73070 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Parts 229 and 238 

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

1] 

RIN 2130–AB67 

Passenger Equipment Safety 

Standards; Miscellaneous 

Amendments and Attachments of 

Safety Appliances on Passenger 

Equipment 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FRA is proposing to clarify 

and amend its existing regulations in an 

effort to address various mechanical 

issues relevant to the manufacture, 

efficient utilization, and safe operation 

of passenger equipment and trains that 

have arisen since FRA’s original 

issuance of the Passenger Equipment 

Safety Standards. FRA proposes 

miscellaneous amendments to its 

existing regulations in five areas by: 

Clarifying the terminology related to 

piston travel indicators; providing 

alternative design and additional 

inspection criteria for new passenger 

equipment not designed to allow 

inspection of the application and release 

of the brakes from outside the 

equipment; permitting some latitude in 

the use of passenger equipment with 

redundant air compressors when a 

limited number of the compressors 

become inoperative; recognizing current 

locomotive manufacturing techniques 

by permitting an alternative pneumatic 

pressure test for main reservoirs; and 

adding provisions to ensure the proper 

securement of unattended equipment. 

FRA is also clarifying the existing 

regulatory requirements related to the 

attachment of safety appliances and is 

proposing an identification and 

inspection protocol to address passenger 

equipment containing welded safety 

appliances or welded safety appliance 

brackets or supports. Finally, FRA is 

proposing to permit railroads the ability 

to apply out-of-service credit to certain 

periodic maintenance requirements. 

DATES: (1) Written comments must be 

received by February 17, 2006. 

Comments received after that date will 

be considered to the extent possible 

without incurring additional expenses 

or delays. 

(2) FRA anticipates being able to 

resolve this rulemaking without a 

public, oral hearing. However, if FRA 

receives a specific request for a public, 

oral hearing prior to January 17, 2006, 

one will be scheduled and FRA will 

publish a supplemental notice in the 

Federal Register to inform interested 

parties of the date, time, and location of 

any such hearing. 

ADDRESSES: Comments: Comments 

related to Docket No. FRA–2005–23080, 

may be submitted by any of the 

following methods: 

• Web site: http://dms.dot.gov. 

Follow the instructions for submitting 

comments on the DOT electronic docket 

site. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590– 

0001. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC between 9 a.m. and 5 p.m. Monday 

through Friday, except Federal holidays. 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

Instructions: All submissions must 

include the agency name and docket 

number or Regulatory Identification 

Number (RIN) for this rulemaking. Note 

that all comments received will be 

posted without change to http:// 

dms.dot.gov including any personal 

information. Please see the Privacy Act 

heading in the SUPPLEMENTARY

INFORMATION section of this document 

for Privacy Act information related to 

any submitted comments or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

dms.dot.gov at any time or to PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC between 9 a.m. and 5 p.m. Monday 

through Friday, except Federal 

Holidays. 

FOR FURTHER INFORMATION CONTACT: 

George Scerbo, Office of Safety 

Assurance and Compliance, Motive 

Power & Equipment Division, RRS–14, 

Mail Stop 25, Federal Railroad 

Administration, 1120 Vermont Avenue, 

NW., Washington, DC 20590 (telephone 

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

Trial Attorney, Office of Chief Counsel, 

Mail Stop 10, Federal Railroad 

Administration, 1120 Vermont Avenue, 

NW., Washington, DC 20590 (telephone 

202–493–6036). 

SUPPLEMENTARY INFORMATION: 

I. Statutory Background 

In September of 1994, the Secretary of 

Transportation convened a meeting of 

representatives from all sectors of the 

rail industry with the goal of enhancing 

rail safety. As one of the initiatives 

arising from this Rail Safety Summit, 

the Secretary announced that DOT 

would begin developing safety 

standards for rail passenger equipment 

over a five-year period. In November of 

1994, Congress adopted the Secretary’s 

schedule for implementing rail 

passenger equipment regulations and 

included it in the Federal Railroad 

Safety Authorization Act of 1994 (the 

Act), Public Law 103–440, 108 Stat. 

4619, 4623–4624 (November 2, 1994). 

Section 215 of the Act, is now codified 

at 49 U.S.C. 20133. 

The Secretary of Transportation has 

delegated these rulemaking 

responsibilities to the Federal Railroad 

Administrator. See 49 CFR 1.49(m). 

II. Proceedings to Date 

On June 17, 1996, FRA published an 

advanced notice of proposed 

rulemaking (ANPRM) concerning the 

establishment of comprehensive safety 

standards for railroad passenger 

equipment. See 61 FR 30672. The 

ANPRM provided background 

information on the need for such 

standards, offered preliminary ideas on 

approaching passenger safety issues, 

and presented questions on various 

passenger safety topics. Following 

consideration of comments received on 

the ANPRM and advice from FRA’s 

Passenger Equipment Working Group, 

FRA published a Notice of Proposed 

Rulemaking (NPRM) on September 23, 

1997, to establish comprehensive safety 

standards for railroad passenger 

equipment. See 62 FR 49728. In 

addition to requesting written comment 

on the NPRM, FRA also solicited oral 

comment at a public hearing held on 

November 21, 1997. FRA considered the 

comments received on the NPRM and 

prepared a final rule establishing safety 

standards for passenger equipment, 

which was published on May 12, 1999. 

See 64 FR 25540. 

After publication of the final rule, 

interested parties filed petitions seeking 

FRA’s reconsideration of some of the 

requirements contained in the final rule. 

These petitions generally related to the 

following subject areas: Structural 

design; fire safety; training; inspection, 

testing, and maintenance; and 

movement of defective equipment. On 

July 3, 2000, FRA issued a response to 

the petitions for reconsideration relating 

to the inspection, testing, and 

maintenance of passenger equipment, 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73071 

the movement of defective passenger 

equipment, and other miscellaneous 

mechanical-related provisions 

contained in the final rule. See 65 FR 

41284. On April 23, 2002 and June 25, 

2002, FRA published two additional 

responses to the petitions for 

reconsideration addressing the 

remaining issues raised in the petitions. 

See 67 FR 19970, and 67 FR 42892. 

Subsequent to the issuance of these 

responses, FRA and interested industry 

members began identifying various 

issues related to the new passenger 

equipment safety standards with the 

intent that FRA would address the 

issues through FRA’s Railroad Safety 

Advisory Committee (RSAC). On May 

20, 2003, FRA presented, and the RSAC 

accepted, the task of reviewing existing 

passenger equipment safety needs and 

programs and recommending 

consideration of specific actions useful 

to advance the safety of rail passenger 

service. The RSAC established the 

Passenger Equipment Working Group 

(Working Group) to handle this task and 

develop recommendations for the full 

RSAC to consider. Due to the variety of 

issues involved the Working Group 

established a number of smaller task 

forces, with specific expertise, to 

develop recommendations on various 

subject-specific issues. One of these task 

forces, the Mechanical Issues Task Force 

(Task Force), was assigned the job of 

identifying and developing issues and 

recommendations specifically related to 

the inspection, testing, and operation of 

passenger equipment as well as 

concerns related to the attachment of 

safety appliances on passenger 

equipment. 

This proposal is the result of FRA’s 

review and consideration of the 

recommendations of the Working Group 

and the full RSAC. With the exception 

of the proposed provisions related to the 

attachment of safety appliances on 

passenger equipment and the proposed 

provision involving out-of-service 

credit, FRA has accepted and now 

proposes the consensus 

recommendations made by the Working 

Group and adopted by the full RSAC as 

its recommendation to FRA. At the 

October 26–27, 2004, meeting of the full 

Working Group, FRA withdrew the task 

related to the consideration of handling 

the attachment of safety appliances on 

passenger equipment from the RSAC. 

FRA determined that consensus on this 

issue could not be reached in the RSAC 

process and determined that it would 

have to proceed with a proposal on its 

own. Therefore, FRA developed the 

proposed provisions related to the 

attachment of safety appliances 

unilaterally based on its own expertise 

in the area and based on discussions 

and information developed by the 

Working Group and Task Force. FRA 

also did not seek consensus in the RSAC 

process for the proposed provision 

related to out-of service credit. This 

issue is being addressed on FRA’s own 

accord in response to the American 

Public Transportation Association’s 

petition for rulemaking dated March 28, 

2005. Consequently, FRA did not and 

will not seek RSAC consensus on these 

issues nor will it discuss any comments 

received on these proposed provisions 

with the Working Group or RSAC when 

developing a final rule on those matters. 

In order to conserve agency resources 

and prevent duplicative production of 

rulemaking documents, FRA has 

included its proposed provisions related 

to safety appliances on passenger 

equipment and out-of-service credit in 

this notice. 

III. RSAC Overview 

In March 1996, FRA established the 

RSAC, which provides a forum for 

developing consensus recommendations 

on rulemakings and other safety 

program issues. The Committee 

includes representation from all of the 

agency’s major customer groups, 

including railroads, labor organizations, 

suppliers and manufacturers, and other 

interested parties. A list of member 

groups follows: 

American Association of Private 

Railroad Car Owners (AARPCO). 

American Association of State Highway 

& Transportation Officials 

(AASHTO). 

American Public Transportation 

Association (APTA). 

American Short Line and Regional 

Railroad Association (ASLRRA). 

American Train Dispatchers Association 

(ATDA). 

Association of American Railroads 

(AAR). 

Association of Railway Museums 

(ARM). 

Association of State Rail Safety 

Managers (ASRSM). 

Brotherhood of Locomotive Engineers 

and Trainmen (BLET). 

Brotherhood of Maintenance of Way 

Employes Division (BMWED). 

Brotherhood of Railroad Signalmen 

(BRS). 

Federal Transit Administration (FTA).* 

High Speed Ground Transportation 

Association (HSGTA). 

International Association of Machinists 

and Aerospace Workers. 

International Brotherhood of Electrical 

Workers (IBEW). 

Labor Council for Latin American 

Advancement (LCLAA).* 

League of Railway Industry Women.* 

National Association of Railroad 

Passengers (NARP). 

National Association of Railway 

Business Women.* 

National Conference of Firemen & 

Oilers. 

National Railroad Construction and 

Maintenance Association. 

National Railroad Passenger Corporation 

(Amtrak). 

National Transportation Safety Board 

(NTSB).* 

Railway Supply Institute (RSI). 

Safe Travel America (STA). 

Secretaria de Communicaciones y 

Transporte.* 

Sheet Metal Workers International 

Association (SMWIA). 

Tourist Railway Association Inc. 

Transport Canada.* 

Transport Workers Union of America 

(TWU). 

Transportation Communications 

International Union/BRC (TCIU/ 

BRC). 

United Transportation Union (UTU). 

*Indicates associate membership. 

When appropriate, FRA assigns a task 

to the RSAC, and after consideration 

and debate, RSAC may accept or reject 

the task. If accepted, the RSAC 

establishes a working group that 

possesses the appropriate expertise and 

representation of interests to develop 

recommendations to FRA for action on 

the task. These recommendations are 

developed by consensus. A working 

group may establish one or more task 

forces to develop facts and options on 

a particular aspect of a given task. The 

task force then provides that 

information to the working group for 

consideration. If a working group comes 

to unanimous consensus on 

recommendations for action, the 

package is presented to the RSAC for a 

vote. If the proposal is accepted by a 

simple majority of the RSAC, the 

proposal is formally recommended to 

FRA. FRA then determines what action 

to take on the recommendation. Because 

FRA staff has played an active role at 

the working group level in discussing 

the issues and options and in drafting 

the language of the consensus proposal, 

FRA is often favorably inclined toward 

the RSAC recommendation. However, 

FRA is in no way bound to follow the 

recommendation and the agency 

exercises its independent judgment on 

whether the recommended rule achieves 

the agency’s regulatory goal, is soundly 

supported, and is in accordance with 

policy and legal requirements. Often, 

FRA varies in some respects from the 

RSAC recommendation in developing 

the actual regulatory proposal. If the 

working group or the RSAC is unable to 

73072 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

reach consensus on recommendations 

for action, FRA moves ahead to resolve 

the issue through traditional rulemaking 

proceedings. 

On May 20, 2003, FRA presented, and 

the RSAC accepted, the task of 

reviewing existing passenger equipment 

safety needs and programs and 

recommending consideration of specific 

actions useful to advance the safety of 

rail passenger service. The Working 

Group was established to handle this 

task and develop recommendations for 

the full RSAC to consider. Members of 

the Working Group, in addition to FRA, 

included the following: 

• AAR, including members from 

BNSF Railway Company (BNSF); CSX 

Transportation, Incorporated (CSX); and 

Union Pacific Railroad Company (UP); 

• APTA, including members from 

Illinois Commuter Rail Corporation 

(METRA); Long Island Rail Road (LIRR); 

Metro-North Railroad (MNR); 

Southeastern Pennsylvania 

Transportation Authority (SEPTA); 

Southern California Regional Rail 

Authority (SCRRA); Saint Gobian Sully 

NA; LDK Engineering; and Herzog 

Transit Services, Incorporated; 

• Amtrak; AAPRCO; AASHTO; BLET; 

BRS; HSGTA; IBEW; NARP; RSI; 

SMWIA; STA; TCIU/BRC; TWU; and 

UTU. 

The NTSB met with the Working 

Group and provided staff advisors when 

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

DOT Volpe National Transportation 

Systems Center (Volpe) attended many 

of the meetings and contributed to the 

technical discussions. Due to the variety 

of issues involved, the Working Group 

established a number of smaller task 

forces, with specific expertise, to 

develop recommendations on various 

subject-specific issues. Members of the 

task forces included various 

representatives from various 

organizations that were part of the larger 

Working Group. One of these task 

forces, the Mechanical Issues Task Force 

(Task Force), was assigned the job of 

identifying and developing issues and 

recommendations specifically related to 

the inspection, testing, and operation of 

passenger equipment as well as 

concerns related to the attachment of 

safety appliances on passenger 

equipment. 

The Working Group and the related 

Task Force created by the Working 

Group conducted a number of meetings 

and discussed each of the matters 

proposed in this NPRM. Minutes of 

these meetings have been made part of 

the docket in this proceeding. As 

discussed above, FRA withdrew the task 

related to the consideration of handling 

the attachment of safety appliances on 

passenger equipment from the RSAC on 

October 27, 2004. FRA also did not seek 

consensus in the RSAC process for the 

proposed provision related to out-ofservice credit. This issue is being 

addressed on FRA’s own motion in this 

proceeding in response to APTA’s 

petition for rulemaking dated March 28, 

2005. Thus, the Working Group did not 

reach consensus on the proposed 

provisions related to these issues, and 

no recommendation was provided to the 

full RSAC. FRA unilaterally developed 

the proposed language related to the 

attachment of safety appliances and 

safety appliance arrangements on new 

and existing passenger equipment and 

did not seek Working Group or full 

RSAC consensus. The Working Group 

did reach full consensus on the 

proposed regulatory provisions 

addressing the other mechanical issues 

contained in this proposal on October 

26 and 27, 2004, and on September 7, 

2005. The Working Group presented its 

recommendations to the full RSAC for 

its concurrence on January 26, 2005 and 

October 11, 2005. All of the members of 

the full RSAC in attendance at those 

meetings accepted the regulatory 

recommendations submitted by the 

Working Group. Thus, the Working 

Group’s recommendation became the 

full RSAC’s recommendation to FRA in 

this matter. After reviewing the full 

RSAC’s recommendation, FRA adopted 

the recommendation with minor 

changes for purposes of clarity. FRA 

subsequently completed the 

development and drafting of this 

proposal based on the broad regulatory 

recommendations made by the full 

RSAC. 

Throughout the preamble discussion 

of this proposal, FRA refers to 

comments, views, suggestions, or 

recommendations made by members of 

the Working Group or related Task 

Force. When using this terminology, 

FRA is referring to views, statements, 

discussions or positions identified or 

contained in either the minutes of the 

Working Group and Task Force 

meetings. These documents have been 

made part of the docket in this 

proceeding and are available for public 

inspection as discussed in the preceding 

ADDRESSES portion of this document. 

These points are discussed to show the 

origin of certain issues and the course 

of discussions on those issues at the task 

force or working group level. We believe 

this helps illuminate factors FRA has 

weighed in making its regulatory 

decisions, and the logic behind those 

decisions. The reader should keep in 

mind, of course, that only the full RSAC 

makes recommendations to FRA, and it 

is the consensus recommendation of the 

full RSAC on which FRA is acting. 

IV. Technical Background 

A. Redundancy of Air Compressors 

One of the issues identified for 

consideration by the Working Group 

related to recognition of redundant 

systems or components on certain types 

of passenger equipment and providing 

potential relief when these redundant 

systems or components become 

inoperative or ineffective. The LIRR 

through APTA initially requested a rule 

change concerning electric multiple unit 

(MU) locomotives operated in train sets 

that by design have redundancy of 

systems or components such as air 

compressors and auxiliary power 

inverters. These parties recommended 

that if one of these types of redundant 

components or systems was found 

inoperative or ineffective during a 

calendar day exterior mechanical 

inspection, it should be permitted to 

remain in service until the next calendar 

day exterior mechanical inspection; 

provided, the safety and integrity of the 

train set is not compromised as verified 

by a qualified mechanical person. The 

Task Force discussed the issue in detail 

and determined that the only redundant 

components that should be provided 

some leeway when found defective were 

air compressors on MU passenger 

locomotives operated in train sets. At 

the May 11 and 12, 2004, meeting, the 

Working Group approved the Task 

Force’s substantive approach and agreed 

to have the Task Force draft a 

recommendation for its approval. The 

Task Force developed a proposed 

recommendation which was approved 

by the Working Group on October 26, 

2004 and by the full RSAC on January 

26, 2005. FRA reviewed and agrees with 

the recommendation and has included it 

in this proposal. 

MU passenger locomotives are 

generally operated as married pairs, but 

in some cases they can be operated as 

single or triple units. In the case of the 

married pairs, each pair of MU 

locomotives share a single air 

compressor. When operated in triple 

units, the three MU locomotives 

generally share two air compressors, 

and single-unit MU locomotives are 

equipped with their own air 

compressor. The amount of air required 

to be produced by the air compressors 

is based on the size of the brake pipe 

and the brake cylinder reservoirs, the 

size of which is based on the calculated 

number of brake application-and-release 

cycles the train will encounter. In 

addition, the compressed air produced 

by the air compressors is shared within 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73073 

the consist either by utilizing a main 

reservoir equalizing pipe or, in single 

pipe systems, by utilizing the brake pipe 

which is then diverted to the brake 

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

arrangement. Therefore, a passenger 

train set consisting of numerous MU 

locomotives will have multiple air 

compressors providing the train consist 

with the necessary compressed air. FRA 

agrees with the determinations of the 

Task Force that a loss of compressed air 

from a limited number of air 

compressors in such a train will not 

adversely effect the operation of the 

train’s brakes or other air-operated 

components on the train. 

At the Task Force meetings, the 

railroads and air brake manufacturers 

provided information demonstrating 

that the safety of a train set is not 

compromised when a pre-determined 

number of inoperative air compressors 

are allowed to continue to operate in 

service on a MU train set. On such train 

sets, the air compressors are applied by 

technical specification to a certain 

number of cars such as one per married 

pair, two per triplet, and so on. The 

technical specifications for these air 

compressors generally allow for a duty 

cycle (percentage of operating capacity) 

for each air compressor that is 

something less than 50 percent. In fact, 

some technical specifications limit the 

air compressor duty cycle to 33 percent. 

This means that on MU train sets the 

available air compressors are required to 

operate at only 33 to 50 percent of their 

operational capacity. One of the major 

reasons for imposing these low duty 

cycles is to ensure that adequate air 

pressure is available if one or more of 

the other air compressors in the train set 

is not operating properly. Thus, these 

systems are currently designed to 

function properly even in the event that 

a limited number of air compressors 

become inoperative while the train is in 

service. Moreover, even in the unlikely 

event that an MU passenger train set 

would lose all of its air compressors, 

then the air brakes would apply and 

would remain applied until sufficient 

compressed air is restored to the system. 

Consequently, FRA does not see any 

adverse impact on the operational safety 

of these types of trains if they are 

permitted to operate for a relatively 

short period of time with a limited 

number of air compressors being 

inoperative or ineffective. 

This NPRM proposes to permit the 

continued operation of MU train sets 

with a limited number of inoperative or 

ineffective air compressors to continue 

to be used in passenger service until the 

next exterior calendar day mechanical 

inspection when found at such an 

inspection. The proposal would require 

a railroad to determine through data, 

analysis, or actual testing the number of 

inoperative or ineffective air 

compressors that could be in an MU 

train set without compromising the 

integrity or safety of the train set based 

on the size and type of train and the 

train’s operating profile. The railroad 

would be required to submit the 

maximum number of air compressors 

permitted to be inoperative or 

ineffective on its various trains to FRA 

before it could begin operation under 

the proposed provision and would be 

required to retain and make available to 

FRA any data or analysis relied on to 

make those determinations. The 

proposal would also require a qualified 

maintenance person (QMP) to verify the 

safety and integrity of any train 

operating with inoperative or ineffective 

air compressors before the equipment 

continues in passenger service. In 

addition, the proposal requires 

notification to the train crew of any 

inoperative or ineffective air 

compressors and requires that a record 

be maintained of the defective 

condition. FRA believes these proposed 

provision will ensure the safety of 

passenger operations while providing 

the railroads additional flexibility in 

handling defective or inoperative 

equipment. 

FRA seeks comment from interested 

parties regarding any safety concerns 

related to the proposed flexibility for 

continuing to operate MU train sets with 

a minimal number of inoperative air 

compressors for an additional calendar 

day. 

B. Pneumatic Testing of Locomotive 

Main Reservoirs 

The current regulations contained at 

49 CFR 229.31(a) relating to main 

reservoir tests requires that a hydrostatic 

(water) test of a main reservoir be 

conducted before it is originally placed 

in service or before an existing main 

reservoir is placed back in service after 

being drilled as provided for in 

§ 229.31(c). At the Working Group and 

Task Force meetings, the manufacturers 

of main reservoirs requested the ability 

to conduct a pneumatic (air) test of the 

reservoirs in lieu of the currently 

required hydrostatic test. The request 

was limited to providing relief only for 

those tests required before a main 

reservoir is originally placed in service 

and after an existing main reservoir is 

drilled. 

The companies that manufacture 

reservoirs for the rail industry, whether 

the reservoir is utilized as a main 

reservoir or reservoir(s) utilized for 

other purposes, must have an American 

Society of Mechanical Engineers 

(ASME) certification. The reservoirs, 

both main and other, manufactured by 

these companies are designed and 

certified to meet the requirements of the 

ASME Boiler and Pressure Vessel Code. 

In addition, reservoirs utilized as main 

reservoirs on locomotives are also 

manufactured and certified to meet the 

requirements for such contained in part 

229 of the Federal regulations. 

Currently, all passenger car reservoirs 

are pneumatically tested after 

fabrication and before the application of 

an interior protective coating. This 

process is utilized so that reservoirs may 

be repaired if the reservoir does not pass 

the initial test requirements. If the 

interior protective coating is applied 

prior to testing, any weld repairs cannot 

be performed, as the interior coating 

would be damaged. 

The rationale for originally requiring 

that the main reservoirs be tested 

hydrostatically was based on the safety 

concerns should a main reservoir 

catastrophically fail during the testing. 

The likelihood of injury is minimized 

by having the reservoir filled with a 

liquid rather than air. However, since 

the original drafting of the locomotive 

regulations, manufacturers of reservoirs 

have implemented and developed both 

equipment and procedures to ensure 

that test personnel are adequately 

shielded when conducting the testing. 

The manufacturers have been 

performing pneumatic testing on 

reservoir for years and FRA is not aware 

of any injury related to such testing in 

manufacturer-controlled facilities. Thus, 

the safety concerns originally attached 

to pneumatic testing have been 

minimized, if not eliminated, when 

conducted at properly equipped 

manufacturer facilities. 

The ASME code currently utilized by 

all manufacturers of main reservoirs 

allows for the pneumatic testing of the 

reservoirs when the introduction of 

liquid cannot be tolerated. The 

introduction of water to perform 

hydrostatic testing on main reservoirs 

creates a problem because if the liquid 

is not completely removed and the 

reservoir interior completely dried, the 

moisture results in poor adhesion or a 

lower coating of film than required. This 

condition has the potential of causing 

interior corrosion and premature failure 

of the reservoir. Thus, rather than 

creating this potential, FRA agrees with 

the recommendation of the RSAC that it 

would be both safer and more efficient 

to permit the manufacturers of main 

reservoirs to utilize pneumatic testing to 

meet the requirements contained in 49 

CFR 229.31. Consequently, FRA is 

73074 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

proposing to permit pneumatic testing 

of newly manufactured main reservoirs 

and reservoirs that are newly drilled 

and tested at a manufacturer’s facility. 

It should be noted that FRA is 

limiting the ability to conduct 

pneumatic testing of the main reservoirs 

at only those facilities with appropriate 

safeguards in place to ensure the safety 

of the personnel conducting the testing. 

After a reservoir is installed on a 

locomotive, FRA believes that 

hydrostatic testing would be the only 

testing method that adequately ensures 

the safety and protection of the 

personnel that are performing the test or 

working near the installed reservoir. In 

order to make this intent clear, FRA has 

modified the language of the 

recommendation made by the RSAC. 

FRA has added language to at the end 

of proposed paragraph (c) of § 229.31 to 

make clear that pneumatic testing of a 

reservoir currently in use and newly 

drilled may only be conducted by a 

manufacturer of main reservoirs in a 

safe environment. In other 

circumstances, the proposal makes clear 

a hydrostatic test of the reservoir must 

be conducted. 

FRA seeks comment and information 

from interested parties regarding the 

proposal to permit the manufacturers of 

main reservoirs to pneumatically test 

the reservoirs to meet the requirements 

of 49 CFR part 229. Specifically, FRA 

seeks comment or information on the 

following: 

1. Are there any safety hazards or any 

known injuries or accidents related to 

conducting pneumatic testing as 

proposed in this notice? 

2. Are there any additional 

restrictions or requirements that should 

be imposed when conducting 

pneumatic testing of main reservoirs as 

proposed in this notice? 

3. Are the estimated economic costs 

and benefits associated with proposed 

flexibility accurate? 

C. Design of New Passenger Equipment. 

The manufacturers and railroad 

representative on the Working Group 

and Task Force sought clarification of 

the provision contained in 49 CFR 

238.231(b). This section requires the 

brake systems on equipment ordered on 

or after September 8, 2000, or placed in 

service on or after September 9, 2002, to 

be designed so as not to require an 

inspector to go on, under, or between 

the equipment to observe the brake 

actuation or release. At the Task Force 

meetings, FRA made clear that this 

requirement is a design standard and 

was not intended to prohibit or limit the 

conduct of brake or mechanical 

inspections required to be conducted in 

part 238. FRA realizes that in order to 

perform many of the brake and 

mechanical inspections required by the 

regulations an inspector will have to go 

on, under, or between the equipment. 

FRA has acknowledged this practice 

and railroads have effectively conducted 

these types of inspections in this 

manner for decades. 

The plain language of § 238.231(b) 

requires new equipment to be designed 

to allow direct observation of the brake 

actuation and release without fouling 

the equipment. The preamble to the 

final rule discusses alternative design 

approaches using some type of piston 

travel indicator or piston cylinder 

pressure indicator on equipment whose 

design makes it impossible to meet this 

requirement. See 64 FR 25612 (May 12, 

1999). FRA’s intent was that this piston 

travel indicator could be a device 

similar to the definition of ‘‘actuator’’

contained in § 238.5 or some sort of 

piston cylinder pressure indicator. The 

rule text and related preamble make 

clear that the actuation and release of 

the brake (or a direct indication of such) 

be able to be observed without an 

inspector going on, under, or between 

the equipment. FRA does not believe 

that truck pressure indicators (which 

provide no information on piston travel 

or piston cylinder pressure) meet this 

requirement. FRA recognized that the 

envisioned ‘‘indicators’’ discussed in 

the preamble to § 238.231(b) may be 

ahead of the technological curve for 

passenger equipment currently being 

delivered and that which may be 

delivered in the near future. Thus, FRA 

noted its willingness to discuss interim 

inspection protocols in lieu of applying 

piston travel indicators on such 

equipment. 

The Task Force discussed the issue in 

detail as a number of railroads were in 

the process of receiving new equipment, 

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

does not allow observation of the brake 

actuation and release of the brake 

without going on, under, or between the 

equipment. Several railroads and 

manufacturers noted that the type of 

piston travel indicators envisioned by 

FRA to meet the § 238.231(b) 

requirement were not currently 

available and even if they could be 

developed in the near future, they 

would likely be a maintenance problem 

and unreliable. Representatives of rail 

labor also questioned the viability and 

need for the type of piston travel 

indicators discussed in the preamble to 

the final rule. These participants did not 

believe that any type of mechanical 

indicator should take the place of direct 

visual inspection of the brake system 

components. Consequently, the 

members of the Task Force believed that 

the best approach to the issue was to 

provide additional inspection protocols 

for new equipment that are designed in 

a manner that makes observation of the 

actuation and release of the brakes 

impossible from outside the plane of the 

equipment rather than mandating the 

use of untested and potentially 

unreliable piston travel indicators. 

FRA and the Task Force believe that 

the brake system and mechanical 

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

adequately inspected through the daily 

brake and mechanical inspections 

currently required in the Federal 

regulations; provided, appropriate blue 

signal protections are established for the 

personnel required to perform such 

inspections. These daily inspections 

permit a visual inspection of a large 

percentage of the brake and mechanical 

components and over a period of a few 

days all portions of the brake system 

and mechanical components will be 

visually observed. However, because the 

necessary design of some new 

equipment makes the daily inspections 

of the equipment more difficult, does 

not permit visual observation of the 

brake actuation and release from outside 

the plane of the vehicle, and because no 

reliable mechanical device is currently 

available to provide a direct indication 

of such, FRA and the Task Force believe 

it is necessary to adopt additional 

inspection protocols for this type of 

equipment. 

The inspection regimen being 

proposed in this notice will be 

applicable to equipment placed in 

service on or after September 9, 2002, 

the design of which does not permit 

actual visual observation of the brake 

actuation and release. The proposed 

requirements related to this type of 

equipment are similar to those 

contained in a FRA Safety Board letter 

dated October 19, 2004, granting that 

portion of the Massachusetts Bay 

Transportation Authority’s (MBTA) 

waiver petition seeking relief from the 

requirements of § 238.231(b) for 28 

Kawasaki bi-level coaches. See Docket 

Number FRA–2004–18063. The 

proposed provisions would require such 

equipment to be equipped with either 

piston travel indicators or brake 

indicators as defined in § 238.5. The 

equipment would also be required to 

receive a periodic brake inspection by a 

QMP at intervals not to exceed five inservice days and the proposed 

inspection would have to be performed 

while the equipment is over an 

inspection pit or on a raised track. In 

addition, the railroad performing the 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73075 

proposed inspection would be required 

to maintain a record of the inspection 

consistent with the existing record 

requirements related to Class I brake 

tests. FRA believes that these proposed 

inspection requirements will ensure the 

safety and proper operation of the brake 

system on equipment which does not 

permit actual visual observation of the 

brake actuation and release without 

fouling the vehicle. 

D. Safety Appliances 

Several issues regarding the 

attachment of safety appliances on 

passenger equipment have arisen over 

the last decade. These issues generally 

involve the method by which safety 

appliances on existing passenger 

equipment are required to be attached, 

either directly to the car or locomotive 

body or by use of a bracket or support. 

It has come to FRA’s attention, due to 

the investigation of these issues, that a 

significant number of existing passenger 

cars and locomotives contain some 

safety appliances that are attached to the 

equipment by some form of welding, 

typically the welding of a bracket or 

plate to which the safety appliance is 

then mechanically fastened. In the last 

two decades, manufacturers of certain 

passenger equipment have used welding 

on some of the safety appliance 

arrangements of newly built equipment. 

Some segments of the passenger 

industry believe welding of these 

arrangements is acceptable and have 

sought a review of FRA’s historical 

prohibition on the welding of safety 

appliance arrangements. These parties 

believe that new and improved welding 

technology, the implementation of new 

tracking standards, proper quality 

control, and historical documentation 

support the use of welding on safety 

appliance arrangements. 

Historically, FRA has required that 

safety appliances be mechanically 

fastened to the car structure. FRA has 

also historically required that any 

brackets or supports applied to a car 

structure solely for the purpose of 

securing a safety appliance must be 

mechanically fastened to the car body. 

See MP&E Technical Bulletin 98–14 

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

the weldment of safety appliances and 

their supports is based on its 

longstanding administrative 

interpretation of the regulatory ‘‘manner 

of application’’ provisions contained in 

49 CFR part 231 which require that 

safety appliances be ‘‘securely fastened’’

with a specified mechanical fastener. 

See e.g., 49 CFR §§ 231.12(c)(4); 

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

FRA’s prohibition on the welding of 

safety appliances is based on its belief 

that welds are not uniform, are subject 

to failure, and are very difficult to 

inspect to determine if the weld is 

broken or cracked. Mechanical 

fasteners, by contrast, are generally easy 

to inspect and tend to become 

noticeably loose prior to failure. 

Generally, FRA’s longstanding 

interpretation of the regulation 

prohibiting the welding of safety 

appliances has not been seriously 

questioned or opposed since its 

inception. Virtually all railcars 

manufactured for use in the United 

States have their safety appliances and 

their safety appliance brackets and 

supports mechanically fastened to the 

car body, unless a specific exception has 

been provided by FRA or the 

regulations. FRA acknowledges that it 

has permitted limited welding of certain 

safety appliances or their brackets and 

supports on locomotives and tanks cars. 

See MP&E Technical Bulletins 98–48 

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

2000, respectively). These exceptions 

were provided because there were no 

other alternative methods available for 

mechanically fastening these safety 

appliance arrangements. 

Currently, freight railroad equipment 

complies with the existing regulations 

and FRA’s interpretation of those 

provisions. Traditionally, FRA has not 

permitted welding of safety appliance 

arrangements on freight equipment. In 

addition, the AAR does not permit the 

welding of safety appliance 

arrangements. FRA continues to believe 

that, except in limited circumstances, 

the safety appliances on freight 

equipment should not be attached with 

welding under any condition. This is 

primarily due to the extreme differences 

in use and inspection between 

passenger and freight equipment. Thus, 

FRA does not intend to permit welded 

safety appliances or their attachment in 

that segment of the industry. 

Consequently, FRA is limiting any relief 

being proposed in this proceeding to 

safety appliance arrangements on 

passenger equipment. 

Although FRA has remained 

consistent in its prohibition on the 

weldment of safety appliances and their 

supports, a significant amount of 

passenger equipment has been 

manufactured and used in revenue 

service for a number of years with safety 

appliances being attached to the car 

body using some form of welding. 

Currently, FRA is aware of 

approximately 3,000 passenger cars or 

locomotives that have safety appliances 

or safety appliance brackets or supports 

welded to the body of the equipment. 

Some units of this equipment were 

introduced into service within the last 

few years; others have been in service 

for more than a decade. Some of the 

3,000 units noted above have been the 

subject of formal waiver requests 

pursuant to the provisions contained in 

49 CFR part 211. See Docket Numbers 

FRA–2000–8588 and FRA–2000–8044. 

In an effort to fully develop the issues 

relating to the welding of safety 

appliances on existing passenger 

equipment, FRA conducted an informal 

safety inquiry and subsequently 

submitted the issue to RSAC in this 

proceeding. On June 17, 2003, a 

informal safety inquiry was held in 

Washington, DC, where all interested 

parties were permitted to express their 

concerns relating to FRA’s long-standing 

interpretation prohibiting welded of 

safety appliance arrangements. 

Representatives from APTA, AAR, 

consultants, manufacturers, and union 

representatives gave presentations or 

provided comments expressing their 

points of interests or concerns. FRA also 

referred the issue to the RSAC process 

in this proceeding, which in turn 

assigned the issue to the mechanical 

Task Force, to aid in developing and 

determining if there is a practical 

application where welding may be 

suitable and to consider methods by 

which FRA could revise or clarify its 

position for future guidance and 

regulatory standards. Although the Task 

Force engaged in productive discussions 

and developed considerable information 

relating to the issue, the Task Force 

could not reach a consensus on any 

recommendation. Consequently, on 

October 27, 2004, FRA withdrew the 

task related to the consideration of 

handling the attachment of safety 

appliances on passenger equipment 

from the RSAC and decided to proceed 

with the development of a regulatory 

proposal unilaterally. 

At the safety inquiry and the 

discussions within the Task Force, 

ATPA and its primary members all 

indicated that FRA needs to provide 

clarity and guidance to the industry 

relating to passenger car safety 

appliance arrangements, particularly in 

the area of attaching brackets and 

supports. FRA has always believed that 

the industry knew exactly what was 

intended by FRA’s interpretation of the 

regulations related to ‘‘mechanical 

fastening.’’ FRA believes that in all 

instances where it has permitted 

welding, the allowance was the direct 

result of not having any another 

available option for attaching the 

required safety appliances. Examples, 

such as tank cars, locomotives, and 

other situations mentioned above, 

indicate that FRA has allowed or 

73076 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

permitted the use of welding in certain 

very limited circumstances. 

FRA considered issues ranging from 

the initial manufacturing stage to the 

actual expected life cycle of a weld and 

the environment in which the 

equipment operates. FRA is cognizant of 

the fact that the inspection of welds is 

at best difficult and potentially costly 

depending on the type of inspection that 

might be required. Moreover, the failure 

mode of welds is very difficult to detect 

visually and the effects of stress and 

fatigue may cause welded applications 

to have higher failure rates towards the 

end of the life cycle of the equipment. 

FRA acknowledges that freight and 

passenger operations involve 

significantly different environments 

from a safety appliance standpoint, and 

likely justifies an allowance for welded 

safety appliance brackets and supports, 

at least on existing equipment, and in 

other instances where the design of a 

vehicle necessitates such use. In most 

cases, passenger equipment is inspected 

on a more regular basis, generally used 

in captive type service, and experiences 

far less coupling and uncoupling 

associated with switching moves 

inherent in freight operations. FRA also 

recognizes that it would be extremely 

costly to the passenger industry to 

require existing equipment to be 

retrofitted with new safety appliances 

when the existing welded attachments 

have not shown a proclivity for failure 

at this time. 

At the informal safety inquiry and 

during the Task Force meetings, FRA 

received information and engaged in 

discussions relating to the following 

issues: 

• The safety implications related to 

the continued use of existing passenger 

equipment with welded safety 

appliances or welded safety appliance 

brackets or supports; 

• Criteria for determining when an 

existing piece of passenger equipment 

with a welded appliance or welded 

bracket or support is defective or unsafe 

or both; 

• Alternative approaches to 

mandatory modification of existing 

equipment (e.g., inspection protocols) 

and the economic implication of any 

suggested approach; 

• Clarification of existing regulatory 

requirements as they relate to the 

welding of safety appliances and their 

brackets or supports; 

• The safety implications and 

standards that should or could be 

addressed, were FRA to consider some 

latitude in allowing existing passenger 

equipment with welded safety 

appliances or welded safety appliance 

supports or brackets, such as: 

• What part or parts of an appliance 

should FRA allow to be welded? 

• What quality control standards 

should apply to the welding process 

(e.g., industry recognized welding 

standards)? 

• What qualifications/training should 

the individual performing the welding 

or inspecting a weld need to possess? 

• How should field or shop repairs or 

both be conducted on equipment with 

welded safety appliances or supports? 

• When should a weld be considered 

defective? 

• What visual and non-destructive 

inspection techniques or industry 

recognized standards are appropriate for 

welds? 

• At what interval should welds be 

inspected? 

• What records, if any, should be 

maintained of these inspections? 

Based on the information and views 

provided at both the informal safety 

inquiry and through the RSAC process, 

FRA continues to believe that 

mechanical fastening provides the best 

method of attaching safety appliance 

arrangements and ensures that the safety 

of railroad employees and the public is 

not compromised. For this reason, FRA 

will continue to require the mechanical 

fastening of safety appliance 

arrangement wherever possible and 

proposes to provide alternative 

solutions for use of welding only on 

existing passenger equipment and in 

circumstances when mechanically 

fastening is not practical due to the 

design of the vehicle. However, FRA 

does agree that there may have been 

some misunderstanding within the 

passenger rail industry with regard to 

safety appliance application and that 

some leeway needs to be provided for 

existing passenger equipment with 

welded safety appliance brackets or 

supports in lieu of retrofitting nearly 

one-third of the fleet. Thus, in this 

NPRM, FRA is proposing to provide 

clarification of the requirements related 

to the attachment of safety appliance 

under 49 CFR part 231. In addition, FRA 

is proposing to permit the continued use 

of existing passenger equipment with 

welded safety appliance brackets or 

supports provided such equipment is 

identified, inspected, and handled in 

accordance with the proposed 

requirements. In developing this 

proposal, FRA weighed and considered 

many different factors and concerns, as 

noted above, relating to welding safety 

appliances and their brackets or 

supports. 

An additional issue raised by APTA 

and its member railroads relates to the 

ability of the industry to develop 

standards relating to the safety 

appliance arrangements on new cars of 

special construction. Throughout the 

Railroad Safety Appliance Standards, 

currently contained in 49 CFR part 231; 

specifically, § 231.12—Passenger-train 

cars with wide vestibules; § 231.13—

Passenger-train cars with open-end 

platforms; § 231.14—Passenger-train 

cars without end platforms; and 

§ 231.23—Unidirectional passengertrain cars adaptable to van-type semitrailer use, there may be inconsistencies 

and/or opportunities for clarification in 

the construction of newly built 

passenger equipment. Many times, it is 

necessary to reference two or more 

sections of 49 CFR part 231 to determine 

if a newly constructed passenger vehicle 

meets the minimum requirements of the 

Federal regulations. However, criteria 

for most of today’s new types of 

passenger car construction are found 

within 49 CFR 231.18—Cars of special 

construction. This results from the fact 

that modern technology in construction 

of car-building often does not lend itself 

to ready application of the current 49 

CFR 231 requirements. Rather, the 

designer must adapt several different 

requirements to meet as closely as 

possible construction of specific safety 

appliance arrangements in order to 

obtain compliance. 

Most passenger cars today are 

constructed outside the United States, 

and this has exacerbated the problem of 

varying interpretations of regulations 

and resulting safety appliance 

arrangements. At times, different 

requirements are applied to cars of 

similar design where both could have 

been constructed in the same manner. 

Substantial resources are spent on a 

regular basis by all parties concerned in 

review sessions to determine if a car is 

in compliance prior to construction; and 

even when the cars are delivered, 

problems have arisen. 

In an attempt to limit these problems, 

FRA is proposing a method by which 

the industry may request approval of 

safety appliance arrangements on new 

equipment considered to be cars of 

special construction under 49 CFR part 

231. The proposal would permit the 

industry to develop standards to address 

many of the new types of passenger 

equipment introduced into service. The 

proposal would require these standards, 

and supporting documentation to be 

submitted to FRA for agency approval 

pursuant to the special approval process 

already contained in the regulation. The 

proposal makes clear that any approved 

standard would be enforceable against 

any person who violates or causes the 

violation of the approved standards and 

that the penalty schedule contained in 

Appendix A to 49 CFR part 231 would 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73077 

be used as guidance in assessing any 

applicable civil penalty. The goal of this 

proposal is to develop consistent safety 

appliance standards for each new type 

of passenger car not currently identified 

in the Federal regulations that ensures 

the construction of suitable safety 

appliance arrangements in compliance 

with 49 CFR part 231. FRA believes the 

proposal will reduce or eliminate 

reliance upon criteria for cars of special 

construction, will improve 

communication of safety appliance 

requirements to the industry, and will 

facilitate regulatory compliance where 

clarification or guidance is necessary. 

Portions of the proposal relating to 

new passenger equipment are already 

progressing. By letter dated September 

2, 2005, FRA requested APTA to 

determine if it is feasible to form a 

group to specifically develop potential 

safety appliance standards for newly 

manufactured passenger equipment and 

provide guidance where existing 

Federal regulations are not specific to 

the design of a passenger car or 

locomotive. On October 11, 2005, APTA 

informed FRA that it is willing to 

undertake this effort and is tentatively 

planning its initial meeting in the 

beginning of 2006. FRA believes this 

approach provides an excellent avenue 

to take advantage of the knowledge and 

expertise possessed by rail operators 

and equipment manufacturers when 

considering safety appliance 

arrangements on new passenger 

equipment of unique design. Under the 

provisions proposed in this NPRM, the 

standards and guidance developed by 

this group would need to be submitted 

to and approved by FRA pursuant to the 

special approval provisions contained at 

§ 238.21. 

FRA seeks comments and views from 

interested parties relating to the 

proposed handling of safety appliances 

on both existing and new passenger 

equipment. Specifically, FRA seeks 

information and comment on the 

following: 

• Are there other industry recognized 

standards relating to welding or the 

qualifications of persons conducting 

such welding that should be considered 

by FRA? 

• Are the welding standards 

referenced by FRA accurately identified 

and are they the most recent version of 

the standards? 

• Can a standard be developed for 

determining when a safety appliance 

bracket or support to which a safety 

appliance is mechanically attached 

becomes part of the car body? 

• Should it be based on the linear 

amount of weld? 

• To what must the support or 

bracket be welded? 

• Is there a particular type of weld 

that should be used? 

• Are there specific qualifications or 

standards related to performing such 

welds? 

• Are the cost estimates associated 

with FRA’s proposal relating to existing 

equipment accurate? 

• Is there any other relevant 

information that should be considered 

by FRA? 

E. Securement of Unattended 

Equipment 

At FRA’s suggestion, the Task Force 

considered issues related to the 

securement of unattended equipment. 

FRA noted its concern that existing part 

238 failed to adequately address either 

the inspection of hand or parking brakes 

or the issues related to the securement 

of unattended equipment. FRA believes 

that the rationale for addressing these 

issues on freight operations is equally 

applicable to passenger operations. The 

preamble to the final rule related to 49 

CFR part 232 contains an in-depth 

discussion of the need to address these 

issues. See 66 FR 4156–58 (January 17, 

2001). The approach proposed in this 

proceeding is also consistent with the 

guidance contained in FRA Safety 

Advisory 97–1. See 62 FR 49046 

(September 15, 1997). Further, FRA is 

aware of several incidents on passenger 

and commuter operation involving the 

running away or inadvertent movement 

of unattended equipment. 

Using the provisions contained in the 

freight power brake regulations at 49 

CFR part 232 as a guideline, the Task 

Force developed a recommendation to 

address these outstanding issues raised 

by FRA. As passenger train consists are 

much shorter and do not possess the 

tonnage associated with freight trains, 

the Task Force’s recommendation 

modified the provisions contained in 49 

CFR part 232 to make them more readily 

applicable to passenger operations. The 

recommendations developed by the 

Task Force and submitted by the full 

RSAC are consistent with and based 

directly on current passenger industry 

practice. Thus, in FRA’s view, they will 

have no economic or operational impact 

on passenger operations but will ensure 

that these best practices currently 

adopted by the industry are followed 

and complied with by making them part 

of the Federal regulations. 

The Task Force presented its 

recommendation on these issues to the 

full Working Group on September 7, 

2005. The Working Group reached 

consensus on the recommendation and 

presented the recommendation to the 

full RSAC and received unanimous 

concurrence from such on October 11, 

2005. FRA has reviewed the 

recommendations of the full RSAC and 

has adopted them without change in 

this proposal. 

In this NPRM, FRA proposes a set of 

requirements to address the securement 

of unattended equipment. The proposed 

provisions will require that unattended 

equipment be secured by applying a 

sufficient number of hand or parking 

brakes to hold the equipment and will 

require railroads to develop and 

implement a process or procedure to 

verify that the applied hand or parking 

brakes will hold the equipment. The 

proposal will also prohibit a practice 

known as ‘‘bottling the air’’ in a 

standing cut of cars. The practice of 

‘‘bottling the air’’ occurs when a train 

crew sets out cars from a train with the 

air brakes applied and the angle cocks 

on both ends of the train closed, thus 

trapping the existing compressed air 

and conserving the brake pipe pressure 

in the cut of cars they intend to leave 

behind. This practice has the potential 

of causing, first, an unintentional 

release of the brakes on these cars and, 

ultimately, a runaway. A full discussion 

of the hazards related to this practice is 

contained in the preamble to the final 

rule related to freight power brakes. See 

66 FR 4156–57. Virtually all railroads 

prohibit this practice in their operating 

rules, thus FRA does not believe any 

burden is being imposed on the 

railroads by including it in this 

proposal. 

The NPRM also proposes a minimum 

number of hand or parking brakes that 

must be applied on an unattended 

locomotive consist or train. Due to the 

relatively short length and low tonnage 

associated with passenger trains, FRA 

does not believe that the more stringent 

provisions contained in § 232.103(n)(3) 

are necessary in a passenger train 

context. Thus, the proposal would 

require that at least one hand or parking 

brake be applied in these circumstances; 

however, the number of applied hand or 

parking brakes will vary depending on 

the process or procedures developed 

and implemented by each covered 

railroad. In addition, this proposal also 

contains provisions requiring railroads 

to develop and implement procedures 

for securing locomotives not equipped 

with a hand or parking brake and 

instructions for securing any locomotive 

left unattended. As noted previously, 

FRA is not aware of any railroad which 

does not already have the proposed 

procedures or processes in place. Thus, 

FRA believes that these proposed 

requirements will impose no burden on 

73078 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

passenger operations covered by 49 CFR 

part 238. 

In addition to addressing specific 

issues relating to securing unattended 

equipment, this NPRM also incorporates 

and adopts the industry’s best practices 

related to the inspection and testing of 

hand and parking brakes. FRA proposes 

to require that the hand or parking on 

other than MU locomotives be inspected 

no less frequently than every 368 days 

and that a record (either stencil, blue 

card, or electronic) be maintained and 

provided to FRA upon request. The 

proposal would also require the 

application and release of the hand or 

parking brake at each periodic 

mechanical inspection of passenger cars 

and unpowered vehicles under 

§ 238.307 and would require a complete 

inspection of these components every 

368 days, with a record being 

maintained of this annual inspection. 

The inspection and testing intervals as 

well as the stenciling and record 

keeping requirements proposed in this 

document are consistent with the 

current practices in the industry and 

will impose no additional burden on the 

industry. 

V. Section-by-Section Analysis 

Proposed Amendments to 49 CFR Part 

229 

Section 229.5 Definitions 

FRA is proposing a technical 

clarification to the definition of ‘‘MU 

locomotive’’ contained in this section. 

Existing § 229.5 contains a number of 

definitions to define different types of 

locomotives covered by the various 

provisions contained in part 229. These 

include the general definition of 

‘‘locomotive’’ as well as various types of 

locomotives including: ‘‘control cab 

locomotive,’’ ‘‘DMU locomotive,’’ and 

‘‘MU locomotive.’’ At the Task Force 

meetings representatives of various 

railroads and equipment manufacturers 

expressed concern over these 

definitions, contending that they were 

confusing and contained some overlap 

making it difficult to determine which 

category a particular locomotive fell 

within. Of particular concern was the 

current definition of ‘‘MU locomotive.’’

The definition of ‘‘MU locomotive’’

was recently reissued in its full length 

when the final rule on Locomotive 

Event Recorders was published on June 

30, 2005. See 70 FR 37939. 

Subparagraph (2) of the current 

definition identifies an MU locomotive 

as ‘‘a multiple unit operated electric 

locomotive * * * (2) without propelling 

motors but with one or more control 

stands.’’ This portion of the MU 

locomotive definition is identical to the 

definition of ‘‘control cab locomotive.’’

In an effort to add clarity and to 

definitively distinguish an MU 

locomotive from a control cab 

locomotive, FRA proposes to add some 

limiting language to the definition of 

what constitutes an MU locomotive. 

Historically, FRA has only considered a 

locomotive without propelling motors to 

be an MU locomotive if it has the ability 

to pick up primary power from a third 

rail or a pantograph. Consequently, FRA 

is proposing to add this language to the 

existing definition of MU locomotive as 

it is consistent with FRA’s historical 

enforcement and interpretation of the 

regulation. 

Section 229.31 Main Reservoir Tests 

FRA is proposing to amend 

paragraphs (a) and (c) of this section to 

provide the manufacturers of main 

reservoirs the option to test main 

reservoirs pneumatically rather than 

hydrostatically as currently mandated. 

The proposed modification would 

permit a main reservoir to receive a 

pneumatic test before it is originally 

placed in service or before an existing 

main reservoir is placed back in service 

after being drilled. As discussed in 

detail in section B of the Technical 

Background portion of this document, 

the ASME code currently utilized by all 

manufacturers of main reservoirs allows 

for the pneumatic testing of the 

reservoirs when the introduction of 

liquid cannot be tolerated. The 

introduction of water to perform 

hydrostatic testing on main reservoirs 

creates a problem because if the liquid 

is not completely removed and the 

reservoir interior completely dried, the 

moisture results in poor adhesion or a 

lower coating of film than required. This 

condition has the potential of causing 

interior corrosion and premature failure 

of the reservoir. 

The rationale for originally requiring 

that the main reservoirs be tested 

hydrostatically was based on the safety 

concerns should a main reservoir 

catastrophically fail during the testing. 

The likelihood of injury is minimized 

by having the reservoir filled with a 

liquid rather than air. However, since 

the original drafting of the locomotive 

regulations, manufacturers of reservoirs 

have implemented and developed both 

equipment and procedures to ensure 

that test personnel are adequately 

shielded when conducting the testing. 

The manufacturers have been 

performing pneumatic testing on 

reservoirs for years and FRA is not 

aware of any injury related to such 

testing in manufacturer-controlled 

facilities. Thus, the safety concerns 

originally attached to pneumatic testing 

have been minimized, if not eliminated, 

when conducted at properly equipped 

manufacturer facilities. 

In addition to the safety benefits 

related to pneumatic testing, FRA 

recognizes that all passenger car main 

reservoirs are pneumatically tested after 

fabrication and before the application of 

an interior protective coating. This 

process is utilized so that reservoirs may 

be repaired if the reservoir does not pass 

the initial test requirements. If the 

interior protective coating were to be 

applied prior to testing, any weld 

repairs could not be performed, as the 

interior coating would be damaged. 

Thus, in recognition of current industry 

practice and in an effort to provide 

compliance options that are beneficial 

from a safety perspective, FRA agrees 

with the recommendation of the RSAC 

that it would be both safer and more 

efficient to permit the manufacturers of 

main reservoirs to utilize pneumatic 

testing to meet the requirements 

contained in paragraphs (a) and (c) of 

this section. Consequently, FRA is 

proposing to permit pneumatic testing 

of newly manufactured main reservoirs 

and reservoirs that are newly drilled 

and tested at a manufacturer’s facility. 

It should be noted that FRA is 

limiting the ability to conduct 

pneumatic testing of the main reservoirs 

to only those facilities with appropriate 

safeguards in place to ensure the safety 

of the personnel conducting the testing. 

After a reservoir is installed on a 

locomotive, FRA believes that 

hydrostatic testing would be the only 

testing method that adequately ensures 

the safety and protection of the 

personnel that are performing the test or 

working near the installed reservoir. In 

order to make this intent clear, FRA has 

modified the language of the 

recommendation submitted to FRA from 

the RSAC. FRA has added language to 

the end of proposed paragraph (c) to 

make clear that pneumatic testing of a 

reservoir currently in use and newly 

drilled may only be conducted by a 

manufacturer of main reservoirs in a 

suitably safe environment. In other 

circumstances, the proposal makes clear 

a hydrostatic test of the reservoir must 

be conducted. 

As noted previously, FRA seeks 

comment and information from 

interested parties regarding the proposal 

to permit the manufacturers of main 

reservoirs to pneumatically test the 

reservoirs to meet the requirements of 

49 CFR part 229. Specifically, FRA 

seeks comment or information on the 

following: 

1. Are there any safety hazards or any 

known injuries or accidents related to 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73079 

conducting pneumatic testing as 

proposed in this notice? 

2. Are there any additional 

restrictions or requirements that should 

be imposed when conducting 

pneumatic testing of main reservoirs as 

proposed in this notice? 

3. Are the estimated economic costs 

and benefits associated with proposed 

flexibility accurate? 

Section 229.47 Emergency Brake Valve 

Section 229.137 Sanitation, General 

Requirements 

FRA is proposing to make a technical 

clarification to paragraph (b) of § 229.47 

and paragraph (b)(1)(iv) of § 229.137 in 

order to make these sections consistent 

with the new definition of ‘‘DMU 

locomotive.’’ The recently published 

final rule on Locomotive Event 

Recorders added the definition of ‘‘DMU 

locomotive’’ to 49 CFR part 229. See 70 

FR 37920 (June 30, 2005). This 

definition was added to part 229 in 

order to specifically identify dieselpowered multiple unit locomotives. 

These types of locomotives are just 

starting to be used by a small number 

of passenger railroads and FRA wants to 

be sure that they are adequately 

addressed by the safety standards 

contained in part 229. As these types of 

locomotives are fairly unique, they do 

not fit cleanly within the regulations as 

they pertain to traditional locomotives 

and MU locomotives. In some instances 

they are treated as traditional 

locomotives and in others they are 

treated as MU locomotives. In an effort 

to clarify the applicability of various 

provisions contained in part 229, FRA is 

proposing to amend §§ 229.47 and 

229.137 to specifically state that DMU 

locomotives are covered by these 

provisions. These proposed 

clarifications are consistent with FRA’s 

historical application of the regulations 

to DMU locomotives. 

Proposed Amendments to 49 CFR Part 

238 

Section 238.5 Definitions 

FRA is proposing to make two 

clarifying amendments to the 

definitions section contained in part 238 

by revising the definition of ‘‘actuator’’

currently contained in regulation and by 

adding a new definition for ‘‘piston 

travel indicator.’’ Based on discussions 

of the Task Force and concerns raised 

by other parties it appears the term 

‘‘actuator’’ used by FRA in the 

Passenger Equipment Safety Standards 

final rule is a term that many members 

of the passenger industry associate and 

use to identify a specific self-contained 

brake system component that typically 

consists of a cylinder, piston, and piston 

rod. FRA was not intending to identify 

this brake system component when it 

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

the original regulation. FRA notes that 

the term actuator is used in the 

definition of ‘‘piston travel’’ in this 

section to refer to the brake system 

component described above. 

In order to prevent and limit any 

confusion on the part of the regulated 

community, FRA agrees with the 

RSAC’s recommendation to modify the 

definition of ‘‘actuator’’ to describe the 

brake system component to which the 

term has traditionally been attached and 

which is what the term refers to in the 

definition of ‘‘piston travel.’’ In 

addition, FRA accepts the RSAC’s 

recommendation to add a new term to 

part 238 to describe the device 

originally defined as an ‘‘actuator.’’

Therefore, FRA is proposing to add the 

term ‘‘piston travel indicator’’ to 

describe a device directly activated by 

the movement of the brake cylinder 

piston, the disc actuator, or the tread 

brake unit cylinder piston that provides 

an indication of piston travel. FRA 

further proposes for the term ‘‘piston 

travel indicator’’ to replace the term 

‘‘actuator’’ in § 238.313(g)(3). 

Section 238.17 Movement of Passenger 

Equipment With Other Than Power 

Brake Defects 

FRA is proposing to make a 

conforming change in paragraph (b) of 

this section to acknowledge the 

flexibility being proposed in 

§ 238.303(e)(17) of this NPRM relating to 

inoperative or ineffective air 

compressors on MU passenger 

equipment. As discussed in detail above 

in the Technical Background portion of 

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

below, FRA is proposing to permit 

certain MU passenger equipment to 

continue to be used in passenger service 

until the next exterior calendar day 

mechanical inspection. 

Section 238.21 Special Approval 

Procedures 

FRA is proposing conforming changes 

to paragraphs (a) and (c) of this section 

to recognize the requirements in the 

proposed provisions relating to safety 

appliances on both existing and new 

passenger equipment contained in 

§§ 238.229 and 238.230 of this notice. 

These conforming changes recognize the 

provisions of those sections that require 

a railroad to obtain FRA approval of 

welded safety appliance attachment or 

of an industry-wide standard relating to 

safety appliance arrangements on new 

passenger equipment of unique design. 

Section 238.229 Safety Appliances— 

General 

In this section, FRA is proposing 

incorporation and clarification of its 

long-standing administrative 

interpretations regarding the attachment 

of safety appliances and safety 

appliance brackets and supports. FRA is 

also proposing an inspection program 

for permitting existing passenger 

equipment to remain in service in lieu 

of requiring retro-fitting of the 

equipment to eliminate welded brackets 

or supports. FRA is proposing these 

provisions unilaterally and did not seek 

a recommendation or concurrence from 

RSAC. These issues were discussed 

above in the Technical Background 

section of the preamble to the proposed 

rule. As FRA sees no benefit in 

reproducing the entire discussion here, 

interested parties should refer to that 

discussion when considering the 

provisions proposed in this section. 

Historically, FRA has required that 

safety appliances be mechanically 

fastened to the car structure. FRA has 

also historically required that any 

brackets or supports applied to a car 

structure solely for the purpose of 

securing a safety appliance must be 

mechanically fastened to the car body. 

See MP&E Technical Bulletin 98–14 

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

the weldment of safety appliances and 

their supports is based on its 

longstanding administrative 

interpretation of the regulatory ‘‘manner 

of application’’ provisions contained in 

49 CFR part 231 which require that 

safety appliances be ‘‘securely fastened’’

with a specified mechanical fastener. 

See e.g., 49 CFR §§ 231.12(c)(4); 

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

FRA’s prohibition on the welding of 

safety appliances is based on its belief 

that welds are not uniform, are subject 

to failure, and are very difficult to 

inspect to determine if the weld is 

broken or cracked. Mechanical 

fasteners, by contrast, are generally easy 

to inspect and tend to become 

noticeably loose prior to failure. 

Generally, FRA’s longstanding 

interpretation of the regulation 

prohibiting the welding of safety 

appliances has not been seriously 

questioned or opposed since its 

inception. Virtually all railcars 

manufactured for use in the United 

States have their safety appliances and 

their safety appliance brackets and 

supports mechanically fastened to the 

car body, unless a specific exception has 

been provided by FRA or the 

regulations. FRA acknowledges that it 

has permitted limited welding of certain 

safety appliances or their brackets and 

73080 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

supports on locomotives and tanks cars. 

See MP&E Technical Bulletins 98–48 

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

2000, respectively). These exceptions 

were provided because there were no 

other alternative methods available for 

mechanically fastening these safety 

appliance arrangements. 

Although FRA has remained 

consistent in its prohibition on the 

weldment of safety appliances and their 

supports, a significant amount of 

passenger equipment has been 

manufactured and used in revenue 

service for a number of years with safety 

appliances being attached to the car 

body using some form of welding. 

Currently, FRA is aware of 

approximately 3,000 passenger cars or 

locomotives that have safety appliances 

or safety appliance brackets or supports 

welded to the body of the equipment. 

Some units of this equipment were 

introduced into service within the last 

few years; others have been in service 

for more than a decade. Some of the 

3,000 units noted above have been the 

subject of formal waiver requests 

pursuant to the provisions contained in 

49 CFR part 211. See Docket Numbers 

FRA–2000–8588 and FRA–2000–8044. 

FRA considered issues ranging from 

the initial manufacturing stage to the 

actual expected life cycle of a weld and 

the environment in which the 

equipment operates. FRA is cognizant of 

the fact that the inspection of welds is 

at best difficult and potentially costly 

depending on the type of inspection that 

might be required. Moreover, the failure 

mode of welds is very difficult to detect 

visually and the effects of stress and 

fatigue may cause welded applications 

to have higher failure rates towards the 

end of the life cycle of the equipment. 

FRA acknowledges that freight and 

passenger operations involve 

significantly different environments 

from a safety appliances standpoint, and 

likely justifies an allowance for welded 

safety appliance brackets and supports, 

at least on existing equipment, and in 

other instances where the design of a 

vehicle necessitates such use. In most 

cases, passenger equipment is inspected 

on a more regular basis, generally used 

in captive type service, and experiences 

far less coupling and uncoupling 

associated with switching moves 

inherent in freight operations. FRA also 

recognizes that it would be extremely 

costly to the passenger industry to 

require existing equipment to be 

retrofitted with new safety appliances 

when the existing welded attachments 

have not shown a proclivity for failure 

at this time. 

Based on the information and views 

provided at both the special safety 

inquiry and through the RSAC process, 

FRA continues to believe that 

mechanical fastening provides the best 

method of attaching safety appliance 

arrangements and ensures that the safety 

of railroad employees and the public are 

not compromised. For this reason, FRA 

will continue to require the mechanical 

fastening of safety appliance 

arrangement wherever possible and 

proposes to provide alternative 

solutions for use of welding only on 

existing passenger equipment and in 

circumstances when mechanically 

fastening is not practical due to the 

design of the vehicle. However, FRA 

does agree that there may have been 

some misunderstanding within the 

passenger rail industry with regard to 

safety appliance application and that 

some leeway needs to be provided for 

existing passenger equipment with 

welded safety appliance brackets or 

supports in lieu of the costly option of 

retrofitting nearly one-third of the fleet. 

With these thoughts in mind and based 

on information and discussions 

provided at the informal safety inquiry 

and the Task Force meeting, FRA is 

proposing both clarification of the 

existing requirements related to safety 

appliance attachment and is providing a 

method to safely handle the inspection 

and continued operation of existing 

passenger equipment with welded 

safety appliances or welded safety 

appliance brackets or supports. 

Paragraphs (a) and (b) of this 

proposed section contain FRA’s longstanding administrative interpretations 

prohibiting the use of welding as a 

means of attaching either a safety 

appliance or a safety appliance bracket 

or support. Proposed paragraph (a) 

makes clear that all passenger 

equipment continues to be subject to the 

statutory provisions contained in 49 

U.S.C. chapter 203 as well as the 

regulatory provisions contained in 49 

CFR part 231. Proposed paragraph (b) 

incorporates FRA’s long-standing 

administrative interpretations regarding 

the welding of safety appliances and 

their supports. This paragraph makes 

clear that safety appliances and their 

brackets or supports are to be 

mechanically fastened to the car body 

and specifically states that welding as a 

method of attachment is generally 

prohibited. This proposed paragraph 

also explains that FRA permits the 

welding of a brace or stiffener used in 

connection with mechanically fastened 

safety appliance and provides a 

definition of what constitutes a ‘‘brace’’

or ‘‘stiffener’’ in these arrangements. 

Paragraph (c) contains proposed 

exceptions to FRA’s general prohibition 

related to welding safety appliances. 

Proposed paragraph (c)(1) provides an 

exception for passenger equipment 

placed in service prior to January 1, 

2007, equipped with a safety appliance 

that is mechanically fastened to a 

bracket or support which is welded to 

the vehicle. Rather than require the 

retrofitting of existing equipment that 

currently contain safety appliance 

brackets or supports that are attached to 

the equipment by welding, FRA 

proposes to permit the equipment to 

remain in service provided that the 

equipment is identified, inspected, and 

handled for repair in accordance with 

the provisions proposed in paragraphs 

(e) through (k) of this section. FRA 

believes the proposed identification and 

inspection plan will ensure the safe 

operation of equipment currently in 

service. 

Proposed paragraph (c)(2) 

acknowledges the fact that in some 

instances, due to the design of a vehicle, 

safety appliances are required to be 

directly attached to a piece of 

equipment by welding. The proposed 

requirements in this paragraph would 

be applicable to both existing 

equipment (i.e. equipment placed in 

service prior to January 1, 2007) and to 

newly manufactured equipment. The 

proposed provisions would require 

railroads to identify each piece of 

passenger equipment outfitted with a 

safety appliance welded directly to the 

vehicle and would require the railroad 

to provide a detailed rationale 

explaining how the design of the vehicle 

or placement of the safety appliance 

requires the direct welding of the 

appliance to the equipment on 

passenger equipment placed in service 

for the first time on or after January 1, 

2007. This paragraph would require that 

any such safety appliances be inspected 

and handled in accordance with the 

proposed inspection and repair 

provisions contained in paragraphs (g) 

through (k). FRA notes that only the 

specifically identified safety appliances 

would be required to be so inspected 

and handled. 

Proposed paragraph (d) contains 

standards to clarify when a weld on a 

safety appliance is to be considered 

defective. This proposed section makes 

clear that a weld will be considered 

defective if it contains any anomaly, 

regardless of size, that affects the 

designed strength of the weld. This 

section also states that weld will be 

defective if it contains a crack and 

defines a crack as a fracture of any 

visibly discernible length or width. 

Further, this paragraph would require 

that any repairs made to a defective or 

cracked weld would have to be made in 

accordance with the inspection plans 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73081 

and remedial action provisions 

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

section. 

Paragraphs (e) and (f) contain the 

proposed provisions relating to the 

railroad’s identification of all existing 

passenger equipment that contains a 

welded safety appliance bracket or 

support. This listing would be required 

to be submitted to FRA by no later than 

December 31, 2006, and permits 

railroads to update the list if they 

identify equipment after that date. 

These paragraphs would permit 

railroads to exclude certain safety 

appliances from the proposed 

inspection provisions provided the 

railroad fully explains the basis for any 

such exclusion. FRA envisions such 

exclusions to be limited to situations 

where inspection of the weld is 

impossible or in situations where the 

size and quality of a weld are such to 

make inspection unnecessary (i.e. where 

the bracket or support is in essence part 

of the car body). Paragraph (f) makes 

clear that FRA reserves the right to 

disapprove any exclusion proffered by a 

railroad by providing written 

notification to the railroad of any such 

decision. 

Paragraphs (g) through (j) contain the 

proposed inspection and repair criteria 

for any equipment identified with a 

welded safety appliance or welded 

safety appliance bracket or support. 

These proposed requirements contain 

provisions concerning when visual 

inspections of the involved safety 

appliances would be required to be 

performed and address the 

qualifications of the individuals 

required to perform the inspections as 

well as the procedures to be utilized 

when performing the inspections. FRA 

considered various methods for 

inspecting the welds on the involved 

equipment including various types of 

non-destructive testing on smaller 

numbers of the involved welds. 

However, FRA believes that periodic 

visual inspections of all the identified 

welds is the most effective and costefficient method of ensuring the proper 

condition of the attachments. FRA seeks 

comments and views of interested 

parties relating to any portion of the 

proposed inspection procedures or to 

any alternative methods of inspecting 

the welds on exiting passenger 

equipment. 

Proposed paragraph (h) identifies a 

number of different types of individuals 

that could be utilized by a railroad to 

perform the proposed visual 

inspections. FRA believes that these 

inspectors must be properly trained and 

qualified to identify defective weld 

conditions. Rather than limit a railroad’s 

ability to utilize a number of its 

available personnel, FRA attempted to 

list a number of different types of 

persons that would have the ability to 

conduct the required visual inspections 

based on railroad provided training or 

due to being certified under an existing 

industry-recognized welding standard. 

FRA expects that most railroads will 

utilize a qualified maintenance person 

(QMP) to conduct the inspections as 

they are the individuals recognized to 

conduct most of the other brake and 

mechanical inspections required under 

part 238. FRA notes that a QMP would 

be required to receive at least four hours 

of training specific to weld defect 

identification and weld inspection 

procedures to be deemed qualified to 

perform the proposed visual 

inspections. FRA seeks comments from 

interested parties regarding the 

following: 

• Are there other types of qualified 

individuals capable of performing the 

proposed visual inspections? 

• Is the proposed training 

requirement for QMP’s sufficient? 

• Are the industry standards cited in 

this portion of the proposal accurate and 

readily available? 

Paragraph (j) contains proposed 

remedial actions that are required to be 

utilized in situations where a welded 

safety appliance or safety appliance 

bracket or support is found defective or 

cracked either during the periodic 

visual inspections or while otherwise in 

service. Unless the defect or crack is 

known to be the result of crash damage, 

the railroad would be required to 

conduct a failure and engineering 

analysis to determine the cause of the 

defective condition. The proposed 

remedial action provisions would 

permit a defective, cracked, or broken 

welded safety appliance or safety 

appliance bracket or support to be 

reattached to a vehicle by either 

mechanical fastening or welding if the 

defective condition is due to crash 

damage or improper construction. Any 

welded repair would be required to be 

conducted in accordance with APTA’s 

Standard for Passenger Rail Vehicle 

Structural Repair, SS–C&S–020–03 

(September 2003). In instances where 

the defective condition is due to 

inadequate design, such as 

unanticipated stresses or loads during 

service, FRA proposes to require that 

the safety appliance be mechanically 

attached, if possible, and for railroads to 

develop a plan for submission to FRA 

detailing a schedule for mechanically 

fastening the safety appliances of safety 

appliance brackets or supports on all 

cars in that series of cars. FRA proposes 

these strict provisions because where 

inadequate design causes failure of the 

safety appliances it is an indication that 

there is likely a systemic problem for all 

cars similarly constructed. 

Paragraph (k) contains the proposed 

requirement related to maintaining 

records of both the inspections and any 

repairs made to welded safety 

appliances or welded safety appliance 

brackets or supports. These records will 

not only aid FRA’s enforcement of the 

proposed provisions but will also 

provide invaluable information 

regarding the longevity and integrity of 

weld appliances and brackets or 

supports. The records proposed in this 

paragraph may be maintained in any 

format (written, electronic, etc.) but 

must be made available to FRA upon 

request. 

Section 238.230 Safety Appliances—

New Equipment 

This section contains proposed 

requirements related to passenger 

equipment placed into service after 

January 1, 2007. This section reiterates 

FRA’s long-standing prohibition on 

welding of safety appliance brackets or 

supports. FRA has carefully considered 

suggestions that would allow 

unrestricted use of welding to attach 

safety appliances on new passenger 

equipment. FRA appreciates that 

through proper design, careful quality 

control of welding practice, and 

selective verification of welds that it 

should be possible to achieve safety 

equivalent to or better than use of 

mechanical fasteners. However, in the 

past FRA has encountered poor weld 

quality on intercity passenger 

equipment safety appliance 

attachments, and FRA continues to 

encounter instances of poor welding in 

other aspects of rail passenger 

equipment construction. Since 

determination of weld quality outside of 

the manufacturing facility is extremely 

difficult, since FRA will not have 

routine access to manufacturing 

facilities to determine proper welding 

practice, and since the rail passenger 

industry does not have in place a 

rigorous quality control program for its 

suppliers, FRA has not been able to 

ascertain the conditions that would 

provide sufficient assurance of safety for 

equipment that has no service history. 

Nevertheless, FRA welcomes comments 

describing processes that are capable of 

efficient implementation that would 

provide the requisite confidence. 

In an effort to remain realistic and 

practical, paragraphs (b) and (c) of this 

section acknowledge that there may be 

instances where the design of a vehicle 

makes it impracticable to mechanically 

attach a safety appliance bracket or 

73082 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

support and necessitates the need to 

weld the bracket or support. FRA 

intends to make clear that the flexibility 

to utilize welding in these applications 

will be narrowly construed and will 

only be permitted in instances where a 

clear nexus between the equipment 

design and the need to weld a safety 

appliance bracket or support exists. FRA 

proposes that a railroad identify any 

such equipment prior to placing it in 

service and that it clearly describe the 

necessity to weld the bracket or support 

as well as describe the industry 

standard followed when making such an 

attachment. Proposed paragraph (c) 

makes clear that any new equipment 

containing welded safety appliance 

brackets or supports would be required 

to be inspected and handled in 

accordance with the provisions 

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

Paragraph (d) of this section contains 

proposed requirements which would 

permit the submission of industry-wide 

safety appliance arrangement standards 

to FRA for its approval. As discussed in 

detail in the section D of the Technical 

Background portion of the preamble, the 

Railroad Safety Appliance Standards 

currently contained in 49 CFR part 231 

address a very limited number of 

different types of passenger equipment. 

The criteria for most of today’s new 

types of passenger car construction are 

found within 49 CFR 231.18—Cars of 

special construction. This results from 

the fact that modern technology in 

construction of car-building often does 

not lend itself to ready application of 

the existing 49 CFR part 231 

requirements. Rather, the designer must 

adapt several different requirements to 

meet as closely as possible construction 

of specific safety appliance 

arrangements in order to obtain 

compliance. Most passenger cars today 

are constructed outside the United 

States, and this has exacerbated the 

problem of varying interpretations of 

regulations and resulting safety 

appliance arrangements. At times, 

different requirements are applied to 

cars of similar design where both could 

have been constructed in the same 

manner. Substantial resources are spent 

on a regular basis by all parties 

concerned in review sessions to 

determine if a car is in compliance prior 

to construction; and even when the cars 

are delivered, problems have arisen. 

In attempt to limit these problems, 

paragraph (d) proposes a process by 

which the industry may request 

approval of safety appliance 

arrangements on new equipment 

considered to be cars of special 

construction under 49 CFR part 231. 

This paragraph would permit the 

industry to develop standards to address 

many of the new types of passenger 

equipment introduced into service. The 

proposal would require these standards, 

and supporting documentation to be 

submitted to FRA for FRA approval 

pursuant to the special approval process 

already contained in § 238.21 of the 

regulation. The proposal makes clear 

that any approved standard would be 

enforceable against any person who 

violates or causes the violation of the 

approved standards and that the penalty 

schedule contained in Appendix A to 49 

CFR part 231 would be used as guidance 

in assessing any applicable civil 

penalty. The goal of this proposal is to 

develop consistent safety appliance 

standards for each new type of 

passenger car not currently identified in 

the Federal regulations that ensure the 

construction of suitable safety appliance 

arrangements in compliance with 49 

CFR part 231. FRA believes the proposal 

will reduce or eliminate reliance upon 

criteria for cars of special construction, 

will improve communication of safety 

appliance requirements to the industry, 

and will facilitate regulatory compliance 

where clarification or guidance is 

necessary. 

Section 238.231 Brake System 

Paragraph (b) contains proposed 

language relating to the design of 

passenger equipment placed in service 

for the first time on or after September 

9, 2002 and contains additional 

inspection criteria for such equipment if 

it is not designed to permit visual 

observation of the brake actuation and 

release from outside the plane of the 

equipment. The plain language of 

existing paragraph (b) requires new 

equipment to be designed to allow 

direct observation of the brake actuation 

and release without fouling the 

equipment. The preamble to the final 

rule discusses alternative design 

approaches using some type of piston 

travel indicator or piston cylinder 

pressure indicator on equipment whose 

design makes it impossible to meet this 

requirement. See 64 FR 25612 (May 12, 

1999). FRA’s intent was that this piston 

travel indicator could be a device 

similar to the definition of ‘‘actuator’’

contained in § 238.5 or some sort of 

piston cylinder pressure indicator. The 

rule text and related preamble make 

clear that the actuation and release of 

the brake (or a direct indication of such) 

be able to be observed without an 

inspector going on, under, or between 

the equipment. FRA does not believe 

that truck pressure indicators (which 

provide no information on piston travel 

or piston cylinder pressure) meet this 

requirement. 

FRA recognizes that the envisioned 

‘‘indicators’’ discussed in the preamble 

of the final rule may be ahead of the 

technological curve for passenger 

equipment currently being delivered 

and that which may be delivered in the 

near future. Thus, FRA noted its 

willingness to the RSAC and the Task 

Force to consider alternatives to 

requiring piston travel indicators on 

such equipment. The Task Force 

discussed the issue in detail as a 

number of railroads were in the process 

of receiving new equipment, such as bilevel coaches and other low-slung 

equipment, the design of which does 

not allow observation of the brake 

actuation and release of the brake 

without going on, under, or between the 

equipment. Several railroads and 

manufacturers noted that the type of 

piston travel indicator envisioned by 

FRA to meet the § 238.231(b) 

requirement was not currently available 

and even if it could be developed in the 

near future it would likely be a 

maintenance problem and unreliable. 

Representatives of rail labor also 

questioned the viability and need for the 

type of piston travel indicators 

discussed in the preamble to the final 

rule. These participants did not believe 

that any type of mechanical indicator 

should take the place of direct visual 

inspection of the brake system 

components. Consequently, the 

members of the Task Force believed that 

the best approach to the issue was to 

provide additional inspection protocols 

for new equipment designed in a 

manner that makes observation of the 

actuation and release of the brakes 

impossible from outside the plane of the 

equipment in lieu of mandating the use 

of untested and potentially unreliable 

piston travel indicators. The Task Force 

submitted this recommendation to the 

full RSAC which in turn submitted the 

recommendation to FRA. 

FRA and the Task Force believe that 

the brake system and mechanical 

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

adequately inspected through the daily 

brake and mechanical inspections 

currently required in the Federal 

regulations; provided, appropriate blue 

signal protections are established for the 

personnel required to perform such 

inspections. These daily inspections 

permit a visual inspection of a large 

percentage of the brake and mechanical 

components and over a period of a few 

days all portions of the brake system 

and mechanical components will be 

visually observed. However, because the 

necessary design of some new 

equipment makes the daily inspections 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73083 

of the equipment more difficult, does 

not permit visual observation of the 

brake actuation and release from outside 

the plane of the vehicle and because no 

reliable mechanical device is currently 

available to provide a direct indication 

of such, FRA agrees with the Task Force 

and RSAC recommendation that it is 

necessary to adopt additional inspection 

protocols for this type of equipment. 

The inspection regiment being 

proposed in paragraph (b) will be 

applicable to equipment placed in 

service on or after September 9, 2002, 

the design of which does not permit 

actual visual observation of the brake 

actuation and release. The proposed 

requirements related to this type of 

equipment are similar to those 

contained in a FRA Safety Board letter 

dated October 19, 2004, granting that 

portion of the Massachusetts Bay 

Transportation Authority’s (MBTA) 

waiver petition seeking relief from the 

requirements of § 238.231(b) for 28 

Kawasaki bi-level coaches. See Docket 

Number FRA–2004–18063. The 

proposed provisions would require such 

equipment to be equipped with either 

piston travel indicators or brake 

indicators as defined in § 238.5. The 

equipment would also be required to 

receive a periodic brake inspection by a 

QMP at intervals not to exceed five inservice days and the proposed 

inspection would have to be performed 

while the equipment is over an 

inspection pit or on a raised track. In 

addition, the railroad performing the 

proposed inspection would be required 

to maintain a record of the inspection 

consistent with the existing record 

requirements related to Class I brake 

tests. The specific inspection criteria are 

discussed in more detail in the sectionby-section analysis related to § 238.313. 

FRA believes that these proposed 

inspection requirements will ensure the 

safety and proper operation of the brake 

system on equipment which does not 

permit actual visual observation of the 

brake actuation and release without 

fouling the vehicle. 

Paragraph (h) contains proposed 

provisions related to the inspection of 

locomotive hand or parking brakes as 

well as proposed provisions addressing 

the securement of unattended 

equipment. FRA proposes to modify 

paragraph (h)(3) to require that the hand 

or parking brake on other than MU 

locomotives be inspected no less 

frequently that every 368 days and that 

a record (either stencil, blue card, or 

electronic) be maintained and provided 

to FRA upon request. Similar provisions 

were previously contained in 49 CFR 

part at § 232.10, prior to part 232’s 

revision in January of 2001. However, 

FRA inadvertently failed to include 

hand brake inspection provisions in its 

original issuance of the Passenger 

Equipment Safety Standards. Therefore, 

FRA raised the issue with the RSAC and 

it recommended that provisions 

regarding the inspection of hand and 

parking brakes on passenger equipment 

be added to part 238. FRA agrees with 

this recommendation. The inspection 

and testing intervals as well as the 

stenciling and record keeping 

requirements proposed in paragraph 

(b)(3) are consistent with the current 

industry practices and will impose no 

additional burden on the industry. 

FRA also proposes the addition of a 

new paragraph (h)(4) that would contain 

specific requirements related to the 

securement of unattended equipment. A 

detailed discussion regarding the 

development of this proposal is 

contained in Section E of the Technical 

Background portion of the preamble. At 

FRA’s suggestion, the Task Force 

considered issues related to the 

securement of unattended equipment. 

FRA noted its concern that existing part 

238 failed to adequately address either 

the inspection of hand or parking brakes 

or the issues related to the securement 

of unattended equipment. FRA believes 

that the rational for addressing these 

issues on freight operations is equally 

applicable to passenger operations. The 

preamble to the final rule related to 49 

CFR part 232 contains an in-depth 

discussion of the need to address these 

issues. See 66 FR 4156–58 (January 17, 

2001). The approach proposed in this 

proceeding is also consistent with the 

guidance contained in FRA Safety 

Advisory 97–1. See 62 FR 49046 

(September 15, 1997). The requirements 

proposed in this paragraph are 

consistent with and based directly on 

current passenger industry practice. 

Thus, in FRA’s view, the proposed 

provisions will have no economic or 

operational impact on passenger 

operations but will ensure that these 

best practices currently adopted by the 

industry are followed and complied 

with by making them part of the Federal 

regulations. 

Paragraph (h)(4) contains proposed 

provisions that would require that 

unattended equipment be secured by 

applying a sufficient number of hand or 

parking brakes to hold the equipment 

and would require railroads to develop 

and implement a process or procedure 

to verify that the applied hand or 

parking brakes will hold the equipment. 

The proposal would also prohibit a 

practice known as ‘‘bottling the air’’ in 

a standing cut of cars. A full discussion 

of the hazards related to this practice is 

contained in the preamble of the final 

rule related to freight power brakes. See 

66 FR 4156–57. Virtually all railroads 

prohibit this practice in their operating 

rules, thus FRA does not believe any 

burden is being imposed on the 

railroads by including it in this 

proposal. 

Paragraph (h)(4) also contains 

proposed provisions to require a 

minimum number of hand or parking 

brakes that must be applied on an 

unattended locomotive consist or train. 

Due to the relatively short length and 

low tonnage associated with passenger 

trains, FRA does not believe that the 

more stringent provisions contained in 

§ 232.103(n)(3) are necessary in a 

passenger train context. Thus, this 

paragraph proposes to require that at 

least one hand or parking brake be fully 

applied on an unattended passenger 

locomotive consist or passenger train; 

however, the number of applied hand or 

parking brakes will vary depending on 

the process or procedures developed 

and implemented by each covered 

railroad. 

Members of the Task Force sought 

clarification as to the meaning of the 

term ‘‘fully applied’’ as it relates to 

certain passenger equipment equipped 

with parking brakes. With the 

introduction of the spring applied 

parking brake, the parking brake can be 

‘‘conditioned to apply’’ but may not be 

fully applied. Many spring applied 

parking brake arrangements usually 

incorporate an anti-compounding 

feature so the service brake application 

and parking brake application are not 

simultaneously applied. This 

arrangement is utilized to limit the 

thermal input that may occur if the 

forces from the service brake application 

and parking brake application are 

applied simultaneously. When the train 

is left unattended, the operator would 

‘‘condition’’ the parking brake for 

application through a cab switch push 

button or by simply deactivating the cab 

through normal shutdown procedures. 

The brake equipment is either placed in 

an emergency brake condition or the 

brake pipe is vented to zero pressure at 

a service reduction rate. This brake 

equipment operation would result in 

brake cylinder pressure being applied to 

the brake units. The brake cylinder 

pressure provides sufficient force to 

create an equivalent force to that of the 

parking brake. If the equipment is not 

left on a source of compressed air, the 

brake cylinder pressure may be slowly 

depleted. When the brake cylinder 

pressure is gradually reduced, the 

parking brake gradually applies so that 

below a prescribed brake cylinder 

pressure, the parking brake is fully 

applied. In light of the preceding 

73084 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

discussion, FRA intends to make clear 

that a spring applied parking brake will 

be considered ‘‘fully applied’’ under 

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

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

‘‘conditioned to apply’’). 

In addition, paragraph (h)(4) contains 

proposed provisions requiring railroads 

to develop and implement procedures 

for securing locomotives not equipped 

with a hand or parking brake and 

develop, implement, and adopt 

instructions for securing any locomotive 

left unattended. As noted previously, 

FRA is not aware of any railroad which 

does not already have the proposed 

procedures or processes in place. Thus, 

FRA believes that these requirements 

proposed in paragraph (h)(4) will 

impose no burden on passenger 

operations covered by 49 CFR part 238. 

Section 238.303 Exterior Calendar Day 

Mechanical Inspection of Passenger 

Equipment 

Paragraph (e)(17) contains proposed 

provisions requiring that air 

compressors, on passenger equipment 

so equipped, be in effective and 

operative condition. The proposed 

provision also provides flexibility to 

permit certain equipment found with 

ineffective or inoperative air 

compressors at its exterior calendar day 

mechanical inspection to continue in 

service until its next such inspection if 

various conditions are met by the 

railroad. A full discussion regarding the 

development of these proposed 

provisions is contained in Section A of 

the Technical Background portion of the 

preamble. 

MU passenger locomotives are 

generally operated as married pairs but 

in some cases they can be operated as 

single or triple units. In the case of the 

married pairs, each pair of MU 

locomotives share a single air 

compressor. When operated in triple 

units, the three MU locomotives 

generally share two air compressors and 

single-unit MU locomotives are 

equipped with their own air 

compressor. The amount of air required 

to be produced by the air compressors 

is based on the size of the brake pipe 

and the brake cylinder reservoirs, the 

size of which are based on the 

calculated number of brake application 

and release cycles the train will 

encounter. In addition, the compressed 

air produced by the air compressors is 

shared within the consist by utilizing a 

main reservoir equalizing pipe or, in 

single pipe systems, through the brake 

pipe which is then diverted to the brake 

cylinder supply reservoir and other air 

operated devices by use of a governor 

arrangement. Therefore, a passenger 

train set consisting of numerous MU 

locomotives will have multiple air 

compressors providing the train consist 

with the necessary compressed air. FRA 

agrees with the determinations of the 

Task Force and the full RSAC that a loss 

of compressed air from a limited 

number of air compressors in such a 

train will not adversely effect the 

operation of the train’s brakes or other 

air-operated components on the train. 

Paragraph (e)(17) proposes to permit 

the continued operation of MU train sets 

with a limited number of inoperative or 

ineffective air compressors to continue 

to be used in passenger service until the 

next exterior calendar day mechanical 

inspection when found at such an 

inspection. This paragraph would 

require a railroad to determine through 

data, analysis, or actual testing the 

maximum number of inoperative or 

ineffective air compressors that could be 

in an MU train set without 

compromising the integrity or safety of 

the train set based on the size and type 

of train and the train’s operating profile. 

The railroad would be required to 

submit the maximum number of air 

compressors permitted to be inoperative 

or ineffective on its various trains to 

FRA before it could begin operation 

under the proposed provision and 

would be required to retain and make 

available to FRA any data or analysis 

relied on to make those determinations. 

Proposed paragraph (e)(17) would 

also require a qualified maintenance 

person (QMP) to verify the safety and 

integrity of any train operating with 

inoperative or ineffective air 

compressors before the equipment 

continues in passenger service. In 

addition, the proposal requires 

notification to the train crew of any 

inoperative or ineffective air 

compressors and requires that a record 

be maintained of the defective 

condition. FRA notes that the proposal 

provides FRA with the authority to 

revoke a railroad’s ability to utilize the 

flexibility proposed in this paragraph if 

the railroad fails to comply with the 

maximum limits established for 

continued operation of inoperative air 

compressors or the maximum limits are 

not supported by credible and accurate 

data. FRA believes that the provisions 

proposed in this paragraph will ensure 

the safety of passenger operations while 

providing the railroads additional 

flexibility in handling defective or 

inoperative equipment. 

Section 238.307 Periodic Mechanical 

Inspection of Passenger Cars and 

Unpowered Vehicles Used in Passenger 

Trains 

Proposed paragraphs (c)(13) and (d) 

contain requirements related to the 

periodic inspection of hand or parking 

brakes on passenger cars and other 

unpowered vehicles. As noted 

previously, FRA inadvertently failed to 

include any hand brake inspection 

provisions in its original issuance of the 

Passenger Equipment Safety Standards. 

Thus, FRA raised the issue with the 

RSAC and the Task Force and they 

recommended inclusion of various 

provisions regarding the inspection of 

hand and parking brakes on passenger 

equipment in this proposal. FRA agrees 

with this recommendation. Paragraph 

(c)(13) proposes to require that the hand 

or parking brake on passenger cars and 

unpowered vehicles used in passenger 

trains be applied and released at each 

periodic mechanical inspection. No 

record of this inspection would need to 

be prepared or retained. Based on 

information provided at the Task Force 

and Working Group meetings, all 

passenger operations currently conduct 

the proposed inspection of the hand and 

parking brakes at each periodic 

mechanical inspection. Paragraph (d) is 

modified and proposes to require a 

complete inspection of the hand or 

parking brake as well as their parts and 

connections on passenger cars and 

unpowered vehicles no less frequently 

than every 368 days. Paragraph (d) also 

proposes to require that a record (either 

stencil, blue card, or electronic) be 

maintained and provided to FRA upon 

request. The inspection and testing 

intervals as well as the stenciling and 

record keeping requirements proposed 

in this paragraph are consistent with the 

current practices in the industry and 

will impose no additional burden on the 

industry. 

Section 238.313 Class I Brake Tests 

Paragraph (g)(3) contains a proposed 

conforming change to make this 

paragraph consistent with the definition 

changes being proposed in § 238.5 

relating to the terms ‘‘actuator’’ and 

‘‘piston travel indicator.’’ In order to 

prevent and limit any confusion on the 

part of the regulated community, FRA 

agrees with the RSAC’s 

recommendation to modify the 

definition of ‘‘actuator’’ to describe the 

brake system component to which the 

term has traditionally been attached and 

which is what the term refers to in the 

definition of ‘‘piston travel.’’ In 

addition, FRA accepts the RSAC’s 

recommendation to add a new term to 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73085 

part 238 to describe the device 

originally defined as an ‘‘actuator.’’

Therefore, FRA is proposing to add the 

term ‘‘piston travel indicator’’ to 

describe a device directly activated by 

the movement of the brake cylinder 

piston, the disc actuator, or the tread 

brake unit cylinder piston that provides 

an indication of piston travel. In 

paragraph (g)(3) of this section, FRA is 

replacing the term ‘‘actuator’’ with the 

term ‘‘piston travel indicator’’ in order 

to add clarity to the regulatory 

provision. 

Paragraph (j) contains the proposed 

requirements related to the periodic 

inspection of passenger equipment 

placed in service for the first time on or 

after September 9, 2002, the design of 

which does not permit actual visual 

observation of the brake actuation and 

release as required in § 238.231(b). A 

detailed discussion related to the 

development and need for these 

proposed provisions is contained in 

section C of the Technical Background 

portion of the preamble and in the 

section-by-section analysis related to 

paragraph (b) of § 238.231. As 

previously noted, the periodic 

inspection requirements proposed in 

this paragraph are similar to those 

contained in a FRA Safety Board letter 

dated October 19, 2004, granting that 

portion of the Massachusetts Bay 

Transportation Authority’s (MBTA) 

waiver petition seeking relief from the 

requirements of § 238.231(b) for 28 

Kawasaki bi-level coaches. See Docket 

Number FRA–2004–18063. 

Proposed paragraph (j) makes clear 

that the periodic inspection provisions 

for the identified types of equipment are 

in addition to all of the other inspection 

provisions contained in paragraphs (a) 

through (i) of this section and must be 

performed by a QMP. The proposed 

provisions would require equipment not 

meeting the design requirements 

contained in § 238.231(b)(1) to receive a 

periodic brake inspection at intervals 

not to exceed five in-service days and 

the proposed inspection would have to 

be performed while the equipment is 

over an inspection pit or on a raised 

track. Any day or portion of a day that 

a piece of passenger equipment is 

actually used in passenger service 

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

FRA agrees with the recommendations 

of the RSAC and Task Force that five inservice days is appropriate and would 

permit the proposed inspection to be 

performed during weekends or on other 

days when the equipment is not being 

used. Thus, the operational and 

economic impact of the proposed 

inspection requirement is significantly 

minimized. The periodic inspection 

would include all of the items and 

components identified in paragraphs 

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

addition, the railroad performing the 

proposed inspection would be required 

to maintain a record of the inspection 

consistent with the existing record 

requirements related to Class I brake 

tests. FRA believes that these proposed 

inspection requirements will ensure the 

safety and proper operation of the brake 

system on equipment which does not 

permit actual visual observation of the 

brake actuation and release without 

fouling the vehicle. 

Section 238.321 Out-of-Service Credit 

As discussed previously, FRA did not 

seek consensus in the RSAC process for 

the proposed provision related to out-of 

service credit contained in this section. 

This issue is being addressed on FRA’s 

own motion in this proceeding in 

response to APTA’s petition for 

rulemaking dated March 28, 2005. Thus, 

the Working Group did not reach 

consensus on the proposed provision 

related to this issue and no 

recommendation was provided to or 

comment sought from the full RSAC. 

The proposed provision contained in 

this section is modeled directly on the 

‘‘out-of-use credit’’ provision contained 

in the Locomotive Safety Standards at 

49 CFR 229.33. The locomotive out-ofuse credit has been effectively and 

safely utilized by the railroad industry 

for decades. As passenger equipment is 

generally captive service equipment, is 

generally less mechanically complex 

than locomotives, and because the 

provisions for which the proposed 

credit will be utilized are time-based, 

FRA believes it is appropriate to permit 

passenger and commuter operations to 

receive credit for extended periods of 

time when equipment is not being used. 

The proposed provision will permit 

railroads to extend the dates for 

conducting periodic mechanical 

inspections and periodic brake 

maintenance required by §§ 238.307 and 

238.309 for equipment that is out of 

service for periods of at least 30 days. 

The proposal will require railroads to 

maintain records of any out of service 

days on the records related to the 

periodic attention. FRA does not see a 

safety concern with permitting this 

flexibility. In fact, the regulation already 

provides assurances that the brake 

systems on all passenger cars and 

unpowered vehicles are in proper 

condition after being out of service for 

30 days or more by requiring that a 

single car test pursuant to § 238.311 is 

performed on the vehicle before being 

placed back in service. See 49 CFR 

238.311(e)(1). FRA seeks comment and 

information from all interested parties 

regarding any safety or operating 

concerns related to this proposed 

provision. 

VI. Regulatory Impact and Notices 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This proposed rule has been 

evaluated in accordance with existing 

policies and procedures, and 

determined to be non-significant under 

both Executive Order 12866 and DOT 

policies and procedures (44 FR 11034; 

Feb. 26, 1979). FRA has prepared and 

placed in the docket two regulatory 

evaluations addressing the economic 

impact of this proposed rule. Document 

inspection and copying facilities are 

available at the Department of 

Transportation Central Docket 

Management Facility located in Room 

PL–401 on the Plaza level of the Nassif 

Building, 400 Seventh Street, SW., 

Washington, DC 20590. Access to the 

docket may also be obtained 

electronically through the Web site for 

the DOT Docket Management System at 

http://dms.dot.gov. Photocopies may 

also be obtained by submitting a written 

request to the FRA Docket Clerk at 

Office of Chief Counsel, Stop 10, 

Federal Railroad Administration, 1120 

Vermont Avenue, NW., Washington, DC 

20590; please refer to Docket No. FRA–

2005–23080. FRA invites comments on 

these regulatory evaluations. 

FRA conducted two separate 

regulatory evaluations addressing the 

economic impact of this proposed rule. 

One regulatory evaluation addresses the 

economic impact of the proposed 

provisions related to the safety 

appliance arrangements on passenger 

equipment. The other analysis addresses 

the economic impact of all of the other 

proposed provisions contained in this 

NPRM. As FRA developed the proposed 

requirements related to safety appliance 

arrangements on passenger equipment 

unilaterally, FRA believes it is 

appropriate to provide a separate 

regulatory analysis regarding the 

economic impact of those proposed 

provisions. As the analyses indicate, 

this proposed rule provides an overall 

economic savings to the industry due to 

the flexibility provided for in many of 

the proposed provisions and because 

many of the proposed requirements 

incorporate existing industry practice or 

provide an alternative means of 

compliance to what is presently 

mandated. 

The following table presents the 

estimated twenty-year monetary impacts 

associated with the proposed provisions 

contained in this NPRM. The table 

73086 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

contains the estimated costs and 

benefits associated with this NPRM and 

provides the total 20-year value as well 

as the 20-year net present value (NPV) 

for each indicated item. The dollar 

amounts presented in this table have 

been rounded to the nearest thousand. 

For exact estimates, interested parties 

should consult the Regulatory Impact 

Analysis (RIA) that has been made part 

of the docket in this proceeding. 

Description 20-year total 

($) 

20-year NPV 

($) 

Costs: 

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

Periodic Inspection of Welded Safety Appliances ........................................................................................... 3,831,000 2,335,000 

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

Total Costs ................................................................................................................................................ 8,381,000 4,424,000 

Benefits: 

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

Avoided Cost of Piston Travel Indicators ......................................................................................................... 2,550,000 1,275,000 

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

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

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

Total Benefits ............................................................................................................................................ 35,510,000 22,339,000 

The economic benefits to the industry 

related to this proposed rule outweigh 

the economic costs by a ratio in excess 

of 4 to 1. FRA did not quantify the 

safety benefits for most of the provisions 

contained in this proposal as many of 

the proposed provisions are based on 

improved manufacturing techniques, 

equipment reliability, or are the result of 

additional regulatory flexibility. 

However, with regard to the proposed 

provision related to the attachment of 

safety appliances on passenger 

equipment, FRA did consider the 

potential safety benefits related to the 

proposal. In addition to the potential 

avoided cost of retrofitting equipment 

containing welded safety appliances or 

welded safety appliance brackets or 

supports estimated at $9 million, FRA 

also believes there are potential safety 

benefits to be derived from the reduced 

risk of weld failure resulting from the 

proposed inspection protocols of 

welded safety appliance attachments. 

The RIA notes two accidents that were 

the result of failed safety appliances and 

although FRA’s database did not contain 

these accidents, there is no reason to 

believe that safety appliances in 

passenger operations are immune from 

failure. The lack of an accident record 

may be due to low risks involved in 

passenger operations, but also weld 

failure accidents are not generally 

reported in FRA systems that are geared 

more for accidents that stop rail 

operations. The FRA believes that 

reducing the risk of weld failures would 

benefit passenger operations. FRA notes 

that if just 2 or 3 critical accidents are 

avoided over the 20-year period cover 

by the RIA, the proposal would be costjustified by the safety benefits alone. 

FRA further notes that it did not 

estimate a cost for the proposed 

provisions related to the securement of 

unattended equipment and the 

inspection of hand or parking brakes. 

The proposed provisions related to 

these issues are merely an incorporation 

of current industry practice. FRA is not 

aware of any passenger or commuter 

railroad that does not already conduct 

the proposed inspections, maintain the 

proposed records, and have the 

proposed procedures in place. FRA 

seeks comments and input from all 

interested parties regarding the 

estimates contained in the RIAs 

developed in connection with this 

NPRM. 

Regulatory Flexibility Act and Executive 

Order 13272 

The Regulatory Flexibility Act (5 

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

13272 require a review of proposed and 

final rules to assess their impact on 

small entities. FRA has prepared and 

placed in the docket an Analysis of 

Impact on Small Entities (AISE) that 

assesses the small entity impact of this 

proposal. Document inspection and 

copying facilities are available at the 

Department of Transportation Central 

Docket Management Facility located in 

Room PL–401 on the Plaza level of the 

Nassif Building, 400 Seventh Street, 

SW., Washington, DC 20590. Docket 

material is also available for inspection 

on the Internet at http://dms.dot.gov. 

Photocopies may also be obtained by 

submitting a written request to the FRA 

Docket Clerk at Office of Chief Counsel, 

Stop 10, Federal Railroad 

Administration, 1120 Vermont Avenue, 

NW., Washington, DC 20590; please 

refer to Docket No. FRA–2005–23080. 

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

601 as a small business concern that is 

independently owned and operated, and 

is not dominant in its field of operation. 

The U.S. Small Business Administration 

(SBA) has authority to regulate issues 

related to small businesses, and 

stipulates in its size standards that a 

‘‘small entity’’ in the railroad industry is 

a railroad business ‘‘line-haul 

operation’’ that has fewer than 1,500 

employees and a ‘‘switching and 

terminal’’ establishment with fewer than 

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

may be altered by Federal agencies, in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to that authority FRA has 

published a final statement of agency 

policy that formally establishes ‘‘small 

entities’’ as being railroads that meet the 

line-haulage revenue requirements of a 

Class III railroad. See 68 FR 24891 (May 

9, 2003). Currently, the revenue 

requirements are $20 million or less in 

annual operating revenue. The $20 

million limit is based on the Surface 

Transportation Board’s threshold of a 

Class III railroad carrier, which is 

adjusted by applying the railroad 

revenue deflator adjustment (49 CFR 

part 1201). The same dollar limit on 

revenues is established to determine 

whether a railroad, shipper, or 

contractor is a small entity. FRA uses 

this alternative definition of ‘‘small 

entity’’ for this rulemaking. 

The AISE developed in connection 

with this NPRM concludes that this 

proposal would not have a significant 

economic impact on a substantial 

number of small entities. Thus, FRA 

certifies that this proposed rule is not 

expected to have a significant economic 

impact on a substantial number of small 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73087 

entities under the Regulatory Flexibility 

Act or Executive Order 13272. 

Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) for review and approval in 

accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). The sections that contain the 

new information collection 

requirements and the estimated time to 

fulfill each requirement are as follows: 

CFR section Respondent 

universe 

Total annual 

responses 

Average time 

per 

reponse 

Total annual burden hours Total annual 

burden cost 

216.14—Special notice for repairs—passenger 

equipment.

22 railroads ....... 9 forms .............. 5 minutes .......... 1 hour ................ $38 

229.47—Emergency Brake Valve—Marking Brake 

Pipe Valve as such.

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

—DMU, MU, Control Cab Locomotives—Marking Emergency Brake Valve as such.22 railroads ....... 5 markings ........ 1 minute ............ .08 hour ............. 3 

238.7—Waivers .......................................................... 22 railroads ....... 9 waivers ........... 2 hours/25 hrs ... 64 hours ............ 2,432 

238.15—Movement of passenger equipment with 

power brake defects, and.

22 railroads ....... 1,000 cards/tags 3 minutes .......... 50 hours ............ 2,350 

—Movement of passenger equpment that becomes defective en route.22 railroads ....... 288 cards/tags .. 3 minutes .......... 14 hours ............ 658 

Conditional requirement—Notifications ...................... 22 railroads ....... 144 notices ....... 3 minutes .......... 7 hours .............. 329 

238.17—Limitations on movement of passenger 

equipment containing defects found at calendar 

day inspection and on movement of passenger 

equipment that develops defects en route.

22 railroads ....... 200 cards/tags .. 3 minutes .......... 10 hours ............ 330 

—Special requisites for movement of passenger 

equipment with safety appliance defects.

22 railroads ....... 76 tags .............. 3 minutes .......... 4 hours .............. 132 

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

238.21—Petitions for special approval of alternative 

standards.

22 railroads ....... 1 petition ........... 16 hours ............ 16 hours ............ 608 

—Petitions for special approval of alternative 

compliance.

22 railroads ....... 1 petition ........... 120 hours .......... 120 hours .......... 4,560 

—Petitions for special approval of pre-revenue 

service acceptance testing plan.

22 railroads ....... 2 petitions ......... 40 hours ............ 80 hours ............ 3,040 

—Comments on petitions ................................... Public/RR Industry.4 comments ...... 1 hour ................ 4 hours .............. 256 

238.103—Fire Safety: 

—Procuring new passenger equipment ............. 5 equipment 

manuf.

4 equip. designs 540 hours .......... 2,160 hours ....... 128,000 

—Subsequent orders .......................................... 5 equipment 

manuf.

4 equip. designs 60 hours ............ 240 hours .......... 43,200 

—Existing equipment—fire safety analysis ........ 5 manuf./22 railroads.10 analyses ....... 30 hours ............ 300 hours .......... 36,000 

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

238.107—Inspection/testing/maintenance plans—

Review by railroads.

22 railroads ....... 7 reviews ........... 60 hours ............ 420 hours .......... 15,960 

238.109—Employee/contractor training ..................... 22 railroads ....... 2 notifications .... 15 minutes ........ 1 hour ................ 38 

—Training employees: Mechanical Insp ............. 7,500 employees 2,500 indiv/100 

trainers.

1.33 hours ......... 3,458 hours ....... 114,114 

238.109—Recordkeeping ........................................... 22 railroads ....... 2,500 records .... 3 minutes .......... 125 hours .......... 4,750 

238.111—Pre-revenue service acceptance testing 

plan: Passenger equipment that has previously 

been used in service in the U.S.

9 equipment 

manuf.

2 plans .............. 16 hours ............ 32 hours ............ 2,208 

—Passenger equipment that has not been previously used in revenue service in the U.S.9 equipment 

manuf.

2 plans .............. 192 hours .......... 384 hours .......... 38,400 

—Subsequent Order ........................................... 9 equipment 

manuf.

2 plans .............. 60 hours ............ 120 hours .......... 9,520 

238.229—Safety Appliances (New Rqmnts): 

—Welded safety appliances considered defective: lists.22 railroads ....... 22 lists ............... 1 hour ................ 22 hours ............ 836 

—Inspection plans .............................................. 22 railroads ....... 22 plans ............ 16 hours ............ 352 hours .......... 17,952 

—Remedial action: Defect/crack in weld—

record.

22 railroads ....... 1 record ............. 2.25 hours ......... 2 hours .............. 66 

—Petitions for special approval of alternative 

compliance when design of equipment makes 

it impractical to mechanically fasten safety 

appliance/safety appliance bracket/support to 

equipment.

22 railroads ....... 15 petitions ....... 4 hours .............. 60 hours ............ 7,200 

—Records of inspection/repair of welded safety 

appliance brackets/supports.

22 railroads ....... 3,044 records .... 4.5 hours/12 

minutes.

798 hours .......... 27,324 

238.230—Safety Appliances—New Equipment (New 

Requirement): 

73088 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

CFR section Respondent 

universe 

Total annual 

responses 

Average time 

per 

reponse 

Total annual burden hours Total annual 

burden cost 

—Welded safety appliances: Documentation for 

equipment impractically designed to mechanically fasten safety appliance support.

22 railroads ....... 15 documents ... 4 hours .............. 60 hours ............ 2,280 

238.231—Brake System (New Requirement): 

—Inspection and repair of hand/parking brake: 

Records.

22 railroads ....... 2,500 forms ....... 21 minutes ........ 875 hours .......... 28,875 

238.237—Automated monitoring: 

—Documentation for alerter/deadman control 

timing.

22 railroads ....... 3 documents ..... 2 hours .............. 6 hours .............. 228 

—Defective alerter/deadman control: Tagging ... 22 railroads ....... 25 tags .............. 3 minutes .......... 1 hour ................ 47 

238.303—Exterior calendar day mechanical inspection of passenger equipment: Notice of previous 

inspection.

22 railroads ....... 25 notices ......... 1 minute ............ 1 hour ................ 47 

—Dynamic brakes not in operating mode: Tag .. 22 railroads ....... 50 tags/cards .... 3 minutes .......... 3 hours .............. 141 

—Conventional locomotives equipped with inoperative dynamic brakes: Tagging (New Requirements).22 railroads ....... 50 tags/cards .... 3 minutes .......... 3 hours .............. 141 

—MU passenger equipment found with inoperative/ineffective air compressors at exterior 

calendar day inspection: Documents.

22 railroads ....... 6 documents ..... 2 hours .............. 12 hours ............ 768 

—Written notice to train crew about inoperative/ 

ineffective air compressors.

22 railroads ....... 100 messages 

or notices.

3 minutes .......... 5 hours .............. 165 

—Records of inoperative air compressors ......... 22 railroads ....... 100 records ....... 2 minutes .......... 3 hours .............. 99 

—Record of exterior calendar day mechanical 

inspection (Old Requirement).

22 railroads ....... 2,376,920 

records.

10 minutes + 1 

minute.

435,769 hours ... 14,578,452 

238.305—Interior calendar day mechanical inspection of passenger cars: 

—Tagging of defective end/side doors ............... 22 railroads ....... 540 tags ............ 1 minute ............ 9 hours .............. 297 

—Records of interior calendar day inspection ... 22 railroads ....... 1,968,980 

records.

5 minutes + 1 

minute.

196,898 hours ... 6,661,714 

238.307—Periodic mechanical inspection of passenger cars and unpowered vehicles: 

—Alternative inspection intervals: Notice ........... 22 railroads ....... 2 notifications .... 5 hours .............. 10 hours ............ 380 

—Notice of seats/seat attachments broken or 

loose.

22 railroads ....... 200 notices ....... 2 minutes .......... 7 hours .............. 266 

—Records of each periodic mechanical inspection.22 railroads ....... 19,284 records .. 200 hrs. + 2 

minutes.

3,857,443 hours 71,516 

—Detailed documentation of reliability assessments as basis for alternative inspection interval.22 railroads ....... 5 documents ..... 100 hours .......... 5 hours .............. 19,000 

238.311—Single car test: 

—Tagging to indicate need for single car test ... 22 railroads ....... 25 tags .............. 3 minutes .......... 1 hour ................ 33 

238.313—Class I brake test: 

—Record for additional inspection for passenger equipment that does not comply with 

§ 238.231(b)(1) (New Requirement).

22 railroads ....... 15,600 records .. 30 minutes ........ 7,800 hours ....... 257,400 

238.315—Class IA brake test: 

—Notice to train crew that test has been performed.22 railroads ....... 18,250 verbal 

notices.

5 seconds ......... 25 hours ............ 825 

—Communicating signal: Tested and two-way 

radio system.

22 railroads ....... 365,000 tests .... 15 seconds ....... 1,521 hours ....... 57,798 

238.317—Class II brake test: 

—Communicating signal: Tested and two-way 

radio system.

22 railroads ....... 365,000 tests .... 15 seconds ....... 1,521 hours ....... 57,798 

238.321—Out-of-service credit (New Requirement): 

—Passenger Car: Out-of-use notation ............... 22 railroads ....... 1,250 notations 2 minutes .......... 42 hours ............ 1,386

238.445—Automated monitoring: 

—Performance monitoring: Alerters/alarms ........ 1 railroad ........... 10,000 alerts ..... 10 seconds ....... 28 hours ............ 0 

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

238.503—Inspection, testing, and maintenance requirements: 

238.505—Program approval procedures: 

—Submission of program ................................... 1 railroad ........... 1 program ......... 1,200 hours ....... 1,200 hours ....... 76,800 

—Comments on programs .................................. Rail Industry ...... 3 comments ...... 3 hours .............. 9 hours .............. 342 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. Pursuant to 

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

comments concerning: Whether these 

information collection requirements are 

necessary for the proper performance of 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73089 

the functions of FRA, including whether 

the information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan at 202–493–6292. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Mr. Robert 

Brogan, Federal Railroad 

Administration, 1120 Vermont Avenue, 

NW., Mail Stop 17, Washington DC 

20590. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this NPRM 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of a final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

Federalism Implications 

FRA has analyzed this proposed rule 

in accordance with the principles and 

criteria contained in Executive Order 

13132, issued on August 4, 1999, which 

directs Federal agencies to exercise great 

care in establishing policies that have 

federalism implications. See 64 FR 

43255. This proposed rule will not have 

a substantial effect on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among various levels of 

government. This proposed rule will not 

have federalism implications that 

impose any direct compliance costs on 

State and local governments. 

FRA notes that the RSAC, which 

endorsed and recommended the 

majority of this proposed rule to FRA, 

has as permanent members two 

organizations representing State and 

local interests: AASHTO and the 

Association of State Rail Safety 

Managers (ASRSM). Both of these State 

organizations concurred with the RSAC 

recommendation endorsing this 

proposed rule. The RSAC regularly 

provides recommendations to the FRA 

Administrator for solutions to regulatory 

issues that reflect significant input from 

its State members. To date, FRA has 

received no indication of concerns 

about the Federalism implications of 

this rulemaking from these 

representatives or of any other 

representatives of State government. 

Consequently, FRA concludes that this 

proposed rule has no federalism 

implications, other than the preemption 

of state laws covering the subject matter 

of this proposed rule, which occurs by 

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

whenever FRA issues a rule or order. 

Elements of the proposed rule dealing 

with safety appliances affect an area of 

safety that has been pervasively 

regulated at the Federal level for over a 

century. Accordingly, the proposed 

amendments will involve no impacts on 

Federal relationships. 

Environmental Impact 

FRA has evaluated this proposed 

regulation in accordance with its 

‘‘Procedures for Considering 

Environmental Impacts’’ (FRA’s 

Procedures) (64 FR 28545, May 26, 

1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this proposed 

regulation is not a major FRA action 

(requiring the preparation of an 

environmental impact statement or 

environmental assessment) because it is 

categorically excluded from detailed 

environmental review pursuant to 

section 4(c)(20) of FRA’s Procedures. 64 

FR 28547, May 26, 1999. Section 

4(c)(20) reads as follows: 

(c) Actions categorically excluded. Certain 

classes of FRA actions have been determined 

to be categorically excluded from the 

requirements of these Procedures as they do 

not individually or cumulatively have a 

significant effect on the human environment. 

* * * The following classes of FRA actions 

are categorically excluded: * * * 

(20) Promulgation of railroad safety rules 

and policy statements that do not result in 

significantly increased emissions or air or 

water pollutants or noise or increased traffic 

congestion in any mode of transportation. 

In accordance with section 4(c) and 

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

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this 

proposed regulation is not a major 

Federal action significantly affecting the 

quality of the human environment. 

Unfunded Mandates Reform Act of 1995 

Pursuant to section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$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 proposed rule would not 

result in the expenditure, in the 

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

any one year, and thus preparation of 

such a statement is not required. 

Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 66 FR 28355 ( May 22, 

2001). Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this NPRM in accordance 

with Executive Order 13211. FRA has 

determined that this NPRM is not likely 

73090 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this regulatory action is 

not a ‘‘significant energy action’’ within 

the meaning of Executive Order 13211. 

Privacy Act 

FRA wishes to inform all potential 

commenters that anyone is able to 

search the electronic form of all 

comments received into any agency 

docket by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(Volume 65, Number 70; Pages 19477–

78) or you may visit http://dms.dot.gov. 

List of Subjects 

49 CFR Part 229 

Locomotives, Main reservoirs, 

Penalties, Railroads, Railroad safety, 

Reporting and recordkeeping 

requirements. 

49 CFR Part 238 

Passenger equipment, Penalties, 

Railroad safety, Reporting and 

recordkeeping requirements, Safety 

appliances. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend parts 

229 and 238 of chapter II, subtitle B of 

Title 49, Code of Federal Regulations, as 

follows: 

PART 229—[AMENDED] 

1. The authority citation for part 229 

continues to read as follows: 

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

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

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

1.49(c), (m). 

2. Section 229.5 is amended by 

revising the definition of ‘‘MU 

locomotive’’ to read as follows: 

§ 229.5 Definitions. 

* * * * * 

MU locomotive means a multiple unit 

operated electric locomotive—

(1) With one or more propelling 

motors designed to carry freight or 

passenger traffic or both; or 

(2) Without propelling motors but 

with one or more control stands and a 

means of picking-up primary power 

such as a pantograph or third rail. 

* * * * * 

3. Section 229.31 is amended by 

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

follows: 

§ 229.31 Main reservoir tests. 

(a) Before it is placed in service, each 

main reservoir other than an aluminum 

reservoir shall be subjected to a 

pneumatic or hydrostatic pressure of at 

least 25 percent more than the 

maximum working pressure fixed by the 

chief mechanical officer. The test date, 

place, and pressure shall be recorded on 

Form FRA F 6180–49A, block eighteen. 

Except as provided in paragraph (c) of 

this section, at intervals that do not 

exceed 736 calendar days, each main 

reservoir other than an aluminum 

reservoir shall be subjected to a 

hydrostatic pressure of at least 25 

percent more than the maximum 

working pressure fixed by the chief 

mechanical officer. The test date, place, 

and pressure shall be recorded on Form 

FRA F 6180–49A, and the person 

performing the test and that person’s 

supervisor shall sign the form. 

* * * * * 

(c) Each welded main reservoir 

originally constructed to withstand at 

least five times the maximum working 

pressure fixed by the chief mechanical 

officer may be drilled over its entire 

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

holes shall be spaced not more than 12 

inches apart, measured both 

longitudinally and circumferentially, 

and drilled from the outer surface to an 

extreme depth determined by the 

formula—

D = (.6PR/S¥0.6P) 

Where: 

D = Extreme depth of telltale holes in 

inches but in no case less than onesixteenth inch; 

P = Certified working pressure in 

pounds per square inch; 

S = One-fifth of the minimum specified 

tensile strength of the material in 

pounds per square inch; and 

R = Inside radius of the reservoir in 

inches. 

One row of holes shall be drilled 

lengthwise of the reservoir on a line 

intersecting the drain opening. A 

reservoir so drilled does not have to 

meet the requirements of paragraphs (a) 

and (b) of this section, except the 

requirement for a pneumatic or 

hydrostatic test before it is placed in 

use. Whenever any such telltale hole 

shall have penetrated the interior of any 

reservoir, the reservoir shall be 

permanently withdrawn from service. A 

reservoir now in use may be drilled in 

lieu of the tests provided for by 

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

but shall receive a hydrostatic test 

before it is returned to use or may 

receive a pneumatic test if conducted by 

the manufacturer in an appropriately 

safe environment. 

* * * * * 

4. Section 229.47 is amended by 

revising paragraph (b) to read as follows: 

§ 229.47 Emergency brake valve. 

* * * * * 

(b) DMU, MU, and control cab 

locomotives operated in road service 

shall be equipped with an emergency 

brake valve that is accessible to another 

crew member in the passenger 

compartment or vestibule. The words 

‘‘Emergency Brake Valve’’ shall be 

legibly stenciled or marked near each 

valve or shall be shown on an adjacent 

badge plate. 

5. Section 229.137 is amended by 

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

follows: 

§ 229.137 Sanitation, general 

requirements. 

* * * * * 

(b) * * * 

(1) * * * 

(vi) Except as provided in § 229.14 of 

this part, DMU, MU, and control cab 

locomotives designed for passenger 

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

sanitation facilities, where employees 

have ready access to railroad-provided 

sanitation in other passenger cars on the 

train at frequent intervals during the 

course of their work shift. 

* * * * * 

PART 238—[AMENDED] 

6. The authority citation for part 238 

continues to read as follows: 

Authority: 49 U.S.C. 20103, 20107, 20133, 

20141, 20302–20303, 20306, 20701–20702, 

21301–21302, 21304; 28 U.S.C. 2461, note; 

and 49 CFR 1.49. 

7. Section 238.5 is amended by 

revising the definition of ‘‘actuator’’ and 

adding a definition of ‘‘piston travel 

indicator’’ to read as follows: 

§ 238.5 Definitions. 

* * * * * 

Actuator means a self-contained brake 

system component that generates the 

force to apply the brake shoe or brake 

pad to the wheel or disc. An actuator 

typically consists of a cylinder, piston, 

and piston rod. 

* * * * * 

Piston Travel Indicator means a 

device directly activated by the 

movement of the brake cylinder piston, 

the disc brake actuator, or the tread 

brake unit cylinder piston that provides 

an indication of the piston travel. 

* * * * * 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73091 

8. Section 238.17 is amended by 

revising paragraph (b) introductory text 

to read as follows: 

§ 238.17 Movement of passenger 

equipment with other than power brake 

defects. 

* * * * * 

(b) Limitations on movement of 

passenger equipment containing defects 

found at time of calendar day 

inspection: Except as provided in 

§§ 238.303(e)(15) and (e)(17), 238.305(c) 

and (d), and 238.307(c)(1), passenger 

equipment containing a condition not in 

conformity with this part at the time of 

its calendar day mechanical inspection 

may be moved from that location for 

repair if all of the following conditions 

are satisfied: 

* * * * * 

9. Section 238.21 is amended by 

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

as follows: 

§ 238.21 Special approval procedures. 

(a) General. The following procedures 

govern consideration and action upon 

requests for special approval of 

alternative standards under §§ 238.103, 

238.223, 238.229, 238.309, 238.311, 

238.405, or 238.427; for approval of 

alternative compliance under 

§§ 238.201, 238.229, or 238.230; and for 

special approval of pre-revenue service 

acceptance testing plans as required by 

§ 238.111. (Requests for approval of 

programs for the inspection, testing, and 

maintenance of Tier II passenger 

equipment are governed by § 238.505.) 

* * * * * 

(c) * * * 

(2) The elements prescribed in 

§§ 238.201(b), 238.229(j)(2), and 

238.230(d); and 

* * * * * 

10. Section 238.229 is revised to read 

as follows: 

§ 238.229 Safety appliances—general. 

(a) Except as provided in this part, all 

passenger equipment continues to be 

subject to the safety appliance 

requirements contained in Federal 

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

Federal regulations at part 231 of this 

chapter. 

(b) Except as provided in this part, 

FRA interprets the provisions in part 

231 of this chapter that expressly 

mandate that the manner of application 

of a safety appliance be a bolt, rivet, or 

screw to mean that the safety appliance 

and any related bracket or support used 

to attach that safety appliance to the 

equipment shall be so affixed to the 

equipment. Specifically, FRA prohibits 

the use of welding as a method of 

attachment of any such safety appliance 

or related bracket or support. For 

purposes of this section and part 231 of 

this chapter, a ‘‘safety appliance bracket 

or support’’ means a component or part 

attached to the equipment for the sole 

purpose of securing or attaching of the 

safety appliance. FRA does allow the 

welded attachment of a brace or 

stiffener used in connection with a 

mechanically fastened safety appliance. 

In order to be considered a ‘‘brace’’ or 

‘‘stiffener,’’ the component or part shall 

not be necessary for the attachment of 

the safety appliance to the equipment 

and is used solely to provide extra 

strength or steadiness to the safety 

appliance. 

(c) Welded Safety Appliances. (1) 

Passenger equipment placed in service 

prior to January 1, 2007, that is 

equipped with a safety appliance, 

required by the ‘‘manner of application’’

provisions in part 231 of this chapter to 

be attached by a mechanical fastener 

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

safety appliance is mechanically 

fastened to a bracket or support that is 

attached to the equipment by welding 

may continue to be used in service 

provided all of the requirements in 

paragraphs (e) through (k) of this section 

are met. 

(2) Passenger equipment that is 

equipped with a safety appliance that is 

directly attached to the equipment by 

welding (i.e., no mechanical fastening of 

any kind) shall be considered defective 

and immediately handled for repair 

pursuant to the requirements contained 

in § 238.17(e) unless the railroad meets 

the following: 

(i) The railroad submits a written list 

to FRA that identifies each piece of 

passenger equipment equipped with a 

welded safety appliance as described in 

paragraph (c)(2) of this section and 

provides a description of the specific 

safety appliance; 

(ii) For passenger equipment placed 

in service for the first time on or after 

January 1, 2007, the railroad provides a 

detailed basis as to why the design of 

the vehicle or placement of the safety 

appliance requires that the safety 

appliance be directly welded to the 

equipment; and 

(iii) The involved safety appliance(s) 

on such equipment are inspected and 

handled pursuant to the requirements 

contained in paragraphs (g) through (k) 

of this section. 

(d) General. Passenger equipment 

with a welded safety appliance or a 

welded safety appliance bracket or 

support will be considered defective 

and shall be handled in accordance with 

§ 238.17(e) if any part or portion of the 

weld is defective or contains a crack. 

Any repairs made to such equipment 

shall be in accordance with the 

inspection plan required in paragraph 

(g) of this section and the remedial 

actions identified in paragraph (j) of this 

section. A defect for the purposes of this 

section means any anomaly, regardless 

of size, that affects the designed strength 

of the weld. A crack for purposes of this 

section means a fracture of any visibly 

discernible length or width. 

(e) Identification of equipment. The 

railroad shall submit a written list to 

FRA that identifies each piece of 

passenger equipment equipped with a 

welded safety appliance bracket or 

support by January 1, 2007. Passenger 

equipment placed in service prior to 

January 1, 2007, but not discovered 

until after January 1, 2007, shall be 

immediately added to the railroad’s 

written list and shall be immediately 

inspected in accordance with paragraph 

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

written list submitted by the railroad 

shall contain the following: 

(1) The equipment number; 

(2) The equipment type; 

(3) The safety appliance bracket(s) or 

support(s) affected; 

(4) Any equipment and any specific 

safety appliance bracket(s) or 

supports(s) on the equipment that will 

not be subject to the inspection plan 

required in paragraph (g) of this section; 

(5) A detailed explanation for any 

such exclusion recommended in 

paragraph (e)(4) of this section; 

(f) FRA’s Associate Administrator for 

Safety reserves the right to disapprove 

any exclusion recommended by the 

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

of this section and will provide written 

notification to the railroad of any such 

determination. 

(g) Inspection Plans. The railroad 

shall adopt and comply with and submit 

to FRA a written safety appliance 

inspection plan. At a minimum, the 

plan shall include the following: 

(1) An initial visual inspection 

(within 1 year of date of publication) 

and periodic re-inspections (at intervals 

not to exceed 6 years) of each welded 

safety appliance bracket or support 

identified in paragraph (e) of this 

section. If significant disassembly of a 

car is necessary to visually inspect the 

involved safety appliance bracket or 

support, the initial visual inspection 

may be conducted at the equipment’s 

first periodic brake equipment 

maintenance interval pursuant to 

§ 238.309 occurring after January 1, 

2006. 

(2) Identify the personnel that will 

conduct the initial and periodic 

inspections and any training those 

individuals are required to receive in 

73092 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

accordance with the criteria contained 

in paragraph (h) of this section. 

(3) Identify the specific procedures 

and criteria for conducting the initial 

and periodic safety appliance 

inspections in accordance with the 

requirements and criteria contained in 

paragraph (i) of this section. This may 

include the adoption and compliance 

with any date specific industry accepted 

and developed procedure and criteria. 

(4) Identify when and what type of 

potential repairs or potential remedial 

action will be required for any defective 

welded safety appliance bracket or 

support discovered during the initial or 

periodic safety appliance inspection in 

accordance with paragraph (j) of this 

section. 

(5) Identify the records that will be 

maintained that are related to the initial 

and periodic safety appliance 

inspections in accordance with the 

requirements contained in paragraph (k) 

of this section. 

(h) Inspection Personnel. The initial 

and periodic safety appliance 

inspections shall be performed by 

individuals properly trained and 

qualified to identify defective weld 

conditions. At a minimum, these 

personnel include the following: 

(1) A qualified maintenance person 

(QMP) with at least 4 hours of training 

specific to the identification of weld 

defects and the railroad’s weld 

inspection procedures; 

(2) A current certified welding 

inspector (CWI) pursuant to American 

Welding Society Standard—AWS QC–1, 

Standard for AWS Certification of 

Welding Inspectors (1996); 

(3) A person possessing a current 

Canadian Welding Bureau (CWB) 

certification pursuant to the Canadian 

Standards Association Standard W59 

(2003); or 

(4) A person possessing a current 

level II or level III visual inspector 

certification from the American Society 

for Non-destructive Testing pursuant to 

Recommended Practice SNT–TC–1A—

Personnel Qualification and 

Certification in Nondestructive Testing 

(2001). 

(i) Inspection Procedures. The initial 

and periodic safety appliance 

inspections shall be conducted in 

accordance with the procedures and 

criteria established in the railroad’s 

inspection plan. At a minimum these 

procedures and criteria shall include: 

(1) A complete visual inspection of 

the entire welded surface of any safety 

appliance bracket or support identified 

in paragraph (e) of this section. 

(2) The visual inspection shall occur 

after the complete removal of any dirt, 

grease, rust, or any other foreign matter 

from the welded portion of the involved 

safety appliance bracket or support. 

Removal of paint is not required. 

(3) The railroad shall disassemble any 

equipment necessary to permit full 

visual inspection of the involved weld. 

(4) Any materials necessary to 

conduct a complete inspection must be 

made available to the inspection 

personnel throughout the inspection 

process. These include but are not 

limited to such items as mirrors, 

magnifying glasses, or other location 

specific inspection aids. Remote 

viewing aids possessing equivalent 

sensitivity are permissible for restricted 

areas. 

(5) Any weld found with a potential 

defect or crack as defined in paragraph 

(d) of this section during the initial or 

periodic safety appliance inspection 

shall be inspected by either a certified 

weld inspector identified in paragraph 

(h)(2) and (h)(3) of this section, a 

certified level II or III inspector 

identified in paragraph (h)(4) of this 

section, or a welding or materials 

engineer possessing a professional 

engineer’s license for a final 

determination. No car with a potential 

defect or crack in the weld of a safety 

appliance or its attachment may 

continue in use until a final 

determination as to the existence of a 

defect or crack is made by the personnel 

identified in this paragraph. 

(6) A weld finally determined to 

contain a defect or crack shall be 

handled for repair in accordance with 

§ 238.17(e) and repaired in accordance 

with the remedial action criteria 

contained in paragraph (j) of this 

section. 

(j) Remedial Action. Unless a defect or 

crack in a weld is known to have been 

caused by crash damage, the railroad 

shall conduct a failure and engineering 

analysis of any weld identified in 

paragraph (e) of this section determined 

to have a break or crack either during 

the initial or periodic safety appliance 

inspection or while otherwise in service 

to determine if the break or crack is the 

result of crash damage, improper 

construction, or inadequate design. 

Based on the results of the analysis, the 

repair of the involved safety appliance 

bracket or support shall be handled as 

follows: 

(1) A defect or crack in a weld due to 

crash damage (i.e., impact of the safety 

appliance by an outside force during 

service or an accident) or improper 

construction (i.e., the weld did not 

conform to the engineered design) shall 

be reattached by either mechanically 

fastening the safety appliance or the 

safety appliance bracket or support to 

the equipment, or welding the safety 

appliance bracket or support to the 

equipment in a manner that is at least 

as strong as the original design or at 

least twice the strength of a bolted 

mechanical attachment, whichever is 

greater. If welding is used to repair the 

damaged appliance, bracket, or support, 

the following requirements shall be met: 

(i) The repair shall be conducted in 

accordance with the welding procedures 

contained in APTA Standard SS–C&S–

020–03—Standard for Passenger Rail 

Vehicle Structural Repair (September 

2003); 

(ii) A qualified individual under 

paragraph (h) of this section shall 

inspect the weld to ensure it is free of 

any cracks prior to the equipment being 

placed in-service; 

(iii) The welded safety appliance 

bracket or support shall receive a 

periodic safety appliance inspection 

pursuant to the requirements contained 

in paragraphs (g) through (i) of this 

section; and 

(iv) A record of the welded repair 

pursuant to the requirements of 

paragraph (k) of this section shall be 

maintained by the railroad. 

(2) A defect or crack in the weld that 

is due to inadequate design (i.e., 

unanticipated stresses or loads during 

service) shall be handled in accordance 

with the following: 

(i) The railroad must immediately 

notify FRA’s Associate Administrator 

for Safety in writing of its discovery of 

a cracked or defective weld that is due 

to inadequate design; 

(ii) The involved safety appliance or 

the safety appliance bracket or support 

shall be reattached to the equipment by 

mechanically fastening the safety 

appliance or the safety appliance 

bracket or support to the equipment 

unless such mechanical fastening is 

impractical due to the design of the 

equipment; 

(iii) The railroad shall develop and 

comply with a written plan submitted to 

and approved by FRA’s Associate 

Administrator for Safety detailing a 

schedule for all passenger equipment in 

that series of cars with a similar welded 

safety appliance bracket or support to 

have the involved safety appliance or 

the safety appliance bracket or support 

mechanically fastened to the equipment; 

and 

(iv) If a railroad determines that the 

design of the equipment makes it 

impractical to mechanically fasten the 

safety appliance or the safety appliance 

bracket or support to the equipment, 

then the railroad shall submit a request 

to FRA for special approval of 

alternative compliance pursuant to 

§ 238.21. Such a request shall explain 

the necessity for any relief sought and 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73093 

shall contain appropriate data and 

analysis supporting its determination 

that any alternative method of 

attachment provides at least an 

equivalent level of safety. 

(k) Records. Railroads shall maintain 

written or electronic records of the 

inspection and repair of the welded 

safety appliance brackets or supports on 

any equipment identified in paragraph 

(e) of this section. The records shall be 

made available to FRA upon request. At 

a minimum, these records shall include 

all of the following: 

(1) Training or certification records 

for any person performing any of the 

inspections or repairs required in this 

section. 

(2) The date, time, location, and 

identification of the person performing 

the initial and periodic safety appliance 

inspections for each piece of equipment 

identified in paragraph (e) of this 

section. This includes the identification 

of the person making any final 

determination as to the existence of a 

defect or crack under paragraph (i)(5) of 

this section. 

(3) A record of all passenger 

equipment found with a safety 

appliance weldment that is defective or 

cracked either during the initial or 

periodic safety appliance inspection or 

while the equipment is in-service. This 

record shall also identify the cause of 

the crack or break. 

(4) The date, time, location, 

identification of the person making the 

repair, and the nature of the repair to 

any welded safety appliance bracket or 

support identified in paragraph (e) of 

this section. 

11. Section 238.230 is added to read 

as follows: 

§ 238.230 Safety appliances—new 

equipment. 

(a) Applicability. This section applies 

to passenger equipment placed in 

service on or after January 1, 2007. 

(b) Welded Safety Appliances. Except 

as provided in § 238.229(c)(2), all 

passenger equipment placed into service 

on or after January 1, 2007, that is 

equipped with a safety appliance, 

required by the ‘‘manner of application’’

provisions in part 231 of this chapter to 

be attached by a mechanical fastener 

(i.e., bolts, rivets, or screws), shall have 

any bracket or support necessary to 

attach the safety appliance to the piece 

of equipment mechanically fastened to 

the piece of equipment. Safety 

appliance brackets or supports shall not 

be welded to the car body unless the 

design of the equipment makes it 

impractical to mechanically fasten the 

safety appliance bracket or support and 

prior to placing a piece of equipment in 

service with a safety appliance bracket 

or support attached by welding, the 

railroad submits documentation to FRA, 

for FRA’s review and approval, 

containing all of the following 

information: 

(1) Identification of the equipment by 

number, type, series, operating railroad, 

and other pertinent data; 

(2) Identification of the safety 

appliance bracket(s) or support(s) not 

mechanically fastened to the equipment; 

(3) A detailed analysis describing the 

necessity to attach the safety appliance 

bracket or support to the equipment by 

a means other than mechanical 

fastening; and 

(4) A copy and description of the 

consensus or other appropriate industry 

standard used to ensure the 

effectiveness and strength of the 

attachment; 

(c) Any safety appliance bracket or 

support approved by FRA pursuant to 

paragraph (b) of this section shall be 

inspected and handled in accordance 

with the requirements contained in 

§ 238.229(g) through (k). 

(d) Passenger Cars of Special 

Construction. A railroad or a railroad’s 

recognized representative may submit a 

request for special approval of 

alternative compliance pursuant to 

§ 238.21 relating to the safety appliance 

arrangements on any passenger car 

considered a car of special construction 

under § 231.18 of this chapter. Any such 

petition shall be in the form of an 

industry-wide standard and at a 

minimum shall: 

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

the standard would be applicable; 

(2) As nearly as possible, based upon 

the design of the equipment, ensure that 

the standard provides for the same 

complement of handholds, sill steps, 

ladders, hand or parking brakes, 

running boards, and other safety 

appliances as are required for a piece of 

equipment of the nearest approximate 

type already identified in part 231 of 

this chapter; 

(3) Comply with all statutory 

requirements relating to safety 

appliances contained at 49 U.S.C. 20301 

and 20302; 

(4) Specifically address the number, 

dimension, location, and manner of 

application of each safety appliance 

contained in the standard; 

(5) Provide specific analysis regarding 

why and how the standard was 

developed and specifically discuss the 

need or benefit of the safety appliance 

arrangement contained in the standard; 

(6) Include drawings, sketches, or 

other visual aids that provide detailed 

information relating to the design, 

location, placement, and attachment of 

the safety appliances; and 

(7) Demonstrate the ergonomic 

suitability of the proposed arrangements 

in normal use. 

(e) Any industry standard approved 

pursuant to § 238.21 will be enforced 

against any person who violates any 

provision of the approved standard or 

causes the violation of any such 

provision. Civil penalties will be 

assessed under part 231 of this chapter 

by using the applicable defect code 

contained in Appendix A to part 231 of 

this chapter. 

12. Section 238.231 is amended by 

revising paragraph (b) and paragraph 

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

read as follows: 

§ 238.231 Brake system. 

* * * * * 

(b) The design of passenger 

equipment ordered on or after 

September 8, 2000, or placed in service 

for the first time on or after September 

9, 2002, shall not require an inspector 

to place himself or herself on, under, or 

between components of the equipment 

to observe brake actuation or release. 

This requirement will be met if the 

passenger equipment is designed or 

equipped and handled in accordance 

with any of the following: 

(1) Designed to permit actual visual 

observation of the brake actuation and 

release without the inspector going on, 

under, or between the equipment; 

(2) Equipped with piston travel 

indicators as defined in § 238.5 or 

devices of similar design and the 

equipment is inspected pursuant to the 

requirements contained in § 238.313 (j); 

or 

(3) Equipped with brake indicators as 

defined in § 238.5, designed so that the 

pressure sensor is placed in a location 

so that nothing may interfere with the 

air flow to brake cylinder and the 

equipment is inspected pursuant to the 

requirements contained in § 238.313 (j). 

* * * * * 

(h) * * * 

(3) Except for MU locomotives, on 

locomotives so equipped, the hand or 

parking brake as well as its parts and 

connections shall be inspected, and 

necessary repairs made, as often as 

service requires but no less frequently 

than every 368 days. The date of the last 

inspection shall be either entered on 

Form FRA F 6180–49A, suitably 

stenciled or tagged on the equipment, or 

maintained electronically provided FRA 

has access to the record upon request. 

(4) A train’s air brake shall not be 

depended upon to hold unattended 

equipment (including a locomotive, a 

car, or a train whether or not locomotive 

73094 Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 

is attached). For purposes of this 

section, ‘‘unattended equipment’’ means 

equipment left standing and unmanned 

in such a manner that the brake system 

of the equipment cannot be readily 

controlled by a qualified person. 

Unattended equipment shall be secured 

in accordance with the following 

requirements: 

(i) A sufficient number of hand or 

parking brakes shall be applied to hold 

the equipment. Railroads shall develop 

and implement a process or procedure 

to verify that the applied hand or 

parking brakes will sufficiently hold the 

equipment with the air brakes released; 

(ii) Except for equipment connected to 

a source of compressed air (e.g., 

locomotive or ground air source), prior 

to leaving equipment unattended, the 

brake pipe shall be reduced to zero at 

a rate that is no less than a service rate 

reduction; 

(iii) At a minimum, the hand or 

parking brake shall be fully applied on 

at least one locomotive or vehicle in an 

unattended locomotive consist or train; 

(iv) A railroad shall develop, adopt, 

and comply with procedures for 

securing any unattended locomotive 

required to have a hand or parking brake 

applied when the locomotive is not 

equipped with an operative hand or 

parking brake; 

(v) A railroad shall adopt and comply 

with instructions to address throttle 

position, status of the reverser lever, 

position of the generator field switch, 

status of the independent brakes, 

position of the isolation switch, and 

position of the automatic brake valve, or 

the functional equivalent of these items, 

on all unattended locomotives. The 

procedures and instruction shall take 

into account weather conditions as they 

relate to throttle position and reverser 

handle; and 

(vi) Any hand or parking brakes 

applied to hold unattended equipment 

shall not be released until it is known 

that the air brake system is properly 

charged. 

* * * * * 

13. Section 238.303 is amended by 

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

as follows: 

§ 238.303 Exterior calendar day 

mechanical inspection of passenger 

equipment. 

* * * * * 

(e) * * * 

(17) Each air compressor, on 

passenger equipment so equipped, shall 

be in effective and operative condition. 

MU passenger equipment found with an 

inoperative or ineffective air compressor 

at the time of its exterior calendar day 

mechanical inspection may remain in 

passenger service until the equipment’s 

next exterior calendar day mechanical 

inspection where it must be repaired or 

removed from passenger service; 

provided, all of the following 

requirements are met: 

(i) The equipment has an inherent 

redundancy of air compressors, due to 

either the make-up of the train consist 

or the design of the equipment; 

(ii) The railroad demonstrates through 

verifiable data, analysis, or actual 

testing that the safety and integrity of a 

train is not compromised in any manner 

by the inoperative or ineffective air 

compressor. The data, analysis, or test 

shall establish the maximum number of 

air compressors that may be inoperative 

based on size of the train consist, the 

type of passenger equipment in the 

train, and the number of service and 

emergency brake applications typically 

expected in the run profile for the 

involved train; 

(iii) The involved train does not 

exceed the maximum number of 

inoperative or ineffective air 

compressors established in accordance 

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

(iv) A qualified maintenance person 

determines and verifies that the 

inoperative or ineffective air compressor 

does not compromise the safety or 

integrity of the train and that it is safe 

to move the equipment in passenger 

service; 

(v) The train crew is informed in 

writing of the number of units in the 

train consist with inoperative or 

ineffective air compressors at the 

location where the train crew first takes 

charge of the train; 

(vi) A record is maintained of the 

inoperative or ineffective air compressor 

pursuant to the requirements contained 

in § 238.17(c)(4); and 

(vii) Prior to operating equipment 

under the provisions contained in this 

paragraph, the railroad shall provide in 

writing to FRA’s Associate 

Administrator for Safety the maximum 

number of inoperative or ineffective air 

compressors identified in accordance 

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

(viii) The data, analysis, or testing 

developed and conducted under 

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

be made available to FRA upon request. 

FRA’s Associate Administrator for 

Safety may revoke a railroad’s ability to 

utilize the flexibility provided in this 

paragraph if the railroad fails to comply 

with the maximum limits established 

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

maximum limits are not supported by 

credible data or do not provide adequate 

safety assurances. 

* * * * * 

14. Section 238.307 is amended by 

adding paragraph (c)(13) and by revising 

paragraph (d) to read as follows: 

§ 238.307 Periodic mechanical inspection 

of passenger cars and unpowered vehicles 

used in passenger trains. 

* * * * * 

(c) * * * 

(13) The hand or parking brake shall 

be applied and released to determine 

that it functions as intended. 

(d) At intervals not to exceed 368 

days, the periodic mechanical 

inspection shall specifically include the 

following: 

(1) Inspection of the manual door 

releases to determine that all manual 

door releases operate as intended; and 

(2) Inspection of the hand or parking 

brake as well as its parts and 

connections to determine that they are 

in proper condition and operate as 

intended. The date of the last inspection 

shall be either entered on Form FRA F 

6180–49A, suitably stenciled or tagged 

on the equipment, or maintained 

electronically provided FRA has access 

to the record upon request. 

* * * * * 

15. Section 238.313 is amended by 

revising the first sentence of paragraph 

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

to read as follows: 

§ 238.313 Class I brake test. 

* * * * * 

(g) * * * 

(3) Piston travel is within prescribed 

limits, either by direct observation, 

observation of a piston travel indicator, 

or in the case of tread or disc brakes by 

determining that the brake shoe or pad 

provides pressure to the wheel. * * * 

* * * * * 

(j) In addition to complying with all 

the Class I brake test requirements 

performed by a qualified maintenance 

person as contained in paragraphs (a) 

through (i) of this section, railroads 

operating passenger equipment that 

does not comply with the design 

requirement of § 238.231(b)(1) shall 

perform an additional inspection. At a 

minimum, the additional inspection 

requirement for equipment so designed 

shall include all of the following: 

(1) An additional inspection by a 

qualified maintenance person of all 

items and components contained in 

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

section; 

(2) The additional inspection shall be 

conducted at an interval not to exceed 

five (5) in-service days and shall be 

conducted while the equipment is over 

an inspection pit or on a raised 

inspection track; and 

Federal Register / Vol. 70, No. 235 / Thursday, December 8, 2005 / Proposed Rules 73095 

(3) A record of the additional 

inspection shall be maintained pursuant 

to the requirements contained in 

paragraph (h) of this section. This 

record can be combined with the Class 

I brake test record. 

16. Section 238.321 is added to read 

as follows: 

§ 238.321 Out-of-service credit. 

When a passenger car is out of service 

for 30 or more consecutive days or is out 

of service when it is due for any test or 

inspection required by § 238.307 or 

§ 238.309 an out of use notation 

showing the number of out of service 

days shall be made in the records 

required under § 238.307(e) and 

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

of service for one or more periods of at 

least 30 consecutive days, the interval 

prescribed for any test or inspection 

required by § 238.307 and § 238.309 

may be extended by the number of days 

in each period the passenger car is out 

of service since the last test or 

inspection in question. A movement 

made in accordance with § 229.9 of this 

chapter or § 238.17 is not considered 

service for the purposes of determining 

the out-of-service credit. 

Issued in Washington, DC, on November 

30, 2005. 

Joseph H. Boardman, 

Federal Railroad Administrator. 

[FR Doc. 05–23672 Filed 12–7–05; 8:45 am] 

BILLING CODE 4910–06–P