FRA, and if not approved,

the specific points in which the plan

was deficient. 62 FR at 8358. If the plan

was not approved by FRA, the railroad

was required to 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 of disapproval. 62 FR at

8358.

APTA commented that FRA should

remove the time limit for approval of

the emergency preparedness plan, and

return to the original consensus

recommendation of the Working Group

that there be no deadlines. APTA stated

that it doubted that FRA would be able

to turn around the plans to the

commuter rail systems within the

specified timeframe, and recommended

that FRA should adopt a consultative

approach to emergency preparedness

instead of the approach included in the

NPRM.

In response to APTA’s concerns, FRA

is adopting a bifurcated approach to

approval of the emergency preparedness

plan in the final rule. The final rule

specifies that within 90 days of receipt

of each initial plan, and within 45 days

in the case of a railroad commencing

operations after the initial deadline for

plan submissions, FRA will conduct a

limited, preliminary review to

determine if the required elements of

the emergency preparedness rule are

sufficiently addressed and discussed in

the railroad’s emergency preparedness

plan submission. For example, this

initial review will determine if the

railroad has included a section in its

plan on liaison relationships with online emergency responders, but will not

yet involve field verification by FRA

safety inspectors that the railroad is in

fact inviting these responders to attend

training programs on access to railroad

equipment. After this initial review, as

appropriate, FRA will then grant or

deny conditional approval of the plan in

writing. Within 18 months of receipt of

each emergency preparedness plan, and

within 180 days in the case of a railroad

commencing operations after the initial

deadlines for plan submissions, FRA

will then complete a comprehensive

review, consisting of ongoing dialogues

with rail management and labor union

representatives and field analysis and

verification of the railroad’s

implementation of the plan’s provisions,

followed by final approval or denial.

The bifurcated approach to approval

of the emergency preparedness plan will

permit FRA to quickly review each plan

for procedural compliance and

immediately determine if the railroad

has at least considered all required plan

elements. However, FRA will then have

a much longer timeframe in which to

evaluate the plan’s substantive

sufficiency and the railroad’s actual

implementation. Without this change in

the final rule, FRA would have had to

choose between delaying many railroads

from adopting their emergency

preparedness plans or accepting some

railroad plan submissions on good faith

with little more than a cursory review.

Either option would compromise the

safety of railroad passengers and train

crews in the event of a passenger train

emergency situation.

5. Should the final rule require a joint

submission of one emergency

preparedness plan by each railroad that

provides or operates passenger train

service and (as applicable) each railroad

that hosts such service?

In the section of the NPRM addressing

joint operations, FRA stated that each

freight railroad hosting passenger train

service would be required to have an

emergency preparedness plan

addressing its specific responsibilities,

and each railroad operating passenger

train service over the line of a freight

railroad would be required to coordinate

the applicable portions of its emergency

preparedness plan with the

corresponding portions of the freight

railroad’s plan. 62 FR 8357. The

purpose for the requirement was to

ensure an optimal level of emergency

preparedness on the part of every

railroad involved in the operation of a

particular passenger train service. In the

section of the NPRM addressing the

filing of the emergency preparedness

plan, each affected railroad would be

required to file its plan with FRA within

180 days of the effective date of the rule,

or at least 90 days before commencing

passenger operations, whichever is later.

62 FR at 8358.

It has become apparent to FRA during

the course of the comment period that

there is a reluctance on the part of both

freight and passenger railroads to accept

full responsibility for the requisite

implementation of all of the elements of

an emergency preparedness plan. FRA

is concerned that the consensus of the

commenters is that each entity expects

the other entity to be held accountable

by FRA in the event that an emergency

situation occurs and the provisions of

the plan are improperly executed. In

order to ensure that all railroads

involved in a particular rail passenger

service operation understand each one’s

crucial role in planning for emergency

preparedness, instead of merely

requiring coordination of applicable

portions of multiple emergency

preparedness plans, the Working Group

recognized the need to include a joint

submission requirement in the final

rule.

CALTRAIN commented that under

the proposal, passenger or commuter

railroads are responsible for the

relationships with host or tenant freight

railroads. While CALTRAIN stated its

intent to work closely with such

railroads, it noted that it has no

authority over the freight railroads and

declined responsibility for their actions

or omissions. CALTRAIN suggested that

FRA focus on evidence of a ‘‘good faith

effort,’’ since CALTRAIN cannot

mandate actions and cannot enforce the

conduct of external agencies. This

commenter urged FRA to use its

enforcement powers.

APTA agreed with FRA that the

language in an early version of the

proposal that was shared with the

Working Group, which placed the entire

responsibility for the joint operation on

the host freight railroad, did not

properly account for the responsibilities

of both parties. Since the NPRM

reversed that scenario, APTA

recommends that FRA either delete or

redraft § 239.103(a)(3) to assign a

measure of responsibility to the host

freight railroad. APTA argued that

although the NPRM required

coordination, it does not provide a

mechanism to ensure cooperation by the

freight railroad to coordinate emergency

efforts. If a freight railroad refuses or is

unwilling to cooperate, a commuter

railroad lacks recourse. The commuter

railroad could still be fined for not

coordinating with an unwilling freight

railroad. Consistent with APTA’s

observations, the LIRR commented that

the final rule needs terminology that

recognizes that there is some joint

responsibility between all of the

involved parties to a passenger

operation.
24642 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

In its comments, the AAR

acknowledged that while freight

railroads neither provide nor operate

rail passenger service themselves, and

are not subject to most of the rule’s

requirements, freight railroads still have

certain emergency preparedness

responsibilities. The AAR

recommended that FRA not revise the

proposed language of § 239.101(a)(3),

since it is in a freight railroad’s interest

to coordinate with a passenger railroad

to ensure emergency preparedness. The

AAR rejected APTA’s concern about

freight railroads refusing to cooperate

with the passenger railroads, arguing

that APTA, or any other interested

party, presented no data or evidence to

indicate that passenger railroads have

experienced problems from freight

railroads refusing to coordinate

emergency responses. The AAR

believed that FRA would never fine a

passenger railroad that demonstrates

that it attempted to comply with the

regulation, but was unable to coordinate

with a freight railroad due to the freight

railroad’s refusal to cooperate.

Based upon careful consideration of

the comments, FRA is requiring

communication and coordination

between all railroads affected by this

rule involved in each passenger

operation, by mandating the submission

by the passenger railroad of one

emergency preparedness plan that is

jointly prepared. Accordingly, if a State

or public authority provides commuter

rail passenger train service by

contracting with another railroad to

actually operate the service, and the

passenger operation is in turn hosted by

a freight railroad, all three entities are

required to work together and file one

emergency preparedness plan for the

operation setting forth each railroad’s

procedures and responsibilities under

the plan. If for example, a passenger

operation will fulfill none of the

requirements of emergency planning,

with the host railroad having all of the

responsibilities under the plan, this fact

must be clearly stated in the plan.

In the event of noncompliance by any

or all of the entities involved in the

implementation of the plan, FRA

reserves the right to initiate appropriate

enforcement action against all parties

participating in the plan. Of course,

FRA will intervene to assist any railroad

that is having difficulty crafting a joint

emergency preparedness plan, and help

mediate a solution. While FRA might

not initially seek an injunction to

prevent a passenger train operation from

operating due to a host railroad’s failure

to cooperate, FRA could initiate civil

penalty action against the host railroad

for its failure to comply with the

requirements of part 239.

The portion of the emergency

preparedness plan addressing the host

railroad’s responsibilities shall, at a

minimum, include procedures for

notifying emergency responder

organizations and discuss the railroad’s

general capabilities for rendering

assistance to an involved passenger

railroad during an emergency situation.

The host railroad must also address any

physical and operating characteristics of

its rail lines that may affect the safety of

the rail passenger operations, e.g.,

evacuation of passengers from a train

stalled in a tunnel or on an elevated

structure.

Section-by-Section Analysis

As a number of the issues and

provisions have been discussed and

addressed in detail in the preceding

discussions, this section-by-section

analysis will explain the provisions of

the final rule and changes from the

NPRM by briefly highlighting the

rationales or referring to the prior

discussion. The discussions and

conclusions contained above should be

considered in conjunction with the

analysis contained below. Each

comment received has been fully

considered by FRA in preparing this

final rule.

FRA amends part 223 of title 49, Code

of Federal Regulations by adding six

new definitions and requiring railroads

operating passenger train service to

clearly mark emergency windows. FRA

also adds 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 is reorganized and

definitions of four important terms

employed in the passenger train

emergency preparedness regulations are

added. The four new defined terms are

‘‘emergency responder,’’ ‘‘passenger

train service,’’ ‘‘person,’’ and ‘‘railroad.’’

For ease of reference, FRA defines 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 as well as rapid

transit authorities whose operations are

in an urban area and are connected with

the general railroad system of

transportation. These terms are intended

to have the same meaning as in part 239

of this chapter. However, FRA does not

intend for its definition of ‘‘railroad’’ in

either this part or part 239 of this

chapter 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

FRA received no comments regarding

proposed paragraph (d), and the

paragraph is adopted as proposed. 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.

Section 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 or near the designated locations.

Section 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 a

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 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 potential 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

subsection 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 intends 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 commenting on the

proposed rule, noted that the last line of

§ 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
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24643

doors rather than the windows. Contrary

to METROLINK’s assumption, the

instructions required by this paragraph

are for operating the emergency window

exits. The requirements for posting

operating instructions at or near

emergency door exits are contained in

§ 239.107 of this chapter.

Section 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 final rule does not

require a specific size or shape for the

symbol, but FRA intends the railroad’s

emergency preparedness plan

developed pursuant to § 239.101 of this

chapter to contain a provision

explaining 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 § 239.101(a)(5) of this

chapter. Of course, while the final rule

does not require emergency responders

to participate in evacuation planning or

strategy with the railroads, the railroads

must offer liaison training and

assistance.

The final rule allows a marking that

could consist of a symbol or words

(such as ‘‘RESCUE ACCESS’’). Although

FRA stated in the proposed rule that it

reserved the right to be more

prescriptive in the final rule based upon

a uniform pattern, and noted that FRA

was working to identify an appropriate

marking that might be capable of

universal recognition, FRA has decided

to retain the flexibility set forth in the

proposal. However, if during the fourth

phase of FRA’s comprehensive effort to

address passenger safety issues FRA

determines that a uniform pattern or

symbol is required, FRA may modify the

marking requirements of § 223.9(d)(2)

during a future rulemaking action.

The final rule also 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 expects

passengers and emergency responders to

be already 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

§§ 239.101(a)(5) and (a)(7).

3. Appendix B to 49 CFR Part 223

FRA is revising Appendix B to 49

C.F.R. 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.

Commenters were invited in the NPRM

to submit suggestions to FRA describing

the types of actions or omissions that

would subject a person to the

assessment of a civil penalty, and were

also invited to recommend what

penalties may be appropriate, based

upon the relative seriousness of each

type of violation. FRA did not receive

any public comments nor did the

Working Group present any

recommendations to the agency on this

topic. Accordingly, FRA has amended

the penalty schedule based on its own

analysis of the inherent seriousness of

violating the marking requirements for

emergency windows of part 223. The

penalty schedule also changes the

maximum penalty that FRA is

authorized to assess for violations of the

provisions of this part. The maximum

penalty is raised from $20,000 to

$22,000 for any violation where

circumstances warrant. This change is

intended to comply with the provisions

of the Federal Civil Penalties Inflation

Adjustment Act of 1990, Pub. L. 101–

410, 104 Stat. 890, 28 U.S.C. 2461 note,

as amended by the Debt Collection

Improvement Act of 1996, Pub. L. 104–

134, 110 Stat. 1321–373 (April 26,

1996), which requires Federal agencies

to adjust civil monetary penalties to

counter inflation’s effect of diminishing

the impact of these penalties. The

inflation adjustment is to be calculated

by increasing the maximum civil

monetary penalty by the percentage that

the Consumer Price Index for the month

of June 1995 exceeds the Consumer

Price Index for the month of June of the

last calendar year in which the amount

of the penalty was last set or adjusted.

The initial adjustment, however, may

not exceed 10 percent. The resulting

$22,000 maximum penalty was

determined by applying the criteria set

forth in sections 4 and 5 of the statute

to the maximum penalty otherwise

provided for in the Federal railroad

safety laws.

4. Purpose and Scope: Section 239.1

FRA did not receive any comments,

and this section is adopted as proposed.

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. Paragraph (b) states that

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 unless it

is inconsistent with 49 U.S.C. 20106.

5. Application: Section 239.3

As a general matter, FRA will apply

this rule 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 will

be regulated by FRA as a railroad under

the provisions of the final rule.

Although the public authority will

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 will

be expected to fulfill all of the

responsibilities under this part with

respect to emergency preparedness

planning, including implementation.
24644 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

FRA has revised paragraph (a)(3) to

state that all railroads hosting the

operation of passenger train service are

covered by the final rule. While FRA

recognizes that the majority of host

relationships are entered into by freight

railroads, there are a number of

instances where passenger operations

(e.g., Amtrak) host other passenger

operations over their trackage.

Accordingly, the final rule has been

revised to reflect this fact.

Paragraph (b)(1) of both the NPRM

and final rule indicate that the rule does

not apply to rapid transit operations in

an urban area that are not connected

with the general railroad system of

transportation, and this paragraph is

intended merely to clarify the

circumstances under which rapid transit

operations are subject to FRA

jurisdiction under this part.

In a final rule published in the

Federal Register on December 27, 1995,

the Federal Transit Administration

(FTA) announced that it would begin

requiring states to oversee the safety of

rail fixed guideways systems not

regulated by FRA. 60 FR 67034; see 49

U.S.C. 5530, 49 CFR part 659. Under its

statutory scheme, FTA does not directly

enforce safety statutes or regulations

against rail fixed guideway systems, nor

does FTA have safety inspectors who

enter upon the regulated properties to

perform inspections. In accordance with

FTA’s statutory authority and the above

rulemaking, FTA does not interpret

what constitutes commuter rail or rapid

transit, but instead regulates whatever

rail fixed guideway systems that FRA

does not.

As set forth in Appendix A to part 209

of this chapter, with the exception of

self-contained urban rapid transit

systems, FRA’s statutory jurisdiction

extends to all entities that can be

construed as railroads by virtue of their

providing non-highway ground

transportation over rails or

electromagnetic guideways, and will

extend to future railroads using other

technologies not yet in use. For policy

reasons, FRA does not exercise

jurisdiction under all of its regulations

to the full extent permitted by statute.

Based on its knowledge of where the

safety problems were occurring at the

time of its regulatory action and its

assessment of the practical limitations

on its role, FRA has, in each regulatory

context, decided that the best option

was to regulate something less than the

total universe of railroads.

In light of the above, FRA may elect

to limit the exercise of its jurisdiction

over these entities for policy reasons.

FRA currently withholds the exercise of

its jurisdiction over rapid transit

operations where conventional and light

rail operations are separated in time

(night/day hour specifications). In

making this policy determination, FRA

anticipates working with the FTA on a

joint policy statement that will be

published in the Federal Register and

discuss the types of rapid transit

systems covered by this rule that will be

subject to FRA’s jurisdiction and which

ones will instead be subject to state

safety oversight under FTA’s

jurisdiction. As part of this joint policy

analysis by FRA and FTA, our two

agencies will seek to coordinate more

explicitly the requirements of FRA

regulations and State safety oversight

programs.

The final rule is structured to apply

to intercity and commuter service (as

well as rapid transit operations that

operate over the general railroad system

of transportation), 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.

Pub. L. 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 were scheduled to 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 tourist-specific safety

proposals during a multi-day

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 states that the

requirements of this part will 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 is taking into account

the financial burden that would be

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

will already be required to have

emergency preparedness plans in place

to protect the safety of their own

passengers; the private car passengers

will presumably benefit from these

plans even without the rule directly

covering private car owners or

operators. In the case of non-revenue
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24645

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 will 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

FRA did not receive any comments,

and this section is adopted as proposed.

Section 239.5 informs the public as to

FRA’s views regarding the preemptive

effect of the final 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,

adoption, and implementation of

emergency preparedness plans for

passenger train operations. Although the

subject matter includes a requirement in

§ 239.101(a)(5) that railroads establish

liaison relationships with their on-line

emergency responders by developing

and making available a training program

emphasizing access to railroad

equipment, location of railroad

facilities, and communications

interface, FRA is not requiring

emergency responders to participate in

these liaison activities. Accordingly,

since FRA is only regulating the content

of the training opportunities that

railroads must offer to the responder

community, States are in no way

preempted from regulating any other

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

consistent with part 239.

Further, FRA acknowledges that there

may be special local interests

concerning types and/or quantities of

on-board emergency equipment that

might need accommodating, particularly

in cases of public authorities operating

passenger train service within only one

territory. Although national uniformity

to the extent practicable of laws,

regulations, and orders related to

railroad safety is important, FRA does

not want to decrease the level of

emergency preparedness already in

place on a passenger railroad.

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 final rule. The definitions are

carefully worded in an attempt to

minimize the potential for

misinterpretation of the final rule.

Several of the definitions introduce new

concepts which require further

discussion.

For a detailed discussion of FRA’s

decision to revise the definition of

‘‘crewmember,’’ see the preceding

‘‘Discussion of Comments and

Conclusions’’ portion of this document

under heading of item number 1. The

definition of ‘‘crewmember’’ is

primarily intended to cover persons

who either perform on-board functions

connected with the movement of a train

and are subject to the Federal hours of

service laws during a tour of duty (e.g.,

a locomotive engineer, conductor) or

provide on-board service in a sleeping

car or coach assigned to intercity

service, other than food, beverage, or

security service (e.g., an Amtrak

sleeping car attendant), a deadheading

employee can be covered by the

definition as well. Accordingly, such an

employee could count as a ‘‘qualified’’

employee under § 239.101(a)(2)(vi) of

this part for purposes of meeting a

passenger railroad’s minimum on-board

staffing requirements for its emergency

preparedness plan when a freight train

crew has relieved that passenger

railroad’s expired crew. During a

passenger train emergency situation, offduty employees are expected to assume

their appropriate roles under the

railroad’s emergency preparedness plan

and assist the passengers.

In commenting on the proposal,

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.’’ In accordance with

FRA’s revised definition of

‘‘crewmember,’’ these categories of

employees are now excluded from

coverage.

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 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 definition of

‘‘emergency’’ or ‘‘emergency situation’’

has been changed in the final rule to

include examples of some of the more

common scenarios that would require a

railroad to activate its emergency

preparedness plan. However, regardless

of whether a particular emergency

illustration is specifically listed in the

definition, FRA expects a railroad to

activate its emergency preparedness

plan anytime an unexpected event

related to the operation of its passenger

train service involves a significant threat

to the safety or health of one or more

persons requiring immediate action.
24646 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

The NPRM defined ‘‘emergency

responder’’ as ‘‘a qualified member of a

police or fire department, or other

organization involved with public

safety, who responds to a passenger

train emergency.’’ 62 FR at 8356. In its

comments, APTA requested that FRA

delete the word ‘‘qualified’’ because it

implies that someone on the railroad

will determine an emergency

responder’s qualifications. APTA stated

that at an accident scene, a commuter

railroad lacks the practical capability to

determine an emergency responder’s

qualifications, and on-board personnel

do not have the time to determine

qualifications. The LIRR noted that

emergency responder qualifications are

dictated by police and fire departments,

not the railroads.

In including the word ‘‘qualified’’ in

the proposed definition of ‘‘emergency

responder,’’ FRA never intended to

place a burden on the railroads to

determine the professional

qualifications of emergency responders.

It was assumed that the railroads would

cooperate fully with any individual sent

by an organization involved with public

safety in response to a passenger train

emergency, based solely upon that

organization’s own determination of its

employee’s qualifications. However, in

response to the concerns of the two

commenters, FRA has deleted the word

‘‘qualified’’ from the definition of

‘‘emergency responder,’’ and also

revised the definition to clarify that a

member of an emergency responder

organization may coordinate as well as

directly provide emergency services.

The AAR commented that the

definition of ‘‘joint operations’’ is open

to various interpretations, and suggested

that FRA revise the definition in the

final rule to state that ‘‘joint operations

means rail operations conducted by

more than one railroad, except as

necessary for the purpose of

interchange.’’ FRA agrees with this

recommendation, and never intended

for the final rule to apply to joint

operations in instances when the sole

purpose for using the trackage is

interchange. Accordingly, the definition

of ‘‘joint operations’’ in the final rule

has been revised to exclude interchange

situations.

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 included

in § 239.7 of this part. This introduction

merely provides a sampling of the most

important concepts of the final rule.

Many other terms are defined and

explained in the section-by-section

analysis when analyzing the actual final

rule text to which they apply.

8. Responsibility for Compliance:

Section 239.9

FRA did not receive any comments,

and this section is adopted as proposed.

Section 239.9 clarifies FRA’s position

that the requirements contained in the

final rules are applicable to any

‘‘person,’’ including a contractor, that

performs any function required by the

final rule. Although all sections of the

final 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

§ 239.107, the contractor is 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 Pub.

L. 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 $11,000 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 $22,000

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 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 penalty schedule also

implements the maximum penalty that

FRA is authorized to assess for

violations of the provisions of this part.

The maximum penalty reflects an

increase from $10,000 to $11,000 for

violations and an increase from $20,000

to $22,000 for willful violations. This

change is intended to comply with the

provisions of the Federal Civil Penalties

Inflation Adjustment Act of 1990, Pub.

L. 101–410, 104 Stat. 890, 28 U.S.C.

2461 note, as amended by § 31001(s)(1)

of the Debt Collection Improvement Act

of 1996, Pub. L. 104–134, 110 Stat.

1321–373 (April 26, 1996), which

requires Federal agencies to adjust civil

monetary penalties to counter inflation’s

effect of diminishing the impact of these

penalties. The inflation adjustment is to

be calculated by increasing the

maximum civil monetary penalty by the

percentage that the Consumer Price

Index for the month of June 1995

exceeds the Consumer Price Index for

the month of June of the last calendar

year in which the amount of the penalty

was last set or adjusted. The initial

adjustment, however, may not exceed

10 percent. The resulting $11,000 and

$22,000 maximum penalties were

determined by applying the criteria set

forth in sections 4 and 5 of the statute

to the maximum penalties otherwise

provided for in the Federal railroad

safety laws.

Although the penalty provision

broadly provides that any person who

violates or causes the violation of any

requirement of 49 CFR part 239 is

subject to a civil penalty, members of

the Working Group were concerned
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24647

about the possibilities of theft of its onboard emergency equipment and/or

vandalism of its passenger cars, and

wanted FRA’s permission to post

warnings to members of the general

public that committing such acts could

subject them to Federal penalties. FRA

encourages railroads to notify their

passengers (and any potential vandal or

trespasser) that in addition to any

Federal or state criminal statutes that

exist to prohibit vandalism, theft,

trespassing, or tampering involving

railroad equipment, property, or

operations, FRA may impose a civil

penalty upon any individual who

willfully causes a railroad to be in

violation of any requirement of this part.

Take for example, a railroad that

supplies each of its passenger cars with

one fire extinguisher and one pry bar,

and provides each of its on-board

crewmembers with one flashlight. By

equipping its train with all of these

items, the railroad would be in full

compliance with the minimum

requirements of paragraph

239.101(a)(6)(i) of this part.

Accordingly, if unbeknownst to the

railroad, a vandal pilfers a pry bar from

one of the passenger cars while the train

is in service FRA can impose a civil

penalty upon that individual for causing

the railroad to be in violation of 49 CFR

part 239. FRA recommends that in

addition to posting written warnings on

and in passenger cars, railroads use onboard announcements to remind their

passengers of the serious consequences

that can result from placing the railroad

in violation of the important safety

requirements of this part.

The final rule includes a schedule of

civil penalties in an Appendix A to 49

CFR part 239, to be used in connection

with this part. Commenters were 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 were also

invited to recommend what penalties

may be appropriate, based upon the

relative seriousness of each type of

violation. FRA did not receive any

public comments nor did the Working

Group present any recommendations to

the agency on this topic. Accordingly,

FRA has drafted the penalty schedule

based on its own analysis of the

inherent seriousness of violating the

requirements of part 239 of this chapter.

10. Waivers: Section 239.13

Section 239.13 identifies FRA’s ability

to grant waivers of compliance with the

requirements of this rule. Requests for

such waivers can be filed by any

interested party. In reviewing the

request, FRA would conduct a factual

investigation to determine whether

there was a basis to deviate from the

general criteria without compromising

or risking a diminution of rail safety.

11. Information Collection: Section

239.15

FRA is adding this section to note that

it is inserting the OMB approval number

for the information collection

requirements of this rule for part 239,

since OMB has completed its review

and granted approval. This section also

identifies the sections of part 239 that

contain information collection

requirements.

12. Emergency preparedness plan:

Section 239.101

In drafting the final rule, FRA

recognized that the specific 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 rightof-way structures and wayside facilities,

and numbers of passengers carried, as

well as internal railroad organizations

and outside emergency response

resources. Under the final 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 final 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

reject 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 each

section applying to every railroad that is

a party to the plan or to every affected

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 or railroad or all. In instances

where a railroad hosts the operations of

a passenger railroad, both railroads have

to address issues of emergency

preparedness. The rule requires the host

railroad to jointly develop the

applicable portions of an emergency

preparedness plan with the operating

passenger railroad, uniquely dealing

with the passenger operations not

otherwise addressed. A detailed

discussion of the requirement to jointly

adopt a single emergency preparedness

plan for the passenger service is

included in the preceding ‘‘Discussion

of Comments and Conclusions’’ portion

of this document under item number 5.

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 deemphasize 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,
24648 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

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

must 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 must

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. Section

239.101(a) requires all railroads covered

by part 239 to develop and implement

written procedures to fulfill each

applicable provision of this section.

Depending on the nature of a railroad’s

operations, as well as on whether its

operations involve a host railroad,

different elements of this section may be

fulfilled by more than one entity. While

FRA requires all elements of this section

to be addressed for each passenger train

operation, the rule does not mandate

that every element be addressed

separately by each affected entity who is

one of multiple parties to a single

emergency preparedness plan.

Accordingly, if a passenger train service

operator relies on a freight railroad host

to notify outside emergency responders

after an emergency occurs, FRA would

permit the freight railroad to set out its

responsibility to address this element in

its portion of the emergency

preparedness plan. Provided that both

entities properly coordinate their

portions of the emergency preparedness

plan (and include cross-reference

citations to each other’s sections of the

plan), the passenger train service

operator’s portion of the plan could

omit a particular item and still be in

compliance with the final rule.

The final rule does not require that

the public authority and the operating

railroad or independent contractor each

actively participate in performing duties

in accordance with the joint filing with

FRA of the emergency preparedness

plan 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 that is

filed with FRA for approval covering the

entire passenger train service operation.

After approval of the plan, FRA may

hold the public authority or the other

entity or both responsible for

compliance with this part.

Based upon review of the comments

and consultations with the Working

Group, FRA is establishing the

parameters for emergency preparedness

plans in general, but will defer to the

expertise of each individual railroad to

adopt a suitable emergency

preparedness plan for its railroad, in

accordance with these parameters. As

previously noted, 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 its portion of the 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 final rule is to maximize the safety

of passengers, railroad personnel,

emergency response personnel,

property, and the general public that

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.

Communication

Section 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 final rule

anticipates that an on-board train

crewmember will immediately contact

the control center via a dependable onboard 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

shall be informed of the emergency and

provided directions. As appropriate, all

passengers must be accounted for

(particularly in sleeping compartments)

so as to expedite evacuation, if

necessary, and to avoid needless effort

to search for ‘‘missing’’ persons,

however, a passenger manifest is not

required.

In its comments, 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. The LIRR

requested in its comments that FRA

revise § 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.

The LIRR recommended that FRA adopt

a performance-based standard, so

instead of the rule requiring each

railroad to provide specific levels of

information to its passengers, the rule

should permit general levels of

information. The measure of success

would be based upon whether the

railroad successfully handled the

emergency by ensuring the timely

evacuation of its passengers.

APTA commented that crewmembers

on commuter railroads need to have

flexibility in what they tell passengers

about an emergency situation, and noted

that the proposal was ambiguous about

the level of detailed information that

must be provided. APTA also argued

that since the proposal appeared to

require crewmembers to tell all
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24649

passengers about the emergency, it

could worsen an emergency situation by

leading to inappropriate statements to

passengers. APTA stressed that

commuter railroad crewmembers are

professionals, and should be

empowered to use discretion in

determining the appropriate information

to tell passengers during and after an

emergency.

FRA recognizes that each emergency

situation is unique, and may require

rapid decisionmaking and varied

approaches by on-board crewmembers

on how best to ensure the safety of the

passengers. In response to APTA’s

concerns, proposed § 239.101(a)(1)(i)

has been modified in the final rule by

adding the words ‘‘as appropriate’’ in

order to provide discretion to the onboard crewmembers as to when and

how to inform the passengers about the

nature of the emergency and the types

of countermeasures that are in progress.

FRA also replaced the words ‘‘the train

crewmember’’ with the words ‘‘an onboard crewmember’’ in order to clarify

that the crewmember who first notifies

the control center does not necessarily

have to be the same crewmember who

communicates with the passengers. This

change reflects the fact that generally it

is the locomotive engineer who contacts

the control center and the train

conductor who keeps the passengers

apprised of pertinent developments.

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

or enforcement action against the

railroad, or both, the flexibility of the

final rule is consistent with FRA’s

reluctance to strictly impose a 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 reviewing and

approving emergency preparedness

plans under § 239.201, FRA expects to

see the railroads incorporating specific

recommended practices as guidance to

their employees 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 final 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.

Although FRA had asked for

comments on whether the final rule

should expand the notification language

of § 239.101(a)(1) to mandate a specific

primary means of communication, and

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,

no written comments were received on

this issue. While the language of the

final rule on this issue remains

unchanged from the proposal, FRA

expects the issue to be fully resolved in

the context of the forthcoming revision

of the Radio Standards and Procedures

(49 CFR part 220). That rulemaking was

tasked to the RSAC on April 1, 1996,

and the NPRM was published in the

Federal Register on June 26, 1997. 62

FR 34544. Among the proposals set

forth in proposed § 220.9 of that NPRM,

is a requirement that ‘‘each occupied

controlling locomotive in a train shall

have a working radio, and each train

shall also have communications

redundancy.’’ 62 FR at 34549, 34550,

34556. Persons wishing to receive more

information regarding the NPRM on

Railroad Communications should

contact Mr. Gene Cox or Mr. Dennis

Yachechak, Operating Practices

Specialists, Office of Safety, FRA, 400

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

20590 (telephone numbers: 202–632–

3504 (Cox); 202–632–3370

(Yachechak)), or Ms. Patricia V. Sun,

Trial Attorney, Office of Chief Counsel,

FRA, 400 Seventh Street, S.W.,

Washington, D.C. 20590 (telephone

number: 202–632–3183).

While the final rule does not require

that both ends of a train contain

communication devices for use by a

crewmember other than the engineer to

directly contact the control center, FRA

received comments from the UTU at the

August 28 and September 2, 1997

Working Group meetings about the need

for enhanced means of communications

on trains, especially trains operating in

intercity service. FRA is aware of

devices, such as tone generators, that

can enhance the communication

capabilities of the radios already carried

by each conductor and used to

communicate with the engineer. If

railroads voluntarily equip their trains

with these devices in order to go beyond

the minimum requirements of the final

rule, then conductors may be able to

directly communicate with the control

center in the event that the engineer’s

radio communications equipment

malfunctions or is damaged, or the

engineer is incapacitated during the

emergency situation. However, FRA

recognizes that while portable radios

can be placed on trains in a similar

manner to equipping locomotives with

mobile radios, portable radios may not

be able to transmit to the control center

due to distance, lower wattage, and

smaller antennas. In the case of

commuter railroads operating in push/

pull service there will already be two

mobile radios onboard, one at each end

of the train.

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 , while

operating its intercity trains on a host

railroad, will necessarily have access to

those telephone numbers while on the

host’s property. Amtrak also has a

nationwide toll-free telephone number

which connects the caller (including

private citizens) to the national Amtrak

police desk in Washington, DC, which

is manned around the clock. The final

rule does not require that notification to

the control center occur within a

precisely measured number of minutes,

rather it uses the 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.
24650 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

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.

In its comments, APTA requested that

FRA modify § 239.101(a)(1)(ii) to

increase the rule’s flexibility concerning

notifications by the control center to

emergency responders, and permit the

emergency preparedness plan to discuss

the means by which the contacts will

occur. APTA noted that not all

commuter railroads have control centers

in each emergency responder

jurisdiction, and the control center in

one State may control territory that

passes into another State. There is no

direct link, therefore, between the

dispatcher and the emergency

responders, and the railroad’s police

department is generally responsible for

making these contacts.

In response to APTA’s concerns, FRA

is aware that because each railroad’s

operations are somewhat unique, 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 (a)(1)(ii) does not specify

which emergency responder

organizations (e.g., fire departments,

helicopter rescue groups) or which

categories of appropriate railroad

officials that the control center must

contact. Because the paragraph is

already worded to provide maximize

flexibility to railroads in designating the

emergency contacts, FRA has not

modified this paragraph in response to

APTA’s concerns.

FRA encourages each affected railroad

to consider any reasonable method of

notification when it drafts its emergency

preparedness plan, so long as the

notifications by the control center

personnel occur promptly, whether by

direct or indirect means. In this regard,

FRA encourages railroads to consider

the comments of Eric Sondeen of the

Littleton, Colorado Fire Department, in

drafting the section of their emergency

preparedness plans that addresses

communication. Among his comments,

Mr. Sondeen recommended that

railroads provide, on an annual basis,

emergency dispatch center telephone

numbers to all rail corridor emergency

response agencies, including secondary

telephone numbers. Mr. Sondeen also

suggested that railroad crew timetables

contain 24-hour civilian emergency

response agency telephone numbers for

contingency cellular telephone contacts

by crewmembers.

METROLINK commented that each

railroad should designate an employee

function or position to be responsible

for maintaining current emergency

telephone numbers, rather than an

individual employee. In response to this

comment, FRA notes that paragraph

(a)(1)(ii) does not specify which control

center employees may be designated by

the railroad to maintain the list of

emergency telephone numbers. FRA

concludes that the paragraph, as

written, already permits a railroad great

flexibility to select any relevant specific

individual or general job category to

maintain the lists, provided that the

designation is properly set forth in the

railroad’s emergency preparedness plan

submission. Accordingly, this paragraph

is adopted as proposed. 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

request that the final rule 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.

Although the final rule does not

require railroad control center personnel

to notify operators of pipelines and

electric power companies that a

passenger train emergency has occurred,

FRA recognizes that pipelines and

power lines can pose potentially serious

hazards to rail passengers. On

September 30, 1993, Amtrak Train No.

88, while being hosted on track owned

by CSX Transportation, collided near

Intercession City, Florida with a vehicle

owned by Rountree Transport and

Rigging, Inc. (NTSB Highway Accident

Report (HAR) 95/01.) A natural gas

pipeline was located in close proximity

to the location of the passenger train

accident, but no one notified the owner

of the pipeline operation. Fortunately,

an off-duty employee of the pipeline

company viewed coverage of the

accident on television approximately

one hour after the accident, and notified

the pipeline owner. Although CSX

Transportation’s emergency procedures

manual stated that the first priority for

its Operations Center dispatchers

following an accident is to promptly

notify appropriate local emergency

response agencies when an emergency

situation exists, CSX Transportation

emergency procedures did not define

the derailment of a train in an area

occupied by a pipeline as an emergency

condition. Among the NTSB’s

conclusions was that ‘‘Osceola County

emergency responders failed to

determine and assess the risks posed by

potentially hazardous pipelines at the

accident site.’’ NTSB/HAR 95/01 at page

50. The NTSB also noted in a footnote

that one week before the collision an

Osceola County fireman had attended a

training session on pipeline emergency

response actions that was sponsored by

the pipeline company, but had not

briefed others at the fire station about

his training before the time of the

accident. NTSB/HAR 95/01 at page 28,

footnote 16.

Since the NPRM did not propose that

railroads should be required to notify

operators of pipelines and electric

power companies when a passenger

train accident occurs nearby, and FRA

did not seek public comment on this

issue, the final rule does not impose this

additional notification requirement.

However, based upon the many

important safety issues that must be

considered when a rail accident occurs,

and in accord with the NTSB’s findings

concerning the accident that occurred

near Intercession City, Florida in 1993,

FRA encourages both railroads and

members of the emergency responder

community to voluntarily incorporate

relevant information about pipelines

and power line locations into their

emergency preparedness planning. In

addition, as part of the four-phase

process of addressing emergency

preparedness, FRA will review the

implementation and effectiveness of

paragraph (a)(1) and related voluntary

developments, and evaluate whether

further rulemaking activity or action is

appropriate.

Initial Training

Section 239.101(a)(2) requires that the

emergency preparedness plan provide

for initial training, and then periodic

training at least once every two years

thereafter, of all railroad employees who
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24651

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.

On-board employees must receive

‘‘hands-on’’ instruction concerning the

location, function, and operation of onboard 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).

At the Working Group meeting held

on August 28, 1997, some members

questioned what FRA meant in

paragraph (a)(2)(i)(E) by the phrase

‘‘hands-on instruction.’’ Some members

of the group thought that it meant every

employee being trained must actually

open an emergency window and an

emergency door exit on a passenger car,

while others thought that a railroad

would be in full compliance if only one

employee were required to perform the

‘‘hands-on’’ exercise while hundreds of

others received their training merely by

observing. In addition, one member

commented that since an emergency

window used for demonstration

purposes is costly to repair and requires

taking the passenger car temporarily out

of service to replace the rubber

stripping, the final rule should permit

employees to receive their ‘‘hands-on’’

training by watching a video

presentation.

FRA recognizes the unique

characteristics of the various railroad

properties, and is reluctant to inhibit

flexibility and creativity by imposing

rigorous specifications in the rule text

itself on how every railroad should

perform ‘‘hands-on’’ training. However,

FRA expects each railroad’s emergency

preparedness plan to address the means

by which it proposes to train all of its

on-board employees on the specific

elements of: rail equipment

familiarization; situational awareness;

passenger evacuation; coordination of

functions; and ‘‘hands-on’’ instruction.

In this regard, FRA will not approve a

plan that provides for ‘‘hands-on’’

training exclusively by allowing

employees to watch a video, since

watching a two-dimensional image of

someone else demonstrating a means of

emergency escape or using a piece of

emergency equipment can be

ineffectual. But, if a railroad wishes to

use a video as an instructive tool in

combination with a scale model of an

emergency window (mock-up)

containing a rubber pull strip, and the

emergency preparedness plan provides

for small groups of employees taking

turns handling window glazing and

practicing emergency escape using the

mock-up, FRA would find this approach

acceptable.

The final rule also requires

appropriate training of control center

personnel who effect 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 is not

requiring 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.

During the NPRM stage of this

proceeding, FRA primarily envisioned

the need for each railroad to provide

appropriate training to its control center

personnel on their duties after a

passenger train emergency has already

occurred (e.g., notifying outside

emergency responders about a

derailment). However, in light of a

recent accident near Savannah, Georgia,

FRA has revised the final rule to clarify

that control center personnel may have

important emergency-preparedness

responsibilities even before a lifeendangering situation turns into a

passenger train emergency. Specifically,

on October 9, 1997, an Amtrak train

operating on track owned by CSX

Transportation in Garden City, Georgia

collided with a truck hauling a

‘‘lowboy’’ trailer (which has unusually

low clearance between its underside

and the ground) at a grade crossing. The

truck had become stuck on the crossing.

Prior to the collision, local police

contacted CSX Transportation police,

who alerted the CSX Transportation

dispatching center in Jacksonville,

Florida. The information concerning the

stuck trailer reached the dispatcher of a

nearby parallel line in the area, who saw

no imminent risk because of an absence

of rail traffic on this line. Unfortunately,

the information did not reach the

dispatcher of the line on which the

lowboy trailer was actually stuck.

Because the crew of the Amtrak train

was not notified of the trailer’s presence

by the dispatcher and was not able to

stop the train in time once it became

visible, the Amtrak train collided with

the trailer.

While the investigation of the

accident is still in its early stages, the

best information currently available

supports certain preliminary

conclusions. Information concerning the

presence of the truck on the crossing

was conveyed to CSX Transportation

prior to the collision, but either the

information was not sufficiently

descriptive of the location of the

incident or the information was not

conveyed to the appropriate dispatcher,

or both. In order to prevent the

recurrence of such accidents, FRA and

CSX Transportation agreed that CSX

Transportation would require:

continued emphasis on education of

truckers; restricted speeds in zones

where a highway-rail crossing collision

may be imminent; precise identification

of highway-rail crossings and immediate

notification of hazards; a safety briefing

for its dispatchers and supervisors on

the scenario of the accident of October

9, 1997; and operational testing of its

dispatchers and supervisors concerning

avoidance of any possible collisions

while the precise location of an

obstruction or other hazard at a railhighway crossing is being determined.

Consistent with the above discussion,

FRA has revised the rule text to require

that control center personnel receive

territorial familiarization. FRA is aware

that the railroad industry has a variety

of methods available in order to

accomplish this objective. These

methods include, but are not limited to;

review of trackage charts and operating

timetables; familiarization train rides by

train dispatchers through the territories

in which they dispatch; and viewing of

videotapes containing narration that

describes the physical characteristics of

the territory. FRA also expects each

railroad’s emergency preparedness plan

to provide for a high degree of

coordination and interface during all

internal communications between

personnel within the control center,

particularly whenever a potential or

actual emergency situation exists.
24652 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

Initial Training Schedule

FRA recognizes that even after a

railroad receives conditional approval of

its emergency preparedness plan under

§ 239.201, the initial training of

individual employees on their

responsibilities under the emergency

preparedness plan cannot occur

immediately. Accordingly, new

subparagraphs (iii) and (iv) have been

substituted in § 239.101(a)(2) in order to

establish an implementation schedule

for this initial training. While each

railroad will be held responsible by FRA

for all other applicable provisions of its

emergency preparedness plan that it can

fully comply with immediately after the

date of conditional approval (e.g.,

equipping each passenger car with one

fire extinguisher in accordance with

§ 239.101(a)(6)(i)(A) or conducting a

debriefing and critique session after a

passenger train emergency simulation

under § 239.105, the initial training can

be spread out over a longer time period.

In addition, during this implementation

phase, the on-board staffing

requirements of subparagraph (vi) of

§ 239.101(a)(2) will not apply.

During the Working Group meeting

held on August 28, 1997, FRA did not

receive any specific recommendations

from members of the group on a precise

implementation timetable for inclusion

in the final rule. However, the Working

Group agreed that the final rule needed

to reflect the fact that railroads could

not provide emergency preparedness

training to every employee on the same

day, and that the railroads would

instead modify their other ongoing

training programs to fulfill this new

requirement. Upon careful

consideration of this issue, FRA

recognizes that smaller railroads (i.e,

those whose operations include less

than 150 route miles and less than 200

million passenger miles annually)

generally operate less frequent service

and employ fewer individuals in less

hierarchical environments than do

larger railroads and providers of

intercity passenger service, and will

therefore have an easier time providing

emergency preparedness training from a

logistical standpoint than will those

larger service providers.

FRA anticipates that these smaller

entities will also be able to offer this

training to informal groups of

employees without the need for

carefully planned and organized

training sessions. In addition, under the

terms of the final rule, intercity service

providers also have the added

requirement to conduct training for

persons performing on-board functions

in a sleeping car or coach car (other than

food, beverage, or security service).

Accordingly, the final rule provides

larger railroads and intercity railroads

with more time in which to fully train

their employees than it does smaller

railroads in order to recognize the more

complex organizational structure of

these larger companies.

In the case of a railroad providing

commuter or other short-haul passenger

train service and whose operations

include less than 150 route miles and

less than 200 million passenger miles

annually, the final rule permits the

training to be completed up to 21

months after the effective date of the

rule, which will be approximately one

year after FRA grants conditional

approval to the railroad. In the case of

a railroad providing commuter or other

short-haul passenger train service and

whose operations include 150 or more

route miles and 200 million or more

passenger miles annually, or a railroad

providing intercity passenger service

(regardless of the number of route miles

or passenger miles), the final rule

permits the training to be completed up

to 33 months after the effective date of

the rule, which will be approximately

two years after FRA grants conditional

approval to the railroad. In addition,

while each freight railroad hosting any

category of passenger train service

receives up to 21 months after the

effective date of the final rule to train its

employees, the implementation

schedule for a passenger railroad

hosting such service (e.g., Amtrak

hosting the operations of NJTR in the

state of New Jersey) is governed by

subparagraphs (A)—(C) of

§ 239.101(a)(2)(iii), based upon either

route miles and passenger miles or

whether that host railroad provides

intercity service. Accordingly, under a

scenario of Amtrak hosting the

operations of NJTR, Amtrak would

receive up to 33 months in which to

train its employees on their hosting

responsibilities under the joint

emergency preparedness plan covering

the NJTR passenger operation.

In accordance with the

implementation schedule, a railroad

beginning passenger operations after the

effective date of the final rule has either

90 or 180 days after beginning service,

depending on the size or type of its

operation, to train its employees on

their responsibilities under the

emergency preparedness plan. Any new

employees who are hired by a railroad

to perform either on-board or control

center functions after the date on which

the railroad receives conditional

approval under § 239.201(b)(1), must

receive their initial training within 90

days after commencing employment.

During this 90-day time period, these

employees would be permitted to

function as crewmembers even though

they had not yet become qualified under

the emergency preparedness plan to

perform the functions for which they

will be responsible.

Periodic Training

The final 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 final

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 final rule. As FRA

recognized in drafting the NPRM, while

the final rule places an upper limit of

the term ‘‘periodic’’ at two years,

anytime the provisions of an emergency

preparedness plan are invoked during

an actual emergency, that railroad

receives an additional opportunity to

evaluate the level of knowledge of its

affected employees. However, since the

final rule does not permit any level of

activation of the railroad’s emergency

preparedness plan to count toward the

training requirement, the railroad

cannot count the event toward the

periodic training requirement for those

involved employees. However, FRA

recognizes that affected railroad

employees who receive ‘‘real life’’

training will still benefit from the

experience, particularly whenever all

five of the requirements of

§ 239.101(a)(2)(i) are addressed during

the emergency and the employees also

participate in the debriefing and critique

session.

In the NPRM, FRA requested

comments from railroads on the costs of

implementing the on-board personnel

training requirements of the rule.

Specifically, FRA wanted to determine

the extent of the current training that

railroads already provide to their onboard employees (including emergency
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24653

preparedness training) as part of regular

operating rules training programs.

Comments were also requested

concerning the estimated dollar amount

of the incremental additional costs

connected with modifying existing

training programs to comply with this

proposal. FRA was interested in

ascertaining whether the training

requirements would merely add de

minimis costs to each railroad’s existing

training program or if compliance

would entail moderate or significant

additional costs.

The majority of the organizations that

submitted comments on § 239.101(a)(2)

recommended that FRA modify the

requirement for employee training and

qualification by permitting each railroad

to provide periodic training at least once

every three years, instead of at least

once every two years. In this regard,

Amtrak recommended that the periodic

training requirement be changed to at

least once every three years, to coincide

with Amtrak’s interval for refresher

training on first aid. Although Amtrak

stated that three years would provide

sufficient frequency, it did not provide

a reason. Amtrak also noted that

railroads will provide their employees

with interim updates when major

changes to their emergency response

programs occur.

APTA offered no comment on the

frequency of periodic training for onboard personnel, but recommended a

training cycle of three years for control

center personnel. Consistent with the

requirements of 49 CFR part 240

(Qualification and Certification of

Locomotive Engineers), APTA stated

that a three-year training cycle better fits

the training programs of all commuter

railroads, especially the larger ones.

APTA also argued that a three-year

training cycle would permit better

scheduling of funding outlays for this

important training activity.

CALTRAIN commented that a threeyear cycle of formal training is

preferable, since existing training drills

regularly provide much of the required

materials. CALTRAIN also stated that

since formal training may require

reassignment, a three-year training cycle

better allows for budgeting and

personnel reassignments during austere

fiscal times.

The LIRR stated that a three-year

qualification period for emergency

preparedness training would meet the

criteria set forth in the rule. However,

the LIRR offered no supporting data for

this assertion.

Rationale for Requiring Two-year

Interval

In rejecting the request of various

commenters to raise the time interval

between periodic training cycles for onboard and control center employees to

three years, FRA carefully considered

both financial cost issues and the safety

ramifications of weakening an integral

element of emergency preparedness.

Based upon FRA’s analysis, the agency

recognizes that railroads providing and

hosting passenger train service will

experience cost increases by being

required to train their employees at least

once every two years. However, FRA

concludes that the effective and efficient

management of passenger train

emergencies begins with properly

trained and knowledgeable railroad

employees onboard the trains and in the

control centers capable of quickly

obtaining the assistance of emergency

responders and ensuring the safety of

the passengers. FRA believes that in

order to maximize a railroad’s level of

emergency preparedness, frequent

refresher training is essential, and any

periodic requirement longer than at

least once every two years increases the

probability that a certain number of

employees would become unfamiliar

with their crucial emergency

preparedness roles.

As discussed in the analysis of

§ 239.103, FRA requires railroads

operating passenger train service to

conduct full-scale 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

these 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 § 239.101(a)(2) will

include instruction on the importance of

full-scale emergency simulations in

achieving successful implementation of

the emergency preparedness plan.

First-Aid and CPR Training

Although § 239.101(a)(6)(ii) has been

added to require railroads providing

intercity service to equip each train with

at least one first-aid kit (see the sectionby-section analysis of this issue under

the ‘‘On-board emergency equipment’’

heading for a detailed discussion of this

requirement), the final 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 rule, or at least mandating that

railroads offer employees the

opportunity to receive this training, the

consensus of the Working Group during

the drafting of the NPRM was that both

first-aid and CPR training should be

excluded from the rule. The Working

Group stressed that the goal of the 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
24654 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

perform during an emergency and that

first-aid and CPR should be performed

by emergency medical services

personnel.

FRA invited commenters to submit

their views on whether the final rule

should include the issues of first-aid

and CPR training. FRA noted that one

option was 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 was to

require not only that railroads train their

employees in first-aid and CPR, but also

mandate that employees use this

training during an emergency.

The UTU commented that the final

rule should make CPR training and firstaid training mandatory on a biannual

basis, and require anyone who is

properly trained and given proper

equipment to offer assistance in an

emergency. The UTU argued that each

car should contain a first-aid kit and

that each train should contain a doctor’s

kit in case a doctor is on board a train

during an emergency situation. The

UTU indicated that conductors on

MARC trains receive a thorough

emergency training program that

includes CPR and first-aid training, and

recommended that one conductor or

assistant conductor be trained in

emergency procedures for every 50

passengers on board a train. The UTU

also noted that there would not be a

delay in calling for help if the call is

made quickly and the first-aid or CPR is

then started. The UTU stated that

employees who have not been trained

with CPR will not be able to identify

serious medical emergencies that truly

require intervention by properly trained

and equipped emergency personnel.

Finally, the UTU expressed its doubt

about METROLINK’s assertion that none

of its 8 million riders over the last three

years had required CPR, and wondered

about METROLINK’s documentation for

this statement.

CALTRAIN commented that

employer-provided CPR training should

be excluded from the final rule, due to

potential liability issues. The Littleton,

Colorado Fire Department stated that

the final rule should require railroads to

provide rail emergency and first-aid

training to crewmembers on board both

Amtrak and privately-operated

passenger trains, as well as for the

operating crews of all freight trains.

Finally, the BLE noted that it was not

opposed to a qualified person having

skills in first-aid and CPR, but stated

that although the engineer would

benefit tremendously from first-aid

training and CPR training, the engineer

should remain on the locomotive and

not be the principal person providing

that response.

At the Working Group meeting held

on August 28, 1997, the issue of

requiring first-aid and CPR training was

once again fully discussed. Although

the UTU representative continued to

recommend that FRA mandate that

railroads provide this training and

require its use in the event of an

emergency situation, the preponderant

recommendation to FRA from the

railroad commenters ( i.e., that this

training remain optional) was

unchanged from the NPRM stage of this

proceeding. In making the decision to

exclude first-aid and CPR training for

railroad employees from the minimum

requirements of emergency

preparedness planning, FRA recognizes

that the main objective of this rule is to

ensure the prompt arrival of

professional emergency responders at

the scene if an emergency, not risk

potential delays by encouraging onboard crewmembers to perform heroic

efforts that may assist one individual

passenger at the expense of the safety of

the entire train. In addition, FRA is

confident that since many members of

the general public (including railroad

employees) voluntarily obtain first-aid

and CPR training, it is likely that

someone knowledgeable will be aboard

the train and available to assist in the

event that medical professionals are

delayed in responding to the emergency.

However, FRA will continue to evaluate

this issue through program review.

Passenger Manifests

The final 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 were invited in the NPRM

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. Since no

comments were received, FRA has not

included any passenger manifestrequirement in the final rule.

Testing

The term ‘‘accurately measure’’ is

used in § 239.101(a)(2)(v)(A) relative to

employee qualification in a broad sense

to mean that the test will show to the

railroad whether the employee has

sufficient understanding of the

emergency preparedness plan subject

area for which he or she is responsible,

and whether 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

is 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.

On-Board Staffing

Section 239.101(a)(2)(vi) has been

revised and renumbered from the NPRM

to require, as a general rule, that all onboard crewmembers be qualified to
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24655

perform the functions for which they are

responsible under the applicable

provisions of the railroad’s emergency

preparedness plan. For example, in the

year 2002 (a date beyond the deadline

for the completion of initial training

under § 239.101(a)(2)(iii) by all existing

railroads providing intercity passenger

service), a train on an intercity railroad

is scheduled to travel from Washington,

D.C. to Atlanta, Georgia with a fourperson operating crew fully trained

under the applicable provisions of the

railroad’s emergency preparedness plan.

However, the train crew also includes

someone assigned to perform service as

an attendant in a sleeping car (and not

as a new railroad employee for purposes

of § 239.101(a)(2)(iv)) who is not yet

qualified under the plan’s provisions to

perform assigned functions. Although

this train already has a fully trained and

qualified crew operating the train, the

intercity railroad would still not be in

full compliance with the final rule since

the crew includes one on-board

crewmember who is not qualified under

the emergency preparedness plan. (See

the preceding ‘‘Discussion of Comments

and Conclusions’’ portion of this

document under the heading of item

number 1 for a detailed discussion of

FRA’s decision to revise the definition

of ‘‘crewmember’’ in § 239.7 and

increase the on-board staffing

requirements.) The one exception to the

general rule, as set forth in

subparagraph (B), applies 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

passenger railroad’s emergency

preparedness plan and available to

perform excess service under the

Federal hours of service laws in the

event of a passenger train emergency,

there would be no violation of the final

rule.

Joint Operations

Section 239.101(a)(3) has been revised

from the NPRM, and now contains the

requirement that each freight or

passenger railroad hosting passenger

train service shall communicate with

that service’s provider or operator or

both and coordinate applicable portions

of the one jointly-adopted emergency

preparedness plan for that passenger

service. One significant difference to the

language of paragraph (a)(3) from the

NPRM stage, is that the final rule

prohibits a host railroad from utilizing

a separate emergency preparedness plan

in order to address its emergency

preparedness responsibilities involving

the service being hosted. (See the

preceding ‘‘Discussion of Comments

and Conclusions’’ portion of this

document under the heading of item

number 5 for a detailed discussion of

the requirement that a joint emergency

preparedness plan be submitted for each

passenger train operation by all

railroads involved with providing,

operating, or hosting such passenger

service.) The final rule also recognizes

that while hosts of passenger train

service are generally freight railroads,

passenger railroads (e.g., Amtrak) may

also serve as hosts.

The host railroads must prepare

sections of the 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 plan sections addressing

hosting by both freight and passenger

railroads must, at a minimum, include

procedures for making emergency

responder notifications, and discuss

general capabilities for rendering

assistance to the involved hosted

passenger railroads during emergency

situations. The hosting railroads must

address any physical and operating

characteristics of their rail lines that

may affect the safety of the hosted 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

another railroad to review all of the

requirements imposed by the final rule

with the host railroad, and coordinate

their respective roles in implementing a

coherent response to an emergency

situation. While FRA presumes that the

host 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

final 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 is including 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.

Tunnels

Section 239.101(a)(4)(i) addresses

FRA’s requirements for compliance with

this part by railroads with operations

that include tunnels of considerable

length, where immediate passenger

egress is not feasible. Since FRA did not

receive any comments on this issue,

paragraph (a)(4) is adopted as proposed.

In order to limit the number of

structures covered by this 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.

Other Operating Considerations

FRA also did not receive any

comments on § 239.101(a)(4)(ii), and has

adopted paragraph (a)(4)(ii) as proposed.

The paragraph requires 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
24656 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

electrified territory, the control center

must be responsible for issuing

instructions to deenergize the electrical

power. Also, the train crew and

emergency responders must know how,

when, and when not to remove on-board

power from the train, including traction

power, train-lined (head-end) power to

individual cars, and battery-source

power. The prudent approach for

everyone connected with a passenger

train emergency, especially those

individuals who have not received

training in power isolation procedures,

is to always assume that the electrical

power is in the ‘‘on’’ position.

Also, railroad operations over bridges

and trestles that cross over wetlands,

lakes, rivers, or other bodies of water or

over ravines (particularly those in

isolated areas with no nearby roads)

pose particular access problems for

emergency responders. Helicopters or

boats may provide the only logical

approach to these locations.

Parallel Operations

Section 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. In

commenting on paragraph (a)(4)(iii) as

proposed, APTA stated that the final

rule should not place the entire

responsibility for the parallel operation

on the passenger railroad, and should

properly account for the shared

responsibilities of both the passenger

operation and the hosting freight

railroad. Although coordination is

required under the proposal, APTA

argued that the NPRM did not provide

a method to ensure cooperation with the

freight railroad to coordinate emergency

efforts. APTA noted that if a freight

railroad refuses to cooperate, a

commuter railroad lacks recourse, and

could still face assessment of civil

penalties for failing to coordinate with

an unwilling freight railroad host. APTA

requested that the final rule delete the

words ‘‘provide for coordination’’ and

replace them with the words ‘‘shall seek

to coordinate.’’ APTA also indicated

that the proposal did not take into

account light and rapid transit rail

operations that often run parallel to

commuter operations.

In response to APTA’s concerns, the

final rule has been revised to include a

requirement that all railroads that are

parties to a passenger train operation’s

emergency preparedness plan must

initiate reasonable and prudent actions

to coordinate emergency efforts when

adjacent rail modes of transportation

run parallel to any of these railroads. By

adding the words ‘‘reasonable’’ and

‘‘prudent,’’ FRA recognizes that

coordination efforts may not always be

successful if one of the railroad parties

to the arrangement is unwilling to

cooperate. While FRA will not penalize

railroads that make good faith efforts to

establish appropriate working

relationships with adjacent rail modes

of transportation, FRA expects each

railroad to demonstrate that it made the

necessary coordination attempts. In

addition, upon notification and request,

FRA will intervene to assist any railroad

that is having difficulty coordinating

emergency efforts, and help mediate a

solution.

In response to APTA’s comment that

the proposal did not address light and

rapid transit rail operations running

parallel to commuter operations, FRA

notes that the term ‘‘rail modes of

transportation’’ is intended to cover all

types of transit operations by rail or

magnetic guideways running parallel to

passenger railroad operations and their

hosts. Accordingly, no change to the

final rule was necessary.

In accordance with the requirements

of this paragraph, employees of a host

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 motor vehicles, must be required by

the emergency preparedness plan for the

passenger operation to immediately

convey that knowledge or information

to the control center. 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. Under the terms of

this revised paragraph, coordination of

emergency efforts is required regardless

of whether the host railroad is a freight

railroad or another passenger operation.

Liaison With Emergency Responders

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 final

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 final rule 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

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

final rule only requires 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 final rule does

not hold a railroad accountable for an

emergency responder organization’s

unwillingness to enter into a liaison

relationship, provided that the railroad

employed its best efforts to make the

liaison opportunities known and

available to the responders.

In addition to the requirement to

periodically distribute applicable

portions of the emergency preparedness

plan to emergency responders (which

has been moved from paragraph (a)(5)(i)
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24657

in the NPRM to paragraph (a)(5)(iii) in

the final rule), FRA has added a new

requirement as paragraph (a)(5)(i)

mandating that each affected railroad

develop and make available a training

program for all on-line emergency

responders who might be called upon to

respond to an emergency. As set forth in

the preceding ‘‘Discussion of Comments

and Conclusions’’ portion of this

document under the heading of item

number 2, in conjunction with FRA’s

decision to scale back the simulation

requirement of § 239.103 to involve only

one meaningful full-scale simulation

(performed either annually or every two

years depending on the size of the

railroad), FRA has added the training

program provision in order to maximize

the opportunity of the emergency

responder community to obtain

familiarity with railroad equipment,

location of railroad facilities, and

communications interface.

In paragraph (a)(5)(ii) of the final rule

(which has been revised and

renumbered from paragraph (a)(5)(iii) of

the NPRM) FRA requires railroads to

invite emergency responders to

participate in emergency simulations.

Since § 239.103 has been revised in the

final rule to prohibit a railroad from

counting a tabletop exercise toward the

simulation requirement, any railroad

electing to voluntarily conduct a

tabletop exercise is not required by

paragraph (a)(5)(ii) to invite members of

the emergency responder community to

attend. However, a railroad must

employ its best efforts to invite all

appropriate emergency responders to

attend all of its full-scale simulations.

Moreover, FRA expects each railroad to

extend invitations to all full-scale

simulations even if the railroad does not

intend to count a particular simulation

toward the minimum number required

by § 239.103(b).

FRA recognizes that not every

potential outside emergency responder

will have the opportunity to attend a

full-scale simulation or otherwise obtain

realistic exposure to the unique

emergency response challenges posed

by railroad emergencies. In addition,

even assuming that every affected

railroad diligently distributes the

pertinent portions of its current and

updated emergency preparedness plan

to appropriate members of the

emergency responder community,

descriptive information set forth in

written materials is no substitute for

formal training that includes meaningful

hands-on experience with railroad

equipment and an opportunity to ask

questions of a live instructor.

In commenting on § 239.101(a)(5),

APTA stated that all commuter railroads

already attempt to share information

with appropriate local emergency

responders, and that this determination

is based upon such factors as railroad

operations and emergency responder

capabilities. APTA argued that the

proposed rule eliminates that discretion

and flexibility and places a tremendous

burden on commuter railroads to

affirmatively seek out every emergency

responder organization, whether or not

that entity is a logical choice. APTA

noted, for example, that paragraph

(a)(5)(iii) of the proposed rule (which

has been redesignated as paragraph

(a)(5)(ii) in the final rule) would require

MARC to invite the Washington, D.C.

fire department to every simulation

conducted on both of its main lines,

even though the simulation is intended

to benefit emergency responders in West

Virginia. Instead, APTA indicated that

MARC should be able to group

emergency responders by region.

In addition, APTA requested

clarification in the final rule of the

requirement in § 239.101(a)(5)(ii) of the

NPRM to maintain ‘‘an awareness of

each emergency responders’

capabilities.’’ APTA asked whether this

requirement included the type of

equipment, hazardous material

capabilities, ambulance service,

emergency medical technicians, and

size of fire and police departments.

Since each emergency responder

determines the level and type of

response to provide during an

emergency, which may or may not

reflect the limits of its capabilities,

APTA also questioned how maintaining

this information will benefit the

railroad.

In its comments, METRA questioned

how it could be expected to become

aware of, much less maintain an

awareness of, the capabilities of each

emergency responder throughout six of

the most densely populated counties in

the country. METRA suggested that to

maintain an awareness it could establish

a program through its liaison, as

mandated in the regulation, that any

community involved with METRA’s

service would have to tell METRA if it

upgraded or downgraded its facilities or

equipment. A railroad should know if

one community has a type of equipment

needed for a rescue, for example, but

need not know the internal workings of

the community facilities.

A member of the public commented

that there needs to be better

coordination between emergency

response teams and railroad operators.

Although not all railroad accidents can

be prevented, the commenter stated that

coordination with emergency

responders can save the lives of

passengers experiencing health

difficulties while riding trains, such as

heart attacks.

CALTRAIN stated that while it works

closely with local on-line emergency

responders, it believes that rail

properties are unable to know the

detailed capabilities of each agency.

CALTRAIN indicated that it relies on

responders to summon the appropriate

help, based in part upon the information

provided to them by the railroad.

NICTD commented that it had already

conducted two simulation drills with

emergency responders during calendar

year 1996. NICTD stated that it was

already in the process of developing a

training program with manuals on

emergency evacuation of passengers

from equipment for all emergency

responder organizations servicing

NICTD.

The Des Plaines, Illinois Fire

Department stated that emergency

telephone numbers are of paramount

importance so that the fire department

can establish contact and stop the trains

so that responders can go down the rail

lines in both directions. This

commenter also noted that receipt of

hands-on training is important.

The LIRR commented that members of

the emergency responder community do

not need the railroads to show them

how to put out fires or splint fractures.

Instead, the railroads need to train the

responders on railroad equipment.

The UTU stated that it is important

that emergency plans be updated and be

distributed to the host railroads and

emergency responders. The UTU

believed that doing so would shorten

response time, and make emergency

responders more familiar with the

railroad’s physical characteristics and

equipment.

In its comments, METROLINK stated

that it operates through the jurisdictions

of 33 different fire districts, over 50

ambulance companies, and 45 police

agencies. METROLINK argued that it

should not be a railroad’s function to

maintain an awareness of the

capabilities of each emergency

responder, and noted that it lacks the

technical ability to know or understand

when a ‘‘significant change’’ occurs in a

responder’s capability. METROLINK

also noted that the proposed rule

imposed no reciprocal responsibility on

local emergency responders to notify

railroads when their capabilities change.

METROLINK contended that the

emergency responders should be

responsible for establishing mutual aid

with other local agencies when

situations outside their capacity arise.

Based upon the comments received,

FRA concludes that it would be
24658 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

impractical to require railroads to

directly monitor the emergency

preparedness and response capabilities

of all of its on-line emergency

responders, and has deleted the

‘‘maintaining-awareness’’ requirement

of paragraph (a)(5)(ii) of the NPRM from

the final rule. FRA recognizes that since

the rule imposes no burden on

emergency responders to advise

railroads of their staffing capabilities or

their inventories of specialized rescue

equipment, the railroads would be

hindered in their ability to immediately

determine the most appropriate

emergency response organizations to

request assistance from after a passenger

train emergency situation develops.

Moreover, FRA expects that the central

location of the emergency response

contact (e.g., the 911 emergency

operations center) will be fully aware of

the capabilities of the nearest and/or

best-equipped emergency responders,

thereby being able to send the most

appropriate responders to the location

of a passenger train emergency.

Accordingly, if a train derails and falls

from a bridge into a river, FRA would

expect the emergency responder

organization that is contacted to

summon a rescue company trained in

water rescues if one is available.

In commenting on the proposal,

Amtrak stated that while it agreed that

it is reasonable to expect that the

emergency preparedness plan

information should be made available to

any affected emergency responder, the

final rule should permit railroads to

fulfill this requirement by providing the

information to entities that perform

centralized functions of collecting

information and disseminating it to

emergency service providers, when and

as needed. Amtrak recommended that

the final rule not designate acceptable

information repositories, but rather

provide latitude for railroads to

communicate effectively with local

emergency responders through

centralized communication entities

rather than individually. Amtrak

stressed that since its nationwide route

system interfaces with over 15,000

emergency response agencies, it would

not be feasible to keep all of them

supplied with written instructions. Even

if the final rule permitted electronic

transmission of plan information,

Amtrak urged that direct

communication between individual

railroads and each emergency responder

organization not be required.

Subsequent to the public hearings,

Amtrak submitted additional comments

to FRA on July 1, 1997 concerning

distribution of emergency preparedness

plans to emergency responders. Amtrak

stated that it agreed that applicable

portions of the emergency preparedness

plan should be readily available to any

affected emergency responder, but

believed that the regulations should not

require direct communication between

each individual emergency response

agency and the railroad. Entities that

perform centralized functions of

information collection can disseminate

this information to emergency

responders as needed. Amtrak noted

that these entities include the National

Fire Protection Association (NFPA), the

International Association of Police

Chiefs (IAPC), the International

Association of Fire Chiefs (IAFC),

organizations for emergency medical

services and emergency management

agencies, and national trade magazines.

These organizations could provide an

effective conduit through which

railroads can communicate with the

emergency response agencies in the

local communities to advise them of the

availability of emergency plans.

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, FRA recognizes, based on

Amtrak’s statements made at both the

pre-NPRM Working Group meetings and

in its written comments, that because

Amtrak 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.

FRA had invited public comments on

how Amtrak could best comply with the

emergency responder liaison

requirement, as set forth in the proposed

rule. FRA asked whether the final rule

should establish a different standard for

railroads that operate in territories with

large numbers of potential emergency

responders to contact, and requested

that 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. Regrettably, the only

commenter addressing this issue was

Amtrak, and its comments dated July 1,

1997 are summarized above.

On September 2, 1997, six FRA

representatives convened a meeting

with seven members of Amtrak’s

management team at Amtrak’s offices in

Washington, D.C. to discuss issues

relating to the final rule on Radio

Communications as well as to

emergency preparedness. A

representative from the UTU was also in

attendance. Minutes of that meeting

have been placed in the public dockets

of both rulemakings.

In pertinent part, FRA challenged

Amtrak to provide information to FRA

on how the railroad would ensure that

the training materials and emergency

preparedness plan information would

reach the literally thousands of

emergency responder organizations who

might potentially respond to an

emergency occurring along Amtrak’s

many routes. FRA recognizes that

smaller commuter operations will be

capable of training the limited number

of potential emergency responders along

their routes on their railroad equipment,

but that Amtrak lacks the financial

resources and personnel to directly

contact thousands of organizations. At

the conclusion of this meeting, FRA

requested that Amtrak submit a

proposal to FRA on how it expects to

achieve compliance with the

requirements of this paragraph.

In a letter dated October 27, 1997,

Amtrak stated that it operates intercity

passenger trains on a route system of

more than 20,000 miles and reiterated

that as many as 20,000 organizations

provide emergency response services in

the territories through which its trains

operate. While Amtrak noted that it was

not feasible to directly deal with all of

these agencies, it acknowledged the

importance of communication

concerning Amtrak’s emergency

response plans, both before and during

an emergency situation. To accomplish

this objective, Amtrak proposed a

process for advising these local entities

of the availabilities of Amtrak’s plans,

distributing copies of these plans

promptly when requested, and

providing opportunities for dialogue

concerning these plans. Amtrak also

stressed that the process must provide

an independent check to determine

whether the emergency service

responders are aware of the availability

of Amtrak’s materials and how they can
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24659

communicate with Amtrak about them

during an emergency.

Amtrak stated that the wide dispersal

of its operations is markedly different

from those of commuter services, which

are localized in relatively discrete urban

areas. Amtrak encouraged FRA to

develop a different standard for

distribution of Amtrak’s materials from

that set forth in paragraph (a)(5)(i). In

this regard, Amtrak recommended that

this paragraph provide for consultation

between Amtrak and FRA concerning

the effectiveness of initial

communication efforts and appropriate

modifications for adoption over time.

Amtrak indicated that its emergency

preparedness plan will be able via the

Internet to emergency response

agencies, as well as through printed

documents. Amtrak will develop

specific procedures to ensure reasonable

security of the information so that it is

not distributed without some reasonable

assurance of the status and

responsibility of the receiving party.

Notice of future material changes in the

emergency preparedness plan will be

provided specifically to any parties that

have previously indicated an interest in

Amtrak’s emergency response plans.

Under Amtrak’s proposal, emergency

response agencies that have not

contacted Amtrak would, upon

accessing Amtrak’s emergency response

plans, not be alerted to changes. Amtrak

believes that such specific notice would

be unnecessary because these agencies

had no specific prior understanding.

However, agencies that had prior

knowledge would be alerted to changes

in facts or procedures as they occur.

Amtrak also stated that it will

establish a dedicated toll-free telephone

number, in operation 24 hours per day,

that will deal only with actual

emergencies and provide information

concerning its emergency preparedness

plan. General requests for information

will be responded to on the next

business day.

In order to alert local agencies to the

availability of Amtrak’s emergency

preparedness plan, Amtrak requested

inclusion of its contact telephone

number in DOT’s publication entitled

‘‘North American Emergency Response

Guidebook’’ (ERG). Amtrak noted that

the ERG is in the hands of virtually

every emergency response agency in the

United States, including fire and rescue,

emergency medical services, law

enforcement, and emergency

management. Amtrak contended that

just as CHEMTREC and CHEM-TEL are

listed in the ERG, the Amtrak

emergency preparedness and response

toll-free telephone numbers should be

included so that local agencies will

know how to obtain information to

familiarize themselves with Amtrak’s

operations on a proactive basis and

where to turn during an emergency

situation. Amtrak will also obtain paid

advertising and other publicity through

articles in trade publications for fire and

rescue, emergency medical services, law

enforcement, and similar agencies

outlining emergency procedures and

providing the railroad’s contact

telephone number. Another resource

that Amtrak noted it uses in major

metropolitan centers on the Northeast

Corridor and other parts of the United

States is Operation Respond. Operation

Respond distributes software outlining

floor plans and schematics of emergency

procedures for Amtrak rolling stock and

overhead views of the Northeast

Corridor right-of-way.

To ensure the effectiveness of the

types of efforts it has outlined, Amtrak

believes that it should implement a

specific sampling technique with which

it could determine whether emergency

agencies selected at random are aware of

how to contact Amtrak in the event of

an emergency, and obtain the type of

information needed to promptly and

effectively respond. Amtrak proposed

conducting this sampling on an annual

basis. Amtrak stated that the sampling

could determine the degree to which

agencies are aware of how to obtain

such information and the type of actions

that Amtrak may need to take in order

to improve the awareness of agencies in

general concerning the availability of

information about Amtrak’s emergency

preparedness plan. However, Amtrak

stressed that inclusion in the ERG is the

most critical component of any effort to

provide a focal point for contacting

Amtrak.

FRA has carefully reviewed the

contents of Amtrak’s letter dated

October 27, 1997, and is fully cognizant

of Amtrak’s desire that FRA reasonably

regulate the need to effectively

communicate with local emergency

responder organizations concerning

Amtrak’s emergency preparedness plan

without imposing an undue burden on

the railroad. Because of the large

number of emergency responders

dispersed throughout Amtrak’s

territories of operation, FRA concludes

that it is vitally important that Amtrak

and the host freight railroads enter into

close coordination and keep up-to-date

instructions on how emergency

response information is to be reported to

emergency responders. In order for any

railroad to successfully fulfill the

requirements of this paragraph, positive

communication links must exist

between the railroad, its hosts (if

applicable), and the emergency

responder community. In this regard,

the maintenance of accurate emergency

telephone numbers for use by control

centers in making emergency

notifications in accordance with

paragraph (a)(1)(ii) is even more crucial

on a railroad the size of Amtrak.

FRA expects that in making its

training program information and

materials available to national or state

training institutes, firefighter

organizations, or police academies, as

well as when it distributes applicable

portions of its emergency preparedness

plan, Amtrak will contact individuals in

these organizations at the lowest

possible levels that are feasible. FRA

concludes that merely mailing this

information to the main address for

organization will be ineffective at

achieving the local outreach efforts to

the emergency responder community

required by this final rule. While FRA

acknowledges that for the rule to fully

succeed Amtrak must have the

assistance of these organizations starting

at the highest levels, Amtrak may not

delegate the responsibility for

communication with local personnel to

the top officials of these entities. FRA

expects Amtrak to employ its best

efforts to reach, whether directly or

through the assistance of the hierarchy

of national and state emergency

response organizations, the local

emergency responders along its rail

lines who could reasonably be called

upon to respond to an emergency

situation.

In working with Amtrak as part of the

review and approval process of

§ 239.201, FRA will fully consider all

appropriate ideas and suggestions from

the railroad on how it proposes to

achieve the necessary liaison

relationships with its on-line

responders. While FRA will not impose

unreasonable expectations on Amtrak,

FRA will not permit Amtrak to ignore

the vast number of potential emergency

responder organizations with which the

railroad must establish at least a

minimal liaison contact.

Finally, in response to Amtrak’s

request to include its contact telephone

number in DOT’s ERG, FRA notes that

the ERG is a guidebook published by the

Research and Special Programs

Administration (RSPA) (a modal

administration within DOT) for

firefighters, police and other emergency

services personnel who may be the first

to arrive during the initial phase of a

transportation incident involving

hazardous materials or dangerous goods.

Although the ERG is not intended for

use in a transportation incident

involving only a passenger train, absent

the additional involvement of hazardous
24660 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

materials or dangerous goods, its wide

distribution makes it an effective

vehicle for reaching the emergency

responder community. Accordingly, at

FRA’s request, RSPA has agreed to

include this information in the next

version of the ERG.

On-Board Emergency Equipment

The requirements of § 239.101(a)(6)(i)

remain unchanged from the proposal:

each railroad’s emergency preparedness

plan shall indicate the types of

emergency equipment placed on board

each passenger train and the location of

such equipment on each passenger car.

Although the final rule requires a

minimum of only one fire extinguisher

and one pry bar per passenger car, and

one flashlight per on-board

crewmember, FRA strongly encourages

each railroad to voluntarily supplement

this list of on-board 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.

In reaching the decision to retain the

same on-board emergency equipment

requirements as proposed in the NPRM,

FRA considered three sets of comments.

The first commenter, APTA, said that

since the use of metal pry bars by nonrailroad personnel on electrified

territory may create a significant safety

hazard, the final rule should prohibit

public access to them. APTA also noted

that theft, tampering, and destruction of

on-board emergency equipment are big

problems for commuter railroads, and

asked that the rule impose a Federal

penalty for theft, vandalism, or

tampering with emergency equipment,

similar to penalties imposed by the

Federal Aviation Administration for

tampering with smoke detectors on

airplanes. The second commenter, a

private citizen, commented that in light

of the number of possible unpreventable

health emergencies that can occur on a

train, the types of on-board emergency

equipment should be expanded. He

believed that this equipment, along with

better emergency training of railroad

employees, can save many lives.

The third commenter, the LIRR,

indicated that while it supports the idea

of having one fire extinguisher per

passenger car, the LIRR’s diesel fleet

does not have any fire extinguishers at

the present time, except on locomotives.

The LIRR stated, however, that its entire

diesel passenger coach fleet is

scheduled to be replaced beginning in

1997. The LIRR noted that the Electric

MU fleet operates in married pairs; the

M1 fleet (758 total) was built between

1968–1972 and has one fire extinguisher

per married pair, while the M3 fleet

(174 total) was built in 1985–86 and has

a fire extinguisher opposite each

operating cab in every car. The

modification of 758 M1 cars will require

funding and time. The age of the M1 car

fleet is reaching its useful life, and LIRR

stated that it is beginning preparation of

a capital investment to replace the M1

portion of the electric fleet. LIRR asked

for relief for both the diesel and M1

fleet.

Regarding the issue of pry bars, the

LIRR noted that it operates in an area

100 miles long with 11 branches, with

181 fire departments throughout Long

Island, New York. The LIRR stated that

the average response time of emergency

responders is only approximately 10

minutes, and indicated that the

responders are trained on LIRR

equipment and have state-of-the-art

rescue equipment. The LIRR believed

that retrofitting of all LIRR equipment

would not provide a higher level of

safety than what is already provided by

the responders, and thought that pry

bars would be difficult to keep or

maintain on railroad equipment open to

the public. If LIRR is subject to the pry

bar requirement, the railroad stated that

it will seek relief through the waiver

process.

In order to assist the agency in

determining whether to revise the

requirements of § 239.101(a)(6)(i), FRA

asked for comment about whether

special circumstances exist in local

jurisdictions throughout the country on

a categorical basis, requiring railroads to

meet more stringent requirements than

the minimum quantities of on-board

emergency equipment set forth in the

proposed rule. Specifically, FRA invited

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, and

was curious as to the reasons for these

more stringent requirements. Depending

on the comments received, FRA noted

that it might adopt the minimums set

forth in the text of the proposed rule or

decide to broaden the coverage of

paragraph (a)(6)(i) by specifying

additional types or quantities, or both,

of on-board emergency equipment that

some or all railroads must carry on each

passenger car. FRA’s decision to adopt

paragraph (a)(6)(i) as proposed is based

largely upon the fact that FRA received

little public comment on this issue.

FRA recognizes that since the focus of

this rule is to ensure that emergency

responders arrive promptly at the scene

of an accident, rather than to train onboard personnel to act as emergency

responders, the rule must not impose

onerous, irrelevant, or duplicative

emergency equipment requirements on

railroads. FRA is aware that emergency

responder units will generally arrive at

the scene of a passenger train emergency

fully equipped with pry bars, pick axes,

fire fighting equipment, and other

assorted specialized rescue items.

However, in deciding to mandate in the

final rule that railroads must carry fire

extinguishers, pry bars, and flashlights

on board trains, FRA concluded that

certain emergency situations can prove

so life-threatening and time-sensitive

that train crews and passengers must

take immediate action to maximize the

likelihood of survival.

Certainly, in the event of a small fire

taking place on board a passenger train,

the availability of a working fire

extinguisher in each passenger car could

prevent a minor problem from turning

into a tragic event before emergency

responders are able to respond to the

emergency. Also, a fire may start in a

small area or limited location on a train,

where crewmembers or passengers

might be capable of containing the fire

(e.g., a smoldering cigarette on a

passenger coach seat), thereby avoiding

the need to involve outside emergency

responders at all. While FRA recognizes

that firefighters carry all sorts of rescue

equipment, including pry bars,

sometimes the threat from an emergency

is so immediate and severe that there is

no opportunity to wait for emergency

responders to arrive and rescue people.

Accordingly, the availability of a pry bar

in each passenger car will enable

crewmembers and passengers to exit the

train through an emergency window

exit in the event that the rubber

stripping cannot be removed

accordingly to plan and circumstances

do not permit awaiting the arrival of

emergency responders. Also, for

example, a pry bar can be useful in

prying open an end door on a passenger

car that is lying on its side after a

derailment. Finally, since emergencies

can happen at night in isolated

locations, a flashlight is an important

tool for guiding passengers safely off the

train during an evacuation and

minimizing the likelihood of people

tripping in the dark, unfamiliar

landscape. In addition, flashlights can

prove invaluable in the event that a

train’s primary and backup electrical
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24661

systems fail during the course of an

emergency situation.

FRA recognizes that some railroads

will have unique problems associated

with meeting the minimum

requirements of this paragraph, either

due to certain atypical aspects of their

operations, concerns about theft or

vandalism, or compliance with laws in

the local jurisdictions in which they

currently operate. While FRA expects

each railroad to make every effort to

incorporate these minimum

requirements into its emergency

preparedness plan, FRA acknowledges

that situations may arise where

requiring strict adherence to the

requirements of this paragraph may

prevent or impede rail passenger

transportation that is in the public

interest. As a result, FRA intends that

the emergency planning approach allow

railroads to develop approaches to

providing safe rail passenger

transportation that do not meet all of the

on-board emergency equipment

standards, but compensate by providing

alternatives that afford equivalent levels

of safety. Accordingly, any railroad that

believes it cannot or should not have to

comply with the specific requirements

of paragraph (a)(6)(i), may submit a

waiver request to FRA in accordance

with 49 CFR part 211. While submission

of such a request does not guarantee it

will be granted, every waiver request

will be duly considered.

This paragraph does not require

railroads to instruct their passengers

about either the location or use of the

on-board emergency equipment. As

anticipated in the NPRM, FRA has

crafted 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 on-board 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 onboard 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.

First-aid Kits on Intercity Passenger

Trains

FRA has added as a new requirement

to the final rule in paragraph

239.101(a)(6)(ii) concerning first-aid kits

on intercity passenger trains. In

commenting on the NPRM, the UTU

requested that all passenger trains be

equipped with a first-aid kit as an

emergency tool, and urged that the kit

contain personal protection equipment

for the trained personnel who will be

rendering first aid and CPR. At the very

least, the UTU stated that the kit should

contain rubber gloves, and the plastic

gloves and the mouth shields for CPR.

At the working group meeting held in

Washington, D.C. on August 28, 1997,

many of the members agreed that while

commuter trains may operate in densely

populated areas that are close to

emergency medical services, intercity

trains often operate through sparsely

populated remote regions of the United

States that have limited road access for

use by emergency responders.

Accordingly, to recognize the unique

operational challenges presented by the

operation of intercity service, FRA

believes that crewmembers onboard

each of these trains must have access to

at least one first-aid kit that contains the

necessary supplies to clean and dress a

minor wound until professional

responders can arrive at the scene.

Since FRA does not intend for the

first-aid kit to substitute for appropriate

medical attention from a physician or

hospital, the final rule limits the

minimum required contents of the firstaid kit to only gauze pads, bandages,

wound cleaning agent, scissors,

tweezers, adhesive tape, and latex

gloves. Since proper use of these items

should be self evident to both members

of a train crew and the traveling public,

the final rule does not impose any

specific requirement on railroads to

train their employees on the use of firstaid kits. Of course, FRA does not intend

to discourage railroads from voluntarily

incorporating such training into its

emergency preparedness program.

In response to APTA’s concern about

theft, tampering, and vandalism of onboard emergency equipment by both

railroad passengers and other members

of the public, FRA has included

language in the section-by-section

analysis of § 239.11 to remind the

general public that FRA may impose a

civil penalty upon any individual who

willfully causes a railroad to be in

violation of any requirement of this part.

Take for example, a railroad that

supplies each of its passenger cars with

one fire extinguisher and one pry bar,

and provides each of its on-board

crewmembers with one flashlight. By

equipping its train with all of these

items, the railroad would then be in full

compliance with the minimum

requirements of § 239.101(a)(6)(i).

Accordingly, if, unbeknownst to the

railroad, a vandal pilfers a fire

extinguisher from one of the passenger

cars while the train is in service FRA

can impose a civil penalty upon that

vandal for causing the railroad to be in

violation of 49 CFR part 239.

For purposes of enforcement by FRA

of § 239.101(a)(6)(i) and (ii), the phrase

‘‘in service’’ means a passenger car that

is in passenger service, i.e., the

passenger car is carrying, or available to

carry, fare-paying passengers. A

passenger car is not in service if it is:

being hauled for repairs and is not

carrying passengers; in a repair shop or

on a repair track; on a storage track and

is not carrying passengers; or is moving

without passengers in deadhead status.

FRA will impose a civil penalty for

passenger equipment that is missing onBoard emergency equipment or first-aid

kits (in the case of railroads providing

intercity passenger train service) only if

the railroad had actual knowledge of the

facts giving rise to the violation, or a

reasonable person acting in the

circumstances and exercising reasonable

care would have had that knowledge.

Accordingly, since FRA is not

employing a strict liability standard in

enforcing § 239.101(a)(6), FRA would

ordinarily not impose a civil penalty on

the railroad for the actions of a vandal.

However, once the railroad personally

discovers or is otherwise notified that a

piece of emergency equipment or a firstaid kit is missing, FRA expects the

railroad to replace the missing item

before the passenger car (or train, as

appropriate) is again placed in service

on a subsequent calendar day. In this

regard, FRA will expect each railroad to

ensure its compliance with

§ 239.101(a)(6) by performing whatever

daily interior mechanical inspection

requirements that eventually result from

the rulemaking on passenger equipment

safety standards. See proposed

§ 238.305 of this chapter. 62 FR 49772,

49773, and 49808.

On-board Emergency Lighting

The rulemaking on passenger

equipment safety standards will address

the issue of permanent emergency

lighting on passenger rail cars. Whatever

requirements eventually appear in the

new set of regulations at 49 CFR part

238, § 239.101(a)(6)(iii) states that
24662 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

auxiliary portable lighting must be

available for assistance in an emergency

and should be routinely maintained and

replaced as necessary. Section

239.101(a)(6)(ii) has been renumbered in

the final rule due to addition of the

requirement for first-aid kits on intercity

passenger trains. Further, the final rule

specifies the duration times for both

brilliant illumination and continuous or

intermittent illumination after the onset

of an emergency situation. The final rule

does not require that every rail

passenger car have such lighting, but the

train itself must carry enough portable

lighting to facilitate orderly passenger

evacuation.

In its comments on this issue at the

NPRM stage of this proceeding,

METROLINK stated that FRA needed to

define the clause ‘‘auxiliary portable

lighting must be accessible,’’ and

questioned whether a flashlight is an

acceptable form of such lighting. FRA

intends for a handheld flashlight, such

as a ‘‘D’’ cell flashlight, to be one of the

means of satisfying the auxiliary

portable lighting requirement; the final

rule text has been expanded to include

a handheld flashlight as an example of

an auxiliary portable lighting source.

Further, FRA considers auxiliary

portable lighting as accessible when the

lighting sources are reasonably available

for use by a train’s crew and its

passengers within several minutes of the

onset of the emergency. Since every

emergency situation is unique, FRA

cannot expect a railroad to determine in

advance precise locations for locating

the auxiliary portable lighting so that

every passenger and crewmember on the

train is always within immediate reach

of the lighting. Accordingly, FRA

expects each railroad to act reasonably

and make its best educated guess, based

upon its types of rail equipment and the

nature of its operations, on where to

place auxiliary lighting so that it will

likely be accessible after the onset of an

emergency.

Omniglow commented that

chemiluminescence is the production of

light from a non-heat generating

chemical reaction, and utilizes a

fluorescent molecule, a key

intermediate, and a catalyst. Omniglow

stated that the key chemical

components are separated by a specially

designed capsule contained within a

larger, translucent plastic form, and that

when light is desired, the outer plastic

container is manipulated by the

consumer, breaking the inner ampule,

which allows the ingredients to mix and

produce light. After arguing that each

rail passenger car should be equipped

with portable lighting capable of

fostering passenger evacuation, and

noting that FRA will permit a handled

flashlight, such as a flashlight with a

‘‘D’’ cell, to be one of the means of

satisfying the auxiliary portable lighting

requirement, Omniglow stated that its

15’’ high intensity lightstick would

satisfy this requirement. In this regard,

Omniglow observed that its lightstick is

a high-intensity, non-explosive, nonhazardous, weatherproof light source,

with a four year shelf life.

FRA will not endorse the product of

a specific company by determining

whether a railroad’s use of that product

will enable it to comply with the

emergency lighting requirements of this

paragraph. The only issue before FRA in

evaluating whether a source of auxiliary

portable lighting satisfies a railroad’s

emergency planning need is whether the

lighting is both accessible during an

emergency and provides the requisite

levels and time intervals of

illumination, as specified in paragraph

239.101(a)(6)(iii)(A) and (B). If a railroad

can satisfy the regulatory parameters of

this paragraph by using Omniglow’s

lightsticks, FRA will take no exception

to the product’s use.

Safety-Awareness Programs for

Passengers

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 or more additional methods,

including those designated in this

paragraph, to provide safety awareness

information. The suggested 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. However, as

set forth in the preceding ‘‘Discussion of

Comments and Conclusions’’ portion of

this document under the heading of

item number 3, FRA also encourages

railroads to pursue alternative

innovative means of conveying

passenger safety information. 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 final rule

by making on-board announcements,

FRA does not specify the frequency

with which these announcements

should be made during a train run. FRA

believes that, with regard to intercity

service, announcements are appropriate

after at least each major passenger pickup point, and commenters were invited

in the NPRM to suggest ways of

providing safety information to all new

riders without becoming repetitious to

the remaining passengers. Since no

public comments were received on this

specific issue, FRA has elected to permit

broad flexibility to railroads in

determining the appropriate frequency

of on-board announcements in the event

that they select this secondary method

to disseminate information to

passengers. In addition, while the final

rule requires railroads to utilize only

one additional method to distribute

safety awareness information to the

traveling public, FRA encourages

railroads to employ as many of the

options as possible based on operating

and budgetary considerations.

Despite FRA’s encouragement of the

use of innovative techniques, 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.
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24663

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.

FRA had asked for public comment

on whether the final rule should include

fixed timeframes in which railroads

must provide their passengers with

additional methods of safety awareness

information, and urged commenters to

supply scientific or sociological data

and/or cost estimates in support of their

suggested time intervals. The general

recommendation of the commenters was

that the final rule should leave the

features of the awareness programs to

each railroad’s discretion, and that the

key component of this requirement

should be flexibility so that railroads

can utilize the right mix of passenger

communication techniques.

Based upon FRA’s consideration of

this issue, instead of specifying fixed

maximum time intervals between

utilizing the additional forms of

program activity, FRA will allow the

railroads to determine the optimal

frequency that best serves their

passengers and their operations. FRA

expects 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.

Passenger Surveys

Paragraph 239.101(a)(7)(iii) of the

NPRM would have required railroads to

perform surveys of their passengers in

order to learn how successful the

passenger awareness program activities

are in apprising passengers of the

procedures that must be followed

during an emergency. As set forth in the

preceding ‘‘Discussion of Comments

and Conclusions’’ portion of this

document under the heading of item

number 3, the survey requirement and

its accompanying recordkeeping burden

have been deleted from the final rule.

13. 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.

As FRA noted in the NPRM, 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.

FRA recognizes that full-scale

emergency exercises require weeks of

carefully organized plans involving all

participating organizations and involve

the expenditure of funds for both the

training and the actual full-scale

exercise. Recording or videotaping the

scenes and conversations in key areas of

the exercise itself can 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.

In the NPRM, FRA questioned

whether tabletop exercises should be

afforded the same weight in the final

rule as full-scale simulations for

purposes of demonstrating the readiness

of a railroad to successfully react to a

passenger train emergency. FRA also

stated that the final rule might require

that each railroad conduct a minimum

number of its simulations as full-scale

exercises. In this regard, FRA was

skeptical as to whether a tabletop

exercise could 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

contemplating during the NPRM stage of

this proceeding whether to strengthen

the emergency simulation requirement,

FRA was 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 was also aware that the

financial and logistical costs of
24664 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

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

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 noted that

it would carefully weigh the expected

costs and potential benefits of all

available options. FRA sought 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 was 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.

Based upon FRA’s review of the

public comments and our careful

consideration of the significant issues

concerning emergency simulations, FRA

has modified § 239.103 to require that

all of the simulations that a railroad

must perform are done full scale. While

FRA still encourages railroads to

supplement their emergency

preparedness planning by voluntarily

conducting tabletop exercises in

addition to full-scale emergency

simulations, FRA concludes that the

safety objectives of emergencypreparedness planning are best served

by railroads conducting at least a

minimal number of comprehensive, fullscale exercises. FRA believes that the

combination of full-scale simulations

and the requirement contained in

§ 239.101(a)(5) for each railroad to

develop a training program available to

all on-line emergency responders who

could reasonably be expected to

respond during a passenger train

emergency situation, enable railroads to

best prepare for the likely varieties of

emergency scenarios that could occur

on their lines. A detailed discussion of

the change in the simulation

requirement from the NPRM stage of

this proceeding, as well as a general

discussion of the new requirement that

railroads develop training programs for

emergency responders and their

organizations, is included in the

preceding ‘‘Discussion of Comments

and Conclusions’’ portion of this

document under item number 2.

To achieve a maximum level of

effectiveness, full-scale 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 full-scale

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

full-scale 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) has been modified to

require each railroad that provides

commuter or other short-haul passenger

train service to conduct a full-scale

emergency simulation at least once

during every two calendar years,

provided that its operations include less

than 150 route miles and less than 200

million passenger miles annually. For

larger commuter or other short-haul

passenger operations, i.e., those whose

operations include at least 150 route

miles or at least 200 million passenger

miles annually, a full-scale simulation is

required at least once during each

calendar year. For all intercity passenger

operations, regardless of the number of

route miles or passenger miles, a fullscale simulation is required at least once

during each calendar year. The final

rules does not distinguish on the basis

of major lines for purposes of permitting

railroads to select locations for their

emergency simulations. However, in

crafting the final rule to limit the

number of required simulations, FRA

recognizes that full-scale simulations

carry higher financial and logistical

costs than do tabletop exercises, and

that railroads will reach a greater

representative sample of the emergency

responder community by offering

training programs in accordance with

§ 239.101(a)(5) to responders who may

lack opportunities to partake in actual

simulations.

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 line-specific 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 response information and

training opportunities. While FRA

anticipates that each commuter or shorthaul railroad will conduct full-scale

emergency simulations as frequently as

possible on its entire system, the final

rule supplements the revised simulation

requirement with the comprehensive

liaison requirements of § 239.101(a)(5)

so that each railroad can best reach the

most heavily traveled portions of its

system while conserving limited

resources. In this regard, FRA

recognizes that while emergency

responder organizations tend to be

densely located along the major lines of

commuter and short-haul railroad

operations, it is not necessary for each

railroad to run full-scale simulations on

all of its major lines according to a fixed

timetable, provided that the railroad

maintains proper liaison relationships

with the affected responders.

In addition to the final rule setting

forth the requirement for each affected

railroad to perform its full-scale

emergency simulations without regard

to whether the railroad specifically

includes all of its major lines, FRA also

does not expect the railroad to require

all of its employees who are trained

under the emergency preparedness plan

to attend the simulations. Moreover,

FRA does not expect each railroad to

invite all potential emergency

responders to participate who are

located along the portion of the railroad

subject to the simulation. While FRA

hopes that over the long term all

railroad employees involved in the

operation of passenger train service, as

well as all 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

§ 239.105, and then initiate any

appropriate improvements and/or

amendments to the plan. As part of this
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24665

review process, the railroad is also

expected to revise its employee training

program under § 239.101(a)(2) and

modify its liaison relationships with

members of the emergency responder

community established under

§ 239.101(a)(5), based upon the

identified shortcomings of the railroad’s

emergency-preparedness planning.

Accordingly, while the final rule does

not mandate that affected railroads

conduct numerous simulations along all

of its major lines so as to include every

possible participant, FRA concludes

that the lessons learned from the

mandatory debriefing and critique

sessions and the interactions that occur

within the required liaison relationships

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 its lines for the

emergency simulations, the final rule

requires each railroad to organize

simulations that will adequately test the

performance of the railroad’s program

over time 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

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 requiring 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,

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 final rule requires Amtrak to

conduct a minimum of only one fullscale emergency simulation per

calendar year on any selected portion of

its entire system, without regard to

whether the simulation takes place on a

particular business unit or other major

organizational element. Although FRA

considered imposing more rigorous

requirements in the final rule on Amtrak

(and other operators of intercity service)

in order to ensure the requisite level of

emergency preparedness, FRA will

instead rely upon the thoroughness of

the liaison activities and programs

initiated by Amtrak in accordance with

§ 239.101(a)(5).

A detailed discussion of FRA’s

liaison-relationship expectations for

Amtrak is included in the preceding

‘‘Section-by-Section Analysis’’ portion

of this document under § 239.101(a)(5).

That discussion section outlines

Amtrak’s September 2, 1997 meeting

with FRA, during which the

participants discussed the issue of

developing a program for distributing

Amtrak’s emergency preparedness plan

to emergency service providers located

in areas through which Amtrak

operates, and also summarizes Amtrak’s

written submission to FRA dated

October 27, 1997 addressing the same

topic.

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.

By combining optimal use of the

required minimum number of

emergency simulations with a

comprehensive training program offered

to emergency responders as part of the

liaison relationship, FRA concludes that

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

rule throughout its entire system

without expending a disproportionate

amount of its limited resources.

Since FRA has decided to scale back

the simulation requirement to involve

only one meaningful full-scale

simulation (performed either annually

or every two years depending on the

size of the railroad), FRA believes it is

imperative that all railroads be required

to study and evaluate their emergency

response capabilities in controlled

settings enabling them to carefully plan

their full-scale emergency scenarios.

Accordingly, FRA has modified the final

rule to prohibit a railroad from counting

either a tabletop exercise or the

activation of its emergency

preparedness plan during an actual

emergency situation toward the

simulation requirement.

However, since FRA recognizes that

full-scale emergency exercises require

extensive planning and commitment of

human resources, the final rule permits

a railroad to postpone a scheduled fullscale simulation for up to 180 days

beyond the applicable calendar year

completion date if the railroad has

activated its emergency response plan

after a major emergency. The

postponement period permits the

railroad to properly deal with the

aftermath of an actual major emergency,

defined in paragraph (d) to cover an

unexpected event related to passenger

operations that results in serious injury

or death to one or more persons

combined with reportable property

damage, without the added stress or

logistical burden of immediately

conducting a simulation. During this

postponement, FRA expects the railroad

to measure the effectiveness of its

emergency preparedness plan in

conjunction with the debriefing and

critique session held pursuant to

§ 239.105, and then improve or amend

its plan, or both, as appropriate, in

accordance with the information

developed. Paragraph (c) also requires
24666 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

the railroad to modify the rescheduled

simulation, if appropriate, based upon

the lessons learned from its response to

the actual emergency.

Although paragraph (c) allows a

limited exception under which a

railroad may postpone a scheduled fullscale simulation, the calendar timetable

remains the same. Take, for example, a

commuter railroad whose operations

include 250 million passenger miles

annually and has a full-scale emergency

simulation scheduled for December 1 of

calendar year 2001, but has a major

emergency situation occur on November

15. In accordance with the terms of

§ 239.103(b)(2), the railroad is required

to conduct a minimum of one full-scale

emergency simulation during calendar

year 2001 and another one during

calendar year 2002. Although,

§ 239.103(c) permits the railroad the

option of postponing its full-scale

simulation for calendar year 2001 from

December 1, 2001 until June 29, 2002,

the deadline for the full-scale

simulation for calendar year 2002

(assuming that the postpone exception

of paragraph (c) does not become an

issue during calendar year 2002)

remains at December 31, 2002.

14. 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 a fullscale emergency simulation 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 final 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.

FRA did not propose a specific

deadline in the NPRM by which each

railroad must conduct its debriefing and

critique session after each passenger

train emergency situation or full-scale

simulation. In addition, FRA did not

receive any public comments or

recommendations from members of the

Working Group on an appropriate

timeframe. In order to encourage

railroads to conduct the required

debriefing and critique sessions in a

timely and reasonable period of time,

thereby maximizing the railroad’s

emergency-preparedness benefits from

the experience, FRA has revised the

final rule to require that these sessions

be held no later than 60 days after the

emergency situation or simulation takes

place. Of course, while FRA is

providing a maximum timeframe of 60

days, FRA expects that, in the majority

of cases, railroads will hold these

valuable sessions within only 30 days of

the emergency situation or simulation.

The purpose of a debriefing and

critique session is to review with

railroad personnel the reports of

evaluators, to 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. In addition, the debriefing

and critique session provides an

excellent opportunity for the railroad to

determine the effectiveness of its

passenger awareness program activities.

For example, if an emergency situation

requires passengers to evacuate the

train, the session should determine if

everyone onboard correctly followed the

safety instructions of the crewmembers

and was aware of the emergency

window and door exit locations and

their means of operation.

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 shall

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

§ 239.201. All persons involved shall be

debriefed.

Although FRA did not receive any

substantive comments on the need to

conduct debriefing and critique sessions

in order to accomplish the stated goal of

improving the effectiveness of

emergency preparedness plans, some

commenters did request that FRA

explicitly state in the rule text the

circumstances under which the

requirement to conduct a debriefing and

critique session would be triggered. In

this regard, Amtrak commented that

debriefing and critique sessions can be

useful in determining the effectiveness

of emergency response procedures and

in developing improvements, but

represent substantial undertakings by

railroad personnel (possibly including

both an operating and host railroad) and

representatives of emergency response

agencies. Amtrak recommended that

FRA not require full debriefing and

critique sessions after accidents where

no threat to passengers on the train

requiring a possible evacuation or other

similar major response existed. Where

there was such a threat, Amtrak

suggested that FRA require a full

debriefing and critique session only

after situations during which the

Incident Command System (ICS), or an

equivalent multi-jurisdictional

emergency response system, was

activated. Amtrak noted that the ICS

was originally developed by the

National Fire Academy, and had been

endorsed by FEMA, EPA, and DOT.

When such systems are activated, the

participation and resources of numerous

local emergency response agencies and

the railroad must be coordinated; this

coordination is the most meaningful test

of an emergency response plan’s

effectiveness.

Amtrak stated that for situations when

the ICS was not activated, a smallerscale debriefing and critique session

might be appropriate. Amtrak

acknowledged that the proposal did not

require a debriefing and critique session

after each grade crossing or trespasser

accident, but requested that this

exception be stated explicitly in the rule

text. Amtrak also requested that the rule

text exclude a debriefing and critique

session when there is no risk to persons

on the train that would require the type

of evacuation or other emergency

response contemplated by the

regulations. Amtrak opined that there is

little benefit to performing post-accident

evaluations when there was no risk to

persons on the train that required a

prompt, coordinated response involving

both railroads and emergency
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24667

responders. Since Amtrak is involved in

approximately one grade crossing or

trespasser incident every other day, a

requirement to conduct a debriefing and

critique session after such occurrences

would be burdensome.

CALTRAIN commented that the

debriefing requirement fails to establish

the threshold or norms that trigger a

debriefing and critique session.

CALTRAIN argued that this decision

should be made by railroad

management, with the exception of

simulation drills and tabletop exercises,

which typically conclude with a

debriefing and critique.

APTA commented that under the

proposal, a commuter railroad must

conduct a debriefing after every

passenger train emergency. APTA

suggested that FRA revise the rule to

add a threshold before the debriefing

requirement is triggered, and

recommended that the requirement be

triggered only when a major emergency

affects five or more passengers. As

proposed, APTA argued that the

provision would be costly to comply

with and annoy passengers, without any

corresponding benefit to rail safety. For

example, a passenger heart attack would

trigger the debriefing requirement. In

addition, APTA noted that the

opportunity for passenger fraud is much

greater, since a passenger being

debriefed may attempt to collect money

from the railroad for a nonexistent

injury.

Although METROLINK did not

address the issue of establishing a

threshold level in the final rule that

would trigger the debriefing and critique

requirement, it did comment before

issuance of the NPRM that if a

commuter railroad did a tabletop

exercise or simulation, it could not

follow the criteria of the proposal for a

debriefing. During a table exercise or

simulation, a railroad does not usually

notify the emergency responders via the

normal means of communication, does

not respond via normal emergency

conditions (code three with lights and

sirens), and does not involve real

passengers in the simulation. As noted

in FRA’s preceding ‘‘Discussion of

Comments and Conclusions’’ portion of

this document (item number 2), as well

as in the sectional analysis of § 239.103,

the final rule prohibits a railroad from

counting a tabletop exercise toward the

simulation requirement of the final rule.

Accordingly, METROLINK’s concern is

no longer relevant.

A substituted paragraph (b) has been

added to § 239.105 to set forth the

limited circumstances under which a

debriefing and critique session is not

required after a railroad has activated its

emergency preparedness plan. Upon

review of the comments, FRA

recognizes the potentially significant

commitment of resources that such a

session can involve, and does not wish

to impose this obligation on railroads

unless the evaluation process would

focus on ways to improve the

effectiveness of the emergency

preparedness plan in ways that would

benefit passengers on board the train.

Since emergency situations involving

significant threats to the safety or health

of train passengers that require

immediate attention may entail a variety

of unique fact patterns, the railroad

employees and passengers involved in

the invaluable debriefing and critique

exercise can help individuals involved

in future incidents benefit from a

prompt and coordinated response from

the railroad and the emergency

responder community. However,

because collisions of the type set forth

in paragraph (b) occur with greater

regularity and involve more predictable

fact patterns (e.g., a motor vehicle at a

gated crossing circumvents a lowered

gate arm and is hit by a passenger train,

with no one on the train suffering an

injury), debriefing and critique sessions

after these incidents would quickly

become repetitive in nature.

Accordingly, FRA would burden the

railroads, yet achieve only a marginal

benefit to rail safety.

In accordance with the above change

in the final rule, while the term

‘‘emergency or emergency situation’’ is

defined in § 239.7 of this part 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. Although the railroad would

still be expected to invoke its emergency

preparedness plan in the event of any

grade crossing accident, the goal of this

final 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, but does not affect the

passengers onboard the train. Of course,

if a grade crossing accident leads to an

evacuation of the passenger train (e.g., a

gasoline truck collides with the side of

a passenger train, and diesel fuel begins

to leak from the locomotive, creating the

risk of a fire or an explosion), then a

railroad must conduct a post-accident

debriefing and critique session. In

addition, a railroad cannot count its

activation of the emergency

preparedness plan under these

circumstances, or any other

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

left open the question of what other

types of emergency situations would

trigger the requirements of this section.

The NPRM sought public comment on

what sorts of situations, or ‘‘significant

threats,’’ FRA should include in the

final rule under the definition of

‘‘emergency’’ or ‘‘emergency situation’’

set forth in § 239.7. Although no

comments were received, FRA has

revised the definition of ‘‘emergency’’ or

‘‘emergency situation’’ in § 239.7 to

include: derailments; a fatality at a

grade crossing; a passenger or employee

fatality, or an illness or injury to one or

more crewmembers or passengers

requiring admission to a hospital; an

evacuation of a passenger train; and a

security situation (e.g., a bomb threat).

The final rule does not prescribe an

FRA form or other substantive

questionnaire to be used at the

debriefing and critique sessions, or set

forth specific questions to be asked after

a full-scale simulation or actual

emergency. Paragraph (c) simply

requires the railroad to determine, by

whatever means it selects, the

effectiveness of its emergency

preparedness plan; specifically, 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.

Although the requirements of paragraph

(c) were included in the NPRM as

paragraph (b), the requirements remain

essentially unchanged under its new

designation, except for some minor

stylistic changes.

In the NPRM, FRA had invited

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 paragraph (c)), or whether

each railroad should retain some

flexibility to develop its own approach

to conducting these sessions. FRA did

not receive any comments on this issue.

Upon further deliberation, FRA

concludes that if a railroad rigorously

analyzes its emergency response

scenario in accordance with the five

required subparagraphs to paragraph (c),
24668 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

and corrects all relevant deficiencies

identified by the debrief and critique

session, there is no need to impose any

additional requirements in the final

rule. Nevertheless, still FRA encourages

railroads to voluntarily discuss any or

all of the following questions at their

debriefing and critique sessions:

• 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 or

extinguish a fire (real or simulated), or

both?

Of course, during the course of FRA’s

review of the implementation and

effectiveness of the debriefing and

critique requirement in the final rule,

FRA will analyze whether this

requirement, as written, achieves the

desired improvements in emergency

preparedness. This review will

determine whether the experiences of

railroad employees, railroad passengers,

and members of the emergency response

community indicate that FRA should

require railroads to consider any or all

of the above questions during their

debriefing and critique sessions. Based

on FRA’s evaluation, the agency may

initiate further rulemaking activity or

other appropriate action to ensure that

this element of emergency preparedness

planning is sufficiently addressed.

In order to achieve the goals of this

section, and to comply with the

debriefing and critique recordkeeping

requirement of paragraph (d), 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 (d) shall contain the date(s)

and location(s) of the simulation and the

debriefing and critique session, and

should include the names of all

participants at each session. Under the

final rule, the critique sheets, or

equivalent records, must be maintained

by the railroad at its system and

applicable division headquarters for two

calendar years after the end of the

calendar year to which they apply, and

be made available for FRA and State

inspection and copying during normal

business hours. Although the

requirements of paragraph (d) were set

forth in the NPRM as paragraph (c), the

requirements remain essentially

unchanged under its new designation.

One notable distinction is that while the

NPRM was silent as to how long the

debriefing and critique records needed

to be retained, the final rule imposes a

retention period of two years. A second

distinction is that while the NPRM was

silent on what specific information the

records of the debriefing and critique

sessions needed to include, the final

rule states that each record must include

the: date and location of the passenger

train emergency situation or full-scale

simulation; date and location of the

debriefing and critique session; and

names of all participants in the

debriefing and critique session.

15. 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.

As FRA noted in the NPRM stage of

this proceeding, commuter railroads

have agreed to FRA’s request that

arrangements requiring hand tools

(coins and pencils) be retrofitted. The

issue of relocation of manual releases is

being addressed in the rulemaking on

Passenger Equipment Safety Standards

(FRA Docket No. PCSS–1), and the

Passenger Equipment Safety Standards

Working Group will be evaluating other

improvements in door design and

operation. Section 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.

However, in contrast to the broad

definition of ‘‘passenger car’’ contained

in part 223 of this chapter, the text of

the final rule has been revised to reflect

the fact that the marking requirements

for emergency door exits on passenger

cars do not apply to self-propelled

passenger cars designed to carry

baggage, mail, or express.

Section 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 final 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 potential panic of an

emergency evacuation, can determine

where the closest and most accessible

emergency route out of the car is
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24669

located. In addition, while this 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 intends 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.

Section 239.107(a)(2) requires that the

emergency door exits intended for

emergency access by emergency

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 section does not prescribe that a

railroad use a particular brand, type, or

color of retroreflective material to

identify an access location, FRA intends

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

the separate rulemaking on passenger

equipment safety standards, FRA is

addressing appropriate requirements for

periodic maintenance and replacement

of the emergency door exit markings.

The final 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).

In deciding to require that railroads

must mark all door exits intended for

emergency access and post access

instructions, FRA carefully considered

concerns expressed by members of the

Working Group that this requirement

would enable vandals to gain easy or

casual entry into passenger cars left

overnight in rail yards, particularly

adolescents who might otherwise not

know how to operate specialized door

mechanisms. In addition to FRA’s desire

to avoid unnecessary expenses to

railroads for repairing vandalized or

damaged rail equipment, FRA does not

wish to see on-board emergency

equipment disappear from unattended

trains due to the acts of individuals who

learned how to gain illegal access to the

equipment courtesy of a Federal

regulation. FRA also recognizes that

under § 239.101(a)(5), railroads are

required to develop training programs

available to all on-line emergency

responders who could reasonably be

expected to respond to an emergency

situation, with an emphasis upon access

to railroad equipment, location of

railroad facilities, and communications

interface, and that such comprehensive

training information may lessen the

need for railroads to place markings on

every emergency door or post detailed

access instructions. However, FRA

realizes that not every potential

emergency responder will choose to

participate in the training program, and

that not everyone who participated will

recall all of the imparted information on

access to the equipment while in the

midst of responding to a major railroad

accident or incident. FRA is confident

that railroads will find ways of

protecting their unattended equipment

through appropriate security measures,

and the agency will not risk loss of

human life from delays in emergency

responder rescue efforts merely because

of the possibility that financial losses

from vandalism will increase.

Accordingly, the comprehensive

marking and operating instruction

requirements proposed in the NPRM

remain unchanged.

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 must be performed consistent

with the requirements of part 223 of this

chapter. While the final 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.

For purposes of enforcement by FRA

of § 239.107, the phrase ‘‘in service’’

means a passenger car that is in

passenger service, i.e., the passenger car

is carrying, or available to carry, farepaying passengers. A passenger car is

not in service if it is: being hauled for

repairs and is not carrying passengers;

in a repair shop or on a repair track; on

a storage track and is not carrying

passengers; or has been delivered in

interchange but has not been accepted

by the receiving railroad. FRA will

impose a civil penalty for passenger

equipment that is missing an

emergency-exit marking or has an

inoperable emergency exit only if the

railroad had actual knowledge of the

facts giving rise to the violation, or a

reasonable person acting in the

circumstances and exercising reasonable

care would have had that knowledge.

Accordingly, since FRA is not

employing a strict liability standard in

enforcing § 239.107, FRA would

ordinarily not impose a civil penalty on

the railroad for the actions of a vandal.

However, once the railroad personally

discovers or is otherwise notified that a

marking is missing or an emergency exit

is inoperative, FRA expects the railroad

to replace the missing marking or repair

the inoperative exit before the passenger

car (or train, as appropriate) is again

placed in service on a subsequent

calendar day. In this regard, FRA will

expect each railroad to ensure its

compliance with § 239.107(b) by

performing whatever daily exterior and

interior mechanical inspection

requirements that eventually result from

the rulemaking on passenger equipment

safety standards. See proposed

§§ 238.303 and 238.305 of this chapter.

Carrying forward requirements

currently contained in FRA’s Emergency
24670 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

Order No. 20, the final 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

final 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 window exits that a

railroad finds defective, the greater the

percentage of windows that the railroad

will have to test. Specifically, sampling

must be conducted to meet a 95-percent

confidence level that no defective units

remain 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 final 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. Although

commenters were encouraged to address

this issue by indicating whether the

sampling should occur on an annual

basis, or on a less frequent basis, no

comments were received. Accordingly,

the level of frequency remains

unchanged from the NPRM stage of this

proceeding.

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 must be retained for two

calendar years after the end of the year

to which they relate. 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

representatives of FRA and States

participating under part 212 of this

chapter 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.

In response to METROLINK’s

comment concerning the lack of a

timeframe for the retention of inspection

records, FRA has revised the final rule

to require a two-year retention period

for each railroad’s records of inspection,

maintenance, and repair of its

emergency window and door exits.

Despite METROLINK’s preference for a

shorter timeframe, FRA concludes that

two years is necessary to allow FRA an

adequate opportunity to perform

meaning compliance audits and

determine if a railroad’s overall pattern

of compliance with this section is

sufficient. In addition, while FRA

recognizes the additional expense of

retaining copies of inspection records at

both the system and divisional levels,

this dual approach enables FRA’s

regional inspection forces to perform

division-specific inspections, while also

permitting FRA to study the compliance

of a railroad’s entire system. However,

as METROLINK illustrates by describing

its own operational characteristics, at

least one member of the railroad

population has only one central

maintenance facility which solely

performs all of the inspection,

maintenance, and repair of its entire

fleet of passenger cars. Under this

limited scenario, FRA agrees that it

would be redundant to require a

railroad to maintain duplicate sets of

records at both its system and divisional

offices. Accordingly, the single central

maintenance facility would be an

acceptable repository for all of the

inspection, maintenance, and repair

records for such a railroad.

FRA has added paragraph (d) to the

final rule to authorize railroads to retain

their records of inspection,

maintenance, and repair of emergency

window and door exits by electronic

recordkeeping, subject to the conditions

set forth in this provision. This

provision provides an alternative for

railroads retaining certain information,

as required in paragraph (c). 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

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 or participating State inspectors

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

job 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 retain its

records electronically must ensure the

integrity of the information and prevent

possible tampering with data, enabling

FRA to fully execute its enforcement

responsibilities.

16. Emergency Preparedness Plan;

Filing and Approval: Section 239.201

Section 239.201 specifies the process

for review and approval by FRA of each

passenger railroad’s jointly-adopted

emergency preparedness plan. The

intent of the review and approval is to

be constructive, rather than restrictive.
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24671

It is anticipated that the passenger

railroads, in conjunction with the

railroads hosting these operations (when

applicable), will develop and

implement varied plans based upon the

special circumstances involving their

individual operations. Under the final

rule, FRA requires that each affected

railroad summarize its internal

discussions and deliberative processes

to explain how the railroad’s unique

and individual operating characteristics

determined how each issue for the

passenger train operation was finally

addressed in the emergency

preparedness plan. Specifically, FRA

expects each railroad to participate, as

appropriate, in preparing a review of the

analysis that led to each element of the

emergency preparedness plan that the

passenger operation 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.

In response to METROLINK’s

comments, FRA notes that the word

‘‘analysis’’ means that FRA expects each

railroad to identify all vulnerabilities

that exist on its property in terms of

potential risks to rail safety and

emergency preparedness planning. In

the context of identifying the known

risks, each railroad should undertake a

systems approach in order to explain

how it will mitigate the level of each

risk to an acceptable level. FRA does not

consider earthquakes, wind, or power

outages, in and of themselves, to be

‘‘conditions on the railroad’s property.’’

However, if a railroad requires electrical

power to operate, and its operations run

across a trestle without walkways, then

the emergency preparedness plan must

address how the railroad will mitigate

the risk connected with one of its trains

becoming stranded on a trestle during a

power outage.

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 first conduct a preliminary review

of each plan in accordance with revised

paragraph (b)(1), and then conduct a

comprehensive and detailed review of

each plan in accordance with revised

paragraph (b)(2) prior to final approval

and implementation. A detailed

discussion of the issue of preliminary

and final review of emergency

preparedness plans is included in the

preceding ‘‘Discussion of Comments

and Conclusions’’ portion of this

document under item number 4.

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 fullscale 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 recommending 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 had requested comments 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. Since FRA did not receive any

comments on this issue, the final rule

requires that all proposed plan

amendments be submitted for review

before the railroad may revise its

emergency preparedness plan. Within

45 days of receipt of a railroad’s

proposed amendment to its plan, FRA

will review the proposal and notify the

railroad’s primary contact person of the

results of the review and identify any

deficiencies found. If FRA discovers a

deficiency, the railroad must correct it

before the amendment may go into

effect.

All persons, such as contractors, who

perform any action on behalf of a

railroad are 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

passenger railroad hires an outside

independent contractor to conduct an

emergency simulation pursuant to

§ 239.103, the contractor must perform

this task in accordance with the

passenger operation’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 the

emergency preparedness plan with the

commuter rail authority. While an

assignment of responsibility for

compliance made under § 239.101(a)(3)

must be clearly stated in the plan, the

assignor shall not be relieved of

responsibility for compliance with this

part.

Although the final rule has been

revised to state that the final review

process will include ongoing dialogues

with rail management and labor

representatives, the rule does not

specifically require the direct

involvement of railroad employees or

their representatives in the process of

designing the emergency preparedness

plan. In this regard, FRA notes that 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 requires the willing

cooperation of all persons whose duties

or personal safety are affected by the

plan.

17. Retention of Emergency

Preparedness Plan: Section 239.203

Although FRA did not receive any

comments, this section has been

modified to reflect the new requirement

in § 239.201 that each passenger railroad

jointly adopt a single emergency

preparedness plan with all railroads

hosting its passenger service (if

applicable). The single emergency

preparedness plan prepared by the

passenger railroad and all of its

applicable host railroads, as well as all

subsequent amendments to the single

plan, must be retained at the system

headquarters for each railroad and at the

division headquarters for each division

on each affected railroad 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
24672 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

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 the

emergency preparedness plan records

available to duly authorized FRA

representatives for inspection and

copying (e.g., photocopying or

handwritten notetaking) during normal

business hours.

18. 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 may 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. A written or

electronic records of each operational

(efficiency) test must be kept for one

calendar year after the end of the year

in which the test was conducted, and

must be made available for inspection

and copying by FRA and participating

States during normal business hours.

FRA received only one comment

concerning the requirements of this

section. APTA expressed a general

concern that a commuter railroad

operating over a host railroad may not

be able to convince the freight railroad’s

dispatcher to provide track time for

efficiency tests, especially on busy

freight corridors. APTA offered to work

with FRA to help in the implementation

of this section.

FRA recognizes both the operational

complexities and logistical realities of

commuter railroads sharing trackage

rights with freight railroads on the

general railroad system of

transportation. While FRA remains

confident that dispatchers on host

railroads will fully cooperate with

commuter operations and provide them

with safe and adequate opportunities to

perform on-the-job verifications to

evaluate individual employee

performance under the emergency

preparedness plan, the rule does permit

a railroad to utilize formal

examinations, interactive computer

programs, and practical demonstrations

to measure the success of its training

program. Nevertheless, FRA will

intervene as appropriate to ensure the

successful and effective implementation

of each railroad’s emergency

preparedness plan.

19. Electronic Recordkeeping: Section

239.303

FRA did not receive any comments on

this section, which is adopted as

proposed. Section 239.303 authorizes

railroads to retain their operational

(efficiency) test records by electronic

recordkeeping, subject to the conditions

set forth in this provision. This

provision provides an alternative for

railroads retaining certain information,

as required in § 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

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 or participating State inspectors

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

job 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 retain its

records electronically must ensure the

integrity of the information and prevent

possible tampering with data, enabling

FRA to fully execute its enforcement

responsibilities.

Regulatory Impact

Executive Order 12866 and DOT

Regulatory Policies and Procedures

This final rule has been evaluated in

accordance with existing policies and

procedures. Due to considerable public

interest in the subject matter of the rule,

the 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 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, Mail Stop 10,

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 rule.

The Net Present Value (NPV) of the total

20-year costs which the industry is

expected to incur is $6.3 million.

Following is a breakdown of the costs

by requirement.

Section Requirement Cost

239.101,201,203 ........ Emergency Prep. Plan ................................................................................................................ $199,085

Control Center Notification .......................................................................................................... 969–1,569

Training:
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24673

Section Requirement Cost

—Onboard Personnel Training ............................................................................................ 1,400,684

—Control Center Personnel Training ................................................................................... 134,014

—Initial Program Development ............................................................................................ 51,822

Joint Operations .......................................................................................................................... 22,954

Parallel Operations ...................................................................................................................... 1,526–1,865

Emergency Responder Liaison:

—Training Program .............................................................................................................. 423,096

—Provide EPP—Commuter ................................................................................................. 11,646

—Provide EPP—Amtrak ...................................................................................................... 403,365

Onboard Emergency Equipment:

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

—One Pry Bar/Car ............................................................................................................... 66,571

—Instruction on Pry Bar Use ............................................................................................... 279,576

Passenger Safety Awareness:

—Permanent Onboard Posting ............................................................................................ 64,597

239.103, 105 .............. Pass Train Emergency Simulations ............................................................................................ 231,172

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

—Marking—Interior .............................................................................................................. 447,571

—Marking—Exterior ............................................................................................................. 1,336,679

—Inspection/Record keep. ................................................................................................... 397,091

239.301 ...................... Operational Efficiency Tests ....................................................................................................... 683,909

Total .................... 6,304,128–6,305,067

The history of passenger train

accidents shows that the potential for

injury and loss of life arising from a

single incident can be significant. In the

last 11 years there have been seven

passenger train accidents which

resulted in a significant loss of life. FRA

believes that the value (as a result of

these requirements) of averting three or

more fatalities, or an economicequivalent number of permanently

disabling injuries among rail passengers

over the next twenty years will exceed

the cost to rail carriers of implementing

these rules.

While FRA cannot determine whether

the monetary value of the benefits to

railroads affected by this rule will

exceed the estimated costs of

implementing the rule, the agency

believes it is reasonable to expect that

the economic benefit from saving at

least three lives as a result of

implementing these standards will

exceed the costs of implementing this

rule.

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. FRA has

conducted a regulatory flexibility

assessment of this final rule’s impact on

small entities, and the assessment has

been placed in the public docket for this

rulemaking; FRA certifies that the final

rule will not have a substantial impact

on a significant number of small

entities. This final rule affects intercity

and commuter passenger railroads, as

well as rapid transit operations that

operate over the general railroad system

of transportation. Commuter railroads

and rapid transit systems are part of

larger transit organizations that receive

Federal funds. The American Public

Transit Association (APTA) represents

the interests of commuter railroads and

rapid transit systems in regulatory

matters. Further, the final standards

were developed by FRA in consultation

with a Working Group that included

representatives from Amtrak, individual

commuter railroads, and APTA.

Entities impacted by the final 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). No small

commuter railroads or rapid transit

systems will 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.

Small passenger rail operations such

as tourist, scenic, excursion, and

historic railroads are excepted from the

final rule. The final 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 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 the final rule as simple

and minimal as possible. FRA is not

authorized to impose a penalty on

persons for violating information

collection requirements which do not

display a current OMB control number.

The sections that contain the new and/

or revised information collection

requirements and the estimated time to

fulfill each requirement are as follows:
24674 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

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.

18 RRs ............. 1,950 new decals ......................... 4 minutes .................................... 664 hours ..... $19,920

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

1,300 new decals ......................... 4 minutes.

B. Emergency access.18 RRs ............. 6,320 replace decals .................... 7 minutes .................................... 824 hours ..... 24,720

239.107(b) .............. 18 RRs ............. 3,600 tests ................................... 20 minutes (18 minutes to perform test and 2 minutes for

recordkeeping).

1,200 hours .. 36,000

239.101/239.201 ..... 18 RRs ............. 18 plans ....................................... 158 hours ................................... 2,844 hours .. 115,416

18 RRs ............. 18 amendments ........................... 1.6 hours .................................... 29 hours ....... 986

239.101(1)(I) .................. 18 RRs ............. N/A ............................................... Usual and customary procedure—No new paperwork.N/A ............... N/A

239.101(1)(ii) ................. 18 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 hours ......... 140

239.101(a)(3) ................. 29 RR Pairs ...... 29 negotiations ............................ 16 hours ..................................... 464 hours ..... 22,040

239.101(a)(7)(ii) ............. 5 RRs ............... 1,300 passenger cars .................. 5 minutes per bulkhead card ..... 108 hours ..... 3,240

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

message.

5 hours ......... 170

239.105 .......................... 18 RRs ............. 5 sessions .................................... 27 hours per session ................. 33 hours ....... 924

239.301/239.303 ............ 18 RRs ............. 11,075 tests ................................. 8 minutes per test ...................... 135 hours ..... 6,255

239.101(a)(5) ................. 17 RRs ............. 18 responses to distribute info to

emergency responders.

6 hours per mailing .................... 102 hours ..... 9,588

1 RR ................. ...................................................... 100 hours per mailing ................ 180 hours .....

1 RR (Amtrak) .. 1 response to distribute info to

emergency responders.

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

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

1 RR (Amtrak) .. 1 update of emergency responder

records.

5 hours hours per mailing .......... 5 hours ......... 140

All estimates include the time for

reviewing instructions; searching

existing data sources; gathering or

maintaining the needed data; and

reviewing the information. For

information or a copy of the information

collection request submitted to OMB,

please contact Ms. Brenda Moscoso at

202–632–3335. The final rule responds

to public comments on the information

collection requirements contained in the

NPRM. The requirements in this final

rule have been approved by OMB under

OMB control number 2130–0545.

Environmental Impact

FRA has evaluated this final rule 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.), other environmental

statutes, Executive Orders, and DOT

Order 5610.1c. This final rule meets the

criteria that establish this as a non-major

action for environmental purposes.

Federalism Implications

This final rule has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

the final 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.

Compliance With the Unfunded

Mandates Reform Act of 1995

Pursuant to the Unfunded Mandates

Reform Act of 1995 (Pub. L. 104–4) each

federal agency ‘‘shall, unless otherwise

prohibited by law, assess the effects of

Federal Regulatory actions on State,

local, and tribal governments, and the

private sector (other than to the extent

that such regulations incorporate

requirements specifically set forth in

law).’’ Sec. 201. Section 202 of the Act

further requires that ‘‘before

promulgating any general notice of

proposed rulemaking that is likely to

result in promulgation of any rule that

includes any Federal mandate that may

result in the expenditure by State, local,

and tribal governments, in the aggregate,

or by the private sector, of $ 100,000,000

or more (adjusted annually for inflation)

in any 1 year, and before promulgating

any final rule for which a general notice

of proposed rulemaking was published,

the agency shall prepare a written

statement * * *’’ detailing the effect on

State, local and tribal governments and

the private sector. The final rules issued

today will not result in the expenditure,

in the aggregate, of $100,000,000 or

more in any one year, and thus

preparation of a statement was not

required.

List of Subjects in 49 CFR Part 223

Glass and glass products, Penalties,

Railroad safety, Reporting and

recordkeeping requirements.

List of Subjects in 49 CFR Part 239

Passenger train emergency

preparedness, Penalties, Railroad safety,

Reporting and recordkeeping

requirements.

The Final Rule

In consideration of the foregoing,

chapter II, subtitle B, of title 49, Code

of Federal Regulations is amended as

follows:

1. The authority citation for part 223

is revised to read as follows:
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24675

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—

Administrator means the

Administrator of the Federal Railroad

Administration or the Administrator’s

delegate.

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:

(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 responder means a

member of a police or fire department,

or other organization involved with

public safety charged with providing or

coordinating emergency services, who

responds to a passenger train

emergency.

Emergency window means that

segment of a side facing glazing location

which has been designed to permit

rapid and easy removal during a crisis

situation.

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.

FRA means the Federal Railroad

Administration.

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 rail

rolling equipment intended to provide

transportation for members of the

general public and includes selfpropelled cars designed to carry

baggage, mail, express or passengers.

This term includes a passenger coach,

cab car, and an MU locomotive. This

term does not include a private car.

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 or commuter or other

short-haul passenger service in a

metropolitan or suburban area.

Person 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 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

for each passenger car, except for selfpropelled cars designed to carry

baggage, mail, or express:

(1) Each emergency window is

conspicuously and legibly marked with

luminescent material on the inside of

each car to facilitate passenger egress.

Each such railroad shall post clear and

legible operating instructions at or near

each such exit.

(2) Each window intended for

emergency access by emergency

responders for extrication of passengers

is marked with a retroreflective, unique,

and easily recognizable symbol or other

clear marking. Each such railroad shall

post clear and understandable windowaccess instructions either at each such

window or at each end of the car.

4. By revising appendix B to part 223

to read as follows:
24676 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

1A penalty may be assessed against an individual

only for a willful violation. The Administrator

reserves the right to assess a penalty of up to

$22,000 for any violation where circumstances

warrant. See 49 U.S.C. 21301, 21304, and 49 CFR

part 209, appendix A. Further designations, not

found in the CFR citation for certain provisions are

FRA Office of Chief Counsel computer codes added

as a suffix to the CFR citation and used to expedite

imposition of civil penalties for violations. FRA

reserves the right, should litigation become

necessary, to substitute in its complaint the CFR

citation in place of the combined designation cited

in the penalty demand letter.

Appendix B to Part 223—Schedule of Civil Penalties 1

Section Violation Willful violation

223.9 New or rebuilt Equipment:

(a) Locomotives ................................................................................................................................................ $2,500 $5,000

(b) Cabooses .................................................................................................................................................... 2,500 5,000

(c) Passenger cars ............................................................................................................................................ 2,500 5,000

(d) (1), (d)(2):.

(i) Window not marked or instructions not posted .................................................................................... 2,500 5,000

(ii) Window improperly marked or instructions improperly posted ............................................................ 1,000 2,000

223.11(c) Existing locomotives ................................................................................................................................ 2,500 5,000

(d) Repair of window ................................................................................................................................................ 1,000 2,000

223.13(c) Existing cabooses .................................................................................................................................... 2,500 5,000

(d) Repair of window ................................................................................................................................................ 1,000 2,000

223.15(c) Existing passenger cars .......................................................................................................................... 2,500 5,000

(d) Repair of window ................................................................................................................................................ 1,000 2,000

223.17 Identification of units .................................................................................................................................. 1,000 1,500

5. 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.

239.13 Waivers.

239.15 Information collection.

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

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

20114, 20133, 21301, 21304, and 21311; 49

U.S.C. 20133; 28 U.S.C. 2461 note; 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 provisions of its plan.

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) of this section, 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;

(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) Passenger or 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

section 205 of the Federal Railroad

Safety Act of 1970 (45 U.S.C. 434)),

issuance of this part 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

means other railroads, trolleys, light

rail, heavy transit, and other vehicles

operating on rails or electromagnetic

guideways which are expressly

identified in a railroad’s emergency

preparedness plan. Administrator means the

Administrator of the Federal Railroad

Administration or the Administrator’s

delegate. Control center means a central

location on a railroad with

responsibility for directing the safe

movement of trains.

Crewmember means a person, other

than a passenger, who is assigned to

perform either: (1) On-board functions connected

with the movement of the train (i.e., an

employee of a railroad, or of a contractor

to a railroad, who is assigned to perform

service subject to the Federal hours of

service laws during a tour of duty) or (2) On-board functions in a sleeping

car or coach assigned to intercity

service, other than food, beverage, or

security service. 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
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24677

involving a significant threat to the

safety or health of one or more persons

requiring immediate action, including:

(1) A derailment;

(2) A fatality at a grade crossing;

(3) A passenger or employee fatality,

or a serious illness or injury to one or

more passengers or crewmembers

requiring admission to a hospital;

(4) An evacuation of a passenger train;

and

(5) A security situation (e.g., a bomb

threat).

Emergency preparedness plan means

one or more documents focusing on

preparedness and response in dealing

with a passenger train emergency.

Emergency responder means a

member of a police or fire department,

or other organization involved with

public safety charged with providing or

coordinating emergency services, who

responds to a passenger train

emergency.

Emergency window means that

segment of a side facing glazing location

which has been designed to permit

rapid and easy removal in an emergency

situation.

FRA means the Federal Railroad

Administration.

Joint operations means rail operations

conducted by more than one railroad on

the same track, except as necessary for

the purpose of interchange, 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 or commuter

or other short-haul passenger service in

a metropolitan or suburban area.

Person includes all categories of

entities covered under 1 U.S.C. 1,

including, but not limited to, a railroad;

any manager, supervisor, official, or

other employee or agent of a railroad;

any owner, manufacturer, lessor, or

lessee of railroad equipment, track, or

facilities; any passenger; any trespasser

or nontrespasser; any independent

contractor providing goods or services

to a railroad; any volunteer providing

goods or services to a railroad; and any

employee of such owner, manufacturer,

lessor, lessee, or independent

contractor.

Private car means a rail passenger car

used to transport non-revenue

passengers on an occasional contractual

basis, and includes business or 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 involving

emergency preparedness.

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 to a railroad, performs any

function required by this part, that

person (whether or not a railroad) shall

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 $11,000 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 $22,000 per

violation may be assessed. Each day a

violation continues shall constitute a

separate offense. Any person who

knowingly and willfully falsifies a

record or report required by this part

may be subject to criminal penalties

under 49 U.S.C. 21311 (formerly

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

A contains a schedule of civil penalty

amounts used in connection with this

part.

§ 239.13 Waivers.

(a) Any person subject to a

requirement of this part may petition

the Administrator for a waiver of

compliance with such requirement. The

filing of such a petition does not affect

that person’s responsibility for

compliance with that requirement while

the petition is being considered.

(b) Each petition for waiver must be

filed in the manner and contain the

information required by part 211 of this

chapter.

(c) If the Administrator finds that a

waiver of compliance is in the public

interest and is consistent with railroad

safety, the Administrator may grant the

waiver subject to any conditions the

Administrator deems necessary.

§ 239.15 Information collection.

(a) The information collection

requirements of this part have been

reviewed by the Office of Management

and Budget pursuant to the Paperwork

Reduction Act of 1995 (44 U.S.C.

3507(d) et seq.), and have been assigned

OMB control number 2130–0545.

(b) The information collection

requirements are found in the following

sections: §§ 239.101, 239.103, 239.105,

239.107, 239.201, 239.203, 239.301, and

239.303.

Subpart B—Specific Requirements

§ 239.101 Emergency preparedness plan.

(a) Each railroad to which this part

applies shall adopt and comply with a

written emergency preparedness plan

approved by FRA under the procedures

of § 239.201. The plan shall include the

following elements and procedures for

implementing each plan element.

(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. As

appropriate, an on-board crewmember

shall 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.
24678 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

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

responsibilities and provide for initial

training, as well as periodic training at

least once every two calendar years

thereafter, on the applicable plan

provisions. As a minimum, the initial

and periodic training shall include:

(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 training of

responsible control center personnel, as

well as periodic training at least once

every two calendar years thereafter, on

appropriate courses of action for each

potential emergency situation. As a

minimum, the initial and periodic

training shall include:

(A) Dispatch territory familiarization;

and

(B) Protocols governing internal

communications between appropriate

control center personnel whenever an

imminent potential emergency situation

exists.

(iii) Initial training schedule for

current employees. The railroad’s

emergency preparedness plan shall

provide for the completion of initial

training of all on-board and control

center employees who are employed by

the railroad on the date that the plan is

conditionally approved under

§ 239.201(b)(1), in accordance with the

following schedule:

(A) For each railroad that provides

commuter or other short-haul passenger

train service and whose operations

include less than 150 route miles and

less than 200 million passenger miles

annually, not more than one year after

January 29, 1999, or not more than 90

days after commencing passenger

operations, whichever is later.

(B) For each railroad that provides

commuter or other short-haul passenger

train service and whose operations

include at least 150 route miles or at

least 200 million passenger miles

annually, not more than two years after

January 29, 1999, or not more than 180

days after commencing passenger

operations, whichever is later.

(C) For each railroad that provides

intercity passenger train service,

regardless of the number of route miles

or passenger miles, not more than two

years after January 29, 1999, or not more

than 180 days after commencing

passenger operations, whichever is later.

(D) For each freight railroad that hosts

passenger train service, regardless of the

number of route miles or passenger

miles of that service, not more than one

year after January 29, 1999, or not more

than 90 days after the hosting begins,

whichever is later.

(iv) Initial training schedule for new

employees. The railroad’s emergency

preparedness plan shall provide for the

completion of initial training of all onboard and control center employees

who are hired by the railroad after the

date on which the plan is conditionally

approved under § 239.201(b)(1). Each

employee shall receive initial training

within 90 days after the employee’s

initial date of service.

(v) 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

types of testing 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 by

the person being tested 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.

(vi) On-board staffing. (A) Except as

provided in paragraph (a)(2)(vi)(B), all

crewmembers on board a passenger

train shall be qualified to perform the

functions for which they are responsible

under the provisions of the applicable

emergency preparedness plan.

(B) A freight train crew relieving an

expired passenger train crew en route is

not required to be qualified under the

emergency preparedness plan, provided

that at least one member of the expired

passenger train crew remains on board

and is available to perform excess

service under the Federal hours of

service laws in the event of an

emergency.

(3) Joint operations. (i) Each railroad

hosting passenger train service shall

address its specific responsibilities

consistent with this part.

(ii) In order to achieve an optimum

level of emergency preparedness, each

railroad hosting passenger train service

shall communicate with each railroad

that provides or operates such service

and coordinate applicable portions of

the emergency preparedness plan. All of

the railroads involved in hosting,

providing, and operating a passenger

train service operation shall jointly

adopt one emergency preparedness plan

that addresses each entity’s specific

responsibilities consistent with this

part. 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 require

reasonable and prudent action to

coordinate emergency efforts where

adjacent rail modes of transportation

run parallel to either the passenger

railroad or the 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) Developing and making available a

training program for all on-line

emergency responders who could

reasonably be expected to respond

during an emergency situation. The

training program shall include an

emphasis on access to railroad

equipment, location of railroad

facilities, and communications

interface, and provide information to

emergency responders who may not

have the opportunity to participate in an

emergency simulation. Each affected

railroad shall either offer the training

directly or provide the program

information and materials to state
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24679

training institutes, firefighter

organizations, or police academies;

(ii) Inviting emergency responders to

participate in emergency simulations;

and

(iii) 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 position titles

and telephone numbers of relevant

railroad officers to contact.

(6) On-board emergency equipment.

(i) General. Each railroad’s emergency

preparedness plan shall state the types

of emergency equipment to be kept on

board and indicate their location(s) on

each passenger car that is in service.

Effective May 4, 1999, or not more than

120 days after commencing passenger

operations, whichever is later, 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) Effective May 4, 1999, or not more

than 120 days after commencing

passenger operations, whichever is later,

each railroad that provides intercity

passenger train service shall also equip

each passenger train that is in service

with at least one first-aid kit accessible

to crewmembers that contains, at a

minimum:

(A) Two small gauze pads (at least 4x4

inches);

(B) Two large gauze pads (at least

8x10 inches);

(C) Two adhesive bandages;

(D) Two triangular bandages;

(E) One package of gauge roller

bandage that is at least two inches wide;

(F) Wound cleaning agent, such as

sealed moistened towelettes;

(G) One pair of scissors;

(H) One set of tweezers;

(I) One roll of adhesive tape;

(J) Two pairs of latex gloves; and

(K) One resuscitation mask.

(iii) On-board emergency lighting.

Consistent with the requirements of part

238 of this chapter, auxiliary portable

lighting (e.g., a handheld flashlight)

must be accessible and provide, at a

minimum:

(A) Brilliant illumination during the

first 15 minutes after the onset of an

emergency situation; and

(B) Continuous or intermittent

illumination during the next 60 minutes

after the onset of an emergency

situation.

(iv) Maintenance. Each railroad’s

emergency preparedness plan shall

provide for scheduled maintenance and

replacement of first-aid kits, on-board

emergency equipment, and on-board

emergency 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 additional

methods to provide safety awareness

information including, but not limited

to, one of the following:

(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.

(b) [Reserved]

§ 239.103 Passenger train emergency

simulations.

(a) General. Each railroad operating

passenger train service shall conduct

full-scale emergency simulations, 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.

(b) Frequency of the emergency

simulations. Except as provided in

paragraph (c) of this section:

(1) Each railroad that provides

commuter or other short-haul passenger

train service and whose operations

include less than 150 route miles and

less than 200 million passenger miles

annually, shall conduct a minimum of

one full-scale emergency simulation

during every two calendar years.

(2) Each railroad that provides

commuter or other short-haul passenger

train service and whose operations

include at least 150 route miles or at

least 200 million passenger miles

annually, shall conduct a minimum of

one full-scale emergency simulation

during each calendar year.

(3) Each railroad that provides

intercity passenger train service, shall

conduct a minimum of one full-scale

emergency simulation during each

calendar year, regardless of the number

of route miles or passenger miles.

(c) Actual emergency situations.

Neither a tabletop exercise nor the

activation of its emergency

preparedness plan during an actual

emergency situation may be credited

toward the minimum number of fullscale emergency simulations required

under paragraph (b) of this section.

However, a railroad that has activated

its emergency preparedness plan in

response to a major emergency may

elect to postpone a scheduled full-scale

simulation for up to 180 calendar days

beyond the applicable calendar year

completion date in order to evaluate the

effectiveness of its plan during that

major emergency and, as appropriate,

modify the rescheduled simulation.

(d) Definition. As used in this section,

major emergency means an unexpected

event related to the operation of

passenger train service that results in

serious injury or death to one or more

persons and property damage greater

than the current reporting threshold of

part 225 of this chapter to railroad ontrack equipment, signals, tracks, track

structures, or roadbeds, including labor

costs and the costs for acquiring new

equipment and material.

§ 239.105 Debriefing and critique.

(a) General. Except as provided in

paragraph (b) of this section, each

railroad operating passenger train

service shall conduct a debriefing and

critique session after each passenger

train emergency situation or full-scale

simulation to determine the

effectiveness of its emergency

preparedness plan, and shall improve or

amend its plan, or both, as appropriate,

in accordance with the information

developed. The debriefing and critique

session shall be conducted within 60

days of the date of the passenger train

emergency situation or full-scale

simulation.

(b) Exceptions. (1) No debriefing and

critique session shall be required in the

case of an emergency situation

involving only a collision between

passenger railroad rolling stock and: a

pedestrian; a trespasser; or a motor

vehicle or other highway conveyance at

a highway-rail grade crossing, provided

that the collision does not result in: a

passenger or employee fatality, or an

injury to one or more crewmembers or

passengers requiring admission to a

hospital; or the evacuation of a

passenger train. (2) For purposes of this

section, highway-rail grade crossing

means a location where a public

highway, road, street, or private

roadway, including associated
24680 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

sidewalks and pathways, crosses one or

more railroad tracks at grade, and

trespasser means a person who is on

that part of railroad property used in

railroad operation and whose presence

is prohibited, forbidden, or unlawful.

(c) Purpose of debriefing and critique.

The debriefing and critique session shall

be designed to determine, at a

minimum:

(1) Whether the on-board

communications equipment functioned

properly;

(2) How much time elapsed between

the occurrence of the emergency

situation or full-scale 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) How efficiently the passengers

exited from the car through the

emergency exits.

(d) Records. (1) Each railroad shall

maintain records of its debriefing and

critique sessions at its system

headquarters and applicable division

headquarters for two calendar years

after the end of the calendar year to

which they relate, including the

following information:

(i) Date and location of the passenger

train emergency situation or full-scale

simulation;

(ii) Date and location of the debriefing

and critique session; and

(iii) Names of all participants in the

debriefing and critique session.

(2) These records shall be made

available to representatives of FRA and

States participating under part 212 of

this chapter for inspection and copying

during normal business hours.

§ 239.107 Emergency exits.

For additional requirements related to

emergency window exits, see part 223 of

this chapter.

(a) Marking. Each railroad operating

passenger train service shall determine

for each passenger car that is in service,

except for self-propelled cars designed

to carry baggage, mail, or express:

(1) That all door exits intended for

emergency egress are either lighted or

conspicuously and legibly marked with

luminescent material on the inside of

the car and that clear and

understandable instructions are posted

at or near such exits.

(2) That all door exits intended for

emergency access by emergency

responders for extrication of passengers

are marked with retroreflective material

and that clear and understandable

instructions are posted 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:

(1) Provide for scheduled inspection,

maintenance, and repair of emergency

window and door exits;

(2) Test a representative sample of

emergency window exits on its cars at

least once every 180 days to verify that

they are operating properly; and

(3) Repair each inoperative emergency

window and door exit on a car 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 for two

calendar years after the end of the

calendar year to which they relate.

These records shall be made available to

representatives of FRA and States

participating under part 212 of this

chapter for inspection and copying

during normal business hours.

(d) Electronic recordkeeping. Each

railroad to which this part applies is

authorized to retain by electronic

recordkeeping the information

prescribed in paragraph (b) of this

section, 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

representatives of FRA and States

participating under part 212 of this

chapter;

(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 and States

participating under part 212 of this

chapter with immediate access to these

records for inspection and copying

during normal business hours and

provides printouts of such records upon

request.

Subpart C—Review, Approval, and

Retention of Emergency Preparedness

Plans

§ 239.201 Emergency preparedness plan;

filing and approval.

(a) Filing. Each passenger railroad to

which this part applies and all railroads

hosting its passenger train service (if

applicable) shall jointly adopt a single

emergency preparedness plan for that

service and the passenger railroad shall

file one copy of that plan with the

Associate Administrator for Safety,

Federal Railroad Administration, Mail

Stop 25, 400 Seventh Street, S.W.,

Washington, D.C. 20590, not more than

180 days after May 4, 1998, or not less

than 45 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

on each affected railroad to be contacted

with regard to review of the plan, and

shall include a summary of each

railroad’s analysis supporting each plan

element and describing how every

condition on the railroad’s property that

is likely to affect emergency response is

addressed in the plan. Each subsequent

amendment to a railroad’s emergency

preparedness plan shall be filed with

FRA by the passenger railroad not less

than 60 days prior to the proposed

effective date.

(b) Approval. (1) Preliminary review.

(i) Within 90 days of receipt of each

proposed emergency preparedness plan,

and within 45 days of receipt of each

plan for passenger operations to be

commenced after the initial deadline for

plan submissions, FRA will conduct a

preliminary review of the proposed plan

to determine if the elements prescribed

in § 239.101 are sufficiently addressed

and discussed in the railroad’s plan

submission. FRA will then notify the

primary contact person of each affected

railroad in writing of the results of the

review, whether the proposed plan has

been conditionally approved by FRA,

and if not conditionally approved, the

specific points in which the plan is

deficient.

(ii) If a proposed emergency

preparedness plan is not conditionally

approved by FRA, the affected railroad

or railroads shall amend the proposed

plan to correct all deficiencies identified

by FRA (and provide FRA with a

corrected copy) not later than 30 days

following receipt of FRA’s written

notice that the proposed plan was not

conditionally approved.

(2) Final review. (i) Within 18 months

of receipt of each proposed plan, and

within 180 days of receipt of each

proposed plan for passenger operations
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24681

1A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up

to $22,000 for any violation where circumstances warrant. See 49 U.S.C. 21301, 21304, and 49 CFR part 209, appendix A. Further designations, not

found in the CFR citation for certain provisions, are FRA Office of Chief Counsel computer codes added as a suffix to the CFR citation and used

to expedite imposition of civil penalties for violations. FRA reserves the right, should litigation become necessary, to substitute in its complaint the

CFR citation in place of the combined designation cited in the penalty demand letter.

to be commenced after the initial

deadline for plan submissions, FRA will

conduct a comprehensive review of the

conditionally approved plan to evaluate

implementation of the elements

included. This review will include

ongoing dialogues with rail management

and labor representatives, and field

analysis and verification. FRA will then

notify the primary contact person of

each affected railroad in writing of the

results of the review, whether the

conditionally approved plan has been

finally approved by FRA, and if not

approved, the specific points in which

the plan is deficient.

(ii) If an emergency preparedness plan

of a railroad or railroads is not finally

approved by FRA, the affected railroad

or railroads shall amend the 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

finally approved.

(3) Review of amendments. (i) FRA

will review each proposed plan

amendment within 45 days of receipt.

FRA will then notify the primary

contact person of each affected railroad

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.

(ii) If the amendment is not approved,

the railroad shall correct any

deficiencies identified by FRA and file

the corrected amendment prior to

implementing the amendment.

(4) Reopened review. 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 passenger railroad to which this

part applies, and all railroads hosting its

passenger train service (if applicable),

shall each retain one copy of the

emergency preparedness plan required

by § 239.201 and one copy of each

subsequent amendment to that plan at

the system and division headquarters of

each, and shall make such records

available to representatives of FRA and

States participating under part 212 of

this chapter 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 onboard 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 written 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 also specify the name of the

railroad officer who administered the

test, the name of each employee tested,

and sufficient information to identify

the relevant facts relied on for

evaluation purposes.

(c) Each record required by paragraph

(a) of this section shall be retained at the

system headquarters of the railroad and

at the division headquarters for the

division where the test was conducted

for one calendar year after the end of the

calendar year to which the test relates.

Each such record shall be made

available to representatives of FRA and

States participating under part 212 of

this chapter for inspection and copying

during normal business hours.

§ 239.303 Electronic recordkeeping.

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:

(a) The railroad adequately limits and

controls accessibility to such

information retained in its database

system and identifies those individuals

who have such access;

(b) The railroad has a terminal at the

system headquarters and at each

division headquarters;

(c) 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

representatives of FRA and States

participating under part 212 of this

chapter;

(d) 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

(e) The railroad provides

representatives of FRA and States

participating under part 212 of this

chapter with immediate access to these

records for inspection and copying

during normal business hours and

provides printouts of such records upon

request.

Appendix A to Part 239—Schedule of Civil Penalties 1

Section Violation Willful violation

Subpart B—Specific Requirements:

239.101(a) Failure of a railroad to adopt a written emergency preparedness plan ................................................ $7,500 $11,000

(a)(1) Failure of the plan to provide for:

(i) Initial or on-board notifications by an on-board crewmember .............................................................. 2,500 5,000

(ii) Notification of outside emergency responders by control center ......................................................... 2,500 5,000

(a)(2) Failure of the plan to provide for:

(i) Initial or periodic training of on-board personnel .................................................................................. 2,500 5,000

(ii) Initial or periodic training of control center personnel .......................................................................... 2,500 5,000

(iii) Completion of initial training of all on-board and control center personnel by the specified date ..... 2,500 5,000

(iv) Completion of initial training of all newly hired on-board and control center personnel by the specified date ................................................................................................................................................. 2,500 5,000

(v) Adequate procedures to evaluate and test on-board and control center personnel for qualification

under the emergency preparedness plan .............................................................................................. 2,500 5,000

(vi) Adequate on-board staffing ................................................................................................................. 2,500 5,000
24682 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

Section Violation Willful violation

(a)(3) Failure of a host railroad involved in joint operations to coordinate applicable portions of the emergency preparedness plan with the railroad or railroads providing or operating a passenger train service

operation ........................................................................................................................................................ 3,000 6,000

(a)(4) Failure of the plan to address:

(i) Readiness procedures for emergencies in tunnels .............................................................................. 2,500 5,000

(ii) Readiness procedures for emergencies on an elevated structure or in electrified territory ................ 2,500 5,000

(iii) Coordination efforts involving adjacent rail modes of transportation .................................................. 2,500 5,000

(a)(5) Failure of the plan to address relationships with on-line emergency responders by providing for:

(i) The development and availability of training programs ........................................................................ 3,000 6,000

(ii) Invitations to emergency responders to participate in emergency simulations ................................... 3,000 6,000

(iii) Distribution of applicable portions of the current emergency preparedness plan .............................. 3,000 6,000

(a)(6) Failure of the plan to provide for, or the railroad to include on board each train and maintain and replace:

(i) Emergency equipment .......................................................................................................................... 2,500 5,000

(ii) First-aid kits .......................................................................................................................................... 2,500 5,000

(iii) Emergency lighting .............................................................................................................................. 2,500 5,000

(a)(7) Failure of the plan to provide for emergency instructions inside each passenger car or to include additional safety awareness information ........................................................................................................... 3,500 7,000

239.103 Failure to conduct a required full-scale simulation in accordance with the frequency schedule ........... 5,000 7,500

239.105 Debriefing and critique

(a) Failure to conduct a debriefing and critique session after an emergency or full-scale simulation ............ 4,000 7,500

(d)(1) Failure to maintain a record .................................................................................................................... 2,500 5,000

(i) Failure to include date or location of the emergency or simulation ..................................................... 1,000 2,000

(ii) Failure to include date or location of the debriefing and critique session ........................................... 1,000 2,000

(iii) Failure to include names of participants in the debriefing and critique session ................................. 1,000 2,000

(d)(2) Failure to make record available ............................................................................................................ 1,000 2,000

239.107 Emergency exits

(a)(1), (a)(2):

(i) Door not marked or instructions not posted ......................................................................................... 2,500 5,000

(ii) Door improperly marked or instructions 1,000-2,000-improperly posted ............................................. 2,500 5,000

(b)(1) Failure to provide for scheduled inspection, maintenance, and repair of emergency windows and

doors .............................................................................................................................................................. 5,000 7,500

(b)(2):

(i) Failure to test a representative sample of emergency windows .......................................................... 3,000 6,000

(ii) Emergency windows tested too infrequently ........................................................................................ 1,500 3,000

(b)(3) Failure to repair an inoperative emergency window or door exit ........................................................... 3,500 7,000

(c):

(i) Failure to maintain a record .................................................................................................................. 2,500 5,000

(ii) Failure to make record available .......................................................................................................... 1,000 2,000

(d)(1) Insufficient limits or controls on accessibility to records ........................................................................ 2,500 5,000

(d)(2) Missing terminal ...................................................................................................................................... 1,000 2,000

(d)(3) Inability of railroad to produce information in a usable format for immediate review ............................ 1,000 2,000

(d)(4) Failure by railroad to designate an authorized representative ............................................................... 1,000 2,000

(d)(5) Failure to make record available ............................................................................................................ 1,000 2,000

Subpart C—Review, Approval, and Retention of Emergency Preparedness Plans:

239.201 Filing and approval

(a):

(i) Failure of a railroad to file a written emergency preparedness plan .................................................... 5,000 7,500

(ii) Failure to designate a primary person to contact for plan review ....................................................... 1,000 2,000

(iii) Failure of a railroad to file an amendment to its plan ......................................................................... 2,500 5,000

(b)(1), (b)(2):

(i) Failure of a railroad to correct a plan deficiency .................................................................................. 2,500 5,000

(ii) Failure to provide FRA with a corrected copy of the plan ................................................................... 1,000 2,000

(b)(3):

(i) Failure of a railroad to correct an amendment deficiency .................................................................... 2,500 5,000

(ii) Failure to file a corrected plan amendment with FRA ......................................................................... 1,000 1,000

239.203 Retention of emergency preparedness plan

(1) Failure to retain a copy of the plan or an amendment to the plan ..................................................... 2,500 5,000

(2) Failure to make record available ......................................................................................................... 1,000 2,000

Subpart D—Operational (efficiency) tests; Inspection of Records and Recordkeeping:

239.301 Operational (efficiency) tests

(a) Testing Program .......................................................................................................................................... 5,000 7,500

(b)(1) Failure to maintain a record .................................................................................................................... 2,500 5,000

(b)(2) Record improperly completed ................................................................................................................. 1,000 1,000

(c)(1) Failure to retain a copy of the record ..................................................................................................... 2,500 5,000

(c)(2) Failure to make record available ............................................................................................................ 1,000 2,000

239.303 Electronic recordkeeping

(a) Insufficient limits or controls on accessibility to records ............................................................................. 2,500 5,000

(b) Missing terminal .......................................................................................................................................... 1,000 2,000

(c) Inability of railroad to produce information in a usable format for immediate review ................................. 1,000 2,000

(d) Failure by railroad to designate an authorized representative ................................................................... 1,000 2,000

(e) Failure to make record available ................................................................................................................. 1,000 2,000
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24683

Issued in Washington, D.C., on April 14,

1998.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 98–11393 Filed 4–29–98; 8:45 am]

BILLING CODE 4910–06–P