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

DEPARTMENT OF TRANSPORTATION Docket No. PTEP–1, Notice No. 3, and not addressed in a timely and effective be submitted in triplicate to the Docket manner. Federal Railroad Administration Clerk, Office of Chief Counsel, Federal In recent years, passenger train Railroad Administration, 400 Seventh accidents, such as the tragic ‘‘Sunset 49 CFR Parts 223 and 239 Street, S.W., Mail Stop 10, Washington, Limited’’ passenger train derailment [FRA Docket No. PTEP±1, Notice No. 3] D.C. 20590. near Mobile, Alabama in September 1993, have demonstrated the need to RIN 2130±AA96 FOR FURTHER INFORMATION CONTACT: Mr. Edward R. English, Director, Office of improve the way railroads respond in Passenger Train Emergency Safety Assurance and Compliance, FRA, emergency situations. On September 22, Preparedness 400 Seventh Street, S.W., RRS–10, Mail 1993, at about 2:45 a.m., barges that Stop 25, Washington, D.C. 20590 were being pushed by the towboat AGENCY: Federal Railroad (telephone number: 202–632–3349), or ‘‘Mauvilla’’ in dense fog struck and Administration (FRA), Transportation David H. Kasminoff, Esq., Trial displaced the Big Bayou Canot railroad (DOT). Attorney, Office of Chief Counsel, FRA, bridge near Mobile, Alabama. At about ACTION: Final rule. 400 Seventh Street, S.W., RCC–12, Mail 2:53 a.m., National Railroad Passenger Corporation (Amtrak) train no. 2, the SUMMARY: FRA is issuing minimum Stop 10, Washington, D.C. 20590 (telephone: 202–632-3191). ‘‘Sunset Limited,’’ en route from Los Federal safety standards for the Angeles, California to Miami, Florida SUPPLEMENTARY INFORMATION: preparation, adoption, and with 220 persons on board, struck the implementation of emergency Background displaced bridge and derailed. The three preparedness plans by railroads locomotive units, the baggage and On February 24, 1997, FRA published connected with the operation of dormitory cars, and two of the six in the Federal Register a notice of passenger trains, including all railroads passenger cars fell into the water. The proposed rulemaking (NPRM) to amend hosting the operations of rail passenger fuel tanks on the locomotive units part 223, entitled Safety Glazing service. The rule also requires each ruptured, and the locomotive units and Standards—Locomotives, Passenger affected railroad to instruct its the baggage and dormitory cars caught employees on the provisions of its plan. Cars and Cabooses,’’ by revising § 223.5 fire. Forty-two passengers and five Emergency preparedness plans must and adding a new paragraph in § 223.9 crewmembers were killed, and 103 address such subjects as to require the marking of emergency passengers were injured. The towboat’s communication, employee training and windows, and to add a new ‘‘Part 239— four crewmembers were not injured. qualification, joint operations, tunnel Passenger Train Emergency In a report on the accident released on safety, liaison with emergency Preparedness.’’ 62 FR 8330. The September 19, 1994, the National responders, on-board emergency proposed part 239 set forth minimum Transportation Safety Board (NTSB) equipment, and passenger safety Federal safety standards for the determined that several circumstances information. The plan adopted by each preparation, adoption, and hampered emergency response efforts. affected railroad will be subject to implementation of emergency NTSB Railroad-Marine Accident Report formal review and approval by FRA. preparedness plans by railroads 94/01. In its assessment of emergency These emergency preparedness connected with passenger train response at the accident site, the NTSB regulations constitute the second phase operations, including railroads hosting noted that the location of the accident in a four-phase process that began in the operations of rail passenger service. was remote (accessible only by rail, 1994. In the first phase, FRA encouraged In addition, the NPRM prescribed water, or air), fog in the area was dense railroads to examine their programs to marking, inspection, maintenance, and (requiring the use of radar to navigate determine what improvements could be repair requirements for all emergency boats), limited modes of transportation made, while in the third phase, FRA window and door exits intended for were available for bringing in personnel will review the railroad plans to egress by passengers or for access by and equipment, and the magnitude of determine if all emergency preparedness emergency responders. the accident was great. Nevertheless, the issues have been adequately addressed The overall safety record of NTSB concluded that, following the within the varying contexts of railroad conventional intercity and commuter delay while emergency responders operations. In the fourth phase, FRA passenger train operations in the United identified the location of the accident, will review the implementation and States has been exemplary. However, emergency response activities were effectiveness of these standards and accidents continue to occur, often as a efficient and effective. The report did related voluntary developments, and result of factors beyond the control of find, however, that Amtrak did not have will address the need for further the passenger railroad. Further, the rail an effective system in place to apprise rulemaking activity. passenger operating environment in the passengers of train safety features, The final rule does not apply to United States is rapidly changing— passengers were slowed during tourist and historic railroad operations. technology is advancing, equipment is evacuation by the absence of emergency However, after appropriate consultation being designed for ever-higher speeds, lighting on the passenger cars, and with the excursion railroad associations and many potential new operators of emergency responders were hindered by to determine appropriate applicability passenger equipment are appearing. their inability to obtain an adequate in light of financial, operational, or With this more complex operating passenger and crew list from Amtrak other factors unique to such operations, environment, FRA must become more until the next day. The NTSB also noted emergency preparedness requirements proactive to ensure that operators of that if the Mobile County Emergency for these operations may be prescribed passenger train service, as well as those Management Agency had held drills to by FRA that are different from those railroads hosting passenger operations, simulate a train accident, the incident affecting other types of passenger engage in careful, advance planning to commander might have learned about operations. minimize the consequences of Amtrak’s procedure for accounting for EFFECTIVE DATE: July 6, 1998. emergencies that could occur. Even passengers, and CSX Transportation, ADDRESSES: Any petition for minor incidents could easily develop Inc. (CSX Transportation), the owner of reconsideration should reference FRA into life-threatening events if they are the bridge and trackage, might have Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24631 obtained the correct telephone number Amtrak, regulations establishing minimum standards to contact the U.S. Coast Guard. Long Island Rail Road (LIRR), for the safety of cars used by railroad carriers Considerable effort has focused on MTA Metro-North Railroad (METRO- to transport passengers. Before prescribing NORTH), how to mitigate casualties after a train such regulations, the Secretary shall Northeast Illinois Regional Commuter consider— accident occurs. In this regard, even Railroad Corporation (METRA), (1) the crashworthiness of the cars; before the occurrence of the tragic Peninsula Corridor Joint Powers Board (2) interior features (including luggage accident near Mobile, FRA had tasked (CALTRAIN), restraints, seat belts, and exposed surfaces) DOT’s Volpe National Transportation Port Authority Trans-Hudson Corporation that may affect passenger safety; Systems Center (TSC), in Cambridge, (PATH), (3) maintenance and inspection of the cars; Massachusetts, to perform research and Southern California Regional Rail Authority (4) emergency response procedures and (METROLINK), to recommend emergency preparedness equipment; and Southeastern Pennsylvania Transportation (5) any operating rules and conditions that guidelines for passenger train operators. Authority (SEPTA), The results were published at the end of directly affect safety not otherwise governed Tri-County Commuter Rail Authority (TRI- by regulations. 1993 as a publication entitled RAIL), The Secretary may make applicable some or ‘‘Recommended Emergency TSC, and all of the standards established under this Preparedness Guidelines for Passenger Virginia Railway Express (VRE). subsection to cars existing at the time the Trains’’ (Volpe Report), which is During the meeting, FRA agreed to regulations are prescribed, as well as to new available to the public through the assist the passenger railroads in cars, and the Secretary shall explain in the National Technical Information Service, establishing improved working rulemaking document the basis for making Springfield, VA 22161 (DOT/FRA/ORD– relationships with their host freight such standards applicable to existing cars. 93–24—DOT–VNTSC–FRA–93–23). The railroads. FRA also promised to help the (b) INITIAL AND FINAL publication references safety REGULATIONS.—(1) The Secretary shall passenger railroads in their emergency prescribe initial regulations under subsection recommendations of the NTSB, as well response efforts in larger metropolitan (a) within 3 years after the date of enactment as many other publications on the areas by contacting emergency response of the Federal Railroad Safety Authorization subject of emergency preparedness, and agencies and eliciting more cooperation Act of 1994. The initial regulations may contains recommended guidelines between them. In addition, FRA stated exempt equipment used by tourist, historic, designed to assist passenger train that it would conduct field visits to scenic, and excursion railroad carriers to operating systems and emergency several passenger railroads to study transport passengers. response organization management in their equipment and their emergency (2) The Secretary shall prescribe final evaluating and modifying or response and training programs. regulations under subsection (a) within 5 supplementing their emergency At that same meeting, the passenger years after such date of enactment. railroads agreed to provide stronger (c) PERSONNEL.—The Secretary may response plans. A copy of the Volpe establish within the Department of Report has been placed in the public supervisory oversight of their Transportation 2 additional full-time docket for this rulemaking. emergency response and training equivalent positions beyond the number The Volpe Report recommendations programs, and stated that they would permitted under existing law to assist with address guidelines relating to offer additional, structured ‘‘hands-on’’ the drafting, prescribing, and implementation emergency plans, procedures, and training to their train crews concerning of regulations under this section. training. In addition, guidelines are the removal of emergency windows and (d) CONSULTATION.—In prescribing presented for passenger train and passenger evacuation. They also agreed regulations, issuing orders, and making to develop programs for recurring amendments under this section, the Secretary facility features intended to shorten may consult with Amtrak, public authorities emergency response time, improve the passenger car inspections, emphasizing checking of emergency equipment such operating railroad passenger service, other effectiveness of evacuating passengers, railroad carriers transporting passengers, and minimize the effects of an as windows, tools, and fire organizations of passengers, and emergency. The publication also lists extinguishers. Further, they agreed to organizations of employees. A consultation is inter-organizational emergency improve their methods of apprising not subject to the Federal Advisory protocols, which include those of fire passengers of emergency information, to Committee Act, (5 U.S.C. App.), but minutes departments, emergency medical include seat drops, placards inside each of the consultation shall be placed in the services (EMS), police departments, car, and messages in on-board public docket of the regulatory proceeding. public utilities, hospitals, and local, newsletters. While FRA was encouraged The Secretary of Transportation has State, regional, and Federal that passenger railroads had already delegated these rulemaking governments. begun to incorporate the responsibilities to the Federal Railroad In an effort to be proactive after the recommendations of the Volpe Report Administrator. 49 CFR 1.49(m). into their own emergency preparedness accident near Mobile, FRA mailed the FRA is committed to the maximum procedures and policies, more progress Volpe Report to all intercity passenger feasible use of collaborative processes in by the entire industry was needed. and commuter railroads, freight As a result of concerns raised about the development of safety regulations. railroads, the United Transportation the safety of the operation of rail Consistent with the intent of Congress Union, and the Brotherhood of passenger service, Congress enacted that FRA consult with the railroad Locomotive Engineers in March 1994 for section 215 of the Federal Railroad industry, FRA invited various their information and guidance. Safety Authorization Act of 1994, Pub. organizations to participate in a Concurrent with this mailing, FRA L. No. 103–440, 108 Stat. 4619, 4623– passenger train emergency preparedness invited the railroads to attend an 4624 (November 2, 1994), entitled working group (Working Group) to focus agency-sponsored roundtable meeting in ‘‘Passenger Car Safety Standards,’’ on the issues related thereto and build Washington, D.C., on June 9, 1994, to which amended 49 U.S.C. 20133 to read the framework for the development of a discuss the emergency preparedness as follows: Notice of Proposed Rulemaking (NPRM) issues addressed in the publication. The and, ultimately, the final rule. FRA held 23 persons attending the roundtable § 20133. Passenger cars its first Working Group meeting on included representatives from FRA and (a) MINIMUM STANDARDS.—The August 8, 1995. The 33-member the following other organizations: Secretary of Transportation shall prescribe Working Group was comprised of 24632 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations representatives from FRA and the in preparation of the final rule. The • Requiring preparation of an following other organizations: Working Group then helped FRA emergency preparedness plan, including American Public Transit Association (APTA), develop the final rule based on a periodic exercises to test employee Amtrak, consensus process, with facts and knowledge of proper procedures Association of American Railroads (AAR), analysis flowing from both the Working involving passenger illness or injury, Brotherhood of Locomotive Engineers (BLE), Group’s deliberations and information stalled trains, evacuation procedures, CALTRAIN, submitted by all commenters on the derailments, collisions, severe weather, LIRR, NPRM. In accordance with 49 U.S.C. and security threats; Maryland Mass Transit Administration 20133(d), the evolving positions of the • Coordinating applicable portions of (MARC), Working Group members—as reflected emergency preparedness plans between Massachusetts Bay Transportation Authority passenger railroads and freight railroads (MBTA), in the minutes of the group meetings and associated documentation, together that host these passenger operations; METRA, • METRO–NORTH, with data provided by the membership Extent to which safety action plans METROLINK, during their deliberations—have been should be regulated in terms of content National Association of Railroad Passengers placed in the public docket of this or format, and whether such plans (NARP), rulemaking. should be subject to FRA review and NTSB, In announcing the first meeting of the approval; • New Jersey Transit Rail Operations (NJTR), Working Group on August 8, 1995, FRA Training for auxiliary individuals Northern Indiana Commuter Transportation stated that the purpose of the meeting participating in passenger emergencies District (NICTD), (e.g., control center employees, on-board PATH, was to provide an opportunity to collectively focus on evaluating issues service staff, and appropriate Safe Travel America (STA), supervisory and maintenance SEPTA, related to passenger train emergency personnel); TRI–RAIL, preparedness, as well as to develop and • TSC, formulate plans and programs that Training for emergency responders along passenger corridor routes; United Transportation Union (UTU), and would culminate in a final rule. The • VRE. discussion focused on the key issues of Accounting for the unique emergency preparedness concerns Regulations covering comprehensive emergency notification, training of railroad employees and emergency raised by passenger operations through safety standards for rail passenger tunnels, on elevated structures, and in equipment—inspection, testing, and responders, suitability of on-board emergency equipment, and the Volpe electrified territory; maintenance of passenger equipment; • Level of training specificity Report. While FRA did not limit the equipment design and performance required for each category of employee; criteria related to passenger and crew Working Group’s discussions, the • Requiring passenger railroads to survivability in the event of a train agency requested that, at a minimum, develop and update inter-organizational accident; and the safe operation of the following topics and issues should emergency protocols with local passenger train service—supplementing be considered and addressed during the communities, in order to augment safety existing railroad safety standards, are consultation process for possible action plans; covered by a separate rulemaking and inclusion in the rule: • Providing emergency responders • are being addressed by a separate Types of safety equipment that with accurate passenger counts; and working group. The NPRM on passenger should be required in each passenger • Emergency lighting in passenger equipment safety standards was car (e.g., fire extinguishers, saws, cars (e.g., floor strip lighting, flood published in the Federal Register on hammers, and flashlights) including lighting, and emergency exit lighting), September 23, 1997. 62 FR 49728. where the equipment should be located, including standards for testing and Persons wishing to receive more who should have access to it, and how reliability. information regarding this other to avoid pilferage; FRA deliberated at length with rulemaking should refer to FRA Docket • Training for railroad employees on members of the Working Group about No. PCSS–1 and contact either Mr. the use of on-board emergency what the rule would demand of affected Edward Pritchard, Acting Staff Director, equipment; railroads, in order to achieve the goal of Motive Power and Equipment Division, • Frequency of inspection of on-board optimizing their level of preparedness Office of Safety Assurance and emergency equipment; when faced with passenger train Compliance, FRA, 400 Seventh Street, • Effective marking of emergency emergencies. The consensus was that S.W., RRS–14, Mail Stop 25, windows on each passenger car; the final rule needed to be flexible in its Washington, D.C. 20590 (telephone • Informing passengers about safety requirements to allow each railroad to 202–632–3348), or Daniel L. Alpert, procedures and emergency equipment, address the unique characteristics of its Esq., Trial Attorney, Office of Chief including locations of exit doors and individual operation. The Working Counsel, FRA, 400 Seventh Street, S.W., windows; Group recommended that FRA require Washington, D.C. 20590 (telephone • Demonstrations by on-board each affected railroad to prepare a 202–632–3186). crewmembers of emergency procedures formal emergency preparedness plan Both the proposed rule and final rule and exits after major station stops; covering broad elements, such as: on passenger train emergency • Communication capabilities of on- employee and emergency-responder preparedness were developed by FRA in board crewmembers; training; on-board crewmember consultation with the Working Group. • Requiring on-board crewmembers responsibilities; communication The proposal incorporated comments to be trained to provide cardio- between the train crew and the control submitted by the Working Group in pulmonary resuscitation (CPR) or first center, and between the control center response to a preliminary draft of the aid treatment or both; and the emergency responders; proposed rule text, and all comments • Ensuring that on-board delineation of passenger railroad and submitted in response to the NPRM crewmembers have contact telephone freight railroad responsibilities in cases were provided to members of the numbers for control centers and local of joint operations; and operations in Working Group for their consideration authorities; tunnels or over elevated structures. Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24633

However, the group urged FRA to afford penalize the railroad for this omission. the Working Group noted that even if a railroads considerable latitude to design However, if a railroad’s plan properly railroad meticulously prepares a and administer emergency preparedness provided for the maintenance of the list comprehensive and detailed emergency plans that best address each railroad’s of emergency telephone numbers, but preparedness plan, the severity level of specific safety issues and concerns, with one telephone number on a long list of an emergency and the ‘‘real life’’ each plan then subject to review and accurate numbers was found by FRA to reactions to a crisis situation by a approval by FRA. be out of date, and thus incorrect, FRA railroad’s employees (even assuming FRA incorporated the Working could use its prosecutorial discretion to that the railroad properly trained the Group’s recommendations into a draft elect not to impose a civil penalty on employees on the applicable plan’s NPRM, and mailed the draft to the the railroad. provisions in accordance with group on December 14, 1995, along with As an alternative, FRA noted in the § 239.101(a)(2)) may prevent a railroad a copy of the minutes of the first NPRM that the agency could maintain from achieving a favorable result in a meeting of the Working Group. Copies strict oversight by requiring compliance specific emergency scenario. of both documents, and other relevant with every individual element of the Accordingly, the Working Group urged enclosures, were placed in the public emergency preparedness plan, and FRA to evaluate a railroad’s response to docket for this rulemaking. The 34- impose a civil penalty in every instance an emergency situation based upon how member Working Group held its second in which a railroad failed to achieve precisely the railroad adopted and meeting on February 6–7, 1996, and was compliance. Accordingly, under this complied with its written emergency comprised of representatives from the approach, a railroad could be penalized preparedness plan, and not necessarily same organizations in attendance at the for failing to constantly update its list of upon the actual results of the plan’s first Working Group meeting. The emergency telephone numbers, implementation. Working Group reviewed the draft and neglecting to distribute applicable Consistent with both the Working presented its comments, and a copy of portions of its emergency preparedness Group’s recommendations and FRA’s the minutes of the second meeting of the plan to each and every on-line stated policy in 49 CFR part 209 with group is also included in the rulemaking emergency responder, or operating a respect to deciding whether docket. The Working Group’s comments train with an incorrect type of on-board enforcement action is the best method were then incorporated into the NPRM emergency equipment. Rather than for addressing noncompliance, that was published in the Federal stressing a determination of the overall representatives of FRA and States Register on February 24, 1997. 62 FR level of emergency preparedness participating under 49 CFR part 212 will 8330. achieved by a railroad before an consider a number of different factors While FRA has focused on crafting a emergency ever occurs, this before recommending the assessment of rule containing comprehensive enforcement philosophy would a civil penalty involving the requirements in connection with specifically focus on whether the requirements of this rule. These factors railroads adopting, implementing, and railroad in fact complied with all of the include: complying with their emergency written emergency plan procedures for • The inherent seriousness of the preparedness plans, many details implementing each plan element. FRA violation; remained unresolved at the NPRM stage invited commenters to address the • The kind and degree of potential concerning the enforcement obligations questions of what compliance safety hazard presented by the violation that FRA should impose in the final obligations should exist in the final rule, under the circumstances; rule. Among the broad range of in the context of requiring railroads to • Any actual harm to persons or possibilities, FRA noted that the final adopt and implement procedures for property already caused by the rule could impose a ‘‘reasonable care’’ achieving emergency preparedness, and violation; standard and focus on achieving what enforcement policy should be • The offending person’s general level substantial compliance, with an exercised by the agency regarding those of compliance; emphasis on determining whether each obligations. Commenters were also • The offending person’s recent railroad has demonstrated a genuine asked to review the language of the history of compliance with the good faith effort to fulfill each of the section-by-section analysis and rule text particular rule involved, especially at elements of its emergency preparedness of the proposed rule and to offer the particular location involved; plan. Under this approach, for example, suggestions on whether FRA’s • Whether a remedy other than a civil FRA would verify whether a railroad expectations for compliance with the penalty (ranging from a warning to an has established a training program for emergency preparedness plan elements emergency order) is appropriate under its employees on the applicable were too rigid, or not strict enough. the circumstances; and provisions of the emergency Although FRA did not receive many • Other factors relevant in the preparedness plan, and could impose a written comments on how the agency immediate circumstances. civil penalty on the railroad for failing should define its enforcement In drafting the final rule, FRA has to comply with this basic element of its philosophy concerning the final rule, incorporated relevant information emergency preparedness plan. However, the consensus of the Working Group derived from the investigation of the if FRA concluded that the railroad had was that FRA should not penalize a accident involving Amtrak train 1, the properly adopted a training program, railroad that has displayed its best ‘‘Sunset Limited,’’ which occurred in but during the occurrence of an actual efforts in achieving compliance and that Hyder, Arizona on October 9, 1995. In emergency several employees failed FRA should focus on evaluating the that accident, the initial notification was (under the stress of the situation) to overall quality of the emergency made by the Amtrak locomotive fulfill all of their responsibilities under preparedness plan rather than on engineer to the Southern Pacific the emergency preparedness plan, FRA finding possible minor deficiencies. The Transportation Company (SP) train would likely not penalize either the Working Group also stated that FRA dispatcher’s office in Denver, Colorado, railroad or the individuals. Also, if a should not necessarily measure the which then notified the appropriate railroad failed to designate an employee success of an emergency preparedness local emergency response agencies. The to maintain a current list of emergency plan based solely upon the outcome of SP yardmaster in Phoenix Yard also telephone numbers, FRA could clearly an emergency situation. In this regard, dialed 911 after hearing the engineer’s 24634 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations radio transmissions to the train commuter and intercity passenger permits the use of these commonly accepted dispatcher. railroads should review their practices sampling techniques to determine how many While the local emergency responders for providing this information. On additional windows in [sic] test. In general, stated that the accident was handled February 20, 1996, FRA issued these principles require that the greater the well by all parties involved, the percentage of windows initially found Emergency Order No. 20 (Notice No. 1), defective, the greater the percentage of responders noted that they were which required prompt action to windows that will have to be tested. hampered in reaching the accident site immediately enhance passenger train In addition, FRA has modified the by extremely rough terrain, initially operating rules and emergency egress emergency egress portion of the order to negotiable only by four-wheel drive and to develop an interim system safety clarify that the exterior marking requirement vehicles until graders and earth movers plan addressing cab car forward and applies to those windows that may be created a trail for conventional vehicles. multiple unit (MU) operations. 61 FR employed for access by emergency The responders were somewhat 6876, Feb. 22, 1996. In pertinent part, responders, which may be windows other confused by being provided with only a Notice No. 1 of the Emergency Order than, or in addition to, those designed for emergency egress for passengers. In addition, milepost location instead of a more stated: familiar identifier. The responders were FRA has modified the interim system safety [t]here is a need to ensure that emergency plan portion of the order to require also frustrated by the lack of an accurate exits are clearly marked and in operable discussion of the railroad’s programs and passenger count, but Amtrak has stated condition on all passenger lines, regardless of plans for liaison with and training of that once it has satellite cellular the equipment used or train control system. emergency responders with respect to telephone capabilities train conductors FRA’s regulations generally require that all emergency access to passengers. The original will report passenger counts to a central passenger cars be equipped with at least four order required discussion only of methods telephone number after leaving each emergency opening windows, which must be used to inform passengers of the location and station. In addition, the responders designed to permit rapid and easy removal method of emergency exits. during a crisis situation. The investigation of indicated that, although the emergency 61 FR 8703, Mar. 5, 1996. lighting did not function on the the Silver Spring accident has raised some concerns that at least some of the occupants On March 12, 1996, in response to the overturned passenger cars, passengers of the MARC train attempted unsuccessfully MARC train accident in Silver Spring, were able to disembark through the car to exit through the windows. Whether those Maryland on February 16, 1996, the doors and emergency windows. same people eventually were among those FRA has also included requirements NTSB issued ‘‘Safety who exited safely, or whether those persons Recommendations’’ to both the in the final rule relating to emergency were attempting to open windows that were egress from passenger trains, based not emergency windows is not known at this Maryland Mass Transit Administration upon information obtained from the time. However, there is sufficient reason for (R–96–4 through R–96–6) and FRA (R– investigations of the two more recent concern to require that measures be taken to 96–7). The NTSB was concerned train accidents in New Jersey and ensure that such windows are readily because the emergency quick-release Maryland. In the first accident, a near identifiable and operable when they are mechanisms for the exterior doors on head-on collision occurred on February needed. Accordingly, the order requires that MARC’s Sumitomo rail cars were any emergency windows that are not already located in a secured cabinet some 9, 1996 between NJTR trains 1254 and legibly marked as such on the inside and 1107 at milepost 2.8, on the borderline distance from the doors that they outside be so marked, and that a control, and the emergency controls for of Secaucus and Jersey City, New Jersey. representative sample of all such windows be Of the 331 passengers and crew on both examined to ensure operability. (FRA Safety each door were not readily accessible trains, two crewmembers and one Glazing Standards, 49 CFR Part 223, require and identifiable. The NTSB passenger were fatally injured, and an that each passenger car have a minimum of recommended that emergency quick- additional 162 passengers reported four emergency window exits ‘‘designed to release mechanisms for exterior doors minor injuries. In the second accident, permit rapid and easy removal during a crisis on MARC cars be well marked and a near head-on collision occurred on situation.’’) relocated, so that they are immediately February 16, 1996 between MARC train 61 FR 6880, Feb. 22, 1996. adjacent to the door control and readily 286 and Amtrak train 29 on CSX On February 29, 1996, FRA issued accessible for emergency escape. The Transportation, at Silver Spring, Notice No. 2 to Emergency Order No. 20 NTSB also noted that the left and right Maryland, milepost 8.3. The accident to refine three aspects of the original rear exterior side doors of the first car resulted in 11 fatalities, involving three order, including providing more and the front interior end door and the crewmembers and eight passengers, and detailed guidance on the emergency right front exterior door of the second at least 12 non-fatal injuries to egress sampling provision. 61 FR 8703, car were jammed, and observed that passengers of the MARC train. Mar. 5, 1996. In pertinent part, Notice none of the car doors had removable While many of the questions raised by No. 2 of the Emergency Order stated: windows or pop-out emergency escape the New Jersey and Maryland train panels (kick panels) for use in an accidents are currently being addressed The original order required but did not set emergency. parameters for testing a representative by the working group which is sample of emergency exits. The alteration to In addition, the NTSB stated that considering regulations covering rail the emergency egress provisions requires that several train passengers were unaware passenger equipment safety, the sampling of emergency window exits be of the locations of emergency exits, and important issue of emergency egress is conducted in conformity with either of two none knew how to operate them. The being addressed by this emergency alternate methods commonly recognized for NTSB found that the interior emergency preparedness rulemaking. Specifically, such efforts. This modification provides a window decals were not prominently the Maryland accident raised serious degree of uniformity industry wide. These displayed and that one car had no concerns as to whether MARC methods require sampling meeting a 95 interior emergency window decals. passengers had sufficient information percent confidence level that all emergency Also, the exterior emergency decals window exits operate properly (i.e., the about the location and operation of methods do not accept a defect rate of 5 were often faded or obliterated, and the emergency exits to enable them to find percent). Although the original order would information on them, when legible, and use those exits in an emergency or have required testing all exits on a specific directed emergency responders to accident. FRA believes that in addition series or type of car if one such car had a another sign at the end of the car for to marking the emergency exits, all defective window exit, the amended order instructions on how to open emergency Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24635 exits. The NTSB recommended that all proposed in the NPRM, including the minutes of the August 28, 1997 emergency exits be clearly identified, requiring inspection and testing of all Working Group meeting is included in with easily understood operating emergency window exits as part of the public docket for this rulemaking, instructions prominently located on routine car maintenance to ensure and a detailed discussion of the meeting each car’s interior, for use by correct operation and ease of egress, follows in the ‘‘Discussion of Comments passengers, and on each car’s exterior, offering emergency responder training and Conclusions’’ portion of this final for use by emergency responders. for every jurisdiction within each rule. commuter railroad’s service area, and Based upon its investigation, the Development of the Passenger Safety educating passengers on the use of NTSB recommended that FRA: Program emergency exits on commuter trains. Inspect all commuter rail equipment to As discussed above, this final rule is determine whether it has: (1) easily The commuter railroads also indicated accessible interior emergency quick-release that each one will ensure the safety of one element of a comprehensive effort mechanisms adjacent to exterior passageway its operation by adopting a to improve the safety of rail passenger doors; (2) removable windows or kick panels comprehensive system safety plan that: service. In addition to this rulemaking, FRA is currently dealing with related in interior and exterior passageway doors; (a) Defines the overall safety effort, how it and (3) prominently displayed retroreflective is to be implemented and the staff required issues in several contexts. Recent signage marking all interior and exterior to maintain it; actions concerning passenger safety emergency exits. If any commuter equipment (b) Establishes the safety interface within needs have included, for instance, lacks one or more or these features, take the railroad, as well as with its key outside Emergency Order No. 20, which appropriate emergency measures to ensure agencies; addressed, on an interim basis, key corrective action until these measures are (c) Clearly indicates Senior Management issues regarding railroad operating incorporated into minimum passenger car support for implementing the safety plan and safety standards. (Class 1, Urgent Action) rules, inspection of required emergency the railroad’s overall commitment to safety; window exits, and emergency exit (R–96–7) (d) Establishes the safety philosophy of the organization and provides the means for signage and marking. Safety Recommendation R–96–7 at page In the Passenger Equipment Safety 3. implementation; (e) Defines the authority and Standards Working Group, FRA is On March 26, 1996, FRA convened a responsibilities of the safety organization and examining possible requirements for joint meeting of the Passenger Train delineates the safety related authority and improved emergency egress features for Emergency Preparedness Working responsibilities of other departments; and both retrofit and new construction. Group and the Passenger Equipment (f) Incorporates safety goals and objectives Affected railroads have completed the Safety Standards Working Group to into the overall corporate strategic plan. removal of latches requiring special discuss the NTSB’s recommendations APTA’s Commuter Railroad Committee tools for access to manual releases on and incorporate the Safety Board’s letter at pages 1 and 2. powered doors. Separately, FRA is findings, as appropriate, into each As part of the ongoing review process reviewing the totality of emergency working group’s rulemaking proceeding. within DOT, and subsequent to the egress requirements and the issue of Fifty-seven members from 21 different Working Group’s previous opportunities their overall adequacy, including the organizations attended the joint to review the rule text of the NPRM, relocation of manual releases to meeting. Although some of the FRA implemented changes to the draft locations immediately adjacent to end recommendations involving structural proposed regulatory text and preamble. vestibule doors. FRA anticipates that modifications to rail equipment are FRA initiated those changes in order to these efforts will be advanced through being dealt with by the Passenger strengthen the rule’s requirements and the collaborative rulemaking process. Equipment Safety Standards Working establish more objective criteria for However, if necessary to ensure prompt Group, the remaining NTSB FRA’s review of each railroad’s action, FRA may propose specific recommendations involving marking, emergency preparedness plan. In a letter requirements based upon its own staff inspection, maintenance, and repair of dated December 27, 1996, FRA sent a analysis. emergency exits are reflected in copy of the revised proposed regulatory In the context of improving railroad § 223.9(d), entitled ‘‘Requirements for text to members of the Working Group, communications, FRA’s Railroad Safety new or rebuilt equipment,’’ and and requested comments on issues that Advisory Committee (RSAC) established § 239.17, entitled ‘‘Emergency exits.’’ the members wished to see included in a working group to specifically address The Section-by-Section Analysis the preamble section of the proposal. communication facilities and contains a detailed discussion of FRA’s FRA requested that all comments be procedures, with a strong emphasis on new requirements, particularly in light submitted to FRA by the close of passenger train emergency of the two 1996 accidents in New Jersey business on January 8, 1997. The NPRM requirements. The NPRM in this and Maryland and the NTSB’s safety was then published in the Federal proceeding was published on June 26, investigations and recommendations. Register on February 24, 1997. 1997, reflecting the consensus In a letter to FRA dated June 24, 1996, In a letter to the Working Group dated recommendations of the RSAC. The Donald N. Nelson, President of Metro- August 8, 1997, FRA noted that it had final rule will address the need for North and Chairperson of APTA’s completed its review of the oral and redundant communications capability Commuter Railroad Committee, written comments on the NPRM. As part on all passenger trains. Although that announced that commuter railroads of the drafting process of the final rule, rulemaking will establish minimum nationwide were implementing a series FRA invited members of the Working safety requirements with respect to of rail passenger safety initiatives Group to attend a meeting on August 28, communications equipment, it should building on the provisions of FRA’s 1997 to discuss a number of significant be noted that intercity and commuter Emergency Order No. 20 and the issues that had been identified by the railroads already make extensive NTSB’s Safety Recommendations R–96– commenters and to consider FRA’s provision for ensuring communication 4 through R–96–7. In pertinent part, all recommendations. Based upon the capabilities during emergencies. commuter rail authorities committed to helpful participation and cooperation of FRA is engaged in a four-phase early voluntary implementation of the the Working Group at that meeting, FRA process to address emergency emergency preparedness requirements then completed the final rule. A copy of preparedness. In the first phase, in 1994, 24636 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

FRA distributed the Volpe Report (as Fire Department; Office of Emergency shall have a minimum of one on-board described above) and encouraged Management of DuPage County, Illinois; crewmember who is qualified under the railroads to examine their existing Illinois Law Enforcement Training applicable emergency preparedness programs to determine what Standards Board; METRA; and the plan’s provisions.’’ 62 FR at 8356, 8357. improvements could be made. The Village of Wheeling, Illinois. At the FRA acknowledges the safety benefit in present rulemaking represents the public hearing held in New York City having each railroad provide emergency second step in this process, formalizing on April 7, 1997, four organizations preparedness training to every on-board a planning requirement and identifying were represented: APTA; BLE; employee (including employees of certain mandatory elements. The third Omniglow Corporation (Omniglow); and contractors), and anticipates that phase will begin as FRA reviews UTU. Ten organizations and one railroads will voluntarily elect to train railroad plans to determine that the individual submitted post-hearing most, if not all, on-board personnel in issues presented by the Volpe Report written comments: AAPRCO; AAR; emergency response procedures, but and the rule have been adequately Amtrak; APTA; CALTRAIN; Littleton, FRA recognizes the practical limits of an addressed within the varying contexts of Colorado Fire Department; LIRR; expansive definition of ‘‘crewmember.’’ the commuter authority operations. FRA NICTD; NTSB; UTU; and Kieran Darcy. Among the comments received, APTA will conduct a detailed review of each In a letter to the members of the noted that the proposed definition of plan. Following preliminary review and Working Group dated August 8, 1997, ‘‘crewmember’’ is overbroad, and brings final approval of written plan FRA noted that a significant number of in classes of workers such as security submissions, FRA will determine how issues and concerns had been raised by forces, service providers, marketing the program is being implemented in commenters on the NPRM. In the spirit staff, survey takers, and hosts. Certain the field. FRA will also be interested in of continuing the meaningful contract vendors providing services learning how this effort is being partnership on development of the such as food and beverage are neither integrated into the overall system safety emergency preparedness rule, FRA railroad personnel nor passengers, yet planning process that commuter convened a meeting of the Working would appear to fall under the proposed authorities have agreed to undertake. Group in Washington, D.C. on August definition. Also, some commuter FRA is optimistic that this approach 28 1997, in order to discuss the major operations lease out a bar or club car, will yield positive results, promoting issues addressed in the comments and and APTA believes that those personnel creativity and cross-fertilization of the at the public hearings and consider should not be included in the emergency preparedness planning changes to the proposal for inclusion in definition. The additional training process through FRA, APTA, and other the final rule. Among the issues expenses associated with qualifying this channels. This give-and-take approach discussed at this meeting were the: category of non-operating railroad should facilitate standardization of categories of employees required to be employees under the railroad’s matters involving interface with ‘‘qualified’’ personnel for purposes of emergency preparedness plan would not passengers, while permitting continued carrying out responsibilities under the be cost effective. APTA, therefore, adaptation of programs to local needs. emergency preparedness plan; types and requested that the definition of The fourth phase will involve FRA’s numbers of emergency simulations ‘‘crewmember’’ be revised to cover only review, after gaining at least a full year required of railroads; elements of operating personnel. Also, since on- of actual experience under the standards passenger information programs; the board service personnel typically work enacted here, of the implementation and process of formal review and approval for Amtrak in intercity service, APTA effectiveness of the standards and of the emergency preparedness plan by stated that the concept should not be related voluntary developments. In this FRA; and adoption of a single applied to commuter railroads. phase of activity, FRA will work with emergency preparedness plan for each METROLINK commented that some of interested parties to evaluate whether passenger service operation by the its conductors perform the function of further rulemaking or other action might passenger railroad and its host fare enforcement conductors, and be necessary to ensure that, for each railroad(s). Discussions follow with should be excluded from the definition program element, standards and respect to the primary issues raised by of ‘‘crewmember.’’ In addition, practices are sufficiently precise and the commenters and/or discussed by the METROLINK noted that since it may stringent to achieve the desired Working Group during the consultative contract out food service on some of its improvements in emergency process. In light of the comments intercity trains, these contract workers preparedness. Further, this review will received, FRA has reconsidered some of should also be excluded from coverage determine whether experience in the proposals. in the final rule. working with emergency responders 1. FRA proposed that a minimum of The UTU believed that a passenger indicates that additional program one on-board crewmember on a train be train should not be dispatched unless elements should be addressed. qualified under the plan. Should FRA the conductor is the qualified revise the definition of ‘‘crewmember’’ crewmember under the emergency Discussion of Comments and in the final rule to exclude on-board preparedness plan, and noted that in Conclusions service personnel from the category of serious accidents, the engineer cannot A total of 15 responses were received on-board staff that a railroad must respond because of personal injury or by FRA concerning the NPRM. Prior to qualify under the applicable provisions damage to the locomotive radio system. the two public hearings that were held of its emergency preparedness plan? In addition, the UTU stated that on- in Chicago, Illinois and New York, New Should FRA increase the minimum board personnel are not qualified on the York, five organizations submitted number of crewmembers that must be physical characteristics of the railroad written comments: American qualified? and may be asleep at the time of an Association of Private Railroad Car The NPRM defined a ‘‘crewmember’’ accident. If a train has a crewmember Owners, Inc. (AAPRCO); LIRR; METRA; as ‘‘a person other than a passenger who who is qualified under the emergency METROLINK; and UTU. At the public performs either: (1) On-board functions preparedness plan, along with a hearing held in Chicago on April 4, connected with the movement of the conductor from a freight railroad who is 1997, six organizations were train or (2) On-board service,’’ and qualified on the physical characteristics represented: APTA; Des Plaines, Illinois proposed that ‘‘each passenger train of the railroad, the two individuals Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24637 could coordinate emergency efforts. The who risk injury if they try to do so. board the train (i.e., railroad employees, BLE stated that the training that is Accordingly, since these attendants or employees of contractors to railroads, developed for the qualified individual could prove invaluable in assisting both who have been assigned to perform responsible for communications must the passengers and the emergency service subject to the Federal hours of include the engineer in order to reflect responders during the initial period service laws during a tour or duty), but a redundancy factor for on-board after the occurrence of the emergency, exclude persons who provide on-board personnel, and noted that the final rule FRA concludes that the emergency food or beverage service or security should not count on-board preparedness plan must provide for protection. In addition, all of the on- crewmembers employed as service proper training of these individuals. board operating employees (along with attendants as qualified crewmembers. FRA also recognizes that in the sleeping car and coach attendants Upon careful consideration of the aftermath of an emergency the assigned to intercity service) must be comments, FRA concludes that rail crewmembers will have many important trained and qualified under the plan’s passenger safety will be enhanced by responsibilities, including maintaining provisions. limiting the definition of contact with the control center, ensuring 2. Should tabletop exercises not count ‘‘crewmember’’ to exclude on-board proper protection of the train, and toward the requirement to conduct railroad and contractor employees who providing for the safety of the emergency simulations, and instead have little knowledge of emergency passengers. If the emergency involves a should at least one full-scale simulation preparedness issues and railroad collision or derailment, one or more of be required during the time period operations (e.g., security forces, the crewmembers may be injured and specified? If so, should the minimum marketing staff), while simultaneously unable to carry out his or her duties. In number of activities be adjusted to requiring that all operating employees an effort to increase the number of reflect the increased quality of the (and sleeping car and coach attendants crewmembers who will be available to simulation program? Should railroads on trains operating in intercity service) implement the railroad’s emergency be required to develop training be qualified under the emergency preparedness plan, the final rule programs for emergency responders and preparedness plan. In reaching this requires that all on-board operating their organizations? conclusion, FRA recognizes that employees be qualified under the Although FRA noted in the NPRM individuals who merely sell food and applicable provisions of the emergency that a tabletop exercise is relatively easy beverages to passengers onboard a preparedness plan. See to orchestrate, ‘‘as it involves only a passenger train, but are not involved § 239.101(a)(2)(vi). Of course, in the meeting room and knowledgeable with the train’s operation, may be event that a railroad operates a train managers and employees from the incidental to the railroad’s overall plan with the engineer as the only passenger train operator and the for emergency preparedness. However, crewmember, then the railroad will be appropriate responding organizations FRA believes that sleeping car and in full compliance provided that the who voluntarily participate,’’ FRA coach attendants on intercity trains can engineer is fully trained and qualified stated that it might include a play a very key role in precipitating under the plan. comprehensive requirement in the final passenger evacuation during the Accordingly, FRA is revising the rule involving multiple numbers of full- aftermath of an emergency. definition of ‘‘crewmember,’’ as it scale disaster simulations. See 62 FR at Unlike passengers on commuter applies for purposes of intercity service, 8346. The NPRM set forth a requirement trains, who generally remain aboard to include both operating employees on for railroads operating passenger train their trains for short time periods and board the train (i.e., railroad employees, service to conduct emergency have minimal direct dealings with or employees of contractors to railroads, simulations, either full-scale or table crewmembers, passengers traveling in who have been assigned to perform exercises, in order to determine their overnight trains have frequent contact service subject to the Federal hours of capabilities to execute their emergency with their coach and sleeping car service laws during a tour or duty) and preparedness plans. 62 FR at 8257, attendants. While commuter trains individuals who serve as sleeping car or 8258. The proposal required each generally operate through densely coach attendants. Instead of permitting commuter or short-haul railroad to populated metropolitan or suburban an intercity train to operate with a conduct enough simulations to include areas, intercity-passenger trains, by their minimum of only one crewmember who each major line at least once during very nature, face a greater likelihood is qualified under the railroad’s every two calendar years at least 50 that if an emergency situation occurs it emergency preparedness plan, the final percent of the total number of major will happen in a remote area not readily rule requires that all on-board operating lines during any given calendar year. accessible by members of the emergency employees be trained and qualified Railroads providing intercity passenger responder community. The location of under the plan’s provisions. However, a train service were to conduct at least the emergency, unclear jurisdictional narrow exception will exist when a two emergency simulations during each authority, lack of road access, lack of freight train crew serves as the relief calendar year for each business unit or emergency equipment, or unavailability crew on a passenger train. In this other major organizational element. of knowledgeable and skilled personnel limited circumstance, the final rule could prevent police, emergency permits the passenger train to operate, Comments Received medical technicians, or other emergency provided that at least one on-board Amtrak stressed that tabletop response personnel from making a operating crewmember from the simulation exercises can accomplish timely response and hamper evacuation. passenger train is properly trained and many of the same objectives as full-scale The coach and sleeping car attendants qualified under the railroad’s plan and exercises, but at a much lower cost. It will be aware of the approximate available to perform excess service in noted that the actual emergency number of passengers on board the the event of an emergency situation. See response activities required when real intercity train and likely know how 49 U.S.C. 21102(a) and 21103. For accidents occur also provide an ongoing many passengers with impaired purposes of all other categories of source of preparedness and insight with mobility may be unable to evacuate the passenger train service, FRA is revising respect to possible improvements. train on their own through the the definition of ‘‘crewmember’’ to Amtrak also opined that tabletop emergency window and door exits or apply only to operating employees on simulations, plus actual emergency 24638 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations response situations that inevitably drills. Tabletop exercises, with follow- many of the fire departments overlap to occur, should be sufficient to up debrief and critique, are very such an extent, that by performing the accomplish the objectives of evaluating effective and less administratively set number of route simulations in the and improving the ability of railroads burdensome. Certain exercises, such as proposal, some of the departments and emergency responders to function window removal or after-dark could be involved in three or more effectively in the event of an accident. conditions, can be performed as part of simulations per year. Because of Amtrak recommended that if the final a tabletop drill by moving to the nearest liability and publicity concerns, most rule requires some actual full-scale rail facility. Subsequent to the Working fire departments would elect to be fully experiences each year, an actual Group meeting held in Washington, D.C. involved, but too many simulations may response, accompanied by an on August 28, 1997, CALTRAIN dilute the aggressiveness of the appropriate debriefing and critique, recommended that any full activation of emergency responders. METRA satisfy that requirement. the emergency preparedness plan in suggested that the number of required APTA stated that the simulation either an actual accident or other simulations should be reduced in the requirement should be either deleted or emergency situation count as a final rule to only two per year, and that made optional, and noted that simulation, instead of only triggering a videotaping of emergency simulations commuter railroads agree with the 180-day extension of the timeframe in could be used in the preparation of intent of the regulation, but object to a which to perform the full-scale training for future simulations. prescriptive approach. APTA observed simulation, while if no such activation In its comments, the NTSB expressed that simulations, especially full-scale occurred, then the two-year cycle would concern that a railroad could comply ones, are time consuming, expensive, apply. Since a ‘‘real’’ activation would with the rule by only performing and benefit a small percentage of be fully evaluated and modifications tabletop exercises each time it conducts employees. It stated that in view of would be made, a ‘‘simulated’’ drill an emergency simulation. The NTSB these factors, the requirement to would be burdensome and redundant. stated that a tabletop simulation perform simulations at all combined Also, while CALTRAIN makes exercise is not equal to a comprehensive with the requirement to perform reasonable efforts to contact and invite full-scale exercise, since only a full- simulations on 50 percent of main lines area agencies, attendance is not scale exercise involving personnel and each year, goes beyond what is mandatory. It argued that the final rule equipment can demonstrate an necessary for emergency preparedness. should discuss ‘‘best efforts to contact, organization’s capability and readiness APTA also noted that since train, and participate’’ in drills, since to respond to a disaster. It also noted emergency responders are not required response agencies have budgetary and that full-scale exercises best afford a to attend, commuter railroads often hold other issues with which to contend that railroad the ability to assess the full-scale training sessions that are affects their ability to participate in effectiveness of its emergency response poorly attended. It argued that each emergency drills on any given day. plan and to identify the resources railroad should be permitted to METRA commented that it has 13 necessary to support its plan in an maintain operational flexibility to major lines, and would have to hold 6.5 actual emergency, as well as to uncover determine the best way to involve simulations each year under the specific problems, and that emergency emergency responders. proposal. It noted that the participants response personnel can only become The LIRR noted that emergency would also have to be trained before familiar with railroad equipment by response agency costs vary and are each simulation, and under proposed 49 participating in full-scale search-and- difficult to uantify, since the majority of CFR 239.105, debriefing and critique rescue scenarios. fire departments and ambulance crews sessions would be held afterward. The Office of Emergency Management are volunteers. Since they are METRA assumes that responder of DuPage County, Illinois commented volunteers, it may be difficult for the preplanning requires three weeks, the that a simulation is a much better means LIRR to get them to attend many drills. actual simulation takes two to four of training emergency responders to However, there are costs for equipment weeks to plan and coordinate, and the respond to a significant emergency than usage (e.g., fuel) and for medical critique is performed a week after the a classroom alone. However, DuPage supplies (e.g., bandages and splints). simulation and compiled and acted County has three METRA lines running The railroad noted that, including upon the following week, for a total of through it (and a fourth in planning), preparation, it takes two full months to 58.5 weeks spent performing 6.5 and would have to perform two plan a full-scale simulation, integrate it simulations. Under the proposal, simulations annually in addition to with the responding agencies, METRA contends that it would have to meeting other Federal emergency coordinate and integrate it with the conduct more than five simulations per planning requirements. The commenter railroad’s own transportation people year due to its system size and number noted that although a tabletop exercise (track time, service disruptions, of major routes. Even if the personnel is a great way to discuss policy and talk alternative means of transportation, and budget could be found to plan and about what will likely happen, until a development of the program and conduct this level of simulation every person actually goes into the field and scenario), and then complete the drill. year, METRA believes that it is stands next to the rail car or has to move Internally, the LIRR uses tabletop questionable that the region’s injured persons off the second level of exercises extensively for procedure emergency responders could participate a rail car, it is impossible to know how review and testing. They are used in at this level. one really does it. areas where it is difficult to get track METRA states that the Illinois Law The Des Plaines, Illinois Fire time and run the railroad, and are less Enforcement and Standards Board has Department believes that its employees effective than practical, experiential certified METRA’s program for training get more knowledge through individual drills and training because of the all law enforcement personnel training at the departmental level than minimal amount of exposure to the throughout Illinois, and requests that a they can from mass casualty situations emergency responders. ‘‘Train the Trainer’’ program be added or large-scale incidents, and notes that CALTRAIN commented that tabletop to the final rule as a means of ensuring individual training ensures that all exercises should be accorded the same a qualified response to passenger train personnel go through the hours of weight and emphasis as actual field emergencies. METRA’s concern is that classes and go out on a train to touch Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24639 it, open its doors, and take a window evolutions, allows many groups of of full-scale simulations, and they out. Employees can also attempt to individuals to have access to the received full participation from the extricate a dummy from the train. In a equipment to achieve equipment emergency responder community, the large-scale drill, personnel are assigned familiarization, and enables emergency limited funds available from FEMA to sectors, and depending on the sector responders to practice lifting the rail might prove inadequate to meet the to which they are assigned, will obtain equipment. While disaster simulations overall disaster-preparedness needs of the knowledge of just that one piece of key on one incident (e.g., a hazardous the States and local jurisdictions. the mass casualty situation, and will not materials incident or a train collision Intercity operations present special receive the broad spectrum. and a resulting fire), a classroom challenges. Amtrak noted that full-scale The UTU commented that the scenario can cover many different types simulations cause significant burdens, railroads should concentrate on case of incidents. One commenter noted that and argued that the final rule should histories more than large-scale drills. It if it had to spend a disproportionate permit tabletop simulations in lieu of stated that large-scale drills are amount of its time conducting full-scale ones. As an operator of seven expensive and time consuming, tie up numerous simulations, it would be different commuter services in this the railroad, and do not provide much forced to scale back its current program country, Amtrak noted that it would be learning opportunity. for training members of the emergency involved in a great number of In light of the written comments and responder community. simulations on commuter lines, as well testimony at the two public hearings FRA agrees with the commenters that as its intercity service, and stated that from members of the emergency the financial and logistical costs of full-scale emergency exercises involve response community, FRA has conducting full-scale simulations are weeks of preparation, commitment of reconsidered its proposal and is significantly higher than those for physical resources, and expenditure of eliminating the provision for performing tabletop simulations, including the funds for actual implementation of the a tabletop exercise in lieu of a full-scale opportunity costs of lost revenue and exercise. Track and equipment would be exercise, but scaling back the simulation the need to take railroad track and out of service during the placement, requirement to involve only one equipment out of service during the conduct, and removal of equipment meaningful full-scale simulation simulation. FRA also acknowledges that from the drill site. Significant (performed either annually or every two during ‘‘hands-on’’ classroom training a disruption of normal operations on a years depending on the size of the greater number of individuals receive rail line could occur in connection with railroad). A railroad that is considered direct access to railroad equipment than conducting a simulation. Passengers and larger, i.e., its operation includes either occurs during a large-scale drill. FRA shippers could be inconvenienced and at least 150 route miles or 200 million encourages each railroad to voluntarily equipment utilization adversely passenger miles annually, must conduct conduct tabletop exercises to identify affected. at least one full-scale simulation the emergency response capabilities of 3. What elements should be included annually, regardless of the number of its personnel in terms of their in passenger information programs? major lines or business organizational knowledge of procedures and Should surveys be required in the final elements on its operation. Each railroad equipment. However, FRA has decided rule? operating passenger train service is also that the safety objectives of this The NPRM required each railroad to required to develop a training program rulemaking are best served by requiring conspicuously and legibly post available to all on-line emergency railroads to conduct at least a minimal emergency instructions inside all responders who could reasonably be number of comprehensive, full-scale passenger cars (e.g., on car bulkhead expected to respond during an simulations to determine whether a signs, seatback decals, or seat cards) and emergency situation, with an emphasis railroad is adequately prepared for the use one or more additional methods to upon access to railroad equipment, likely variety of emergency scenarios provide safety awareness information location of railroad facilities, and that could occur on its lines. (i.e., on-board announcements, communications interface. The training In reaching its decision to focus on a laminated wallet cards, ticket program will provide information to smaller number of larger scale envelopes, timetables, station signs or emergency responders who may lack the simulations, FRA also acknowledged video monitors, public service opportunity to participate in an actual that under regulations established by announcements, or seat drops). 62 FR at simulation. The railroads could either the Federal Emergency Assistance 8357. The proposal also expected each offer the training directly or make the Agency (FEMA), States are eligible to railroad to survey representative training information and materials receive financial assistance for disaster samples of passengers at least annually available to State training institutes, preparedness under the Disaster to determine the effectiveness of its firefighter organizations (e.g., National Preparedness Improvement Grant passenger awareness program activities, Fire Protection Association), or State Program. See 44 CFR Part 300. Under and to improve its program, as police academies. this program, States can receive FEMA appropriate based on the information The consensus of the commenters was money for training and to test and developed. 62 FR at 8357. that it takes each railroad months to exercise procedures for their efforts in APTA commented that while plan a full-scale simulation, to conduct disaster response. While emergency commuter railroads should be required the drill, and to complete the debriefing responder organizations can receive to develop and use passenger emergency and critique session. Although some funds to participate in railroad accident awareness programs, the features of the full-scale simulation training is exercises and simulations, many of programs should be left to each essential, many of the commenters these same responder groups must also commuter railroad’s discretion. It stated (including members of local fire budget their limited time and resources that the final rule should be based on departments) stated that emergency in preparing for all other types of performance, not the command-and- responders also need ‘‘hands-on’’ potential disasters that could strike their control approach in the proposal. APTA training for railroad equipment, which communities, e.g., airplane crashes, also argued that the prescription is better effected through ‘‘hands-on’’ floods, and earthquakes. FRA favoring certain types of signage should classroom training. Classroom training recognized that if the final rule required be removed from the final rule, and the permits a railroad to run a number of railroads to conduct significant numbers safety awareness requirement changed 24640 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations to merely list examples of possible also provide a measure of consistency, sample size of one percent, APTA methods of disseminating safety benefiting passengers who use more concluded that the total cost to survey awareness information. APTA noted than one service provider. commuter rail passengers would be that each commuter railroad has its own Upon review of the comments on the $21,600,000 (360/2 × .01 × $12.00). unique approach to developing and passenger survey requirement, FRA Although APTA realized that the cost using tools to make passengers aware of concludes that the financial cost to each might be smaller, depending on the emergency instructions inside passenger passenger railroad of developing and number of surveys done and number of cars, and should retain flexibility to find conducting a survey capable of reaching questions asked, it stressed that the final the right mix of passenger a statistically significant cross-section of cost would be more than incidental. communication techniques. APTA its customer population in order to Amtrak commented that the survey contended that unless the passenger periodically update and improve its requirement is unnecessary and information requirement allows a passenger safety awareness information undesirable, and could undermine the railroad latitude to use innovative greatly exceeds any potential benefit. public’s opinion of the safety of train means or new technology to deliver Accordingly, FRA is deleting this travel. It noted that no other safety information, a railroad would requirement from the final rule. transportation mode is required to have to apply for a waiver to develop or In proposing the survey requirement, conduct surveys of passengers’ levels of use the new program or technology, FRA presumed that railroads would knowledge of safety information or thus delaying its introduction. merely include additional questions on procedures. Instead of performing The LIRR also commented on the customer satisfaction surveys currently mandatory surveys, Amtrak issue of passenger awareness program used to assess passenger comfort and recommended that railroads focus on activities. The railroad suggested that assist railroads in timetable planning. providing passengers with the safety awareness information could be FRA assumed that the additional costs information necessary for them to printed on a pocket-sized card in order to the railroad industry would therefore function in the event of an emergency, to remind customers of the basics of be minimal. However, three railroads as is currently done in the airline what to do in the event of an emergency and APTA commented on FRA’s industry. Amtrak shared APTA’s situation. FRA notes that proposal, convincing FRA that unless concern that since public participation § 239.101(a)(7)(ii), as proposed, already the rule required each railroad to in the survey is voluntary, railroads permits a railroad to disseminate employ a rigorous and scientific survey would have serious concerns about the information to passengers on methodology, most oral and written objectivity and validity of the results ‘‘laminated wallet cards.’’ 62 FR at 8357. surveys would likely be completed only obtained. FRA agrees with the two commenters by those passengers who are either NICTD opposed the use of passenger that requiring railroads to choose among regular riders already familiar with surveys to determine knowledge or only the seven listed additional emergency procedures or dissatisfied compliance and stated that despite the methods of providing safety awareness riders who have complaints about train rule’s flexibility in the methodology of information to their customers is too service. Without such a financially surveys, surveys would not in and of restrictive, and could discourage burdensome requirement, the survey themselves measurably contribute to railroads from being innovative. FRA results would be of little or no value to overall passenger education concerning fully expects most railroads to use either the railroads in verifying passenger emergency situations. NICTD stated that on-board service announcements, awareness of the location(s) on the the education and ongoing training of laminated wallet cards, ticket passenger car of safety information or train crews concerning emergency envelopes, timetables, station signs or knowledge of safety procedures to be situations is more productive and cost video monitors, public service followed in the event of an emergency. effective, since train crews are announcements, or seat drops as the Accordingly, since any changes made by ultimately responsible for dealing with second means of ensuring the the railroads to their passenger passengers in these situations. effectiveness of their passenger safety awareness programs might be NICTD also questioned the cost/ awareness programs. However, FRA predicated upon inaccurate or benefit factor of having employees encourages the use of alternate but incomplete information, FRA believes orally survey passengers aboard trains equally effective approaches, especially that a survey requirement would likely or at train stops, arguing that the use of if validated by information deduced not benefit passenger safety. written surveys distributed to from the debriefing and critique Consistent with FRA’s conclusion, passengers boarding trains, or provided sessions held after passenger train APTA commented that although as seat drops, would not guarantee emergency situations or simulations. passenger surveys may be useful in completion of the forms. Further, FRA is not, however, revising the determining passenger safety awareness, NICTD stressed that the requirement to requirement that railroads post there is no guarantee that they will be survey a ‘‘representative sample of emergency instructions inside all useful in fact. APTA stated that since passengers’’ each calendar year cannot passenger cars. In the event of an completion of the survey is voluntary on be assured by the survey process, emergency, passengers may experience the part of the public, the survey would whether the survey is done orally or in panic and momentarily forget any not provide any real knowledge to the writing. Oral surveys may be viewed by information that may have been railroad of passenger awareness of passengers as annoying, who will then conveyed by the crew before the train’s emergency preparedness. refuse to cooperate, and written surveys departure (e.g., through an on-board APTA also disagreed with FRA’s will likely be completed only by those announcement). FRA believes that an estimate that the survey requirement passengers who are inclined to respond. important part of the successful would entail no additional cost to each The LIRR commented that it performs implementation of this rule depends on railroad, noting that DOT recently at least one customer-satisfaction survey railroads posting convenient and estimated that on-board transit surveys per year, at a cost of $155,000 per conspicuous reminders to their cost $12 per completed survey (DOT– survey, and on a case-by-case basis passengers of the important safety 97–08, as reported in the Urban performs targeted surveys to assist in a procedures to follow in the event of an Transportation Monitor). Based upon decision-making process. The LIRR’s emergency. Such a requirement will 360 million passenger trips daily and a Market Development area input shows Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24641 that the response rate should be at least training programs on access to railroad It has become apparent to FRA during 45 percent to allow for valid projection equipment. After this initial review, as the course of the comment period that of the sample findings to the whole appropriate, FRA will then grant or there is a reluctance on the part of both population. However, the LIRR’s normal deny conditional approval of the plan in freight and passenger railroads to accept response rate of mail-back surveys that writing. Within 18 months of receipt of full responsibility for the requisite it has conducted in the past, without each emergency preparedness plan, and implementation of all of the elements of incentives, is only 15 percent. within 180 days in the case of a railroad an emergency preparedness plan. FRA 4. Should FRA modify the commencing operations after the initial is concerned that the consensus of the requirement that the agency conduct a deadlines for plan submissions, FRA commenters is that each entity expects formal review and approval of each will then complete a comprehensive the other entity to be held accountable railroad’s emergency preparedness plan review, consisting of ongoing dialogues by FRA in the event that an emergency within 180 days of receipt of the plan with rail management and labor union situation occurs and the provisions of from the railroad? representatives and field analysis and the plan are improperly executed. In The NPRM stated that within 180 verification of the railroad’s order to ensure that all railroads days of receipt of each initial emergency implementation of the plan’s provisions, involved in a particular rail passenger preparedness plan, and within 60 days followed by final approval or denial. service operation understand each one’s in the case of a railroad commencing or The bifurcated approach to approval crucial role in planning for emergency hosting passenger operations after the of the emergency preparedness plan will preparedness, instead of merely initial deadline for plan submissions, permit FRA to quickly review each plan requiring coordination of applicable FRA would conduct a formal review of for procedural compliance and portions of multiple emergency the plan. 62 FR at 8358. FRA would immediately determine if the railroad preparedness plans, the Working Group then notify the railroad of the results of has at least considered all required plan recognized the need to include a joint the review, whether the plan had been elements. However, FRA will then have submission requirement in the final approved by FRA, and if not approved, a much longer timeframe in which to rule. the specific points in which the plan evaluate the plan’s substantive CALTRAIN commented that under was deficient. 62 FR at 8358. If the plan sufficiency and the railroad’s actual the proposal, passenger or commuter was not approved by FRA, the railroad implementation. Without this change in railroads are responsible for the was required to amend its plan to the final rule, FRA would have had to relationships with host or tenant freight correct all deficiencies (and provide choose between delaying many railroads railroads. While CALTRAIN stated its FRA with a corrected copy) not later from adopting their emergency intent to work closely with such than 30 days following receipt of FRA’s preparedness plans or accepting some railroads, it noted that it has no written notice of disapproval. 62 FR at railroad plan submissions on good faith authority over the freight railroads and 8358. with little more than a cursory review. declined responsibility for their actions APTA commented that FRA should Either option would compromise the or omissions. CALTRAIN suggested that remove the time limit for approval of safety of railroad passengers and train FRA focus on evidence of a ‘‘good faith the emergency preparedness plan, and crews in the event of a passenger train effort,’’ since CALTRAIN cannot return to the original consensus emergency situation. mandate actions and cannot enforce the recommendation of the Working Group 5. Should the final rule require a joint conduct of external agencies. This that there be no deadlines. APTA stated submission of one emergency commenter urged FRA to use its that it doubted that FRA would be able preparedness plan by each railroad that enforcement powers. to turn around the plans to the provides or operates passenger train APTA agreed with FRA that the commuter rail systems within the service and (as applicable) each railroad language in an early version of the specified timeframe, and recommended that hosts such service? proposal that was shared with the that FRA should adopt a consultative In the section of the NPRM addressing Working Group, which placed the entire approach to emergency preparedness joint operations, FRA stated that each responsibility for the joint operation on instead of the approach included in the freight railroad hosting passenger train the host freight railroad, did not NPRM. service would be required to have an properly account for the responsibilities In response to APTA’s concerns, FRA emergency preparedness plan of both parties. Since the NPRM is adopting a bifurcated approach to addressing its specific responsibilities, reversed that scenario, APTA approval of the emergency preparedness and each railroad operating passenger recommends that FRA either delete or plan in the final rule. The final rule train service over the line of a freight redraft § 239.103(a)(3) to assign a specifies that within 90 days of receipt railroad would be required to coordinate measure of responsibility to the host of each initial plan, and within 45 days the applicable portions of its emergency freight railroad. APTA argued that in the case of a railroad commencing preparedness plan with the although the NPRM required operations after the initial deadline for corresponding portions of the freight coordination, it does not provide a plan submissions, FRA will conduct a railroad’s plan. 62 FR 8357. The mechanism to ensure cooperation by the limited, preliminary review to purpose for the requirement was to freight railroad to coordinate emergency determine if the required elements of ensure an optimal level of emergency efforts. If a freight railroad refuses or is the emergency preparedness rule are preparedness on the part of every unwilling to cooperate, a commuter sufficiently addressed and discussed in railroad involved in the operation of a railroad lacks recourse. The commuter the railroad’s emergency preparedness particular passenger train service. In the railroad could still be fined for not plan submission. For example, this section of the NPRM addressing the coordinating with an unwilling freight initial review will determine if the filing of the emergency preparedness railroad. Consistent with APTA’s railroad has included a section in its plan, each affected railroad would be observations, the LIRR commented that plan on liaison relationships with on- required to file its plan with FRA within the final rule needs terminology that line emergency responders, but will not 180 days of the effective date of the rule, recognizes that there is some joint yet involve field verification by FRA or at least 90 days before commencing responsibility between all of the safety inspectors that the railroad is in passenger operations, whichever is later. involved parties to a passenger fact inviting these responders to attend 62 FR at 8358. operation. 24642 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

In its comments, the AAR for its failure to comply with the the general railroad system of acknowledged that while freight requirements of part 239. transportation. These terms are intended railroads neither provide nor operate The portion of the emergency to have the same meaning as in part 239 rail passenger service themselves, and preparedness plan addressing the host of this chapter. However, FRA does not are not subject to most of the rule’s railroad’s responsibilities shall, at a intend for its definition of ‘‘railroad’’ in requirements, freight railroads still have minimum, include procedures for either this part or part 239 of this certain emergency preparedness notifying emergency responder chapter to have any bearing on how the responsibilities. The AAR organizations and discuss the railroad’s term is used for purposes of the recommended that FRA not revise the general capabilities for rendering regulatory activities of the Surface proposed language of § 239.101(a)(3), assistance to an involved passenger Transportation Board. since it is in a freight railroad’s interest railroad during an emergency situation. The host railroad must also address any 2. Requirements for New or Rebuilt to coordinate with a passenger railroad Equipment: Section 223.9 to ensure emergency preparedness. The physical and operating characteristics of AAR rejected APTA’s concern about its rail lines that may affect the safety of FRA received no comments regarding freight railroads refusing to cooperate the rail passenger operations, e.g., proposed paragraph (d), and the with the passenger railroads, arguing evacuation of passengers from a train paragraph is adopted as proposed. In that APTA, or any other interested stalled in a tunnel or on an elevated accordance with the requirements of 49 party, presented no data or evidence to structure. CFR 223.9(c) and 223.15(c), all passenger cars must be equipped with at indicate that passenger railroads have Section-by-Section Analysis experienced problems from freight least four emergency windows, which railroads refusing to coordinate As a number of the issues and must be designed to permit rapid and provisions have been discussed and emergency responses. The AAR easy removal during a crisis situation. addressed in detail in the preceding believed that FRA would never fine a Section 223.9(d) requires that all discussions, this section-by-section passenger railroad that demonstrates windows intended by a railroad to be analysis will explain the provisions of that it attempted to comply with the used during an emergency situation be the final rule and changes from the regulation, but was unable to coordinate properly marked inside and outside, NPRM by briefly highlighting the with a freight railroad due to the freight and that the railroad post clear and rationales or referring to the prior railroad’s refusal to cooperate. understandable instructions for their discussion. The discussions and use at or near the designated locations. Based upon careful consideration of conclusions contained above should be Section 223.9(d)(1) requires that the the comments, FRA is requiring considered in conjunction with the emergency windows be conspicuously communication and coordination analysis contained below. Each and legibly marked on the inside of the between all railroads affected by this comment received has been fully car with luminescent material. FRA rule involved in each passenger considered by FRA in preparing this realizes that during an emergency a operation, by mandating the submission final rule. main power supply to the passenger by the passenger railroad of one FRA amends part 223 of title 49, Code cars may become inoperative and that emergency preparedness plan that is of Federal Regulations by adding six crewmembers with portable flashlights jointly prepared. Accordingly, if a State new definitions and requiring railroads may be unavailable. Since lack of clear or public authority provides commuter operating passenger train service to identification or lighting could make it rail passenger train service by clearly mark emergency windows. FRA difficult for passengers to find the contracting with another railroad to also adds part 239 to title 49, Code of emergency exits, the rule requires actually operate the service, and the Federal Regulations specifically devoted luminescent material on all emergency passenger operation is in turn hosted by to prescribing minimum Federal safety windows to assist and speed passenger a freight railroad, all three entities are standards concerning the preparation, egress from the train during an required to work together and file one adoption, and implementation of emergency. The marking of the emergency preparedness plan for the emergency preparedness plans by emergency windows must be operation setting forth each railroad’s railroads connected with the operation conspicuous enough so that a procedures and responsibilities under of passenger trains. reasonable person, even while enduring the plan. If for example, a passenger the stress and potential panic of an operation will fulfill none of the 1. Definitions: Section 223.5 emergency evacuation, can determine requirements of emergency planning, Section 223.5 is reorganized and where the closest and most accessible with the host railroad having all of the definitions of four important terms emergency route out of the car is responsibilities under the plan, this fact employed in the passenger train located. In addition, while this must be clearly stated in the plan. emergency preparedness regulations are subsection does not prescribe a In the event of noncompliance by any added. The four new defined terms are particular brand, type, or color of or all of the entities involved in the ‘‘emergency responder,’’ ‘‘passenger luminescent paint or material that a implementation of the plan, FRA train service,’’ ‘‘person,’’ and ‘‘railroad.’’ railroad must use to identify a window reserves the right to initiate appropriate For ease of reference, FRA defines the exit, FRA intends each railroad to select enforcement action against all parties term ‘‘railroad’’ so as to include the a material durable enough to withstand participating in the plan. Of course, statutory (49 U.S.C. 20102) definitions the daily effects of passenger traffic, FRA will intervene to assist any railroad of both ‘‘railroad’’ and ‘‘railroad carrier’’ such as the contact that occurs as that is having difficulty crafting a joint and to clarify that those who provide passengers enter and leave the cars. emergency preparedness plan, and help railroad transportation directly or METROLINK, in commenting on the mediate a solution. While FRA might through an operating contractor are proposed rule, noted that the last line of not initially seek an injunction to railroad carriers. Thus, the term § 223.9(d) requires ‘‘each railroad [to] prevent a passenger train operation from ‘‘railroad’’ is clearly intended to include post clear and legible operating operating due to a host railroad’s failure commuter authorities as well as rapid instructions at or near such exits,’’ to cooperate, FRA could initiate civil transit authorities whose operations are stated that it assumes that the penalty action against the host railroad in an urban area and are connected with referenced instructions relate to the Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24643 doors rather than the windows. Contrary inform the individuals who must use determined by applying the criteria set to METROLINK’s assumption, the them. While railroads are encouraged to forth in sections 4 and 5 of the statute instructions required by this paragraph post comprehensive instructions, FRA to the maximum penalty otherwise are for operating the emergency window also realizes that during an emergency provided for in the Federal railroad exits. The requirements for posting situation every additional moment safety laws. operating instructions at or near devoted to reading and understanding emergency door exits are contained in access or egress information places lives 4. Purpose and Scope: Section 239.1 § 239.107 of this chapter. at risk. In addition, FRA expects FRA did not receive any comments, Section 223.9(d)(2) requires that the passengers and emergency responders to and this section is adopted as proposed. emergency windows intended for be already familiar with the location Section 239.1(a) states that the purpose emergency access by emergency and operation of the railroad’s of this part is to reduce the magnitude responders for extrication of passengers emergency windows as a result of of casualties in railroad operations by be marked with retroreflective material. emergency responder liaison activities ensuring that railroads involved in Since FRA recognizes that not every and passenger awareness programs passenger train operations can window will be equipped for emergency conducted in accordance with effectively and efficiently manage access, railroads are required to choose §§ 239.101(a)(5) and (a)(7). emergencies. Paragraph (b) states that a retroreflective, unique and easily 3. Appendix B to 49 CFR Part 223 these regulations provide minimum recognizable symbol that will readily standards for the subjects addressed, attract the attention of emergency FRA is revising Appendix B to 49 and the affected railroads may adopt C.F.R. part 223—Schedule of Civil responders. The final rule does not more stringent requirements, so long as Penalties, to include penalties for require a specific size or shape for the they are not inconsistent with this part. violations of the provisions of § 223.9(d) symbol, but FRA intends the railroad’s FRA does not in any way intend that the to be included in the final rule. emergency preparedness plan subject matter of 49 CFR part 239, Commenters were invited in the NPRM developed pursuant to § 239.101 of this Passenger Train Emergency to submit suggestions to FRA describing chapter to contain a provision Preparedness, be read to impose the types of actions or omissions that explaining emergency responder access burdens or requirements on emergency would subject a person to the (along with passenger car egress), responders who either participate with assessment of a civil penalty, and were consistent with the evacuation strategy railroads in emergency simulations also invited to recommend what formulated jointly by the passenger train involving the operation of passenger operator and the emergency responder penalties may be appropriate, based train service or respond to actual organizations, in accordance with the upon the relative seriousness of each emergency situations, or on any other emergency responder liaison provision type of violation. FRA did not receive person who may be involved with the set forth in § 239.101(a)(5) of this any public comments nor did the aftermath of a passenger train chapter. Of course, while the final rule Working Group present any emergency not specified in proposed does not require emergency responders recommendations to the agency on this § 239.3 concerning applicability. to participate in evacuation planning or topic. Accordingly, FRA has amended Accordingly, FRA does not intend to strategy with the railroads, the railroads the penalty schedule based on its own restrict a State from adopting a law, must offer liaison training and analysis of the inherent seriousness of rule, regulation, order, or standard assistance. violating the marking requirements for The final rule allows a marking that emergency windows of part 223. The affecting emergency responders unless it could consist of a symbol or words penalty schedule also changes the is inconsistent with 49 U.S.C. 20106. (such as ‘‘RESCUE ACCESS’’). Although maximum penalty that FRA is 5. Application: Section 239.3 FRA stated in the proposed rule that it authorized to assess for violations of the reserved the right to be more provisions of this part. The maximum As a general matter, FRA will apply prescriptive in the final rule based upon penalty is raised from $20,000 to this rule to all railroads that operate a uniform pattern, and noted that FRA $22,000 for any violation where passenger train service on the general was working to identify an appropriate circumstances warrant. This change is railroad system of transportation, marking that might be capable of intended to comply with the provisions provide commuter or other short-haul universal recognition, FRA has decided of the Federal Civil Penalties Inflation passenger train service in a metropolitan to retain the flexibility set forth in the Adjustment Act of 1990, Pub. L. 101– or suburban area, or host the operations proposal. However, if during the fourth 410, 104 Stat. 890, 28 U.S.C. 2461 note, of such passenger train service. A public phase of FRA’s comprehensive effort to as amended by the Debt Collection authority that indirectly provides address passenger safety issues FRA Improvement Act of 1996, Pub. L. 104– passenger train service by contracting determines that a uniform pattern or 134, 110 Stat. 1321–373 (April 26, out the actual operation to another symbol is required, FRA may modify the 1996), which requires Federal agencies railroad or independent contractor will marking requirements of § 223.9(d)(2) to adjust civil monetary penalties to be regulated by FRA as a railroad under during a future rulemaking action. counter inflation’s effect of diminishing the provisions of the final rule. The final rule also requires railroads the impact of these penalties. The Although the public authority will to post clear and understandable inflation adjustment is to be calculated ultimately be responsible for the instructions at designated locations by increasing the maximum civil development and implementation of an describing how to operate the monetary penalty by the percentage that emergency preparedness plan (along emergency windows. This paragraph the Consumer Price Index for the month with all related recordkeeping does not mandate that railroads use of June 1995 exceeds the Consumer requirements), the railroad or other specific words or phrases to guide the Price Index for the month of June of the independent contractor that operates the passengers and emergency responders. last calendar year in which the amount authority’s passenger train service will Instead, each railroad should evaluate of the penalty was last set or adjusted. be expected to fulfill all of the the operational characteristics of its The initial adjustment, however, may responsibilities under this part with emergency windows, and select key not exceed 10 percent. The resulting respect to emergency preparedness words or diagrams that adequately $22,000 maximum penalty was planning, including implementation. 24644 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

FRA has revised paragraph (a)(3) to operations where conventional and light other factors that may be unique to such state that all railroads hosting the rail operations are separated in time railroad carriers. The Secretary shall submit operation of passenger train service are (night/day hour specifications). In a report to Congress not later than September covered by the final rule. While FRA making this policy determination, FRA 30, 1995, on actions taken under this subsection. recognizes that the majority of host anticipates working with the FTA on a relationships are entered into by freight joint policy statement that will be Pub. L. No. 103–440, § 217, 108 Stat. railroads, there are a number of published in the Federal Register and 4619, 4624 (November 2, 1994). In instances where passenger operations discuss the types of rapid transit addition, section 215 of that Act (e.g., Amtrak) host other passenger systems covered by this rule that will be specifically permits FRA to exempt operations over their trackage. subject to FRA’s jurisdiction and which equipment used by tourist, historic, Accordingly, the final rule has been ones will instead be subject to state scenic, and excursion railroads to revised to reflect this fact. safety oversight under FTA’s transport passengers from the initial Paragraph (b)(1) of both the NPRM jurisdiction. As part of this joint policy regulations that were scheduled to be and final rule indicate that the rule does analysis by FRA and FTA, our two prescribed by November 2, 1997. 49 not apply to rapid transit operations in agencies will seek to coordinate more U.S.C. 20133(b)(1). In its report to an urban area that are not connected explicitly the requirements of FRA Congress entitled ‘‘Regulatory Actions with the general railroad system of regulations and State safety oversight Affecting Tourist Railroads,’’ FRA transportation, and this paragraph is programs. responded to the direction in the intended merely to clarify the The final rule is structured to apply statutory provision and also provided circumstances under which rapid transit to intercity and commuter service (as additional information related to tourist operations are subject to FRA well as rapid transit operations that railroad safety for consideration of the jurisdiction under this part. operate over the general railroad system Congress. FRA will address the In a final rule published in the of transportation), not tourist emergency preparedness concerns for Federal Register on December 27, 1995, operations. At a later time, FRA may these unique types of operations at a the Federal Transit Administration propose application of the rule, or some later date in a separate rulemaking (FTA) announced that it would begin portion thereof, to tourist, scenic, proceeding. To facilitate resolution of requiring states to oversee the safety of historic, and excursion railroads. FRA’s this issue, and a significant number of rail fixed guideways systems not regulatory authority permits it to tailor related issues, the Railroad Safety regulated by FRA. 60 FR 67034; see 49 the applicability sections of its various Advisory Committee (RSAC) has U.S.C. 5530, 49 CFR part 659. Under its regulations so as to expand or contract established a Tourist and Historic statutory scheme, FTA does not directly the populations of railroads covered by Railroads Working Group. As a matter of enforce safety statutes or regulations a particular set of regulations. FRA has cost efficiency, the Working Group may against rail fixed guideway systems, nor had jurisdiction over all railroads since elect to cover emergency preparedness does FTA have safety inspectors who the Federal Railroad Safety Act of 1970 planning for tourist railroads as part of enter upon the regulated properties to was enacted. a package of tourist-specific safety perform inspections. In accordance with In considering the issue of requiring proposals during a multi-day FTA’s statutory authority and the above emergency preparedness planning by consultation on several rulemaking rulemaking, FTA does not interpret tourist and historic railroad operators in dockets. FRA would then issue a Notice what constitutes commuter rail or rapid the context of this rulemaking, FRA has of Proposed Rulemaking addressing transit, but instead regulates whatever not yet had the opportunity to fully issues in several dockets that pertain to rail fixed guideway systems that FRA consult with those railroads and their these smaller passenger operations. does not. associations to determine appropriate In § 239.3(b)(2), FRA states that the As set forth in Appendix A to part 209 applicability in light of financial, requirements of this part will not apply of this chapter, with the exception of operational, or other factors that may be to the operation of private passenger self-contained urban rapid transit unique to such railroad operations. train cars, including business or office systems, FRA’s statutory jurisdiction After appropriate consultation with the cars and circus trains. While FRA extends to all entities that can be excursion railroad associations takes believes that a private passenger car construed as railroads by virtue of their place, emergency preparedness operation should be held to the same providing non-highway ground requirements for these operations may basic level of emergency preparedness transportation over rails or be prescribed by FRA that are different planning as other passenger train electromagnetic guideways, and will from those affecting other types of operations, FRA is taking into account extend to future railroads using other passenger train operations. These the financial burden that would be technologies not yet in use. For policy requirements may be more or less imposed by requiring private passenger reasons, FRA does not exercise onerous, or simply different in detail, car owners and operators to conform to jurisdiction under all of its regulations depending in part on the information the requirements of this part. Private to the full extent permitted by statute. gathered during FRA’s consultation passenger cars are often hauled by host Based on its knowledge of where the process. railroads such as Amtrak and commuter safety problems were occurring at the The Federal Railroad Safety railroads, and these hosts often impose time of its regulatory action and its Authorization Act of 1994 instructed their own safety requirements on the assessment of the practical limitations FRA to examine the unique operation of the private passenger cars. on its role, FRA has, in each regulatory circumstances of tourist railroads when Pursuant to this part, the host railroads context, decided that the best option establishing safety regulations. The Act, will already be required to have was to regulate something less than the which amended 49 U.S.C. 20103, stated emergency preparedness plans in place total universe of railroads. that: to protect the safety of their own In light of the above, FRA may elect passengers; the private car passengers In prescribing regulations that pertain to to limit the exercise of its jurisdiction railroad safety that affect tourist, historic, will presumably benefit from these over these entities for policy reasons. scenic, or excursion railroad carriers, the plans even without the rule directly FRA currently withholds the exercise of Secretary of Transportation shall take into covering private car owners or its jurisdiction over rapid transit consideration any financial, operational, or operators. In the case of non-revenue Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24645 passengers, including employees and might need accommodating, particularly employees are now excluded from guests of railroads that are transported in cases of public authorities operating coverage. in business and office cars, as well as passenger train service within only one The term ‘‘control center’’ envisions passengers traveling on circus trains, the territory. Although national uniformity not only the traditional railroad concept railroads will provide for their safety in to the extent practicable of laws, of a train dispatcher’s office, but also accordance with existing safety regulations, and orders related to railroad offices that are identified as operating procedures and protocols railroad safety is important, FRA does ‘‘control centers’’ but only monitor relating to normal freight train not want to decrease the level of railroad operations, and modern system operations. emergency preparedness already in operations centers such as those of CSX place on a passenger railroad. 6. Preemptive Effect: Section 239.5 Transportation in Jacksonville, Florida 7. Definitions: Section 239.7 and the Burlington Northern Santa Fe FRA did not receive any comments, Corporation in Ft. Worth, Texas. The and this section is adopted as proposed. This section contains an extensive set term does not include a location on a Section 239.5 informs the public as to of definitions to introduce the railroad with responsibility for the FRA’s views regarding the preemptive regulations. FRA intends these security of railroad property, personnel, effect of the final rule. While the definitions to clarify the meaning of or passengers. presence or absence of such a section important terms as they are used in the It is very likely that control center does not in itself affect the preemptive text of the final rule. The definitions are personnel are located at facilities which effect of this part, it informs the public carefully worded in an attempt to are remote from the right-of-way. These concerning the statutory provision minimize the potential for facilities should consist of the necessary which governs the preemptive effect of misinterpretation of the final rule. command, control, and communications these rules. Section 20106 of title 49 of Several of the definitions introduce new equipment to maintain normal train the United States Code provides that all concepts which require further operations, to control electric traction, regulations prescribed by the Secretary discussion. and to maintain communications relating to railroad safety preempt any For a detailed discussion of FRA’s State law, regulation, or order covering decision to revise the definition of throughout the passenger train system. the same subject matter, except a ‘‘crewmember,’’ see the preceding In addition to these functions, the provision necessary to eliminate or ‘‘Discussion of Comments and control center should help coordinate reduce an essentially local safety hazard Conclusions’’ portion of this document responses to emergencies by using that is not incompatible with a Federal under heading of item number 1. The equipment such as radio law, regulation, or order and that does definition of ‘‘crewmember’’ is communications systems, direct not unreasonably burden interstate primarily intended to cover persons ‘‘hotline’’ telephones, wayside power commerce. With the exception of a who either perform on-board functions removal controls, and ventilation provision directed at an essentially local connected with the movement of a train controls under the direction of safety hazard, 49 U.S.C. 20106 preempts and are subject to the Federal hours of emergency responders, according to the any State regulatory agency rule service laws during a tour of duty (e.g., protocols and procedures of the covering the same subject matter as a locomotive engineer, conductor) or emergency preparedness plan. these regulations proposed today. provide on-board service in a sleeping Typical emergency scenarios Of course, the subject matter of these car or coach assigned to intercity encompassed by the term ‘‘emergency’’ regulations covers only the preparation, service, other than food, beverage, or or ‘‘emergency situation’’ involving a adoption, and implementation of security service (e.g., an Amtrak significant threat to the safety or health emergency preparedness plans for sleeping car attendant), a deadheading of one or more persons requiring passenger train operations. Although the employee can be covered by the immediate action may include one or subject matter includes a requirement in definition as well. Accordingly, such an more of the following: illness or injury; § 239.101(a)(5) that railroads establish employee could count as a ‘‘qualified’’ a stalled train in a tunnel or on a bridge; liaison relationships with their on-line employee under § 239.101(a)(2)(vi) of collision with a person, including emergency responders by developing this part for purposes of meeting a suicides; collision or derailment; fire; and making available a training program passenger railroad’s minimum on-board collision or derailment with a fire; emphasizing access to railroad staffing requirements for its emergency collision or derailment with water equipment, location of railroad preparedness plan when a freight train immersion; severe weather conditions; facilities, and communications crew has relieved that passenger natural disasters; and security situations interface, FRA is not requiring railroad’s expired crew. During a (e.g., bombings, bomb threats, hijacking, emergency responders to participate in passenger train emergency situation, off- civil disorders, and other acts of these liaison activities. Accordingly, duty employees are expected to assume terrorism). The definition of since FRA is only regulating the content their appropriate roles under the ‘‘emergency’’ or ‘‘emergency situation’’ of the training opportunities that railroad’s emergency preparedness plan has been changed in the final rule to railroads must offer to the responder and assist the passengers. include examples of some of the more community, States are in no way In commenting on the proposal, common scenarios that would require a preempted from regulating any other METROLINK indicated that on some railroad to activate its emergency training requirements or other activities trains it has conductors who perform preparedness plan. However, regardless of the non-railroad emergency the function of fare enforcement, and of whether a particular emergency responders who arrive at the scene of an recommended that FRA exclude these illustration is specifically listed in the emergency after a railroad’s emergency individuals from the definition of definition, FRA expects a railroad to preparedness plan has been activated ‘‘crewmember.’’ METROLINK also activate its emergency preparedness consistent with part 239. requested that FRA exclude contract plan anytime an unexpected event Further, FRA acknowledges that there food workers from the definition of related to the operation of its passenger may be special local interests ‘‘crewmember.’’ In accordance with train service involves a significant threat concerning types and/or quantities of FRA’s revised definition of to the safety or health of one or more on-board emergency equipment that ‘‘crewmember,’’ these categories of persons requiring immediate action. 24646 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

The NPRM defined ‘‘emergency indirectly, including a commuter rail requirement will be subject to a civil responder’’ as ‘‘a qualified member of a authority that provides railroad penalty of at least $500 and not more police or fire department, or other transportation by contracting out the than $11,000 per violation. Civil organization involved with public operation of the railroad to another penalties may be assessed against safety, who responds to a passenger person, as well as any form of individuals only for willful violations, train emergency.’’ 62 FR at 8356. In its nonhighway ground transportation that and where a grossly negligent violation comments, APTA requested that FRA runs on rails or electromagnetic or a pattern of repeated violations delete the word ‘‘qualified’’ because it guideways, but excludes urban rapid creates an imminent hazard of death or implies that someone on the railroad transit not connected to the general injury to persons, or causes death or will determine an emergency system. injury, a penalty not to exceed $22,000 responder’s qualifications. APTA stated The terms explained here are not per violation may be assessed. In that at an accident scene, a commuter exhaustive of the definitions included addition, each day a violation continues railroad lacks the practical capability to in § 239.7 of this part. This introduction will constitute a separate offense. determine an emergency responder’s merely provides a sampling of the most Finally, a person may be subject to qualifications, and on-board personnel important concepts of the final rule. criminal penalties for knowingly and do not have the time to determine Many other terms are defined and willfully falsifying reports required by qualifications. The LIRR noted that explained in the section-by-section these regulations. FRA believes that the emergency responder qualifications are analysis when analyzing the actual final inclusion of penalty provisions for dictated by police and fire departments, rule text to which they apply. failure to comply with the regulations is not the railroads. 8. Responsibility for Compliance: important in ensuring that compliance In including the word ‘‘qualified’’ in Section 239.9 is achieved not only in terms of the proposed definition of ‘‘emergency developing and implementing responder,’’ FRA never intended to FRA did not receive any comments, emergency preparedness plans, but also place a burden on the railroads to and this section is adopted as proposed. to better determine if railroads are determine the professional Section 239.9 clarifies FRA’s position planning ahead to minimize the qualifications of emergency responders. that the requirements contained in the consequences of emergencies that could It was assumed that the railroads would final rules are applicable to any occur. cooperate fully with any individual sent ‘‘person,’’ including a contractor, that The penalty schedule also by an organization involved with public performs any function required by the implements the maximum penalty that safety in response to a passenger train final rule. Although all sections of the FRA is authorized to assess for emergency, based solely upon that final rule address the duties of a violations of the provisions of this part. organization’s own determination of its railroad, FRA intends that any person The maximum penalty reflects an employee’s qualifications. However, in who performs any action required by increase from $10,000 to $11,000 for response to the concerns of the two this part on behalf of a railroad is violations and an increase from $20,000 commenters, FRA has deleted the word required to perform that action in the to $22,000 for willful violations. This ‘‘qualified’’ from the definition of same manner as required of a railroad or change is intended to comply with the ‘‘emergency responder,’’ and also be subject to FRA enforcement action. provisions of the Federal Civil Penalties revised the definition to clarify that a For example, if an independent Inflation Adjustment Act of 1990, Pub. member of an emergency responder contractor is hired by a railroad to L. 101–410, 104 Stat. 890, 28 U.S.C. organization may coordinate as well as maintain its records of inspection, 2461 note, as amended by § 31001(s)(1) directly provide emergency services. maintenance, and repair of emergency of the Debt Collection Improvement Act The AAR commented that the window and door exits, pursuant to of 1996, Pub. L. 104–134, 110 Stat. definition of ‘‘joint operations’’ is open § 239.107, the contractor is required to 1321–373 (April 26, 1996), which to various interpretations, and suggested perform those duties in the same requires Federal agencies to adjust civil that FRA revise the definition in the manner as required by a railroad. monetary penalties to counter inflation’s final rule to state that ‘‘joint operations 9. Penalties: Section 239.11 effect of diminishing the impact of these means rail operations conducted by penalties. The inflation adjustment is to more than one railroad, except as Section 239.11 identifies the penalties be calculated by increasing the necessary for the purpose of that FRA may impose upon any person, maximum civil monetary penalty by the interchange.’’ FRA agrees with this including a railroad or an independent percentage that the Consumer Price recommendation, and never intended contractor providing goods or services Index for the month of June 1995 for the final rule to apply to joint to a railroad, that violates any exceeds the Consumer Price Index for operations in instances when the sole requirement of this part. These penalties the month of June of the last calendar purpose for using the trackage is are authorized by 49 U.S.C. 21301, year in which the amount of the penalty interchange. Accordingly, the definition 21304, and 21311, formerly contained in was last set or adjusted. The initial of ‘‘joint operations’’ in the final rule § 209 of the Federal Railroad Safety Act adjustment, however, may not exceed has been revised to exclude interchange of 1970 (Safety Act) (49 U.S.C. 20101– 10 percent. The resulting $11,000 and situations. 20117, 20131, 20133–20141, 20143, $22,000 maximum penalties were The term ‘‘qualified,’’ as used in the 21301, 21302, 21304, 21311, 24902, and determined by applying the criteria set rule, means employees who are trained 24905, and §§ 4(b)(1), (i), and (t) of Pub. forth in sections 4 and 5 of the statute under an applicable emergency L. 103–272, formerly codified at 45 to the maximum penalties otherwise preparedness plan’s components and U.S.C. 421, 431 et seq.). The penalty provided for in the Federal railroad implies no provision or requirement for provision parallels penalty provisions safety laws. Federal certification of persons who included in numerous other regulations Although the penalty provision perform those functions. issued by FRA under authority of the broadly provides that any person who The definition of ‘‘railroad’’ is based provisions of law formerly contained in violates or causes the violation of any upon 49 U.S.C. 20102(1) and (2), and the Safety Act. Essentially, any person requirement of 49 CFR part 239 is encompasses any person providing who violates any requirement of this subject to a civil penalty, members of railroad transportation directly or part or causes the violation of any such the Working Group were concerned Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24647 about the possibilities of theft of its on- request, FRA would conduct a factual statements to railroad employees, and board emergency equipment and/or investigation to determine whether contain implementation details vandalism of its passenger cars, and there was a basis to deviate from the concerning the roles, responsibilities, wanted FRA’s permission to post general criteria without compromising and expectations for employee warnings to members of the general or risking a diminution of rail safety. participation. The plan does not have to public that committing such acts could be one single document with each 11. Information Collection: Section subject them to Federal penalties. FRA section applying to every railroad that is 239.15 encourages railroads to notify their a party to the plan or to every affected passengers (and any potential vandal or FRA is adding this section to note that railroad employee and location; instead, trespasser) that in addition to any it is inserting the OMB approval number the plan may consist of multiple Federal or state criminal statutes that for the information collection documents, with a separate section of exist to prohibit vandalism, theft, requirements of this rule for part 239, the plan detailing the specific trespassing, or tampering involving since OMB has completed its review responsibilities for each job category or railroad equipment, property, or and granted approval. This section also function or railroad or all. In instances operations, FRA may impose a civil identifies the sections of part 239 that where a railroad hosts the operations of penalty upon any individual who contain information collection a passenger railroad, both railroads have willfully causes a railroad to be in requirements. to address issues of emergency violation of any requirement of this part. 12. Emergency preparedness plan: preparedness. The rule requires the host Take for example, a railroad that Section 239.101 railroad to jointly develop the supplies each of its passenger cars with applicable portions of an emergency one fire extinguisher and one pry bar, In drafting the final rule, FRA preparedness plan with the operating and provides each of its on-board recognized that the specific operations passenger railroad, uniquely dealing crewmembers with one flashlight. By of each individual passenger train with the passenger operations not equipping its train with all of these system must be considered in the otherwise addressed. A detailed items, the railroad would be in full development and implementation of discussion of the requirement to jointly compliance with the minimum effective emergency preparedness adopt a single emergency preparedness requirements of paragraph programs. Factors which should be plan for the passenger service is 239.101(a)(6)(i) of this part. considered include system sizes and included in the preceding ‘‘Discussion Accordingly, if unbeknownst to the route locations, types of passenger cars of Comments and Conclusions’’ portion railroad, a vandal pilfers a pry bar from and motive power units, types of right- of this document under item number 5. one of the passenger cars while the train of-way structures and wayside facilities, The majority of passenger train is in service FRA can impose a civil and numbers of passengers carried, as operational difficulties are handled penalty upon that individual for causing well as internal railroad organizations effectively and do not become the railroad to be in violation of 49 CFR and outside emergency response emergencies. Since in many instances a part 239. FRA recommends that in resources. Under the final rule, each train crew can immediately take action addition to posting written warnings on railroad subject to the regulation is to resolve a problem and potential and in passenger cars, railroads use on- required to establish an emergency emergency without evacuating the train, board announcements to remind their preparedness plan designed to safely existing emergency preparedness passengers of the serious consequences manage emergencies and minimize policies deemphasize immediate that can result from placing the railroad subsequent trauma and injury to evacuation from trains located between in violation of the important safety passengers and on-board railroad stations unless passengers and crews are requirements of this part. personnel. The plan must reflect the in immediate danger. Accordingly, in The final rule includes a schedule of railroad’s policies, plans, and readiness most situations, after notifying the civil penalties in an Appendix A to 49 procedures for addressing emergencies. control center that a problem exists and CFR part 239, to be used in connection The railroad is expected to employ its receiving permission, the train crew will with this part. Commenters were invited best efforts, under the circumstances of move the train to the nearest station or to submit suggestions to FRA describing the emergency situation, to execute the safe location (e.g., outside a tunnel) the types of actions or omissions under provisions of its plan. before taking further action. If the train each regulatory section that would In their development of emergency crew is unable to resolve the situation, subject a person to the assessment of a preparedness plans, FRA encourages railroad personnel or outside emergency civil penalty. Commenters were also railroads to integrate, as practicable, the responders may be sent to the invited to recommend what penalties recommended guidelines contained in emergency scene to provide mechanical may be appropriate, based upon the the Volpe Report. The report provides a aid, alternate transportation, or medical relative seriousness of each type of comprehensive degree of specificity. assistance. violation. FRA did not receive any While the final rule does not require the The effectiveness of a railroad’s public comments nor did the Working special level of detail reflected in the overall response under its emergency Group present any recommendations to Volpe Report, FRA advocates that preparedness plan will be greatly the agency on this topic. Accordingly, railroads voluntarily incorporate such influenced by the type of emergency FRA has drafted the penalty schedule elements and items as appropriate into with which the train crew is presented based on its own analysis of the the development of their own (e.g., injury or illness, stalled train, inherent seriousness of violating the emergency preparedness plans, and suicide or accidental collision with a requirements of part 239 of this chapter. reject recommendations only after person, derailment or collision, smoke judicious consideration. or fire, severe weather conditions or 10. Waivers: Section 239.13 While FRA stresses that each railroad natural disasters, and vandalism or Section 239.13 identifies FRA’s ability should retain latitude in developing an sabotage). The response will also be to grant waivers of compliance with the emergency preparedness plan affected by the characteristics and type requirements of this rule. Requests for appropriate for its operations, the plan of train involved and the functional such waivers can be filed by any must provide a comprehensive status of electrical and mechanical interested party. In reviewing the overview, make clear and positive systems, including lighting, ventilation, 24648 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations and public address systems. In addition, operation, the rule does not mandate emergency responders. Railroads should the operational environment (e.g., a that every element be addressed not instruct their on-board employees to train is located in a tunnel, on an separately by each affected entity who is substitute as professional emergency elevated structure, or in electrified one of multiple parties to a single responders and delay notification of territory), and the type of right-of-way emergency preparedness plan. appropriate railroad and outside structure or wayside facility must be Accordingly, if a passenger train service officials. addressed, as appropriate, in each operator relies on a freight railroad host Communication railroad’s emergency preparedness plan. to notify outside emergency responders The emergency preparedness plan after an emergency occurs, FRA would Section 239.101(a)(1) sets forth the must establish a chain of command permit the freight railroad to set out its requirement that the passenger train which assigns functions and responsibility to address this element in crewmembers must communicate responsibilities to appropriate passenger its portion of the emergency immediately and effectively with each railroad operating personnel, while preparedness plan. Provided that both other, as well as with the control center recognizing the authority and entities properly coordinate their and the passengers. Typically, in an responsibilities of emergency portions of the emergency preparedness emergency situation the final rule responders. Coordination is important plan (and include cross-reference anticipates that an on-board train to the ability of all parties to respond citations to each other’s sections of the crewmember will immediately contact appropriately to an emergency, plan), the passenger train service the control center via a dependable on- regardless of its size and location. operator’s portion of the plan could board radio or an alternate means of Documentation, including applicable omit a particular item and still be in communication (e.g., wayside railroad portions of the emergency preparedness compliance with the final rule. telephone, public telephone, private plan, protocols, and procedures within The final rule does not require that residence telephone, or cellular rulebooks, manuals, and guidelines for the public authority and the operating telephone) to advise appropriate control center employees and on-board railroad or independent contractor each railroad officials of the nature of the personnel, provides the basic framework actively participate in performing duties emergency and the type of assistance for coordination between all internal in accordance with the joint filing with required. After this initial notification to parties responding to an emergency. FRA of the emergency preparedness the control center occurs, the passengers This internal documentation must plan if the operating railroad or shall be informed of the emergency and address at least the following issues: independent contractor is the only party provided directions. As appropriate, all • Delineation of functions and performing a function under the passengers must be accounted for responsibilities during emergencies for regulation. However, each party’s (particularly in sleeping compartments) passenger railroad operating personnel, responsibility for compliance with this so as to expedite evacuation, if including control center personnel; part must be clearly spelled out in the necessary, and to avoid needless effort • Telephone numbers of railroad emergency preparedness plan that is to search for ‘‘missing’’ persons, personnel and emergency responders filed with FRA for approval covering the however, a passenger manifest is not who need to be notified; entire passenger train service operation. required. • Criteria for determining whether an After approval of the plan, FRA may In its comments, METROLINK stated emergency exists and requires hold the public authority or the other that the train crewmember should notify assistance from emergency responders; entity or both responsible for the passengers after consultation with • Procedures for determining the compliance with this part. the control center and the control center specific type, location, and severity of Based upon review of the comments officer, unless the train must be the emergency, and thus which and consultations with the Working evacuated immediately. The LIRR response is appropriate; Group, FRA is establishing the requested in its comments that FRA • Procedures for notifying emergency parameters for emergency preparedness revise § 239.101(a)(1) in the final rule to responders; and plans in general, but will defer to the require an on-board crewmember to • Procedures and decision-making expertise of each individual railroad to remove all occupants of the train from criteria for transferring incident adopt a suitable emergency imminent danger as a first step after he responsibility from the passenger preparedness plan for its railroad, in or she quickly and accurately assesses railroad operator to emergency accordance with these parameters. As the passenger train emergency situation. responders. previously noted, the emergency The LIRR recommended that FRA adopt Section 239.101 sets forth the general preparedness plan may consist of a performance-based standard, so requirement that railroads shall develop multiple documents, with a separate instead of the rule requiring each and comply with their own emergency document detailing the responsibilities railroad to provide specific levels of preparedness plans and written of each category of employee under the information to its passengers, the rule procedures to implement their own railroad’s plan. Each railroad is also should permit general levels of plans for addressing issues of encouraged to review the suggestions information. The measure of success emergency preparedness, that meet provided in the Volpe Report before would be based upon whether the Federal minimum standards. Section developing its portion of the emergency railroad successfully handled the 239.101(a) requires all railroads covered preparedness plan in accordance with emergency by ensuring the timely by part 239 to develop and implement the requirements set forth in this evacuation of its passengers. written procedures to fulfill each section. In developing the plan, APTA commented that crewmembers applicable provision of this section. railroads are reminded that the goal of on commuter railroads need to have Depending on the nature of a railroad’s the final rule is to maximize the safety flexibility in what they tell passengers operations, as well as on whether its of passengers, railroad personnel, about an emergency situation, and noted operations involve a host railroad, emergency response personnel, that the proposal was ambiguous about different elements of this section may be property, and the general public that the level of detailed information that fulfilled by more than one entity. While come in contact with the railroad by must be provided. APTA also argued FRA requires all elements of this section providing for immediate notification of that since the proposal appeared to to be addressed for each passenger train outside law enforcement officials and require crewmembers to tell all Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24649 passengers about the emergency, it occur during passenger operations, such 3504 (Cox); 202–632–3370 could worsen an emergency situation by as on-board fires, downed electrical (Yachechak)), or Ms. Patricia V. Sun, leading to inappropriate statements to power sources, or passenger injuries Trial Attorney, Office of Chief Counsel, passengers. APTA stressed that from a derailment. FRA, 400 Seventh Street, S.W., commuter railroad crewmembers are Although the final rule does not Washington, D.C. 20590 (telephone professionals, and should be require a railroad to use a specific number: 202–632–3183). empowered to use discretion in means of communication, FRA expects While the final rule does not require determining the appropriate information the railroad to select a method that is that both ends of a train contain to tell passengers during and after an effective and capable of reaching communication devices for use by a emergency. pertinent railroad control centers and crewmember other than the engineer to FRA recognizes that each emergency on-board locations in order to comply directly contact the control center, FRA situation is unique, and may require with the notification requirement of this received comments from the UTU at the rapid decisionmaking and varied subsection. FRA further expects that August 28 and September 2, 1997 approaches by on-board crewmembers railroads will voluntarily build Working Group meetings about the need on how best to ensure the safety of the redundancy into their emergency for enhanced means of communications passengers. In response to APTA’s preparedness plans by outfitting their on trains, especially trains operating in concerns, proposed § 239.101(a)(1)(i) crewmembers with an immediately intercity service. FRA is aware of has been modified in the final rule by available backup means of devices, such as tone generators, that adding the words ‘‘as appropriate’’ in communication, in the event that can enhance the communication order to provide discretion to the on- primary communications systems are capabilities of the radios already carried board crewmembers as to when and either damaged during the emergency or by each conductor and used to how to inform the passengers about the otherwise rendered inoperative. For communicate with the engineer. If nature of the emergency and the types example, a cellular telephone could be railroads voluntarily equip their trains of countermeasures that are in progress. made available for use by on-board with these devices in order to go beyond FRA also replaced the words ‘‘the train crewmembers to contact the control the minimum requirements of the final crewmember’’ with the words ‘‘an on- center in the event the locomotive radio rule, then conductors may be able to board crewmember’’ in order to clarify is inoperative. Also, on-board directly communicate with the control that the crewmember who first notifies crewmembers could still maintain center in the event that the engineer’s the control center does not necessarily proper communication with the radio communications equipment have to be the same crewmember who passengers, in the event that regular or malfunctions or is damaged, or the communicates with the passengers. This emergency power was unavailable to engineer is incapacitated during the change reflects the fact that generally it operate the train’s public address emergency situation. However, FRA is the locomotive engineer who contacts system, by using portable megaphones. recognizes that while portable radios the control center and the train Although FRA had asked for can be placed on trains in a similar conductor who keeps the passengers comments on whether the final rule manner to equipping locomotives with apprised of pertinent developments. should expand the notification language mobile radios, portable radios may not It is FRA’s expectation that railroads of § 239.101(a)(1) to mandate a specific be able to transmit to the control center will properly train their employees to primary means of communication, and due to distance, lower wattage, and perform the requisite life-saving whether the final rule should also smaller antennas. In the case of functions after an emergency (e.g., require each affected railroad to equip commuter railroads operating in push/ relocation of passengers from a smoke- its passenger trains with a secondary pull service there will already be two filled car to a safer section of the train means of communication in the event mobile radios onboard, one at each end or evacuation of the passengers from a that the primary means is unavailable, of the train. derailed car), in conjunction with their no written comments were received on It is FRA’s understanding that many responsibilities to assess the nature of this issue. While the language of the railroads publish an emergency toll-free the emergency and notify the control final rule on this issue remains telephone number in the employee center as soon as practicable thereafter. unchanged from the proposal, FRA timetable which connects with the Accordingly, while FRA may conclude expects the issue to be fully resolved in control center office. Amtrak , while in the course of investigating a specific the context of the forthcoming revision operating its intercity trains on a host train incident or accident that a of the Radio Standards and Procedures railroad, will necessarily have access to particular employee’s egregious (49 CFR part 220). That rulemaking was those telephone numbers while on the mishandling of an emergency situation tasked to the RSAC on April 1, 1996, host’s property. Amtrak also has a warrants individual enforcement action and the NPRM was published in the nationwide toll-free telephone number or enforcement action against the Federal Register on June 26, 1997. 62 which connects the caller (including railroad, or both, the flexibility of the FR 34544. Among the proposals set private citizens) to the national Amtrak final rule is consistent with FRA’s forth in proposed § 220.9 of that NPRM, police desk in Washington, DC, which reluctance to strictly impose a precise is a requirement that ‘‘each occupied is manned around the clock. The final order or manner in which on-board controlling locomotive in a train shall rule does not require that notification to crewmembers must execute their have a working radio, and each train the control center occur within a individual responsibilities under the shall also have communications precisely measured number of minutes, railroad’s emergency preparedness plan. redundancy.’’ 62 FR at 34549, 34550, rather it uses the words ‘‘as soon as However, in the course of reviewing and 34556. Persons wishing to receive more practicable’’ in order to give railroads approving emergency preparedness information regarding the NPRM on maximum flexibility. FRA expects that plans under § 239.201, FRA expects to Railroad Communications should in the totality of the circumstances of see the railroads incorporating specific contact Mr. Gene Cox or Mr. Dennis the emergency situation, the train recommended practices as guidance to Yachechak, Operating Practices crewmembers will exercise their best their employees concerning how they Specialists, Office of Safety, FRA, 400 judgment using the railroad’s own must respond to the various types of Seventh Street, S.W., Washington, D.C. emergency preparedness plan emergency situations most likely to 20590 (telephone numbers: 202–632– procedures. 24650 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

Under current practice, Amtrak’s personnel occur promptly, whether by to the location of the passenger train notification of the emergency direct or indirect means. In this regard, accident, but no one notified the owner responders will vary slightly depending FRA encourages railroads to consider of the pipeline operation. Fortunately, on whether or not the passenger train the comments of Eric Sondeen of the an off-duty employee of the pipeline emergency occurs in Amtrak-dispatched Littleton, Colorado Fire Department, in company viewed coverage of the territory. In territory where trains are drafting the section of their emergency accident on television approximately dispatched by Amtrak, either the control preparedness plans that addresses one hour after the accident, and notified center will directly notify the communication. Among his comments, the pipeline owner. Although CSX emergency responder or the control Mr. Sondeen recommended that Transportation’s emergency procedures center will notify Amtrak police, who railroads provide, on an annual basis, manual stated that the first priority for will then, as appropriate, notify emergency dispatch center telephone its Operations Center dispatchers pertinent emergency responders, State numbers to all rail corridor emergency following an accident is to promptly and federal agencies, and Amtrak response agencies, including secondary notify appropriate local emergency supervisors. In territory where trains are telephone numbers. Mr. Sondeen also response agencies when an emergency not dispatched by Amtrak, the host suggested that railroad crew timetables situation exists, CSX Transportation railroad control center will directly contain 24-hour civilian emergency emergency procedures did not define notify the appropriate emergency response agency telephone numbers for the derailment of a train in an area responders, government agencies, and contingency cellular telephone contacts occupied by a pipeline as an emergency host railroad supervisors. Which by crewmembers. condition. Among the NTSB’s emergency responders and agencies are METROLINK commented that each conclusions was that ‘‘Osceola County notified depends on the nature of the railroad should designate an employee emergency responders failed to emergency. Most control centers have function or position to be responsible determine and assess the risks posed by emergency telephone numbers already for maintaining current emergency potentially hazardous pipelines at the in their computer systems, usually telephone numbers, rather than an accident site.’’ NTSB/HAR 95/01 at page listed alphabetically by city, with hard individual employee. In response to this 50. The NTSB also noted in a footnote copy backups. comment, FRA notes that paragraph that one week before the collision an In its comments, APTA requested that (a)(1)(ii) does not specify which control Osceola County fireman had attended a FRA modify § 239.101(a)(1)(ii) to center employees may be designated by training session on pipeline emergency increase the rule’s flexibility concerning the railroad to maintain the list of response actions that was sponsored by notifications by the control center to emergency telephone numbers. FRA the pipeline company, but had not emergency responders, and permit the concludes that the paragraph, as briefed others at the fire station about emergency preparedness plan to discuss written, already permits a railroad great his training before the time of the the means by which the contacts will flexibility to select any relevant specific accident. NTSB/HAR 95/01 at page 28, occur. APTA noted that not all individual or general job category to footnote 16. commuter railroads have control centers maintain the lists, provided that the Since the NPRM did not propose that in each emergency responder designation is properly set forth in the railroads should be required to notify jurisdiction, and the control center in railroad’s emergency preparedness plan operators of pipelines and electric one State may control territory that submission. Accordingly, this paragraph power companies when a passenger passes into another State. There is no is adopted as proposed. In addition, the train accident occurs nearby, and FRA direct link, therefore, between the term ‘‘adjacent’’ is not defined (e.g., a did not seek public comment on this dispatcher and the emergency distance measurement from the issue, the final rule does not impose this responders, and the railroad’s police passenger train experiencing the additional notification requirement. department is generally responsible for emergency to adjacent rail modes) for However, based upon the many making these contacts. purposes of determining which other important safety issues that must be In response to APTA’s concerns, FRA rail modes must be notified. Instead, considered when a rail accident occurs, is aware that because each railroad’s consistent with the Working Group’s and in accord with the NTSB’s findings operations are somewhat unique, the request that the final rule provide each concerning the accident that occurred appropriate persons and organizations affected railroad with flexibility to near Intercession City, Florida in 1993, who must be notified will vary based implement the rule’s provisions, this FRA encourages both railroads and upon the railroad’s individual operating subsection requires that the emergency members of the emergency responder characteristics and the actual type of preparedness plan state how the community to voluntarily incorporate emergency that occurs. Accordingly, railroad will achieve the appropriate relevant information about pipelines paragraph (a)(1)(ii) does not specify notifications. and power line locations into their which emergency responder Although the final rule does not emergency preparedness planning. In organizations (e.g., fire departments, require railroad control center personnel addition, as part of the four-phase helicopter rescue groups) or which to notify operators of pipelines and process of addressing emergency categories of appropriate railroad electric power companies that a preparedness, FRA will review the officials that the control center must passenger train emergency has occurred, implementation and effectiveness of contact. Because the paragraph is FRA recognizes that pipelines and paragraph (a)(1) and related voluntary already worded to provide maximize power lines can pose potentially serious developments, and evaluate whether flexibility to railroads in designating the hazards to rail passengers. On further rulemaking activity or action is emergency contacts, FRA has not September 30, 1993, Amtrak Train No. appropriate. modified this paragraph in response to 88, while being hosted on track owned APTA’s concerns. by CSX Transportation, collided near Initial Training FRA encourages each affected railroad Intercession City, Florida with a vehicle Section 239.101(a)(2) requires that the to consider any reasonable method of owned by Rountree Transport and emergency preparedness plan provide notification when it drafts its emergency Rigging, Inc. (NTSB Highway Accident for initial training, and then periodic preparedness plan, so long as the Report (HAR) 95/01.) A natural gas training at least once every two years notifications by the control center pipeline was located in close proximity thereafter, of all railroad employees who Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24651 have responsibilities under the plan, by which it proposes to train all of its Florida. The information concerning the and that the training address the role of on-board employees on the specific stuck trailer reached the dispatcher of a each affected employee. Adequate elements of: rail equipment nearby parallel line in the area, who saw training is integral to any safety familiarization; situational awareness; no imminent risk because of an absence program. This subsection recognizes passenger evacuation; coordination of of rail traffic on this line. Unfortunately, that the successful implementation of an functions; and ‘‘hands-on’’ instruction. the information did not reach the emergency preparedness plan depends In this regard, FRA will not approve a dispatcher of the line on which the upon the knowledge of the on-board and plan that provides for ‘‘hands-on’’ lowboy trailer was actually stuck. control center personnel about the training exclusively by allowing Because the crew of the Amtrak train system route characteristics, passenger employees to watch a video, since was not notified of the trailer’s presence cars and motive power units, and watching a two-dimensional image of by the dispatcher and was not able to emergency plans, protocols, procedures, someone else demonstrating a means of stop the train in time once it became and on-board emergency equipment. An emergency escape or using a piece of visible, the Amtrak train collided with employee who has not been trained to emergency equipment can be the trailer. react properly during an emergency ineffectual. But, if a railroad wishes to situation may present a significant risk use a video as an instructive tool in While the investigation of the to railroad personnel and passengers. combination with a scale model of an accident is still in its early stages, the On-board employees must receive emergency window (mock-up) best information currently available ‘‘hands-on’’ instruction concerning the containing a rubber pull strip, and the supports certain preliminary location, function, and operation of on- emergency preparedness plan provides conclusions. Information concerning the board emergency equipment, stressing for small groups of employees taking presence of the truck on the crossing the following: turns handling window glazing and was conveyed to CSX Transportation • Opening emergency window, roof, practicing emergency escape using the prior to the collision, but either the and door exits, with an emphasis on mock-up, FRA would find this approach information was not sufficiently operating them during adverse acceptable. descriptive of the location of the conditions such as when a rail car is The final rule also requires incident or the information was not overturned; appropriate training of control center conveyed to the appropriate dispatcher, • Use of emergency tools and fire personnel who effect the or both. In order to prevent the extinguishers; implementation of a railroad’s recurrence of such accidents, FRA and • Use of portable lighting when the emergency response plan. FRA expects CSX Transportation agreed that CSX main power source is unavailable on a the railroad to provide training only for Transportation would require: passenger train; and the requisite control center employees • Use of megaphones and public designated under the plan to convey the continued emphasis on education of address systems (if they are provided by nature and extent of a passenger train’s truckers; restricted speeds in zones the railroad for communication emergency to the emergency responder where a highway-rail crossing collision purposes). organizations. Accordingly, FRA is not may be imminent; precise identification At the Working Group meeting held requiring training of other control center of highway-rail crossings and immediate on August 28, 1997, some members employees who perform merely notification of hazards; a safety briefing questioned what FRA meant in incidental functions, e.g., a clerical or for its dispatchers and supervisors on paragraph (a)(2)(i)(E) by the phrase other office employee who receives a the scenario of the accident of October ‘‘hands-on instruction.’’ Some members telephone call from a stalled train. 9, 1997; and operational testing of its of the group thought that it meant every During the NPRM stage of this dispatchers and supervisors concerning employee being trained must actually proceeding, FRA primarily envisioned avoidance of any possible collisions open an emergency window and an the need for each railroad to provide while the precise location of an emergency door exit on a passenger car, appropriate training to its control center obstruction or other hazard at a rail- while others thought that a railroad personnel on their duties after a highway crossing is being determined. would be in full compliance if only one passenger train emergency has already Consistent with the above discussion, employee were required to perform the occurred (e.g., notifying outside FRA has revised the rule text to require ‘‘hands-on’’ exercise while hundreds of emergency responders about a that control center personnel receive others received their training merely by derailment). However, in light of a territorial familiarization. FRA is aware observing. In addition, one member recent accident near Savannah, Georgia, that the railroad industry has a variety commented that since an emergency FRA has revised the final rule to clarify of methods available in order to window used for demonstration that control center personnel may have purposes is costly to repair and requires important emergency-preparedness accomplish this objective. These taking the passenger car temporarily out responsibilities even before a life- methods include, but are not limited to; of service to replace the rubber endangering situation turns into a review of trackage charts and operating stripping, the final rule should permit passenger train emergency. Specifically, timetables; familiarization train rides by employees to receive their ‘‘hands-on’’ on October 9, 1997, an Amtrak train train dispatchers through the territories training by watching a video operating on track owned by CSX in which they dispatch; and viewing of presentation. Transportation in Garden City, Georgia videotapes containing narration that FRA recognizes the unique collided with a truck hauling a describes the physical characteristics of characteristics of the various railroad ‘‘lowboy’’ trailer (which has unusually the territory. FRA also expects each properties, and is reluctant to inhibit low clearance between its underside railroad’s emergency preparedness plan flexibility and creativity by imposing and the ground) at a grade crossing. The to provide for a high degree of rigorous specifications in the rule text truck had become stuck on the crossing. coordination and interface during all itself on how every railroad should Prior to the collision, local police internal communications between perform ‘‘hands-on’’ training. However, contacted CSX Transportation police, personnel within the control center, FRA expects each railroad’s emergency who alerted the CSX Transportation particularly whenever a potential or preparedness plan to address the means dispatching center in Jacksonville, actual emergency situation exists. 24652 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

Initial Training Schedule food, beverage, or security service). During this 90-day time period, these FRA recognizes that even after a Accordingly, the final rule provides employees would be permitted to railroad receives conditional approval of larger railroads and intercity railroads function as crewmembers even though its emergency preparedness plan under with more time in which to fully train they had not yet become qualified under § 239.201, the initial training of their employees than it does smaller the emergency preparedness plan to individual employees on their railroads in order to recognize the more perform the functions for which they responsibilities under the emergency complex organizational structure of will be responsible. preparedness plan cannot occur these larger companies. In the case of a railroad providing Periodic Training immediately. Accordingly, new commuter or other short-haul passenger The final rule affords the passenger subparagraphs (iii) and (iv) have been train service and whose operations railroad operator a time period of up to substituted in § 239.101(a)(2) in order to include less than 150 route miles and two years to provide each session of establish an implementation schedule less than 200 million passenger miles ‘‘periodic’’ training after the operator for this initial training. While each annually, the final rule permits the provides initial training in the railroad will be held responsible by FRA training to be completed up to 21 emergency preparedness plan’s for all other applicable provisions of its months after the effective date of the provisions to its employees. The emergency preparedness plan that it can rule, which will be approximately one periodic training requirement is fully comply with immediately after the year after FRA grants conditional intended to inform railroad personnel of date of conditional approval (e.g., approval to the railroad. In the case of changes in procedures and equipment equipping each passenger car with one a railroad providing commuter or other and ensure that their skills remain at a fire extinguisher in accordance with short-haul passenger train service and level that enables them to effectively § 239.101(a)(6)(i)(A) or conducting a whose operations include 150 or more execute their responsibilities under the debriefing and critique session after a route miles and 200 million or more emergency preparedness plan. In passenger train emergency simulation passenger miles annually, or a railroad addition, the recurrent training will under § 239.105, the initial training can providing intercity passenger service reinforce segments of the emergency be spread out over a longer time period. (regardless of the number of route miles preparedness plan for individuals who In addition, during this implementation or passenger miles), the final rule have not performed properly. phase, the on-board staffing permits the training to be completed up FRA concludes that the unique requirements of subparagraph (vi) of to 33 months after the effective date of operating characteristics of all the § 239.101(a)(2) will not apply. the rule, which will be approximately different railroads subject to the final During the Working Group meeting two years after FRA grants conditional rule, as well as the financial costs held on August 28, 1997, FRA did not approval to the railroad. In addition, involved with providing training, would receive any specific recommendations while each freight railroad hosting any make it impractical to include a from members of the group on a precise category of passenger train service calendar year or other more restrictive implementation timetable for inclusion receives up to 21 months after the or specific requirement for periodic in the final rule. However, the Working effective date of the final rule to train its training in the final rule. As FRA Group agreed that the final rule needed employees, the implementation recognized in drafting the NPRM, while to reflect the fact that railroads could schedule for a passenger railroad the final rule places an upper limit of not provide emergency preparedness hosting such service (e.g., Amtrak the term ‘‘periodic’’ at two years, training to every employee on the same hosting the operations of NJTR in the anytime the provisions of an emergency day, and that the railroads would state of New Jersey) is governed by preparedness plan are invoked during instead modify their other ongoing subparagraphs (A)—(C) of an actual emergency, that railroad training programs to fulfill this new § 239.101(a)(2)(iii), based upon either receives an additional opportunity to requirement. Upon careful route miles and passenger miles or evaluate the level of knowledge of its consideration of this issue, FRA whether that host railroad provides affected employees. However, since the recognizes that smaller railroads (i.e, intercity service. Accordingly, under a final rule does not permit any level of those whose operations include less scenario of Amtrak hosting the activation of the railroad’s emergency than 150 route miles and less than 200 operations of NJTR, Amtrak would preparedness plan to count toward the million passenger miles annually) receive up to 33 months in which to training requirement, the railroad generally operate less frequent service train its employees on their hosting cannot count the event toward the and employ fewer individuals in less responsibilities under the joint periodic training requirement for those hierarchical environments than do emergency preparedness plan covering involved employees. However, FRA larger railroads and providers of the NJTR passenger operation. recognizes that affected railroad intercity passenger service, and will In accordance with the employees who receive ‘‘real life’’ therefore have an easier time providing implementation schedule, a railroad training will still benefit from the emergency preparedness training from a beginning passenger operations after the experience, particularly whenever all logistical standpoint than will those effective date of the final rule has either five of the requirements of larger service providers. 90 or 180 days after beginning service, § 239.101(a)(2)(i) are addressed during FRA anticipates that these smaller depending on the size or type of its the emergency and the employees also entities will also be able to offer this operation, to train its employees on participate in the debriefing and critique training to informal groups of their responsibilities under the session. employees without the need for emergency preparedness plan. Any new In the NPRM, FRA requested carefully planned and organized employees who are hired by a railroad comments from railroads on the costs of training sessions. In addition, under the to perform either on-board or control implementing the on-board personnel terms of the final rule, intercity service center functions after the date on which training requirements of the rule. providers also have the added the railroad receives conditional Specifically, FRA wanted to determine requirement to conduct training for approval under § 239.201(b)(1), must the extent of the current training that persons performing on-board functions receive their initial training within 90 railroads already provide to their on- in a sleeping car or coach car (other than days after commencing employment. board employees (including emergency Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24653 preparedness training) as part of regular Rationale for Requiring Two-year at least one first-aid kit (see the section- operating rules training programs. Interval by-section analysis of this issue under Comments were also requested In rejecting the request of various the ‘‘On-board emergency equipment’’ concerning the estimated dollar amount commenters to raise the time interval heading for a detailed discussion of this of the incremental additional costs between periodic training cycles for on- requirement), the final rule does not connected with modifying existing board and control center employees to require on-board personnel to receive training programs to comply with this three years, FRA carefully considered training in first-aid or in CPR. Although proposal. FRA was interested in both financial cost issues and the safety FRA initially considered including ascertaining whether the training ramifications of weakening an integral these items as training requirements in requirements would merely add de element of emergency preparedness. the rule, or at least mandating that minimis costs to each railroad’s existing Based upon FRA’s analysis, the agency railroads offer employees the training program or if compliance recognizes that railroads providing and opportunity to receive this training, the consensus of the Working Group during would entail moderate or significant hosting passenger train service will the drafting of the NPRM was that both additional costs. experience cost increases by being required to train their employees at least first-aid and CPR training should be The majority of the organizations that once every two years. However, FRA excluded from the rule. The Working submitted comments on § 239.101(a)(2) concludes that the effective and efficient Group stressed that the goal of the rule recommended that FRA modify the management of passenger train is to ensure that emergency responders requirement for employee training and emergencies begins with properly arrive promptly at the scene of an qualification by permitting each railroad trained and knowledgeable railroad emergency, not to train on-board to provide periodic training at least once employees onboard the trains and in the personnel to act as emergency every three years, instead of at least control centers capable of quickly responders. The Working Group also once every two years. In this regard, obtaining the assistance of emergency stated that even if FRA requires a Amtrak recommended that the periodic responders and ensuring the safety of railroad to offer first-aid and CPR training requirement be changed to at the passengers. FRA believes that in training, no railroad can literally force least once every three years, to coincide order to maximize a railroad’s level of an on-board crewmember to assist an with Amtrak’s interval for refresher emergency preparedness, frequent ailing passenger. Further, trains with training on first aid. Although Amtrak refresher training is essential, and any heavier passenger loadings are likely to stated that three years would provide periodic requirement longer than at have on board one or more medical sufficient frequency, it did not provide least once every two years increases the professionals whose skills will be more a reason. Amtrak also noted that probability that a certain number of extensive, and better practiced, than railroads will provide their employees employees would become unfamiliar those of a crewmember whose primary with interim updates when major with their crucial emergency and recurring duties do not include changes to their emergency response preparedness roles. medical emergencies. programs occur. As discussed in the analysis of During the Working Group meeting on February 7, 1996, Amtrak stated that it APTA offered no comment on the § 239.103, FRA requires railroads is spending between $2.5 to $3 million frequency of periodic training for on- operating passenger train service to conduct full-scale emergency by fiscal year 1998 to train the chiefs of board personnel, but recommended a simulations to evaluate their overall on-board service and to provide for at training cycle of three years for control emergency response capabilities and least one employee on every train being center personnel. Consistent with the ensure that emergency preparedness trained to administer first-aid and requirements of 49 CFR part 240 plans, procedures, and equipment perform CPR. Under the Amtrak plan, (Qualification and Certification of address the particular needs of various employees will not be required to use Locomotive Engineers), APTA stated types of passengers. Emergency this training, merely to receive it. that a three-year training cycle better fits simulations can help railroads achieve Despite the extent of Amtrak’s the training programs of all commuter these goals through careful selection of commitment to voluntarily providing railroads, especially the larger ones. the time and location of the simulation extensive first-aid and CPR training, APTA also argued that a three-year and participation by personnel from the Amtrak did not want these items training cycle would permit better railroads, outside emergency responder required in the final rule. Another scheduling of funding outlays for this organizations, and ‘‘volunteer member of the Working Group, important training activity. passengers.’’ In addition to classroom METROLINK, stated that it has served CALTRAIN commented that a three- training, simulations provide employees approximately eight million passengers year cycle of formal training is with a practical and realistic in three years of operation, and has preferable, since existing training drills understanding of rules, procedures, never had a passenger require CPR. regularly provide much of the required trains, and right-of-way structures/ METROLINK also noted that commuter materials. CALTRAIN also stated that wayside facilities as they relate to railroads generally operate in populated since formal training may require emergency response. FRA expects that areas, with professional emergency reassignment, a three-year training cycle the employee training provided in responders in most cases only minutes away. The LIRR stated that it offers CPR better allows for budgeting and accordance with § 239.101(a)(2) will training to newly hired employees and personnel reassignments during austere include instruction on the importance of shows a refresher film to employees fiscal times. full-scale emergency simulations in achieving successful implementation of every five years, but acknowledged that The LIRR stated that a three-year the emergency preparedness plan. it cannot force employees to administer qualification period for emergency CPR. The railroad also noted that it preparedness training would meet the First-Aid and CPR Training would never want the engineer to leave criteria set forth in the rule. However, Although § 239.101(a)(6)(ii) has been the controls of the locomotive during an the LIRR offered no supporting data for added to require railroads providing emergency. NJTR indicated that its train this assertion. intercity service to equip each train with crews already have many duties to 24654 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations perform during an emergency and that provide rail emergency and first-aid with the necessary personnel and first-aid and CPR should be performed training to crewmembers on board both equipment. Moreover, it is doubtful that by emergency medical services Amtrak and privately-operated emergency responders would simply personnel. passenger trains, as well as for the trust an exact passenger count provided FRA invited commenters to submit operating crews of all freight trains. by a train crew and cease looking for their views on whether the final rule Finally, the BLE noted that it was not additional survivors of an emergency. should include the issues of first-aid opposed to a qualified person having Commenters were invited in the NPRM and CPR training. FRA noted that one skills in first-aid and CPR, but stated to offer proposals for training on-board option was to mandate that railroads that although the engineer would crewmembers to track the exact number offer their employees first-aid and CPR benefit tremendously from first-aid of passengers present on a train at any training, without requiring employees to training and CPR training, the engineer given moment, and to include actually use this training during an should remain on the locomotive and suggestions on cost-efficient technology emergency. Under this scenario, a not be the principal person providing for achieving this goal. Since no railroad employee who offered no that response. comments were received, FRA has not assistance during an emergency, At the Working Group meeting held included any passenger manifest- because he or she feared coming into on August 28, 1997, the issue of requirement in the final rule. contact with an injured or ill requiring first-aid and CPR training was passenger’s bodily fluids, would not once again fully discussed. Although Testing violate these regulations. (The the UTU representative continued to The term ‘‘accurately measure’’ is experience of the American Red Cross is recommend that FRA mandate that used in § 239.101(a)(2)(v)(A) relative to that volunteers who receive first-aid and railroads provide this training and employee qualification in a broad sense CPR training, and appropriate require its use in the event of an to mean that the test will show to the equipment, are motivated to provide emergency situation, the preponderant railroad whether the employee has needed assistance when the time recommendation to FRA from the sufficient understanding of the comes.) The second option was to railroad commenters ( i.e., that this emergency preparedness plan subject require not only that railroads train their training remain optional) was area for which he or she is responsible, employees in first-aid and CPR, but also unchanged from the NPRM stage of this and whether the employee can perform mandate that employees use this proceeding. In making the decision to the duties required under the plan in a training during an emergency. exclude first-aid and CPR training for safe and effective manner. Proficiency The UTU commented that the final railroad employees from the minimum must be demonstrated by successful rule should make CPR training and first- requirements of emergency completion of a written examination, aid training mandatory on a biannual preparedness planning, FRA recognizes but in addition may be illustrated by an basis, and require anyone who is that the main objective of this rule is to interactive training program using a properly trained and given proper ensure the prompt arrival of computer, a practical demonstration of equipment to offer assistance in an professional emergency responders at understanding and ability, or an emergency. The UTU argued that each the scene if an emergency, not risk appropriate combination of these in car should contain a first-aid kit and potential delays by encouraging on- accordance with this section. that each train should contain a doctor’s board crewmembers to perform heroic This section permits railroads kit in case a doctor is on board a train efforts that may assist one individual discretion to design the tests that will be during an emergency situation. The passenger at the expense of the safety of employed (which for most railroads will UTU indicated that conductors on the entire train. In addition, FRA is entail some modification of their MARC trains receive a thorough confident that since many members of existing ‘‘book of rules’’ examination to emergency training program that the general public (including railroad include new subject areas), provided includes CPR and first-aid training, and employees) voluntarily obtain first-aid that the design addresses all relevant recommended that one conductor or and CPR training, it is likely that elements of the emergency preparedness assistant conductor be trained in someone knowledgeable will be aboard plan. This section does not specify emergency procedures for every 50 the train and available to assist in the things like the number of questions to passengers on board a train. The UTU event that medical professionals are be asked or the passing score to be also noted that there would not be a delayed in responding to the emergency. obtained. It does, however, contain the delay in calling for help if the call is However, FRA will continue to evaluate requirement that the test not be made quickly and the first-aid or CPR is this issue through program review. conducted with open reference books then started. The UTU stated that unless use of such materials is part of Passenger Manifests employees who have not been trained a test objective. This section also with CPR will not be able to identify The final rule also does not require requires that the test be in writing. In serious medical emergencies that truly railroads to record the number of deciding to require a written test, FRA require intervention by properly trained passengers riding on their trains at any is aware that the test-taking skills of and equipped emergency personnel. given time or to record how many some individuals may be deficient and Finally, the UTU expressed its doubt people get on and off at each train stop. that some persons may have literacy about METROLINK’s assertion that none Although lack of an exact passenger problems. However, FRA believes that of its 8 million riders over the last three manifest may delay emergency minimum reading and comprehension years had required CPR, and wondered responders in determining when every skills are needed to assure proper about METROLINK’s documentation for passenger has been removed from a execution of an emergency preparedness this statement. derailed or disabled train, the frequency plan. CALTRAIN commented that with which many passenger trains pick employer-provided CPR training should up and discharge passengers would On-Board Staffing be excluded from the final rule, due to create logistical difficulties for a train Section 239.101(a)(2)(vi) has been potential liability issues. The Littleton, operator. A train crew can usually revised and renumbered from the NPRM Colorado Fire Department stated that provide a good estimate to emergency to require, as a general rule, that all on- the final rule should require railroads to responders, so that they can respond board crewmembers be qualified to Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24655 perform the functions for which they are a separate emergency preparedness plan Tunnels responsible under the applicable in order to address its emergency Section 239.101(a)(4)(i) addresses provisions of the railroad’s emergency preparedness responsibilities involving FRA’s requirements for compliance with preparedness plan. For example, in the the service being hosted. (See the this part by railroads with operations year 2002 (a date beyond the deadline preceding ‘‘Discussion of Comments that include tunnels of considerable for the completion of initial training and Conclusions’’ portion of this length, where immediate passenger under § 239.101(a)(2)(iii) by all existing document under the heading of item egress is not feasible. Since FRA did not railroads providing intercity passenger number 5 for a detailed discussion of receive any comments on this issue, service), a train on an intercity railroad the requirement that a joint emergency paragraph (a)(4) is adopted as proposed. is scheduled to travel from Washington, preparedness plan be submitted for each In order to limit the number of D.C. to Atlanta, Georgia with a four- passenger train operation by all structures covered by this paragraph to person operating crew fully trained railroads involved with providing, the longer ones that could be expected under the applicable provisions of the operating, or hosting such passenger to present more impediments to the safe railroad’s emergency preparedness plan. service.) The final rule also recognizes and orderly withdrawal of passengers However, the train crew also includes that while hosts of passenger train from a disabled train, tunnels of less someone assigned to perform service as service are generally freight railroads, than 1,000 feet are excluded. This an attendant in a sleeping car (and not passenger railroads (e.g., Amtrak) may limitation is reasonable, considering as a new railroad employee for purposes also serve as hosts. that intercity passenger trains seldom of § 239.101(a)(2)(iv)) who is not yet The host railroads must prepare consist of less than four cars and often qualified under the plan’s provisions to sections of the emergency preparedness have many more cars than this, perform assigned functions. Although plans addressing instances when they implying a minimum total train length this train already has a fully trained and host the operations of rail passenger qualified crew operating the train, the of 400 or more feet. Most likely, a train service over their lines. Even though of this or greater length will have either intercity railroad would still not be in freight railroads may neither provide full compliance with the final rule since the head or rear end close to or outside nor operate rail passenger service of a tunnel portal should an unplanned the crew includes one on-board themselves, and therefore not be subject crewmember who is not qualified under stop occur in a tunnel less than 1,000 to most requirements of the proposed feet long. the emergency preparedness plan. (See rule, these railroads still have certain the preceding ‘‘Discussion of Comments Over the years, passenger train significant emergency preparedness emergencies have occurred in tunnels and Conclusions’’ portion of this responsibilities. The emergency document under the heading of item where existing emergency procedures preparedness plan sections addressing and tunnel characteristics, such as number 1 for a detailed discussion of hosting by both freight and passenger FRA’s decision to revise the definition lighting and communication railroads must, at a minimum, include capabilities, were determined to be of ‘‘crewmember’’ in § 239.7 and procedures for making emergency increase the on-board staffing inadequate. In order to better evaluate responder notifications, and discuss tunnel safety issues related to requirements.) The one exception to the general capabilities for rendering general rule, as set forth in emergency preparedness, FRA requested assistance to the involved hosted subparagraph (B), applies if, for additional information from the railroad passenger railroads during emergency example, a fully-trained passenger train industry. The results were summarized situations. The hosting railroads must crew turns over the operation of its train in a report entitled ‘‘Tunnel Safety address any physical and operating to a freight railroad train crew that is not Analysis’’ (Tunnel Report), which was characteristics of their rail lines that qualified under the passenger railroad’s published by FRA in February 1990. A may affect the safety of the hosted rail emergency preparedness plan. Provided copy of the report was also made passenger operations, e.g., evacuating that the passenger train is operated by available to the rail passenger railroads passengers from a train stalled in a the freight crew with at least one on- for their information and guidance, and tunnel or on an elevated structure. board crewmember of the passenger has been placed in the docket for this train present who is qualified under the FRA expects a railroad that operates rulemaking. FRA encourages all passenger railroad’s emergency rail passenger service over the line of railroads required to address tunnel preparedness plan and available to another railroad to review all of the safety in their emergency preparedness perform excess service under the requirements imposed by the final rule plans to consult the Tunnel Report for Federal hours of service laws in the with the host railroad, and coordinate guidance. FRA is also aware that many event of a passenger train emergency, their respective roles in implementing a State and local jurisdictions already there would be no violation of the final coherent response to an emergency impose site-specific regulations to rule. situation. While FRA presumes that the address tunnel safety, and that most host railroad will bear primary railroads with operations involving Joint Operations responsibility for ensuring the tunnels have long-standing internal Section 239.101(a)(3) has been revised emergency preparedness of any railroad emergency tunnel procedures. from the NPRM, and now contains the permitted to operate intercity passenger requirement that each freight or or commuter trains over its line, the Other Operating Considerations passenger railroad hosting passenger final rule does not restrict the host FRA also did not receive any train service shall communicate with railroad and the operating railroad from comments on § 239.101(a)(4)(ii), and has that service’s provider or operator or assigning responsibility for compliance adopted paragraph (a)(4)(ii) as proposed. both and coordinate applicable portions with this part via a private contractual The paragraph requires that railroads of the one jointly-adopted emergency arrangement. FRA is including the operating on elevated structures, over preparedness plan for that passenger coordination requirement to ensure that drawbridges, and in electrified territory, service. One significant difference to the all railroads involved in a particular rail incorporate emergency preparedness language of paragraph (a)(3) from the passenger service operation understand procedures into their plans to address NPRM stage, is that the final rule each other’s crucial role in planning for these unique physical characteristics. prohibits a host railroad from utilizing emergency preparedness. For example, in an emergency in 24656 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations electrified territory, the control center adding the words ‘‘reasonable’’ and emergency responder organizations, so must be responsible for issuing ‘‘prudent,’’ FRA recognizes that that each party can learn of the full instructions to deenergize the electrical coordination efforts may not always be preparedness capabilities that the other power. Also, the train crew and successful if one of the railroad parties can offer during an emergency. In this emergency responders must know how, to the arrangement is unwilling to regard, each railroad’s emergency when, and when not to remove on-board cooperate. While FRA will not penalize preparedness plan must provide for power from the train, including traction railroads that make good faith efforts to distribution to emergency responders of power, train-lined (head-end) power to establish appropriate working railroad equipment diagrams and individual cars, and battery-source relationships with adjacent rail modes manuals, right-of-way maps, power. The prudent approach for of transportation, FRA expects each information on physical characteristics everyone connected with a passenger railroad to demonstrate that it made the such as tunnels, bridges, and electrified train emergency, especially those necessary coordination attempts. In territory, and other related materials. In individuals who have not received addition, upon notification and request, order to continually reinforce the training in power isolation procedures, FRA will intervene to assist any railroad familiarization of the emergency is to always assume that the electrical that is having difficulty coordinating responder organizations with the power is in the ‘‘on’’ position. emergency efforts, and help mediate a railroads’ protocols, procedures, Also, railroad operations over bridges solution. operations, and equipment, the final and trestles that cross over wetlands, In response to APTA’s comment that rule requires railroads to periodically lakes, rivers, or other bodies of water or the proposal did not address light and distribute applicable portions of the over ravines (particularly those in rapid transit rail operations running plan to emergency responders at least isolated areas with no nearby roads) parallel to commuter operations, FRA once every three years, even if no pose particular access problems for notes that the term ‘‘rail modes of changes have been implemented. emergency responders. Helicopters or transportation’’ is intended to cover all Further, since the knowledge and ability boats may provide the only logical types of transit operations by rail or to carry out procedures and use approach to these locations. magnetic guideways running parallel to emergency equipment are essential to passenger railroad operations and their Parallel Operations the success of emergency response hosts. Accordingly, no change to the actions, the final rule requires the Section 239.101(a)(4)(iii) recognizes final rule was necessary. railroads to promptly notify emergency that the emergency preparedness plans In accordance with the requirements responders whenever material of certain freight and passenger of this paragraph, employees of a host alterations to the plan occur (e.g., railroads will need to address the freight railroad to which this part revisions to emergency exit information, unique safety concerns posed by applies, who have knowledge of or pertinent changes in system route adjacent rail modes of transportation. In observe an emergency in a common characteristics or railroad equipment commenting on paragraph (a)(4)(iii) as corridor, e.g., fire, derailment, or operated on the system, or updates to proposed, APTA stated that the final intrusion by rapid transit rail equipment names and telephone numbers of rule should not place the entire or motor vehicles, must be required by relevant contact officials on the responsibility for the parallel operation the emergency preparedness plan for the railroad). on the passenger railroad, and should passenger operation to immediately FRA wants to ensure that the properly account for the shared convey that knowledge or information emergency responders will receive the responsibilities of both the passenger to the control center. The control center maximum amount of available operation and the hosting freight must attempt to determine the exact information about a railroad’s railroad. Although coordination is location of the incident, any condition operations in advance of an emergency, required under the proposal, APTA that would affect safe passage by and hopes that emergency responders argued that the NPRM did not provide affected trains or road vehicles, and will voluntarily study the material a method to ensure cooperation with the whether hazardous materials are distributed and participate in freight railroad to coordinate emergency involved, and then initiate appropriate emergency simulations. However, the efforts. APTA noted that if a freight responsive action. Under the terms of final rule only requires that affected railroad refuses to cooperate, a this revised paragraph, coordination of railroads make the operations commuter railroad lacks recourse, and emergency efforts is required regardless information available to emergency could still face assessment of civil of whether the host railroad is a freight responders, and that the responders penalties for failing to coordinate with railroad or another passenger operation. merely be invited to participate in an unwilling freight railroad host. APTA emergency simulations. FRA has no Liaison With Emergency Responders requested that the final rule delete the authority to penalize an emergency words ‘‘provide for coordination’’ and Many emergencies require response responder organization if it chooses to replace them with the words ‘‘shall seek from outside emergency responder ignore the distributed information or to coordinate.’’ APTA also indicated organizations in addition to the railroad. refuses to attend simulations with the that the proposal did not take into Proper coordination of roles between all railroad. Likewise, the final rule does account light and rapid transit rail of the organizations that may respond to not hold a railroad accountable for an operations that often run parallel to an emergency is essential to ensure emergency responder organization’s commuter operations. timely and effective response, since the unwillingness to enter into a liaison In response to APTA’s concerns, the number of passengers carried and the relationship, provided that the railroad final rule has been revised to include a railroad operating environment may be employed its best efforts to make the requirement that all railroads that are quite different according to the type of liaison opportunities known and parties to a passenger train operation’s service and routes. Paragraph available to the responders. emergency preparedness plan must 229.101(a)(5) recognizes that the In addition to the requirement to initiate reasonable and prudent actions successful implementation of any periodically distribute applicable to coordinate emergency efforts when emergency preparedness plan depends portions of the emergency preparedness adjacent rail modes of transportation upon the affected railroads maintaining plan to emergency responders (which run parallel to any of these railroads. By current working relationships with the has been moved from paragraph (a)(5)(i) Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24657 in the NPRM to paragraph (a)(5)(iii) in already attempt to share information passengers experiencing health the final rule), FRA has added a new with appropriate local emergency difficulties while riding trains, such as requirement as paragraph (a)(5)(i) responders, and that this determination heart attacks. mandating that each affected railroad is based upon such factors as railroad CALTRAIN stated that while it works develop and make available a training operations and emergency responder closely with local on-line emergency program for all on-line emergency capabilities. APTA argued that the responders, it believes that rail responders who might be called upon to proposed rule eliminates that discretion properties are unable to know the respond to an emergency. As set forth in and flexibility and places a tremendous detailed capabilities of each agency. the preceding ‘‘Discussion of Comments burden on commuter railroads to CALTRAIN indicated that it relies on and Conclusions’’ portion of this affirmatively seek out every emergency responders to summon the appropriate document under the heading of item responder organization, whether or not help, based in part upon the information number 2, in conjunction with FRA’s that entity is a logical choice. APTA provided to them by the railroad. decision to scale back the simulation noted, for example, that paragraph NICTD commented that it had already requirement of § 239.103 to involve only (a)(5)(iii) of the proposed rule (which conducted two simulation drills with one meaningful full-scale simulation has been redesignated as paragraph emergency responders during calendar (performed either annually or every two (a)(5)(ii) in the final rule) would require year 1996. NICTD stated that it was years depending on the size of the MARC to invite the Washington, D.C. already in the process of developing a railroad), FRA has added the training fire department to every simulation training program with manuals on program provision in order to maximize conducted on both of its main lines, emergency evacuation of passengers the opportunity of the emergency even though the simulation is intended from equipment for all emergency responder community to obtain to benefit emergency responders in West responder organizations servicing familiarity with railroad equipment, Virginia. Instead, APTA indicated that NICTD. location of railroad facilities, and MARC should be able to group The Des Plaines, Illinois Fire communications interface. emergency responders by region. Department stated that emergency In paragraph (a)(5)(ii) of the final rule In addition, APTA requested telephone numbers are of paramount (which has been revised and clarification in the final rule of the importance so that the fire department renumbered from paragraph (a)(5)(iii) of requirement in § 239.101(a)(5)(ii) of the can establish contact and stop the trains the NPRM) FRA requires railroads to NPRM to maintain ‘‘an awareness of so that responders can go down the rail invite emergency responders to each emergency responders’ lines in both directions. This participate in emergency simulations. capabilities.’’ APTA asked whether this commenter also noted that receipt of Since § 239.103 has been revised in the requirement included the type of hands-on training is important. final rule to prohibit a railroad from equipment, hazardous material The LIRR commented that members of counting a tabletop exercise toward the capabilities, ambulance service, the emergency responder community do simulation requirement, any railroad emergency medical technicians, and not need the railroads to show them electing to voluntarily conduct a size of fire and police departments. how to put out fires or splint fractures. tabletop exercise is not required by Since each emergency responder Instead, the railroads need to train the paragraph (a)(5)(ii) to invite members of determines the level and type of responders on railroad equipment. the emergency responder community to response to provide during an The UTU stated that it is important attend. However, a railroad must emergency, which may or may not that emergency plans be updated and be employ its best efforts to invite all reflect the limits of its capabilities, distributed to the host railroads and appropriate emergency responders to APTA also questioned how maintaining emergency responders. The UTU attend all of its full-scale simulations. this information will benefit the believed that doing so would shorten Moreover, FRA expects each railroad to railroad. response time, and make emergency extend invitations to all full-scale In its comments, METRA questioned responders more familiar with the simulations even if the railroad does not how it could be expected to become railroad’s physical characteristics and intend to count a particular simulation aware of, much less maintain an equipment. toward the minimum number required awareness of, the capabilities of each In its comments, METROLINK stated by § 239.103(b). emergency responder throughout six of that it operates through the jurisdictions FRA recognizes that not every the most densely populated counties in of 33 different fire districts, over 50 potential outside emergency responder the country. METRA suggested that to ambulance companies, and 45 police will have the opportunity to attend a maintain an awareness it could establish agencies. METROLINK argued that it full-scale simulation or otherwise obtain a program through its liaison, as should not be a railroad’s function to realistic exposure to the unique mandated in the regulation, that any maintain an awareness of the emergency response challenges posed community involved with METRA’s capabilities of each emergency by railroad emergencies. In addition, service would have to tell METRA if it responder, and noted that it lacks the even assuming that every affected upgraded or downgraded its facilities or technical ability to know or understand railroad diligently distributes the equipment. A railroad should know if when a ‘‘significant change’’ occurs in a pertinent portions of its current and one community has a type of equipment responder’s capability. METROLINK updated emergency preparedness plan needed for a rescue, for example, but also noted that the proposed rule to appropriate members of the need not know the internal workings of imposed no reciprocal responsibility on emergency responder community, the community facilities. local emergency responders to notify descriptive information set forth in A member of the public commented railroads when their capabilities change. written materials is no substitute for that there needs to be better METROLINK contended that the formal training that includes meaningful coordination between emergency emergency responders should be hands-on experience with railroad response teams and railroad operators. responsible for establishing mutual aid equipment and an opportunity to ask Although not all railroad accidents can with other local agencies when questions of a live instructor. be prevented, the commenter stated that situations outside their capacity arise. In commenting on § 239.101(a)(5), coordination with emergency Based upon the comments received, APTA stated that all commuter railroads responders can save the lives of FRA concludes that it would be 24658 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations impractical to require railroads to stated that it agreed that applicable criteria should be used to distinguish directly monitor the emergency portions of the emergency preparedness the railroads, and state how these preparedness and response capabilities plan should be readily available to any differing standards would still ensure of all of its on-line emergency affected emergency responder, but adequate levels of safety and emergency responders, and has deleted the believed that the regulations should not preparedness. Regrettably, the only ‘‘maintaining-awareness’’ requirement require direct communication between commenter addressing this issue was of paragraph (a)(5)(ii) of the NPRM from each individual emergency response Amtrak, and its comments dated July 1, the final rule. FRA recognizes that since agency and the railroad. Entities that 1997 are summarized above. the rule imposes no burden on perform centralized functions of On September 2, 1997, six FRA emergency responders to advise information collection can disseminate representatives convened a meeting railroads of their staffing capabilities or this information to emergency with seven members of Amtrak’s their inventories of specialized rescue responders as needed. Amtrak noted management team at Amtrak’s offices in equipment, the railroads would be that these entities include the National Washington, D.C. to discuss issues hindered in their ability to immediately Fire Protection Association (NFPA), the relating to the final rule on Radio determine the most appropriate International Association of Police Communications as well as to emergency response organizations to Chiefs (IAPC), the International emergency preparedness. A request assistance from after a passenger Association of Fire Chiefs (IAFC), representative from the UTU was also in train emergency situation develops. organizations for emergency medical attendance. Minutes of that meeting Moreover, FRA expects that the central services and emergency management have been placed in the public dockets location of the emergency response agencies, and national trade magazines. of both rulemakings. contact (e.g., the 911 emergency These organizations could provide an In pertinent part, FRA challenged operations center) will be fully aware of effective conduit through which Amtrak to provide information to FRA the capabilities of the nearest and/or railroads can communicate with the on how the railroad would ensure that best-equipped emergency responders, emergency response agencies in the the training materials and emergency thereby being able to send the most local communities to advise them of the preparedness plan information would appropriate responders to the location availability of emergency plans. reach the literally thousands of FRA is aware of the great number of of a passenger train emergency. emergency responder organizations who jurisdictions that intercity trains operate Accordingly, if a train derails and falls might potentially respond to an through, and that it is neither simple from a bridge into a river, FRA would emergency occurring along Amtrak’s nor inexpensive for passenger train expect the emergency responder many routes. FRA recognizes that operators to provide material and organization that is contacted to smaller commuter operations will be familiarization to every outside summon a rescue company trained in capable of training the limited number water rescues if one is available. emergency response organization within of potential emergency responders along In commenting on the proposal, all individual communities along each their routes on their railroad equipment, Amtrak stated that while it agreed that route. Some commuter train operators it is reasonable to expect that the have developed booklets and videotapes but that Amtrak lacks the financial emergency preparedness plan to illustrate equipment and describe resources and personnel to directly information should be made available to entry and evacuation procedures for its contact thousands of organizations. At any affected emergency responder, the trains and certain right-of-way facilities. the conclusion of this meeting, FRA final rule should permit railroads to However, FRA recognizes, based on requested that Amtrak submit a fulfill this requirement by providing the Amtrak’s statements made at both the proposal to FRA on how it expects to information to entities that perform pre-NPRM Working Group meetings and achieve compliance with the centralized functions of collecting in its written comments, that because requirements of this paragraph. information and disseminating it to Amtrak operates through thousands of In a letter dated October 27, 1997, emergency service providers, when and jurisdictions with thousands of Amtrak stated that it operates intercity as needed. Amtrak recommended that potential emergency responder passenger trains on a route system of the final rule not designate acceptable organizations located throughout the more than 20,000 miles and reiterated information repositories, but rather United States, it would have difficulty that as many as 20,000 organizations provide latitude for railroads to complying with this paragraph. provide emergency response services in communicate effectively with local While FRA considers the the territories through which its trains emergency responders through establishment of liaison relationships operate. While Amtrak noted that it was centralized communication entities between railroads involved with rail not feasible to directly deal with all of rather than individually. Amtrak passenger operations and emergency these agencies, it acknowledged the stressed that since its nationwide route responders crucial to achieving the importance of communication system interfaces with over 15,000 goals of the proposed rule, the agency is concerning Amtrak’s emergency emergency response agencies, it would also fully aware of the unique response plans, both before and during not be feasible to keep all of them circumstances of Amtrak’s operations. an emergency situation. To accomplish supplied with written instructions. Even FRA had invited public comments on this objective, Amtrak proposed a if the final rule permitted electronic how Amtrak could best comply with the process for advising these local entities transmission of plan information, emergency responder liaison of the availabilities of Amtrak’s plans, Amtrak urged that direct requirement, as set forth in the proposed distributing copies of these plans communication between individual rule. FRA asked whether the final rule promptly when requested, and railroads and each emergency responder should establish a different standard for providing opportunities for dialogue organization not be required. railroads that operate in territories with concerning these plans. Amtrak also Subsequent to the public hearings, large numbers of potential emergency stressed that the process must provide Amtrak submitted additional comments responders to contact, and requested an independent check to determine to FRA on July 1, 1997 concerning that any commenter proposing two or whether the emergency service distribution of emergency preparedness more sets of standards should also responders are aware of the availability plans to emergency responders. Amtrak suggest what numerical or mileage of Amtrak’s materials and how they can Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24659 communicate with Amtrak about them know how to obtain information to responder community. In this regard, during an emergency. familiarize themselves with Amtrak’s the maintenance of accurate emergency Amtrak stated that the wide dispersal operations on a proactive basis and telephone numbers for use by control of its operations is markedly different where to turn during an emergency centers in making emergency from those of commuter services, which situation. Amtrak will also obtain paid notifications in accordance with are localized in relatively discrete urban advertising and other publicity through paragraph (a)(1)(ii) is even more crucial areas. Amtrak encouraged FRA to articles in trade publications for fire and on a railroad the size of Amtrak. develop a different standard for rescue, emergency medical services, law FRA expects that in making its distribution of Amtrak’s materials from enforcement, and similar agencies training program information and that set forth in paragraph (a)(5)(i). In outlining emergency procedures and materials available to national or state this regard, Amtrak recommended that providing the railroad’s contact training institutes, firefighter this paragraph provide for consultation telephone number. Another resource organizations, or police academies, as between Amtrak and FRA concerning that Amtrak noted it uses in major well as when it distributes applicable the effectiveness of initial metropolitan centers on the Northeast portions of its emergency preparedness communication efforts and appropriate Corridor and other parts of the United plan, Amtrak will contact individuals in modifications for adoption over time. States is Operation Respond. Operation these organizations at the lowest Amtrak indicated that its emergency Respond distributes software outlining possible levels that are feasible. FRA preparedness plan will be able via the floor plans and schematics of emergency concludes that merely mailing this Internet to emergency response procedures for Amtrak rolling stock and information to the main address for agencies, as well as through printed overhead views of the Northeast organization will be ineffective at documents. Amtrak will develop Corridor right-of-way. achieving the local outreach efforts to specific procedures to ensure reasonable To ensure the effectiveness of the the emergency responder community security of the information so that it is types of efforts it has outlined, Amtrak required by this final rule. While FRA not distributed without some reasonable believes that it should implement a acknowledges that for the rule to fully assurance of the status and specific sampling technique with which succeed Amtrak must have the responsibility of the receiving party. it could determine whether emergency assistance of these organizations starting Notice of future material changes in the agencies selected at random are aware of at the highest levels, Amtrak may not emergency preparedness plan will be how to contact Amtrak in the event of delegate the responsibility for provided specifically to any parties that an emergency, and obtain the type of communication with local personnel to have previously indicated an interest in information needed to promptly and the top officials of these entities. FRA Amtrak’s emergency response plans. effectively respond. Amtrak proposed expects Amtrak to employ its best Under Amtrak’s proposal, emergency conducting this sampling on an annual efforts to reach, whether directly or response agencies that have not basis. Amtrak stated that the sampling through the assistance of the hierarchy contacted Amtrak would, upon could determine the degree to which of national and state emergency accessing Amtrak’s emergency response agencies are aware of how to obtain response organizations, the local plans, not be alerted to changes. Amtrak such information and the type of actions emergency responders along its rail believes that such specific notice would that Amtrak may need to take in order lines who could reasonably be called be unnecessary because these agencies to improve the awareness of agencies in upon to respond to an emergency had no specific prior understanding. general concerning the availability of situation. However, agencies that had prior information about Amtrak’s emergency In working with Amtrak as part of the knowledge would be alerted to changes preparedness plan. However, Amtrak review and approval process of in facts or procedures as they occur. stressed that inclusion in the ERG is the § 239.201, FRA will fully consider all Amtrak also stated that it will most critical component of any effort to appropriate ideas and suggestions from establish a dedicated toll-free telephone provide a focal point for contacting the railroad on how it proposes to number, in operation 24 hours per day, Amtrak. achieve the necessary liaison that will deal only with actual FRA has carefully reviewed the relationships with its on-line emergencies and provide information contents of Amtrak’s letter dated responders. While FRA will not impose concerning its emergency preparedness October 27, 1997, and is fully cognizant unreasonable expectations on Amtrak, plan. General requests for information of Amtrak’s desire that FRA reasonably FRA will not permit Amtrak to ignore will be responded to on the next regulate the need to effectively the vast number of potential emergency business day. communicate with local emergency responder organizations with which the In order to alert local agencies to the responder organizations concerning railroad must establish at least a availability of Amtrak’s emergency Amtrak’s emergency preparedness plan minimal liaison contact. preparedness plan, Amtrak requested without imposing an undue burden on Finally, in response to Amtrak’s inclusion of its contact telephone the railroad. Because of the large request to include its contact telephone number in DOT’s publication entitled number of emergency responders number in DOT’s ERG, FRA notes that ‘‘North American Emergency Response dispersed throughout Amtrak’s the ERG is a guidebook published by the Guidebook’’ (ERG). Amtrak noted that territories of operation, FRA concludes Research and Special Programs the ERG is in the hands of virtually that it is vitally important that Amtrak Administration (RSPA) (a modal every emergency response agency in the and the host freight railroads enter into administration within DOT) for United States, including fire and rescue, close coordination and keep up-to-date firefighters, police and other emergency emergency medical services, law instructions on how emergency services personnel who may be the first enforcement, and emergency response information is to be reported to to arrive during the initial phase of a management. Amtrak contended that emergency responders. In order for any transportation incident involving just as CHEMTREC and CHEM-TEL are railroad to successfully fulfill the hazardous materials or dangerous goods. listed in the ERG, the Amtrak requirements of this paragraph, positive Although the ERG is not intended for emergency preparedness and response communication links must exist use in a transportation incident toll-free telephone numbers should be between the railroad, its hosts (if involving only a passenger train, absent included so that local agencies will applicable), and the emergency the additional involvement of hazardous 24660 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations materials or dangerous goods, its wide the present time, except on locomotives. largely upon the fact that FRA received distribution makes it an effective The LIRR stated, however, that its entire little public comment on this issue. vehicle for reaching the emergency diesel passenger coach fleet is FRA recognizes that since the focus of responder community. Accordingly, at scheduled to be replaced beginning in this rule is to ensure that emergency FRA’s request, RSPA has agreed to 1997. The LIRR noted that the Electric responders arrive promptly at the scene include this information in the next MU fleet operates in married pairs; the of an accident, rather than to train on- version of the ERG. M1 fleet (758 total) was built between board personnel to act as emergency 1968–1972 and has one fire extinguisher On-Board Emergency Equipment responders, the rule must not impose per married pair, while the M3 fleet onerous, irrelevant, or duplicative The requirements of § 239.101(a)(6)(i) (174 total) was built in 1985–86 and has emergency equipment requirements on remain unchanged from the proposal: a fire extinguisher opposite each railroads. FRA is aware that emergency each railroad’s emergency preparedness operating cab in every car. The responder units will generally arrive at plan shall indicate the types of modification of 758 M1 cars will require the scene of a passenger train emergency emergency equipment placed on board funding and time. The age of the M1 car fully equipped with pry bars, pick axes, each passenger train and the location of fleet is reaching its useful life, and LIRR fire fighting equipment, and other such equipment on each passenger car. stated that it is beginning preparation of assorted specialized rescue items. Although the final rule requires a a capital investment to replace the M1 However, in deciding to mandate in the minimum of only one fire extinguisher portion of the electric fleet. LIRR asked final rule that railroads must carry fire and one pry bar per passenger car, and for relief for both the diesel and M1 extinguishers, pry bars, and flashlights one flashlight per on-board fleet. on board trains, FRA concluded that crewmember, FRA strongly encourages Regarding the issue of pry bars, the certain emergency situations can prove each railroad to voluntarily supplement LIRR noted that it operates in an area so life-threatening and time-sensitive this list of on-board emergency 100 miles long with 11 branches, with that train crews and passengers must equipment. Further, FRA recognizes 181 fire departments throughout Long take immediate action to maximize the that there may be special local interests Island, New York. The LIRR stated that likelihood of survival. that might need to be accommodated, the average response time of emergency Certainly, in the event of a small fire particularly in cases of public responders is only approximately 10 taking place on board a passenger train, authorities operating passenger train minutes, and indicated that the the availability of a working fire service within only one territory. While responders are trained on LIRR national uniformity to the extent equipment and have state-of-the-art extinguisher in each passenger car could practicable of laws, regulations, and rescue equipment. The LIRR believed prevent a minor problem from turning orders related to railroad safety is that retrofitting of all LIRR equipment into a tragic event before emergency important, FRA does not wish to would not provide a higher level of responders are able to respond to the decrease the level of emergency safety than what is already provided by emergency. Also, a fire may start in a preparedness already in place on a the responders, and thought that pry small area or limited location on a train, passenger railroad. bars would be difficult to keep or where crewmembers or passengers In reaching the decision to retain the maintain on railroad equipment open to might be capable of containing the fire same on-board emergency equipment the public. If LIRR is subject to the pry (e.g., a smoldering cigarette on a requirements as proposed in the NPRM, bar requirement, the railroad stated that passenger coach seat), thereby avoiding FRA considered three sets of comments. it will seek relief through the waiver the need to involve outside emergency The first commenter, APTA, said that process. responders at all. While FRA recognizes since the use of metal pry bars by non- In order to assist the agency in that firefighters carry all sorts of rescue railroad personnel on electrified determining whether to revise the equipment, including pry bars, territory may create a significant safety requirements of § 239.101(a)(6)(i), FRA sometimes the threat from an emergency hazard, the final rule should prohibit asked for comment about whether is so immediate and severe that there is public access to them. APTA also noted special circumstances exist in local no opportunity to wait for emergency that theft, tampering, and destruction of jurisdictions throughout the country on responders to arrive and rescue people. on-board emergency equipment are big a categorical basis, requiring railroads to Accordingly, the availability of a pry bar problems for commuter railroads, and meet more stringent requirements than in each passenger car will enable asked that the rule impose a Federal the minimum quantities of on-board crewmembers and passengers to exit the penalty for theft, vandalism, or emergency equipment set forth in the train through an emergency window tampering with emergency equipment, proposed rule. Specifically, FRA invited exit in the event that the rubber similar to penalties imposed by the comments on what types and quantities stripping cannot be removed Federal Aviation Administration for of on-board emergency equipment accordingly to plan and circumstances tampering with smoke detectors on railroads are currently required to carry do not permit awaiting the arrival of airplanes. The second commenter, a pursuant to laws in the local emergency responders. Also, for private citizen, commented that in light jurisdictions in which they operate, and example, a pry bar can be useful in of the number of possible unpreventable was curious as to the reasons for these prying open an end door on a passenger health emergencies that can occur on a more stringent requirements. Depending car that is lying on its side after a train, the types of on-board emergency on the comments received, FRA noted derailment. Finally, since emergencies equipment should be expanded. He that it might adopt the minimums set can happen at night in isolated believed that this equipment, along with forth in the text of the proposed rule or locations, a flashlight is an important better emergency training of railroad decide to broaden the coverage of tool for guiding passengers safely off the employees, can save many lives. paragraph (a)(6)(i) by specifying train during an evacuation and The third commenter, the LIRR, additional types or quantities, or both, minimizing the likelihood of people indicated that while it supports the idea of on-board emergency equipment that tripping in the dark, unfamiliar of having one fire extinguisher per some or all railroads must carry on each landscape. In addition, flashlights can passenger car, the LIRR’s diesel fleet passenger car. FRA’s decision to adopt prove invaluable in the event that a does not have any fire extinguishers at paragraph (a)(6)(i) as proposed is based train’s primary and backup electrical Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24661 systems fail during the course of an board emergency equipment by virtue of Take for example, a railroad that emergency situation. their frequent presence on the train, and supplies each of its passenger cars with FRA recognizes that some railroads would not benefit from any additional one fire extinguisher and one pry bar, will have unique problems associated required information. and provides each of its on-board with meeting the minimum crewmembers with one flashlight. By First-aid Kits on Intercity Passenger requirements of this paragraph, either equipping its train with all of these Trains due to certain atypical aspects of their items, the railroad would then be in full operations, concerns about theft or FRA has added as a new requirement compliance with the minimum vandalism, or compliance with laws in to the final rule in paragraph requirements of § 239.101(a)(6)(i). the local jurisdictions in which they 239.101(a)(6)(ii) concerning first-aid kits Accordingly, if, unbeknownst to the currently operate. While FRA expects on intercity passenger trains. In railroad, a vandal pilfers a fire each railroad to make every effort to commenting on the NPRM, the UTU extinguisher from one of the passenger incorporate these minimum requested that all passenger trains be cars while the train is in service FRA requirements into its emergency equipped with a first-aid kit as an can impose a civil penalty upon that preparedness plan, FRA acknowledges emergency tool, and urged that the kit vandal for causing the railroad to be in that situations may arise where contain personal protection equipment violation of 49 CFR part 239. requiring strict adherence to the for the trained personnel who will be For purposes of enforcement by FRA requirements of this paragraph may rendering first aid and CPR. At the very of § 239.101(a)(6)(i) and (ii), the phrase prevent or impede rail passenger least, the UTU stated that the kit should ‘‘in service’’ means a passenger car that transportation that is in the public contain rubber gloves, and the plastic is in passenger service, i.e., the interest. As a result, FRA intends that gloves and the mouth shields for CPR. passenger car is carrying, or available to the emergency planning approach allow At the working group meeting held in carry, fare-paying passengers. A railroads to develop approaches to Washington, D.C. on August 28, 1997, passenger car is not in service if it is: providing safe rail passenger many of the members agreed that while being hauled for repairs and is not transportation that do not meet all of the commuter trains may operate in densely carrying passengers; in a repair shop or on-board emergency equipment populated areas that are close to on a repair track; on a storage track and standards, but compensate by providing emergency medical services, intercity is not carrying passengers; or is moving alternatives that afford equivalent levels trains often operate through sparsely without passengers in deadhead status. of safety. Accordingly, any railroad that populated remote regions of the United FRA will impose a civil penalty for believes it cannot or should not have to States that have limited road access for passenger equipment that is missing on- comply with the specific requirements use by emergency responders. Board emergency equipment or first-aid of paragraph (a)(6)(i), may submit a Accordingly, to recognize the unique kits (in the case of railroads providing waiver request to FRA in accordance operational challenges presented by the intercity passenger train service) only if with 49 CFR part 211. While submission operation of intercity service, FRA the railroad had actual knowledge of the of such a request does not guarantee it believes that crewmembers onboard facts giving rise to the violation, or a will be granted, every waiver request each of these trains must have access to reasonable person acting in the will be duly considered. at least one first-aid kit that contains the circumstances and exercising reasonable This paragraph does not require necessary supplies to clean and dress a care would have had that knowledge. railroads to instruct their passengers minor wound until professional Accordingly, since FRA is not about either the location or use of the responders can arrive at the scene. employing a strict liability standard in on-board emergency equipment. As Since FRA does not intend for the enforcing § 239.101(a)(6), FRA would anticipated in the NPRM, FRA has first-aid kit to substitute for appropriate ordinarily not impose a civil penalty on crafted a final rule that avoids medical attention from a physician or the railroad for the actions of a vandal. micromanagement of the provisions of a hospital, the final rule limits the However, once the railroad personally railroad’s emergency preparedness plan. minimum required contents of the first- discovers or is otherwise notified that a FRA recognizes that passengers might aid kit to only gauze pads, bandages, piece of emergency equipment or a first- benefit from receiving routine wound cleaning agent, scissors, aid kit is missing, FRA expects the instructions about the location and tweezers, adhesive tape, and latex railroad to replace the missing item operation of on-board emergency gloves. Since proper use of these items before the passenger car (or train, as equipment during each train trip, in the should be self evident to both members appropriate) is again placed in service event that the crewmembers are injured of a train crew and the traveling public, on a subsequent calendar day. In this or otherwise unable to access the the final rule does not impose any regard, FRA will expect each railroad to equipment before the outside emergency specific requirement on railroads to ensure its compliance with responders arrive. However, FRA is also train their employees on the use of first- § 239.101(a)(6) by performing whatever aware from its consultations with the aid kits. Of course, FRA does not intend daily interior mechanical inspection Working Group that pilferage of on- to discourage railroads from voluntarily requirements that eventually result from board emergency equipment is a serious incorporating such training into its the rulemaking on passenger equipment problem on many passenger railroads, emergency preparedness program. safety standards. See proposed and that specifically focusing the In response to APTA’s concern about § 238.305 of this chapter. 62 FR 49772, attention of passengers on where the theft, tampering, and vandalism of on- 49773, and 49808. equipment is located would only board emergency equipment by both exacerbate the problem. Clearly, the railroad passengers and other members On-board Emergency Lighting equipment can only help both of the public, FRA has included The rulemaking on passenger crewmembers and passengers during an language in the section-by-section equipment safety standards will address emergency if it is available for proper analysis of § 239.11 to remind the the issue of permanent emergency use. Also, members of the Working general public that FRA may impose a lighting on passenger rail cars. Whatever Group stressed that regular riders on civil penalty upon any individual who requirements eventually appear in the intercity or commuter operations are willfully causes a railroad to be in new set of regulations at 49 CFR part probably already familiar with the on- violation of any requirement of this part. 238, § 239.101(a)(6)(iii) states that 24662 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations auxiliary portable lighting must be noting that FRA will permit a handled include distributing pamphlets, posting available for assistance in an emergency flashlight, such as a flashlight with a information in stations on signs or on and should be routinely maintained and ‘‘D’’ cell, to be one of the means of video monitors, and the review of replaced as necessary. Section satisfying the auxiliary portable lighting procedures by crewmembers via public 239.101(a)(6)(ii) has been renumbered in requirement, Omniglow stated that its address announcements. However, as the final rule due to addition of the 15’’ high intensity lightstick would set forth in the preceding ‘‘Discussion of requirement for first-aid kits on intercity satisfy this requirement. In this regard, Comments and Conclusions’’ portion of passenger trains. Further, the final rule Omniglow observed that its lightstick is this document under the heading of specifies the duration times for both a high-intensity, non-explosive, non- item number 3, FRA also encourages brilliant illumination and continuous or hazardous, weatherproof light source, railroads to pursue alternative intermittent illumination after the onset with a four year shelf life. innovative means of conveying of an emergency situation. The final rule FRA will not endorse the product of passenger safety information. All does not require that every rail a specific company by determining brochures and signage must emphasize passenger car have such lighting, but the whether a railroad’s use of that product that passengers must follow the train itself must carry enough portable will enable it to comply with the directions of the train crew during an lighting to facilitate orderly passenger emergency lighting requirements of this emergency. evacuation. paragraph. The only issue before FRA in Although paragraph In its comments on this issue at the evaluating whether a source of auxiliary 239.101(a)(7)(ii)(A) permits a railroad to NPRM stage of this proceeding, portable lighting satisfies a railroad’s fulfill the secondary passenger METROLINK stated that FRA needed to emergency planning need is whether the education requirement of the final rule define the clause ‘‘auxiliary portable lighting is both accessible during an by making on-board announcements, lighting must be accessible,’’ and emergency and provides the requisite FRA does not specify the frequency questioned whether a flashlight is an levels and time intervals of with which these announcements acceptable form of such lighting. FRA illumination, as specified in paragraph should be made during a train run. FRA intends for a handheld flashlight, such 239.101(a)(6)(iii)(A) and (B). If a railroad believes that, with regard to intercity as a ‘‘D’’ cell flashlight, to be one of the can satisfy the regulatory parameters of service, announcements are appropriate means of satisfying the auxiliary this paragraph by using Omniglow’s after at least each major passenger pick- portable lighting requirement; the final lightsticks, FRA will take no exception up point, and commenters were invited rule text has been expanded to include to the product’s use. in the NPRM to suggest ways of a handheld flashlight as an example of providing safety information to all new Safety-Awareness Programs for an auxiliary portable lighting source. riders without becoming repetitious to Passengers Further, FRA considers auxiliary the remaining passengers. Since no portable lighting as accessible when the Finally, paragraph 239.101(a)(7) public comments were received on this lighting sources are reasonably available requires railroads to make passengers specific issue, FRA has elected to permit for use by a train’s crew and its aware of emergency procedures to broad flexibility to railroads in passengers within several minutes of the follow before an emergency situation determining the appropriate frequency onset of the emergency. Since every develops, thus enabling them to respond of on-board announcements in the event emergency situation is unique, FRA properly during the emergency. All that they select this secondary method cannot expect a railroad to determine in passenger awareness efforts must to disseminate information to advance precise locations for locating emphasize that passengers must follow passengers. In addition, while the final the auxiliary portable lighting so that the directions of the train crew during rule requires railroads to utilize only every passenger and crewmember on the an emergency. If passengers are on a one additional method to distribute train is always within immediate reach disabled train, but are not injured or safety awareness information to the of the lighting. Accordingly, FRA facing imminent danger, they could traveling public, FRA encourages expects each railroad to act reasonably safely await the arrival of trained railroads to employ as many of the and make its best educated guess, based emergency responders with appropriate options as possible based on operating upon its types of rail equipment and the evacuation equipment. However, in a and budgetary considerations. nature of its operations, on where to serious emergency involving smoke or Despite FRA’s encouragement of the place auxiliary lighting so that it will fire, passengers may have to evacuate use of innovative techniques, the likely be accessible after the onset of an the train before emergency responders information in the various sources of emergency. arrive. Thus, operators of rail passenger passenger safety awareness information Omniglow commented that service should take steps to increase must be consistent in content and chemiluminescence is the production of passenger awareness about basic sufficient for first-time users of the light from a non-heat generating evacuation procedures. Since railroad, but not so overwhelming as to chemical reaction, and utilizes a passengers could inadvertently arouse undue concern. All information fluorescent molecule, a key jeopardize their own safety, it is must be printed or spoken in English, intermediate, and a catalyst. Omniglow appropriate for them to take the but railroads serving large non-English stated that the key chemical initiative only if the crewmembers are speaking communities should consider components are separated by a specially incapacitated. providing information in other designed capsule contained within a Passenger railroads must educate languages as well. Materials for persons larger, translucent plastic form, and that passengers about their role in who are visually impaired should be when light is desired, the outer plastic cooperating in emergencies by printed in large type format and in container is manipulated by the conspicuously and legibly posting braille. Finally, for persons with other consumer, breaking the inner ampule, emergency instructions inside each types of disabilities, appropriate which allows the ingredients to mix and passenger car, and by utilizing at least passenger awareness materials should produce light. After arguing that each one or more additional methods, provide information about evacuation rail passenger car should be equipped including those designated in this policies and procedures and other with portable lighting capable of paragraph, to provide safety awareness emergency actions, to the extent fostering passenger evacuation, and information. The suggested methods practicable. Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24663

Passenger awareness education procedures that must be followed procedures and equipment can be should include information that may during an emergency. As set forth in the evaluated. permit passengers to accomplish the preceding ‘‘Discussion of Comments FRA recognizes that full-scale following: and Conclusions’’ portion of this emergency exercises require weeks of • Recognize and immediately report document under the heading of item carefully organized plans involving all potential emergencies to crewmembers; number 3, the survey requirement and participating organizations and involve • Recognize hazards; its accompanying recordkeeping burden the expenditure of funds for both the • Recognize and know how and when have been deleted from the final rule. training and the actual full-scale to operate appropriate emergency- exercise. Recording or videotaping the related features and equipment, such as 13. Passenger Train Emergency scenes and conversations in key areas of fire extinguishers, train doors, and Simulations: Section 239.103 the exercise itself can serve as valuable emergency exits; and classroom training for later years. A full- • Section 239.103 recognizes that one of Recognize the potential special the most effective training techniques is scale exercise is the total application of needs of fellow passengers during an a simulation of specific emergency the resources of the passenger railroad emergency, such as children, the scenarios. Simulations may vary from a operator and the voluntarily elderly, and disabled persons. small-scale drill or tabletop exercise for participating emergency response FRA had asked for public comment just one train crew or control center organizations. Such an exercise can on whether the final rule should include operator, to a full-scale emergency reveal the degree of familiarity of both fixed timeframes in which railroads exercise involving several levels of the passenger train system and must provide their passengers with railroad management that includes the emergency response organization additional methods of safety awareness voluntary participation of fire personnel with train operations, the information, and urged commenters to departments, ambulance and emergency physical layout of trains, right-of-way supply scientific or sociological data medical service units, local police, structures and wayside facilities, and/or cost estimates in support of their sheriff and state police organizations, emergency exits, and emergency suggested time intervals. The general local emergency auxiliary groups, and equipment. Thus, shortcomings in the recommendation of the commenters was state and federal regulatory agencies. emergency preparedness plan and that the final rule should leave the While simulations are primarily specific response protocols and features of the awareness programs to designed to demonstrate that railroad procedures, as well as equipment, can each railroad’s discretion, and that the employees can quickly and efficiently be identified and corrected. key component of this requirement manage an emergency situation to In the NPRM, FRA questioned should be flexibility so that railroads ensure that emergency responders arrive whether tabletop exercises should be can utilize the right mix of passenger afforded the same weight in the final quickly, simulations are also intended communication techniques. rule as full-scale simulations for to determine whether train crews are Based upon FRA’s consideration of purposes of demonstrating the readiness properly trained to get passengers out of this issue, instead of specifying fixed of a railroad to successfully react to a an imperiled train. maximum time intervals between passenger train emergency. FRA also utilizing the additional forms of As FRA noted in the NPRM, the stated that the final rule might require program activity, FRA will allow the tabletop exercise is the simplest to stage, that each railroad conduct a minimum railroads to determine the optimal as it involves only a meeting room and number of its simulations as full-scale frequency that best serves their knowledgeable managers and employees exercises. In this regard, FRA was passengers and their operations. FRA from the passenger train operator and skeptical as to whether a tabletop expects that as the traveling public the appropriate responding exercise could equal the grows more accustomed to reading and organizations who voluntarily comprehensiveness of a full-scale understanding the emergency participate. For an imaginary exercise and be a highly effective means instructions posted inside all passenger emergency, the actions to be taken by of determining whether a railroad is cars on bulkhead signs, seatback decals, the appropriate personnel are described; adequately prepared for the likely or seat cards the need for redundant the time, equipment, and personnel variety of emergency scenarios that reminders (e.g., on-board necessary are estimated; and potential could occur on its lines, as well as an announcements, ticket envelope safety problems are predicted. Conflicts of important training tool for the train information, or public service functional areas, lack of equipment, crews, control center employees, and announcements), especially at frequent procedural weaknesses or omissions, members of the emergency responder time intervals, will greatly diminish. communication difficulties, and community who elect to participate. In Moreover, depending on the additional confusing terminology are among the contemplating during the NPRM stage of method selected, different time intervals problems which can be identified. this proceeding whether to strengthen may be appropriate. For example, while Passenger train operators can drill the emergency simulation requirement, it may be suitable for a railroad to their train crews, other on-board FRA was aware that realistic full-scale distribute safety awareness information personnel, supervisors, and control simulations that enable all participants on a seat drop every three months, the center operators on emergency operating to practice using the on-board railroad may conclude that it should procedures by posing a hypothetical emergency equipment and emergency arrange for public service emergency for employees to resolve exits (and encourage the emergency announcements on a weekly basis. without dispatching emergency responders to become personally responders to the scene. A drill could familiar with passenger equipment and Passenger Surveys also involve the voluntary participation applicable railroad operations) could Paragraph 239.101(a)(7)(iii) of the of personnel of a particular response prove invaluable in helping railroads NPRM would have required railroads to organization, e.g., a fire department. The and the emergency responder perform surveys of their passengers in same type of problems as indicated for community to manage real emergencies order to learn how successful the the tabletop exercise can be identified, in ways that tabletop exercises cannot. passenger awareness program activities and the actual response capabilities of However, FRA was also aware that the are in apprising passengers of the personnel in terms of their knowledge of financial and logistical costs of 24664 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations conducting full-scale simulations are preceding ‘‘Discussion of Comments along the same line for an extended undoubtedly higher, including the need and Conclusions’’ portion of this period of time, and that emergency to close railroad tracks during the hours document under item number 2. responder organization personnel tend of the simulation, opportunity costs for To achieve a maximum level of to be line-specific in terms of their the railroads due to lost use of the effectiveness, full-scale drills and familiarity with a railroad’s operations, passenger equipment that is employed exercises should reinforce classroom it is crucial that each affected railroad in the simulations, unavailability of training in emergency response and provide adequate opportunities along all firefighting and rescue equipment for passenger evacuation for the passenger of its major lines for its employees and other emergencies while the simulations train operator personnel and the the responder community to obtain are being conducted, and salary costs for emergency response units who emergency response information and many or all of the simulation voluntarily participate. Procedures training opportunities. While FRA participants. should also be included to teach anticipates that each commuter or short- In order to best determine whether the personnel to identify the emergency and haul railroad will conduct full-scale final rule should require full-scale distinguish its unique demands, and to emergency simulations as frequently as emergency simulations in conjunction follow through with the appropriate possible on its entire system, the final with tabletop exercises, or perhaps in responses. In addition, the full-scale rule supplements the revised simulation place of such exercises, FRA noted that drills and exercises should be planned requirement with the comprehensive it would carefully weigh the expected to minimize hazards which could create liaison requirements of § 239.101(a)(5) costs and potential benefits of all an actual emergency or cause injuries so that each railroad can best reach the available options. FRA sought public and to provide a mechanism for most heavily traveled portions of its comment on the perceived effectiveness simultaneous testing and reinforcement system while conserving limited of both full-scale emergency simulations of emergency operating procedures for resources. In this regard, FRA and tabletop exercises, including a specific types of emergencies and recognizes that while emergency discussion of whether tabletop exercises evacuation procedures. Moreover, the responder organizations tend to be can achieve the equivalent level of full-scale drills and exercises should densely located along the major lines of emergency preparedness as full-scale test the communication capabilities and commuter and short-haul railroad simulations. FRA was particularly coordination of the passenger operator operations, it is not necessary for each interested in receiving comments from with the emergency responders, as well railroad to run full-scale simulations on the emergency responder community, as the operability and effectiveness of all of its major lines according to a fixed especially from those members who emergency equipment. timetable, provided that the railroad have participated in either emergency Paragraph (b) has been modified to maintains proper liaison relationships simulations or actual emergency require each railroad that provides with the affected responders. situations with railroads. commuter or other short-haul passenger Based upon FRA’s review of the train service to conduct a full-scale In addition to the final rule setting public comments and our careful emergency simulation at least once forth the requirement for each affected consideration of the significant issues during every two calendar years, railroad to perform its full-scale concerning emergency simulations, FRA provided that its operations include less emergency simulations without regard has modified § 239.103 to require that than 150 route miles and less than 200 to whether the railroad specifically all of the simulations that a railroad million passenger miles annually. For includes all of its major lines, FRA also must perform are done full scale. While larger commuter or other short-haul does not expect the railroad to require FRA still encourages railroads to passenger operations, i.e., those whose all of its employees who are trained supplement their emergency operations include at least 150 route under the emergency preparedness plan preparedness planning by voluntarily miles or at least 200 million passenger to attend the simulations. Moreover, conducting tabletop exercises in miles annually, a full-scale simulation is FRA does not expect each railroad to addition to full-scale emergency required at least once during each invite all potential emergency simulations, FRA concludes that the calendar year. For all intercity passenger responders to participate who are safety objectives of emergency- operations, regardless of the number of located along the portion of the railroad preparedness planning are best served route miles or passenger miles, a full- subject to the simulation. While FRA by railroads conducting at least a scale simulation is required at least once hopes that over the long term all minimal number of comprehensive, full- during each calendar year. The final railroad employees involved in the scale exercises. FRA believes that the rules does not distinguish on the basis operation of passenger train service, as combination of full-scale simulations of major lines for purposes of permitting well as all applicable members of the and the requirement contained in railroads to select locations for their emergency responder community, will § 239.101(a)(5) for each railroad to emergency simulations. However, in have the opportunity to participate in develop a training program available to crafting the final rule to limit the this valuable training exercise and all on-line emergency responders who number of required simulations, FRA enhance their individual emergency could reasonably be expected to recognizes that full-scale simulations preparedness skills, the simulations are respond during a passenger train carry higher financial and logistical also intended to identify shortcomings emergency situation, enable railroads to costs than do tabletop exercises, and in each railroad’s emergency best prepare for the likely varieties of that railroads will reach a greater preparedness plan and specific response emergency scenarios that could occur representative sample of the emergency protocols and procedures. The railroad on their lines. A detailed discussion of responder community by offering must discuss the identified weaknesses the change in the simulation training programs in accordance with and overall effectiveness of the requirement from the NPRM stage of § 239.101(a)(5) to responders who may emergency preparedness plan with the this proceeding, as well as a general lack opportunities to partake in actual simulation participants at the debriefing discussion of the new requirement that simulations. and critique session held under railroads develop training programs for Since FRA has determined that a train § 239.105, and then initiate any emergency responders and their crew on a commuter or other short-haul appropriate improvements and/or organizations, is included in the operation will usually operate a train amendments to the plan. As part of this Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24665 review process, the railroad is also Further, because of the length of time tunnel or on a bridge, a derailment expected to revise its employee training required to travel these lines, the same involving a freight train carrying a program under § 239.101(a)(2) and train will be operated by more than one hazardous materials spill, etc.), Amtrak modify its liaison relationships with crew and may involve operation over can carefully design a program to fulfill members of the emergency responder the line of a freight railroad. Since its overall emergency response needs. community established under Amtrak’s lines traverse numerous By combining optimal use of the § 239.101(a)(5), based upon the populated communities throughout the required minimum number of identified shortcomings of the railroad’s United States, an emergency situation emergency simulations with a emergency-preparedness planning. could require the assistance of any comprehensive training program offered Accordingly, while the final rule does number of potentially thousands of to emergency responders as part of the not mandate that affected railroads emergency responders from these liaison relationship, FRA concludes that conduct numerous simulations along all locations. a passenger railroad as diverse as of its major lines so as to include every While FRA is not requiring operators Amtrak (which operates coast-to-coast possible participant, FRA concludes of intercity service to conduct service under a wide variety of that the lessons learned from the additional emergency simulations along operating conditions through the mandatory debriefing and critique its lines in order to reach a greater jurisdictions of numerous emergency sessions and the interactions that occur proportion of employees and members responders) can best achieve the within the required liaison relationships of the emergency response community, emergency preparedness goals of this will have far reaching benefits. we do expect such railroads to plan rule throughout its entire system In order to ensure that each affected simulations that sufficiently test the without expending a disproportionate railroad evaluates its overall emergency elements of their emergency amount of its limited resources. response capabilities through careful preparedness plan under the variety of Since FRA has decided to scale back selection of the appropriate scenarios circumstances that could occur in the simulation requirement to involve and locations on its lines for the intercity service. Although FRA only one meaningful full-scale emergency simulations, the final rule recognizes that the length and diversity simulation (performed either annually requires each railroad to organize of Amtrak’s operations limit the or every two years depending on the simulations that will adequately test the potential benefits from resources spent size of the railroad), FRA believes it is performance of the railroad’s program on conducting emergency simulations, imperative that all railroads be required over time under the variety of the final rule requires Amtrak to to study and evaluate their emergency emergency situations that could conduct a minimum of only one full- response capabilities in controlled reasonably be expected to occur on the scale emergency simulation per settings enabling them to carefully plan operation. For example, a railroad calendar year on any selected portion of their full-scale emergency scenarios. operating in territory that includes its entire system, without regard to Accordingly, FRA has modified the final underground tunnels will need to whether the simulation takes place on a rule to prohibit a railroad from counting conduct simulations to test the particular business unit or other major either a tabletop exercise or the railroad’s ability to ensure employee organizational element. Although FRA activation of its emergency and passenger safety during an considered imposing more rigorous preparedness plan during an actual emergency situation occurring in this requirements in the final rule on Amtrak emergency situation toward the unique environment. Adequate lighting (and other operators of intercity service) simulation requirement. and sources of air in tunnels and in order to ensure the requisite level of However, since FRA recognizes that underwater tubes are critical for emergency preparedness, FRA will full-scale emergency exercises require successful passenger evacuation during instead rely upon the thoroughness of extensive planning and commitment of emergencies. Further, emergency the liaison activities and programs human resources, the final rule permits responders depend on sufficient lighting initiated by Amtrak in accordance with a railroad to postpone a scheduled full- for visibility during fire suppression and § 239.101(a)(5). scale simulation for up to 180 days rescue operations. If the railroad intends A detailed discussion of FRA’s beyond the applicable calendar year to evacuate passengers by using cross liaison-relationship expectations for completion date if the railroad has passages and/or fire doors leading to the Amtrak is included in the preceding activated its emergency response plan opposite track area, or a separate center ‘‘Section-by-Section Analysis’’ portion after a major emergency. The passageway between the adjacent track of this document under § 239.101(a)(5). postponement period permits the areas, the simulation should include That discussion section outlines railroad to properly deal with the practice in the requisite evacuation Amtrak’s September 2, 1997 meeting aftermath of an actual major emergency, protocols and procedures. with FRA, during which the defined in paragraph (d) to cover an In the case of a railroad providing participants discussed the issue of unexpected event related to passenger intercity passenger service involving a developing a program for distributing operations that results in serious injury number of lines operated over long Amtrak’s emergency preparedness plan or death to one or more persons distances, such as the coast-to-coast to emergency service providers located combined with reportable property service provided by Amtrak, the need in areas through which Amtrak damage, without the added stress or for the railroad to carefully plan its operates, and also summarizes Amtrak’s logistical burden of immediately simulations and concurrently examine written submission to FRA dated conducting a simulation. During this the effectiveness of its emergency October 27, 1997 addressing the same postponement, FRA expects the railroad preparedness plan under a variety of topic. to measure the effectiveness of its scenarios becomes crucial. Many of By considering each of the emergency emergency preparedness plan in Amtrak’s lines run for hundreds of scenarios that could possibly occur on conjunction with the debriefing and miles through remote locations that the different segments of the railroad critique session held pursuant to could include risks from tunnel (e.g., simulations of a derailment at a § 239.105, and then improve or amend mishaps, natural disasters (e.g., fires, remote location where emergency its plan, or both, as appropriate, in floods, and earthquakes), hazardous responder assistance is not immediately accordance with the information material leaks, and/or acts of terrorism. available, an on-board fire inside a developed. Paragraph (c) also requires 24666 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations the railroad to modify the rescheduled train emergency situation or full-scale railroad shall amend its emergency simulation, if appropriate, based upon simulation. In addition, FRA did not preparedness plan in accordance with the lessons learned from its response to receive any public comments or § 239.201. All persons involved shall be the actual emergency. recommendations from members of the debriefed. Although paragraph (c) allows a Working Group on an appropriate Although FRA did not receive any limited exception under which a timeframe. In order to encourage substantive comments on the need to railroad may postpone a scheduled full- railroads to conduct the required conduct debriefing and critique sessions scale simulation, the calendar timetable debriefing and critique sessions in a in order to accomplish the stated goal of remains the same. Take, for example, a timely and reasonable period of time, improving the effectiveness of commuter railroad whose operations thereby maximizing the railroad’s emergency preparedness plans, some include 250 million passenger miles emergency-preparedness benefits from commenters did request that FRA annually and has a full-scale emergency the experience, FRA has revised the explicitly state in the rule text the simulation scheduled for December 1 of final rule to require that these sessions circumstances under which the calendar year 2001, but has a major be held no later than 60 days after the requirement to conduct a debriefing and emergency situation occur on November emergency situation or simulation takes critique session would be triggered. In 15. In accordance with the terms of place. Of course, while FRA is this regard, Amtrak commented that § 239.103(b)(2), the railroad is required providing a maximum timeframe of 60 debriefing and critique sessions can be to conduct a minimum of one full-scale days, FRA expects that, in the majority useful in determining the effectiveness emergency simulation during calendar of cases, railroads will hold these of emergency response procedures and year 2001 and another one during valuable sessions within only 30 days of in developing improvements, but calendar year 2002. Although, the emergency situation or simulation. represent substantial undertakings by § 239.103(c) permits the railroad the The purpose of a debriefing and railroad personnel (possibly including option of postponing its full-scale critique session is to review with both an operating and host railroad) and simulation for calendar year 2001 from railroad personnel the reports of representatives of emergency response December 1, 2001 until June 29, 2002, evaluators, to present comments or agencies. Amtrak recommended that the deadline for the full-scale observations from other persons, and to FRA not require full debriefing and simulation for calendar year 2002 assess the need for any remedial action, critique sessions after accidents where (assuming that the postpone exception either to correct deficiencies or to no threat to passengers on the train of paragraph (c) does not become an generally improve the effectiveness of requiring a possible evacuation or other issue during calendar year 2002) the emergency operations and similar major response existed. Where remains at December 31, 2002. procedures. In addition, the debriefing there was such a threat, Amtrak and critique session provides an suggested that FRA require a full 14. Debriefing and Critique: Section excellent opportunity for the railroad to debriefing and critique session only 239.105 determine the effectiveness of its after situations during which the Section 239.105 recognizes the value passenger awareness program activities. Incident Command System (ICS), or an of conducting a formal evaluation For example, if an emergency situation equivalent multi-jurisdictional process after the occurrence of either an requires passengers to evacuate the emergency response system, was actual emergency situation or a full- train, the session should determine if activated. Amtrak noted that the ICS scale emergency simulation exercise to everyone onboard correctly followed the was originally developed by the determine what lessons can be learned. safety instructions of the crewmembers National Fire Academy, and had been To increase the effectiveness of the and was aware of the emergency endorsed by FEMA, EPA, and DOT. evaluation of an emergency simulation, window and door exit locations and When such systems are activated, the railroad personnel should be designated their means of operation. participation and resources of numerous as evaluators to provide a perspective Persons responsible for conducting local emergency response agencies and on how well the emergency the sessions should be instructed by the the railroad must be coordinated; this preparedness plan and procedures were railroad to ask questions that will test coordination is the most meaningful test carried out. Although not required by emergency preparedness procedures, of an emergency response plan’s the final rule, railroads are also assess training, and evaluate equipment. effectiveness. encouraged to invite outside emergency After a simulation, these persons shall Amtrak stated that for situations when response organizations and other debrief all participants (including the ICS was not activated, a smaller- outside observers to participate as simulated victims, if any) who can offer scale debriefing and critique session evaluators. Evaluators should be given valuable insights and thus help the might be appropriate. Amtrak copies of the railroad’s emergency railroad to revise its procedures. The acknowledged that the proposal did not preparedness plan before the simulation debriefing session should help to require a debriefing and critique session is conducted, and a preliminary meeting determine what emergency after each grade crossing or trespasser should be held to familiarize the preparedness or response procedures accident, but requested that this evaluators with the drill or exercise and could not be used because of the special exception be stated explicitly in the rule assign functional areas of concern for circumstances of either the train or the text. Amtrak also requested that the rule evaluation (e.g., communications, passengers, and whether coordination text exclude a debriefing and critique evacuation times). Depending on the between the railroad and the emergency session when there is no risk to persons elaborateness of the simulation, responders requires improvement. on the train that would require the type evaluators may also choose to use video The above method of conducting post- of evacuation or other emergency cameras to record the sequence of simulation debriefing and critique response contemplated by the events, actions of personnel, and use of sessions should also be used by regulations. Amtrak opined that there is emergency equipment. railroads to evaluate reactions to actual little benefit to performing post-accident FRA did not propose a specific emergencies. Weaknesses in emergency evaluations when there was no risk to deadline in the NPRM by which each preparedness procedures and persons on the train that required a railroad must conduct its debriefing and equipment and areas for improving prompt, coordinated response involving critique session after each passenger training should be identified, and the both railroads and emergency Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24667 responders. Since Amtrak is involved in emergency preparedness plan. Upon preparedness plan under these approximately one grade crossing or review of the comments, FRA circumstances, or any other trespasser incident every other day, a recognizes the potentially significant circumstances, for purposes of satisfying requirement to conduct a debriefing and commitment of resources that such a the emergency simulation requirements critique session after such occurrences session can involve, and does not wish of § 239.103. would be burdensome. to impose this obligation on railroads While a significant derailment with CALTRAIN commented that the unless the evaluation process would one or more injured passengers or a fire debriefing requirement fails to establish focus on ways to improve the on a passenger train would undoubtedly the threshold or norms that trigger a effectiveness of the emergency involve significant threats to passenger debriefing and critique session. preparedness plan in ways that would safety, and therefore require a debriefing CALTRAIN argued that this decision benefit passengers on board the train. and critique session, the proposed rule should be made by railroad Since emergency situations involving left open the question of what other management, with the exception of significant threats to the safety or health types of emergency situations would simulation drills and tabletop exercises, of train passengers that require trigger the requirements of this section. which typically conclude with a immediate attention may entail a variety The NPRM sought public comment on debriefing and critique. of unique fact patterns, the railroad what sorts of situations, or ‘‘significant APTA commented that under the employees and passengers involved in threats,’’ FRA should include in the proposal, a commuter railroad must the invaluable debriefing and critique final rule under the definition of conduct a debriefing after every exercise can help individuals involved ‘‘emergency’’ or ‘‘emergency situation’’ passenger train emergency. APTA in future incidents benefit from a set forth in § 239.7. Although no suggested that FRA revise the rule to prompt and coordinated response from comments were received, FRA has add a threshold before the debriefing the railroad and the emergency revised the definition of ‘‘emergency’’ or requirement is triggered, and responder community. However, ‘‘emergency situation’’ in § 239.7 to recommended that the requirement be because collisions of the type set forth include: derailments; a fatality at a triggered only when a major emergency in paragraph (b) occur with greater grade crossing; a passenger or employee affects five or more passengers. As regularity and involve more predictable fatality, or an illness or injury to one or proposed, APTA argued that the fact patterns (e.g., a motor vehicle at a more crewmembers or passengers provision would be costly to comply gated crossing circumvents a lowered requiring admission to a hospital; an with and annoy passengers, without any gate arm and is hit by a passenger train, evacuation of a passenger train; and a corresponding benefit to rail safety. For with no one on the train suffering an security situation (e.g., a bomb threat). example, a passenger heart attack would injury), debriefing and critique sessions The final rule does not prescribe an FRA form or other substantive trigger the debriefing requirement. In after these incidents would quickly addition, APTA noted that the questionnaire to be used at the become repetitive in nature. opportunity for passenger fraud is much debriefing and critique sessions, or set Accordingly, FRA would burden the greater, since a passenger being forth specific questions to be asked after railroads, yet achieve only a marginal debriefed may attempt to collect money a full-scale simulation or actual benefit to rail safety. from the railroad for a nonexistent emergency. Paragraph (c) simply injury. In accordance with the above change requires the railroad to determine, by Although METROLINK did not in the final rule, while the term whatever means it selects, the address the issue of establishing a ‘‘emergency or emergency situation’’ is effectiveness of its emergency threshold level in the final rule that defined in § 239.7 of this part to include preparedness plan; specifically, the would trigger the debriefing and critique a collision with a person, including functional capabilities of the on-board requirement, it did comment before suicides, FRA does expect a railroad to communications equipment, the issuance of the NPRM that if a conduct a debriefing and critique timeliness of the required emergency commuter railroad did a tabletop session after every grade crossing notifications, and the overall efficiency exercise or simulation, it could not accident. Although the railroad would of the emergency responders and the follow the criteria of the proposal for a still be expected to invoke its emergency emergency egress of the passengers. debriefing. During a table exercise or preparedness plan in the event of any Although the requirements of paragraph simulation, a railroad does not usually grade crossing accident, the goal of this (c) were included in the NPRM as notify the emergency responders via the final rule is to ensure that railroads paragraph (b), the requirements remain normal means of communication, does effectively and efficiently manage essentially unchanged under its new not respond via normal emergency passenger train emergencies. designation, except for some minor conditions (code three with lights and Accordingly, FRA does not intend for stylistic changes. sirens), and does not involve real the debriefing and critique requirements In the NPRM, FRA had invited passengers in the simulation. As noted of this section to apply when an comments on whether the final rule in FRA’s preceding ‘‘Discussion of emergency situation involves only a should specify additional types of issues Comments and Conclusions’’ portion of motorist or pedestrian who has been that must be addressed by railroads at this document (item number 2), as well injured or killed, but does not affect the debriefing and critique sessions (in as in the sectional analysis of § 239.103, passengers onboard the train. Of course, addition to the five issues required to be the final rule prohibits a railroad from if a grade crossing accident leads to an addressed in paragraph (c)), or whether counting a tabletop exercise toward the evacuation of the passenger train (e.g., a each railroad should retain some simulation requirement of the final rule. gasoline truck collides with the side of flexibility to develop its own approach Accordingly, METROLINK’s concern is a passenger train, and diesel fuel begins to conducting these sessions. FRA did no longer relevant. to leak from the locomotive, creating the not receive any comments on this issue. A substituted paragraph (b) has been risk of a fire or an explosion), then a Upon further deliberation, FRA added to § 239.105 to set forth the railroad must conduct a post-accident concludes that if a railroad rigorously limited circumstances under which a debriefing and critique session. In analyzes its emergency response debriefing and critique session is not addition, a railroad cannot count its scenario in accordance with the five required after a railroad has activated its activation of the emergency required subparagraphs to paragraph (c), 24668 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations and corrects all relevant deficiencies other appropriate action to ensure that equipment, operation of these doors has identified by the debrief and critique this element of emergency preparedness required considerable effort, including session, there is no need to impose any planning is sufficiently addressed. hand tools. If a power loss occurs, additional requirements in the final In order to achieve the goals of this crewmembers may be unable to open rule. Nevertheless, still FRA encourages section, and to comply with the either or both of the car vestibule side railroads to voluntarily discuss any or debriefing and critique recordkeeping doors from the normal key control all of the following questions at their requirement of paragraph (d), evaluators station in the car. If side-door debriefing and critique sessions: should be provided with critique sheets, emergency controls permit opening of • Did on-board personnel try to to be collected and used in the only one sliding door, it could prove initiate a radio call immediately? debriefing and critique sessions difficult to move certain individuals • How long did it take for on-board conducted by the railroads. At a through it. Also, if the vestibule side personnel to reach and inform the minimum, whatever documentation the doors cannot be opened immediately control center of the emergency railroad selects to comply with from either the inside or the outside, situation? paragraph (d) shall contain the date(s) persons may panic and could be injured • What was the method of and location(s) of the simulation and the as others attempt to leave the car. notification to the control center? Was debriefing and critique session, and As FRA noted in the NPRM stage of the method an on-board radio or a should include the names of all this proceeding, commuter railroads wayside radio (if equipped)? participants at each session. Under the have agreed to FRA’s request that • Was there adequate radio final rule, the critique sheets, or arrangements requiring hand tools communication equipment? Was it used equivalent records, must be maintained (coins and pencils) be retrofitted. The properly? Did it work properly? by the railroad at its system and issue of relocation of manual releases is • Did on-board personnel know the applicable division headquarters for two being addressed in the rulemaking on proper emergency telephone number to calendar years after the end of the Passenger Equipment Safety Standards call from the wayside telephone? calendar year to which they apply, and (FRA Docket No. PCSS–1), and the • Did on-board personnel identify be made available for FRA and State Passenger Equipment Safety Standards him/herself to the control center by inspection and copying during normal Working Group will be evaluating other name and location? business hours. Although the improvements in door design and • Did on-board personnel report the requirements of paragraph (d) were set operation. Section 239.107(a) requires number (approximate or actual, as forth in the NPRM as paragraph (c), the that all doors intended by a railroad to appropriate) and status of the requirements remain essentially be used during an emergency situation passengers? unchanged under its new designation. be properly marked inside and outside, • Did on-board personnel make One notable distinction is that while the and that the railroad post clear and audible, appropriate announcements to NPRM was silent as to how long the understandable instructions for their passengers? How many minutes elapsed debriefing and critique records needed use at the designated locations. after the simulation or emergency began to be retained, the final rule imposes a However, in contrast to the broad before the first announcement was retention period of two years. A second definition of ‘‘passenger car’’ contained made? distinction is that while the NPRM was in part 223 of this chapter, the text of • Did on-board personnel properly silent on what specific information the the final rule has been revised to reflect operate the fire extinguishers? records of the debriefing and critique the fact that the marking requirements • Did on-board personnel request sessions needed to include, the final for emergency door exits on passenger deenergization of the third rail or rule states that each record must include cars do not apply to self-propelled catenary power? the: date and location of the passenger passenger cars designed to carry • Did on-board personnel request the train emergency situation or full-scale baggage, mail, or express. halting of train movements? simulation; date and location of the Section 239.107(a)(1) requires that the • How long did it take for the first debriefing and critique session; and emergency egress exits be emergency response unit to arrive at the names of all participants in the conspicuously and legibly marked on emergency scene? debriefing and critique session. the inside of the car with luminescent • How long did it take to completely material or be properly lighted. FRA evacuate the train or right-of-way 15. Emergency Exits: Section 239.107 realizes that during an emergency the structure or wayside facility or In the course of normal passenger main power supply to the passenger extinguish a fire (real or simulated), or train operations, persons enter and exit cars may become inoperative and that both? passenger cars at a station platform crewmembers with portable flashlights Of course, during the course of FRA’s through doors on the side of the train. may be unavailable. Since lack of clear review of the implementation and However, when a disabled train cannot identification or lighting could make it effectiveness of the debriefing and be moved to the nearest station, difficult for passengers to find the critique requirement in the final rule, alternative evacuation methods must be emergency door exits, the final rule FRA will analyze whether this employed. Emergency access to and requires luminescent material on all requirement, as written, achieves the egress from a passenger car may be emergency egress door exits (or desired improvements in emergency achieved through outside doors, end secondary auxiliary lighting near these preparedness. This review will doors, and windows. In some exits) to assist and speed passenger determine whether the experiences of emergencies, such as when a fire is egress from the train during an railroad employees, railroad passengers, confined to a single passenger car, emergency. The marking of the and members of the emergency response persons may be moved through the end emergency door exits must be community indicate that FRA should door(s) to an adjacent car. In other conspicuous enough so that a require railroads to consider any or all emergencies, transfer of all the reasonable person, even while enduring of the above questions during their passengers from the disabled train may the stress and potential panic of an debriefing and critique sessions. Based be required. emergency evacuation, can determine on FRA’s evaluation, the agency may Not all passenger cars have vestibule where the closest and most accessible initiate further rulemaking activity or side doors on both ends, and in some emergency route out of the car is Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24669 located. In addition, while this section instructions, FRA carefully considered the periodic sampling requirement for does not prescribe a particular brand, concerns expressed by members of the emergency window exits discussed type, or color of luminescent paint or Working Group that this requirement below, FRA expects each railroad to material that a railroad must use to would enable vandals to gain easy or develop and implement procedures for identify an exit, FRA intends each casual entry into passenger cars left achieving the goals of this paragraph. railroad to select a material durable overnight in rail yards, particularly Visual inspections must be performed enough to withstand the daily effects of adolescents who might otherwise not periodically to verify that no emergency passenger traffic, such as the contact know how to operate specialized door exit has a broken release mechanism or that occurs as passengers enter and mechanisms. In addition to FRA’s desire other overt sign that would render it leave the cars. to avoid unnecessary expenses to unable to function in an emergency. Section 239.107(a)(2) requires that the railroads for repairing vandalized or Maintenance, including lubrication or emergency door exits intended for damaged rail equipment, FRA does not scheduled replacement of depreciated emergency access by emergency wish to see on-board emergency parts or mechanisms, must be responders for extrication of passengers equipment disappear from unattended performed in accordance with standard be marked with retroreflective material, trains due to the acts of individuals who industry practice and/or manufacturer so that the emergency responders can learned how to gain illegal access to the recommendations. All emergency exits easily distinguish them from the equipment courtesy of a Federal that are found during the course of an nonaccessible doors simply by shining regulation. FRA also recognizes that inspection or maintenance cycle to be their flashlights or other portable under § 239.101(a)(5), railroads are broken, disabled, or otherwise incapable lighting on the marking or symbol required to develop training programs of performing their intended safety selected by the railroad. Again, while available to all on-line emergency function must be repaired before the this section does not prescribe that a responders who could reasonably be railroad may return the car to passenger railroad use a particular brand, type, or expected to respond to an emergency service. color of retroreflective material to situation, with an emphasis upon access For purposes of enforcement by FRA identify an access location, FRA intends to railroad equipment, location of of § 239.107, the phrase ‘‘in service’’ each railroad to select a material durable railroad facilities, and communications means a passenger car that is in enough to withstand the daily effects of interface, and that such comprehensive passenger service, i.e., the passenger car weather and passenger contact, and training information may lessen the is carrying, or available to carry, fare- capable of resisting, to the extent need for railroads to place markings on paying passengers. A passenger car is possible, the effects of heat and fire. If every emergency door or post detailed not in service if it is: being hauled for all doors are equally operable from the access instructions. However, FRA repairs and is not carrying passengers; exterior, no designation would be realizes that not every potential in a repair shop or on a repair track; on useful, nor would any be required. In emergency responder will choose to a storage track and is not carrying the separate rulemaking on passenger participate in the training program, and passengers; or has been delivered in equipment safety standards, FRA is that not everyone who participated will interchange but has not been accepted addressing appropriate requirements for recall all of the imparted information on by the receiving railroad. FRA will periodic maintenance and replacement access to the equipment while in the impose a civil penalty for passenger of the emergency door exit markings. midst of responding to a major railroad equipment that is missing an The final rule requires railroads to emergency-exit marking or has an accident or incident. FRA is confident post clear and understandable inoperable emergency exit only if the that railroads will find ways of instructions at designated locations railroad had actual knowledge of the protecting their unattended equipment describing how to operate the facts giving rise to the violation, or a through appropriate security measures, emergency door exits. This section does reasonable person acting in the and the agency will not risk loss of not mandate that railroads use specific circumstances and exercising reasonable human life from delays in emergency words or phrases to guide the care would have had that knowledge. responder rescue efforts merely because passengers and emergency responders. Accordingly, since FRA is not of the possibility that financial losses Instead, each railroad should evaluate employing a strict liability standard in from vandalism will increase. the operational characteristics of its enforcing § 239.107, FRA would emergency door exits, and select key Accordingly, the comprehensive ordinarily not impose a civil penalty on words or diagrams that adequately marking and operating instruction the railroad for the actions of a vandal. inform the individuals who must use requirements proposed in the NPRM However, once the railroad personally them. While railroads are encouraged to remain unchanged. discovers or is otherwise notified that a post comprehensive instructions, FRA Paragraph (b) requires each railroad marking is missing or an emergency exit also realizes that during an emergency operating passenger train service to is inoperative, FRA expects the railroad situation every additional moment properly consider the nature and to replace the missing marking or repair devoted to reading and understanding characteristics of its operations and the inoperative exit before the passenger access or egress information places lives passenger equipment to plan for routine car (or train, as appropriate) is again at risk. In addition, FRA would already and scheduled inspection, maintenance, placed in service on a subsequent expect passengers and emergency and repair of all windows and door exits calendar day. In this regard, FRA will responders to be familiar with the intended for either emergency egress or expect each railroad to ensure its location and operation of the railroad’s rescue access by emergency responders. compliance with § 239.107(b) by emergency door exits as a result of In the case of emergency window exits, performing whatever daily exterior and emergency responder liaison activities the inspection, maintenance, and repair interior mechanical inspection and passenger awareness programs activities must be performed consistent requirements that eventually result from conducted in accordance with proposed with the requirements of part 223 of this the rulemaking on passenger equipment § 239.101(a)(5) and (a)(7). chapter. While the final rule does not safety standards. See proposed In deciding to require that railroads require railroads to perform these tasks §§ 238.303 and 238.305 of this chapter. must mark all door exits intended for in accordance with a specific timetable Carrying forward requirements emergency access and post access or methodology, except with respect to currently contained in FRA’s Emergency 24670 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

Order No. 20, the final rule also requires inspection, maintenance, and repair FRA has added paragraph (d) to the each railroad to periodically test a records available to duly authorized final rule to authorize railroads to retain representative sample of emergency representatives of FRA and States their records of inspection, window exits on its passenger cars to participating under part 212 of this maintenance, and repair of emergency verify their proper operation. The chapter for inspection and copying (e.g., window and door exits by electronic sampling of these emergency window photocopying or handwritten recordkeeping, subject to the conditions exits must be conducted in conformity notetaking) during normal business set forth in this provision. This with either of two commonly recognized hours. provision provides an alternative for alternate methods, which will provide a METROLINK commented that in railroads retaining certain information, degree of uniformity industry wide. order to avoid the unnecessary burden as required in paragraph (c). FRA Both methods require sampling meeting of maintaining duplicate records, the realizes that requiring railroads to retain a 95-percent confidence level that all rule should require railroads to store all the information in paper form would emergency window exits operate of the maintenance records for the impose additional administrative and properly (i.e., the methods do not accept emergency window and door exits at the storage costs, and that computer storage a defect rate of 5 percent). Rather than site of the inspections. In METROLINK’s of these documents would also enable require railroads to test all window exits case, that site would be the applicable railroads to immediately update any on a specific type or series of car if one division headquarters, which is no more amendments to their operational testing car has a defective window exit, the than 15 miles from its system programs. final rule permits the railroads to use headquarters. METROLINK also noted Each participating railroad must have commonly accepted sampling that paragraph 239.107(c) does not the essential components of a computer techniques to determine how many indicate for how long the inspection system, i.e., a desktop computer and additional windows to test. In general, records must be retained, and either a facsimile machine or a printer these principles require that the greater recommended that since the current connected to retrieve and produce the percentage of window exits that a rule calls for major service inspections records for immediate review. The railroad finds defective, the greater the to be retained for 180 days (or until the material retrieved in hard copy form percentage of windows that the railroad next inspection is performed) the final must contain relevant information will have to test. Specifically, sampling rule should establish a similar organized in usable format to render the must be conducted to meet a 95-percent timeframe. data completely understandable. The confidence level that no defective units In response to METROLINK’s documents must be made available for remain in the universe and be in accord comment concerning the lack of a FRA or participating State inspectors with either Military Standard MIL– timeframe for the retention of inspection during normal business hours, which STD–105(D) Sampling for Attributes or records, FRA has revised the final rule FRA interprets as the times and days of American National Standards Institute to require a two-year retention period the week when railroads conduct their ANSI–ASQC Z1.4–1993 Sampling for each railroad’s records of inspection, regular business transactions. Procedures for Inspections by maintenance, and repair of its Nevertheless, FRA reserves the right to Attributes. Defective units must be emergency window and door exits. review and examine the documents repaired before the passenger car is Despite METROLINK’s preference for a prepared in accordance with the returned to service. shorter timeframe, FRA concludes that Passenger Train Emergency The final specifies that a railroad two years is necessary to allow FRA an Preparedness regulations at any must test a representative sample of adequate opportunity to perform reasonable time if situations warrant. emergency window exits on its cars at meaning compliance audits and Additionally, each railroad must least once during every 180 days to determine if a railroad’s overall pattern provide adequate security measures to verify their proper operation. Although of compliance with this section is limit employee access to its electronic commenters were encouraged to address sufficient. In addition, while FRA data processing system and must this issue by indicating whether the recognizes the additional expense of prescribe who can create, modify, or sampling should occur on an annual retaining copies of inspection records at delete data from the database. Although basis, or on a less frequent basis, no both the system and divisional levels, FRA does not identify the management comments were received. Accordingly, this dual approach enables FRA’s job position capable of instituting the level of frequency remains regional inspection forces to perform changes in the database, each railroad unchanged from the NPRM stage of this division-specific inspections, while also must indicate the source authorized to proceeding. permitting FRA to study the compliance make such changes. Each railroad must The inspection, maintenance, and of a railroad’s entire system. However, also designate who will be authorized to repair records concerning emergency as METROLINK illustrates by describing authenticate the hard copies produced window and door exits must be retained its own operational characteristics, at from the electronic format. In short, at the system headquarters for the least one member of the railroad each railroad electing to retain its railroad and at the division population has only one central records electronically must ensure the headquarters for each division where maintenance facility which solely integrity of the information and prevent the inspections, maintenance, or repairs performs all of the inspection, possible tampering with data, enabling are performed (i.e., the records maintenance, and repair of its entire FRA to fully execute its enforcement availability must be division specific). fleet of passenger cars. Under this responsibilities. The records must be retained for two limited scenario, FRA agrees that it calendar years after the end of the year would be redundant to require a 16. Emergency Preparedness Plan; to which they relate. The records can railroad to maintain duplicate sets of Filing and Approval: Section 239.201 consist of multiple documents, and may records at both its system and divisional Section 239.201 specifies the process contain separate sections covering offices. Accordingly, the single central for review and approval by FRA of each inspection, maintenance, and repair or maintenance facility would be an passenger railroad’s jointly-adopted separate sections covering different acceptable repository for all of the emergency preparedness plan. The types of passenger equipment. inspection, maintenance, and repair intent of the review and approval is to Additionally, railroads must make these records for such a railroad. be constructive, rather than restrictive. Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24671

It is anticipated that the passenger with minimum plan requirements FRA All persons, such as contractors, who railroads, in conjunction with the will first conduct a preliminary review perform any action on behalf of a railroads hosting these operations (when of each plan in accordance with revised railroad are required to conform to the applicable), will develop and paragraph (b)(1), and then conduct a emergency preparedness plans in effect implement varied plans based upon the comprehensive and detailed review of on the railroads upon which they are special circumstances involving their each plan in accordance with revised working. Persons whose employees are individual operations. Under the final paragraph (b)(2) prior to final approval working under a railroad’s approved rule, FRA requires that each affected and implementation. A detailed emergency preparedness plan need not railroad summarize its internal discussion of the issue of preliminary submit a separate plan to FRA for discussions and deliberative processes and final review of emergency review and approval. For example, if a to explain how the railroad’s unique preparedness plans is included in the passenger railroad hires an outside and individual operating characteristics preceding ‘‘Discussion of Comments independent contractor to conduct an determined how each issue for the and Conclusions’’ portion of this emergency simulation pursuant to passenger train operation was finally document under item number 4. § 239.103, the contractor must perform addressed in the emergency FRA expects to involve members of this task in accordance with the preparedness plan. Specifically, FRA the Passenger Train Emergency passenger operation’s plan. However, if expects each railroad to participate, as Preparedness Working Group in a freight railroad train crew operates a appropriate, in preparing a review of the developing benchmark criteria for plan passenger train for a commuter rail analysis that led to each element of the approvals to simplify plan development authority, the freight railroad must emergency preparedness plan that the and approval. It is anticipated that this coordinate the applicable portions of the passenger operation submits to FRA for criteria will address program elements emergency preparedness plan with the approval, including a consideration of that include the following: commuter rail authority. While an the expected monetary costs and • Specific course content for training assignment of responsibility for anticipated safety benefits associated programs of on-board personnel, control compliance made under § 239.101(a)(3) with each section of the plan. center personnel, and other key must be clearly stated in the plan, the In its comments, METROLINK stated employees; assignor shall not be relieved of that the term ‘‘analysis’’ in the phrase • Minimum requirements for full- responsibility for compliance with this ‘‘shall include a summary of the scale emergency exercises, including part. railroad’s analysis supporting each plan frequency and content of drills with Although the final rule has been revised to state that the final review element and describing how each emergency responders and simulations condition on the railroad’s property is process will include ongoing dialogues to determine rapidity of emergency addressed in the plan’’ is vague and with rail management and labor evacuations under varying scenarios; lacking in direction. METROLINK then representatives, the rule does not • Specific means for providing asked whether FRA expects to receive a specifically require the direct emergency safety information to cost benefit analysis, systems approach, involvement of railroad employees or passengers, similar to on-board briefings or safety value analysis. In addition, their representatives in the process of provided in commercial aviation; METROLINK questioned whether the • designing the emergency preparedness term ‘‘condition on the railroad’s Detailed requirements for tunnel plan. In this regard, FRA notes that the property’’ concerns elements of the plan safety, including lighting and responsibility for having a plan that equipment; and such as earthquakes, wind, and power • conforms with this rule lies with the outages. Additional attention to emergency employer. However, it should be noted In response to METROLINK’s equipment, by recommending types and that the success of an emergency comments, FRA notes that the word numbers of various kinds of equipment preparedness plan requires the willing ‘‘analysis’’ means that FRA expects each that may be useful under varying cooperation of all persons whose duties railroad to identify all vulnerabilities operating scenarios. or personal safety are affected by the that exist on its property in terms of FRA will also review all plan plan. potential risks to rail safety and amendments prior to their going into emergency preparedness planning. In effect. FRA had requested comments on 17. Retention of Emergency the context of identifying the known whether there are any categories of plan Preparedness Plan: Section 239.203 risks, each railroad should undertake a amendments that should be permitted to Although FRA did not receive any systems approach in order to explain go into effect immediately, prior to comments, this section has been how it will mitigate the level of each review and approval, because they modified to reflect the new requirement risk to an acceptable level. FRA does not constitute improvements for which in § 239.201 that each passenger railroad consider earthquakes, wind, or power implementation delay should be jointly adopt a single emergency outages, in and of themselves, to be avoided. Since FRA did not receive any preparedness plan with all railroads ‘‘conditions on the railroad’s property.’’ comments on this issue, the final rule hosting its passenger service (if However, if a railroad requires electrical requires that all proposed plan applicable). The single emergency power to operate, and its operations run amendments be submitted for review preparedness plan prepared by the across a trestle without walkways, then before the railroad may revise its passenger railroad and all of its the emergency preparedness plan must emergency preparedness plan. Within applicable host railroads, as well as all address how the railroad will mitigate 45 days of receipt of a railroad’s subsequent amendments to the single the risk connected with one of its trains proposed amendment to its plan, FRA plan, must be retained at the system becoming stranded on a trestle during a will review the proposal and notify the headquarters for each railroad and at the power outage. railroad’s primary contact person of the division headquarters for each division FRA will conduct a review of each results of the review and identify any on each affected railroad where the plan plan so that there can be an open deficiencies found. If FRA discovers a is in effect (i.e., the records availability discussion of the plan’s provisions from deficiency, the railroad must correct it must be division specific). The which all concerned parties can benefit. before the amendment may go into emergency preparedness plan may However, in order to ensure compliance effect. consist of multiple documents or 24672 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations booklets and may contain separate efficiency tests, especially on busy regular business transactions. sections covering the varying job freight corridors. APTA offered to work Nevertheless, FRA reserves the right to functions and plan responsibilities of with FRA to help in the implementation review and examine the documents on-board and control center personnel. of this section. prepared in accordance with the Additionally, railroads must make the FRA recognizes both the operational Passenger Train Emergency emergency preparedness plan records complexities and logistical realities of Preparedness regulations at any available to duly authorized FRA commuter railroads sharing trackage reasonable time if situations warrant. rights with freight railroads on the representatives for inspection and Additionally, each railroad must general railroad system of copying (e.g., photocopying or provide adequate security measures to transportation. While FRA remains handwritten notetaking) during normal limit employee access to its electronic confident that dispatchers on host business hours. data processing system and must railroads will fully cooperate with prescribe who can create, modify, or 18. Operational (Efficiency) Tests: commuter operations and provide them delete data from the database. Although Section 239.301 with safe and adequate opportunities to FRA does not identify the management Section 239.301 contains the perform on-the-job verifications to job position capable of instituting requirement that railroads monitor the evaluate individual employee changes in the database, each railroad routine performance of employees who performance under the emergency have individual responsibilities under preparedness plan, the rule does permit must indicate the source authorized to the emergency preparedness plan to a railroad to utilize formal make such changes. Each railroad must verify that the employee can perform examinations, interactive computer also designate who will be authorized to the duties required under the plan in a programs, and practical demonstrations authenticate the hard copies produced safe and effective manner. It permits the to measure the success of its training from the electronic format. In short, railroad to test proficiency by requiring program. Nevertheless, FRA will each railroad electing to retain its the employee to complete a written or intervene as appropriate to ensure the records electronically must ensure the oral examination, an interactive training successful and effective implementation integrity of the information and prevent program using a computer, a practical of each railroad’s emergency possible tampering with data, enabling demonstration of understanding and preparedness plan. FRA to fully execute its enforcement ability, or an appropriate combination of responsibilities. 19. Electronic Recordkeeping: Section these in accordance with this section. Regulatory Impact This testing may also involve check 239.303 rides and control center visits, along FRA did not receive any comments on Executive Order 12866 and DOT with unannounced, covert observation this section, which is adopted as Regulatory Policies and Procedures of the employees. proposed. Section 239.303 authorizes This section requires a railroad to railroads to retain their operational This final rule has been evaluated in keep a record of the date, time, place, (efficiency) test records by electronic accordance with existing policies and and result of each operational recordkeeping, subject to the conditions procedures. Due to considerable public (efficiency) test that was performed in set forth in this provision. This interest in the subject matter of the rule, accordance with its emergency provision provides an alternative for the rule is considered to be significant preparedness plan. Each record must railroads retaining certain information, under both Executive Order 12866 and identify the railroad officer as required in § 239.301. FRA realizes DOT policies and procedures (44 FR administering the test of each employee. that requiring railroads to retain the 11034; February 26, 1979). FRA has Accordingly, by identifying the specific information in paper form would prepared and placed in the docket a data points that each record must impose additional administrative and regulatory analysis addressing the provide, this section will promote the storage costs, and that computer storage economic impact of the rule. It may be examination of relevant information of these documents would also enable inspected and photocopied at the Office from captured data sources, enabling railroads to immediately update any of Chief Counsel, FRA, Seventh Floor, FRA to better determine the amendments to their operational testing 1120 Vermont Avenue, N.W., in effectiveness of a railroad’s emergency programs. Washington, D.C. Photocopies may also preparedness plan. A written or Each participating railroad must have be obtained by submitting a written electronic records of each operational the essential components of a computer request to the FRA Docket Clerk at (efficiency) test must be kept for one system, i.e., a desktop computer and Office of Chief Counsel, Federal calendar year after the end of the year either a facsimile machine or a printer Railroad Administration, Mail Stop 10, in which the test was conducted, and connected to retrieve and produce 400 Seventh Street, S.W., Washington, must be made available for inspection records for immediate review. The D.C. 20590. and copying by FRA and participating material retrieved in hard copy form As part of the benefit-cost analysis, States during normal business hours. must contain relevant information FRA has assessed quantitative FRA received only one comment organized in usable format to render the measurements of costs and benefits concerning the requirements of this data completely understandable. The expected from the adoption of the rule. section. APTA expressed a general documents must be made available for The Net Present Value (NPV) of the total concern that a commuter railroad FRA or participating State inspectors 20-year costs which the industry is operating over a host railroad may not during normal business hours, which expected to incur is $6.3 million. be able to convince the freight railroad’s FRA interprets as the times and days of Following is a breakdown of the costs dispatcher to provide track time for the week when railroads conduct their by requirement.

Section Requirement Cost

239.101,201,203 ...... Emergency Prep. Plan ...... $199,085 Control Center Notification ...... 969±1,569 Training: Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24673

Section Requirement Cost

ÐOnboard Personnel Training ...... 1,400,684 ÐControl Center Personnel Training ...... 134,014 ÐInitial Program Development ...... 51,822 Joint Operations ...... 22,954 Parallel Operations ...... 1,526±1,865 Emergency Responder Liaison: ÐTraining Program ...... 423,096 ÐProvide EPPÐCommuter ...... 11,646 ÐProvide EPPÐAmtrak ...... 403,365 Onboard Emergency Equipment: ÐOne Fire Extinguisher/Car ...... 147,801 ÐOne Pry Bar/Car ...... 66,571 ÐInstruction on Pry Bar Use ...... 279,576 Passenger Safety Awareness: ÐPermanent Onboard Posting ...... 64,597 239.103, 105 ...... Pass Train Emergency Simulations ...... 231,172 239.107 ...... Emergency Exits: ÐMarkingÐInterior ...... 447,571 ÐMarkingÐExterior ...... 1,336,679 ÐInspection/Record keep...... 397,091 239.301 ...... Operational Efficiency Tests ...... 683,909

Total ...... 6,304,128±6,305,067

The history of passenger train entities. This final rule affects intercity A joint FRA/industry working group accidents shows that the potential for and commuter passenger railroads, as formed by the RSAC is currently injury and loss of life arising from a well as rapid transit operations that developing recommendations regarding single incident can be significant. In the operate over the general railroad system the applicability of FRA regulations, last 11 years there have been seven of transportation. Commuter railroads including this one, to tourist, scenic, passenger train accidents which and rapid transit systems are part of historic, and excursion railroads. After resulted in a significant loss of life. FRA larger transit organizations that receive appropriate consultation with the believes that the value (as a result of Federal funds. The American Public excursion railroad associations takes these requirements) of averting three or Transit Association (APTA) represents place, emergency preparedness more fatalities, or an economic- the interests of commuter railroads and requirements for these operations may equivalent number of permanently rapid transit systems in regulatory be proposed by FRA that are different disabling injuries among rail passengers matters. Further, the final standards from those affecting other types of over the next twenty years will exceed were developed by FRA in consultation passenger train operations. These the cost to rail carriers of implementing with a Working Group that included requirements may be more or less these rules. representatives from Amtrak, individual onerous, or simply different in detail, While FRA cannot determine whether commuter railroads, and APTA. depending in part on the information gathered during FRA’s consultation the monetary value of the benefits to Entities impacted by the final rule are railroads affected by this rule will process. governmental jurisdictions or transit exceed the estimated costs of authorities, none of which are small for Paperwork Reduction Act implementing the rule, the agency purposes of the United States Small believes it is reasonable to expect that The rule contains information Business Administration (i.e., no entity the economic benefit from saving at collection requirements. FRA has operates in a locality with a population least three lives as a result of submitted these information collection of under 50,000 people). No small implementing these standards will requirements to the Office of commuter railroads or rapid transit exceed the costs of implementing this Management and Budget (OMB) for systems will be affected rule. review and approval in accordance with disproportionately. The level of costs the Paperwork Reduction Act of 1995 Regulatory Flexibility Act incurred by each organization should (44 U.S.C. 3507(d) et seq.). FRA has The Regulatory Flexibility Act of 1980 vary in proportion to the organization’s endeavored to keep the burden (5 U.S.C. 601 et seq.) requires an size. For instance, railroads with fewer associated with the final rule as simple assessment of the impacts of proposed employees and fewer passenger cars and minimal as possible. FRA is not rules on small entities. FRA has will have lower costs associated with authorized to impose a penalty on conducted a regulatory flexibility both employee efficiency testing and persons for violating information assessment of this final rule’s impact on emergency exit inspections. collection requirements which do not small entities, and the assessment has Small passenger rail operations such display a current OMB control number. been placed in the public docket for this as tourist, scenic, excursion, and The sections that contain the new and/ rulemaking; FRA certifies that the final historic railroads are excepted from the or revised information collection rule will not have a substantial impact final rule. The final rule does not affect requirements and the estimated time to on a significant number of small small entities. fulfill each requirement are as follows: 24674 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

Total an- CFR section Respondent Total annual responses Average time per response Total annual nual bur- universe burden hours den cost

223.9d/239.107: A. Emergency 18 RRs ...... 1,950 new decals ...... 4 minutes ...... 664 hours ..... $19,920 egress. 4,575 replace decals ...... 7 minutes. 1,300 new decals ...... 4 minutes. B. Emergency ac- 18 RRs ...... 6,320 replace decals ...... 7 minutes ...... 824 hours ..... 24,720 cess. 239.107(b) ...... 18 RRs ...... 3,600 tests ...... 20 minutes (18 minutes to per- 1,200 hours .. 36,000 form test and 2 minutes for recordkeeping). 239.101/239.201 ..... 18 RRs ...... 18 plans ...... 158 hours ...... 2,844 hours .. 115,416 18 RRs ...... 18 amendments ...... 1.6 hours ...... 29 hours ...... 986 239.101(1)(I) ...... 18 RRs ...... N/A ...... Usual and customary proce- N/A ...... N/A dureÐNo new paperwork. 239.101(1)(ii) ...... 18 RRs ...... N/A ...... Usual and customary proce- N/A ...... N/A dureÐNo new paperwork. 239.101(1)(ii) ...... 5 RRs ...... 5 updates of records ...... 1 hour ...... 5 hours ...... 140 239.101(a)(3) ...... 29 RR Pairs ...... 29 negotiations ...... 16 hours ...... 464 hours ..... 22,040 239.101(a)(7)(ii) ...... 5 RRs ...... 1,300 passenger cars ...... 5 minutes per bulkhead card ..... 108 hours ..... 3,240 5 safety messages ...... 1 hour per RR to develop safety 5 hours ...... 170 message. 239.105 ...... 18 RRs ...... 5 sessions ...... 27 hours per session ...... 33 hours ...... 924 239.301/239.303 ...... 18 RRs ...... 11,075 tests ...... 8 minutes per test ...... 135 hours ..... 6,255 239.101(a)(5) ...... 17 RRs ...... 18 responses to distribute info to 6 hours per mailing ...... 102 hours ..... 9,588 emergency responders. 1 RR ...... 100 hours per mailing ...... 180 hours ..... 1 RR (Amtrak) .. 1 response to distribute info to 100 hours ...... 100 hours ..... 2,800 emergency responders. 16 RRs ...... 16 updates of emergency re- 30 minutes per updated ...... 8 hours ...... 224 sponder records. 1 RR (Amtrak) .. 1 update of emergency responder 5 hours hours per mailing ...... 5 hours ...... 140 records.

All estimates include the time for federalism implications to warrant the and tribal governments, in the aggregate, reviewing instructions; searching preparation of a Federalism Assessment. or by the private sector, of $ 100,000,000 existing data sources; gathering or The fundamental policy decision or more (adjusted annually for inflation) maintaining the needed data; and providing that Federal regulations in any 1 year, and before promulgating reviewing the information. For should govern aspects of service any final rule for which a general notice information or a copy of the information provided by municipal and public of proposed rulemaking was published, collection request submitted to OMB, benefit corporations (or agencies) of the agency shall prepare a written please contact Ms. Brenda Moscoso at State governments is embodied in the statement * * *’’ detailing the effect on 202–632–3335. The final rule responds statute quoted above. FRA has made State, local and tribal governments and to public comments on the information every effort to provide reasonable the private sector. The final rules issued collection requirements contained in the flexibility to State-level decision making today will not result in the expenditure, NPRM. The requirements in this final and has included commuter authorities in the aggregate, of $100,000,000 or rule have been approved by OMB under as full partners in development of this more in any one year, and thus OMB control number 2130–0545. proposed rule. preparation of a statement was not required. Environmental Impact Compliance With the Unfunded FRA has evaluated this final rule in Mandates Reform Act of 1995 List of Subjects in 49 CFR Part 223 accordance with its procedures for Glass and glass products, Penalties, ensuring full consideration of the Pursuant to the Unfunded Mandates Railroad safety, Reporting and environmental impact of FRA actions, Reform Act of 1995 (Pub. L. 104–4) each recordkeeping requirements. as required by the National federal agency ‘‘shall, unless otherwise Environmental Policy Act (42 U.S.C. prohibited by law, assess the effects of List of Subjects in 49 CFR Part 239 4321 et seq.), other environmental Federal Regulatory actions on State, Passenger train emergency statutes, Executive Orders, and DOT local, and tribal governments, and the preparedness, Penalties, Railroad safety, Order 5610.1c. This final rule meets the private sector (other than to the extent Reporting and recordkeeping criteria that establish this as a non-major that such regulations incorporate requirements. action for environmental purposes. requirements specifically set forth in law).’’ Sec. 201. Section 202 of the Act The Final Rule Federalism Implications further requires that ‘‘before In consideration of the foregoing, This final rule has been analyzed in promulgating any general notice of chapter II, subtitle B, of title 49, Code accordance with the principles and proposed rulemaking that is likely to of Federal Regulations is amended as criteria contained in Executive Order result in promulgation of any rule that follows: 12612, and it has been determined that includes any Federal mandate that may 1. The authority citation for part 223 the final rule does not have sufficient result in the expenditure by State, local, is revised to read as follows: Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24675

Authority: 49 U.S.C. 20102–20103, 20105– for moving other equipment. It does not (2) A person that provides railroad 20114, 20133, 20701, 21301–21302, and include self-propelled passenger cars. transportation, whether directly or by 21304; Sec. 215, Pub. L. No. 103–440, 108 Locomotive cab means that portion of contracting out operation of the railroad Stat. 4623–4624 (49 U.S.C. 20133); and 49 the superstructure designed to be to another person. CFR 1.49(c), (g), (m). occupied by the crew while operating Rebuilt locomotive, caboose or 2. By revising § 223.5 to read as the locomotive. passenger car means a locomotive, follows: Passenger car means a unit of rail caboose or passenger car that has rolling equipment intended to provide § 223.5 Definitions. undergone overhaul which has been transportation for members of the identified by the railroad as a capital As used in this part— general public and includes self- expense under Surface Transportation Administrator means the propelled cars designed to carry Board accounting standards. Administrator of the Federal Railroad baggage, mail, express or passengers. Administration or the Administrator’s Side facing glazing location means This term includes a passenger coach, any location where a line perpendicular delegate. cab car, and an MU locomotive. This Caboose means a car in a freight train to the plane of the glazing material term does not include a private car. makes an angle of more than 50 degrees intended to provide transportation for Passenger train service means the crewmembers. with the centerline of the locomotive, transportation of persons (other than caboose or passenger car. Certified glazing means a glazing employees, contractors, or persons material that has been certified by the riding equipment to observe or monitor Windshield means the combination of manufacturer as having met the testing railroad operations) in intercity individual units of glazing material of requirements set forth in Appendix A of passenger service or commuter or other the locomotive, passenger car, or this part and that has been installed in short-haul passenger service in a caboose that are positioned in an end such a manner that it will perform its metropolitan or suburban area. facing glazing location. intended function. Person means: Yard is a system of auxiliary tracks Designated service means exclusive (1) Any form of non-highway ground used exclusively for the classification of operation of a locomotive under the transportation that runs on rails or passenger or freight cars according to following conditions: electromagnetic guideways, including— commodity or destination; assembling (1) The locomotive is not used as an (i) Commuter or other short-haul rail of cars for train movement; storage of independent unit or the controlling unit passenger service in a metropolitan or cars; or repair of equipment. is a consist of locomotives except when suburban area and commuter railroad Yard caboose means a caboose that is moving for the purpose of servicing or service that was operated by the used exclusively in a single yard area. repair within a single yard area; Consolidated Rail Corporation on Yard locomotive means a locomotive (2) The locomotive is not occupied by January 1, 1979, and that is operated only to perform operating or deadhead crews outside a (ii) High speed ground transportation switching functions within a single yard single yard area; and systems that connect metropolitan areas, area. (3) The locomotive is stenciled without regard to whether those systems 3. In § 223.9, paragraph (d) is added ‘‘Designated Service—DO NOT use new technologies not associated to read as follows: OCCUPY’’. with traditional railroads, but does not Emergency responder means a include rapid transit operations in an § 223.9 Requirements for new or rebuilt member of a police or fire department, urban area that are not connected to the equipment. or other organization involved with general railroad system of transportation * * * * * public safety charged with providing or and (d) Marking. Each railroad providing coordinating emergency services, who (2)A person that provides railroad passenger train service shall ensure that responds to a passenger train transportation, whether directly or by for each passenger car, except for self- emergency. contracting out operation of the railroad propelled cars designed to carry Emergency window means that to another person. baggage, mail, or express: segment of a side facing glazing location Railroad means: which has been designed to permit (1) Any form of non-highway ground (1) Each emergency window is rapid and easy removal during a crisis transportation that runs on rails or conspicuously and legibly marked with situation. electromagnetic guideways, including luminescent material on the inside of End facing glazing location means any (i) Commuter or other short-haul rail each car to facilitate passenger egress. location where a line perpendicular to passenger service in a metropolitan or Each such railroad shall post clear and the plane of the glazing material makes suburban area and commuter railroad legible operating instructions at or near a horizontal angle of 50 degrees or less service that was operated by the each such exit. with the centerline of the locomotive, Consolidated Rail Corporation on (2) Each window intended for caboose or passenger car. Any location January 1, 1979, and emergency access by emergency which, due to curvature of the glazing (ii) High speed ground transportation responders for extrication of passengers material, can meet the criteria for either systems that connect metropolitan areas, is marked with a retroreflective, unique, a front facing location or a side facing without regard to whether those systems and easily recognizable symbol or other location shall be considered a front use new technologies not associated clear marking. Each such railroad shall facing location. with traditional railroads, but does not post clear and understandable window- FRA means the Federal Railroad include rapid transit operations in an access instructions either at each such Administration. urban area that are not connected to the window or at each end of the car. Locomotive means a self-propelled general railroad system of transportation 4. By revising appendix B to part 223 unit of equipment designed primarily and to read as follows: 24676 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

Appendix B to Part 223—Schedule of Civil Penalties 1

Section Violation Willful violation

223.9 New or rebuilt Equipment: (a) Locomotives ...... $2,500 $5,000 (b) Cabooses ...... 2,500 5,000 (c) Passenger cars ...... 2,500 5,000 (d) (1), (d)(2):. (i) Window not marked or instructions not posted ...... 2,500 5,000 (ii) Window improperly marked or instructions improperly posted ...... 1,000 2,000 223.11(c) Existing locomotives ...... 2,500 5,000 (d) Repair of window ...... 1,000 2,000 223.13(c) Existing cabooses ...... 2,500 5,000 (d) Repair of window ...... 1,000 2,000 223.15(c) Existing passenger cars ...... 2,500 5,000 (d) Repair of window ...... 1,000 2,000 223.17 Identification of units ...... 1,000 1,500

5. Part 239 is added to read as follows: casualties in railroad operations by § 239.5 Preemptive effect. ensuring that railroads involved in Under 49 U.S.C. 20106 (formerly Part 239ÐPASSENGER TRAIN passenger train operations can section 205 of the Federal Railroad EMERGENCY PREPAREDNESS effectively and efficiently manage Safety Act of 1970 (45 U.S.C. 434)), Subpart AÐGeneral passenger train emergencies. issuance of this part preempts any State (b) This part prescribes minimum law, rule, regulation, order, or standard Sec. Federal safety standards for the covering the same subject matter, except 239.1 Purpose and scope. 239.3 Application. preparation, adoption, and a provision necessary to eliminate or 239.5 Preemptive effect. implementation of emergency reduce an essentially local safety 239.7 Definitions. preparedness plans by railroads hazard, that is not incompatible with 239.9 Responsibility for compliance. connected with the operation of Federal law or regulation and does not 239.11 Penalties. passenger trains, and requires each unreasonably burden interstate 239.13 Waivers. affected railroad to instruct its commerce. 239.15 Information collection. employees on the provisions of its plan. § 239.7 Definitions. Subpart BÐSpecific Requirements This part does not restrict railroads from As used in this part— 239.101 Emergency preparedness plan. adopting and enforcing additional or Adjacent rail modes of transportation 239.103 Passenger train emergency more stringent requirements not means other railroads, trolleys, light simulations. inconsistent with this part. 239.105 Debriefing and critique. rail, heavy transit, and other vehicles 239.107 Emergency exits. § 239.3 Application. operating on rails or electromagnetic (a) Except as provided in paragraph guideways which are expressly Subpart CÐReview, Approval, and identified in a railroad’s emergency Retention of Emergency Preparedness (b) of this section, this part applies to preparedness plan. Plans all: Administrator means the 239.201 Emergency preparedness plan; (1) Railroads that operate intercity or Administrator of the Federal Railroad filing and approval. commuter passenger train service on Administration or the Administrator’s 239.203 Retention of emergency standard gage track which is part of the delegate. preparedness plan. general railroad system of Control center means a central Subpart DÐOperational (Efficiency) Tests; transportation; location on a railroad with Inspection of Records and Recordkeeping (2) Railroads that provide commuter responsibility for directing the safe 239.301 Operational (efficiency) tests. or other short-haul rail passenger train movement of trains. 239.303 Electronic recordkeeping. service in a metropolitan or suburban Crewmember means a person, other area (as described by 49 U.S.C. than a passenger, who is assigned to Appendix A to Part 239ÐSchedule of Civil 20102(1)), including public authorities perform either: Penalties operating passenger train service; and (1) On-board functions connected Authority: 49 U.S.C. 20102–20103, 20105– (3) Passenger or freight railroads with the movement of the train (i.e., an 20114, 20133, 21301, 21304, and 21311; 49 hosting the operation of passenger train employee of a railroad, or of a contractor U.S.C. 20133; 28 U.S.C. 2461 note; and 49 CFR 1.49(c), (g), (m). service described in paragraph (a)(1) or to a railroad, who is assigned to perform (a)(2) of this section. service subject to the Federal hours of Subpart AÐGeneral (b) This part does not apply to: service laws during a tour of duty) or (1) Rapid transit operations in an (2) On-board functions in a sleeping § 239.1 Purpose and scope. urban area that are not connected with car or coach assigned to intercity (a) The purpose of this part is to the general railroad system of service, other than food, beverage, or reduce the magnitude and severity of transportation; security service. (2) Operation of private cars, Division headquarters means the 1 A penalty may be assessed against an individual including business/office cars and location designated by the railroad only for a willful violation. The Administrator circus trains; or where a high-level operating manager reserves the right to assess a penalty of up to (e.g., a superintendent, division $22,000 for any violation where circumstances (3) Tourist, scenic, historic, or warrant. See 49 U.S.C. 21301, 21304, and 49 CFR excursion operations, whether on or off manager, or equivalent), who has part 209, appendix A. Further designations, not the general railroad system. jurisdiction over a portion of the found in the CFR citation for certain provisions are railroad, has an office. FRA Office of Chief Counsel computer codes added Emergency or emergency situation as a suffix to the CFR citation and used to expedite necessary, to substitute in its complaint the CFR imposition of civil penalties for violations. FRA citation in place of the combined designation cited means an unexpected event related to reserves the right, should litigation become in the penalty demand letter. the operation of passenger train service Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24677 involving a significant threat to the basis, and includes business or office may be subject to criminal penalties safety or health of one or more persons cars and circus trains. under 49 U.S.C. 21311 (formerly requiring immediate action, including: Qualified means a status attained by codified in 45 U.S.C. 438(e)). Appendix (1) A derailment; an employee who has successfully A contains a schedule of civil penalty (2) A fatality at a grade crossing; completed any required training for, has amounts used in connection with this (3) A passenger or employee fatality, demonstrated proficiency in, and has part. or a serious illness or injury to one or been authorized by the employer to more passengers or crewmembers perform the duties of a particular § 239.13 Waivers. requiring admission to a hospital; position or function involving (a) Any person subject to a (4) An evacuation of a passenger train; emergency preparedness. requirement of this part may petition and Railroad means: the Administrator for a waiver of (5) A security situation (e.g., a bomb (1) Any form of non-highway ground compliance with such requirement. The threat). transportation that runs on rails or filing of such a petition does not affect Emergency preparedness plan means electromagnetic guideways, including— that person’s responsibility for one or more documents focusing on (i) Commuter or other short-haul rail compliance with that requirement while preparedness and response in dealing passenger service in a metropolitan or the petition is being considered. with a passenger train emergency. suburban area and commuter railroad (b) Each petition for waiver must be Emergency responder means a service that was operated by the filed in the manner and contain the member of a police or fire department, Consolidated Rail Corporation on information required by part 211 of this or other organization involved with January 1, 1979, and chapter. public safety charged with providing or (ii) High speed ground transportation (c) If the Administrator finds that a coordinating emergency services, who systems that connect metropolitan areas, waiver of compliance is in the public responds to a passenger train without regard to whether those systems interest and is consistent with railroad emergency. use new technologies not associated safety, the Administrator may grant the Emergency window means that with traditional railroads, but does not waiver subject to any conditions the segment of a side facing glazing location include rapid transit operations in an Administrator deems necessary. which has been designed to permit urban area that are not connected to the rapid and easy removal in an emergency general railroad system of transportation § 239.15 Information collection. situation. and (a) The information collection FRA means the Federal Railroad (2) A person that provides railroad requirements of this part have been Administration. transportation, whether directly or by reviewed by the Office of Management Joint operations means rail operations contracting out operation of the railroad and Budget pursuant to the Paperwork conducted by more than one railroad on to another person. Reduction Act of 1995 (44 U.S.C. the same track, except as necessary for Railroad officer means any 3507(d) et seq.), and have been assigned the purpose of interchange, regardless of supervisory employee of a railroad. OMB control number 2130–0545. whether such operations are the result System headquarters means the (b) The information collection of: location designated by the railroad as requirements are found in the following (1) Contractual arrangements between the general office for the railroad sections: §§ 239.101, 239.103, 239.105, the railroads; system. 239.107, 239.201, 239.203, 239.301, and (2) Order of a governmental agency or 239.303. a court of law; or § 239.9 Responsibility for compliance. (3) Any other legally binding Although the requirements of this part Subpart BÐSpecific Requirements directive. are stated in terms of the duty of a § 239.101 Emergency preparedness plan. Passenger train service means the railroad, when any person, including a transportation of persons (other than contractor to a railroad, performs any (a) Each railroad to which this part employees, contractors, or persons function required by this part, that applies shall adopt and comply with a riding equipment to observe or monitor person (whether or not a railroad) shall written emergency preparedness plan railroad operations) by railroad in perform that function in accordance approved by FRA under the procedures intercity passenger service or commuter with this part. of § 239.201. The plan shall include the or other short-haul passenger service in following elements and procedures for a metropolitan or suburban area. § 239.11 Penalties. implementing each plan element. Person includes all categories of Any person who violates any (1) Communication. (i) Initial and on- entities covered under 1 U.S.C. 1, requirement of this part or causes the board notification. An on-board including, but not limited to, a railroad; violation of any such requirement is crewmember shall quickly and any manager, supervisor, official, or subject to a civil penalty of at least $500 accurately assess the passenger train other employee or agent of a railroad; and not more than $11,000 per emergency situation and then notify the any owner, manufacturer, lessor, or violation, except that: Penalties may be control center as soon as practicable by lessee of railroad equipment, track, or assessed against individuals only for the quickest available means. As facilities; any passenger; any trespasser willful violations, and, where a grossly appropriate, an on-board crewmember or nontrespasser; any independent negligent violation or a pattern of shall inform the passengers about the contractor providing goods or services repeated violations has created an nature of the emergency and indicate to a railroad; any volunteer providing imminent hazard of death or injury to what corrective countermeasures are in goods or services to a railroad; and any persons, or has caused death or injury, progress. employee of such owner, manufacturer, a penalty not to exceed $22,000 per (ii) Notifications by control center. lessor, lessee, or independent violation may be assessed. Each day a The control center shall promptly notify contractor. violation continues shall constitute a outside emergency responders, adjacent Private car means a rail passenger car separate offense. Any person who rail modes of transportation, and used to transport non-revenue knowingly and willfully falsifies a appropriate railroad officials that a passengers on an occasional contractual record or report required by this part passenger train emergency has occurred. 24678 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

Each railroad shall designate an regardless of the number of route miles the railroads involved in hosting, employee responsible for maintaining or passenger miles, not more than two providing, and operating a passenger current emergency telephone numbers years after January 29, 1999, or not more train service operation shall jointly for use in making such notifications. than 180 days after commencing adopt one emergency preparedness plan (2) Employee training and passenger operations, whichever is later. that addresses each entity’s specific qualification. (i) On-board personnel. (D) For each freight railroad that hosts responsibilities consistent with this The railroad’s emergency preparedness passenger train service, regardless of the part. Nothing in this paragraph shall plan shall address individual employee number of route miles or passenger restrict the ability of the railroads to responsibilities and provide for initial miles of that service, not more than one provide for an appropriate assignment training, as well as periodic training at year after January 29, 1999, or not more of responsibility for compliance with least once every two calendar years than 90 days after the hosting begins, this part among those railroads through thereafter, on the applicable plan whichever is later. a joint operating agreement or other provisions. As a minimum, the initial (iv) Initial training schedule for new binding contract. However, the assignor and periodic training shall include: employees. The railroad’s emergency shall not be relieved of responsibility for (A) Rail equipment familiarization; preparedness plan shall provide for the compliance with this part. (B) Situational awareness; completion of initial training of all on- (4) Special circumstances. (i) Tunnels. (C) Passenger evacuation; board and control center employees When applicable, the railroad’s (D) Coordination of functions; and who are hired by the railroad after the emergency preparedness plan shall (E) ‘‘Hands-on’’ instruction date on which the plan is conditionally reflect readiness procedures designed to concerning the location, function, and approved under § 239.201(b)(1). Each ensure passenger safety in an emergency operation of on-board emergency employee shall receive initial training situation occurring in a tunnel of 1,000 equipment. within 90 days after the employee’s feet or more in length. The railroad’s (ii) Control center personnel. The initial date of service. emergency preparedness plan shall railroad’s emergency preparedness plan (v) Testing of on-board and control address, as a minimum, availability of shall require initial training of center personnel. A railroad shall have emergency lighting, access to emergency responsible control center personnel, as procedures for testing a person being evacuation exits, benchwall readiness, well as periodic training at least once evaluated for qualification under the ladders for detraining, effective radio or every two calendar years thereafter, on emergency preparedness plan. The other communication between on-board appropriate courses of action for each types of testing selected by the railroad crewmembers and the control center, potential emergency situation. As a shall be: and options for assistance from other minimum, the initial and periodic (A) Designed to accurately measure an trains. training shall include: individual employee’s knowledge of his (ii) Other operating considerations. (A) Dispatch territory familiarization; or her responsibilities under the plan; When applicable, the railroad’s and (B) Objective in nature; emergency preparedness plan shall (B) Protocols governing internal (C) Administered in written form; and address passenger train emergency communications between appropriate (D) Conducted without reference by procedures involving operations on control center personnel whenever an the person being tested to open elevated structures, including imminent potential emergency situation reference books or other materials, drawbridges, and in electrified territory. exists. except to the degree the person is being (iii) Parallel operations. When (iii) Initial training schedule for tested on his or her ability to use such applicable, the railroad’s emergency current employees. The railroad’s reference books or materials. preparedness plan shall require emergency preparedness plan shall (vi) On-board staffing. (A) Except as reasonable and prudent action to provide for the completion of initial provided in paragraph (a)(2)(vi)(B), all coordinate emergency efforts where training of all on-board and control crewmembers on board a passenger adjacent rail modes of transportation center employees who are employed by train shall be qualified to perform the run parallel to either the passenger the railroad on the date that the plan is functions for which they are responsible railroad or the railroad hosting conditionally approved under under the provisions of the applicable passenger operations. § 239.201(b)(1), in accordance with the emergency preparedness plan. (5) Liaison with emergency following schedule: (B) A freight train crew relieving an responders. Each railroad to which this (A) For each railroad that provides expired passenger train crew en route is part applies shall establish and maintain commuter or other short-haul passenger not required to be qualified under the a working relationship with the on-line train service and whose operations emergency preparedness plan, provided emergency responders by, as a include less than 150 route miles and that at least one member of the expired minimum: less than 200 million passenger miles passenger train crew remains on board (i) Developing and making available a annually, not more than one year after and is available to perform excess training program for all on-line January 29, 1999, or not more than 90 service under the Federal hours of emergency responders who could days after commencing passenger service laws in the event of an reasonably be expected to respond operations, whichever is later. emergency. during an emergency situation. The (B) For each railroad that provides (3) Joint operations. (i) Each railroad training program shall include an commuter or other short-haul passenger hosting passenger train service shall emphasis on access to railroad train service and whose operations address its specific responsibilities equipment, location of railroad include at least 150 route miles or at consistent with this part. facilities, and communications least 200 million passenger miles (ii) In order to achieve an optimum interface, and provide information to annually, not more than two years after level of emergency preparedness, each emergency responders who may not January 29, 1999, or not more than 180 railroad hosting passenger train service have the opportunity to participate in an days after commencing passenger shall communicate with each railroad emergency simulation. Each affected operations, whichever is later. that provides or operates such service railroad shall either offer the training (C) For each railroad that provides and coordinate applicable portions of directly or provide the program intercity passenger train service, the emergency preparedness plan. All of information and materials to state Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24679 training institutes, firefighter after the onset of an emergency emergency simulation during each organizations, or police academies; situation. calendar year, regardless of the number (ii) Inviting emergency responders to (iv) Maintenance. Each railroad’s of route miles or passenger miles. participate in emergency simulations; emergency preparedness plan shall (c) Actual emergency situations. and provide for scheduled maintenance and Neither a tabletop exercise nor the (iii) Distributing applicable portions replacement of first-aid kits, on-board activation of its emergency of its current emergency preparedness emergency equipment, and on-board preparedness plan during an actual plan at least once every three years, or emergency lighting. emergency situation may be credited whenever the railroad materially (7) Passenger safety information. (i) toward the minimum number of full- changes its plan in a manner that could General. Each railroad’s emergency scale emergency simulations required reasonably be expected to affect the preparedness plan shall provide for under paragraph (b) of this section. railroad’s interface with the on-line passenger awareness of emergency However, a railroad that has activated emergency responders, whichever procedures, to enable passengers to its emergency preparedness plan in occurs earlier, including documentation respond properly during an emergency. response to a major emergency may concerning the railroad’s equipment and (ii) Passenger awareness program elect to postpone a scheduled full-scale the physical characteristics of its line, activities. Each railroad shall simulation for up to 180 calendar days necessary maps, and the position titles conspicuously and legibly post beyond the applicable calendar year and telephone numbers of relevant emergency instructions inside all completion date in order to evaluate the railroad officers to contact. passenger cars (e.g., on car bulkhead effectiveness of its plan during that (6) On-board emergency equipment. signs, seatback decals, or seat cards) and major emergency and, as appropriate, (i) General. Each railroad’s emergency shall utilize one or more additional modify the rescheduled simulation. preparedness plan shall state the types methods to provide safety awareness (d) Definition. As used in this section, of emergency equipment to be kept on information including, but not limited major emergency means an unexpected board and indicate their location(s) on to, one of the following: event related to the operation of each passenger car that is in service. (A) On-board announcements; passenger train service that results in Effective May 4, 1999, or not more than (B) Laminated wallet cards; serious injury or death to one or more 120 days after commencing passenger (C) Ticket envelopes; persons and property damage greater operations, whichever is later, this (D) Timetables; than the current reporting threshold of equipment shall include, at a minimum: (E) Station signs or video monitors; part 225 of this chapter to railroad on- (A) One fire extinguisher per (F) Public service announcements; or track equipment, signals, tracks, track passenger car; (G) Seat drops. structures, or roadbeds, including labor (B) One pry bar per passenger car; and (b) [Reserved] costs and the costs for acquiring new (C) One flashlight per on-board equipment and material. § 239.103 Passenger train emergency crewmember. simulations. § 239.105 Debriefing and critique. (ii) Effective May 4, 1999, or not more than 120 days after commencing (a) General. Each railroad operating (a) General. Except as provided in passenger operations, whichever is later, passenger train service shall conduct paragraph (b) of this section, each each railroad that provides intercity full-scale emergency simulations, in railroad operating passenger train passenger train service shall also equip order to determine its capability to service shall conduct a debriefing and each passenger train that is in service execute the emergency preparedness critique session after each passenger with at least one first-aid kit accessible plan under the variety of scenarios that train emergency situation or full-scale to crewmembers that contains, at a could reasonably be expected to occur simulation to determine the minimum: on its operation, and ensure effectiveness of its emergency (A) Two small gauze pads (at least 4x4 coordination with all emergency preparedness plan, and shall improve or inches); responders who voluntarily agree to amend its plan, or both, as appropriate, (B) Two large gauze pads (at least participate in the emergency in accordance with the information 8x10 inches); simulations. developed. The debriefing and critique (C) Two adhesive bandages; (b) Frequency of the emergency session shall be conducted within 60 (D) Two triangular bandages; simulations. Except as provided in days of the date of the passenger train (E) One package of gauge roller paragraph (c) of this section: emergency situation or full-scale bandage that is at least two inches wide; (1) Each railroad that provides simulation. (F) Wound cleaning agent, such as commuter or other short-haul passenger (b) Exceptions. (1) No debriefing and sealed moistened towelettes; train service and whose operations critique session shall be required in the (G) One pair of scissors; include less than 150 route miles and case of an emergency situation (H) One set of tweezers; less than 200 million passenger miles involving only a collision between (I) One roll of adhesive tape; annually, shall conduct a minimum of passenger railroad rolling stock and: a (J) Two pairs of latex gloves; and one full-scale emergency simulation pedestrian; a trespasser; or a motor (K) One resuscitation mask. during every two calendar years. vehicle or other highway conveyance at (iii) On-board emergency lighting. (2) Each railroad that provides a highway-rail grade crossing, provided Consistent with the requirements of part commuter or other short-haul passenger that the collision does not result in: a 238 of this chapter, auxiliary portable train service and whose operations passenger or employee fatality, or an lighting (e.g., a handheld flashlight) include at least 150 route miles or at injury to one or more crewmembers or must be accessible and provide, at a least 200 million passenger miles passengers requiring admission to a minimum: annually, shall conduct a minimum of hospital; or the evacuation of a (A) Brilliant illumination during the one full-scale emergency simulation passenger train. (2) For purposes of this first 15 minutes after the onset of an during each calendar year. section, highway-rail grade crossing emergency situation; and (3) Each railroad that provides means a location where a public (B) Continuous or intermittent intercity passenger train service, shall highway, road, street, or private illumination during the next 60 minutes conduct a minimum of one full-scale roadway, including associated 24680 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations sidewalks and pathways, crosses one or instructions are posted at each such Subpart CÐReview, Approval, and more railroad tracks at grade, and door. Retention of Emergency Preparedness trespasser means a person who is on (b) Inspection, maintenance, and Plans that part of railroad property used in repair. Consistent with the requirements railroad operation and whose presence of part 223 of this chapter, each railroad § 239.201 Emergency preparedness plan; filing and approval. is prohibited, forbidden, or unlawful. operating passenger train service shall: (c) Purpose of debriefing and critique. (1) Provide for scheduled inspection, (a) Filing. Each passenger railroad to The debriefing and critique session shall maintenance, and repair of emergency which this part applies and all railroads be designed to determine, at a window and door exits; hosting its passenger train service (if minimum: (2) Test a representative sample of applicable) shall jointly adopt a single (1) Whether the on-board emergency window exits on its cars at emergency preparedness plan for that communications equipment functioned least once every 180 days to verify that service and the passenger railroad shall properly; they are operating properly; and file one copy of that plan with the Associate Administrator for Safety, (2) How much time elapsed between (3) Repair each inoperative emergency Federal Railroad Administration, Mail the occurrence of the emergency window and door exit on a car before Stop 25, 400 Seventh Street, S.W., situation or full-scale simulation and returning the car to service. Washington, D.C. 20590, not more than notification to the emergency (c) Records. Each railroad operating 180 days after May 4, 1998, or not less responders involved; passenger service shall maintain records (3) Whether the control center than 45 days prior to commencing of its inspection, maintenance, and passenger operations, whichever is later. promptly initiated the required repair of emergency window and door notifications; The emergency preparedness plan shall exits at its system headquarters and include the name, title, address, and (4) How quickly and effectively the applicable division headquarters for two emergency responders responded after telephone number of the primary person calendar years after the end of the on each affected railroad to be contacted notification; and calendar year to which they relate. (5) How efficiently the passengers with regard to review of the plan, and These records shall be made available to shall include a summary of each exited from the car through the representatives of FRA and States emergency exits. railroad’s analysis supporting each plan participating under part 212 of this element and describing how every (d) Records. (1) Each railroad shall chapter for inspection and copying maintain records of its debriefing and condition on the railroad’s property that during normal business hours. is likely to affect emergency response is critique sessions at its system (d) Electronic recordkeeping. Each headquarters and applicable division addressed in the plan. Each subsequent railroad to which this part applies is amendment to a railroad’s emergency headquarters for two calendar years authorized to retain by electronic after the end of the calendar year to preparedness plan shall be filed with recordkeeping the information FRA by the passenger railroad not less which they relate, including the prescribed in paragraph (b) of this following information: than 60 days prior to the proposed section, provided that all of the effective date. (i) Date and location of the passenger following conditions are met: train emergency situation or full-scale (b) Approval. (1) Preliminary review. (1) The railroad adequately limits and simulation; (i) Within 90 days of receipt of each controls accessibility to such (ii) Date and location of the debriefing proposed emergency preparedness plan, information retained in its database and critique session; and and within 45 days of receipt of each system and identifies those individuals (iii) Names of all participants in the plan for passenger operations to be who have such access; debriefing and critique session. commenced after the initial deadline for (2) These records shall be made (2) The railroad has a terminal at the plan submissions, FRA will conduct a available to representatives of FRA and system headquarters and at each preliminary review of the proposed plan States participating under part 212 of division headquarters; to determine if the elements prescribed this chapter for inspection and copying (3) Each such terminal has a desk-top in § 239.101 are sufficiently addressed during normal business hours. computer (i.e., monitor, central and discussed in the railroad’s plan processing unit, and keyboard) and submission. FRA will then notify the § 239.107 Emergency exits. either a facsimile machine or a printer primary contact person of each affected For additional requirements related to connected to the computer to retrieve railroad in writing of the results of the emergency window exits, see part 223 of and produce information in a usable review, whether the proposed plan has this chapter. format for immediate review by been conditionally approved by FRA, (a) Marking. Each railroad operating representatives of FRA and States and if not conditionally approved, the passenger train service shall determine participating under part 212 of this specific points in which the plan is for each passenger car that is in service, chapter; deficient. except for self-propelled cars designed (4) The railroad has a designated (ii) If a proposed emergency to carry baggage, mail, or express: representative who is authorized to preparedness plan is not conditionally (1) That all door exits intended for authenticate retrieved information from approved by FRA, the affected railroad emergency egress are either lighted or the electronic system as true and or railroads shall amend the proposed conspicuously and legibly marked with accurate copies of the electronically plan to correct all deficiencies identified luminescent material on the inside of kept records; and by FRA (and provide FRA with a the car and that clear and (5) The railroad provides corrected copy) not later than 30 days understandable instructions are posted representatives of FRA and States following receipt of FRA’s written at or near such exits. participating under part 212 of this notice that the proposed plan was not (2) That all door exits intended for chapter with immediate access to these conditionally approved. emergency access by emergency records for inspection and copying (2) Final review. (i) Within 18 months responders for extrication of passengers during normal business hours and of receipt of each proposed plan, and are marked with retroreflective material provides printouts of such records upon within 180 days of receipt of each and that clear and understandable request. proposed plan for passenger operations Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24681 to be commenced after the initial § 239.203 Retention of emergency Each such record shall be made deadline for plan submissions, FRA will preparedness plan. available to representatives of FRA and conduct a comprehensive review of the Each passenger railroad to which this States participating under part 212 of conditionally approved plan to evaluate part applies, and all railroads hosting its this chapter for inspection and copying implementation of the elements passenger train service (if applicable), during normal business hours. included. This review will include shall each retain one copy of the ongoing dialogues with rail management emergency preparedness plan required § 239.303 Electronic recordkeeping. and labor representatives, and field by § 239.201 and one copy of each Each railroad to which this part analysis and verification. FRA will then subsequent amendment to that plan at applies is authorized to retain by notify the primary contact person of the system and division headquarters of electronic recordkeeping the each affected railroad in writing of the each, and shall make such records information prescribed in § 239.301, results of the review, whether the available to representatives of FRA and provided that all of the following conditionally approved plan has been States participating under part 212 of conditions are met: finally approved by FRA, and if not this chapter for inspection and copying (a) The railroad adequately limits and approved, the specific points in which during normal business hours. controls accessibility to such the plan is deficient. information retained in its database Subpart DÐOperational (Efficiency) (ii) If an emergency preparedness plan system and identifies those individuals Tests; Inspection of Records and who have such access; of a railroad or railroads is not finally Recordkeeping approved by FRA, the affected railroad (b) The railroad has a terminal at the or railroads shall amend the plan to § 239.301 Operational (efficiency) tests. system headquarters and at each correct all deficiencies (and provide (a) Each railroad to which this part division headquarters; FRA with a corrected copy) not later applies shall periodically conduct (c) Each such terminal has a desk-top than 30 days following receipt of FRA’s operational (efficiency) tests of its on- computer (i.e., monitor, central written notice that the plan was not board and control center employees to processing unit, and keyboard) and finally approved. determine the extent of compliance with either a facsimile machine or a printer its emergency preparedness plan. connected to the computer to retrieve (3) Review of amendments. (i) FRA and produce information in a usable will review each proposed plan (b) Each railroad to which this part applies shall maintain a written record format for immediate review by amendment within 45 days of receipt. representatives of FRA and States FRA will then notify the primary of the date, time, place, and result of each operational (efficiency) test that participating under part 212 of this contact person of each affected railroad chapter; of the results of the review, whether the was performed in accordance with (d) The railroad has a designated proposed amendment has been paragraph (a) of this section. Each representative who is authorized to approved by FRA, and if not approved, record shall also specify the name of the authenticate retrieved information from the specific points in which the railroad officer who administered the the electronic system as true and proposed amendment is deficient. test, the name of each employee tested, and sufficient information to identify accurate copies of the electronically (ii) If the amendment is not approved, the relevant facts relied on for kept records; and the railroad shall correct any evaluation purposes. (e) The railroad provides deficiencies identified by FRA and file (c) Each record required by paragraph representatives of FRA and States the corrected amendment prior to (a) of this section shall be retained at the participating under part 212 of this implementing the amendment. system headquarters of the railroad and chapter with immediate access to these (4) Reopened review. Following initial at the division headquarters for the records for inspection and copying approval of a plan, or amendment, FRA division where the test was conducted during normal business hours and may reopen consideration of the plan, or for one calendar year after the end of the provides printouts of such records upon amendment, for cause stated. calendar year to which the test relates. request.

Appendix A to Part 239—Schedule of Civil Penalties 1

Section Violation Willful violation

Subpart BÐSpecific Requirements: 239.101(a) Failure of a railroad to adopt a written emergency preparedness plan ...... $7,500 $11,000 (a)(1) Failure of the plan to provide for: (i) Initial or on-board notifications by an on-board crewmember ...... 2,500 5,000 (ii) Notification of outside emergency responders by control center ...... 2,500 5,000 (a)(2) Failure of the plan to provide for: (i) Initial or periodic training of on-board personnel ...... 2,500 5,000 (ii) Initial or periodic training of control center personnel ...... 2,500 5,000 (iii) Completion of initial training of all on-board and control center personnel by the specified date ..... 2,500 5,000 (iv) Completion of initial training of all newly hired on-board and control center personnel by the speci- fied date ...... 2,500 5,000 (v) Adequate procedures to evaluate and test on-board and control center personnel for qualification under the emergency preparedness plan ...... 2,500 5,000 (vi) Adequate on-board staffing ...... 2,500 5,000

1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $22,000 for any violation where circumstances warrant. See 49 U.S.C. 21301, 21304, and 49 CFR part 209, appendix A. Further designations, not found in the CFR citation for certain provisions, are FRA Office of Chief Counsel computer codes added as a suffix to the CFR citation and used to expedite imposition of civil penalties for violations. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined designation cited in the penalty demand letter. 24682 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations

Section Violation Willful violation

(a)(3) Failure of a host railroad involved in joint operations to coordinate applicable portions of the emer- gency preparedness plan with the railroad or railroads providing or operating a passenger train service operation ...... 3,000 6,000 (a)(4) Failure of the plan to address: (i) Readiness procedures for emergencies in tunnels ...... 2,500 5,000 (ii) Readiness procedures for emergencies on an elevated structure or in electrified territory ...... 2,500 5,000 (iii) Coordination efforts involving adjacent rail modes of transportation ...... 2,500 5,000 (a)(5) Failure of the plan to address relationships with on-line emergency responders by providing for: (i) The development and availability of training programs ...... 3,000 6,000 (ii) Invitations to emergency responders to participate in emergency simulations ...... 3,000 6,000 (iii) Distribution of applicable portions of the current emergency preparedness plan ...... 3,000 6,000 (a)(6) Failure of the plan to provide for, or the railroad to include on board each train and maintain and re- place: (i) Emergency equipment ...... 2,500 5,000 (ii) First-aid kits ...... 2,500 5,000 (iii) Emergency lighting ...... 2,500 5,000 (a)(7) Failure of the plan to provide for emergency instructions inside each passenger car or to include ad- ditional safety awareness information ...... 3,500 7,000 239.103 Failure to conduct a required full-scale simulation in accordance with the frequency schedule ...... 5,000 7,500 239.105 Debriefing and critique (a) Failure to conduct a debriefing and critique session after an emergency or full-scale simulation ...... 4,000 7,500 (d)(1) Failure to maintain a record ...... 2,500 5,000 (i) Failure to include date or location of the emergency or simulation ...... 1,000 2,000 (ii) Failure to include date or location of the debriefing and critique session ...... 1,000 2,000 (iii) Failure to include names of participants in the debriefing and critique session ...... 1,000 2,000 (d)(2) Failure to make record available ...... 1,000 2,000 239.107 Emergency exits (a)(1), (a)(2): (i) Door not marked or instructions not posted ...... 2,500 5,000 (ii) Door improperly marked or instructions 1,000-2,000-improperly posted ...... 2,500 5,000 (b)(1) Failure to provide for scheduled inspection, maintenance, and repair of emergency windows and doors ...... 5,000 7,500 (b)(2): (i) Failure to test a representative sample of emergency windows ...... 3,000 6,000 (ii) Emergency windows tested too infrequently ...... 1,500 3,000 (b)(3) Failure to repair an inoperative emergency window or door exit ...... 3,500 7,000 (c): (i) Failure to maintain a record ...... 2,500 5,000 (ii) Failure to make record available ...... 1,000 2,000 (d)(1) Insufficient limits or controls on accessibility to records ...... 2,500 5,000 (d)(2) Missing terminal ...... 1,000 2,000 (d)(3) Inability of railroad to produce information in a usable format for immediate review ...... 1,000 2,000 (d)(4) Failure by railroad to designate an authorized representative ...... 1,000 2,000 (d)(5) Failure to make record available ...... 1,000 2,000 Subpart CÐReview, Approval, and Retention of Emergency Preparedness Plans: 239.201 Filing and approval (a): (i) Failure of a railroad to file a written emergency preparedness plan ...... 5,000 7,500 (ii) Failure to designate a primary person to contact for plan review ...... 1,000 2,000 (iii) Failure of a railroad to file an amendment to its plan ...... 2,500 5,000 (b)(1), (b)(2): (i) Failure of a railroad to correct a plan deficiency ...... 2,500 5,000 (ii) Failure to provide FRA with a corrected copy of the plan ...... 1,000 2,000 (b)(3): (i) Failure of a railroad to correct an amendment deficiency ...... 2,500 5,000 (ii) Failure to file a corrected plan amendment with FRA ...... 1,000 1,000 239.203 Retention of emergency preparedness plan (1) Failure to retain a copy of the plan or an amendment to the plan ...... 2,500 5,000 (2) Failure to make record available ...... 1,000 2,000 Subpart DÐOperational (efficiency) tests; Inspection of Records and Recordkeeping: 239.301 Operational (efficiency) tests (a) Testing Program ...... 5,000 7,500 (b)(1) Failure to maintain a record ...... 2,500 5,000 (b)(2) Record improperly completed ...... 1,000 1,000 (c)(1) Failure to retain a copy of the record ...... 2,500 5,000 (c)(2) Failure to make record available ...... 1,000 2,000 239.303 Electronic recordkeeping (a) Insufficient limits or controls on accessibility to records ...... 2,500 5,000 (b) Missing terminal ...... 1,000 2,000 (c) Inability of railroad to produce information in a usable format for immediate review ...... 1,000 2,000 (d) Failure by railroad to designate an authorized representative ...... 1,000 2,000 (e) Failure to make record available ...... 1,000 2,000 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and Regulations 24683

Issued in Washington, D.C., on April 14, 1998. Jolene M. Molitoris, Federal Railroad Administrator. [FR Doc. 98–11393 Filed 4–29–98; 8:45 am] BILLING CODE 4910±06±P