[Federal Register Volume 70, Number 235 (Thursday, December 8, 2005)]
[Proposed Rules]
[Pages 73070-73095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23672]



[[Page 73069]]

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Part II





Department of Transportation





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Federal Railroad Administration



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49 CFR Parts 229 and 238



Passenger Equipment Safety Standards; Miscellaneous Amendments and 
Attachments of Safety Appliances on Passenger Equipment; Proposed Rule

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

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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).

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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:
    <bullet> Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    <bullet> Fax: 202-493-2251.
    <bullet> Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
    <bullet> 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.
    <bullet> 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,

[[Page 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

[[Page 73072]]

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:
    <bullet> AAR, including members from BNSF Railway Company (BNSF); 
CSX Transportation, Incorporated (CSX); and Union Pacific Railroad 
Company (UP);
    <bullet> 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;
    <bullet> 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-of-service 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

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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 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 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 Sec.  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

[[Page 73074]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 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 indicators 
envisioned by FRA to meet the Sec.  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 low-slung 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 Sec.  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 Sec.  
238.5. The equipment would also be required to receive a periodic brake 
inspection by a QMP 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. In addition, the 
railroad performing the

[[Page 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 Sec. Sec.  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

[[Page 73076]]

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:
    <bullet> The safety implications related to the continued use of 
existing passenger equipment with welded safety appliances or welded 
safety appliance brackets or supports;
    <bullet> 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;
    <bullet> Alternative approaches to mandatory modification of 
existing equipment (e.g., inspection protocols) and the economic 
implication of any suggested approach;
    <bullet> Clarification of existing regulatory requirements as they 
relate to the welding of safety appliances and their brackets or 
supports;
    <bullet> 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:
    <bullet> What part or parts of an appliance should FRA allow to be 
welded?
    <bullet> What quality control standards should apply to the welding 
process (e.g., industry recognized welding standards)?
    <bullet> What qualifications/training should the individual 
performing the welding or inspecting a weld need to possess?
    <bullet> How should field or shop repairs or both be conducted on 
equipment with welded safety appliances or supports?
    <bullet> When should a weld be considered defective?
    <bullet> What visual and non-destructive inspection techniques or 
industry recognized standards are appropriate for welds?
    <bullet> At what interval should welds be inspected?
    <bullet> 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, Sec.  231.12--Passenger-train cars 
with wide vestibules; Sec.  231.13--Passenger-train cars with open-end 
platforms; Sec.  231.14--Passenger-train cars without end platforms; 
and Sec.  231.23--Unidirectional passenger-train cars adaptable to van-
type semi-trailer use, there may be inconsistencies and/or 
opportunities for clarification in the construction of newly built 
passenger equipment. Many times, it is necessary to reference two or 
more sections of 49 CFR part 231 to determine if a newly constructed 
passenger vehicle meets the minimum requirements of the Federal 
regulations. However, criteria for most of today's new types of 
passenger car construction are found within 49 CFR 231.18--Cars of 
special construction. This results from the fact that modern technology 
in construction of 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

[[Page 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 Sec.  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:
    <bullet> Are there other industry recognized standards relating to 
welding or the qualifications of persons conducting such welding that 
should be considered by FRA?
    <bullet> Are the welding standards referenced by FRA accurately 
identified and are they the most recent version of the standards?
    <bullet> 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?
    <bullet> Should it be based on the linear amount of weld?
    <bullet> To what must the support or bracket be welded?
    <bullet> Is there a particular type of weld that should be used?
    <bullet> Are there specific qualifications or standards related to 
performing such welds?
    <bullet> Are the cost estimates associated with FRA's proposal 
relating to existing equipment accurate?
    <bullet> 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 Sec.  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

[[Page 73078]]

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 Sec.  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 Sec.  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

[[Page 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 Sec.  229.47 and paragraph (b)(1)(iv) of Sec.  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 diesel-powered 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 Sec. Sec.  
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 Sec.  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 Sec.  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 Sec.  
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-by-
section discussion related to Sec.  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 Sec. Sec.  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 Sec. Sec.  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

[[Page 73080]]

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 long-
standing 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

[[Page 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 cost-efficient 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:
    <bullet> Are there other types of qualified individuals capable of 
performing the proposed visual inspections?
    <bullet> Is the proposed training requirement for QMP's sufficient?
    <bullet> 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

[[Page 73082]]

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 Sec.  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 Sec.  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 Sec.  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 bi-level 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 Sec.  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 low-slung 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

[[Page 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 Sec.  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 Sec.  
238.5. The equipment would also be required to receive a periodic brake 
inspection by a QMP 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. 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 section-by-section 
analysis related to Sec.  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 Sec.  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 Sec.  
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

[[Page 73084]]

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 
Sec.  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

[[Page 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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 in-service 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-of-use 
credit has been effectively and safely utilized by the railroad 
industry for decades. As passenger equipment is generally captive 
service equipment, is generally less mechanically complex than 
locomotives, and because the provisions for which the 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 Sec. Sec.  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 Sec.  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

[[Page 73086]]

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.

------------------------------------------------------------------------
                                           20-year total    20-year NPV
               Description                      ($)             ($)
------------------------------------------------------------------------
Costs:
    Periodic Brake Inspection of Low-          4,350,000       1,957,000
     Slung Equipment....................
    Periodic Inspection of Welded Safety       3,831,000       2,335,000
     Appliances.........................
    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              2,550,000       1,275,000
     Indicators.........................
    Air Compressor--Equipment                 17,000,000       9,005,000
     Utilization........................
    Avoided Cost of Safety Appliance           9,000,000       8,370,000
     Retrofit...........................
    Out-of-Service Credit--Equipment           1,020,000         542,000
     Utilization........................
                                         -----------------
        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 cost-justified 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

[[Page 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:

----------------------------------------------------------------------------------------------------------------
                                                                                                        Total
          CFR section               Respondent      Total annual     Average time     Total annual      annual
                                     universe        responses       per  reponse     burden hours   burden cost
----------------------------------------------------------------------------------------------------------------
216.14--Special notice for       22 railroads...  9 forms........  5 minutes......  1 hour.........          $38
 repairs--passenger equipment.
229.47--Emergency Brake Valve--  22 railroads...  5 markings.....  1 minute.......  .08 hour.......            3
 Marking Brake Pipe Valve as
 such.
    --DMU, MU, Control Cab       22 railroads...  5 markings.....  1 minute.......  .08 hour.......            3
     Locomotives--Marking
     Emergency Brake Valve as
     such.
238.7--Waivers.................  22 railroads...  9 waivers......  2 hours/25 hrs.  64 hours.......        2,432
238.15--Movement of passenger    22 railroads...  1,000 cards/     3 minutes......  50 hours.......        2,350
 equipment with power brake                        tags.
 defects, and.
    --Movement of passenger      22 railroads...  288 cards/tags.  3 minutes......  14 hours.......          658
     equpment that becomes
     defective en route.
Conditional requirement--        22 railroads...  144 notices....  3 minutes......  7 hours........          329
 Notifications.
238.17--Limitations on movement  22 railroads...  200 cards/tags.  3 minutes......  10 hours.......          330
 of passenger equipment
 containing defects found at
 calendar day inspection and on
 movement of passenger
 equipment that develops
 defects en route.
    --Special requisites for     22 railroads...  76 tags........  3 minutes......  4 hours........          132
     movement of passenger
     equipment with safety
     appliance defects.
    --Crew member notification.  22 railroads...  38               30 seconds.....  32 hour........           11
                                                   notifications.
238.21--Petitions for special    22 railroads...  1 petition.....  16 hours.......  16 hours.......          608
 approval of alternative
 standards.
    --Petitions for special      22 railroads...  1 petition.....  120 hours......  120 hours......        4,560
     approval of alternative
     compliance.
    --Petitions for special      22 railroads...  2 petitions....  40 hours.......  80 hours.......        3,040
     approval of pre-revenue
     service acceptance testing
     plan.
    --Comments on petitions....  Public/RR        4 comments.....  1 hour.........  4 hours........          256
                                  Industry.
238.103--Fire Safety:
    --Procuring new passenger    5 equipment      4 equip.         540 hours......  2,160 hours....      128,000
     equipment.                   manuf.           designs.
    --Subsequent orders........  5 equipment      4 equip.         60 hours.......  240 hours......       43,200
                                  manuf.           designs.
    --Existing equipment--fire   5 manuf./22      10 analyses....  30 hours.......  300 hours......       36,000
     safety analysis.             railroads.
    --Transferring passenger     22 railroads/    1 analysis.....  20 hours.......  20 hours.......        2,400
     cars/locomotives.            AAR.
238.107--Inspection/testing/     22 railroads...  7 reviews......  60 hours.......  420 hours......       15,960
 maintenance plans--Review by
 railroads.
238.109--Employee/contractor     22 railroads...  2 notifications  15 minutes.....  1 hour.........           38
 training.
    --Training employees:        7,500 employees  2,500 indiv/100  1.33 hours.....  3,458 hours....      114,114
     Mechanical Insp.                              trainers.
238.109--Recordkeeping.........  22 railroads...  2,500 records..  3 minutes......  125 hours......        4,750
238.111--Pre-revenue service     9 equipment      2 plans........  16 hours.......  32 hours.......        2,208
 acceptance testing plan:         manuf.
 Passenger equipment that has
 previously been used in
 service in the U.S.
    --Passenger equipment that   9 equipment      2 plans........  192 hours......  384 hours......       38,400
     has not been previously      manuf.
     used in revenue service in
     the U.S.
    --Subsequent Order.........  9 equipment      2 plans........  60 hours.......  120 hours......        9,520
                                  manuf.
238.229--Safety Appliances (New
 Rqmnts):
    --Welded safety appliances   22 railroads...  22 lists.......  1 hour.........  22 hours.......          836
     considered defective:
     lists.
    --Inspection plans.........  22 railroads...  22 plans.......  16 hours.......  352 hours......       17,952
    --Remedial action: Defect/   22 railroads...  1 record.......  2.25 hours.....  2 hours........           66
     crack in weld--record.
    --Petitions for special      22 railroads...  15 petitions...  4 hours........  60 hours.......        7,200
     approval of alternative
     compliance when design of
     equipment makes it
     impractical to
     mechanically fasten safety
     appliance/safety appliance
     bracket/support to
     equipment.
    --Records of inspection/     22 railroads...  3,044 records..  4.5 hours/12     798 hours......       27,324
     repair of welded safety                                        minutes.
     appliance brackets/
     supports.
238.230--Safety Appliances--New
 Equipment (New Requirement):

[[Page 73088]]

 
    --Welded safety appliances:  22 railroads...  15 documents...  4 hours........  60 hours.......        2,280
     Documentation for
     equipment impractically
     designed to mechanically
     fasten safety appliance
     support.
238.231--Brake System (New
 Requirement):
    --Inspection and repair of   22 railroads...  2,500 forms....  21 minutes.....  875 hours......       28,875
     hand/parking brake:
     Records.
238.237--Automated monitoring:
    --Documentation for alerter/ 22 railroads...  3 documents....  2 hours........  6 hours........          228
     deadman control timing.
    --Defective alerter/deadman  22 railroads...  25 tags........  3 minutes......  1 hour.........           47
     control: Tagging.
238.303--Exterior calendar day   22 railroads...  25 notices.....  1 minute.......  1 hour.........           47
 mechanical inspection of
 passenger equipment: Notice of
 previous inspection.
    --Dynamic brakes not in      22 railroads...  50 tags/cards..  3 minutes......  3 hours........          141
     operating mode: Tag.
    --Conventional locomotives   22 railroads...  50 tags/cards..  3 minutes......  3 hours........          141
     equipped with inoperative
     dynamic brakes: Tagging
     (New Requirements).
    --MU passenger equipment     22 railroads...  6 documents....  2 hours........  12 hours.......          768
     found with inoperative/
     ineffective air
     compressors at exterior
     calendar day inspection:
     Documents.
    --Written notice to train    22 railroads...  100 messages or  3 minutes......  5 hours........          165
     crew about inoperative/                       notices.
     ineffective air
     compressors.
    --Records of inoperative     22 railroads...  100 records....  2 minutes......  3 hours........           99
     air compressors.
    --Record of exterior         22 railroads...  2,376,920        10 minutes + 1   435,769 hours..   14,578,452
     calendar day mechanical                       records.         minute.
     inspection (Old
     Requirement).
238.305--Interior calendar day
 mechanical inspection of
 passenger cars:
    --Tagging of defective end/  22 railroads...  540 tags.......  1 minute.......  9 hours........          297
     side doors.
    --Records of interior        22 railroads...  1,968,980        5 minutes + 1    196,898 hours..    6,661,714
     calendar day inspection.                      records.         minute.
238.307--Periodic mechanical
 inspection of passenger cars
 and unpowered vehicles:
    --Alternative inspection     22 railroads...  2 notifications  5 hours........  10 hours.......          380
     intervals: Notice.
    --Notice of seats/seat       22 railroads...  200 notices....  2 minutes......  7 hours........          266
     attachments broken or
     loose.
    --Records of each periodic   22 railroads...  19,284 records.  200 hrs. + 2     3,857,443 hours       71,516
     mechanical inspection.                                         minutes.
    --Detailed documentation of  22 railroads...  5 documents....  100 hours......  5 hours........       19,000
     reliability assessments as
     basis for alternative
     inspection interval.
238.311--Single car test:
    --Tagging to indicate need   22 railroads...  25 tags........  3 minutes......  1 hour.........           33
     for single car test.
238.313--Class I brake test:
    --Record for additional      22 railroads...  15,600 records.  30 minutes.....  7,800 hours....      257,400
     inspection for passenger
     equipment that does not
     comply with Sec.
     238.231(b)(1) (New
     Requirement).
238.315--Class IA brake test:
    --Notice to train crew that  22 railroads...  18,250 verbal    5 seconds......  25 hours.......          825
     test has been performed.                      notices.
    --Communicating signal:      22 railroads...  365,000 tests..  15 seconds.....  1,521 hours....       57,798
     Tested and two-way radio
     system.
238.317--Class II brake test:
    --Communicating signal:      22 railroads...  365,000 tests..  15 seconds.....  1,521 hours....       57,798
     Tested and two-way radio
     system.
238.321--Out-of-service credit
 (New Requirement):
    --Passenger Car: Out-of-use  22 railroads...  1,250 notations  2 minutes......  42 hours.......        1,386
     notation.
238.445--Automated monitoring:
    --Performance monitoring:    1 railroad.....  10,000 alerts..  10 seconds.....  28 hours.......            0
     Alerters/alarms.
    --Monitoring system: Self-   1 railroad.....  21,900           20 seconds.....  122 hours......            0
     test feature:                                 notifications.
     Notifications.
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

[[Page 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

[[Page 73090]]

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:


Sec.  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:


Sec.  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 three-sixteenths of an inch in diameter. The holes shall 
be spaced not more than 12 inches apart, measured both longitudinally 
and circumferentially, and drilled from the outer surface to an extreme 
depth determined by the formula--

D = (.6PR/S-0.6P)


Where:
D = Extreme depth of telltale holes in inches but in no case less than 
one-sixteenth inch;
P = Certified working pressure in pounds per square inch;
S = One-fifth of the minimum specified tensile strength of the material 
in pounds per square inch; and
R = Inside radius of the reservoir in inches.
    One row of holes shall be drilled lengthwise of the reservoir on a 
line intersecting the drain opening. A reservoir so drilled does not 
have to meet the requirements of paragraphs (a) and (b) of this 
section, except the requirement for a pneumatic or hydrostatic test 
before it is placed in use. Whenever any such telltale hole shall have 
penetrated the interior of any reservoir, the reservoir shall be 
permanently withdrawn from service. A reservoir now in use may be 
drilled in lieu of the tests provided for by paragraphs (a) and (b) of 
this section, but shall receive a hydrostatic test before it is 
returned to use or may receive a pneumatic test if conducted by the 
manufacturer in an appropriately safe environment.
* * * * *
    4. Section 229.47 is amended by revising paragraph (b) to read as 
follows:


Sec.  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:


Sec.  229.137  Sanitation, general requirements.

* * * * *
    (b) * * *
    (1) * * *
    (vi) Except as provided in Sec.  229.14 of this part, DMU, MU, and 
control cab locomotives designed for passenger occupancy and used in 
intercity push-pull 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:


Sec.  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.
* * * * *

[[Page 73091]]

    8. Section 238.17 is amended by revising paragraph (b) introductory 
text to read as follows:


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

* * * * *
    (b) Limitations on movement of passenger equipment containing 
defects found at time of calendar day inspection: Except as provided in 
Sec. Sec.  238.303(e)(15) 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:


Sec.  238.21  Special approval procedures.

    (a) General. The following procedures govern consideration and 
action upon requests for special approval of alternative standards 
under Sec. Sec.  238.103, 238.223, 238.229, 238.309, 238.311, 238.405, 
or 238.427; for approval of alternative compliance under Sec. Sec.  
238.201, 238.229, or 238.230; and for special approval of pre-revenue 
service acceptance testing plans as required by Sec.  238.111. 
(Requests for approval of programs for the inspection, testing, and 
maintenance of Tier II passenger equipment are governed by Sec.  
238.505.)
* * * * *
    (c) * * *
    (2) The elements prescribed in Sec. Sec.  238.201(b), 
238.229(j)(2), and 238.230(d); and
* * * * *
    10. Section 238.229 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 73092]]

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 Sec.  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 Sec.  238.21. Such a request shall explain the 
necessity for any relief sought and

[[Page 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:


Sec.  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 Sec.  
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 Sec.  
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 Sec.  238.21 relating to 
the safety appliance arrangements on any passenger car considered a car 
of special construction under Sec.  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 Sec.  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:


Sec.  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 Sec.  
238.5 or devices of similar design and the equipment is inspected 
pursuant to the requirements contained in Sec.  238.313 (j); or
    (3) Equipped with brake indicators as defined in Sec.  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 Sec.  
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

[[Page 73094]]

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:


Sec.  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 Sec.  
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:


Sec.  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:


Sec.  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 
Sec.  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

[[Page 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:


Sec.  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 Sec.  238.307 or Sec.  238.309 an out of use notation 
showing the number of out of service days shall be made in the records 
required under Sec.  238.307(e) and Sec.  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 Sec.  238.307 and Sec.  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 Sec.  229.9 of this chapter or Sec.  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