Passenger Equipment Safety Standards

SUMMARY: FRA is issuing comprehensive Federal safety standards for

railroad passenger equipment. The purpose of these safety standards is

to prevent collisions, derailments, and other occurrences involving

railroad passenger equipment that cause injury or death to railroad

employees, railroad passengers, or the general public; and to mitigate

the consequences of any such occurrences, to the extent they cannot be

prevented. The final rule promotes passenger train safety through

requirements for railroad passenger equipment design and performance;

fire safety; emergency systems; the inspection, testing, and

maintenance of passenger equipment; and other provisions for the safe

operation of railroad passenger equipment. The final rule addresses

passenger train safety in an environment where technology is advancing

and equipment is being designed for operation at higher speeds. The

final rule amends existing regulations concerning special notice for

repairs, safety glazing, locomotive safety, safety appliances, and

railroad power brakes as applied to passenger equipment.

The final rule does not apply to tourist and historic railroad

operations. However, after consulting with the excursion railroad

associations to determine appropriate applicability in light of

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

may prescribe requirements for these operations that are similar to or

different from those affecting other types of passenger operations.

DATES: This regulation is effective July 12, 1999. The incorporation by

reference of certain publications listed in the rule is approved by the

Director of the Federal Register as of July 12, 1999.

ADDRESSES: Any petition for reconsideration should reference FRA Docket

No. PCSS-1, Notice No. 5, and be submitted in triplicate to the Docket

Clerk, Office of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 10,

Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Ronald Newman, Staff Director, Motive

Power and Equipment Division, Office of Safety Assurance and

Compliance, FRA, 1120 Vermont Avenue, Mail Stop 25, Washington, D.C.

20590 (telephone: 202-493-6300); Daniel Alpert, Trial Attorney, Office

of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 10, Washington,

D.C. 20590 (telephone: 202-493-6026); or Thomas Herrmann, Trial

Attorney, Office of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop

10, Washington, D.C. 20590 (telephone: 202-493-6036).

Supplementary Information:

Table of Contents for Supplementary Information

I. Introduction

II. Statutory Background

III. Passenger Equipment Safety Standards Working Group

IV. Proceedings to Date

V. Discussion of Specific Comments and Conclusions

A. Application of the final rule to rapid transit operations and

``light rail''

B. Static end strength requirement: application to existing

equipment

C. United States international treaty obligations

D. Non-conventional passenger equipment

E. System safety

F. Side exit doors on passenger cars

G. Fuel tank standards

H. Train interior safety

I. Fire safety

VI. Inspection and Testing of Brake Systems and Mechanical

Components

A. Background prior to 1997 NPRM

B. 1997 NPRM on Passenger Equipment Safety Standards

1. Proposed brake system inspections

2. Proposed mechanical inspections

3. Proposed qualification of inspection and testing personnel

C. Overview of comments relating to proposed inspection and

testing requirements

D. General FRA conclusions

1. Brake and mechanical inspections

2. Qualified maintenance person

3. Long-distance intercity passenger trains

VII. Movement of Defective Equipment

A. Background

B. Overview of 1997 NPRM

C. Discussion of comments on the 1997 NPRM and general FRA

conclusions

1. Movement of equipment with defective brakes

2. Movement of equipment with other than power brake defects

VIII. FRA's Passenger Train Safety Initiatives

IX. Section-by-Section Analysis

X. Regulatory Impact

A. Executive Order 12866 and DOT regulatory policies and

procedures

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

D. Environmental impact

E. Federalism implications

F. Compliance with the Unfunded Mandates Reform Act of 1995

G. Effects on the Year 2000 computer problem

XI. List of Subjects

I. Introduction

Passenger railroads offer the traveling public one of the safest

forms of transportation available. In the eight-year period 1990-1997,

there were 0.89 passenger fatalities for every billion miles of

passenger transportation by rail. Nevertheless, collisions,

derailments, and other such occurrences continue to occur, often as a

result of factors beyond the control of the passenger railroad.

Further, the rail passenger environment is rapidly changing. Worldwide,

passenger equipment operating speeds are increasing. Passenger

trainsets designed to European safety standards have been proposed for

operation in the United States-and a few are in operation. Overall,

these trainsets do not meet the structural standards that are common

for passenger equipment operating in the United States. FRA believes

that adherence to such common standards by the nation's passenger

railroads has in large measure contributed to the high level of safety

at which rail passenger service is currently provided in the United

States. However, these standards generally do not have the force of

law.

Effective Federal safety standards for freight equipment have long

been in place, but equivalent Federal safety standards for passenger

equipment have not existed. Further, the Association of American

Railroads (AAR) currently sets industry standards for the design and

maintenance of freight equipment that add materially to the safe

operation of such equipment. However, over the years, the AAR has

discontinued the development and maintenance of industry standards for

railroad passenger equipment.

FRA must necessarily be vigilant in ensuring that passenger trains

continue to be designed, built, and operated with a high level of

safety. In general, the railroad operating environment in the United

States requires passenger equipment to operate commingled with very

heavy and long freight trains, often over track with frequent grade

crossings used by heavy highway equipment. European passenger

operations, on the other hand, are intermingled with freight equipment

of lesser weight than in North America. In many cases, highway-rail

grade crossings also pose lesser hazards to passenger trains in Europe

due to lower highway vehicle weight. FRA is concerned with the level

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of safety provided by passenger equipment designed to European and

other international standards when such equipment is operated in the

United States.

A clear set of Federal safety standards for railroad passenger

equipment is needed that is tailored to the nation's operating

environment in order to provide for the safety of rail operations in

the United States and to facilitate sound planning for these

operations. In furtherance of this safety objective, FRA is pleased by

the American Public Transit Association's (APTA) initiative to continue

the development and maintenance of voluntary industry standards for the

safety of railroad passenger equipment. These standards will complement

FRA's safety standards and, thus, will work together to provide an even

higher level of safety for rail passengers, rail employees, and the

public as a whole.

II. Statutory Background

In September, 1994, the Secretary of Transportation convened a

meeting of representatives from all sectors of the rail industry with

the goal of enhancing rail safety. As one of the initiatives arising

from this Rail Safety Summit, the Secretary announced that DOT would

begin developing safety standards for rail passenger equipment over a

five-year period. In November, 1994, Congress adopted the Secretary's

schedule for implementing rail passenger equipment regulations and

included it in the Federal Railroad Safety Authorization Act of 1994

(the Act), Pub. L. No. 103-440, 108 Stat. 4619, 4623-4624 (November 2,

1994). Section 215 of the Act, as now codified at 49 U.S.C. 20133,

requires:

(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).

III. Passenger Equipment Safety Standards Working Group

Consistent with the intent of Congress that FRA consult with the

railroad industry in prescribing these regulations, FRA invited various

organizations to participate in a working group to focus on the issues

related to railroad passenger equipment safety and assist FRA in

developing Federal safety standards. The Passenger Equipment Safety

Standards Working Group (or the ``Working Group'') first met on June 7,

1995, and has assisted FRA throughout the rulemaking process. Since its

initial meeting, the Working Group has evolved so that its membership

includes representatives from the following organizations:

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

American Association of State Highway and Transportation Officials

(AASHTO)

APTA

AAR

Brotherhood of Locomotive Engineers (BLE)

Brotherhood Railway Carmen (BRC)

FRA

Federal Transit Administration (FTA) of DOT

National Railroad Passenger Corporation (Amtrak)

National Association of Railroad Passengers (NARP)

Railway Progress Institute (RPI)

Safe Travel America (STA)

Transportation Workers Union of America (TWU)

United Transportation Union (UTU), and

Washington State Department of Transportation (WDOT)

The Working Group is chaired by FRA, and supported by FRA program,

legal, and research staff, including technical personnel from the Volpe

National Transportation Systems Center (Volpe Center) of the Research

and Special Programs Administration of DOT. FRA has included vendor

representatives designated by RPI as associate members of the Working

Group. FRA has also included the AAPRCO as an associate Working Group

member. The National Transportation Safety Board (NTSB) has designated

staff members to advise the Working Group.

In developing proposed safety standards for passenger equipment

operating at speeds greater than 125 mph but not exceeding 150 mph, FRA

formed a subgroup (the ``Tier II Equipment Subgroup'') of Working Group

members representing interests associated with the provision of rail

passenger service at such high speeds. The full Working Group

recommended the formation of a smaller subgroup to consider Tier II

passenger equipment standards, as a number of Working Group members

found the operation of high-speed passenger equipment to be outside

their immediate interest and expertise. FRA invited representatives

from organizations including Amtrak, the BLE, BRC, RPI, and UTU to

participate in developing the Tier II standards.

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's

meetings and associated documentation, together with data provided by

the members during their deliberations--have been placed in the public

docket of this rulemaking.

IV. Proceedings to Date

On June 17, 1996, FRA published an Advance Notice of Proposed

Rulemaking (ANPRM) concerning the establishment of comprehensive safety

standards for railroad passenger equipment (61 FR 30672). The ANPRM

provided background information on the need for such standards, offered

preliminary ideas on approaching passenger safety issues, and presented

questions on various topics including: system safety programs and

plans; passenger equipment crashworthiness;

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inspection, testing, and maintenance requirements; training and

qualification requirements for mechanical personnel and train crews;

excursion, tourist, and private equipment; commuter equipment and

operations; train make-up and operating speed; tiered safety standards;

fire safety; and operating practices and procedures.

FRA's commitment to developing proposed regulations through the

Working Group necessarily influenced the role and purpose of the ANPRM.

FRA specifically asked that members of the Working Group not respond

formally to the ANPRM. The issues and ideas presented in the ANPRM had

already been placed before the Working Group, and the Working Group had

commented on drafts of the ANPRM. As a result, FRA solicited the

submission of written comments that might be of assistance in

developing a proposed rule from interested persons not involved in the

Working Group's deliberations.

FRA received 12 comments in response to the ANPRM. These comments

were shared with the Working Group and were taken into consideration by

the members of the group as they advised FRA during the development of

a Notice of Proposed Rulemaking (NPRM). The Working Group worked

intensively, and concluded with a meeting in Philadelphia on September

30-October 2, 1996. Working Group members agreed to the preparation of

a NPRM reflecting partial consensus on a number of the issues in the

rulemaking. However, the industry parties were unable to agree on any

option with respect to inspection requirements for power brakes or

daily inspection of equipment. Further, one labor organization later

advised FRA that it could not participate in a consensus on less than

the full range of issues in the rulemaking.

FRA prepared in draft an NPRM and shared it with the Working Group

members on March 19, 1997. The NPRM was then enriched with discussions

of issues and options reflecting concerns of Working Group members in

response to the draft, and some changes were incorporated into the

proposed rule.

On September 23, 1997, FRA published the NPRM (1997 NPRM) in the

Federal Register to add a new part, 49 CFR part 238 (Passenger

Equipment Safety Standards), and to amend 49 CFR parts 216 (Special

Notice and Emergency Order Procedures: Railroad Track, Locomotive and

Equipment), 223 (Safety Glazing Standards--Locomotives, Passenger Cars

and Cabooses), 229 (Railroad Locomotive Safety Standards), 231

(Railroad Safety Appliance Standards), and 232 (Railroad Power Brakes

and Drawbars). 62 FR 49728. The proposed part 238 set forth

comprehensive Federal safety standards for the safety of railroad

passenger equipment, including equipment design and performance

standards for passenger and crew survivability in the event of a

passenger train accident, as well as inspection, testing, and

maintenance standards for passenger equipment.

The 1997 NPRM generated written comments from 34 separate parties,

and all of these comments may be found in the public docket of the

rulemaking. The written comments included a request by the New York

Department of Transportation (NYDOT) to extend the comment period for

90 days. The NYDOT sought this additional time to more thoroughly

review the proposed rule, and secure expert testimony and empirical

data on the proposed rule's possible impact on the high-speed intercity

rail passenger program in the State of New York. FRA did not grant the

request, however, particularly because FRA had planned to convene the

Working Group in the interim and needed to assemble the comments on the

rule for discussion within the Working Group. FRA asked the NYDOT to

submit its comments by the close of the comment period on November 24,

1997, and it did so. FRA did explain to the NYDOT that it would

consider comments submitted after the formal close of the comment

period to the extent possible without incurring additional expense or

delay in issuing the final rule, and FRA has done so.

FRA held a public hearing on the proposed rule in Washington, D.C.

on November 21, 1997, at which nine parties submitted oral comments.

These parties consisted of: APTA; the BRC; the BLE; Amtrak; Renfe Talgo

of America, Inc. (Talgo); WDOT; NARP; the Omniglow Corporation; and The

Institute of Electrical and Electronics Engineers, Inc. (IEEE). A copy

of the transcript of this hearing is available in the public docket of

this rulemaking.

As noted earlier, FRA convened the Passenger Equipment Safety

Standards Working Group following the close of the comment period to

consider the comments received in response to the 1997 NPRM and help

develop the final rule. This continued the consultative process FRA has

used throughout the rulemaking. Notice of the Working Group meetings

was available through the FRA Docket Clerk, as stated in the NPRM, see

62 FR 49729, and the meetings were open to the public.

The Working Group met in full in Washington, D.C., on December 15-

16, 1997. A smaller body of the Working Group met again on January 6,

1998, to discuss in particular high-speed passenger equipment safety

issues, as well as brake inspection, testing and maintenance issues for

long-distance intercity passenger trains. Minutes of these meetings,

including copies of the discussion documents circulated at the

meetings, are available in the public docket of the rulemaking. See 63

FR 28496; May 26, 1998. FRA received one set of written comments on the

minutes of the meetings, which FRA had prepared, and these comments are

also available in the same docket.

V. Discussion of Specific Comments and Conclusions

A. Application of the Final Rule to Rapid Transit Operations and

``Light Rail''

In the 1997 NPRM, FRA proposed applying the rule to rapid transit

operations in an urban area, unless those operations are not connected

with the general system of railroad transportation. In other words, FRA

made clear that its rule would apply to rapid transit operations over

the general system. The Utah Transit Authority (UTA), in commenting on

the NPRM, expressed concern with the inclusion of rapid transit

operations, including light rail transit, in the proposed rule. The UTA

stated that the rule provided no definition of what is meant by the

phrase ``not connected with the general railroad system of

transportation.'' As a result, the UTA requested that the final rule

provide such a definition. Further, the UTA requested that any such

definition take into account rail operations that are time-separated or

physically separated (using derails and electric locks), or both, so

that under such circumstances rapid transit systems would not be

considered connected with the general railroad system of transportation

and, therefore, be excluded from the rule.

In response to the 1997 NPRM, New Jersey Transit (NJT) commented

that by permitting FRA to rule on whether a transit agency may operate

light rail service over a freight right-of-way, FRA's jurisdiction

would be expanded in conflict with FTA's mandate in 49 C.F.R. part 659.

NJT explained that the Intermodal Surface Transportation Efficiency Act

of 1991, Public Law 102-240, and 49 C.F.R. part 659 promulgated in its

pursuance, required states to designate an agency of the state, other

than a transit agency, to oversee and implement requirements concerning

all fixed-guideway systems not under FRA's jurisdiction.

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The safety jurisdictions of FRA and FTA are mutually exclusive.

FTA's regulatory authority to issue regulations creating a state safety

oversight program applies only to ``rail fixed guideway mass

transportation systems not subject to regulation by the Federal

Railroad Administration.'' 49 U.S.C. 5330(a). Consistent with DOT

Secretary of Transportation Rodney Slater's concept of One-DOT and the

need to assure seamless application of intermodal transportation

policies, FRA and FTA are jointly developing a proposed policy

statement outlining the scope of FRA's jurisdiction over ``light rail''

operations that share the use of rights-of-way with conventional

railroads. As discussed later in this document, the two agencies will

be soliciting input from rail operators and other interested entities

during the development of this policy statement.

FRA's safety jurisdiction is very broad and extends to all types of

railroads except for urban rapid transit operations not connected to

the general railroad system. The term ``railroad'' is defined by

statute as follows:

In this part--

(1) ``railroad''--

(A) Means any form of nonhighway ground transportation that runs

on rails or electromagnetic guideways, including--

(i) Commuter or other short-haul railroad passenger service in a

metropolitan or suburban area and commuter railroad service that was

operated by the Consolidated Rail Corporation on January 1, 1979;

and

(ii) High speed ground transportation systems that connect

metropolitan areas, without regard to whether those systems use new

technologies not associated with traditional railroads; but

(B) does not include rapid transit operations in an urban area

that are not connected to the general railroad system of

transportation.

49 U.S.C. 20102.

The statutory definition of the term ``railroad'' makes certain

elements of FRA's safety jurisdiction quite clear:

FRA, with one exception, has jurisdiction over all

railroads regardless of the type of equipment they use, their

connection to the general railroad system of transportation, or their

status as a common carrier engaged in interstate commerce. FRA will,

for example, assert jurisdiction over high-speed intercity rail service

even if completely separated from the general railroad system that now

exists and magnetic levitation systems that are not urban rapid

transit.

Commuter and other short-haul railroad passenger

operations in a metropolitan or suburban area (except for one type of

short-haul operation, i.e., urban rapid transit) are railroads within

FRA's jurisdiction whether or not they are connected to the general

railroad system. For operations on or over the general system, the

commuter/rapid transit distinction has no jurisdictional relevance--all

general system operations are within FRA's exercise of jurisdiction.

Because the only urban rapid transit operations that FRA intends to

cover under this rule are those on the general system, there is no need

to expand on the commuter/rapid transit distinction here.

Rapid transit operations in an urban area that are not

connected to the general railroad system are not within FRA's

jurisdiction. This is the sole exception to FRA's jurisdiction over all

railroads. There is no exception for ``light rail,'' a term not found

in the statute. Although FRA could assert jurisdiction over a rapid

transit operation based on any connection it has to the general

railroad system, FRA believes there are certain connections that are

too minimal to warrant the exercise of its jurisdiction. For example, a

rapid transit system that has a switch for receiving shipments from the

general system railroad is not one over which FRA would assert

jurisdiction. This assumes that the switch is used only for that

purpose. In that case, any entry onto the rapid transit line by the

freight railroad would be for a very short distance and solely for the

purpose of dropping off or picking up cars. In this situation, the

rapid transit line is in the same situation as any shipper or

consignee; without this sort of connection, it cannot receive goods by

rail. Absent a change in policy, FRA will not attempt to apply this

rule to rapid transit systems with these sorts of connections. However,

if such a system is properly considered a rail fixed guideway system,

FTA's rules (49 CFR 659) will apply to it.

Rapid transit operations in an urban area that are

connected to the general railroad system of transportation are within

FRA's jurisdiction. FRA will assert jurisdiction over a rapid transit

operation that is conducted on or over the general system. It does not

matter that the rapid transit operation occupies the track only at

times when the freight, commuter, or intercity passenger railroad that

shares the track is not operating. While such time separation could, as

explained in the 1997 NPRM, provide the basis for waiver of certain of

FRA's rules, it does not mean that FRA will not assert jurisdiction.

However, FRA will assert jurisdiction over only the portions of the

rapid transit system that are conducted on the general system. For

example, a rapid transit line that operates over the general system for

a portion of its length but has significant portions of street railway

that are not part of the general system would be subject to FRA's rules

only with respect to the general system portion. The remaining portions

would not be subject to FRA's rules. If the non-general system portions

of the rapid transit line are considered a ``rail fixed guideway

system'' under 49 CFR part 659, those rules, issued by FTA, would apply

to them.

As discussed above, it is the nature and location of the railroad

operation, not the nature of the equipment, that determines whether FRA

has jurisdiction under the safety statutes. Light rail operations that

operate on the general system are always within that statutory

jurisdiction. They are not within the sole statutory exception (urban

rapid transit not connected to the general system) so they are

railroads under the safety statutes. The greatest risk inherent in the

shared use of the trackage is a collision between the light rail

equipment and conventional equipment. The light rail vehicles are not

designed to withstand such a collision with far heavier equipment. Were

such a crash to occur with either or both equipment operating at high

speeds, the consequences for passengers in the light rail vehicle(s)

would likely be catastrophic.

In the past, FRA has withheld exercise of its jurisdiction with

respect to light rail operations over general system trackage where

there was full time separation (freight operations limited to nighttime

hours). The recent proliferation of proposals for light rail operations

on the general system and the issuance of this final rule establishing

the first comprehensive Federal standards for railroad passenger

equipment call for changing this approach. Moreover, recent

developments have indicated that FRA's current approach assumes a

degree of separation that is unlikely to be maintained over time.

Proposals for limited overlap, deadhead movement of transit equipment,

etc., have demonstrated the complexity of using common trackage for

disparate purposes. Accordingly, FRA has asked that new transit starts

that propose using the general rail system trackage submit appropriate

waiver applications to FRA; such applications should be submitted as

early as possible. As previously noted, FTA and FRA are working toward

the development of a joint policy statement on the appropriate scope of

FRA's jurisdiction over ``light rail'' that shares rights-of-way with

conventional railroads. The agencies foresee an approach intended

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to dovetail FRA's safety regulations with the FTA state safety

oversight program where that is appropriate and FTA jurisdiction is

applicable. The agencies would work together to ensure coordination of

decision making. Before general implementation, the policy statement

will be discussed with the affected communities of interest and may be

published (together with any needed regulatory amendments) for formal

comment in the Federal Register. At the same time this joint policy is

issued, FRA plans to issue a separate proposed statement of policy

that, among other things, will provide guidance on how light rail

operators may seek waivers of FRA's rules. In the interim, the policy

expressed in this preamble will guide FRA's actions with respect to

this rule (subject to an appropriate period of consultation and

adjustment with respect to the two time-separated shared use projects

currently in operation).

FRA does, however, recognize that lower speed rail operations that

do not operate over highway-rail grade crossings and that totally

preclude the sharing of trackage between light rail equipment and

conventional equipment provide an operating environment that does not

require the structural standards needed for commingled passenger and

freight operations. Accordingly, the final rule (in Sec. 238.201)

provides that passenger equipment, including locomotives, are not

subject to the structural requirements of the rule if they are used

exclusively on a rail line (A) with no public highway-rail grade

crossings, (B) on which no freight operations occur at any time, (C) on

which only passenger equipment of compatible design is utilized, and

(D) on which trains operate at speeds no higher than 79 mph. FRA will

discuss with the Working Group in Phase II of the rulemaking what

structural standards are appropriate for such operations.

B. Static End Sstrength Requirement: Application to Existing Equipment

In Sec. 238.203 of the 1997 NPRM, FRA generally proposed that on or

after January 1, 1998, all passenger equipment shall be required to

have a minimum static end strength (or ``buff'' or ``compressive''

strength) of 800,000 pounds. As some commenters recognized, FRA

intended the date of January 1, 1998, to represent the effective date

of the final rule. Yet, in light of the actual publication date of the

1997 NPRM, the date of January 1, 1998, appeared anachronistic, and FRA

should have modified the NPRM to make its intent more explicit. A

number of commenters nonetheless raised concerns with the application

of this section-whether the date were January 1, 1998, or later-since

FRA proposed to apply the static end strength requirement to existing

passenger equipment.

APTA recommended, in its comments on the rule, that FRA modify the

proposal so that the requirement apply on or after the effective date

of the final rule to passenger equipment placed in service for the

first time. APTA stated that the AEM-7 locomotive and the RTG model

turbo train could not meet the requirement as proposed. APTA estimated

that the purchase of replacement equipment could take up to four years

and would cost more than $500 million.

Amtrak commented that the proposed requirement to have buff loading

apply to the existing rail fleet is not justified based on the

industry's experience. Amtrak did agree that, in order to move the

industry forward on crash energy management, new equipment must be

built to a uniform strength standard. Amtrak stated that it currently

operates AEM-7 locomotives that do not meet the proposed requirement.

In addition, Amtrak was not sure it had available the appropriate

technical information on whether its fleet of Heritage equipment

conformed to the proposal. At the public hearing, though, Amtrak did

explain that it had no evidence that its fleet of passenger cars did

not comply with the proposal. (See transcript of public hearing, pages

173-174).

The Northeast Illinois Regional Commuter Railroad Corporation

(Metra), in its comments on the rule, recommended that the static end

strength provision apply only to new passenger equipment orders placed

on or after January 1, 1998. Metra explained that it was awaiting

delivery of cars under construction, that some of the cars may be built

after January 1, 1998, and that a change order would cause a series of

problems.

In commenting on the 1997 NPRM, Talgo expressed concern that FRA

proposed applying the static end strength requirement to existing

passenger equipment in service on or after January 1, 1998. Talgo

stated that this proposal would render unusable its two trainsets then

in service on lease to the WDOT. Additionally, Talgo explained that it

was well underway in manufacturing five new trainsets--two for the

WDOT, one for Amtrak, and two others for future sale in the U.S.

market--that would likewise be rendered unusable in their current form.

Talgo stated that neither it nor any other manufacturer of rail

equipment could have anticipated the proposed regulation's immediate

application of broad structural design changes. Citing discussions

within the Working Group and the comments of other parties, Talgo

asserted that other passenger equipment manufacturers and operators

likewise assumed that modifications in basic structural standards would

be applicable only to equipment purchased after January 1, 1999, or

placed in service after January 1, 2001, and that much existing

passenger equipment operating in the United States would be unable to

comply with the structural requirements scheduled for early

implementation. Talgo also stated that FRA did not properly identify

the economic impact of its proposal on Talgo equipment. Talgo requested

that FRA modify the rule so that the static end strength requirement

and other structural requirements apply only to passenger equipment

ordered on or after January 1, 1999, or placed in service for the first

time on or after January 1, 2001.

The WDOT commented that FRA's proposal appeared to be directly

targeted at the State of Washington and Amtrak's purchase of Talgo

trains under manufacture. WDOT stated that imposition of the proposal

in the middle of the construction process, without ``grandfathering,''

appeared to reveal an effort to make its Talgo equipment non-compliant.

WDOT recommended that the rule be modified so that the static end

strength provision only apply to passenger equipment ordered after

January 1, 1999. The NARP, in its comments on the proposed rule, shared

WDOT's opposition to imposing the static end strength requirement on

existing passenger equipment, and it recommended instead applying the

requirement under a time-table similar to that proposed generally for

structural requirements--i.e., ordered on or after January 1, 1999, or

placed in service for the first time on or after January 1, 2001. The

NARP believed that the proposal could cancel WDOT's rail passenger

program and thereby lead to countless, unnecessary highway deaths

involving people that otherwise would have been on a WDOT passenger

train.

In commenting on the 1997 NPRM, the State of Vermont Agency of

Transportation (VAOT) explained that it was in the process of

implementing new passenger rail service with used rail diesel cars

manufactured by Budd. The cars were originally built to meet the AAR

buff strength requirement, according to the VAOT, but it could not

assure that the vehicles meet the standards today. The VAOT requested

that the Budd cars be grandfathered because they were manufactured to

AAR standards, built prior to April 1,

[[Page 25545]]

1956, and have a proven service record. The VAOT believed it fair for

the rulemaking to grandfather these cars as being compliant at the time

ordered by VAOT. Similarly, the NYDOT recommended in its comments on

the proposed rule that the structural requirements apply only to new

equipment, citing its intent to operate rebuilt turboliner equipment in

the Empire Corridor through a cooperative effort with FRA and Amtrak.

Further, the North Carolina Department of Transportation (NCDOT)

expressed concern in its comments on the proposed rule that the

rulemaking would require its fleet of rebuilt passenger, food service

and specialty cars to undergo additional renovations and retrofitting

to comply with the rule. NCDOT commented that its trainsets were

designed to meet the passenger equipment safety standards in effect at

the time of their order, and that the proposed regulation has the

potential to thwart its rail passenger initiative.

In the final rule, FRA is retaining the 800,000-pound static end

strength requirement for most new and existing passenger equipment.

However, the final rule does provide that the static end strength

standard and other structural standards do not apply to equipment used

exclusively on a rail line (A) with no public highway-rail grade

crossings, (B) on which no freight operations occur at any time, (C) on

which only passenger equipment of compatible design is utilized, and

(D) on which trains operate at speeds no higher than 79 mph. See

Sec. 238.201. Furthermore, the final rule creates a presumption that

passenger equipment in service in the United States as of the effective

date of the final rule meets the 800,000-pound static end strength

requirement, unless the railroad operating the equipment knows, or FRA

can show, that the equipment was not built to this 800,000-pound

strength requirement. See Sec. 238.203(b). Under this formulation, for

example, Amtrak's fleet of Heritage passenger cars are presumed to

comply with the static end strength requirement on the basis of

Amtrak's testimony at the public hearing on the NPRM.

FRA has decided that it is in the best interest of safety to apply

the buff strength requirement to existing passenger equipment and

effectively regulate the use of passenger equipment not possessing at

least 800,000 pounds of buff strength as specified in this rule. As

noted, the operating environment in the United States requires railroad

passenger equipment to operate commingled with heavy and long freight

trains, often over track with frequent grade crossings used by heavy

highway equipment. FRA has serious concerns about the operation in such

an environment of passenger equipment not possessing a minimum buff

strength of 800,000 pounds. As a result, and in response to Talgo's and

WDOT's comments on this rule, FRA cannot avoid directly addressing the

current operation in the United States of the passenger trainsets

manufactured by Talgo unless FRA disregards its duty to provide for the

safety of rail passenger transportation. Since FRA has raised the issue

of compressive strength on passenger equipment with all affected

parties since well before the inception of this rulemaking, it would

strain credulity to assert that a requirement for 800,000 pounds of

compressive strength could truly be a matter of surprise in a

rulemaking on railroad passenger equipment safety.

Making the 800,000-pound compressive strength requirement

applicable to existing passenger equipment creates a bright line that

will help bring needed clarity to the growing number of situations

where light rail equipment is likely to be used on the general railroad

system of transportation. Operation on the general system of this

equipment, which is built to standards far lower than the 800,000-pound

standard specified in this rule, presents enormous safety risks to the

occupants of the equipment, absent imposition of strict conditions

designed to virtually eliminate the risk of a light rail/conventional

equipment collision. The need to address these risks as a condition of

operation will be made perfectly clear by imposition of the buff

strength requirement across the board. Light rail operators will have

to seek a waiver of the requirement and will have to plan their

operations in such a way as to maximize the likelihood of obtaining

such a waiver. (A petition for grandfathering approval of the equipment

could also be filed in certain cases, as discussed below.)

In regulating the use of passenger equipment not possessing a

minimum buff strength of 800,000 pounds as specified in this final

rule, the rule permits non-compliant passenger equipment to be

continued in service for a six-month period following publication of

the rule in order to permit the filing of a grandfathering petition

with FRA; if a petition is filed within this six-month period,

operation may continue for up to an additional six months while the

petition is being processed. Grandfathering approval of non-compliant

equipment is limited to usage of the equipment on a particular rail

line or lines. Before grandfathered equipment can be used on another

rail line, a railroad must first file and secure approval of a

grandfathering petition for such usage. See discussion under

Sec. 238.203 for the contents of the petition and the approval process.

FRA will approve a petition for ``grandfathering'' if it complies with

the requirements of Sec. 238.203 and the proposed usage of the

equipment is in the public interest and consistent with railroad

safety. Amtrak and WDOT may file petitions for grandfathering approval

of their Talgo-manufactured passenger equipment, in accordance with the

requirements of Sec. 238.203.

C. United States International Treaty Obligations

The United States is a party to the General Agreement on Tarriffs

and Trade (GATT). One of the GATT agreements is the Agreement on

Technical Barriers to Trade (TBT), originally concluded in 1979 and

approved by the United States Congress in the Trade Agreements Act of

1979, Pub. L. No. 96-39 (July 26, 1979). A new TBT Agreement was

reached as a result of the 1994 Uruguay Round of GATT multinational

trade negotiations, and subsequently approved by the United States

Congress in the Uruguay Round Agreements Act, Pub. L. No. 103-465

(December 8, 1994). The TBT Agreement seeks to avoid creating

unnecessary obstacles to trade, while recognizing the right of

signatory countries to establish and maintain technical regulations for

the protection of human, animal, and plant life or health. The TBT

Agreement has been codified into law at 19 U.S.C. 2531 et seq.

In commenting on the NPRM, Talgo believed that a number of the

proposed structural standards were inconsistent with the TBT Agreement

in that domestic industry would be favored by adopting the de facto

standards of North American passenger equipment. Talgo stated that many

requirements in the proposed rule seem to have been developed

exclusively with domestically-manufactured equipment in mind,

``arbitrarily making compliance with the rules by other, non-U.S.

manufactured equipment--such as Talgo equipment--extremely difficult.''

Talgo also asserted that domestic industry would be favored under the

implementation schedule of the rule by noting FRA's statements in the

NPRM that several of the proposed structural requirements chosen for

early implementation reflect the current construction practice for

North American passenger equipment. Talgo contended that the

implementation

[[Page 25546]]

schedule disregards that, solely because imported equipment has been

designed differently, it cannot satisfy the requirements at once.

FRA believes that this final rule is consistent with the United

States' obligations under the TBT Agreement, and that Talgo's concerns

arise, in part, from a misunderstanding of FRA's use of the term

``North American passenger equipment.'' Article 2.1 of the TBT

Agreement, cited by Talgo in its comments, states:

Members shall ensure that in respect of technical regulations,

products imported from the territory of any Member shall be accorded

treatment no less favorable than that accorded to like products of

national origin and to like products originating in any other

country.

A ``technical regulation'' refers to mandatory product standards, and

FRA agrees with Talgo that the structural standards in this rule fall

under this definition. See Annex 1 to the TBT Agreement, ``Terms and

Their Definitions for the Purpose of this Agreement, 1.'' However, the

impact of this rule on Talgo passenger equipment, specifically its

passenger cars, has nothing to do with the fact that the equipment

originates in a foreign country, Spain, as opposed to the United

States.

Through this rule, FRA is not favoring rail passenger cars that are

domestically manufactured over those of foreign origin since, as far as

FRA is aware, there is currently no domestic manufacturer of rail

passenger cars in the United States. (The General Electric Company and

the General Motors Corporation manufacture locomotives in the United

States--not rail passenger cars; and neither entity is being favored by

FRA in this rule over foreign manufacturers of locomotives.) Of course,

a significant portion of the nation's rail passenger car fleet--the

oldest portion--has been manufactured in the United States. Yet, over

the years, manufacturers from Japan, Canada, and other countries have

exported passenger cars to the United States for service on the

nation's railroads. Overall, these imported rail passenger cars have

possessed the same minimum structural strength as their domestic

forebearers; they have been constructed to standards that are common to

North American passenger equipment, i.e., passenger equipment operated

in North America. The five Talgo trainsets noted earlier have not been

so constructed. FRA's use of the term North American passenger

equipment (or United States passenger equipment, for that matter) was

not intended to refer to passenger equipment manufactured in North

America in distinction to passenger equipment manufactured elsewhere.

Talgo also commented that, to a significant extent, the proposed

requirements were design-based and phrased in a number of places in

variables dependent on design rather than performance. In this regard,

Talgo believed the proposed rule violates Article 2.8 of the TBT

Agreement, which states: ``Wherever appropriate, Members shall specify

technical regulations based on product requirements in terms of

performance rather than design or descriptive characteristics.'' Talgo

asserted that the rule can and should be stated in terms of variables

relating to the performance of the equipment rather than its design,

and that the rule should accommodate different engineering designs,

such as its articulated, lightweight trainsets.

The principal structural requirement of the final rule, which

existing Talgo-manufactured passenger cars do not meet, is in fact a

performance-based requirement. As further specified in Sec. 238.203,

the rule requires that new and existing passenger cars must possess a

minimum static end strength of 800,000 pounds. The rule does not

dictate how a passenger car must be constructed to meet this

requirement, as long as the car can resist the specified 800,000-pound

load. This formulation is consistent with the requirements of 19 U.S.C.

2532(3), which states:

Performance Criteria.--Each Federal agency shall, if

appropriate, develop standards based on performance criteria such as

those relating to the intended use of a product and the level of

performance that the product must achieve under defined conditions,

rather than on design criteria, such as those relating to physical

form of the product or the types of material of which the product is

made.

(Of course, the rule does require that the body structure of a

passenger car be designed, to the maximum extent possible, to fail by

buckling or crushing, or both, of structural members when overloaded in

compression rather than by fracture of structural members or failure of

structural connections. See Sec. 238.203(c). Yet, in any regard, FRA

believes it unsafe to design a passenger car to fail first by fracture

of structural members or failure of structural connections, as the

ability of the car structure to absorb collision energy is negated.)

FRA recognizes that the five Talgo trainsets were designed to

international standards that require lesser compressive strength. Talgo

has pointed out that these trainsets will be configured in the same

manner as two leased trainsets formerly operated in the State of

Washington. These trains are intended to be pulled by a conventional

locomotive and have unoccupied units at the front and rear of the

trainsets which are available to absorb initial crash energy. Talgo

contends that this configuration provides equivalent protection from

loss of occupied volume in a rear-end or head-on collision when

compared with conventional cars which would be occupied by passengers

or crew. FRA has provided a process for WDOT and others to secure

grandfathering approval regarding the compressive strength requirement

for passenger equipment placed in use prior to November 8, 1999, as

previously noted. However, as explained below, FRA is unable to relax

the minimum compressive strength requirement for passenger equipment

simply on the basis of train configuration, since to do so would

diminish the safety provided for the rail travelling public as a whole.

FRA believes the minimum static end strength requirement in the

final rule is not inconsistent with the TBT Agreement, in that it

fulfills FRA's objective of protecting human safety and only restricts

the use of equipment not meeting that objective because of the

performance of the equipment--not because of the origin of the

equipment. In this regard, 19 U.S.C. 2531(b) provides in part:

No standards-related activity of any * * * Federal agency * * *

shall be deemed to constitute an unnecessary obstacle to the foreign

commerce of the United States if the demonstrable purpose of the

standards-related activity is to achieve a legitimate domestic

purpose including * * * the protection of legitimate health or

safety * * * and if such activity does not operate to exclude

imported products which fully meet the objectives of such activity.

Having a passenger car possess a minimum compressive strength of

800,000 pounds, along with other features, has evolved as a result of a

long history of efforts by railroads and suppliers to learn the hard

lessons taught by a difficult operating environment in the United

States. Passenger train collisions and derailments may occur in a

variety of different scenarios and implicate structural features of

passenger equipment in similarly numerous ways. The rule cannot be

applied in a general way to both (1) except any consist of passenger

cars from the same compressive strength requirements applicable to all

other passenger cars solely because the passenger car consist is

buffered at each end by an unoccupied car and linked by articulated

connections, and (2) provide

[[Page 25547]]

for the safety of the occupants of passenger cars.

Further, over the past few years, FRA has funded the most extensive

and detailed research and analysis ever conducted by a public body in

the United States concerning passenger car safety. That effort has

included attention to international practice, particularly for high-

speed equipment. However, given existing data and analysis, FRA is

unable to specify an alternate performance standard for passenger car

compressive strength that would meet FRA's safety objectives and be

equally applicable to passenger cars of any design that might some day

be proffered for use in the United States. Nor, so far as FRA is aware,

has any government or international body achieved a similar feat.

Certainly doing so within the time available to issue standards under

the 1994 statutory mandate would not have been possible.

FRA notes that Talgo further commented that the early

implementation dates proposed for certain structural requirements are

inconsistent with Article 2.12 of the TBT Agreement in that a

sufficient amount of time would not be provided foreign producers to

modify their products' design or manufacturing processes to comply with

new or significantly revised regulatory requirements. Article 2.12

provides:

Except in those urgent circumstances referred to in [Article 2]

paragraph 10 [of the TBT Agreement], Members shall allow a

reasonable interval between the publication of technical regulations

and their entry into force in order to allow time for producers in

exporting Members * * * to adapt their products or methods of

production to the requirements of the importing Member.

In the final rule, the compressive strength requirement takes effect

sooner than any other principal structural requirement, and it applies

to both new and existing passenger cars and locomotives. If any

provision of the rule were found to be inconsistent with Article 2.12

of the TBT Agreement, then, it would most likely be the compressive

strength requirement. However, the United States Congress has expressly

authorized applying the requirements of the final rule to existing

passenger cars, provided only that the basis for doing so is explained

in the rulemaking document. See Section 215 of the Federal Railroad

Safety Authorization Act of 1994, above, as codified at 49 U.S.C. 20133

(``The Secretary may make applicable some or all of the standards

established under this subsection [, 49 U.S.C. 20133(a),] to cars

existing at the time the regulations are prescribed.''). FRA has made

the compressive strength requirement applicable to existing passenger

cars as explained in the preamble. However, through the submission of

appropriate data and analysis, and approval by FRA as further specified

in Sec. 238.203, discussed below, certain passenger cars not possessing

the minimum compressive strength of 800,000 pounds may operate on the

general railroad system of transportation, and the rule does afford a

reasonable time for that information to be gathered.

In providing the possibility that some equipment now being used

which does not meet the buff strength requirement of this rule might

continue to be used (``grandfathered''), FRA intends to permit only

very safe operations to occur. Petitioners will need to demonstrate--

through a quantitative risk assessment that incorporates design

information, engineering analysis of the equipment's static end

strength and of the likely performance of the equipment in derailment

and collision scenarios, and risk mitigation measures to avoid the

possibility of collisions or to limit the speed at which a collision

might occur, or both, that will be employed in connection with the

usage of the equipment on a specified rail line or lines--that use of

the equipment, as utilized in the service environment for which

recognition is sought, is in the public interest and is consistent with

railroad safety. In this regard, FRA notes that passenger equipment not

possessing the minimum static end strength specified in this rule does

not have the same capacity to absorb safely within its body structure

the compressive forces that develop in a collision as equipment meeting

the standard. The engineering analysis submitted by the petitioner

should address how these forces will be dissipated in a manner that

does not jeopardize occupant safety in collision scenarios.

D. Non-Conventional Passenger Equipment

As noted above, commenters have requested that FRA specify design-

neutral or performance-based requirements so that the safety of all

passenger equipment may be evaluated on the same basis. In comments in

this docket, Talgo has suggested substituted (and reduced) force levels

that it believes are appropriate for inclusion in the final rule in

lieu of those proposed for truck-to-carbody attachment and anti-

climbing arrangements, for instance. As explained, FRA has specified

the compressive strength requirement as fairly as we are able in

consideration of the safety of the rail travelling public. FRA has also

done so with respect to the other structural requirements in the rule.

FRA recognizes that the existing Talgo trainsets presents unique

challenges in terms of describing appropriate force levels in several

regards. FRA understands that the Talgo trainsets are articulated, low-

floor trainsets with independently rotating wheels. The car bodies are

made from light-weight aluminum extrusions. In contrast, the vast

majority of passenger carrying equipment used on the nations's

railroads is individually suspended, has automatic couplers, has a

higher floor height above the rail, has wheels fixed to an axle, and is

constructed with a steel underframe made up from fabricated members.

FRA has conducted, and continues to conduct, research which addresses

the influence of carbody construction, suspension configuration, and

coupling arrangement on the crashworthiness, derailment tendency, and

other safety-related aspects of Talgo and other non-conventional

equipment.

Developing safety regulations requires detailed technical knowledge

of the system being regulated. At the time this rule is being written,

FRA is unable to specify alternative performance-based standards with

respect to the structural requirements in this rule that would meet

FRA's safety objectives for passenger equipment of any design. Areas of

particular technical concern with regard to the Talgo trainsets, which

need to be resolved by FRA through an ongoing exchange of information,

include the nature of its articulated connection and its potential to

allow override in a collision, and the welding of the aluminum

extrusions which make up the body shell. The Talgo tilt trainsets have

characteristics that are unique, or nearly unique, that may either

reduce or increase vulnerability in a derailment or collision. For

instance, the articulated design of the trainset may tend to keep the

train in line in the case of a derailment where the decelerations are

reasonably uniform throughout the length of the train, preventing

secondary impacts. On the other hand, the absence of major structural

members in the floor of the passenger units could be a serious problem

should the train be involved in a collision with freight train cars or

lading that has fouled the track on which the passenger train is

travelling, as a result of the freight train having derailed. In this

regard, the absence of major structural members in the floor of the

Talgo passenger units increases their vulnerability to penetration by

the

[[Page 25548]]

trainset's trucks, should the trucks separate from the train.

Historically, the United States industry requirement for a minimum

compressive strength has reinforced a pattern of passenger car

construction resulting in use of stiff, quite substantial underframes

that have served other practical purposes in derailments and

collisions, including prevention of car body buckling, prevention of

harm to passengers from failure of the floor structure and entry of

debris, and resistance to penetration of the car from the side where

the primary impact was at the floor level. Both with respect to

compressive strength and other structural requirements that the Talgo

trainset may not be able to meet, it is important to ensure that

alternative means of achieving crashworthiness are just as successful

as the standards described in this final rule.

Creating alternative performance-based standards for a particular

type of passenger equipment requires a very early dialogue and

technical information exchange. In the summer of 1995, FRA convened the

first meeting of equipment manufacturers (including representatives of

Canadian, European and Japanese consortia) to discuss passenger safety

standards. That meeting led to designation of equipment manufacturer

representatives as associate members of the Passenger Equipment Safety

Standards Working Group. Although notified along with a number of other

manufacturers of passenger equipment, Talgo representatives did not

participate in the process. (For its part, the WDOT did not formally

indicate to FRA an interest in participating in the rulemaking until

after the Working Group had tentatively agreed on the structural

standard proposals--FRA received a letter from the WDOT commenting on

the ANPRM on September 4, 1996. However, AASHTO had participated from

the beginning of the rulemaking.) Talgo did not enter the discussions

directly until publication of the NPRM in September of 1997, and was

still in the process of providing engineering data through October of

1998. Given the timing of this latest submission of data to FRA,

approximately ten-months after the close of the public comment period

on the NPRM, FRA has not had the opportunity to fully evaluate the

information provided by Talgo for purposes of this rule.

FRA appreciates Talgo's recent undertakings to conform any future

trainsets (beyond the five trainsets noted earlier) built for North

American service to the 800,000-pound static end strength requirement

and any other applicable requirements in this rule. FRA will be pleased

to work with Talgo and members of the Working Group in Phase II of the

rulemaking to determine whether different performance-based regulations

are appropriate. In the interim, FRA has provided a special approval

process in Sec. 238.201 for considering whether the new generation of

Talgo equipment and any other passenger equipment of special

construction provide an equivalent level of safety with the Tier I

standards (other than the static end strength requirements) contained

in the final rule. See the discussion in the section-by-section

analysis of Sec. 238.201 for an explanation of the special approval

process.

E. System Safety

FRA believes that passenger railroads should carefully evaluate

their operations with a view toward enhancing the safety of those

operations. The importance of formal safety planning has been

recognized in Emergency Order No. 20 (61 FR 6880; Feb. 22, 1996) and

the rule on passenger train emergency preparedness (63 FR 24630; May 4,

1998). In furtherance of safety planning, the 1997 NPRM contained a set

of system safety requirements to be applied to all intercity passenger

and commuter rail equipment. See 62 FR 49760. FRA intended that each

individual passenger railroad be required to develop a system safety

plan and a system safety program tailored to its specific operation,

including train speed. FRA explained, however, that the Working Group

did not reach consensus on system safety requirements for Tier I

equipment; whereas the Tier II Subgroup did reach full consensus on

system safety program requirements for Tier II equipment. Strong

support did exist among Working Group members to apply formal system

safety planning to Tier I equipment, yet views differed as to whether

system safety planning should be required by law.

In particular, the 1997 NPRM noted that APTA objected to FRA

issuing any regulations governing system safety plans because commuter

railroads have voluntarily agreed to adopt such safety plans. 62 FR

49734. FRA also explained its understanding that APTA's system safety

approach will be more comprehensive than what FRA proposed and address

each commuter railroad's system more as an integrated whole, not

focused principally on rail equipment. See 62 FR 49734. FRA therefore

invited comment on APTA's suggestion that commuter railroads be allowed

to regulate themselves in this area; whether FRA should mandate the

contents of system safety plans; whether the areas FRA proposed to

require railroads to address were appropriate; whether additional areas

should be added; and to what extent FRA should propose to enforce

portions of the system safety plans. FRA further asked whether the rule

should require that system safety plans be comprehensive and address

the entire railroad system in which the equipment operates, as well as

whether the emergency preparedness planning requirements contained in

the passenger train emergency preparedness rulemaking be expressly

integrated with the system safety planning requirements contained in

this part. Id. at 49733-4.

In commenting on the rulemaking, APTA believed FRA's approach to

system safety short-sighted in that it would apply only to the

equipment component of the commuter railroad system and therefore

ignore track, signal system, other infrastructure, and operating

practices components. Further, APTA questioned FRA's general focus in

the system safety plan (on fire safety; software safety; inspection,

testing and maintenance; training; and new equipment) prior to having a

railroad identify its major safety risks through its individual system

level analysis. APTA stated that it supports a true system safety

approach that allows each railroad to determine its own major safety

risks and addresses all the components of the passenger rail system--

not just the equipment component.

As an alternative to Federal regulation, APTA proposed a system

safety program based on system safety plans--developed using MIL-STD-

882C as a guide--that would be submitted by its individual member

railroad properties and audited by APTA. APTA explained it would invite

FRA to observe the audits and the follow-up actions taken by the

commuter railroads in response to the audits. APTA requested that FRA

hold Federal requirements for commuter railroad system safety plans in

abeyance for a 3-year probationary period--corresponding to one

complete audit cycle--while FRA observes and evaluates the program.

Amtrak commented that it supports APTA's position on system safety

for both Tier I and Tier II equipment. Amtrak believed it appropriate

for FRA to start with a voluntary system safety approach and then,

based on actual experience, follow up with specific regulations in the

future. Amtrak believed FRA needs to allow the industry the time to

establish the

[[Page 25549]]

culture and process that allows system safety to function without

creating an unwarranted bureaucratic burden.

In its comments on the 1997 NPRM, Metra agreed with the value of a

system safety plan, but believed that such plans should not be

regulated. Metra recommended the rule contain only a top-level system

safety plan requirement for railroads to identify the most serious

safety risks within their specific operations, and then allow each

railroad to create its own programs to reduce those risks. Metra

explained that a railroad's system safety plan should project beyond

current practice to continuously improve that practice and that Federal

enforcement of such a plan would continually find violations because

current practice would not reflect the ideals set forth in the plan.

Metra believed that FRA regulation would make a system safety plan a

useless tool for improving safety, as the plan would be limited to

mimicking Federal regulation and describing current practice. In

addition, Metra noted that a system safety plan is distinct from a

document that describes current practice for routine and regulated

activities. Metra proposed that this document, a safety policy,

reference all current-practice safety-related procedures and require

railroads to adhere to them.

Bombardier commented that the 1997 NPRM does not provide the

latitude for each railroad to tailor or customize its system safety

plan to its individual operations and needs. Further, Bombardier

believed that the NPRM confuses the requirements for the railroad's

system safety plan with those required for equipment acquisition. If

FRA insists that the rule contain a requirement for a system safety

plan, according to Bombardier, it should be limited to requiring each

railroad to develop its own plan based on MIL-STD-882C or APTA's Manual

for the Development of a System Safety Plan for Commuter Railroads.

Separately, the rule should require a system safety plan specifically

addressing equipment procurement.

The BRC commented that FRA must mandate the contents of system

safety plans to ensure that vital topics are included in such plans.

Further, the BRC believed FRA must have the power to enforce compliance

with system safety plans. Otherwise, the BRC believed the plans

themselves would amount to little more than suggested operating

practices. The BRC also believed that FRA must review each railroad's

system safety plan and approve it only if it complies with Federal

regulations. Similarly, the UTU commented that the 1997 NPRM's

provisions on system safety plans is the most important section of the

rule. The UTU believed FRA should continue to treat it as such and not

allow it to be weakened.

The NTSB commented that it supports FRA mandating the contents of

system safety plans for minimal consistency and oversight, rather than

allowing the railroads to regulate themselves in this area, so that

important safety elements are consistently included in each safety

plan. The NTSB believed that the system safety plans should be

comprehensive and address the entire railroad system in which the

passenger equipment operates. The NTSB observed that if the industry

does not have a comprehensive system safety plan, it may not be able to

identify, track, monitor, or rectify situations that can lead to unsafe

conditions. Further, the NTSB remarked that system safety should be a

continuous, iterative process that has a built-in feedback mechanism

and should be used throughout the program's life cycle to arrive at the

best plan possible.

The NTSB noted that it has made safety recommendations urging FRA

to include specific safety requirements in a system safety plan. It

urged FRA to incorporate the following recommendations into FRA's

general requirements for system safety plans:

Require carriers to train employees in emergency procedures to

be used after an accident, to establish priorities for emergency

action, and to conduct accident simulation to test the effectiveness

of the program, inviting civic emergency personnel participation.

(R-76-29)

Develop and validate through simulated disaster exercises a

model emergency response plan for the guidance of the railroad

industry in formulating individual plans to be utilized by their

train crewmembers in the event of an emergency. (R-80-6)

In this regard, FRA did issue final regulations governing the

preparation, adoption, and implementation of emergency preparedness

plans by railroads connected with the operation of passenger trains, in

the passenger train emergency preparedness rulemaking. See 63 FR 24630,

May 4, 1998. That rule specifically requires emergency preparedness

plans to 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 is also subject

to formal review and approval by FRA.

FRA believes the approach taken in the emergency preparedness

rulemaking in requiring railroads to adopt a safety plan addressing

specific topics is more appropriate than imposing a general requirement

for railroads to adopt a comprehensive system safety plan. FRA believes

this is consistent with the view of the commenters to mandate the

contents of safety program plans for minimal consistency and oversight,

so that important safety elements are included in each safety plan. At

the same time, focusing the safety planning requirements and

streamlining the rule will facilitate the regulated community's

understanding of the rule's requirements and thereby aid in its

compliance. As further specified, the final rule will require that each

railroad adopt safety program plans addressing:

Fire safety;

Employee training and qualifications;

Equipment inspection, testing, and maintenance;

Pre-revenue service acceptance testing of equipment; and

Train hardware and software safety.

In addition, more particular safety planning requirements are imposed

on Tier II passenger equipment, as discussed below, reflecting both the

greater risks to safety from operating the equipment at such high

speeds and the importance of advanced planning in order to meet new

safety challenges.

As FRA recognized in the 1997 NPRM, FRA's proposed approach to

system safety focused principally on rail passenger equipment. This was

not a pure system safety approach, inasmuch as FRA did not focus on

safety planning for others elements of the railroad infrastructure such

as the track and signal system, or for a host of items including

platform safety, security and trespasser prevention.

FRA will closely monitor Tier I railroad operations in their

development and adherence to voluntary, comprehensive system safety

plans. FRA has already established a liaison relationship with APTA and

has already begun participating in system safety plan audits on

commuter railroads. FRA is using this involvement to enrich FRA's

Safety Assurance and Compliance Program (SACP) efforts on these

railroads--which, unlike the triennial audit process for system safety

plans, is a continuous activity with frequent on-property involvement

by FRA safety professionals. FRA will reconsider its decision not to

impose a general requirement for system safety plans on Tier I railroad

operations if the need to do so arises. FRA expects that

[[Page 25550]]

Tier I railroad operations will be able to integrate the specific

safety planning requirements contained in this final rule into their

own system safety plans, in the same way the railroads will incorporate

into their plans the emergency planning requirements contained in 49

CFR part 239.

FRA is retaining more extensive safety planning requirements for

Tier II railroad operations. These requirements are directed at

ensuring the safety of the equipment in its operating environment and

that the introduction of novel technology is thoroughly analyzed prior

to procurement of the equipment. Tier II railroad operations will be

operations with new characteristics that require special attention and

have heightened safety risks due to the speed of the equipment. In

particular, each railroad must a have safety program plan for the

operation of its Tier II passenger equipment prior to placing the

equipment into revenue service. In addition, each railroad must have a

safety program plan for each procurement of Tier II passenger equipment

or major upgrade or introduction of new technology in Tier II passenger

equipment. The railroad must also receive FRA approval of a pre-revenue

service acceptance testing plan, as well as FRA approval prior to

placing such new or modified equipment into revenue service.

In general, however, the final rule does not require that FRA

approve a railroad's safety plans required under the rule. As noted,

FRA believes it best to focus its resources on Tier II passenger

equipment operations due to their special circumstances. Further, FRA

approval may not be necessary when, by operation of the rule, each

railroad must independently comply with specific safety planning

requirements or face sanction from FRA. Under 49 CFR Sec. 238.11 of the

final rule, any person who violates any requirement of this part or

causes the violation of any such requirement is subject to a civil

penalty.

F. Side Exit Doors on Passenger Cars

In the 1997 NPRM, FRA generally proposed that new passenger cars

have a minimum of four exterior side doors--or the functional

equivalent of four such doors--each door permitting at least one 95th-

percentile male to pass through at a single time. See 62 FR 49807

(Sec. 238.237), and 62 FR 49820 (Sec. 238.441). Exterior side doors are

the primary means of egress from a passenger train, yet there is no

Federal requirement that a passenger car be equipped with such doors.

FRA does recognize that in an emergency passengers would generally be

able to move through a passenger car's end doors to seek refuge in

adjacent cars. In fact, it is safer for passengers to remain on a train

unless doing so in itself risks their safety, because of hazards along

the railroad right-of-way such as electrified rails and other trains.

However, the tragic September 22, 1993 Amtrak train derailment near

Mobile, Alabama, and the February 16, 1996 collision involving MARC and

Amtrak passenger trains near Silver Spring, Maryland, show that in a

life-threatening situation passengers have no alternative but to exit

the train. All of the 42 passenger fatalities in the Mobile, Alabama

train derailment resulted from asphyxia due to drowning (NTSB Railroad-

Marine Accident Report 94/01), and the deaths of at least eight of the

eleven persons killed in the Silver Spring, Maryland train collision

resulted from the fire that ensued (NTSB Railroad Accident Report (RAR)

97/02). FRA is not suggesting that the cars involved in those accidents

lacked a sufficient number of emergency exits; nevertheless, these are

examples of instances where passengers have died because they could not

leave the train. (However, the NTSB did note in its investigation

report of the Silver Spring, Maryland train collision that ``[e]xcept

for those passengers who died of blunt trauma injuries, others may have

survived the accident, albeit with thermal injuries, had proper and

immediate egress from the car been available.'' Id. at page 63. The

NTSB explained in its explicit findings on the collision that ``the

emergency egress of passengers was impeded because the passenger cars

lacked readily accessible and identifiable quick-release mechanisms for

the exterior doors, removable windows or kick panels in the side doors,

and adequate emergency instruction signage.'' Id. at 73.)

So that each passenger car has sufficient doorway openings to allow

passengers and crewmembers to exit quickly in a life-threatening

situation, FRA proposed requiring that passenger cars be equipped with

side doors. Exiting a passenger train through a functioning emergency

window exit is slower than exiting a train through a functioning door,

and presents a risk of non-fatal injury. FRA made clear in the 1997

NPRM that the proposed side door requirement was not a recommendation

of the Working Group, although FRA believed such a requirement

necessary at least as an interim measure. See 62 FR 49770. FRA also

recognized that existing designs of passenger cars do not always

provide for four side doors, and, in fact, the proposed requirement did

not specifically require that passenger cars have four side doors. For

instance, the requirement would have been met if a passenger car had

two double-wide doors that permit two 95th-percentile males to pass

through each such door at the same time--the functional equivalent of

four side doors having openings of the same size in the aggregate. FRA

invited comments concerning the extent to which existing designs of

passenger cars could not comply with the proposed requirement, noting

that modifications to the proposal may be necessary based on the

information supplied. Further, as a long-term approach, FRA explained

that it is investigating an emergency evacuation performance

requirement similar to that used in commercial aviation where a

sufficient number of emergency exits must be provided to evacuate the

maximum passenger load in a specified time for various types of

emergency situations.

In its comments on the 1997 NPRM, APTA stated that the proposed

requirement would eliminate certain types of cars as well as certain

desirable car design safety features. Specifically, Amtrak would not be

able to procure Viewliner cars and NJT would not be able to increase

the number of Comet IV cab cars with extra structural protection for

train operators, according to APTA. APTA recommended that the rule text

be modified to include passenger car end doors in the calculation of

the required number of door exits. APTA believed this would encourage

structural changes that involve the elimination of a side door to

provide additional protection to train operators and allow Amtrak to

continue its Viewliner cars in service.

Amtrak, in commenting on the proposal, expressed particular concern

that the proposed requirement would prevent the future construction of

its Bi-Level Superliner equipment in a configuration that maximizes the

equipment's economic performance. Amtrak noted that its current policy

calls for equipping every window in such equipment with at least one

emergency pane, and that the proposed requirement would not take that

into consideration. Amtrak supported APTA's recommended modification to

the rule text.

The NARP also questioned the proposed side exterior door

requirement for passenger cars. The NARP noted that the most common way

to exit a car in an emergency is through the car's end doors, and it

suggested that emergency window exits are probably more reliable than

additional doors, believing the

[[Page 25551]]

doors are more likely to be rendered inoperable. The NARP stated that

research should focus on the relationship between a car's seating

capacity and layout and its emergency-exit capacity. The NARP opposed

requiring four doors on a 44-foot Talgo car, and saw little benefit

from adding additional doors to a Superliner dining car without a

costly stairwell installation. The NARP asserted that a requirement for

four side doors may be economically fatal for a single-level dining

car, and advised instead that one side door may be provided in the

hallway opposite the kitchen and a second side door placed in the

kitchen.

In commenting on the proposal, WDOT believed it not appropriate to

require four side doors on a 44-foot Talgo passenger car, which is

approximately half the length of conventional passenger cars. WDOT

stated that a Talgo passenger car has two exterior doors for a maximum

of 36 people in each car, while an Amtrak Horizon coach has four

exterior doors and seats 72 passengers. WDOT maintained that the rule

should reflect these differences or provide clear, concise performance-

based standards in the alternative. In this regard, WDOT found the term

``functional equivalent'' as used in the rule to be vague and in need

of better definition. Further, WDOT commented that, traditionally,

dining and bistro cars have not had exterior side doors; and requiring

such doors in these cars would significantly decrease the amount of

available dining space, decrease revenue-generating space, and add

substantial costs. WDOT recommended FRA remove dining and bistro cars

from any exterior side door requirement as it would decrease the amount

of available dining space and thereby reduce passenger convenience,

comfort and satisfaction. Talgo similarly commented that the proposed

requirement should be modified to state that the functional equivalent

of four side doors in a car of conventional length is two side doors in

a car of half the length, and that dining and bistro cars be exempted

from any requirement.

In response to the proposal in the NPRM, Bombardier recommended

that the wording of the rule be changed to require that each passenger

car have a minimum of two side doors. Bombardier noted that on Amtrak's

high-speed trainsets (HST), the passenger cars that will be positioned

next to the power cars are equipped with only two exterior side doors,

both of which are located on the end nearest to the power car. In the

event of an evacuation, Bombardier explained that passengers could exit

through those side doors as well as through the door at the opposite

end of the car. Bombardier believed the use of such end doors should be

considered in determining the time needed to evacuate a passenger car,

and it noted in this regard that intercity passenger cars generally

carry fewer passengers than commuter cars.

Based on the comments received, FRA has decided to modify the

requirement for exterior side doors on Tier I passenger cars ordered on

or after September 8, 2000 or placed in service for the first time on

or after September 9, 2002, and for any Tier II passenger car placed in

service. The final rule requires that each such passenger car have a

minimum of two exterior side doors, and each door must have a minimum

clear opening of 30 inches horizontally by 74 inches vertically. Since

the minimum number of required side doors has been reduced from that

proposed in the NPRM, this provision should not hinder railroads from

removing the locomotive engineer's exterior side door in cab car and MU

locomotive control compartments for purposes of adding to the

structural integrity of the equipment. As the BLE raised in its

comments on the rule, removing this side door allows for a continuous

side sill structure along the control compartment, thereby enhancing

the compartment's structural integrity and reducing the risk the

compartment will be crushed in a corner or side impact. A dining car or

other food service car is subject to the side door requirement as a

passenger car under this rule, since FRA believes that all passenger

cars must have exterior side doorway openings to allow for passenger

and crew escape in a life-threatening situation, and also permit

emergency rescue access.

Unlike the proposed rule, FRA has specified the dimensions of the

doorway opening in inches rather than retain the language referencing a

95th-percentile adult male. This modification clarifies the rule for

the regulated community in that what constituted a 95th-percentile

adult male was originally not defined. FRA believes that a doorway with

a minimum clear opening of 30 inches horizontally by 74 inches

vertically will provide passage for a large, fully-clothed person and

accommodate emergency response personnel equipped with fire and rescue

gear. For instance, see the discussion below of Sec. 238.113 (Emergency

window exits) for detail on the sizes of adult backboards used by

emergency responders to evacuate injured persons. FRA has specified the

vertical dimension of 74 inches based on the height of the 95th-

percentile adult male (72.8 inches) stated in Table 2 of Public Health

Service Publication No. 1000, Series 11, No. 8, ``Weight, Height, and

Selected Body Dimensions of Adults,'' June 1965. (A copy of this

document has been placed in the public docket for this rulemaking.) The

stated height of 72.8 inches was recorded for adult males not wearing

shoes, and FRA has adjusted for this. FRA did not find this Public

Health Service Publication that useful for purposes of specifying a

horizontal dimension of the doorway as the stated body dimensions were,

in effect, recorded without clothing (see page 5)--and of course did

not address the size of equipment carried by emergency response

personnel. FRA notes that the Americans with Disabilities Act (ADA)

Accessibility Specifications for Transportation Vehicles also contain

requirements for doorway width clearance (See 49 CFR part 38). These

ADA requirements apply by their own force independent of the

requirements of this rule.

Further, unlike the proposed rule, the final rule no longer

provides that a passenger car may have the functional equivalent of the

specified number of side doors. Each passenger car must have at least

two separate, exterior side doorway openings. This will increase the

likelihood that at least one of a passenger car's side doorway openings

will allow passage in the event a train collision or derailment results

in either, or both, structural damage to--or blockage of--the door. In

this regard, railroads should consider where the passenger car side

doors are located so as to facilitate passenger and crew escape in a

life-threatening situation.

FRA reemphasizes that this requirement is only an interim measure

that will prevent passenger cars from being introduced into service

without side exterior doors. In Phase II of the rulemaking, FRA will

focus on formulating a systems approach to emergency egress that

provides for a sufficient number of emergency exits to evacuate the

maximum passenger car load in a specified time for various types of

emergency situations. FRA will evaluate with the Working Group whether

APTA's recommended approach to emergency egress under development in

APTA's PRESS Task Force should be incorporated into the Phase II

rulemaking.

G. Fuel Tank Standards

Locomotive diesel fuel tanks are vulnerable to damage from

collisions, derailments, and debris on the roadbed due to their

location on the underframe and between the trucks of locomotives.

Damage to the tank frequently results in spilled fuel, creating the

safety problem

[[Page 25552]]

of an increased risk of fire and the environmental problem of cleanup

and restoration of the spill site. Although 49 CFR 229.71 does require

a minimum clearance of 2.5 inches between the top of the rail and the

lowest point on a part or appliance of a locomotive, such as a fuel

tank, FRA regulations do not address the safety of fuel tanks in

particular.

In 1992, the NTSB issued a report identifying concerns regarding

safety problems caused by diesel fuel spills from ruptured or punctured

locomotive fuel tanks. Entitled ``Locomotive Fuel Tank Integrity Safety

Study,'' the NTSB report cited in particular a collision involving an

Amtrak train and an MBTA commuter train on December 12, 1990, as both

trains were entering a station in Boston, Massachusetts. (NTSB Safety

Study-92/04.) Fuel spilled from a tank which had separated from an

Amtrak locomotive during the collision. The fuel ignited. Smoke and

fumes from the burning diesel fuel filled the tunnel, increasing the

hazard level in the post-crash phase of the accident, and hindering

emergency response activity. As a result of the safety study, the NTSB

made several safety recommendations to FRA, including in particular

that FRA:

Conduct, in conjunction with the Association of American

Railroads, General Electric, and the Electro-Motive Division of

General Motors, research to determine if the locomotive fuel tank

can be improved to withstand forces encountered in the more severe

locomotive derailment accidents or if fuel containment can be

improved to reduce the rate of fuel leakage and fuel ignition.

Consideration should be given to crash or simulated testing and

evaluation of recent and proposed design modifications to the

locomotive fuel tank, including increasing the structural strength

of end and side wall plates, raising the tank higher above the rail,

and using internal tank bladders and foam inserts. (Class II,

Priority Action) (R-92-10)

Establish, if warranted, minimum performance standards for

locomotive fuel tanks based on the research called for in

recommendation R-92-10. (Class III, Longer Term Action) (R-92-11)

The NTSB reiterated Safety Recommendation R-92-10 in a letter to FRA

dated August 28, 1997, conveying the NTSB's final safety

recommendations arising from the February 16, 1996, collision between a

MARC commuter train and an Amtrak passenger train. During the

collision, the fuel tank on the lead Amtrak locomotive ruptured

catastrophically. The fuel sprayed into the exposed interior of the

MARC cab control car and ignited, engulfing the car. (Letter at 12.)

As explained in FRA's report to Congress on locomotive

crashworthiness and working conditions, FRA believes that fuel tank

design has a direct impact on safety. Minimum performance standards for

locomotive fuel tanks should be included in Federal safety regulations.

Accordingly, FRA proposed in the 1997 NPRM that AAR Recommended

Practice No. 506 (RP-506), Performance Requirements for Diesel-Electric

Locomotive Fuel Tanks, be incorporated into the rule as the external

fuel tank requirements for Tier I passenger locomotives. FRA believes

that RP-506 represents a good, interim safety standard for Tier I

passenger locomotives. In the final rule, FRA has restated the

requirements of RP-506 as Appendix D to part 238, as explained below,

and has thereby incorporated it into the final rule.

FRA does note that further study may yield additional safety

improvements for locomotive fuel tank design, and in September of 1997

FRA convened a Locomotive Crashworthiness Working Group of the Railroad

Safety Advisory Committee (RSAC) to develop standards regarding a broad

range of crashworthiness issues for both passenger and freight

locomotives, including fuel tanks. Freight locomotive fuel tanks can

cause a risk to passengers in the event of a train-to-train collision

involving a passenger and a freight train. Therefore, in addition to

the economy that can be achieved from standard fuel tank design

requirements for the entire industry, industry-wide design requirements

benefit both public and employee safety. Based on currently available

information through the Locomotive Crashworthiness Working Group, it

appears that locomotives built with AAR RP-506-compliant fuel tanks are

performing well in derailments and highway-rail crossing collisions.

In its comments on the proposed rule, the NTSB agreed that external

fuel tanks on Tier I locomotives should incorporate at a minimum, and

on an interim basis, RP-506. Yet, the NTSB believed that more demanding

safety standards for passenger locomotives be included in the permanent

Tier I fuel tank regulations, specifically: higher ground clearance,

compartmentalization, and a bottom skid plate. The NTSB noted that the

advantages of higher fuel tank ground clearance were shown in Amtrak

derailments in Kingman, Arizona, and Garden City, Georgia. According to

the NTSB, investigation of both accidents revealed that essentially no

fuel loss occurred in the involved locomotive units (GE Models P40 and

P42), despite a substantial accumulation of debris beneath the fuel

tanks that may have otherwise damaged current, conventional frame-

suspended fuel tanks. The NTSB attributed the maintenance of fuel tank

integrity to higher than typical fuel tank ground clearance, not found

in conventionally designed, frame-suspended fuel tanks. Accordingly,

the NTSB specifically recommended that fuel tank regulations should

require higher ground clearance for both Tier I and Tier II operations.

In light of the strong potential safety benefits associated with higher

locomotive fuel tank ground clearance, FRA will carefully consider with

the Working Group how best to implement the NTSB's recommendation in

Phase II of this rulemaking.

In addition, FRA invited comments whether the proposed rule should

require that locomotive fuel tanks be compartmentalized. The Working

Group specifically discussed requiring whether the interior of fuel

tanks be divided into a minimum of four separate compartments so that a

penetration in the exterior skin of any one compartment results in loss

of fuel only from that compartment. The Working Group recommended that

such a requirement be addressed in the second phase of the rulemaking,

to allow for additional research to remedy fuel feeding disruptions

that may result from the compartmentalization of fuel tanks. Commenters

were therefore requested to provide the results of specific research

and operating experience showing how compartmentalization can be

practically accomplished. Commenters were also asked to explain why the

issue of compartmentalization should or should not be addressed in the

final rule of this first phase of the rulemaking.

The NTSB commented that it supported continued research for fuel

tank compartmentalization to remedy fuel loss during derailments. It

stated that compartmentalization is required in aviation applications,

where fuel tanks within the airframe contour must be able to resist

rupture and retain fuel under inertial forces prescribed for emergency

landing conditions (citing 14 CFR 25.963). Therefore, research should

be conducted to determine if similar successes can be attained in

railroad application, according to the NTSB. The BLE also commented

that it supports requirements for compartmentalized fuel tanks on all

passenger locomotives. Noting that diesel fires create devastating

results in passenger train accidents, the BLE believed every effort

should be made to avoid them, including using the most advanced

technology possible. Further, APTA commented that it believes fuel tank

compartmentalization has the potential to reduce the amount of fuel

[[Page 25553]]

spilled in a railroad accident; recommended that FRA consider requiring

compartmentalized fuel tanks on new locomotives if the technical

difficulties resulting in interruptions in fuel flow are resolved; and

suggested that FRA make a priority to resolve these technical

difficulties. In accordance with these comments, FRA will carefully

consider with the Working Group in Phase II of the rulemaking a

requirement to compartmentalize fuel tanks on new locomotives, drawing

upon research conducted and experience gained in the interim through

the Locomotive Crashworthiness Working Group and the APTA PRESS Task

Force.

H. Train Interior Safety

Based on previous research results, the interior passenger

protection requirements for Tier I and II passenger equipment rely on

``compartmentalization'' as a passenger protection strategy. Such a

strategy has the advantages of being passive, i.e., requiring no action

to be taken on the part of the occupants, of being effective for a

range of occupant sizes, and potentially being effective in a wide

range of interior configurations. Research results indicate that during

a collision the interior environment of a passenger coach car is

substantially less hostile than the interiors of automobiles and

aircraft. Owing to this lower hostility in a collision environment, the

interior of a typical passenger coach car can provide a level of

protection to passengers without active restraints at least as

effective in preventing fatality as that protection afforded to

automobile and transport aircraft passengers with active restraints.

See the discussion on train interior safety in the NPRM for more

detail. 62 FR 49745-49749.

Conclusions from the research previously conducted on passenger

protection in train collisions show that lap belts and shoulder

restraints, if used, provide the highest level of occupant protection

of those protection strategies studied--greater than the level of

protection afforded by compartmentalization. However, as noted in the

NPRM, FRA believes that more research is necessary to determine the

feasibility and effectiveness of these active restraints, as well as

the impact on seat design and strength necessary to support the loads

associated with use of the restraints. In this regard, FRA requested

information and comment from interested parties whether there is any

existing research or experience which would justify active seat

restraints in this phase of the rulemaking. See 62 FR 49745.

In comments on the NPRM, Simula Technologies, Inc., (Simula) stated

that there may be a potential for a higher level of occupant protection

offered by passive or active restraints than by compartmentalization.

Simula noted that cost effectiveness considerations differ when

considering the application of occupant protection strategies to a

train crew as compared to passengers. For instance, it believed that

the relatively high expense of passive restraints may be justified for

one or two crewmembers in a particularly severe environment--for

instance, a locomotive cab. Simula agreed with FRA that more research

is needed to determine the most cost effective means of providing

occupant safety improvements.

APTA, in its comments on the NPRM, believed that FRA has taken the

correct approach in not mandating active seat restraints in this stage

of the rulemaking. APTA found accurate the description of the physics

of passenger motion during a collision which was contained in the

preamble of the NPRM. APTA noted that active seat restraints provide

the most benefit in high passenger deceleration situations, such as in

automobile collisions; whereas, in the case of the low decelerations of

passenger train collisions, other types of protection measures such as

compartmentalization to minimize the distance a passenger travels

before striking an interior surface and padding of interior surfaces

can be as effective as active seat restraints in protecting passengers

from secondary collisions.

In its comments on the NPRM, the BRC stated that, ideally,

passenger equipment should have seat belts or other restraints to keep

occupants from striking seats from behind or striking other interior

surfaces and occupants. The BRC believed this to be a true cause of

serious injury and death during rapid decelerations in collisions and

derailments. The BRC further commented that a seat must be strong

enough to hold an occupant utilizing such restraints and yet resist the

force(s) of other unrestrained occupants striking the seat. In

addition, a member of the public commented that Amtrak should provide

its passengers with lap belts and shoulder harnesses, noting that they

can reduce injuries to all occupants when used.

FRA has continued to pursue research into implementing seat belts

and shoulder restraints in intercity and commuter passenger equipment.

The purpose of this research is to develop the information required by

FRA to determine if occupant restraints should be required in future

regulations. This research is being conducted in three steps:

preliminary design studies; design development; and engineering

modeling, construction, and testing. The first step of the research has

been completed. Principal conclusions from the research to date are

that an existing inter-city passenger coach seat can be modified to

accept lap and shoulder belts. In particular, for Amtrak's traditional

seat design, appropriate modification of the connections between the

seat and floor, and between the seat pan and seat back, allow it to

support the loads associated with two restrained 95th-percentile adult

males occupying the seats as well as the loads associated with being

struck from behind by two 95th-percentile adult males. Such seats can

be designed to compartmentalize safely an unrestrained single 5th-

percentile adult female striking the seat from behind.

Existing three-position commuter seat designs cannot be modified to

accept lap and shoulder belts. The additional loads associated with the

third restrained and the third unrestrained occupant cause multiple

structural failures for existing three-position commuter seat designs--

these designs simply fold up under the load. In order to meet weight

requirements, advanced structural materials and fabrication techniques

are likely to be required to develop a three-position commuter seat

design which can support the loads associated with three restrained

95th-percentile adult males in the seats and the loads associated with

being struck from behind the seats by three 95th-percentile adult

males.

For the intercity passenger coach seat, FRA currently plans to

complete work on the details of the necessary modifications to Amtrak's

traditional seat design, modify accordingly four to six pairs of seats

for testing, and then dynamically sled test these seats. For the

commuter seat, a study is planned to develop an engineering model

design of a three-position commuter car passenger seat which

incorporates lap and shoulder belts. Composite structures and advanced

manufacturing techniques will be considered in this study. Principal

design considerations include the need to address secondary collision

loads, as well as manufacturing and maintenance costs, weight, and

durability.

In the second phase of the rulemaking, FRA and the Working Group

will reevaluate the feasibility and effectiveness of requiring active

restraints such as lap belts and shoulder harnesses in passenger

equipment, based on the results of the ongoing research.

[[Page 25554]]

I. Fire Safety

In 1984, FRA published guidelines recommending test methods and

performance criteria for the flammability, smoke emission, and fire

endurance characteristics for categories and functions of materials to

be used in the construction of new or rebuilt rail passenger equipment.

See 49 FR 33076, Aug. 20, 1984; 49 FR 44582, Nov. 7, 1984. The

guidelines were originally developed by the Volpe Center for the Urban

Mass Transit Administration (UMTA now FTA) of DOT in the late 1970s,

and were intended for application to rail transit vehicles. See 47 FR

53559, Nov. 26, 1982; 49 FR 32482, Aug. 14, 1984. FRA recommended

applying the guidelines to intercity and commuter rail cars, due to the

similarity of use for many of the materials in these cars.

The intent of the guidelines is to prevent fire ignition and to

maximize the time available for passenger evacuation if fire does

occur. FRA later reissued the guidelines in 1989 to update the

recommended test methods. See 54 FR 1837, Jan. 17, 1989. Test methods

cited in the FRA guidelines include those of the American Society for

Testing and Materials (ASTM) and the Federal Aviation Administration

(FAA). In particular, the ASTM and FAA testing methods provide a useful

screening device to identify materials that are especially hazardous.

FRA sought comments in the ANPRM on the need for more thorough

guidelines or Federal regulations concerning fire safety. See 61 FR

30696. FRA noted that fire resistance, detection, and suppression

technologies have all advanced since the guidelines were first

published. In addition, FRA explained that a trend toward a systems

approach to fire safety is evident in most countries with modern rail

systems. In response, the National Fire Protection Association (NFPA)

commented that perhaps more thorough guidelines are needed, or at least

should be evaluated. Fire Cause Analysis also responded that, at a

minimum, more in depth guidelines based on current system safety

procedures and available fire safety engineering techniques are needed.

The commenter noted in particular that Federal maintenance standards

related to fire safety are necessary to ensure that materials carefully

qualified for use in rail passenger vehicles because of their fire

safety characteristics are not replaced with either substandard

materials or materials whose origin and fire performance cannot be

determined.

The 1997 NPRM addressed fire safety by proposing to make FRA's fire

safety guidelines mandatory for the construction of new passenger

equipment as well as the refurbishing of existing equipment. See 62 FR

49803. As explained below in the discussion of this final rule, FRA has

simplified and revised the table of tests and performance criteria for

the flammability and smoke emission characteristics of materials used

in passenger cars and locomotive cabs. In addition, FRA has clarified

in the final rule the application of the required tests and performance

criteria. As proposed in the NPRM, the final rule also furthers fire

safety through a fire protection plan and program to be carried out by

each operating railroad, which will include conducting a fire safety

analysis of existing passenger equipment and taking appropriate action

to reduce the risk of personal injuries.

As noted in the NPRM, the National Institute of Standards and

Technology (NIST) of the United States Department of Commerce is

conducting research under the direction of FRA and the Volpe Center

involving the fire safety of rail passenger vehicles. The NIST project

is investigating the use of alternative fire testing methods and

computer hazard analysis models to identify and evaluate approaches to

passenger train fire safety. The evaluation is examining the effects

and tradeoffs of passenger car and system design (including materials),

fire detection and suppression systems, and passenger egress time. A

peer review committee has been established to provide project guidance

and review interim results and reports. The committee includes

representatives from FRA, the Volpe Center, the NFPA, builders of rail

passenger vehicles, producers of materials, Amtrak and commuter

railroads, and testing laboratories.

In the first phase of the NIST project, selected materials which

satisfy the testing methods referenced in FRA's fire safety guidelines

were evaluated using the ASTM E1354 Cone Calorimeter.\1\ The Cone

Calorimeter provides a measurement of heat release rate (the amount of

energy that a material produces while burning), specimen mass loss,

smoke production, and combustion gases. For a given confined space such

as a rail car interior, the air temperature and risk of harm to

passengers are increased as the heat release rate increases. As a

result, even if passengers do not come in direct contact with a fire,

they may likely be injured from the high temperatures, high heat

fluxes, and large amounts of toxic gases emitted by materials involved

in the fire. The results of the Phase I tests showed a strong

correlation between the FRA-cited test data and the Cone Calorimeter

test data.

---------------------------------------------------------------------------

\1\ ``Fire Safety of Passenger Trains: Phase I Material

Evaluation (Cone Calorimeter).'' (DOT/FRA/ORD/-98/01-DOT-VNTSC-FRA-

98-2, January, 1999). A copy of the report has also been placed in

the public docket of this rulemaking.

---------------------------------------------------------------------------

Phase I test data were used in the second phase of the NIST project

to perform a fire hazard analysis of selected passenger train fire

scenarios. Also included in this analysis were data obtained from tests

of larger interior components, including seat assemblies, using the

ASTM E 1537 Furniture Calorimeter. The analysis employed computer

modeling to assess the impact on passenger train fire safety for a

range of construction materials and system design. The interim report

documenting Phase II is in final preparation by NIST. In the final

phase of the project, selected real-scale proof tests using an Amfleet

coach rail car and interior assemblies will be performed to verify the

small-scale (bench-scale) criteria and hazard analysis studies in

actual end use configurations.

Overall, the NIST research effort follows upon FRA-sponsored

studies by the National Bureau of Standards in 1984 and NIST in 1993

which noted, among their findings, that the performance of individual

components of a rail passenger car in a real-world fire environment may

be different from that experienced in bench-scale tests due to vehicle

geometry and materials interaction.\2\ The results of the NIST research

project will help in developing a broad set of performance criteria for

materials using the Cone Calorimeter and the Furniture Calorimeter in a

context similar to that provided generally in the table of FRA fire

safety requirements contained in Appendix B to part 238. In addition,

unlike data derived from most test methods referenced in Appendix B,

heat release rate and other measurements obtained from the Cone

Calorimeter and the Furniture Calorimeter can be used in a fire

modeling methodology to evaluate the contribution of materials to the

overall fire safety of a passenger train. Although FRA has targeted for

consideration in the second phase of the

[[Page 25555]]

rulemaking a broad set of performance criteria employing the Cone

Calorimeter and Furniture Calorimeter for materials used in passenger

cars and locomotive cabs, FRA has introduced use of the Cone

Calorimeter and Furniture Calorimeter in a limited manner in this final

rule as explained below in the discussion of Appendix B to part 238.

---------------------------------------------------------------------------

\2\ ``Fire Tests of Amtrak Passenger Rail Vehicle Interiors.''

(NBS Technical Note 1193, May 1984); ``Fire Safety of Passenger

Trains: A Review of U.S. and Foreign Approaches.'' (DOT/FRA/ORD-93/

23--DOT-VNTSC-FRA-93-26, December, 1993). The 1993 report is

available to the public through the National Technical Information

Service, Springfield, VA 22161. A copy of both reports have been

placed in the public docket for this rulemaking.

---------------------------------------------------------------------------

FRA notes that the ASTM has developed a standard which describes

how to evaluate fire hazard assessment techniques (ASTM E 1546, Guide

for the Development of Fire Hazard Assessment Standards). An ASTM

group, the E-5.17 Subcommittee on Transportation, is currently

completing a document entitled ``Standard Guide for Fire Hazard

Assessment of Rail Passenger Vehicles.'' The proposed guide is intended

to provide an alternative approach to ensuring an equivalent level of

fire safety using a performance-based approach which examines fire

scenarios, as well as design considerations, to evaluate the potential

fire hazard of a rail transportation vehicle. One of the principal

issues related to the proposed guide is that calculation methods are

suggested which use models that have not been validated for application

to rail cars. In this regard, the results of the NIST fire safety

research will be helpful for the ASTM subcommittee, as NIST is using

the Hazard I computer model to develop correlations between small-scale

tests of materials and full-scale tests of rail cars.

In the NPRM, FRA explained that the NFPA publishes a standard (NFPA

130) covering fire protection requirements for fixed guideway transit

systems and for life safety from fire in transit stations, trainways,

vehicles, and outdoor maintenance and storage areas. See 62 FR 49744-5.

(A copy of the 1997 edition of this standard has been placed in the

public docket for this rulemaking.) However, this standard has not

historically been applied to passenger railroad systems, including

those that provide commuter service (NFPA 130 1-1.2). FRA noted that an

APTA representative on the Working Group who is a member of the NFPA

initiated an NFPA-sponsored task force to revise the scope of NFPA 130

to cover all rail passenger transportation systems, including intercity

and commuter rail, and revise other provisions as necessary. The NFPA

task force met several times in 1997 and 1998, and submitted

recommended revisions to the NFPA 130 Committee in August, 1998.

Although the NFPA 130 Committee accepted the task force recommendations

in principle, the standard revision approval process will not be

complete until late 1999.

In its comments on the NPRM, the NFPA urged FRA to adopt NFPA 130

upon completion of its revision. The NFPA cited the National Technology

Transfer and Advancement Act of 1995, Pub. L. 104-113, and one of its

provisions which requires, in general, that Federal agencies ``use

technical standards that are developed or adopted by voluntary

consensus standards bodies'' (Section 12, paragraph (d)(1)). In the

second phase of this rulemaking, FRA will consider with the Working

Group the incorporation of NFPA 130, as revised, into this rule.

In response to the NPRM, FRA received a number of other comments on

the provisions of the rule related to fire safety. Those comments on

the proposed fire protection plan and program are noted in particular,

below, in the discussion of 49 C.F.R. Sec. 238.103 in the final rule.

In regard to the proposed table of tests and performance criteria for

the flammability and smoke emission characteristics of materials used

in passenger cars and locomotive cabs contained in Appendix B to part

238, Fire Cause Analysis commented on the advisability of making such

tests and performance criteria mandatory without considerable and

detailed enabling language. Fire Cause Analysis noted in particular

that the table of tests and performance criteria in Appendix B

contained confusing and overlapping component and function categories

for materials; that application of the tests and performance criteria

to ``small parts'' requires special consideration to provide

flexibility for car builders; and that the fire performance of

electrical wiring and cable was not expressly addressed in the NPRM,

although addressed by NFPA 130.

A member of the public commented that he considered FRA's fire

safety guidelines good in some but not all respects. The commenter

stated in particular that the current acceptance levels of smoke

emission are inadequate to protect passengers from toxic levels of

smoke; and that permitting glazing and lighting lenses to have a flame

spread index of 100 with flaming running and flaming dripping is not

justified based on the location of these objects, ease of ignition, and

Btu content of polycarbonate. Nonetheless, the commenter recommended

adoption of the guidelines into law, noting that some vendors, car

builders, and agencies operating rail equipment have not taken the

guidelines seriously. Otherwise, the commenter believed that the fire

safety guidelines will be discounted.

APTA, in its comments on the NPRM, supported the proposed materials

selection criteria for new equipment (as well as the proposed fire

safety program for new equipment discussed below). APTA also

recommended that FRA consider updating the fire safety standards based

on the work of the NFPA 130 task force and the research being conducted

by the NIST. The BRC, in its comments on the NPRM, stated that interior

materials in passenger equipment must be required to meet strict

standards for flammability and smoke emission. The BRC believed that

compliance with the current guidelines alone is insufficient for

safety, and that additional technology, preventative measures, and fire

safety standards must be considered.

In the final rule, FRA has not significantly changed the table of

test methods and performance criteria for the flammability and smoke

emission characteristics of materials used in passenger cars and

locomotive cabs, as contained in Appendix B to part 238. FRA has sought

to maintain the current high levels of safety provided by the fire

safety guidelines, while developing a more workable framework for their

use as a regulation. In fact, as part of the NIST fire safety research,

specific input on the 1989 FRA fire safety guidelines was solicited

from rail system operators, car builders, and consultants at a workshop

held at the NIST Building and Fire Research Lab (BFRL) in July, 1997.

(The minutes of that workshop are contained in Follow-Up Workshop

Notes.\3\ ) This input was used to help simplify and revise the table

of tests and performance criteria contained in Appendix B. In summary,

the specific changes FRA has made to the table in the final rule

include:

---------------------------------------------------------------------------

\3\ ``Follow-Up Notes: NIST/CFR FRA Project, Meeting/Workshop of

7/23/97.'' September 15, 1997. Prepared by J. Zicherman. A copy of

this document has been placed in the public docket for this

rulemaking.

---------------------------------------------------------------------------

Reorganizing table component and function categories;

Adding a dynamic testing requirement for cushions;

Adding a new test method for evaluating seat assemblies;

Providing a test exception and test alternative for small

component parts;

Adding express requirements for wire and cable testing;

Updating test methods for elastomers;

Providing an alternative test method for smoke generation;

Adding express requirements for structural assemblies

other than floors; and

Renumbering and adding notes to the table to reflect the

changes.

[[Page 25556]]

The discussion of Appendix B to part 238, below, provides a detailed

explanation of the changes made to the table of test methods and

performance criteria for the flammability and smoke emission

characteristics of materials used in passenger cars and locomotive

cabs.

VI. Inspection and Testing of Brake Systems and Mechanical

Components

A. Background Prior to 1997 NPRM

In 1992, Congress amended the Federal rail safety laws by adding

certain statutory mandates related to power brake safety. These

amendments specifically address the revision of the power brake

regulations and state in pertinent part:

(r) POWER BRAKE SAFETY.--(1) The Secretary shall conduct a

review of the Department of Transportation's rules with respect to

railroad power brakes, and not later than December 31, 1993, shall

revise such rules based on such safety data as may be presented

during that review.

* * * * *

Pub. L. No. 102-365, Sec. 7; codified at 49 U.S.C. 20141, superseding

45 U.S.C. 431(r).

In response to the statutory mandate, various recommendations to

improve power brake safety, and due to its own determination that the

power brake regulations were in need of revision, FRA published an

ANPRM on December 31, 1992, concerning railroad power brake safety. See

57 FR 62546. The ANPRM provided background information and presented

questions on various subjects related to intercity passenger and

commuter train operations, including: training of testing and

inspection personnel; electronic braking systems; cleaning, oiling,

testing, and stenciling (COT&S) requirements; performance of brake

inspections; and high speed passenger train brakes. Following

publication of the ANPRM, FRA conducted a series of public workshops.

The ANPRM and the public workshops were intended as fact-finding tools

to elicit views of those persons outside FRA charged with ensuring

compliance with the power brake regulations on a day-to-day basis.

Furthermore, on July 26, 1993, the NTSB made the following

recommendation to FRA: ``Amend the power brake regulations, 49 Code of

Federal Regulations 232.12, to provide appropriate guidelines for

inspecting brake equipment on modern passenger cars.'' (R-93-16). The

recommendation arose out of the NTSB's investigation of the December

17, 1991, derailment of an Amtrak passenger train in Palatka, Florida.

The derailed equipment struck two homes and blocked a street north of

the Palatka station. The derailment resulted in eleven passengers

sustaining serious injuries and 41 others receiving minor injuries. In

addition, five members of the operating crew and four onboard service

personnel received minor injuries. By letter dated September 16, 1993,

FRA told the NTSB that it was in the process of reviewing and rewriting

the power brake regulations and would consider the NTSB's

recommendation during the process.

Based on comments and information received, FRA published a Notice

of Proposed Rulemaking in 1994 (1994 NPRM) regarding revision of the

power brake regulations. The 1994 NPRM contained specific requirements

related to intercity passenger and commuter train operations,

including: general design requirements; movement of defective

equipment; employee qualifications; inspection and testing of brake

systems and mechanical components; single car testing requirements and

periodic maintenance; operating requirements; and requirements for the

introduction of new train brake system technology. See 59 FR 47676,

47722-53, September, 16, 1994. Following publication of the 1994 NPRM,

FRA held a series of public hearings in 1994 to allow interested

parties the opportunity to comment on specific issues addressed in the

1994 NPRM. Due to the strong objections raised by a large number of

commenters, FRA announced by notice published on January 17, 1995, that

it would defer action on the 1994 NPRM and permit the submission of

additional comments prior to making a determination as to how it would

proceed in this matter. See 60 FR 3375.

After review of all the comments submitted, FRA determined that in

order to limit the number of issues to be examined and developed in any

one proceeding it would proceed with the revision of the power brake

regulations via three separate processes. In light of the testimony and

comments received on the 1994 NPRM, emphasizing the differences between

passenger and freight operations and the brake and mechanical equipment

utilized by the two, FRA decided to separate passenger equipment power

brake and mechanical standards from freight equipment power brake

standards.

As passenger equipment power brake and mechanical standards are a

logical subset of passenger equipment safety standards (see 49 U.S.C.

20133(c)), FRA requested the Passenger Equipment Safety Standards

Working Group to assist FRA in developing appropriate power brake and

mechanical standards for passenger equipment. The 1997 NPRM, upon which

this final rule is based, was developed by FRA in consultation with

this Working Group.

In addition, FRA determined that a second NPRM covering freight

equipment power brake standards would be developed with the assistance

of FRA's RSAC. See 61 FR 29164, June 7, 1996. Furthermore, in the

interest of public safety and due to statutory as well as internal

commitments, FRA determined that it would separate the issues related

to two-way end-of-train-telemetry devices from both the passenger and

freight issues. FRA convened a public regulatory conference and

published a final rule on two-way end-of-train devices on January 2,

1997. See 62 FR 278.

Beginning in December of 1995, the Passenger Equipment Safety

Standards Working Group adopted the additional task of attempting to

develop power brake and mechanical inspection and maintenance standards

applicable to intercity passenger and commuter train operations and

equipment. The Working Group met on four separate occasions, for a

total of ten days of meetings, with a good portion of these meetings

being devoted to discussion of power brake and mechanical inspection

and maintenance issues. From the outset, a majority of the members, as

well as FRA, believed that any requirements developed by the group

regarding the inspection and testing of the brake and mechanical

equipment should not vary significantly from the current requirements

and should be consistent with current industry practice.

FRA's accident/incident data related to intercity passenger and

commuter train operations support the assumption that the current

practices of these operations in the area of power brake inspection,

testing, and maintenance are for the most part sufficient to ensure the

safety of the public. Between January 1, 1990 and October 31, 1996,

there were only five brake related accidents involving commuter and

intercity passenger railroad equipment. No casualties resulted from any

of these accidents and the total damage to railroad equipment totaled

approximately $650,000, or $96,000 annually. In addition, between

January 1, 1995 and October 31, 1996, FRA inspected approximately

13,000 commuter and intercity passenger rail units for compliance with

49 CFR part 232. The defect ratio for these units during this period

was approximately 0.8 percent. Furthermore, during this same period FRA

inspected approximately 6,300 locomotives for

[[Page 25557]]

compliance with 49 CFR part 229. The brake defect ratio for these units

was approximately 4.65 percent. Consequently, the defect ratio for

brake related defects on locomotives and other passenger equipment

during this period was approximately 2.08 percent.

The existing regulations covering the inspection and testing of the

braking systems on passenger trains are contained in 49 CFR part 232.

The current regulations do provide some requirements relevant to

passenger train operations, including: initial terminal inspection and

testing, intermediate inspections, running tests, and general

maintenance requirements. See 49 CFR 232.12, 232.13(a), 232.16, and

232.17. However, most of the existing regulations are written to

address freight train operations and do not sufficiently address the

unique operating environment of commuter and intercity passenger train

operations or the equipment currently being used in those operations.

Therefore, it has been necessary for FRA to provide interpretations of

some of the current regulations in order to address these unique

concerns.

Currently, all non-MU (multiple unit) commuter trains that do not

remain connected to a source of compressed air overnight and all MU

commuter trains equipped with RT-5 or similar brake systems must

receive an initial terminal inspection of the brake system pursuant to

Sec. 232.12(c)-(j) prior to the train's first departure on any given

calendar day. All non-MU commuter trains that remain connected to a

source of compressed air over-night are permitted to receive an initial

terminal inspection of the brake system sometime during each 24-hour

period in which they are used. Furthermore, all intercity passenger

trains must receive an initial terminal inspection of the brake system

at the point where they are originally made up and must receive an

intermediate inspection in accordance with Sec. 232.12(b) every 1,000

miles.

There are currently no regulations which specifically require the

inspection of the mechanical components on passenger equipment.

Although the current regulations do not contain any mechanical

inspection requirement of passenger equipment, virtually every

passenger railroad currently performs some type of daily mechanical

inspection on its passenger equipment with highly qualified personnel.

For several years Amtrak has been conducting voluntary mechanical

safety inspections of passenger train components.

As noted previously, most of the members of the Working Group

believed that any requirements developed by the group regarding the

inspection, testing, and maintenance of the brake and mechanical

equipment should not vary significantly from the current requirements

and should be consistent with current industry practice. However, the

Working Group was unable to reach consensus on any power brake or

mechanical equipment standards, despite the positing of multiple

alternatives, use of a facilitator, and the foundation provided by the

1994 NPRM. The Working Group identified and discussed options with

which the agency and labor can agree, and others with which FRA and the

railroads can agree. However, bridging the gap between those various

options proved elusive. Consequently, as the Working Group could not

reach any type of consensus on the inspection and testing requirements,

it was determined that FRA would address these issues unilaterally,

based on the information and discussions provided by the Working Group

and the information gathered from the 1994 NPRM.

B. 1997 NPRM on Passenger Safety Equipment Standards

During the Working Group discussions, labor representatives,

particularly the BRC, insisted that a comprehensive power brake

inspection must be performed prior to a train's first run on a given

calendar day. The BRC also believed that it is necessary for the first

inspection of the day to determine whether the brake shoes and the disc

pads actually apply as intended. The BRC further contended that in

order to perform a comprehensive inspection equivalent to an initial

terminal inspection the train must be walked or otherwise inspected on

a car-to-car basis and that these principal inspections should be

performed only by carmen or other qualified mechanical personnel as

they are the only employees sufficiently trained to perform the

inspections. Rail labor representatives also advocated a daily

inspection of all safety-related mechanical components with pass/fail

criteria or limits written into the Federal safety standards much like

the requirements contained in 49 CFR part 215 addressing freight

equipment.

Representatives of intercity passenger and commuter railroads

expressed the desire to have the flexibility to conduct comprehensive

in-depth inspections of the brake and mechanical system sometime during

the day in which the equipment is utilized. These parties argued that

safety would be better served by allowing the railroads the flexibility

to conduct these inspections on a daily basis as it would allow the

railroads to conduct the inspections at locations that are more

conducive to permitting a full inspection of the equipment than many of

the outlying locations where trains are stationed overnight and where

the ability to observe all the equipment may be hampered. It was

further contended that, if the railroads are allowed some flexibility

in conducting these type of inspections, then the equipment can be

moved to a location where a fully qualified mechanical inspector can

perform detailed inspections under optimum conditions.

Several parties also pointed out that, with proper maintenance,

``tread brake units'' and other friction brake components, commonly

used in commuter train operations, are highly reliable and that the

non-functioning of any individual unit would in no way compromise the

overall safety of the train. Furthermore, permitting the inspection of

brake components in the middle of the day, rather than at the beginning

of the day, involves no greater safety risk to passengers because

friction brake systems and their components degrade in performance

based largely on use, and nothing short of a continuous brake

inspection can guarantee 100-percent performance at all times. Railroad

representatives suggested an inspection scheme that would permit an in-

depth, comprehensive brake inspection to be performed sometime during

the day in which the equipment is used with a brake inspection being

performed prior to the first run of the day verifying the continuity of

the trainline by performing a set and release on the rear car of the

train.

APTA and other passenger railroad representatives strongly

maintained that specific inspection criteria or limits related to the

mechanical components of passenger equipment were not necessary. During

the ongoing meetings of the Working Group, FRA repeatedly requested

that railroad representatives provide a recommended list of mechanical

components and criteria for their inspection. These representatives

consistently responded with very broad requirements basically limited

to inspections for obvious and visible defects. Although passenger

railroad representatives did not object to the safety principle of a

mechanical inspection, they did not want their operations to be bound

by a rigid list of components and criteria for the inspection.

Based on consideration of all of the information outlined above,

FRA published an NPRM on Passenger Equipment Safety Standards on

September 23, 1997. See 62 FR 49728.

[[Page 25558]]

This NPRM contained specific proposals related to the inspection,

testing, and maintenance of both the brake and mechanical components on

passenger equipment. The proposal attempted to balance the concerns of

rail labor representatives and representatives of intercity and

commuter railroads.

1. Proposed Brake System Inspections

In the 1997 NPRM, FRA proposed to abandon the terminology related

to the power brake inspection and testing requirements contained in the

current regulations, and proposed to identify various classes of

inspections based on the duties and type of inspection required. See 62

FR 49737, 49774-77, 49810-11. FRA believed that this type of

classification system would avoid confusion with the power brake

inspection and testing requirements applicable to freight operations

and would avoid the connotations historically attached to the current

terminology. FRA also believed that this approach was better suited for

providing operational flexibility to commuter operations while

maintaining the safety provided by the current inspection and testing

requirements. Although FRA proposed a change in the terminology used to

describe the various power brake inspections and tests, the

requirements of the inspections and tests closely tracked the current

requirements with some modifications made to address the unique

operating environment of, and equipment operated in, commuter and

intercity passenger train service. Members of the Working Group

appeared receptive to this kind of classification system and discussed

various options using some of this terminology. Consequently, FRA

proposed four different types of brake inspections, ``Class I,''

``Class IA,'' ``Class II,'' and ``running brake test,'' that were to be

performed by commuter and intercity passenger railroads some time

during the operation of their equipment.

In the proposal, FRA also divided passenger train operations into

two distinct types for purposes of brake inspections and testing. FRA

recognized that there were major differences in the operations of

commuter or short-distance intercity passenger trains, and long-

distance intercity passenger trains. Commuter and short-distance

intercity passenger trains tend to operate for fairly short distances

between passenger stations and generally operate in relatively short

turn-around service between two terminals several times in any given

day. In contrast, long-distance intercity passenger trains tend to

operate for long distances, with trips between the beginning terminal

and ending terminal taking a day or more and traversing multiple states

with relatively long distances between passenger stations.

Consequently, FRA proposed the terms ``commuter train,'' ``short-

distance intercity passenger train,'' and ``long-distance intercity

passenger train'' in order to identify the inspection and testing

requirements associated with each. See 62 FR 49737-38, 49774-76, 49810-

11. For the most part, commuter and short-distance intercity passenger

trains were treated similarly, whereas long-distance intercity

passenger trains had slightly different proposed inspection and testing

requirements. In addition, FRA proposed slightly different requirements

with regard to the movement of defective equipment in long-distance

intercity passenger trains (see the discussion below on the ``Movement

of Equipment with Defective Brakes'').

The proposed Class I brake test basically required an inspection

similar to an initial terminal inspection as currently described at

Sec. 232.12(c)-(j), but was somewhat more extensive and specifically

aimed at the types of equipment being used in commuter and intercity

passenger train service. See 62 FR 49738-39, 49774-76, 49810. The

proposed Class I brake test would require an inspection of the

application and release of the friction brakes on each side of each car

as well as an inspection of the brake shoes, pads, discs, rigging,

angle cocks, piston travel, and brake indicators if the equipment is so

equipped. The Class I brake test would also require testing of the

communication signal system and the emergency braking control devices.

In recognition of the advanced technology and various designs used in

many of these operations, which make observation of the piston travel

virtually impossible, FRA proposed to permit the inspection of the

piston travel to be conducted either through direct observation of the

clearance between the brake shoe and the wheel or by observation of a

brake actuator. Furthermore, FRA proposed to require a brake pipe

leakage test only when leakage will affect service performance.

As FRA proposed that Class I brake tests be comprehensive

inspections of the braking system, FRA believed that commuter and

short-distance intercity passenger train operations should be permitted

some flexibility in conducting these inspections. Consequently, FRA

proposed that commuter and short-distance intercity passenger train

operations perform a Class I brake test sometime during the calendar

day in which the equipment is used. FRA believed that the flexibility

permitted by the proposed requirement would allow railroads to move

equipment to locations that are most conducive to the inspection of the

brake equipment and would allow railroads to combine the daily

mechanical inspections with the brake inspection for added efficiency.

In the NPRM, FRA recognized the differences between commuter or

short-distance intercity operations and long-distance intercity

passenger train operations. FRA noted that long-distance intercity

passenger trains do not operate in shorter turn around service over the

same sections of track on a daily basis for the purpose of transporting

passengers from major centers of employment. Instead, these trains tend

to operate for extended periods of time, over long distances with

greater distances between passenger stations and terminals. Further,

these trains may operate well over 1,000 miles in any 24 hour period.

Thus, FRA believed that the opportunity for conducting inspections on

these trains was somewhat diminished. Therefore, FRA determined that a

thorough inspection of the braking system on these types of operations

must be conducted prior to the train's departure from an initial

starting terminal. Consequently, FRA proposed that a Class I brake

inspection be performed on long-distance intercity passenger trains

prior to departure from an initial terminal. See 62 FR 49810. FRA did

not believe there would be any significant burden placed on these

operations as the current regulations require that an initial terminal

inspection be performed at these locations.

FRA also recognized that these long-distance intercity passenger

trains could conceivably travel significant distances if Class I

inspections were required only once every 24 hours the equipment is in

service as proposed for commuter and short-distance intercity passenger

trains. Thus, FRA believed that some outside mileage limit had to be

placed on these trains between brake inspections. Under the current

regulations a passenger train is permitted to travel no farther than

1,000 miles from its initial terminal, at which point it must receive

an intermediate inspection of brakes that includes an application of

the brakes and the inspection of the brake rigging to ensure it is

properly secured. See 49 CFR 232.12(b). However, in recognition of the

improved technology used in passenger train brake systems combined with

the comprehensive nature of the proposed Class I brake tests and

mechanical safety inspections being

[[Page 25559]]

performed by highly qualified inspectors, FRA proposed to permit long-

distance passenger trains to travel up to 1,500 miles between Class I

brake tests. Under FRA's proposal a comprehensive Class I brake test

would be performed once every calendar day that the equipment is used

or every 1,500 miles, which ever occurred first. See 62 FR 49739,

49775, 49810.

FRA also proposed that the brake inspection and testing intervals

proposed for long-distance passenger trains apply to all Tier II

equipment (i.e., equipment operating at speeds greater than 125 mph but

not exceeding 150 mph), regardless of whether it is used in short-or

long-distance intercity trains. As FRA's proposal permitted operators

of Tier II equipment to develop inspection and testing criteria and

procedures, these operations would be required to develop a brake test

that is equivalent to a Class I brake test for Tier II equipment. Due

to the speeds at which this equipment will be allowed to operate, FRA

believed it was a necessity that an equivalent Class I brake test be

performed on Tier II equipment before it departs from its initial

terminal. Similarly, FRA proposed that the equivalent Class I brake

test be performed every calendar day in which Tier II equipment is used

or every 1,500 miles, whichever comes first. See 62 FR 49739, 49784,

49821.

The proposed Class IA brake test was somewhat less comprehensive

than the proposed Class I brake test but included a detailed inspection

of the brake system to verify the continuity of the brake system and

the proper functioning of the brake valves on each car. A Class IA

brake test would be similar to the intermediate brake inspection

currently required for freight trains prescribed at Sec. 232.13(d)(1).

The proposed Class IA brake test would generally require a walking

inspection of the set and release of the brakes on each car; however,

the proposal allowed brake indicators to be used to verify the set and

release if the railroad determined that operating conditions pose a

safety hazard to an inspector walking along the train. The Class IA

brake test also required a leakage test if leakage affects service

performance, as well as an inspection of: angle cocks; piston travel,

if determinable; brake indicators; emergency brake control devices; and

communication of brake pipe pressure changes at the rear of train to

the controlling locomotive. See 62 FR 49738-39, 49776-77, 49810.

FRA proposed that a Class IA brake test would be performed prior to

a commuter or short-distance intercity passenger train's first

departure on any given day. FRA believed that the proposed Class IA

brake was sufficiently detailed to ensure the proper functioning of the

brake system yet not so intensive that it would require individuals to

perform an inspection for which they are not qualified. Although FRA

tended to agree with the position advanced by many labor

representatives that some sort of car-to-car inspection must be made of

the brake equipment prior to the first run of the day, FRA did not

agree that it is necessary to perform a full Class I brake test in

order to ensure the proper functioning of the brake equipment in all

situations. However, contrary to the position espoused by APTA, FRA

believed that something more than just a determination that the brakes

on the rear car set and release is necessary.

In addition to the proposed Class I and Class IA brake tests, FRA

also proposed a Class II brake test. The proposed Class II brake test

would be an inspection intended to verify the continuity of the train

brake system and would be similar to the intermediate terminal

inspection currently prescribed at Sec. 232.13(a). A Class II brake

test basically required a set and release of the brakes on the rear

car. The proposed Class II test would be required in those

circumstances where minor changes to a train consist occur, such as the

change of a control stand, the removal of cars from the consist, the

addition of previously tested cars, and the situations in which an

operator first takes control of the train. See 62 FR 49739, 49777,

49811.

FRA also proposed that a running brake test be conducted as soon as

conditions safely permit it to be conducted after a train receives a

Class I, Class IA, or Class II brake test. FRA believed that this test

should be conducted in accordance with each railroad's operating rules.

The proposed ``running brake test'' requirement was similar to the

``running test'' requirements currently contained at Sec. 232.16. See

62 FR 49740, 49777, 49811.

2. Proposed Mechanical Inspections

In the 1997 NPRM, FRA proposed three types of mechanical

inspections, these included: a calendar day exterior and interior

inspection, and a periodic inspection. See 62 FR 49771-73, 49807-09.

The proposed exterior calendar day mechanical inspection for passenger

cars and unpowered vehicles used in passenger trains was patterned

after a combination of the current calendar day inspection required for

locomotives under the Railroad Locomotive Safety Standards and the pre-

departure inspection for freight cars under the Railroad Freight Car

Safety Standards. See 49 CFR 229.21 and 215.13, respectively. FRA

proposed that the calendar day mechanical inspection apply to all

passenger cars and all unpowered vehicles used in passenger trains

(which includes, e.g., not only coaches, MU locomotives, and cab cars

but also any other rail rolling equipment used in a passenger train),

and that all exterior mechanical inspections be performed by highly

qualified personnel. A mechanical safety inspection of freight cars has

been a longstanding Federal safety requirement, and FRA believed that

the lack of a similar requirement for passenger equipment created a

serious void in the current Federal railroad safety standards.

Rail labor representatives advocated a daily inspection of all

safety-related mechanical components with pass/fail criteria or limits

written into the Federal safety standards much like the requirements

contained in 49 CFR part 215, whereas APTA and other passenger railroad

representatives on the other hand strongly maintained that specific

inspection criteria or limits are not necessary. During the meetings of

the Working Group, FRA repeatedly requested that railroad

representatives provide a recommended list of mechanical components and

criteria for their inspection. These representatives consistently

responded with very broad requirements basically limited to inspections

for obvious and visible defects. Although passenger railroad

representatives did not object to the safety principle of a mechanical

inspection, they did not want their operations to be bound by a rigid

list of components and criteria for the inspection.

FRA agreed with labor representatives that a specific list of

components to be inspected with enforceable inspection or pass/fail

criteria needed to be included as part of the proposed Passenger

Equipment Safety Standards. In the 1997 NPRM, FRA identified the

components that were to be inspected as part of the exterior calendar

day mechanical safety inspection and provided measurable inspection

criteria for the components. The proposal required the railroad to

ascertain that each passenger car, and each unpowered vehicle used in a

passenger train conforms with the conditions enumerated in the

proposal. The Working Group members generally agreed that the

components contained in the proposal represented valid safety-related

components that should be frequently inspected by railroads.

[[Page 25560]]

However, members of the Working Group had widely different opinions

regarding the criteria to be used to inspect the components. Therefore,

as FRA was not provided any clear guidance from the Working Group, FRA

selected inspection criteria based on the locomotive calendar day

inspection and the freight car safety pre-departure inspection required

by 49 CFR parts 229 and 215, respectively. FRA believed that passenger

equipment should receive an inspection which is at least equivalent to

that received by locomotives and freight cars. The components and

conditions identified by FRA to be included in the exterior calendar

day mechanical inspection included: couplers; suspension system;

trucks; side bearings; wheels; jumpers; cable connections; buffer

plates; products of combustion; batteries; diaphragms; and secondary

brake systems. See 62 FR 49807-08.

FRA also proposed that each railroad perform an interior calendar

day mechanical inspection by individuals qualified by the railroad to

do so. FRA originally contemplated requiring the interior inspections

to be performed by highly qualified personnel to track the exterior

calendar day mechanical inspection requirements. However, after several

discussions with members of the Working Group and several other

representatives of passenger railroads, FRA determined that the

training and experience typical of a mechanical inspector is not

necessary and often does not apply to inspecting interior safety

components of passenger equipment. In addition, the most economical way

to accomplish the mechanical inspection is to combine the exterior

inspection with the Class I brake test and then have a crew member or

train coach cleaner combine the interior mechanical inspection with

coach cleaning. FRA listed the following components that were to be

inspected as part of the interior calendar day mechanical inspection:

trap doors; end and side doors; manual door releases; safety covers,

doors and plates; vestibule step lighting; and safety-related signs and

instructions. See 62 FR 49808.

Because FRA intended the daily exterior and interior mechanical

inspections to serve as the time when the railroad repairs defects that

occurred en route, FRA further proposed that safety components not in

compliance with this part would be required to be repaired before the

equipment was permitted to remain in or return to passenger service

after the performance of the mechanical inspections. In other words,

FRA intended for the flexibility to operate defective equipment in

passenger service to end at the calendar day mechanical inspection.

Initially, FRA considered requiring a more extensive list of

components to be checked at each interior calendar day mechanical

inspection. However, based on discussions conducted with the Working

Group, FRA determined that the daily inspection and repair of some

interior items could be burdensome to the railroads without producing

an offsetting safety benefit. As a result, FRA proposed a periodic

mechanical inspection for passenger cars in order to reduce the

frequency with which certain components require inspection. FRA

proposed that the following components be inspected for proper

operation and repaired, if necessary, as part of the periodic

maintenance of the equipment: emergency lights; emergency exit windows;

seats and seat attachments; overhead luggage racks and attachments;

floor and stair surfaces; and hand-operated electrical switches. See 62

FR 49808-09.

FRA determined that virtually all passenger railroads have defined

periodic maintenance intervals for all of the equipment they operate

with intervals varying from 60 to 180 days, depending on the type of

equipment and the service in which it is used. Although FRA did not

intend to limit the railroad's flexibility to set periodic maintenance

intervals, FRA believed that an outside limit had to be placed on the

performance of the periodic mechanical inspection. Thus, FRA proposed

that the periodic mechanical inspection be performed at least every 180

days, as that appeared to be the outside limit of currently established

maintenance cycles.

In addition to the daily and periodic mechanical inspections, FRA

also proposed extensive requirements regarding the performance of

single car tests on passenger equipment. FRA believed that the proposed

single car test has proven itself effective in uncovering brake system

problems that are the root cause of certain wheel defects or that have

been caused by repairs made to the brake system. The current

regulations require that a single car test be performed on passenger

cars whenever they are on a shop or repair track. As the current

requirement carries the potential of permitting a railroad to avoid the

performance of the test by calling a repair track something other than

a repair track, FRA believed it was prudent to base the requirement to

perform a single car test on the type of defect or repair involved

rather than the location where the defect is repaired. Therefore, FRA

proposed a list of defective conditions and the repair or replacement

of certain components which would trigger the requirement to perform a

single car test. See 62 FR 49774, 49809. In an attempt to promote the

prompt repair of defective equipment, FRA proposed some flexibility in

the performance of the test by permitting cars to be moved to a

location where the test could be performed if repairs were made at a

location that could not perform the test.

3. Proposed Qualifications of Inspection and Testing Personnel

In the 1997 NPRM, FRA proposed the terms ``qualified person'' and

``qualified mechanical inspector'' to differentiate between the type of

personnel that will be permitted to perform certain brake or mechanical

inspections required in the proposal. A ``qualified person'' was

defined as a person determined by the railroad to have the knowledge

and skills necessary to perform one or more functions required under

this part. Whereas, a ``qualified mechanical inspector'' was defined as

a ``qualified person'' who as a part of the training, qualification,

and designation program required by the proposal had received

instruction and training that included ``hands-on'' experience (under

appropriate supervision or apprenticeship) in one or more of the

following functions: trouble-shooting, inspection, testing, and

maintenance or repair of the specific train brake and other components

and systems for which the inspector is assigned responsibility.

Further, the mechanical inspector was to be a person whose primary

responsibility includes work generally consistent with those functions.

See 62 FR 49754.

As FRA intended for Class I brake inspections and exterior calendar

day mechanical inspections to be in-depth inspections of the entire

braking system and the safety-critical mechanical components, which

most likely will be performed only one time in any given day in which

the equipment is used, and because of the flexibility FRA proposed in

the performance of such inspections, FRA proposed that these

inspections had to be performed by individuals possessing not only the

knowledge to identify and detect a defective condition in all of the

brake equipment required to be inspected but also the knowledge to

recognize the interrelational workings of the equipment and the ability

to ``troubleshoot'' and repair the equipment. Consequently, FRA

proposed that only qualified mechanical inspectors would be permitted

to

[[Page 25561]]

perform Class I brake tests and exterior calendar day mechanical

inspections.

As the definition of qualified mechanical inspector required the

person's primary responsibility to be the inspection, testing, or

maintenance of passenger equipment, the definition largely ruled out

the possibility of train crew members becoming qualified mechanical

inspectors because the primary responsibility of a train crew member is

generally the operation of the train. FRA intended the definition to

allow the members of the trades associated with the testing and

maintenance of equipment such as carmen, machinists, and electricians

to become qualified mechanical inspectors. However, FRA made clear that

membership in labor organizations or completion of apprenticeship

programs associated with these crafts was not required to be designated

a qualified mechanical inspector. The two primary qualifications were

the possession of the knowledge required to do the job and a primary

work assignment inspecting, testing, or maintaining the equipment.

FRA included a clear definition of ``qualified person'' to allow

railroads the flexibility of having train crews perform Class IA, Class

II, and running brake tests and interior calendar day mechanical

inspections. A qualified person had to be trained and designated as

able to perform the types of brake and mechanical inspections and tests

that the railroad assigned to him or her. However, a qualified person

did not need the extensive knowledge of brake systems or mechanical

components or be able to trouble-shoot and repair them. The qualified

person was considered to be the ``checker.'' He or she was to possess

the knowledge and experience necessary to be able to identify brake

system problems.

C. Overview of Comments Relating to Proposed Inspection and Testing

Requirements

Those parties filing comments, presenting testimony and

participating in the Working Group meetings with regard to the proposed

inspection and testing requirements have provided the ag

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