# Passenger Equipment Safety Standards; Miscellaneous Amendments and Attachment of Safety Appliances on Passenger Equipment > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A06-8611 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** October 19, 2006 - **Citation:** 71 FR 61836 ## Text DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 229 and 238 [Docket No. FRA-2005-23080, Notice No. 2] RIN 2130-AB67 Passenger Equipment Safety Standards; Miscellaneous Amendments and Attachment of Safety Appliances on Passenger Equipment AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: FRA is amending its existing regulations in an effort to address various mechanical issues relevant to the manufacture, efficient utilization, and safe operation of passenger equipment and trains that have arisen since FRA's original issuance of the Passenger Equipment Safety Standards. The miscellaneous amendments concentrate on the following five areas: Clarifying the terminology related to piston travel indicators; providing alternative design and additional inspection criteria for new passenger equipment not designed to allow inspection of the application and release of the brakes from outside the equipment; permitting some latitude in the use of passenger equipment with redundant air compressors when a limited number of the compressors become inoperative; recognizing current locomotive manufacturing techniques by permitting an alternative pneumatic pressure test for main reservoirs; and adding provisions to ensure the proper securement of unattended equipment. FRA is also clarifying the existing regulatory requirements related to the attachment of safety appliances and is mandating an identification and inspection protocol to address passenger equipment containing welded safety appliances or welded safety appliance brackets or supports. Finally, FRA is amending the regulations to permit railroads the ability to apply out-of-service credit to certain periodic maintenance requirements related to passenger equipment. DATES: Effective Date: December 18, 2006. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of December 18, 2006. ADDRESSES: Petitions: Any petitions for reconsideration related to Docket No. FRA-2005-23080, may be submitted by any of the following methods: • Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site. • Fax: 202-493-2251. • Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments. Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://dms.dot.gov including any personal information. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials. Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: George Scerbo, Office of Safety Assurance and Compliance, Motive Power & Equipment Division, RRS-14, Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6247), or Thomas J. Herrmann, Deputy Assistant Chief Counsel, Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6036). SUPPLEMENTARY INFORMATION: I. Statutory Background In September of 1994, the Secretary of Transportation convened a meeting of representatives from all sectors of the rail industry with the goal of enhancing rail safety. As one of the initiatives arising from this Rail Safety Summit, the Secretary announced that DOT would begin developing safety standards for rail passenger equipment over a five-year period. In November of 1994, Congress adopted the Secretary's schedule for implementing rail passenger equipment regulations and included it in the Federal Railroad Safety Authorization Act of 1994 (the Act), Public Law Number 103-440, 108 Stat. 4619, 4623-4624 (November 2, 1994). Section 215 of the Act, as now codified at 49 U.S.C. 20133, provides as follows: (a) MINIMUM STANDARDS.—The Secretary of Transportation shall prescribe regulations establishing minimum standards for the safety of cars used by railroad carriers to transport passengers. Before prescribing such regulations, the Secretary shall consider— (1) the crashworthiness of the cars; (2) interior features (including luggage restraints, seat belts, and exposed surfaces) that may affect passenger safety; (3) maintenance and inspection of the cars; (4) emergency response procedures and equipment; and (5) any operating rules and conditions that directly affect safety not otherwise governed by regulations. The Secretary may make applicable some or all of the standards established under this subsection to cars existing at the time the regulations are prescribed, as well as to new cars, and the Secretary shall explain in the rulemaking document the basis for making such standards applicable to existing cars. (b) INITIAL AND FINAL REGULATIONS.—(1) The Secretary shall prescribe initial regulations under subsection (a) within 3 years after the date of enactment of the Federal Railroad Safety Authorization Act of 1994. The initial regulations may exempt equipment used by tourist, historic, scenic, and excursion railroad carriers to transport passengers. (2) The Secretary shall prescribe final regulations under subsection (a) within 5 years after such date of enactment. (c) PERSONNEL.—The Secretary may establish within the Department of Transportation 2 additional full-time equivalent positions beyond the number permitted under existing law to assist with the drafting, prescribing, and implementation of regulations under this section. (d) CONSULTATION.—In prescribing regulations, issuing orders, and making amendments under this section, the Secretary may consult with Amtrak, public authorities operating railroad passenger service, other railroad carriers transporting passengers, organizations of passengers, and organizations of employees. A consultation is not subject to the Federal Advisory Committee Act (5 U.S.C. App.), but minutes of the consultation shall be placed in the public docket of the regulatory proceeding. The Secretary of Transportation has delegated these rulemaking responsibilities to the Federal Railroad Administrator. See 49 CFR 1.49(m). II. Proceedings to Date On June 17, 1996, FRA published an advanced notice of proposed rulemaking (ANPRM) concerning the establishment of comprehensive safety standards for railroad passenger equipment. See 61 FR 30672. The ANPRM provided background information on the need for such standards, offered preliminary ideas on approaching passenger safety issues, and presented questions on various passenger safety topics. Following consideration of comments received on the ANPRM and advice from FRA's Passenger Equipment Working Group, FRA published a Notice of Proposed Rulemaking (NPRM) on September 23, 1997, to establish comprehensive safety standards for railroad passenger equipment. See 62 FR 49728. In addition to requesting written comment on the NPRM, FRA also solicited oral comment at a public hearing held on November 21, 1997. FRA considered the comments received on the NPRM and prepared a final rule establishing safety standards for passenger equipment, which was published on May 12, 1999. See 64 FR 25540. After publication of the final rule, interested parties filed petitions seeking FRA's reconsideration of some of the requirements contained in the final rule. These petitions generally related to the following subject areas: structural design; fire safety; training; inspection, testing, and maintenance; and movement of defective equipment. On July 3, 2000, FRA issued a response to the petitions for reconsideration relating to the inspection, testing, and maintenance of passenger equipment, the movement of defective passenger equipment, and other miscellaneous mechanical-related provisions contained in the final rule. See 65 FR 41284. On April 23, 2002 and June 25, 2002, FRA published two additional responses to the petitions for reconsideration addressing the remaining issues raised in the petitions. See 67 FR 19970, and 67 FR 42892. Subsequent to the issuance of these responses, FRA and interested industry members began identifying various issues related to the new passenger equipment safety standards with the intent that FRA would address the issues through FRA's Railroad Safety Advisory Committee (RSAC). On May 20, 2003, FRA presented, and the RSAC accepted, the task of reviewing existing passenger equipment safety needs and programs and recommending consideration of specific actions useful to advance the safety of rail passenger service. The RSAC established the Passenger Equipment Working Group (Working Group) to handle this task and develop recommendations for the full RSAC to consider. Due to the variety of issues involved the Working Group established a number of smaller task forces, with specific expertise, to develop recommendations on various subject-specific issues. One of these task forces, the Mechanical Issues Task Force (Task Force), was assigned the job of identifying and developing issues and recommendations specifically related to the inspection, testing, and operation of passenger equipment as well as concerns related to the attachment of safety appliances on passenger equipment. The Task Force met several times between 2003 and late-2005 in order to develop detailed recommendations to the full Working Group. The Task Force recommendations became the recommendations of the Working Group and the full RSAC. The RSAC did not make any recommendations regarding the proposed provisions related to the attachment of safety appliances on passenger equipment and the proposed provision involving out-of-service credit. At the October 26-27, 2004 meeting of the full Working Group, FRA withdrew the task related to the consideration of handling the attachment of safety appliances on passenger equipment from the RSAC. FRA determined that consensus on this issue could not be reached in the RSAC process and determined that it would have to proceed with these issues on its own. Therefore, FRA developed the proposed provisions related to the attachment of safety appliances unilaterally based on its own expertise in the area and based on discussions and information developed by the Working Group and Task Force. FRA also did not seek consensus in the RSAC process for the proposed provision related to out-of service credit. This issue was addressed on FRA's own accord in response to the American Public Transportation Association's (APTA) petition for rulemaking dated March 28, 2005. Thus, FRA did not seek RSAC consensus on these issues. FRA reviewed and adopted the recommendations of the full RSAC and issued a Notice of Proposed Rulemaking (NPRM) on December 8, 2005. See 70 FR 73070. The comment period for the above noted NPRM closed on February 17, 2006. FRA received comments from two parties, the Brotherhood of Railway Carmen and APTA. The comments of these two parties were concentrated almost exclusively on the proposed provisions related to the attachment of safety appliances on passenger equipment. As the involved provisions were not developed through the RSAC process and the comments on those provisions could not be discussed with the members of the Working Group or Task Force and because FRA received no significant comments on any of the RSAC developed provisions proposed in the NPRM, FRA determined that there was no need to hold any further RSAC meetings related to this proceeding. Moreover, because this final rule retains all of the RSAC-recommended provisions proposed in the NPRM without change, there was no need to seek the full RSAC's approval of this final rule. Consequently, FRA proceeded to draft this final rule without further input from the RSAC. III. RSAC Overview In March 1996, FRA established the RSAC, which provides a forum for developing consensus recommendations on rulemakings and other safety program issues. The Committee includes representation from all of the agency's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of member groups follows: American Association of Private Railroad Car Owners (AAPRCO) American Association of State Highway & Transportation Officials (AASHTO) APTA American Short Line and Regional Railroad Association (ASLRRA) American Train Dispatchers Association (ATDA) Association of American Railroads (AAR) Association of Railway Museums (ARM) Association of State Rail Safety Managers (ASRSM) Brotherhood of Locomotive Engineers and Trainmen (BLET) Brotherhood of Maintenance of Way Employees Division (BMWED) Brotherhood of Railroad Signalmen (BRS) Federal Transit Administration (FTA)* High Speed Ground Transportation Association (HSGTA) International Association of Machinists and Aerospace Workers International Brotherhood of Electrical Workers (IBEW) Labor Council for Latin American Advancement (LCLAA)* League of Railway Industry Women* National Association of Railroad Passengers (NARP) National Association of Railway Business Women* National Conference of Firemen & Oilers National Railroad Construction and Maintenance Association National Railroad Passenger Corporation (Amtrak) National Transportation Safety Board (NTSB)* Railway Supply Institute (RSI) Safe Travel America (STA) Secretaria de Communicaciones y Transporte* Sheet Metal Workers International Association (SMWIA) Tourist Railway Association Inc. Transport Canada* Transport Workers Union of America (TWU) Transportation Communications International Union/BRC (TCIU/BRC) United Transportation Union (UTU) *Indicates associate membership. When appropriate, FRA assigns a task to the RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, the RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The task force then provides that information to the working group for consideration. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the RSAC for a vote. If the proposal is accepted by a simple majority of the RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff has played an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal. If the working group or the RSAC is unable to reach consensus on recommendations for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings. On May 20, 2003, FRA presented, and the RSAC accepted, the task of reviewing existing passenger equipment safety needs and programs and recommending consideration of specific actions useful to advance the safety of rail passenger service. The Working Group was established to handle this task and develop recommendations for the full RSAC to consider. Members of the Working Group, in addition to FRA, included the following: AAR, including members from BNSF Railway Company (BNSF), CSX Transportation, Incorporated (CSX), and Union Pacific Railroad Company (UP); APTA, including members from Illinois Commuter Rail Corporation (METRA), Long Island Rail Road (LIRR), Metro-North Railroad (MNR), Southeastern Pennsylvania Transportation Authority (SEPTA), Southern California Regional Rail Authority (SCRRA), Saint Gobian Sully NA, LDK Engineering, and Herzog Transit Services, Incorporated; Amtrak; AAPRCO; AASHTO; BLET; BRS; HSGTA; IBEW; NARP; RSI; SMWIA; STA; TCIU/BRC; TWU; and UTU. The NTSB met with the Working Group and provided staff advisors when possible. In addition, staff from the U.S. DOT Volpe National Transportation Systems Center (Volpe) attended many of the meetings and contributed to the technical discussions. Due to the variety of issues involved, the Working Group established a number of smaller task forces, with specific expertise, to develop recommendations on various subject-specific issues. Members of the task forces included various representatives from various organizations that were part of the larger Working Group. One of these task forces, the Mechanical Issues Task Force (Task Force), was assigned the job of identifying and developing issues and recommendations specifically related to the inspection, testing, and operation of passenger equipment as well as concerns related to the attachment of safety appliances on passenger equipment. Please refer to the preceding discussion in this document as well as the NPRM's preamble discussion for a complete overview of this proceeding both before and after the issuance of the NPRM. See Discussion in Paragraph II—Proceedings to Date; and 70 FR 73070 through 73071. Throughout the preamble discussion of this final rule, FRA refers to comments, views, suggestions, or recommendations made by members of the Working Group or related Task Force. When using this terminology, FRA is referring to views, statements, discussions or positions identified or contained in either the minutes of the Working Group or Task Force meetings that were conducted during the development of the NPRM issued in this proceeding. These documents have been made part of the docket in this proceeding and are available for public inspection as discussed in the preceding ADDRESSES portion of this document. These points are discussed to show the origin of certain issues and the course of discussions on those issues at the task force or working group level. We believe this helps illuminate factors FRA has weighed in making its regulatory decisions, and the logic behind those decisions. The reader should keep in mind, of course, that only the full RSAC makes recommendations to FRA, and it is the consensus recommendation of the full RSAC on which FRA acted in developing the NPRM and this final rule. IV. Technical Background A. Redundancy of Air Compressors MU passenger locomotives are generally operated as married pairs, but in some cases they can be operated as single or triple units. In the case of the married pairs, each pair of MU locomotives share a single air compressor. When operated in triple units, the three MU locomotives generally share two air compressors, and single-unit MU locomotives are equipped with their own air compressor. The amount of air required to be produced by the air compressors is based on the size of the brake pipe and the brake cylinder reservoirs, the size of which is based on the calculated number of brake application-and-release cycles the train will encounter. In addition, the compressed air produced by the air compressors is shared within the consist either by utilizing a main reservoir equalizing pipe or, in single pipe systems, by utilizing the brake pipe which is then diverted to the brake cylinder supply reservoir and other air-operated devices by use of a governor arrangement. Therefore, a passenger train set consisting of numerous MU locomotives will have multiple air compressors providing the train consist with the necessary compressed air. FRA agrees with the determinations of the Task Force that a loss of compressed air from a limited number of air compressors in such a train will not adversely effect the operation of the train's brakes or other air-operated components on the train. Representatives of railroads and air brake manufacturers provided information demonstrating that the safety of a train set is not compromised when a predetermined number of inoperative air compressors are allowed to continue to operate in service on a MU train set. On such train sets, the air compressors are applied by technical specification to a certain number of cars such as one per married pair, two per triplet, and so on. The technical specifications for these air compressors generally allow for a duty cycle (percentage of operating capacity) for each air compressor that is something less than 50 percent. In fact, some technical specifications limit the air compressor duty cycle to 33 percent. This means that on MU train sets the available air compressors are required to operate at only 33 to 50 percent of their operational capacity. One of the major reasons for imposing these low duty cycles is to ensure that adequate air pressure is available if one or more of the other air compressors in the train set is not operating properly. Thus, these systems are currently designed to function properly even in the event that a limited number of air compressors become inoperative while the train is in service. Moreover, even in the unlikely event that an MU passenger train set would lose all of its air compressors, then the air brakes would apply and would remain applied until sufficient compressed air is restored to the system. Consequently, FRA does not see any adverse impact on the operational safety of these types of trains if they are permitted to operate for a relatively short period of time with a limited number of air compressors being inoperative or ineffective. FRA did not receive any comments on the proposed provisions related to this issue. Thus, the final rule retains the proposed provisions without change and permits MU train sets with a limited number of inoperative or ineffective air compressors to continue to be used in passenger service until the next exterior calendar day mechanical inspection when found at such an inspection. The final rule requires a railroad to determine through data, analysis, or actual testing the number of inoperative or ineffective air compressors that could be in an MU train set without compromising the integrity or safety of the train set based on the size and type of train and the train's operating profile. The railroad is required to submit the maximum number of air compressors permitted to be inoperative or ineffective on its various trains to FRA before it can begin operation under the final rule provision and is required to retain and make available to FRA any data or analysis relied on to make those determinations. The final rule also requires a qualified maintenance person (QMP) to verify the safety and integrity of any train operating with inoperative or ineffective air compressors before the equipment continues in passenger service. In addition, the final rule retains the proposal provision requiring notification to the train crew of any inoperative or ineffective air compressors and requires that a record be maintained of the defective condition. FRA believes these provision will ensure the safety of passenger operations while providing the railroads additional flexibility in handling defective or inoperative equipment. B. Pneumatic Testing of Locomotive Main Reservoirs The current regulations contained at 49 CFR 229.31(a) relating to main reservoir tests requires that a hydrostatic (water) test of a main reservoir be conducted before it is originally placed in service or before an existing main reservoir is placed back in service after being drilled as provided for in § 229.31(c). At the Working Group and Task Force meetings, the manufacturers of main reservoirs requested the ability to conduct a pneumatic (air) test of the reservoirs in lieu of the currently required hydrostatic test. The request was limited to providing relief only for those tests required before a main reservoir is originally placed in service and after an existing main reservoir is drilled. The companies that manufacture reservoirs for the rail industry, whether the reservoir is utilized as a main reservoir or reservoir(s) utilized for other purposes, must have an American Society of Mechanical Engineers (ASME) certification. The reservoirs, both main and other, manufactured by these companies are designed and certified to meet the requirements of the ASME Boiler and Pressure Vessel Code. In addition, reservoirs utilized as main reservoirs on locomotives are also manufactured and certified to meet the requirements for such contained in part 229 of the Federal regulations. Currently, all passenger car reservoirs are pneumatically tested after fabrication and before the application of an interior protective coating. This process is utilized so that reservoirs may be repaired if the reservoir does not pass the initial test requirements. If the interior protective coating is applied prior to testing, any weld repairs cannot be performed, as the interior coating would be damaged. The rationale for originally requiring that the main reservoirs be tested hydrostatically was based on the safety concerns should a main reservoir catastrophically fail during the testing. The likelihood of injury is minimized by having the reservoir filled with a liquid rather than air. However, since the original drafting of the locomotive regulations, manufacturers of reservoirs have implemented and developed both equipment and procedures to ensure that test personnel are adequately shielded when conducting the testing. The manufacturers have been performing pneumatic testing on reservoir for years and FRA is not aware of any injury related to such testing in manufacturer-controlled facilities. Thus, the safety concerns originally attached to pneumatic testing have been minimized, if not eliminated, when conducted at properly equipped manufacturer facilities. The ASME code currently utilized by all manufacturers of main reservoirs allows for the pneumatic testing of the reservoirs when the introduction of liquid cannot be tolerated. The introduction of water to perform hydrostatic testing on main reservoirs creates a problem because, if the liquid is not completely removed and the reservoir interior completely dried, the moisture results in poor adhesion or a lower coating of film than required. This condition has the potential of causing interior corrosion and premature failure of the reservoir. Thus, rather than creating this potential, FRA believes that it would be both safer and more efficient to permit the manufacturers of main reservoirs to utilize pneumatic testing to meet the requirements contained in 49 CFR 229.31. FRA received no comments objecting to the flexibility proposed in the NPRM or suggesting additional restrictions or requirements. Consequently, this final rule retains the proposed amendments to the regulation without change to permit pneumatic testing of newly manufactured main reservoirs and reservoirs that are newly drilled and tested at a manufacturer's facility. It should be noted that the final rule retains the proposed restriction that limits the ability to conduct pneumatic testing of the main reservoirs at only those facilities with appropriate safeguards in place to ensure the safety of the personnel conducting the testing. After a reservoir is installed on a locomotive, FRA continues to believe that hydrostatic testing would be the only testing method that adequately ensures the safety and protection of the personnel that are performing the test or working near the installed reservoir. Regulatory language inserted at the end of paragraph (c) of § 229.31 makes clear that pneumatic testing of a reservoir currently in use and newly drilled may only be conducted by a manufacturer of main reservoirs in a safe environment. In other circumstances, the final rule makes clear that a hydrostatic test of the reservoir must be conducted. C. Design of New Passenger Equipment The manufacturers and railroad representatives on the Working Group and Task Force sought clarification of the provision originally contained in 49 CFR 238.231(b). This section requires the brake systems on equipment ordered on or after September 8, 2000, or placed in service on or after September 9, 2002, to be designed so as not to require an inspector to go on, under, or between the equipment to observe the brake actuation or release. At the Task Force meetings and in the NPRM, FRA made clear that the requirement was intended to be a design standard and was not intended to prohibit or limit the conduct of brake or mechanical inspections required to be conducted in part 238. See 70 FR 73074. FRA realizes that in order to perform many of the brake and mechanical inspections required by the regulations an inspector will have to go on, under, or between the equipment. FRA has acknowledged this practice and railroads have effectively conducted these types of inspections in this manner for decades. The plain language of existing § 238.231(b) requires new equipment to be designed to allow direct observation of the brake actuation and release without fouling the equipment. The preamble to the original final rule discusses alternative design approaches using some type of piston travel indicator or piston cylinder pressure indicator on equipment whose design makes it impossible to meet this requirement. See 64 FR 25612 (May 12, 1999). FRA's intent was that this piston travel indicator could be a device similar to the definition of “actuator” contained in § 238.5 or some sort of piston cylinder pressure indicator. The rule text and related preamble make clear that the actuation and release of the brake (or a direct indication of such) be able to be observed without an inspector going on, under, or between the equipment. FRA does not believe that truck pressure indicators (which provide no information on piston travel or piston cylinder pressure) meet this requirement. FRA recognized that the envisioned “indicators” discussed in the preamble to § 238.231(b) may be ahead of the technological curve for passenger equipment currently being delivered and that which may be delivered in the future. Thus, FRA noted its willingness to discuss additional inspection protocols in lieu of applying piston travel indicators on such equipment. During the development of the NPRM, the Task Force discussed the issue in detail as a number of railroads were in the process of receiving new equipment, such as bi-level coaches and other low-slung equipment, the design of which does not allow observation of the brake actuation and release of the brake without going on, under, or between the equipment. Several railroads and manufacturers noted that the type of piston travel indicators envisioned by FRA to meet the § 238.231(b) requirement were not currently available, and even if they could be developed in the future, they would likely be a maintenance problem and unreliable. Representatives of rail labor also questioned the viability and need for the type of piston travel indicators discussed in the preamble to the original final rule. These participants did not believe that any type of mechanical indicator should take the place of direct visual inspection of the brake system components. Consequently, the members of the Task Force believed that the best approach to the issue was to provide additional inspection protocols for new equipment that are designed in a manner that makes observation of the actuation and release of the brakes impossible from outside the plane of the equipment rather than mandating the use of untested and potentially unreliable piston travel indicators. FRA and the Task Force believe that the brake system and mechanical components on bi-level and other low-slung passenger equipment can be adequately inspected through the daily brake and mechanical inspections currently required in the Federal regulations; provided, appropriate blue signal protections are established for the personnel required to perform such inspections. These daily inspections permit a visual inspection of a large percentage of the brake and mechanical components and over a period of a few days all portions of the brake system and mechanical components will be visually observed. However, because the necessary design of some new equipment makes the daily inspections of the equipment more difficult, does not permit visual observation of the brake actuation and release from outside the plane of the vehicle, and because no reliable mechanical device is currently available to provide a direct indication of such, FRA and the Task Force believed it was necessary to adopt additional inspection protocols for this type of equipment. Thus, the NPRM proposed an additional inspection regiment for newer equipment designed in such a manner. The requirements proposed in the NPRM that were related to this type of equipment were similar to those contained in a FRA Safety Board letter dated October 19, 2004, granting that portion of the Massachusetts Bay Transportation Authority's (MBTA) waiver petition seeking relief from the requirements of § 238.231(b) for 28 Kawasaki bi-level coaches. See Docket Number FRA-2004-18063. FRA did not receive any comments directly related to the proposed inspection protocols or the proposed approach to this issue. Thus, this final rule retains the proposed provisions with slight changes for purposes of clarity. The inspection protocols retained in this final rule will be applicable to equipment placed in service on or after September 9, 2002, the design of which does not permit actual visual observation of the brake actuation and release. The final rule provisions will require such equipment to be equipped with either piston travel indicators or brake indicators as defined in § 238.5. The equipment is also required to receive a periodic brake inspection by a QMP at intervals not to exceed five in-service days and the inspection must be performed while the equipment is over an inspection pit or on a raised track. In addition, the railroad performing the additional inspection is required to maintain a record of the inspection consistent with the existing record requirements related to Class I brake tests. FRA believes that these additional inspection requirements will ensure the safety and proper operation of the brake system on equipment which does not permit actual visual observation of the brake actuation and release without fouling the vehicle. FRA received one suggestion from APTA regarding the identification of cars that will be covered by the provisions added in these sections. APTA wanted to make clear that the railroad and car manufacturer would make an initial determination regarding the applicability of the requirements contained in this section and that FRA would oversee these determinations for accuracy. FRA agrees with this position as the railroad and car manufacturer are in the best position to make an initial determination. FRA will exercise its oversight when conducting sample car inspections as well as its regular inspection activity. FRA notes that the additional inspection requirements would be applicable to new cars constructed similar to the low-slung bi-level passenger coaches that were the subject of MBTA's waiver request discussed above. D. Safety Appliances Several issues regarding the attachment of safety appliances on passenger equipment have arisen over the last decade. These issues generally involve the method by which safety appliances on existing passenger equipment are required to be attached, either directly to the car or locomotive body or by use of a bracket or support. It has come to FRA's attention, due to the investigation of these issues, that a significant number of existing passenger cars and locomotives contain some safety appliances that are attached to the equipment by some form of welding, typically the welding of a bracket or plate to which the safety appliance is then mechanically fastened. In the last two decades, manufacturers of certain passenger equipment have used welding on some of the safety appliance arrangements of newly built equipment. Some segments of the passenger industry believe welding of these arrangements is acceptable and have sought a review of FRA's historical prohibition on the welding of safety appliance arrangements. These parties believe that new and improved welding technology, the implementation of new tracking standards, proper quality control, and historical documentation support the limited use of welding on certain safety appliance arrangements. Historically, FRA has required that safety appliances be mechanically fastened to the car structure. FRA has also historically required that any brackets or supports applied to a car structure solely for the purpose of securing a safety appliance must be mechanically fastened to the car body. See MP&E Technical Bulletin 98-14 (June 15, 1998). FRA's prohibition on the weldment of safety appliances and their supports is based on its longstanding administrative interpretation of the regulatory “manner of application” provisions contained in 49 CFR part 231 which require that safety appliances be “securely fastened” with a specified mechanical fastener. See e.g. , 49 CFR §§ 231.12(c)(4); 231.13(b)(4); 231.14(b)(4) and (f)(4)). FRA's historical prohibition on the welding of safety appliances is based on its belief that welds are not uniform, are subject to failure, and are very difficult to inspect to determine if the weld is broken or cracked. Mechanical fasteners, by contrast, are generally easier to inspect and tend to become noticeably loose prior to failure. FRA notes that many of its historical beliefs related to the welded attachment of safety appliance brackets and supports on passenger equipment are based on welding technologies that were in their infancy when first being utilized. In addition, many of FRA's concerns in this area are mitigated when appropriate welding standards covering quality control, initial manufacture, repair, and welder qualifications are established and implemented. Generally, FRA's longstanding interpretation of the regulation prohibiting the welding of safety appliances has not been seriously questioned or opposed since its inception. Virtually all freight railcars manufactured for use in the United States and passenger cars manufactured in the United States have their safety appliances and their safety appliance brackets and supports mechanically fastened to the car body, unless a specific exception has been provided by FRA or the regulations. FRA acknowledges that it has permitted limited welding of certain safety appliances or their brackets and supports on locomotives and tanks cars. See MP&E Technical Bulletins 98-48 and 00-06 (June 15, 1998 and August 7, 2000, respectively). These exceptions were provided because there were no other alternative methods available for mechanically fastening these safety appliance arrangements. Currently, freight railroad equipment complies with the existing regulations and FRA's interpretation of those provisions. Traditionally, FRA has not permitted welding of safety appliance arrangements on freight equipment. In addition, the AAR does not permit the welding of safety appliance arrangements. FRA continues to believe that, except in limited circumstances, the safety appliances on freight equipment should not be attached with welding under any condition. This is primarily due to the extreme differences in use and inspection between passenger and freight equipment. See 70 FR 73076. Thus, FRA does not intend to permit welded safety appliances or their attachment in that segment of the industry. Consequently, FRA is limiting any relief being provided in this final rule to safety appliance arrangements on passenger equipment. Although FRA has remained consistent in its prohibition on the weldment of safety appliances and their supports, a significant amount of passenger equipment has been manufactured and used in revenue service for a number of years with safety appliances being attached to the car body using some form of welding. Currently, FRA is aware of approximately 3,000 passenger cars or locomotives that have safety appliances or safety appliance brackets or supports welded to the body of the equipment. Some units of this equipment were introduced into service within the last few years; others have been in service for more than a decade. Some of the 3,000 units noted above have been the subject of formal waiver requests pursuant to the provisions contained in 49 CFR Part 211. See Docket Numbers FRA-2000-8588 and FRA-2000-8044. In an effort to fully develop the issues relating to the welding of safety appliances on existing passenger equipment, FRA conducted an informal safety inquiry and subsequently submitted the issue to RSAC in this proceeding. On June 17, 2003, an informal safety inquiry was held in Washington, DC, where all interested parties were permitted to express their concerns relating to FRA's longstanding interpretation prohibiting welded of safety appliance arrangements. Representatives from APTA, AAR, consultants, manufacturers, and union representatives gave presentations or provided comments expressing their points of interests or concerns. FRA also referred the issue to the RSAC process in this proceeding, which in turn assigned the issue to the mechanical Task Force, to aid in developing and determining if there is a practical application where welding may be suitable and to consider methods by which FRA could revise or clarify its position for future guidance and regulatory standards. Although the Task Force engaged in productive discussions and developed considerable information relating to the issue, the Task Force could not reach a consensus on any recommendation. Consequently, on October 27, 2004, FRA withdrew the task related to the consideration of handling the attachment of safety appliances on passenger equipment from the RSAC and decided to proceed with the development of a regulatory proposal unilaterally. At the safety inquiry and the discussions within the Task Force, ATPA and its primary members all indicated that FRA needs to provide clarity and guidance to the industry relating to passenger car safety appliance arrangements, particularly in the area of attaching brackets and supports. FRA considered issues ranging from the initial manufacturing stage to the actual expected life cycle of a weld and the environment in which the equipment operates. FRA acknowledges that freight and passenger operations involve significantly different environments from a safety appliance standpoint, and likely justifies an allowance for welded safety appliance brackets and supports and in other instances where the design of a vehicle necessitates such use. In most cases, passenger equipment is inspected on a more regular basis, generally used in captive type service, and experiences far less coupling and uncoupling associated with switching moves inherent in freight operations. FRA also recognizes that it would be extremely costly to the passenger industry to require existing equipment to be retrofitted with new safety appliances when the existing welded attachments have not shown a proclivity for failure at this time. Based on the information and views provided at both the informal safety inquiry and through the RSAC, FRA proposed provisions in the NPRM to clarify FRA's existing interpretations of the safety appliance regulations and to provide the passenger rail industry some latitude for existing passenger equipment with welded safety appliance brackets or supports in lieu of retrofitting nearly one-third of the fleet. The NPRM proposed a detailed inspection and repair program for existing passenger equipment with welded safety appliances or welded safety appliance brackets or supports. The NPRM also sought comments and information from interested parties on a variety of questions and concerns relating to both the proposed provisions and the general use of welding as a means of attaching safety appliance brackets and supports. See 70 FR 73077. The NPRM indicated FRA's willingness to consider certain welded safety appliance brackets and supports to be part of a car's body if viable and enforceable specifications could be developed that would ensure the safe and reliable attachment of such brackets and supports. FRA received comments from two parties regarding the proposed provisions and in response to the questions presented. BRC submitted comments requesting that FRA continue its prohibition on welding of safety appliances and require that safety appliances be mechanically fastened. BRC indicated that this approach would be consistent with FRA's historical application of the regulations. BRC stated that it was not convinced that welding was an effective manner of securement due to vibration and flex occurring on equipment while in transit. BRC provided several historical examples of instances when FRA took exception to certain welded safety appliances. FRA notes that the examples cited by BRC involved either instances of direct welding of the safety appliances to a car body, welding of safety appliances on freight equipment, or welding not conducted in accordance with any acceptable welding standard. BRC requested that if any change were made to the existing welding prohibition that they only be considered after the initiation and implementation of strict safety procedures covering the inspection, and repair of such welds as well as the qualifications and training of the individuals responsible for inspecting and welding such appliances. APTA's comments focused almost exclusively on the proposed provisions related to the welding of safety appliance brackets and supports. In response to questions asked in the NPRM, APTA provided detailed specifications for use by FRA for determining when a welded safety appliance bracket or support could be considered part of the car's body. These specifications included the strength, size, attachment, design criteria, and quality control procedures that any welded attachment would be required to meet. APTA comments fully discussed the implications and basis for its recommended specifications. APTA seeks to have these welding specifications applied to both new and existing equipment. APTA also sought to have the definition of what constitutes a defective weld clarified. APTA asserts that only a crack in a weld should be considered a defect and that anomalies in welds should not be considered. APTA contends that, if an anomaly is significant, it will eventually lead to a crack in the weld. APTA again noted that it believes both FRA and BRC are operating under two serious misconceptions relating to welding. The first is that the failure mode of welds used to attach a safety appliance and their related brackets or supports is difficult to detect. APTA asserts that failure of these welds is rare and even if there is a failure it will start with a small crack that grows very slowly. In the unlikely event that a crack were to even develop, it would take months or years for failure of the weld to occur. These cracks would be easy to detect with the visual inspections performed on safety appliances by railroads on a daily basis. The second misconception is that weld will have a higher failure rate toward the end of the life cycle of a piece of equipment. APTA asserts that older welds do not fail at any higher rate than newer welds. The endurance limits designed into these welds are so high that the welds will not fatigue over time regardless of number of stress cycles that occur. Because of this, there is no data available to FRA that show a higher failure rate due to the age of the weld. APTA also stressed that it was not advocating welding a safety appliance directly to a car body except in the limited circumstances identified in the NPRM when the design of the equipment makes it impossible to mechanically fasten the safety appliance. Based on consideration of these comments as well as previous information provided to FRA, the final rule is modifying some of the provisions proposed in the NPRM related to the attachment of safety appliances on passenger equipment. The final rule retains many of the provisions proposed in the NPRM but is being expanded to adopt APTA's recommendations for determining when a welded safety appliance bracket or support will be considered part of the car body and the definition of a defective weld. FRA believes that welding technologies have improved significantly over the last several decades. In addition, passenger operations provide a unique environment suitable to the use of welding as a means of attachment in certain situations. Moreover, FRA believes that APTA has provided a viable and enforceable specification for ensuring that welded safety appliance brackets and supports are securely, safely, and reliably attached to the equipment on which it is placed. Volpe reviewed the welding specifications at FRA's request and confirmed that safety appliance brackets or supports welded to the car body in accordance with the standards recommended by APTA would be at least as secure and reliable as a bracket or support attached with a mechanical fastener. FRA further believes that BRC's concerns are addressed by the final rule provisions because the final rule will only consider welded safety appliance brackets or supports to be part of the car body if stringent and verifiable standards are utilized when making the welded connection. In addition, the final rule will allow existing equipment with welded brackets or supports to continue in service only if it is inspected and repaired in accordance with the strict inspection and repair provisions contained in the rule. Consequently, FRA is including APTA's recommended specifications related to welded safety appliance brackets and supports in this final rule with slight modification for clarity and enforceability. The final rule also retains the proposed provisions providing the industry with the ability to develop standards relating to the safety appliance arrangements on new cars of special construction. FRA did not receive any comments on the proposed provisions and is retaining them in this final rule without change. Throughout the Railroad Safety Appliance Standards, currently contained in 49 CFR part 231; specifically, § 231.12—Passenger-train cars with wide vestibules; § 231.13—Passenger-train cars with open-end platforms; § 231.14—Passenger-train cars without end platforms; and § 231.23—Unidirectional passenger-train cars adaptable to van-type semi-trailer use, there may be inconsistencies and/or opportunities for clarification in the construction of newly built passenger equipment. Many times, it is necessary to reference two or more sections of 49 CFR part 231 to determine if a newly constructed passenger vehicle meets the minimum requirements of the Federal regulations. However, criteria for most of today's new types of passenger car construction are found within 49 CFR 231.18—Cars of special construction. This results from the fact that modern technology in construction of car-building often does not lend itself to ready application of the current 49 CFR 231 requirements. Rather, the designer must adapt several different requirements to meet as closely as possible construction of specific safety appliance arrangements in order to obtain compliance. Most passenger cars today are constructed outside the United States, and this has exacerbated the problem of varying interpretations of regulations and resulting safety appliance arrangements. At times, different requirements are applied to cars of similar design where both could have been constructed in the same manner. Substantial resources are spent on a regular basis by all parties concerned in review sessions to determine if a car is in compliance prior to construction; and even when the cars are delivered, problems have arisen. In an attempt to limit these problems, the final rule contains a method by which the industry may request approval of safety appliance arrangements on new equipment considered to be cars of special construction under 49 CFR part 231. The final rule will permit the industry to develop standards to address many of the new types of passenger equipment introduced into service. The final rule requires any such standards, and supporting documentation to be submitted to FRA for agency approval pursuant to the special approval process already contained in the regulation. The final rule makes clear that any approved standard will be enforceable against any person who violates or causes the violation of the approved standards and that the penalty schedule contained in Appendix A to 49 CFR part 231 will be used as guidance in assessing any applicable civil penalty. The goal of the regulation is to develop consistent safety appliance standards for each new type of passenger car not currently identified in the Federal regulations that ensures the construction of suitable safety appliance arrangements in compliance with 49 CFR part 231. FRA believes the final rule will reduce or eliminate reliance upon criteria for cars of special construction, will improve communication of safety appliance requirements to the industry, and will facilitate regulatory compliance where clarification or guidance is necessary. Portions of the final rule relating to new passenger equipment are already progressing. By letter dated September 2, 2005, FRA requested APTA to determine if it is feasible to form a group to specifically develop potential safety appliance standards for newly manufactured passenger equipment and provide guidance where existing Federal regulations are not specific to the design of a passenger car or locomotive. On October 11, 2005, APTA informed FRA that it is willing to undertake this effort and began conducting meetings in early 2006. FRA believes this approach provides an excellent avenue to take advantage of the knowledge and expertise possessed by rail operators and equipment manufactures when considering safety appliance arrangements on new passenger equipment of unique design. Under the provisions retained in this final rule, the standards and guidance developed by this group will need to be submitted to and approved by FRA pursuant to the special approval provisions contained at § 238.21. E. Securement of Unattended Equipment The NPRM proposed various provisions related to the securement of unattended equipment. FRA did not receive any comments on the proposed provisions other than APTA's concurrence that the proposal appropriately captures existing practices of passenger railroads. Thus, this final rule retains the proposed provisions without change. FRA believes that the rational for addressing these issues on freight operations is equally applicable to passenger operations. The preamble to the final rule related to 49 CFR part 232 contains an in-depth discussion of the need to address these issues. See 66 FR 4156-4158 (January 17, 2001). The approach proposed in the NPRM and retained in this final rule is also consistent with the guidance contained in FRA Safety Advisory 97-1. See 62 FR 49046 (September 15, 1997). Further, FRA is aware of several incidents on passenger and commuter operation involving the running away or inadvertent movement of unattended equipment. As passenger train consists are much shorter and do not possess the tonnage associated with freight trains, the final rule modifies the provisions contained in 49 CFR part 232 to make them more readily applicable to passenger operations. The requirements contained in this final rule are consistent with and based directly on current passenger industry practice. Thus, in FRA's view, they will have no economic or operational impact on passenger operations but will ensure that these best practices currently adopted by the industry are followed and complied with by making them part of the Federal regulations. The final rule requires that unattended equipment be secured by applying a sufficient number of hand or parking brakes to hold the equipment and will require railroads to develop and implement a process or procedure to verify that the applied hand or parking brakes will hold the equipment. The final rule also prohibits a practice known as “bottling the air” in a standing cut of cars. The practice of “bottling the air” occurs when a train crew sets out cars from a train with the air brakes applied and the angle cocks on both ends of the train closed, thus trapping the existing compressed air and conserving the brake pipe pressure in the cut of cars they intend to leave behind. This practice has the potential of causing, first, an unintentional release of the brakes on these cars and, ultimately, a runaway. A full discussion of the hazards related to this practice is contained in the preamble to the final rule related to freight power brakes. See 66 FR 4156-57. Virtually all railroads currently prohibit this practice in their operating rules. The final rule also mandates a minimum number of hand or parking brakes that must be applied on an unattended locomotive consist or train. Due to the relatively short length and low tonnage associated with passenger trains, FRA does not believe that the more stringent provisions contained in § 232.103(n)(3) are necessary in a passenger train context. Thus, the final rule only requires that at least one hand or parking brake be applied in these circumstances; however, the number of applied hand or parking brakes will vary depending on the process or procedures developed and implemented by each covered railroad. In addition, the final rule requires railroads to develop and implement procedures for securing locomotives not equipped with a hand or parking brake and instructions for securing any locomotive left unattended. As noted previously, FRA is not aware of any railroad which does not already have the required procedures or processes in place. Thus, FRA believes that these requirements will impose no burden on passenger operations covered by 49 CFR part 238. In addition to addressing specific issues relating to securing unattended equipment, the final rule also incorporates and adopts the industry's best practices related to the inspection and testing of hand and parking brakes. The final rule requires that the hand or parking on other than MU locomotives be inspected no less frequently than every 368 days and that a record (either stencil, blue card, or electronic) be maintained and provided to FRA upon request. The final rule also requires the application and release of the hand or parking brake at each periodic mechanical inspection of passenger cars and unpowered vehicles under § 238.307 and requires a complete inspection of these components every 368 days, with a record being maintained of this annual inspection. The inspection and testing intervals as well as the stenciling and record keeping requirements retained in the final rule are consistent with the current practices in the industry and will impose no additional burden on the industry. V. Section-by-Section Analysis Amendments to 49 CFR Part 229 Section 229.5 Definitions The final rule is retaining the proposed technical clarification to the definition of “MU locomotive” contained in this section. FRA did not receive any comments on this proposed modification. Thus, FRA is retaining the modification in this final rule without change. Section 229.5 contains a number of definitions that define different types of locomotives covered by the various provisions contained in part 229. These include the general definition of “locomotive” as well as various types of locomotives including: “control cab locomotive,” “DMU locomotive,” and “MU locomotive.” Representatives of various railroads and equipment manufacturers have expressed concern over these definitions, contending that they were confusing and contained some overlap making it difficult to determine which category a particular locomotive fell within. The definition of “MU locomotive” was recently reissued in its full length when the final rule on Locomotive Event Recorders was published on June 30, 2005. See 70 FR 37939. Subparagraph (2) of the current definition identifies an MU locomotive as “a multiple unit operated electric locomotive * * * (2) without propelling motors but with one or more control stands.” This portion of the MU locomotive definition is identical to the definition of “control cab locomotive.” In an effort to add clarity and to definitively distinguish a MU locomotive from a control cab locomotive, the final rule adds some limiting language to the definition of what constitutes a MU locomotive. Historically, FRA has only considered a locomotive without propelling motors to be a MU locomotive if it has the ability to pick-up primary power from a third rail or a pantograph. Consequently, the final rule adds this language to the existing definition of MU locomotive to make it consistent with FRA's historical enforcement and interpretation of the regulation. Section 229.31 Main Reservoir Tests The final rule retains the proposed amendments to paragraphs (a) and (c) of this section to provide the manufacturers of main reservoirs the option to test main reservoirs pneumatically rather than hydrostatically as currently mandated. Other than APTA's comments supporting the provisions, FRA received no comments on the proposed amendments. The modifications will permit a main reservoir to receive a pneumatic test before it is originally placed in service or before an existing main reservoir is placed back in service after being drilled. As discussed in detail in Section B of the Technical Background portion of this document, the ASME code currently utilized by all manufacturers of main reservoirs allows for the pneumatic testing of the reservoirs when the introduction of liquid cannot be tolerated. The introduction of water to perform hydrostatic testing on main reservoirs creates a problem because if the liquid is not completely removed and the reservoir interior completely dried, the moisture results in poor adhesion or a lower coating of film than required. This condition has the potential of causing interior corrosion and premature failure of the reservoir. The rationale for originally requiring that the main reservoirs be tested hydrostatically was based on the safety concerns should a main reservoir catastrophically fail during the testing. The likelihood of injury is minimized by having the reservoir filled with a liquid rather than air. However, since the original drafting of the locomotive regulations, manufacturers of reservoirs have implemented and developed both equipment and procedures to ensure that test personnel are adequately shielded when conducting the testing. The manufacturers have been performing pneumatic testing on reservoirs for years and FRA is not aware of any injury related to such testing in manufacturer-controlled facilities. Thus, the safety concerns originally attached to pneumatic testing have been minimized, if not eliminated, when conducted at properly equipped manufacturer facilities. In addition to the safety benefits related to pneumatic testing, FRA recognizes that all passenger car main reservoirs are pneumatically tested after fabrication and before the application of an interior protective coating. This process is utilized so that reservoirs may be repaired if the reservoir does not pass the initial the test requirements. If the interior protective coating were to be applied prior to testing, any weld repairs could not be performed, as the interior coating would be damaged. Thus, in recognition of current industry practice and in an effort to provide compliance options that are beneficial from a safety perspective, the final rule will to permit the manufacturers of main reservoirs to utilize pneumatic testing to meet the requirements contained in paragraphs (a) and (c) of this section. FRA believes that this flexibility increases both the safety and efficiency of testing newly manufactured main reservoirs and reservoirs that are newly drilled and tested at a manufacturer's facility. It should be noted that the final rule limits the ability to conduct pneumatic testing of the main reservoirs to only those facilities with appropriate safeguards in place to ensure the safety of the personnel conducting the testing. After a reservoir is installed on a locomotive, FRA believes that hydrostatic testing would be the only testing method that adequately ensures the safety and protection of the personnel that are performing the test or working near the installed reservoir. In order to make this intent clear, paragraph (c) contains language that plainly states that pneumatic testing of a reservoir currently in use and newly drilled may only be conducted by a manufacturer of main reservoirs in a suitably safe environment. In other circumstances, a hydrostatic test of the reservoir must be conducted. Section 229.47 Emergency Brake Valve Section 229.137 Sanitation, General Requirements The final rule is retaining the proposed technical clarification to paragraph (b) of § 229.47 and paragraph (b)(1)(iv) of § 229.137. FRA did not receive any comments on these proposed clarifications and is retaining them in this final rule without change. FRA is making these clarifications in order to ensure that these sections are consistent with the new definition of “DMU locomotive.” The recently published final rule on Locomotive Event Recorders added the definition of “DMU locomotive” to 49 CFR part 229. See 70 FR 37920 (June 30, 2005). This definition was added to part 229 in order to specifically identify diesel-powered multiple unit locomotives. These types of locomotives are just starting to be used by a small number of passenger railroads and FRA wants to be sure that they are adequately addressed by the safety standards contained in part 229. As these types of locomotives are fairly unique, they do not fit cleanly within the regulations as they pertain to traditional locomotives and MU locomotives. In some instances they are treated as traditional locomotives and in others they are treated as MU locomotives. In an effort to clarify the applicability of various provisions contained in part 229, FRA is amending §§ 229.47 and 229.137 to specifically state that DMU locomotives are covered by these provisions. These clarifications are consistent with FRA's historical application of the regulations to DMU locomotives. Amendments to 49 CFR Part 238 Section 238.5 Definitions The final rule retains the proposed clarifying amendments to the definitions section contained in part 238 by revising the definition of “actuator” currently contained in regulation and by adding a new definition for “piston travel indicator.” FRA did not receive any comments in response to the proposed amendments and is retaining them in this final rule without change. The term “actuator” used by FRA in the Passenger Equipment Safety Standards final rule is a term that many members of the passenger industry associate and use to identify a specific self-contained brake system component that typically consists of a cylinder, piston, and piston rod. FRA was not intending to identify this brake system component when it included the term in § 238.313(g)(3) of the original regulation. FRA also notes that the term actuator is used in the definition of “piston travel” in this section to refer to the brake system component described above. In order to prevent and limit any confusion on the part of the regulated community, the final rule modifies the definition of “actuator” to describe the brake system component to which the term has traditionally been attached and which is what the term refers to in the definition of “piston travel.” In addition, the final rule is adding a new term to part 238 to describe the device originally defined as an “actuator.” Therefore, the final rule adds the term “piston travel indicator” to describe a device directly activated by the movement of the brake cylinder piston, the disc actuator, or the tread brake unit cylinder piston that provides an indication of piston travel. The final rule also replaces the term “actuator” in § 238.313(g)(3) with the term “piston travel indicator.” Section 238.17 Movement of Passenger Equipment With Other Than Power Brake Defects The final rule retains the proposed conforming change in paragraph (b) of this section to acknowledge the flexibility being provided § 238.303(e)(17) of this final rule relating to inoperative or ineffective air compressors on MU passenger equipment. As discussed in detail above in the Technical Background portion of the preamble and in the section-by-section discussion related to § 238.303 below, the final rule permits certain MU passenger equipment with inoperative or ineffective air compressors to continue to be used in passenger service until the next exterior calendar day mechanical inspection. Section 238.21 Special approval procedures The final rule retains the proposed conforming changes to paragraphs (a) and (c) of this section to recognize the requirements relating to safety appliances on both existing and new passenger equipment contained in §§ 238.229 and 238.230 of this final rule. These conforming changes recognize the provisions of those sections that require a railroad to obtain FRA approval of welded safety appliance attachment or of an industry-wide standard relating to safety appliance arrangements on new passenger equipment of unique design. Section 238.229 Safety appliances—general In this section, FRA is incorporating and clarifying its long-standing administrative interpretations regarding the attachment of safety appliances and safety appliance brackets and supports. FRA is also requiring an inspection program for permitting existing passenger equipment to remain in service in lieu of requiring retro-fitting of the equipment to eliminate welded safety appliance brackets or supports. FRA adopted these provisions unilaterally and did not seek a recommendation or concurrence from RSAC. These issues are discussed above in the Technical Background section of the preamble to the final rule and in the preamble to the NPRM. See 70 FR 73075-78. As FRA sees no benefit in reproducing the entire discussion here, interested parties should refer to those discussions when considering the provisions contained in this section of the final rule. Based on consideration of the information provided by the RSAC Working Group when developing the NPRM as well as the comments submitted in response to the NPRM, the final rule is modifying some of the provisions proposed in the NPRM related to the attachment of safety appliances on passenger equipment. The final rule retains many of the provisions proposed in the NPRM but is being expanded to adopt APTA's recommendations for determining when a welded safety appliance bracket or support will be considered part of the car body. FRA believes that welding technologies have improved significantly over the last several decades. In addition, passenger operations provide a unique environment suitable to the use of welding as a means of attachment in certain situations. Moreover, FRA believes that APTA has provided a viable and enforceable specification for ensuring that welded safety appliance brackets and supports are securely, safely, and reliably attached to the equipment on which it is placed. Volpe reviewed APTA's welding specifications, at FRA's request, and confirmed that safety appliance brackets or supports welded to the car body in accordance with the standards recommended by APTA would be at least as secure and reliable as a bracket or support attached with a mechanical fastener. FRA further believes that BRC's concerns are addressed by the final rule provisions because the final rule will only consider welded safety appliance brackets or supports to be part of the car body if stringent and verifiable standards are utilized when making the welded connection. In addition, the final rule will allow existing equipment with welded brackets or supports to continue in service only if it is inspected and repaired in accordance with the strict inspection and repair provisions contained in the rule. Consequently, FRA is including APTA's recommended specifications related to welded safety appliance brackets and supports in this final rule with slight modification for clarity and enforceability. Paragraphs (a) and (b) of this section contain FRA's long-standing administrative interpretations prohibiting the use of welding as a means of attaching or repairing either a safety appliance or a safety appliance bracket or support. Paragraph (a) makes clear that all passenger equipment continues to be subject to the statutory provisions contained in 49 U.S.C. chapter 203 as well as the regulatory provisions contained in 49 CFR part 231. Paragraph (b) incorporates FRA's long-standing administrative interpretations regarding the welding of safety appliances and their supports. This paragraph makes clear that safety appliances and their brackets or supports are to be mechanically fastened to the car body and specifically states that welding as a method of attachment is generally prohibited. This paragraph also explains that FRA permits the welding of a brace or stiffener used in connection with mechanically fastened safety appliance and provides a definition of what constitutes a “brace” or “stiffener” in these arrangements. Paragraph (c) contains specific exceptions to FRA's general prohibition related to welded safety appliances and welded safety appliance brackets and supports for passenger equipment placed in service prior to January 1, 2007. The final rule reorganizes this paragraph from that proposed in the NPRM in order to provide clarity and to prevent any misunderstanding. This paragraph only addresses welded safety appliances on existing passenger equipment ( i.e. , equipment placed in service prior to January 1, 2007). Provisions related to welded safety appliances on new passenger equipment ( i.e. , equipment placed in service on or after January 1, 2007) are contained in § 238.230 of this final rule. FRA believes that the segregation of these two types of vehicles provides a better understanding of the provisions related to each and allows them to be handled differently. Paragraph (c)(1) retains the proposed exception for passenger equipment placed in service prior to January 1, 2007, equipped with a safety appliance that is mechanically fastened to a bracket or support that is welded to the vehicle. Rather than require the retrofitting of existing equipment that currently contain safety appliance brackets or supports that are attached to the equipment by welding, FRA will permit the equipment to remain in service provided that the equipment is identified, inspected, and handled for repair in accordance with the provisions contained in paragraphs (e) through (k) of this section. FRA believes the identification and inspection plan required in this final rule will ensure the safe operation of equipment currently in service. The final rule also expands this paragraph to provide an exception for welded safety appliance brackets or supports that are determined to meet the requirements for being considered part of the car body contained in § 238.230(b)(1) of this final rule. This paragraph exempts the safety appliance brackets and supports from any further periodic inspections if it is determined during the initial inspection that they are part of the car body, do not contain a defect, and are identified to FRA in writing. FRA wishes to make clear that all existing equipment with welded safety appliance brackets or supports must be given an initial inspection pursuant to paragraphs (g) through (i) of this section and must be handled for remedial action pursuant to paragraph (j) of this section. Thus, safety appliance brackets and supports determined to be part of the car body and meeting the other restrictions contained in this paragraph are only excepted from the future 6-year periodic inspections provided for in paragraph (g)(1) of this section. Paragraph (c)(2) of this final rule is modified from that proposed in the NPRM to apply only to existing passenger equipment with safety appliances directly welded to the equipment. As noted above, FRA believes that this makes the rule easier to understand. Provisions related to new passenger equipment with safety appliances directly welded to the equipment are contained in § 238.230(b)(2) of this final rule. This paragraph acknowledges the fact that in some instances, due to the design of a vehicle, safety appliances are required to be directly attached to a piece of equipment by welding. Other than this clarifying change, the provision is identical to that proposed in the NPRM. This paragraph requires railroads to identify each piece of existing passenger equipment outfitted with a safety appliance welded directly to the vehicle and requires that any such safety appliances be inspected and handled in accordance with the inspection and repair provisions contained in paragraphs (g) through (k). FRA notes that only the specifically identified safety appliances will be required to be so inspected and handled. Paragraph (d) contains standards to clarify when a weld on a safety appliance and a safety appliance bracket or support is to be considered defective. This paragraph has been slightly modified from that proposed in the NPRM. In its comments, APTA recommended that a weld only be considered defective if it contained a crack. APTA asserted that including any anomaly affecting the strength of the weld would result in subjective application of the rule and would require inspectors to be specially trained to identify such anomalies. Moreover, APTA asserts that any failure of a weld would begin with a small crack that would grow very slowly. In the unlikely event that a crack were to even develop, it would take months or years for failure of the weld to occur and such cracks would be easy to detect with the visual inspections performed on safety appliances by railroads on a daily basis. FRA agrees with APTA's assertions. Thus, the final rule amends the proposed provision by limiting the definition of a weld defect to being a crack or fracture of any discernible length or width. FRA believes this approach is consistent with existing welding technology, ensures consistent application of the regulation, and will avoid excessive training of inspectors by limiting their inspection criteria. This paragraph also requires that any repairs made to a defective weld must be made in accordance with the inspection plans and remedial action provisions contained in paragraph (g) and (j) of this section. Paragraphs (e) and (f) retain the proposed provisions relating to a railroad's identification of all existing passenger equipment that contains a welded safety appliance bracket or support. FRA did not receive any comment directly related to these provisions in response to the NPRM and is retaining them without change in this final rule. Paragraph (e) requires the listing to be submitted to FRA by no later than December 31, 2006, and permits railroads to update the list if they identify equipment after that date. These paragraphs permit railroads to exclude certain safety appliances from the inspection provisions provided the railroad fully explains the basis for any such exclusion. FRA envisions such exclusions to be limited to situations where inspection of the weld is impossible or in situations where the size and quality of a weld are such to make inspection unnecessary ( i.e. , where the bracket or support is a structural member of the car). Paragraph (f) makes clear that FRA reserves the right to disapprove any exclusion proffered by a railroad by providing written notification to the railroad of any such decision. Paragraphs (g) through (j) contain the inspection and repair criteria for any equipment identified with a welded safety appliance or welded safety appliance bracket or support. These paragraphs contain provisions concerning when visual inspections of the involved safety appliances would be required to be performed and address the qualifications of the individuals required to perform the inspections as well as the procedures to be utilized when performing the inspections. FRA considered various methods for inspecting the welds on the involved equipment including various types of non-destructive testing on smaller numbers of the involved welds. However, FRA continues to believe that periodic visual inspections of all the identified welds is the most effective and cost-efficient method of ensuring the proper condition of the attachments. Paragraph (h) identifies a number of different types of individuals that could be utilized by a railroad to perform the required visual inspections of welded safety appliances and welded safety appliance brackets and supports. FRA believes that these inspectors must be properly trained and qualified to identify defective weld conditions. Rather than limit a railroad's ability to utilize a number of its available personnel, FRA has attempted to list a number of different types of persons that would have the ability to conduct the required visual inspections based on railroad provided training or due to being certified under an accepted existing industry, national or international welding standard. This paragraph has been slightly modified from that proposed in the NPRM in order to remain consistent with this approach. The final rule recognizes that there are a number of existing national and international welding standards under which a person may be certified and that these standards may be modified on a regular basis. Thus, rather than attempting to incorporate these existing standards into the regulation, the final rule identifies many of the currently existing standards and makes clear that a more revised version of the identified standard is acceptable provided it is equivalent to the standard it updates. The final rule also acknowledges that there may be other nationally or internationally recognized welding standards that would be equivalent to those specifically identified and makes clear that certification under these other unspecified standards would be acceptable provided they are equivalent to one of the specifically identified welding certification standards. FRA expects that most railroads will utilize a qualified maintenance person (QMP) to conduct the inspections, as they are the individuals recognized to conduct most of the other brake and mechanical inspections required under part 238. FRA notes that a QMP would be required to receive at least four hours of training specific to weld defect identification and weld inspection procedures to be deemed qualified to perform the required periodic inspections. FRA did not receive any comments suggesting that more training of QMP's would be necessary and is retaining the four hour training requirement in this final rule. Paragraph (j) contains remedial actions that are required to be utilized in situations where a welded safety appliance or safety appliance bracket or support is found defective either during the periodic visual inspections or while otherwise in service. FRA did not receive any comments specifically related to the provisions contain in this section in response to the NPRM and is retaining them without change in this final rule. This paragraph makes clear that unless the defect is known to be the result of crash damage, the railroad must conduct a failure and engineering analysis to determine the cause of the defective condition. The remedial action provisions permit a defective welded safety appliance or safety appliance bracket or support to be reattached to a vehicle by either mechanical fastening or welding if the defective condition is due to crash damage or improper construction. Any welded repair would be required to be conducted in accordance with APTA's Standard for Passenger Rail Vehicle Structural Repair, SS-C&S-020-03 (September 2003). In conformance with Office of Management and Budget (OMB) Revised Circular A-119 (February 10, 1998), FRA is using a voluntary national standard in this paragraph of the final rule. FRA's use of a standard established by APTA is a means of establishing technical requirements without increasing the volume of the Code of Federal Regulations. See 1 CFR part 51. In this final rule, FRA has incorporated the most current version of the APTA standard, however FRA understands that over time, APTA may revisit this standard and may update it. In such instances, FRA may approve the use of a more recent standard via the special approval procedures contained in § 238.21. FRA also intends to regularly update the rule, most likely through the use of technical amendments, and would incorporate APTA's revised standards at that time. Federal law requires that a publication incorporated by reference be identified by its title, date, edition, author, publisher, and identification number, this final rule incorporates the most current APTA standard only. See 1 CFR 51.9(b)(2). In instances where the defective condition is due to inadequate design, such as unanticipated stresses or loads during service, the final rule requires that the safety appliance be mechanically attached, if possible, and requires railroads to develop a plan for submission to FRA detailing a schedule for mechanically fastening the safety appliances of safety appliance brackets or supports on all cars in that series of cars. The final rule retains these strict provisions because where inadequate design causes failure of the safety appliances it is an indication that there is likely a systemic problem for all cars similarly constructed. Paragraph (k) retains the proposed requirement related to maintaining records of both the inspections and any repairs made to welded safety appliances or welded safety appliance brackets or supports. FRA did not receive any comments related to these provisions in response to the NPRM and is retaining them in this final rule without change. These records will not only aid FRA's enforcement of the final rule provisions but will also provide invaluable information regarding the longevity and integrity of welded appliances and brackets or supports. The records required in this paragraph may be maintained in any format (written, electronic, etc. ), but must be made available to FRA upon request. Section 238.230 Safety Appliances—New Equipment This section contains requirements related to safety appliances on passenger equipment placed into service after January 1, 2007. This section reiterates FRA's long-standing prohibition on welding of safety appliance brackets or supports. Paragraph (b) incorporates FRA's long-standing administrative interpretations regarding the welding of safety appliances and their supports. This paragraph makes clear that safety appliances and their brackets or supports are to be mechanically fastened to the car body and specifically states that welding as a method of attachment is generally prohibited except as specifically provided in this section. Paragraphs (b)(1) through (b)(3) contain the specific exceptions to FRA general prohibition on welded safety appliances and their brackets or supports. Paragraph (b)(1) contains the criteria for determining when a safety appliance bracket or support will be considered part of the car body and thus, obviating the need to mechanically fasten the bracket or support to the body of the piece of equipment. As discussed above, FRA carefully considered suggestions that would allow limited use of welding to attach safety appliances brackets and supports on new passenger equipment. FRA believes that welding technologies have improved significantly over the last several decades. In addition, passenger operations provide a unique environment suitable to the use of welding as a means of attachment in certain situations. Moreover, FRA believes that APTA has provided a viable and enforceable specification for ensuring that welded safety appliance brackets and supports are securely, safely, and reliably attached to the equipment on which it is placed. Volpe reviewed APTA's welding specifications, at FRA's request, and confirmed that safety appliance brackets or supports welded to the car body in accordance with the standards recommended by APTA would be at least as secure and reliable as a bracket or support attached with a mechanical fastener. FRA further believes that BRC's concerns are addressed by the final rule provisions because the final rule will only consider welded safety appliance brackets or supports to be part of the car body if the stringent and verifiable standards contained in this paragraph are followed when making the welded connection. Consequently, FRA is including APTA's recommended specifications related to welded safety appliance brackets and supports in this paragraph with slight modification for clarity and enforceability. Paragraph (b)(1) contains specific criteria that must be met in order for a safety appliance bracket or support to be considered part of the car body. These include such things as: The surface to which the bracket or support is welded; the surface area of the weld; the type and size of the weld; the welding process that must be utilized; and the qualifications of the individual performing the weld. This paragraph also requires that any such bracket or support be inspected by a qualified person prior to being placed in service. This inspection may be conducted by either the manufacturer or the railroad; provided, a record of the inspection is maintained and made available to FRA upon request. In an effort to remain realistic and practical, paragraphs (b)(2) and (b)(3) of this section acknowledge that there may be instances where the design of a vehicle makes it impracticable to mechanically attach a safety appliance or a safety appliance bracket or support and necessitates the need to weld the safety appliance or the bracket or support. These paragraphs are identical to those proposed in the NPRM but have been reorganized for clarity. FRA did not receive any comments on these specific provisions and is retaining them in this final rule. FRA intends to make clear that the flexibility to utilize welding in these applications will be narrowly construed and will only be permitted in instances where a clear nexus between the equipment design and the need to weld a safety appliance or a safety appliance bracket or support exists. These paragraphs require a railroad to identify any such equipment prior to placing it in service and requires the railroad to clearly describe the necessity to weld the safety appliance or the bracket or support. In the case of a welded safety appliance bracket or support not considered to be part of the car body, the railroad must receive FRA's approval prior to placing the equipment in service and must describe the industry standard followed when making such an attachment. In the case of a safety appliance welded directly to the vehicle, the railroads must provide a detailed rationale explaining how the design of the vehicle or placement of the safety appliance requires the direct welding of the appliance to the equipment prior to placing the equipment in service. Paragraph (b)(2) and (b)(3) make clear that any new equipment containing a welded safety or a welded safety appliance bracket or support not considered part of the car body are required to be inspected and handled in accordance with the provisions contained in § 238.229(g) through (k). Paragraph (c) is a new paragraph being added to this final rule to make clear that a welded safety appliance or a welded safety appliance bracket or support will be considered defective if any portion of the weld is considered defective pursuant to § 238.229(d) of this part. FRA intends to make clear that any welded safety appliance bracket or support, even if considered part of the car body, is covered by this provision. This paragraph also makes clear that defective welds on safety appliances and safety appliance brackets and supports will be assessed under the penalty schedule contained in 49 CFR part 231, Appendix A. This paragraph further requires that any repair conducted to a welded safety appliance bracket or support considered part of the car body is to be conducted in accordance with APTA Standard SS-C&S-020-03 that is incorporated by reference in § 238.229. Paragraph (d) retains the proposed requirements that would permit the submission of industry-wide safety appliance arrangement standards to FRA for its approval. FRA did not receive any specific comments on these provisions in response to the NPRM and is retaining them in this final rule without change. As discussed in detail in the Section D of the Technical Background portion of the preamble, the Railroad Safety Appliance Standards currently contained in 49 CFR part 231 address a very limited number of different types of passenger equipment. The criteria for most of today's new types of passenger car construction are found within 49 CFR 231.18—Cars of special construction. This results from the fact that modern technology in construction of car-building often does not lend itself to ready application of the existing 49 CFR part 231 requirements. Rather, the designer must adapt several different requirements to meet as closely as possible construction of specific safety appliance arrangements in order to obtain compliance. Most passenger cars today are constructed outside the United States, and this has exacerbated the problem of varying interpretations of regulations and resulting safety appliance arrangements. At times, different requirements are applied to cars of similar design where both could have been constructed in the same manner. Substantial resources are spent on a regular basis by all parties concerned in review sessions to determine if a car is in compliance prior to construction; and even when the cars are delivered, problems have arisen. In attempt to limit these problems, paragraph (d) provides a process by which the industry may request approval of safety appliance arrangements on new equipment considered to be cars of special construction under 49 CFR part 231. This paragraph will permit the industry to develop standards to address many of the new types of passenger equipment introduced into service. The final rule will require these standards, and supporting documentation to be submitted to FRA for FRA approval pursuant to the special approval process already contained in § 238.21 of this regulation. This paragraph makes clear that any approved standard will be enforceable against any person who violates or causes the violation of the approved standard and that the penalty schedule contained in Appendix A to 49 CFR part 231 will be used in assessing any applicable civil penalty. The goal of this final rule is to develop consistent safety appliance standards for each new type of passenger car not currently identified in the Federal regulations that ensure the construction of suitable safety appliance arrangements in compliance with 49 CFR part 231. FRA believes the final rule will reduce or eliminate reliance upon criteria for cars of special construction, will improve communication of safety appliance requirements to the industry, and will facilitate regulatory compliance where clarification or guidance is necessary. Section 238.231 Brake system Paragraph (b) retains the proposed provision relating to the design of passenger equipment placed in service for the first time on or after September 9, 2002. The final rule slightly amends the language of this provision for purposes of clarity and consistency. The final rule also retains the proposed additional inspection criteria for such equipment if it is not designed to permit visual observation of the brake actuation and release from outside the plane of the equipment. A full discussion of the development of these provisions is provided in Section C of the Technical Background portion of this document and need not be reiterated here. The plain language of paragraph (b), as issued in the 1999 Passenger Equipment Safety Standards final rule, required new equipment to be designed to allow direct observation of the brake actuation and release without fouling the equipment. The preamble to that final rule discusses alternative design approaches using some type of piston travel indicator or piston cylinder pressure indicator on equipment whose design makes it impossible to meet this requirement. See 64 FR 25612 (May 12, 1999). Subsequent to the issuance of the 1999 final rule, FRA recognized that the envisioned “indicators” discussed in the preamble of the final rule were ahead of the technological curve for passenger equipment currently being delivered and that which may be delivered in the future. Thus, FRA noted its willingness to the RSAC and the Task Force to consider alternatives to requiring piston travel indicators on such equipment. FRA and the members of the Task Force believed that the best approach to the issue was to provide additional inspection protocols for new equipment designed in a manner that makes observation of the actuation and release of the brakes impossible from outside the plane of the equipment in lieu of mandating the use of untested and potentially unreliable piston travel indicators. Because the necessary design of some new equipment makes the daily inspections of the equipment more difficult, does not permit visual observation of the brake actuation and release from outside the plane of the vehicle and because no reliable mechanical device is currently available to provide a direct indication of such, the NPRM proposed additional inspection protocols for this type of equipment. FRA did not receive any comments directly related to the proposed inspection protocols or the proposed approach to this issue. However, FRA is amending the proposed language to accurately capture the intent of the provision. Thus, this final rule language clearly identifies the design requirement that is to be met when practicable and details equipment and inspection requirements for equipment not meeting the general design requirement. The clarifying changes made in this final rule are consistent with the intent of the provision as originally proposed. The inspection regiment referenced in paragraph (b) will be applicable to equipment placed in service on or after September 9, 2002, the design of which does not permit actual visual observation of the brake actuation and release. The requirements related to this type of equipment are similar to those contained in a FRA Safety Board letter dated October 19, 2004, granting that portion of the Massachusetts Bay Transportation Authority's (MBTA) waiver petition seeking relief from the requirements of § 238.231(b) for 28 Kawasaki bi-level coaches. See Docket Number FRA-2004-18063. The final rule requires such equipment to be equipped with either piston travel indicators or brake indicators as defined in § 238.5. The equipment will also be required to receive a periodic brake inspection by a QMP at intervals not to exceed five in-service days and the inspection will have to be performed while the equipment is over an inspection pit or on a raised track. In addition, the railroad performing the inspection will be required to maintain a record of the inspection consistent with the existing record requirements related to Class I brake tests. The specific inspection criteria are discussed in more detail in the section-by-section analysis related to § 238.313. FRA believes that these additional inspection requirements will ensure the safety and proper operation of the brake system on equipment which does not permit actual visual observation of the brake actuation and release without fouling the vehicle. FRA received one suggestion from APTA regarding the identification of cars that will be covered by this paragraph and the additional inspection requirements contained in § 238.313(j). APTA wanted FRA to make clear that the railroad and car manufacturer would make an initial determination regarding the applicability of the requirements contained in this paragraph and that FRA would oversee these determinations for accuracy. FRA agrees with this position as the railroad and car manufacturer are in the best position to make an initial determination. FRA will exercise its oversight when conducting sample car inspections as well as its regular inspection activity. FRA notes that the additional inspection requirements would be applicable to new cars constructed similar to the low-slung bi-level passenger coaches that were the subject of MBTA's waiver request discussed above. Paragraph (h) of the final rule retains the proposed provisions related to the inspection of locomotive hand or parking brakes as well as proposed provisions addressing the securement of unattended equipment. Other than APTA's brief statement in support of the provisions, FRA did not receive any comments on these proposed provisions and is retaining them in this final rule without change. The final rule modifies existing paragraph (h)(3) to require that the hand or parking brake on other than MU locomotives be inspected no less frequently that every 368 days and that a record (either stencil, blue card, or electronic) be maintained and provided to FRA upon request. Similar provisions were previously contained in § 232.10, prior to part 232's revision in January of 2001. However, FRA inadvertently failed to include hand brake inspection provisions in its original issuance of the Passenger Equipment Safety Standards. The inspection and testing intervals as well as the stenciling and record keeping requirements contained in paragraph (b)(3) are consistent with the current industry practices and will impose no additional burden on the industry. The final rule also retains the proposed addition of a new paragraph (h)(4) that contains specific requirements related to the securement of unattended equipment. A detailed discussion regarding the development of these provisions is contained in Section E of the Technical Background portion of the preamble. FRA believes that the rational for addressing these issues on freight operations is equally applicable to passenger operations. The preamble to the final rule related to 49 CFR part 232 contains an in-depth discussion of the need to address these issues. See 66 FR 4156-58 (January 17, 2001). The approach contained in this final rule is also consistent with the guidance contained in FRA Safety Advisory 97-1. See 62 FR 49046 (September 15, 1997). The requirements contained in this paragraph are consistent with and based directly on current passenger industry practice. Thus, in FRA's view, the provisions will have no economic or operational impact on passenger operations but will ensure that these best practices currently adopted by the industry are followed and complied with by making them part of the Federal regulations. Paragraph (h)(4) requires that unattended equipment be secured by applying a sufficient number of hand or parking brakes to hold the equipment and will require railroads to develop and implement a process or procedure to verify that the applied hand or parking brakes will hold the equipment. The final rule also prohibits a practice known as “bottling the air” in a standing cut of cars. A full discussion of the hazards related to this practice is contained in the preamble of the final rule related to freight power brakes. See 66 FR 4156-57. Virtually all railroads prohibit this practice in their operating rules, thus FRA does not believe any burden is being imposed on the railroads by including it in this rule. Paragraph (h)(4) also establishes the minimum number of hand or parking brakes that must be applied on an unattended locomotive consist or train. Due to the relatively short length and low tonnage associated with passenger trains, FRA does not believe that the more stringent provisions contained in § 232.103(n)(3) are necessary in a passenger train context. Thus, this paragraph requires that at least one hand or parking brake be fully applied on an unattended passenger locomotive consist or passenger train; however, the number of applied hand or parking brakes will vary depending on the process or procedures developed and implemented by each covered railroad. Members of the Task Force sought clarification as to the meaning of the term “fully applied” as it relates to certain passenger equipment equipped with parking brakes. With the introduction of the spring applied parking brake, the parking brake can be “conditioned to apply” but may not be fully applied. Many spring applied parking brake arrangements usually incorporate an anti-compounding feature so the service brake application and parking brake application are not simultaneously applied. This arrangement is utilized to limit the thermal input that may occur if the forces from the service brake application and parking brake application are applied simultaneously. When the train is left unattended, the operator would “condition” the parking brake for application through a cab switch push button or by simply deactivating the cab through normal shutdown procedures. The brake equipment is either placed in an emergency brake condition or the brake pipe is vented to zero pressure at a service reduction rate. This brake equipment operation would result in brake cylinder pressure being applied to the brake units. The brake cylinder pressure provides sufficient force to create an equivalent force to that of the parking brake. If the equipment is not left on a source of compressed air, the brake cylinder pressure may be slowly depleted. When the brake cylinder pressure is gradually reduced, the parking brake gradually applies so that below a prescribed brake cylinder pressure, the parking brake is fully applied. In light of the preceding discussion, FRA intends to make clear that a spring applied parking brake will be considered “fully applied” under paragraph (h)(4) if all steps have been take to permit its full application ( i.e. , “conditioned to apply”). In addition, paragraph (h)(4) requires railroads to develop and implement procedures for securing locomotives not equipped with a hand or parking brake and develop, implement, and adopt instructions for securing any locomotive left unattended. As noted previously, FRA is not aware of any railroad which does not already have these procedures or processes in place. Thus, FRA believes that these requirements will not impose any burden on passenger operations covered by 49 CFR part 238. Section 238.303 Exterior calendar day mechanical inspection of passenger equipment Paragraph (e)(17) contains provisions requiring that air compressors, on passenger equipment so equipped, be in effective and operative condition. The provisions also provide flexibility to permit certain equipment found with ineffective or inoperative air compressors at its exterior calendar day mechanical inspection to continue in service until its next such inspection if various conditions are met by the railroad. Other than APTA's brief statement supporting these provisions, FRA did not receive any comments in response to the NPRM proposing the provisions. Thus, this final rule retains the proposed provisions without change. A full discussion regarding the development of these proposed provisions is contained in Section A of the Technical Background portion of the preamble. MU passenger locomotives are generally operated as married pairs but in some cases they can be operated as single or triple units. In the case of the married pairs, each pair of MU locomotives share a single air compressor. When operated in triple units, the three MU locomotives generally share two air compressors and single-unit MU locomotives are equipped with their own air compressor. The amount of air required to be produced by the air compressors is based on the size of the brake pipe and the brake cylinder reservoirs, the size of which are based on the calculated number of brake application and release cycles the train will encounter. In addition, the compressed air produced by the air compressors is shared within the consist by utilizing a main reservoir equalizing pipe or, in single pipe systems, through the brake pipe which is then diverted to the brake cylinder supply reservoir and other air operated devices by use of a governor arrangement. Therefore, a passenger train set consisting of numerous MU locomotives will have multiple air compressors providing the train consist with the necessary compressed air. FRA agrees with the determinations of the Task Force and the full RSAC that a loss of compressed air from a limited number of air compressors in such a train will not adversely effect the operation of the train's brakes or other air-operated components on the train. Paragraph (e)(17) permits MU train sets with a limited number of inoperative or ineffective air compressors to continue to be used in passenger service until the next exterior calendar day mechanical inspection when found at such an inspection. This paragraph requires a railroad to determine through data, analysis, or actual testing the maximum number of inoperative or ineffective air compressors that could be in an MU train set without compromising the integrity or safety of the train set based on the size and type of train and the train's operating profile. The railroad is required to submit the maximum number of air compressors permitted to be inoperative or ineffective on its various trains to FRA before it can begin operation under the provision and will be required to retain and make available to FRA any data or analysis relied on to make those determinations. Paragraph (e)(17) also requires a qualified maintenance person (QMP) to verify the safety and integrity of any train operating with inoperative or ineffective air compressors before the equipment continues in passenger service. In addition, the final rule requires notification to the train crew of any inoperative or ineffective air compressors and requires that a record be maintained of the defective condition. FRA notes that this paragraph provides FRA with the authority to revoke a railroad's ability to utilize the flexibility contained in this paragraph if the railroad fails to comply with the maximum limits established for continued operation of inoperative air compressors or the maximum limits are not supported by credible and accurate data. FRA believes that the provisions contained in this paragraph will ensure the safety of passenger operations while providing the railroads additional flexibility in handling defective or inoperative equipment. Section 238.307 Periodic mechanical inspection of passenger cars and unpowered vehicles used in passenger trains Paragraphs (c)(13) and (d) retain the proposed requirements related to the periodic inspection of hand or parking brakes on passenger cars and other unpowered vehicles. FRA did not receive any comments related to these provisions in response to the NPRM and is retaining them in this final rule without change. As noted previously, FRA inadvertently failed to include any hand brake inspection provisions in its original issuance of the Passenger Equipment Safety Standards. Thus, FRA raised the issue with the RSAC and the Task Force and they recommended inclusion of various provisions regarding the inspection of hand and parking brakes on passenger equipment. Paragraph (c)(13) requires that the hand or parking brake on passenger cars and unpowered vehicles used in passenger trains be applied and released at each periodic mechanical inspection. No record of this inspection would need to be prepared or retained. Based on information provided at the Task Force and Working Group meetings, all passenger operations currently conduct this type of inspection of the hand and parking brakes at each periodic mechanical inspection. Paragraph (d) requires a complete inspection of the hand or parking brake as well as their parts and connections on passenger cars and unpowered vehicles no less frequently than every 368 days. Paragraph (d) also requires that a record (either stencil, blue card, or electronic) be maintained and provided to FRA upon request. The inspection and testing intervals as well as the stenciling and recordkeeping requirements contained in this paragraph are consistent with the current practices in the industry and will impose no additional burden on the industry. Section 238.313 Class I brake tests Paragraph (g)(3) contains a conforming change to make this paragraph consistent with the definition changes being made in § 238.5 relating to the terms “actuator” and “piston travel indicator.” As noted previously, the final rule modifies the definition of “actuator” to describe the brake system component to which the term has traditionally been attached and which is what the term refers to in the definition of “piston travel.” In addition, the final rule adds a new term to part 238 to describe the device originally defined as an “actuator.” Therefore, the final rule adds the term “piston travel indicator” to describe a device directly activated by the movement of the brake cylinder piston, the disc actuator, or the tread brake unit cylinder piston that provides an indication of piston travel. Consequently, a conforming change is being made in paragraph (g)(3) by replacing the term “actuator” with the term “piston travel indicator” in order to add clarity to the regulatory provision. Paragraph (j) retains the proposed requirements related to the periodic inspection of passenger equipment placed in service for the first time on or after September 9, 2002, the design of which does not permit actual visual observation of the brake actuation and release as required in § 238.231(b). FRA did not receive any comments objecting to these provisions and is retaining them in this final rule without change. A detailed discussion related to the development and need for these provisions is contained in Section C of the Technical Background portion of the preamble and in the section-by-section analysis related to paragraph (b) of § 238.231. As previously noted, the periodic inspection requirements contained in this paragraph are similar to those contained in a FRA Safety Board letter dated October 19, 2004, granting that portion of the Massachusetts Bay Transportation Authority's (MBTA) waiver petition seeking relief from the requirements of § 238.231(b) for 28 Kawasaki bi-level coaches. See DOT Docket Number FRA-2004-18063. Paragraph (j) makes clear that the periodic inspection provisions for the identified types of equipment are in addition to all of the other inspection provisions contained in paragraphs (a) through (i) of this section and must be performed by a QMP. The provisions require equipment not meeting the design requirements contained in § 238.231(b)(1) to receive a periodic brake inspection at intervals not to exceed five in-service days and the inspection must be performed while the equipment is over an inspection pit or on a raised track. Any day or portion of a day that a piece of passenger equipment is actually used in passenger service constitute an “in-service day.” FRA continues to believe that five in-service days is appropriate and will permit the required inspection to be performed during weekends or on other days when the equipment is not being used. Thus, the operational and economic impact of this additional inspection requirement is significantly minimized. The periodic inspection must include all of the items and components identified in paragraphs (g)(1) through (g)(15) of this section. In addition, the railroad performing the periodic inspection will be required to maintain a record of the inspection consistent with the existing record requirements related to Class I brake tests. FRA believes that these additional inspection requirements will ensure the safety and proper operation of the brake system on equipment which does not permit actual visual observation of the brake actuation and release without fouling the vehicle. Section 238.321 Out-of-service credit As discussed previously, FRA did not seek consensus in the RSAC process for the proposed provision related to out-of-service credit contained in the NPRM. The issue was addressed on FRA's own motion in this proceeding in response to APTA's petition for rulemaking dated March 28, 2005. Other than APTA's support of the provision, FRA did not receive any comments related to this provision in response to the NPRM. Thus, this final rule retains the provision without change. The provision contained in this section is modeled directly on the “out-of-use credit” provision contained in the Locomotive Safety Standards at 49 CFR 229.33. The locomotive out-of-use credit has been effectively and safely utilized by the railroad industry for decades. As passenger equipment is generally captive service equipment, is generally less mechanically complex than locomotives, and because the provisions for which the credit will be utilized are time-based, FRA believes it is appropriate to permit passenger and commuter operations to receive credit for extended periods of time when equipment is not being used. The provision will permit railroads to extend the dates for conducting periodic mechanical inspections and periodic brake maintenance required by §§ 238.307 and 238.309 for equipment that is out of service for periods of at least 30 days. The final rule will require railroads to maintain records of any out-of-service days on the records related to the periodic attention. FRA does not see a safety concern with permitting this flexibility. In fact, the regulation already provides assurances that the brake systems on all passenger cars and unpowered vehicles are in proper condition after being out of service for 30 days or more by requiring that a single car test pursuant to § 238.311 is performed on the vehicle before being placed back in service. See 49 CFR 238.311(e)(1). VI. Regulatory Impact and Notices Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both E [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A06-8611. Public record. Not legal advice.