Passenger Train Emergency Preparedness

SUMMARY: Pursuant to section 215 of the Federal Railroad Safety

Authorization Act of 1994, FRA proposes a rule to require minimum

Federal safety standards for the preparation, adoption, and

implementation of emergency preparedness plans by railroads connected

with the operation of passenger trains, including freight railroads

hosting the operations of rail passenger service. The proposed rule

also requires each affected railroad to instruct its employees on the

plan's provisions. Elements of this emergency preparedness plan would

include communication, employee training and qualification, joint

operations, tunnel safety, liaison with emergency responders, on-board

emergency equipment, and passenger safety information. The plan adopted

by each affected railroad would be subject to formal review and

approval by FRA.

This proposal for emergency preparedness regulations, which

formalizes a planning requirement and identifies certain mandatory

elements, is the second phase in a four-phase process that began in

1994. In the first phase, FRA encouraged railroads to examine their

programs to determine what improvements could be made, while in the

third phase, FRA will review the railroad plans to determine if all

emergency preparedness issues have been adequately addressed within the

varying contexts of railroad operations. In the fourth phase, FRA will

review the implementation and effectiveness of the proposed standards

and related voluntary developments, and will address the need for

further rulemaking activity.

The proposed rule does not apply to tourist and historic railroad

operators. However, after appropriate consultation with the excursion

railroad associations to determine appropriate applicability in light

of financial, operational, or other factors unique to such operations,

emergency preparedness requirements for these operations may be

prescribed by FRA that are different from those affecting other types

of passenger operations.

DATES: (1) Written comments: Written comments must be received on or

before April 25, 1997. Comments received after that date will be

considered by FRA and the Passenger Train Emergency Preparedness

Working Group in preparing the final rule to the extent possible

without incurring additional expense or delay. The docket will remain

open until the Working Group proceedings are concluded. Requests for

formal extension of the comment period must be made by April 10, 1997.

(2) Public hearings: FRA intends to hold two public hearings, and

the dates of these hearings will be published in a forthcoming notice

in the Federal Register. Anyone who desires to make an oral statement

at either of the hearings must notify the Docket Clerk by telephone

(202-632-3198) or mail, and must submit three copies of the oral

statement that he or she intends to make at the hearing. The dates by

which the Docket Clerk must be notified about the oral statement and

receive the three copies of this statement will be set forth in the

notice announcing the public hearings.

ADDRESSES: Written Comments: Written comments should identify the

docket number and must be submitted in triplicate to the Docket Clerk,

Office of Chief Counsel, Federal Railroad Administration, 400 Seventh

Street, S.W., Washington, D.C. 20590. Persons desiring to be notified

that their comments have been received by FRA should submit a stamped,

self-addressed postcard with their comments. The Docket Clerk will

indicate on the postcard the date on which the comments were received

and will return the card to the addressee. Written comments will be

available for examination, both before and after the closing date for

written comments, during regular business hours on the Seventh floor of

1120 Vermont Avenue, N.W. in Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Mr. Edward R. English, Director,

Office of Safety Assurance and Compliance, FRA, 400 Seventh Street,

S.W., Washington, D.C. 20590 (telephone number: 202-632-3349), or David

H. Kasminoff, Esq., Trial Attorney, Office of Chief Counsel, FRA, 400

Seventh Street, S.W., Washington, D.C. 20590 (telephone: 202-632-3191).

SUPPLEMENTARY INFORMATION:

Request for Comments

In accordance with Executive Order 12866, FRA is allowing 60 days

for comments. FRA believes that a 60-day comment period is necessary

for parties with interests that were not represented by the working

group on passenger train emergency preparedness that has been

established by the agency under 49 U.S.C. 20133.

Background

The overall safety record of conventional intercity and commuter

passenger train operations in the United States has been exemplary.

However, accidents continue to occur, often as a result of factors

beyond the control of the passenger railroad. Further, the rail

passenger operating environment in the United States is rapidly

changing--technology is advancing, equipment is being designed for

ever-higher speeds, and many potential new operators of passenger

equipment are appearing. With this more complex operating environment,

FRA must become more proactive to ensure that operators of passenger

train service, as well as freight railroads hosting passenger

operations, engage in careful, advance planning to minimize the

consequences of emergencies that could occur. Even minor incidents

could easily develop into life-threatening events if they are not

addressed in a timely and effective manner.

In recent years, passenger train accidents, such as the tragic

``Sunset Limited'' passenger train derailment near Mobile, Alabama in

September 1993, have demonstrated the need to improve the way railroads

respond in emergency situations. On September 22, 1993, at about 2:45

a.m., barges that were being pushed by the towboat Mauvilla in dense

fog struck and displaced the Big Bayou Canot railroad bridge near

Mobile, Alabama. At about 2:53 a.m., National Railroad Passenger

Corporation (Amtrak) train no. 2, the Sunset Limited, en route from Los

Angeles, California to Miami, Florida with 220 persons on board, struck

the displaced bridge and derailed. The three locomotive units, the

baggage and dormitory cars, and two of the six passenger cars fell into

the water. The fuel tanks on the locomotive units ruptured, and the

locomotive units and the baggage and dormitory cars caught fire. Forty-

two passengers and five crewmembers were killed, and 103 passengers

were injured. The towboat's four crewmembers were not injured.

In a report on the accident released on September 19, 1994, the

National Transportation Safety Board (NTSB) determined that several

circumstances hampered emergency response efforts. NTSB Railroad-Marine

Accident Report 94/01. In its assessment of emergency

[[Page 8331]]

response at the accident site, the NTSB noted that the location of the

accident was remote (accessible only by rail, water, or air), fog in

the area was dense (requiring the use of radar to navigate boats),

limited modes of transportation were available for bringing in

personnel and equipment, and the magnitude of the accident was great.

Nevertheless, the NTSB concluded that, following the delay while

emergency responders identified the location of the accident, emergency

response activities were efficient and effective. The report did find,

however, that Amtrak did not have an effective system in place to

apprise passengers of train safety features, passengers were at a

disadvantage during evacuation due to the absence of portable lighting

on the passenger cars, and emergency responders were at a disadvantage

because they were unable to obtain an adequate passenger and crew list

from Amtrak until the next day. The NTSB also noted that had the Mobile

County Emergency Management Agency held drills to simulate a train

accident, the incident commander may have known about Amtrak's

procedure for accounting for passengers, and CSX Transportation, Inc.,

the owner of the bridge, may have had the correct telephone number to

contact the U.S. Coast Guard.

Considerable effort has focused on how to mitigate casualties after

a train accident occurs. In this regard, even before the occurrence of

the tragic accident near Mobile, FRA had tasked DOT's Volpe National

Transportation Systems Center (TSC), in Cambridge, Massachusetts, to

perform research and to recommend emergency preparedness guidelines for

passenger train operators. The results were published at the end of

1993 as a publication entitled ``RECOMMENDED EMERGENCY PREPAREDNESS

GUIDELINES FOR PASSENGER TRAINS'' (Volpe Report), which is available to

the public through the National Technical Information Service,

Springfield, VA 22161 (DOT/FRA/ORD-93-24--DOT-VNTSC-FRA-93-23). The

publication references safety recommendations of the NTSB, as well as

many other publications on the subject of emergency preparedness, and

contains recommended guidelines designed to assist passenger train

operating systems and emergency response organization management in

evaluating and modifying or supplementing their emergency response

plans. A copy of the Volpe Report has been placed in the public docket

for this rulemaking.

The Volpe Report recommendations address guidelines relating to

emergency plans, procedures, and training. In addition, guidelines for

passenger train and facility features intended to shorten emergency

response time, improve the effectiveness of evacuating passengers, and

minimize the effects of an emergency are presented. The publication

also lists inter-organizational emergency protocols, which include

those of fire departments, emergency medical services (EMS), police

departments, public utilities, hospitals, and local, State, regional,

and Federal governments.

In an effort to be proactive after the accident near Mobile, FRA

mailed the Volpe Report to all intercity passenger and commuter

railroads, freight railroads, the United Transportation Union, and the

Brotherhood of Locomotive Engineers in March 1994 for their information

and guidance. Concurrent with this mailing, FRA invited the railroads

to attend a roundtable meeting in Washington, D.C., on June 9, 1994, to

discuss the emergency preparedness issues addressed in the publication.

The 23-member roundtable discussion was comprised of representatives

from the following organizations:

Amtrak,

FRA,

Long Island Rail Road (LIRR),

MTA Metro-North Railroad (METRO-NORTH),

Northeast Illinois Regional Commuter Railroad Corporation (METRA),

Peninsula Corridor Joint Powers Board (CALTRAIN),

Port Authority Trans-Hudson Corporation (PATH),

Southern California Regional Rail Authority (METROLINK),

Southeastern Pennsylvania Transportation Authority (SEPTA),

Tri-County Commuter Rail Authority (TRI-RAIL),

TSC, and

Virginia Railway Express (VRE).

During the meeting, FRA agreed to assist the passenger railroads in

establishing improved working relationships with their host freight

railroads. FRA also promised to help the passenger railroads in their

emergency response efforts in larger metropolitan areas by contacting

emergency response agencies and eliciting more cooperation between

them. In addition, FRA stated that it would conduct field visits to

several passenger railroads to study their equipment and their

emergency response and training programs.

At that same meeting, the passenger railroads agreed to provide

stronger supervisory oversight of their emergency response and training

programs, and stated that they would offer additional, structured

``hands-on'' training to their train crews concerning the removal of

emergency windows and passenger evacuation. They also agreed to develop

programs for recurring passenger car inspections, emphasizing checking

of emergency equipment such as windows, tools, and fire extinguishers.

Further, they agreed to improve their methods of apprising passengers

of emergency information, to include seat drops, placards inside each

car, and messages in on-board magazines. While FRA is encouraged that

passenger railroads have already begun to incorporate the

recommendations of the Volpe Report into their own emergency

preparedness plans, more progress by the entire industry is needed.

As a result of concerns raised about the safety of the operation of

rail passenger service, Congress enacted section 215 of the Federal

Railroad Safety Authorization Act of 1994, Public Law No. 103-440, 108

Stat. 4619, 4623-4624 (November 2, 1994), entitled ``Passenger Car

Safety Standards.'' Section 215, as now codified at 49 U.S.C. 20133,

reads as follows:

Sec. 20133. Passenger cars.

(a) MINIMUM STANDARDS.--The Secretary of Transportation shall

prescribe regulations establishing minimum standards for the safety

of cars used by railroad carriers to transport passengers. Before

prescribing such regulations, the Secretary shall consider--

(1) the crashworthiness of the cars;

(2) interior features (including luggage restraints, seat belts,

and exposed surfaces) that may affect passenger safety;

(3) maintenance and inspection of the cars;

(4) emergency response procedures and equipment; and

(5) any operating rules and conditions that directly affect

safety not otherwise governed by regulations.

The Secretary may make applicable some or all of the standards

established under this subsection to cars existing at the time the

regulations are prescribed, as well as to new cars, and the

Secretary shall explain in the rulemaking document the basis for

making such standards applicable to existing cars.

(b) INITIAL AND FINAL REGULATIONS.--(1) The Secretary shall

prescribe initial regulations under subsection (a) within 3 years

after the date of enactment of the Federal Railroad Safety

Authorization Act of 1994. The initial regulations may exempt

equipment used by tourist, historic, scenic, and excursion railroad

carriers to transport passengers.

(2) The Secretary shall prescribe final regulations under

subsection (a) within 5 years after such date of enactment.

(c) PERSONNEL.--The Secretary may establish within the

Department of Transportation 2 additional full-time equivalent

positions beyond the number

[[Page 8332]]

permitted under existing law to assist with the drafting,

prescribing, and implementation of regulations under this section.

(d) CONSULTATION.--In prescribing regulations, issuing orders,

and making amendments under this section, the Secretary may consult

with Amtrak, public authorities operating railroad passenger

service, other railroad carriers transporting passengers,

organizations of passengers, and organizations of employees. A

consultation is not subject to the Federal Advisory Committee Act (5

U.S.C. App.), but minutes of the consultation shall be placed in the

public docket of the regulatory proceeding.

The Secretary of Transportation has delegated these rulemaking

responsibilities to the Federal Railroad Administrator. 49 CFR 1.49(m).

FRA is committed to the maximum feasible use of collaborative

processes in the development of safety regulations. Consistent with the

intent of Congress that FRA consult with the railroad industry, FRA

invited various organizations to participate in a working group

(Working Group) to focus on the issues related to passenger train

emergency preparedness and build the framework for the development of a

Notice of Proposed Rulemaking (NPRM) and, ultimately, a final rule. FRA

held its first Working Group meeting on August 8, 1995. The 33-member

Working Group was comprised of representatives from the following

organizations:

American Public Transit Association (APTA),

Amtrak,

Association of American Railroads (AAR),

Brotherhood of Locomotive Engineers (BLE),

CALTRAIN,

FRA,

LIRR,

Maryland Mass Transit Administration (MARC),

Massachusetts Bay Transportation Authority (MBTA),

METRA,

METRO-NORTH,

METROLINK,

National Association of Railroad Passengers (NARP),

NTSB,

New Jersey Transit Rail Operations, Inc. (NJTR),

Northern Indiana Commuter Transportation District (NICTD),

PATH,

Safe Travel America (STA),

SEPTA,

TRI-RAIL,

TSC,

United Transportation Union (UTU), and

VRE.

Regulations covering rail passenger equipment safety standards--

inspection, testing, and maintenance of passenger equipment; equipment

design and performance criteria related to passenger and crew

survivability in the event of a train accident; and the safe operation

of passenger train service--supplementing existing railroad safety

standards, will be covered by a separate rulemaking and are being

addressed by a separate working group. Persons wishing to receive more

information regarding this other rulemaking should refer to FRA Docket

No. PCSS-1 and contact either Mr. Thomas Peacock, Staff Director,

Motive Power and Equipment Division, Office of Safety Assurance and

Compliance, RRS-14, FRA, 400 Seventh Street, S.W., Washington, D.C.

20590 (telephone 202-632-3338), or Daniel L. Alpert, Esq., Trial

Attorney, Office of Chief Counsel, FRA, 400 Seventh Street, S.W.,

Washington, D.C. 20590 (telephone 202-632-3186).

The proposed rule was developed by FRA in consultation with the

Working Group. The proposal incorporates comments submitted by the

Working Group in response to a preliminary draft of the proposed rule

text. FRA expects that the Working Group will help FRA develop the

final rule based on a consensus process, with facts and analysis

flowing from both the Working Group's deliberations and information

submitted by commenters on this NPRM. In accordance with 49 U.S.C.

20133(d), the evolving positions of the Working Group members--as

reflected in the minutes of the group meetings and associated

documentation, together with data provided by the membership during

their deliberations--will be placed in the public docket of this

rulemaking. All comments submitted in response to this NPRM will be

provided to the Working Group for their consideration in preparation of

the final rule.

FRA convened the first meeting of the Working Group on August 8,

1995, by announcing that the purpose of the meeting was to provide an

opportunity to collectively focus on evaluating issues related to

passenger train emergency preparedness, as well as to develop and

formulate plans and programs that would culminate in a final rule. The

discussion focused on the key issues of emergency notification,

training of railroad employees and emergency responders, suitability of

on-board emergency equipment, and the Volpe Report. While FRA did not

limit the Working Group's discussions, the agency requested that, at a

minimum, the following topics and issues should be considered and

addressed during the consultation process for possible inclusion in the

rule:

Types of safety equipment that should be required in each

passenger car (e.g., fire extinguishers, saws, hammers, and

flashlights) including where the equipment should be located, who

should have access to it, and how to avoid pilferage;

Training for railroad employees on the use of on-board

emergency equipment;

Frequency of inspection of on-board emergency equipment;

Effective marking of emergency windows on each passenger

car;

Informing passengers about safety procedures and emergency

equipment, including locations of exit doors and windows;

Demonstrations by on-board crewmembers of emergency

procedures and exits after major station stops;

Communication capabilities of on-board crewmembers;

Requiring on-board crewmembers to be trained to provide

cardio-pulmonary resuscitation (CPR) and/or first aid treatment;

Ensuring that on-board crewmembers have contact telephone

numbers for control centers and local authorities;

Requiring preparation of an emergency preparedness plan,

including periodic exercises to test employee knowledge of proper

procedures involving passenger illness or injury, stalled trains,

evacuation procedures, derailments, collisions, severe weather, and

security threats;

Coordinating applicable portions of emergency preparedness

plans between passenger railroads and freight railroads that host these

passenger operations;

Extent to which safety action plans should be regulated in

terms of content or format, and whether such plans should be subject to

FRA review and approval;

Training for auxiliary individuals participating in

passenger emergencies (e.g., control center employees, on-board service

staff, and appropriate supervisory and maintenance personnel);

Training for emergency responders along passenger corridor

routes;

Accounting for the unique emergency preparedness concerns

raised by passenger operations through tunnels, on elevated structures,

and in electrified territory;

Level of training specificity required for each category

of employee;

Requiring passenger railroads to develop and update inter-

organizational emergency protocols with local communities, in order to

augment safety action plans;

[[Page 8333]]

Providing emergency responders with accurate passenger

counts; and

Emergency lighting in passenger cars (e.g., floor strip

lighting, flood lighting, and emergency exit lighting), including

standards for testing and reliability.

FRA deliberated at length with members of the Working Group about

what the proposed rule would demand of affected railroads, in order to

achieve the goal of optimizing their level of preparedness when faced

with passenger train emergencies. The consensus was that the final rule

needed to be flexible in its requirements to allow each railroad to

address the unique characteristics of its individual operation. The

Working Group recommended that FRA require each affected railroad to

prepare a formal emergency preparedness plan covering broad elements,

such as: employee and emergency responder training; on-board crewmember

responsibilities; communication between the train crew and the control

center, and between the control center and the emergency responders;

delineation of passenger railroad and freight railroad responsibilities

in cases of joint operations; and operations in tunnels or over

elevated structures. However, the group urged FRA to afford railroads

considerable latitude to design and administer emergency preparedness

plans that best address each railroad's specific safety issues and

concerns, with each plan then subject to review and approval by FRA.

FRA incorporated the Working Group's recommendations into a draft

NPRM, and mailed the draft to the group on December 14, 1995, along

with a copy of the minutes of the first meeting of the Working Group.

Copies of both documents, and other relevant enclosures, have been

placed in the public docket for this rulemaking. The 34-member Working

Group held its second meeting on February 6-7, 1996, and was comprised

of representatives from the same organizations in attendance at the

first Working Group meeting. The Working Group reviewed the draft and

presented its comments, and a copy of the minutes of the second meeting

of the group has also been included in the rulemaking docket. The

Working Group's comments were then incorporated into this NPRM. Through

subsequent communication with the Working Group, additional specificity

has been incorporated into this proposal.

While FRA has focused on crafting a rule containing comprehensive

requirements in connection with railroads adopting, implementing, and

complying with their emergency preparedness plans, many details remain

unresolved concerning the enforcement obligations that FRA will impose

in the final rule. Among the broad range of possibilities, the final

rule could impose a ``reasonable care'' standard and focus on achieving

substantial compliance, with an emphasis on determining whether each

railroad has demonstrated a general effort to fulfill each of the

elements of its emergency preparedness plan. Under this approach, for

example, FRA would verify whether a railroad has established a training

program for its employees on the applicable provisions of the emergency

preparedness plan, and could impose a civil penalty on a railroad for

failing to comply with this basic element of emergency preparedness.

However, if FRA concluded that the railroad had properly adopted a

training program, but during the occurrence of an actual emergency

several employees failed (under the stress of the situation) to fulfill

all of their responsibilities under the emergency preparedness plan,

FRA would not penalize the railroad. Also, if a railroad failed to

designate an employee to maintain a current list of emergency telephone

numbers, for use by control center personnel to notify outside

emergency responders, adjacent rail modes of transportation, and

appropriate railroad officials that a passenger train emergency has

occurred, FRA could clearly penalize the railroad for this omission.

However, if a railroad's plan properly provided for the maintenance of

the list of emergency telephone numbers, but one telephone number on a

long list of accurate numbers was found by FRA to be out of date, and

thus incorrect, the railroad would not face the imposition of a civil

penalty.

As an alternative, FRA could maintain strict oversight by requiring

compliance with every individual element of the emergency preparedness

plan, and impose a civil penalty in every instance in which a railroad

fails to achieve compliance. Accordingly, under this approach, a

railroad could be penalized for failing to constantly update its list

of emergency telephone numbers, neglecting to distribute applicable

portions of its emergency preparedness plan to all on-line emergency

responders, or operating a train with an incorrect type of on-board

emergency equipment. Rather than stress the concept of determining the

overall level of emergency preparedness achieved by a railroad before

the emergency occurs, this enforcement philosophy would specifically

focus on whether the railroad in fact complied with all of the written

emergency plan procedures for implementing each plan element. FRA

invites commenters to address the questions of what compliance

obligations should exist in the final rule, in the context of requiring

railroads to adopt and implement procedures for achieving emergency

preparedness, and what enforcement policy should be exercised by the

agency regarding those obligations. Commenters are also asked to review

the language of the section-by-section analysis and rule text of the

proposed rule and to offer suggestions on whether FRA's expectations

for compliance with the emergency preparedness plan elements are too

rigid, or not strict enough.

In drafting the final rule, FRA also expects to incorporate all

relevant information derived from the investigation of the accident

involving Amtrak train no. 1, the ``Sunset Limited,'' which occurred in

Hyder, Arizona on October 9, 1995. In that accident, the initial

notification was made by the Amtrak locomotive engineer to the Southern

Pacific Transportation Company (SP) train dispatcher's office in

Denver, Colorado, which then notified the appropriate local emergency

response agencies. The SP yardmaster in Phoenix Yard also dialed 911

after hearing the engineer's radio transmissions to the train

dispatcher.

While the local emergency responders stated that the accident was

handled well by all parties involved, the responders noted that they

were hampered in reaching the accident site by extremely rough terrain,

initially negotiable only by four-wheel drive vehicles until graders

and earth movers created a trail for conventional vehicles. The

responders were somewhat confused by being provided with only a

milepost location instead of a more familiar identifier. The responders

were also frustrated by the lack of an accurate passenger count, but

Amtrak has stated that once it has satellite cellular telephone

capabilities train conductors will report passenger counts to a central

telephone number after leaving each station. In addition, the

responders indicated that, although the emergency lighting did not

function on the overturned passenger cars, passengers were able to

disembark through the car doors and emergency windows.

FRA also expects to include requirements in the final rule relating

to emergency egress from passenger trains, based upon information

obtained from the investigations of the two recent train accidents in

New Jersey and Maryland.

[[Page 8334]]

In the first accident, a near-head-on collision occurred on February 9,

1996 between NJTR trains 1254 and 1107 at milepost 2.8, on the

borderline of Secaucus and Jersey City, New Jersey. Of the 331

passengers and crew on both trains, two crewmembers and one passenger

were fatally injured, and an additional 162 passengers reported minor

injuries. In the second accident, a near-head-on collision occurred on

February 16, 1996 between MARC train 286 and Amtrak train 29 on CSX

Transportation, Inc., at Silver Spring, Maryland, milepost 8.3. The

accident resulted in 11 fatalities, consisting of three crewmembers and

eight passengers, and at least 12 non-fatal injuries to passengers of

the MARC train.

While many of the questions raised by the New Jersey and Maryland

train accidents are being addressed by the working group which is

considering regulations covering rail passenger equipment safety

standards, the important issue of emergency egress must be addressed by

this rulemaking. Specifically, the Silver Spring accident raised

serious concerns as to whether MARC passengers had sufficient

information about the location and operation of emergency exits to

enable them to find and use those exits in an emergency or accident.

FRA believes that all commuter and intercity passenger railroads should

review their practices, in addition to marking the exits, for providing

this information. On February 20, 1996, FRA issued Emergency Order No.

20 (Notice No. 1), which required prompt action to immediately enhance

passenger train operating rules and emergency egress and to develop an

interim system safety plan addressing cab car forward and multiple unit

(MU) operations. 61 FR 6876, Feb. 22, 1996. In pertinent part, Notice

No. 1 of the Emergency Order stated:

[T]here is a need to ensure that emergency exits are clearly

marked and in operable condition on all passenger lines, regardless

of the equipment used or train control system. FRA's regulations

generally require that all passenger cars be equipped with at least

four emergency opening windows, which must be designed to permit

rapid and easy removal during a crisis situation. The investigation

of the Silver Spring accident has raised some concerns that at least

some of the occupants of the MARC train attempted unsuccessfully to

exit through the windows. Whether those same people eventually were

among those who exited safely, or whether those persons were

attempting to open windows that were not emergency windows is not

known at this time. However, there is sufficient reason for concern

to require that measures be taken to ensure that such windows are

readily identifiable and operable when they are needed. Accordingly,

the order requires that any emergency windows that are not already

legibly marked as such on the inside and outside be so marked, and

that a representative sample of all such windows be examined to

ensure operability. (FRA Safety Glazing Standards, 49 CFR Part 223,

require that each passenger car have a minimum of four emergency

window exits ``designed to permit rapid and easy removal during a

crisis situation.'')

61 FR 6880, Feb. 22, 1996.

On February 29, 1996, FRA issued Notice No. 2 to Emergency Order

No. 20 to refine three aspects of the original order, including

providing more detailed guidance on the emergency egress sampling

provision. 61 FR 8703, Mar. 5, 1996. In pertinent part, Notice No. 2 of

the Emergency Order stated:

The original order required but did not set parameters for

testing a representative sample of emergency exits. The alteration

to the emergency egress provisions requires that sampling of

emergency window exits be conducted in conformity with either of two

alternate methods commonly recognized for such efforts. This

modification provides a degree of uniformity industry wide. These

methods require sampling meeting a 95 percent confidence level that

all emergency window exits operate properly (i.e., the methods do

not accept a defect rate of 5 percent). Although the original order

would have required testing all exits on a specific series or type

of car if one such car had a defective window exit, the amended

order permits the use of these commonly accepted sampling techniques

to determine how many additional windows in [sic] test. In general,

these principles require that the greater the percentage of windows

initially found defective, the greater the percentage of windows

that will have to be tested.

In addition, FRA has modified the emergency egress portion of

the order to clarify that the exterior marking requirement applies

to those windows that may be employed for access by emergency

responders, which may be windows other than, or in addition to,

those designed for emergency egress for passengers. In addition, FRA

has modified the interim system safety plan portion of the order to

require discussion of the railroad's programs and plans for liaison

with and training of emergency responders with respect to emergency

access to passengers. The original order required discussion only of

methods used to inform passengers of the location and method of

emergency exits.

61 FR 8703, Mar. 5, 1996.

On March 12, 1996, in response to the MARC train accident in Silver

Spring, Maryland on February 16, 1996, the NTSB issued ``Safety

Recommendations'' to both the Maryland Mass Transit Administration (R-

96-4 through R-96-6) and FRA (R-96-7). The NTSB was concerned because

the emergency quick-release mechanisms for the exterior doors on MARC's

Sumitomo rail cars are located in a secured cabinet some distance from

the doors that they control, and the emergency controls for each door

are not readily accessible and identifiable. The NTSB recommends that

emergency quick-release mechanisms for exterior doors on MARC cars be

well marked and relocated, so that they are immediately adjacent to the

door control and readily accessible for emergency escape. The NTSB also

noted that the left and right rear exterior side doors of the first car

and the front interior end door and the right front exterior door of

the second car were jammed, and observed that none of the car doors had

removable windows or pop-out emergency escape panels (kick panels) for

use in an emergency.

In addition, the NTSB stated that several train passengers were

unaware of the locations of emergency exits, and none knew how to

operate them. The NTSB found that the interior emergency window decals

were not prominently displayed and that one car had no interior

emergency window decals. Also, the exterior emergency decals were often

faded or obliterated, and the information on them, when legible,

directed emergency responders to another sign at the end of the car for

instructions on how to open emergency exits. The NTSB recommends that

all emergency exits be clearly identified, with easily understood

operating instructions prominently located on each car's interior for

use by passengers and on the exterior for use by emergency responders.

Based upon its investigation, the NTSB recommends that FRA:

Inspect all commuter rail equipment to determine whether it has:

(1) easily accessible interior emergency quick-release mechanisms

adjacent to exterior passageway doors; (2) removable windows or kick

panels in interior and exterior passageway doors; and (3)

prominently displayed retroreflective signage marking all interior

and exterior emergency exits. If any commuter equipment lacks one or

more or these features, take appropriate emergency measures to

ensure corrective action until these measures are incorporated into

minimum passenger car safety standards. (Class 1, Urgent Action) (R-

96-7)

Safety Recommendation R-96-7 at page 3.

On March 26, 1996, FRA convened a joint meeting of the Passenger

Train Emergency Preparedness Working Group and the Passenger Equipment

Safety Standards Working Group to discuss the NTSB's recommendations

and incorporate the Safety Board's findings, as appropriate, into each

working group's rulemaking proceeding.

[[Page 8335]]

Fifty-seven members from 21 different organizations attended the joint

meeting. Although some of the recommendations involving structural

modifications to rail equipment will be dealt with by the Passenger

Equipment Safety Standards Working Group, the remaining NTSB

recommendations involving marking, inspection, maintenance, and repair

of emergency exits are reflected in proposed Sec. 223.9(d), entitled

``Requirements for new or rebuilt equipment,'' and proposed

Sec. 239.17, entitled ``Emergency exits.'' The Section-by-Section

Analysis contains a detailed discussion of FRA's proposed requirements,

particularly in light of the two recent accidents in New Jersey and

Maryland and the NTSB's safety investigations and recommendations.

In a letter to FRA dated June 24, 1996, Mr. Donald N. Nelson,

President of Metro-North and Chairperson of APTA's Commuter Railroad

Committee, announced that commuter railroads nationwide are

implementing a series of rail passenger safety initiatives building on

the safety provisions of FRA's Emergency Order No. 20 and the NTSB's

Safety Recommendations R-96-4 through R-96-7. In pertinent part, all

commuter rail authorities have committed to early voluntary

implementation of the emergency preparedness requirements proposed in

this NPRM, including requiring inspection and testing of all emergency

window exits as part of routine car maintenance to ensure correct

operation and ease of egress, offering emergency responder training for

every jurisdiction within each commuter railroad's service area, and

educating passengers on the use of emergency exits on commuter trains.

The commuter railroads also indicated that each one will ensure the

safety of its operation by adopting a comprehensive system safety plan

that:

(a) Defines the overall safety effort, how it is to be implemented

and the staff required to maintain it;

(b) Establishes the safety interface within the railroad, as well

as with its key outside agencies;

(c) Clearly indicates Senior Management support for implementing

the safety plan and the railroad's overall commitment to safety;

(d) Establishes the safety philosophy of the organization and

provides the means for implementation;

(e) Defines the authority and responsibilities of the safety

organization and delineates the safety related authority and

responsibilities of other departments; and

(f) Incorporates safety goals and objectives into the overall

corporate strategic plan.

APTA's Commuter Railroad Committee letter at pages 1 and 2.

As part of the ongoing review process within DOT, and subsequent to

the Working Group's previous opportunities to review the proposed rule

text, FRA implemented changes to the draft regulatory text and

preamble. FRA initiated these changes in order to strengthen the rule's

requirements and establish more objective criteria for FRA's review of

each railroad's emergency preparedness plan. In a letter dated December

27, 1996, FRA sent a copy of the revised regulatory text to members of

the Working Group, and requested comments on issues that the members

wished to see included in the preamble section of the proposal. FRA

requested that all comments be submitted to FRA by the close of

business on January 8, 1997.

Development of the Passenger Safety Program

As discussed above, this proposed rule is one element of a

comprehensive effort to address the safety of rail passenger service.

In addition to this rulemaking, FRA is currently addressing related

issues in several contexts. Recent actions addressing passenger safety

needs have included, for instance, Emergency Order No. 20, which

addressed on an interim basis key issues regarding railroad operating

rules, inspection of required emergency window exits, and emergency

exit signage and marking.

In the Passenger Equipment Safety Standards Working Group, FRA is

examining possible requirements for improved emergency egress features

for both retrofit and new construction. Affected railroads have already

completed, or will complete by the end of this calendar year, the

removal of latches requiring special tools for access to manual

releases on powered doors. Separately, FRA is reviewing the totality of

emergency egress requirements and the issue of their overall adequacy,

including the relocation of manual releases to locations immediately

adjacent to end vestibule doors. FRA anticipates that these efforts

will be advanced through a collaborative rulemaking process. However,

if necessary to ensure prompt action, FRA may propose specific

requirements based upon its own staff analysis.

In the context of improving railroad communications, the Railroad

Safety Advisory Committee (RSAC) has established a working group to

specifically address communication facilities and procedures, with a

strong emphasis on passenger train emergency requirements. FRA expects

that that group will report recommendations to the RSAC early in 1997.

FRA anticipates that those recommendations will address the issue of

whether there should be redundant communications capability on all

passenger trains. Although that rulemaking will establish minimum

safety requirements with respect to communications equipment, it should

be noted that intercity and commuter railroads already make extensive

provision for ensuring communication capabilities during emergencies.

FRA plans a four-phase process to address emergency preparedness.

In 1994, FRA distributed the Volpe Report described above and

encouraged railroads to examine their existing programs to determine

what improvements could be made. This rulemaking represents the second

step in this process, formalizing a planning requirement and

identifying certain mandatory elements. The third phase will begin as

FRA reviews railroad plans to determine that the issues presented by

the Volpe Report and the rule have been adequately addressed within the

varying contexts of the commuter authority operations. FRA will conduct

a detailed review of each plan. Following review and formal approval of

written plan submissions, it will also be necessary for FRA to

determine how the program is being implemented in the field. FRA will

also be interested in determining how this effort is being integrated

into the overall system safety planning process that commuter

authorities have agreed to undertake.

FRA is optimistic that this approach will yield positive results,

promoting creativity and cross-fertilization of the emergency

preparedness planning process through FRA, APTA, and other channels.

This give-and-take approach should facilitate standardization of

matters involving interface with passengers, while permitting continued

adaptation of programs to local needs.

The fourth phase would involve FRA's review, after having gained at

least a full year of actual experience under the standards proposed

here, of the implementation and effectiveness of the standards and

related voluntary developments. In this phase of activity, FRA would

work with interested parties to evaluate whether further rulemaking or

other action might be necessary to ensure that, for each program

element, standards and practices are sufficiently precise and stringent

to achieve the desired improvements in emergency

[[Page 8336]]

preparedness. Further, this review will determine whether experience in

working with emergency responders indicates that additional program

elements should be addressed.

Section-by-Section Analysis

FRA proposes to amend Part 223 to Title 49, Code of Federal

Regulations by adding three new definitions and requiring railroads

operating passenger train service to clearly mark emergency windows.

FRA also proposes to add Part 239 to Title 49, Code of Federal

Regulations specifically devoted to prescribing minimum Federal safety

standards concerning the preparation, adoption, and implementation of

emergency preparedness plans by railroads connected with the operation

of passenger trains.

1. Definitions: Section 223.5

Section 223.5 would be reorganized and definitions of three

important terms employed in the proposed passenger train emergency

preparedness regulations would be added. The three new defined terms

are ``emergency responder,'' ``passenger train service,'' and

``railroad.'' For ease of reference, FRA proposes to define the term

``railroad'' so as to include the statutory (49 U.S.C. 20102)

definitions of both ``railroad'' and ``railroad carrier'' and to

clarify that those who provide railroad transportation directly or

through an operating contractor are railroad carriers. Thus, the term

``railroad'' is clearly intended to include commuter authorities. These

terms are intended to have the same meaning as in proposed part 239 of

this chapter.

Of course, the term ``railroad,'' as used by FRA in the context of

regulating passenger train emergency preparedness, is not controlled by

the definitions of ``rail carrier'' and ``railroad'' set forth in 49

U.S.C. 20102 (5) and (6). Likewise, FRA does not intend for its

definition of ``railroad'' to have any bearing on how the term is used

for purposes of the regulatory activities of the Surface Transportation

Board.

2. Requirements for New or Rebuilt Equipment: Section 223.9

In accordance with the requirements of 49 CFR 223.9(c) and

223.15(c), all passenger cars must be equipped with at least four

emergency windows, which must be designed to permit rapid and easy

removal during a crisis situation. Proposed paragraph 223.9(d) requires

that all windows intended by a railroad to be used during an emergency

situation be properly marked inside and outside, and that the railroad

post clear and understandable instructions for their use at the

designated locations.

Paragraph 223.9(d)(1) requires that the emergency windows be

conspicuously and legibly marked on the inside of the car with

luminescent material. FRA realizes that during an emergency the main

power supply to the passenger cars may become inoperative and that

crewmembers with portable flashlights may be unavailable. Since lack of

clear identification or lighting could make it difficult for passengers

to find the emergency exits, the proposed rule requires luminescent

material on all emergency windows to assist and speed passenger egress

from the train during an emergency. The marking of the emergency

windows must be conspicuous enough so that a reasonable person, even

while enduring the stress and panic of an emergency evacuation, can

determine where the closest and most accessible emergency route out of

the car is located. In addition, while this proposed section does not

prescribe a particular brand, type, or color of luminescent paint or

material that a railroad must use to identify a window exit, FRA

expects each railroad to select a material durable enough to withstand

the daily effects of passenger traffic, such as the contact that occurs

as passengers enter and leave the cars.

METROLINK, in noting that the last line of paragraph 223.9(d)

requires ``each railroad [to] post clear and legible operating

instructions at or near such exits,'' stated that it assumes that the

referenced instructions relate to the doors rather than the windows.

Paragraph 223.9(d)(2) requires that the emergency windows intended

for emergency access by emergency responders for extrication of

passengers be marked with retroreflective material. Since FRA

recognizes that not every window will be equipped for emergency access,

railroads are required to choose a retroreflective, unique and easily

recognizable symbol that will readily attract the attention of

emergency responders. The proposed rule does not require a specific

size or shape for the symbol, but FRA expects the railroad's emergency

preparedness plan developed pursuant to Sec. 239.13 of this chapter to

contain a provision detailing emergency responder access (along with

passenger car egress), consistent with the evacuation strategy

formulated jointly by the passenger train operator and the emergency

responder organizations, in accordance with the emergency responder

liaison provision set forth in Sec. 239.13(a)(5) of this chapter. Of

course, while the proposed rule would not require emergency responders

to participate in evacuation planning or strategy with the railroads,

the railroads would be required to offer liaison assistance. FRA is

working to identify an appropriate marking that might be capable of

universal recognition. Although the proposed rule allows a marking that

could consist of a symbol or words (such as ``RESCUE ACCESS''), FRA

reserves the right to be more prescriptive in the final rule based upon

a uniform pattern.

The proposed rule requires railroads to post clear and

understandable instructions at designated locations describing how to

operate the emergency windows. This paragraph does not mandate that

railroads use specific words or phrases to guide the passengers and

emergency responders. Instead, each railroad should evaluate the

operational characteristics of its emergency windows, and select key

words or diagrams that adequately inform the individuals who must use

them. While railroads are encouraged to post comprehensive

instructions, FRA also realizes that during an emergency situation

every additional moment devoted to reading and understanding access or

egress information places lives at risk. In addition, FRA would already

expect passengers and emergency responders to be familiar with the

location and operation of the railroad's emergency windows as a result

of emergency responder liaison activities and passenger awareness

programs conducted in accordance with Secs. 239.13 (a)(5) and (a)(7) of

this chapter.

3. Appendix B to 49 CFR Part 223

FRA plans to revise Appendix B to 49 CFR Part 223--Schedule of

Civil Penalties, to include penalties for violations of the provisions

of Sec. 223.9(d) to be included in the final rule. Because such penalty

schedules are statements of policy, notice and comment are not required

prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless,

commenters are invited to submit suggestions to FRA describing the

types of actions or omissions that would subject a person to the

assessment of a civil penalty. Commenters are also invited to recommend

what penalties may be appropriate, based upon the relative seriousness

of each type of violation.

4. Purpose and Scope: Section 239.1

Section 239.1(a) states that the purpose of this part is to reduce

the magnitude of casualties in railroad operations by ensuring that

railroads involved in passenger train operations can effectively and

efficiently manage emergencies. Subsection (b) states that

[[Page 8337]]

these regulations provide minimum standards for the subjects addressed,

and the affected railroads may adopt more stringent requirements, so

long as they are not inconsistent with this part. FRA does not in any

way intend that the subject matter of 49 CFR Part 239, Passenger Train

Emergency Preparedness, be read to impose burdens or requirements on

emergency responders who either participate with railroads in emergency

simulations involving the operation of passenger train service or

respond to actual emergency situations, or on any other person who may

be involved with the aftermath of a passenger train emergency not

specified in proposed Sec. 239.3 concerning applicability. Accordingly,

FRA does not intend to restrict a State from adopting a law, rule,

regulation, order, or standard affecting emergency responders.

5. Application: Section 239.3

As a general matter, FRA proposes that this rule apply to all

railroads that operate passenger train service on the general railroad

system of transportation, provide commuter or other short-haul

passenger train service in a metropolitan or suburban area, or host the

operations of such passenger train service. A public authority that

indirectly provides passenger train service by contracting out the

actual operation to another railroad or independent contractor would be

regulated by FRA as a railroad under the provisions of the proposed

rule. Although the public authority would ultimately be responsible for

the development and implementation of an emergency preparedness plan

(along with all related recordkeeping requirements), the railroad or

other independent contractor that operates the authority's passenger

train service would be expected to fulfill all of the responsibilities

under this part with respect to emergency preparedness planning,

including implementation.

The proposed rule is structured to apply to intercity and commuter

service, not tourist operations. At a later time, FRA may propose

application of the rule, or some portion thereof, to tourist, scenic,

historic, and excursion railroads. FRA's regulatory authority permits

it to tailor the applicability sections of its various regulations so

as to expand or contract the populations of railroads covered by a

particular set of regulations. FRA has had jurisdiction over all

railroads since the Federal Railroad Safety Act of 1970 was enacted.

In considering the issue of requiring emergency preparedness

planning by tourist and historic railroad operators in the context of

this rulemaking, FRA has not yet had the opportunity to fully consult

with those railroads and their associations to determine appropriate

applicability in light of financial, operational, or other factors that

may be unique to such railroad operations. After appropriate

consultation with the excursion railroad associations takes place,

emergency preparedness requirements for these operations may be

prescribed by FRA that are different from those affecting other types

of passenger train operations. These requirements may be more or less

onerous, or simply different in detail, depending in part on the

information gathered during FRA's consultation process.

The Federal Railroad Safety Authorization Act of 1994 instructed

FRA to examine the unique circumstances of tourist railroads when

establishing safety regulations. The Act, which amended 49 U.S.C.

20103, stated that:

In prescribing regulations that pertain to railroad safety that

affect tourist, historic, scenic, or excursion railroad carriers,

the Secretary of Transportation shall take into consideration any

financial, operational, or other factors that may be unique to such

railroad carriers. The Secretary shall submit a report to Congress

not later than September 30, 1995, on actions taken under this

subsection.

Public Law No. 103-440, Sec. 217, 108 Stat. 4619, 4624 (November 2,

1994). In addition, section 215 of that Act specifically permits FRA to

exempt equipment used by tourist, historic, scenic, and excursion

railroads to transport passengers from the initial regulations that

must be prescribed by November 2, 1997. 49 U.S.C. 20133(b)(1). In its

report to Congress entitled ``Regulatory Actions Affecting Tourist

Railroads,'' FRA responded to the direction in the statutory provision

and also provided additional information related to tourist railroad

safety for consideration of the Congress. FRA will address the

emergency preparedness concerns for these unique types of operations at

a later date in a separate rulemaking proceeding. To facilitate

resolution of this issue, and a significant number of related issues,

the Railroad Safety Advisory Committee (RSAC) has established a Tourist

and Historic Railroads Working Group. As a matter of cost efficiency,

the Working Group may elect to cover emergency preparedness planning

for tourist railroads as part of a package of tourist-specific safety

proposals during a multi-day consultation on several rulemaking

dockets. FRA would then issue a Notice of Proposed Rulemaking

addressing issues in several dockets that pertain to these smaller

passenger operations.

In Sec. 239.3(b)(2), FRA proposes that the requirements of this

part would not apply to the operation of private passenger train cars,

including business or office cars and circus trains. While FRA believes

that a private passenger car operation should be held to the same basic

level of emergency preparedness planning as other passenger train

operations, FRA intends to take into account the financial burden

imposed by requiring private passenger car owners and operators to

conform to the requirements of this part. Private passenger cars are

often hauled by host railroads such as Amtrak and commuter railroads,

and these hosts often impose their own safety requirements on the

operation of the private passenger cars. Pursuant to this part, the

host railroads would already be required to have emergency preparedness

plans in place to protect the safety of their own passengers; the

private car passengers would presumably benefit from these plans even

without the rule directly covering private car owners or operators. In

the case of non-revenue passengers, including employees and guests of

railroads that are transported in business and office cars, as well as

passengers traveling on circus trains, the railroads would provide for

their safety in accordance with existing safety operating procedures

and protocols relating to normal freight train operations.

6. Preemptive Effect: Section 239.5

Section 239.5 informs the public as to FRA's views regarding the

preemptive effect of the proposed rule. While the presence or absence

of such a section does not in itself affect the preemptive effect of

this part, it informs the public concerning the statutory provision

which governs the preemptive effect of these rules. Section 20106 of

title 49 of the United States Code provides that all regulations

prescribed by the Secretary relating to railroad safety preempt any

State law, regulation, or order covering the same subject matter,

except a provision necessary to eliminate or reduce an essentially

local safety hazard that is not incompatible with a Federal law,

regulation, or order and that does not unreasonably burden interstate

commerce. With the exception of a provision directed at an essentially

local safety hazard, 49 U.S.C. 20106 preempts any State regulatory

agency rule covering the same subject matter as these regulations

proposed today.

Of course, the subject matter of these regulations covers only the

preparation,

[[Page 8338]]

adoption, and implementation of emergency preparedness plans for

passenger train operations. Accordingly, States are in no way preempted

from regulating any of the training requirements or other activities of

the non-railroad emergency responders who arrive at the scene of an

emergency after a railroad's emergency preparedness plan has been

activated.

7. Definitions: Section 239.7

This section contains an extensive set of definitions to introduce

the regulations. FRA intends these definitions to clarify the meaning

of important terms as they are used in the text of the proposed rule.

The proposed definitions are carefully worded in an attempt to minimize

the potential for misinterpretation of the rule. Several of the

definitions introduce new concepts which require further discussion.

Although the definition of ``crewmember'' is primarily intended to

cover persons who either perform on-board functions connected with the

movement of a train (e.g., a locomotive engineer, conductor) or provide

on-board service (e.g., an Amtrak food service employee or sleeping car

attendant), a deadheading employee is covered by the definition as

well. Accordingly, such an employee could count as a ``qualified''

employee under Sec. 239.101(a)(2)(iv) for purposes of meeting a

railroad's minimum on-board staffing requirements for its emergency

preparedness plan. However, during a passenger train emergency

situation, off-duty employees would also be expected to assume their

appropriate roles under the railroad's emergency preparedness plan and

assist the passengers. METROLINK indicated that on some trains it has

conductors who perform the function of fare enforcement, and

recommended that FRA exclude these individuals from the definition of

``crewmember.'' METROLINK also requested that FRA exclude contract food

workers from the definition of ``crewmember.''

The term ``control center'' envisions not only the traditional

railroad concept of a train dispatcher's office, but also railroad

offices that are identified as ``control centers'' but only monitor

railroad operations, and modern system operations centers such as those

of CSX Transportation, Inc., in Jacksonville, Florida and the

Burlington Northern Santa Fe Corporation in Ft. Worth, Texas. The term

does not include a location on a railroad with responsibility for the

security of railroad property, personnel, or passengers.

It is very likely that control center personnel are located at

facilities which are remote from the right-of-way. These facilities

should consist of the necessary command, control, and communications

equipment to maintain normal train operations, to control electric

traction, and to maintain communications throughout the passenger train

system. In addition to these functions, the control center should help

coordinate responses to emergencies by using equipment such as radio

communications systems, direct ``hotline'' telephones, wayside power

removal controls, and ventilation controls under the direction of

emergency responders, according to the protocols and procedures of the

emergency preparedness plan.

Typical emergency scenarios encompassed by the term ``emergency''

or ``emergency situation'' involving a significant threat to the safety

or health of one or more persons requiring immediate action may include

one or more of the following: illness or injury; a stalled train in a

tunnel or on a bridge; collision with a person, including suicides;

collision or derailment; fire; collision or derailment with a fire;

collision or derailment with water immersion; severe weather

conditions; natural disasters; and security situations (e.g., bombings,

bomb threats, hijacking, civil disorders, and other acts of terrorism).

The term ``qualified,'' as used in the rule, means employees who

are trained under an applicable emergency preparedness plan's

components and implies no provision or requirement for Federal

certification of persons who perform those functions.

The definition of ``railroad'' is based upon 49 U.S.C. 20102 (1)

and (2), and encompasses any person providing railroad transportation

directly or indirectly, including a commuter rail authority that

provides railroad transportation by contracting out the operation of

the railroad to another person, as well as any form of nonhighway

ground transportation that runs on rails or electromagnetic guideways,

but excludes urban rapid transit not connected to the general system.

The terms explained here are not exhaustive of the definitions that

are proposed for inclusion in Sec. 239.7. This introduction merely

provides a sampling of the most important concepts of the proposed

rule. Many other terms are defined and explained in the section-by-

section analysis when analyzing the actual proposed rule text to which

they apply.

8. Responsibility for Compliance: Section 239.9

Section 239.9 clarifies FRA's position that the requirements

contained in the proposed rules are applicable to any ``person,''

including a contractor, that performs any function required by the

proposed rules. Although all sections of the proposed rule address the

duties of a railroad, FRA intends that any person who performs any

action required by this part on behalf of a railroad is required to

perform that action in the same manner as required of a railroad or be

subject to FRA enforcement action. For example, if an independent

contractor is hired by a railroad to maintain its records of

inspection, maintenance, and repair of emergency window and door exits,

pursuant to proposed Sec. 239.17, the contractor would be required to

perform those duties in the same manner as required by a railroad.

9. Penalties: Section 239.11

Section 239.11 identifies the penalties that FRA may impose upon

any person, including a railroad or an independent contractor providing

goods or services to a railroad, that violates any requirement of this

part. These penalties are authorized by 49 U.S.C. 21301, 21304, and

21311, formerly contained in Sec. 209 of the Federal Railroad Safety

Act of 1970 (Safety Act) (49 U.S.C. 20101-20117, 20131, 20133-20141,

20143, 21301, 21302, 21304, 21311, 24902, and 24905, and Secs. 4(b)(1),

(i), and (t) of Public Law 103-272, formerly codified at 45 U.S.C. 421,

431 et seq.). The penalty provision parallels penalty provisions

included in numerous other regulations issued by FRA under authority of

the provisions of law formerly contained in the Safety Act.

Essentially, any person who violates any requirement of this part or

causes the violation of any such requirement will be subject to a civil

penalty of at least $500 and not more than $10,000 per violation. Civil

penalties may be assessed against individuals only for willful

violations, and where a grossly negligent violation or a pattern of

repeated violations creates an imminent hazard of death or injury to

persons, or causes death or injury, a penalty not to exceed $20,000 per

violation may be assessed. In addition, each day a violation continues

will constitute a separate offense. Finally, a person may be subject to

criminal penalties for knowingly and willfully falsifying reports

required by these regulations. FRA believes that the inclusion of

penalty provisions for failure to comply with the regulations is

important in

[[Page 8339]]

ensuring that compliance is achieved not only in terms of developing

and implementing emergency preparedness plans, but also to better

determine if railroads are planning ahead to minimize the consequences

of emergencies that could occur.

The final rule will include a schedule of civil penalties in an

Appendix A to 49 CFR Part 239, to be used in connection with this part.

Because such penalty schedules are statements of policy, notice and

comment are not required prior to their issuance. See 5 U.S.C.

553(b)(3)(A). Nevertheless, commenters are invited to submit

suggestions to FRA describing the types of actions or omissions under

each regulatory section that would subject a person to the assessment

of a civil penalty. Commenters are also invited to recommend what

penalties may be appropriate, based upon the relative seriousness of

each type of violation.

10. Emergency Preparedness Plan: Section 239.101

In drafting the proposed rule, FRA recognized that the operations

of each individual passenger train system must be considered in the

development and implementation of effective emergency preparedness

programs. Factors which should be considered include system sizes and

route locations, types of passenger cars and motive power units, types

of right-of-way structures and wayside facilities, and numbers of

passengers carried, as well as internal railroad organizations and

outside emergency response resources. Under the proposed rule, each

railroad subject to the regulation is required to establish an

emergency preparedness plan designed to safely manage emergencies and

minimize subsequent trauma and injury to passengers and on-board

railroad personnel. The plan must reflect the railroad's policies,

plans, and readiness procedures for addressing emergencies. The

railroad is expected to employ its best efforts, under the

circumstances of the emergency situation, to execute the provisions of

its plan.

In their development of emergency preparedness plans, FRA

encourages railroads to integrate, as practicable, the recommended

guidelines contained in the Volpe Report. The report provides a

comprehensive degree of specificity. While the proposed rule does not

require the special level of detail reflected in the Volpe Report, FRA

advocates that railroads voluntarily incorporate such elements and

items as appropriate into the development of their own emergency

preparedness plans, and exclude recommendations only after judicious

consideration.

While FRA stresses that each railroad should retain latitude in

developing an emergency preparedness plan appropriate for its

operations, the plan must provide a comprehensive overview, make clear

and positive statements to railroad employees, and contain

implementation details concerning the roles, responsibilities, and

expectations for employee participation. The plan does not have to be

one single document with every section applying to every railroad

employee and location; instead, the plan may consist of multiple

documents, with a separate section of the plan detailing the specific

responsibilities for each job category or function. In instances where

a freight railroad hosts the operations of a passenger railroad, both

railroads would have to address issues of emergency preparedness.

However, the rule would require the hosting freight railroad to develop

only the applicable portions of an emergency preparedness plan uniquely

dealing with the passenger operations not otherwise addressed.

The majority of passenger train operational difficulties are

handled effectively and do not become emergencies. Since in many

instances a train crew can immediately take action to resolve a problem

and potential emergency without evacuating the train, existing

emergency preparedness policies de-emphasize immediate evacuation from

trains located between stations unless passengers and crews are in

immediate danger. Accordingly, in most situations, after notifying the

control center that a problem exists and receiving permission, the

train crew will move the train to the nearest station or safe location

(e.g., outside a tunnel) before taking further action. If the train

crew is unable to resolve the situation, railroad personnel or outside

emergency responders may be sent to the emergency scene to provide

mechanical aid, alternate transportation, or medical assistance.

The effectiveness of a railroad's overall response under its

emergency preparedness plan will be greatly influenced by the type of

emergency with which the train crew is presented (e.g., injury or

illness, stalled train, suicide or accidental collision with a person,

derailment or collision, smoke or fire, severe weather conditions or

natural disasters, and vandalism or sabotage). The response will also

be affected by the characteristics and type of train involved and the

functional status of electrical and mechanical systems, including

lighting, ventilation, and public address systems. In addition, the

operational environment (e.g., a train is located in a tunnel, on an

elevated structure, or in electrified territory), and the type of

right-of-way structure or wayside facility must be addressed, as

appropriate, in each railroad's emergency preparedness plan.

The emergency preparedness plan should establish a chain of command

which assigns functions and responsibilities to appropriate passenger

railroad operating personnel, while recognizing the authority and

responsibilities of emergency responders. Coordination is important to

the ability of all parties to respond appropriately to an emergency,

regardless of its size and location. Documentation, including

applicable portions of the emergency preparedness plan, protocols, and

procedures within rulebooks, manuals, and guidelines for control center

employees and on-board personnel, provides the basic framework for

coordination between all internal parties responding to an emergency.

This internal documentation should address at least the following

issues:

Delineation of functions and responsibilities during

emergencies for passenger railroad operating personnel, including

control center personnel;

Telephone numbers of railroad personnel and emergency

responders who need to be notified;

Criteria for determining whether an emergency exists and

requires assistance from emergency responders;

Procedures for determining the specific type, location,

and severity of the emergency, and thus which response is appropriate;

Procedures for notifying emergency responders; and

Procedures and decision-making criteria for transferring

incident responsibility from the passenger railroad operator to

emergency responders.

Section 239.101 sets forth the general requirement that railroads

shall develop and comply with their own emergency preparedness plans

and written procedures to implement their own plans for addressing

issues of emergency preparedness, that meet Federal minimum standards.

Paragraph 239.101(a) requires all railroads affected by this proposed

part to develop and implement written procedures to fulfill each

applicable element of this section. Depending on the nature of a

railroad's operations, as well as on whether its operations involve a

host freight railroad, different elements of this proposed section may

be fulfilled by more than one entity. While FRA requires all elements

of this section to

[[Page 8340]]

be addressed for each passenger train operation, the rule does not

mandate that every element be addressed in each affected entity's

emergency preparedness plan. Accordingly, if a passenger train service

operator relies on its freight railroad host to notify outside

emergency responders after an emergency occurs, FRA would permit the

freight railroad's emergency preparedness plan to address this element.

Provided that both entities properly coordinate their emergency

preparedness plans (and include cross-reference citations to each

other's plan), the passenger train service operator's plan could omit

this item and still be in compliance with the proposed rule.

The proposed rule would not require that the public authority and

the operating railroad or independent contractor each file a separate

emergency preparedness plan with FRA if the operating railroad or

independent contractor is the only party performing a function under

the regulation. However, each party's responsibility for compliance

with this part must be clearly spelled out in the emergency

preparedness plan or plans that are filed with FRA for approval

covering the entire passenger train service operation. After approval

of the plan or plans, FRA may hold the public authority or the other

entity or both responsible for compliance with this part.

FRA proposes to establish the parameters for such a plan and defer

to the expertise of each individual railroad to adopt a suitable

emergency preparedness plan for its railroad, in accordance with these

parameters. As noted previously in the preamble to this proposed rule,

the emergency preparedness plan may consist of multiple documents, with

a separate document detailing the responsibilities of each category of

employee under the railroad's plan. Each railroad is also encouraged to

review the suggestions provided in the Volpe Report before developing

an emergency preparedness plan in accordance with the requirements set

forth in this section. In developing the plan, railroads are reminded

that the goal of the proposed rule is to maximize the safety of

passengers, railroad personnel, emergency response personnel, property,

and the general public which come in contact with the railroad by

providing for immediate notification of outside law enforcement

officials and emergency responders. Railroads should not instruct their

on-board employees to substitute as professional emergency responders

and delay notification of appropriate railroad and outside officials.

Paragraph 239.101(a)(1) sets forth the requirement that the

passenger train crewmembers must communicate immediately and

effectively with each other, as well as with the control center and the

passengers. Typically, in an emergency situation the proposed rule

requires an on-board train crewmember to immediately contact the

control center via a dependable on-board radio or an alternate means of

communication (e.g., wayside railroad telephone, public telephone,

private residence telephone, or cellular telephone) to advise

appropriate railroad officials of the nature of the emergency and the

type of assistance required. After this initial notification to the

control center occurs, the passengers must be informed of the emergency

and provided directions. As appropriate, all passengers should be

accounted for (particularly in sleeping compartments) so as to expedite

evacuation, if necessary, and to avoid needless effort to search for

``missing'' persons.

METROLINK stated that the train crewmember should notify the

passengers after consultation with the control center and the control

center officer, unless the train must be evacuated immediately. Also,

the LIRR recommended that FRA revise paragraph 239.101(a)(1) in the

final rule to require an on-board crewmember to remove all occupants of

the train from imminent danger as a first step after he or she quickly

and accurately assesses the passenger train emergency situation. FRA

recognizes that each emergency situation is unique, and may require

rapid decisionmaking by on-board crewmembers on how best to ensure the

safety of the passengers. Moreover, it is FRA's expectation that

railroads will properly train their employees to perform the requisite

life-saving functions after an emergency (e.g., relocation of

passengers from a smoke-filled car to a safer section of the train or

evacuation of the passengers from a derailed car), in conjunction with

their responsibilities to assess the nature of the emergency and notify

the control center as soon as practicable thereafter. Accordingly,

while FRA may conclude in the course of investigating a specific train

incident or accident that a particular employee's egregious mishandling

of an emergency situation warrants individual enforcement action and/or

enforcement action against the railroad, we are reluctant to strictly

impose the precise order or manner in which on-board crewmembers must

execute their individual responsibilities under the railroad's

emergency preparedness plan. However, in the course of drafting the

final rule text, FRA may elect to incorporate recommended practices as

specific directives to railroads concerning how they must respond to

the various types of emergency situations most likely to occur during

passenger operations, such as on-board fires, downed electrical power

sources, or passenger injuries from a derailment.

Although the proposed rule does not require a railroad to use a

specific means of communication, FRA expects the railroad to select a

method that is effective and capable of reaching pertinent railroad

control centers and on-board locations in order to comply with the

notification requirement of this subsection. FRA further expects that

railroads will voluntarily build redundancy into their emergency

preparedness plans by outfitting their crewmembers with an immediately

available backup means of communication, in the event that primary

communications systems are either damaged during the emergency or

otherwise rendered inoperative. For example, a cellular telephone could

be made available for use by on-board crewmembers to contact the

control center in the event the locomotive radio is inoperative. Also,

on-board crewmembers could still maintain proper communication with the

passengers, in the event that regular or emergency power was

unavailable to operate the train's public address system, by using

portable megaphones. Commenters are asked to discuss whether the final

rule should expand the subsection's language requiring notification to

mandate a specific primary means of communication, and/or whether the

final rule should also require each affected railroad to equip its

passenger trains with a secondary means of communication in the event

that the primary means is unavailable. This issue may be resolved in

this proceeding or in the context of the forthcoming revision of the

Radio Standards and Procedures in 49 CFR Part 220. That rulemaking was

tasked to the RSAC on April 1, 1996.

It is FRA's understanding that many railroads publish an emergency

toll-free telephone number in the employee timetable which connects

with the control center office. Amtrak also has a nationwide toll-free

telephone number which connects the caller to the national Amtrak

police desk in Washington, DC, which is manned around the clock. The

rule does not require that notification to either the control center or

the train passengers occur within a precisely measured number of

minutes, rather it uses the

[[Page 8341]]

words ``as soon as practicable'' in order to give railroads maximum

flexibility. FRA expects that in the totality of the circumstances of

the emergency situation, the train crewmembers will exercise their best

judgment using the railroad's own emergency preparedness plan

procedures.

Under current practice, Amtrak's notification of the emergency

responders will vary slightly depending on whether or not the passenger

train emergency occurs in Amtrak-dispatched territory. In territory

where trains are dispatched by Amtrak, either the control center will

directly notify the emergency responder or the control center will

notify Amtrak police, who will then, as appropriate, notify pertinent

emergency responders, state and federal agencies, and Amtrak

supervisors. In territory where trains are not dispatched by Amtrak,

the host railroad control center will directly notify the appropriate

emergency responders, government agencies, and host railroad

supervisors. Which emergency responders and agencies are notified

depends on the nature of the emergency. Most control centers have

emergency telephone numbers already in their computer systems, usually

listed alphabetically by city, with hard copy backups.

FRA is aware that each railroad's operations are somewhat unique,

and that the appropriate persons and organizations who must be notified

will vary based upon the railroad's individual operating

characteristics and the actual type of emergency that occurs.

Accordingly, paragraph 239.101(a)(1)(ii) does not specify emergency

responder organizations (e.g., fire departments, helicopter rescue

groups) or job titles or duties of appropriate railroad officials whom

the control center must contact. The subsection also does not specify

which control center employees may be designated by the railroad to

maintain the list of emergency telephone numbers; METROLINK recommended

that FRA require that the railroad designate an employee function or

position to be responsible for maintaining current emergency telephone

numbers, rather than a particular employee. In addition, the term

``adjacent'' is not defined (e.g., a distance measurement from the

passenger train experiencing the emergency to adjacent rail modes) for

purposes of determining which other rail modes must be notified.

Instead, consistent with the Working Group's recommendation that the

proposed rule should provide each affected railroad with flexibility to

implement the rule's provisions, this subsection requires that the

emergency preparedness plan state how the railroad will achieve the

appropriate notifications.

Paragraph 239.101(a)(2) requires that the emergency preparedness

plan provide for initial and periodic training at least once every two

years of all railroad employees who have responsibilities under the

plan, and that the training address the role of each affected employee.

Adequate training is integral to any safety program. This subsection

recognizes that the successful implementation of an emergency

preparedness plan depends upon the knowledge of the on-board and

control center personnel about the system route characteristics,

passenger cars and motive power units, and emergency plans, protocols,

procedures, and on-board emergency equipment. An employee who has not

been trained to react properly during an emergency situation may

present a significant risk to railroad personnel and passengers.

Employees must receive ``hands-on'' instruction concerning the

location, function, and operation of on-board emergency equipment,

stressing the following:

Opening emergency window, roof, and door exits, with an

emphasis on operating them during adverse conditions such as when a

rail car is overturned;

Use of emergency tools and fire extinguishers;

Use of portable lighting when the main power source is

unavailable on a passenger train; and

Use of megaphones and public address systems (if they are

provided by the railroad for communication purposes).

The proposed rule affords the passenger railroad operator a time

period of up to two years to provide each session of ``periodic''

training after the operator provides initial training in the emergency

preparedness plan's provisions to its employees. The periodic training

requirement is intended to inform railroad personnel of changes in

procedures and equipment and ensure that their skills remain at a level

that enables them to effectively execute their responsibilities under

the emergency preparedness plan. In addition, the recurrent training

will reinforce segments of the emergency preparedness plan for

individuals who have not performed properly.

FRA concludes that the unique operating characteristics of all the

different railroads subject to the proposed rule, as well as the

financial costs involved with providing training, would make it

impractical to include a calendar year or other more restrictive or

specific requirement for periodic training in the proposed rule.

Moreover, assuming that FRA elects to specify in the final rule that

the upper limit of the term ``periodic'' will remain at two years,

anytime the provisions of an emergency preparedness plan are invoked

during an actual emergency, we would count that event toward the

training requirement for those affected employees.

FRA is interested in receiving comments from railroads on the costs

of implementing the on-board personnel training requirements of the

proposed rule. Specifically, FRA wants to determine the extent of the

current training that railroads already provide to their on-board

employees (including emergency preparedness training) as part of

regular operating rules training programs. Comments are requested

concerning the estimated dollar amount of the incremental additional

costs connected with modifying existing training programs to comply

with this proposal. FRA is interested in ascertaining whether the

proposed training requirements will add merely de minimis costs to each

railroad's existing training program or if compliance would entail

moderate or significant additional costs.

As discussed in the analysis of proposed Sec. 239.103, FRA expects

railroads operating passenger train service to conduct emergency

simulations to evaluate their overall emergency response capabilities

and ensure that emergency preparedness plans, procedures, and equipment

address the particular needs of various types of passengers. Emergency

simulations can help railroads achieve theses goals through careful

selection of the time and location of the simulation and participation

by personnel from the railroads, outside emergency responder

organizations, and ``volunteer passengers''. In addition to classroom

training, simulations provide employees with a practical and realistic

understanding of rules, procedures, trains, and right-of-way

structures/wayside facilities as they relate to emergency response. FRA

expects that the employee training provided in accordance with

paragraph 239.101(a)(2) will include instruction on the importance of

emergency simulations in achieving successful implementation of the

emergency preparedness plan.

The proposed rule does not require on-board personnel to receive

training in first aid or in CPR. Although FRA initially considered

including these items as training requirements in the

[[Page 8342]]

proposed rule, or at least mandating that railroads offer employees the

opportunity to receive this training, the consensus of the Working

Group was that both first aid and CPR training should be excluded from

the rule. The Working Group stressed that the goal of the proposed rule

is to ensure that emergency responders arrive promptly at the scene of

an emergency, not to train on-board personnel to act as emergency

responders. The Working Group also stated that even if FRA requires a

railroad to offer first aid and CPR training, no railroad can literally

force an on-board crewmember to assist an ailing passenger. Further,

trains with heavier passenger loadings are likely to have on board one

or more medical professionals whose skills will be more extensive, and

better practiced, than those of a crewmember whose primary and

recurring duties do not include medical emergencies.

During the Working Group meeting on February 7, 1996, Amtrak stated

that it is spending between $2.5 to $3 million by fiscal year 1998 to

train the chiefs of on-board service and to provide for at least one

employee on every train being trained to administer first aid and

perform CPR. Under the Amtrak plan, employees will not be required to

use this training, merely to receive it. Despite the extent of Amtrak's

commitment to voluntarily providing extensive first aid and CPR

training, Amtrak did not want these items required in the final rule.

Another member of the Working Group, Metrolink, stated that it has

served approximately eight million passengers in three years of

operation, and has never had a passenger require CPR. Metrolink also

noted that commuter railroads generally operate in populated areas,

with professional emergency responders in most cases only minutes away.

The LIRR stated that it offers CPR training to newly hired employees

and shows a refresher film to employees every five years, but

acknowledged that it cannot force employees to administer CPR. The

railroad also noted that it would never want the engineer to leave the

controls of the locomotive during an emergency. NJTR indicated that its

train crews already have many duties to perform during an emergency and

that first aid and CPR should be performed by emergency medical

services personnel.

FRA invites commenters to submit their views on whether the final

rule should include the issues of first aid and CPR training. If FRA

does decide to address these issues, one option would be to mandate

that railroads offer their employees first aid and CPR training,

without requiring employees to actually use this training during an

emergency. Under this scenario, a railroad employee who offered no

assistance during an emergency, because he or she feared coming into

contact with an injured or ill passenger's bodily fluids, would not

violate these regulations. (The experience of the American Red Cross is

that volunteers who receive first aid and CPR training, and appropriate

equipment, are motivated to provide needed assistance when the time

comes.) The second option would be not only to require railroads to

train their employees in first aid and CPR, but also to mandate that

employees use this training during an emergency.

The proposed rule also does not require railroads to record the

number of passengers riding on their trains at any given time or to

record how many people get on and off at each train stop. Although lack

of an exact passenger manifest may delay emergency responders in

determining when every passenger has been removed from a derailed or

disabled train, the frequency with which many passenger trains pick up

and discharge passengers would create logistical difficulties for a

train operator. A train crew can usually provide a good estimate to

emergency responders, so that they can respond with the necessary

personnel and equipment. Moreover, it is doubtful that emergency

responders would simply trust an exact passenger count provided by a

train crew and cease looking for additional survivors of an emergency.

Commenters are invited to offer proposals for training on-board

crewmembers to track the exact number of passengers present on a train

at any given moment, and to include suggestions on cost-efficient

technology for achieving this goal.

The proposed rule also requires appropriate training of control

center personnel who affect the implementation of a railroad's

emergency response plan. FRA expects the railroad to provide training

only for the requisite control center employees designated under the

plan to convey the nature and extent of a passenger train's emergency

to the emergency responder organizations. Accordingly, FRA does not

wish to require training of other control center employees who perform

merely incidental functions, e.g., a clerical or other office employee

who receives a telephone call from a stalled train.

The term ``accurately measure'' is used in proposed paragraph

239.101(a)(2)(iii) relative to employee qualification in a broad sense

to mean that the employee being tested will show to the railroad

sufficient understanding of the emergency preparedness plan subject

area for which he or she is responsible, and that the employee can

perform the duties required under the plan in a safe and effective

manner. Proficiency must be demonstrated by successful completion of a

written examination, but in addition may be illustrated by an

interactive training program using a computer, a practical

demonstration of understanding and ability, or an appropriate

combination of these in accordance with this section.

This section permits railroads discretion to design the tests that

will be employed (which for most railroads will entail some

modification of their existing ``book of rules'' examination to include

new subject areas), provided that the design addresses all relevant

elements of the emergency preparedness plan. This section does not

specify things like the number of questions to be asked or the passing

score to be obtained. It does, however, contain the requirement that

the test not be conducted with open reference books unless use of such

materials is part of a test objective. This section also requires that

the test be in writing. In deciding to require a written test, FRA was

aware that the test taking skills of some individuals may be deficient

and that some persons may have literacy problems. However, FRA believes

that minimum reading and comprehension skills are needed to assure

proper execution of an emergency preparedness plan.

Paragraph 239.101(a)(2)(iv) requires that at least one on-board

crewmember be qualified under the applicable provisions of the

railroad's emergency preparedness plan. For example, a commuter

railroad operates with a three-person crew fully trained under the

applicable provisions of the railroad's emergency preparedness plan,

but includes an engineer trainee in the locomotive cab who is not

qualified under the plan's provisions. Since the train already has a

fully trained and qualified crew operating the train, the commuter

railroad is in full compliance with the proposed rule even though one

on-board crewmember is not qualified under the emergency preparedness

plan. This paragraph may also apply if, for example, a fully-trained

passenger train crew turns over the operation of its train to a freight

railroad train crew that is not qualified under the passenger

railroad's emergency preparedness plan. Provided that the passenger

train is operated by the freight crew with at least one on-board

crewmember of the passenger train present who is qualified under the

[[Page 8343]]

passenger railroad's emergency preparedness plan, there would be no

violation of the proposed rule. Although the proposed rule requires

only one qualified crewmember, FRA anticipates that railroads will

voluntarily elect to train most, if not all, on-board crewmembers in

emergency response procedures.

Paragraph 239.101(a)(3) contains the requirement that freight

railroads must prepare emergency preparedness plans addressing

instances when they host the operations of rail passenger service over

their lines. Even though freight railroads may neither provide nor

operate rail passenger service themselves, and therefore not be subject

to most requirements of the proposed rule, these railroads still have

certain significant emergency preparedness responsibilities. The

emergency preparedness plans for freight railroads must, at a minimum,

include procedures for making emergency responder notifications, and

discuss their general capabilities for rendering assistance to the

involved passenger railroads during emergency situations. The hosting

freight railroads must address any physical and operating

characteristics of their rail lines that may affect the safety of these

rail passenger operations, e.g., evacuating passengers from a train

stalled in a tunnel or on an elevated structure.

FRA expects a railroad that operates rail passenger service over

the line of a freight railroad to review all of the requirements

imposed by the proposed rule with the host railroad, and coordinate

their respective roles in implementing a coherent response to an

emergency situation. While FRA presumes that the freight railroad will

bear primary responsibility for ensuring the emergency preparedness of

any railroad permitted to operate intercity passenger or commuter

trains over its line, the proposed rule does not restrict the host

railroad and the operating railroad from assigning responsibility for

compliance with this part via a private contractual arrangement. FRA

included the coordination requirement to ensure that all railroads

involved in a particular rail passenger service operation understand

each other's crucial role in planning for emergency preparedness.

Paragraph 239.101(a)(4)(i) addresses FRA's expectations for

compliance with this part from railroads with operations that include

tunnels of considerable length, where immediate passenger egress is not

feasible. In order to limit the number of structures covered by this

proposed paragraph to the longer ones that could be expected to present

more impediments to the safe and orderly withdrawal of passengers from

a disabled train, tunnels of less than 1,000 feet are excluded. This

limitation is reasonable, considering that intercity passenger trains

seldom consist of less than four cars and often have many more cars

than this, implying a minimum total train length of 400 or more feet.

Most likely, a train of this or greater length will have either the

head or rear end close to or outside of a tunnel portal should an

unplanned stop occur in a tunnel less than 1,000 feet long.

Over the years, passenger train emergencies have occurred in

tunnels where existing emergency procedures and tunnel characteristics,

such as lighting and communication capabilities, were determined to be

inadequate. In order to better evaluate tunnel safety issues related to

emergency preparedness, FRA requested additional information from the

railroad industry. The results were summarized in a report entitled

``Tunnel Safety Analysis'' (Tunnel Report), which was published by FRA

in February 1990. A copy of the report was also made available to the

rail passenger railroads for their information and guidance, and has

been placed in the docket for this rulemaking. FRA encourages all

railroads required to address tunnel safety in their emergency

preparedness plans to consult the Tunnel Report for guidance. FRA is

also aware that many State and local jurisdictions already impose site-

specific regulations to address tunnel safety, and that most railroads

with operations involving tunnels have long-standing internal emergency

tunnel procedures.

Paragraph 239.101(a)(4)(ii) proposes that railroads operating on

elevated structures, over drawbridges, and in electrified territory,

incorporate emergency preparedness procedures into their plans to

address these unique physical characteristics. For example, in an

emergency in electrified territory, the control center should be

responsible for issuing instructions to deenergize the electrical

power. Also, the train crew and emergency responders should know how,

when, and when not to remove on-board power from the train, including

traction power, train-lined (head-end) power to individual cars, and

battery source power.

Paragraph 239.101(a)(4)(iii) recognizes that the emergency

preparedness plans of certain freight and passenger railroads will need

to address the unique safety concerns posed by adjacent rail modes of

transportation. For example, employees of a freight railroad to which

this part applies, who have knowledge of or observe an emergency in a

common corridor, e.g., fire, derailment, or intrusion by rapid transit

rail equipment or vehicles, must be required by the plan to immediately

notify the control center with details. The control center must attempt

to determine the exact location of the incident, any condition that

would affect safe passage by affected trains or road vehicles, and

whether hazardous materials are involved, and then initiate appropriate

responsive action.

Many emergencies require response from outside emergency responder

organizations in addition to the railroad. Proper coordination of roles

between all of the organizations that may respond to an emergency is

essential to ensure timely and effective response, since the number of

passengers carried and the railroad operating environment may be quite

different according to the type of service and routes. Paragraph

229.101(a)(5) recognizes that the successful implementation of any

emergency preparedness plan depends upon the affected railroads

maintaining current working relationships with the emergency responder

organizations, so that each party can learn of the full preparedness

capabilities that the other can offer during an emergency. In this

regard, each railroad's emergency preparedness plan must provide for

distribution to emergency responders of railroad equipment diagrams and

manuals, right-of-way maps, information on physical characteristics

such as tunnels, bridges, and electrified territory, and other related

materials. In order to continually reinforce the familiarization of the

emergency responder organizations with the railroads' protocols,

procedures, operations, and equipment, the proposed rule requires

railroads to periodically distribute applicable portions of the plan to

emergency responders at least once every three years, even if no

changes have been implemented. Further, since the knowledge and ability

to carry out procedures and use emergency equipment are essential to

the success of emergency response actions, the proposal requires the

railroads to promptly notify emergency responders whenever material

alterations to the plan occur (e.g., revisions to emergency exit

information, pertinent changes in system route characteristics or

railroad equipment operated on the system, or updates to names and

telephone numbers of relevant contact officials on the railroad).

FRA wants to ensure that the emergency responders will receive the

maximum amount of available

[[Page 8344]]

information about a railroad's operations in advance of an emergency,

and hopes that emergency responders will voluntarily study the material

distributed and participate in emergency simulations. However, the

proposed rule would only require that affected railroads make the

operations information available to emergency responders, and that the

responders merely be invited to participate in emergency simulations.

FRA has no authority to penalize an emergency responder organization if

it chooses to ignore the distributed information or refuses to attend

simulations with the railroad. Likewise, the proposed rule would not

hold a railroad accountable for an emergency responder organization's

unwillingness to enter into a liaison relationship, provided that the

railroad made the liaison opportunities known and available to the

responders.

In its comments on the revised regulatory text, METROLINK

questioned the meaning in paragraph 239.101(a)(5)(ii) of the phrase

``maintaining an awareness of each emergency responders' capability.''

METROLINK noted that its operations include 33 different fire

districts, over 50 ambulance companies, and 45 police agencies, and

contended that maintaining this type of awareness is not a railroad

function. METROLINK also stressed that the proposed rule does not

require emergency responders to notify each affected railroad when

their capabilities change, and stated that it is the responsibility of

the emergency responders to establish mutual aid with other local

agencies when emergency situations exceed their capabilities. In

addition, METROLINK indicated that it lacks the technical capacity to

know or understand when a significant change may occur in an emergency

responder's response capability.

FRA is aware of the great number of jurisdictions that intercity

trains operate through, and that it is neither simple nor inexpensive

for passenger train operators to provide material and familiarization

to every outside emergency response organization within all individual

communities along each route. Some commuter train operators have

developed booklets and videotapes to illustrate equipment and describe

entry and evacuation procedures for its trains and certain right-of-way

facilities. However, Amtrak stated at the Working Group meetings that

because it operates through thousands of jurisdictions with thousands

of potential emergency responder organizations located throughout the

United States, it would have difficulty complying with this paragraph.

While FRA considers the establishment of liaison relationships

between railroads involved with rail passenger operations and emergency

responders crucial to achieving the goals of the proposed rule, the

agency is also fully aware of the unique circumstances of Amtrak's

operations. Commenters are invited to suggest either how Amtrak can

best comply with the emergency responder liaison requirement as set

forth in the proposed rule, or whether the final rule should establish

a different standard for railroads that operate in territories with

large numbers of potential emergency responders to contact. Any

commenter proposing two or more sets of standards should also suggest

what numerical or mileage criteria should be used to distinguish the

railroads, and state how these differing standards would still ensure

adequate levels of safety and emergency preparedness.

Paragraph 239.101(a)(6) states that each railroad's emergency

preparedness plan shall indicate the types of on-board emergency

equipment and the location on each passenger car. Although the proposed

rule requires a minimum of only one fire extinguisher and one pry bar

per passenger car, and one flashlight per on-board crewmember, FRA

would strongly encourage each railroad to voluntarily supplement this

list of on-board emergency equipment. Further, FRA recognizes that

there may be special local interests that might need to be

accommodated, particularly in cases of public authorities operating

passenger train service within only one territory. While national

uniformity to the extent practicable of laws, regulations, and orders

related to railroad safety is important, FRA does not wish to decrease

the level of emergency preparedness already in place on a passenger

railroad.

FRA must determine whether the final rule should specifically

address special circumstances that may exist in local jurisdictions

throughout the country on a categorical basis, which are currently

subject to more stringent requirements than the minimum quantities of

on-board emergency equipment set forth in the proposed rule.

Accordingly, FRA invites comments on what types and quantities of on-

board emergency equipment railroads are currently required to carry

pursuant to laws in the local jurisdictions in which they operate. FRA

also invites comments on the reasons for these more stringent

requirements. Depending on the comments received, FRA may adopt the

minimums set forth in the text of the proposed rule or decide to

broaden the coverage and requirements of Sec. 239.101(a)(6) by

specifying additional types and/or quantities of on-board emergency

equipment that some or all railroads must carry on each passenger car.

This paragraph does not require railroads to instruct their

passengers about either the location or use of the on-board emergency

equipment. As stated, FRA is committed to crafting a final rule that

avoids micromanagement of the provisions of a railroad's emergency

preparedness plan. FRA recognizes that passengers might benefit from

receiving routine instructions about the location and operation of on-

board emergency equipment during each train trip, in the event that the

crewmembers are injured or otherwise unable to access the equipment

before the outside emergency responders arrive. However, FRA is also

aware from its consultations with the Working Group that pilferage of

on-board emergency equipment is a serious problem on many passenger

railroads, and that specifically focusing the attention of passengers

on where the equipment is located would only exacerbate the problem.

Clearly, the equipment can only help both crewmembers and passengers

during an emergency if it is available for proper use. Also, members of

the Working Group stressed that regular riders on intercity or commuter

operations are probably already familiar with the on-board emergency

equipment by virtue of their frequent presence on the train, and would

not benefit from any additional required information.

Since the rulemaking on rail passenger equipment safety standards

is still ongoing, FRA is unable to state whether railroads will be

required to install permanent or auxiliary emergency lighting on their

rail cars. However, whatever requirements eventually appear in a new

set of regulations at 49 CFR Part 238, paragraph 239.101(a)(6)(ii)

states that auxiliary portable lighting must be available for

assistance in an emergency and should be routinely maintained and

replaced as necessary. The proposed rule does not require that every

rail passenger car have such lighting, but the train itself must carry

enough portable lighting capable of fostering passenger evacuation. In

its comments on paragraph 239.101(a)(6)(ii) of the revised regulatory

text, METROLINK stated that FRA needs to define the phrase ``auxiliary

portable lighting must be accessible,'' and questioned whether a

flashlight is an acceptable form of

[[Page 8345]]

such lighting. FRA intends for a handheld flashlight, such as a

flashlight with a ``D'' cell, to be one of the means of satisfying the

auxiliary portable lighting requirement.

Finally, paragraph 239.101(a)(7) requires railroads to make

passengers aware of emergency procedures to follow before an emergency

situation develops, thus enabling them to respond properly during the

emergency. All passenger awareness efforts must emphasize that

passengers must follow the directions of the train crew during an

emergency. If passengers are on a disabled train, but are not injured

or facing imminent danger, they could safely await the arrival of

trained emergency responders with appropriate evacuation equipment.

However, in a serious emergency involving smoke or fire, passengers may

have to evacuate the train before emergency responders arrive. Thus,

operators of rail passenger service should take steps to increase

passenger awareness about basic evacuation procedures. Since passengers

could inadvertently jeopardize their own safety, it is appropriate for

them to take the initiative only if the crewmembers are incapacitated.

Passenger railroads must educate passengers about their role in

cooperating in emergencies by conspicuously and legibly posting

emergency instructions inside each passenger car, and by utilizing at

least one of the additional methods designated in this paragraph to

provide safety awareness information. These methods include

distributing pamphlets, posting information in stations on signs or on

video monitors, and the review of procedures by crewmembers via public

address announcements. All brochures and signage must emphasize that

passengers must follow the directions of the train crew during an

emergency.

Although paragraph 239.101(a)(7)(ii)(A) permits a railroad to

fulfill the secondary passenger education requirement of the proposed

rule by making on-board announcements, the proposed language does not

specify the frequency with which these announcements must be made

during a train run. While FRA believes that, with regard to intercity

service, announcements are appropriate after at least each major

passenger pick-up point, commenters are invited to suggest ways of

providing safety information to all new riders without becoming

repetitious to the remaining passengers. In addition, while the

proposed rule requires railroads to utilize only one additional method

to disseminate safety awareness information to passengers, FRA

encourages railroads to employ as many of the options as possible based

on operating and budgetary considerations.

The information in the various sources of passenger safety

awareness information must be consistent in content and sufficient for

first-time users of the railroad, but not so overwhelming as to arouse

undue concern. All information must be printed or spoken in English,

but railroads serving large non-English speaking communities should

consider providing information in other languages as well. Materials

for persons who are visually impaired should be printed in large type

format and in braille. Finally, for persons with other types of

disabilities, appropriate passenger awareness materials should provide

information about evacuation policies and procedures and other

emergency actions, to the extent practicable.

Passenger awareness education should include information that may

permit passengers to accomplish the following:

Recognize and immediately report potential emergencies to

crewmembers;

Recognize hazards;

Recognize and know how and when to operate appropriate

emergency-related features and equipment, such as fire extinguishers,

train doors, and emergency exits; and

Recognize the potential special needs of fellow passengers

during an emergency, such as children, the elderly, and disabled

persons.

Paragraph 239.101(a)(7)(iii) requires railroads to perform surveys

of their passengers in order to learn how successful the passenger

awareness program activities have been in apprising passengers of the

procedures that must be followed during an emergency. In addition to

verifying that passengers can locate and operate the emergency window

and door exits in the event of an evacuation, the surveys must

determine that passengers know where the safety information is posted

in the car and that during an emergency they must follow the directions

of the train crew.

Although the railroad is required to maintain records of the

information obtained from its passenger surveys, the proposal does not

mandate that railroads ask passengers to complete written

questionnaires. Instead of handing out questionnaire surveys at station

stops and hoping that passengers will voluntarily elect to either

provide responses in narrative form or fill in answers to multiple

choice questions, the railroad could direct its employees to wait at

either station stops or onboard trains and orally read the questions to

selected members of the traveling public who voluntarily agree to

participate. The oral responses would then be recorded by the railroad

in writing on records that would be maintained at the system

headquarters for the railroad and at the division headquarters for each

division where the surveys were conducted (i.e., the records

availability must be division specific). The records can consist of

multiple documents, and may contain separate sections covering

locations of the safety information on the cars and knowledge of the

safety procedures to follow in an emergency. Additionally, railroads

must make these survey records available to duly authorized FRA

representatives for inspection and copying (e.g., photocopying or

handwritten notetaking) during normal business hours.

The proposal specifies that a railroad must survey a representative

sample of passengers at least once during each calendar year to

determine the effectiveness of its passenger awareness activities. FRA

is not proposing a methodology for conducting this sampling, nor is it

requiring that the surveys be distributed at every station stop or

along particular major lines. FRA is confident that each railroad will

use due dilgence in surveying a statistically significant cross section

of its customer population in order to periodically update and improve

its passenger safety awareness information and amend its emergency

preparedness plan, as appropriate. Although FRA is proposing that

railroads conduct the surveys at least annually, we expect that after

the initial education effort takes place in the first year that the

rule is in effect the ridership awareness level will reach a percentage

in the range of between 60 to 75 percent. If this increased awareness

level occurs, as reflected in a high rate of correct survey responses,

FRA believes that the requirement could be modified to permit railroads

to conduct the surveys at least once every three years. FRA seeks

public comment on both whether the final rule should permit railroads

to conduct surveys less frequently than annually, and if so, on what

would be an appropriate minimum percentage of public awareness that

must be reached before less frequent surveying would be justified.

Since the issue of passenger surveys was not fully developed with

the Working Group during the drafting of this proposal, FRA looks

forward to working with the members of the

[[Page 8346]]

Working Group during the final rule phase to develop the most effective

means of verifying that the passenger awareness program activities will

achieve their objectives. In this regard, FRA seeks comments on whether

the survey process anticipated by this proposal can be a reliable

measure of the effectiveness of the passenger information programs or

whether there are more efficient or less expensive means than surveys

to determine the success of these programs, such as focus groups or

unstructured meetings and discussions with members of the traveling

public. Commenters from railroads are urged to discuss what sampling

techniques they currently use when they conduct customer satisfaction

surveys in order to assist them in improving passenger comfort,

determining if railroad employees are providing proper customer

service, and planning timetable schedules.

Since proposed paragraph 239.101(a)(7)(ii) requires railroads to

utilize an additional method of providing safety information without

specifying how frequently the information must be provided, commenters

are encouraged to address this issue by indicating whether each

railroad should be allowed to study the results of the passenger

surveys in order to determine the effectiveness and proper timing of

passenger safety awareness program activities appropriate for its

operation. Accordingly, instead of specifying a fixed maximum time

interval between utilization of the additional forms of program

activity, FRA could elect to require that railroads determine the

optimal frequency that best serves their passengers. In addition, it is

expected that as the traveling public grows more accustomed to reading

and understanding the emergency instructions posted inside all

passenger cars on bulkhead signs, seatback decals, or seat cards the

need for redundant reminders (e.g., on-board announcements, ticket

envelope safety information, or public service announcements),

especially at frequent time intervals, will greatly diminish. Moreover,

depending on the additional method selected, different time intervals

may be appropriate. For example, while it may be suitable for a

railroad to distribute safety awareness information on a seat drop

every three months, the railroad may conclude that it should arrange

for public service announcements on a weekly basis. Commenters

recommending inclusion of fixed timeframes for providing passengers

with additional methods of safety awareness information are urged, if

possible, to provide scientific or sociological data and/or cost

estimates to support their suggested time intervals.

11. Passenger Train Emergency Simulations: Section 239.103

Section 239.103 recognizes that one of the most effective training

techniques is a simulation of specific emergency scenarios. Simulations

may vary from a small-scale drill or tabletop exercise for just one

train crew or control center operator, to a full-scale emergency

exercise involving several levels of railroad management that includes

the voluntary participation of fire departments, ambulance and

emergency medical service units, local police, sheriff and state police

organizations, local emergency auxiliary groups, and state and federal

regulatory agencies. While simulations are primarily designed to

demonstrate that railroad employees can quickly and efficiently manage

an emergency situation to ensure that emergency responders arrive

quickly, simulations are also intended to determine whether train crews

are properly trained to get passengers out of an imperiled train.

The tabletop exercise is the simplest to stage, as it involves only

a meeting room and knowledgeable managers and employees from the

passenger train operator and the appropriate responding organizations

who voluntarily participate. For an imaginary emergency, the actions to

be taken by the appropriate personnel are described; the time,

equipment, and personnel necessary are estimated; and potential

problems are predicted. Conflicts of functional areas, lack of

equipment, procedural weaknesses or omissions, communication

difficulties, and confusing terminology are among the problems which

can be identified.

Passenger train operators can drill their train crews, other on-

board personnel, supervisors, and control center operators on emergency

operating procedures by posing a hypothetical emergency for employees

to resolve without dispatching emergency responders to the scene. A

drill could also involve the voluntary participation of personnel of a

particular response organization, e.g., a fire department. The same

type of problems as indicated for the tabletop exercise can be

identified, and the actual response capabilities of personnel in terms

of their knowledge of procedures and equipment can be evaluated.

Full-scale emergency exercises require weeks of carefully organized

plans involving all participating organizations and will involve the

expenditure of funds for both the training and actual full-scale

exercise. Recording or videotaping the scenes and conversations in key

areas of the exercise itself will serve as valuable classroom training

for later years. A full-scale exercise is the total application of the

resources of the passenger railroad operator and the voluntarily

participating emergency response organizations. Such an exercise can

reveal the degree of familiarity of both the passenger train system and

emergency response organization personnel with train operations, the

physical layout of trains, right-of-way structures and wayside

facilities, emergency exits, and emergency equipment. Thus,

shortcomings in the emergency preparedness plan and specific response

protocols and procedures, as well as equipment, can be identified and

corrected.

FRA is seriously evaluating whether tabletop exercises should be

afforded the same weight in the final rule as full-scale simulations

for purposes of demonstrating the readiness of a railroad to

successfully react to a passenger train emergency, and we are

considering requiring that each railroad conduct a minimum number of

its simulations as full-scale exercises. In this regard, FRA is

skeptical as to whether a tabletop exercise can equal the

comprehensiveness of a full-scale exercise and be a highly effective

means of determining whether a railroad is adequately prepared for the

likely variety of emergency scenarios that could occur on its lines, as

well as an important training tool for the train crews, control center

employees, and members of the emergency responder community who elect

to participate. In considering whether to strengthen the emergency

simulation requirement, FRA is aware that realistic full-scale

simulations that enable all participants to practice using the on-board

emergency equipment and emergency exits, and encourage the emergency

responders to become personally familiar with passenger equipment and

applicable railroad operations, could prove invaluable in helping

railroads and the emergency responder community to manage real

emergencies in ways that tabletop exercises cannot. However, FRA is

also aware that the financial and logistical costs of conducting full-

scale simulations are undoubtedly higher, including the need to close

railroad tracks during the hours of the simulation, opportunity costs

for the railroads due to lost use of the passenger equipment that is

employed

[[Page 8347]]

in the simulations, unavailability of firefighting and rescue equipment

for other emergencies while the simulations are being conducted, and

salary costs for many or all of the simulation participants.

In order to best determine whether the final rule should require

full-scale emergency simulations in conjunction with tabletop

exercises, or perhaps in place of such exercises, FRA must carefully

weigh the expected costs and potential benefits of all available

options. FRA therefore seeks public comment on the perceived

effectiveness of both full-scale emergency simulations and tabletop

exercises, including a discussion of whether tabletop exercises can

achieve the equivalent level of emergency preparedness as full-scale

simulations. FRA is particularly interested in receiving comments from

the emergency responder community, especially from those members who

have participated in either emergency simulations or actual emergency

situations with railroads.

To achieve a maximum level of effectiveness, drills and exercises

should reinforce classroom training in emergency response and passenger

evacuation for the passenger train operator personnel and the emergency

response units who voluntarily participate. Procedures should also be

included to teach personnel to identify the emergency and distinguish

its unique demands, and to follow through with the appropriate

responses. In addition, the drills and exercises should be planned to

minimize hazards which could create an actual emergency or cause

injuries and to provide a mechanism for simultaneous testing and

reinforcement of emergency operating procedures for specific types of

emergencies and evacuation procedures. Moreover, the drills and

exercises should test the communication capabilities and coordination

of the passenger operator with the emergency responders, as well as the

operability and effectiveness of emergency equipment.

Paragraph (b) requires each railroad that provides commuter or

other short-haul passenger train service to conduct an emergency

simulation at least once during every two calendar year on all major

lines, and include at least 50 percent of the major lines in the total

number of simulations held during any given calendar year. Since FRA

has determined that a train crew on a commuter or other short-haul

operation will usually operate a train along the same line for an

extended period of time, and that emergency responder organization

personnel tend to be line-specific in terms of their familiarity with a

railroad's operations, it is crucial that each affected railroad

provide adequate opportunities along all of its major lines for its

employees and the responder community to obtain emergency simulation

training. While FRA anticipates that each commuter or short-haul

railroad will conduct emergency simulations as frequently as possible

on its entire system, the proposal applies only to operations over

major lines so that the railroad can best reach the most heavily

traveled portions of its system while conserving limited resources. In

this regard, FRA recognizes that emergency responder organizations tend

to be densely located along the major lines of commuter and short-haul

railroad operations.

FRA seeks public comment on whether the final rule should require a

different timetable for accomplishing emergency simulations along each

major route and/or require a greater total number of emergency

simulations during any given calendar year. In this regard, since

emergency simulations are such an important means for a railroad to

measure its degree of emergency preparedness, FRA is considering

strengthening the final rule to require that each railroad conduct a

sufficient number of emergency simulations so that each major line will

be included at least once during every calendar year, instead of only

once during every two calendar years.

Although the proposal sets forth a requirement for each commuter

and short-haul railroad to perform emergency simulations on all of its

major lines, FRA does not expect the railroad to require all employees

along those lines who are trained under the emergency preparedness plan

to attend the simulations, nor do we expect the railroad to invite all

potential emergency responders along those lines to participate. While

FRA hopes that over the long term all railroad employees involved in

the operation of passenger train service, as well as the applicable

members of the emergency responder community, will have the opportunity

to participate in this valuable training exercise and enhance their

individual emergency preparedness skills, the simulations are also

intended to identify shortcomings in each railroad's emergency

preparedness plan and specific response protocols and procedures. The

railroad must discuss the identified weaknesses and overall

effectiveness of the emergency preparedness plan with the simulation

participants at the debriefing and critique session held under proposed

Sec. 239.105, and then initiate any appropriate improvements and/or

amendments to the plan. As part of this review process, FRA expects the

railroad to revise its training program and liaison relationships with

the emergency responder community, in accordance with proposed

Sec. 239.101. Accordingly, while the proposed rule does not mandate

that affected railroads conduct numerous simulations all along the

major lines so as to include every possible participant, FRA concludes

that the lessons learned from the required debriefing and critique

sessions will have far reaching benefits.

In order to ensure that each affected railroad evaluates its

overall emergency response capabilities through careful selection of

the appropriate scenarios and locations on each of its main lines for

the emergency simulations, the proposal requires each railroad to

organize simulations that will adequately test the performance of the

railroad's program under the variety of emergency situations that could

reasonably be expected to occur on the operation. For example, a

railroad operating in territory that includes underground tunnels will

need to conduct simulations to test the railroad's ability to ensure

employee and passenger safety during an emergency situation occurring

in this unique environment. Adequate lighting and sources of air in

tunnels and underwater tubes are critical for successful passenger

evacuation during emergencies. Further, emergency responders depend on

sufficient lighting for visibility during fire suppression and rescue

operations. If the railroad intends to evacuate passengers by using

cross passages and/or fire doors leading to the opposite track area, or

a separate center passageway between the adjacent track areas, the

simulation should include practice in the requisite evacuation

protocols and procedures.

In the case of a railroad providing intercity passenger service

involving a number of lines operated over long distances, such as the

coast-to-coast service provided by Amtrak, the need for the railroad to

carefully plan its simulations and concurrently examine the

effectiveness of its emergency preparedness plan under a variety of

scenarios becomes crucial. Many of Amtrak's lines run for hundreds of

miles through remote locations that could include risks from tunnel

mishaps, natural disasters (e.g., fires, floods, and earthquakes),

hazardous material leaks, and/or acts of terrorism. Further, because of

the length of time required to travel these lines, the same train will

be operated by more than one crew and may involve operation over

[[Page 8348]]

the line of a freight railroad. Since Amtrak's lines traverse numerous

populated communities throughout the United States, an emergency

situation could require the assistance of any number of potentially

thousands of emergency responders from these locations.

While FRA is not proposing at this time to require operators of

intercity service to conduct additional emergency simulations along its

lines in order to reach a greater proportion of employees and members

of the emergency response community (equivalent to the number required

on the major lines of railroads that provide commuter or other short-

haul service), we do expect such railroads to plan simulations that

sufficiently test the elements of their emergency preparedness plan

under the variety of circumstances that could occur in intercity

service. Although FRA recognizes that the length and diversity of

Amtrak's operations limit the potential benefits from resources spent

on conducting emergency simulations, the proposed rule requires Amtrak

to conduct at least two full-scale or tabletop exercises per year on

each of its business units. However, FRA is considering imposing more

rigorous requirements in the final rule on operators of intercity

service such as Amtrak in order to ensure the requisite level of

emergency preparedness. By considering each of the emergency scenarios

that could possibly occur on the different segments of the railroad

(e.g., simulations of a derailment at a remote location where emergency

responder assistance is not immediately available, an on-board fire

inside a tunnel or on a bridge, a derailment involving a freight train

carrying a hazardous materials spill, etc.), Amtrak can carefully

design a program to fulfill its overall emergency response needs. While

we recognize that the term ``business unit'' represents the current

organizational structure of Amtrak in 1997, and have therefore

incorporated that concept into the proposed rule, FRA expects to craft

a term for inclusion in the final rule that has broader applicability.

While the proposal requires railroads that provide intercity

passenger train service to conduct two emergency simulations on each

business unit or other major organizational element during each

calendar year, FRA seeks public comment on whether this number should

be increased in the final rule. Commenters, especially those

representing members of the emergency response community, are

encouraged to discuss how their recommended minimum number of required

emergency simulations can best achieve the rule's emergency

preparedness objectives in a cost beneficial manner that does not

compromise rail safety. In recommending an optimal minimum number of

emergency simulations, commenters are specifically urged to opine on

how a passenger railroad as diverse as Amtrak, which operates coast-to-

coast service under a wide variety of operating conditions through the

jurisdictions of numerous emergency responders, can best achieve the

emergency preparedness goals of this section throughout its entire

system without expending a disproportionate amount of its limited

resources.

12. Debriefing and Critique: Section 239.105

Section 239.105 recognizes the value of conducting a formal

evaluation process after the occurrence of either an actual emergency

situation or an emergency simulation such as a full-scale or tabletop

exercise to determine what lessons can be learned. To increase the

effectiveness of the evaluation of an emergency simulation, railroad

personnel should be designated as evaluators to provide a perspective

on how well the emergency preparedness plan and procedures were carried

out. Although not required by the proposed rule, railroads are also

encouraged to invite outside emergency response organizations and other

outside observers to participate as evaluators. Evaluators should be

given copies of the railroad's emergency preparedness plan before the

simulation is conducted, and a preliminary meeting should be held to

familiarize the evaluators with the drill or exercise and assign

functional areas of concern for evaluation (e.g., communications,

evacuation times). Depending on the elaborateness of the simulation,

evaluators may also choose to use video cameras to record the sequence

of events, actions of personnel, and use of emergency equipment.

The purpose of a debriefing and critique session is to review with

railroad personnel the reports of evaluators, present comments or

observations from other persons, and to assess the need for any

remedial action, either to correct deficiencies or to generally improve

the effectiveness of the emergency operations and procedures. Persons

responsible for conducting the sessions should be instructed by the

railroad to ask questions that will test emergency preparedness

procedures, assess training, and evaluate equipment. After a

simulation, these persons should debrief all participants (including

simulated victims, if any) who can offer valuable insights and thus

help the railroad to revise its procedures. The debriefing session

should help to determine what emergency preparedness or response

procedures could not be used because of the special circumstances of

either the train or the passengers, and whether coordination between

the railroad and the emergency responders requires improvement.

The above method of conducting post-simulation debriefing and

critique sessions should also be used by railroads to evaluate

reactions to actual emergencies. Weaknesses in emergency preparedness

procedures and equipment and areas for improving training should be

identified, and the railroad shall amend its emergency preparedness

plan in accordance with proposed Sec. 239.201. All persons involved

should be debriefed.

Although the term ``emergency or emergency situation'' is defined

in proposed Sec. 239.7 to include a collision with a person, including

suicides, FRA does expect a railroad to conduct a debriefing and

critique session after every grade crossing accident. While the

railroad would still be expected to invoke its emergency preparedness

plan in the event of a grade crossing accident, the goal of this

proposed rule is to ensure that railroads effectively and efficiently

manage passenger train emergencies. Accordingly, FRA does not intend

for the debriefing and critique requirements of this section to apply

when an emergency situation involves only a motorist or pedestrian who

has been injured or killed, and does affect the passengers onboard the

train. In addition, a railroad cannot count its activation of the

emergency preparedness plan under these circumstances for purposes of

satisfying the emergency simulation requirements of Sec. 239.103. While

a significant derailment with one or more injured passengers or a fire

on a passenger train would undoubtedly involve significant threats to

passenger safety, and therefore require a debriefing and critique

session, the proposed rule leaves open the question of what other types

of emergency situations would trigger the requirements of this section.

Since the threshold issue of what constitutes a ``significant threat''

to the safety or health of one or more persons requiring immediate

action has not been fully determined by either FRA or the Working

Group, FRA is seeking public comment on what sorts of situations to

include in the final rule under the definition of ``emergency'' or

``emergency situation'' set forth in proposed Sec. 239.7.

[[Page 8349]]

The proposed rule does not require railroads to use a prescribed

FRA form or other specific document at the debriefing and critique

sessions, nor does the proposed rule set forth specific questions that

railroads must ask after a simulation or actual emergency.

However, as a result of whatever means the railroad selects to

ascertain the effectiveness of its emergency preparedness plan,

paragraph (b) requires the railroad to determine the functional

capabilities of the on-board communications equipment, the timeliness

of the required emergency notifications, and the overall efficiency of

the emergency responders and the emergency egress of the passengers.

In order to achieve the goals of this proposed section, and to

comply with the debriefing and critique recordkeeping requirement of

paragraph (c), evaluators should be provided with critique sheets, to

be collected and used in the debriefing and critique sessions conducted

by the railroads. At a minimum, whatever documentation the railroad

selects to comply with paragraph (c) should contain the date(s) and

location(s) of the simulation and the debriefing and critique session,

and should include the names of all participants. Under the proposed

rule, the critique sheets, or equivalent records, would then be

maintained by the railroad at its system and applicable division

headquarters, and be made available for FRA inspection and copying

during normal business hours.

FRA invites comments on whether the final rule should specify

additional types of issues that must be addressed by railroads at

debriefing and critique sessions (in addition to the five issues

required to be addressed in proposed paragraph (b)), or whether each

railroad should retain some flexibility to develop it own approach to

conducting these sessions. In this regard, FRA encourages comments on

the relative value of the final rule requiring discussion and

documentation of any or all of the following questions:

Did on-board personnel try to initiate a radio call

immediately?

How long did it take for on-board personnel to reach and

inform the control center of the emergency situation?

What was the method of notification to the control center?

Was the method an on-board radio or a wayside radio (if equipped)?

Was there adequate radio communication equipment? Was it

used properly? Did it work properly?

Did on-board personnel know the proper emergency telephone

number to call from the wayside telephone?

Did on-board personnel identify him/herself to the control

center by name and location?

Did on-board personnel report the number (approximate or

actual, as appropriate) and status of the passengers?

Did on-board personnel make audible, appropriate

announcements to passengers? How many minutes elapsed after the

simulation or emergency began before the first announcement was made?

Did on-board personnel properly operate the fire

extinguishers?

Did on-board personnel request deenergization of the third

rail or catenary power?

Did on-board personnel request the halting of train

movements?

How long did it take for the first emergency response unit

to arrive at the emergency scene?

How long did it take to completely evacuate the train or

right-of-way structure or wayside facility and/or extinguish a fire

(real or simulated)?

In its comments on the revised regulatory text, METROLINK stated

that if a commuter railroad performs a tabletop exercise or simulation

it cannot follow the criteria for a debriefing and critique session set

forth in this section. Specifically, METROLINK contends that during

field drill and tabletop exercise simulations the railroads usually do

not involve real passengers and do not notify the emergency responders

via the normal means of communication. Moreover, the emergency

responders do not respond with lights and sirens as they would under

real emergency conditions.

13. Emergency Exits: Section 239.107

In the course of normal passenger train operations, persons enter

and exit passenger cars at a station platform through doors on the side

of the train. However, when a disabled train cannot be moved to the

nearest station, alternative evacuation methods must be employed.

Emergency access to and egress from a passenger car may be achieved

through outside doors, end doors, and windows. In some emergencies,

such as when a fire is confined to a single passenger car, persons may

be moved through the end door(s) to an adjacent car. In other

emergencies, transfer of all the passengers from the disabled train may

be required.

Not all passenger cars have vestibule side doors on both ends, and

in some equipment, operation of these doors has required considerable

effort, including hand tools. If a power loss occurs, crewmembers may

be unable to open either or both of the car vestibule side doors from

the normal key control station in the car. If side-door emergency

controls permit opening of only one sliding door, it could prove

difficult to move certain individuals through it. Also, if the

vestibule side doors cannot be opened immediately from either the

inside or the outside, persons may panic and could be injured as others

attempt to leave the car.

Commuter railroads have agreed to FRA's request that arrangements

requiring hand tools (coins and pencils) be retrofitted. Two railroads

with significant numbers of affected cars are already completing this

work, and this issue will be separately addressed in the forthcoming

NPRM on Passenger Equipment Safety Standards. The Passenger Equipment

Safety Standards Working Group will be evaluating other improvements in

door design and operation. Paragraph 239.107(a) requires that all doors

intended by a railroad to be used during an emergency situation be

properly marked inside and outside, and that the railroad post clear

and understandable instructions for their use at the designated

locations.

Paragraph 239.107(a)(1) requires that the emergency egress exits be

conspicuously and legibly marked on the inside of the car with

luminescent material or be properly lighted. FRA realizes that during

an emergency the main power supply to the passenger cars may become

inoperative and that crewmembers with portable flashlights may be

unavailable. Since lack of clear identification or lighting could make

it difficult for passengers to find the emergency door exits, the

proposed rule requires luminescent material on all emergency egress

door exits (or secondary auxiliary lighting near these exits) to assist

and speed passenger egress from the train during an emergency. The

marking of the emergency door exits must be conspicuous enough so that

a reasonable person, even while enduring the stress and panic of an

emergency evacuation, can determine where the closest and most

accessible emergency route out of the car is located. In addition,

while this proposed section does not prescribe a particular brand,

type, or color of luminescent paint or material that a railroad must

use to identify an exit, FRA expects each railroad to select a material

durable enough to withstand the daily effects of passenger traffic,

such as the contact that occurs as passengers enter and leave the cars.

Paragraph 239.107(a)(2) requires that the emergency door exits

intended for emergency access by emergency

[[Page 8350]]

responders for extrication of passengers be marked with retroreflective

material, so that the emergency responders can easily distinguish them

from the nonaccessible doors simply by shining their flashlights or

other portable lighting on the marking or symbol selected by the

railroad. Again, while this proposed section does not prescribe that a

railroad use a particular brand, type, or color of retroreflective

material to identify an access location, FRA expects each railroad to

select a material durable enough to withstand the daily effects of

weather and passenger contact, and capable of resisting, to the extent

possible, the effects of heat and fire. If all doors are equally

operable from the exterior, no designation would be useful, nor would

any be required. In a separate rulemaking, FRA's Passenger Equipment

Safety Standards Working Group (FRA Docket No. PCSS-1) will address

appropriate requirements for periodic maintenance and replacement of

the emergency door exit markings.

The proposed rule requires railroads to post clear and

understandable instructions at designated locations describing how to

operate the emergency door exits. This section does not mandate that

railroads use specific words or phrases to guide the passengers and

emergency responders. Instead, each railroad should evaluate the

operational characteristics of its emergency door exits, and select key

words or diagrams that adequately inform the individuals who must use

them. While railroads are encouraged to post comprehensive

instructions, FRA also realizes that during an emergency situation

every additional moment devoted to reading and understanding access or

egress information places lives at risk. In addition, FRA would already

expect passengers and emergency responders to be familiar with the

location and operation of the railroad's emergency door exits as a

result of emergency responder liaison activities and passenger

awareness programs conducted in accordance with proposed Sec. 239.101

(a)(5) and (a)(7).

Paragraph (b) requires each railroad operating passenger train

service to properly consider the nature and characteristics of its

operations and passenger equipment to plan for routine and scheduled

inspection, maintenance, and repair of all windows and door exits

intended for either emergency egress or rescue access by emergency

responders. In the case of emergency window exits, the inspection,

maintenance, and repair activities should be performed consistent with

the requirements of part 223 of this chapter. While the proposed rule

does not require railroads to perform these tasks in accordance with a

specific timetable or methodology, except with respect to the periodic

sampling requirement for emergency window exits discussed below, FRA

expects each railroad to develop and implement procedures for achieving

the goals of this paragraph. Visual inspections must be performed

periodically to verify that no emergency exit has a broken release

mechanism or other overt sign that would render it unable to function

in an emergency. Maintenance, including lubrication or scheduled

replacement of depreciated parts or mechanisms, must be performed in

accordance with standard industry practice and/or manufacturer

recommendations. All emergency exits that are found during the course

of an inspection or maintenance cycle to be broken, disabled, or

otherwise incapable of performing their intended safety function must

be repaired before the railroad may return the car to passenger

service.

Carrying forward requirements currently contained in FRA's

Emergency Order No. 20, the proposed rule also requires each railroad

to periodically test a representative sample of emergency window exits

on its passenger cars to verify their proper operation. The sampling of

these emergency window exits must be conducted in conformity with

either of two commonly recognized alternate methods, which will provide

a degree of uniformity industry wide. Both methods require sampling

meeting a 95-percent confidence level that all emergency window exits

operate properly (i.e., the methods do not accept a defect rate of 5

percent). Rather than require railroads to test all window exits on a

specific type or series of car if one car has a defective window exit,

the proposed rule permits the railroads to use commonly accepted

sampling techniques to determine how many additional windows to test.

In general, these principles require that the greater the percentage of

windows exits that a railroad finds defective, the greater the

percentage of windows that the railroad will have to test.

Specifically, sampling must be conducted to meet a 95-percent

confidence level that no defective units remain in the universe and be

in accord with either Military Standard MIL-STD-105(D) Sampling for

Attributes or American National Standards Institute ANSI-ASQC Z1.4-1993

Sampling Procedures for Inspections by Attributes. Defective units must

be repaired before the passenger car is returned to service.

The proposal specifies that a railroad must test a representative

sample of emergency window exits on its cars at least once during every

180 days to verify their proper operation. However commenters are

encouraged to address this issue by indicating whether the sampling

should occur on an annual basis, or on a less frequent basis.

Commenters are also urged, if possible, to provide scientific data and/

or cost estimates to support their suggested sampling interval.

The inspection, maintenance, and repair records concerning

emergency window and door exits must be retained at the system

headquarters for the railroad and at the division headquarters for each

division where the inspections, maintenance, or repairs are performed

(i.e., the records availability must be division specific). The records

can consist of multiple documents, and may contain separate sections

covering inspection, maintenance, and repair or separate sections

covering different types of passenger equipment. Additionally,

railroads must make these inspection, maintenance, and repair records

available to duly authorized FRA representatives for inspection and

copying (e.g., photocopying or handwritten notetaking) during normal

business hours.

METROLINK commented that in order to avoid the unnecessary burden

of maintaining duplicate records, the rule should require railroads to

store all of the maintenance records for the emergency window and door

exits at the site of the inspections. In METROLINK's case, that site

would be the applicable division headquarters, which is no more than 15

miles from its system headquarters. METROLINK also noted that paragraph

239.107(c) does not indicate for how long the inspection records must

be retained, and recommended that since the current rule calls for

major service inspections to be retained for 180 days (or until the

next inspection is performed) the final rule should establish a similar

timeframe.

14. Emergency Preparedness Plan; Filing and Approval: Section 239.201

Section 239.201 specifies the process for review and approval of

each railroad's emergency preparedness plan by FRA. The intent of the

review and approval is to be constructive, rather than restrictive. It

is anticipated that the railroads will develop and implement varied

plans based upon the special circumstances involving their individual

operations. Under the proposal, FRA would also require that the

railroad summarize its internal discussions and deliberative processes

[[Page 8351]]

to explain how the railroad's unique and individual operating

characteristics determined how each issue was finally addressed in the

emergency preparedness plan. Specifically, FRA expects the railroad to

include a review of the analysis that led to each element of the

emergency preparedness plan it submits to FRA for approval, including a

consideration of the expected monetary costs and anticipated safety

benefits associated with each section of the plan.

In its comments, METROLINK stated that the term ``analysis'' in the

phrase ``shall include a summary of the railroad's analysis supporting

each plan element and describing how each condition on the railroad's

property is addressed in the plan'' is vague and lacking in direction.

METROLINK then asked whether FRA expects to receive a cost benefit

analysis, systems approach, or safety value analysis. In addition,

METROLINK questioned whether the term ``condition on the railroad's

property'' concerns elements of the plan such as earthquakes, wind, and

power outages.

FRA will conduct a review of each plan so that there can be an open

discussion of the plan's provisions from which all concerned parties

can benefit. However, in order to ensure compliance with minimum plan

requirements FRA will review each plan in detail prior to approval and

implementation. FRA expects to involve members of the Passenger Train

Emergency Preparedness Working Group in developing benchmark criteria

for plan approvals to simplify plan development and approval. It is

anticipated that this criteria will address program elements that

include the following:

Specific course content for training programs of on-board

personnel, control center personnel, and other key employees;

Minimum requirements for emergency exercises, including

frequency and content of drills with emergency responders and

simulations to determine rapidity of emergency evacuations under

varying scenarios;

Specific means for providing emergency safety information

to passengers, similar to on-board briefings provided in commercial

aviation;

Detailed requirements for tunnel safety, including

lighting and equipment; and

Additional attention to emergency equipment, by

prescribing types and numbers of various kinds of equipment that may be

useful under varying operating scenarios.

FRA will also review all plan amendments prior to their going into

effect. FRA requests comment on whether there are any categories of

plan amendments that should be permitted to go into effect immediately,

prior to review and approval, because they constitute improvements for

which implementation delay should be avoided.

All persons, such as contractors, who perform any action on behalf

of a railroad will be required to conform to the emergency preparedness

plans in effect on the railroads upon which they are working. Persons

whose employees are working under a railroad's approved emergency

preparedness plan need not submit a separate plan to FRA for review and

approval. For example, if a railroad hires an outside independent

contractor to conduct an emergency simulation pursuant to 49 CFR

239.103, the contractor must perform this task in accordance with the

railroad's plan. However, if a freight railroad train crew operates a

passenger train for a commuter rail authority, the freight railroad

must coordinate the applicable portions of its emergency preparedness

plan with the corresponding portions of the commuter rail authority's,

unless an assignment of responsibility for compliance is made under 49

CFR 239.101(a)(3).

The proposed rule does not specifically call for the involvement of

railroad employees or their representatives in the process of designing

or reviewing the emergency preparedness plan, because the

responsibility for having a plan that conforms with this rule lies with

the employer. However, it should be noted that the success of an

emergency preparedness plan will requir

This text is long and has been trimmed here. Open the source document for the complete record.