Passenger Train Emergency Preparedness

SUMMARY: FRA is issuing minimum Federal safety standards for the

preparation, adoption, and implementation of emergency preparedness

plans by railroads connected with the operation of passenger trains,

including all railroads hosting the operations of rail passenger

service. The rule also requires each affected railroad to instruct its

employees on the provisions of its plan. Emergency preparedness plans

must address such subjects as 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 will be subject

to formal review and approval by FRA.

These emergency preparedness regulations constitute 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 these standards and related voluntary developments,

and will address the need for further rulemaking activity.

The final rule does not apply to tourist and historic railroad

operations. 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.

EFFECTIVE DATE: July 6, 1998.

ADDRESSES: Any petition for reconsideration should reference FRA Docket

No. PTEP-1, Notice No. 3, and be submitted in triplicate to the Docket

Clerk, Office of Chief Counsel, Federal Railroad Administration, 400

Seventh Street, S.W., Mail Stop 10, Washington, D.C. 20590.

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

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

S.W., RRS-10, Mail Stop 25, 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., RCC-12, Mail Stop 10,

Washington, D.C. 20590 (telephone: 202-632-3191).

SUPPLEMENTARY INFORMATION:

Background

On February 24, 1997, FRA published in the Federal Register a

notice of proposed rulemaking (NPRM) to amend part 223, entitled Safety

Glazing Standards--Locomotives, Passenger Cars and Cabooses,'' by

revising Sec. 223.5 and adding a new paragraph in Sec. 223.9 to require

the marking of emergency windows, and to add a new ``Part 239--

Passenger Train Emergency Preparedness.'' 62 FR 8330. The proposed part

239 set forth minimum Federal safety standards for the preparation,

adoption, and implementation of emergency preparedness plans by

railroads connected with passenger train operations, including

railroads hosting the operations of rail passenger service. In

addition, the NPRM prescribed marking, inspection, maintenance, and

repair requirements for all emergency window and door exits intended

for egress by passengers or for access by emergency responders.

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 those 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 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 slowed during evacuation by the

absence of emergency lighting on the passenger cars, and emergency

responders were hindered by their inability to obtain an adequate

passenger and crew list from Amtrak until the next day. The NTSB also

noted that if the Mobile County Emergency Management Agency had held

drills to simulate a train accident, the incident commander might have

learned about Amtrak's procedure for accounting for passengers, and CSX

Transportation, Inc. (CSX Transportation), the owner of the bridge and

trackage, might have

[[Page 24631]]

obtained 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 are

presented 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. 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 an agency-sponsored roundtable meeting in Washington, D.C.,

on June 9, 1994, to discuss the emergency preparedness issues addressed

in the publication. The 23 persons attending the roundtable included

representatives from FRA and the following other organizations:

Amtrak,

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 newsletters. While FRA was encouraged

that passenger railroads had already begun to incorporate the

recommendations of the Volpe Report into their own emergency

preparedness procedures and policies, more progress by the entire

industry was 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, Pub. L. No. 103-440, 108

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

Safety Standards,'' which amended 49 U.S.C. 20133 to read 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 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 passenger train

emergency preparedness working group (Working Group) to focus on the

issues related thereto and build the framework for the development of a

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

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

member Working Group was comprised of

[[Page 24632]]

representatives from FRA and the following other organizations:

American Public Transit Association (APTA),

Amtrak,

Association of American Railroads (AAR),

Brotherhood of Locomotive Engineers (BLE),

CALTRAIN,

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 (NJTR),

Northern Indiana Commuter Transportation District (NICTD),

PATH,

Safe Travel America (STA),

SEPTA,

TRI-RAIL,

TSC,

United Transportation Union (UTU), and

VRE.

Regulations covering comprehensive safety standards for rail

passenger equipment--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, are covered by a separate rulemaking and are

being addressed by a separate working group. The NPRM on passenger

equipment safety standards was published in the Federal Register on

September 23, 1997. 62 FR 49728. Persons wishing to receive more

information regarding this other rulemaking should refer to FRA Docket

No. PCSS-1 and contact either Mr. Edward Pritchard, Acting Staff

Director, Motive Power and Equipment Division, Office of Safety

Assurance and Compliance, FRA, 400 Seventh Street, S.W., RRS-14, Mail

Stop 25, Washington, D.C. 20590 (telephone 202-632-3348), 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).

Both the proposed rule and final rule on passenger train emergency

preparedness were developed by FRA in consultation with the Working

Group. The proposal incorporated comments submitted by the Working

Group in response to a preliminary draft of the proposed rule text, and

all comments submitted in response to the NPRM were provided to members

of the Working Group for their consideration in preparation of the

final rule. The Working Group then helped 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 all

commenters on the 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--have

been placed in the public docket of this rulemaking.

In announcing the first meeting of the Working Group on August 8,

1995, FRA stated 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) or first aid treatment or both;

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;

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 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.

[[Page 24633]]

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, were 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 is also included in the rulemaking docket. The Working

Group's comments were then incorporated into the NPRM that was

published in the Federal Register on February 24, 1997. 62 FR 8330.

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

remained unresolved at the NPRM stage concerning the enforcement

obligations that FRA should impose in the final rule. Among the broad

range of possibilities, FRA noted that 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 genuine good faith 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 the railroad for

failing to comply with this basic element of its emergency preparedness

plan. 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 likely not penalize either the railroad or the individuals.

Also, if a railroad failed to designate an employee to maintain a

current list of emergency telephone numbers, 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, FRA could use

its prosecutorial discretion to elect not to impose a civil penalty on

the railroad.

As an alternative, FRA noted in the NPRM that the agency 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 failed 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 each and every on-line emergency responder, or

operating a train with an incorrect type of on-board emergency

equipment. Rather than stressing a determination of the overall level

of emergency preparedness achieved by a railroad before an emergency

ever 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 invited

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 were 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 were too rigid, or not strict

enough.

Although FRA did not receive many written comments on how the

agency should define its enforcement philosophy concerning the final

rule, the consensus of the Working Group was that FRA should not

penalize a railroad that has displayed its best efforts in achieving

compliance and that FRA should focus on evaluating the overall quality

of the emergency preparedness plan rather than on finding possible

minor deficiencies. The Working Group also stated that FRA should not

necessarily measure the success of an emergency preparedness plan based

solely upon the outcome of an emergency situation. In this regard, the

Working Group noted that even if a railroad meticulously prepares a

comprehensive and detailed emergency preparedness plan, the severity

level of an emergency and the ``real life'' reactions to a crisis

situation by a railroad's employees (even assuming that the railroad

properly trained the employees on the applicable plan's provisions in

accordance with Sec. 239.101(a)(2)) may prevent a railroad from

achieving a favorable result in a specific emergency scenario.

Accordingly, the Working Group urged FRA to evaluate a railroad's

response to an emergency situation based upon how precisely the

railroad adopted and complied with its written emergency preparedness

plan, and not necessarily upon the actual results of the plan's

implementation.

Consistent with both the Working Group's recommendations and FRA's

stated policy in 49 CFR part 209 with respect to deciding whether

enforcement action is the best method for addressing noncompliance,

representatives of FRA and States participating under 49 CFR part 212

will consider a number of different factors before recommending the

assessment of a civil penalty involving the requirements of this rule.

These factors include:

The inherent seriousness of the violation;

The kind and degree of potential safety hazard presented

by the violation under the circumstances;

Any actual harm to persons or property already caused by

the violation;

The offending person's general level of compliance;

The offending person's recent history of compliance with

the particular rule involved, especially at the particular location

involved;

Whether a remedy other than a civil penalty (ranging from

a warning to an emergency order) is appropriate under the

circumstances; and

Other factors relevant in the immediate circumstances.

In drafting the final rule, FRA has incorporated relevant

information derived from the investigation of the accident involving

Amtrak train 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

[[Page 24634]]

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 has also included requirements in the final rule relating to

emergency egress from passenger trains, based upon information obtained

from the investigations of the two more recent train accidents in New

Jersey and Maryland. 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, at Silver Spring, Maryland,

milepost 8.3. The accident resulted in 11 fatalities, involving 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 currently being addressed by the working group

which is considering regulations covering rail passenger equipment

safety, the important issue of emergency egress is being addressed by

this emergency preparedness rulemaking. Specifically, the Maryland

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 in addition to marking the emergency exits,

all commuter and intercity passenger railroads should review their

practices 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 were located in a secured cabinet some distance from

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

were not readily accessible and identifiable. The NTSB recommended 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

[[Page 24635]]

exits. The NTSB recommended 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 each

car's exterior, for use by emergency responders.

Based upon its investigation, the NTSB recommended 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.

Fifty-seven members from 21 different organizations attended the joint

meeting. Although some of the recommendations involving structural

modifications to rail equipment are being 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 Sec. 223.9(d), entitled

``Requirements for new or rebuilt equipment,'' and Sec. 239.17,

entitled ``Emergency exits.'' The Section-by-Section Analysis contains

a detailed discussion of FRA's new requirements, particularly in light

of the two 1996 accidents in New Jersey and Maryland and the NTSB's

safety investigations and recommendations.

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

of Metro-North and Chairperson of APTA's Commuter Railroad Committee,

announced that commuter railroads nationwide were implementing a series

of rail passenger safety initiatives building on the 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

committed to early voluntary implementation of the emergency

preparedness requirements proposed in the 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 rule text of

the NPRM, FRA implemented changes to the draft proposed regulatory text

and preamble. FRA initiated those 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 proposed

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. The NPRM was then

published in the Federal Register on February 24, 1997.

In a letter to the Working Group dated August 8, 1997, FRA noted

that it had completed its review of the oral and written comments on

the NPRM. As part of the drafting process of the final rule, FRA

invited members of the Working Group to attend a meeting on August 28,

1997 to discuss a number of significant issues that had been identified

by the commenters and to consider FRA's recommendations. Based upon the

helpful participation and cooperation of the Working Group at that

meeting, FRA then completed the final rule. A copy of the minutes of

the August 28, 1997 Working Group meeting is included in the public

docket for this rulemaking, and a detailed discussion of the meeting

follows in the ``Discussion of Comments and Conclusions'' portion of

this final rule.

Development of the Passenger Safety Program

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

comprehensive effort to improve the safety of rail passenger service.

In addition to this rulemaking, FRA is currently dealing with related

issues in several contexts. Recent actions concerning 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

completed 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 the 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, FRA's Railroad

Safety Advisory Committee (RSAC) established a working group to

specifically address communication facilities and procedures, with a

strong emphasis on passenger train emergency requirements. The NPRM in

this proceeding was published on June 26, 1997, reflecting the

consensus recommendations of the RSAC. The final rule will address the

need for 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 is engaged in a four-phase process to address emergency

preparedness. In the first phase, in 1994,

[[Page 24636]]

FRA distributed the Volpe Report (as described above) and encouraged

railroads to examine their existing programs to determine what

improvements could be made. The present 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 preliminary review and final

approval of written plan submissions, FRA will determine how the

program is being implemented in the field. FRA will also be interested

in learning 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 will involve FRA's review, after gaining at least

a full year of actual experience under the standards enacted here, of

the implementation and effectiveness of the standards and related

voluntary developments. In this phase of activity, FRA will 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 preparedness. Further,

this review will determine whether experience in working with emergency

responders indicates that additional program elements should be

addressed.

Discussion of Comments and Conclusions

A total of 15 responses were received by FRA concerning the NPRM.

Prior to the two public hearings that were held in Chicago, Illinois

and New York, New York, five organizations submitted written comments:

American Association of Private Railroad Car Owners, Inc. (AAPRCO);

LIRR; METRA; METROLINK; and UTU. At the public hearing held in Chicago

on April 4, 1997, six organizations were represented: APTA; Des

Plaines, Illinois Fire Department; Office of Emergency Management of

DuPage County, Illinois; Illinois Law Enforcement Training Standards

Board; METRA; and the Village of Wheeling, Illinois. At the public

hearing held in New York City on April 7, 1997, four organizations were

represented: APTA; BLE; Omniglow Corporation (Omniglow); and UTU. Ten

organizations and one individual submitted post-hearing written

comments: AAPRCO; AAR; Amtrak; APTA; CALTRAIN; Littleton, Colorado Fire

Department; LIRR; NICTD; NTSB; UTU; and Kieran Darcy.

In a letter to the members of the Working Group dated August 8,

1997, FRA noted that a significant number of issues and concerns had

been raised by commenters on the NPRM. In the spirit of continuing the

meaningful partnership on development of the emergency preparedness

rule, FRA convened a meeting of the Working Group in Washington, D.C.

on August 28 1997, in order to discuss the major issues addressed in

the comments and at the public hearings and consider changes to the

proposal for inclusion in the final rule. Among the issues discussed at

this meeting were the: categories of employees required to be

``qualified'' personnel for purposes of carrying out responsibilities

under the emergency preparedness plan; types and numbers of emergency

simulations required of railroads; elements of passenger information

programs; the process of formal review and approval of the emergency

preparedness plan by FRA; and adoption of a single emergency

preparedness plan for each passenger service operation by the passenger

railroad and its host railroad(s). Discussions follow with respect to

the primary issues raised by the commenters and/or discussed by the

Working Group during the consultative process. In light of the comments

received, FRA has reconsidered some of the proposals.

1. FRA proposed that a minimum of one on-board crewmember on a

train be qualified under the plan. Should FRA revise the definition of

``crewmember'' in the final rule to exclude on-board service personnel

from the category of on-board staff that a railroad must qualify under

the applicable provisions of its emergency preparedness plan? Should

FRA increase the minimum number of crewmembers that must be qualified?

The NPRM defined a ``crewmember'' as ``a person other than a

passenger who performs either: (1) On-board functions connected with

the movement of the train or (2) On-board service,'' and proposed that

``each passenger train shall have a minimum of one on-board crewmember

who is qualified under the applicable emergency preparedness plan's

provisions.'' 62 FR at 8356, 8357. FRA acknowledges the safety benefit

in having each railroad provide emergency preparedness training to

every on-board employee (including employees of contractors), and

anticipates that railroads will voluntarily elect to train most, if not

all, on-board personnel in emergency response procedures, but FRA

recognizes the practical limits of an expansive definition of

``crewmember.''

Among the comments received, APTA noted that the proposed

definition of ``crewmember'' is overbroad, and brings in classes of

workers such as security forces, service providers, marketing staff,

survey takers, and hosts. Certain contract vendors providing services

such as food and beverage are neither railroad personnel nor

passengers, yet would appear to fall under the proposed definition.

Also, some commuter operations lease out a bar or club car, and APTA

believes that those personnel should not be included in the definition.

The additional training expenses associated with qualifying this

category of non-operating railroad employees under the railroad's

emergency preparedness plan would not be cost effective. APTA,

therefore, requested that the definition of ``crewmember'' be revised

to cover only operating personnel. Also, since on-board service

personnel typically work for Amtrak in intercity service, APTA stated

that the concept should not be applied to commuter railroads.

METROLINK commented that some of its conductors perform the

function of fare enforcement conductors, and should be excluded from

the definition of ``crewmember.'' In addition, METROLINK noted that

since it may contract out food service on some of its intercity trains,

these contract workers should also be excluded from coverage in the

final rule.

The UTU believed that a passenger train should not be dispatched

unless the conductor is the qualified crewmember under the emergency

preparedness plan, and noted that in serious accidents, the engineer

cannot respond because of personal injury or damage to the locomotive

radio system. In addition, the UTU stated that on-board personnel are

not qualified on the physical characteristics of the railroad and may

be asleep at the time of an accident. If a train has a crewmember who

is qualified under the emergency preparedness plan, along with a

conductor from a freight railroad who is qualified on the physical

characteristics of the railroad, the two individuals

[[Page 24637]]

could coordinate emergency efforts. The BLE stated that the training

that is developed for the qualified individual responsible for

communications must include the engineer in order to reflect a

redundancy factor for on-board personnel, and noted that the final rule

should not count on-board crewmembers employed as service attendants as

qualified crewmembers.

Upon careful consideration of the comments, FRA concludes that rail

passenger safety will be enhanced by limiting the definition of

``crewmember'' to exclude on-board railroad and contractor employees

who have little knowledge of emergency preparedness issues and railroad

operations (e.g., security forces, marketing staff), while

simultaneously requiring that all operating employees (and sleeping car

and coach attendants on trains operating in intercity service) be

qualified under the emergency preparedness plan. In reaching this

conclusion, FRA recognizes that individuals who merely sell food and

beverages to passengers onboard a passenger train, but are not involved

with the train's operation, may be incidental to the railroad's overall

plan for emergency preparedness. However, FRA believes that sleeping

car and coach attendants on intercity trains can play a very key role

in precipitating passenger evacuation during the aftermath of an

emergency.

Unlike passengers on commuter trains, who generally remain aboard

their trains for short time periods and have minimal direct dealings

with crewmembers, passengers traveling in overnight trains have

frequent contact with their coach and sleeping car attendants. While

commuter trains generally operate through densely populated

metropolitan or suburban areas, intercity-passenger trains, by their

very nature, face a greater likelihood that if an emergency situation

occurs it will happen in a remote area not readily accessible by

members of the emergency responder community. The location of the

emergency, unclear jurisdictional authority, lack of road access, lack

of emergency equipment, or unavailability of knowledgeable and skilled

personnel could prevent police, emergency medical technicians, or other

emergency response personnel from making a timely response and hamper

evacuation. The coach and sleeping car attendants will be aware of the

approximate number of passengers on board the intercity train and

likely know how many passengers with impaired mobility may be unable to

evacuate the train on their own through the emergency window and door

exits or who risk injury if they try to do so. Accordingly, since these

attendants could prove invaluable in assisting both the passengers and

the emergency responders during the initial period after the occurrence

of the emergency, FRA concludes that the emergency preparedness plan

must provide for proper training of these individuals.

FRA also recognizes that in the aftermath of an emergency the

crewmembers will have many important responsibilities, including

maintaining contact with the control center, ensuring proper protection

of the train, and providing for the safety of the passengers. If the

emergency involves a collision or derailment, one or more of the

crewmembers may be injured and unable to carry out his or her duties.

In an effort to increase the number of crewmembers who will be

available to implement the railroad's emergency preparedness plan, the

final rule requires that all on-board operating employees be qualified

under the applicable provisions of the emergency preparedness plan. See

Sec. 239.101(a)(2)(vi). Of course, in the event that a railroad

operates a train with the engineer as the only crewmember, then the

railroad will be in full compliance provided that the engineer is fully

trained and qualified under the plan.

Accordingly, FRA is revising the definition of ``crewmember,'' as

it applies for purposes of intercity service, to include both operating

employees on board the train (i.e., railroad employees, or employees of

contractors to railroads, who have been assigned to perform service

subject to the Federal hours of service laws during a tour or duty) and

individuals who serve as sleeping car or coach attendants. Instead of

permitting an intercity train to operate with a minimum of only one

crewmember who is qualified under the railroad's emergency preparedness

plan, the final rule requires that all on-board operating employees be

trained and qualified under the plan's provisions. However, a narrow

exception will exist when a freight train crew serves as the relief

crew on a passenger train. In this limited circumstance, the final rule

permits the passenger train to operate, provided that at least one on-

board operating crewmember from the passenger train is properly trained

and qualified under the railroad's plan and available to perform excess

service in the event of an emergency situation. See 49 U.S.C. 21102(a)

and 21103. For purposes of all other categories of passenger train

service, FRA is revising the definition of ``crewmember'' to apply only

to operating employees on board the train (i.e., railroad employees, or

employees of contractors to railroads, who have been assigned to

perform service subject to the Federal hours of service laws during a

tour or duty), but exclude persons who provide on-board food or

beverage service or security protection. In addition, all of the on-

board operating employees (along with sleeping car and coach attendants

assigned to intercity service) must be trained and qualified under the

plan's provisions.

2. Should tabletop exercises not count toward the requirement to

conduct emergency simulations, and instead should at least one full-

scale simulation be required during the time period specified? If so,

should the minimum number of activities be adjusted to reflect the

increased quality of the simulation program? Should railroads be

required to develop training programs for emergency responders and

their organizations?

Although FRA noted in the NPRM that a tabletop exercise is

relatively easy to orchestrate, ``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,'' FRA stated that it might include a comprehensive

requirement in the final rule involving multiple numbers of full-scale

disaster simulations. See 62 FR at 8346. The NPRM set forth a

requirement for railroads operating passenger train service to conduct

emergency simulations, either full-scale or table exercises, in order

to determine their capabilities to execute their emergency preparedness

plans. 62 FR at 8257, 8258. The proposal required each commuter or

short-haul railroad to conduct enough simulations to include each major

line at least once during every two calendar years at least 50 percent

of the total number of major lines during any given calendar year.

Railroads providing intercity passenger train service were to conduct

at least two emergency simulations during each calendar year for each

business unit or other major organizational element.

Comments Received

Amtrak stressed that tabletop simulation exercises can accomplish

many of the same objectives as full-scale exercises, but at a much

lower cost. It noted that the actual emergency response activities

required when real accidents occur also provide an ongoing source of

preparedness and insight with respect to possible improvements. Amtrak

also opined that tabletop simulations, plus actual emergency

[[Page 24638]]

response situations that inevitably occur, should be sufficient to

accomplish the objectives of evaluating and improving the ability of

railroads and emergency responders to function effectively in the event

of an accident. Amtrak recommended that if the final rule requires some

actual full-scale experiences each year, an actual response,

accompanied by an appropriate debriefing and critique, satisfy that

requirement.

APTA stated that the simulation requirement should be either

deleted or made optional, and noted that commuter railroads agree with

the intent of the regulation, but object to a prescriptive approach.

APTA observed that simulations, especially full-scale ones, are time

consuming, expensive, and benefit a small percentage of employees. It

stated that in view of these factors, the requirement to perform

simulations at all combined with the requirement to perform simulations

on 50 percent of main lines each year, goes beyond what is necessary

for emergency preparedness.

APTA also noted that since emergency responders are not required to

attend, commuter railroads often hold full-scale training sessions that

are poorly attended. It argued that each railroad should be permitted

to maintain operational flexibility to determine the best way to

involve emergency responders.

The LIRR noted that emergency response agency costs vary and are

difficult to uantify, since the majority of fire departments and

ambulance crews are volunteers. Since they are volunteers, it may be

difficult for the LIRR to get them to attend many drills. However,

there are costs for equipment usage (e.g., fuel) and for medical

supplies (e.g., bandages and splints). The railroad noted that,

including preparation, it takes two full months to plan a full-scale

simulation, integrate it with the responding agencies, coordinate and

integrate it with the railroad's own transportation people (track time,

service disruptions, alternative means of transportation, development

of the program and scenario), and then complete the drill. Internally,

the LIRR uses tabletop exercises extensively for procedure review and

testing. They are used in areas where it is difficult to get track time

and run the railroad, and are less effective than practical,

experiential drills and training because of the minimal amount of

exposure to the emergency responders.

CALTRAIN commented that tabletop exercises should be accorded the

same weight and emphasis as actual field drills. Tabletop exercises,

with follow-up debrief and critique, are very effective and less

administratively burdensome. Certain exercises, such as window removal

or after-dark conditions, can be performed as part of a tabletop drill

by moving to the nearest rail facility. Subsequent to the Working Group

meeting held in Washington, D.C. on August 28, 1997, CALTRAIN

recommended that any full activation of the emergency preparedness plan

in either an actual accident or other emergency situation count as a

simulation, instead of only triggering a 180-day extension of the

timeframe in which to perform the full-scale simulation, while if no

such activation occurred, then the two-year cycle would apply. Since a

``real'' activation would be fully evaluated and modifications would be

made, a ``simulated'' drill would be burdensome and redundant. Also,

while CALTRAIN makes reasonable efforts to contact and invite area

agencies, attendance is not mandatory. It argued that the final rule

should discuss ``best efforts to contact, train, and participate'' in

drills, since response agencies have budgetary and other issues with

which to contend that affects their ability to participate in emergency

drills on any given day.

METRA commented that it has 13 major lines, and would have to hold

6.5 simulations each year under the proposal. It noted that the

participants would also have to be trained before each simulation, and

under proposed 49 CFR 239.105, debriefing and critique sessions would

be held afterward. METRA assumes that responder preplanning requires

three weeks, the actual simulation takes two to four weeks to plan and

coordinate, and the critique is performed a week after the simulation

and compiled and acted upon the following week, for a total of 58.5

weeks spent performing 6.5 simulations. Under the proposal, METRA

contends that it would have to conduct more than five simulations per

year due to its system size and number of major routes. Even if the

personnel and budget could be found to plan and conduct this level of

simulation every year, METRA believes that it is questionable that the

region's emergency responders could participate at this level.

METRA states that the Illinois Law Enforcement and Standards Board

has certified METRA's program for training all law enforcement

personnel throughout Illinois, and requests that a ``Train the

Trainer'' program be added to the final rule as a means of ensuring a

qualified response to passenger train emergencies. METRA's concern is

that many of the fire departments overlap to such an extent, that by

performing the set number of route simulations in the proposal, some of

the departments could be involved in three or more simulations per

year. Because of liability and publicity concerns, most fire

departments would elect to be fully involved, but too many simulations

may dilute the aggressiveness of the emergency responders. METRA

suggested that the number of required simulations should be reduced in

the final rule to only two per year, and that videotaping of emergency

simulations could be used in the preparation of training for future

simulations.

In its comments, the NTSB expressed concern that a railroad could

comply with the rule by only performing tabletop exercises each time it

conducts an emergency simulation. The NTSB stated that a tabletop

simulation exercise is not equal to a comprehensive full-scale

exercise, since only a full-scale exercise involving personnel and

equipment can demonstrate an organization's capability and readiness to

respond to a disaster. It also noted that full-scale exercises best

afford a railroad the ability to assess the effectiveness of its

emergency response plan and to identify the resources necessary to

support its plan in an actual emergency, as well as to uncover specific

problems, and that emergency response personnel can only become

familiar with railroad equipment by participating in full-scale search-

and-rescue scenarios.

The Office of Emergency Management of DuPage County, Illinois

commented that a simulation is a much better means of training

emergency responders to respond to a significant emergency than a

classroom alone. However, DuPage County has three METRA lines running

through it (and a fourth in planning), and would have to perform two

simulations annually in addition to meeting other Federal emergency

planning requirements. The commenter noted that although a tabletop

exercise is a great way to discuss policy and talk about what will

likely happen, until a person actually goes into the field and stands

next to the rail car or has to move injured persons off the second

level of a rail car, it is impossible to know how one really does it.

The Des Plaines, Illinois Fire Department believes that its

employees get more knowledge through individual training at the

departmental level than they can from mass casualty situations or

large-scale incidents, and notes that individual training ensures that

all personnel go through the hours of classes and go out on a train to

touch

[[Page 24639]]

it, open its doors, and take a window out. Employees can also attempt

to extricate a dummy from the train. In a large-scale drill, personnel

are assigned to sectors, and depending on the sector to which they are

assigned, will obtain the knowledge of just that one piece of the mass

casualty situation, and will not receive the broad spectrum.

The UTU commented that the railroads should concentrate on case

histories more than large-scale drills. It stated that large-scale

drills are expensive and time consuming, tie up the railroad, and do

not provide much learning opportunity.

In light of the written comments and testimony at the two public

hearings from members of the emergency response community, FRA has

reconsidered its proposal and is eliminating the provision for

performing a tabletop exercise in lieu of a full-scale exercise, but

scaling back the simulation requirement to involve only one meaningful

full-scale simulation (performed either annually or every two years

depending on the size of the railroad). A railroad that is considered

larger, i.e., its operation includes either at least 150 route miles or

200 million passenger miles annually, must conduct at least one full-

scale simulation annually, regardless of the number of major lines or

business organizational elements on its operation. Each railroad

operating passenger train service is also required to develop a

training program available to all on-line emergency responders who

could reasonably be expected to respond during an emergency situation,

with an emphasis upon access to railroad equipment, location of

railroad facilities, and communications interface. The training program

will provide information to emergency responders who may lack the

opportunity to participate in an actual simulation. The railroads could

either offer the training directly or make the training information and

materials available to State training institutes, firefighter

organizations (e.g., National Fire Protection Association), or State

police academies.

The consensus of the commenters was that it takes each railroad

months to plan a full-scale simulation, to conduct the drill, and to

complete the debriefing and critique session. Although some full-scale

simulation training is essential, many of the commenters (including

members of local fire departments) stated that emergency responders

also need ``hands-on'' training for railroad equipment, which is better

effected through ``hands-on'' classroom training. Classroom training

permits a railroad to run a number of evolutions, allows many groups of

individuals to have access to the equipment to achieve equipment

familiarization, and enables emergency responders to practice lifting

the rail equipment. While disaster simulations key on one incident

(e.g., a hazardous materials incident or a train collision and a

resulting fire), a classroom scenario can cover many different types of

incidents. One commenter noted that if it had to spend a

disproportionate amount of its time conducting numerous simulations, it

would be forced to scale back its current program for training members

of the emergency responder community.

FRA agrees with the commenters that the financial and logistical

costs of conducting full-scale simulations are significantly higher

than those for tabletop simulations, including the opportunity costs of

lost revenue and the need to take railroad track and equipment out of

service during the simulation. FRA also acknowledges that during

``hands-on'' classroom training a greater number of individuals receive

direct access to railroad equipment than occurs during a large-scale

drill. FRA encourages each railroad to voluntarily conduct tabletop

exercises to identify the emergency response capabilities of its

personnel in terms of their knowledge of procedures and equipment.

However, FRA has decided that the safety objectives of this rulemaking

are best served by requiring railroads to conduct at least a minimal

number of comprehensive, full-scale simulations to determine whether a

railroad is adequately prepared for the likely variety of emergency

scenarios that could occur on its lines.

In reaching its decision to focus on a smaller number of larger

scale simulations, FRA also acknowledged that under regulations

established by the Federal Emergency Assistance Agency (FEMA), States

are eligible to receive financial assistance for disaster preparedness

under the Disaster Preparedness Improvement Grant Program. See 44 CFR

Part 300. Under this program, States can receive FEMA money for

training and to test and exercise procedures for their efforts in

disaster response. While emergency responder organizations can receive

funds to participate in railroad accident exercises and simulations,

many of these same responder groups must also budget their limited time

and resources in preparing for all other types of potential disasters

that could strike their communities, e.g., airplane crashes, floods,

and earthquakes. FRA recognized that if the final rule required

railroads to conduct significant numbers of full-scale simulations, and

they received full participation from the emergency responder

community, the limited funds available from FEMA might prove inadequate

to meet the overall disaster-preparedness needs of the States and local

jurisdictions.

Intercity operations present special challenges. Amtrak noted that

full-scale simulations cause significant burdens, and argued that the

final rule should permit tabletop simulations in lieu of full-scale

ones. As an operator of seven different commuter services in this

country, Amtrak noted that it would be involved in a great number of

simulations on commuter lines, as well as its intercity service, and

stated that full-scale emergency exercises involve weeks of

preparation, commitment of physical resources, and expenditure of funds

for actual implementation of the exercise. Track and equipment would be

out of service during the placement, conduct, and removal of equipment

from the drill site. Significant disruption of normal operations on a

rail line could occur in connection with conducting a simulation.

Passengers and shippers could be inconvenienced and equipment

utilization adversely affected.

3. What elements should be included in passenger information

programs? Should surveys be required in the final rule?

The NPRM required each railroad to conspicuously and legibly post

emergency instructions inside all passenger cars (e.g., on car bulkhead

signs, seatback decals, or seat cards) and use one or more additional

methods to provide safety awareness information (i.e., on-board

announcements, laminated wallet cards, ticket envelopes, timetables,

station signs or video monitors, public service announcements, or seat

drops). 62 FR at 8357. The proposal also expected each railroad to

survey representative samples of passengers at least annually to

determine the effectiveness of its passenger awareness program

activities, and to improve its program, as appropriate based on the

information developed. 62 FR at 8357.

APTA commented that while commuter railroads should be required to

develop and use passenger emergency awareness programs, the features of

the programs should be left to each commuter railroad's discretion. It

stated that the final rule should be based on performance, not the

command-and-control approach in the proposal. APTA also argued that the

prescription favoring certain types of signage should be removed from

the final rule, and the safety awareness requirement changed

[[Page 24640]]

to merely list examples of possible methods of disseminating safety

awareness information. APTA noted that each commuter railroad has its

own unique approach to developing and using tools to make passengers

aware of emergency instructions inside passenger cars, and should

retain flexibility to find the right mix of passenger communication

techniques. APTA contended that unless the passenger information

requirement allows a railroad latitude to use innovative means or new

technology to deliver safety information, a railroad would have to

apply for a waiver to develop or use the new program or technology,

thus delaying its introduction.

The LIRR also commented on the issue of passenger awareness program

activities. The railroad suggested that safety awareness information

could be printed on a pocket-sized card in order to remind customers of

the basics of what to do in the event of an emergency situation. FRA

notes that Sec. 239.101(a)(7)(ii), as proposed, already permits a

railroad to disseminate information to passengers on ``laminated wallet

cards.'' 62 FR at 8357.

FRA agrees with the two commenters that requiring railroads to

choose among only the seven listed additional methods of providing

safety awareness information to their customers is too restrictive, and

could discourage railroads from being innovative. FRA fully expects

most railroads to use either on-board service announcements, laminated

wallet cards, ticket envelopes, timetables, station signs or video

monitors, public service announcements, or seat drops as the second

means of ensuring the effectiveness of their passenger safety awareness

programs. However, FRA encourages the use of alternate but equally

effective approaches, especially if validated by information deduced

from the debriefing and critique sessions held after passenger train

emergency situations or simulations.

FRA is not, however, revising the requirement that railroads post

emergency instructions inside all passenger cars. In the event of an

emergency, passengers may experience panic and momentarily forget any

information that may have been conveyed by the crew before the train's

departure (e.g., through an on-board announcement). FRA believes that

an important part of the successful implementation of this rule depends

on railroads posting convenient and conspicuous reminders to their

passengers of the important safety procedures to follow in the event of

an emergency. Such a requirement will also provide a measure of

consistency, benefiting passengers who use more than one service

provider.

Upon review of the comments on the passenger survey requirement,

FRA concludes that the financial cost to each passenger railroad of

developing and conducting a survey capable of reaching a statistically

significant cross-section of its customer population in order to

periodically update and improve its passenger safety awareness

information greatly exceeds any potential benefit. Accordingly, FRA is

deleting this requirement from the final rule.

In proposing the survey requirement, FRA presumed that railroads

would merely include additional questions on customer satisfaction

surveys currently used to assess passenger comfort and assist railroads

in timetable planning. FRA assumed that the additional costs to the

railroad industry would therefore be minimal. However, three railroads

and APTA commented on FRA's proposal, convincing FRA that unless the

rule required each railroad to employ a rigorous and scientific survey

methodology, most oral and written surveys would likely be completed

only by those passengers who are either regular riders already familiar

with emergency procedures or dissatisfied riders who have complaints

about train service. Without such a financially burdensome requirement,

the survey results would be of little or no value to the railroads in

verifying passenger awareness of the location(s) on the passenger car

of safety information or knowledge of safety procedures to be followed

in the event of an emergency. Accordingly, since any changes made by

the railroads to their passenger awareness programs might be predicated

upon inaccurate or incomplete information, FRA believes that a survey

requirement would likely not benefit passenger safety.

Consistent with FRA's conclusion, APTA commented that although

passenger surveys may be useful in determining passenger safety

awareness, there is no guarantee that they will be useful in fact. APTA

stated that since completion of the survey is voluntary on the part of

the public, the survey would not provide any real knowledge to the

railroad of passenger awareness of emergency preparedness.

APTA also disagreed with FRA's estimate that the survey requirement

would entail no additional cost to each railroad, noting that DOT

recently estimated that on-board transit surveys cost $12 per completed

survey (DOT-97-08, as reported in the Urban Transportation Monitor).

Based upon 360 million passenger trips daily and a sample size of one

percent, APTA concluded that the total cost to survey commuter rail

passengers would be $21,600,000 (360/2 x .01 x $12.00). Although

APTA realized that the cost might be smaller, depending on the number

of surveys done and number of questions asked, it stressed that the

final cost would be more than incidental.

Amtrak commented that the survey requirement is unnecessary and

undesirable, and could undermine the public's opinion of the safety of

train travel. It noted that no other transportation mode is required to

conduct surveys of passengers' levels of knowledge of safety

information or procedures. Instead of performing mandatory surveys,

Amtrak recommended that railroads focus on providing passengers with

the information necessary for them to function in the event of an

emergency, as is currently done in the airline industry. Amtrak shared

APTA's concern that since public participation in the survey is

voluntary, railroads would have serious concerns about the objectivity

and validity of the results obtained.

NICTD opposed the use of passenger surveys to determine knowledge

or compliance and stated that despite the rule's flexibility in the

methodology of surveys, surveys would not in and of themselves

measurably contribute to overall passenger education concerning

emergency situations. NICTD stated that the education and ongoing

training of train crews concerning emergency situations is more

productive and cost effective, since train crews are ultimately

responsible for dealing with passengers in these situations.

NICTD also questioned the cost/benefit factor of having employees

orally survey passengers aboard trains or at train stops, arguing that

the use of written surveys distributed to passengers boarding trains,

or provided as seat drops, would not guarantee completion of the forms.

Further, NICTD stressed that the requirement to survey a

``representative sample of passengers'' each calendar year cannot be

assured by the survey process, whether the survey is done orally or in

writing. Oral surveys may be viewed by passengers as annoying, who will

then refuse to cooperate, and written surveys will likely be completed

only by those passengers who are inclined to respond.

The LIRR commented that it performs at least one customer-

satisfaction survey per year, at a cost of $155,000 per survey, and on

a case-by-case basis performs targeted surveys to assist in a decision-

making process. The LIRR's Market Development area input shows

[[Page 24641]]

that the response rate should be at least 45 percent to allow for valid

projection of the sample findings to the whole population. However, the

LIRR's normal response rate of mail-back surveys that it has conducted

in the past, without incentives, is only 15 percent.

4. Should FRA modify the requirement that the agency conduct a

formal review and approval of each railroad's emergency preparedness

plan within 180 days of receipt of the plan from the railroad?

The NPRM stated that within 180 days of receipt of each initial

emergency preparedness plan, and within 60 days in the case of a

railroad commencing or hosting passenger operations after the initial

deadline for plan submissions, FRA would conduct a formal review of the

plan. 62 FR at 8358. FRA would then notify the railroad of the results

of the review, whether the plan had been approved by FRA, and if not

approved, the specific points in which the plan was deficient. 62 FR at

8358. If the plan was not approved by FRA, the railroad was required to

amend its plan to correct all deficiencies (and provide FRA with a

corrected copy) not later than 30 days following receipt of FRA's

written notice of disapproval. 62 FR at 8358.

APTA commented that FRA should remove the time limit for approval

of the emergency preparedness plan, and return to the original

consensus recommendation of the Working Group that there be no

deadlines. APTA stated that it doubted that FRA would be able to turn

around the plans to the commuter rail systems within the specified

timeframe, and recommended that FRA should adopt a consultative

approach to emergency preparedness instead of the approach included in

the NPRM.

In response to APTA's concerns, FRA is adopting a bifurcated

approach to approval of the emergency preparedness plan in the final

rule. The final rule specifies that within 90 days of receipt of each

initial plan, and within 45 days in the case of a railroad commencing

operations after the initial deadline for plan submissions, FRA will

conduct a limited, preliminary review to determine if the required

elements of the emergency preparedness rule are sufficiently addressed

and discussed in the railroad's emergency preparedness plan submission.

For example, this initial review will determine if the railroad has

included a section in its plan on liaison relationships with on-line

emergency responders, but will not yet involve field verification by

FRA safety inspectors that the railroad is in fact inviting these

responders to attend training programs on access to railroad equipment.

After this initial review, as appropriate, FRA will then grant or deny

conditional approval of the plan in writing. Within 18 months of

receipt of each emergency preparedness plan, and within 180 days in the

case of a railroad commencing operations after the initial deadlines

for plan submissions, FRA will then complete a comprehensive review,

consisting of ongoing dialogues with rail management and labor union

representatives and field analysis and verification of the railroad's

implementation of the plan's provisions, followed by final approval or

denial.

The bifurcated approach to approval of the emergency preparedness

plan will permit FRA to quickly review each plan for procedural

compliance and immediately determine if the railroad has at least

considered all required plan elements. However, FRA will then have a

much longer timeframe in which to evaluate the plan's substantive

sufficiency and the railroad's actual implementation. Without this

change in the final rule, FRA would have had to choose between delaying

many railroads from adopting their emergency preparedness plans or

accepting some railroad plan submissions on good faith with little more

than a cursory review. Either option would compromise the safety of

railroad passengers and train crews in the event of a passenger train

emergency situation.

5. Should the final rule require a joint submission of one

emergency preparedness plan by each railroad that provides or operates

passenger train service and (as applicable) each railroad that hosts

such service?

In the section of the NPRM addressing joint operations, FRA stated

that each freight railroad hosting passenger train service would be

required to have an emergency preparedness plan addressing its specific

responsibilities, and each railroad operating passenger train service

over the line of a freight railroad would be required to coordinate the

applicable portions of its emergency preparedness plan with the

corresponding portions of the freight railroad's plan. 62 FR 8357. The

purpose for the requirement was to ensure an optimal level of emergency

preparedness on the part of every railroad involved in the operation of

a particular passenger train service. In the section of the NPRM

addressing the filing of the emergency preparedness plan, each affected

railroad would be required to file its plan with FRA within 180 days of

the effective date of the rule, or at least 90 days before commencing

passenger operations, whichever is later. 62 FR at 8358.

It has become apparent to FRA during the course of the comment

period that there is a reluctance on the part of both freight and

passenger railroads to accept full responsibility for the requisite

implementation of all of the elements of an emergency preparedness

plan. FRA is concerned that the consensus of the commenters is that

each entity expects the other entity to be held accountable by FRA in

the event that an emergency situation occurs and the provisions of the

plan are improperly executed. In order to ensure that all railroads

involved in a particular rail passenger service operation understand

each one's crucial role in planning for emergency preparedness, instead

of merely requiring coordination of applicable portions of multiple

emergency preparedness plans, the Working Group recognized the need to

include a joint submission requirement in the final rule.

CALTRAIN commented that under the proposal, passenger or commuter

railroads are responsible for the relationships with host or tenant

freight railroads. While CALTRAIN stated its intent to work closely

with such railroads, it noted that it has no authority over the freight

railroads and declined responsibility for their actions or omissions.

CALTRAIN suggested that FRA focus on evidence of a ``good faith

effort,'' since CALTRAIN cannot mandate actions and cannot enforce the

conduct of external agencies. This commenter urged FRA to use its

enforcement powers.

APTA agreed with FRA that the language in an early version of the

proposal that was shared with the Working Group, which placed the

entire responsibility for the joint operation on the host freight

railroad, did not properly account for the responsibilities of both

parties. Since the NPRM reversed that scenario, APTA recommends that

FRA either delete or redraft Sec. 239.103(a)(3) to assign a measure of

responsibility to the host freight railroad. APTA argued that although

the NPRM required coordination, it does not provide a mechanism to

ensure cooperation by the freight railroad to coordinate emergency

efforts. If a freight railroad refuses or is unwilling to cooperate, a

commuter railroad lacks recourse. The commuter railroad could still be

fined for not coordinating with an unwilling freight railroad.

Consistent with APTA's observations, the LIRR commented that the final

rule needs terminology that recognizes that there is some joint

responsibility between all of the involved parties to a passenger

operation.

[[Page 24642]]

In its comments, the AAR acknowledged that while freight railroads

neither provide nor operate rail passenger service themselves, and are

not subject to most of the rule's requirements, freight railroads still

have certain emergency preparedness responsibilities. The AAR

recommended that FRA not revise the proposed language of

Sec. 239.101(a)(3), since it is in a freight railroad's interest to

coordinate with a passenger railroad to ensure emergency preparedness.

The AAR rejected APTA's concern about freight railroads refusing to

cooperate with the passenger railroads, arguing that APTA, or any other

interested party, presented no data or evidence to indicate that

passenger railroads have experienced problems from freight railroads

refusing to coordinate emergency responses. The AAR believed that FRA

would never fine a passenger railroad that demonstrates that it

attempted to comply with the regulation, but was unable to coordinate

with a freight railroad due to the freight railroad's refusal to

cooperate.

Based upon careful consideration of the comments, FRA is requiring

communication and coordination between all railroads affected by this

rule involved in each passenger operation, by mandating the submission

by the passenger railroad of one emergency preparedness plan that is

jointly prepared. Accordingly, if a State or public authority provides

commuter rail passenger train service by contracting with another

railroad to actually operate the service, and the passenger operation

is in turn hosted by a freight railroad, all three entities are

required to work together and file one emergency preparedness plan for

the operation setting forth each railroad's procedures and

responsibilities under the plan. If for example, a passenger operation

will fulfill none of the requirements of emergency planning, with the

host railroad having all of the responsibilities under the plan, this

fact must be clearly stated in the plan.

In the event of noncompliance by any or all of the entities

involved in the implementation of the plan, FRA reserves the right to

initiate appropriate enforcement action against all parties

participating in the plan. Of course, FRA will intervene to assist any

railroad that is having difficulty crafting a joint emergency

preparedness plan, and help mediate a solution. While FRA might not

initially seek an injunction to prevent a passenger train operation

from operating due to a host railroad's failure to cooperate, FRA could

initiate civil penalty action against the host railroad for its failure

to comply with the requirements of part 239.

The portion of the emergency preparedness plan addressing the host

railroad's responsibilities shall, at a minimum, include procedures for

notifying emergency responder organizations and discuss the railroad's

general capabilities for rendering assistance to an involved passenger

railroad during an emergency situation. The host railroad must also

address any physical and operating characteristics of its rail lines

that may affect the safety of the rail passenger operations, e.g.,

evacuation of passengers from a train stalled in a tunnel or on an

elevated structure.

Section-by-Section Analysis

As a number of the issues and provisions have been discussed and

addressed in detail in the preceding discussions, this section-by-

section analysis will explain the provisions of the final rule and

changes from the NPRM by briefly highlighting the rationales or

referring to the prior discussion. The discussions and conclusions

contained above should be considered in conjunction with the analysis

contained below. Each comment received has been fully considered by FRA

in preparing this final rule.

FRA amends part 223 of title 49, Code of Federal Regulations by

adding six new definitions and requiring railroads operating passenger

train service to clearly mark emergency windows. FRA also adds 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 is reorganized and definitions of four important

terms employed in the passenger train emergency preparedness

regulations are added. The four new defined terms are ``emergency

responder,'' ``passenger train service,'' ``person,'' and ``railroad.''

For ease of reference, FRA defines 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 as well as rapid

transit authorities whose operations are in an urban area and are

connected with the general railroad system of transportation. These

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

chapter. However, FRA does not intend for its definition of

``railroad'' in either this part or part 239 of this chapter 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

FRA received no comments regarding proposed paragraph (d), and the

paragraph is adopted as proposed. 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. Section 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 or

near the designated locations.

Section 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 a 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 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 potential 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 subsection 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 intends 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 commenting on the proposed rule, noted that the last

line of Sec. 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

[[Page 24643]]

doors rather than the windows. Contrary to METROLINK's assumption, the

instructions required by this paragraph are for operating the emergency

window exits. The requirements for posting operating instructions at or

near emergency door exits are contained in Sec. 239.107 of this

chapter.

Section 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 final rule does not require a specific size

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

preparedness plan developed pursuant to Sec. 239.101 of this chapter to

contain a provision explaining 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. 239.101(a)(5) of this chapter. Of

course, while the final rule does not require emergency responders to

participate in evacuation planning or strategy with the railroads, the

railroads must offer liaison training and assistance.

The final rule allows a marking that could consist of a symbol or

words (such as ``RESCUE ACCESS''). Although FRA stated in the proposed

rule that it reserved the right to be more prescriptive in the final

rule based upon a uniform pattern, and noted that FRA was working to

identify an appropriate marking that might be capable of universal

recognition, FRA has decided to retain the flexibility set forth in the

proposal. However, if during the fourth phase of FRA's comprehensive

effort to address passenger safety issues FRA determines that a uniform

pattern or symbol is required, FRA may modify the marking requirements

of Sec. 223.9(d)(2) during a future rulemaking action.

The final rule also 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 expects

passengers and emergency responders to be already 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. 239.101(a)(5) and (a)(7).

3. Appendix B to 49 CFR Part 223

FRA is revising Appendix B to 49 C.F.R. 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. Commenters were invited

in the NPRM to submit suggestions to FRA describing the types of

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

civil penalty, and were also invited to recommend what penalties may be

appropriate, based upon the relative seriousness of each type of

violation. FRA did not receive any public comments nor did the Working

Group present any recommendations to the agency on this topic.

Accordingly, FRA has amended the penalty schedule based on its own

analysis of the inherent seriousness of violating the marking

requirements for emergency windows of part 223. The penalty schedule

also changes the maximum penalty that FRA is authorized to assess for

violations of the provisions of this part. The maximum penalty is

raised from $20,000 to $22,000 for any violation where circumstances

warrant. This change is intended to comply with the provisions of the

Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-

410, 104 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt

Collection Improvement Act of 1996, Pub. L. 104-134, 110 Stat. 1321-373

(April 26, 1996), which requires Federal agencies to adjust civil

monetary penalties to counter inflation's effect of diminishing the

impact of these penalties. The inflation adjustment is to be calculated

by increasing the maximum civil monetary penalty by the percentage that

the Consumer Price Index for the month of June 1995 exceeds the

Consumer Price Index for the month of June of the last calendar year in

which the amount of the penalty was last set or adjusted. The initial

adjustment, however, may not exceed 10 percent. The resulting $22,000

maximum penalty was determined by applying the criteria set forth in

sections 4 and 5 of the statute to the maximum penalty otherwise

provided for in the Federal railroad safety laws.

4. Purpose and Scope: Section 239.1

FRA did not receive any comments, and this section is adopted as

proposed. 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. Paragraph (b) states that 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 unless it

is inconsistent with 49 U.S.C. 20106.

5. Application: Section 239.3

As a general matter, FRA will apply this rule 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 will be

regulated by FRA as a railroad under the provisions of the final rule.

Although the public authority will 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 will be expected to fulfill all of the responsibilities under

this part with respect to emergency preparedness planning, including

implementation.

[[Page 24644]]

FRA has revised paragraph (a)(3) to state that all railroads

hosting the operation of passenger train service are covered by the

final rule. While FRA recognizes that the majority of host

relationships are entered into by freight railroads, there are a number

of instances where passenger operations (e.g., Amtrak) host other

passenger operations over their trackage. Accordingly, the final rule

has been revised to reflect this fact.

Paragraph (b)(1) of both the NPRM and final rule indicate that the

rule does not apply to rapid transit operations in an urban area that

are not connected with the general railroad system of transportation,

and this paragraph is intended merely to clarify the circumstances

under which rapid transit operations are subject to FRA jurisdiction

under this part.

In a final rule published in the Federal Register on December 27,

1995, the Federal Transit Administration (FTA) announced that it would

begin requiring states to oversee the safety of rail fixed guideways

systems not regulated by FRA. 60 FR 67034; see 49 U.S.C. 5530, 49 CFR

part 659. Under its statutory scheme, FTA does not directly enforce

safety statutes or regulations against rail fixed guideway systems, nor

does FTA have safety inspectors who enter upon the regulated properties

to perform inspections. In accordance with FTA's statutory authority

and the above rulemaking, FTA does not interpret what constitutes

commuter rail or rapid transit, but instead regulates whatever rail

fixed guideway systems that FRA does not.

As set forth in Appendix A to part 209 of this chapter, with the

exception of self-contained urban rapid transit systems, FRA's

statutory jurisdiction extends to all entities that can be construed as

railroads by virtue of their providing non-highway ground

transportation over rails or electromagnetic guideways, and will extend

to future railroads using other technologies not yet in use. For policy

reasons, FRA does not exercise jurisdiction under all of its

regulations to the full extent permitted by statute. Based on its

knowledge of where the safety problems were occurring at the time of

its regulatory action and its assessment of the practical limitations

on its role, FRA has, in each regulatory context, decided that the best

option was to regulate something less than the total universe of

railroads.

In light of the above, FRA may elect to limit the exercise of its

jurisdiction over these entities for policy reasons. FRA currently

withholds the exercise of its jurisdiction over rapid transit

operations where conventional and light rail operations are separated

in time (night/day hour specifications). In making this policy

determination, FRA anticipates working with the FTA on a joint policy

statement that will be published in the Federal Register and discuss

the types of rapid transit systems covered by this rule that will be

subject to FRA's jurisdiction and which ones will instead be subject to

state safety oversight under FTA's jurisdiction. As part of this joint

policy analysis by FRA and FTA, our two agencies will seek to

coordinate more explicitly the requirements of FRA regulations and

State safety oversight programs.

The final rule is structured to apply to intercity and commuter

service (as well as rapid transit operations that operate over the

general railroad system of transportation), 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.

Pub. L. 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 were scheduled

to 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 states that the requirements of this part

will 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 is taking into account the financial burden that would

be 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 will already be required to have emergency preparedness

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

private car passengers will presumably benefit from these plans even

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

the case of non-revenue

[[Page 24645]]

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 will 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

FRA did not receive any comments, and this section is adopted as

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

the preemptive effect of the final 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, adoption, and implementation of emergency preparedness

plans for passenger train operations. Although the subject matter

includes a requirement in Sec. 239.101(a)(5) that railroads establish

liaison relationships with their on-line emergency responders by

developing and making available a training program emphasizing access

to railroad equipment, location of railroad facilities, and

communications interface, FRA is not requiring emergency responders to

participate in these liaison activities. Accordingly, since FRA is only

regulating the content of the training opportunities that railroads

must offer to the responder community, States are in no way preempted

from regulating any other 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 consistent with part 239.

Further, FRA acknowledges that there may be special local interests

concerning types and/or quantities of on-board emergency equipment that

might need accommodating, particularly in cases of public authorities

operating passenger train service within only one territory. Although

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

orders related to railroad safety is important, FRA does not want to

decrease the level of emergency preparedness already in place on a

passenger railroad.

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 final rule. The

definitions are carefully worded in an attempt to minimize the

potential for misinterpretation of the final rule. Several of the

definitions introduce new concepts which require further discussion.

For a detailed discussion of FRA's decision to revise the

definition of ``crewmember,'' see the preceding ``Discussion of

Comments and Conclusions'' portion of this document under heading of

item number 1. The definition of ``crewmember'' is primarily intended

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

the movement of a train and are subject to the Federal hours of service

laws during a tour of duty (e.g., a locomotive engineer, conductor) or

provide on-board service in a sleeping car or coach assigned to

intercity service, other than food, beverage, or security service

(e.g., an Amtrak sleeping car attendant), a deadheading employee can be

covered by the definition as well. Accordingly, such an employee could

count as a ``qualified'' employee under Sec. 239.101(a)(2)(vi) of this

part for purposes of meeting a passenger railroad's minimum on-board

staffing requirements for its emergency preparedness plan when a

freight train crew has relieved that passenger railroad's expired crew.

During a passenger train emergency situation, off-duty employees are

expected to assume their appropriate roles under the railroad's

emergency preparedness plan and assist the passengers.

In commenting on the proposal, 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.'' In accordance with

FRA's revised definition of ``crewmember,'' these categories of

employees are now excluded from coverage.

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 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 definition of ``emergency'' or ``emergency situation'' has been

changed in the final rule to include examples of some of the more

common scenarios that would require a railroad to activate its

emergency preparedness plan. However, regardless of whether a

particular emergency illustration is specifically listed in the

definition, FRA expects a railroad to activate its emergency

preparedness plan anytime an unexpected event related to the operation

of its passenger train service involves a significant threat to the

safety or health of one or more persons requiring immediate action.

[[Page 24646]]

The NPRM defined ``emergency responder'' as ``a qualified member of

a police or fire department, or other organization involved with public

safety, who responds to a passenger train emergency.'' 62 FR at 8356.

In its comments, APTA requested that FRA delete the word ``qualified''

because it implies that someone on the railroad will determine an

emergency responder's qualifications. APTA stated that at an accident

scene, a commuter railroad lacks the practical capability to determine

an emergency responder's qualifications, and on-board personnel do not

have the time to determine qualifications. The LIRR noted that

emergency responder qualifications are dictated by police and fire

departments, not the railroads.

In including the word ``qualified'' in the proposed definition of

``emergency responder,'' FRA never intended to place a burden on the

railroads to determine the professional qualifications of emergency

responders. It was assumed that the railroads would cooperate fully

with any individual sent by an organization involved with public safety

in response to a passenger train emergency, based solely upon that

organization's own determination of its employee's qualifications.

However, in response to the concerns of the two commenters, FRA has

deleted the word ``qualified'' from the definition of ``emergency

responder,'' and also revised the definition to clarify that a member

of an emergency responder organization may coordinate as well as

directly provide emergency services.

The AAR commented that the definition of ``joint operations'' is

open to various interpretations, and suggested that FRA revise the

definition in the final rule to state that ``joint operations means

rail operations conducted by more than one railroad, except as

necessary for the purpose of interchange.'' FRA agrees with this

recommendation, and never intended for the final rule to apply to joint

operations in instances when the sole purpose for using the trackage is

interchange. Accordingly, the definition of ``joint operations'' in the

final rule has been revised to exclude interchange situations.

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

included in Sec. 239.7 of this part. This introduction merely provides

a sampling of the most important concepts of the final rule. Many other

terms are defined and explained in the section-by-section analysis when

analyzing the actual final rule text to which they apply.

8. Responsibility for Compliance: Section 239.9

FRA did not receive any comments, and this section is adopted as

proposed. Section 239.9 clarifies FRA's position that the requirements

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

including a contractor, that performs any function required by the

final rule. Although all sections of the final 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

Sec. 239.107, the contractor is 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 Pub. L. 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 $11,000 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 $22,000 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 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 penalty schedule also implements the maximum penalty that FRA

is authorized to assess for violations of the provisions of this part.

The maximum penalty reflects an increase from $10,000 to $11,000 for

violations and an increase from $20,000 to $22,000 for willful

violations. This change is intended to comply with the provisions of

the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L.

101-410, 104 Stat. 890, 28 U.S.C. 2461 note, as amended by

Sec. 31001(s)(1) of the Debt Collection Improvement Act of 1996, Pub.

L. 104-134, 110 Stat. 1321-373 (April 26, 1996), which requires Federal

agencies to adjust civil monetary penalties to counter inflation's

effect of diminishing the impact of these penalties. The inflation

adjustment is to be calculated by increasing the maximum civil monetary

penalty by the percentage that the Consumer Price Index for the month

of June 1995 exceeds the Consumer Price Index for the month of June of

the last calendar year in which the amount of the penalty was last set

or adjusted. The initial adjustment, however, may not exceed 10

percent. The resulting $11,000 and $22,000 maximum penalties were

determined by applying the criteria set forth in sections 4 and 5 of

the statute to the maximum penalties otherwise provided for in the

Federal railroad safety laws.

Although the penalty provision broadly provides that any person who

violates or causes the violation of any requirement of 49 CFR part 239

is subject to a civil penalty, members of the Working Group were

concerned

[[Page 24647]]

about the possibilities of theft of its on-board emergency equipment

and/or vandalism of its passenger cars, and wanted FRA's permission to

post warnings to members of the general public that committing such

acts could subject them to Federal penalties. FRA encourages railroads

to notify their passengers (and any potential vandal or trespasser)

that in addition to any Federal or state criminal statutes that exist

to prohibit vandalism, theft, trespassing, or tampering involving

railroad equipment, property, or operations, FRA may impose a civil

penalty upon any individual who willfully causes a railroad to be in

violation of any requirement of this part. Take for example, a railroad

that supplies each of its passenger cars with one fire extinguisher and

one pry bar, and provides each of its on-board crewmembers with one

flashlight. By equipping its train with all of these items, the

railroad would be in full compliance with the minimum requirements of

paragraph 239.101(a)(6)(i) of this part. Accordingly, if unbeknownst to

the railroad, a vandal pilfers a pry bar from one of the passenger cars

while the train is in service FRA can impose a civil penalty upon that

individual for causing the railroad to be in violation of 49 CFR part

239. FRA recommends that in addition to posting written warnings on and

in passenger cars, railroads use on-board announcements to remind their

passengers of the serious consequences that can result from placing the

railroad in violation of the important safety requirements of this

part.

The final rule includes a schedule of civil penalties in an

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

Commenters were 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 were

also invited to recommend what penalties may be appropriate, based upon

the relative seriousness of each type of violation. FRA did not receive

any public comments nor did the Working Group present any

recommendations to the agency on this topic. Accordingly, FRA has

drafted the penalty schedule based on its own analysis of the inherent

seriousness of violating the requirements of part 239 of this chapter.

10. Waivers: Section 239.13

Section 239.13 identifies FRA's ability to grant waivers of

compliance with the requirements of this rule. Requests for such

waivers can be filed by any interested party. In reviewing the request,

FRA would conduct a factual investigation to determine whether there

was a basis to deviate from the general criteria without compromising

or risking a diminution of rail safety.

11. Information Collection: Section 239.15

FRA is adding this section to note that it is inserting the OMB

approval number for the information collection requirements of this

rule for part 239, since OMB has completed its review and granted

approval. This section also identifies the sections of part 239 that

contain information collection requirements.

12. Emergency preparedness plan: Section 239.101

In drafting the final rule, FRA recognized that the specific

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 final

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 final 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 reject 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 each section applying to every railroad that

is a party to the plan or to every affected 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 or railroad or all. In instances

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

railroads have to address issues of emergency preparedness. The rule

requires the host railroad to jointly develop the applicable portions

of an emergency preparedness plan with the operating passenger

railroad, uniquely dealing with the passenger operations not otherwise

addressed. A detailed discussion of the requirement to jointly adopt a

single emergency preparedness plan for the passenger service is

included in the preceding ``Discussion of Comments and Conclusions''

portion of this document under item number 5.

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 deemphasize 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,

[[Page 24648]]

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 must 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 must 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.

Section 239.101(a) requires all railroads covered by part 239 to

develop and implement written procedures to fulfill each applicable

provision of this section. Depending on the nature of a railroad's

operations, as well as on whether its operations involve a host

railroad, different elements of this section may be fulfilled by more

than one entity. While FRA requires all elements of this section to be

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

that every element be addressed separately by each affected entity who

is one of multiple parties to a single emergency preparedness plan.

Accordingly, if a passenger train service operator relies on a freight

railroad host to notify outside emergency responders after an emergency

occurs, FRA would permit the freight railroad to set out its

responsibility to address this element in its portion of the emergency

preparedness plan. Provided that both entities properly coordinate

their portions of the emergency preparedness plan (and include cross-

reference citations to each other's sections of the plan), the

passenger train service operator's portion of the plan could omit a

particular item and still be in compliance with the final rule.

The final rule does not require that the public authority and the

operating railroad or independent contractor each actively participate

in performing duties in accordance with the joint filing with FRA of

the emergency preparedness plan 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 that is filed with FRA for approval covering the

entire passenger train service operation. After approval of the plan,

FRA may hold the public authority or the other entity or both

responsible for compliance with this part.

Based upon review of the comments and consultations with the

Working Group, FRA is establishing the parameters for emergency

preparedness plans in general, but will defer to the expertise of each

individual railroad to adopt a suitable emergency preparedness plan for

its railroad, in accordance with these parameters. As previously noted,

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

its portion of the 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 final rule is to maximize

the safety of passengers, railroad personnel, emergency response

personnel, property, and the general public that 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.

Communication

Section 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 final rule anticipates that an

on-board train crewmember will 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 shall be informed of the emergency and provided

directions. As appropriate, all passengers must be accounted for

(particularly in sleeping compartments) so as to expedite evacuation,

if necessary, and to avoid needless effort to search for ``missing''

persons, however, a passenger manifest is not required.

In its comments, 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. The LIRR requested in its comments that FRA revise

Sec. 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. The LIRR recommended that FRA adopt a

performance-based standard, so instead of the rule requiring each

railroad to provide specific levels of information to its passengers,

the rule should permit general levels of information. The measure of

success would be based upon whether the railroad successfully handled

the emergency by ensuring the timely evacuation of its passengers.

APTA commented that crewmembers on commuter railroads need to have

flexibility in what they tell passengers about an emergency situation,

and noted that the proposal was ambiguous about the level of detailed

information that must be provided. APTA also argued that since the

proposal appeared to require crewmembers to tell all

[[Page 24649]]

passengers about the emergency, it could worsen an emergency situation

by leading to inappropriate statements to passengers. APTA stressed

that commuter railroad crewmembers are professionals, and should be

empowered to use discretion in determining the appropriate information

to tell passengers during and after an emergency.

FRA recognizes that each emergency situation is unique, and may

require rapid decisionmaking and varied approaches by on-board

crewmembers on how best to ensure the safety of the passengers. In

response to APTA's concerns, proposed Sec. 239.101(a)(1)(i) has been

modified in the final rule by adding the words ``as appropriate'' in

order to provide discretion to the on-board crewmembers as to when and

how to inform the passengers about the nature of the emergency and the

types of countermeasures that are in progress. FRA also replaced the

words ``the train crewmember'' with the words ``an on-board

crewmember'' in order to clarify that the crewmember who first notifies

the control center does not necessarily have to be the same crewmember

who communicates with the passengers. This change reflects the fact

that generally it is the locomotive engineer who contacts the control

center and the train conductor who keeps the passengers apprised of

pertinent developments.

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 or enforcement action against

the railroad, or both, the flexibility of the final rule is consistent

with FRA's reluctance to strictly impose a 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 reviewing and approving emergency

preparedness plans under Sec. 239.201, FRA expects to see the railroads

incorporating specific recommended practices as guidance to their

employees 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 final 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.

Although FRA had asked for comments on whether the final rule

should expand the notification language of Sec. 239.101(a)(1) to

mandate a specific primary means of communication, and 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, no written comments were

received on this issue. While the language of the final rule on this

issue remains unchanged from the proposal, FRA expects the issue to be

fully resolved in the context of the forthcoming revision of the Radio

Standards and Procedures (49 CFR part 220). That rulemaking was tasked

to the RSAC on April 1, 1996, and the NPRM was published in the Federal

Register on June 26, 1997. 62 FR 34544. Among the proposals set forth

in proposed Sec. 220.9 of that NPRM, is a requirement that ``each

occupied controlling locomotive in a train shall have a working radio,

and each train shall also have communications redundancy.'' 62 FR at

34549, 34550, 34556. Persons wishing to receive more information

regarding the NPRM on Railroad Communications should contact Mr. Gene

Cox or Mr. Dennis Yachechak, Operating Practices Specialists, Office of

Safety, FRA, 400 Seventh Street, S.W., Washington, D.C. 20590

(telephone numbers: 202-632-3504 (Cox); 202-632-3370 (Yachechak)), or

Ms. Patricia V. Sun, Trial Attorney, Office of Chief Counsel, FRA, 400

Seventh Street, S.W., Washington, D.C. 20590 (telephone number: 202-

632-3183).

While the final rule does not require that both ends of a train

contain communication devices for use by a crewmember other than the

engineer to directly contact the control center, FRA received comments

from the UTU at the August 28 and September 2, 1997 Working Group

meetings about the need for enhanced means of communications on trains,

especially trains operating in intercity service. FRA is aware of

devices, such as tone generators, that can enhance the communication

capabilities of the radios already carried by each conductor and used

to communicate with the engineer. If railroads voluntarily equip their

trains with these devices in order to go beyond the minimum

requirements of the final rule, then conductors may be able to directly

communicate with the control center in the event that the engineer's

radio communications equipment malfunctions or is damaged, or the

engineer is incapacitated during the emergency situation. However, FRA

recognizes that while portable radios can be placed on trains in a

similar manner to equipping locomotives with mobile radios, portable

radios may not be able to transmit to the control center due to

distance, lower wattage, and smaller antennas. In the case of commuter

railroads operating in push/pull service there will already be two

mobile radios onboard, one at each end of the train.

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 , while operating its intercity

trains on a host railroad, will necessarily have access to those

telephone numbers while on the host's property. Amtrak also has a

nationwide toll-free telephone number which connects the caller

(including private citizens) to the national Amtrak police desk in

Washington, DC, which is manned around the clock. The final rule does

not require that notification to the control center occur within a

precisely measured number of minutes, rather it uses the 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.

[[Page 24650]]

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.

In its comments, APTA requested that FRA modify

Sec. 239.101(a)(1)(ii) to increase the rule's flexibility concerning

notifications by the control center to emergency responders, and permit

the emergency preparedness plan to discuss the means by which the

contacts will occur. APTA noted that not all commuter railroads have

control centers in each emergency responder jurisdiction, and the

control center in one State may control territory that passes into

another State. There is no direct link, therefore, between the

dispatcher and the emergency responders, and the railroad's police

department is generally responsible for making these contacts.

In response to APTA's concerns, FRA is aware that because each

railroad's operations are somewhat unique, 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 (a)(1)(ii) does not specify which

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

rescue groups) or which categories of appropriate railroad officials

that the control center must contact. Because the paragraph is already

worded to provide maximize flexibility to railroads in designating the

emergency contacts, FRA has not modified this paragraph in response to

APTA's concerns.

FRA encourages each affected railroad to consider any reasonable

method of notification when it drafts its emergency preparedness plan,

so long as the notifications by the control center personnel occur

promptly, whether by direct or indirect means. In this regard, FRA

encourages railroads to consider the comments of Eric Sondeen of the

Littleton, Colorado Fire Department, in drafting the section of their

emergency preparedness plans that addresses communication. Among his

comments, Mr. Sondeen recommended that railroads provide, on an annual

basis, emergency dispatch center telephone numbers to all rail corridor

emergency response agencies, including secondary telephone numbers. Mr.

Sondeen also suggested that railroad crew timetables contain 24-hour

civilian emergency response agency telephone numbers for contingency

cellular telephone contacts by crewmembers.

METROLINK commented that each railroad should designate an employee

function or position to be responsible for maintaining current

emergency telephone numbers, rather than an individual employee. In

response to this comment, FRA notes that paragraph (a)(1)(ii) does not

specify which control center employees may be designated by the

railroad to maintain the list of emergency telephone numbers. FRA

concludes that the paragraph, as written, already permits a railroad

great flexibility to select any relevant specific individual or general

job category to maintain the lists, provided that the designation is

properly set forth in the railroad's emergency preparedness plan

submission. Accordingly, this paragraph is adopted as proposed. 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 request

that the final rule 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.

Although the final rule does not require railroad control center

personnel to notify operators of pipelines and electric power companies

that a passenger train emergency has occurred, FRA recognizes that

pipelines and power lines can pose potentially serious hazards to rail

passengers. On September 30, 1993, Amtrak Train No. 88, while being

hosted on track owned by CSX Transportation, collided near Intercession

City, Florida with a vehicle owned by Rountree Transport and Rigging,

Inc. (NTSB Highway Accident Report (HAR) 95/01.) A natural gas pipeline

was located in close proximity to the location of the passenger train

accident, but no one notified the owner of the pipeline operation.

Fortunately, an off-duty employee of the pipeline company viewed

coverage of the accident on television approximately one hour after the

accident, and notified the pipeline owner. Although CSX

Transportation's emergency procedures manual stated that the first

priority for its Operations Center dispatchers following an accident is

to promptly notify appropriate local emergency response agencies when

an emergency situation exists, CSX Transportation emergency procedures

did not define the derailment of a train in an area occupied by a

pipeline as an emergency condition. Among the NTSB's conclusions was

that ``Osceola County emergency responders failed to determine and

assess the risks posed by potentially hazardous pipelines at the

accident site.'' NTSB/HAR 95/01 at page 50. The NTSB also noted in a

footnote that one week before the collision an Osceola County fireman

had attended a training session on pipeline emergency response actions

that was sponsored by the pipeline company, but had not briefed others

at the fire station about his training before the time of the accident.

NTSB/HAR 95/01 at page 28, footnote 16.

Since the NPRM did not propose that railroads should be required to

notify operators of pipelines and electric power companies when a

passenger train accident occurs nearby, and FRA did not seek public

comment on this issue, the final rule does not impose this additional

notification requirement. However, based upon the many important safety

issues that must be considered when a rail accident occurs, and in

accord with the NTSB's findings concerning the accident that occurred

near Intercession City, Florida in 1993, FRA encourages both railroads

and members of the emergency responder community to voluntarily

incorporate relevant information about pipelines and power line

locations into their emergency preparedness planning. In addition, as

part of the four-phase process of addressing emergency preparedness,

FRA will review the implementation and effectiveness of paragraph

(a)(1) and related voluntary developments, and evaluate whether further

rulemaking activity or action is appropriate.

Initial Training

Section 239.101(a)(2) requires that the emergency preparedness plan

provide for initial training, and then periodic training at least once

every two years thereafter, of all railroad employees who

[[Page 24651]]

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. On-board 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).

At the Working Group meeting held on August 28, 1997, some members

questioned what FRA meant in paragraph (a)(2)(i)(E) by the phrase

``hands-on instruction.'' Some members of the group thought that it

meant every employee being trained must actually open an emergency

window and an emergency door exit on a passenger car, while others

thought that a railroad would be in full compliance if only one

employee were required to perform the ``hands-on'' exercise while

hundreds of others received their training merely by observing. In

addition, one member commented that since an emergency window used for

demonstration purposes is costly to repair and requires taking the

passenger car temporarily out of service to replace the rubber

stripping, the final rule should permit employees to receive their

``hands-on'' training by watching a video presentation.

FRA recognizes the unique characteristics of the various railroad

properties, and is reluctant to inhibit flexibility and creativity by

imposing rigorous specifications in the rule text itself on how every

railroad should perform ``hands-on'' training. However, FRA expects

each railroad's emergency preparedness plan to address the means by

which it proposes to train all of its on-board employees on the

specific elements of: rail equipment familiarization; situational

awareness; passenger evacuation; coordination of functions; and

``hands-on'' instruction. In this regard, FRA will not approve a plan

that provides for ``hands-on''

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