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2 February 2008
[Federal Register: February 1, 2008 (Volume 73, Number 22)]
[Rules and Regulations]
[Page 6369-6413]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe08-17]
[[Page 6369]]
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Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Parts 223 and 238
Passenger Train Emergency Systems; Emergency Communication, Emergency
Egress, and Rescue Access; Final Rule
[[Page 6370]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 223 and 238
[Docket No. FRA-2006-25273, Notice No. 2]
RIN 2130-AB72
Passenger Train Emergency Systems; Emergency Communication,
Emergency Egress, and Rescue Access
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule is intended to further the safety of passenger
train occupants through both enhancements and additions to FRA's
existing requirements for emergency systems on passenger trains. In
this final rule, FRA is enhancing existing requirements for emergency
window exits and establishing requirements for rescue access windows
for emergency responders to use to evacuate passenger train occupants.
FRA is also enhancing passenger train emergency system requirements by
expanding the application of existing requirements that are currently
applicable only to passenger trains operating at speeds in excess of
125 mph (Tier II passenger trains) to cover passenger trains operating
at speeds at or below 125 mph (Tier I passenger trains) as well; in
particular, these enhancements require that Tier I passenger trains be
equipped with public address (PA) and intercom systems for emergency
communication and that passenger cars provide emergency roof access for
use by emergency responders. FRA is applying certain of the
requirements to both existing and new passenger equipment, while other
requirements apply to new passenger equipment only.
EFFECTIVE DATE: The final rule is effective April 1, 2008. The
incorporation by reference of a certain publication listed in the rule
is approved by the Director of the Federal Register as of April 1,
2008. Petitions for reconsideration of this final rule must be received
not later than March 17, 2008.
ADDRESSES: Any petition for reconsideration should reference Docket No.
FRA-2006-25273, Notice No. 2, and be submitted by any of the following
methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
Hand Delivery or Courier: Docket Management Facility, U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.
ET, Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
Instructions: For detailed instructions on submitting petitions for
reconsideration and additional information on the rulemaking process,
see the Public Participation heading of the Supplementary Information
section of this document. Note that all petitions for reconsideration
received will be posted without change to http://www.regulations.gov,
including any personal information provided. Please see the Privacy Act
heading below.
Docket: For access to the docket to read background documents,
comments, or petitions for reconsideration received, go to http://www.regulations.gov
anytime, or to the Docket Management Facility, U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.
ET, Monday through Friday, except Federal holidays. Follow the online
instructions for accessing the dockets.
FOR FURTHER INFORMATION CONTACT: Brenda J. Moscoso, Office of Safety,
Staff Director, Planning and Evaluation, Mail Stop 25, Federal Railroad
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590
(telephone 202-493-6282); Daniel L. Alpert, Trial Attorney, Office of
Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., Washington, DC 20590 (telephone 202-493-6026); or
Anna Nassif Winkle, Trial Attorney, Office of Chief Counsel, Mail Stop
10, Federal Railroad Administration, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 (telephone 202-493-6166).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Statutory Background
II. Proceedings to Date
A. Proceedings To Carry Out the Initial Rulemaking Mandate
B. Key Issues Identified for Future Rulemaking
C. Railroad Safety Advisory Committee (RSAC) Overview
D. Establishment of the Passenger Safety Working Group
E. Establishment of the Emergency Preparedness Task Force
F. Development of the Notice of Proposed Rulemaking (NPRM)
G. Development of the Final Rule, including Response to Written
Comments
III. Technical Background
A. Change in the Composition of the Passenger Car Fleet
B. National Transportation Safety Board (NTSB) Safety
Recommendation on Windows
C. Need for Emergency Communication Systems
D. Window Technology
E. American Public Transportation Association's (APTA) Standard
for Emergency Evacuation Units
IV. General Overview of Requirements
A. Emergency Window Exits and Rescue Access Windows
B. Emergency Communication Systems--PA and Intercom Systems
C. Emergency Roof Access
D. Inspection, Testing, and Maintenance
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act and Executive Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Unfunded Mandates Act of 1995
G. Energy Impact
H. Trade Impact
I. Privacy Act
VII. List of Subjects
I. Statutory Background
In September of 1994, the Secretary of Transportation (Secretary)
convened a meeting of representatives from all sectors of the rail
industry with the goal of enhancing rail safety. As one of the
initiatives arising from this Rail Safety Summit, the Secretary
announced that DOT would begin developing safety standards for rail
passenger equipment over a five-year period. In November of 1994,
Congress adopted the Secretary's schedule for implementing rail
passenger equipment safety regulations and included it in the Federal
Railroad Safety Authorization Act of 1994 (the Act), Pub. L. No. 103-
440, 108 Stat. 4619, 4623-4624 (November 2, 1994). Congress also
authorized the Secretary to consult with various organizations involved
in passenger train operations for purposes of prescribing and amending
these regulations, as well as issuing orders pursuant to them. Section
215 of the Act is codified at 49 U.S.C. 20133.
[[Page 6371]]
II. Proceedings to Date
A. Proceedings To Carry Out the Initial Rulemaking Mandate
The Secretary delegated these rulemaking responsibilities to the
Federal Railroad Administrator, see 49 CFR 1.49(m), and FRA formed the
Passenger Equipment Safety Standards Working Group to provide FRA with
advice in developing the regulations. On June 17, 1996, FRA published
an advance notice of proposed rulemaking (ANPRM) concerning the
establishment of comprehensive safety standards for railroad passenger
equipment. See 61 FR 30672. The ANPRM provided background information
on the need for such standards, offered preliminary ideas on
approaching passenger safety issues, and presented questions on various
passenger safety topics. Following consideration of comments received
on the ANPRM and advice from FRA's Passenger Equipment Safety Standards
Working Group, FRA published an NPRM on September 23, 1997, to
establish comprehensive safety standards for railroad passenger
equipment. See 62 FR 49728. In addition to requesting written comment
on the NPRM, FRA also solicited oral comment at a public hearing held
on November 21, 1997. FRA considered the comments received on the NPRM
and prepared a final rule establishing comprehensive safety standards
for passenger equipment, which was published on May 12, 1999. See 64 FR
25540.
After publication of the final rule, interested parties filed
petitions seeking FRA's reconsideration of certain requirements
contained in the rule. These petitions generally related to the
following subject areas: structural design; fire safety; training;
inspection, testing, and maintenance; and movement of defective
equipment. To address the petitions, FRA grouped issues together and
published in the Federal Register three sets of amendments to the final
rule. Each set of amendments summarized the petition requests at issue,
explained what action, if any, FRA decided to take in response to the
issues raised, and described FRA's justifications for its decisions and
any action taken. Specifically, on July 3, 2000, FRA issued a response
to the petitions for reconsideration relating to the inspection,
testing, and maintenance of passenger equipment, the movement of
defective passenger equipment, and other miscellaneous provisions
related to mechanical issues contained in the final rule. See 65 FR
41284. On April 23, 2002, FRA responded to all remaining issues raised
in the petitions for reconsideration, with the exception of those
relating to fire safety. See 67 FR 19970. Finally, on June 25, 2002,
FRA completed its response to the petitions for reconsideration by
publishing a response to the petitions for reconsideration concerning
the fire safety portion of the rule. See 67 FR 42892. (For more
detailed information on the petitions for reconsideration and FRA's
response to them, please see these three rulemaking documents.) The
product of this rulemaking was codified primarily at 49 CFR part 238
and secondarily at 49 CFR parts 216, 223, 229, 231, and 232.
Meanwhile, another rulemaking on passenger train emergency
preparedness produced a final rule codified at 49 CFR part 239. See 63
FR 24629 (May 4, 1998). The rule addresses passenger train emergencies
of various kinds, including security situations, and requires the
preparation, adoption, and implementation of emergency preparedness
plans by railroads connected with the operation of passenger trains.
The emergency preparedness plans must include elements such as
communication, employee training and qualification, joint operations,
tunnel safety, liaison with emergency responders, on-board emergency
equipment, and passenger safety information. The rule requires each
affected railroad to instruct its employees on the applicable
provisions of its plan, and the plan adopted by each railroad is
subject to formal review and approval by FRA. The rule also requires
each railroad operating passenger train service to conduct emergency
simulations to determine its capability to execute the emergency
preparedness plan under the variety of emergency scenarios that could
reasonably be expected to occur.
In addition, in promulgating the rule, FRA established specific
requirements for passenger train emergency systems. Among these are
requirements that all emergency window exits and all windows intended
for rescue access by emergency responders be marked and that
instructions be provided for their use; and also requirements that all
door exits intended for egress be lighted or marked, all door exits
intended for rescue access by emergency responders be marked, and that
instructions be provided for their use.
B. Key Issues Identified for Future Rulemaking
While FRA had completed these rulemakings, FRA had identified
various issues for possible future rulemaking, including those to be
addressed following the completion of additional research, the
gathering of additional operating experience, or the development of
industry standards, or all three. One such issue concerned expanding
the application of emergency system requirements pertaining to Tier II
passenger equipment to Tier I passenger equipment as well. Another
issue concerned specifying minimum numbers and locations of windows
intended for emergency responder access to passenger cars, as 49 CFR
223.9(d)(2) addressed only marking and instruction requirements and did
not provide any express requirement that any rescue access windows be
present. FRA and interested industry members also began identifying
other issues related to the new passenger equipment safety standards
and the passenger train emergency preparedness regulations. FRA decided
to address these issues with the assistance of RSAC.
C. RSAC Overview
In March 1996, FRA established RSAC, which provides a forum for
developing consensus recommendations to FRA's Administrator on
rulemakings and other safety program issues. The Committee includes
representation from all of the agency's major customer groups,
including railroads, labor organizations, suppliers and manufacturers,
and other interested parties. A list of member groups follows:
American Association of Private Railroad Car Owners
(AAPRCO);
American Association of State Highway and Transportation
Officials (AASHTO);
American Chemistry Council;
American Petroleum Institute;
APTA;
American Short Line and Regional Railroad Association
(ASLRRA);
American Train Dispatchers Association;
Association of American Railroads (AAR);
Association of Railway Museums;
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employees Division;
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA)*;
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace
Workers;
International Brotherhood of Electrical Workers (IBEW);
[[Page 6372]]
Labor Council for Latin American Advancement*;
League of Railway Industry Women*;
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women*;
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance
Association;
National Railroad Passenger Corporation (Amtrak);
NTSB *;
Railway Supply Institute (RSI);
Indicates associate, non-voting membership.
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte*;
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association, Inc.;
Transport Canada*;
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC
(TCIU/BRC);
Transportation Security Administration (TSA)*; and
United Transportation Union (UTU).
* Indicates associate, non-voting membership.
When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts and options on a particular aspect of a
given task. The individual task force then provides that information to
the working group for consideration. If a working group comes to
unanimous consensus on recommendations for action, the package is
presented to the full RSAC for a vote. If the proposal is accepted by a
simple majority of RSAC, the proposal is formally recommended to FRA.
FRA then determines what action to take on the recommendation. Because
FRA staff play an active role at the working group level in discussing
the issues and options and in drafting the language of the consensus
proposal, FRA is often favorably inclined toward the RSAC
recommendation. However, FRA is in no way bound to follow the
recommendation, and the agency exercises its independent judgment on
whether the recommended rule achieves the agency's regulatory goal, is
soundly supported, and is in accordance with policy and legal
requirements. Often, FRA varies in some respects from the RSAC
recommendation in developing the actual regulatory proposal or final
rule. Any such variations would be noted and explained in the
rulemaking document issued by FRA. If the working group or RSAC is
unable to reach consensus on a recommendation for action, FRA moves
ahead to resolve the issue through traditional rulemaking proceedings.
D. Establishment of the Passenger Safety Working Group
On May 20, 2003, FRA presented, and RSAC accepted, the task of
reviewing existing passenger equipment safety needs and programs and
recommending consideration of specific actions that could be useful in
advancing the safety of rail passenger service. The RSAC established
the Passenger Safety Working Group (Working Group) to handle this task
and develop recommendations for the full RSAC to consider. Members of
the Working Group, in addition to FRA, include the following:
AAR, including members from BNSF Railway Company (BNSF),
CSX Transportation, Inc., and Union Pacific Railroad Company;
AAPRCO;
AASHTO;
Amtrak;
APTA, including members from Bombardier, Inc., LDK
Engineering, Herzog Transit Services, Inc., Long Island Rail Road
(LIRR), Metro-North Commuter Railroad Company (Metro-North), Northeast
Illinois Regional Commuter Railroad Corporation (Metra), Southern
California Regional Rail Authority (Metrolink), and Southeastern
Pennsylvania Transportation Authority (SEPTA);
BLET;
BRS;
FTA;
HSGTA;
IBEW;
NARP;
RSI;
SMWIA;
STA;
TCIU/BRC;
TWU; and
UTU.
Staff from DOT's John A. Volpe National Transportation Systems
Center (Volpe Center) attended all of the meetings and contributed to
the technical discussions. In addition, staff from the NTSB met with
the Working Group when possible. The Working Group has held ten
meetings on the following dates and locations:
September 9-10, 2003, in Washington, DC;
November 6, 2003, in Philadelphia, PA;
May 11, 2004, in Schaumburg, IL;
October 26-27, 2004 in Linthicum/Baltimore, MD;
March 9-10, 2005, in Ft. Lauderdale, FL;
September 7, 2005 in Chicago, IL;
March 21-22, 2006 in Ft. Lauderdale, FL;
September 12-13, 2006 in Orlando, FL;
April 17-18, 2007 in Orlando, FL; and
December 11, 2007 in Ft. Lauderdale, FL.
At the meetings in Chicago and Ft. Lauderdale in 2005, FRA met with
representatives of Tri-County Commuter Rail and Metra, respectively,
and toured their passenger equipment. The visits, which included
demonstrations of emergency system features, were open to all members
of the Working Group, and FRA believes they have added to the
collective understanding of the Group in identifying and addressing
passenger train emergency system issues.
E. Establishment of the Emergency Preparedness Task Force
Due to the variety of issues involved, at its November 2003 meeting
the Working Group established four task forces--smaller groups to
develop recommendations on specific issues within each group's
particular area of expertise. Members of the task forces include
various representatives from the respective organizations that were
part of the larger Working Group. One of these task forces was assigned
the job of identifying and developing issues and recommendations
specifically related to the inspection, testing, and operation of
passenger equipment as well as concerns related to the attachment of
safety appliances on passenger equipment. An NPRM on these topics was
published on December 8, 2005 (see 70 FR 73069), and a final rule was
published on October 19, 2006 (see 71 FR 61835). Another of these task
forces was assigned the job of developing recommendations related to
window glazing integrity, structural crashworthiness, and the
protection of occupants during accidents and incidents. This work of
this task force led to the publication of an NPRM focused on enhancing
the front-end strength of cab cars and multiple-unit (MU) locomotives
on August 1, 2007. See 72 FR 42016. Another task force, the Emergency
Preparedness Task Force (Task Force), was established to identify
[[Page 6373]]
issues and develop recommendations related to emergency systems,
procedures, and equipment. Specifically, the Task Force was charged
with evaluating APTA's standards for emergency systems for their
incorporation by reference as Federal standards and requirements. These
APTA standards are aimed at promoting the ability of passenger car
occupants to reach, identify, and operate emergency exits under various
conditions. The Task Force was also given the responsibility of
addressing a number of other emergency systems issues and to recommend
any research necessary to facilitate their resolution. Members of the
Task Force, in addition to FRA, include, or have included, the
following:
Amtrak;
APTA, including members from Bombardier, Ellcon National,
Go Transit, Interfleet, Jacobs Civil Engineering, Jessup Manufacturing
Company, Kawasaki Rail Car, Inc., LDK Engineering, LIRR, LTK,
Luminator, Maryland Transit Administration, Massachusetts Bay
Transportation Authority (MBTA), Metrolink, Metro-North, Northern
Indiana Commuter Transit District (NICTD), SEPTA, San Diego Northern
Commuter Railroad (Coaster), Permalight, PO's Ability USA, Inc.,
Prolink, Transit Design Group (TDG),Transit Safety Management (TSM),
Translite, STV Inc., and Visual Marking Systems, Inc.;
BLET;
California Department of Transportation (Caltrans);
FTA;
NARP;
RSI, including Globe Transportation Graphics;
TWU; and
UTU.
While not voting members of the Task Force, representatives from
the NTSB and from TSA, of the U.S. Department of Homeland Security
(DHS), attended certain of the meetings and contributed to the
discussions of the Task Force. In addition, staff from the Volpe Center
attended all of the meetings and contributed to the technical
discussions through their comments and presentations and by setting up
various lighting, marking, and signage demonstrations.
The Task Force has held 15 meetings on the following dates and
locations:
February 25-26, 2004, in Los Angeles, CA;
April 14-15, 2004, in Cambridge, MA;
July 7-8, 2004, in Washington, DC;
September 13-14, 2004, in New York, NY;
December 1-2, 2004, in San Diego, CA;
February 16-17, 2005, in Philadelphia, PA;
April 19-20, 2005, in Cambridge, MA;
August 2-3, 2005, in Cambridge, MA;
December 13-14, 2005, in Baltimore, MD;
August 10, 2006, in Grapevine, TX;
October 25-26, 2006, in Philadelphia, PA;
December 6-7, 2006, in Washington, DC;
March 28-29, 2007, in Los Angeles, CA;
June 13-14, 2007, in San Francisco, CA; and
October 17-18, 2007, in Arlington, VA.
At meetings in Los Angeles, Cambridge, Washington, New York, San
Diego, Philadelphia, and San Francisco, FRA met with representatives of
Metrolink, MBTA, Amtrak, LIRR, Coaster, SEPTA, and Caltrans,
respectively, and toured their passenger equipment. The visits were
open to all members of the Task Force and included demonstration of
emergency system features. As in the case of the Working Group visits,
FRA believes they have added to the collective understanding of the
Task Force in identifying and addressing passenger train emergency
system issues for not only this rulemaking, but for future rulemakings
as well.
F. Development of the NPRM
The NPRM was developed to address a number of the concerns raised
and issues discussed during the various Task Force and Working Group
meetings. Minutes of each of these meetings have been made part of the
docket in this proceeding and are available for public inspection. The
Working Group reached full consensus on all the regulatory provisions
contained in the NPRM at its meetings in March and September 2005.
After the March 2005 meeting, the Working Group presented its
recommendations to the full RSAC for concurrence at its meeting in May
2005. All of the members of the full RSAC in attendance at its May 2005
meeting accepted the regulatory recommendations submitted by the
Working Group. Thus, the Working Group's recommendations became the
full RSAC's recommendations to FRA. In October 2005, the full RSAC also
recommended that FRA adopt a further recommendation from the Working
Group at its September 2005 meeting--that FRA grant additional time for
compliance with the proposal on rescue access windows. After reviewing
the full RSAC's recommendations, FRA agreed that the recommendations
provided a sound basis for a proposed rule and adopted the
recommendations with generally minor changes for purposes of clarity
and formatting in the Federal Register.
The NPRM was published in the Federal Register on August 24, 2006
(see 71 FR 50276), and FRA solicited public comment on it. FRA
specifically invited comment on a number of issues related to the
proposed requirements for the purpose of developing the final rule, in
addition to notifying the public of its option to submit written
comments on the NPRM and to request a public, oral hearing on the NPRM.
G. Development of the Final Rule, including Response to Written
Comments
This final rule is the product of FRA's review, consideration, and
acceptance of the recommendations of the Task Force, Working Group, and
full RSAC, and of the written comments on which they are based. FRA
received two written comments in response to the publication of the
NPRM: one from the NTSB; the other from Caltrans. The NTSB indicated
that the NPRM was consistent with the intent of its safety
recommendation to FRA relevant to these emergency systems, and
expressed support for the proposed emergency communication system and
emergency roof access requirements. Caltrans' comments related to the
requirement for staggering the location of emergency window exits to
the extent practical and to the proposed requirement for inspecting
emergency roof access markings. As explained further below, after
discussing the comments with the Task Force, the Task Force made
consensus recommendations to resolve Caltrans' two concerns by
clarifying in this preamble the requirement for staggering, and by
granting Caltrans' request to extend the interval between inspections
for roof access markings to a maximum of 368 days, instead of the 184
days that FRA had proposed. FRA agrees with the underlying rationale
for these recommendations and has modified the final rule accordingly.
FRA did not receive a request for a public, oral hearing on the NPRM,
and none was held.
Throughout the preamble discussion of this final rule, FRA refers
to comments, views, suggestions, or recommendations made by members of
the Task Force, Working Group, and full RSAC, as they are identified or
contained in the minutes of their
[[Page 6374]]
meetings. FRA does so to show the origin of certain issues and the
nature of discussions concerning those issues at the Task Force,
Working Group, and full RSAC level. FRA believes this serves to
illuminate factors that it has weighed in making its regulatory
decisions, as well as the logic behind those decisions. The reader
should keep in mind, of course, that only the full RSAC makes
recommendations to FRA and that it is the consensus recommendation of
the full RSAC on which FRA is acting. However, as noted above, FRA is
in no way bound to follow the recommendation, and the agency exercises
its independent judgment on whether the recommended rule achieves the
agency's regulatory goal, is soundly supported, and is in accordance
with policy and legal requirements.
III. Technical Background
Trends in new passenger car orders, experience with passenger train
accidents, concern about emergency communication, and technological
advances in emergency systems provided the main impetus for these
enhancements and additions to FRA's standards for passenger train
emergency systems, as highlighted below.
A. Change in the Composition of the Passenger Car Fleet
While FRA was developing the Passenger Equipment Safety Standards
and the Passenger Train Emergency Preparedness regulations in the
1990s, the operation of multi-level passenger cars having two seating
levels for passengers (i.e., bi-level cars) was common. However, the
operation of multi-level passenger cars having three seating levels for
passengers (i.e., cars with intermediate (or mezzanine) seating levels)
was not as prevalent in the U.S. as it is today. As a result, in those
rulemakings there was less focus on the need for applying emergency
system safety standards to intermediate seating levels of multi-level
passenger cars.
Since that time, the composition of the Nation's commuter rail
fleet has changed. Multi-level passenger cars with passenger seating in
intermediate levels have become more prevalent and now account for over
15 percent of all passenger cars. The intermediate seating levels in
these multi-level passenger cars are normally located at the far ends
of the cars and are connected to the upper and lower seating levels by
stairs. Exterior side doors are also often located toward the ends of
these cars to facilitate boarding and de-boarding. Given the constraint
posed by station platform lengths and the desire to minimize station
dwell time, railroads have turned to multi-level passenger cars with
intermediate seating levels to meet much of the increased demand for
service, to the extent that vertical clearances permit their operation.
In light of the growing use of multi-level passenger cars with
intermediate seating levels, this final rule helps to address the need
to provide more explicit emergency system safety standards for these
passenger cars.
B. NTSB Safety Recommendation on Windows
On April 23, 2002, a BNSF freight train collided head on with a
standing Metrolink passenger train near Placentia, CA, resulting in two
fatalities and numerous injuries on the Metrolink train. Though not a
contributing factor to the fatalities or injuries, the force of the
collision blocked the rear end door and also blocked the rear stairway
linking the upper and lower seating levels to the seating area on the
intermediate level at the rear of the Metrolink cab car. Although
passengers in that intermediate level seating area did exit through an
emergency window, no windows on the intermediate level had been
designated for rescue access, and consequently no instructions for
emergency responders to gain access to the intermediate level through a
window had been posted. Concerned with the extent of Federal
requirements relating to rescuing passengers from the intermediate
level of a multi-level passenger car, the NTSB issued Safety
Recommendation R-03-21 to FRA on November 6, 2003. Safety
Recommendation R-03-21 provides in full as follows:
Revise the language of 49 Code of Federal Regulations 238.113(a)(1)
to reflect that appropriate exterior instructional signage
describing the emergency removal procedure be required at emergency
windows on all levels of a multiple-level passenger railcar.
In a February 20, 2004 letter to the NTSB, FRA noted that its
existing regulations do require that windows intended for emergency
responder access on every level of a multi-level passenger car be
clearly marked and that clear and understandable instructions for their
removal be posted at or near the windows on the car's exterior. See 49
CFR 223.9(d)(2). FRA also sent a letter to passenger railroads to make
this clear in the event there was any confusion about these
requirements. Nevertheless, the NTSB's recommendation highlighted the
fact that several related concerns were not specifically addressed in
FRA's regulations. One of these concerns was specifying minimum numbers
and locations of windows intended for emergency responder access to
passenger cars, as 49 CFR 223.9(d)(2) addressed only marking and
instruction requirements and did not provide any express requirement
that any such rescue access windows be present. A second prominent
issue concerned specifying minimum numbers and locations of emergency
window exits on any level of a multi-level passenger car--not just on
main levels, as then provided in 49 CFR 238.113(a)(1).
FRA informed the NTSB that it was reviewing and considering the
necessity of making amendments to its safety standards for passenger
trains through the RSAC process and that these and other passenger
safety issues would be presented to the Working Group and the Task
Force for their consideration. Therefore, FRA asked that the NTSB
classify Safety Recommendation R-03-21 as ``Open--Acceptable
Response,'' pending the results of this effort. (The NTSB
classification ``Open--Acceptable Response'' means a ``[r]esponse by
recipient indicates a planned action that would comply with the safety
recommendation when completed.'') By letter dated June 2, 2004, the
NTSB formally classified the recommendation as FRA requested.
The Task Force reviewed the NTSB's recommendation and the related
issues that FRA presented to it and agreed to address emergency window
exits and rescue access windows on a broad basis, with the goal that
windows for emergency egress and rescue access would be available on
every level of a passenger car in the event that a stairway or interior
door is compromised and access to the primary means of exit (doors) is
blocked. To this end, the Task Force agreed to develop requirements for
emergency window exits on non-main levels of multi-level passenger
cars, and rescue access windows on all levels of these cars, thus
addressing requirements for every seating level of a passenger car.
C. Need for Emergency Communication Systems
Traditionally, conductors and assistant conductors have been relied
upon to relay information to passengers in both normal and emergency
situations through face-to-face communication or by use of the PA
system. However, with smaller crew sizes, passengers may not be able to
tell the crew about a medical emergency, report a fire on board the
train, or provide notification of other safety issues as quickly as may
be necessary. For instance, a passenger in the last car of a train
needing to report an
[[Page 6375]]
emergency situation could potentially have to walk the entire length of
the train to communicate with the conductor (assuming the crew is
composed of an engineer and only one conductor). Further, if the
conductor became incapacitated, passengers would need to communicate
directly with the engineer.
FRA also notes that the NTSB's report on its investigation of the
February 9, 1996 collision near Secaucus, NJ, that involved two New
Jersey Transit Rail Operations (NJTR) trains and resulted in three
fatalities and numerous injuries, touches on the importance of
emergency communication systems to prevent panic and further injuries.
According to the NTSB report of the accident investigation,
[a]lthough the train crews said that they went from car to car
instructing passengers to remain seated, passengers said that they
were not told about the severity of the situation and were concerned
about a possible fire or being struck by an oncoming train. They
therefore left the train and wandered around the tracks waiting for
guidance, potentially posing a greater hazard because of the leaking
fuel from train 1107.
No crewmember used the public address system to communicate with
passengers. By using the public address system, all passengers would
have received the same message in less time than it would have taken
the NJT employees to walk from car to car.
The report also stated:
Information about the possibility of a fire or a collision with
an oncoming train could have been provided to passengers over the
public address system to address their concerns and prevent them
from leaving the train. The Safety Board concludes that the lack of
public announcements addressing the passengers' concerns caused them
to act independently, evacuate the train, and wander along the
tracks, thus potentially contributing to the dangerous conditions at
the collision site.
NTSB/RAR-97/01, at p. 27.
In 1998, APTA recognized the importance of emergency communication
systems when it issued APTA SS-PS-001-98, ``Standard for Passenger
Railroad Emergency Communications,'' noting that the establishment and
execution of communications among train crews, operations control
personnel, and train passengers are of the utmost importance under
normal circumstances. According to the APTA standard, during emergency
situations such communications take on added importance in the task of
assuring the safety of all involved.
While the Passenger Equipment Safety Standards issued in 1999 by
FRA contain requirements for two-way emergency communication systems
for Tier II passenger equipment (trains operating at speeds exceeding
125 mph, but not exceeding 150 mph), there are no requirements that
Tier I passenger cars be equipped with any emergency communication
system. In that rulemaking, concern had been raised about the
practicability of applying such requirements to Tier I passenger
equipment because of the interoperability of such equipment and the
possible incompatibility of communications equipment in a Tier I
passenger train. See 64 FR 25540, 25641 (May 12, 1999). Nevertheless,
most existing passenger cars are equipped with PA systems, and intercom
systems are common in new passenger cars.
FRA notes that, while there are many possible ways for an emergency
situation to arise on a passenger train, an emergency system may be
useful in many situations, regardless of the origin of the emergency.
In this regard, emergency communication systems provide the added
benefit of conveying information about security threats and handling
security concerns. According to TSA, terrorists have considered attacks
on subways and trains in the U.S., and TSA has found that passenger
railroads and subways in the U.S. are particularly high-consequence
targets in terms of potential loss of life and economic disruption.
DHS, including TSA, as well as DOT's FRA and FTA have been actively
engaged in responding to the threat of terrorism to our Nation's rail
system, and have undertaken numerous initiatives to advance the safety
and security of railroad passengers, railroad employees, and the public
as a whole. Consistent with this response, the ability of passengers to
timely report suspicious items and suspicious activity onboard
passenger trains to appropriate personnel increases the likelihood of
detecting terrorist planning activity or an attempted attack and
thwarting it, or at least disrupting it and minimizing its
consequences. This would also be facilitated by the ability of the
train crew to timely communicate emergency information and instructions
to passengers in response to a security threat.
FRA also notes that emergency system requirements for such features
as emergency window exits and emergency lighting, which were not
specifically developed to address security threats, may play a critical
role in minimizing the consequences of a terrorist attack onboard a
passenger train. The safety and security functions that passenger train
emergency systems may serve make them vital, and further enhancements
and additions to emergency systems should be explored both to reduce
the risk of a terrorist attack to passenger trains, to minimize the
consequences of such an attack if it occurs, and to promote passenger
train safety overall.
D. Window Technology
A ``zip-strip'' is a strip of rubber gasketing that holds a window
panel in place and is capable of being pulled, or pried and then
pulled, like a zipper from the panel that it holds. Zip-strips have
been used for window removal for some time. Yet, the introduction of
windows using zips-strips on both faces of the same window has allowed
railroads to designate for rescue access those windows that are best
suited for that purpose, without impacting the selection of emergency
window exits or compromising compliance with safety glazing
requirements. Before this technology was available, railroads that used
zip-strips for window removal had to decide which windows would be
designated for emergency egress and which would be designated for
rescue access, as there was only one zip-strip available to open.
Equipping cars with more rescue access windows with zip-strips meant
having fewer emergency window exits, all things being equal, even
though it would be preferable to have more emergency window exits than
rescue access windows as occupants should normally begin to self-
evacuate via emergency window exits before emergency responders arrive
to assist. Whereas railroads could generally designate any window for
rescue access by providing instructions for removal using tools
normally available to emergency responders to pop out a window, such as
a sledge hammer or a fire axe, some railroads prefer to equip windows
with exterior zips-strips for rescue access because they allow for
window removal with less effort.
In the NPRM, FRA did not propose that the rule require the use of
zip-strips for rescue access windows. Nevertheless, FRA did propose to
recognize ``dual-function windows,'' which serve as both emergency exit
and rescue access windows, through the use of zip-strips on both faces
of the window. FRA has adopted this proposal in the final rule. As
explained below, ``dual-function windows'' afford railroads additional
flexibility in the location of their windows in that railroads are not
required to find locations for emergency window exits distinct from the
locations specified for rescue access windows, and vice-versa.
[[Page 6376]]
E. APTA's Standard for Emergency Evacuation Units
As FRA noted in the preamble to the final rule promulgating the
Passenger Equipment Safety Standards, FRA has had under consideration a
performance standard for emergency evacuation similar to that used in
commercial aviation where a sufficient number of emergency exits must
be provided to evacuate the maximum passenger load in a specified time
for various types of emergency situations. See 64 FR 25550. FRA further
noted that it would evaluate whether an APTA performance standard for
emergency egress, then under development in APTA's PRESS Task Force,
should be incorporated into FRA's standards. 64 FR 25551. FRA's intent
is that such a performance standard would serve to supplement, as
necessary, FRA's minimum requirements for emergency window exits and
door exits.
In 1999, APTA issued APTA SS-PS-003-98, ``Standard for Emergency
Evacuation Units for Rail Passenger Cars.'' This standard assigns to
doors and window exits a numerical value, referred to as an ``emergency
evacuation unit'' (EEU), that is intended to correlate to the speed and
ease of passenger egress. Each emergency window exit is assigned an EEU
of 1, and each door leaf an EEU of 2. The standard defines the ``usable
exit path'' (UXP) as the number of emergency window and door exits that
can be used by passengers after an incident that requires emergency
egress from the vehicle, and provides that the UXP be calculated as
``the sum of EEUs for one side of the car less 50% of car end doors.''
The APTA standard also requires railroads to assign to each new
passenger car a ``capacity exit factor'' (CXF), which is a value equal
to the seating capacity of the car divided by 17 and rounded up to the
next whole number, and to designate a sufficient number of exits to
achieve a total EEU value equal to or larger than the CXF or the UXP.
Although the basic approach to establishing egress requirements
based on car configuration and occupant capacity was widely accepted,
during development of the APTA standard several organizations raised
issues regarding the methodology for assigning EEU values to exits. For
instance, Volpe Center staff suggested that point values for windows be
reduced to numbers that are approximately in proportion to estimated
passenger flow rates as compared with low-platform doors without steps,
and that upper-level windows receive no credit toward the minimum EEU
criterion but still be required to provide exit paths for certain rare
accident scenarios. It was also questioned whether egress rates through
windows could be half as great as through single-leaf doors, as implied
by the standard.
The Task Force reviewed the APTA standard and recommended the
continuation of evacuation test experiments and research to establish
relative exit flow rates using different types of exits at distinct
locations in the car, prior to considering adoption of the APTA
standard into FRA's standards. To this end, the Volpe Center conducted
a series of test experiments on commuter rail car evacuation in August
2005, and in April and May 2006, in Boston, MA, with the cooperation of
the MBTA. Test experiments were conducted under normal and emergency
lighting conditions, and evaluated three different ways of evacuating a
car: Directly into an adjoining car; to a high platform using one or
more side doors; and to a simulated, low platform using side doors with
stairways. A report, which is in the process of being finalized, will
document the results of these test experiments. (Due to safety
concerns, it is not anticipated that test experiments will be conducted
using windows as a means of emergency egress.) FRA does note that the
emergency evacuation approach underlying the requirements in this final
rule is consistent with the basic approach taken in developing APTA's
standard, as the requirements do take into consideration both car
configuration and occupant capacity.
IV. General Overview of Requirements
A. Emergency Window Exits and Rescue Access Windows
Among the most prominent issues identified for consideration by the
Working Group were those involving emergency window exits and rescue
access windows and how these windows relate to the emergency systems
requirements overall. Emergency window exits are intended to supplement
door exits, which serve as the preferred means of egress in an
emergency situation, and provide an alternative means of emergency
egress in life-threatening situations, should doors be rendered
inaccessible or inoperable. Prior to this rulemaking FRA's regulations
had required that each single-level car and each main level of a multi-
level passenger car have a minimum of four emergency window exits,
either in a staggered configuration where practical or with one exit
located in each side of each end, on each level; that these windows be
designed to permit rapid and easy removal during an emergency without
the use of a tool or other implement; and that conspicuous photo-
luminescent marking of the windows, as well as instructions for their
use, be provided. FRA's regulations had also required that windows
intended for rescue access be marked with retroreflective material, and
that instructions for their use also be provided. However, FRA's
regulations did not require any minimum number of rescue access windows
for passenger cars.
One of the basic principles underlying the final rule's
requirements for both emergency window exits and rescue access windows
has been to locate these windows in such a manner that passengers would
be able to exit from, and emergency responders would be able to gain
direct access to, each passenger compartment without requiring that
they first go to another level of a car or through an interior door.
Optimally, there would be a sufficient number of windows for passengers
to exit from, and for emergency responders to get access to, the
following: (i) Every level with passenger seating of a multi-level
passenger railcar; (ii) both sides of the passenger railcar, in the
event of a derailment where the exits on one side are compromised; and
(iii) each end (half) of the passenger railcar, in the event that one
end is crushed or the exits on that end are otherwise rendered
inaccessible or inoperable. A constraint for both new and existing
intermediate levels of multi-level passenger car designs is that there
is limited space for side windows due to the presence of bathrooms,
equipment closets, and side door exits. Thus, the Task Force
recommended making the requirements flexible and consistent with
existing car designs and, in certain cases, providing for exceptions.
The exceptions for new equipment are limited to situations that arise
from the need to provide accessible accommodations under the Americans
with Disabilities Act of 1990 (ADA) in compartments where there are no
more than four seats and a suitable alternative is provided. The Task
Force recommended greater flexibility for existing equipment to avoid
costly window installations where none had previously existed (e.g.,
relocating an electrical closet so that a space large enough to
accommodate a new window could be cut into the side of the car).
During Task Force discussions, it became apparent that the phrase
``rapid and easy'' in the emergency window exit regulation was being
interpreted in different ways by commuter railroads and car
manufacturers. Some believed
[[Page 6377]]
that only the removal of the gasket had to be rapid and easy; however,
FRA clarified that while FRA may have cited examples of gaskets that
were becoming stuck and were therefore not removable in a rapid and
easy fashion, the central goal of this provision is to create an
opening that could be used for egress, which necessarily includes
removal of the window panel as well. If the removal of the gasket is
rapid and easy, but the removal of the window panel is not, the opening
becomes less useful in an emergency situation, or in some cases,
effectively non-existent. Several members of the Task Force also
expressed their concern that the phrase ``rapid and easy'' was too
subjective and not quantifiable. They requested that FRA adopt a more
measurable performance-based standard instead. Yet, various proposals
to do so based on a specific allotment of time to open the window were
not adopted, as consensus was not reached on how that time would be
determined. Variables such as a person's height, weight, strength, and
awareness of emergency exit operation and procedures all could affect
the ease of opening a window. For example, a railroad maintenance
employee who installs emergency window exits or is otherwise trained on
their use should be able to open a window more quickly than many
passengers would be able to do. While there was general agreement that
a time-performance standard should be based on the time taken by a
representative sample of people to open the window, the Task Force was
not in a position to specify that sample.
Although unsuccessful at reaching consensus on an actual measure of
``rapid and easy,'' the Task Force was able to agree that promoting
``rapid and easy'' removal of emergency windows is desirable. A
combination of interior car fixtures, such as headrests and luggage
racks, as well as larger and heavier windows, can create a situation
where the most effective and efficient method for removing a window is
not immediately apparent. As a step towards promoting rapid and easy
removal of the window and to address the situation of particular
concern, the Task Force recommended requiring that instructions
specifically take into account potential hindrances. The instructions
may be in written or pictorial format, since including pictorials
depicting the window removal method as part of the instructions can be
extremely helpful.
As for rescue access windows, the Task Force generally recommended
requiring two windows on each level of a passenger car for rescue
access (versus four as is required for emergency exit). The principal
reason for requiring only two windows for rescue access is that rescue
access windows are the third means of egress in the overall emergency
evacuation approach, in which door exits serve as the first (preferred)
means of egress and emergency window exits serve as the second. Rescue
access windows have this tertiary role because they would be used as a
means of last resort when passengers cannot evacuate themselves and
require aid from emergency responders. The design of window gaskets
also affects how many rescue access windows can be placed in a car,
especially on levels where there is limited space for windows. For
instance, on certain types of cars, zip-strips installed to facilitate
rapid and easy removal of a window can be placed either on the interior
or the exterior of the car, but not on both. In this case, if FRA were
to require four rescue access windows, then a railroad that has cars
with additional emergency window exits (i.e., beyond the minimum of
four per main level) would likely just replace some of its emergency
window exits with rescue access windows, resulting in fewer emergency
window exits, and thereby limiting the more preferred means of egress.
For the above reasons, as well as for the cost of retrofitting existing
equipment, flexibility for locating rescue access windows in side doors
was added for existing equipment.
FRA did not propose, and the final rule does not make, any change
to existing requirements for emergency window exits in sleeping
compartments or similar private compartments. Yet, in establishing
requirements for minimum numbers of rescue access windows in passenger
cars, FRA is requiring that each sleeping compartment or similar
private compartment in a passenger car have a rescue access window. FRA
believes that this new requirement is consistent with current practice.
B. Emergency Communication Systems--PA and Intercom Systems
While the Passenger Equipment Safety Standards issued in 1999 by
FRA contain requirements for two-way (i.e., crew-to-passenger and
passenger-to-crew) emergency communication systems for Tier II
passenger equipment, FRA did not require that Tier I passenger cars be
equipped with any emergency communication system. Nevertheless, most
existing passenger cars are equipped with PA systems, and after
discussing the benefits of PA systems in light of the challenge and
expense of retrofitting older, existing passenger equipment with
limited service life, the Task Force agreed that all passenger cars
should, at a minimum, have functioning PA systems. A PA system allows
the train crew to keep their passengers informed in an emergency
situation and provide instructions to them in a timely manner. In
particular, the train crew can provide instructions to passengers not
to take an action that could place them in any greater danger, such as
instructing them, as appropriate, to remain on the train and not
endanger themselves by unnecessarily evacuating the train on their own.
The Task Force also agreed that emergency communication systems in
all new passenger cars should include intercom systems that would
enable passengers to quickly communicate in emergency situations with
the train crew. During the discussions in developing the NPRM
concerning whether to require intercom systems on Tier I passenger
equipment, some Task Force members expressed concern that if intercom
systems were added at each end of a car, were conspicuously marked, and
had instructions provided for their use, passengers may use them in
non-emergency situations. Amtrak and various commuter railroads that
operate cars with intercom systems indicated that they have
successfully implemented measures to deter misuse, however, such as by
placing the intercom transmission button under a protective covering
(which also prevents accidental operation by a passenger leaning
against it) and by marking it ``FOR EMERGENCY USE ONLY''.
The emergency communication system requirements in this final rule
generally reflect current practice for Tier I passenger equipment
operating with PA and intercom systems and existing requirements for
Tier II passenger equipment. FRA understands that those Tier I
passenger cars that currently do not have PA systems are scheduled to
be retired from service before the requirement to have PA systems on
existing Tier I passenger equipment becomes effective.
C. Emergency Roof Access Locations
Emergency roof access locations (i.e., roof hatches or structural
weak points) can be especially useful in emergency situations where
passenger cars have rolled onto their sides following certain collision
and derailment scenarios. In such situations, doors, which are the
preferred means of egress and access under normal circumstances, may be
rendered inoperable due to structural damage to the door or the door
pocket, or become extremely difficult to use because the car is no
longer upright. Moreover, although emergency
[[Page 6378]]
responders may be able to enter a car that is on its side via a rescue
access window, the removal of an injured occupant through a side window
in such circumstances would likewise be difficult or complicated,
especially depending upon the condition of the occupant.
FRA's 1999 final rule on Passenger Equipment Safety Standards
required emergency roof access locations for Tier II passenger
equipment, but not for Tier I passenger equipment. The Task Force
examined both these requirements and the APTA PRESS recommended
practice RP-C&S-001-98, ``Recommended Practice for Passenger Equipment
Roof Emergency Access,'' in recommending that emergency roof access
requirements be applied to Tier I passenger equipment. FRA adopted the
Task Force's recommendation and, in general, is requiring that each new
passenger car (both Tier I and Tier II) have a minimum of two emergency
roof access locations. Existing Tier I passenger cars are not subject
to the requirements, while existing Tier II passenger cars continue to
be subject to existing requirements. For further discussion and
explanation of the requirements, including the treatment of Tier II
power cars, please see the Section-by-Section Analysis of this preamble
at Section V.
D. Inspection, Testing, and Maintenance
This final rule amends Sec. Sec. 238.17, 238.303, and 238.305
(which contain standards for movement of passenger equipment with other
than power brake defects, for inspection of passenger equipment, and
for repair of passenger equipment) by adding requirements for the
inspection, testing, maintenance and repair of emergency communication
systems, emergency roof access points, and rescue access markings. To
allow railroads sufficient time to repair the equipment with minimal
disruption to normal operations, however, flexibility is provided for
operating equipment in passenger service with certain noncompliant
conditions. In affording this flexibility, the final rule requires the
railroad to adhere to specified procedures for the safe operation of
the equipment.
V. Section-by-Section Analysis
This section-by-section analysis explains the provisions of the
final rule and any changes made from the 2006 NPRM. Of course, a number
of the issues and provisions involving this rule have been discussed
and addressed in detail in the preceding discussions. Accordingly, the
preceding discussions should be considered in conjunction with those
below and will be referenced as appropriate.
Amendments to 49 CFR Part 223, Safety Glazing Standards--Locomotives,
Passenger Cars and Cabooses
Subpart A--General
Section 223.5 Definitions
This section, which contains a set of definitions of terms used in
part 223, has been modified to clarify the definition of one term and
to remove the definitions of two terms that are no longer used in the
part because of the removal of Sec. 223.9(d)(2).
The definition of ``emergency window'' has been revised in this
section, as well as in Sec. 238.5 of this chapter, to clarify that the
purpose of an emergency window is egress, and thus an emergency window
needs to be removable only from the inside of a passenger car.
Accordingly, FRA has revised the definition of ``emergency window'' to
mean the segment of a side-facing glazing panel that has been designed
to permit rapid and easy removal from inside a passenger car in an
emergency situation. FRA has also removed the definitions ``emergency
responder'' and ``passenger train service'' in accordance with the
removal of Sec. 223.9(d)(2), the only section in part 223 that
referenced these terms. The definition ``emergency responder'' has been
moved to part 238 of this chapter.
Subpart B--Specific Requirements
Section 223.9 Requirements for New or Rebuilt Equipment
In the discussion of Sec. 223.5, FRA has noted that the definition
of ``emergency window'' has been amended to clarify that the purpose of
the windows is egress, and thus such a window would need to be
removable only from the inside of a passenger car. Section 223.9(c)
required ``at least four emergency opening windows.'' As the term
``emergency opening window'' was not specifically defined--but had been
understood to mean ``emergency window''--FRA has modified the rule text
in Sec. 223.9(c) to require ``at least four emergency windows'' and
restructured the section in order to provide more clarity.
FRA has removed Sec. 223.9(d) and merged the requirements
previously contained therein into Sec. Sec. 238.113 and 238.114 of
part 238. The requirements in Sec. 223.9(d) had been added by FRA's
May 4, 1998 final rule on Passenger Train Emergency Preparedness. See
63 FR 24629, 24643. The Passenger Train Emergency Preparedness final
rule required the marking of both emergency window exits and windows
intended for rescue access, and also required that instructions be
provided for their use. However, the requirements applied only to
``each railroad providing passenger train service,'' a class of train
service purposefully narrower than the general application section in
part 223. See Sec. 223.9. Because FRA has addressed marking and
instruction requirements for such windows in this train service in part
238, and because the requirements of Sec. 223.9(d) did not apply to
other equipment covered by part 223, they have been removed from part
223, along with the corresponding definition of ``emergency responder''
and ``passenger train service.'' Further, removal of Sec. 223.9(d)
avoids creating any confusion due to duplication of the marking and
instruction requirements in two different parts of the CFR, especially
since the marking requirements in part 238 that have been adopted by
FRA vary somewhat from the ones that were contained in Sec. 223.9(d).
Nevertheless, Sec. 223.8 will continue to alert the reader to
additional requirements for emergency window exits for ``passenger
equipment'' in part 238, as defined in that part.
However, because the ``application'' section of part 223 is broader
than that of part 238, FRA has been mindful not to alter the
application of those part 223 requirements unaffected by the May 4,
1998 amendments. Part 238 does not apply to ``tourist, scenic,
historic, or excursion operations, whether on or off the general
railroad system of transportation,'' see Sec. 238.3(c)(3); whereas,
part 223 does not apply to ``locomotives, passenger cars and cabooses
that are historical or antiquated equipment'' and are also ``used only
for excursion, educational, recreational purposes or private
transportation purposes,'' see Sec. 223.3(b)(3). As a result of this,
for example, tourist equipment that is covered by part 223 because the
equipment is not historical or antiquated and is required to be
equipped with certified glazing in all windows pursuant to Sec.
223.9(c) or 223.15(c), is still required to have four emergency windows
(emergency window exits), despite its exclusion from the part 238
requirements.
Appendix B to Part 223--Schedule of Civil Penalties
This appendix contains a schedule of civil penalties to be used in
connection with this part. Because such penalty schedules are
statements of agency policy, notice and comment are not required prior
to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA
[[Page 6379]]
invited comment on the penalty schedule, but no comment was received.
FRA has amended the penalty schedule. As discussed above, FRA has
merged the requirements of Sec. 223.9(d) into Sec. Sec. 238.113 and
238.114. Accordingly, FRA has modified the schedule of civil penalties
in appendix B to part 223 by removing the entries for paragraphs
(d)(1)(i), (d)(1)(ii), (d)(2)(i), and (d)(2)(ii) of Sec. 223.9 and the
associated penalties. FRA has also revised footnote 1 to clarify the
use of penalty codes in the penalty schedule.
Amendments to 49 CFR Part 238, Passenger Equipment Safety Standards
Subpart A--General
Section 238.5 Definitions
This section, which contains a set of definitions of terms used in
part 238, has been modified to include definitions of terms used in
modifications to part 238.
FRA has added the definition of ``dual-function window'' to mean a
window that is intended to serve as both an emergency window exit and a
rescue access window. This term generally refers to a window that has a
zip-strip, which is a strip in a window gasket that can be pulled from
end to end to unlock the gasket and thus release the glazing, on both
faces, so that it can be opened from both the inside of the car and the
outside. (This definition also covers other methods of opening the same
window from both the inside of the car and the outside.) The term has
been added because it is referenced in Sec. 238.114(a)(5) as an
exception to the requirements on the location of rescue access windows
set forth in Sec. 238.114. Dual-function windows installed to meet the
minimum requirements contained in Sec. 238.113 are not required to
meet the Sec. 238.114 rescue access window location requirements, in
order to recognize that a railroad that installs four compliant
emergency window exits that are the dual-function type has also
installed twice the number of rescue access windows required.
FRA has revised the definition of ``emergency window'' to clarify
that the purpose of an emergency window is egress, and thus such a
window needs to be removable only from the inside of a passenger car.
Accordingly, FRA has amended the definition to mean the segment of a
side-facing glazing panel that has been designed to permit rapid and
easy removal from inside a passenger car in an emergency situation. FRA
has also revised the definition of this term in Sec. 223.5 for
consistency and clarity.
FRA has added the definition of ``intercom'' to mean a device
through which voice communication can be transmitted and received. A
transmission unit normally has a button, which has to be pressed to
begin transmission or notify the crew on the receiving end of the
intention to communicate using the system. An intercom may be a
telephone apparatus. FRA has also added the definition of ``intercom
system'' (or ``intercommunication system'') to mean a two-way, voice
communication system. This system allows a passenger to communicate
with a crewmember, typically by pressing a button, or lifting a
telephone handset, or both.
FRA has added the definition of ``intermediate level'' to mean a
level of a multi-level passenger car that is used for passenger seating
and is normally located between two main levels. An intermediate level
normally contains two, separate seating areas, one at each end of the
car, and is normally connected to each main level by stairs. The term
``intermediate level'' is intended to distinguish a level used for
passenger seating of a multi-level passenger car from a ``main level''
of such a car, as FRA has applied different requirements to the
different passenger seating levels. Please see the discussion of ``main
level,'' below.
Previously, the regulatory text of part 238 did not define the term
``main level,'' as used in Sec. 238.113. However, in the preamble to
the April 23, 2002 final rule, FRA explained that the term ``main
level'' was intended to exclude a level of a car that is ``principally
used for passage between the door exits and passenger seating areas, or
between seating areas,'' and noted that such an area is not
``principally used for seating'' and includes a stairwell landing. See
67 FR 19973. This distinction raised some concerns with respect to
intermediate levels because their designation as main levels would
hinge upon an interpretation of ``principally used'' for passenger
seating. Some Task Force members believed that these levels were
principally used for passenger seating because passengers who are
seated there are spending more time on that level than the passengers
who simply use that level to reach the upper level (or lower level).
Others believed that the intermediate level was principally used for
passage between levels because there was a greater volume of passengers
passing through that level to reach the upper level (or passing through
to reach the lower level, or both) than there were passengers seated on
that level. In light of the concerns raised, FRA has defined
``intermediate level,'' as discussed above, and has also defined ``main
level'' as a level of a passenger car that contains a passenger
compartment whose length is equal to or greater than half the length of
the car. This definition establishes a more direct relationship between
the number of occupants on a level of a car and the number of emergency
window exits required on that level. The longer a level is, the more
seats and exterior side windows it is able to accommodate. Since
passenger cars are normally about 85 to 90 feet in length, a main level
in such a car would be a level that contains a passenger compartment
whose length is approximately 42.5 feet or more. Accordingly, there
should be sufficient space for the required number of emergency window
exits on a main level of a passenger car, whether or not there is a
bathroom, kitchen, or equipment closet located on the same level.
FRA has added the definition of ``PA system'' or ``public address
system'' to mean a one-way, voice communication system. Such a system
is used by train crew members to make announcements to passengers in
both normal and emergency situations. Crew members may use the PA
system to make routine station announcements as well as to communicate
information regarding unusual occurrences, such as unexpected delays
and emergencies. If a person requires immediate medical attention, the
crew may also use the PA system to request assistance from someone
onboard with medical training. Some PA systems have speakers located on
the exterior of cars that are used to make announcements to persons in
the vicinity of the train (e.g., passengers on a station platform).
FRA has added the definition of ``passenger compartment'' to mean
an area of a passenger car that consists of a seating area and any
vestibule that is connected to the seating area by an open passageway.
If a door separates the seating area from the vestibule, the vestibule
is not part of the passenger compartment. See Figure 1c to subpart B.
This definition was necessary to solidify the concept that passengers
should not have to go through an interior door, which could get jammed,
or to another level in order to reach an emergency window exit, and
likewise, emergency responders should be able to directly access
passengers in need of aid in each such compartment.
Consistent with the amendments to part 223, discussed above, FRA
has defined ``rescue access window'' as a side-facing exterior window
intended for use by emergency responders to gain
[[Page 6380]]
access to passengers in an emergency situation. In some passenger cars,
all windows may be capable of serving as both emergency window exits
and rescue access windows. However, a railroad may choose not to
designate one or more of these windows for rescue access for various
reasons, including the presence of a third-rail shoe that could pose an
electrocution hazard, or a high seatback next to the window that may
pose a potential hindrance to window removal for windows that are
designed to open by being pushed into the car.
Some rescue access windows are designed with a zip-strip to release
the window panel from its frame. In some cars, side-facing glazing
systems are designed so that there is a zip-strip on only one side of
the window panel. It is common for railroads to install such systems
with a zip-strip on the exterior of the car for rescue access use, and
also have one in the interior of the car for emergency egress use.
However, to the extent that there may be only one zip-strip for a
single glazing system, the railroad must decide whether to place the
zip-strip on the exterior of the car for use in rescue access, or in
the interior of the car for use in emergency egress.
Although use of zip-strips in rescue access windows is common, FRA
makes clear that they are not required. The adopted definition is a
performance standard, and a rescue access window may be opened by other
means, such as by shattering the window (if glass) or by popping the
window out by applying force at one corner.
Throughout the discussion of rescue access windows, Task Force
members repeatedly emphasized, as the definition reflects, that these
windows are intended for use by emergency responders to gain access to
passengers in an emergency situation. In the process of reviewing the
definitions in parts 223, 238, and 239 in composing the NPRM and this
final rule, FRA noted that the term ``emergency responder'' was defined
in parts 223 and 239, but not in part 238. As the adopted part 238
definition of ``rescue access window'' includes the term ``emergency
responder,'' FRA believed it was appropriate to add the definition of
``emergency responder'' to part 238. The term has been defined to mean
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.
FRA has added the definition of ``retroreflective material'' to
mean a material that is capable of reflecting light rays back to the
light source and that conforms to the specifications for Type I
Sheeting, as specified in ASTM International's (ASTM) Standard D 4956-
07, ``Standard Specification for Retroreflective Sheeting for Traffic
Control.'' ASTM International defines Type I Sheeting as ``medium-
intensity retroreflective sheeting referred to as `engineering grade'
and typically enclosed lens glass-bead sheeting,'' and FRA has
incorporated the ASTM definition by reference. This newly added
definition is consistent with the definition and requirements for
retroreflective material markings for doors, windows, and roof
locations intended for rescue access contained in APTA Standard SS-PS-
002-98, Rev. 3, ``Standard for Emergency Signage for Egress/Access of
Passenger Rail Equipment.'' (As discussed further in the Section-by-
Section Analysis, Revision 3 of this Standard was authorized by APTA on
October 7, 2007.) FRA notes that this APTA standard also requires that
the retroreflective material be tested according to ASTM's Standard E
810-03, ``Standard Test Method for Coefficient of Retroreflective
Sheeting Utilizing the Coplanar Geometry.''
FRA has added the definition of ``seating area'' to mean an area of
a passenger car that normally contains passenger seating. An area with
no actual seats but with anchors for securing wheelchairs is considered
a seating area.
FRA notes that the term ``vestibule'' is defined in part 238 to
mean an area of a passenger car that normally does not contain seating
and is used in passing from the seating area to the side exit doors.
Although FRA has not revised the definition of ``vestibule,'' FRA makes
clear that for purposes of part 238, a vestibule may be located
anywhere along a car. The location of a vestibule is not restricted to
the far ends of a car but may be elsewhere, such as in the middle of
the car. As a result, what some in the passenger rail industry commonly
refer to as an entranceway, by virtue of where it is located in a car,
it is considered a vestibule for purposes of this part.
Section 238.17 Movement of Passenger Equipment With Other Than Power
Brake Defects
This section contains the requirements related to the movement of
passenger equipment with a condition not in compliance with part 238,
excluding a power brake defect, without civil penalty liability under
this part. FRA has modified paragraphs (b) and (c) of this section to
include a reference to the specific provisions added to the exterior
calendar day mechanical inspection in Sec. 238.303(e)(18) regarding
rescue-access-related markings, signage, and instructions. Section
238.303(e)(18) requires that all rescue-access-related exterior
markings, signage, and instructions required by Sec. 238.114 (rescue
access windows) and Sec. 239.107(a)(2) (door exits intended for
emergency access) be in place and, as applicable, conspicuous, and/or
legible, and that certain conditions be met for continued use of the
cars with defective markings, signage, or instructions. As these
provisions contain specific requirements related to the continued use
in passenger service of passenger cars found with defective rescue
access signs, markings, or instructions, recognition of these specific
limitations is included in both paragraphs (b) and (c) of this section.
The requirements in Sec. 238.303(e)(18) and the conditions for
continued use of passenger equipment with non-complying conditions are
discussed in detail, below.
In the NPRM, FRA noted that it was considering moving the emergency
exit marking requirements contained in Sec. 239.107(a) into part 238,
and FRA invited comment on whether FRA should do so in the final rule.
FRA explained that since Sec. 239.107(a) contains requirements for
door exit marking, signage, and operating instructions, the
requirements of that section may more logically be situated in the very
sections containing requirements for door exits in part 238, namely,
Sec. Sec. 238.235 and 238.439. However, no comment was received on
this matter, and the Task Force advised that it is not necessary to
move these requirements into part 238 at this time. The Task Force
noted that it would be advisable to consider incorporating by reference
the APTA standard containing more specific requirements for emergency
exit markings in a future rulemaking, instead of making non-substantive
changes concerning where these requirements are currently stated in the
CFR. FRA agreed with the Task Force's recommendation, and has left the
rule unchanged in this regard at this time.
Subpart B--Safety Planning and General Requirements
Section 238.113 Emergency Window Exits
Prior to this final rule, this section contained requirements for
emergency window exits in single-level passenger cars and in main
levels of multi-level passenger cars only. Again, emergency window
exits are intended to
[[Page 6381]]
supplement door exits, which are normally the preferred means of egress
in an emergency situation. Emergency windows provide an alternative
means of emergency egress should doors be rendered inoperable or
inaccessible. They also provide an additional means of egress in life-
threatening situations requiring very rapid exit, such as a fire on
board or submergence of the car in a body of water.
To ensure that emergency window exit requirements apply to every
level with passenger seating, FRA has revised this section expressly to
include emergency window exit requirements for any level with passenger
seating in a multi-level passenger car. FRA has also revised this
section to require that emergency window exit operating instructions
specifically address the presence of interior fixtures that may hinder
the removal of the window panel, to facilitate its rapid and easy
removal.
Paragraph (a). Paragraph (a), which applies to both new and
existing passenger cars, has been modified to specify requirements for
the number and location of emergency window exits on any level with
passenger seating in a passenger car. The requirements for single-level
passenger cars in paragraph (a)(1), and for main levels of multi-level
passenger cars in paragraph (a)(2), have largely remained unchanged
from the May 12, 1999, final rule in which they were adopted (64 FR
25540, 25673). Under the 1999 final rule, single-level passenger cars
were required to have a minimum of four emergency window exits, located
``either in a staggered configuration where practical or with one
located in each end of each side of each level.'' FRA has slightly
modified this language by replacing the word ``end'' with ``end
(half)'' to clarify that the term ``end'' does not refer to the extreme
forward and rear ends of a car, but merely the front and rear halves of
the car. See Figure 1 to subpart B. Additionally, the text has been
reorganized to emphasize that a window is required in each end (half)
of each side of the car and that, if practical, the windows are also to
be in a staggered configuration. This clarification removes any
ambiguity in the former rule text that wrongly suggested that one could
choose to simply stagger the location of the windows without regard to
having one window in each side of each end.
FRA notes that Caltrans submitted a comment on the requirement that
the emergency window exits be in a staggered configuration, where
practical. In its comments, Caltrans stated that its California cars,
which are bi-level, have emergency window exits that are not in a
staggered configuration, but rather ``located symmetrically on each
side of the vehicle''--i.e., on both sides directly across from each
other. Caltrans also stated that the cars have eight emergency window
exits in the upper level, twice as many emergency window exits than it
believed were required under the rule. Nevertheless, Caltrans expressed
concern that the emergency window exit configuration was not compliant
with the requirement for staggering their location where practical, and
requested that the rule make clear that for cars where the number of
emergency window exits exceeds the minimum required for each side and
each half of the car, the staggering of the emergency window exit
locations is not required.
Caltrans also stated in its comments that its Surfliner cars, which
are also bi-level, have 23 emergency window exits on the upper level of
each and at least four on the lower level of each car. In effect, every
window frame in such cars contains an emergency window exit. As a
result, Caltrans expressed concern that it would possibly have to
eliminate emergency window exits in order to located them in a
staggered configuration.
FRA referred these comments to the Task Force for discussion and
its recommendation. FRA expressed its views on Caltrans' comments and
the Task Force agreed that Caltrans' cars were in compliance with the
emergency window exit location requirements and that no change in the
rule text is necessary. The Task Force also agreed with FRA's
recommendation that, instead of modifying the rule, the preamble to
this final rule clarify the intent and application of the emergency
window exit location requirements.
FRA emphasizes that a railroad is not required to stagger the
location of emergency window exits when it is not practical to do so.
Further, FRA makes clear that the requirement to stagger their location
is principally a concern in a situation where only the minimum number
of emergency window exits is present so as to maximize the rate of
egress. That is, train occupants would not otherwise have to crowd the
same two areas to escape out of a window where the minimum number of
emergency window exits are paired across from one another, i.e., paired
symmetrically with respect to the longitudinal centerline of the car.
Yet, where more than the minimum number of required emergency window
exits are present, train occupants have more window exits to escape
through, and there is less concern that any one location would be
crowded. Having examined Caltrans' California and Surfliner cars, and
considered the number of emergency window exits present in each car,
FRA believes that the cars are in compliance with the location
requirements for emergency window exits.
FRA does not believe it necessary to modify the final rule,
however, especially since factors other than the number of emergency
window exits need to be taken into account in deciding whether it is
practical to stagger their location. Instead, FRA is providing the
following examples of instances where it may not be practical to
stagger the location of emergency window exits. For example, if a car
has a symmetrical seating arrangement that includes face-to-face
seating with tables or workstations in between, a railroad may decide
to configure emergency window exits symmetrically with respect to the
longitudinal centerline of the car. Face-to-face seating arrangements
usually provide sufficient clear space for locating emergency window
exits such that they are free of obstruction or potential hindrance by
high seatbacks and thus may be more rapid and easy to operate in an
emergency situation. Railroads may also decide not to stagger emergency
window exits to avoid creating potentially hazardous situations such as
would exist if an emergency window exit were located immediately above
a third-rail shoe that could pose an electrocution hazard. In other
instances, the presence of a rescue access window that does not also
serve as an emergency window exit, the size of a window, or a
combination of these, could make staggering the location of emergency
window exits not practical.
To illustrate the requirements of paragraph (a)(2), FRA has added
Figure 1, as referenced above. FRA had invited comment in the NPRM on
whether this and other figures proposed in the NPRM for inclusion in
part 238 would be helpful in understanding the requirements of this
part, and, if so, whether any additional figures should be included.
FRA also noted that the proposed figures, which were not drawn to
scale, represented possible ways of complying with the proposed
requirements and should not be construed as depicting the only way to
comply. While no written comments were received on this issue, both the
Task Force and the Working Group recommended that FRA retain these
figures in the final rule. FRA has decided to include the figures in
the final rule as proposed.
[[Page 6382]]
Paragraph (a)(3) contains the new requirements for emergency window
exits on non-main levels with seating areas of multi-level passenger
cars, including intermediate (or mezzanine) seating levels. The general
intent of the paragraph is to have at least one emergency window exit
that is accessible to passengers in each side of a passenger seating
area without requiring the passengers to move to another level of the
car or pass through a door. This will help ensure that, if a car rolls
onto its side or if there is a hazard on one side of the train, an
emergency window exit on the opposite side will be available to
passengers and crew members for emergency egress. Nevertheless, as
further discussed below, a constraint for intermediate levels of both
new and existing multi-level passenger car designs is limited space due
to the presence of bathrooms, equipment closets, and side door exits.
Accordingly, the requirements for the number and location of emergency
window exits in paragraph (a)(3) provide flexibility for, and are
consistent with, existing passenger car designs.
FRA notes that in light of adding the new definition of ``main
level,'' some passenger cars will no longer have main levels. Such cars
will thus be subject to the requirements for other levels with seating
areas contained in paragraph (a)(3). For instance, none of the levels
in a gallery-style car (a multi-level passenger car with a full-height,
enclosed vestibule in the center) meet this definition of a ``main
level.'' Yet, each of the four, separate seating areas in such a car is
subject to the emergency window exit number and location requirements
adopted in paragraph (a)(3). Further, the requirements of paragraph
(a)(3) are consistent with the number and location of emergency windows
on existing gallery-style passenger cars, will not impact current
operations, and will not diminish the effect of FRA's existing
requirements.
Paragraph (a)(3)(i) of the final rule, which applies to both new
and existing passenger cars on or after August 1, 2009, generally
requires that non-main levels that are used for passenger seating have
at least two emergency window exits that are accessible to passengers
in each seating area without requiring the passengers to move to
another level of the car or pass through an interior door. This
provision is intended to address situations in which stairways could
become structurally deformed and interior doors could be rendered
inoperable as a result of a collision, derailment, or other accident,
obstructing access to an emergency window exit or a side door exit on
another level or in a vestibule area that is separated from the seating
area by an interior door. Similarly, the provision is intended to
address situations in which a passenger car rolls onto its side as a
result of a collision, derailment, or other accident, by providing that
at least one of these emergency window exits be required in each side
of the passenger car, except as provided below. See Figures 2, 2a, and
2b to subpart B.
This provision also permits an emergency window exit to be located
within an exterior side door in the passenger compartment of a non-main
level, if it is not ``practical'' to place the window exit in the side
of the seating area. It should be noted that, by definition, a side
door is not considered to be located within the ``passenger
compartment'' if an interior door separates the seating area from the
area where the side door is located. The provision requires that there
be an open passageway between the seating area and the vestibule, in
such a circumstance. Use of the word ``practical'' allows railroads and
car builders some discretion regarding the location of an emergency
window exit in a non-main level of a car. For instance, this provision
could be used to address situations where a window in a door in the
same passenger compartment may be better suited for emergency egress
than one in the seating area. In some cars, removal of the windows in
the seating area may be hindered by seatbacks or other fixtures, while
windows in the exterior side doors could potentially be more easily and
rapidly removed. Since there would still be two accessible side windows
in a passenger compartment, one on each side, there is no limitation on
the number of seats that may be in the compartment. Moreover, the door
itself is a means of emergency egress that, if operable, would allow
more rapid and safe egress than exiting through a window. Nevertheless,
because having two emergency exits at the very same location could
result in both exits being rendered inoperable (as by car crush) or
inaccessible (as by fire), FRA decided not to allow the unrestricted
placement of emergency window exits in side doors. FRA makes clear
that, all things being equal, emergency window exits should be placed
in a location separate from side door exits. See Figure 2b to subpart
B; compare to Figure 2a to subpart B.
In determining the appropriate applicability date for the
requirement to have emergency window exits in non-main levels of multi-
level passenger cars, it was noted that, while some passenger cars
already have windows in each side of an intermediate-level seating
area, these windows are not necessarily emergency window exits.
Consequently, some time would be needed to change out the existing
windows with emergency window exits or otherwise retrofit the windows
with pull-handles and make any other modification necessary so that the
windows would meet the requirements for emergency window exits. The
final rule takes this concern into account, and otherwise affords
railroads sufficient time to come into compliance, regardless of the
state of the existing windows, by not making the requirement applicable
until 18 months after publication of the final rule.
Paragraph (a)(3)(ii) contains an exception for non-main levels of
both new and existing multi-level passenger cars. It requires only one
emergency window exit in a seating area in a passenger compartment with
no more than four seats, if it would not be practical to place an
emergency window exit in a side of the passenger compartment due to the
need to provide accessible accommodations under the ADA and a suitable,
alternate arrangement for emergency egress is provided. This exception
would address concerns involving multi-level passenger cars serving
passenger stations with high-platforms, such as on the Northeast
Corridor. Because all passengers enter these cars on the intermediate
level, and disabled passengers are not able to access accommodations on
another level of the cars, any accommodations provided to passengers
are located on the intermediate level. The final rule recognizes this
fact, and the exception applies to both existing and new passenger
cars. However, the exception is limited to situations that arise from
the need to provide accessible accommodations under the ADA, as well as
limited to those seating areas in passenger compartments where there
are no more than four seats and where a suitable alternate arrangement
for egress is provided. Use of the word ``practical'' in paragraph
(a)(3)(ii) is intended to extend flexibility to car builders to locate
an electrical locker or other equipment closet in a side of an
intermediate level at one end of a passenger car without being required
to place an emergency window exit in the same side at that location,
provided the placement of the locker or closet is related to placement
of ADA-accessible accommodations in the intermediate level at the other
end of the car. The limitation concerning the maximum
[[Page 6383]]
number of seats in the passenger compartment is consistent with the
maximum number of seats in existing designs for cars that are being
manufactured with emergency window exits in only one side of each
passenger compartment in an intermediate level.
In requiring that a suitable, alternate arrangement for emergency
egress be provided, such an arrangement must not require the use of a
tool or implement to operate, and must be comparable to an emergency
window exit in terms of being rapid and easy to use. As part of the
Task Force's discussion during the development of the NPRM, Kawasaki
presented a car design with a seating area separated from a vestibule
by an interior door and an alternate arrangement for emergency egress
to address having a distinct emergency window exit on only one side of
the seating area. (A copy of this design has been placed in the docket
for this rulemaking.) The interior door is designed with a removable
window panel (with pull-handles on both sides) to allow passengers
access to the vestibule in the event the door itself were inoperable.
Further, once a passenger accesses the vestibule, there are two
exterior side doors in the vestibule, one on each side, that each
contain an emergency window exit. As a result, in this design, a means
of exiting the car from the side that lacks the distinct emergency
window exit is available to passengers.
A combination of several factors makes this type of arrangement
depicted by Kawasaki a suitable, alternate arrangement for emergency
egress. First, the alternate emergency exit location provides a measure
of redundancy, i.e., a safety factor, in that there are an exterior
side door and an emergency window exit in the same door. The door, if
operable, allows passengers and crewmembers to exit more expeditiously
than through a window. In the event that this door is rendered
inoperable, a window meeting the minimum dimension requirements in
paragraph (c) is available. To the extent that both the door and its
window are inaccessible or inoperable, and the side door exit on the
opposite side of the vestibule is also inaccessible or inoperable, the
exterior side door exits in the adjacent car's vestibule are then next
in sequence for use, since this car design has no end-frame doors
separating adjoining cars. In fact, should the end of the car become
uncoupled from the adjacent car, the vestibule would be open at the
end, allowing passengers direct access to the outside. Regarding the
removable panel in the interior door leading to the vestibule, it
should be noted that it is designed to be polycarbonate, rather than
glass, making it significantly lighter, and thus easier to remove than
a glass panel. Further, the opening created by removing the panel is
large enough for a person to pass through it relatively quickly.
Paragraph (a)(3)(iii) requires passenger cars that were both
ordered prior to April 1, 2009 and placed in service prior to April 1,
2011 to have a minimum of only one emergency window exit in a non-main
level seating area in a passenger compartment with no more than eight
seats, if it is not ``practicable'' to place a window exit in a side of
the passenger compartment (due to the presence of a structure such as a
bathroom, electrical locker, or kitchen). This exception is broader
than the one in paragraph (a)(3)(ii), as it applies to non-main levels
with more seats and is not dependent on providing accessible
accommodations under the ADA. However, it does not apply to new cars.
New car designs must take into consideration the need to provide an
emergency window exit in each side of a passenger compartment.
Use of the word ``practicable'' limits railroad discretion so that
a car subject to this paragraph is required to have an emergency window
exit in a side of a seating area, if a window suitable for such use is
already located there. Nevertheless, FRA notes that a railroad is under
no obligation to install a window in a side of a passenger compartment
for purposes of providing an emergency window exit under this
paragraph, if an emergency window exit is located in either (i) the
other side of the same compartment or (ii) an exterior side door
located in the same side of the compartment. Cutting through a side
panel in an existing passenger car to install an emergency window exit
is not required.
Requirements for cars with sleeping compartments or similar private
compartments have been clarified and moved from former paragraph (a)(2)
to new paragraph (a)(4). Each level of a passenger car with a sleeping
compartment or a similar private compartment intended to be occupied by
a passenger or train crewmember continues to be required to have at
least one emergency window exit in each such compartment. A private
seating area (such as found on certain European trains or on some
antiquated American trains) is a private compartment. FRA notes that,
in a passenger car with only sleeping compartments, if all the sleeping
compartment doors are locked, passengers in a compartment without an
egress window would not be able to get into another compartment to use
an emergency window exit. The rule clarifies that, for purposes of this
paragraph, a kitchen, locomotive cab, or bathroom--whether public or
private--is not considered a ``private compartment,'' however. In
particular, a bathroom is not considered a ``private compartment'' for
purposes of this requirement because a bathroom should normally be
located either in a sleeping compartment or in a passenger compartment,
both of which are subject to emergency window exit requirements. As a
result, a passenger should have access to an emergency window exit upon
exiting a bathroom.
Paragraph (b). As part of the revision and reorganization of this
section, paragraph (b) contains the same requirements for ease of
operability of emergency window exits that were stated in former
paragraph (a)(3) of the regulation. The only modification is that the
applicability date of November 8, 1999, which was stated in the
introductory text of paragraph (a), has been added directly to this
paragraph (b). FRA notes that the Task Force considered alternatives to
the existing standard for the ease of operating emergency window
exits--one that would be capable of more objective quantification. One
such alternative that was considered involved specifying a maximum
pull-force for removing window gaskets and glazing, but the Task Force
found it difficult to specify a uniform standard that would account for
varying operating environments and weather conditions. Further
discussion relating to the requirements of paragraph (b) is found below
in the paragraph discussing the requirements for marking emergency
window exits.
Paragraph (c). Consistent with the reorganization and revision of
this section, FRA has moved existing requirements for the dimensions of
emergency window exits from former paragraph (b) to paragraph (c). The
applicability date of the dimension requirements is unchanged from
former paragraph (b); thus, the requirements continue to apply to each
passenger car ordered on or after September 8, 2000, or first placed in
service on or after September 9, 2002. FRA has slightly modified the
requirements to allow an emergency window exit with an unobstructed
opening of at least 24 inches horizontally by 26 inches vertically to
be located within an exterior side door, in accordance with the
requirements of paragraph (a)(3)(i) of this section, as discussed
above. FRA makes clear that, for purposes of determining compliance
with the emergency window exit dimension requirements, the dimensions
of the
[[Page 6384]]
unobstructed opening are measured after the emergency window exit has
been opened. For example, the transparent area of the window for
viewing use by passengers or train crew members may be several inches
smaller than the opening created once the window is removed, and that
would be acceptable, as long as the opening satisfies the dimension
requirements.
The 1999 Passenger Equipment Safety Standards final rule required
that an emergency window exit in a passenger car ordered on or after
September 8, 2000, or placed in service for the first time on or after
September 9, 2002, have an unobstructed opening with minimum dimensions
of 26 inches horizontally by 24 inches vertically. Prior to the
promulgation of this requirement, FRA had not specified the dimensions
of emergency window exits. As a result, in the August 2006 NPRM, FRA
stated that a window exit in such a passenger car that does not create
an unobstructed opening meeting these minimum dimension requirements
may not be considered an ``emergency window exit'' for purposes of this
section and may not be marked as an ``emergency window exit.'' See 71
FR 50288. Yet, FRA noted that it did not believe it necessary to modify
or remove such a window exit, provided the passenger car containing the
window exit is otherwise in compliance with all applicable emergency
window exit requirements. Id.
For example, FRA is aware of window exits that are not capable of
creating openings of the required dimensions because of the presence of
seatbacks that do not manually recline and may, therefore, obstruct
passage through the window of a stretcher or an emergency responder
with a self-contained breathing apparatus but not necessarily a
passenger or crewmember. Certain emergency window exit designations
appear to have been made independently of interior seat configurations,
and this has resulted in the expense of relocating emergency window
exit locations post-delivery. However, FRA does not intend to
discourage a railroad from retaining these additional window exits in
its passenger cars, even if they would not create openings of the
required dimensions, out of the agency's concern for circumstances such
as those present in the derailment of an Amtrak train near Mobile, AL,
in September 1993. There, after a barge had struck and displaced a
railroad bridge, an Amtrak train traversing the bridge derailed and
fell into a bayou, drowning 42 passengers and two crewmembers, and
killing three other crewmembers located in the lead locomotive. In what
has been the Nation's deadliest passenger train accident in over 50
years, train occupants needed to evacuate as quickly as possible from
cars filling with water, potentially making the number of window exits
more critical than their precise dimensions. (FRA is not suggesting
that the cars lacked a sufficient number of exits; nor is FRA
suggesting that their exits' dimensions were too small. FRA is citing
this incident to show that circumstances can exist where there may be
extreme urgency to exit a passenger car.)
FRA invited comment on the issue of window exits in passenger cars
ordered on or after September 8, 2000, or placed in service for the
first time on or after September 9, 2002, that have window exits not
meeting the minimum dimension requirements. FRA specifically invited
comment on whether these window exits should be removed--i.e., replaced
with conventional windows--and, to the extent that they should not be
removed, whether any instructional marking on these windows should be
permitted. Since these windows could be used for emergency egress if
they are not removed, FRA also invited comment as to whether they
should have to be tested periodically to ensure that they operate
properly. FRA noted that railroads are currently required to test
emergency window exits no less frequently than every 180 days using
commonly accepted sampling techniques to determine how many windows to
test. See Sec. 239.107 of this chapter. In general, these sampling
techniques require that the greater the percentage of window exits that
a railroad finds defective in a sample, the greater the percentage of
windows that the railroad has to test in total (i.e., the number of
windows that need to be tested is adjusted upward when defects are
found). Specifically, sampling should be conducted to meet a 95-percent
confidence level that no defective units remain and be in accord with
either Military Standard MIL-STD-105(E), ``Sampling for Attributes,''
or American National Standards Institute (ANSI)/ASQC Z1.4-1993,
``Sampling Procedures for Inspections by Attributes.'' (FRA notes that
MIL-STD-105(E) was formally cancelled by the U.S. Department of Defense
on February 27, 1995. The cancellation notice stated that future
acquisitions should refer to acceptable non-Government standard
sampling procedures and tables for inspection by attributes, such as
ANSI/ASQZ Z1.4-1993.)
FRA also noted that, although testing these window exits would
appear desirable, a testing requirement may discourage railroads from
retaining these window exits at all.
The Task Force considered these issues and, for passenger cars
ordered on or after September 8, 2000, or placed in service for the
first time on or after September 9, 2002, recommended allowing
railroads to designate as ``additional'' emergency window exits those
windows that provide an unobstructed opening that is smaller than 24
inches vertically by 26 inches horizontally but that would still be
suitable for use in an emergency. The Task Force further recommended
that such ``additional'' emergency window exits be marked for emergency
exit, have instructions provided for their use, and be tested in the
same manner as the emergency window exits designated for purposes of
complying with the minimum number requirements of this section 238.113.
FRA agrees with the recommendation of the Task Force and has
revised paragraph (c) accordingly. There are now two exceptions to the
requirements concerning dimensions, and they are contained in newly
added paragraphs (c)(1) and (c)(2). The first exception, which was
originally proposed in the NPRM as part of the text of paragraph (c),
is that an emergency window exit located within an exterior side door
in accordance with paragraph (a)(3)(i) of this section, may have an
unobstructed opening with minimum dimensions of 24 inches horizontally
by 26 inches vertically, rather than 26 inches by 24 inches. The second
exception addresses the dimensions of ``additional'' emergency window
exits. It provides that any additional emergency window exit, beyond
the minimum number required by paragraph (a) of this section, that has
been designated for emergency use by the railroad need not comply with
the minimum dimension requirements in paragraph (c) of this section,
but must otherwise comply with all applicable emergency window exit
requirements. Under this new section, there is no obligation for a
railroad to designate any such ``additional'' emergency window exits
not meeting the minimum dimension requirements, in the same way that
there is no obligation for a railroad to have more than the minimum
number of emergency window exits that comply with the dimension
requirements. Nevertheless, when a railroad does seek to have in its
passenger cars more than the minimum number of emergency window exits,
FRA encourages the railroad to follow the dimension requirements for
those additional
[[Page 6385]]
window exits as well, all things being equal.
In those circumstances where any additional emergency window exit
cannot meet the dimension requirements, namely in the case of an
existing passenger car where the seating configuration causes a
seatback to obstruct part of the opening, but the window exit is still
considered suitable for use in an emergency to exit the car, the
railroad may designate it as an ``additional'' emergency window exit.
FRA notes that while a railroad will most often designate an additional
emergency window exit by marking it for use, designation could also
occur by design (i.e., if a pull handle is present) or by written or
verbal notice to passengers as part of the railroad's passenger safety
awareness program.
FRA chose not to adopt a similar exception to the dimension
requirements for rescue access windows because the additional rescue
access windows are not likely to be as useful in an emergency situation
requiring immediate evacuation (e.g., to escape water, smoke or fire)
as additional emergency window exits. This also helps to ensure that
there will be no confusion as to whether or not the rescue access
window is of the appropriate size to accommodate an emergency responder
equipped with breathing equipment and a standard-sized stretcher. To
the extent that emergency responders use emergency window exits to
evacuate passengers (e.g., if a responder chose to enter through an
already-opened emergency window exit rather than going through the
process of pulling open a rescue access window), FRA expects that the
training made available to emergency responders on affected railroads
would include discussion on the fact that some of these window openings
may have smaller dimensions than those required for the minimum number
of emergency window exits specified in paragraph (a). At the same time,
the Task Force also recognized that emergency responders are well-
trained and should be able to determine whether a window opening is
large enough to accommodate a stretcher.
Paragraph (d). As the final part of the reorganization and revision
of this section, paragraph (d) has been added and contains the
requirements for marking emergency window exits, as well as providing
operating instructions for their use. Marking and operating instruction
requirements for emergency window exits were formerly contained in
Sec. 223.9(d)(1) of this chapter, and were referenced in paragraph (c)
of this section. The requirements in Sec. 223.9(d)(1) have been to
moved to paragraph (d) of this section and modified. Paragraph (d)
requires that each emergency window exit be conspicuously marked with
luminescent material on the inside of each car, and that legible and
understandable operating instructions, including instructions for
removing the window panel, be posted at or near each such window exit.
Notably, paragraph (d) specifically requires that emergency window
exit operating instructions address potential hindrances to removal of
the window panel due to the presence of fixtures in the car. As
discussed above, FRA became aware that the phrase ``rapid and easy'' in
the requirement for emergency window exit ease of operability was not
being interpreted uniformly. Central to the issue was the actual
removal of the window panel in light of the weight of the window panel
and the presence of interior fixtures near the window. It is not
uncommon for a seatback to be located adjacent to an emergency window
exit and for a luggage rack to be located above the exit. Even if the
seatback does not affect compliance with the dimensions required for an
unobstructed opening (especially in the case of a large window panel),
it could, together with the presence of the luggage rack, hinder
removal of the window. This combination of fixtures could create a
situation where the most effective and efficient method for operating
an emergency window exit would not be immediately apparent to a
passenger, especially if the window were large and heavy. As a result,
to promote the rapid and easy removal of the window panel, the Task
Force recommended requiring that emergency window exit operating
instructions specifically take into account such potential hindrances.
Accordingly, if removal of a window (whether it is one of the minimum
number required or an ``additional'' emergency window exit) may be
hindered by the presence of a seatback, headrest, luggage rack, or
other fixture, the instructions must state the method for allowing
rapid and easy removal of the window panel, taking into account the
fixture(s). This particular portion of the instructions may be in
written or pictorial format to provide railroads the flexibility to
convey the appropriate information to passengers, especially since a
picture (pictogram) or pictures (pictograms) may potentially convey the
information more readily than written instructions.
FRA also notes that former Sec. 223.9(d)(1) required that the
operating instructions for emergency window exits be ``clear and
legible.'' FRA has modified this requirement by replacing the word
``clear'' with the word ``understandable,'' so that railroads are
required to post ``legible and understandable'' operating instructions.
Use of the word ``clear'' in former Sec. 223.9(d) had created some
confusion since it can have more than one meaning, and FRA believes
this amendment eliminates any further confusion.
Finally, FRA notes that existing requirements in parts 223 and 239
for the marking of emergency exits, as well as existing requirements in
part 238 for the marking of emergency communications transmission
points, specify the use of luminescent materials. (Door exits intended
for emergency egress may also be lighted, in accordance with Sec.
239.107(a)(1).) Part 238 defines ``luminescent material'' as material
that absorbs light energy when ambient levels of light are high and
emits this stored energy when ambient levels of light are low, making
the material appear to glow in the dark. See Sec. 238.5. Paragraph (d)
continues to require that luminescent material be used to mark
emergency window exits. However, as further discussed below, the Task
Force has considered incorporating an APTA standard that would
establish specific criteria for this material, including how bright the
material must be and how long the material must stay luminescent.
FRA's requirements to mark emergency window exits and other
emergency exits originated with FRA Emergency Order No. 20. See 61 FR
6876, (Feb. 22, 1996); and 61 FR 8703 (Mar. 5, 1996). Among its
provisions, the emergency order required that ``no later than April 20,
1996, commuter and intercity passenger railroads ensure that each
emergency exit location is marked inside the car for passenger and crew
information.'' In an effort to respond to this requirement as
effectively as possible within the short timeframe required, affected
railroads began to install photo-luminescent emergency exit markings
that were available at the time. Many railroads installed signs made of
zinc-sulfide, which were capable of providing luminance only for a
period of less than 10 minutes in many cases. Subsequently, photo-
luminescent sign technology evolved, and other materials began to be
used, such as strontium-aluminate, which is capable of providing high
levels of luminance for much longer periods. Prices for such signage
also decreased, making the cost of such ``high-performance, photo-
luminescent'' (HPPL) signs comparable to that of the
[[Page 6386]]
signs installed initially. Thus, in 1999, APTA issued APTA SS-PS-002-
98, ``Standard for Emergency Signage for Egress/Access of Passenger
Rail Equipment,'' requiring the use of HPPL materials for all newly-
installed, passive emergency-exit signs and for the retrofit of
existing cars at their remanufacture. According to Revision 2 of this
APTA standard, issued in 2003, following a charge of five foot-candles
for one hour, installed photo-luminescent markings had to emit not less
than a minimum of 7.5 milli-candela per square meter (7.5 mcd/m\2\) for
90 minutes after removal of the charging source. The APTA standard set
the duration period of 90 minutes to correspond with the 90-minute
duration requirement for emergency lighting contained in Sec. 238.115
for new passenger cars, which affords a reasonable amount of time for
passengers and crew members to wait for the arrival of emergency
responders to remote accident sites. Depending on the circumstances, it
could take more than an hour for crewmembers to evaluate an emergency
situation, coordinate with the control center and emergency responders,
notify passengers of the appropriate action(s) to take, and if
necessary, begin to evacuate the train. In conditions of darkness, a
brighter sign is more easily recognizable and facilitates
identification of emergency exits.
As noted, the Task Force has focused on revisions to this APTA
standard for purposes of incorporating it into FRA's regulations. FRA
considered incorporating elements of the APTA standard into this final
rule so that emergency exit signs and intercom markings in passenger
cars would be required to be made of HPPL material, and FRA invited
comment on doing so. See 71 FR 50289. Although no written comments were
received, the Task Force discussed at length issues associated with the
development of HPPL material component requirements. One of the most
difficult issues the Task Force addressed was the extent to which such
requirements should apply to photo-luminescent signs and markings
already installed in passenger cars. Task Force members were
particularly concerned that lighting levels in enclosed vestibule areas
in existing cars were not bright enough to charge photo-luminescent
signs already in place such that they could meet the level of luminance
required by the APTA standard. Field studies and laboratory tests
revealed two issues: (1) In many cases, the levels of light in
vestibules and other small areas were inadequate for photo-luminescent
signs to perform as required by the APTA standard; and (2) sufficiently
accurate off-axis illuminance measurements cannot be taken without the
use of light meters especially designed to take such measurements--
certain commonly available light meters are not designed for such a
purpose.
FRA notes that the Task Force separately proposed revisions to the
APTA standard to (1) allow flexibility for use of different types of
charging light sources, (2) require that new HPPL signs meet the same
luminance requirements with lower charging light levels, (3) allow
alternative testing criteria using meters that do not measure off-axis
illuminance accurately, (4) grandfather signs that are likely to
perform as intended for 60 minutes, and (5) in small areas, to allow
lower levels of luminance or use of larger signs to compensate for even
lower light levels. The Task Force advised that requirements in the
APTA standard for HPPL were very detailed and complex and not readily
transferable directly into this final rule. Therefore, the Task Force
recommended incorporating such requirements by reference into the CFR
through a separate rulemaking, after the standard had been revised and
authorized by APTA. These would include various other sign and marking
requirements, including those addressing size, color, and contrast. FRA
agreed with the Task Force's recommendation, and has not modified this
final rule with respect to this issue. As discussed earlier, the
standard was revised and thereafter authorized by APTA on October 7,
2007. The standard is now designated as APTA SS-PS-002-98, Rev. 3,
``Standard for Emergency Signage for Egress/Access of Passenger Rail
Equipment.'' FRA intends to use this standard in a separate rulemaking
that will add to and enhance FRA's marking and signage requirements for
passenger train emergency systems.
Section 238.114 Rescue Access Windows
FRA has established a new section that contains requirements for
rescue access windows for both new and existing passenger cars. As
discussed in detail above, this new section was prompted in part by the
April 23, 2002 collision involving a Metrolink passenger train near
Placentia, CA, and the ensuing NTSB Safety Recommendation (R-03-21) to
FRA, which illustrated the potential importance of having rescue access
windows on each level of a passenger car. The general intent of the
provision is to provide a means of rescue access by emergency
responders through a window directly into every passenger compartment
on every level of a passenger car, in the event that a stairway or
interior door is compromised and exterior doors are blocked.
Paragraph (a). Paragraph (a) contains requirements specifying the
minimum number and location of rescue access windows. These
requirements apply on or after the effective date of the final rule to
all passenger cars, except for certain, existing single-level cars. As
noted above, although FRA's original regulations did not specifically
require any minimum number of rescue access windows for passenger cars,
they continue to require that windows that are intended for rescue
access be marked and that instructions be provided for their operation.
See Sec. 223.9(d)(2).
Paragraph (a)(1) contains the number and location requirements for
rescue access windows in single-level passenger cars. FRA is requiring
that each single-level passenger car have a minimum of two rescue
access windows. At least one rescue access window must be located in
each side of the car, entirely within 15 feet of the centerline of the
car, or entirely within 7\1/2\ feet of the centerline if the car does
not exceed 45 feet in length. As discussed above, the Task Force
recommended requiring two windows for rescue access (versus four, as is
required for emergency exit) mainly because rescue access windows are
the third means of egress in the overall emergency systems approach,
with doors and emergency windows being the first and second means of
emergency exit, respectively.
Rescue access windows in a single-level passenger car are required
to be located ``as close to the center of the car as possible,'' unlike
emergency window exits which should be in a staggered configuration to
the extent practical. See Figure 1a to subpart B; see also Figures 1b
and 1c to subpart B. Staggering the location of emergency window exits
is intended to (i) ensure that a window exit is available for egress in
the event that one end of the car is deformed by placing window exits
throughout the car; (ii) optimize the rate of egress, as passengers
have less distance to move to reach a window exit; and (iii) avoid
congestion that could occur if the window exits were all located
adjacent to or directly opposite one another. Since, in general, a
minimum of only one rescue access window per side, per level of a
single-level passenger car is required, the best way to ensure that a
window is available for access in the event that either end of the car
is
[[Page 6387]]
deformed is to locate the window in the center portion of the car,
which is generally less vulnerable to significant deformation in the
event of a collision involving either end of the car. Congestion should
likely not be an issue for rescue access window usage in a situation
requiring emergency evacuation as most car occupants physically able to
do so would likely have begun to self-evacuate through doors and
emergency window exits prior to the arrival of emergency responders.
To ensure that railroads have sufficient flexibility to select
those window locations best suited for rescue access, a 30-foot section
along the center of a typical 85- to 90-foot-long passenger car has
been designated for their location. This flexibility allows railroads
to take into consideration the location of external hazards (such as
third-rail shoes); potential hindrances created by interior fixtures
for those rescue access windows intended to be opened by being pushed
inward into the passenger compartment; the location of emergency window
exits in passenger cars without dual-function windows; and other
factors that a railroad may deem relevant. For passenger cars not
longer than 45 feet, approximately half the length of a standard
passenger car, railroads have the flexibility to select a rescue access
window from among approximately three windows along a 15-foot section
in the center of the car.
If the seating level is obstructed by an interior door or otherwise
partitioned into separate seating areas, the regulation requires that
each separate seating area have at least one rescue access window in
each side of the seating area, located as near to the center of the car
as practical. This requirement is consistent with the general objective
of having at least one rescue access window on each side of a passenger
seating area or passenger compartment. Nevertheless, FRA is not aware
of any such single-level car in current operation in the United States
to which this requirement would apply.
FRA notes that on some single-level passenger cars, polycarbonate
windows are installed in a channel in the window mask, which is itself
installed in the car body with the frame compressed over the window to
secure it. Removal of the window would require removal of the frame,
which would be very difficult in an emergency situation. In addition,
it would be costly for these cars to be retrofitted with glass windows
(so that they could be shattered) or with zip-strip systems to
literally un-zip the window panel from its frame and gasketing. On this
type of equipment, the location requirement would be met by having a
rescue access window available on each side of each end of the same
passenger compartment, including in exterior side doors. An exception
was crafted that permits the location of the rescue access windows in
four exterior side doors. It was approved by the Task Force, Working
Group, and the full RSAC, and has been adopted by FRA in this final
rule. Moreover, as proposed in the NPRM, the final rule permits these
windows to be located farther than 15 feet from the car's centerline,
provided that there is at least one such window in each side of each
end (half) of the same passenger compartment--a minimum of four rescue
access windows, overall. FRA believes that effectively requiring a
minimum of four rescue access windows, instead of two, is appropriate
for granting flexibility for installing rescue access windows on
existing equipment in side doors.
Paragraph (a)(1)(ii) states the number and location requirements
for rescue access windows for single-level passenger cars that were
ordered prior to September 8, 2000, and placed in service prior to
September 9, 2002, if equipped with manual door releases for at least
two exterior side doors (or door leaves) in diagonally-opposite
quadrants of the cars. The manual door release must be capable of
releasing the door (or door leaf) to permit it to be opened without
power from outside the car, be located adjacent to the door (or door
leaf) which it controls, and be designed and maintained so that an
emergency responder could access the release from outside the car
without requiring the use of a tool or other implement. The
requirements of paragraph (a)(1)(ii) become effective August 1, 2010.
FRA decided to make these requirements applicable not until 18 months
after publication of this final rule, in part because the passenger
cars subject to this provision have safety features not otherwise
required for cars of their age--i.e., manual releases capable of
opening side doors from outside of the cars. Section 238.235(b)
contains requirements for manual door releases, but only applies to
passenger cars ordered on or after September 8, 2000, or placed in
service for the first time on or after September 9, 2002.
This paragraph also addresses those passenger cars equipped with
compressed frame window systems in which rescue access windows will
need to be retrofitted in the four side doors by replacing the
polycarbonate glazing with glass that can be broken to gain access into
the car. The 18-month implementation period allows for the time
necessary to plan and carry out the retrofit without disrupting train
service. In the interim, emergency responders will continue to rely on
the manual door releases to open the side doors for rescue access
purposes should the need arise.
In paragraph (a)(2), FRA has adopted minimum requirements for the
number and location of rescue access windows in main levels of multi-
level passenger cars. Each main level in a multi-level passenger car is
subject to the same, minimum requirements provided for single-level
passenger cars in paragraph (a)(1) of this section.
In paragraph (a)(3), FRA has adopted minimum requirements for the
number and location of rescue access windows in non-main levels of
multi-level passenger cars with seating areas. These requirements and
exceptions for non-main levels with passenger seating are also the same
as those for emergency window exits on non-main levels with passenger
seating. Specifically, paragraph (a)(3)(i) requires that any non-main
level used for passenger seating in a multi-level passenger car have at
least two rescue access windows in each seating area to permit
emergency responders to reach occupants without requiring movement
through an interior door or to another level of the car. At least one
rescue access window must be located in each side of the seating area.
A rescue access window can be located within an exterior side door in
the passenger compartment if it is not practical to place the rescue
access window in the side of the seating area. See Figure 2a to subpart
B; compare to Figure 2b to subpart B.
Paragraph (a)(3)(ii) requires only one rescue access window in a
seating area in a passenger compartment of a non-main level if it is
not practical to place a rescue access window in a side of the
passenger compartment due to the need to provide accessible
accommodations under the ADA; there are no more than four seats in the
seating area; and a suitable, alternate arrangement for rescue access
is provided. The rationale for this exception is the same as the one
for emergency window exits in non-main levels of multi-level passenger
cars in Sec. 238.113(a)(3)(ii), as discussed above.
Paragraph (a)(3)(iii) requires that passenger cars both ordered
prior to April 1, 2009 and placed in service prior to April 1, 2011
have only one rescue access window in a seating area in a passenger
compartment of a non-main level if it is not practicable to place a
rescue access window in a side of the passenger compartment (due to the
presence of a structure such as a bathroom, electrical locker, or
kitchen)
[[Page 6388]]
and there are no more than eight seats in the seating area. For more
background on this provision, please see the related discussion above
for emergency window exits in such seating areas.
In paragraph (a)(4), FRA has adopted minimum requirements for the
number and location of rescue access windows for passengers cars with a
sleeping compartment or similar private compartment. Each level of a
passenger car with a sleeping compartment or a similar private
compartment intended to be occupied by passengers or train crewmembers
is now required to have a minimum of one rescue access window in each
such compartment. For purposes of this paragraph, a bathroom, kitchen,
and locomotive cab are not considered a ``compartment.'' These
requirements reflect current practice. Amtrak cars with sleeping
compartments are already equipped with a window in each such
compartment that is capable of being used for both emergency egress and
rescue access.
Paragraph (a)(5) addresses the use of dual-function windows as
rescue access windows. If on any level of a passenger car the emergency
window exits installed to meet the minimum requirements of Sec.
238.113 are intended to function as rescue access windows, the
requirements of paragraphs (a)(1) through (a)(4) of this section for
the number and location of rescue access windows are met for that
level. Under this provision, four rescue access windows are required
for cars with dual-function windows that do not have at least one
rescue access window in each side within 15 feet of the centerline of
the car.
Paragraph (b). Paragraph (b) contains the requirements for the ease
of operability of rescue access windows. The requirements apply on or
after April 1, 2008, and require that each rescue access window be
capable of being removed without unreasonable delay by an emergency
responder using either a provided external mechanism, or tools or
implements that are commonly available to the responder in a passenger
train emergency, such as a sledge hammer or a pry bar. In the NPRM, FRA
had proposed the same requirement except for the terminological
difference that each rescue access window be capable of being removed
``without undue delay.'' In the final rule, FRA has decided to use the
words ``without unreasonable delay,'' however, in order to avoid any
confusion with other uses of ``without undue delay'' in FRA's
regulations. Nevertheless, for the purposes of this rulemaking, the
proposed language in the NPRM and the text of this final rule are
intended to mean the same thing with respect to the speed at which the
rescue access windows must be capable of being removed.
FRA makes clear that the adopted performance requirement for
removing windows ``without unreasonable delay'' is intended to be less
stringent than the performance requirement of ``rapid and easy'' that
is specified for removing emergency window exits in Sec. 238.113. For
example, using a sledge hammer to shatter a glass window would be
considered removal without unreasonable delay. Windows that are not
made of glass may also be designed to be removed without unreasonable
delay by an emergency responder, through use of an axe, sledge hammer,
or similar large impact tool to strike the window at an appropriate
point so that the window panel will push inward.
Paragraph (c). Paragraph (c) contains the requirements for the
dimensions of rescue access windows. Each rescue access window in a
passenger car, including a sleeping car, ordered on or after April 1,
2009, or placed in service for the first time on or after April 1,
2011, is required to have an unobstructed opening with minimum
dimensions of 26 inches horizontally by 24 inches vertically. If the
rescue access window is located within an exterior side door, in
accordance with the requirements of paragraph (a)(3)(i) of this
section, it is permitted to have an unobstructed opening with minimum
dimensions of 24 inches horizontally by 26 inches vertically. FRA makes
clear that a seatback is not considered an obstruction if it can be
moved away from the window opening without requiring the use of a tool
or other implement. The dimensions for rescue access window
unobstructed openings are the same as those for emergency window exit
unobstructed openings. Accordingly, FRA's reasoning for proposing and
adopting these minimum dimensions for emergency window exits applies
here to rescue access windows. These minimum dimensions are intended to
allow an emergency responder equipped with a self-contained breathing
apparatus to pass through the window, as well as allow a train occupant
to be carried through the window on a standard-sized stretcher. As
noted in the earlier discussion concerning emergency window exits, FRA
chose not to adopt a similar exception to the dimension requirements
for rescue access windows because the additional rescue access windows
are not likely to be as useful in an emergency situation requiring
immediate evacuation (e.g., to escape water, smoke, or fire) as
additional emergency window exits. The requirement for minimum
dimensions also helps ensure that there will be no confusion as to
whether or not the window is of the appropriate size to accommodate a
responder equipped with breathing equipment and a standard-sized
stretcher.
Paragraph (d). As discussed above, FRA has modified the
requirements for rescue access window marking and operating
instructions, which were formerly contained in Sec. 223.9(d)(2), and
has moved them here to paragraph (d). Formerly, each rescue access
window was required to be ``marked with a retroreflective, unique, and
easily recognizable symbol or other clear'' marking. FRA has restated
these requirements to make clear that rescue access windows must be
marked with retroreflective material. Second, FRA makes clear that a
unique and easily recognizable symbol, sign, or other conspicuous
marking must be used to identify each rescue access window. FRA has
replaced the word ``clear'' in the former requirements with the word
``conspicuous'' and has added the word ``sign'' as another example of a
conspicuous marking. The revisions make clear that use of
retroreflective material to mark a rescue access window is a distinct
requirement in itself that was adopted to enable emergency responders
to quickly identify rescue access windows under conditions of darkness
by shining a flashlight on a car. Second, the revisions make clear that
the window must also be marked by a unique and easily recognized
symbol, a sign (such as ``RESCUE ACCESS''), or other conspicuous
marking (such as delineation of the window by means of a contrasting
color). Both requirements could be met by the same marking.
FRA also notes that the regulations formerly required that each
railroad post ``clear and understandable'' window access instructions
either at each rescue access window or at each end of the car. FRA has
replaced the word ``clear'' with the word ``legible,'' so that
railroads are required to post ``legible and understandable'' operating
instructions. Use of the word ``clear'' in Sec. 223.9(d) had created
some confusion, since it could have more than one meaning, and FRA
believes the amendment eliminates any further confusion. FRA has also
modified the requirements so that it is no longer permissible to have
window access instructions solely at the end of the car. Instead,
legible and understandable rescue access window instructions, including
instructions for
[[Page 6389]]
removing the window, are required to be posted at or near each rescue
access window. FRA agreed with the Task Force that rescue access
efforts could be unduly delayed by posting rescue access window
operating instructions at the end of a car, potentially more than 40
feet away from the rescue access window to which the instructions
apply.
As noted above in the discussion of emergency window exits, the
Task Force has focused on revisions to APTA SS-PS-002-98, Rev. 2,
``Standard for Emergency Signage for Egress/Access of Passenger Rail
Equipment,'' in order to recommend whether some or all of its contents
should be incorporated into FRA's regulations. This APTA standard also
contains detailed criteria for marking rescue access windows, including
the use of retroreflective material. FRA invited comment on whether the
criteria in the APTA standard or in draft revisions to this standard
for marking rescue access windows were appropriate for use in the final
rule. See 71 FR 50292. While no written comments were received on this
issue, both the Task Force and the Working Group recommended that FRA
add the criteria to the final rule. FRA agrees and has added a
definition of ``retroreflective material'' that incorporates by
reference criteria from ASTM's Standard D 4956-07 for Type I Sheeting.
See the discussion in Sec. 238.5. This newly added definition is
consistent with the definition and requirements for retroreflective
markings for rescue access windows that are contained in Revision 3 of
the APTA standard.
In order to maintain optimum retroreflective properties of the base
material, any retroreflective markings that have ink or pigment applied
should utilize a translucent or semi-translucent ink, as per the
manufacturer's instructions. A clear coat that protects against ultra-
violet light may be added to the markings to prevent fading.
Retroreflectivity requirements shall be met if protective coatings or
other materials for the enhancement of marking durability are used.
Section 238.121 Emergency Communication
This new section establishes emergency communication requirements
for Tier I passenger equipment and replaces the previous emergency
communication system requirements in Sec. 238.437 for Tier II
passenger equipment. Overall, the adopted requirements generally
reflect current practice for Tier I passenger equipment and generally
carry forward the former requirements for Tier II passenger equipment.
In the NPRM, FRA had originally proposed to designate this section
as Sec. 238.117 and redesignate Sec. 238.117 (Protection against
personal injury) as Sec. 238.121. See 71 FR 50276, 50304. FRA had
believed that such a redesignation would help keep the emergency system
requirements together in section numbering sequence for the benefit of
the user. However, concern has been raised that redesignating original
sections of the May 12, 1999 Passenger Equipment Safety Standards rule
could cause unnecessary confusion, and FRA has decided against the
proposed redesignation. FRA has chosen instead to designate this
section as Sec. 238.121. This new designation has no effect on the
substance of the emergency communication requirements.
Paragraph (a). Paragraph (a) contains requirements for PA systems
for both existing and new Tier I and Tier II passenger cars. Most
passenger cars used in commuter and intercity service are equipped with
PA systems that train crews often use to notify passengers of the
nature and expected duration of delays. If a person requires immediate
medical attention, the crew may also use the PA system to request
assistance from someone onboard with medical training. Railroad
representatives on the Task Force noted that PA systems are
particularly beneficial in the immediate aftermath of an accident to
provide instructions for appropriate passenger action. In light of a
security threat or other emergency situation requiring rapid evacuation
of an area, crews may also use the PA system to instruct passengers to
deboard as quickly as possible. If there is a hazard on one end of the
train or one side of the train, crews may use the PA system to notify
passengers of the hazard and direct them to use the appropriate exit
route(s) that would avoid or minimize their exposure to the hazard. Of
course, all things being equal, the safest place for passengers is to
remain onboard the train. Deboarding could aggravate an emergency
situation, particularly if passengers step onto the right-of-way on
their own without direction from a crew member. Accordingly, the crew
must have the means to provide passengers with appropriate instructions
as soon as possible.
Paragraph (a)(1) requires that on or after January 1, 2012, each
Tier I passenger car be equipped with a PA system that provides a means
for a crewmember to communicate to all train passengers in an emergency
situation. FRA understands that existing Tier I passenger cars that
currently do not have PA systems are scheduled to be retired before
2012 and thus would be removed from service before the requirement
would apply. FRA notes that APTA's PRESS Task Force is currently
evaluating the feasibility of a wireless, two-way communication system
that would function independently of the train line, i.e., not rely on
the train line for power. The wireless system is intended to provide a
means of two-way communication in the event that the train line is
broken, as may occur as a result of certain collisions or derailments.
However, FRA makes clear that it is not currently adopting a
requirement in this section that the communication system be wireless;
communication through use of a train line is still permitted.
Paragraph (a)(2) contains requirements for new Tier I and all Tier
II passenger cars. As is stated for existing Tier I passenger cars in
paragraph (a)(1), this paragraph requires that each Tier I passenger
car ordered on or after April 1, 2008, or placed in service for the
first time on or after April 1, 2010, and all Tier II passenger cars be
equipped with a PA system that provides a means for a crewmember to
communicate to all train passengers in an emergency situation. In
addition, PA systems in new Tier I and all Tier II passenger cars are
required to provide a means for a crewmember to communicate in an
emergency situation to persons in the immediate vicinity of the train
(e.g., on the station platform). These requirements include the basic
features of PA systems installed in most recently-manufactured Tier I
passenger cars and in all existing Tier II passenger trains.
Finally, it should be noted that the PA system may be part of the
same system as the intercom system. A shared configuration is quite
common on cars equipped with both PA and intercom systems.
Paragraph (b). Paragraph (b) contains the requirements for intercom
systems. Traditionally, conductors and assistant conductors have been
relied upon to relay information to passengers in both normal and
emergency situations through face-to-face interaction or by use of a PA
system. However, with smaller crew sizes, such face-to-face
communication may not be possible for passengers attempting to quickly
communicate to the crew a medical emergency, safety concern, or
security threat requiring immediate attention. For instance, a
passenger in the last car of a train who needs to communicate a safety
or security threat to a crewmember could potentially have to walk the
entire length of the train to do
[[Page 6390]]
so (assuming the crew is composed of an engineer and one conductor, who
in this circumstance would be in the first car at the time).
Furthermore, if the conductor were incapacitated, passengers would need
to communicate with the engineer. The Task Force therefore recommended
and FRA decided that emergency communication systems in new passenger
cars must include intercom systems to enable passengers to quickly
communicate emergency situations to the train crew. These requirements
reflect common intercom system configurations for new passenger cars.
Specifically, paragraph (b)(1) contains the intercom system
requirements for new Tier I and all Tier II passenger cars. Each Tier I
passenger car ordered on or after April 1, 2008, or placed in service
for the first time on or after April 1, 2010, and all Tier II passenger
cars are required to be equipped with an intercom system that provides
a means for passengers and crewmembers to communicate with each other
in an emergency situation. Passenger cars that are at least 45 feet in
length are required to have a minimum of one intercom in each end
(half) of each car that is accessible to passengers without requiring
the use of a tool or other implement. Although some passenger cars
currently equipped with intercom systems have one located in each end
(half), others have only one per car. An intercom in each end (half) of
a car is intended to allow passengers to have access to an intercom
within half a car length, which is normally 42 to 45 feet, and without
having to pass into an adjoining car. As long as intercoms are
accessible to passengers, they may be placed anywhere in each end
(half) of the car and not necessarily in the far ends.
Paragraph (b)(1) continues the logic of former Sec. 238.437 by
requiring only one intercom for a passenger car that does not exceed 45
feet in length, such as the Talgo passenger cars operated by Amtrak. As
the length of a conventional passenger is typically between 85 and 90
feet, FRA believes it appropriate to require a car not more than half
that length to have only one intercom location. This paragraph also
continues to require, as Sec. 238.437 formerly did, that a Tier II
passenger car ordered prior to May 12, 1999, be equipped with only one
intercom. The preamble to the April 23, 2002 final rule, which amended
the May 12, 1999 final rule, explained that after FRA had proposed that
intercoms be located at each end of a Tier II passenger car, Amtrak
indicated that not all passenger cars in its high-speed trainsets had
intercom transmission locations at each end of the cars. See 67 FR
19986. Amtrak further noted that the intercoms would be difficult to
install at the non-vestibule ends of the cars. As these trainsets were
in development in advance of both the then-proposed and final rules,
FRA made an exception for all cars ordered prior to May 12, 1999, and
this final rule carries forward this exception.
Some Task Force members were concerned that making the intercoms
accessible to passengers without requiring the use of a tool or other
implement could lead to misuse that could unnecessarily distract the
train operator. However, representatives from Amtrak and various
commuter railroads that operate cars with intercom systems indicated
that they have successfully implemented measures to deter misuse. For
instance, on some passenger cars, the intercom transmission device is
located in a safety compartment designated and marked for emergency
communications only. In the proposed rule, FRA invited comment on
whether passenger misuse of intercom systems had been identified as a
problem, and, if so, FRA invited suggestions for measures that could
curb such misuse without rendering the systems inaccessible to
passengers in an emergency. No comments were received on this issue,
and FRA has decided to adopt the language as proposed. FRA makes clear
that intercoms need to be accessible to passengers with disabilities to
the extent required by the ADA and its implementing regulations.
Paragraph (b)(2) requires that the location of each intercom
intended for passenger use be clearly marked with luminescent material
and that legible and understandable operating instructions be posted at
or near each such intercom to facilitate passenger use. These
requirements apply to each Tier I passenger car on or after April 1,
2010, and continue to apply to each Tier II passenger car. During the
development of the rule, some railroad representatives on the Task
Force noted that although instructions are currently posted at the
intercom locations on their cars, there are no luminescent markings.
The Task Force therefore recommended that luminescent markings be
required. FRA proposed to adopt such a requirement in this final rule,
and invited comment on whether the luminescent material should be HPPL
material, as discussed below. See 71 FR 50293. The final rule requires
luminescent marking of each intercom location to ensure that the
intercom can be easily identified for use in the event that both normal
and emergency lighting are not functioning. The posted operating
instructions, however, are not required to be luminescent. Some Task
Force members indicated that the instructions may be easier to read
when not luminescent.
As noted in the discussion concerning emergency window exit
signage, above, APTA SS-PS-002-98, ``Standard for Emergency Signage for
Egress/Access of Passenger Rail Equipment,'' contains specific criteria
for luminescent markings. The Task Force has focused on revisions to
this APTA standard in order to recommend whether to incorporate some or
all of its contents into part 238 by reference and thereby require that
luminescent markings for intercoms comply with the standard as it
relates to luminescent markings. APTA PRESS has also indicated that
they intend to revise APTA SS-PS-001-98, ``Standard for Passenger
Railroad Emergency Communications,'' to include more specific
requirements for marking emergency communication systems. In the
proposed rule, FRA invited comment on whether the luminescent material
that would be required for marking should be HPPL material. FRA
indicated that it would evaluate any comments received in considering
whether a requirement for use of HPPL material should be established in
the final rule.
Although no written comments were received, the Task Force
discussed at length issues associated with the development of HPPL
material component requirements, as noted above. Ultimately, the Task
Force advised that requirements in Revision 2 of APTA Standard SS-PS-
002-98, ``Standard for Emergency Signage for Egress/Access of Passenger
Rail Equipment,'' for HPPL were very detailed and complex and not
readily transferable directly into this final rule. Therefore, the Task
Force recommended incorporating such requirements by reference into the
CFR through a separate rulemaking, after the standard had been revised
and authorized by APTA. These would include various other sign and
marking requirements, including those addressing size, color, and
contrast. FRA agreed with the Task Force's recommendation, and has not
modified this final rule. Accordingly, the marking is only required to
be luminescent. As noted, APTA authorized Revision 3 of the standard on
October 7, 2007, and FRA intends to use this standard in a separate
rulemaking that will add to and enhance FRA's marking and signage
requirements for passenger train emergency systems.
Paragraph (c). Paragraph (c) continues to require that PA and
intercom systems on Tier II passenger trains have back-up
[[Page 6391]]
power for a minimum period of 90 minutes. See former Sec. 238.437(d).
An example of a back-up power source is the main battery in a passenger
car. PA and intercom systems may continue to draw back-up power from a
source which provides power to other systems, as the main car battery
does. These systems are not required to have a back-up power source
that provides power exclusively for their operation. Additionally, it
is permissible to meet this requirement using a main car battery
located in another car, if the two cars are semi-permanently coupled as
in the case of a married pair of MU locomotives.
The Task Force approved a recommendation for a back-up power
requirement for new Tier I passenger cars, similar to the requirements
contained in Sec. 238.115(b)(4) for emergency lighting back-up power
systems. That is, the back-up power system must be capable of
operating: in all equipment orientations within 45 degrees of vertical;
after the initial shock of a collision or derailment resulting in
individually applied accelerations of 8g longitudinally, 4g laterally,
and 4g vertically; and for at least 90 minutes. Yet, this
recommendation was not forwarded to the Working Group, due to an
oversight, prior to the publication of the NPRM. Given that backup
power to the PA and intercom systems could be supplied by the same
source as that for the emergency lighting system, and that the amount
of power required would likely be only a fraction of that required for
the emergency lighting system, FRA had no reason to believe that this
recommendation would not have received the full support of the Working
Group or full RSAC. As a result, FRA noted in the NPRM that it was
considering inserting in the final rule a back-up power system
requirement containing the provisions recommended by the Task Force,
and FRA invited comment on doing so. In particular, FRA sought comment
on whether the system needs to be capable of providing continuous
communication over the 90-minute period, or only intermittent
communication, which would draw less battery power. FRA noted that it
may not be necessary to provide the means to communicate continuously
for a 90-minute period, and FRA invited comment as to how many minutes
of intermittent communication would need to be provided.
While no written comments were received on this issue, the Task
Force discussed the matter at length during its meeting held on October
25-26, 2006. Both APTA and the UTU indicated that 90 minutes of
continuous communication was unnecessary. Instead, the Task Force
recommended that intermittent communication with the equivalent of 15
minutes of continuous communication would be sufficient during a 90-
minute period. In order to ensure that the system will have enough
power to support a total of 15 minutes of communication at any point
during the 90-minute period, the Task Force agreed that the system
must, at a minimum, support 15 minutes of continuous communication at
the end of the 90-minute period (i.e., during minutes 76 through 90).
The Working Group concurred with the Task Force's recommendations, and
FRA has agreed to adopt them in this final rule. As a result, the final
rule includes requirements for a back-up power system for both Tier I
and Tier II passenger trains.
Section 238.123 Emergency Roof Access
This new section contains emergency roof access requirements for
Tier I and Tier II passenger cars ordered on or after April 1, 2009, or
placed in service for the first time on or after April 1, 2011.
Requirements for Tier II power cars and existing Tier II passenger cars
remain in Sec. 238.441, as discussed below. The emergency roof access
requirements for Tier II passenger equipment contained in former Sec.
238.441 and APTA PRESS recommended practice RP-C&S-001-98,
``Recommended Practice for Passenger Equipment Roof Emergency Access,''
serve as the basis for the requirements in this section. This APTA
recommended practice contains additional useful information not
included in this final rule; however, FRA notes that this final rule
supersedes certain provisions of the recommended practice.
In the NPRM, FRA originally proposed to designate this section as
Sec. 238.118, see 71 FR 50276, 50304. FRA has chosen instead to
designate this section as Sec. 238.123, consistent with the decision
not to redesignate original sections of the May 12, 1999, Passenger
Equipment Safety Standards final rule. This new designation has no
effect on the substance of the emergency roof access requirements.
Emergency roof access locations (roof hatches or structural weak
points) can be especially useful in emergency situations where
passenger cars have rolled onto their sides following certain collision
and derailment scenarios. All things being equal, car rollover or tilt
should result in more severe injuries than when a car remains upright,
as occupants may be thrown greater distances inside the car. In turn,
this risk increases the potential need for rescue access of the car's
occupants because of the reduced likelihood that the occupants can
evacuate the car on their own. In addition, when there is a rollover,
doors, which are the preferred means of access under normal
circumstances, may be blocked or otherwise rendered inoperable due to
structural damage to the door or the door pocket. In particular, end
doors, which due to the direction they face, would normally be better
suited for use than side doors when a car has tilted or rolled onto its
side, may also be blocked, jammed, or otherwise unavailable for use.
Moreover, although emergency responders may be able to enter a car that
is on its side via a rescue access window, the removal of an injured
occupant through a side window in such circumstances can be difficult
or complicated, especially depending upon the condition of the
occupant.
Paragraph (a). Paragraph (a) contains requirements for the number
and dimensions of emergency roof access locations. Each passenger car
ordered on or after April 1, 2009, or placed in service for the first
time on or after April 1, 2011, must have a minimum of two emergency
roof access locations. Although the May 12, 1999, final rule required
Tier II passenger cars and power cars to have only one roof hatch for
emergency roof entry or at least one structural weak point for properly
equipped emergency personnel to quickly access a car, many new Tier I
multi-level passenger cars are currently being manufactured with up to
four structural weak points in the roof. In determining the minimum
number of access points needed for new Tier I and Tier II passenger
cars, the Task Force agreed it would be useful to protect the emergency
roof access locations against crush at either end of the car. To do so
would require placement of the locations away from the far ends of the
car or, at a minimum, placement not in the same end (half) of the car
in the event that the end with the access points becomes crushed.
Second, the Task Force thought it prudent to facilitate rescue access
by having the access points located within the bottom half of the car's
roof, so that the bottom of the opening would be closer (lower) to the
ground and thus, presumably, more easily accessible when the car is on
its side. This would require having one access point on either side of
the roof's longitudinal centerline. To accomplish both goals, the Task
Force recommended having two access points
[[Page 6392]]
located at diagonally-opposite quadrants of the roof. See Figure 3 to
subpart B.
Under this new section, each roof access location is required to
have a minimum opening of 26 inches longitudinally (i.e., parallel to
the longitudinal axis of the car) by 24 inches laterally. These
dimensions are consistent with the minimum dimension requirements for
emergency window exits specified for new passenger cars in the 1999
Passenger Equipment Safety Standards final rule, see 64 FR 25673, and
were based on specifying opening requirements necessary to allow
passage of an emergency responder equipped with a self-contained
breathing apparatus or fire gear, as well as to allow passage of a
person being carried on a backboard or basket stretcher, see 64 FR
25595-25596. In discussing the issue of appropriate dimensions for
emergency roof access locations, Task Force members noted that in order
to gain access to a car via a structural weak point, a responder would
normally have to cut through the roof skin, which is usually steel, and
then through the lining. In some cases, a responder may have to cut
through additional non-rigid structures. If the outside dimensions are
only 26 inches longitudinally by 24 inches laterally, and multiple cuts
through car structures are required to gain access to the passenger
compartment, this could present a problem for emergency responders,
since each subsequent cut made using a saw would potentially result in
a smaller opening. Consequently, railroads and car builders would need
to take this into account when designing structural weak points and
ensure that the dimensions of the final cut in such circumstances would
still result in an opening meeting the minimum dimension requirements.
This concern is addressed further in the discussion of paragraph (d),
below.
Paragraph (b). Paragraph (b) provides that permissible means of
emergency roof access include either a hatch, or a clearly marked
structural weak point in the roof for access by properly equipped
emergency response personnel. Structural weak points, commonly known as
``soft spots,'' are usually created by routing cables, wiring, and
piping in the roof of the car around the location designated for roof
access. This paragraph affords railroads the flexibility of installing
either roof hatches or providing structural weak points in the roof, as
each individual railroad is in the best position to decide which one is
preferable taking into consideration such factors as the car's intended
use and the safety hazards presented by one versus the other. For
example, although roof hatches could provide a means of self-evacuation
in addition to a means of access, placing them in the roofs of electric
MU locomotives, which rely on overhead catenary systems for power,
could create an electrocution hazard for occupants attempting to self-
evacuate in an emergency.
Paragraph (c). Paragraph (c) requires that emergency roof access
points be located, insofar as practical, in such a manner that when a
car is on its side: (i) One emergency roof access location is wholly
within each half of the roof as divided top from bottom; and (ii) one
emergency roof access location is wholly within each half of the roof
as divided left from right. See Figure 3 to subpart B. Use of the word
``practical'' allows railroads and car builders some discretion
regarding the location of the access points and is necessary to
accommodate particular equipment types. For instance, some electric MU
equipment has pantographs that take up a significant portion of one end
of the rooftop, making it difficult to place one emergency access
location wholly within each half of the car's roof. Additionally, on
some passenger cars that have luggage racks, it may be more practical
to place the emergency access location so that it is not wholly within
the bottom half of the car's roof (when the car is on its side) if
doing so would facilitate rescue access by eliminating the need for
emergency responders to cut through or maneuver around the luggage
racks to get to passengers.
Paragraph (d). Paragraph (d) contains provisions related to
obstructions and requires that the ceiling space below each emergency
roof access location be free from wire, cabling, conduit, and piping.
Additionally, paragraph (d) requires that, where practicable, this
space also be free of rigid secondary structure(s) (e.g., diffusers and
diffuser support, lighting back fixtures, mounted PA equipment, and
luggage racks). In determining the placement of the emergency roof
access locations, railroads and manufacturers need to consider the
requirements of Sec. 238.123 as a whole. Use of the word ``practical''
in paragraph (c) is intended to allow more discretion than would be
allowed through use of the word ``practicable'' in this paragraph (d).
For example, in a situation where placement of an emergency roof access
location wholly within the bottom half of a car's roof (when the car is
on its side) would result in obstruction by a rigid secondary
structure, a railroad would be required to place the roof access
location elsewhere so as to avoid the obstruction, even though this may
result in its placement partially in both sides of the roof, or
otherwise not wholly within each half of the roof. In such a situation,
the rule recognizes that avoidance of the rigid secondary structure is
more critical than the exact location of the emergency roof access
location.
If emergency roof access is provided by means of a hatch, it must
be possible to push interior panels or liners out of their retention
devices and into the interior of the vehicle after removing the hatch.
For example, for car interior aesthetics, it would not be uncommon to
cover the area below the hatch with lining and use a fastener like
VELCRO(copyright) to secure the lining in place. This type of cover and
securement make it possible for emergency responders to reach the
interior of the vehicle by pushing in the lining after removing the
hatch. This is just one example, and other types of covers and means of
securement are permissible, provided emergency responders are able to
push through them to reach the interior of the vehicle after removing
the hatch.
If emergency roof access is provided by means of a structural weak
point, the rule states that it is permissible to cut through interior
panels, liners, or other non-rigid secondary structures after making
the cutout hole in the roof. However, any such additional cutting that
is required must permit a minimum opening of the dimensions specified
in paragraph (a) to be maintained. In this regard, having to make
additional cuts could affect the size of the markings indicating the
structural weak points, as provided in paragraph (e).
Paragraph (e). Paragraph (e) contains requirements for providing
markings of, and instructions for, emergency roof access locations.
Each emergency roof access location is required to be clearly marked
with retroreflective material of contrasting color. The retroreflective
material is intended to enable emergency responders to quickly identify
the access locations by shining a light on the roof. As discussed in
the section-by-section analysis of the definition of ``retroreflective
material,'' FRA has incorporated ASTM International's Standard D 4956-
07 by reference in the CFR.
While FRA did not specifically request comment on applying this
definition to roof access markings, FRA believes it logical to apply
this definition here, in addition to applying it to rescue access
windows in Sec. 238.114. The underlying reasons for using
retroreflective material for roof access markings are the same as those
for using the material for rescue access
[[Page 6393]]
window markings. Nevertheless, FRA notes that this definition has not
been included in the emergency roof access marking requirements in
Sec. 238.441 for existing Tier II passenger cars and power cars--only
for new equipment. As a result, markings on existing equipment do not
have to be removed and reapplied, should they not be in conformance
with the retroreflectivity criteria applicable to markings on new
equipment in this final rule.
Paragraph (e) requires that legible and understandable instructions
be posted at or near each emergency roof access location. These
instructions are not required to be retroreflective for two principal
reasons: it can be difficult to read writing on certain grades of
retroreflective materials while shining light on them, and light used
to identify the emergency rescue access locations should be available
for reading the instructions as well. This is consistent with the
requirements for marking rescue access windows. As an additional
requirement, paragraph (e) requires that if emergency roof access is
provided by means of a structural weak point, the line along which the
roof skin is intended to be cut is required to be clearly marked with
retroreflective material. The size of the border marking may have to be
larger than 24 inches laterally by 26 inches longitudinally to ensure
that any cuts in addition to the cut through the roof skin retain the
minimum dimensions required for the opening. Structural weak points are
also required to have a sign plate with a retroreflective border that
states as follows:
CAUTION--DO NOT USE FLAME-CUTTING DEVICES
CAUTION--WARN PASSENGERS BEFORE CUTTING
CUT ALONG DASHED LINE TO GAIN ACCESS
ROOF CONSTRUCTION--[STATE RELEVANT DETAILS]
In particular, warning must be provided against use of a flame-
cutting device during a rescue access attempt to avoid creation of a
fire hazard. This is especially important since rescue access is
usually a last resort for those who cannot self-evacuate due to being
injured or disabled, as well as due to the lack of a viable exit.
Emergency responders usually have a variety of tools available to them
at the scene of an emergency, including a specialized saw which can be
used to cut through steel, and do not have to rely on flame-cutting
devices.
Subpart D--Inspection, Testing, and Maintenance Requirements for Tier I
Passenger Equipment
Section 238.303 Exterior Calendar Day Mechanical Inspection of
Passenger Equipment
This section contains the requirements related to the performance
of exterior mechanical inspections of passenger cars (e.g., passenger
coaches, MU locomotives, and cab cars) and unpowered vehicles used in a
passenger train each calendar day that the equipment is used in
service. Paragraph (e) of this section identifies the various
components that are required to be inspected as part of the exterior
calendar day mechanical inspection.
As proposed, FRA is adding new paragraph (e)(18) to require that
all rescue-access-related exterior markings, signage, and instructions
required by Sec. 238.114 (rescue access windows) and Sec. 239.107
(emergency exits) be in place and, as applicable, conspicuous, and/or
legible. Paragraph (e)(18)(i) does permit passenger cars with any
required rescue-access-related exterior markings, signage, or
instructions that are missing, illegible, or inconspicuous, as
applicable, to remain in passenger service until the equipment's fourth
exterior calendar day mechanical inspection or next periodic mechanical
inspection required under Sec. 238.307, whichever occurs first, after
the noncompliant condition is discovered. The car must then be repaired
or removed from service.
The four-day repair flexibility is intended to allow railroads to
schedule repairs at locations where they can be performed safely and in
a manner that would avoid disrupting normal operations. Railroad
representatives on the Task Force noted that not all yards are properly
equipped for personnel to safely, effectively, or efficiently remove
and replace signage on the exterior of cars. For example, work on the
upper levels of cars can be more safely performed at maintenance
facilities that have platform ladders. In addition, various vendors
noted that signs and markings must be applied on a dry, clean surface
at temperatures of approximately 65 degrees Fahrenheit and must be
allowed to set for up to two hours. Graffiti may render a sign,
marking, or instruction illegible and thus in need of replacement.
Proper removal of a sign can be a long and tedious process because the
adhesives used are difficult to remove. This, coupled with the
conditions necessary for application of a sign, may make it an
unfeasible task for some railroads to perform during an exterior
calendar day mechanical inspection. Furthermore, some long-distance
intercity train trips take three or four days to complete, and many of
the en-route repair locations may not be appropriate places to make the
repairs to signage. Removing a car from service for missing rescue
access signage before it reaches its final destination could result in
stranding passengers on platforms or require that the same number of
passengers ride in a fewer number of cars, with fewer emergency exits
available to them as a whole. Thus, the safety of both railroad
employees and railroad passengers also necessitates that some
flexibility be provided in making repairs.
Paragraph (e)(18)(ii) provides even greater flexibility for use of
passenger cars with required rescue-access-related exterior markings,
signage, or instructions that are missing, illegible, or inconspicuous
on a side of a level of a car that has more than 50 percent of the
windows designated and properly marked for rescue access. Such a car is
permitted to remain in passenger service until no later than the car's
next periodic mechanical inspection required under Sec. 238.307, where
the car must repaired or removed from service. In developing the rule,
FRA agreed with the Task Force recommendation that this added
flexibility for these types of cars recognizes the extra effort that a
railroad undertakes by designating and identifying a greater number of
rescue-access windows than is required by Sec. 238.114. A single act
of vandalism may destroy multiple signs, markings, and instructions or
render them illegible or inconspicuous. Placement or replacement of
several signs could take more time than may be scheduled for
maintenance of the car prior to the periodic mechanical inspection. FRA
believes it makes little sense to require immediate repair of the
damaged markings when more than a sufficient number meeting the
requirements of Sec. 238.114 are still present on the equipment.
Moreover, without such flexibility, railroads would likely be
discouraged from designating more rescue-access windows than are
required by Sec. 238.114.
Similarly, paragraph (e)(18)(iii) provides flexibility for the
continued use of a sleeping car that has more than two consecutive
windows with any required rescue-access-related exterior markings,
signage, or instructions at or near their locations that are missing,
illegible, or inconspicuous. Such a car may be operated in passenger
service until the car's next periodic mechanical inspection required
under Sec. 238.307, when it would have to be repaired or removed from
service. FRA believes this
[[Page 6394]]
flexibility is necessary because each sleeping compartment intended to
be occupied by passengers or train crewmembers is required to have a
minimum of one rescue access window in the compartment under Sec.
238.114 and most sleeping compartments have only one window. If two
consecutive windows were missing exterior markings, signage, or
instructions, an emergency responder would still be readily able to
gain access via the window by relying on the signage, markings, or
instructions posted at a nearby window.
Paragraph (e)(18)(iv) requires that a record of any noncomplying
marking, signage, or instruction described in paragraphs (e)(18)(i)
through (iii) be maintained. This record must contain the date and time
that the defective condition was first discovered, and must be retained
until all necessary repairs have been completed. These records are
necessary for purposes of tracking when the defect was first discovered
and will be utilized in determining when repairs have to be made on
cars that remain in passenger service. Most commuter and intercity
railroads already keep this type of record electronically.
Section 238.305 Interior Calendar Day Mechanical Inspection of
Passenger Cars
This section contains the requirements related to the performance
of interior calendar day mechanical inspections of passenger cars
(e.g., passenger coaches, MU locomotives, and cab cars) each calendar
day that the equipment is used in service. Paragraph (c) identifies the
various components that are required to be inspected as part of the
interior calendar day mechanical inspection. Except as provided in
paragraphs (c)(8) through (c)(12), and in paragraph (d), all
noncomplying conditions under this section must be repaired at the time
of the daily interior inspection or the equipment is required to be
locked-out and empty in order to be placed or remain in passenger
service. FRA notes that it has revised the introductory text of
paragraph (c) to expressly reference paragraphs (c)(8) through (c)(12),
removing the reference to paragraphs (c)(5) through (c)(7). Paragraphs
(c)(5) through (c)(7) do not contain any exceptions themselves.
Instead, paragraph (d) references these paragraphs, and it is by
operation of paragraph (d) that exceptions are provided. FRA makes
clear that removing the reference to paragraphs (c)(5) and (c)(7) in
the introductory text of paragraph (c) does not have any effect on the
exceptions currently provided in this section.
As proposed in the NPRM, FRA has also slightly modified paragraph
(c)(10) in order to add a condition under which a car with noncompliant
end doors and side doors may continue in passenger service pursuant to
paragraph (d) of this section. The former conditions for such operation
were that at least one operative and accessible door be available on
each side of the car and a notice be prominently displayed directly on
the defective door indicating that the door is defective. In addition
to those conditions, this paragraph now requires that the train crew be
provided written notification of the noncompliant condition. This
additional measure is intended to ensure that crewmembers are aware of
a door that may not be available for use in an emergency situation that
requires the off-loading of passengers. Without this additional
measure, train crews may not realize a door is defective until they
actually try to use it. If an emergency requiring the rapid off-loading
of passengers should occur before the crew notices that the door is
inoperative, then the crew might direct passengers to that door, which
could unnecessarily delay the evacuation of the train.
FRA has also added new paragraph (c)(12) to cover the inspection of
PA and intercom systems. Paragraph (c)(12) contains requirements for
ensuring that, on passenger cars so equipped, PA and intercom systems
are operative and function as intended as part of the interior calendar
day mechanical inspection. This paragraph also affords flexibility for
handling noncompliant equipment, provided that the train crew is given
written notification of the defect and a record of the time and date
the defect was discovered is maintained. Thus, a passenger car with an
inoperative or nonfunctioning PA or intercom system is permitted to
remain in passenger service until no later than the car's fourth
interior calendar day mechanical inspection or next periodic mechanical
inspection required under Sec. 238.307, whichever occurs first, or for
a passenger car used in long-distance intercity train service until the
eighth interior calendar day mechanical inspection or next periodic
mechanical inspection required under Sec. 238.307, whichever occurs
first, after the noncompliant condition is discovered. At that time,
the PA or intercom system, or both, would have to be repaired, or the
car would have to be removed from service.
In developing the rule, railroad representatives on the Task Force
noted that PA systems are currently inspected on a daily basis and any
necessary repairs are made at the first convenient opportunity. The
provision requiring that the train crew be given written notification
of any noncompliant PA or intercom system is intended to ensure that
the crew is aware of any nonfunctioning system(s) and will not rely
upon any such system for communication in the event of an emergency
situation. Without such notification, the train crew could mistakenly
rely on a system that is inoperative, which could potentially hinder
resolution of an emergency situation where the crew relies on using the
PA or intercom system to communicate instructions or warnings of
hazards to passengers.
In modifying paragraph (c), FRA has reserved paragraph (c)(11) for
a contemplated requirement that all low-location emergency exit path
markings be in place and conspicuous as part of the interior calendar
day mechanical inspection. Low-location emergency exit path markings
provide a visual means for passenger car occupants to locate emergency
door exits under conditions of limited visibility due to darkness or
the presence of smoke, or both. FRA intends to propose minimum
standards for low-location emergency exit path markings in a separate
NPRM on passenger train emergency systems.
Finally, as discussed in the NPRM, FRA considered clarifying
paragraph (c)(7), the interior calendar day inspection requirement that
``[a]ll safety-related signage is in place and legible.'' 71 FR 50297.
FRA considered including in paragraph (c)(7) express references to
signage, as well as markings and instructions, required by parts 238
and 239. FRA invited comment on whether such clarification should be
provided in the final rule. No comment was received, and, in discussing
this issue with the Task Force, the Task Force did not recommend making
a change in the final rule, as this was already clear. FRA does not
believe a change is necessary at this time, but may make modifications
related to the possible incorporation by reference of the APTA signage
standard in a future rulemaking.
Section 238.307 Periodic Mechanical Inspection of Passenger Cars and
Unpowered Vehicles Used in Passenger Trains
This section contains the requirements for performing periodic
mechanical inspections on all passenger cars and all unpowered vehicles
used in passenger trains. Paragraph (c) identifies the various
components that are required to be inspected as part of the periodic
mechanical inspection that is required to be conducted no less
[[Page 6395]]
frequently than every 184 days. FRA has modified paragraph (c)(5),
which requires in paragraph (c)(5)(i) that emergency lighting systems
be inspected no less frequently than every 184 days to determine that
they are in place and operational, to reserve requirements in paragraph
(c)(5)(ii) for the periodic inspection of other emergency systems in
this timeframe, such as low-location exit path marking. As discussed
above, FRA intends to propose minimum standards for low-location
emergency exit path marking in a separate rulemaking on passenger train
emergency systems.
FRA notes that if emergency lighting is found to be defective at
any time other than the periodic mechanical inspection required by
paragraph (c)(5)(i), it still must be brought into compliance pursuant
to the provisions contained in Sec. 238.17 related to non-running-gear
defects.
FRA had proposed to include periodic inspection requirements within
the 184-day timeframe for emergency roof access markings and
instructions. However, FRA has decided to require that emergency roof
access markings and instructions be inspected no less frequently than
every 368 days, as provided in paragraph (d) of this section. As
discussed earlier, in commenting on the NPRM, Caltrans requested that
FRA extend the interval between inspections for roof access markings
and instructions to a maximum of 368 days, instead of the 184 days that
FRA had proposed. Caltrans stated that it maintains its passenger
equipment on a 120-day maintenance cycle, and that a requirement to
inspect the roof access markings and instructions every 184 days would
result in Caltrans having to inspect them every 120 days. Caltrans
stated that this would increase costs and the potential for employee
injury, as each of its inspection requires the use of a man-lift or
harness for an employee to safely inspect the markings.
This comment was referred to the Task Force and, with Caltrans'
representatives present, the Task Force discussed this comment.
Commuter railroads indicated that they had been operating cars with
roof access locations for several years or more and that roof access
markings and instructions had remained legible and conspicuous during
that time. These railroads noted that vandalism has not been a concern
for rooftops, and that vandals are much more likely to vandalize the
sides of cars, which are much more easily accessible. Further, sign
vendors stated that retroreflective roof access markings hold up well
in the elements and should easily be expected to go for at least a year
without becoming illegible or inconspicuous. The Task Force also
considered that some railroads do not have facilities from which they
can easily and safely observe the rooftops of their equipment, and
agreed that inspecting roof access markings would be more safely
conducted when the equipment is out of service at a maintenance
facility. The Task Force recommended that FRA require emergency roof
access markings and instructions to be inspected not less frequently
than every 368 days, instead of the 184 days as proposed. FRA agrees
with the Task Force's recommendation, considering the favorable
maintenance experience cited and the potential costs involved. FRA
believes that a yearly inspection of roof access markings and
instructions is sufficient to ensure that they are in place,
conspicuous, and legible.
Subpart E--Specific Requirements for Tier II Passenger Equipment
Section 238.437 [Reserved]
This section formerly contained the emergency communication
requirements for Tier II passenger equipment. These requirements have
been moved to new Sec. 238.121 (``Emergency communication'') to be
integrated with the new emergency communication system requirements for
Tier I passenger equipment, as stated above. This is consistent with
FRA's desire to prescribe, to the extent possible, the same emergency
system requirements for all passenger trains, regardless of train
speed. Section 238.437 is therefore being removed and reserved. Please
see Sec. 238.121 for a discussion of the emergency communication
system requirements for Tier II passenger equipment.
Section 238.441 Emergency Roof Access
In issuing the Passenger Equipment Safety Standards, FRA required
that Tier II passenger equipment have either a roof hatch or a clearly
marked structural weak point in the roof to provide quick access for
properly equipped emergency response personnel. See 64 FR 25689. FRA
stated that the final rule did not contain such requirements for Tier I
passenger equipment and that there was no consensus within the
Passenger Equipment Safety Standards Working Group to do so. See 64 FR
25642. Nevertheless, FRA noted that it believed that APTA PRESS Task
Force efforts would address requirements for Tier I passenger equipment
and that FRA intended to reexamine the requirements of this section in
a future rulemaking with a view to applying emergency roof access
requirements to Tier I passenger equipment. Id.
As discussed above, in Sec. 238.123 FRA is applying emergency roof
access requirements to Tier I passenger equipment and making the
requirements the same for new Tier I and Tier II passenger cars. In
doing so, FRA is revising Sec. 238.441, including the section heading,
to reconcile the requirements of these sections and thereby limit the
application of these separate requirements in Sec. 238.441 to existing
Tier II passenger cars and to any Tier II power car (whether existing
or new). At the same time, FRA is increasing the required dimensions of
emergency roof access locations for existing Tier II passenger
equipment, and providing general marking and instruction requirements
for such equipment. FRA believes that existing Tier II passenger
equipment is in compliance with these requirements, as revised, and
that these revisions more closely approximate the requirements for new
passenger equipment. FRA notes that all existing Tier II passenger cars
were built with the same design, thus once an emergency responder has
learned of the location of the roof access point on one passenger car,
the responder has learned it for all passenger cars. Given this and the
fact that there are a limited number of existing Tier II equipment, FRA
has decided to limit the applicability of certain provisions to new
Tier II passenger cars and power cars only.
Paragraph (a). Specifically, paragraph (a) has been revised to
limit its applicability to Tier II passenger cars and power cars both
ordered prior to April 1, 2009 and placed in service for the first time
prior to April 1, 2011. Paragraph (a) has also been modified to revise
the dimensions of the required opening from 18 inches by 24 inches, to
24 inches by 26 inches to be consistent with the requirements for Tier
I passenger equipment. In addition, paragraph (a) has been revised to
require that each emergency roof access location be conspicuously
marked, and that legible and understandable operating instructions be
posted at or near each such location.
The fundamental differences between the requirements in Sec.
238.123 for new passenger cars and those contained in revised paragraph
(a) of Sec. 238.441 for existing Tier II passenger cars and Tier II
power cars are as follows: The number of required emergency roof access
locations (two in Sec. 238.123, and one in Sec. 238.441), the marking
requirements (``conspicuously marked with
[[Page 6396]]
retroreflective material of contrasting color'' in Sec. 238.123, and
``conspicuously marked'' in Sec. 238.441), and the specifications for
their location (detailed specifications are contained in Sec. 238.123,
while more general requirements are in Sec. 238.441). These
differences reflect the consideration given to existing equipment built
in compliance with Sec. 238.441 of the 1999 final rule, and also
recognize that a requirement for two emergency roof access locations on
a Tier II power car would not be reasonable given that the only
normally occupied area in such a car is the cab compartment, in which
only one emergency roof access location can be placed.
Paragraph (b). Paragraph (b) has been revised to make clear that
each Tier II passenger car ordered on or after April 1, 2009, or placed
in service for the first time on or after April 1, 2011, is required to
comply with the emergency roof access requirements specified in Sec.
238.123. Section 238.123 subjects new Tier I and Tier II passenger cars
to the same emergency roof access requirements, and this revision to
paragraph (b) is intended to conform with that section's requirements.
As specified in paragraph (b), new Tier II passenger cars are
required to comply with the standards contained in Sec. 238.123, which
were developed exclusively for passenger cars.
Paragraph (c). Paragraph (c) has been added to address new Tier II
power cars. FRA believes that Tier II power cars--both new and
existing--should continue to be subject to emergency roof access
requirements, and that the requirements for emergency roof access in
Sec. 238.123 should generally apply to this equipment as well.
However, as Sec. 238.123 was developed specifically for passenger
cars, its requirements simply cannot be referenced in their entirety
for Tier II power cars. In particular, unlike the requirements of Sec.
238.123, only one emergency roof access location is necessary for a
power car. As a result, FRA has specifically limited the portions of
Sec. 238.123 that are applicable to new power cars. Paragraph (c)
requires that each power car ordered on or after April 1, 2009, or
placed in service for the first time on or after April 1, 2011, have a
minimum of one emergency roof access location, with a minimum opening
of 26 inches longitudinally by 24 inches laterally, and comply with the
emergency roof access requirements specified in Sec. Sec. 238.123(b),
(d), and (e).
Appendix A to Part 238--Schedule of Civil Penalties
This appendix contains a schedule of civil penalties to be used in
connection with this part. Because such penalty schedules are
statements of agency policy, notice and comment are not required prior
to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA invited
comment on the proposed penalty schedule, but no comment was received.
FRA has amended the penalty schedule to reflect changes made to
part 238. Specifically, FRA has added entries for new Sec. Sec.
238.114, 238.121, and 238.123; removed and reserved the entry for Sec.
238.437; revised the entry for Sec. 238.441; revised footnote 1; and
added footnote 2 to clarify the use of penalty codes in the penalty
schedule.
VI. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule has been evaluated in accordance with existing
policies and procedures, and determined not to be significant under
both Executive Order 12866 and DOT policies and procedures. See 44 FR
11034 (Feb. 26, 1979). FRA has prepared and placed in the docket a
regulatory evaluation addressing the economic impact of this final
rule. Document inspection and copying facilities are available at the
Docket Management Facility, U.S. Department of Transportation, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590. Docket material is also available for inspection
on the Internet at http://www.regulations.gov. Photocopies may also be
obtained by submitting a written request to the FRA Docket Clerk at
Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration,
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to
Docket No. FRA 2006-25273.
Certain of the requirements reflect current industry practice, or
restate existing regulations, or both. As a result, in calculating the
costs of this final rule, FRA has neither included the costs of those
actions that would be performed voluntarily in the absence of a
regulation, nor has FRA included the costs of those actions that would
be required by an existing regulation.
As presented in the following table, FRA estimates that the present
value (PV) of the total 20-year costs which the industry would be
expected to incur to comply with the requirements in this final rule is
$15.5 million:
20-Year PV Costs Incurred
------------------------------------------------------------------------
20-year PV
Description total ($)
------------------------------------------------------------------------
Costs:
(238.113) Emergency Window Exits:
--Installation of pull handles/gaskets in two $4,050
intermediate level windows..............................
--Replacement of instructions for window removal to 10,800
ensure that potential hindrances are addressed..........
--Installation of pull handles/gaskets in four 1,440
intermediate level windows..............................
(238.114) Rescue Access Windows:
--Installation of two windows per car.................... 163,880
--Marking and instructions............................... 3,840
(238.121) Emergency Communication:
--Addition of second intercom transmission location...... 213,675
--Addition of outside speaker for public address system.. 101,565
(238.123) Emergency Roof Access............................
--Structural weak points--engineering redesign........... 80,000
--Structural weak points--additional materials........... 117,250
--Platform ladder........................................ 1,700
(238.303, 238.305, and 238.307) Exterior, Interior, and 14,808,086
Periodic Inspection, Testing, and Maintenance.............
------------
Total Costs............................................ 15,506,286
------------------------------------------------------------------------
If over the 20-year period covered by the regulatory evaluation the
equivalent of 7.7 lives would be saved as a result of implementing the
requirements (from a combination of fatalities prevented, and injuries
avoided or minimized), the final rule would be cost-justified by the
safety benefits alone. FRA believes it is reasonable to expect that the
safety benefits would exceed the costs of the requirements. Although
passenger railroads offer the traveling public one of the safest forms
of transportation available, the potential for injuries and loss of
life in certain situations is very high. Nevertheless, FRA cannot
predict with reasonable confidence the actual numbers of lives that
would be saved. The number and severity of each future passenger train
accident or incident would determine the ultimate effectiveness of the
requirements; these cannot be forecast with a level of precision that
would allow us to predict the actual need for the measures in the rule.
Yet, FRA believes that the requirements protect passengers and crew
members against known safety concerns in a cost-effective manner. These
safety concerns are discussed in
[[Page 6397]]
detail, above, in the preamble to this final rule.
In particular, as discussed in Section III.C., the requirement for
an intercom system on Tier I passenger trains is intended to allow
passengers to communicate to the crew a medical emergency, report a
fire onboard the train, or provide notification of other emergency
situations as quickly as may be necessary. In fact, some passenger
lives may have already been saved at least in part due to the
availability of an intercom system because fellow passengers were able
to use the intercom to alert a crewmember that a passenger onboard
their car was experiencing a medical emergency. This led the crew to
call the dispatcher to arrange for prompt medical attention at a nearby
station. FRA believes that over the next 20 years the availability of
an intercom system to passengers may save the life of one or more
passengers experiencing a medical emergency.
The availability of an intercom system to passengers may also save
the life of one or more passengers in other emergency situations. For
example, on December 7, 1993, a gunman opened fire onboard an LIRR
commuter train traveling between New Hyde Park and Garden City, NY,
killing 6 people and injuring 19 others before he was overpowered by
passengers. No intercom system was available to the passengers, and the
train crew was not aware of the situation until the train arrived at
the next station where police happened to be present on the platform.
The availability of an intercom system to passengers in such a
situation could allow passengers to provide notification to the crew in
a timely manner so that the crew could contact the appropriate
authorities to obtain emergency assistance and take other necessary
action. This may include providing a direct warning over the train's
public address system both to passengers on the train as well as to
passengers in the immediate vicinity of the train on the station
platform. The final rule does require that Tier I passenger trains be
equipped with public address systems.
Further, over the past 20 years, other accidents and incidents have
occurred where, if they were to recur, the availability of the safety
features required by this final rule might save lives or prevent or
minimize injuries. For instance, 11 lives were lost in a February 16,
1996 collision between a Maryland Rail Commuter (MARC) train and an
Amtrak passenger train in Silver Spring, Maryland. The collision
breached a fuel tank of an Amtrak locomotive, spraying fuel into the
lead vehicle of the MARC train, which erupted in fire. The fire and
collision trapped a number of people in the lead vehicle. Having rescue
access windows available to emergency responders on the scene of such a
situation in the future might facilitate the rescue of one or more
passengers.
Similar accidents and incidents have unique circumstances that
ultimately determine their severity in terms of casualties, and actual
future events cannot be predicted with certainty. Nonetheless, it is
possible that over the next 20 years the safety features required by
this final rule will preserve life in a single event in an amount that
exceeds the entire estimated costs of the rule.
B. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impact on small entities. FRA has prepared and placed in the
docket an Analysis of Impact on Small Entities (AISE) that assesses the
small entity impact of this final rule. Document inspection and copying
facilities are available at the Docket Management Facility, U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC 20590. Docket material is
also available for inspection on the Internet at http://www.regulations.gov.
Photocopies may also be obtained by submitting a
written request to the FRA Docket Clerk at Office of Chief Counsel,
Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue,
SE., Washington, DC 20590; please refer to Docket No. FRA 2006-25273.
The AISE developed in connection with this final rule concludes
that this rule will not have a significant economic impact on a
substantial number of small entities. The principal entities impacted
by the rule are governmental jurisdictions or transit authorities--none
of which is small for purposes of the United States Small Business
Administration (i.e., no entity serves a locality with a population
less than 50,000). These entities also receive Federal transportation
funds. Although these entities are not small, the level of costs
incurred by each entity should generally vary in proportion to either
the size of the entity, or the extent to which the entity purchases
newly manufactured passenger equipment, or both. Tourist, scenic,
excursion, and historic passenger railroad operations are exempt from
the new requirements in the rule, and, therefore, these smaller
operations will not incur any costs.
The final rule does impact passenger car manufacturers. However,
these entities are principally large international corporations that
are not considered small entities. Some manufacturers and suppliers of
emergency signage and communication systems may be impacted by the
rule, and these may be small entities. Yet, FRA believes that any
impact on these entities will neither be significant nor negative, to
the extent that the demand for products and services that they provide
actually increases.
Having made these determinations, FRA certifies that this final
rule is not expected to have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act or Executive Order 13272.
C. Paperwork Reduction Act
The information collection requirements in this final rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:
----------------------------------------------------------------------------------------------------------------
Respondent Total annual
CFR section--49 CFR universe Total annual Average time burden hours Total annual
(railroads) responses per response (in minutes) burden cost
----------------------------------------------------------------------------------------------------------------
238.113--Emergency Window 22 662 markings.... 60/90/120 964 $0 (Included in
Exits: Markings and Reg. Eval.).
Instructions.
238.114--Rescue Access 22 1,092 markings.. 45 819 $0 (Included in
Windows: Markings and Reg. Eval.).
Instructions.
238.121--Emergency 22 116 markings.... 5 10 $410.
Communication--Intercom
System: Markings and
Instructions.
[[Page 6398]]
238.123--Emergency Roof 22 232 marked 30 116 $0 (Included in
Access: Markings and locations. Reg. Eval.).
Instructions.
238.303--Exterior Calendar
Day Mechanical Inspection of
Passenger Equipment:
--Repair/Replacement of 22 150 replacement 20 50 $2,050.
Non-Complying Rescue markings.
Access Markings.
--Records of Non- 22 150 records..... 2 5 $205.
Complying Markings.
238.305--Interior Calendar
Day Mechanical Inspection of
Passenger Cars:
--Non-Complying 22 260 1 9 $369.
Conditions of End Doors notifications +
and Side Doors of 260 notices.
Passenger Cars.
--Written Notification to 22 300 1 5 $205.
Train Crew of notifications.
Inoperative/Non-
Functioning Public
Address and Intercom
Systems.
--Records of Non- 22 300 records..... 2 10 $410.
Compliance with
Requirements of Section
238.305(d)(3).
238.307--Periodic Mechanical 22 32 replacement 20 11 $451.
Inspection of Passenger Cars markings/
and Unpowered Vehicles Used instructions.
in Passenger Trains:
Replacement of Non-complying
Emergency Roof Access
Markings and Instructions.
----------------------------------------------------------------------------------------------------------------
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
paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at (202) 493-6292 or via e-mail at
robert.brogan@dot.gov; or contact Ms. Gina Christodoulou at (202) 493-
6139 or via e-mail at gina.christodoulou@dot.gov.
OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this final rule in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. Send any comments to:
The Office of Management and Budget, 725 17th Street, NW., Washington,
DC 20503, Attn: FRA OMB Desk Officer; or via e-mail at
oira_submissions@omb.eop.gov. The OMB control number, when assigned, will be
announced by separate notice in the Federal Register.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
D. Federalism Implications
FRA has analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132, issued on August 4,
1999, which directs Federal agencies to exercise great care in
establishing policies that have federalism implications. See 64 FR
43255. This final rule will not have a substantial direct effect on the
States, on the relationship between the National government and the
States, or on the distribution of power and responsibilities among
various levels of government.
One of the fundamental Federalism principles, as stated in Section
2(a) of Executive Order 13132, is that ``Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government closest to the
people.'' Congress expressed its intent that there be national
uniformity of regulation concerning railroad safety matters when it
enacted 49 U.S.C. 20106, which provides that all regulations prescribed
by the Secretary of Transportation with respect to railroad safety
matters and the Secretary of Homeland Security with respect to railroad
security matters preempt any State law, regulation, or order covering
the same subject matter, except a provision necessary to eliminate or
reduce an essentially local safety or security hazard that is not
incompatible with a Federal law, regulation, or order and that does not
unreasonably burden interstate commerce. This intent was expressed even
more specifically in 49 U.S.C. 20133, which mandated that the Secretary
of Transportation prescribe ``regulations establishing minimum
standards for the safety of cars used by railroad carriers to transport
passengers'' and consider such matters as ``emergency response
procedures and equipment'' before prescribing such regulations. This
final rule is intended to add to and enhance the regulations issued
pursuant to 49 U.S.C. 20133.
FRA notes that the above factors have been considered throughout
the development of this final rule both internally and through
consultation within the RSAC forum, as described in Section II of this
preamble. The full RSAC, which, prior to the publication of the NPRM,
reached consensus on the proposed rule text and recommended the
proposal to FRA, has as permanent voting members two organizations
representing State and local interests: AASHTO and ASRSM. As such,
these State organizations concurred with the proposed requirements,
which differ in only limited respects from the requirements contained
in this final rule. The RSAC regularly provides recommendations to the
FRA Administrator for solutions to regulatory issues that reflect
significant input from its State members. To date, FRA has received no
indication of concerns about the Federalism implications of this
rulemaking from these representatives or from any other representative.
For the foregoing reasons, FRA believes that this final rule is in
accordance with the principles and criteria contained in Executive
Order 13132.
[[Page 6399]]
E. Environmental Impact
FRA has evaluated this final rule in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(see 64 FR 28545 (May 26, 1999)) as required by the National
Environmental Policy Act (see 42 U.S.C. 4321 et seq.), other
environmental statutes, Executive Orders, and related regulatory
requirements. FRA has determined that this final rule is not a major
FRA action (requiring the preparation of an environmental impact
statement or environmental assessment) because it is categorically
excluded from detailed environmental review pursuant to section
4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26, 1999). In
accordance with section 4(c) and (e) of FRA's Procedures, the agency
has further concluded that no extraordinary circumstances exist with
respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this final
rule is not a major Federal action significantly affecting the quality
of the human environment.
F. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. No. 104-4, 2 U.S.C. 1531), 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).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in 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 rule will not result in the expenditure, in the aggregate, of
$100,000,000 or more (as adjusted annually for inflation) in any one
year, and thus preparation of such a statement is not required.
G. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' See
66 FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this final rule in accordance with Executive
Order 13211. FRA has determined that this final rule is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Consequently, FRA has determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.
H. Trade Impact
The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et
seq.) prohibits Federal agencies from engaging in any standards or
related activities that create unnecessary obstacles to the foreign
commerce of the United States. Legitimate domestic objectives, such as
safety, are not considered unnecessary obstacles. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
FRA has assessed the potential effect of this final rule on foreign
commerce and believes that its requirements are consistent with the
Trade Agreements Act. The requirements imposed are safety standards,
which, as noted, are not considered unnecessary obstacles to trade.
Moreover, FRA has sought, to the extent practicable, to state the
requirements in terms of the performance desired, rather than in more
narrow terms restricted to a particular design, so as not to limit
different, compliant designs by any manufacturer--foreign or domestic.
For related discussion on the international effects of part 238,
please see the preamble to the May 12, 1999 Passenger Equipment Safety
Standards final rule on the topic of ``United States international
treaty obligations.'' See 64 FR 25545.
I. Privacy Act
Anyone is able to search the electronic form of all comments or
petitions for reconsideration received into any of FRA's dockets by the
name of the individual submitting the comment or petition for
reconsideration (or signing the comment or petition for
reconsideration, if submitted on behalf of an association, business,
labor union, etc.). You may review DOT's complete Privacy Act Statement
in the Federal Register published on April 11, 2000 (65 FR 19477-78),
or you may visit http://DocketsInfo.dot.gov.
List of Subjects
49 CFR Part 223
Glazing standards, Penalties, Railroad safety, Reporting and
recordkeeping requirements.
49 CFR Part 238
Incorporation by reference, Passenger equipment, Penalties,
Railroad safety, Reporting and recordkeeping requirements.
The Rule
0
For the reasons discussed in the preamble, parts 223 and 238 of chapter
II, subtitle B of title 49, Code of Federal Regulations are amended as
follows:
PART 223--[AMENDED]
0
1. The authority citation for part 223 is revised to read as follows:
Authority: 49 U.S.C. 20102-20103, 20133, 20701-20702, 21301-
21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.
Subpart A--General
0
2. Section 223.5 is amended by removing the definitions of ``Emergency
responder'' and ``Passenger train service''; and by revising the
definition of ``Emergency window'' to read as follows:
Sec. 223.5 Definitions.
* * * * *
Emergency window means the segment of a side-facing glazing panel
that has been designed to permit rapid and easy removal from inside a
passenger car in an emergency situation.
* * * * *
Subpart B--Specific Requirements
0
3. Section 223.9 is amended by removing paragraph (d); and by revising
paragraph (c) to read as follows:
[[Page 6400]]
Sec. 223.9 Requirements for new or rebuilt equipment.
* * * * *
(c) Passenger cars, including self-propelled passenger cars, built
or rebuilt after June 30, 1980, must be equipped with certified glazing
in all windows and at least four emergency windows.
0
4. Appendix B to part 223 is amended by revising the entry for section
223.9; and by revising footnote 1 to read as follows:
Appendix B to Part 223--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 $27,000 for any violation where circumstances
warrant. See 49 U.S.C. 21301, 21304, and 49 CFR part 209, appendix
A. If more than one item is listed as a type of violation of a given
section, each item is also designated by a ``penalty code,'' which
is used to facilitate assessment of civil penalties, and which may
or may not correspond to any subsection designation(s). For
convenience, penalty citations will cite the CFR section and the
penalty code, if any. FRA reserves the right, should litigation
become necessary, to substitute in its complaint the CFR citation in
place of the combined CFR and penalty code citation, should they
differ.
------------------------------------------------------------------------
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
------------------------------------------------------------------------
* * * * *
PART 238--[AMENDED]
0
5. The authority citation for part 238 continues to read as follows:
Authority: 49 U.S.C. 20103, 20107, 20133, 20141, 20302-20303,
20306, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49
CFR 1.49.
Subpart A--General
0
6. Section 238.5 is amended by revising the definition of ``Emergency
window'' and by adding the definitions of ``Dual-function window,''
``Emergency responder,'' ``Intercom,'' ``Intercom system,''
``Intermediate level,'' ``Main level,'' ``PA System,'' ``Passenger
compartment,'' ``Rescue access window,'' ``Retroreflective material,''
and ``Seating area'' to read as follows:
Sec. 238.5 Definitions.
* * * * *
Dual-function window means a window that is intended to serve as
both an emergency window exit and a rescue access window and that meets
the applicable requirements set forth in both Sec. Sec. 238.113 and
238.114.
* * * * *
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 the segment of a side-facing glazing panel
that has been designed to permit rapid and easy removal from inside a
passenger car in an emergency situation.
* * * * *
Intercom means a device through which voice communication is
transmitted and received.
Intercom system means a two-way, voice communication system.
* * * * *
Intermediate level means a level of a multi-level passenger car
that is used for passenger seating and is normally located between two
main levels. An intermediate level normally contains two, separate
seating areas, one at each end of the car, and is normally connected to
each main level by stairs.
* * * * *
Main level means a level of a passenger car that contains a
passenger compartment whose length is equal to or greater than half the
length of the car.
* * * * *
PA system (or public address system) means a one-way, voice
communication system.
* * * * *
Passenger compartment means an area of a passenger car that
consists of a seating area and any vestibule that is connected to the
seating area by an open passageway.
* * * * *
Rescue access window means a side-facing exterior window intended
for use by emergency responders to gain access to passengers in an
emergency situation.
* * * * *
Retroreflective material means a material that is capable of
reflecting light rays back to the light source and that conforms to the
specifications for Type I Sheeting as specified in ASTM International
Standard D 4956-07, ``Standard Specification for Retroreflective
Sheeting for Traffic Control.'' The Director of the Federal Register
approves the incorporation by reference of this standard in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the
incorporated standard from ASTM International, 100 Barr Harbor Drive,
P.O. Box C700, West Conshohocken, PA 19428-2959. You may inspect a copy
of the incorporated standard at the Federal Railroad Administration,
Docket Clerk, 1200 New Jersey Avenue, SE., Washington, DC, or at the
National Archives and Records Administration (NARA). For information on
the availability of this material at NARA, call 202-741-6030, or go to
http://www.archives.gov/federal-register/cfr/ibr-locations.html.
* * * * *
Seating area means an area of a passenger car that normally
contains passenger seating.
* * * * *
0
7. Section 238.17 is amended by revising the introductory text of
paragraphs (b) and (c) to read as follows:
Sec. 238.17 Movement of passenger equipment with other than power
brake defects.
* * * * *
(b) Limitations on movement of passenger equipment containing
defects found at time of calendar day inspection. Except as provided in
Sec. Sec. 238.303(e)(15), (e)(17) and (e)(18), 238.305(c) and (d), and
238.307(c)(1), passenger equipment containing a condition not in
conformity with this part at the time of its calendar day mechanical
inspection may be moved from that location for repair if all of the
following conditions are satisfied:
* * * * *
(c) Limitations on movement of passenger equipment that develops
defects en route. Except as provided in Sec. Sec. 238.303(e)(15),
(e)(17) and (e)(18), 238.305(c), 238.307(c)(1), and 238.503(f),
passenger equipment that develops en route to its destination,
[[Page 6401]]
after its calendar day mechanical inspection is performed and before
its next calendar day mechanical inspection is performed, any condition
not in compliance with this part, other than a power brake defect, may
be moved only if the railroad complies with all of the following
requirements or, if applicable, the specified requirements in paragraph
(e) of this section:
* * * * *
Subpart B--Safety Planning and General Requirements
0
8. Section 238.113 is revised to read as follows:
Sec. 238.113 Emergency window exits.
(a) Number and location. Except as provided in paragraph (a)(3) of
this section, the following requirements in this paragraph (a) apply on
or after April 1, 2008--
(1) Single-level passenger cars. Each single-level passenger car
shall have a minimum of four emergency window exits. At least one
emergency window exit shall be located in each side of each end (half)
of the car, in a staggered configuration where practical. (See Figure 1
to this subpart; see also Figures 1b and 1c to this subpart.)
(2) Multi-level passenger cars--main levels. Each main level in a
multi-level passenger car is subject to the same requirements specified
for single-level passenger cars in paragraph (a)(1) of this section.
(3) Multi-level passenger cars--levels with seating areas other
than main levels.
(i) Except as provided in paragraphs (a)(3)(ii) and (iii) of this
section, on or after August 1, 2009, any level other than a main level
used for passenger seating in a multi-level passenger car, such as an
intermediate level, shall have a minimum of two emergency window exits
in each seating area. The emergency window exits shall be accessible to
passengers in the seating area without requiring movement through an
interior door or to another level of the car. At least one emergency
window exit shall be located in each side of the seating area. An
emergency window exit may be located within an exterior side door in
the passenger compartment if it is not practical to place the window
exit in the side of the seating area. (See Figures 2 and 2a to this
subpart.)
(ii) Only one emergency window exit is required in a seating area
in a passenger compartment if:
(A) It is not practical to place an emergency window exit in a side
of the passenger compartment due to the need to provide accessible
accommodations under the Americans with Disabilities Act of 1990;
(B) There are no more than four seats in the seating area; and
(C) A suitable, alternate arrangement for emergency egress is
provided.
(iii) For passenger cars ordered prior to April 1, 2009, and placed
in service prior to April 1, 2011, only one emergency window exit is
required in a seating area in a passenger compartment if--
(A) It is not practicable to place a window exit in a side of the
passenger compartment (due to the presence of a structure such as a
bathroom, electrical locker, or kitchen); and
(B) There are no more than eight seats in the seating area.
(4) Cars with a sleeping compartment or similar private
compartment. Each level of a passenger car with a sleeping compartment
or a similar private compartment intended to be occupied by a passenger
or train crewmember shall have at least one emergency window exit in
each such compartment. For purposes of this paragraph (a)(4), a
bathroom, kitchen, or locomotive cab is not considered a
``compartment.''
(b) Ease of operability. On or after November 8, 1999, each
emergency window exit shall be designed to permit rapid and easy
removal from the inside of the car during an emergency situation
without requiring the use of a tool or other implement.
(c) Dimensions. Except as provided in paragraphs (c)(1) and (c)(2)
of this section, each emergency window exit in a passenger car,
including a sleeping car, ordered on or after September 8, 2000, or
placed in service for the first time on or after September 9, 2002,
shall have an unobstructed opening with minimum dimensions of 26 inches
horizontally by 24 inches vertically. A seatback is not an obstruction
if it can be moved away from the window opening without using a tool or
other implement.
(1) Emergency window exits in exterior side doors. An emergency
window exit located within an exterior side door, in accordance with
the requirements of paragraph (a)(3)(i) of this section, may have an
unobstructed opening with minimum dimensions of 24 inches horizontally
by 26 inches vertically.
(2) Additional emergency window exits. Any emergency window exit in
addition to the minimum number required by paragraph (a) of this
section that has been designated for use by the railroad need not
comply with the minimum dimension requirements in paragraph (c) of this
section, but must otherwise comply with all requirements in this part
applicable to emergency window exits.
(d) Marking and instructions. (1) Each emergency window exit shall
be conspicuously and legibly marked with luminescent material on the
inside of each car to facilitate passenger egress.
(2) Legible and understandable operating instructions, including
instructions for removing the window, shall be posted at or near each
such window exit. If window removal may be hindered by the presence of
a seatback, headrest, luggage rack, or other fixture, the instructions
shall state the method for allowing rapid and easy removal of the
window, taking into account the fixture(s), and this portion of the
instructions may be in written or pictorial format.
0
9. Section 238.114 is added to read as follows:
Sec. 238.114 Rescue access windows.
(a) Number and location. Except as provided in paragraph (a)(1)(ii)
of this section, the following requirements in this paragraph (a) apply
on or after April 1, 2008--
(1) Single-level passenger cars. Except as provided in this
paragraph (a)(1) and in paragraphs (a)(1)(i), (a)(1)(ii), and (a)(5) of
this section, each single-level passenger car shall have a minimum of
two rescue access windows. At least one rescue access window shall be
located in each side of the car entirely within 15 feet of the car's
centerline, or entirely within 7\1/2\ feet of the centerline if the car
does not exceed 45 feet in length. (See Figure 1a to this subpart; see
also Figures 1b and 1c to this subpart.) If the seating level is
obstructed by an interior door or otherwise partitioned into separate
seating areas, each separate seating area shall have a minimum of one
rescue access window in each side of the seating area, located as near
to the center of the car as practical.
(i) For a single-level passenger car ordered prior to April 1,
2009, and placed in service prior to April 1, 2011, rescue access
windows may be located farther than the above prescribed distances from
the car's centerline, or located within exterior side doors, or both,
if at least one rescue access window is located within each side of
each end (half) of the same passenger compartment.
(ii) For a single-level passenger car ordered prior to September 8,
2000, and placed in service prior to September 9, 2002, the
requirements of paragraph (a)(1) apply on or after August 1, 2009 if
the car has at least two exterior side doors (or door leaves), each
with a
[[Page 6402]]
manual override device, and such doors (or door leaves) are located one
on each side of the car, in opposite ends (halves) of the car (i.e., in
diagonally-opposite quadrants). The manual override device shall be--
(A) Capable of releasing the door (or door leaf) to permit it to be
opened without power from outside the car;
(B) Located adjacent to the door (or door leaf) that it controls;
and
(C) Designed and maintained so that a person can access the
override device from outside the car without using a tool or other
implement.
(2) Multi-level passenger cars--main levels. Each main level in a
multi-level passenger car is subject to the same requirements specified
for single-level passenger cars in paragraph (a)(1) of this section,
with the exception of paragraph (a)(1)(ii), which is not applicable.
(3) Multi-level passenger cars--levels with seating areas other
than main levels. (i) Except as provided in paragraphs (a)(3)(ii) and
(a)(3)(iii) of this section, any level other than a main level used for
passenger seating in a multi-level passenger car, such as an
intermediate level, shall have a minimum of two rescue access windows
in each seating area. The rescue access windows shall permit emergency
responders to gain access to passengers in the seating area without
requiring movement through an interior door or to another level of the
car. At least one rescue access window shall be located in each side of
the seating area. A rescue access window may be located within an
exterior side door in the passenger compartment if it is not practical
to place the access window in the side of the seating area. (See
Figures 2 and 2a of this subpart.)
(ii) Only one rescue access window is required in a seating area in
a passenger compartment if--
(A) It is not practical to place a rescue access window in a side
of the passenger compartment due to the need to provide accessible
accommodations under the Americans with Disabilities Act of 1990;
(B) There are no more than four seats in the seating area; and
(C) A suitable, alternate arrangement for rescue access is
provided.
(iii) For passenger cars ordered prior to April 1, 2009, and placed
in service prior to April 1, 2011, only one rescue access window is
required in a seating area in a passenger compartment if--
(A) It is not practicable to place an access window in a side of
the passenger compartment (due to the presence of a structure such as a
bathroom, electrical locker, or kitchen); and
(B) There are no more than eight seats in the seating area.
(4) Cars with a sleeping compartment or similar private
compartment. Each level of a passenger car with a sleeping compartment
or a similar private compartment intended to be occupied by a passenger
or train crewmember shall have a minimum of one rescue access window in
each such compartment. For purposes of this paragraph, a bathroom,
kitchen, or locomotive cab is not considered a ``compartment.''
(5) Dual-function windows. If, on any level of a passenger car, the
emergency window exits installed to meet the minimum requirements of
Sec. 238.113 are also intended to function as rescue access windows,
the minimum requirements for the number and location of rescue access
windows in paragraphs (a)(1) through (a)(4) of this section are also
met for that level.
(b) Ease of operability. On or after April 1, 2008, each rescue
access window must be capable of being removed without unreasonable
delay by an emergency responder using either--
(1) A provided external mechanism; or
(2) Tools or implements that are commonly available to the
responder in a passenger train emergency.
(c) Dimensions. Each rescue access window in a passenger car,
including a sleeping car, ordered on or after April 1, 2009, or placed
in service for the first time on or after April 1, 2011, shall have an
unobstructed opening with minimum dimensions of 26 inches horizontally
by 24 inches vertically. A rescue access window located within an
exterior side door, in accordance with the requirements of paragraph
(a)(3)(i) of this section, may have an unobstructed opening with
minimum dimensions of 24 inches horizontally by 26 inches vertically. A
seatback is not an obstruction if it can be moved away from the window
opening without using a tool or other implement.
(d) Marking and instructions. Each rescue access window shall be
marked with retroreflective material. A unique and easily recognizable
symbol, sign, or other conspicuous marking shall also be used to
identify each such window. Legible and understandable window-access
instructions, including instructions for removing the window, shall be
posted at or near each rescue access window.
0
10. Add new Sec. 238.121 to read as follows:
Sec. 238.121 Emergency communication.
(a) PA system (public address system). (1) Existing Tier I
passenger cars. On or after January 1, 2012, each Tier I passenger car
shall be equipped with a PA system that provides a means for a train
crewmember to communicate by voice to passengers of his or her train in
an emergency situation.
(2) New Tier I and all Tier II passenger cars. Each Tier I
passenger car ordered on or after April 1, 2008, or placed in service
for the first time April 1, 2010, and all Tier II passenger cars shall
be equipped with a PA system that provides a means for a train
crewmember to communicate by voice to passengers of his or her train in
an emergency situation. The PA system shall also provide a means for a
train crewmember to communicate by voice in an emergency situation to
persons in the immediate vicinity of his or her train (e.g., persons on
the station platform). The PA system may be part of the same system as
the intercom system.
(b) Intercom system. (1) New Tier I and all Tier II passenger cars.
Each Tier I passenger car ordered on or after April 1, 2008, or placed
in service for the first time on or after April 1, 2010, and all Tier
II passenger cars shall be equipped with an intercom system that
provides a means for passengers and crewmembers to communicate by voice
with each other in an emergency situation. Except as further specified,
at least one intercom that is accessible to passengers without using a
tool or other implement shall be located in each end (half) of each
car. If any passenger car does not exceed 45 feet in length, or if a
Tier II passenger car was ordered prior to May 12, 1999, only one such
intercom is required. The intercom system may be part of the same
system as the PA system.
(2) Marking and instructions. The following requirements apply to
each Tier I passenger car on or after April 1, 2010 and to all Tier II
passenger cars:
(i) The location of each intercom intended for passenger use shall
be conspicuously marked with luminescent material; and
(ii) Legible and understandable operating instructions shall be
posted at or near each such intercom.
(c) Back-up power. PA and intercom systems shall have a back-up
power system capable of--
(1) Operating in all equipment orientations within 45 degrees of
vertical;
(2) Operating after the initial shock of a collision or derailment
resulting in the following individually applied accelerations:
(i) Longitudinal: 8g;
(ii) Lateral: 4g; and
(iii) Vertical: 4g; and
[[Page 6403]]
(3) Powering each system to allow intermittent emergency
communication for a minimum period of 90 minutes. Intermittent
communication shall be considered equivalent to continuous
communication during the last 15 minutes of the 90-minute minimum
period.
0
11. Section 238.123 is added to read as follows:
Sec. 238.123 Emergency roof access.
Except as provided in Sec. 238.441 of this chapter--
(a) Number and dimensions. Each passenger car ordered on or after
April 1, 2009, or placed in service for the first time on or after
April 1, 2011, shall have a minimum of two emergency roof access
locations, each with a minimum opening of 26 inches longitudinally
(i.e., parallel to the longitudinal axis of the car) by 24 inches
laterally.
(b) Means of access. Emergency roof access shall be provided by
means of a hatch, or a conspicuously marked structural weak point in
the roof for access by properly equipped emergency response personnel.
(c) Location. Emergency roof access locations shall be situated as
practical so that when a car is on its side--
(1) One emergency access location is wholly within each half of the
roof as divided top from bottom; and
(2) One emergency access location is wholly within each half of the
roof as divided left from right. (See Figure 3 to this subpart.)
(d) Obstructions. The ceiling space below each emergency roof
access location shall be free from wire, cabling, conduit, and piping.
This space shall also be free of any rigid secondary structure (e.g., a
diffuser or diffuser support, lighting back fixture, mounted PA
equipment, or luggage rack) where practicable. If emergency roof access
is provided by means of a hatch, it shall be possible to push interior
panels or liners out of their retention devices and into the interior
of the vehicle after removing the hatch. If emergency roof access is
provided by means of a structural weak point, it shall be permissible
to cut through interior panels, liners, or other non-rigid secondary
structures after making the cutout hole in the roof, provided any such
additional cutting necessary to access the interior of the vehicle
permits a minimum opening of the dimensions specified in paragraph (a)
to be maintained.
(e) Marking and instructions. Each emergency roof access location
shall be conspicuously marked with retroreflective material of
contrasting color. As further specified, legible and understandable
instructions shall be posted at or near each such location. If
emergency roof access is provided by means of a structural weak point--
(1) The retroreflective material shall conspicuously mark the line
along which the roof skin shall be cut; and
(2) A sign plate with a retroreflective border shall also state as
follows:
CAUTION--DO NOT USE FLAME CUTTING DEVICES
CAUTION--WARN PASSENGERS BEFORE CUTTING
CUT ALONG DASHED LINE TO GAIN ACCESS
ROOF CONSTRUCTION--[STATE RELEVANT DETAILS]
0
12. Subpart B to part 238 is amended by adding Figures 1, 1a, 1b, 1c,
2, 2a, 2b, and 3 to read as follows:
Sec.
Figure 1 to Subpart B of Part 238--Example of Location and
Staggering of Emergency Window Exits--Sec. 238.113
Figure 1A to Subpart B of Part 238--Example of Location of Rescue
Access Windows--Sec. 238.114
Figure 1B to Subpart B of Part 238--Example of Location and
Staggering of Emergency Window Exits and Location of Rescue Access
Windows--Sec. Sec. 238.113 and 238.114
Figure 1C to Subpart B of Part 238--Example of a Passenger
Compartment Including a Vestibule Connected by an Open Passageway
and Excluding a Vestibule Separated by an Interior Door--Sec. Sec.
238.113 and 238.114
Figure 2 to Subpart B of Part 238--Example of a Multi-Level Car
Complying with Window Location and Staggering Requirements--
Sec. Sec. 238.113 and 238.114
Figure 2A to Subpart B of Part 238--Example of an Intermediate Level
Seating Area of a Multi-Level Car Complying With Window Location
Requirements--Sec. Sec. 238.113 and 238.114
Figure 2B to Subpart B of Part 238--Example of an Intermediate Level
Seating Area of a Multi-Level Car Complying With Window Location
Requirements--Sec. Sec. 238.113 and 238.114
Figure 3 to Subpart B of Part 238--Example of Location and Marking
of Structural Weak Points on Roof of Passenger Car--Sec. 238.123
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BILLING CODE 4910-06-C
Subpart D--Inspection, Testing, and Maintenance Requirements for
Tier I Passenger Equipment
0
13. Section 238.303 is amended by adding paragraph (e)(18) to read as
follows:
Sec. 238.303 Exterior calendar day mechanical inspection of passenger
equipment.
* * * * *
(e) * * *
(18) All rescue-access-related exterior markings, signage, and
instructions required by Sec. 238.114 and Sec. 239.107(a) of this
chapter shall be in place and, as applicable, conspicuous or legible,
or both.
(i) Except as provided in paragraphs (e)(18)(ii) and (iii) of this
section, passenger equipment that has any required rescue-access-
related exterior marking, signage, or instruction that is missing,
illegible, or inconspicuous may remain in passenger service until no
later than the equipment's fourth exterior calendar day mechanical
inspection or next periodic mechanical inspection required under Sec.
238.307, whichever occurs first, after the noncomplying condition is
discovered, where the car shall be repaired or removed from service.
(ii) A passenger car having more than 50 percent of the windows on
a side of a level of the car designated and properly marked for rescue
access that has any required rescue-access-related exterior marking,
signage, or instruction that is missing, illegible, or inconspicuous on
any of the other windows on that side and level of the car may remain
in passenger service until no later than the car's next periodic
mechanical inspection required under Sec. 238.307, where the car shall
be repaired or removed from service.
(iii) A passenger car that is a sleeping car that has more than two
consecutive windows with any required rescue access-related exterior
marking, signage, or instruction at or near their locations that is
missing, illegible, or inconspicuous may remain in passenger service
until no later than the car's next periodic mechanical inspection
required under Sec. 238.307, where the car shall be repaired or
removed from service.
(iv) A record shall be maintained of any noncomplying marking,
signage, or instruction described in paragraphs (e)(18)(i) through
(iii) of this section that contains the date and time that the
defective condition was first discovered. This record shall be retained
until all necessary repairs are completed.
* * * * *
0
14. Section 238.305 is amended by revising paragraph (c) introductory
text and paragraph (c)(10), and by adding paragraphs (c)(11) and
(c)(12) to read as follows:
Sec. 238.305 Interior calendar day mechanical inspection of passenger
cars.
* * * * *
(c) As part of the interior calendar day mechanical inspection, the
railroad shall verify conformity with the following conditions, and
nonconformity with any such condition renders the car defective
whenever discovered in service, except as provided in paragraphs (c)(8)
through (c)(12) and paragraph (d) of this section.
* * * * *
(10) All end doors and side doors operate safely and as intended. A
noncomplying car may continue in passenger service pursuant to
paragraph (d) of this section--
(i) If at least one operative and accessible door is available on
each side of the car;
(ii) The train crew is provided written notification of the
noncomplying condition; and
(iii) A notice is prominently displayed directly on the defective
door indicating that the door is defective.
(11) [Reserved]
(12) On passenger cars so equipped, public address and intercom
systems shall be operative and function as intended. A passenger car
with an inoperative or nonfunctioning public address or intercom system
may remain in passenger service until no later than the car's fourth
interior calendar day mechanical inspection or next periodic mechanical
inspection required under Sec. 238.307, whichever occurs first, or for
a passenger car used in long-distance intercity train service until the
eighth interior calendar day mechanical inspection or next periodic
mechanical inspection required under Sec. 238.307, whichever occurs
first, after the noncomplying condition is discovered, where it shall
be repaired or removed from service; provided, the train crew is given
written notification of the noncomplying condition, and all of the
requirements contained in paragraph (d)(3) of this section are met.
* * * * *
0
15. Section 238.307 is amended by revising paragraph (c) introductory
text, paragraph (c)(5), and paragraph (d) to read as follows:
Sec. 238.307 Periodic mechanical inspection of passenger cars and
unpowered vehicles used in passenger trains.
* * * * *
(c) The periodic mechanical inspection shall specifically include
the following interior and exterior mechanical components, which shall
be inspected not less frequently than every 184 days. At a minimum,
this inspection shall determine that:
* * * * *
(5) With regard to the following emergency systems:
(i) Emergency lighting systems required under Sec. 238.115 are in
place and operational; and
(ii) [Reserved]
* * * * *
(d) At an interval not to exceed 368 days, the periodic mechanical
inspection shall specifically include inspection of the following:
(1) Manual door releases, to determine that all manual door
releases operate as intended;
(2) The hand or parking brake as well as its parts and connections,
to determine that they are in proper condition and operate as intended.
The date of the last inspection shall be either entered on Form FRA F
6180-49A, suitably stenciled or tagged on the equipment, or maintained
electronically provided FRA has access to the record upon request; and
(3) Emergency roof access markings and instructions required under
Sec. 238.123(e), to determine that they are in place and, as
applicable, conspicuous or legible, or both.
* * * * *
Subpart E--Specific Requirements for Tier II Passenger Equipment
Sec. 238.437 [Removed]
0
16. Section 238.437 is removed and reserved.
0
17. Section 238.441 is revised to read as follows:
Sec. 238.441 Emergency roof access.
(a) Existing passenger cars and power cars. Each passenger car and
power car ordered prior to April 1, 2009 and placed in service for the
first time prior to April 1, 2011, shall have a minimum of one roof
hatch emergency access location with a minimum opening of 26 inches by
24 inches, or at least one structural weak point in the roof providing
a minimum opening of the same dimensions, to provide access for
properly equipped emergency response personnel. Each emergency roof
access location shall be conspicuously marked, and legible and
understandable operating instructions shall be posted at or near each
such location.
(b) New passenger cars. Each passenger car ordered on or after
April
[[Page 6413]]
1, 2009 or placed in service for the first time on or after April 1,
2011, shall comply with the emergency roof access requirements
specified in Sec. 238.123.
(c) New power cars. Each power car ordered on or after April 1,
2009, or placed in service for the first time on or after April 1,
2011, shall have a minimum of one emergency roof access location, with
a minimum opening of 26 inches longitudinally by 24 inches laterally,
and comply with the emergency roof access requirements specified in
Sec. Sec. 238.123(b), (d), and (e).
0
18. Appendix A to part 238 is amended by adding entries under subpart B
for new sections 238.114, 238.121, and 238.123, under subpart E by
removing and reserving the entry for section 238.437 and revising the
entry for section 238.441, and by revising footnote 1 and adding
footnote 2 to read as follows:
Appendix A to Part 238--Schedule of Civil Penalties 1 2
---------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a
willful violation. Generally when two or more violations of these
regulations are discovered with respect to a single unit of
passenger equipment that is placed or continued in service by a
railroad, the appropriate penalties set forth above are aggregated
up to a maximum of $16,000 per day. However, failure to perform,
with respect to a particular unit of passenger equipment, any of the
inspections and tests required under subparts D and F of this part
will be treated as a violation separate and distinct from, and in
addition to, any substantive violative conditions found on that unit
of passenger equipment. Moreover, the Administrator reserves the
right to assess a penalty of up to $27,000 for any violation where
circumstances warrant. See 49 CFR part 209, appendix A.
Failure to observe any condition for movement of defective
equipment set forth in Sec. 238.17 will deprive the railroad of the
benefit of the movement-for-repair provision and make the railroad
and any responsible individuals liable for penalty under the
particular regulatory section(s) concerning the substantive
defect(s) present on the unit of passenger equipment at the time of
movement.
Failure to observe any condition for the movement of passenger
equipment containing defective safety appliances, other than power
brakes, set forth in Sec. 238.17(e) will deprive the railroad of
the movement-for-repair provision and make the railroad and any
responsible individuals liable for penalty under the particular
regulatory section(s) contained in part 231 of this chapter or Sec.
238.429 concerning the substantive defective condition.
The penalties listed for failure to perform the exterior and
interior mechanical inspections and tests required under Sec.
238.303 and Sec. 238.305 may be assessed for each unit of passenger
equipment contained in a train that is not properly inspected.
Whereas, the penalties listed for failure to perform the brake
inspections and tests under Sec. 238.313 through Sec. 238.319 may
be assessed for each train that is not properly inspected.
\2\ The penalty schedule uses section numbers from 49 CFR part
238. If more than one item is listed as a type of violation of a
given section, each item is also designated by a ``penalty code,''
which is used to facilitate assessment of civil penalties, and which
may or may not correspond to any subsection designation(s). For
convenience, penalty citations will cite the CFR section and the
penalty code, if any. FRA reserves the right, should litigation
become necessary, to substitute in its complaint the CFR citation in
place of the combined CFR and penalty code citation, should they
differ.
------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------
Subpart B--Safety Planning and General Requirements
* * * * * * *
238.114 Rescue access windows................. 2,500 5,000
* * * * * * *
238.121 Emergency communication............... 2,500 5,000
238.123 Emergency roof access................. 2,500 5,000
* * * * * * *
------------------------------------------------------------------------
Subpart E--Specific Requirements for Tier II Passenger Equipment
Sec. 238.437 [Reserved]
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
238.441 Emergency roof access................. 2,500 5,000
* * * * * * *
------------------------------------------------------------------------
Issued in Washington, DC, on January 17, 2008.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 08-247 Filed 1-31-08; 8:45 am]
BILLING CODE 4910-00-P