[Federal Register Volume 63, Number 85 (Monday, May 4, 1998)]
[Rules and Regulations]
[Pages 24630-24683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11393]
[[Page 24629]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Railroad Administration
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49 CFR Parts 223 and 239
Passenger Train Emergency Preparedness; Final Rule
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 / Rules and
Regulations
[[Page 24630]]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 223 and 239
[FRA Docket No. PTEP-1, Notice No. 3]
RIN 2130-AA96
Passenger Train Emergency Preparedness
AGENCY: Federal Railroad Administration (FRA), Transportation (DOT).
ACTION: Final rule.
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SUMMARY: FRA is issuing minimum Federal safety standards for the
preparation, adoption, and implementation of emergency preparedness
plans by railroads connected with the operation of passenger trains,
including all railroads hosting the operations of rail passenger
service. The rule also requires each affected railroad to instruct its
employees on the provisions of its plan. Emergency preparedness plans
must address such subjects as communication, employee training and
qualification, joint operations, tunnel safety, liaison with emergency
responders, on-board emergency equipment, and passenger safety
information. The plan adopted by each affected railroad will be subject
to formal review and approval by FRA.
These emergency preparedness regulations constitute the second
phase in a four-phase process that began in 1994. In the first phase,
FRA encouraged railroads to examine their programs to determine what
improvements could be made, while in the third phase, FRA will review
the railroad plans to determine if all emergency preparedness issues
have been adequately addressed within the varying contexts of railroad
operations. In the fourth phase, FRA will review the implementation and
effectiveness of these standards and related voluntary developments,
and will address the need for further rulemaking activity.
The final rule does not apply to tourist and historic railroad
operations. However, after appropriate consultation with the excursion
railroad associations to determine appropriate applicability in light
of financial, operational, or other factors unique to such operations,
emergency preparedness requirements for these operations may be
prescribed by FRA that are different from those affecting other types
of passenger operations.
EFFECTIVE DATE: July 6, 1998.
ADDRESSES: Any petition for reconsideration should reference FRA Docket
No. PTEP-1, Notice No. 3, and be submitted in triplicate to the Docket
Clerk, Office of Chief Counsel, Federal Railroad Administration, 400
Seventh Street, S.W., Mail Stop 10, Washington, D.C. 20590.
FOR FURTHER INFORMATION CONTACT: Mr. Edward R. English, Director,
Office of Safety Assurance and Compliance, FRA, 400 Seventh Street,
S.W., RRS-10, Mail Stop 25, Washington, D.C. 20590 (telephone number:
202-632-3349), or David H. Kasminoff, Esq., Trial Attorney, Office of
Chief Counsel, FRA, 400 Seventh Street, S.W., RCC-12, Mail Stop 10,
Washington, D.C. 20590 (telephone: 202-632-3191).
SUPPLEMENTARY INFORMATION:
Background
On February 24, 1997, FRA published in the Federal Register a
notice of proposed rulemaking (NPRM) to amend part 223, entitled Safety
Glazing Standards--Locomotives, Passenger Cars and Cabooses,'' by
revising Sec. 223.5 and adding a new paragraph in Sec. 223.9 to require
the marking of emergency windows, and to add a new ``Part 239--
Passenger Train Emergency Preparedness.'' 62 FR 8330. The proposed part
239 set forth minimum Federal safety standards for the preparation,
adoption, and implementation of emergency preparedness plans by
railroads connected with passenger train operations, including
railroads hosting the operations of rail passenger service. In
addition, the NPRM prescribed marking, inspection, maintenance, and
repair requirements for all emergency window and door exits intended
for egress by passengers or for access by emergency responders.
The overall safety record of conventional intercity and commuter
passenger train operations in the United States has been exemplary.
However, accidents continue to occur, often as a result of factors
beyond the control of the passenger railroad. Further, the rail
passenger operating environment in the United States is rapidly
changing-- technology is advancing, equipment is being designed for
ever-higher speeds, and many potential new operators of passenger
equipment are appearing. With this more complex operating environment,
FRA must become more proactive to ensure that operators of passenger
train service, as well as those railroads hosting passenger operations,
engage in careful, advance planning to minimize the consequences of
emergencies that could occur. Even minor incidents could easily develop
into life-threatening events if they are not addressed in a timely and
effective manner.
In recent years, passenger train accidents, such as the tragic
``Sunset Limited'' passenger train derailment near Mobile, Alabama in
September 1993, have demonstrated the need to improve the way railroads
respond in emergency situations. On September 22, 1993, at about 2:45
a.m., barges that were being pushed by the towboat ``Mauvilla'' in
dense fog struck and displaced the Big Bayou Canot railroad bridge near
Mobile, Alabama. At about 2:53 a.m., National Railroad Passenger
Corporation (Amtrak) train no. 2, the ``Sunset Limited,'' en route from
Los Angeles, California to Miami, Florida with 220 persons on board,
struck the displaced bridge and derailed. The three locomotive units,
the baggage and dormitory cars, and two of the six passenger cars fell
into the water. The fuel tanks on the locomotive units ruptured, and
the locomotive units and the baggage and dormitory cars caught fire.
Forty-two passengers and five crewmembers were killed, and 103
passengers were injured. The towboat's four crewmembers were not
injured.
In a report on the accident released on September 19, 1994, the
National Transportation Safety Board (NTSB) determined that several
circumstances hampered emergency response efforts. NTSB Railroad-Marine
Accident Report 94/01. In its assessment of emergency response at the
accident site, the NTSB noted that the location of the accident was
remote (accessible only by rail, water, or air), fog in the area was
dense (requiring the use of radar to navigate boats), limited modes of
transportation were available for bringing in personnel and equipment,
and the magnitude of the accident was great. Nevertheless, the NTSB
concluded that, following the delay while emergency responders
identified the location of the accident, emergency response activities
were efficient and effective. The report did find, however, that Amtrak
did not have an effective system in place to apprise passengers of
train safety features, passengers were slowed during evacuation by the
absence of emergency lighting on the passenger cars, and emergency
responders were hindered by their inability to obtain an adequate
passenger and crew list from Amtrak until the next day. The NTSB also
noted that if the Mobile County Emergency Management Agency had held
drills to simulate a train accident, the incident commander might have
learned about Amtrak's procedure for accounting for passengers, and CSX
Transportation, Inc. (CSX Transportation), the owner of the bridge and
trackage, might have
[[Page 24631]]
obtained the correct telephone number to contact the U.S. Coast Guard.
Considerable effort has focused on how to mitigate casualties after
a train accident occurs. In this regard, even before the occurrence of
the tragic accident near Mobile, FRA had tasked DOT's Volpe National
Transportation Systems Center (TSC), in Cambridge, Massachusetts, to
perform research and to recommend emergency preparedness guidelines for
passenger train operators. The results were published at the end of
1993 as a publication entitled ``Recommended Emergency Preparedness
Guidelines for Passenger Trains'' (Volpe Report), which is available to
the public through the National Technical Information Service,
Springfield, VA 22161 (DOT/FRA/ORD-93-24--DOT-VNTSC-FRA-93-23). The
publication references safety recommendations of the NTSB, as well as
many other publications on the subject of emergency preparedness, and
contains recommended guidelines designed to assist passenger train
operating systems and emergency response organization management in
evaluating and modifying or supplementing their emergency response
plans. A copy of the Volpe Report has been placed in the public docket
for this rulemaking.
The Volpe Report recommendations address guidelines relating to
emergency plans, procedures, and training. In addition, guidelines are
presented for passenger train and facility features intended to shorten
emergency response time, improve the effectiveness of evacuating
passengers, and minimize the effects of an emergency. The publication
also lists inter-organizational emergency protocols, which include
those of fire departments, emergency medical services (EMS), police
departments, public utilities, hospitals, and local, State, regional,
and Federal governments.
In an effort to be proactive after the accident near Mobile, FRA
mailed the Volpe Report to all intercity passenger and commuter
railroads, freight railroads, the United Transportation Union, and the
Brotherhood of Locomotive Engineers in March 1994 for their information
and guidance. Concurrent with this mailing, FRA invited the railroads
to attend an agency-sponsored roundtable meeting in Washington, D.C.,
on June 9, 1994, to discuss the emergency preparedness issues addressed
in the publication. The 23 persons attending the roundtable included
representatives from FRA and the following other organizations:
Amtrak,
Long Island Rail Road (LIRR),
MTA Metro-North Railroad (METRO-NORTH),
Northeast Illinois Regional Commuter Railroad Corporation (METRA),
Peninsula Corridor Joint Powers Board (CALTRAIN),
Port Authority Trans-Hudson Corporation (PATH),
Southern California Regional Rail Authority (METROLINK),
Southeastern Pennsylvania Transportation Authority (SEPTA),
Tri-County Commuter Rail Authority (TRI-RAIL),
TSC, and
Virginia Railway Express (VRE).
During the meeting, FRA agreed to assist the passenger railroads in
establishing improved working relationships with their host freight
railroads. FRA also promised to help the passenger railroads in their
emergency response efforts in larger metropolitan areas by contacting
emergency response agencies and eliciting more cooperation between
them. In addition, FRA stated that it would conduct field visits to
several passenger railroads to study their equipment and their
emergency response and training programs.
At that same meeting, the passenger railroads agreed to provide
stronger supervisory oversight of their emergency response and training
programs, and stated that they would offer additional, structured
``hands-on'' training to their train crews concerning the removal of
emergency windows and passenger evacuation. They also agreed to develop
programs for recurring passenger car inspections, emphasizing checking
of emergency equipment such as windows, tools, and fire extinguishers.
Further, they agreed to improve their methods of apprising passengers
of emergency information, to include seat drops, placards inside each
car, and messages in on-board newsletters. While FRA was encouraged
that passenger railroads had already begun to incorporate the
recommendations of the Volpe Report into their own emergency
preparedness procedures and policies, more progress by the entire
industry was needed.
As a result of concerns raised about the safety of the operation of
rail passenger service, Congress enacted section 215 of the Federal
Railroad Safety Authorization Act of 1994, Pub. L. No. 103-440, 108
Stat. 4619, 4623-4624 (November 2, 1994), entitled ``Passenger Car
Safety Standards,'' which amended 49 U.S.C. 20133 to read as follows:
Sec. 20133. Passenger cars
(a) MINIMUM STANDARDS.--The Secretary of Transportation shall
prescribe regulations establishing minimum standards for the safety
of cars used by railroad carriers to transport passengers. Before
prescribing such regulations, the Secretary shall consider--
(1) the crashworthiness of the cars;
(2) interior features (including luggage restraints, seat belts,
and exposed surfaces) that may affect passenger safety;
(3) maintenance and inspection of the cars;
(4) emergency response procedures and equipment; and
(5) any operating rules and conditions that directly affect
safety not otherwise governed by regulations.
The Secretary may make applicable some or all of the standards
established under this subsection to cars existing at the time the
regulations are prescribed, as well as to new cars, and the
Secretary shall explain in the rulemaking document the basis for
making such standards applicable to existing cars.
(b) INITIAL AND FINAL REGULATIONS.--(1) The Secretary shall
prescribe initial regulations under subsection (a) within 3 years
after the date of enactment of the Federal Railroad Safety
Authorization Act of 1994. The initial regulations may exempt
equipment used by tourist, historic, scenic, and excursion railroad
carriers to transport passengers.
(2) The Secretary shall prescribe final regulations under
subsection (a) within 5 years after such date of enactment.
(c) PERSONNEL.--The Secretary may establish within the
Department of Transportation 2 additional full-time equivalent
positions beyond the number permitted under existing law to assist
with the drafting, prescribing, and implementation of regulations
under this section.
(d) CONSULTATION.--In prescribing regulations, issuing orders,
and making amendments under this section, the Secretary may consult
with Amtrak, public authorities operating railroad passenger
service, other railroad carriers transporting passengers,
organizations of passengers, and organizations of employees. A
consultation is not subject to the Federal Advisory Committee Act,
(5 U.S.C. App.), but minutes of the consultation shall be placed in
the public docket of the regulatory proceeding.
The Secretary of Transportation has delegated these rulemaking
responsibilities to the Federal Railroad Administrator. 49 CFR 1.49(m).
FRA is committed to the maximum feasible use of collaborative
processes in the development of safety regulations. Consistent with the
intent of Congress that FRA consult with the railroad industry, FRA
invited various organizations to participate in a passenger train
emergency preparedness working group (Working Group) to focus on the
issues related thereto and build the framework for the development of a
Notice of Proposed Rulemaking (NPRM) and, ultimately, the final rule.
FRA held its first Working Group meeting on August 8, 1995. The 33-
member Working Group was comprised of
[[Page 24632]]
representatives from FRA and the following other organizations:
American Public Transit Association (APTA),
Amtrak,
Association of American Railroads (AAR),
Brotherhood of Locomotive Engineers (BLE),
CALTRAIN,
LIRR,
Maryland Mass Transit Administration (MARC),
Massachusetts Bay Transportation Authority (MBTA),
METRA,
METRO-NORTH,
METROLINK,
National Association of Railroad Passengers (NARP),
NTSB,
New Jersey Transit Rail Operations (NJTR),
Northern Indiana Commuter Transportation District (NICTD),
PATH,
Safe Travel America (STA),
SEPTA,
TRI-RAIL,
TSC,
United Transportation Union (UTU), and
VRE.
Regulations covering comprehensive safety standards for rail
passenger equipment--inspection, testing, and maintenance of passenger
equipment; equipment design and performance criteria related to
passenger and crew survivability in the event of a train accident; and
the safe operation of passenger train service--supplementing existing
railroad safety standards, are covered by a separate rulemaking and are
being addressed by a separate working group. The NPRM on passenger
equipment safety standards was published in the Federal Register on
September 23, 1997. 62 FR 49728. Persons wishing to receive more
information regarding this other rulemaking should refer to FRA Docket
No. PCSS-1 and contact either Mr. Edward Pritchard, Acting Staff
Director, Motive Power and Equipment Division, Office of Safety
Assurance and Compliance, FRA, 400 Seventh Street, S.W., RRS-14, Mail
Stop 25, Washington, D.C. 20590 (telephone 202-632-3348), or Daniel L.
Alpert, Esq., Trial Attorney, Office of Chief Counsel, FRA, 400 Seventh
Street, S.W., Washington, D.C. 20590 (telephone 202-632-3186).
Both the proposed rule and final rule on passenger train emergency
preparedness were developed by FRA in consultation with the Working
Group. The proposal incorporated comments submitted by the Working
Group in response to a preliminary draft of the proposed rule text, and
all comments submitted in response to the NPRM were provided to members
of the Working Group for their consideration in preparation of the
final rule. The Working Group then helped FRA develop the final rule
based on a consensus process, with facts and analysis flowing from both
the Working Group's deliberations and information submitted by all
commenters on the NPRM. In accordance with 49 U.S.C. 20133(d), the
evolving positions of the Working Group members--as reflected in the
minutes of the group meetings and associated documentation, together
with data provided by the membership during their deliberations--have
been placed in the public docket of this rulemaking.
In announcing the first meeting of the Working Group on August 8,
1995, FRA stated that the purpose of the meeting was to provide an
opportunity to collectively focus on evaluating issues related to
passenger train emergency preparedness, as well as to develop and
formulate plans and programs that would culminate in a final rule. The
discussion focused on the key issues of emergency notification,
training of railroad employees and emergency responders, suitability of
on-board emergency equipment, and the Volpe Report. While FRA did not
limit the Working Group's discussions, the agency requested that, at a
minimum, the following topics and issues should be considered and
addressed during the consultation process for possible inclusion in the
rule:
Types of safety equipment that should be required in each
passenger car (e.g., fire extinguishers, saws, hammers, and
flashlights) including where the equipment should be located, who
should have access to it, and how to avoid pilferage;
Training for railroad employees on the use of on-board
emergency equipment;
Frequency of inspection of on-board emergency equipment;
Effective marking of emergency windows on each passenger
car;
Informing passengers about safety procedures and emergency
equipment, including locations of exit doors and windows;
Demonstrations by on-board crewmembers of emergency
procedures and exits after major station stops;
Communication capabilities of on-board crewmembers;
Requiring on-board crewmembers to be trained to provide
cardio-pulmonary resuscitation (CPR) or first aid treatment or both;
Ensuring that on-board crewmembers have contact telephone
numbers for control centers and local authorities;
Requiring preparation of an emergency preparedness plan,
including periodic exercises to test employee knowledge of proper
procedures involving passenger illness or injury, stalled trains,
evacuation procedures, derailments, collisions, severe weather, and
security threats;
Coordinating applicable portions of emergency preparedness
plans between passenger railroads and freight railroads that host these
passenger operations;
Extent to which safety action plans should be regulated in
terms of content or format, and whether such plans should be subject to
FRA review and approval;
Training for auxiliary individuals participating in
passenger emergencies (e.g., control center employees, on-board service
staff, and appropriate supervisory and maintenance personnel);
Training for emergency responders along passenger corridor
routes;
Accounting for the unique emergency preparedness concerns
raised by passenger operations through tunnels, on elevated structures,
and in electrified territory;
Level of training specificity required for each category
of employee;
Requiring passenger railroads to develop and update inter-
organizational emergency protocols with local communities, in order to
augment safety action plans;
Providing emergency responders with accurate passenger
counts; and
Emergency lighting in passenger cars (e.g., floor strip
lighting, flood lighting, and emergency exit lighting), including
standards for testing and reliability.
FRA deliberated at length with members of the Working Group about
what the rule would demand of affected railroads, in order to achieve
the goal of optimizing their level of preparedness when faced with
passenger train emergencies. The consensus was that the final rule
needed to be flexible in its requirements to allow each railroad to
address the unique characteristics of its individual operation. The
Working Group recommended that FRA require each affected railroad to
prepare a formal emergency preparedness plan covering broad elements,
such as: employee and emergency-responder training; on-board crewmember
responsibilities; communication between the train crew and the control
center, and between the control center and the emergency responders;
delineation of passenger railroad and freight railroad responsibilities
in cases of joint operations; and operations in tunnels or over
elevated structures.
[[Page 24633]]
However, the group urged FRA to afford railroads considerable latitude
to design and administer emergency preparedness plans that best address
each railroad's specific safety issues and concerns, with each plan
then subject to review and approval by FRA.
FRA incorporated the Working Group's recommendations into a draft
NPRM, and mailed the draft to the group on December 14, 1995, along
with a copy of the minutes of the first meeting of the Working Group.
Copies of both documents, and other relevant enclosures, were placed in
the public docket for this rulemaking. The 34-member Working Group held
its second meeting on February 6-7, 1996, and was comprised of
representatives from the same organizations in attendance at the first
Working Group meeting. The Working Group reviewed the draft and
presented its comments, and a copy of the minutes of the second meeting
of the group is also included in the rulemaking docket. The Working
Group's comments were then incorporated into the NPRM that was
published in the Federal Register on February 24, 1997. 62 FR 8330.
While FRA has focused on crafting a rule containing comprehensive
requirements in connection with railroads adopting, implementing, and
complying with their emergency preparedness plans, many details
remained unresolved at the NPRM stage concerning the enforcement
obligations that FRA should impose in the final rule. Among the broad
range of possibilities, FRA noted that the final rule could impose a
``reasonable care'' standard and focus on achieving substantial
compliance, with an emphasis on determining whether each railroad has
demonstrated a genuine good faith effort to fulfill each of the
elements of its emergency preparedness plan. Under this approach, for
example, FRA would verify whether a railroad has established a training
program for its employees on the applicable provisions of the emergency
preparedness plan, and could impose a civil penalty on the railroad for
failing to comply with this basic element of its emergency preparedness
plan. However, if FRA concluded that the railroad had properly adopted
a training program, but during the occurrence of an actual emergency
several employees failed (under the stress of the situation) to fulfill
all of their responsibilities under the emergency preparedness plan,
FRA would likely not penalize either the railroad or the individuals.
Also, if a railroad failed to designate an employee to maintain a
current list of emergency telephone numbers, FRA could clearly penalize
the railroad for this omission. However, if a railroad's plan properly
provided for the maintenance of the list of emergency telephone
numbers, but one telephone number on a long list of accurate numbers
was found by FRA to be out of date, and thus incorrect, FRA could use
its prosecutorial discretion to elect not to impose a civil penalty on
the railroad.
As an alternative, FRA noted in the NPRM that the agency could
maintain strict oversight by requiring compliance with every individual
element of the emergency preparedness plan, and impose a civil penalty
in every instance in which a railroad failed to achieve compliance.
Accordingly, under this approach, a railroad could be penalized for
failing to constantly update its list of emergency telephone numbers,
neglecting to distribute applicable portions of its emergency
preparedness plan to each and every on-line emergency responder, or
operating a train with an incorrect type of on-board emergency
equipment. Rather than stressing a determination of the overall level
of emergency preparedness achieved by a railroad before an emergency
ever occurs, this enforcement philosophy would specifically focus on
whether the railroad in fact complied with all of the written emergency
plan procedures for implementing each plan element. FRA invited
commenters to address the questions of what compliance obligations
should exist in the final rule, in the context of requiring railroads
to adopt and implement procedures for achieving emergency preparedness,
and what enforcement policy should be exercised by the agency regarding
those obligations. Commenters were also asked to review the language of
the section-by-section analysis and rule text of the proposed rule and
to offer suggestions on whether FRA's expectations for compliance with
the emergency preparedness plan elements were too rigid, or not strict
enough.
Although FRA did not receive many written comments on how the
agency should define its enforcement philosophy concerning the final
rule, the consensus of the Working Group was that FRA should not
penalize a railroad that has displayed its best efforts in achieving
compliance and that FRA should focus on evaluating the overall quality
of the emergency preparedness plan rather than on finding possible
minor deficiencies. The Working Group also stated that FRA should not
necessarily measure the success of an emergency preparedness plan based
solely upon the outcome of an emergency situation. In this regard, the
Working Group noted that even if a railroad meticulously prepares a
comprehensive and detailed emergency preparedness plan, the severity
level of an emergency and the ``real life'' reactions to a crisis
situation by a railroad's employees (even assuming that the railroad
properly trained the employees on the applicable plan's provisions in
accordance with Sec. 239.101(a)(2)) may prevent a railroad from
achieving a favorable result in a specific emergency scenario.
Accordingly, the Working Group urged FRA to evaluate a railroad's
response to an emergency situation based upon how precisely the
railroad adopted and complied with its written emergency preparedness
plan, and not necessarily upon the actual results of the plan's
implementation.
Consistent with both the Working Group's recommendations and FRA's
stated policy in 49 CFR part 209 with respect to deciding whether
enforcement action is the best method for addressing noncompliance,
representatives of FRA and States participating under 49 CFR part 212
will consider a number of different factors before recommending the
assessment of a civil penalty involving the requirements of this rule.
These factors include:
The inherent seriousness of the violation;
The kind and degree of potential safety hazard presented
by the violation under the circumstances;
Any actual harm to persons or property already caused by
the violation;
The offending person's general level of compliance;
The offending person's recent history of compliance with
the particular rule involved, especially at the particular location
involved;
Whether a remedy other than a civil penalty (ranging from
a warning to an emergency order) is appropriate under the
circumstances; and
Other factors relevant in the immediate circumstances.
In drafting the final rule, FRA has incorporated relevant
information derived from the investigation of the accident involving
Amtrak train 1, the ``Sunset Limited,'' which occurred in Hyder,
Arizona on October 9, 1995. In that accident, the initial notification
was made by the Amtrak locomotive engineer to the Southern Pacific
Transportation Company (SP) train dispatcher's office in Denver,
Colorado, which then notified the appropriate local emergency response
agencies. The SP yardmaster in Phoenix Yard also dialed 911 after
hearing the engineer's
[[Page 24634]]
radio transmissions to the train dispatcher.
While the local emergency responders stated that the accident was
handled well by all parties involved, the responders noted that they
were hampered in reaching the accident site by extremely rough terrain,
initially negotiable only by four-wheel drive vehicles until graders
and earth movers created a trail for conventional vehicles. The
responders were somewhat confused by being provided with only a
milepost location instead of a more familiar identifier. The responders
were also frustrated by the lack of an accurate passenger count, but
Amtrak has stated that once it has satellite cellular telephone
capabilities train conductors will report passenger counts to a central
telephone number after leaving each station. In addition, the
responders indicated that, although the emergency lighting did not
function on the overturned passenger cars, passengers were able to
disembark through the car doors and emergency windows.
FRA has also included requirements in the final rule relating to
emergency egress from passenger trains, based upon information obtained
from the investigations of the two more recent train accidents in New
Jersey and Maryland. In the first accident, a near head-on collision
occurred on February 9, 1996 between NJTR trains 1254 and 1107 at
milepost 2.8, on the borderline of Secaucus and Jersey City, New
Jersey. Of the 331 passengers and crew on both trains, two crewmembers
and one passenger were fatally injured, and an additional 162
passengers reported minor injuries. In the second accident, a near
head-on collision occurred on February 16, 1996 between MARC train 286
and Amtrak train 29 on CSX Transportation, at Silver Spring, Maryland,
milepost 8.3. The accident resulted in 11 fatalities, involving three
crewmembers and eight passengers, and at least 12 non-fatal injuries to
passengers of the MARC train.
While many of the questions raised by the New Jersey and Maryland
train accidents are currently being addressed by the working group
which is considering regulations covering rail passenger equipment
safety, the important issue of emergency egress is being addressed by
this emergency preparedness rulemaking. Specifically, the Maryland
accident raised serious concerns as to whether MARC passengers had
sufficient information about the location and operation of emergency
exits to enable them to find and use those exits in an emergency or
accident. FRA believes that in addition to marking the emergency exits,
all commuter and intercity passenger railroads should review their
practices for providing this information. On February 20, 1996, FRA
issued Emergency Order No. 20 (Notice No. 1), which required prompt
action to immediately enhance passenger train operating rules and
emergency egress and to develop an interim system safety plan
addressing cab car forward and multiple unit (MU) operations. 61 FR
6876, Feb. 22, 1996. In pertinent part, Notice No. 1 of the Emergency
Order stated:
[t]here is a need to ensure that emergency exits are clearly marked
and in operable condition on all passenger lines, regardless of the
equipment used or train control system. FRA's regulations generally
require that all passenger cars be equipped with at least four
emergency opening windows, which must be designed to permit rapid
and easy removal during a crisis situation. The investigation of the
Silver Spring accident has raised some concerns that at least some
of the occupants of the MARC train attempted unsuccessfully to exit
through the windows. Whether those same people eventually were among
those who exited safely, or whether those persons were attempting to
open windows that were not emergency windows is not known at this
time. However, there is sufficient reason for concern to require
that measures be taken to ensure that such windows are readily
identifiable and operable when they are needed. Accordingly, the
order requires that any emergency windows that are not already
legibly marked as such on the inside and outside be so marked, and
that a representative sample of all such windows be examined to
ensure operability. (FRA Safety Glazing Standards, 49 CFR Part 223,
require that each passenger car have a minimum of four emergency
window exits ``designed to permit rapid and easy removal during a
crisis situation.'')
61 FR 6880, Feb. 22, 1996.
On February 29, 1996, FRA issued Notice No. 2 to Emergency Order
No. 20 to refine three aspects of the original order, including
providing more detailed guidance on the emergency egress sampling
provision. 61 FR 8703, Mar. 5, 1996. In pertinent part, Notice No. 2 of
the Emergency Order stated:
The original order required but did not set parameters for
testing a representative sample of emergency exits. The alteration
to the emergency egress provisions requires that sampling of
emergency window exits be conducted in conformity with either of two
alternate methods commonly recognized for such efforts. This
modification provides a degree of uniformity industry wide. These
methods require sampling meeting a 95 percent confidence level that
all emergency window exits operate properly (i.e., the methods do
not accept a defect rate of 5 percent). Although the original order
would have required testing all exits on a specific series or type
of car if one such car had a defective window exit, the amended
order permits the use of these commonly accepted sampling techniques
to determine how many additional windows in [sic] test. In general,
these principles require that the greater the percentage of windows
initially found defective, the greater the percentage of windows
that will have to be tested.
In addition, FRA has modified the emergency egress portion of
the order to clarify that the exterior marking requirement applies
to those windows that may be employed for access by emergency
responders, which may be windows other than, or in addition to,
those designed for emergency egress for passengers. In addition, FRA
has modified the interim system safety plan portion of the order to
require discussion of the railroad's programs and plans for liaison
with and training of emergency responders with respect to emergency
access to passengers. The original order required discussion only of
methods used to inform passengers of the location and method of
emergency exits.
61 FR 8703, Mar. 5, 1996.
On March 12, 1996, in response to the MARC train accident in Silver
Spring, Maryland on February 16, 1996, the NTSB issued ``Safety
Recommendations'' to both the Maryland Mass Transit Administration (R-
96-4 through R-96-6) and FRA (R-96-7). The NTSB was concerned because
the emergency quick-release mechanisms for the exterior doors on MARC's
Sumitomo rail cars were located in a secured cabinet some distance from
the doors that they control, and the emergency controls for each door
were not readily accessible and identifiable. The NTSB recommended that
emergency quick-release mechanisms for exterior doors on MARC cars be
well marked and relocated, so that they are immediately adjacent to the
door control and readily accessible for emergency escape. The NTSB also
noted that the left and right rear exterior side doors of the first car
and the front interior end door and the right front exterior door of
the second car were jammed, and observed that none of the car doors had
removable windows or pop-out emergency escape panels (kick panels) for
use in an emergency.
In addition, the NTSB stated that several train passengers were
unaware of the locations of emergency exits, and none knew how to
operate them. The NTSB found that the interior emergency window decals
were not prominently displayed and that one car had no interior
emergency window decals. Also, the exterior emergency decals were often
faded or obliterated, and the information on them, when legible,
directed emergency responders to another sign at the end of the car for
instructions on how to open emergency
[[Page 24635]]
exits. The NTSB recommended that all emergency exits be clearly
identified, with easily understood operating instructions prominently
located on each car's interior, for use by passengers, and on each
car's exterior, for use by emergency responders.
Based upon its investigation, the NTSB recommended that FRA:
Inspect all commuter rail equipment to determine whether it has: (1)
easily accessible interior emergency quick-release mechanisms
adjacent to exterior passageway doors; (2) removable windows or kick
panels in interior and exterior passageway doors; and (3)
prominently displayed retroreflective signage marking all interior
and exterior emergency exits. If any commuter equipment lacks one or
more or these features, take appropriate emergency measures to
ensure corrective action until these measures are incorporated into
minimum passenger car safety standards. (Class 1, Urgent Action) (R-
96-7)
Safety Recommendation R-96-7 at page 3.
On March 26, 1996, FRA convened a joint meeting of the Passenger
Train Emergency Preparedness Working Group and the Passenger Equipment
Safety Standards Working Group to discuss the NTSB's recommendations
and incorporate the Safety Board's findings, as appropriate, into each
working group's rulemaking proceeding.
Fifty-seven members from 21 different organizations attended the joint
meeting. Although some of the recommendations involving structural
modifications to rail equipment are being dealt with by the Passenger
Equipment Safety Standards Working Group, the remaining NTSB
recommendations involving marking, inspection, maintenance, and repair
of emergency exits are reflected in Sec. 223.9(d), entitled
``Requirements for new or rebuilt equipment,'' and Sec. 239.17,
entitled ``Emergency exits.'' The Section-by-Section Analysis contains
a detailed discussion of FRA's new requirements, particularly in light
of the two 1996 accidents in New Jersey and Maryland and the NTSB's
safety investigations and recommendations.
In a letter to FRA dated June 24, 1996, Donald N. Nelson, President
of Metro-North and Chairperson of APTA's Commuter Railroad Committee,
announced that commuter railroads nationwide were implementing a series
of rail passenger safety initiatives building on the provisions of
FRA's Emergency Order No. 20 and the NTSB's Safety Recommendations R-
96-4 through R-96-7. In pertinent part, all commuter rail authorities
committed to early voluntary implementation of the emergency
preparedness requirements proposed in the NPRM, including requiring
inspection and testing of all emergency window exits as part of routine
car maintenance to ensure correct operation and ease of egress,
offering emergency responder training for every jurisdiction within
each commuter railroad's service area, and educating passengers on the
use of emergency exits on commuter trains. The commuter railroads also
indicated that each one will ensure the safety of its operation by
adopting a comprehensive system safety plan that:
(a) Defines the overall safety effort, how it is to be
implemented and the staff required to maintain it;
(b) Establishes the safety interface within the railroad, as
well as with its key outside agencies;
(c) Clearly indicates Senior Management support for implementing
the safety plan and the railroad's overall commitment to safety;
(d) Establishes the safety philosophy of the organization and
provides the means for implementation;
(e) Defines the authority and responsibilities of the safety
organization and delineates the safety related authority and
responsibilities of other departments; and
(f) Incorporates safety goals and objectives into the overall
corporate strategic plan.
APTA's Commuter Railroad Committee letter at pages 1 and 2.
As part of the ongoing review process within DOT, and subsequent to
the Working Group's previous opportunities to review the rule text of
the NPRM, FRA implemented changes to the draft proposed regulatory text
and preamble. FRA initiated those changes in order to strengthen the
rule's requirements and establish more objective criteria for FRA's
review of each railroad's emergency preparedness plan. In a letter
dated December 27, 1996, FRA sent a copy of the revised proposed
regulatory text to members of the Working Group, and requested comments
on issues that the members wished to see included in the preamble
section of the proposal. FRA requested that all comments be submitted
to FRA by the close of business on January 8, 1997. The NPRM was then
published in the Federal Register on February 24, 1997.
In a letter to the Working Group dated August 8, 1997, FRA noted
that it had completed its review of the oral and written comments on
the NPRM. As part of the drafting process of the final rule, FRA
invited members of the Working Group to attend a meeting on August 28,
1997 to discuss a number of significant issues that had been identified
by the commenters and to consider FRA's recommendations. Based upon the
helpful participation and cooperation of the Working Group at that
meeting, FRA then completed the final rule. A copy of the minutes of
the August 28, 1997 Working Group meeting is included in the public
docket for this rulemaking, and a detailed discussion of the meeting
follows in the ``Discussion of Comments and Conclusions'' portion of
this final rule.
Development of the Passenger Safety Program
As discussed above, this final rule is one element of a
comprehensive effort to improve the safety of rail passenger service.
In addition to this rulemaking, FRA is currently dealing with related
issues in several contexts. Recent actions concerning passenger safety
needs have included, for instance, Emergency Order No. 20, which
addressed, on an interim basis, key issues regarding railroad operating
rules, inspection of required emergency window exits, and emergency
exit signage and marking.
In the Passenger Equipment Safety Standards Working Group, FRA is
examining possible requirements for improved emergency egress features
for both retrofit and new construction. Affected railroads have
completed the removal of latches requiring special tools for access to
manual releases on powered doors. Separately, FRA is reviewing the
totality of emergency egress requirements and the issue of their
overall adequacy, including the relocation of manual releases to
locations immediately adjacent to end vestibule doors. FRA anticipates
that these efforts will be advanced through the collaborative
rulemaking process. However, if necessary to ensure prompt action, FRA
may propose specific requirements based upon its own staff analysis.
In the context of improving railroad communications, FRA's Railroad
Safety Advisory Committee (RSAC) established a working group to
specifically address communication facilities and procedures, with a
strong emphasis on passenger train emergency requirements. The NPRM in
this proceeding was published on June 26, 1997, reflecting the
consensus recommendations of the RSAC. The final rule will address the
need for redundant communications capability on all passenger trains.
Although that rulemaking will establish minimum safety requirements
with respect to communications equipment, it should be noted that
intercity and commuter railroads already make extensive provision for
ensuring communication capabilities during emergencies.
FRA is engaged in a four-phase process to address emergency
preparedness. In the first phase, in 1994,
[[Page 24636]]
FRA distributed the Volpe Report (as described above) and encouraged
railroads to examine their existing programs to determine what
improvements could be made. The present rulemaking represents the
second step in this process, formalizing a planning requirement and
identifying certain mandatory elements. The third phase will begin as
FRA reviews railroad plans to determine that the issues presented by
the Volpe Report and the rule have been adequately addressed within the
varying contexts of the commuter authority operations. FRA will conduct
a detailed review of each plan. Following preliminary review and final
approval of written plan submissions, FRA will determine how the
program is being implemented in the field. FRA will also be interested
in learning how this effort is being integrated into the overall system
safety planning process that commuter authorities have agreed to
undertake. FRA is optimistic that this approach will yield positive
results, promoting creativity and cross-fertilization of the emergency
preparedness planning process through FRA, APTA, and other channels.
This give-and-take approach should facilitate standardization of
matters involving interface with passengers, while permitting continued
adaptation of programs to local needs.
The fourth phase will involve FRA's review, after gaining at least
a full year of actual experience under the standards enacted here, of
the implementation and effectiveness of the standards and related
voluntary developments. In this phase of activity, FRA will work with
interested parties to evaluate whether further rulemaking or other
action might be necessary to ensure that, for each program element,
standards and practices are sufficiently precise and stringent to
achieve the desired improvements in emergency preparedness. Further,
this review will determine whether experience in working with emergency
responders indicates that additional program elements should be
addressed.
Discussion of Comments and Conclusions
A total of 15 responses were received by FRA concerning the NPRM.
Prior to the two public hearings that were held in Chicago, Illinois
and New York, New York, five organizations submitted written comments:
American Association of Private Railroad Car Owners, Inc. (AAPRCO);
LIRR; METRA; METROLINK; and UTU. At the public hearing held in Chicago
on April 4, 1997, six organizations were represented: APTA; Des
Plaines, Illinois Fire Department; Office of Emergency Management of
DuPage County, Illinois; Illinois Law Enforcement Training Standards
Board; METRA; and the Village of Wheeling, Illinois. At the public
hearing held in New York City on April 7, 1997, four organizations were
represented: APTA; BLE; Omniglow Corporation (Omniglow); and UTU. Ten
organizations and one individual submitted post-hearing written
comments: AAPRCO; AAR; Amtrak; APTA; CALTRAIN; Littleton, Colorado Fire
Department; LIRR; NICTD; NTSB; UTU; and Kieran Darcy.
In a letter to the members of the Working Group dated August 8,
1997, FRA noted that a significant number of issues and concerns had
been raised by commenters on the NPRM. In the spirit of continuing the
meaningful partnership on development of the emergency preparedness
rule, FRA convened a meeting of the Working Group in Washington, D.C.
on August 28 1997, in order to discuss the major issues addressed in
the comments and at the public hearings and consider changes to the
proposal for inclusion in the final rule. Among the issues discussed at
this meeting were the: categories of employees required to be
``qualified'' personnel for purposes of carrying out responsibilities
under the emergency preparedness plan; types and numbers of emergency
simulations required of railroads; elements of passenger information
programs; the process of formal review and approval of the emergency
preparedness plan by FRA; and adoption of a single emergency
preparedness plan for each passenger service operation by the passenger
railroad and its host railroad(s). Discussions follow with respect to
the primary issues raised by the commenters and/or discussed by the
Working Group during the consultative process. In light of the comments
received, FRA has reconsidered some of the proposals.
1. FRA proposed that a minimum of one on-board crewmember on a
train be qualified under the plan. Should FRA revise the definition of
``crewmember'' in the final rule to exclude on-board service personnel
from the category of on-board staff that a railroad must qualify under
the applicable provisions of its emergency preparedness plan? Should
FRA increase the minimum number of crewmembers that must be qualified?
The NPRM defined a ``crewmember'' as ``a person other than a
passenger who performs either: (1) On-board functions connected with
the movement of the train or (2) On-board service,'' and proposed that
``each passenger train shall have a minimum of one on-board crewmember
who is qualified under the applicable emergency preparedness plan's
provisions.'' 62 FR at 8356, 8357. FRA acknowledges the safety benefit
in having each railroad provide emergency preparedness training to
every on-board employee (including employees of contractors), and
anticipates that railroads will voluntarily elect to train most, if not
all, on-board personnel in emergency response procedures, but FRA
recognizes the practical limits of an expansive definition of
``crewmember.''
Among the comments received, APTA noted that the proposed
definition of ``crewmember'' is overbroad, and brings in classes of
workers such as security forces, service providers, marketing staff,
survey takers, and hosts. Certain contract vendors providing services
such as food and beverage are neither railroad personnel nor
passengers, yet would appear to fall under the proposed definition.
Also, some commuter operations lease out a bar or club car, and APTA
believes that those personnel should not be included in the definition.
The additional training expenses associated with qualifying this
category of non-operating railroad employees under the railroad's
emergency preparedness plan would not be cost effective. APTA,
therefore, requested that the definition of ``crewmember'' be revised
to cover only operating personnel. Also, since on-board service
personnel typically work for Amtrak in intercity service, APTA stated
that the concept should not be applied to commuter railroads.
METROLINK commented that some of its conductors perform the
function of fare enforcement conductors, and should be excluded from
the definition of ``crewmember.'' In addition, METROLINK noted that
since it may contract out food service on some of its intercity trains,
these contract workers should also be excluded from coverage in the
final rule.
The UTU believed that a passenger train should not be dispatched
unless the conductor is the qualified crewmember under the emergency
preparedness plan, and noted that in serious accidents, the engineer
cannot respond because of personal injury or damage to the locomotive
radio system. In addition, the UTU stated that on-board personnel are
not qualified on the physical characteristics of the railroad and may
be asleep at the time of an accident. If a train has a crewmember who
is qualified under the emergency preparedness plan, along with a
conductor from a freight railroad who is qualified on the physical
characteristics of the railroad, the two individuals
[[Page 24637]]
could coordinate emergency efforts. The BLE stated that the training
that is developed for the qualified individual responsible for
communications must include the engineer in order to reflect a
redundancy factor for on-board personnel, and noted that the final rule
should not count on-board crewmembers employed as service attendants as
qualified crewmembers.
Upon careful consideration of the comments, FRA concludes that rail
passenger safety will be enhanced by limiting the definition of
``crewmember'' to exclude on-board railroad and contractor employees
who have little knowledge of emergency preparedness issues and railroad
operations (e.g., security forces, marketing staff), while
simultaneously requiring that all operating employees (and sleeping car
and coach attendants on trains operating in intercity service) be
qualified under the emergency preparedness plan. In reaching this
conclusion, FRA recognizes that individuals who merely sell food and
beverages to passengers onboard a passenger train, but are not involved
with the train's operation, may be incidental to the railroad's overall
plan for emergency preparedness. However, FRA believes that sleeping
car and coach attendants on intercity trains can play a very key role
in precipitating passenger evacuation during the aftermath of an
emergency.
Unlike passengers on commuter trains, who generally remain aboard
their trains for short time periods and have minimal direct dealings
with crewmembers, passengers traveling in overnight trains have
frequent contact with their coach and sleeping car attendants. While
commuter trains generally operate through densely populated
metropolitan or suburban areas, intercity-passenger trains, by their
very nature, face a greater likelihood that if an emergency situation
occurs it will happen in a remote area not readily accessible by
members of the emergency responder community. The location of the
emergency, unclear jurisdictional authority, lack of road access, lack
of emergency equipment, or unavailability of knowledgeable and skilled
personnel could prevent police, emergency medical technicians, or other
emergency response personnel from making a timely response and hamper
evacuation. The coach and sleeping car attendants will be aware of the
approximate number of passengers on board the intercity train and
likely know how many passengers with impaired mobility may be unable to
evacuate the train on their own through the emergency window and door
exits or who risk injury if they try to do so. Accordingly, since these
attendants could prove invaluable in assisting both the passengers and
the emergency responders during the initial period after the occurrence
of the emergency, FRA concludes that the emergency preparedness plan
must provide for proper training of these individuals.
FRA also recognizes that in the aftermath of an emergency the
crewmembers will have many important responsibilities, including
maintaining contact with the control center, ensuring proper protection
of the train, and providing for the safety of the passengers. If the
emergency involves a collision or derailment, one or more of the
crewmembers may be injured and unable to carry out his or her duties.
In an effort to increase the number of crewmembers who will be
available to implement the railroad's emergency preparedness plan, the
final rule requires that all on-board operating employees be qualified
under the applicable provisions of the emergency preparedness plan. See
Sec. 239.101(a)(2)(vi). Of course, in the event that a railroad
operates a train with the engineer as the only crewmember, then the
railroad will be in full compliance provided that the engineer is fully
trained and qualified under the plan.
Accordingly, FRA is revising the definition of ``crewmember,'' as
it applies for purposes of intercity service, to include both operating
employees on board the train (i.e., railroad employees, or employees of
contractors to railroads, who have been assigned to perform service
subject to the Federal hours of service laws during a tour or duty) and
individuals who serve as sleeping car or coach attendants. Instead of
permitting an intercity train to operate with a minimum of only one
crewmember who is qualified under the railroad's emergency preparedness
plan, the final rule requires that all on-board operating employees be
trained and qualified under the plan's provisions. However, a narrow
exception will exist when a freight train crew serves as the relief
crew on a passenger train. In this limited circumstance, the final rule
permits the passenger train to operate, provided that at least one on-
board operating crewmember from the passenger train is properly trained
and qualified under the railroad's plan and available to perform excess
service in the event of an emergency situation. See 49 U.S.C. 21102(a)
and 21103. For purposes of all other categories of passenger train
service, FRA is revising the definition of ``crewmember'' to apply only
to operating employees on board the train (i.e., railroad employees, or
employees of contractors to railroads, who have been assigned to
perform service subject to the Federal hours of service laws during a
tour or duty), but exclude persons who provide on-board food or
beverage service or security protection. In addition, all of the on-
board operating employees (along with sleeping car and coach attendants
assigned to intercity service) must be trained and qualified under the
plan's provisions.
2. Should tabletop exercises not count toward the requirement to
conduct emergency simulations, and instead should at least one full-
scale simulation be required during the time period specified? If so,
should the minimum number of activities be adjusted to reflect the
increased quality of the simulation program? Should railroads be
required to develop training programs for emergency responders and
their organizations?
Although FRA noted in the NPRM that a tabletop exercise is
relatively easy to orchestrate, ``as it involves only a meeting room
and knowledgeable managers and employees from the passenger train
operator and the appropriate responding organizations who voluntarily
participate,'' FRA stated that it might include a comprehensive
requirement in the final rule involving multiple numbers of full-scale
disaster simulations. See 62 FR at 8346. The NPRM set forth a
requirement for railroads operating passenger train service to conduct
emergency simulations, either full-scale or table exercises, in order
to determine their capabilities to execute their emergency preparedness
plans. 62 FR at 8257, 8258. The proposal required each commuter or
short-haul railroad to conduct enough simulations to include each major
line at least once during every two calendar years at least 50 percent
of the total number of major lines during any given calendar year.
Railroads providing intercity passenger train service were to conduct
at least two emergency simulations during each calendar year for each
business unit or other major organizational element.
Comments Received
Amtrak stressed that tabletop simulation exercises can accomplish
many of the same objectives as full-scale exercises, but at a much
lower cost. It noted that the actual emergency response activities
required when real accidents occur also provide an ongoing source of
preparedness and insight with respect to possible improvements. Amtrak
also opined that tabletop simulations, plus actual emergency
[[Page 24638]]
response situations that inevitably occur, should be sufficient to
accomplish the objectives of evaluating and improving the ability of
railroads and emergency responders to function effectively in the event
of an accident. Amtrak recommended that if the final rule requires some
actual full-scale experiences each year, an actual response,
accompanied by an appropriate debriefing and critique, satisfy that
requirement.
APTA stated that the simulation requirement should be either
deleted or made optional, and noted that commuter railroads agree with
the intent of the regulation, but object to a prescriptive approach.
APTA observed that simulations, especially full-scale ones, are time
consuming, expensive, and benefit a small percentage of employees. It
stated that in view of these factors, the requirement to perform
simulations at all combined with the requirement to perform simulations
on 50 percent of main lines each year, goes beyond what is necessary
for emergency preparedness.
APTA also noted that since emergency responders are not required to
attend, commuter railroads often hold full-scale training sessions that
are poorly attended. It argued that each railroad should be permitted
to maintain operational flexibility to determine the best way to
involve emergency responders.
The LIRR noted that emergency response agency costs vary and are
difficult to uantify, since the majority of fire departments and
ambulance crews are volunteers. Since they are volunteers, it may be
difficult for the LIRR to get them to attend many drills. However,
there are costs for equipment usage (e.g., fuel) and for medical
supplies (e.g., bandages and splints). The railroad noted that,
including preparation, it takes two full months to plan a full-scale
simulation, integrate it with the responding agencies, coordinate and
integrate it with the railroad's own transportation people (track time,
service disruptions, alternative means of transportation, development
of the program and scenario), and then complete the drill. Internally,
the LIRR uses tabletop exercises extensively for procedure review and
testing. They are used in areas where it is difficult to get track time
and run the railroad, and are less effective than practical,
experiential drills and training because of the minimal amount of
exposure to the emergency responders.
CALTRAIN commented that tabletop exercises should be accorded the
same weight and emphasis as actual field drills. Tabletop exercises,
with follow-up debrief and critique, are very effective and less
administratively burdensome. Certain exercises, such as window removal
or after-dark conditions, can be performed as part of a tabletop drill
by moving to the nearest rail facility. Subsequent to the Working Group
meeting held in Washington, D.C. on August 28, 1997, CALTRAIN
recommended that any full activation of the emergency preparedness plan
in either an actual accident or other emergency situation count as a
simulation, instead of only triggering a 180-day extension of the
timeframe in which to perform the full-scale simulation, while if no
such activation occurred, then the two-year cycle would apply. Since a
``real'' activation would be fully evaluated and modifications would be
made, a ``simulated'' drill would be burdensome and redundant. Also,
while CALTRAIN makes reasonable efforts to contact and invite area
agencies, attendance is not mandatory. It argued that the final rule
should discuss ``best efforts to contact, train, and participate'' in
drills, since response agencies have budgetary and other issues with
which to contend that affects their ability to participate in emergency
drills on any given day.
METRA commented that it has 13 major lines, and would have to hold
6.5 simulations each year under the proposal. It noted that the
participants would also have to be trained before each simulation, and
under proposed 49 CFR 239.105, debriefing and critique sessions would
be held afterward. METRA assumes that responder preplanning requires
three weeks, the actual simulation takes two to four weeks to plan and
coordinate, and the critique is performed a week after the simulation
and compiled and acted upon the following week, for a total of 58.5
weeks spent performing 6.5 simulations. Under the proposal, METRA
contends that it would have to conduct more than five simulations per
year due to its system size and number of major routes. Even if the
personnel and budget could be found to plan and conduct this level of
simulation every year, METRA believes that it is questionable that the
region's emergency responders could participate at this level.
METRA states that the Illinois Law Enforcement and Standards Board
has certified METRA's program for training all law enforcement
personnel throughout Illinois, and requests that a ``Train the
Trainer'' program be added to the final rule as a means of ensuring a
qualified response to passenger train emergencies. METRA's concern is
that many of the fire departments overlap to such an extent, that by
performing the set number of route simulations in the proposal, some of
the departments could be involved in three or more simulations per
year. Because of liability and publicity concerns, most fire
departments would elect to be fully involved, but too many simulations
may dilute the aggressiveness of the emergency responders. METRA
suggested that the number of required simulations should be reduced in
the final rule to only two per year, and that videotaping of emergency
simulations could be used in the preparation of training for future
simulations.
In its comments, the NTSB expressed concern that a railroad could
comply with the rule by only performing tabletop exercises each time it
conducts an emergency simulation. The NTSB stated that a tabletop
simulation exercise is not equal to a comprehensive full-scale
exercise, since only a full-scale exercise involving personnel and
equipment can demonstrate an organization's capability and readiness to
respond to a disaster. It also noted that full-scale exercises best
afford a railroad the ability to assess the effectiveness of its
emergency response plan and to identify the resources necessary to
support its plan in an actual emergency, as well as to uncover specific
problems, and that emergency response personnel can only become
familiar with railroad equipment by participating in full-scale search-
and-rescue scenarios.
The Office of Emergency Management of DuPage County, Illinois
commented that a simulation is a much better means of training
emergency responders to respond to a significant emergency than a
classroom alone. However, DuPage County has three METRA lines running
through it (and a fourth in planning), and would have to perform two
simulations annually in addition to meeting other Federal emergency
planning requirements. The commenter noted that although a tabletop
exercise is a great way to discuss policy and talk about what will
likely happen, until a person actually goes into the field and stands
next to the rail car or has to move injured persons off the second
level of a rail car, it is impossible to know how one really does it.
The Des Plaines, Illinois Fire Department believes that its
employees get more knowledge through individual training at the
departmental level than they can from mass casualty situations or
large-scale incidents, and notes that individual training ensures that
all personnel go through the hours of classes and go out on a train to
touch
[[Page 24639]]
it, open its doors, and take a window out. Employees can also attempt
to extricate a dummy from the train. In a large-scale drill, personnel
are assigned to sectors, and depending on the sector to which they are
assigned, will obtain the knowledge of just that one piece of the mass
casualty situation, and will not receive the broad spectrum.
The UTU commented that the railroads should concentrate on case
histories more than large-scale drills. It stated that large-scale
drills are expensive and time consuming, tie up the railroad, and do
not provide much learning opportunity.
In light of the written comments and testimony at the two public
hearings from members of the emergency response community, FRA has
reconsidered its proposal and is eliminating the provision for
performing a tabletop exercise in lieu of a full-scale exercise, but
scaling back the simulation requirement to involve only one meaningful
full-scale simulation (performed either annually or every two years
depending on the size of the railroad). A railroad that is considered
larger, i.e., its operation includes either at least 150 route miles or
200 million passenger miles annually, must conduct at least one full-
scale simulation annually, regardless of the number of major lines or
business organizational elements on its operation. Each railroad
operating passenger train service is also required to develop a
training program available to all on-line emergency responders who
could reasonably be expected to respond during an emergency situation,
with an emphasis upon access to railroad equipment, location of
railroad facilities, and communications interface. The training program
will provide information to emergency responders who may lack the
opportunity to participate in an actual simulation. The railroads could
either offer the training directly or make the training information and
materials available to State training institutes, firefighter
organizations (e.g., National Fire Protection Association), or State
police academies.
The consensus of the commenters was that it takes each railroad
months to plan a full-scale simulation, to conduct the drill, and to
complete the debriefing and critique session. Although some full-scale
simulation training is essential, many of the commenters (including
members of local fire departments) stated that emergency responders
also need ``hands-on'' training for railroad equipment, which is better
effected through ``hands-on'' classroom training. Classroom training
permits a railroad to run a number of evolutions, allows many groups of
individuals to have access to the equipment to achieve equipment
familiarization, and enables emergency responders to practice lifting
the rail equipment. While disaster simulations key on one incident
(e.g., a hazardous materials incident or a train collision and a
resulting fire), a classroom scenario can cover many different types of
incidents. One commenter noted that if it had to spend a
disproportionate amount of its time conducting numerous simulations, it
would be forced to scale back its current program for training members
of the emergency responder community.
FRA agrees with the commenters that the financial and logistical
costs of conducting full-scale simulations are significantly higher
than those for tabletop simulations, including the opportunity costs of
lost revenue and the need to take railroad track and equipment out of
service during the simulation. FRA also acknowledges that during
``hands-on'' classroom training a greater number of individuals receive
direct access to railroad equipment than occurs during a large-scale
drill. FRA encourages each railroad to voluntarily conduct tabletop
exercises to identify the emergency response capabilities of its
personnel in terms of their knowledge of procedures and equipment.
However, FRA has decided that the safety objectives of this rulemaking
are best served by requiring railroads to conduct at least a minimal
number of comprehensive, full-scale simulations to determine whether a
railroad is adequately prepared for the likely variety of emergency
scenarios that could occur on its lines.
In reaching its decision to focus on a smaller number of larger
scale simulations, FRA also acknowledged that under regulations
established by the Federal Emergency Assistance Agency (FEMA), States
are eligible to receive financial assistance for disaster preparedness
under the Disaster Preparedness Improvement Grant Program. See 44 CFR
Part 300. Under this program, States can receive FEMA money for
training and to test and exercise procedures for their efforts in
disaster response. While emergency responder organizations can receive
funds to participate in railroad accident exercises and simulations,
many of these same responder groups must also budget their limited time
and resources in preparing for all other types of potential disasters
that could strike their communities, e.g., airplane crashes, floods,
and earthquakes. FRA recognized that if the final rule required
railroads to conduct significant numbers of full-scale simulations, and
they received full participation from the emergency responder
community, the limited funds available from FEMA might prove inadequate
to meet the overall disaster-preparedness needs of the States and local
jurisdictions.
Intercity operations present special challenges. Amtrak noted that
full-scale simulations cause significant burdens, and argued that the
final rule should permit tabletop simulations in lieu of full-scale
ones. As an operator of seven different commuter services in this
country, Amtrak noted that it would be involved in a great number of
simulations on commuter lines, as well as its intercity service, and
stated that full-scale emergency exercises involve weeks of
preparation, commitment of physical resources, and expenditure of funds
for actual implementation of the exercise. Track and equipment would be
out of service during the placement, conduct, and removal of equipment
from the drill site. Significant disruption of normal operations on a
rail line could occur in connection with conducting a simulation.
Passengers and shippers could be inconvenienced and equipment
utilization adversely affected.
3. What elements should be included in passenger information
programs? Should surveys be required in the final rule?
The NPRM required each railroad to conspicuously and legibly post
emergency instructions inside all passenger cars (e.g., on car bulkhead
signs, seatback decals, or seat cards) and use one or more additional
methods to provide safety awareness information (i.e., on-board
announcements, laminated wallet cards, ticket envelopes, timetables,
station signs or video monitors, public service announcements, or seat
drops). 62 FR at 8357. The proposal also expected each railroad to
survey representative samples of passengers at least annually to
determine the effectiveness of its passenger awareness program
activities, and to improve its program, as appropriate based on the
information developed. 62 FR at 8357.
APTA commented that while commuter railroads should be required to
develop and use passenger emergency awareness programs, the features of
the programs should be left to each commuter railroad's discretion. It
stated that the final rule should be based on performance, not the
command-and-control approach in the proposal. APTA also argued that the
prescription favoring certain types of signage should be removed from
the final rule, and the safety awareness requirement changed
[[Page 24640]]
to merely list examples of possible methods of disseminating safety
awareness information. APTA noted that each commuter railroad has its
own unique approach to developing and using tools to make passengers
aware of emergency instructions inside passenger cars, and should
retain flexibility to find the right mix of passenger communication
techniques. APTA contended that unless the passenger information
requirement allows a railroad latitude to use innovative means or new
technology to deliver safety information, a railroad would have to
apply for a waiver to develop or use the new program or technology,
thus delaying its introduction.
The LIRR also commented on the issue of passenger awareness program
activities. The railroad suggested that safety awareness information
could be printed on a pocket-sized card in order to remind customers of
the basics of what to do in the event of an emergency situation. FRA
notes that Sec. 239.101(a)(7)(ii), as proposed, already permits a
railroad to disseminate information to passengers on ``laminated wallet
cards.'' 62 FR at 8357.
FRA agrees with the two commenters that requiring railroads to
choose among only the seven listed additional methods of providing
safety awareness information to their customers is too restrictive, and
could discourage railroads from being innovative. FRA fully expects
most railroads to use either on-board service announcements, laminated
wallet cards, ticket envelopes, timetables, station signs or video
monitors, public service announcements, or seat drops as the second
means of ensuring the effectiveness of their passenger safety awareness
programs. However, FRA encourages the use of alternate but equally
effective approaches, especially if validated by information deduced
from the debriefing and critique sessions held after passenger train
emergency situations or simulations.
FRA is not, however, revising the requirement that railroads post
emergency instructions inside all passenger cars. In the event of an
emergency, passengers may experience panic and momentarily forget any
information that may have been conveyed by the crew before the train's
departure (e.g., through an on-board announcement). FRA believes that
an important part of the successful implementation of this rule depends
on railroads posting convenient and conspicuous reminders to their
passengers of the important safety procedures to follow in the event of
an emergency. Such a requirement will also provide a measure of
consistency, benefiting passengers who use more than one service
provider.
Upon review of the comments on the passenger survey requirement,
FRA concludes that the financial cost to each passenger railroad of
developing and conducting a survey capable of reaching a statistically
significant cross-section of its customer population in order to
periodically update and improve its passenger safety awareness
information greatly exceeds any potential benefit. Accordingly, FRA is
deleting this requirement from the final rule.
In proposing the survey requirement, FRA presumed that railroads
would merely include additional questions on customer satisfaction
surveys currently used to assess passenger comfort and assist railroads
in timetable planning. FRA assumed that the additional costs to the
railroad industry would therefore be minimal. However, three railroads
and APTA commented on FRA's proposal, convincing FRA that unless the
rule required each railroad to employ a rigorous and scientific survey
methodology, most oral and written surveys would likely be completed
only by those passengers who are either regular riders already familiar
with emergency procedures or dissatisfied riders who have complaints
about train service. Without such a financially burdensome requirement,
the survey results would be of little or no value to the railroads in
verifying passenger awareness of the location(s) on the passenger car
of safety information or knowledge of safety procedures to be followed
in the event of an emergency. Accordingly, since any changes made by
the railroads to their passenger awareness programs might be predicated
upon inaccurate or incomplete information, FRA believes that a survey
requirement would likely not benefit passenger safety.
Consistent with FRA's conclusion, APTA commented that although
passenger surveys may be useful in determining passenger safety
awareness, there is no guarantee that they will be useful in fact. APTA
stated that since completion of the survey is voluntary on the part of
the public, the survey would not provide any real knowledge to the
railroad of passenger awareness of emergency preparedness.
APTA also disagreed with FRA's estimate that the survey requirement
would entail no additional cost to each railroad, noting that DOT
recently estimated that on-board transit surveys cost $12 per completed
survey (DOT-97-08, as reported in the Urban Transportation Monitor).
Based upon 360 million passenger trips daily and a sample size of one
percent, APTA concluded that the total cost to survey commuter rail
passengers would be $21,600,000 (360/2 x .01 x $12.00). Although
APTA realized that the cost might be smaller, depending on the number
of surveys done and number of questions asked, it stressed that the
final cost would be more than incidental.
Amtrak commented that the survey requirement is unnecessary and
undesirable, and could undermine the public's opinion of the safety of
train travel. It noted that no other transportation mode is required to
conduct surveys of passengers' levels of knowledge of safety
information or procedures. Instead of performing mandatory surveys,
Amtrak recommended that railroads focus on providing passengers with
the information necessary for them to function in the event of an
emergency, as is currently done in the airline industry. Amtrak shared
APTA's concern that since public participation in the survey is
voluntary, railroads would have serious concerns about the objectivity
and validity of the results obtained.
NICTD opposed the use of passenger surveys to determine knowledge
or compliance and stated that despite the rule's flexibility in the
methodology of surveys, surveys would not in and of themselves
measurably contribute to overall passenger education concerning
emergency situations. NICTD stated that the education and ongoing
training of train crews concerning emergency situations is more
productive and cost effective, since train crews are ultimately
responsible for dealing with passengers in these situations.
NICTD also questioned the cost/benefit factor of having employees
orally survey passengers aboard trains or at train stops, arguing that
the use of written surveys distributed to passengers boarding trains,
or provided as seat drops, would not guarantee completion of the forms.
Further, NICTD stressed that the requirement to survey a
``representative sample of passengers'' each calendar year cannot be
assured by the survey process, whether the survey is done orally or in
writing. Oral surveys may be viewed by passengers as annoying, who will
then refuse to cooperate, and written surveys will likely be completed
only by those passengers who are inclined to respond.
The LIRR commented that it performs at least one customer-
satisfaction survey per year, at a cost of $155,000 per survey, and on
a case-by-case basis performs targeted surveys to assist in a decision-
making process. The LIRR's Market Development area input shows
[[Page 24641]]
that the response rate should be at least 45 percent to allow for valid
projection of the sample findings to the whole population. However, the
LIRR's normal response rate of mail-back surveys that it has conducted
in the past, without incentives, is only 15 percent.
4. Should FRA modify the requirement that the agency conduct a
formal review and approval of each railroad's emergency preparedness
plan within 180 days of receipt of the plan from the railroad?
The NPRM stated that within 180 days of receipt of each initial
emergency preparedness plan, and within 60 days in the case of a
railroad commencing or hosting passenger operations after the initial
deadline for plan submissions, FRA would conduct a formal review of the
plan. 62 FR at 8358. FRA would then notify the railroad of the results
of the review, whether the plan had been approved by FRA, and if not
approved, the specific points in which the plan was deficient. 62 FR at
8358. If the plan was not approved by FRA, the railroad was required to
amend its plan to correct all deficiencies (and provide FRA with a
corrected copy) not later than 30 days following receipt of FRA's
written notice of disapproval. 62 FR at 8358.
APTA commented that FRA should remove the time limit for approval
of the emergency preparedness plan, and return to the original
consensus recommendation of the Working Group that there be no
deadlines. APTA stated that it doubted that FRA would be able to turn
around the plans to the commuter rail systems within the specified
timeframe, and recommended that FRA should adopt a consultative
approach to emergency preparedness instead of the approach included in
the NPRM.
In response to APTA's concerns, FRA is adopting a bifurcated
approach to approval of the emergency preparedness plan in the final
rule. The final rule specifies that within 90 days of receipt of each
initial plan, and within 45 days in the case of a railroad commencing
operations after the initial deadline for plan submissions, FRA will
conduct a limited, preliminary review to determine if the required
elements of the emergency preparedness rule are sufficiently addressed
and discussed in the railroad's emergency preparedness plan submission.
For example, this initial review will determine if the railroad has
included a section in its plan on liaison relationships with on-line
emergency responders, but will not yet involve field verification by
FRA safety inspectors that the railroad is in fact inviting these
responders to attend training programs on access to railroad equipment.
After this initial review, as appropriate, FRA will then grant or deny
conditional approval of the plan in writing. Within 18 months of
receipt of each emergency preparedness plan, and within 180 days in the
case of a railroad commencing operations after the initial deadlines
for plan submissions, FRA will then complete a comprehensive review,
consisting of ongoing dialogues with rail management and labor union
representatives and field analysis and verification of the railroad's
implementation of the plan's provisions, followed by final approval or
denial.
The bifurcated approach to approval of the emergency preparedness
plan will permit FRA to quickly review each plan for procedural
compliance and immediately determine if the railroad has at least
considered all required plan elements. However, FRA will then have a
much longer timeframe in which to evaluate the plan's substantive
sufficiency and the railroad's actual implementation. Without this
change in the final rule, FRA would have had to choose between delaying
many railroads from adopting their emergency preparedness plans or
accepting some railroad plan submissions on good faith with little more
than a cursory review. Either option would compromise the safety of
railroad passengers and train crews in the event of a passenger train
emergency situation.
5. Should the final rule require a joint submission of one
emergency preparedness plan by each railroad that provides or operates
passenger train service and (as applicable) each railroad that hosts
such service?
In the section of the NPRM addressing joint operations, FRA stated
that each freight railroad hosting passenger train service would be
required to have an emergency preparedness plan addressing its specific
responsibilities, and each railroad operating passenger train service
over the line of a freight railroad would be required to coordinate the
applicable portions of its emergency preparedness plan with the
corresponding portions of the freight railroad's plan. 62 FR 8357. The
purpose for the requirement was to ensure an optimal level of emergency
preparedness on the part of every railroad involved in the operation of
a particular passenger train service. In the section of the NPRM
addressing the filing of the emergency preparedness plan, each affected
railroad would be required to file its plan with FRA within 180 days of
the effective date of the rule, or at least 90 days before commencing
passenger operations, whichever is later. 62 FR at 8358.
It has become apparent to FRA during the course of the comment
period that there is a reluctance on the part of both freight and
passenger railroads to accept full responsibility for the requisite
implementation of all of the elements of an emergency preparedness
plan. FRA is concerned that the consensus of the commenters is that
each entity expects the other entity to be held accountable by FRA in
the event that an emergency situation occurs and the provisions of the
plan are improperly executed. In order to ensure that all railroads
involved in a particular rail passenger service operation understand
each one's crucial role in planning for emergency preparedness, instead
of merely requiring coordination of applicable portions of multiple
emergency preparedness plans, the Working Group recognized the need to
include a joint submission requirement in the final rule.
CALTRAIN commented that under the proposal, passenger or commuter
railroads are responsible for the relationships with host or tenant
freight railroads. While CALTRAIN stated its intent to work closely
with such railroads, it noted that it has no authority over the freight
railroads and declined responsibility for their actions or omissions.
CALTRAIN suggested that FRA focus on evidence of a ``good faith
effort,'' since CALTRAIN cannot mandate actions and cannot enforce the
conduct of external agencies. This commenter urged FRA to use its
enforcement powers.
APTA agreed with FRA that the language in an early version of the
proposal that was shared with the Working Group, which placed the
entire responsibility for the joint operation on the host freight
railroad, did not properly account for the responsibilities of both
parties. Since the NPRM reversed that scenario, APTA recommends that
FRA either delete or redraft Sec. 239.103(a)(3) to assign a measure of
responsibility to the host freight railroad. APTA argued that although
the NPRM required coordination, it does not provide a mechanism to
ensure cooperation by the freight railroad to coordinate emergency
efforts. If a freight railroad refuses or is unwilling to cooperate, a
commuter railroad lacks recourse. The commuter railroad could still be
fined for not coordinating with an unwilling freight railroad.
Consistent with APTA's observations, the LIRR commented that the final
rule needs terminology that recognizes that there is some joint
responsibility between all of the involved parties to a passenger
operation.
[[Page 24642]]
In its comments, the AAR acknowledged that while freight railroads
neither provide nor operate rail passenger service themselves, and are
not subject to most of the rule's requirements, freight railroads still
have certain emergency preparedness responsibilities. The AAR
recommended that FRA not revise the proposed language of
Sec. 239.101(a)(3), since it is in a freight railroad's interest to
coordinate with a passenger railroad to ensure emergency preparedness.
The AAR rejected APTA's concern about freight railroads refusing to
cooperate with the passenger railroads, arguing that APTA, or any other
interested party, presented no data or evidence to indicate that
passenger railroads have experienced problems from freight railroads
refusing to coordinate emergency responses. The AAR believed that FRA
would never fine a passenger railroad that demonstrates that it
attempted to comply with the regulation, but was unable to coordinate
with a freight railroad due to the freight railroad's refusal to
cooperate.
Based upon careful consideration of the comments, FRA is requiring
communication and coordination between all railroads affected by this
rule involved in each passenger operation, by mandating the submission
by the passenger railroad of one emergency preparedness plan that is
jointly prepared. Accordingly, if a State or public authority provides
commuter rail passenger train service by contracting with another
railroad to actually operate the service, and the passenger operation
is in turn hosted by a freight railroad, all three entities are
required to work together and file one emergency preparedness plan for
the operation setting forth each railroad's procedures and
responsibilities under the plan. If for example, a passenger operation
will fulfill none of the requirements of emergency planning, with the
host railroad having all of the responsibilities under the plan, this
fact must be clearly stated in the plan.
In the event of noncompliance by any or all of the entities
involved in the implementation of the plan, FRA reserves the right to
initiate appropriate enforcement action against all parties
participating in the plan. Of course, FRA will intervene to assist any
railroad that is having difficulty crafting a joint emergency
preparedness plan, and help mediate a solution. While FRA might not
initially seek an injunction to prevent a passenger train operation
from operating due to a host railroad's failure to cooperate, FRA could
initiate civil penalty action against the host railroad for its failure
to comply with the requirements of part 239.
The portion of the emergency preparedness plan addressing the host
railroad's responsibilities shall, at a minimum, include procedures for
notifying emergency responder organizations and discuss the railroad's
general capabilities for rendering assistance to an involved passenger
railroad during an emergency situation. The host railroad must also
address any physical and operating characteristics of its rail lines
that may affect the safety of the rail passenger operations, e.g.,
evacuation of passengers from a train stalled in a tunnel or on an
elevated structure.
Section-by-Section Analysis
As a number of the issues and provisions have been discussed and
addressed in detail in the preceding discussions, this section-by-
section analysis will explain the provisions of the final rule and
changes from the NPRM by briefly highlighting the rationales or
referring to the prior discussion. The discussions and conclusions
contained above should be considered in conjunction with the analysis
contained below. Each comment received has been fully considered by FRA
in preparing this final rule.
FRA amends part 223 of title 49, Code of Federal Regulations by
adding six new definitions and requiring railroads operating passenger
train service to clearly mark emergency windows. FRA also adds part 239
to title 49, Code of Federal Regulations specifically devoted to
prescribing minimum Federal safety standards concerning the
preparation, adoption, and implementation of emergency preparedness
plans by railroads connected with the operation of passenger trains.
1. Definitions: Section 223.5
Section 223.5 is reorganized and definitions of four important
terms employed in the passenger train emergency preparedness
regulations are added. The four new defined terms are ``emergency
responder,'' ``passenger train service,'' ``person,'' and ``railroad.''
For ease of reference, FRA defines the term ``railroad'' so as to
include the statutory (49 U.S.C. 20102) definitions of both
``railroad'' and ``railroad carrier'' and to clarify that those who
provide railroad transportation directly or through an operating
contractor are railroad carriers. Thus, the term ``railroad'' is
clearly intended to include commuter authorities as well as rapid
transit authorities whose operations are in an urban area and are
connected with the general railroad system of transportation. These
terms are intended to have the same meaning as in part 239 of this
chapter. However, FRA does not intend for its definition of
``railroad'' in either this part or part 239 of this chapter to have
any bearing on how the term is used for purposes of the regulatory
activities of the Surface Transportation Board.
2. Requirements for New or Rebuilt Equipment: Section 223.9
FRA received no comments regarding proposed paragraph (d), and the
paragraph is adopted as proposed. In accordance with the requirements
of 49 CFR 223.9(c) and 223.15(c), all passenger cars must be equipped
with at least four emergency windows, which must be designed to permit
rapid and easy removal during a crisis situation. Section 223.9(d)
requires that all windows intended by a railroad to be used during an
emergency situation be properly marked inside and outside, and that the
railroad post clear and understandable instructions for their use at or
near the designated locations.
Section 223.9(d)(1) requires that the emergency windows be
conspicuously and legibly marked on the inside of the car with
luminescent material. FRA realizes that during an emergency a main
power supply to the passenger cars may become inoperative and that
crewmembers with portable flashlights may be unavailable. Since lack of
clear identification or lighting could make it difficult for passengers
to find the emergency exits, the rule requires luminescent material on
all emergency windows to assist and speed passenger egress from the
train during an emergency. The marking of the emergency windows must be
conspicuous enough so that a reasonable person, even while enduring the
stress and potential panic of an emergency evacuation, can determine
where the closest and most accessible emergency route out of the car is
located. In addition, while this subsection does not prescribe a
particular brand, type, or color of luminescent paint or material that
a railroad must use to identify a window exit, FRA intends each
railroad to select a material durable enough to withstand the daily
effects of passenger traffic, such as the contact that occurs as
passengers enter and leave the cars.
METROLINK, in commenting on the proposed rule, noted that the last
line of Sec. 223.9(d) requires ``each railroad [to] post clear and
legible operating instructions at or near such exits,'' stated that it
assumes that the referenced instructions relate to the
[[Page 24643]]
doors rather than the windows. Contrary to METROLINK's assumption, the
instructions required by this paragraph are for operating the emergency
window exits. The requirements for posting operating instructions at or
near emergency door exits are contained in Sec. 239.107 of this
chapter.
Section 223.9(d)(2) requires that the emergency windows intended
for emergency access by emergency responders for extrication of
passengers be marked with retroreflective material. Since FRA
recognizes that not every window will be equipped for emergency access,
railroads are required to choose a retroreflective, unique and easily
recognizable symbol that will readily attract the attention of
emergency responders. The final rule does not require a specific size
or shape for the symbol, but FRA intends the railroad's emergency
preparedness plan developed pursuant to Sec. 239.101 of this chapter to
contain a provision explaining emergency responder access (along with
passenger car egress), consistent with the evacuation strategy
formulated jointly by the passenger train operator and the emergency
responder organizations, in accordance with the emergency responder
liaison provision set forth in Sec. 239.101(a)(5) of this chapter. Of
course, while the final rule does not require emergency responders to
participate in evacuation planning or strategy with the railroads, the
railroads must offer liaison training and assistance.
The final rule allows a marking that could consist of a symbol or
words (such as ``RESCUE ACCESS''). Although FRA stated in the proposed
rule that it reserved the right to be more prescriptive in the final
rule based upon a uniform pattern, and noted that FRA was working to
identify an appropriate marking that might be capable of universal
recognition, FRA has decided to retain the flexibility set forth in the
proposal. However, if during the fourth phase of FRA's comprehensive
effort to address passenger safety issues FRA determines that a uniform
pattern or symbol is required, FRA may modify the marking requirements
of Sec. 223.9(d)(2) during a future rulemaking action.
The final rule also requires railroads to post clear and
understandable instructions at designated locations describing how to
operate the emergency windows. This paragraph does not mandate that
railroads use specific words or phrases to guide the passengers and
emergency responders. Instead, each railroad should evaluate the
operational characteristics of its emergency windows, and select key
words or diagrams that adequately inform the individuals who must use
them. While railroads are encouraged to post comprehensive
instructions, FRA also realizes that during an emergency situation
every additional moment devoted to reading and understanding access or
egress information places lives at risk. In addition, FRA expects
passengers and emergency responders to be already familiar with the
location and operation of the railroad's emergency windows as a result
of emergency responder liaison activities and passenger awareness
programs conducted in accordance with Secs. 239.101(a)(5) and (a)(7).
3. Appendix B to 49 CFR Part 223
FRA is revising Appendix B to 49 C.F.R. part 223--Schedule of Civil
Penalties, to include penalties for violations of the provisions of
Sec. 223.9(d) to be included in the final rule. Commenters were invited
in the NPRM to submit suggestions to FRA describing the types of
actions or omissions that would subject a person to the assessment of a
civil penalty, and were also invited to recommend what penalties may be
appropriate, based upon the relative seriousness of each type of
violation. FRA did not receive any public comments nor did the Working
Group present any recommendations to the agency on this topic.
Accordingly, FRA has amended the penalty schedule based on its own
analysis of the inherent seriousness of violating the marking
requirements for emergency windows of part 223. The penalty schedule
also changes the maximum penalty that FRA is authorized to assess for
violations of the provisions of this part. The maximum penalty is
raised from $20,000 to $22,000 for any violation where circumstances
warrant. This change is intended to comply with the provisions of the
Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 101-
410, 104 Stat. 890, 28 U.S.C. 2461 note, as amended by the Debt
Collection Improvement Act of 1996, Pub. L. 104-134, 110 Stat. 1321-373
(April 26, 1996), which requires Federal agencies to adjust civil
monetary penalties to counter inflation's effect of diminishing the
impact of these penalties. The inflation adjustment is to be calculated
by increasing the maximum civil monetary penalty by the percentage that
the Consumer Price Index for the month of June 1995 exceeds the
Consumer Price Index for the month of June of the last calendar year in
which the amount of the penalty was last set or adjusted. The initial
adjustment, however, may not exceed 10 percent. The resulting $22,000
maximum penalty was determined by applying the criteria set forth in
sections 4 and 5 of the statute to the maximum penalty otherwise
provided for in the Federal railroad safety laws.
4. Purpose and Scope: Section 239.1
FRA did not receive any comments, and this section is adopted as
proposed. Section 239.1(a) states that the purpose of this part is to
reduce the magnitude of casualties in railroad operations by ensuring
that railroads involved in passenger train operations can effectively
and efficiently manage emergencies. Paragraph (b) states that these
regulations provide minimum standards for the subjects addressed, and
the affected railroads may adopt more stringent requirements, so long
as they are not inconsistent with this part. FRA does not in any way
intend that the subject matter of 49 CFR part 239, Passenger Train
Emergency Preparedness, be read to impose burdens or requirements on
emergency responders who either participate with railroads in emergency
simulations involving the operation of passenger train service or
respond to actual emergency situations, or on any other person who may
be involved with the aftermath of a passenger train emergency not
specified in proposed Sec. 239.3 concerning applicability. Accordingly,
FRA does not intend to restrict a State from adopting a law, rule,
regulation, order, or standard affecting emergency responders unless it
is inconsistent with 49 U.S.C. 20106.
5. Application: Section 239.3
As a general matter, FRA will apply this rule to all railroads that
operate passenger train service on the general railroad system of
transportation, provide commuter or other short-haul passenger train
service in a metropolitan or suburban area, or host the operations of
such passenger train service. A public authority that indirectly
provides passenger train service by contracting out the actual
operation to another railroad or independent contractor will be
regulated by FRA as a railroad under the provisions of the final rule.
Although the public authority will ultimately be responsible for the
development and implementation of an emergency preparedness plan (along
with all related recordkeeping requirements), the railroad or other
independent contractor that operates the authority's passenger train
service will be expected to fulfill all of the responsibilities under
this part with respect to emergency preparedness planning, including
implementation.
[[Page 24644]]
FRA has revised paragraph (a)(3) to state that all railroads
hosting the operation of passenger train service are covered by the
final rule. While FRA recognizes that the majority of host
relationships are entered into by freight railroads, there are a number
of instances where passenger operations (e.g., Amtrak) host other
passenger operations over their trackage. Accordingly, the final rule
has been revised to reflect this fact.
Paragraph (b)(1) of both the NPRM and final rule indicate that the
rule does not apply to rapid transit operations in an urban area that
are not connected with the general railroad system of transportation,
and this paragraph is intended merely to clarify the circumstances
under which rapid transit operations are subject to FRA jurisdiction
under this part.
In a final rule published in the Federal Register on December 27,
1995, the Federal Transit Administration (FTA) announced that it would
begin requiring states to oversee the safety of rail fixed guideways
systems not regulated by FRA. 60 FR 67034; see 49 U.S.C. 5530, 49 CFR
part 659. Under its statutory scheme, FTA does not directly enforce
safety statutes or regulations against rail fixed guideway systems, nor
does FTA have safety inspectors who enter upon the regulated properties
to perform inspections. In accordance with FTA's statutory authority
and the above rulemaking, FTA does not interpret what constitutes
commuter rail or rapid transit, but instead regulates whatever rail
fixed guideway systems that FRA does not.
As set forth in Appendix A to part 209 of this chapter, with the
exception of self-contained urban rapid transit systems, FRA's
statutory jurisdiction extends to all entities that can be construed as
railroads by virtue of their providing non-highway ground
transportation over rails or electromagnetic guideways, and will extend
to future railroads using other technologies not yet in use. For policy
reasons, FRA does not exercise jurisdiction under all of its
regulations to the full extent permitted by statute. Based on its
knowledge of where the safety problems were occurring at the time of
its regulatory action and its assessment of the practical limitations
on its role, FRA has, in each regulatory context, decided that the best
option was to regulate something less than the total universe of
railroads.
In light of the above, FRA may elect to limit the exercise of its
jurisdiction over these entities for policy reasons. FRA currently
withholds the exercise of its jurisdiction over rapid transit
operations where conventional and light rail operations are separated
in time (night/day hour specifications). In making this policy
determination, FRA anticipates working with the FTA on a joint policy
statement that will be published in the Federal Register and discuss
the types of rapid transit systems covered by this rule that will be
subject to FRA's jurisdiction and which ones will instead be subject to
state safety oversight under FTA's jurisdiction. As part of this joint
policy analysis by FRA and FTA, our two agencies will seek to
coordinate more explicitly the requirements of FRA regulations and
State safety oversight programs.
The final rule is structured to apply to intercity and commuter
service (as well as rapid transit operations that operate over the
general railroad system of transportation), not tourist operations. At
a later time, FRA may propose application of the rule, or some portion
thereof, to tourist, scenic, historic, and excursion railroads. FRA's
regulatory authority permits it to tailor the applicability sections of
its various regulations so as to expand or contract the populations of
railroads covered by a particular set of regulations. FRA has had
jurisdiction over all railroads since the Federal Railroad Safety Act
of 1970 was enacted.
In considering the issue of requiring emergency preparedness
planning by tourist and historic railroad operators in the context of
this rulemaking, FRA has not yet had the opportunity to fully consult
with those railroads and their associations to determine appropriate
applicability in light of financial, operational, or other factors that
may be unique to such railroad operations. After appropriate
consultation with the excursion railroad associations takes place,
emergency preparedness requirements for these operations may be
prescribed by FRA that are different from those affecting other types
of passenger train operations. These requirements may be more or less
onerous, or simply different in detail, depending in part on the
information gathered during FRA's consultation process.
The Federal Railroad Safety Authorization Act of 1994 instructed
FRA to examine the unique circumstances of tourist railroads when
establishing safety regulations. The Act, which amended 49 U.S.C.
20103, stated that:
In prescribing regulations that pertain to railroad safety that
affect tourist, historic, scenic, or excursion railroad carriers,
the Secretary of Transportation shall take into consideration any
financial, operational, or other factors that may be unique to such
railroad carriers. The Secretary shall submit a report to Congress
not later than September 30, 1995, on actions taken under this
subsection.
Pub. L. No. 103-440, Sec. 217, 108 Stat. 4619, 4624 (November 2, 1994).
In addition, section 215 of that Act specifically permits FRA to exempt
equipment used by tourist, historic, scenic, and excursion railroads to
transport passengers from the initial regulations that were scheduled
to be prescribed by November 2, 1997. 49 U.S.C. 20133(b)(1). In its
report to Congress entitled ``Regulatory Actions Affecting Tourist
Railroads,'' FRA responded to the direction in the statutory provision
and also provided additional information related to tourist railroad
safety for consideration of the Congress. FRA will address the
emergency preparedness concerns for these unique types of operations at
a later date in a separate rulemaking proceeding. To facilitate
resolution of this issue, and a significant number of related issues,
the Railroad Safety Advisory Committee (RSAC) has established a Tourist
and Historic Railroads Working Group. As a matter of cost efficiency,
the Working Group may elect to cover emergency preparedness planning
for tourist railroads as part of a package of tourist-specific safety
proposals during a multi-day consultation on several rulemaking
dockets. FRA would then issue a Notice of Proposed Rulemaking
addressing issues in several dockets that pertain to these smaller
passenger operations.
In Sec. 239.3(b)(2), FRA states that the requirements of this part
will not apply to the operation of private passenger train cars,
including business or office cars and circus trains. While FRA believes
that a private passenger car operation should be held to the same basic
level of emergency preparedness planning as other passenger train
operations, FRA is taking into account the financial burden that would
be imposed by requiring private passenger car owners and operators to
conform to the requirements of this part. Private passenger cars are
often hauled by host railroads such as Amtrak and commuter railroads,
and these hosts often impose their own safety requirements on the
operation of the private passenger cars. Pursuant to this part, the
host railroads will already be required to have emergency preparedness
plans in place to protect the safety of their own passengers; the
private car passengers will presumably benefit from these plans even
without the rule directly covering private car owners or operators. In
the case of non-revenue
[[Page 24645]]
passengers, including employees and guests of railroads that are
transported in business and office cars, as well as passengers
traveling on circus trains, the railroads will provide for their safety
in accordance with existing safety operating procedures and protocols
relating to normal freight train operations.
6. Preemptive Effect: Section 239.5
FRA did not receive any comments, and this section is adopted as
proposed. Section 239.5 informs the public as to FRA's views regarding
the preemptive effect of the final rule. While the presence or absence
of such a section does not in itself affect the preemptive effect of
this part, it informs the public concerning the statutory provision
which governs the preemptive effect of these rules. Section 20106 of
title 49 of the United States Code provides that all regulations
prescribed by the Secretary relating to railroad safety preempt any
State law, regulation, or order covering the same subject matter,
except a provision necessary to eliminate or reduce an essentially
local safety hazard that is not incompatible with a Federal law,
regulation, or order and that does not unreasonably burden interstate
commerce. With the exception of a provision directed at an essentially
local safety hazard, 49 U.S.C. 20106 preempts any State regulatory
agency rule covering the same subject matter as these regulations
proposed today.
Of course, the subject matter of these regulations covers only the
preparation, adoption, and implementation of emergency preparedness
plans for passenger train operations. Although the subject matter
includes a requirement in Sec. 239.101(a)(5) that railroads establish
liaison relationships with their on-line emergency responders by
developing and making available a training program emphasizing access
to railroad equipment, location of railroad facilities, and
communications interface, FRA is not requiring emergency responders to
participate in these liaison activities. Accordingly, since FRA is only
regulating the content of the training opportunities that railroads
must offer to the responder community, States are in no way preempted
from regulating any other training requirements or other activities of
the non-railroad emergency responders who arrive at the scene of an
emergency after a railroad's emergency preparedness plan has been
activated consistent with part 239.
Further, FRA acknowledges that there may be special local interests
concerning types and/or quantities of on-board emergency equipment that
might need accommodating, particularly in cases of public authorities
operating passenger train service within only one territory. Although
national uniformity to the extent practicable of laws, regulations, and
orders related to railroad safety is important, FRA does not want to
decrease the level of emergency preparedness already in place on a
passenger railroad.
7. Definitions: Section 239.7
This section contains an extensive set of definitions to introduce
the regulations. FRA intends these definitions to clarify the meaning
of important terms as they are used in the text of the final rule. The
definitions are carefully worded in an attempt to minimize the
potential for misinterpretation of the final rule. Several of the
definitions introduce new concepts which require further discussion.
For a detailed discussion of FRA's decision to revise the
definition of ``crewmember,'' see the preceding ``Discussion of
Comments and Conclusions'' portion of this document under heading of
item number 1. The definition of ``crewmember'' is primarily intended
to cover persons who either perform on-board functions connected with
the movement of a train and are subject to the Federal hours of service
laws during a tour of duty (e.g., a locomotive engineer, conductor) or
provide on-board service in a sleeping car or coach assigned to
intercity service, other than food, beverage, or security service
(e.g., an Amtrak sleeping car attendant), a deadheading employee can be
covered by the definition as well. Accordingly, such an employee could
count as a ``qualified'' employee under Sec. 239.101(a)(2)(vi) of this
part for purposes of meeting a passenger railroad's minimum on-board
staffing requirements for its emergency preparedness plan when a
freight train crew has relieved that passenger railroad's expired crew.
During a passenger train emergency situation, off-duty employees are
expected to assume their appropriate roles under the railroad's
emergency preparedness plan and assist the passengers.
In commenting on the proposal, METROLINK indicated that on some
trains it has conductors who perform the function of fare enforcement,
and recommended that FRA exclude these individuals from the definition
of ``crewmember.'' METROLINK also requested that FRA exclude contract
food workers from the definition of ``crewmember.'' In accordance with
FRA's revised definition of ``crewmember,'' these categories of
employees are now excluded from coverage.
The term ``control center'' envisions not only the traditional
railroad concept of a train dispatcher's office, but also railroad
offices that are identified as ``control centers'' but only monitor
railroad operations, and modern system operations centers such as those
of CSX Transportation in Jacksonville, Florida and the Burlington
Northern Santa Fe Corporation in Ft. Worth, Texas. The term does not
include a location on a railroad with responsibility for the security
of railroad property, personnel, or passengers.
It is very likely that control center personnel are located at
facilities which are remote from the right-of-way. These facilities
should consist of the necessary command, control, and communications
equipment to maintain normal train operations, to control electric
traction, and to maintain communications throughout the passenger train
system. In addition to these functions, the control center should help
coordinate responses to emergencies by using equipment such as radio
communications systems, direct ``hotline'' telephones, wayside power
removal controls, and ventilation controls under the direction of
emergency responders, according to the protocols and procedures of the
emergency preparedness plan.
Typical emergency scenarios encompassed by the term ``emergency''
or ``emergency situation'' involving a significant threat to the safety
or health of one or more persons requiring immediate action may include
one or more of the following: illness or injury; a stalled train in a
tunnel or on a bridge; collision with a person, including suicides;
collision or derailment; fire; collision or derailment with a fire;
collision or derailment with water immersion; severe weather
conditions; natural disasters; and security situations (e.g., bombings,
bomb threats, hijacking, civil disorders, and other acts of terrorism).
The definition of ``emergency'' or ``emergency situation'' has been
changed in the final rule to include examples of some of the more
common scenarios that would require a railroad to activate its
emergency preparedness plan. However, regardless of whether a
particular emergency illustration is specifically listed in the
definition, FRA expects a railroad to activate its emergency
preparedness plan anytime an unexpected event related to the operation
of its passenger train service involves a significant threat to the
safety or health of one or more persons requiring immediate action.
[[Page 24646]]
The NPRM defined ``emergency responder'' as ``a qualified member of
a police or fire department, or other organization involved with public
safety, who responds to a passenger train emergency.'' 62 FR at 8356.
In its comments, APTA requested that FRA delete the word ``qualified''
because it implies that someone on the railroad will determine an
emergency responder's qualifications. APTA stated that at an accident
scene, a commuter railroad lacks the practical capability to determine
an emergency responder's qualifications, and on-board personnel do not
have the time to determine qualifications. The LIRR noted that
emergency responder qualifications are dictated by police and fire
departments, not the railroads.
In including the word ``qualified'' in the proposed definition of
``emergency responder,'' FRA never intended to place a burden on the
railroads to determine the professional qualifications of emergency
responders. It was assumed that the railroads would cooperate fully
with any individual sent by an organization involved with public safety
in response to a passenger train emergency, based solely upon that
organization's own determination of its employee's qualifications.
However, in response to the concerns of the two commenters, FRA has
deleted the word ``qualified'' from the definition of ``emergency
responder,'' and also revised the definition to clarify that a member
of an emergency responder organization may coordinate as well as
directly provide emergency services.
The AAR commented that the definition of ``joint operations'' is
open to various interpretations, and suggested that FRA revise the
definition in the final rule to state that ``joint operations means
rail operations conducted by more than one railroad, except as
necessary for the purpose of interchange.'' FRA agrees with this
recommendation, and never intended for the final rule to apply to joint
operations in instances when the sole purpose for using the trackage is
interchange. Accordingly, the definition of ``joint operations'' in the
final rule has been revised to exclude interchange situations.
The term ``qualified,'' as used in the rule, means employees who
are trained under an applicable emergency preparedness plan's
components and implies no provision or requirement for Federal
certification of persons who perform those functions.
The definition of ``railroad'' is based upon 49 U.S.C. 20102(1) and
(2), and encompasses any person providing railroad transportation
directly or indirectly, including a commuter rail authority that
provides railroad transportation by contracting out the operation of
the railroad to another person, as well as any form of nonhighway
ground transportation that runs on rails or electromagnetic guideways,
but excludes urban rapid transit not connected to the general system.
The terms explained here are not exhaustive of the definitions
included in Sec. 239.7 of this part. This introduction merely provides
a sampling of the most important concepts of the final rule. Many other
terms are defined and explained in the section-by-section analysis when
analyzing the actual final rule text to which they apply.
8. Responsibility for Compliance: Section 239.9
FRA did not receive any comments, and this section is adopted as
proposed. Section 239.9 clarifies FRA's position that the requirements
contained in the final rules are applicable to any ``person,''
including a contractor, that performs any function required by the
final rule. Although all sections of the final rule address the duties
of a railroad, FRA intends that any person who performs any action
required by this part on behalf of a railroad is required to perform
that action in the same manner as required of a railroad or be subject
to FRA enforcement action. For example, if an independent contractor is
hired by a railroad to maintain its records of inspection, maintenance,
and repair of emergency window and door exits, pursuant to
Sec. 239.107, the contractor is required to perform those duties in the
same manner as required by a railroad.
9. Penalties: Section 239.11
Section 239.11 identifies the penalties that FRA may impose upon
any person, including a railroad or an independent contractor providing
goods or services to a railroad, that violates any requirement of this
part. These penalties are authorized by 49 U.S.C. 21301, 21304, and
21311, formerly contained in Sec. 209 of the Federal Railroad Safety
Act of 1970 (Safety Act) (49 U.S.C. 20101-20117, 20131, 20133-20141,
20143, 21301, 21302, 21304, 21311, 24902, and 24905, and Secs. 4(b)(1),
(i), and (t) of Pub. L. 103-272, formerly codified at 45 U.S.C. 421,
431 et seq.). The penalty provision parallels penalty provisions
included in numerous other regulations issued by FRA under authority of
the provisions of law formerly contained in the Safety Act.
Essentially, any person who violates any requirement of this part or
causes the violation of any such requirement will be subject to a civil
penalty of at least $500 and not more than $11,000 per violation. Civil
penalties may be assessed against individuals only for willful
violations, and where a grossly negligent violation or a pattern of
repeated violations creates an imminent hazard of death or injury to
persons, or causes death or injury, a penalty not to exceed $22,000 per
violation may be assessed. In addition, each day a violation continues
will constitute a separate offense. Finally, a person may be subject to
criminal penalties for knowingly and willfully falsifying reports
required by these regulations. FRA believes that the inclusion of
penalty provisions for failure to comply with the regulations is
important in ensuring that compliance is achieved not only in terms of
developing and implementing emergency preparedness plans, but also to
better determine if railroads are planning ahead to minimize the
consequences of emergencies that could occur.
The penalty schedule also implements the maximum penalty that FRA
is authorized to assess for violations of the provisions of this part.
The maximum penalty reflects an increase from $10,000 to $11,000 for
violations and an increase from $20,000 to $22,000 for willful
violations. This change is intended to comply with the provisions of
the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L.
101-410, 104 Stat. 890, 28 U.S.C. 2461 note, as amended by
Sec. 31001(s)(1) of the Debt Collection Improvement Act of 1996, Pub.
L. 104-134, 110 Stat. 1321-373 (April 26, 1996), which requires Federal
agencies to adjust civil monetary penalties to counter inflation's
effect of diminishing the impact of these penalties. The inflation
adjustment is to be calculated by increasing the maximum civil monetary
penalty by the percentage that the Consumer Price Index for the month
of June 1995 exceeds the Consumer Price Index for the month of June of
the last calendar year in which the amount of the penalty was last set
or adjusted. The initial adjustment, however, may not exceed 10
percent. The resulting $11,000 and $22,000 maximum penalties were
determined by applying the criteria set forth in sections 4 and 5 of
the statute to the maximum penalties otherwise provided for in the
Federal railroad safety laws.
Although the penalty provision broadly provides that any person who
violates or causes the violation of any requirement of 49 CFR part 239
is subject to a civil penalty, members of the Working Group were
concerned
[[Page 24647]]
about the possibilities of theft of its on-board emergency equipment
and/or vandalism of its passenger cars, and wanted FRA's permission to
post warnings to members of the general public that committing such
acts could subject them to Federal penalties. FRA encourages railroads
to notify their passengers (and any potential vandal or trespasser)
that in addition to any Federal or state criminal statutes that exist
to prohibit vandalism, theft, trespassing, or tampering involving
railroad equipment, property, or operations, FRA may impose a civil
penalty upon any individual who willfully causes a railroad to be in
violation of any requirement of this part. Take for example, a railroad
that supplies each of its passenger cars with one fire extinguisher and
one pry bar, and provides each of its on-board crewmembers with one
flashlight. By equipping its train with all of these items, the
railroad would be in full compliance with the minimum requirements of
paragraph 239.101(a)(6)(i) of this part. Accordingly, if unbeknownst to
the railroad, a vandal pilfers a pry bar from one of the passenger cars
while the train is in service FRA can impose a civil penalty upon that
individual for causing the railroad to be in violation of 49 CFR part
239. FRA recommends that in addition to posting written warnings on and
in passenger cars, railroads use on-board announcements to remind their
passengers of the serious consequences that can result from placing the
railroad in violation of the important safety requirements of this
part.
The final rule includes a schedule of civil penalties in an
Appendix A to 49 CFR part 239, to be used in connection with this part.
Commenters were invited to submit suggestions to FRA describing the
types of actions or omissions under each regulatory section that would
subject a person to the assessment of a civil penalty. Commenters were
also invited to recommend what penalties may be appropriate, based upon
the relative seriousness of each type of violation. FRA did not receive
any public comments nor did the Working Group present any
recommendations to the agency on this topic. Accordingly, FRA has
drafted the penalty schedule based on its own analysis of the inherent
seriousness of violating the requirements of part 239 of this chapter.
10. Waivers: Section 239.13
Section 239.13 identifies FRA's ability to grant waivers of
compliance with the requirements of this rule. Requests for such
waivers can be filed by any interested party. In reviewing the request,
FRA would conduct a factual investigation to determine whether there
was a basis to deviate from the general criteria without compromising
or risking a diminution of rail safety.
11. Information Collection: Section 239.15
FRA is adding this section to note that it is inserting the OMB
approval number for the information collection requirements of this
rule for part 239, since OMB has completed its review and granted
approval. This section also identifies the sections of part 239 that
contain information collection requirements.
12. Emergency preparedness plan: Section 239.101
In drafting the final rule, FRA recognized that the specific
operations of each individual passenger train system must be considered
in the development and implementation of effective emergency
preparedness programs. Factors which should be considered include
system sizes and route locations, types of passenger cars and motive
power units, types of right-of-way structures and wayside facilities,
and numbers of passengers carried, as well as internal railroad
organizations and outside emergency response resources. Under the final
rule, each railroad subject to the regulation is required to establish
an emergency preparedness plan designed to safely manage emergencies
and minimize subsequent trauma and injury to passengers and on-board
railroad personnel. The plan must reflect the railroad's policies,
plans, and readiness procedures for addressing emergencies. The
railroad is expected to employ its best efforts, under the
circumstances of the emergency situation, to execute the provisions of
its plan.
In their development of emergency preparedness plans, FRA
encourages railroads to integrate, as practicable, the recommended
guidelines contained in the Volpe Report. The report provides a
comprehensive degree of specificity. While the final rule does not
require the special level of detail reflected in the Volpe Report, FRA
advocates that railroads voluntarily incorporate such elements and
items as appropriate into the development of their own emergency
preparedness plans, and reject recommendations only after judicious
consideration.
While FRA stresses that each railroad should retain latitude in
developing an emergency preparedness plan appropriate for its
operations, the plan must provide a comprehensive overview, make clear
and positive statements to railroad employees, and contain
implementation details concerning the roles, responsibilities, and
expectations for employee participation. The plan does not have to be
one single document with each section applying to every railroad that
is a party to the plan or to every affected railroad employee and
location; instead, the plan may consist of multiple documents, with a
separate section of the plan detailing the specific responsibilities
for each job category or function or railroad or all. In instances
where a railroad hosts the operations of a passenger railroad, both
railroads have to address issues of emergency preparedness. The rule
requires the host railroad to jointly develop the applicable portions
of an emergency preparedness plan with the operating passenger
railroad, uniquely dealing with the passenger operations not otherwise
addressed. A detailed discussion of the requirement to jointly adopt a
single emergency preparedness plan for the passenger service is
included in the preceding ``Discussion of Comments and Conclusions''
portion of this document under item number 5.
The majority of passenger train operational difficulties are
handled effectively and do not become emergencies. Since in many
instances a train crew can immediately take action to resolve a problem
and potential emergency without evacuating the train, existing
emergency preparedness policies deemphasize immediate evacuation from
trains located between stations unless passengers and crews are in
immediate danger. Accordingly, in most situations, after notifying the
control center that a problem exists and receiving permission, the
train crew will move the train to the nearest station or safe location
(e.g., outside a tunnel) before taking further action. If the train
crew is unable to resolve the situation, railroad personnel or outside
emergency responders may be sent to the emergency scene to provide
mechanical aid, alternate transportation, or medical assistance.
The effectiveness of a railroad's overall response under its
emergency preparedness plan will be greatly influenced by the type of
emergency with which the train crew is presented (e.g., injury or
illness, stalled train, suicide or accidental collision with a person,
derailment or collision, smoke or fire, severe weather conditions or
natural disasters, and vandalism or sabotage). The response will also
be affected by the characteristics and type of train involved and the
functional status of electrical and mechanical systems, including
lighting, ventilation,
[[Page 24648]]
and public address systems. In addition, the operational environment
(e.g., a train is located in a tunnel, on an elevated structure, or in
electrified territory), and the type of right-of-way structure or
wayside facility must be addressed, as appropriate, in each railroad's
emergency preparedness plan.
The emergency preparedness plan must establish a chain of command
which assigns functions and responsibilities to appropriate passenger
railroad operating personnel, while recognizing the authority and
responsibilities of emergency responders. Coordination is important to
the ability of all parties to respond appropriately to an emergency,
regardless of its size and location. Documentation, including
applicable portions of the emergency preparedness plan, protocols, and
procedures within rulebooks, manuals, and guidelines for control center
employees and on-board personnel, provides the basic framework for
coordination between all internal parties responding to an emergency.
This internal documentation must address at least the following issues:
Delineation of functions and responsibilities during
emergencies for passenger railroad operating personnel, including
control center personnel;
Telephone numbers of railroad personnel and emergency
responders who need to be notified;
Criteria for determining whether an emergency exists and
requires assistance from emergency responders;
Procedures for determining the specific type, location,
and severity of the emergency, and thus which response is appropriate;
Procedures for notifying emergency responders; and
Procedures and decision-making criteria for transferring
incident responsibility from the passenger railroad operator to
emergency responders.
Section 239.101 sets forth the general requirement that railroads
shall develop and comply with their own emergency preparedness plans
and written procedures to implement their own plans for addressing
issues of emergency preparedness, that meet Federal minimum standards.
Section 239.101(a) requires all railroads covered by part 239 to
develop and implement written procedures to fulfill each applicable
provision of this section. Depending on the nature of a railroad's
operations, as well as on whether its operations involve a host
railroad, different elements of this section may be fulfilled by more
than one entity. While FRA requires all elements of this section to be
addressed for each passenger train operation, the rule does not mandate
that every element be addressed separately by each affected entity who
is one of multiple parties to a single emergency preparedness plan.
Accordingly, if a passenger train service operator relies on a freight
railroad host to notify outside emergency responders after an emergency
occurs, FRA would permit the freight railroad to set out its
responsibility to address this element in its portion of the emergency
preparedness plan. Provided that both entities properly coordinate
their portions of the emergency preparedness plan (and include cross-
reference citations to each other's sections of the plan), the
passenger train service operator's portion of the plan could omit a
particular item and still be in compliance with the final rule.
The final rule does not require that the public authority and the
operating railroad or independent contractor each actively participate
in performing duties in accordance with the joint filing with FRA of
the emergency preparedness plan if the operating railroad or
independent contractor is the only party performing a function under
the regulation. However, each party's responsibility for compliance
with this part must be clearly spelled out in the emergency
preparedness plan that is filed with FRA for approval covering the
entire passenger train service operation. After approval of the plan,
FRA may hold the public authority or the other entity or both
responsible for compliance with this part.
Based upon review of the comments and consultations with the
Working Group, FRA is establishing the parameters for emergency
preparedness plans in general, but will defer to the expertise of each
individual railroad to adopt a suitable emergency preparedness plan for
its railroad, in accordance with these parameters. As previously noted,
the emergency preparedness plan may consist of multiple documents, with
a separate document detailing the responsibilities of each category of
employee under the railroad's plan. Each railroad is also encouraged to
review the suggestions provided in the Volpe Report before developing
its portion of the emergency preparedness plan in accordance with the
requirements set forth in this section. In developing the plan,
railroads are reminded that the goal of the final rule is to maximize
the safety of passengers, railroad personnel, emergency response
personnel, property, and the general public that come in contact with
the railroad by providing for immediate notification of outside law
enforcement officials and emergency responders. Railroads should not
instruct their on-board employees to substitute as professional
emergency responders and delay notification of appropriate railroad and
outside officials.
Communication
Section 239.101(a)(1) sets forth the requirement that the passenger
train crewmembers must communicate immediately and effectively with
each other, as well as with the control center and the passengers.
Typically, in an emergency situation the final rule anticipates that an
on-board train crewmember will immediately contact the control center
via a dependable on-board radio or an alternate means of communication
(e.g., wayside railroad telephone, public telephone, private residence
telephone, or cellular telephone) to advise appropriate railroad
officials of the nature of the emergency and the type of assistance
required. After this initial notification to the control center occurs,
the passengers shall be informed of the emergency and provided
directions. As appropriate, all passengers must be accounted for
(particularly in sleeping compartments) so as to expedite evacuation,
if necessary, and to avoid needless effort to search for ``missing''
persons, however, a passenger manifest is not required.
In its comments, METROLINK stated that the train crewmember should
notify the passengers after consultation with the control center and
the control center officer, unless the train must be evacuated
immediately. The LIRR requested in its comments that FRA revise
Sec. 239.101(a)(1) in the final rule to require an on-board crewmember
to remove all occupants of the train from imminent danger as a first
step after he or she quickly and accurately assesses the passenger
train emergency situation. The LIRR recommended that FRA adopt a
performance-based standard, so instead of the rule requiring each
railroad to provide specific levels of information to its passengers,
the rule should permit general levels of information. The measure of
success would be based upon whether the railroad successfully handled
the emergency by ensuring the timely evacuation of its passengers.
APTA commented that crewmembers on commuter railroads need to have
flexibility in what they tell passengers about an emergency situation,
and noted that the proposal was ambiguous about the level of detailed
information that must be provided. APTA also argued that since the
proposal appeared to require crewmembers to tell all
[[Page 24649]]
passengers about the emergency, it could worsen an emergency situation
by leading to inappropriate statements to passengers. APTA stressed
that commuter railroad crewmembers are professionals, and should be
empowered to use discretion in determining the appropriate information
to tell passengers during and after an emergency.
FRA recognizes that each emergency situation is unique, and may
require rapid decisionmaking and varied approaches by on-board
crewmembers on how best to ensure the safety of the passengers. In
response to APTA's concerns, proposed Sec. 239.101(a)(1)(i) has been
modified in the final rule by adding the words ``as appropriate'' in
order to provide discretion to the on-board crewmembers as to when and
how to inform the passengers about the nature of the emergency and the
types of countermeasures that are in progress. FRA also replaced the
words ``the train crewmember'' with the words ``an on-board
crewmember'' in order to clarify that the crewmember who first notifies
the control center does not necessarily have to be the same crewmember
who communicates with the passengers. This change reflects the fact
that generally it is the locomotive engineer who contacts the control
center and the train conductor who keeps the passengers apprised of
pertinent developments.
It is FRA's expectation that railroads will properly train their
employees to perform the requisite life-saving functions after an
emergency (e.g., relocation of passengers from a smoke-filled car to a
safer section of the train or evacuation of the passengers from a
derailed car), in conjunction with their responsibilities to assess the
nature of the emergency and notify the control center as soon as
practicable thereafter. Accordingly, while FRA may conclude in the
course of investigating a specific train incident or accident that a
particular employee's egregious mishandling of an emergency situation
warrants individual enforcement action or enforcement action against
the railroad, or both, the flexibility of the final rule is consistent
with FRA's reluctance to strictly impose a precise order or manner in
which on-board crewmembers must execute their individual
responsibilities under the railroad's emergency preparedness plan.
However, in the course of reviewing and approving emergency
preparedness plans under Sec. 239.201, FRA expects to see the railroads
incorporating specific recommended practices as guidance to their
employees concerning how they must respond to the various types of
emergency situations most likely to occur during passenger operations,
such as on-board fires, downed electrical power sources, or passenger
injuries from a derailment.
Although the final rule does not require a railroad to use a
specific means of communication, FRA expects the railroad to select a
method that is effective and capable of reaching pertinent railroad
control centers and on-board locations in order to comply with the
notification requirement of this subsection. FRA further expects that
railroads will voluntarily build redundancy into their emergency
preparedness plans by outfitting their crewmembers with an immediately
available backup means of communication, in the event that primary
communications systems are either damaged during the emergency or
otherwise rendered inoperative. For example, a cellular telephone could
be made available for use by on-board crewmembers to contact the
control center in the event the locomotive radio is inoperative. Also,
on-board crewmembers could still maintain proper communication with the
passengers, in the event that regular or emergency power was
unavailable to operate the train's public address system, by using
portable megaphones.
Although FRA had asked for comments on whether the final rule
should expand the notification language of Sec. 239.101(a)(1) to
mandate a specific primary means of communication, and whether the
final rule should also require each affected railroad to equip its
passenger trains with a secondary means of communication in the event
that the primary means is unavailable, no written comments were
received on this issue. While the language of the final rule on this
issue remains unchanged from the proposal, FRA expects the issue to be
fully resolved in the context of the forthcoming revision of the Radio
Standards and Procedures (49 CFR part 220). That rulemaking was tasked
to the RSAC on April 1, 1996, and the NPRM was published in the Federal
Register on June 26, 1997. 62 FR 34544. Among the proposals set forth
in proposed Sec. 220.9 of that NPRM, is a requirement that ``each
occupied controlling locomotive in a train shall have a working radio,
and each train shall also have communications redundancy.'' 62 FR at
34549, 34550, 34556. Persons wishing to receive more information
regarding the NPRM on Railroad Communications should contact Mr. Gene
Cox or Mr. Dennis Yachechak, Operating Practices Specialists, Office of
Safety, FRA, 400 Seventh Street, S.W., Washington, D.C. 20590
(telephone numbers: 202-632-3504 (Cox); 202-632-3370 (Yachechak)), or
Ms. Patricia V. Sun, Trial Attorney, Office of Chief Counsel, FRA, 400
Seventh Street, S.W., Washington, D.C. 20590 (telephone number: 202-
632-3183).
While the final rule does not require that both ends of a train
contain communication devices for use by a crewmember other than the
engineer to directly contact the control center, FRA received comments
from the UTU at the August 28 and September 2, 1997 Working Group
meetings about the need for enhanced means of communications on trains,
especially trains operating in intercity service. FRA is aware of
devices, such as tone generators, that can enhance the communication
capabilities of the radios already carried by each conductor and used
to communicate with the engineer. If railroads voluntarily equip their
trains with these devices in order to go beyond the minimum
requirements of the final rule, then conductors may be able to directly
communicate with the control center in the event that the engineer's
radio communications equipment malfunctions or is damaged, or the
engineer is incapacitated during the emergency situation. However, FRA
recognizes that while portable radios can be placed on trains in a
similar manner to equipping locomotives with mobile radios, portable
radios may not be able to transmit to the control center due to
distance, lower wattage, and smaller antennas. In the case of commuter
railroads operating in push/pull service there will already be two
mobile radios onboard, one at each end of the train.
It is FRA's understanding that many railroads publish an emergency
toll-free telephone number in the employee timetable which connects
with the control center office. Amtrak , while operating its intercity
trains on a host railroad, will necessarily have access to those
telephone numbers while on the host's property. Amtrak also has a
nationwide toll-free telephone number which connects the caller
(including private citizens) to the national Amtrak police desk in
Washington, DC, which is manned around the clock. The final rule does
not require that notification to the control center occur within a
precisely measured number of minutes, rather it uses the words ``as
soon as practicable'' in order to give railroads maximum flexibility.
FRA expects that in the totality of the circumstances of the emergency
situation, the train crewmembers will exercise their best judgment
using the railroad's own emergency preparedness plan procedures.
[[Page 24650]]
Under current practice, Amtrak's notification of the emergency
responders will vary slightly depending on whether or not the passenger
train emergency occurs in Amtrak-dispatched territory. In territory
where trains are dispatched by Amtrak, either the control center will
directly notify the emergency responder or the control center will
notify Amtrak police, who will then, as appropriate, notify pertinent
emergency responders, State and federal agencies, and Amtrak
supervisors. In territory where trains are not dispatched by Amtrak,
the host railroad control center will directly notify the appropriate
emergency responders, government agencies, and host railroad
supervisors. Which emergency responders and agencies are notified
depends on the nature of the emergency. Most control centers have
emergency telephone numbers already in their computer systems, usually
listed alphabetically by city, with hard copy backups.
In its comments, APTA requested that FRA modify
Sec. 239.101(a)(1)(ii) to increase the rule's flexibility concerning
notifications by the control center to emergency responders, and permit
the emergency preparedness plan to discuss the means by which the
contacts will occur. APTA noted that not all commuter railroads have
control centers in each emergency responder jurisdiction, and the
control center in one State may control territory that passes into
another State. There is no direct link, therefore, between the
dispatcher and the emergency responders, and the railroad's police
department is generally responsible for making these contacts.
In response to APTA's concerns, FRA is aware that because each
railroad's operations are somewhat unique, the appropriate persons and
organizations who must be notified will vary based upon the railroad's
individual operating characteristics and the actual type of emergency
that occurs. Accordingly, paragraph (a)(1)(ii) does not specify which
emergency responder organizations (e.g., fire departments, helicopter
rescue groups) or which categories of appropriate railroad officials
that the control center must contact. Because the paragraph is already
worded to provide maximize flexibility to railroads in designating the
emergency contacts, FRA has not modified this paragraph in response to
APTA's concerns.
FRA encourages each affected railroad to consider any reasonable
method of notification when it drafts its emergency preparedness plan,
so long as the notifications by the control center personnel occur
promptly, whether by direct or indirect means. In this regard, FRA
encourages railroads to consider the comments of Eric Sondeen of the
Littleton, Colorado Fire Department, in drafting the section of their
emergency preparedness plans that addresses communication. Among his
comments, Mr. Sondeen recommended that railroads provide, on an annual
basis, emergency dispatch center telephone numbers to all rail corridor
emergency response agencies, including secondary telephone numbers. Mr.
Sondeen also suggested that railroad crew timetables contain 24-hour
civilian emergency response agency telephone numbers for contingency
cellular telephone contacts by crewmembers.
METROLINK commented that each railroad should designate an employee
function or position to be responsible for maintaining current
emergency telephone numbers, rather than an individual employee. In
response to this comment, FRA notes that paragraph (a)(1)(ii) does not
specify which control center employees may be designated by the
railroad to maintain the list of emergency telephone numbers. FRA
concludes that the paragraph, as written, already permits a railroad
great flexibility to select any relevant specific individual or general
job category to maintain the lists, provided that the designation is
properly set forth in the railroad's emergency preparedness plan
submission. Accordingly, this paragraph is adopted as proposed. In
addition, the term ``adjacent'' is not defined (e.g., a distance
measurement from the passenger train experiencing the emergency to
adjacent rail modes) for purposes of determining which other rail modes
must be notified. Instead, consistent with the Working Group's request
that the final rule provide each affected railroad with flexibility to
implement the rule's provisions, this subsection requires that the
emergency preparedness plan state how the railroad will achieve the
appropriate notifications.
Although the final rule does not require railroad control center
personnel to notify operators of pipelines and electric power companies
that a passenger train emergency has occurred, FRA recognizes that
pipelines and power lines can pose potentially serious hazards to rail
passengers. On September 30, 1993, Amtrak Train No. 88, while being
hosted on track owned by CSX Transportation, collided near Intercession
City, Florida with a vehicle owned by Rountree Transport and Rigging,
Inc. (NTSB Highway Accident Report (HAR) 95/01.) A natural gas pipeline
was located in close proximity to the location of the passenger train
accident, but no one notified the owner of the pipeline operation.
Fortunately, an off-duty employee of the pipeline company viewed
coverage of the accident on television approximately one hour after the
accident, and notified the pipeline owner. Although CSX
Transportation's emergency procedures manual stated that the first
priority for its Operations Center dispatchers following an accident is
to promptly notify appropriate local emergency response agencies when
an emergency situation exists, CSX Transportation emergency procedures
did not define the derailment of a train in an area occupied by a
pipeline as an emergency condition. Among the NTSB's conclusions was
that ``Osceola County emergency responders failed to determine and
assess the risks posed by potentially hazardous pipelines at the
accident site.'' NTSB/HAR 95/01 at page 50. The NTSB also noted in a
footnote that one week before the collision an Osceola County fireman
had attended a training session on pipeline emergency response actions
that was sponsored by the pipeline company, but had not briefed others
at the fire station about his training before the time of the accident.
NTSB/HAR 95/01 at page 28, footnote 16.
Since the NPRM did not propose that railroads should be required to
notify operators of pipelines and electric power companies when a
passenger train accident occurs nearby, and FRA did not seek public
comment on this issue, the final rule does not impose this additional
notification requirement. However, based upon the many important safety
issues that must be considered when a rail accident occurs, and in
accord with the NTSB's findings concerning the accident that occurred
near Intercession City, Florida in 1993, FRA encourages both railroads
and members of the emergency responder community to voluntarily
incorporate relevant information about pipelines and power line
locations into their emergency preparedness planning. In addition, as
part of the four-phase process of addressing emergency preparedness,
FRA will review the implementation and effectiveness of paragraph
(a)(1) and related voluntary developments, and evaluate whether further
rulemaking activity or action is appropriate.
Initial Training
Section 239.101(a)(2) requires that the emergency preparedness plan
provide for initial training, and then periodic training at least once
every two years thereafter, of all railroad employees who
[[Page 24651]]
have responsibilities under the plan, and that the training address the
role of each affected employee. Adequate training is integral to any
safety program. This subsection recognizes that the successful
implementation of an emergency preparedness plan depends upon the
knowledge of the on-board and control center personnel about the system
route characteristics, passenger cars and motive power units, and
emergency plans, protocols, procedures, and on-board emergency
equipment. An employee who has not been trained to react properly
during an emergency situation may present a significant risk to
railroad personnel and passengers. On-board employees must receive
``hands-on'' instruction concerning the location, function, and
operation of on-board emergency equipment, stressing the following:
Opening emergency window, roof, and door exits, with an
emphasis on operating them during adverse conditions such as when a
rail car is overturned;
Use of emergency tools and fire extinguishers;
Use of portable lighting when the main power source is
unavailable on a passenger train; and
Use of megaphones and public address systems (if they are
provided by the railroad for communication purposes).
At the Working Group meeting held on August 28, 1997, some members
questioned what FRA meant in paragraph (a)(2)(i)(E) by the phrase
``hands-on instruction.'' Some members of the group thought that it
meant every employee being trained must actually open an emergency
window and an emergency door exit on a passenger car, while others
thought that a railroad would be in full compliance if only one
employee were required to perform the ``hands-on'' exercise while
hundreds of others received their training merely by observing. In
addition, one member commented that since an emergency window used for
demonstration purposes is costly to repair and requires taking the
passenger car temporarily out of service to replace the rubber
stripping, the final rule should permit employees to receive their
``hands-on'' training by watching a video presentation.
FRA recognizes the unique characteristics of the various railroad
properties, and is reluctant to inhibit flexibility and creativity by
imposing rigorous specifications in the rule text itself on how every
railroad should perform ``hands-on'' training. However, FRA expects
each railroad's emergency preparedness plan to address the means by
which it proposes to train all of its on-board employees on the
specific elements of: rail equipment familiarization; situational
awareness; passenger evacuation; coordination of functions; and
``hands-on'' instruction. In this regard, FRA will not approve a plan
that provides for ``hands-on'' training exclusively by allowing
employees to watch a video, since watching a two-dimensional image of
someone else demonstrating a means of emergency escape or using a piece
of emergency equipment can be ineffectual. But, if a railroad wishes to
use a video as an instructive tool in combination with a scale model of
an emergency window (mock-up) containing a rubber pull strip, and the
emergency preparedness plan provides for small groups of employees
taking turns handling window glazing and practicing emergency escape
using the mock-up, FRA would find this approach acceptable.
The final rule also requires appropriate training of control center
personnel who effect the implementation of a railroad's emergency
response plan. FRA expects the railroad to provide training only for
the requisite control center employees designated under the plan to
convey the nature and extent of a passenger train's emergency to the
emergency responder organizations. Accordingly, FRA is not requiring
training of other control center employees who perform merely
incidental functions, e.g., a clerical or other office employee who
receives a telephone call from a stalled train.
During the NPRM stage of this proceeding, FRA primarily envisioned
the need for each railroad to provide appropriate training to its
control center personnel on their duties after a passenger train
emergency has already occurred (e.g., notifying outside emergency
responders about a derailment). However, in light of a recent accident
near Savannah, Georgia, FRA has revised the final rule to clarify that
control center personnel may have important emergency-preparedness
responsibilities even before a life-endangering situation turns into a
passenger train emergency. Specifically, on October 9, 1997, an Amtrak
train operating on track owned by CSX Transportation in Garden City,
Georgia collided with a truck hauling a ``lowboy'' trailer (which has
unusually low clearance between its underside and the ground) at a
grade crossing. The truck had become stuck on the crossing. Prior to
the collision, local police contacted CSX Transportation police, who
alerted the CSX Transportation dispatching center in Jacksonville,
Florida. The information concerning the stuck trailer reached the
dispatcher of a nearby parallel line in the area, who saw no imminent
risk because of an absence of rail traffic on this line. Unfortunately,
the information did not reach the dispatcher of the line on which the
lowboy trailer was actually stuck. Because the crew of the Amtrak train
was not notified of the trailer's presence by the dispatcher and was
not able to stop the train in time once it became visible, the Amtrak
train collided with the trailer.
While the investigation of the accident is still in its early
stages, the best information currently available supports certain
preliminary conclusions. Information concerning the presence of the
truck on the crossing was conveyed to CSX Transportation prior to the
collision, but either the information was not sufficiently descriptive
of the location of the incident or the information was not conveyed to
the appropriate dispatcher, or both. In order to prevent the recurrence
of such accidents, FRA and CSX Transportation agreed that CSX
Transportation would require: continued emphasis on education of
truckers; restricted speeds in zones where a highway-rail crossing
collision may be imminent; precise identification of highway-rail
crossings and immediate notification of hazards; a safety briefing for
its dispatchers and supervisors on the scenario of the accident of
October 9, 1997; and operational testing of its dispatchers and
supervisors concerning avoidance of any possible collisions while the
precise location of an obstruction or other hazard at a rail-highway
crossing is being determined.
Consistent with the above discussion, FRA has revised the rule text
to require that control center personnel receive territorial
familiarization. FRA is aware that the railroad industry has a variety
of methods available in order to accomplish this objective. These
methods include, but are not limited to; review of trackage charts and
operating timetables; familiarization train rides by train dispatchers
through the territories in which they dispatch; and viewing of
videotapes containing narration that describes the physical
characteristics of the territory. FRA also expects each railroad's
emergency preparedness plan to provide for a high degree of
coordination and interface during all internal communications between
personnel within the control center, particularly whenever a potential
or actual emergency situation exists.
[[Page 24652]]
Initial Training Schedule
FRA recognizes that even after a railroad receives conditional
approval of its emergency preparedness plan under Sec. 239.201, the
initial training of individual employees on their responsibilities
under the emergency preparedness plan cannot occur immediately.
Accordingly, new subparagraphs (iii) and (iv) have been substituted in
Sec. 239.101(a)(2) in order to establish an implementation schedule for
this initial training. While each railroad will be held responsible by
FRA for all other applicable provisions of its emergency preparedness
plan that it can fully comply with immediately after the date of
conditional approval (e.g., equipping each passenger car with one fire
extinguisher in accordance with Sec. 239.101(a)(6)(i)(A) or conducting
a debriefing and critique session after a passenger train emergency
simulation under Sec. 239.105, the initial training can be spread out
over a longer time period. In addition, during this implementation
phase, the on-board staffing requirements of subparagraph (vi) of
Sec. 239.101(a)(2) will not apply.
During the Working Group meeting held on August 28, 1997, FRA did
not receive any specific recommendations from members of the group on a
precise implementation timetable for inclusion in the final rule.
However, the Working Group agreed that the final rule needed to reflect
the fact that railroads could not provide emergency preparedness
training to every employee on the same day, and that the railroads
would instead modify their other ongoing training programs to fulfill
this new requirement. Upon careful consideration of this issue, FRA
recognizes that smaller railroads (i.e, those whose operations include
less than 150 route miles and less than 200 million passenger miles
annually) generally operate less frequent service and employ fewer
individuals in less hierarchical environments than do larger railroads
and providers of intercity passenger service, and will therefore have
an easier time providing emergency preparedness training from a
logistical standpoint than will those larger service providers.
FRA anticipates that these smaller entities will also be able to
offer this training to informal groups of employees without the need
for carefully planned and organized training sessions. In addition,
under the terms of the final rule, intercity service providers also
have the added requirement to conduct training for persons performing
on-board functions in a sleeping car or coach car (other than food,
beverage, or security service). Accordingly, the final rule provides
larger railroads and intercity railroads with more time in which to
fully train their employees than it does smaller railroads in order to
recognize the more complex organizational structure of these larger
companies.
In the case of a railroad providing commuter or other short-haul
passenger train service and whose operations include less than 150
route miles and less than 200 million passenger miles annually, the
final rule permits the training to be completed up to 21 months after
the effective date of the rule, which will be approximately one year
after FRA grants conditional approval to the railroad. In the case of a
railroad providing commuter or other short-haul passenger train service
and whose operations include 150 or more route miles and 200 million or
more passenger miles annually, or a railroad providing intercity
passenger service (regardless of the number of route miles or passenger
miles), the final rule permits the training to be completed up to 33
months after the effective date of the rule, which will be
approximately two years after FRA grants conditional approval to the
railroad. In addition, while each freight railroad hosting any category
of passenger train service receives up to 21 months after the effective
date of the final rule to train its employees, the implementation
schedule for a passenger railroad hosting such service (e.g., Amtrak
hosting the operations of NJTR in the state of New Jersey) is governed
by subparagraphs (A)--(C) of Sec. 239.101(a)(2)(iii), based upon either
route miles and passenger miles or whether that host railroad provides
intercity service. Accordingly, under a scenario of Amtrak hosting the
operations of NJTR, Amtrak would receive up to 33 months in which to
train its employees on their hosting responsibilities under the joint
emergency preparedness plan covering the NJTR passenger operation.
In accordance with the implementation schedule, a railroad
beginning passenger operations after the effective date of the final
rule has either 90 or 180 days after beginning service, depending on
the size or type of its operation, to train its employees on their
responsibilities under the emergency preparedness plan. Any new
employees who are hired by a railroad to perform either on-board or
control center functions after the date on which the railroad receives
conditional approval under Sec. 239.201(b)(1), must receive their
initial training within 90 days after commencing employment. During
this 90-day time period, these employees would be permitted to function
as crewmembers even though they had not yet become qualified under the
emergency preparedness plan to perform the functions for which they
will be responsible.
Periodic Training
The final rule affords the passenger railroad operator a time
period of up to two years to provide each session of ``periodic''
training after the operator provides initial training in the emergency
preparedness plan's provisions to its employees. The periodic training
requirement is intended to inform railroad personnel of changes in
procedures and equipment and ensure that their skills remain at a level
that enables them to effectively execute their responsibilities under
the emergency preparedness plan. In addition, the recurrent training
will reinforce segments of the emergency preparedness plan for
individuals who have not performed properly.
FRA concludes that the unique operating characteristics of all the
different railroads subject to the final rule, as well as the financial
costs involved with providing training, would make it impractical to
include a calendar year or other more restrictive or specific
requirement for periodic training in the final rule. As FRA recognized
in drafting the NPRM, while the final rule places an upper limit of the
term ``periodic'' at two years, anytime the provisions of an emergency
preparedness plan are invoked during an actual emergency, that railroad
receives an additional opportunity to evaluate the level of knowledge
of its affected employees. However, since the final rule does not
permit any level of activation of the railroad's emergency preparedness
plan to count toward the training requirement, the railroad cannot
count the event toward the periodic training requirement for those
involved employees. However, FRA recognizes that affected railroad
employees who receive ``real life'' training will still benefit from
the experience, particularly whenever all five of the requirements of
Sec. 239.101(a)(2)(i) are addressed during the emergency and the
employees also participate in the debriefing and critique session.
In the NPRM, FRA requested comments from railroads on the costs of
implementing the on-board personnel training requirements of the rule.
Specifically, FRA wanted to determine the extent of the current
training that railroads already provide to their on-board employees
(including emergency
[[Page 24653]]
preparedness training) as part of regular operating rules training
programs. Comments were also requested concerning the estimated dollar
amount of the incremental additional costs connected with modifying
existing training programs to comply with this proposal. FRA was
interested in ascertaining whether the training requirements would
merely add de minimis costs to each railroad's existing training
program or if compliance would entail moderate or significant
additional costs.
The majority of the organizations that submitted comments on
Sec. 239.101(a)(2) recommended that FRA modify the requirement for
employee training and qualification by permitting each railroad to
provide periodic training at least once every three years, instead of
at least once every two years. In this regard, Amtrak recommended that
the periodic training requirement be changed to at least once every
three years, to coincide with Amtrak's interval for refresher training
on first aid. Although Amtrak stated that three years would provide
sufficient frequency, it did not provide a reason. Amtrak also noted
that railroads will provide their employees with interim updates when
major changes to their emergency response programs occur.
APTA offered no comment on the frequency of periodic training for
on-board personnel, but recommended a training cycle of three years for
control center personnel. Consistent with the requirements of 49 CFR
part 240 (Qualification and Certification of Locomotive Engineers),
APTA stated that a three-year training cycle better fits the training
programs of all commuter railroads, especially the larger ones. APTA
also argued that a three-year training cycle would permit better
scheduling of funding outlays for this important training activity.
CALTRAIN commented that a three-year cycle of formal training is
preferable, since existing training drills regularly provide much of
the required materials. CALTRAIN also stated that since formal training
may require reassignment, a three-year training cycle better allows for
budgeting and personnel reassignments during austere fiscal times.
The LIRR stated that a three-year qualification period for
emergency preparedness training would meet the criteria set forth in
the rule. However, the LIRR offered no supporting data for this
assertion.
Rationale for Requiring Two-year Interval
In rejecting the request of various commenters to raise the time
interval between periodic training cycles for on-board and control
center employees to three years, FRA carefully considered both
financial cost issues and the safety ramifications of weakening an
integral element of emergency preparedness. Based upon FRA's analysis,
the agency recognizes that railroads providing and hosting passenger
train service will experience cost increases by being required to train
their employees at least once every two years. However, FRA concludes
that the effective and efficient management of passenger train
emergencies begins with properly trained and knowledgeable railroad
employees onboard the trains and in the control centers capable of
quickly obtaining the assistance of emergency responders and ensuring
the safety of the passengers. FRA believes that in order to maximize a
railroad's level of emergency preparedness, frequent refresher training
is essential, and any periodic requirement longer than at least once
every two years increases the probability that a certain number of
employees would become unfamiliar with their crucial emergency
preparedness roles.
As discussed in the analysis of Sec. 239.103, FRA requires
railroads operating passenger train service to conduct full-scale
emergency simulations to evaluate their overall emergency response
capabilities and ensure that emergency preparedness plans, procedures,
and equipment address the particular needs of various types of
passengers. Emergency simulations can help railroads achieve these
goals through careful selection of the time and location of the
simulation and participation by personnel from the railroads, outside
emergency responder organizations, and ``volunteer passengers.'' In
addition to classroom training, simulations provide employees with a
practical and realistic understanding of rules, procedures, trains, and
right-of-way structures/wayside facilities as they relate to emergency
response. FRA expects that the employee training provided in accordance
with Sec. 239.101(a)(2) will include instruction on the importance of
full-scale emergency simulations in achieving successful implementation
of the emergency preparedness plan.
First-Aid and CPR Training
Although Sec. 239.101(a)(6)(ii) has been added to require railroads
providing intercity service to equip each train with at least one
first-aid kit (see the section-by-section analysis of this issue under
the ``On-board emergency equipment'' heading for a detailed discussion
of this requirement), the final rule does not require on-board
personnel to receive training in first-aid or in CPR. Although FRA
initially considered including these items as training requirements in
the rule, or at least mandating that railroads offer employees the
opportunity to receive this training, the consensus of the Working
Group during the drafting of the NPRM was that both first-aid and CPR
training should be excluded from the rule. The Working Group stressed
that the goal of the rule is to ensure that emergency responders arrive
promptly at the scene of an emergency, not to train on-board personnel
to act as emergency responders. The Working Group also stated that even
if FRA requires a railroad to offer first-aid and CPR training, no
railroad can literally force an on-board crewmember to assist an ailing
passenger. Further, trains with heavier passenger loadings are likely
to have on board one or more medical professionals whose skills will be
more extensive, and better practiced, than those of a crewmember whose
primary and recurring duties do not include medical emergencies.
During the Working Group meeting on February 7, 1996, Amtrak stated
that it is spending between $2.5 to $3 million by fiscal year 1998 to
train the chiefs of on-board service and to provide for at least one
employee on every train being trained to administer first-aid and
perform CPR. Under the Amtrak plan, employees will not be required to
use this training, merely to receive it. Despite the extent of Amtrak's
commitment to voluntarily providing extensive first-aid and CPR
training, Amtrak did not want these items required in the final rule.
Another member of the Working Group, METROLINK, stated that it has
served approximately eight million passengers in three years of
operation, and has never had a passenger require CPR. METROLINK also
noted that commuter railroads generally operate in populated areas,
with professional emergency responders in most cases only minutes away.
The LIRR stated that it offers CPR training to newly hired employees
and shows a refresher film to employees every five years, but
acknowledged that it cannot force employees to administer CPR. The
railroad also noted that it would never want the engineer to leave the
controls of the locomotive during an emergency. NJTR indicated that its
train crews already have many duties to
[[Page 24654]]
perform during an emergency and that first-aid and CPR should be
performed by emergency medical services personnel.
FRA invited commenters to submit their views on whether the final
rule should include the issues of first-aid and CPR training. FRA noted
that one option was to mandate that railroads offer their employees
first-aid and CPR training, without requiring employees to actually use
this training during an emergency. Under this scenario, a railroad
employee who offered no assistance during an emergency, because he or
she feared coming into contact with an injured or ill passenger's
bodily fluids, would not violate these regulations. (The experience of
the American Red Cross is that volunteers who receive first-aid and CPR
training, and appropriate equipment, are motivated to provide needed
assistance when the time comes.) The second option was to require not
only that railroads train their employees in first-aid and CPR, but
also mandate that employees use this training during an emergency.
The UTU commented that the final rule should make CPR training and
first-aid training mandatory on a biannual basis, and require anyone
who is properly trained and given proper equipment to offer assistance
in an emergency. The UTU argued that each car should contain a first-
aid kit and that each train should contain a doctor's kit in case a
doctor is on board a train during an emergency situation. The UTU
indicated that conductors on MARC trains receive a thorough emergency
training program that includes CPR and first-aid training, and
recommended that one conductor or assistant conductor be trained in
emergency procedures for every 50 passengers on board a train. The UTU
also noted that there would not be a delay in calling for help if the
call is made quickly and the first-aid or CPR is then started. The UTU
stated that employees who have not been trained with CPR will not be
able to identify serious medical emergencies that truly require
intervention by properly trained and equipped emergency personnel.
Finally, the UTU expressed its doubt about METROLINK's assertion that
none of its 8 million riders over the last three years had required
CPR, and wondered about METROLINK's documentation for this statement.
CALTRAIN commented that employer-provided CPR training should be
excluded from the final rule, due to potential liability issues. The
Littleton, Colorado Fire Department stated that the final rule should
require railroads to provide rail emergency and first-aid training to
crewmembers on board both Amtrak and privately-operated passenger
trains, as well as for the operating crews of all freight trains.
Finally, the BLE noted that it was not opposed to a qualified person
having skills in first-aid and CPR, but stated that although the
engineer would benefit tremendously from first-aid training and CPR
training, the engineer should remain on the locomotive and not be the
principal person providing that response.
At the Working Group meeting held on August 28, 1997, the issue of
requiring first-aid and CPR training was once again fully discussed.
Although the UTU representative continued to recommend that FRA mandate
that railroads provide this training and require its use in the event
of an emergency situation, the preponderant recommendation to FRA from
the railroad commenters ( i.e., that this training remain optional) was
unchanged from the NPRM stage of this proceeding. In making the
decision to exclude first-aid and CPR training for railroad employees
from the minimum requirements of emergency preparedness planning, FRA
recognizes that the main objective of this rule is to ensure the prompt
arrival of professional emergency responders at the scene if an
emergency, not risk potential delays by encouraging on-board
crewmembers to perform heroic efforts that may assist one individual
passenger at the expense of the safety of the entire train. In
addition, FRA is confident that since many members of the general
public (including railroad employees) voluntarily obtain first-aid and
CPR training, it is likely that someone knowledgeable will be aboard
the train and available to assist in the event that medical
professionals are delayed in responding to the emergency. However, FRA
will continue to evaluate this issue through program review.
Passenger Manifests
The final rule also does not require railroads to record the number
of passengers riding on their trains at any given time or to record how
many people get on and off at each train stop. Although lack of an
exact passenger manifest may delay emergency responders in determining
when every passenger has been removed from a derailed or disabled
train, the frequency with which many passenger trains pick up and
discharge passengers would create logistical difficulties for a train
operator. A train crew can usually provide a good estimate to emergency
responders, so that they can respond with the necessary personnel and
equipment. Moreover, it is doubtful that emergency responders would
simply trust an exact passenger count provided by a train crew and
cease looking for additional survivors of an emergency. Commenters were
invited in the NPRM to offer proposals for training on-board
crewmembers to track the exact number of passengers present on a train
at any given moment, and to include suggestions on cost-efficient
technology for achieving this goal. Since no comments were received,
FRA has not included any passenger manifest-requirement in the final
rule.
Testing
The term ``accurately measure'' is used in Sec. 239.101(a)(2)(v)(A)
relative to employee qualification in a broad sense to mean that the
test will show to the railroad whether the employee has sufficient
understanding of the emergency preparedness plan subject area for which
he or she is responsible, and whether the employee can perform the
duties required under the plan in a safe and effective manner.
Proficiency must be demonstrated by successful completion of a written
examination, but in addition may be illustrated by an interactive
training program using a computer, a practical demonstration of
understanding and ability, or an appropriate combination of these in
accordance with this section.
This section permits railroads discretion to design the tests that
will be employed (which for most railroads will entail some
modification of their existing ``book of rules'' examination to include
new subject areas), provided that the design addresses all relevant
elements of the emergency preparedness plan. This section does not
specify things like the number of questions to be asked or the passing
score to be obtained. It does, however, contain the requirement that
the test not be conducted with open reference books unless use of such
materials is part of a test objective. This section also requires that
the test be in writing. In deciding to require a written test, FRA is
aware that the test-taking skills of some individuals may be deficient
and that some persons may have literacy problems. However, FRA believes
that minimum reading and comprehension skills are needed to assure
proper execution of an emergency preparedness plan.
On-Board Staffing
Section 239.101(a)(2)(vi) has been revised and renumbered from the
NPRM to require, as a general rule, that all on-board crewmembers be
qualified to
[[Page 24655]]
perform the functions for which they are responsible under the
applicable provisions of the railroad's emergency preparedness plan.
For example, in the year 2002 (a date beyond the deadline for the
completion of initial training under Sec. 239.101(a)(2)(iii) by all
existing railroads providing intercity passenger service), a train on
an intercity railroad is scheduled to travel from Washington, D.C. to
Atlanta, Georgia with a four-person operating crew fully trained under
the applicable provisions of the railroad's emergency preparedness
plan. However, the train crew also includes someone assigned to perform
service as an attendant in a sleeping car (and not as a new railroad
employee for purposes of Sec. 239.101(a)(2)(iv)) who is not yet
qualified under the plan's provisions to perform assigned functions.
Although this train already has a fully trained and qualified crew
operating the train, the intercity railroad would still not be in full
compliance with the final rule since the crew includes one on-board
crewmember who is not qualified under the emergency preparedness plan.
(See the preceding ``Discussion of Comments and Conclusions'' portion
of this document under the heading of item number 1 for a detailed
discussion of FRA's decision to revise the definition of ``crewmember''
in Sec. 239.7 and increase the on-board staffing requirements.) The one
exception to the general rule, as set forth in subparagraph (B),
applies if, for example, a fully-trained passenger train crew turns
over the operation of its train to a freight railroad train crew that
is not qualified under the passenger railroad's emergency preparedness
plan. Provided that the passenger train is operated by the freight crew
with at least one on-board crewmember of the passenger train present
who is qualified under the passenger railroad's emergency preparedness
plan and available to perform excess service under the Federal hours of
service laws in the event of a passenger train emergency, there would
be no violation of the final rule.
Joint Operations
Section 239.101(a)(3) has been revised from the NPRM, and now
contains the requirement that each freight or passenger railroad
hosting passenger train service shall communicate with that service's
provider or operator or both and coordinate applicable portions of the
one jointly-adopted emergency preparedness plan for that passenger
service. One significant difference to the language of paragraph (a)(3)
from the NPRM stage, is that the final rule prohibits a host railroad
from utilizing a separate emergency preparedness plan in order to
address its emergency preparedness responsibilities involving the
service being hosted. (See the preceding ``Discussion of Comments and
Conclusions'' portion of this document under the heading of item number
5 for a detailed discussion of the requirement that a joint emergency
preparedness plan be submitted for each passenger train operation by
all railroads involved with providing, operating, or hosting such
passenger service.) The final rule also recognizes that while hosts of
passenger train service are generally freight railroads, passenger
railroads (e.g., Amtrak) may also serve as hosts.
The host railroads must prepare sections of the emergency
preparedness plans addressing instances when they host the operations
of rail passenger service over their lines. Even though freight
railroads may neither provide nor operate rail passenger service
themselves, and therefore not be subject to most requirements of the
proposed rule, these railroads still have certain significant emergency
preparedness responsibilities. The emergency preparedness plan sections
addressing hosting by both freight and passenger railroads must, at a
minimum, include procedures for making emergency responder
notifications, and discuss general capabilities for rendering
assistance to the involved hosted passenger railroads during emergency
situations. The hosting railroads must address any physical and
operating characteristics of their rail lines that may affect the
safety of the hosted rail passenger operations, e.g., evacuating
passengers from a train stalled in a tunnel or on an elevated
structure.
FRA expects a railroad that operates rail passenger service over
the line of another railroad to review all of the requirements imposed
by the final rule with the host railroad, and coordinate their
respective roles in implementing a coherent response to an emergency
situation. While FRA presumes that the host railroad will bear primary
responsibility for ensuring the emergency preparedness of any railroad
permitted to operate intercity passenger or commuter trains over its
line, the final rule does not restrict the host railroad and the
operating railroad from assigning responsibility for compliance with
this part via a private contractual arrangement. FRA is including the
coordination requirement to ensure that all railroads involved in a
particular rail passenger service operation understand each other's
crucial role in planning for emergency preparedness.
Tunnels
Section 239.101(a)(4)(i) addresses FRA's requirements for
compliance with this part by railroads with operations that include
tunnels of considerable length, where immediate passenger egress is not
feasible. Since FRA did not receive any comments on this issue,
paragraph (a)(4) is adopted as proposed.
In order to limit the number of structures covered by this
paragraph to the longer ones that could be expected to present more
impediments to the safe and orderly withdrawal of passengers from a
disabled train, tunnels of less than 1,000 feet are excluded. This
limitation is reasonable, considering that intercity passenger trains
seldom consist of less than four cars and often have many more cars
than this, implying a minimum total train length of 400 or more feet.
Most likely, a train of this or greater length will have either the
head or rear end close to or outside of a tunnel portal should an
unplanned stop occur in a tunnel less than 1,000 feet long.
Over the years, passenger train emergencies have occurred in
tunnels where existing emergency procedures and tunnel characteristics,
such as lighting and communication capabilities, were determined to be
inadequate. In order to better evaluate tunnel safety issues related to
emergency preparedness, FRA requested additional information from the
railroad industry. The results were summarized in a report entitled
``Tunnel Safety Analysis'' (Tunnel Report), which was published by FRA
in February 1990. A copy of the report was also made available to the
rail passenger railroads for their information and guidance, and has
been placed in the docket for this rulemaking. FRA encourages all
railroads required to address tunnel safety in their emergency
preparedness plans to consult the Tunnel Report for guidance. FRA is
also aware that many State and local jurisdictions already impose site-
specific regulations to address tunnel safety, and that most railroads
with operations involving tunnels have long-standing internal emergency
tunnel procedures.
Other Operating Considerations
FRA also did not receive any comments on Sec. 239.101(a)(4)(ii),
and has adopted paragraph (a)(4)(ii) as proposed. The paragraph
requires that railroads operating on elevated structures, over
drawbridges, and in electrified territory, incorporate emergency
preparedness procedures into their plans to address these unique
physical characteristics. For example, in an emergency in
[[Page 24656]]
electrified territory, the control center must be responsible for
issuing instructions to deenergize the electrical power. Also, the
train crew and emergency responders must know how, when, and when not
to remove on-board power from the train, including traction power,
train-lined (head-end) power to individual cars, and battery-source
power. The prudent approach for everyone connected with a passenger
train emergency, especially those individuals who have not received
training in power isolation procedures, is to always assume that the
electrical power is in the ``on'' position.
Also, railroad operations over bridges and trestles that cross over
wetlands, lakes, rivers, or other bodies of water or over ravines
(particularly those in isolated areas with no nearby roads) pose
particular access problems for emergency responders. Helicopters or
boats may provide the only logical approach to these locations.
Parallel Operations
Section 239.101(a)(4)(iii) recognizes that the emergency
preparedness plans of certain freight and passenger railroads will need
to address the unique safety concerns posed by adjacent rail modes of
transportation. In commenting on paragraph (a)(4)(iii) as proposed,
APTA stated that the final rule should not place the entire
responsibility for the parallel operation on the passenger railroad,
and should properly account for the shared responsibilities of both the
passenger operation and the hosting freight railroad. Although
coordination is required under the proposal, APTA argued that the NPRM
did not provide a method to ensure cooperation with the freight
railroad to coordinate emergency efforts. APTA noted that if a freight
railroad refuses to cooperate, a commuter railroad lacks recourse, and
could still face assessment of civil penalties for failing to
coordinate with an unwilling freight railroad host. APTA requested that
the final rule delete the words ``provide for coordination'' and
replace them with the words ``shall seek to coordinate.'' APTA also
indicated that the proposal did not take into account light and rapid
transit rail operations that often run parallel to commuter operations.
In response to APTA's concerns, the final rule has been revised to
include a requirement that all railroads that are parties to a
passenger train operation's emergency preparedness plan must initiate
reasonable and prudent actions to coordinate emergency efforts when
adjacent rail modes of transportation run parallel to any of these
railroads. By adding the words ``reasonable'' and ``prudent,'' FRA
recognizes that coordination efforts may not always be successful if
one of the railroad parties to the arrangement is unwilling to
cooperate. While FRA will not penalize railroads that make good faith
efforts to establish appropriate working relationships with adjacent
rail modes of transportation, FRA expects each railroad to demonstrate
that it made the necessary coordination attempts. In addition, upon
notification and request, FRA will intervene to assist any railroad
that is having difficulty coordinating emergency efforts, and help
mediate a solution.
In response to APTA's comment that the proposal did not address
light and rapid transit rail operations running parallel to commuter
operations, FRA notes that the term ``rail modes of transportation'' is
intended to cover all types of transit operations by rail or magnetic
guideways running parallel to passenger railroad operations and their
hosts. Accordingly, no change to the final rule was necessary.
In accordance with the requirements of this paragraph, employees of
a host freight railroad to which this part applies, who have knowledge
of or observe an emergency in a common corridor, e.g., fire,
derailment, or intrusion by rapid transit rail equipment or motor
vehicles, must be required by the emergency preparedness plan for the
passenger operation to immediately convey that knowledge or information
to the control center. The control center must attempt to determine the
exact location of the incident, any condition that would affect safe
passage by affected trains or road vehicles, and whether hazardous
materials are involved, and then initiate appropriate responsive
action. Under the terms of this revised paragraph, coordination of
emergency efforts is required regardless of whether the host railroad
is a freight railroad or another passenger operation.
Liaison With Emergency Responders
Many emergencies require response from outside emergency responder
organizations in addition to the railroad. Proper coordination of roles
between all of the organizations that may respond to an emergency is
essential to ensure timely and effective response, since the number of
passengers carried and the railroad operating environment may be quite
different according to the type of service and routes. Paragraph
229.101(a)(5) recognizes that the successful implementation of any
emergency preparedness plan depends upon the affected railroads
maintaining current working relationships with the emergency responder
organizations, so that each party can learn of the full preparedness
capabilities that the other can offer during an emergency. In this
regard, each railroad's emergency preparedness plan must provide for
distribution to emergency responders of railroad equipment diagrams and
manuals, right-of-way maps, information on physical characteristics
such as tunnels, bridges, and electrified territory, and other related
materials. In order to continually reinforce the familiarization of the
emergency responder organizations with the railroads' protocols,
procedures, operations, and equipment, the final rule requires
railroads to periodically distribute applicable portions of the plan to
emergency responders at least once every three years, even if no
changes have been implemented. Further, since the knowledge and ability
to carry out procedures and use emergency equipment are essential to
the success of emergency response actions, the final rule requires the
railroads to promptly notify emergency responders whenever material
alterations to the plan occur (e.g., revisions to emergency exit
information, pertinent changes in system route characteristics or
railroad equipment operated on the system, or updates to names and
telephone numbers of relevant contact officials on the railroad).
FRA wants to ensure that the emergency responders will receive the
maximum amount of available information about a railroad's operations
in advance of an emergency, and hopes that emergency responders will
voluntarily study the material distributed and participate in emergency
simulations. However, the final rule only requires that affected
railroads make the operations information available to emergency
responders, and that the responders merely be invited to participate in
emergency simulations. FRA has no authority to penalize an emergency
responder organization if it chooses to ignore the distributed
information or refuses to attend simulations with the railroad.
Likewise, the final rule does not hold a railroad accountable for an
emergency responder organization's unwillingness to enter into a
liaison relationship, provided that the railroad employed its best
efforts to make the liaison opportunities known and available to the
responders.
In addition to the requirement to periodically distribute
applicable portions of the emergency preparedness plan to emergency
responders (which has been moved from paragraph (a)(5)(i)
[[Page 24657]]
in the NPRM to paragraph (a)(5)(iii) in the final rule), FRA has added
a new requirement as paragraph (a)(5)(i) mandating that each affected
railroad develop and make available a training program for all on-line
emergency responders who might be called upon to respond to an
emergency. As set forth in the preceding ``Discussion of Comments and
Conclusions'' portion of this document under the heading of item number
2, in conjunction with FRA's decision to scale back the simulation
requirement of Sec. 239.103 to involve only one meaningful full-scale
simulation (performed either annually or every two years depending on
the size of the railroad), FRA has added the training program provision
in order to maximize the opportunity of the emergency responder
community to obtain familiarity with railroad equipment, location of
railroad facilities, and communications interface.
In paragraph (a)(5)(ii) of the final rule (which has been revised
and renumbered from paragraph (a)(5)(iii) of the NPRM) FRA requires
railroads to invite emergency responders to participate in emergency
simulations. Since Sec. 239.103 has been revised in the final rule to
prohibit a railroad from counting a tabletop exercise toward the
simulation requirement, any railroad electing to voluntarily conduct a
tabletop exercise is not required by paragraph (a)(5)(ii) to invite
members of the emergency responder community to attend. However, a
railroad must employ its best efforts to invite all appropriate
emergency responders to attend all of its full-scale simulations.
Moreover, FRA expects each railroad to extend invitations to all full-
scale simulations even if the railroad does not intend to count a
particular simulation toward the minimum number required by
Sec. 239.103(b).
FRA recognizes that not every potential outside emergency responder
will have the opportunity to attend a full-scale simulation or
otherwise obtain realistic exposure to the unique emergency response
challenges posed by railroad emergencies. In addition, even assuming
that every affected railroad diligently distributes the pertinent
portions of its current and updated emergency preparedness plan to
appropriate members of the emergency responder community, descriptive
information set forth in written materials is no substitute for formal
training that includes meaningful hands-on experience with railroad
equipment and an opportunity to ask questions of a live instructor.
In commenting on Sec. 239.101(a)(5), APTA stated that all commuter
railroads already attempt to share information with appropriate local
emergency responders, and that this determination is based upon such
factors as railroad operations and emergency responder capabilities.
APTA argued that the proposed rule eliminates that discretion and
flexibility and places a tremendous burden on commuter railroads to
affirmatively seek out every emergency responder organization, whether
or not that entity is a logical choice. APTA noted, for example, that
paragraph (a)(5)(iii) of the proposed rule (which has been redesignated
as paragraph (a)(5)(ii) in the final rule) would require MARC to invite
the Washington, D.C. fire department to every simulation conducted on
both of its main lines, even though the simulation is intended to
benefit emergency responders in West Virginia. Instead, APTA indicated
that MARC should be able to group emergency responders by region.
In addition, APTA requested clarification in the final rule of the
requirement in Sec. 239.101(a)(5)(ii) of the NPRM to maintain ``an
awareness of each emergency responders' capabilities.'' APTA asked
whether this requirement included the type of equipment, hazardous
material capabilities, ambulance service, emergency medical
technicians, and size of fire and police departments. Since each
emergency responder determines the level and type of response to
provide during an emergency, which may or may not reflect the limits of
its capabilities, APTA also questioned how maintaining this information
will benefit the railroad.
In its comments, METRA questioned how it could be expected to
become aware of, much less maintain an awareness of, the capabilities
of each emergency responder throughout six of the most densely
populated counties in the country. METRA suggested that to maintain an
awareness it could establish a program through its liaison, as mandated
in the regulation, that any community involved with METRA's service
would have to tell METRA if it upgraded or downgraded its facilities or
equipment. A railroad should know if one community has a type of
equipment needed for a rescue, for example, but need not know the
internal workings of the community facilities.
A member of the public commented that there needs to be better
coordination between emergency response teams and railroad operators.
Although not all railroad accidents can be prevented, the commenter
stated that coordination with emergency responders can save the lives
of passengers experiencing health difficulties while riding trains,
such as heart attacks.
CALTRAIN stated that while it works closely with local on-line
emergency responders, it believes that rail properties are unable to
know the detailed capabilities of each agency. CALTRAIN indicated that
it relies on responders to summon the appropriate help, based in part
upon the information provided to them by the railroad.
NICTD commented that it had already conducted two simulation drills
with emergency responders during calendar year 1996. NICTD stated that
it was already in the process of developing a training program with
manuals on emergency evacuation of passengers from equipment for all
emergency responder organizations servicing NICTD.
The Des Plaines, Illinois Fire Department stated that emergency
telephone numbers are of paramount importance so that the fire
department can establish contact and stop the trains so that responders
can go down the rail lines in both directions. This commenter also
noted that receipt of hands-on training is important.
The LIRR commented that members of the emergency responder
community do not need the railroads to show them how to put out fires
or splint fractures. Instead, the railroads need to train the
responders on railroad equipment.
The UTU stated that it is important that emergency plans be updated
and be distributed to the host railroads and emergency responders. The
UTU believed that doing so would shorten response time, and make
emergency responders more familiar with the railroad's physical
characteristics and equipment.
In its comments, METROLINK stated that it operates through the
jurisdictions of 33 different fire districts, over 50 ambulance
companies, and 45 police agencies. METROLINK argued that it should not
be a railroad's function to maintain an awareness of the capabilities
of each emergency responder, and noted that it lacks the technical
ability to know or understand when a ``significant change'' occurs in a
responder's capability. METROLINK also noted that the proposed rule
imposed no reciprocal responsibility on local emergency responders to
notify railroads when their capabilities change. METROLINK contended
that the emergency responders should be responsible for establishing
mutual aid with other local agencies when situations outside their
capacity arise.
Based upon the comments received, FRA concludes that it would be
[[Page 24658]]
impractical to require railroads to directly monitor the emergency
preparedness and response capabilities of all of its on-line emergency
responders, and has deleted the ``maintaining-awareness'' requirement
of paragraph (a)(5)(ii) of the NPRM from the final rule. FRA recognizes
that since the rule imposes no burden on emergency responders to advise
railroads of their staffing capabilities or their inventories of
specialized rescue equipment, the railroads would be hindered in their
ability to immediately determine the most appropriate emergency
response organizations to request assistance from after a passenger
train emergency situation develops. Moreover, FRA expects that the
central location of the emergency response contact (e.g., the 911
emergency operations center) will be fully aware of the capabilities of
the nearest and/or best-equipped emergency responders, thereby being
able to send the most appropriate responders to the location of a
passenger train emergency. Accordingly, if a train derails and falls
from a bridge into a river, FRA would expect the emergency responder
organization that is contacted to summon a rescue company trained in
water rescues if one is available.
In commenting on the proposal, Amtrak stated that while it agreed
that it is reasonable to expect that the emergency preparedness plan
information should be made available to any affected emergency
responder, the final rule should permit railroads to fulfill this
requirement by providing the information to entities that perform
centralized functions of collecting information and disseminating it to
emergency service providers, when and as needed. Amtrak recommended
that the final rule not designate acceptable information repositories,
but rather provide latitude for railroads to communicate effectively
with local emergency responders through centralized communication
entities rather than individually. Amtrak stressed that since its
nationwide route system interfaces with over 15,000 emergency response
agencies, it would not be feasible to keep all of them supplied with
written instructions. Even if the final rule permitted electronic
transmission of plan information, Amtrak urged that direct
communication between individual railroads and each emergency responder
organization not be required.
Subsequent to the public hearings, Amtrak submitted additional
comments to FRA on July 1, 1997 concerning distribution of emergency
preparedness plans to emergency responders. Amtrak stated that it
agreed that applicable portions of the emergency preparedness plan
should be readily available to any affected emergency responder, but
believed that the regulations should not require direct communication
between each individual emergency response agency and the railroad.
Entities that perform centralized functions of information collection
can disseminate this information to emergency responders as needed.
Amtrak noted that these entities include the National Fire Protection
Association (NFPA), the International Association of Police Chiefs
(IAPC), the International Association of Fire Chiefs (IAFC),
organizations for emergency medical services and emergency management
agencies, and national trade magazines. These organizations could
provide an effective conduit through which railroads can communicate
with the emergency response agencies in the local communities to advise
them of the availability of emergency plans.
FRA is aware of the great number of jurisdictions that intercity
trains operate through, and that it is neither simple nor inexpensive
for passenger train operators to provide material and familiarization
to every outside emergency response organization within all individual
communities along each route. Some commuter train operators have
developed booklets and videotapes to illustrate equipment and describe
entry and evacuation procedures for its trains and certain right-of-way
facilities. However, FRA recognizes, based on Amtrak's statements made
at both the pre-NPRM Working Group meetings and in its written
comments, that because Amtrak operates through thousands of
jurisdictions with thousands of potential emergency responder
organizations located throughout the United States, it would have
difficulty complying with this paragraph.
While FRA considers the establishment of liaison relationships
between railroads involved with rail passenger operations and emergency
responders crucial to achieving the goals of the proposed rule, the
agency is also fully aware of the unique circumstances of Amtrak's
operations. FRA had invited public comments on how Amtrak could best
comply with the emergency responder liaison requirement, as set forth
in the proposed rule. FRA asked whether the final rule should establish
a different standard for railroads that operate in territories with
large numbers of potential emergency responders to contact, and
requested that any commenter proposing two or more sets of standards
should also suggest what numerical or mileage criteria should be used
to distinguish the railroads, and state how these differing standards
would still ensure adequate levels of safety and emergency
preparedness. Regrettably, the only commenter addressing this issue was
Amtrak, and its comments dated July 1, 1997 are summarized above.
On September 2, 1997, six FRA representatives convened a meeting
with seven members of Amtrak's management team at Amtrak's offices in
Washington, D.C. to discuss issues relating to the final rule on Radio
Communications as well as to emergency preparedness. A representative
from the UTU was also in attendance. Minutes of that meeting have been
placed in the public dockets of both rulemakings.
In pertinent part, FRA challenged Amtrak to provide information to
FRA on how the railroad would ensure that the training materials and
emergency preparedness plan information would reach the literally
thousands of emergency responder organizations who might potentially
respond to an emergency occurring along Amtrak's many routes. FRA
recognizes that smaller commuter operations will be capable of training
the limited number of potential emergency responders along their routes
on their railroad equipment, but that Amtrak lacks the financial
resources and personnel to directly contact thousands of organizations.
At the conclusion of this meeting, FRA requested that Amtrak submit a
proposal to FRA on how it expects to achieve compliance with the
requirements of this paragraph.
In a letter dated October 27, 1997, Amtrak stated that it operates
intercity passenger trains on a route system of more than 20,000 miles
and reiterated that as many as 20,000 organizations provide emergency
response services in the territories through which its trains operate.
While Amtrak noted that it was not feasible to directly deal with all
of these agencies, it acknowledged the importance of communication
concerning Amtrak's emergency response plans, both before and during an
emergency situation. To accomplish this objective, Amtrak proposed a
process for advising these local entities of the availabilities of
Amtrak's plans, distributing copies of these plans promptly when
requested, and providing opportunities for dialogue concerning these
plans. Amtrak also stressed that the process must provide an
independent check to determine whether the emergency service responders
are aware of the availability of Amtrak's materials and how they can
[[Page 24659]]
communicate with Amtrak about them during an emergency.
Amtrak stated that the wide dispersal of its operations is markedly
different from those of commuter services, which are localized in
relatively discrete urban areas. Amtrak encouraged FRA to develop a
different standard for distribution of Amtrak's materials from that set
forth in paragraph (a)(5)(i). In this regard, Amtrak recommended that
this paragraph provide for consultation between Amtrak and FRA
concerning the effectiveness of initial communication efforts and
appropriate modifications for adoption over time.
Amtrak indicated that its emergency preparedness plan will be able
via the Internet to emergency response agencies, as well as through
printed documents. Amtrak will develop specific procedures to ensure
reasonable security of the information so that it is not distributed
without some reasonable assurance of the status and responsibility of
the receiving party. Notice of future material changes in the emergency
preparedness plan will be provided specifically to any parties that
have previously indicated an interest in Amtrak's emergency response
plans. Under Amtrak's proposal, emergency response agencies that have
not contacted Amtrak would, upon accessing Amtrak's emergency response
plans, not be alerted to changes. Amtrak believes that such specific
notice would be unnecessary because these agencies had no specific
prior understanding. However, agencies that had prior knowledge would
be alerted to changes in facts or procedures as they occur.
Amtrak also stated that it will establish a dedicated toll-free
telephone number, in operation 24 hours per day, that will deal only
with actual emergencies and provide information concerning its
emergency preparedness plan. General requests for information will be
responded to on the next business day.
In order to alert local agencies to the availability of Amtrak's
emergency preparedness plan, Amtrak requested inclusion of its contact
telephone number in DOT's publication entitled ``North American
Emergency Response Guidebook'' (ERG). Amtrak noted that the ERG is in
the hands of virtually every emergency response agency in the United
States, including fire and rescue, emergency medical services, law
enforcement, and emergency management. Amtrak contended that just as
CHEMTREC and CHEM-TEL are listed in the ERG, the Amtrak emergency
preparedness and response toll-free telephone numbers should be
included so that local agencies will know how to obtain information to
familiarize themselves with Amtrak's operations on a proactive basis
and where to turn during an emergency situation. Amtrak will also
obtain paid advertising and other publicity through articles in trade
publications for fire and rescue, emergency medical services, law
enforcement, and similar agencies outlining emergency procedures and
providing the railroad's contact telephone number. Another resource
that Amtrak noted it uses in major metropolitan centers on the
Northeast Corridor and other parts of the United States is Operation
Respond. Operation Respond distributes software outlining floor plans
and schematics of emergency procedures for Amtrak rolling stock and
overhead views of the Northeast Corridor right-of-way.
To ensure the effectiveness of the types of efforts it has
outlined, Amtrak believes that it should implement a specific sampling
technique with which it could determine whether emergency agencies
selected at random are aware of how to contact Amtrak in the event of
an emergency, and obtain the type of information needed to promptly and
effectively respond. Amtrak proposed conducting this sampling on an
annual basis. Amtrak stated that the sampling could determine the
degree to which agencies are aware of how to obtain such information
and the type of actions that Amtrak may need to take in order to
improve the awareness of agencies in general concerning the
availability of information about Amtrak's emergency preparedness plan.
However, Amtrak stressed that inclusion in the ERG is the most critical
component of any effort to provide a focal point for contacting Amtrak.
FRA has carefully reviewed the contents of Amtrak's letter dated
October 27, 1997, and is fully cognizant of Amtrak's desire that FRA
reasonably regulate the need to effectively communicate with local
emergency responder organizations concerning Amtrak's emergency
preparedness plan without imposing an undue burden on the railroad.
Because of the large number of emergency responders dispersed
throughout Amtrak's territories of operation, FRA concludes that it is
vitally important that Amtrak and the host freight railroads enter into
close coordination and keep up-to-date instructions on how emergency
response information is to be reported to emergency responders. In
order for any railroad to successfully fulfill the requirements of this
paragraph, positive communication links must exist between the
railroad, its hosts (if applicable), and the emergency responder
community. In this regard, the maintenance of accurate emergency
telephone numbers for use by control centers in making emergency
notifications in accordance with paragraph (a)(1)(ii) is even more
crucial on a railroad the size of Amtrak.
FRA expects that in making its training program information and
materials available to national or state training institutes,
firefighter organizations, or police academies, as well as when it
distributes applicable portions of its emergency preparedness plan,
Amtrak will contact individuals in these organizations at the lowest
possible levels that are feasible. FRA concludes that merely mailing
this information to the main address for organization will be
ineffective at achieving the local outreach efforts to the emergency
responder community required by this final rule. While FRA acknowledges
that for the rule to fully succeed Amtrak must have the assistance of
these organizations starting at the highest levels, Amtrak may not
delegate the responsibility for communication with local personnel to
the top officials of these entities. FRA expects Amtrak to employ its
best efforts to reach, whether directly or through the assistance of
the hierarchy of national and state emergency response organizations,
the local emergency responders along its rail lines who could
reasonably be called upon to respond to an emergency situation.
In working with Amtrak as part of the review and approval process
of Sec. 239.201, FRA will fully consider all appropriate ideas and
suggestions from the railroad on how it proposes to achieve the
necessary liaison relationships with its on-line responders. While FRA
will not impose unreasonable expectations on Amtrak, FRA will not
permit Amtrak to ignore the vast number of potential emergency
responder organizations with which the railroad must establish at least
a minimal liaison contact.
Finally, in response to Amtrak's request to include its contact
telephone number in DOT's ERG, FRA notes that the ERG is a guidebook
published by the Research and Special Programs Administration (RSPA) (a
modal administration within DOT) for firefighters, police and other
emergency services personnel who may be the first to arrive during the
initial phase of a transportation incident involving hazardous
materials or dangerous goods. Although the ERG is not intended for use
in a transportation incident involving only a passenger train, absent
the additional involvement of hazardous
[[Page 24660]]
materials or dangerous goods, its wide distribution makes it an
effective vehicle for reaching the emergency responder community.
Accordingly, at FRA's request, RSPA has agreed to include this
information in the next version of the ERG.
On-Board Emergency Equipment
The requirements of Sec. 239.101(a)(6)(i) remain unchanged from the
proposal: each railroad's emergency preparedness plan shall indicate
the types of emergency equipment placed on board each passenger train
and the location of such equipment on each passenger car. Although the
final rule requires a minimum of only one fire extinguisher and one pry
bar per passenger car, and one flashlight per on-board crewmember, FRA
strongly encourages each railroad to voluntarily supplement this list
of on-board emergency equipment. Further, FRA recognizes that there may
be special local interests that might need to be accommodated,
particularly in cases of public authorities operating passenger train
service within only one territory. While national uniformity to the
extent practicable of laws, regulations, and orders related to railroad
safety is important, FRA does not wish to decrease the level of
emergency preparedness already in place on a passenger railroad.
In reaching the decision to retain the same on-board emergency
equipment requirements as proposed in the NPRM, FRA considered three
sets of comments. The first commenter, APTA, said that since the use of
metal pry bars by non-railroad personnel on electrified territory may
create a significant safety hazard, the final rule should prohibit
public access to them. APTA also noted that theft, tampering, and
destruction of on-board emergency equipment are big problems for
commuter railroads, and asked that the rule impose a Federal penalty
for theft, vandalism, or tampering with emergency equipment, similar to
penalties imposed by the Federal Aviation Administration for tampering
with smoke detectors on airplanes. The second commenter, a private
citizen, commented that in light of the number of possible
unpreventable health emergencies that can occur on a train, the types
of on-board emergency equipment should be expanded. He believed that
this equipment, along with better emergency training of railroad
employees, can save many lives.
The third commenter, the LIRR, indicated that while it supports the
idea of having one fire extinguisher per passenger car, the LIRR's
diesel fleet does not have any fire extinguishers at the present time,
except on locomotives. The LIRR stated, however, that its entire diesel
passenger coach fleet is scheduled to be replaced beginning in 1997.
The LIRR noted that the Electric MU fleet operates in married pairs;
the M1 fleet (758 total) was built between 1968-1972 and has one fire
extinguisher per married pair, while the M3 fleet (174 total) was built
in 1985-86 and has a fire extinguisher opposite each operating cab in
every car. The modification of 758 M1 cars will require funding and
time. The age of the M1 car fleet is reaching its useful life, and LIRR
stated that it is beginning preparation of a capital investment to
replace the M1 portion of the electric fleet. LIRR asked for relief for
both the diesel and M1 fleet.
Regarding the issue of pry bars, the LIRR noted that it operates in
an area 100 miles long with 11 branches, with 181 fire departments
throughout Long Island, New York. The LIRR stated that the average
response time of emergency responders is only approximately 10 minutes,
and indicated that the responders are trained on LIRR equipment and
have state-of-the-art rescue equipment. The LIRR believed that
retrofitting of all LIRR equipment would not provide a higher level of
safety than what is already provided by the responders, and thought
that pry bars would be difficult to keep or maintain on railroad
equipment open to the public. If LIRR is subject to the pry bar
requirement, the railroad stated that it will seek relief through the
waiver process.
In order to assist the agency in determining whether to revise the
requirements of Sec. 239.101(a)(6)(i), FRA asked for comment about
whether special circumstances exist in local jurisdictions throughout
the country on a categorical basis, requiring railroads to meet more
stringent requirements than the minimum quantities of on-board
emergency equipment set forth in the proposed rule. Specifically, FRA
invited comments on what types and quantities of on-board emergency
equipment railroads are currently required to carry pursuant to laws in
the local jurisdictions in which they operate, and was curious as to
the reasons for these more stringent requirements. Depending on the
comments received, FRA noted that it might adopt the minimums set forth
in the text of the proposed rule or decide to broaden the coverage of
paragraph (a)(6)(i) by specifying additional types or quantities, or
both, of on-board emergency equipment that some or all railroads must
carry on each passenger car. FRA's decision to adopt paragraph
(a)(6)(i) as proposed is based largely upon the fact that FRA received
little public comment on this issue.
FRA recognizes that since the focus of this rule is to ensure that
emergency responders arrive promptly at the scene of an accident,
rather than to train on-board personnel to act as emergency responders,
the rule must not impose onerous, irrelevant, or duplicative emergency
equipment requirements on railroads. FRA is aware that emergency
responder units will generally arrive at the scene of a passenger train
emergency fully equipped with pry bars, pick axes, fire fighting
equipment, and other assorted specialized rescue items. However, in
deciding to mandate in the final rule that railroads must carry fire
extinguishers, pry bars, and flashlights on board trains, FRA concluded
that certain emergency situations can prove so life-threatening and
time-sensitive that train crews and passengers must take immediate
action to maximize the likelihood of survival.
Certainly, in the event of a small fire taking place on board a
passenger train, the availability of a working fire extinguisher in
each passenger car could prevent a minor problem from turning into a
tragic event before emergency responders are able to respond to the
emergency. Also, a fire may start in a small area or limited location
on a train, where crewmembers or passengers might be capable of
containing the fire (e.g., a smoldering cigarette on a passenger coach
seat), thereby avoiding the need to involve outside emergency
responders at all. While FRA recognizes that firefighters carry all
sorts of rescue equipment, including pry bars, sometimes the threat
from an emergency is so immediate and severe that there is no
opportunity to wait for emergency responders to arrive and rescue
people. Accordingly, the availability of a pry bar in each passenger
car will enable crewmembers and passengers to exit the train through an
emergency window exit in the event that the rubber stripping cannot be
removed accordingly to plan and circumstances do not permit awaiting
the arrival of emergency responders. Also, for example, a pry bar can
be useful in prying open an end door on a passenger car that is lying
on its side after a derailment. Finally, since emergencies can happen
at night in isolated locations, a flashlight is an important tool for
guiding passengers safely off the train during an evacuation and
minimizing the likelihood of people tripping in the dark, unfamiliar
landscape. In addition, flashlights can prove invaluable in the event
that a train's primary and backup electrical
[[Page 24661]]
systems fail during the course of an emergency situation.
FRA recognizes that some railroads will have unique problems
associated with meeting the minimum requirements of this paragraph,
either due to certain atypical aspects of their operations, concerns
about theft or vandalism, or compliance with laws in the local
jurisdictions in which they currently operate. While FRA expects each
railroad to make every effort to incorporate these minimum requirements
into its emergency preparedness plan, FRA acknowledges that situations
may arise where requiring strict adherence to the requirements of this
paragraph may prevent or impede rail passenger transportation that is
in the public interest. As a result, FRA intends that the emergency
planning approach allow railroads to develop approaches to providing
safe rail passenger transportation that do not meet all of the on-board
emergency equipment standards, but compensate by providing alternatives
that afford equivalent levels of safety. Accordingly, any railroad that
believes it cannot or should not have to comply with the specific
requirements of paragraph (a)(6)(i), may submit a waiver request to FRA
in accordance with 49 CFR part 211. While submission of such a request
does not guarantee it will be granted, every waiver request will be
duly considered.
This paragraph does not require railroads to instruct their
passengers about either the location or use of the on-board emergency
equipment. As anticipated in the NPRM, FRA has crafted a final rule
that avoids micromanagement of the provisions of a railroad's emergency
preparedness plan. FRA recognizes that passengers might benefit from
receiving routine instructions about the location and operation of on-
board emergency equipment during each train trip, in the event that the
crewmembers are injured or otherwise unable to access the equipment
before the outside emergency responders arrive. However, FRA is also
aware from its consultations with the Working Group that pilferage of
on-board emergency equipment is a serious problem on many passenger
railroads, and that specifically focusing the attention of passengers
on where the equipment is located would only exacerbate the problem.
Clearly, the equipment can only help both crewmembers and passengers
during an emergency if it is available for proper use. Also, members of
the Working Group stressed that regular riders on intercity or commuter
operations are probably already familiar with the on-board emergency
equipment by virtue of their frequent presence on the train, and would
not benefit from any additional required information.
First-aid Kits on Intercity Passenger Trains
FRA has added as a new requirement to the final rule in paragraph
239.101(a)(6)(ii) concerning first-aid kits on intercity passenger
trains. In commenting on the NPRM, the UTU requested that all passenger
trains be equipped with a first-aid kit as an emergency tool, and urged
that the kit contain personal protection equipment for the trained
personnel who will be rendering first aid and CPR. At the very least,
the UTU stated that the kit should contain rubber gloves, and the
plastic gloves and the mouth shields for CPR. At the working group
meeting held in Washington, D.C. on August 28, 1997, many of the
members agreed that while commuter trains may operate in densely
populated areas that are close to emergency medical services, intercity
trains often operate through sparsely populated remote regions of the
United States that have limited road access for use by emergency
responders. Accordingly, to recognize the unique operational challenges
presented by the operation of intercity service, FRA believes that
crewmembers onboard each of these trains must have access to at least
one first-aid kit that contains the necessary supplies to clean and
dress a minor wound until professional responders can arrive at the
scene.
Since FRA does not intend for the first-aid kit to substitute for
appropriate medical attention from a physician or hospital, the final
rule limits the minimum required contents of the first-aid kit to only
gauze pads, bandages, wound cleaning agent, scissors, tweezers,
adhesive tape, and latex gloves. Since proper use of these items should
be self evident to both members of a train crew and the traveling
public, the final rule does not impose any specific requirement on
railroads to train their employees on the use of first-aid kits. Of
course, FRA does not intend to discourage railroads from voluntarily
incorporating such training into its emergency preparedness program.
In response to APTA's concern about theft, tampering, and vandalism
of on-board emergency equipment by both railroad passengers and other
members of the public, FRA has included language in the section-by-
section analysis of Sec. 239.11 to remind the general public that FRA
may impose a civil penalty upon any individual who willfully causes a
railroad to be in violation of any requirement of this part. Take for
example, a railroad that supplies each of its passenger cars with one
fire extinguisher and one pry bar, and provides each of its on-board
crewmembers with one flashlight. By equipping its train with all of
these items, the railroad would then be in full compliance with the
minimum requirements of Sec. 239.101(a)(6)(i). Accordingly, if,
unbeknownst to the railroad, a vandal pilfers a fire extinguisher from
one of the passenger cars while the train is in service FRA can impose
a civil penalty upon that vandal for causing the railroad to be in
violation of 49 CFR part 239.
For purposes of enforcement by FRA of Sec. 239.101(a)(6)(i) and
(ii), the phrase ``in service'' means a passenger car that is in
passenger service, i.e., the passenger car is carrying, or available to
carry, fare-paying passengers. A passenger car is not in service if it
is: being hauled for repairs and is not carrying passengers; in a
repair shop or on a repair track; on a storage track and is not
carrying passengers; or is moving without passengers in deadhead
status. FRA will impose a civil penalty for passenger equipment that is
missing on-Board emergency equipment or first-aid kits (in the case of
railroads providing intercity passenger train service) only if the
railroad had actual knowledge of the facts giving rise to the
violation, or a reasonable person acting in the circumstances and
exercising reasonable care would have had that knowledge. Accordingly,
since FRA is not employing a strict liability standard in enforcing
Sec. 239.101(a)(6), FRA would ordinarily not impose a civil penalty on
the railroad for the actions of a vandal. However, once the railroad
personally discovers or is otherwise notified that a piece of emergency
equipment or a first-aid kit is missing, FRA expects the railroad to
replace the missing item before the passenger car (or train, as
appropriate) is again placed in service on a subsequent calendar day.
In this regard, FRA will expect each railroad to ensure its compliance
with Sec. 239.101(a)(6) by performing whatever daily interior
mechanical inspection requirements that eventually result from the
rulemaking on passenger equipment safety standards. See proposed
Sec. 238.305 of this chapter. 62 FR 49772, 49773, and 49808.
On-board Emergency Lighting
The rulemaking on passenger equipment safety standards will address
the issue of permanent emergency lighting on passenger rail cars.
Whatever requirements eventually appear in the new set of regulations
at 49 CFR part 238, Sec. 239.101(a)(6)(iii) states that
[[Page 24662]]
auxiliary portable lighting must be available for assistance in an
emergency and should be routinely maintained and replaced as necessary.
Section 239.101(a)(6)(ii) has been renumbered in the final rule due to
addition of the requirement for first-aid kits on intercity passenger
trains. Further, the final rule specifies the duration times for both
brilliant illumination and continuous or intermittent illumination
after the onset of an emergency situation. The final rule does not
require that every rail passenger car have such lighting, but the train
itself must carry enough portable lighting to facilitate orderly
passenger evacuation.
In its comments on this issue at the NPRM stage of this proceeding,
METROLINK stated that FRA needed to define the clause ``auxiliary
portable lighting must be accessible,'' and questioned whether a
flashlight is an acceptable form of such lighting. FRA intends for a
handheld flashlight, such as a ``D'' cell flashlight, to be one of the
means of satisfying the auxiliary portable lighting requirement; the
final rule text has been expanded to include a handheld flashlight as
an example of an auxiliary portable lighting source. Further, FRA
considers auxiliary portable lighting as accessible when the lighting
sources are reasonably available for use by a train's crew and its
passengers within several minutes of the onset of the emergency. Since
every emergency situation is unique, FRA cannot expect a railroad to
determine in advance precise locations for locating the auxiliary
portable lighting so that every passenger and crewmember on the train
is always within immediate reach of the lighting. Accordingly, FRA
expects each railroad to act reasonably and make its best educated
guess, based upon its types of rail equipment and the nature of its
operations, on where to place auxiliary lighting so that it will likely
be accessible after the onset of an emergency.
Omniglow commented that chemiluminescence is the production of
light from a non-heat generating chemical reaction, and utilizes a
fluorescent molecule, a key intermediate, and a catalyst. Omniglow
stated that the key chemical components are separated by a specially
designed capsule contained within a larger, translucent plastic form,
and that when light is desired, the outer plastic container is
manipulated by the consumer, breaking the inner ampule, which allows
the ingredients to mix and produce light. After arguing that each rail
passenger car should be equipped with portable lighting capable of
fostering passenger evacuation, and noting that FRA will permit a
handled flashlight, such as a flashlight with a ``D'' cell, to be one
of the means of satisfying the auxiliary portable lighting requirement,
Omniglow stated that its 15'' high intensity lightstick would satisfy
this requirement. In this regard, Omniglow observed that its lightstick
is a high-intensity, non-explosive, non-hazardous, weatherproof light
source, with a four year shelf life.
FRA will not endorse the product of a specific company by
determining whether a railroad's use of that product will enable it to
comply with the emergency lighting requirements of this paragraph. The
only issue before FRA in evaluating whether a source of auxiliary
portable lighting satisfies a railroad's emergency planning need is
whether the lighting is both accessible during an emergency and
provides the requisite levels and time intervals of illumination, as
specified in paragraph 239.101(a)(6)(iii)(A) and (B). If a railroad can
satisfy the regulatory parameters of this paragraph by using Omniglow's
lightsticks, FRA will take no exception to the product's use.
Safety-Awareness Programs for Passengers
Finally, paragraph 239.101(a)(7) requires railroads to make
passengers aware of emergency procedures to follow before an emergency
situation develops, thus enabling them to respond properly during the
emergency. All passenger awareness efforts must emphasize that
passengers must follow the directions of the train crew during an
emergency. If passengers are on a disabled train, but are not injured
or facing imminent danger, they could safely await the arrival of
trained emergency responders with appropriate evacuation equipment.
However, in a serious emergency involving smoke or fire, passengers may
have to evacuate the train before emergency responders arrive. Thus,
operators of rail passenger service should take steps to increase
passenger awareness about basic evacuation procedures. Since passengers
could inadvertently jeopardize their own safety, it is appropriate for
them to take the initiative only if the crewmembers are incapacitated.
Passenger railroads must educate passengers about their role in
cooperating in emergencies by conspicuously and legibly posting
emergency instructions inside each passenger car, and by utilizing at
least one or more additional methods, including those designated in
this paragraph, to provide safety awareness information. The suggested
methods include distributing pamphlets, posting information in stations
on signs or on video monitors, and the review of procedures by
crewmembers via public address announcements. However, as set forth in
the preceding ``Discussion of Comments and Conclusions'' portion of
this document under the heading of item number 3, FRA also encourages
railroads to pursue alternative innovative means of conveying passenger
safety information. All brochures and signage must emphasize that
passengers must follow the directions of the train crew during an
emergency.
Although paragraph 239.101(a)(7)(ii)(A) permits a railroad to
fulfill the secondary passenger education requirement of the final rule
by making on-board announcements, FRA does not specify the frequency
with which these announcements should be made during a train run. FRA
believes that, with regard to intercity service, announcements are
appropriate after at least each major passenger pick-up point, and
commenters were invited in the NPRM to suggest ways of providing safety
information to all new riders without becoming repetitious to the
remaining passengers. Since no public comments were received on this
specific issue, FRA has elected to permit broad flexibility to
railroads in determining the appropriate frequency of on-board
announcements in the event that they select this secondary method to
disseminate information to passengers. In addition, while the final
rule requires railroads to utilize only one additional method to
distribute safety awareness information to the traveling public, FRA
encourages railroads to employ as many of the options as possible based
on operating and budgetary considerations.
Despite FRA's encouragement of the use of innovative techniques,
the information in the various sources of passenger safety awareness
information must be consistent in content and sufficient for first-time
users of the railroad, but not so overwhelming as to arouse undue
concern. All information must be printed or spoken in English, but
railroads serving large non-English speaking communities should
consider providing information in other languages as well. Materials
for persons who are visually impaired should be printed in large type
format and in braille. Finally, for persons with other types of
disabilities, appropriate passenger awareness materials should provide
information about evacuation policies and procedures and other
emergency actions, to the extent practicable.
[[Page 24663]]
Passenger awareness education should include information that may
permit passengers to accomplish the following:
Recognize and immediately report potential emergencies to
crewmembers;
Recognize hazards;
Recognize and know how and when to operate appropriate
emergency-related features and equipment, such as fire extinguishers,
train doors, and emergency exits; and
Recognize the potential special needs of fellow passengers
during an emergency, such as children, the elderly, and disabled
persons.
FRA had asked for public comment on whether the final rule should
include fixed timeframes in which railroads must provide their
passengers with additional methods of safety awareness information, and
urged commenters to supply scientific or sociological data and/or cost
estimates in support of their suggested time intervals. The general
recommendation of the commenters was that the final rule should leave
the features of the awareness programs to each railroad's discretion,
and that the key component of this requirement should be flexibility so
that railroads can utilize the right mix of passenger communication
techniques.
Based upon FRA's consideration of this issue, instead of specifying
fixed maximum time intervals between utilizing the additional forms of
program activity, FRA will allow the railroads to determine the optimal
frequency that best serves their passengers and their operations. FRA
expects that as the traveling public grows more accustomed to reading
and understanding the emergency instructions posted inside all
passenger cars on bulkhead signs, seatback decals, or seat cards the
need for redundant reminders (e.g., on-board announcements, ticket
envelope safety information, or public service announcements),
especially at frequent time intervals, will greatly diminish. Moreover,
depending on the additional method selected, different time intervals
may be appropriate. For example, while it may be suitable for a
railroad to distribute safety awareness information on a seat drop
every three months, the railroad may conclude that it should arrange
for public service announcements on a weekly basis.
Passenger Surveys
Paragraph 239.101(a)(7)(iii) of the NPRM would have required
railroads to perform surveys of their passengers in order to learn how
successful the passenger awareness program activities are in apprising
passengers of the procedures that must be followed during an emergency.
As set forth in the preceding ``Discussion of Comments and
Conclusions'' portion of this document under the heading of item number
3, the survey requirement and its accompanying recordkeeping burden
have been deleted from the final rule.
13. Passenger Train Emergency Simulations: Section 239.103
Section 239.103 recognizes that one of the most effective training
techniques is a simulation of specific emergency scenarios. Simulations
may vary from a small-scale drill or tabletop exercise for just one
train crew or control center operator, to a full-scale emergency
exercise involving several levels of railroad management that includes
the voluntary participation of fire departments, ambulance and
emergency medical service units, local police, sheriff and state police
organizations, local emergency auxiliary groups, and state and federal
regulatory agencies. While simulations are primarily designed to
demonstrate that railroad employees can quickly and efficiently manage
an emergency situation to ensure that emergency responders arrive
quickly, simulations are also intended to determine whether train crews
are properly trained to get passengers out of an imperiled train.
As FRA noted in the NPRM, the tabletop exercise is the simplest to
stage, as it involves only a meeting room and knowledgeable managers
and employees from the passenger train operator and the appropriate
responding organizations who voluntarily participate. For an imaginary
emergency, the actions to be taken by the appropriate personnel are
described; the time, equipment, and personnel necessary are estimated;
and potential problems are predicted. Conflicts of functional areas,
lack of equipment, procedural weaknesses or omissions, communication
difficulties, and confusing terminology are among the problems which
can be identified.
Passenger train operators can drill their train crews, other on-
board personnel, supervisors, and control center operators on emergency
operating procedures by posing a hypothetical emergency for employees
to resolve without dispatching emergency responders to the scene. A
drill could also involve the voluntary participation of personnel of a
particular response organization, e.g., a fire department. The same
type of problems as indicated for the tabletop exercise can be
identified, and the actual response capabilities of personnel in terms
of their knowledge of procedures and equipment can be evaluated.
FRA recognizes that full-scale emergency exercises require weeks of
carefully organized plans involving all participating organizations and
involve the expenditure of funds for both the training and the actual
full-scale exercise. Recording or videotaping the scenes and
conversations in key areas of the exercise itself can serve as valuable
classroom training for later years. A full-scale exercise is the total
application of the resources of the passenger railroad operator and the
voluntarily participating emergency response organizations. Such an
exercise can reveal the degree of familiarity of both the passenger
train system and emergency response organization personnel with train
operations, the physical layout of trains, right-of-way structures and
wayside facilities, emergency exits, and emergency equipment. Thus,
shortcomings in the emergency preparedness plan and specific response
protocols and procedures, as well as equipment, can be identified and
corrected.
In the NPRM, FRA questioned whether tabletop exercises should be
afforded the same weight in the final rule as full-scale simulations
for purposes of demonstrating the readiness of a railroad to
successfully react to a passenger train emergency. FRA also stated that
the final rule might require that each railroad conduct a minimum
number of its simulations as full-scale exercises. In this regard, FRA
was skeptical as to whether a tabletop exercise could equal the
comprehensiveness of a full-scale exercise and be a highly effective
means of determining whether a railroad is adequately prepared for the
likely variety of emergency scenarios that could occur on its lines, as
well as an important training tool for the train crews, control center
employees, and members of the emergency responder community who elect
to participate. In contemplating during the NPRM stage of this
proceeding whether to strengthen the emergency simulation requirement,
FRA was aware that realistic full-scale simulations that enable all
participants to practice using the on-board emergency equipment and
emergency exits (and encourage the emergency responders to become
personally familiar with passenger equipment and applicable railroad
operations) could prove invaluable in helping railroads and the
emergency responder community to manage real emergencies in ways that
tabletop exercises cannot. However, FRA was also aware that the
financial and logistical costs of
[[Page 24664]]
conducting full-scale simulations are undoubtedly higher, including the
need to close railroad tracks during the hours of the simulation,
opportunity costs for the railroads due to lost use of the passenger
equipment that is employed in the simulations, unavailability of
firefighting and rescue equipment for other emergencies while the
simulations are being conducted, and salary costs for many or all of
the simulation participants.
In order to best determine whether the final rule should require
full-scale emergency simulations in conjunction with tabletop
exercises, or perhaps in place of such exercises, FRA noted that it
would carefully weigh the expected costs and potential benefits of all
available options. FRA sought public comment on the perceived
effectiveness of both full-scale emergency simulations and tabletop
exercises, including a discussion of whether tabletop exercises can
achieve the equivalent level of emergency preparedness as full-scale
simulations. FRA was particularly interested in receiving comments from
the emergency responder community, especially from those members who
have participated in either emergency simulations or actual emergency
situations with railroads.
Based upon FRA's review of the public comments and our careful
consideration of the significant issues concerning emergency
simulations, FRA has modified Sec. 239.103 to require that all of the
simulations that a railroad must perform are done full scale. While FRA
still encourages railroads to supplement their emergency preparedness
planning by voluntarily conducting tabletop exercises in addition to
full-scale emergency simulations, FRA concludes that the safety
objectives of emergency-preparedness planning are best served by
railroads conducting at least a minimal number of comprehensive, full-
scale exercises. FRA believes that the combination of full-scale
simulations and the requirement contained in Sec. 239.101(a)(5) for
each railroad to develop a training program available to all on-line
emergency responders who could reasonably be expected to respond during
a passenger train emergency situation, enable railroads to best prepare
for the likely varieties of emergency scenarios that could occur on
their lines. A detailed discussion of the change in the simulation
requirement from the NPRM stage of this proceeding, as well as a
general discussion of the new requirement that railroads develop
training programs for emergency responders and their organizations, is
included in the preceding ``Discussion of Comments and Conclusions''
portion of this document under item number 2.
To achieve a maximum level of effectiveness, full-scale drills and
exercises should reinforce classroom training in emergency response and
passenger evacuation for the passenger train operator personnel and the
emergency response units who voluntarily participate. Procedures should
also be included to teach personnel to identify the emergency and
distinguish its unique demands, and to follow through with the
appropriate responses. In addition, the full-scale drills and exercises
should be planned to minimize hazards which could create an actual
emergency or cause injuries and to provide a mechanism for simultaneous
testing and reinforcement of emergency operating procedures for
specific types of emergencies and evacuation procedures. Moreover, the
full-scale drills and exercises should test the communication
capabilities and coordination of the passenger operator with the
emergency responders, as well as the operability and effectiveness of
emergency equipment.
Paragraph (b) has been modified to require each railroad that
provides commuter or other short-haul passenger train service to
conduct a full-scale emergency simulation at least once during every
two calendar years, provided that its operations include less than 150
route miles and less than 200 million passenger miles annually. For
larger commuter or other short-haul passenger operations, i.e., those
whose operations include at least 150 route miles or at least 200
million passenger miles annually, a full-scale simulation is required
at least once during each calendar year. For all intercity passenger
operations, regardless of the number of route miles or passenger miles,
a full-scale simulation is required at least once during each calendar
year. The final rules does not distinguish on the basis of major lines
for purposes of permitting railroads to select locations for their
emergency simulations. However, in crafting the final rule to limit the
number of required simulations, FRA recognizes that full-scale
simulations carry higher financial and logistical costs than do
tabletop exercises, and that railroads will reach a greater
representative sample of the emergency responder community by offering
training programs in accordance with Sec. 239.101(a)(5) to responders
who may lack opportunities to partake in actual simulations.
Since FRA has determined that a train crew on a commuter or other
short-haul operation will usually operate a train along the same line
for an extended period of time, and that emergency responder
organization personnel tend to be line-specific in terms of their
familiarity with a railroad's operations, it is crucial that each
affected railroad provide adequate opportunities along all of its major
lines for its employees and the responder community to obtain emergency
response information and training opportunities. While FRA anticipates
that each commuter or short-haul railroad will conduct full-scale
emergency simulations as frequently as possible on its entire system,
the final rule supplements the revised simulation requirement with the
comprehensive liaison requirements of Sec. 239.101(a)(5) so that each
railroad can best reach the most heavily traveled portions of its
system while conserving limited resources. In this regard, FRA
recognizes that while emergency responder organizations tend to be
densely located along the major lines of commuter and short-haul
railroad operations, it is not necessary for each railroad to run full-
scale simulations on all of its major lines according to a fixed
timetable, provided that the railroad maintains proper liaison
relationships with the affected responders.
In addition to the final rule setting forth the requirement for
each affected railroad to perform its full-scale emergency simulations
without regard to whether the railroad specifically includes all of its
major lines, FRA also does not expect the railroad to require all of
its employees who are trained under the emergency preparedness plan to
attend the simulations. Moreover, FRA does not expect each railroad to
invite all potential emergency responders to participate who are
located along the portion of the railroad subject to the simulation.
While FRA hopes that over the long term all railroad employees involved
in the operation of passenger train service, as well as all applicable
members of the emergency responder community, will have the opportunity
to participate in this valuable training exercise and enhance their
individual emergency preparedness skills, the simulations are also
intended to identify shortcomings in each railroad's emergency
preparedness plan and specific response protocols and procedures. The
railroad must discuss the identified weaknesses and overall
effectiveness of the emergency preparedness plan with the simulation
participants at the debriefing and critique session held under
Sec. 239.105, and then initiate any appropriate improvements and/or
amendments to the plan. As part of this
[[Page 24665]]
review process, the railroad is also expected to revise its employee
training program under Sec. 239.101(a)(2) and modify its liaison
relationships with members of the emergency responder community
established under Sec. 239.101(a)(5), based upon the identified
shortcomings of the railroad's emergency-preparedness planning.
Accordingly, while the final rule does not mandate that affected
railroads conduct numerous simulations along all of its major lines so
as to include every possible participant, FRA concludes that the
lessons learned from the mandatory debriefing and critique sessions and
the interactions that occur within the required liaison relationships
will have far reaching benefits.
In order to ensure that each affected railroad evaluates its
overall emergency response capabilities through careful selection of
the appropriate scenarios and locations on its lines for the emergency
simulations, the final rule requires each railroad to organize
simulations that will adequately test the performance of the railroad's
program over time under the variety of emergency situations that could
reasonably be expected to occur on the operation. For example, a
railroad operating in territory that includes underground tunnels will
need to conduct simulations to test the railroad's ability to ensure
employee and passenger safety during an emergency situation occurring
in this unique environment. Adequate lighting and sources of air in
tunnels and underwater tubes are critical for successful passenger
evacuation during emergencies. Further, emergency responders depend on
sufficient lighting for visibility during fire suppression and rescue
operations. If the railroad intends to evacuate passengers by using
cross passages and/or fire doors leading to the opposite track area, or
a separate center passageway between the adjacent track areas, the
simulation should include practice in the requisite evacuation
protocols and procedures.
In the case of a railroad providing intercity passenger service
involving a number of lines operated over long distances, such as the
coast-to-coast service provided by Amtrak, the need for the railroad to
carefully plan its simulations and concurrently examine the
effectiveness of its emergency preparedness plan under a variety of
scenarios becomes crucial. Many of Amtrak's lines run for hundreds of
miles through remote locations that could include risks from tunnel
mishaps, natural disasters (e.g., fires, floods, and earthquakes),
hazardous material leaks, and/or acts of terrorism. Further, because of
the length of time required to travel these lines, the same train will
be operated by more than one crew and may involve operation over the
line of a freight railroad. Since Amtrak's lines traverse numerous
populated communities throughout the United States, an emergency
situation could require the assistance of any number of potentially
thousands of emergency responders from these locations.
While FRA is not requiring operators of intercity service to
conduct additional emergency simulations along its lines in order to
reach a greater proportion of employees and members of the emergency
response community, we do expect such railroads to plan simulations
that sufficiently test the elements of their emergency preparedness
plan under the variety of circumstances that could occur in intercity
service. Although FRA recognizes that the length and diversity of
Amtrak's operations limit the potential benefits from resources spent
on conducting emergency simulations, the final rule requires Amtrak to
conduct a minimum of only one full-scale emergency simulation per
calendar year on any selected portion of its entire system, without
regard to whether the simulation takes place on a particular business
unit or other major organizational element. Although FRA considered
imposing more rigorous requirements in the final rule on Amtrak (and
other operators of intercity service) in order to ensure the requisite
level of emergency preparedness, FRA will instead rely upon the
thoroughness of the liaison activities and programs initiated by Amtrak
in accordance with Sec. 239.101(a)(5).
A detailed discussion of FRA's liaison-relationship expectations
for Amtrak is included in the preceding ``Section-by-Section Analysis''
portion of this document under Sec. 239.101(a)(5). That discussion
section outlines Amtrak's September 2, 1997 meeting with FRA, during
which the participants discussed the issue of developing a program for
distributing Amtrak's emergency preparedness plan to emergency service
providers located in areas through which Amtrak operates, and also
summarizes Amtrak's written submission to FRA dated October 27, 1997
addressing the same topic.
By considering each of the emergency scenarios that could possibly
occur on the different segments of the railroad (e.g., simulations of a
derailment at a remote location where emergency responder assistance is
not immediately available, an on-board fire inside a tunnel or on a
bridge, a derailment involving a freight train carrying a hazardous
materials spill, etc.), Amtrak can carefully design a program to
fulfill its overall emergency response needs. By combining optimal use
of the required minimum number of emergency simulations with a
comprehensive training program offered to emergency responders as part
of the liaison relationship, FRA concludes that a passenger railroad as
diverse as Amtrak (which operates coast-to-coast service under a wide
variety of operating conditions through the jurisdictions of numerous
emergency responders) can best achieve the emergency preparedness goals
of this rule throughout its entire system without expending a
disproportionate amount of its limited resources.
Since FRA has decided to scale back the simulation requirement to
involve only one meaningful full-scale simulation (performed either
annually or every two years depending on the size of the railroad), FRA
believes it is imperative that all railroads be required to study and
evaluate their emergency response capabilities in controlled settings
enabling them to carefully plan their full-scale emergency scenarios.
Accordingly, FRA has modified the final rule to prohibit a railroad
from counting either a tabletop exercise or the activation of its
emergency preparedness plan during an actual emergency situation toward
the simulation requirement.
However, since FRA recognizes that full-scale emergency exercises
require extensive planning and commitment of human resources, the final
rule permits a railroad to postpone a scheduled full-scale simulation
for up to 180 days beyond the applicable calendar year completion date
if the railroad has activated its emergency response plan after a major
emergency. The postponement period permits the railroad to properly
deal with the aftermath of an actual major emergency, defined in
paragraph (d) to cover an unexpected event related to passenger
operations that results in serious injury or death to one or more
persons combined with reportable property damage, without the added
stress or logistical burden of immediately conducting a simulation.
During this postponement, FRA expects the railroad to measure the
effectiveness of its emergency preparedness plan in conjunction with
the debriefing and critique session held pursuant to Sec. 239.105, and
then improve or amend its plan, or both, as appropriate, in accordance
with the information developed. Paragraph (c) also requires
[[Page 24666]]
the railroad to modify the rescheduled simulation, if appropriate,
based upon the lessons learned from its response to the actual
emergency.
Although paragraph (c) allows a limited exception under which a
railroad may postpone a scheduled full-scale simulation, the calendar
timetable remains the same. Take, for example, a commuter railroad
whose operations include 250 million passenger miles annually and has a
full-scale emergency simulation scheduled for December 1 of calendar
year 2001, but has a major emergency situation occur on November 15. In
accordance with the terms of Sec. 239.103(b)(2), the railroad is
required to conduct a minimum of one full-scale emergency simulation
during calendar year 2001 and another one during calendar year 2002.
Although, Sec. 239.103(c) permits the railroad the option of postponing
its full-scale simulation for calendar year 2001 from December 1, 2001
until June 29, 2002, the deadline for the full-scale simulation for
calendar year 2002 (assuming that the postpone exception of paragraph
(c) does not become an issue during calendar year 2002) remains at
December 31, 2002.
14. Debriefing and Critique: Section 239.105
Section 239.105 recognizes the value of conducting a formal
evaluation process after the occurrence of either an actual emergency
situation or a full-scale emergency simulation exercise to determine
what lessons can be learned. To increase the effectiveness of the
evaluation of an emergency simulation, railroad personnel should be
designated as evaluators to provide a perspective on how well the
emergency preparedness plan and procedures were carried out. Although
not required by the final rule, railroads are also encouraged to invite
outside emergency response organizations and other outside observers to
participate as evaluators. Evaluators should be given copies of the
railroad's emergency preparedness plan before the simulation is
conducted, and a preliminary meeting should be held to familiarize the
evaluators with the drill or exercise and assign functional areas of
concern for evaluation (e.g., communications, evacuation times).
Depending on the elaborateness of the simulation, evaluators may also
choose to use video cameras to record the sequence of events, actions
of personnel, and use of emergency equipment.
FRA did not propose a specific deadline in the NPRM by which each
railroad must conduct its debriefing and critique session after each
passenger train emergency situation or full-scale simulation. In
addition, FRA did not receive any public comments or recommendations
from members of the Working Group on an appropriate timeframe. In order
to encourage railroads to conduct the required debriefing and critique
sessions in a timely and reasonable period of time, thereby maximizing
the railroad's emergency-preparedness benefits from the experience, FRA
has revised the final rule to require that these sessions be held no
later than 60 days after the emergency situation or simulation takes
place. Of course, while FRA is providing a maximum timeframe of 60
days, FRA expects that, in the majority of cases, railroads will hold
these valuable sessions within only 30 days of the emergency situation
or simulation.
The purpose of a debriefing and critique session is to review with
railroad personnel the reports of evaluators, to present comments or
observations from other persons, and to assess the need for any
remedial action, either to correct deficiencies or to generally improve
the effectiveness of the emergency operations and procedures. In
addition, the debriefing and critique session provides an excellent
opportunity for the railroad to determine the effectiveness of its
passenger awareness program activities. For example, if an emergency
situation requires passengers to evacuate the train, the session should
determine if everyone onboard correctly followed the safety
instructions of the crewmembers and was aware of the emergency window
and door exit locations and their means of operation.
Persons responsible for conducting the sessions should be
instructed by the railroad to ask questions that will test emergency
preparedness procedures, assess training, and evaluate equipment. After
a simulation, these persons shall debrief all participants (including
simulated victims, if any) who can offer valuable insights and thus
help the railroad to revise its procedures. The debriefing session
should help to determine what emergency preparedness or response
procedures could not be used because of the special circumstances of
either the train or the passengers, and whether coordination between
the railroad and the emergency responders requires improvement.
The above method of conducting post-simulation debriefing and
critique sessions should also be used by railroads to evaluate
reactions to actual emergencies. Weaknesses in emergency preparedness
procedures and equipment and areas for improving training should be
identified, and the railroad shall amend its emergency preparedness
plan in accordance with Sec. 239.201. All persons involved shall be
debriefed.
Although FRA did not receive any substantive comments on the need
to conduct debriefing and critique sessions in order to accomplish the
stated goal of improving the effectiveness of emergency preparedness
plans, some commenters did request that FRA explicitly state in the
rule text the circumstances under which the requirement to conduct a
debriefing and critique session would be triggered. In this regard,
Amtrak commented that debriefing and critique sessions can be useful in
determining the effectiveness of emergency response procedures and in
developing improvements, but represent substantial undertakings by
railroad personnel (possibly including both an operating and host
railroad) and representatives of emergency response agencies. Amtrak
recommended that FRA not require full debriefing and critique sessions
after accidents where no threat to passengers on the train requiring a
possible evacuation or other similar major response existed. Where
there was such a threat, Amtrak suggested that FRA require a full
debriefing and critique session only after situations during which the
Incident Command System (ICS), or an equivalent multi-jurisdictional
emergency response system, was activated. Amtrak noted that the ICS was
originally developed by the National Fire Academy, and had been
endorsed by FEMA, EPA, and DOT. When such systems are activated, the
participation and resources of numerous local emergency response
agencies and the railroad must be coordinated; this coordination is the
most meaningful test of an emergency response plan's effectiveness.
Amtrak stated that for situations when the ICS was not activated, a
smaller-scale debriefing and critique session might be appropriate.
Amtrak acknowledged that the proposal did not require a debriefing and
critique session after each grade crossing or trespasser accident, but
requested that this exception be stated explicitly in the rule text.
Amtrak also requested that the rule text exclude a debriefing and
critique session when there is no risk to persons on the train that
would require the type of evacuation or other emergency response
contemplated by the regulations. Amtrak opined that there is little
benefit to performing post-accident evaluations when there was no risk
to persons on the train that required a prompt, coordinated response
involving both railroads and emergency
[[Page 24667]]
responders. Since Amtrak is involved in approximately one grade
crossing or trespasser incident every other day, a requirement to
conduct a debriefing and critique session after such occurrences would
be burdensome.
CALTRAIN commented that the debriefing requirement fails to
establish the threshold or norms that trigger a debriefing and critique
session. CALTRAIN argued that this decision should be made by railroad
management, with the exception of simulation drills and tabletop
exercises, which typically conclude with a debriefing and critique.
APTA commented that under the proposal, a commuter railroad must
conduct a debriefing after every passenger train emergency. APTA
suggested that FRA revise the rule to add a threshold before the
debriefing requirement is triggered, and recommended that the
requirement be triggered only when a major emergency affects five or
more passengers. As proposed, APTA argued that the provision would be
costly to comply with and annoy passengers, without any corresponding
benefit to rail safety. For example, a passenger heart attack would
trigger the debriefing requirement. In addition, APTA noted that the
opportunity for passenger fraud is much greater, since a passenger
being debriefed may attempt to collect money from the railroad for a
nonexistent injury.
Although METROLINK did not address the issue of establishing a
threshold level in the final rule that would trigger the debriefing and
critique requirement, it did comment before issuance of the NPRM that
if a commuter railroad did a tabletop exercise or simulation, it could
not follow the criteria of the proposal for a debriefing. During a
table exercise or simulation, a railroad does not usually notify the
emergency responders via the normal means of communication, does not
respond via normal emergency conditions (code three with lights and
sirens), and does not involve real passengers in the simulation. As
noted in FRA's preceding ``Discussion of Comments and Conclusions''
portion of this document (item number 2), as well as in the sectional
analysis of Sec. 239.103, the final rule prohibits a railroad from
counting a tabletop exercise toward the simulation requirement of the
final rule. Accordingly, METROLINK's concern is no longer relevant.
A substituted paragraph (b) has been added to Sec. 239.105 to set
forth the limited circumstances under which a debriefing and critique
session is not required after a railroad has activated its emergency
preparedness plan. Upon review of the comments, FRA recognizes the
potentially significant commitment of resources that such a session can
involve, and does not wish to impose this obligation on railroads
unless the evaluation process would focus on ways to improve the
effectiveness of the emergency preparedness plan in ways that would
benefit passengers on board the train. Since emergency situations
involving significant threats to the safety or health of train
passengers that require immediate attention may entail a variety of
unique fact patterns, the railroad employees and passengers involved in
the invaluable debriefing and critique exercise can help individuals
involved in future incidents benefit from a prompt and coordinated
response from the railroad and the emergency responder community.
However, because collisions of the type set forth in paragraph (b)
occur with greater regularity and involve more predictable fact
patterns (e.g., a motor vehicle at a gated crossing circumvents a
lowered gate arm and is hit by a passenger train, with no one on the
train suffering an injury), debriefing and critique sessions after
these incidents would quickly become repetitive in nature. Accordingly,
FRA would burden the railroads, yet achieve only a marginal benefit to
rail safety.
In accordance with the above change in the final rule, while the
term ``emergency or emergency situation'' is defined in Sec. 239.7 of
this part to include a collision with a person, including suicides, FRA
does expect a railroad to conduct a debriefing and critique session
after every grade crossing accident. Although the railroad would still
be expected to invoke its emergency preparedness plan in the event of
any grade crossing accident, the goal of this final rule is to ensure
that railroads effectively and efficiently manage passenger train
emergencies. Accordingly, FRA does not intend for the debriefing and
critique requirements of this section to apply when an emergency
situation involves only a motorist or pedestrian who has been injured
or killed, but does not affect the passengers onboard the train. Of
course, if a grade crossing accident leads to an evacuation of the
passenger train (e.g., a gasoline truck collides with the side of a
passenger train, and diesel fuel begins to leak from the locomotive,
creating the risk of a fire or an explosion), then a railroad must
conduct a post-accident debriefing and critique session. In addition, a
railroad cannot count its activation of the emergency preparedness plan
under these circumstances, or any other circumstances, for purposes of
satisfying the emergency simulation requirements of Sec. 239.103.
While a significant derailment with one or more injured passengers
or a fire on a passenger train would undoubtedly involve significant
threats to passenger safety, and therefore require a debriefing and
critique session, the proposed rule left open the question of what
other types of emergency situations would trigger the requirements of
this section. The NPRM sought public comment on what sorts of
situations, or ``significant threats,'' FRA should include in the final
rule under the definition of ``emergency'' or ``emergency situation''
set forth in Sec. 239.7. Although no comments were received, FRA has
revised the definition of ``emergency'' or ``emergency situation'' in
Sec. 239.7 to include: derailments; a fatality at a grade crossing; a
passenger or employee fatality, or an illness or injury to one or more
crewmembers or passengers requiring admission to a hospital; an
evacuation of a passenger train; and a security situation (e.g., a bomb
threat).
The final rule does not prescribe an FRA form or other substantive
questionnaire to be used at the debriefing and critique sessions, or
set forth specific questions to be asked after a full-scale simulation
or actual emergency. Paragraph (c) simply requires the railroad to
determine, by whatever means it selects, the effectiveness of its
emergency preparedness plan; specifically, the functional capabilities
of the on-board communications equipment, the timeliness of the
required emergency notifications, and the overall efficiency of the
emergency responders and the emergency egress of the passengers.
Although the requirements of paragraph (c) were included in the NPRM as
paragraph (b), the requirements remain essentially unchanged under its
new designation, except for some minor stylistic changes.
In the NPRM, FRA had invited comments on whether the final rule
should specify additional types of issues that must be addressed by
railroads at debriefing and critique sessions (in addition to the five
issues required to be addressed in paragraph (c)), or whether each
railroad should retain some flexibility to develop its own approach to
conducting these sessions. FRA did not receive any comments on this
issue. Upon further deliberation, FRA concludes that if a railroad
rigorously analyzes its emergency response scenario in accordance with
the five required subparagraphs to paragraph (c),
[[Page 24668]]
and corrects all relevant deficiencies identified by the debrief and
critique session, there is no need to impose any additional
requirements in the final rule. Nevertheless, still FRA encourages
railroads to voluntarily discuss any or all of the following questions
at their debriefing and critique sessions:
Did on-board personnel try to initiate a radio call
immediately?
How long did it take for on-board personnel to reach and
inform the control center of the emergency situation?
What was the method of notification to the control center?
Was the method an on-board radio or a wayside radio (if equipped)?
Was there adequate radio communication equipment? Was it
used properly? Did it work properly?
Did on-board personnel know the proper emergency telephone
number to call from the wayside telephone?
Did on-board personnel identify him/herself to the control
center by name and location?
Did on-board personnel report the number (approximate or
actual, as appropriate) and status of the passengers?
Did on-board personnel make audible, appropriate
announcements to passengers? How many minutes elapsed after the
simulation or emergency began before the first announcement was made?
Did on-board personnel properly operate the fire
extinguishers?
Did on-board personnel request deenergization of the third
rail or catenary power?
Did on-board personnel request the halting of train
movements?
How long did it take for the first emergency response unit
to arrive at the emergency scene?
How long did it take to completely evacuate the train or
right-of-way structure or wayside facility or extinguish a fire (real
or simulated), or both?
Of course, during the course of FRA's review of the implementation
and effectiveness of the debriefing and critique requirement in the
final rule, FRA will analyze whether this requirement, as written,
achieves the desired improvements in emergency preparedness. This
review will determine whether the experiences of railroad employees,
railroad passengers, and members of the emergency response community
indicate that FRA should require railroads to consider any or all of
the above questions during their debriefing and critique sessions.
Based on FRA's evaluation, the agency may initiate further rulemaking
activity or other appropriate action to ensure that this element of
emergency preparedness planning is sufficiently addressed.
In order to achieve the goals of this section, and to comply with
the debriefing and critique recordkeeping requirement of paragraph (d),
evaluators should be provided with critique sheets, to be collected and
used in the debriefing and critique sessions conducted by the
railroads. At a minimum, whatever documentation the railroad selects to
comply with paragraph (d) shall contain the date(s) and location(s) of
the simulation and the debriefing and critique session, and should
include the names of all participants at each session. Under the final
rule, the critique sheets, or equivalent records, must be maintained by
the railroad at its system and applicable division headquarters for two
calendar years after the end of the calendar year to which they apply,
and be made available for FRA and State inspection and copying during
normal business hours. Although the requirements of paragraph (d) were
set forth in the NPRM as paragraph (c), the requirements remain
essentially unchanged under its new designation. One notable
distinction is that while the NPRM was silent as to how long the
debriefing and critique records needed to be retained, the final rule
imposes a retention period of two years. A second distinction is that
while the NPRM was silent on what specific information the records of
the debriefing and critique sessions needed to include, the final rule
states that each record must include the: date and location of the
passenger train emergency situation or full-scale simulation; date and
location of the debriefing and critique session; and names of all
participants in the debriefing and critique session.
15. Emergency Exits: Section 239.107
In the course of normal passenger train operations, persons enter
and exit passenger cars at a station platform through doors on the side
of the train. However, when a disabled train cannot be moved to the
nearest station, alternative evacuation methods must be employed.
Emergency access to and egress from a passenger car may be achieved
through outside doors, end doors, and windows. In some emergencies,
such as when a fire is confined to a single passenger car, persons may
be moved through the end door(s) to an adjacent car. In other
emergencies, transfer of all the passengers from the disabled train may
be required.
Not all passenger cars have vestibule side doors on both ends, and
in some equipment, operation of these doors has required considerable
effort, including hand tools. If a power loss occurs, crewmembers may
be unable to open either or both of the car vestibule side doors from
the normal key control station in the car. If side-door emergency
controls permit opening of only one sliding door, it could prove
difficult to move certain individuals through it. Also, if the
vestibule side doors cannot be opened immediately from either the
inside or the outside, persons may panic and could be injured as others
attempt to leave the car.
As FRA noted in the NPRM stage of this proceeding, commuter
railroads have agreed to FRA's request that arrangements requiring hand
tools (coins and pencils) be retrofitted. The issue of relocation of
manual releases is being addressed in the rulemaking on Passenger
Equipment Safety Standards (FRA Docket No. PCSS-1), and the Passenger
Equipment Safety Standards Working Group will be evaluating other
improvements in door design and operation. Section 239.107(a) requires
that all doors intended by a railroad to be used during an emergency
situation be properly marked inside and outside, and that the railroad
post clear and understandable instructions for their use at the
designated locations. However, in contrast to the broad definition of
``passenger car'' contained in part 223 of this chapter, the text of
the final rule has been revised to reflect the fact that the marking
requirements for emergency door exits on passenger cars do not apply to
self-propelled passenger cars designed to carry baggage, mail, or
express.
Section 239.107(a)(1) requires that the emergency egress exits be
conspicuously and legibly marked on the inside of the car with
luminescent material or be properly lighted. FRA realizes that during
an emergency the main power supply to the passenger cars may become
inoperative and that crewmembers with portable flashlights may be
unavailable. Since lack of clear identification or lighting could make
it difficult for passengers to find the emergency door exits, the final
rule requires luminescent material on all emergency egress door exits
(or secondary auxiliary lighting near these exits) to assist and speed
passenger egress from the train during an emergency. The marking of the
emergency door exits must be conspicuous enough so that a reasonable
person, even while enduring the stress and potential panic of an
emergency evacuation, can determine where the closest and most
accessible emergency route out of the car is
[[Page 24669]]
located. In addition, while this section does not prescribe a
particular brand, type, or color of luminescent paint or material that
a railroad must use to identify an exit, FRA intends each railroad to
select a material durable enough to withstand the daily effects of
passenger traffic, such as the contact that occurs as passengers enter
and leave the cars.
Section 239.107(a)(2) requires that the emergency door exits
intended for emergency access by emergency responders for extrication
of passengers be marked with retroreflective material, so that the
emergency responders can easily distinguish them from the nonaccessible
doors simply by shining their flashlights or other portable lighting on
the marking or symbol selected by the railroad. Again, while this
section does not prescribe that a railroad use a particular brand,
type, or color of retroreflective material to identify an access
location, FRA intends each railroad to select a material durable enough
to withstand the daily effects of weather and passenger contact, and
capable of resisting, to the extent possible, the effects of heat and
fire. If all doors are equally operable from the exterior, no
designation would be useful, nor would any be required. In the separate
rulemaking on passenger equipment safety standards, FRA is addressing
appropriate requirements for periodic maintenance and replacement of
the emergency door exit markings.
The final rule requires railroads to post clear and understandable
instructions at designated locations describing how to operate the
emergency door exits. This section does not mandate that railroads use
specific words or phrases to guide the passengers and emergency
responders. Instead, each railroad should evaluate the operational
characteristics of its emergency door exits, and select key words or
diagrams that adequately inform the individuals who must use them.
While railroads are encouraged to post comprehensive instructions, FRA
also realizes that during an emergency situation every additional
moment devoted to reading and understanding access or egress
information places lives at risk. In addition, FRA would already expect
passengers and emergency responders to be familiar with the location
and operation of the railroad's emergency door exits as a result of
emergency responder liaison activities and passenger awareness programs
conducted in accordance with proposed Sec. 239.101(a)(5) and (a)(7).
In deciding to require that railroads must mark all door exits
intended for emergency access and post access instructions, FRA
carefully considered concerns expressed by members of the Working Group
that this requirement would enable vandals to gain easy or casual entry
into passenger cars left overnight in rail yards, particularly
adolescents who might otherwise not know how to operate specialized
door mechanisms. In addition to FRA's desire to avoid unnecessary
expenses to railroads for repairing vandalized or damaged rail
equipment, FRA does not wish to see on-board emergency equipment
disappear from unattended trains due to the acts of individuals who
learned how to gain illegal access to the equipment courtesy of a
Federal regulation. FRA also recognizes that under Sec. 239.101(a)(5),
railroads are required to develop training programs available to all
on-line emergency responders who could reasonably be expected to
respond to an emergency situation, with an emphasis upon access to
railroad equipment, location of railroad facilities, and communications
interface, and that such comprehensive training information may lessen
the need for railroads to place markings on every emergency door or
post detailed access instructions. However, FRA realizes that not every
potential emergency responder will choose to participate in the
training program, and that not everyone who participated will recall
all of the imparted information on access to the equipment while in the
midst of responding to a major railroad accident or incident. FRA is
confident that railroads will find ways of protecting their unattended
equipment through appropriate security measures, and the agency will
not risk loss of human life from delays in emergency responder rescue
efforts merely because of the possibility that financial losses from
vandalism will increase. Accordingly, the comprehensive marking and
operating instruction requirements proposed in the NPRM remain
unchanged.
Paragraph (b) requires each railroad operating passenger train
service to properly consider the nature and characteristics of its
operations and passenger equipment to plan for routine and scheduled
inspection, maintenance, and repair of all windows and door exits
intended for either emergency egress or rescue access by emergency
responders. In the case of emergency window exits, the inspection,
maintenance, and repair activities must be performed consistent with
the requirements of part 223 of this chapter. While the final rule does
not require railroads to perform these tasks in accordance with a
specific timetable or methodology, except with respect to the periodic
sampling requirement for emergency window exits discussed below, FRA
expects each railroad to develop and implement procedures for achieving
the goals of this paragraph. Visual inspections must be performed
periodically to verify that no emergency exit has a broken release
mechanism or other overt sign that would render it unable to function
in an emergency. Maintenance, including lubrication or scheduled
replacement of depreciated parts or mechanisms, must be performed in
accordance with standard industry practice and/or manufacturer
recommendations. All emergency exits that are found during the course
of an inspection or maintenance cycle to be broken, disabled, or
otherwise incapable of performing their intended safety function must
be repaired before the railroad may return the car to passenger
service.
For purposes of enforcement by FRA of Sec. 239.107, the phrase ``in
service'' means a passenger car that is in passenger service, i.e., the
passenger car is carrying, or available to carry, fare-paying
passengers. A passenger car is not in service if it is: being hauled
for repairs and is not carrying passengers; in a repair shop or on a
repair track; on a storage track and is not carrying passengers; or has
been delivered in interchange but has not been accepted by the
receiving railroad. FRA will impose a civil penalty for passenger
equipment that is missing an emergency-exit marking or has an
inoperable emergency exit only if the railroad had actual knowledge of
the facts giving rise to the violation, or a reasonable person acting
in the circumstances and exercising reasonable care would have had that
knowledge. Accordingly, since FRA is not employing a strict liability
standard in enforcing Sec. 239.107, FRA would ordinarily not impose a
civil penalty on the railroad for the actions of a vandal. However,
once the railroad personally discovers or is otherwise notified that a
marking is missing or an emergency exit is inoperative, FRA expects the
railroad to replace the missing marking or repair the inoperative exit
before the passenger car (or train, as appropriate) is again placed in
service on a subsequent calendar day. In this regard, FRA will expect
each railroad to ensure its compliance with Sec. 239.107(b) by
performing whatever daily exterior and interior mechanical inspection
requirements that eventually result from the rulemaking on passenger
equipment safety standards. See proposed Secs. 238.303 and 238.305 of
this chapter.
Carrying forward requirements currently contained in FRA's
Emergency
[[Page 24670]]
Order No. 20, the final rule also requires each railroad to
periodically test a representative sample of emergency window exits on
its passenger cars to verify their proper operation. The sampling of
these emergency window exits must be conducted in conformity with
either of two commonly recognized alternate methods, which will provide
a degree of uniformity industry wide. Both methods require sampling
meeting a 95-percent confidence level that all emergency window exits
operate properly (i.e., the methods do not accept a defect rate of 5
percent). Rather than require railroads to test all window exits on a
specific type or series of car if one car has a defective window exit,
the final rule permits the railroads to use commonly accepted sampling
techniques to determine how many additional windows to test. In
general, these principles require that the greater the percentage of
window exits that a railroad finds defective, the greater the
percentage of windows that the railroad will have to test.
Specifically, sampling must be conducted to meet a 95-percent
confidence level that no defective units remain in the universe and be
in accord with either Military Standard MIL-STD-105(D) Sampling for
Attributes or American National Standards Institute ANSI-ASQC Z1.4-1993
Sampling Procedures for Inspections by Attributes. Defective units must
be repaired before the passenger car is returned to service.
The final specifies that a railroad must test a representative
sample of emergency window exits on its cars at least once during every
180 days to verify their proper operation. Although commenters were
encouraged to address this issue by indicating whether the sampling
should occur on an annual basis, or on a less frequent basis, no
comments were received. Accordingly, the level of frequency remains
unchanged from the NPRM stage of this proceeding.
The inspection, maintenance, and repair records concerning
emergency window and door exits must be retained at the system
headquarters for the railroad and at the division headquarters for each
division where the inspections, maintenance, or repairs are performed
(i.e., the records availability must be division specific). The records
must be retained for two calendar years after the end of the year to
which they relate. The records can consist of multiple documents, and
may contain separate sections covering inspection, maintenance, and
repair or separate sections covering different types of passenger
equipment. Additionally, railroads must make these inspection,
maintenance, and repair records available to duly authorized
representatives of FRA and States participating under part 212 of this
chapter for inspection and copying (e.g., photocopying or handwritten
notetaking) during normal business hours.
METROLINK commented that in order to avoid the unnecessary burden
of maintaining duplicate records, the rule should require railroads to
store all of the maintenance records for the emergency window and door
exits at the site of the inspections. In METROLINK's case, that site
would be the applicable division headquarters, which is no more than 15
miles from its system headquarters. METROLINK also noted that paragraph
239.107(c) does not indicate for how long the inspection records must
be retained, and recommended that since the current rule calls for
major service inspections to be retained for 180 days (or until the
next inspection is performed) the final rule should establish a similar
timeframe.
In response to METROLINK's comment concerning the lack of a
timeframe for the retention of inspection records, FRA has revised the
final rule to require a two-year retention period for each railroad's
records of inspection, maintenance, and repair of its emergency window
and door exits. Despite METROLINK's preference for a shorter timeframe,
FRA concludes that two years is necessary to allow FRA an adequate
opportunity to perform meaning compliance audits and determine if a
railroad's overall pattern of compliance with this section is
sufficient. In addition, while FRA recognizes the additional expense of
retaining copies of inspection records at both the system and
divisional levels, this dual approach enables FRA's regional inspection
forces to perform division-specific inspections, while also permitting
FRA to study the compliance of a railroad's entire system. However, as
METROLINK illustrates by describing its own operational
characteristics, at least one member of the railroad population has
only one central maintenance facility which solely performs all of the
inspection, maintenance, and repair of its entire fleet of passenger
cars. Under this limited scenario, FRA agrees that it would be
redundant to require a railroad to maintain duplicate sets of records
at both its system and divisional offices. Accordingly, the single
central maintenance facility would be an acceptable repository for all
of the inspection, maintenance, and repair records for such a railroad.
FRA has added paragraph (d) to the final rule to authorize
railroads to retain their records of inspection, maintenance, and
repair of emergency window and door exits by electronic recordkeeping,
subject to the conditions set forth in this provision. This provision
provides an alternative for railroads retaining certain information, as
required in paragraph (c). FRA realizes that requiring railroads to
retain the information in paper form would impose additional
administrative and storage costs, and that computer storage of these
documents would also enable railroads to immediately update any
amendments to their operational testing programs.
Each participating railroad must have the essential components of a
computer system, i.e., a desktop computer and either a facsimile
machine or a printer connected to retrieve and produce records for
immediate review. The material retrieved in hard copy form must contain
relevant information organized in usable format to render the data
completely understandable. The documents must be made available for FRA
or participating State inspectors during normal business hours, which
FRA interprets as the times and days of the week when railroads conduct
their regular business transactions. Nevertheless, FRA reserves the
right to review and examine the documents prepared in accordance with
the Passenger Train Emergency Preparedness regulations at any
reasonable time if situations warrant.
Additionally, each railroad must provide adequate security measures
to limit employee access to its electronic data processing system and
must prescribe who can create, modify, or delete data from the
database. Although FRA does not identify the management job position
capable of instituting changes in the database, each railroad must
indicate the source authorized to make such changes. Each railroad must
also designate who will be authorized to authenticate the hard copies
produced from the electronic format. In short, each railroad electing
to retain its records electronically must ensure the integrity of the
information and prevent possible tampering with data, enabling FRA to
fully execute its enforcement responsibilities.
16. Emergency Preparedness Plan; Filing and Approval: Section 239.201
Section 239.201 specifies the process for review and approval by
FRA of each passenger railroad's jointly-adopted emergency preparedness
plan. The intent of the review and approval is to be constructive,
rather than restrictive.
[[Page 24671]]
It is anticipated that the passenger railroads, in conjunction with the
railroads hosting these operations (when applicable), will develop and
implement varied plans based upon the special circumstances involving
their individual operations. Under the final rule, FRA requires that
each affected railroad summarize its internal discussions and
deliberative processes to explain how the railroad's unique and
individual operating characteristics determined how each issue for the
passenger train operation was finally addressed in the emergency
preparedness plan. Specifically, FRA expects each railroad to
participate, as appropriate, in preparing a review of the analysis that
led to each element of the emergency preparedness plan that the
passenger operation submits to FRA for approval, including a
consideration of the expected monetary costs and anticipated safety
benefits associated with each section of the plan.
In its comments, METROLINK stated that the term ``analysis'' in the
phrase ``shall include a summary of the railroad's analysis supporting
each plan element and describing how each condition on the railroad's
property is addressed in the plan'' is vague and lacking in direction.
METROLINK then asked whether FRA expects to receive a cost benefit
analysis, systems approach, or safety value analysis. In addition,
METROLINK questioned whether the term ``condition on the railroad's
property'' concerns elements of the plan such as earthquakes, wind, and
power outages.
In response to METROLINK's comments, FRA notes that the word
``analysis'' means that FRA expects each railroad to identify all
vulnerabilities that exist on its property in terms of potential risks
to rail safety and emergency preparedness planning. In the context of
identifying the known risks, each railroad should undertake a systems
approach in order to explain how it will mitigate the level of each
risk to an acceptable level. FRA does not consider earthquakes, wind,
or power outages, in and of themselves, to be ``conditions on the
railroad's property.'' However, if a railroad requires electrical power
to operate, and its operations run across a trestle without walkways,
then the emergency preparedness plan must address how the railroad will
mitigate the risk connected with one of its trains becoming stranded on
a trestle during a power outage.
FRA will conduct a review of each plan so that there can be an open
discussion of the plan's provisions from which all concerned parties
can benefit. However, in order to ensure compliance with minimum plan
requirements FRA will first conduct a preliminary review of each plan
in accordance with revised paragraph (b)(1), and then conduct a
comprehensive and detailed review of each plan in accordance with
revised paragraph (b)(2) prior to final approval and implementation. A
detailed discussion of the issue of preliminary and final review of
emergency preparedness plans is included in the preceding ``Discussion
of Comments and Conclusions'' portion of this document under item
number 4.
FRA expects to involve members of the Passenger Train Emergency
Preparedness Working Group in developing benchmark criteria for plan
approvals to simplify plan development and approval. It is anticipated
that this criteria will address program elements that include the
following:
Specific course content for training programs of on-board
personnel, control center personnel, and other key employees;
Minimum requirements for full-scale emergency exercises,
including frequency and content of drills with emergency responders and
simulations to determine rapidity of emergency evacuations under
varying scenarios;
Specific means for providing emergency safety information
to passengers, similar to on-board briefings provided in commercial
aviation;
Detailed requirements for tunnel safety, including
lighting and equipment; and
Additional attention to emergency equipment, by
recommending types and numbers of various kinds of equipment that may
be useful under varying operating scenarios.
FRA will also review all plan amendments prior to their going into
effect. FRA had requested comments on whether there are any categories
of plan amendments that should be permitted to go into effect
immediately, prior to review and approval, because they constitute
improvements for which implementation delay should be avoided. Since
FRA did not receive any comments on this issue, the final rule requires
that all proposed plan amendments be submitted for review before the
railroad may revise its emergency preparedness plan. Within 45 days of
receipt of a railroad's proposed amendment to its plan, FRA will review
the proposal and notify the railroad's primary contact person of the
results of the review and identify any deficiencies found. If FRA
discovers a deficiency, the railroad must correct it before the
amendment may go into effect.
All persons, such as contractors, who perform any action on behalf
of a railroad are required to conform to the emergency preparedness
plans in effect on the railroads upon which they are working. Persons
whose employees are working under a railroad's approved emergency
preparedness plan need not submit a separate plan to FRA for review and
approval. For example, if a passenger railroad hires an outside
independent contractor to conduct an emergency simulation pursuant to
Sec. 239.103, the contractor must perform this task in accordance with
the passenger operation's plan. However, if a freight railroad train
crew operates a passenger train for a commuter rail authority, the
freight railroad must coordinate the applicable portions of the
emergency preparedness plan with the commuter rail authority. While an
assignment of responsibility for compliance made under
Sec. 239.101(a)(3) must be clearly stated in the plan, the assignor
shall not be relieved of responsibility for compliance with this part.
Although the final rule has been revised to state that the final
review process will include ongoing dialogues with rail management and
labor representatives, the rule does not specifically require the
direct involvement of railroad employees or their representatives in
the process of designing the emergency preparedness plan. In this
regard, FRA notes that the responsibility for having a plan that
conforms with this rule lies with the employer. However, it should be
noted that the success of an emergency preparedness plan requires the
willing cooperation of all persons whose duties or personal safety are
affected by the plan.
17. Retention of Emergency Preparedness Plan: Section 239.203
Although FRA did not receive any comments, this section has been
modified to reflect the new requirement in Sec. 239.201 that each
passenger railroad jointly adopt a single emergency preparedness plan
with all railroads hosting its passenger service (if applicable). The
single emergency preparedness plan prepared by the passenger railroad
and all of its applicable host railroads, as well as all subsequent
amendments to the single plan, must be retained at the system
headquarters for each railroad and at the division headquarters for
each division on each affected railroad where the plan is in effect
(i.e., the records availability must be division specific). The
emergency preparedness plan may consist of multiple documents or
[[Page 24672]]
booklets and may contain separate sections covering the varying job
functions and plan responsibilities of on-board and control center
personnel. Additionally, railroads must make the emergency preparedness
plan records available to duly authorized FRA representatives for
inspection and copying (e.g., photocopying or handwritten notetaking)
during normal business hours.
18. Operational (Efficiency) Tests: Section 239.301
Section 239.301 contains the requirement that railroads monitor the
routine performance of employees who have individual responsibilities
under the emergency preparedness plan to verify that the employee can
perform the duties required under the plan in a safe and effective
manner. It permits the railroad to test proficiency by requiring the
employee to complete a written or oral examination, an interactive
training program using a computer, a practical demonstration of
understanding and ability, or an appropriate combination of these in
accordance with this section. This testing may also involve check rides
and control center visits, along with unannounced, covert observation
of the employees.
This section requires a railroad to keep a record of the date,
time, place, and result of each operational (efficiency) test that was
performed in accordance with its emergency preparedness plan. Each
record must identify the railroad officer administering the test of
each employee. Accordingly, by identifying the specific data points
that each record must provide, this section will promote the
examination of relevant information from captured data sources,
enabling FRA to better determine the effectiveness of a railroad's
emergency preparedness plan. A written or electronic records of each
operational (efficiency) test must be kept for one calendar year after
the end of the year in which the test was conducted, and must be made
available for inspection and copying by FRA and participating States
during normal business hours.
FRA received only one comment concerning the requirements of this
section. APTA expressed a general concern that a commuter railroad
operating over a host railroad may not be able to convince the freight
railroad's dispatcher to provide track time for efficiency tests,
especially on busy freight corridors. APTA offered to work with FRA to
help in the implementation of this section.
FRA recognizes both the operational complexities and logistical
realities of commuter railroads sharing trackage rights with freight
railroads on the general railroad system of transportation. While FRA
remains confident that dispatchers on host railroads will fully
cooperate with commuter operations and provide them with safe and
adequate opportunities to perform on-the-job verifications to evaluate
individual employee performance under the emergency preparedness plan,
the rule does permit a railroad to utilize formal examinations,
interactive computer programs, and practical demonstrations to measure
the success of its training program. Nevertheless, FRA will intervene
as appropriate to ensure the successful and effective implementation of
each railroad's emergency preparedness plan.
19. Electronic Recordkeeping: Section 239.303
FRA did not receive any comments on this section, which is adopted
as proposed. Section 239.303 authorizes railroads to retain their
operational (efficiency) test records by electronic recordkeeping,
subject to the conditions set forth in this provision. This provision
provides an alternative for railroads retaining certain information, as
required in Sec. 239.301. FRA realizes that requiring railroads to
retain the information in paper form would impose additional
administrative and storage costs, and that computer storage of these
documents would also enable railroads to immediately update any
amendments to their operational testing programs.
Each participating railroad must have the essential components of a
computer system, i.e., a desktop computer and either a facsimile
machine or a printer connected to retrieve and produce records for
immediate review. The material retrieved in hard copy form must contain
relevant information organized in usable format to render the data
completely understandable. The documents must be made available for FRA
or participating State inspectors during normal business hours, which
FRA interprets as the times and days of the week when railroads conduct
their regular business transactions. Nevertheless, FRA reserves the
right to review and examine the documents prepared in accordance with
the Passenger Train Emergency Preparedness regulations at any
reasonable time if situations warrant.
Additionally, each railroad must provide adequate security measures
to limit employee access to its electronic data processing system and
must prescribe who can create, modify, or delete data from the
database. Although FRA does not identify the management job position
capable of instituting changes in the database, each railroad must
indicate the source authorized to make such changes. Each railroad must
also designate who will be authorized to authenticate the hard copies
produced from the electronic format. In short, each railroad electing
to retain its records electronically must ensure the integrity of the
information and prevent possible tampering with data, enabling FRA to
fully execute its enforcement responsibilities.
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule has been evaluated in accordance with existing
policies and procedures. Due to considerable public interest in the
subject matter of the rule, the rule is considered to be significant
under both Executive Order 12866 and DOT policies and procedures (44 FR
11034; February 26, 1979). FRA has prepared and placed in the docket a
regulatory analysis addressing the economic impact of the rule. It may
be inspected and photocopied at the Office of Chief Counsel, FRA,
Seventh Floor, 1120 Vermont Avenue, N.W., in Washington, D.C.
Photocopies may also be obtained by submitting a written request to the
FRA Docket Clerk at Office of Chief Counsel, Federal Railroad
Administration, Mail Stop 10, 400 Seventh Street, S.W., Washington,
D.C. 20590.
As part of the benefit-cost analysis, FRA has assessed quantitative
measurements of costs and benefits expected from the adoption of the
rule. The Net Present Value (NPV) of the total 20-year costs which the
industry is expected to incur is $6.3 million. Following is a breakdown
of the costs by requirement.
----------------------------------------------------------------------------------------------------------------
Section Requirement Cost
----------------------------------------------------------------------------------------------------------------
239.101,201,203............................... Emergency Prep. Plan................... $199,085
Control Center Notification............ 969-1,569
Training:
[[Page 24673]]
--Onboard Personnel Training........ 1,400,684
--Control Center Personnel Training. 134,014
--Initial Program Development....... 51,822
Joint Operations....................... 22,954
Parallel Operations.................... 1,526-1,865
Emergency Responder Liaison:
--Training Program.................. 423,096
--Provide EPP--Commuter............. 11,646
--Provide EPP--Amtrak............... 403,365
Onboard Emergency Equipment:
--One Fire Extinguisher/Car......... 147,801
--One Pry Bar/Car................... 66,571
--Instruction on Pry Bar Use........ 279,576
Passenger Safety Awareness:
--Permanent Onboard Posting......... 64,597
239.103, 105.................................. Pass Train Emergency Simulations....... 231,172
239.107....................................... Emergency Exits:
--Marking--Interior................. 447,571
--Marking--Exterior................. 1,336,679
--Inspection/Record keep............ 397,091
239.301....................................... Operational Efficiency Tests........... 683,909
------------------------
Total..................................... 6,304,128-6,305,067
----------------------------------------------------------------------------------------------------------------
The history of passenger train accidents shows that the potential
for injury and loss of life arising from a single incident can be
significant. In the last 11 years there have been seven passenger train
accidents which resulted in a significant loss of life. FRA believes
that the value (as a result of these requirements) of averting three or
more fatalities, or an economic-equivalent number of permanently
disabling injuries among rail passengers over the next twenty years
will exceed the cost to rail carriers of implementing these rules.
While FRA cannot determine whether the monetary value of the
benefits to railroads affected by this rule will exceed the estimated
costs of implementing the rule, the agency believes it is reasonable to
expect that the economic benefit from saving at least three lives as a
result of implementing these standards will exceed the costs of
implementing this rule.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires an assessment of the impacts of proposed rules on small
entities. FRA has conducted a regulatory flexibility assessment of this
final rule's impact on small entities, and the assessment has been
placed in the public docket for this rulemaking; FRA certifies that the
final rule will not have a substantial impact on a significant number
of small entities. This final rule affects intercity and commuter
passenger railroads, as well as rapid transit operations that operate
over the general railroad system of transportation. Commuter railroads
and rapid transit systems are part of larger transit organizations that
receive Federal funds. The American Public Transit Association (APTA)
represents the interests of commuter railroads and rapid transit
systems in regulatory matters. Further, the final standards were
developed by FRA in consultation with a Working Group that included
representatives from Amtrak, individual commuter railroads, and APTA.
Entities impacted by the final rule are governmental jurisdictions
or transit authorities, none of which are small for purposes of the
United States Small Business Administration (i.e., no entity operates
in a locality with a population of under 50,000 people). No small
commuter railroads or rapid transit systems will be affected
disproportionately. The level of costs incurred by each organization
should vary in proportion to the organization's size. For instance,
railroads with fewer employees and fewer passenger cars will have lower
costs associated with both employee efficiency testing and emergency
exit inspections.
Small passenger rail operations such as tourist, scenic, excursion,
and historic railroads are excepted from the final rule. The final rule
does not affect small entities.
A joint FRA/industry working group formed by the RSAC is currently
developing recommendations regarding the applicability of FRA
regulations, including this one, to tourist, scenic, historic, and
excursion railroads. After appropriate consultation with the excursion
railroad associations takes place, emergency preparedness requirements
for these operations may be proposed by FRA that are different from
those affecting other types of passenger train operations. These
requirements may be more or less onerous, or simply different in
detail, depending in part on the information gathered during FRA's
consultation process.
Paperwork Reduction Act
The rule contains information collection requirements. FRA has
submitted these information collection requirements to the Office of
Management and Budget (OMB) for review and approval in accordance with
the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.). FRA
has endeavored to keep the burden associated with the final rule as
simple and minimal as possible. FRA is not authorized to impose a
penalty on persons for violating information collection requirements
which do not display a current OMB control number. The sections that
contain the new and/or revised information collection requirements and
the estimated time to fulfill each requirement are as follows:
[[Page 24674]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual Average time per Total annual burden Total annual
CFR section Respondent universe responses response hours burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
223.9d/239.107:
A. Emergency egress............. 18 RRs.................... 1,950 new decals..... 4 minutes........... 664 hours............ $19,920
4,575 replace decals. 7 minutes...........
1,300 new decals..... 4 minutes...........
B. Emergency access............. 18 RRs.................... 6,320 replace decals. 7 minutes........... 824 hours............ 24,720
239.107(b)...................... 18 RRs.................... 3,600 tests.......... 20 minutes (18 1,200 hours.......... 36,000
minutes to perform
test and 2 minutes
for recordkeeping).
239.101/239.201................. 18 RRs.................... 18 plans............. 158 hours........... 2,844 hours.......... 115,416
18 RRs.................... 18 amendments........ 1.6 hours........... 29 hours............. 986
239.101(1)(I)....................... 18 RRs.................... N/A.................. Usual and customary N/A.................. N/A
procedure--No new
paperwork.
239.101(1)(ii)...................... 18 RRs.................... N/A.................. Usual and customary N/A.................. N/A
procedure--No new
paperwork.
239.101(1)(ii)...................... 5 RRs..................... 5 updates of records. 1 hour.............. 5 hours.............. 140
239.101(a)(3)....................... 29 RR Pairs............... 29 negotiations...... 16 hours............ 464 hours............ 22,040
239.101(a)(7)(ii)................... 5 RRs..................... 1,300 passenger cars. 5 minutes per 108 hours............ 3,240
bulkhead card.
5 safety messages.... 1 hour per RR to 5 hours.............. 170
develop safety
message.
239.105............................. 18 RRs.................... 5 sessions........... 27 hours per session 33 hours............. 924
239.301/239.303..................... 18 RRs.................... 11,075 tests......... 8 minutes per test.. 135 hours............ 6,255
239.101(a)(5)....................... 17 RRs.................... 18 responses to 6 hours per mailing. 102 hours............ 9,588
distribute info to
emergency responders.
1 RR...................... ..................... 100 hours per 180 hours............ ..................
mailing.
1 RR (Amtrak)............. 1 response to 100 hours........... 100 hours............ 2,800
distribute info to
emergency responders.
16 RRs.................... 16 updates of 30 minutes per 8 hours.............. 224
emergency responder updated.
records.
1 RR (Amtrak)............. 1 update of emergency 5 hours hours per 5 hours.............. 140
responder records. mailing.
--------------------------------------------------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
information collection request submitted to OMB, please contact Ms.
Brenda Moscoso at 202-632-3335. The final rule responds to public
comments on the information collection requirements contained in the
NPRM. The requirements in this final rule have been approved by OMB
under OMB control number 2130-0545.
Environmental Impact
FRA has evaluated this final rule in accordance with its procedures
for ensuring full consideration of the environmental impact of FRA
actions, as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and DOT Order 5610.1c. This final rule meets the criteria that
establish this as a non-major action for environmental purposes.
Federalism Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612, and it has been
determined that the final rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment. The
fundamental policy decision providing that Federal regulations should
govern aspects of service provided by municipal and public benefit
corporations (or agencies) of State governments is embodied in the
statute quoted above. FRA has made every effort to provide reasonable
flexibility to State-level decision making and has included commuter
authorities as full partners in development of this proposed rule.
Compliance With the Unfunded Mandates Reform Act of 1995
Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) each federal agency ``shall, unless otherwise prohibited by law,
assess the effects of Federal Regulatory actions on State, local, and
tribal governments, and the private sector (other than to the extent
that such regulations incorporate requirements specifically set forth
in law).'' Sec. 201. Section 202 of the Act further requires that
``before promulgating any general notice of proposed rulemaking that is
likely to result in promulgation of any rule that includes any Federal
mandate that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $
100,000,000 or more (adjusted annually for inflation) in any 1 year,
and before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement * * *'' detailing the effect on State, local and tribal
governments and the private sector. The final rules issued today will
not result in the expenditure, in the aggregate, of $100,000,000 or
more in any one year, and thus preparation of a statement was not
required.
List of Subjects in 49 CFR Part 223
Glass and glass products, Penalties, Railroad safety, Reporting and
recordkeeping requirements.
List of Subjects in 49 CFR Part 239
Passenger train emergency preparedness, Penalties, Railroad safety,
Reporting and recordkeeping requirements.
The Final Rule
In consideration of the foregoing, chapter II, subtitle B, of title
49, Code of Federal Regulations is amended as follows:
1. The authority citation for part 223 is revised to read as
follows:
[[Page 24675]]
Authority: 49 U.S.C. 20102-20103, 20105-20114, 20133, 20701,
21301-21302, and 21304; Sec. 215, Pub. L. No. 103-440, 108 Stat.
4623-4624 (49 U.S.C. 20133); and 49 CFR 1.49(c), (g), (m).
2. By revising Sec. 223.5 to read as follows:
Sec. 223.5 Definitions.
As used in this part--
Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
Caboose means a car in a freight train intended to provide
transportation for crewmembers.
Certified glazing means a glazing material that has been certified
by the manufacturer as having met the testing requirements set forth in
Appendix A of this part and that has been installed in such a manner
that it will perform its intended function.
Designated service means exclusive operation of a locomotive under
the following conditions:
(1) The locomotive is not used as an independent unit or the
controlling unit is a consist of locomotives except when moving for the
purpose of servicing or repair within a single yard area;
(2) The locomotive is not occupied by operating or deadhead crews
outside a single yard area; and
(3) The locomotive is stenciled ``Designated Service--DO NOT
OCCUPY''.
Emergency responder means a member of a police or fire department,
or other organization involved with public safety charged with
providing or coordinating emergency services, who responds to a
passenger train emergency.
Emergency window means that segment of a side facing glazing
location which has been designed to permit rapid and easy removal
during a crisis situation.
End facing glazing location means any location where a line
perpendicular to the plane of the glazing material makes a horizontal
angle of 50 degrees or less with the centerline of the locomotive,
caboose or passenger car. Any location which, due to curvature of the
glazing material, can meet the criteria for either a front facing
location or a side facing location shall be considered a front facing
location.
FRA means the Federal Railroad Administration.
Locomotive means a self-propelled unit of equipment designed
primarily for moving other equipment. It does not include self-
propelled passenger cars.
Locomotive cab means that portion of the superstructure designed to
be occupied by the crew while operating the locomotive.
Passenger car means a unit of rail rolling equipment intended to
provide transportation for members of the general public and includes
self-propelled cars designed to carry baggage, mail, express or
passengers. This term includes a passenger coach, cab car, and an MU
locomotive. This term does not include a private car.
Passenger train service means the transportation of persons (other
than employees, contractors, or persons riding equipment to observe or
monitor railroad operations) in intercity passenger service or commuter
or other short-haul passenger service in a metropolitan or suburban
area.
Person means:
(1) Any form of non-highway ground transportation that runs on
rails or electromagnetic guideways, including--
(i) Commuter or other short-haul rail 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 does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation and
(2)A person that provides railroad transportation, whether directly
or by contracting out operation of the railroad to another person.
Railroad means:
(1) Any form of non-highway ground transportation that runs on
rails or electromagnetic guideways, including
(i) Commuter or other short-haul rail 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 does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation and
(2) A person that provides railroad transportation, whether
directly or by contracting out operation of the railroad to another
person.
Rebuilt locomotive, caboose or passenger car means a locomotive,
caboose or passenger car that has undergone overhaul which has been
identified by the railroad as a capital expense under Surface
Transportation Board accounting standards.
Side facing glazing location means any location where a line
perpendicular to the plane of the glazing material makes an angle of
more than 50 degrees with the centerline of the locomotive, caboose or
passenger car.
Windshield means the combination of individual units of glazing
material of the locomotive, passenger car, or caboose that are
positioned in an end facing glazing location.
Yard is a system of auxiliary tracks used exclusively for the
classification of passenger or freight cars according to commodity or
destination; assembling of cars for train movement; storage of cars; or
repair of equipment.
Yard caboose means a caboose that is used exclusively in a single
yard area.
Yard locomotive means a locomotive that is operated only to perform
switching functions within a single yard area.
3. In Sec. 223.9, paragraph (d) is added to read as follows:
Sec. 223.9 Requirements for new or rebuilt equipment.
* * * * *
(d) Marking. Each railroad providing passenger train service shall
ensure that for each passenger car, except for self-propelled cars
designed to carry baggage, mail, or express:
(1) Each emergency window is conspicuously and legibly marked with
luminescent material on the inside of each car to facilitate passenger
egress. Each such railroad shall post clear and legible operating
instructions at or near each such exit.
(2) Each window intended for emergency access by emergency
responders for extrication of passengers is marked with a
retroreflective, unique, and easily recognizable symbol or other clear
marking. Each such railroad shall post clear and understandable window-
access instructions either at each such window or at each end of the
car.
4. By revising appendix B to part 223 to read as follows:
[[Page 24676]]
Appendix B to Part 223--Schedule of Civil Penalties 1
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
223.9 New or rebuilt Equipment:
(a) Locomotives..................... $2,500 $5,000
(b) Cabooses........................ 2,500 5,000
(c) Passenger cars.................. 2,500 5,000
(d) (1), (d)(2):....................
(i) Window not marked or
instructions not posted........ 2,500 5,000
(ii) Window improperly marked or
instructions improperly posted. 1,000 2,000
223.11(c) Existing locomotives.......... 2,500 5,000
(d) Repair of window.................... 1,000 2,000
223.13(c) Existing cabooses............. 2,500 5,000
(d) Repair of window.................... 1,000 2,000
223.15(c) Existing passenger cars....... 2,500 5,000
(d) Repair of window.................... 1,000 2,000
223.17 Identification of units......... 1,000 1,500
------------------------------------------------------------------------
5. Part 239 is added to read as follows:
Part 239--PASSENGER TRAIN EMERGENCY PREPAREDNESS
Subpart A--General
Sec.
239.1 Purpose and scope.
239.3 Application.
239.5 Preemptive effect.
239.7 Definitions.
239.9 Responsibility for compliance.
239.11 Penalties.
239.13 Waivers.
239.15 Information collection.
Subpart B--Specific Requirements
239.101 Emergency preparedness plan.
239.103 Passenger train emergency simulations.
239.105 Debriefing and critique.
239.107 Emergency exits.
Subpart C--Review, Approval, and Retention of Emergency Preparedness
Plans
239.201 Emergency preparedness plan; filing and approval.
239.203 Retention of emergency preparedness plan.
Subpart D--Operational (Efficiency) Tests; Inspection of Records and
Recordkeeping
239.301 Operational (efficiency) tests.
239.303 Electronic recordkeeping.
Appendix A to Part 239--Schedule of Civil Penalties
Authority: 49 U.S.C. 20102-20103, 20105-20114, 20133, 21301,
21304, and 21311; 49 U.S.C. 20133; 28 U.S.C. 2461 note; and 49 CFR
1.49(c), (g), (m).
Subpart A--General
Sec. 239.1 Purpose and scope.
(a) The purpose of this part is to reduce the magnitude and
severity of casualties in railroad operations by ensuring that
railroads involved in passenger train operations can effectively and
efficiently manage passenger train emergencies.
---------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a
willful violation. The Administrator reserves the right to assess a
penalty of up to $22,000 for any violation where circumstances
warrant. See 49 U.S.C. 21301, 21304, and 49 CFR part 209, appendix
A. Further designations, not found in the CFR citation for certain
provisions are FRA Office of Chief Counsel computer codes added as a
suffix to the CFR citation and used to expedite imposition of civil
penalties for violations. FRA reserves the right, should litigation
become necessary, to substitute in its complaint the CFR citation in
place of the combined designation cited in the penalty demand
letter.
---------------------------------------------------------------------------
(b) This part prescribes minimum Federal safety standards for the
preparation, adoption, and implementation of emergency preparedness
plans by railroads connected with the operation of passenger trains,
and requires each affected railroad to instruct its employees on the
provisions of its plan. This part does not restrict railroads from
adopting and enforcing additional or more stringent requirements not
inconsistent with this part.
Sec. 239.3 Application.
(a) Except as provided in paragraph (b) of this section, this part
applies to all:
(1) Railroads that operate intercity or commuter passenger train
service on standard gage track which is part of the general railroad
system of transportation;
(2) Railroads that provide commuter or other short-haul rail
passenger train service in a metropolitan or suburban area (as
described by 49 U.S.C. 20102(1)), including public authorities
operating passenger train service; and
(3) Passenger or freight railroads hosting the operation of
passenger train service described in paragraph (a)(1) or (a)(2) of this
section.
(b) This part does not apply to:
(1) Rapid transit operations in an urban area that are not
connected with the general railroad system of transportation;
(2) Operation of private cars, including business/office cars and
circus trains; or
(3) Tourist, scenic, historic, or excursion operations, whether on
or off the general railroad system.
Sec. 239.5 Preemptive effect.
Under 49 U.S.C. 20106 (formerly section 205 of the Federal Railroad
Safety Act of 1970 (45 U.S.C. 434)), issuance of this part preempts any
State law, rule, regulation, order, or standard covering the same
subject matter, except a provision necessary to eliminate or reduce an
essentially local safety hazard, that is not incompatible with Federal
law or regulation and does not unreasonably burden interstate commerce.
Sec. 239.7 Definitions.
As used in this part--
Adjacent rail modes of transportation means other railroads,
trolleys, light rail, heavy transit, and other vehicles operating on
rails or electromagnetic guideways which are expressly identified in a
railroad's emergency preparedness plan.
Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
Control center means a central location on a railroad with
responsibility for directing the safe movement of trains.
Crewmember means a person, other than a passenger, who is assigned
to perform either:
(1) On-board functions connected with the movement of the train
(i.e., an employee of a railroad, or of a contractor to a railroad, who
is assigned to perform service subject to the Federal hours of service
laws during a tour of duty) or
(2) On-board functions in a sleeping car or coach assigned to
intercity service, other than food, beverage, or security service.
Division headquarters means the location designated by the railroad
where a high-level operating manager (e.g., a superintendent, division
manager, or equivalent), who has jurisdiction over a portion of the
railroad, has an office.
Emergency or emergency situation means an unexpected event related
to the operation of passenger train service
[[Page 24677]]
involving a significant threat to the safety or health of one or more
persons requiring immediate action, including:
(1) A derailment;
(2) A fatality at a grade crossing;
(3) A passenger or employee fatality, or a serious illness or
injury to one or more passengers or crewmembers requiring admission to
a hospital;
(4) An evacuation of a passenger train; and
(5) A security situation (e.g., a bomb threat).
Emergency preparedness plan means one or more documents focusing on
preparedness and response in dealing with a passenger train emergency.
Emergency responder means a member of a police or fire department,
or other organization involved with public safety charged with
providing or coordinating emergency services, who responds to a
passenger train emergency.
Emergency window means that segment of a side facing glazing
location which has been designed to permit rapid and easy removal in an
emergency situation.
FRA means the Federal Railroad Administration.
Joint operations means rail operations conducted by more than one
railroad on the same track, except as necessary for the purpose of
interchange, regardless of whether such operations are the result of:
(1) Contractual arrangements between the railroads;
(2) Order of a governmental agency or a court of law; or
(3) Any other legally binding directive.
Passenger train service means the transportation of persons (other
than employees, contractors, or persons riding equipment to observe or
monitor railroad operations) by railroad in intercity passenger service
or commuter or other short-haul passenger service in a metropolitan or
suburban area.
Person includes all categories of entities covered under 1 U.S.C.
1, including, but not limited to, a railroad; any manager, supervisor,
official, or other employee or agent of a railroad; any owner,
manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any passenger; any trespasser or nontrespasser; any
independent contractor providing goods or services to a railroad; any
volunteer providing goods or services to a railroad; and any employee
of such owner, manufacturer, lessor, lessee, or independent contractor.
Private car means a rail passenger car used to transport non-
revenue passengers on an occasional contractual basis, and includes
business or office cars and circus trains.
Qualified means a status attained by an employee who has
successfully completed any required training for, has demonstrated
proficiency in, and has been authorized by the employer to perform the
duties of a particular position or function involving emergency
preparedness.
Railroad means:
(1) Any form of non-highway ground transportation that runs on
rails or electromagnetic guideways, including--
(i) Commuter or other short-haul rail 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 does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation and
(2) A person that provides railroad transportation, whether
directly or by contracting out operation of the railroad to another
person.
Railroad officer means any supervisory employee of a railroad.
System headquarters means the location designated by the railroad
as the general office for the railroad system.
Sec. 239.9 Responsibility for compliance.
Although the requirements of this part are stated in terms of the
duty of a railroad, when any person, including a contractor to a
railroad, performs any function required by this part, that person
(whether or not a railroad) shall perform that function in accordance
with this part.
Sec. 239.11 Penalties.
Any person who violates any requirement of this part or causes the
violation of any such requirement is subject to a civil penalty of at
least $500 and not more than $11,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to persons, or has caused death or injury, a penalty not to exceed
$22,000 per violation may be assessed. Each day a violation continues
shall constitute a separate offense. Any person who knowingly and
willfully falsifies a record or report required by this part may be
subject to criminal penalties under 49 U.S.C. 21311 (formerly codified
in 45 U.S.C. 438(e)). Appendix A contains a schedule of civil penalty
amounts used in connection with this part.
Sec. 239.13 Waivers.
(a) Any person subject to a requirement of this part may petition
the Administrator for a waiver of compliance with such requirement. The
filing of such a petition does not affect that person's responsibility
for compliance with that requirement while the petition is being
considered.
(b) Each petition for waiver must be filed in the manner and
contain the information required by part 211 of this chapter.
(c) If the Administrator finds that a waiver of compliance is in
the public interest and is consistent with railroad safety, the
Administrator may grant the waiver subject to any conditions the
Administrator deems necessary.
Sec. 239.15 Information collection.
(a) The information collection requirements of this part have been
reviewed by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.), and have
been assigned OMB control number 2130-0545.
(b) The information collection requirements are found in the
following sections: Secs. 239.101, 239.103, 239.105, 239.107, 239.201,
239.203, 239.301, and 239.303.
Subpart B--Specific Requirements
Sec. 239.101 Emergency preparedness plan.
(a) Each railroad to which this part applies shall adopt and comply
with a written emergency preparedness plan approved by FRA under the
procedures of Sec. 239.201. The plan shall include the following
elements and procedures for implementing each plan element.
(1) Communication. (i) Initial and on-board notification. An on-
board crewmember shall quickly and accurately assess the passenger
train emergency situation and then notify the control center as soon as
practicable by the quickest available means. As appropriate, an on-
board crewmember shall inform the passengers about the nature of the
emergency and indicate what corrective countermeasures are in progress.
(ii) Notifications by control center. The control center shall
promptly notify outside emergency responders, adjacent rail modes of
transportation, and appropriate railroad officials that a passenger
train emergency has occurred.
[[Page 24678]]
Each railroad shall designate an employee responsible for maintaining
current emergency telephone numbers for use in making such
notifications.
(2) Employee training and qualification. (i) On-board personnel.
The railroad's emergency preparedness plan shall address individual
employee responsibilities and provide for initial training, as well as
periodic training at least once every two calendar years thereafter, on
the applicable plan provisions. As a minimum, the initial and periodic
training shall include:
(A) Rail equipment familiarization;
(B) Situational awareness;
(C) Passenger evacuation;
(D) Coordination of functions; and
(E) ``Hands-on'' instruction concerning the location, function, and
operation of on-board emergency equipment.
(ii) Control center personnel. The railroad's emergency
preparedness plan shall require initial training of responsible control
center personnel, as well as periodic training at least once every two
calendar years thereafter, on appropriate courses of action for each
potential emergency situation. As a minimum, the initial and periodic
training shall include:
(A) Dispatch territory familiarization; and
(B) Protocols governing internal communications between appropriate
control center personnel whenever an imminent potential emergency
situation exists.
(iii) Initial training schedule for current employees. The
railroad's emergency preparedness plan shall provide for the completion
of initial training of all on-board and control center employees who
are employed by the railroad on the date that the plan is conditionally
approved under Sec. 239.201(b)(1), in accordance with the following
schedule:
(A) For each railroad that provides commuter or other short-haul
passenger train service and whose operations include less than 150
route miles and less than 200 million passenger miles annually, not
more than one year after January 29, 1999, or not more than 90 days
after commencing passenger operations, whichever is later.
(B) For each railroad that provides commuter or other short-haul
passenger train service and whose operations include at least 150 route
miles or at least 200 million passenger miles annually, not more than
two years after January 29, 1999, or not more than 180 days after
commencing passenger operations, whichever is later.
(C) For each railroad that provides intercity passenger train
service, regardless of the number of route miles or passenger miles,
not more than two years after January 29, 1999, or not more than 180
days after commencing passenger operations, whichever is later.
(D) For each freight railroad that hosts passenger train service,
regardless of the number of route miles or passenger miles of that
service, not more than one year after January 29, 1999, or not more
than 90 days after the hosting begins, whichever is later.
(iv) Initial training schedule for new employees. The railroad's
emergency preparedness plan shall provide for the completion of initial
training of all on-board and control center employees who are hired by
the railroad after the date on which the plan is conditionally approved
under Sec. 239.201(b)(1). Each employee shall receive initial training
within 90 days after the employee's initial date of service.
(v) Testing of on-board and control center personnel. A railroad
shall have procedures for testing a person being evaluated for
qualification under the emergency preparedness plan. The types of
testing selected by the railroad shall be:
(A) Designed to accurately measure an individual employee's
knowledge of his or her responsibilities under the plan;
(B) Objective in nature;
(C) Administered in written form; and
(D) Conducted without reference by the person being tested to open
reference books or other materials, except to the degree the person is
being tested on his or her ability to use such reference books or
materials.
(vi) On-board staffing. (A) Except as provided in paragraph
(a)(2)(vi)(B), all crewmembers on board a passenger train shall be
qualified to perform the functions for which they are responsible under
the provisions of the applicable emergency preparedness plan.
(B) A freight train crew relieving an expired passenger train crew
en route is not required to be qualified under the emergency
preparedness plan, provided that at least one member of the expired
passenger train crew remains on board and is available to perform
excess service under the Federal hours of service laws in the event of
an emergency.
(3) Joint operations. (i) Each railroad hosting passenger train
service shall address its specific responsibilities consistent with
this part.
(ii) In order to achieve an optimum level of emergency
preparedness, each railroad hosting passenger train service shall
communicate with each railroad that provides or operates such service
and coordinate applicable portions of the emergency preparedness plan.
All of the railroads involved in hosting, providing, and operating a
passenger train service operation shall jointly adopt one emergency
preparedness plan that addresses each entity's specific
responsibilities consistent with this part. Nothing in this paragraph
shall restrict the ability of the railroads to provide for an
appropriate assignment of responsibility for compliance with this part
among those railroads through a joint operating agreement or other
binding contract. However, the assignor shall not be relieved of
responsibility for compliance with this part.
(4) Special circumstances. (i) Tunnels. When applicable, the
railroad's emergency preparedness plan shall reflect readiness
procedures designed to ensure passenger safety in an emergency
situation occurring in a tunnel of 1,000 feet or more in length. The
railroad's emergency preparedness plan shall address, as a minimum,
availability of emergency lighting, access to emergency evacuation
exits, benchwall readiness, ladders for detraining, effective radio or
other communication between on-board crewmembers and the control
center, and options for assistance from other trains.
(ii) Other operating considerations. When applicable, the
railroad's emergency preparedness plan shall address passenger train
emergency procedures involving operations on elevated structures,
including drawbridges, and in electrified territory.
(iii) Parallel operations. When applicable, the railroad's
emergency preparedness plan shall require reasonable and prudent action
to coordinate emergency efforts where adjacent rail modes of
transportation run parallel to either the passenger railroad or the
railroad hosting passenger operations.
(5) Liaison with emergency responders. Each railroad to which this
part applies shall establish and maintain a working relationship with
the on-line emergency responders by, as a minimum:
(i) Developing and making available a training program for all on-
line emergency responders who could reasonably be expected to respond
during an emergency situation. The training program shall include an
emphasis on access to railroad equipment, location of railroad
facilities, and communications interface, and provide information to
emergency responders who may not have the opportunity to participate in
an emergency simulation. Each affected railroad shall either offer the
training directly or provide the program information and materials to
state
[[Page 24679]]
training institutes, firefighter organizations, or police academies;
(ii) Inviting emergency responders to participate in emergency
simulations; and
(iii) Distributing applicable portions of its current emergency
preparedness plan at least once every three years, or whenever the
railroad materially changes its plan in a manner that could reasonably
be expected to affect the railroad's interface with the on-line
emergency responders, whichever occurs earlier, including documentation
concerning the railroad's equipment and the physical characteristics of
its line, necessary maps, and the position titles and telephone numbers
of relevant railroad officers to contact.
(6) On-board emergency equipment. (i) General. Each railroad's
emergency preparedness plan shall state the types of emergency
equipment to be kept on board and indicate their location(s) on each
passenger car that is in service. Effective May 4, 1999, or not more
than 120 days after commencing passenger operations, whichever is
later, this equipment shall include, at a minimum:
(A) One fire extinguisher per passenger car;
(B) One pry bar per passenger car; and
(C) One flashlight per on-board crewmember.
(ii) Effective May 4, 1999, or not more than 120 days after
commencing passenger operations, whichever is later, each railroad that
provides intercity passenger train service shall also equip each
passenger train that is in service with at least one first-aid kit
accessible to crewmembers that contains, at a minimum:
(A) Two small gauze pads (at least 4x4 inches);
(B) Two large gauze pads (at least 8x10 inches);
(C) Two adhesive bandages;
(D) Two triangular bandages;
(E) One package of gauge roller bandage that is at least two inches
wide;
(F) Wound cleaning agent, such as sealed moistened towelettes;
(G) One pair of scissors;
(H) One set of tweezers;
(I) One roll of adhesive tape;
(J) Two pairs of latex gloves; and
(K) One resuscitation mask.
(iii) On-board emergency lighting. Consistent with the requirements
of part 238 of this chapter, auxiliary portable lighting (e.g., a
handheld flashlight) must be accessible and provide, at a minimum:
(A) Brilliant illumination during the first 15 minutes after the
onset of an emergency situation; and
(B) Continuous or intermittent illumination during the next 60
minutes after the onset of an emergency situation.
(iv) Maintenance. Each railroad's emergency preparedness plan shall
provide for scheduled maintenance and replacement of first-aid kits,
on-board emergency equipment, and on-board emergency lighting.
(7) Passenger safety information. (i) General. Each railroad's
emergency preparedness plan shall provide for passenger awareness of
emergency procedures, to enable passengers to respond properly during
an emergency.
(ii) Passenger awareness program activities. Each railroad shall
conspicuously and legibly post emergency instructions inside all
passenger cars (e.g., on car bulkhead signs, seatback decals, or seat
cards) and shall utilize one or more additional methods to provide
safety awareness information including, but not limited to, one of the
following:
(A) On-board announcements;
(B) Laminated wallet cards;
(C) Ticket envelopes;
(D) Timetables;
(E) Station signs or video monitors;
(F) Public service announcements; or
(G) Seat drops.
(b) [Reserved]
Sec. 239.103 Passenger train emergency simulations.
(a) General. Each railroad operating passenger train service shall
conduct full-scale emergency simulations, in order to determine its
capability to execute the emergency preparedness plan under the variety
of scenarios that could reasonably be expected to occur on its
operation, and ensure coordination with all emergency responders who
voluntarily agree to participate in the emergency simulations.
(b) Frequency of the emergency simulations. Except as provided in
paragraph (c) of this section:
(1) Each railroad that provides commuter or other short-haul
passenger train service and whose operations include less than 150
route miles and less than 200 million passenger miles annually, shall
conduct a minimum of one full-scale emergency simulation during every
two calendar years.
(2) Each railroad that provides commuter or other short-haul
passenger train service and whose operations include at least 150 route
miles or at least 200 million passenger miles annually, shall conduct a
minimum of one full-scale emergency simulation during each calendar
year.
(3) Each railroad that provides intercity passenger train service,
shall conduct a minimum of one full-scale emergency simulation during
each calendar year, regardless of the number of route miles or
passenger miles.
(c) Actual emergency situations. Neither a tabletop exercise nor
the activation of its emergency preparedness plan during an actual
emergency situation may be credited toward the minimum number of full-
scale emergency simulations required under paragraph (b) of this
section. However, a railroad that has activated its emergency
preparedness plan in response to a major emergency may elect to
postpone a scheduled full-scale simulation for up to 180 calendar days
beyond the applicable calendar year completion date in order to
evaluate the effectiveness of its plan during that major emergency and,
as appropriate, modify the rescheduled simulation.
(d) Definition. As used in this section, major emergency means an
unexpected event related to the operation of passenger train service
that results in serious injury or death to one or more persons and
property damage greater than the current reporting threshold of part
225 of this chapter to railroad on-track equipment, signals, tracks,
track structures, or roadbeds, including labor costs and the costs for
acquiring new equipment and material.
Sec. 239.105 Debriefing and critique.
(a) General. Except as provided in paragraph (b) of this section,
each railroad operating passenger train service shall conduct a
debriefing and critique session after each passenger train emergency
situation or full-scale simulation to determine the effectiveness of
its emergency preparedness plan, and shall improve or amend its plan,
or both, as appropriate, in accordance with the information developed.
The debriefing and critique session shall be conducted within 60 days
of the date of the passenger train emergency situation or full-scale
simulation.
(b) Exceptions. (1) No debriefing and critique session shall be
required in the case of an emergency situation involving only a
collision between passenger railroad rolling stock and: a pedestrian; a
trespasser; or a motor vehicle or other highway conveyance at a
highway-rail grade crossing, provided that the collision does not
result in: a passenger or employee fatality, or an injury to one or
more crewmembers or passengers requiring admission to a hospital; or
the evacuation of a passenger train. (2) For purposes of this section,
highway-rail grade crossing means a location where a public highway,
road, street, or private roadway, including associated
[[Page 24680]]
sidewalks and pathways, crosses one or more railroad tracks at grade,
and trespasser means a person who is on that part of railroad property
used in railroad operation and whose presence is prohibited, forbidden,
or unlawful.
(c) Purpose of debriefing and critique. The debriefing and critique
session shall be designed to determine, at a minimum:
(1) Whether the on-board communications equipment functioned
properly;
(2) How much time elapsed between the occurrence of the emergency
situation or full-scale simulation and notification to the emergency
responders involved;
(3) Whether the control center promptly initiated the required
notifications;
(4) How quickly and effectively the emergency responders responded
after notification; and
(5) How efficiently the passengers exited from the car through the
emergency exits.
(d) Records. (1) Each railroad shall maintain records of its
debriefing and critique sessions at its system headquarters and
applicable division headquarters for two calendar years after the end
of the calendar year to which they relate, including the following
information:
(i) Date and location of the passenger train emergency situation or
full-scale simulation;
(ii) Date and location of the debriefing and critique session; and
(iii) Names of all participants in the debriefing and critique
session.
(2) These records shall be made available to representatives of FRA
and States participating under part 212 of this chapter for inspection
and copying during normal business hours.
Sec. 239.107 Emergency exits.
For additional requirements related to emergency window exits, see
part 223 of this chapter.
(a) Marking. Each railroad operating passenger train service shall
determine for each passenger car that is in service, except for self-
propelled cars designed to carry baggage, mail, or express:
(1) That all door exits intended for emergency egress are either
lighted or conspicuously and legibly marked with luminescent material
on the inside of the car and that clear and understandable instructions
are posted at or near such exits.
(2) That all door exits intended for emergency access by emergency
responders for extrication of passengers are marked with
retroreflective material and that clear and understandable instructions
are posted at each such door.
(b) Inspection, maintenance, and repair. Consistent with the
requirements of part 223 of this chapter, each railroad operating
passenger train service shall:
(1) Provide for scheduled inspection, maintenance, and repair of
emergency window and door exits;
(2) Test a representative sample of emergency window exits on its
cars at least once every 180 days to verify that they are operating
properly; and
(3) Repair each inoperative emergency window and door exit on a car
before returning the car to service.
(c) Records. Each railroad operating passenger service shall
maintain records of its inspection, maintenance, and repair of
emergency window and door exits at its system headquarters and
applicable division headquarters for two calendar years after the end
of the calendar year to which they relate. These records shall be made
available to representatives of FRA and States participating under part
212 of this chapter for inspection and copying during normal business
hours.
(d) Electronic recordkeeping. Each railroad to which this part
applies is authorized to retain by electronic recordkeeping the
information prescribed in paragraph (b) of this section, provided that
all of the following conditions are met:
(1) The railroad adequately limits and controls accessibility to
such information retained in its database system and identifies those
individuals who have such access;
(2) The railroad has a terminal at the system headquarters and at
each division headquarters;
(3) Each such terminal has a desk-top computer (i.e., monitor,
central processing unit, and keyboard) and either a facsimile machine
or a printer connected to the computer to retrieve and produce
information in a usable format for immediate review by representatives
of FRA and States participating under part 212 of this chapter;
(4) The railroad has a designated representative who is authorized
to authenticate retrieved information from the electronic system as
true and accurate copies of the electronically kept records; and
(5) The railroad provides representatives of FRA and States
participating under part 212 of this chapter with immediate access to
these records for inspection and copying during normal business hours
and provides printouts of such records upon request.
Subpart C--Review, Approval, and Retention of Emergency
Preparedness Plans
Sec. 239.201 Emergency preparedness plan; filing and approval.
(a) Filing. Each passenger railroad to which this part applies and
all railroads hosting its passenger train service (if applicable) shall
jointly adopt a single emergency preparedness plan for that service and
the passenger railroad shall file one copy of that plan with the
Associate Administrator for Safety, Federal Railroad Administration,
Mail Stop 25, 400 Seventh Street, S.W., Washington, D.C. 20590, not
more than 180 days after May 4, 1998, or not less than 45 days prior to
commencing passenger operations, whichever is later. The emergency
preparedness plan shall include the name, title, address, and telephone
number of the primary person on each affected railroad to be contacted
with regard to review of the plan, and shall include a summary of each
railroad's analysis supporting each plan element and describing how
every condition on the railroad's property that is likely to affect
emergency response is addressed in the plan. Each subsequent amendment
to a railroad's emergency preparedness plan shall be filed with FRA by
the passenger railroad not less than 60 days prior to the proposed
effective date.
(b) Approval. (1) Preliminary review. (i) Within 90 days of receipt
of each proposed emergency preparedness plan, and within 45 days of
receipt of each plan for passenger operations to be commenced after the
initial deadline for plan submissions, FRA will conduct a preliminary
review of the proposed plan to determine if the elements prescribed in
Sec. 239.101 are sufficiently addressed and discussed in the railroad's
plan submission. FRA will then notify the primary contact person of
each affected railroad in writing of the results of the review, whether
the proposed plan has been conditionally approved by FRA, and if not
conditionally approved, the specific points in which the plan is
deficient.
(ii) If a proposed emergency preparedness plan is not conditionally
approved by FRA, the affected railroad or railroads shall amend the
proposed plan to correct all deficiencies identified by FRA (and
provide FRA with a corrected copy) not later than 30 days following
receipt of FRA's written notice that the proposed plan was not
conditionally approved.
(2) Final review. (i) Within 18 months of receipt of each proposed
plan, and within 180 days of receipt of each proposed plan for
passenger operations
[[Page 24681]]
to be commenced after the initial deadline for plan submissions, FRA
will conduct a comprehensive review of the conditionally approved plan
to evaluate implementation of the elements included. This review will
include ongoing dialogues with rail management and labor
representatives, and field analysis and verification. FRA will then
notify the primary contact person of each affected railroad in writing
of the results of the review, whether the conditionally approved plan
has been finally approved by FRA, and if not approved, the specific
points in which the plan is deficient.
(ii) If an emergency preparedness plan of a railroad or railroads
is not finally approved by FRA, the affected railroad or railroads
shall amend the plan to correct all deficiencies (and provide FRA with
a corrected copy) not later than 30 days following receipt of FRA's
written notice that the plan was not finally approved.
(3) Review of amendments. (i) FRA will review each proposed plan
amendment within 45 days of receipt. FRA will then notify the primary
contact person of each affected railroad of the results of the review,
whether the proposed amendment has been approved by FRA, and if not
approved, the specific points in which the proposed amendment is
deficient.
(ii) If the amendment is not approved, the railroad shall correct
any deficiencies identified by FRA and file the corrected amendment
prior to implementing the amendment.
(4) Reopened review. Following initial approval of a plan, or
amendment, FRA may reopen consideration of the plan, or amendment, for
cause stated.
Sec. 239.203 Retention of emergency preparedness plan.
Each passenger railroad to which this part applies, and all
railroads hosting its passenger train service (if applicable), shall
each retain one copy of the emergency preparedness plan required by
Sec. 239.201 and one copy of each subsequent amendment to that plan at
the system and division headquarters of each, and shall make such
records available to representatives of FRA and States participating
under part 212 of this chapter for inspection and copying during normal
business hours.
Subpart D--Operational (Efficiency) Tests; Inspection of Records
and Recordkeeping
Sec. 239.301 Operational (efficiency) tests.
(a) Each railroad to which this part applies shall periodically
conduct operational (efficiency) tests of its on-board and control
center employees to determine the extent of compliance with its
emergency preparedness plan.
(b) Each railroad to which this part applies shall maintain a
written record of the date, time, place, and result of each operational
(efficiency) test that was performed in accordance with paragraph (a)
of this section. Each record shall also specify the name of the
railroad officer who administered the test, the name of each employee
tested, and sufficient information to identify the relevant facts
relied on for evaluation purposes.
(c) Each record required by paragraph (a) of this section shall be
retained at the system headquarters of the railroad and at the division
headquarters for the division where the test was conducted for one
calendar year after the end of the calendar year to which the test
relates. Each such record shall be made available to representatives of
FRA and States participating under part 212 of this chapter for
inspection and copying during normal business hours.
Sec. 239.303 Electronic recordkeeping.
Each railroad to which this part applies is authorized to retain by
electronic recordkeeping the information prescribed in Sec. 239.301,
provided that all of the following conditions are met:
(a) The railroad adequately limits and controls accessibility to
such information retained in its database system and identifies those
individuals who have such access;
(b) The railroad has a terminal at the system headquarters and at
each division headquarters;
(c) Each such terminal has a desk-top computer (i.e., monitor,
central processing unit, and keyboard) and either a facsimile machine
or a printer connected to the computer to retrieve and produce
information in a usable format for immediate review by representatives
of FRA and States participating under part 212 of this chapter;
(d) The railroad has a designated representative who is authorized
to authenticate retrieved information from the electronic system as
true and accurate copies of the electronically kept records; and
(e) The railroad provides representatives of FRA and States
participating under part 212 of this chapter with immediate access to
these records for inspection and copying during normal business hours
and provides printouts of such records upon request.
Appendix A to Part 239--Schedule of Civil Penalties 1
1 A penalty may be assessed against an individual
only for a willful violation. The Administrator reserves the right
to assess a penalty of up to $22,000 for any violation where
circumstances warrant. See 49 U.S.C. 21301, 21304, and 49 CFR part
209, appendix A. Further designations, not found in the CFR citation
for certain provisions, are FRA Office of Chief Counsel computer
codes added as a suffix to the CFR citation and used to expedite
imposition of civil penalties for violations. FRA reserves the
right, should litigation become necessary, to substitute in its
complaint the CFR citation in place of the combined designation
cited in the penalty demand letter.
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
Subpart B--Specific Requirements:
239.101(a) Failure of a railroad to
adopt a written emergency preparedness
plan................................... $7,500 $11,000
(a)(1) Failure of the plan to
provide for:
(i) Initial or on-board
notifications by an on-board
crewmember..................... 2,500 5,000
(ii) Notification of outside
emergency responders by control
center......................... 2,500 5,000
(a)(2) Failure of the plan to
provide for:
(i) Initial or periodic training
of on-board personnel.......... 2,500 5,000
(ii) Initial or periodic
training of control center
personnel...................... 2,500 5,000
(iii) Completion of initial
training of all on-board and
control center personnel by the
specified date................. 2,500 5,000
(iv) Completion of initial
training of all newly hired on-
board and control center
personnel by the specified date 2,500 5,000
(v) Adequate procedures to
evaluate and test on-board and
control center personnel for
qualification under the
emergency preparedness plan.... 2,500 5,000
(vi) Adequate on-board staffing. 2,500 5,000
[[Page 24682]]
(a)(3) Failure of a host railroad
involved in joint operations to
coordinate applicable portions of
the emergency preparedness plan
with the railroad or railroads
providing or operating a passenger
train service operation............ 3,000 6,000
(a)(4) Failure of the plan to
address:
(i) Readiness procedures for
emergencies in tunnels......... 2,500 5,000
(ii) Readiness procedures for
emergencies on an elevated
structure or in electrified
territory...................... 2,500 5,000
(iii) Coordination efforts
involving adjacent rail modes
of transportation.............. 2,500 5,000
(a)(5) Failure of the plan to
address relationships with on-line
emergency responders by providing
for:
(i) The development and
availability of training
programs....................... 3,000 6,000
(ii) Invitations to emergency
responders to participate in
emergency simulations.......... 3,000 6,000
(iii) Distribution of applicable
portions of the current
emergency preparedness plan.... 3,000 6,000
(a)(6) Failure of the plan to
provide for, or the railroad to
include on board each train and
maintain and replace:
(i) Emergency equipment......... 2,500 5,000
(ii) First-aid kits............. 2,500 5,000
(iii) Emergency lighting........ 2,500 5,000
(a)(7) Failure of the plan to
provide for emergency instructions
inside each passenger car or to
include additional safety awareness
information........................ 3,500 7,000
239.103 Failure to conduct a required
full-scale simulation in accordance
with the frequency schedule............ 5,000 7,500
239.105 Debriefing and critique
(a) Failure to conduct a debriefing
and critique session after an
emergency or full-scale simulation. 4,000 7,500
(d)(1) Failure to maintain a record. 2,500 5,000
(i) Failure to include date or
location of the emergency or
simulation..................... 1,000 2,000
(ii) Failure to include date or
location of the debriefing and
critique session............... 1,000 2,000
(iii) Failure to include names
of participants in the
debriefing and critique session 1,000 2,000
(d)(2) Failure to make record
available.......................... 1,000 2,000
239.107 Emergency exits
(a)(1), (a)(2):
(i) Door not marked or
instructions not posted........ 2,500 5,000
(ii) Door improperly marked or
instructions 1,000-2,000-
improperly posted.............. 2,500 5,000
(b)(1) Failure to provide for
scheduled inspection, maintenance,
and repair of emergency windows and
doors.............................. 5,000 7,500
(b)(2):
(i) Failure to test a
representative sample of
emergency windows.............. 3,000 6,000
(ii) Emergency windows tested
too infrequently............... 1,500 3,000
(b)(3) Failure to repair an
inoperative emergency window or
door exit.......................... 3,500 7,000
(c):
(i) Failure to maintain a record 2,500 5,000
(ii) Failure to make record
available...................... 1,000 2,000
(d)(1) Insufficient limits or
controls on accessibility to
records............................ 2,500 5,000
(d)(2) Missing terminal............. 1,000 2,000
(d)(3) Inability of railroad to
produce information in a usable
format for immediate review........ 1,000 2,000
(d)(4) Failure by railroad to
designate an authorized
representative..................... 1,000 2,000
(d)(5) Failure to make record
available.......................... 1,000 2,000
Subpart C--Review, Approval, and
Retention of Emergency Preparedness
Plans:
239.201 Filing and approval
(a):
(i) Failure of a railroad to
file a written emergency
preparedness plan.............. 5,000 7,500
(ii) Failure to designate a
primary person to contact for
plan review.................... 1,000 2,000
(iii) Failure of a railroad to
file an amendment to its plan.. 2,500 5,000
(b)(1), (b)(2):
(i) Failure of a railroad to
correct a plan deficiency...... 2,500 5,000
(ii) Failure to provide FRA with
a corrected copy of the plan... 1,000 2,000
(b)(3):
(i) Failure of a railroad to
correct an amendment deficiency 2,500 5,000
(ii) Failure to file a corrected
plan amendment with FRA........ 1,000 1,000
239.203 Retention of emergency
preparedness plan
(1) Failure to retain a copy of
the plan or an amendment to the
plan........................... 2,500 5,000
(2) Failure to make record
available...................... 1,000 2,000
Subpart D--Operational (efficiency)
tests; Inspection of Records and
Recordkeeping:
239.301 Operational (efficiency) tests
(a) Testing Program................. 5,000 7,500
(b)(1) Failure to maintain a record. 2,500 5,000
(b)(2) Record improperly completed.. 1,000 1,000
(c)(1) Failure to retain a copy of
the record......................... 2,500 5,000
(c)(2) Failure to make record
available.......................... 1,000 2,000
239.303 Electronic recordkeeping
(a) Insufficient limits or controls
on accessibility to records........ 2,500 5,000
(b) Missing terminal................ 1,000 2,000
(c) Inability of railroad to produce
information in a usable format for
immediate review................... 1,000 2,000
(d) Failure by railroad to designate
an authorized representative....... 1,000 2,000
(e) Failure to make record available 1,000 2,000
------------------------------------------------------------------------
[[Page 24683]]
Issued in Washington, D.C., on April 14, 1998.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 98-11393 Filed 4-29-98; 8:45 am]
BILLING CODE 4910-06-P
