Passenger Train Emergency Systems

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: August 24, 2006 (Volume 71, Number 164)]
[Proposed Rules]
[Page 50275-50313]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24au06-24]
[[Page 50276]]

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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 223 and 238
[Docket No. FRA-2006-25273, Notice No. 1]
RIN 2130-AB72

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This NPRM 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 NPRM,
FRA proposes to enhance existing requirements for emergency window
exits and to establish requirements for rescue access windows to
evacuate passenger train occupants. FRA also proposes to enhance
passenger train emergency system requirements by expanding the
application of requirements that are currently applicable only to
passenger trains operating at speeds in excess of 125 mph (Tier II
passenger trains) to passenger trains operating at speeds at or below
125 mph (Tier I passenger trains); these proposed enhancements would
require that Tier I passenger trains be equipped with public address
and intercom systems for emergency communication and that passenger
cars provide emergency roof access for use by emergency responders. FRA
is proposing to apply certain of the requirements to both existing and
new passenger equipment, while other requirements would apply to new
passenger equipment only.

DATES: (1) Written comments must be received by October 23, 2006.
Comments received after that date will be considered to the extent
possible without incurring additional expense or delay.
(2) FRA anticipates being able to resolve this rulemaking without a
public, oral hearing. However, if FRA receives a specific request for a
public, oral hearing prior to September 25, 2006, one will be scheduled
and FRA will publish a supplemental notice in the Federal Register to
inform interested parties of the date, time, and location of any such
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2006-25273 may
be submitted by any of the following methods:
? Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
? Fax: 202-493-2251.
? Mail: Docket Management Facility, U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590.
? Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m.
and 5 p.m. Monday through Friday, except Federal holidays.
? Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://dms.dot.gov including any personal information. Please
see the Privacy Act heading in the ``Supplementary Information''
section of this document for Privacy Act information related to any
submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to PL-401 on
the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Brenda J. Moscoso, Office of Safety,
Operations Research Analyst, RRS-23, Mail Stop 25, Federal Railroad
Administration, 1120 Vermont Avenue, NW., Washington, DC 20590
(telephone 202-493-6282); Daniel L. Alpert, Trial Attorney, Office of
Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120
Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6026); or
Anna Nassif Winkle, Trial Attorney, Office of Chief Counsel, Mail Stop
10, Federal Railroad Administration, 1120 Vermont Avenue, NW.,
Washington, DC 20590 (telephone 202-493-6166).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Statutory Background
II. Proceedings to Date
A. Railroad Safety Advisory Committee (RSAC) Overview
B. Establishment of the Passenger Safety Working Group
C. Establishment of the Emergency Preparedness Task Force
D. Development of the NPRM
III. Technical Background
A. Change in Passenger Car Fleet Composition
B. NTSB Safety Recommendation on Windows
C. Need for Emergency Communication Systems
D. Window Technology
E. APTA's Standard for Emergency Evacuation Units
IV. General Overview of Proposed Requirements
A. Emergency Window Exits and Rescue Access Windows
B. Emergency Communications--Public Address 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. Privacy Act
List of Subjects

I. Statutory Background

In September of 1994, the Secretary of Transportation convened a
meeting of representatives from all sectors of the rail industry with
the goal of enhancing rail safety. As one of the initiatives arising
from this Rail Safety Summit, the Secretary announced that DOT would
begin developing safety standards for rail passenger equipment over a
5-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), Public Law 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.

II. Proceedings to Date

The Secretary of Transportation 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 advice in developing the regulations. On
June 17, 1996, FRA published an advance notice of proposed rulemaking
(ANPRM) concerning the establishment of

[[Page 50277]]

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, among the rule's other
requirements, the rule provides that (i) all emergency window exits and
all windows intended for rescue access by emergency responders be
marked and that instructions be provided for their use (see 49 CFR
223.9(d)); and (ii) 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 the use of
both (see 49 CFR 239.107(a)).
Although 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 applicable to Tier II
passenger equipment to Tier I passenger equipment as well. 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 FRA's Railroad Safety Advisory Committee.

A. Railroad Safety Advisory Committee (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 (AARPCO);
American Association of State Highway & Transportation Officials (AASHTO);
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employees Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Federal Transit Administration (FTA)*;
High Speed Ground Transportation Association (HSGTA);
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA)*;
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);
National Transportation Safety Board (NTSB)*;
Railway Supply Institute (RSI);
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); and

[[Page 50278]]

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 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 recommendations for
action, FRA moves ahead to resolve the issue through traditional
rulemaking proceedings.

B. 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, Incorporated (CSX), and Union Pacific Railroad
Company (UP);
? AAPRCO;
? AASHTO;
? Amtrak;
? APTA, including members from Long Island Rail Road (LIRR),
Metro-North Railroad (MNR), Northeast Illinois Regional Commuter
Railroad Corporation (Metra), Southeastern Pennsylvania Transportation
Authority (SEPTA), Southern California Regional Rail Authority
(Metrolink), Saint Gobian Sully NA, LDK Engineering, and Herzog Transit
Services, Incorporated;
? 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 met on the following
dates at the following 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; and
? September 7, 2005 in Chicago, IL.
At the meetings in Ft. Lauderdale and Chicago, 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.

C. Establishment of the Emergency Preparedness Task Force

Due to the variety of issues involved, at its November 2003 meeting
the Working Group established four smaller task forces, with specific
expertise, to develop recommendations on those 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, and helped to
develop an NPRM on these topics that was published on December 8, 2005.
See 70 FR 73069. Another of these task forces, the Emergency
Preparedness Task Force (Task Force), was established to identify
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 system issues and to recommend
any research necessary to facilitate their resolution. Members of the
Task Force, in addition to FRA, include the following:
? Amtrak;
? APTA, including members from Bombardier, Ellcon National,
Interfleet, Jacobs Civil Engineering, Jessup Manufacturing Company,
Kawasaki Rail Car, Inc., LDK Engineering, LIRR, LTK, Luminator,
Maryland Transit Administration, Massachusetts Bay Commuter Rail
Corporation (MBCR), Metrolink, MNR, 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, and STV Inc.;
? BLET;
? California Department of Transportation (Caltrans);
? NARP;
? RSI, including Globe Transportation Graphics; and
? UTU.
While not voting members of the Task Force, representatives from
the NTSB and from the Transportation Security Administration (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

[[Page 50279]]

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 met on the following dates at the following 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; and
? December 13-14, 2005, in Baltimore, MD.
At the meetings in Los Angeles, Cambridge, Washington, New York,
San Diego, and Philadelphia, FRA met with representatives of Metrolink,
MBCR, Amtrak, LIRR, Coaster, and SEPTA, 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.

D. Development of the NPRM

This 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 this proposal 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 this matter. 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.
This NPRM is the product of FRA's review, consideration, and
acceptance of the recommendations of the Task Force, Working Group, and
full RSAC. Throughout the preamble discussion of this proposal, 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 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 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 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, recent experience with train
accidents, concern about emergency communication, and technological
advances in emergency systems provided the main impetus for these
proposed enhancements and additions to FRA's standards for passenger
train emergency systems, as highlighted below.

A. Change in Passenger Car Fleet Composition

While FRA was developing regulations on Passenger Equipment Safety
Standards and Passenger Train Emergency Preparedness 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 passengers 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 normally 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 vertical clearances permit their operation.
In light of the growing use of multi-level passenger cars with
intermediate seating levels, this NPRM addresses 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

[[Page 50280]]

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) addresses only marking and
instruction requirements and does not provide any express requirement
that any such rescue access windows exist. 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 main
levels, as 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 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
communicate to the crew 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 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 accident investigation report 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 communications 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 that

[i]nformation 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 communications
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
practicality 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,
today 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 the initiatives that have been undertaken to do so are too
numerous to detail in this NPRM. 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

[[Page 50281]]

detecting a terrorist 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 on board 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 minimize
the risk of a terrorist attack to passenger trains, to reduce the
death, injuries, and other 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 it holds. Use of zip-strips for
window removal has been around 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.
Although FRA is not proposing to require the use of zip-strips for
rescue access windows, FRA is proposing 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.
This recognition would afford railroads more flexibility in the
location of their windows, as it would not require railroads to find
locations for emergency window exits distinct from the locations
specified for rescue access windows, and vice versa.

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. It 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 requires that it be calculated as ``the sum of
EEUs for one side of the car less 50% of car end doors.'' The APTA
standard 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 the larger of 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 Emergency Preparedness Task Force reviewed the APTA standard
and recommended the continuation of evacuation tests 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 is
conducting a series of evacuations tests. FRA does note that the
emergency evacuation approach underlying the proposals in this NPRM is
consistent with the basic approach taken in developing APTA's standard,
as FRA proposals do take into consideration car configuration and
occupant capacity.

IV. General Overview of Proposed 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. Existing regulations require 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. These windows must be designed to permit rapid
and easy removal during

[[Page 50282]]

an emergency without the use of a tool or other implement. Conspicuous
photo-luminescent marking of the windows, as well as instructions for
their use, are also required. Windows intended for rescue access must
be marked with retroreflective material, and instructions for their use
must also be provided. However, FRA's regulations currently do not
require any minimum number of rescue access windows for passenger cars.
One of the basic principles underlying the proposed 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 multiple-level passenger railcar;
(ii) both sides of the car, in the event of a derailment where the
exits on one side are compromised; and (iii) each end (half) of the
car, 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 agreed to make the proposed requirements flexible and
consistent with existing car designs and, in certain cases, provide 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 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 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 was 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 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 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 installed 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 is not proposing changes to existing requirements for emergency
window exits in sleeping compartments or similar private compartments.
Yet, FRA is proposing rescue access window requirements for such
compartments. Although this proposal would establish new requirements,
the proposal reflects current practice.

B. Emergency Communication Systems--Public Address and Intercom Systems

As discussed above, while the Passenger Equipment Safety Standards
issued in 1999 by FRA contain requirements for two-way emergency
communication systems for Tier II passenger equipment, there are
currently no requirements that Tier I passenger cars be equipped with
any emergency communication system. Nevertheless, today 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. The PA system would allow the
train crew to keep their passengers informed in an emergency situation
and provide guidance to all passengers in a

[[Page 50283]]

timely manner, thereby reducing the likelihood that passengers would
take an action that could place them in any greater danger.
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 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 recommended emergency communication system requirements
developed by the Task Force generally reflect current practice for Tier
I passenger equipment operating with 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 proposed requirement to
have PA systems on existing Tier I passenger equipment would become
effective.

C. Emergency Roof Access Locations

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. 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 extremely difficult to use because the car is no longer
upright. 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 would
likewise be difficult or complicated, especially depending upon the
condition of the occupant.
Existing FRA regulations require emergency roof access locations
for Tier II passenger equipment, but not for Tier I passenger
equipment. The Task Force examined these requirements and 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 proposing 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 would not be subject to the proposed requirements, while
existing Tier II passenger cars would continue to be subject to
existing requirements. For further discussion and explanation of the
proposed requirements, please see the Section-by-Section Analysis of
this preamble at Section V.

D. Inspection, Testing, and Maintenance

FRA is proposing to modify 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) to include 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, flexibility would be provided for
operating equipment in passenger service with certain non-compliant
conditions. In affording this flexibility, the rule would require the
railroad to adhere to specified procedures for the safe operation of
the equipment.

V. Section-by-Section Analysis

Proposed 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 relevant to the
regulations contained in part 223, would be modified to clarify a
definition, and to delete two definitions that would no longer be
relevant due to proposed modifications of this part, specifically, the
deletion of Sec. 223.9(d)(2).
The definition of ``emergency window'' would be revised to clarify
that the purpose of an emergency window is for egress, and thus needs
to be removable only from the inside of a passenger car. Accordingly,
FRA proposes to revise the definition of ``emergency window'' to mean
that segment of a side-facing glazing panel which has been designed to
permit rapid and easy removal from inside a passenger car in an
emergency situation. FRA is also proposing that the terms ``emergency
responder'' and ``passenger train service'' be deleted in accordance
with the proposal to delete Sec. 223.9(d)(2), the only section in part
223 that references these terms. The term ``emergency responder'' would
be moved to part 238.

Subpart B--Specific Requirements

Section 223.9 Requirements for new or rebuilt equipment
In the discussion of Sec. 223.5, FRA noted that the definition of
``emergency window'' would be amended to clarify that the purpose of
the windows is for egress, and thus would need to be removable only
from the inside of a passenger car. Section 223.9(c) currently requires
``at least four emergency opening windows.'' As the term ``emergency
opening window'' is not specifically defined--but has been understood
to mean ``emergency window''--FRA believed that it would be best to
modify the rule text in Sec. 223.9(c) to require ``at least four
emergency windows'' in order to provide more clarity.
FRA is proposing to delete the requirements in Sec. 223.9(d) and
merge them into Sec. Sec. 238.113 and 238.114 of part 238. The
requirements in Sec. 223.9(d) were 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 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.
223.3. Because FRA is proposing to address marking and instruction
requirements for such windows in this train service in part 238, and
because the requirements of Sec. 223.9(d) do not apply to other
equipment covered by part 223, they may be removed from part 223, along
with the corresponding definition of ``emergency responder'' and
``passenger train service.'' Further, deletion of Sec. 223.9(d) would
avoid creating any confusion due to duplication of the marking and
instruction requirements in two different parts of the CFR, especially

[[Page 50284]]

since the proposed marking requirements in part 238 that were adopted
by the full RSAC vary somewhat from the ones currently found 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 general application section of part 223 is
broader than that in part 238, FRA has been mindful not to alter the
application of those 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, to the extent tourist
equipment 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. Sec. 223.9(c) or 223.15(c),
such equipment would still be 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, as
discussed above, FRA is proposing that the requirements of Sec.
223.9(d) be merged into Sec. Sec. 238.113 and 238.114 of part 238.
Thus, FRA is proposing that the schedule of civil penalties in appendix
B to part 223 be modified accordingly, by deleting the entries for
paragraphs (d)(1)(i), (d)(1)(ii), (d)(2)(i), and (d)(2)(ii) and the
associated penalties.

Proposed 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 relevant to the
regulations contained in part 238, would be modified to include new
definitions relevant to the proposed modifications to part 238.
FRA proposes to add 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 would also cover other
methods of opening the same window from both the inside of the car and
the outside.) The term is being 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 proposed in Sec. 238.113
would not be required to meet the Sec. 238.114 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 that would be required.
FRA proposes to revise the definition of ``emergency window'' to
clarify that the purpose of an emergency window is for egress, and thus
only needs to be removable from the inside of a passenger car.
Accordingly, FRA proposes to revise the definition to mean that segment
of a side-facing glazing panel which has been designed to permit rapid
and easy removal from inside a passenger car in an emergency situation.
FRA is also proposing to revise the definition of this term in Sec.
223.5 for consistency and clarity.
FRA proposes to add 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 depressed 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 is also proposing to add 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 crew member, typically by depressing a button, or
lifting a telephone handset, or both.
FRA proposes to add 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 as car, as FRA is proposing to apply different
requirements to the different passenger seating levels. Please see the
discussion of ``main level.''
Currently, the regulatory text of part 238 does 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 concern raised, FRA is proposing to define
``intermediate level,'' as discussed above, and is also proposing to
define ``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 would establish 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

[[Page 50285]]

equipment closet located on the same level.
FRA proposes to add the definition ``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.
FRA proposes to add the definition ``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. On some railroads,
crew members use the PA system to make station announcements. Other
railroads limit its use to communicate information regarding unusual
occurrences, such as unexpected delays and emergencies. 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).
Consistent with the proposed amendments to part 223, discussed
above, FRA proposes to define ``rescue access window'' as a side-facing
exterior window intended for use by emergency responders to gain 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 seat back 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 would not be required. The proposed 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 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 this NPRM, FRA
noted that the term ``emergency responder'' is defined in parts 223 and
239, but not in part 238. As the proposed part 238 definition of
``rescue access window'' includes the term ``emergency responder,'' FRA
believes it is appropriate to add ``emergency responder'' to part 238.
The term would be 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 proposes to add a 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 wheel chairs
would be considered a seating area.
FRA notes that the term ``vestibule'' is currently 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 is not revising 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 its
located in a car, 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 proposes to modify paragraphs (b) and (c) of this
section to include a reference to the specific provisions being added
to the exterior, calendar day mechanical inspection in proposed Sec.
238.303(e)(18) regarding rescue-access-related markings, signage, and
instructions. Proposed Sec. 238.303(e)(18) would require that all
rescue-access-related exterior markings, signage, and instructions
required by proposed Sec. 238.114 (rescue access windows) and Sec.
239.107(a)(2) 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
proposed 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 needs to be included in both paragraphs
(b) and (c) of this section. The proposed requirements in Sec. 238.303(e)
(18) and the proposed conditions for continued use of passenger equipment
with non-complying conditions are discussed in detail below.
FRA notes that it is considering moving the emergency exit marking
requirements contained in Sec. 239.107(a) into part 238. Since Sec.
239.107(a) contains door exit marking, signage, and operating
instruction requirements, the requirements of this section may more
logically be situated in the very sections containing requirements for
doors in part 238, namely, Sec. Sec. 238.235 and 238.439. If the
requirements in Sec. 239.107(a) are moved into part 238, FRA would
make any necessary conforming changes to part 238, and modify this
proposed section in publishing the final rule. FRA invites comment
whether the requirements of Sec. 239.107(a) should be moved into part 238.

Subpart B--Safety Planning and General Requirements

Section 238.113 Emergency Window Exits
This section currently contains requirements for emergency window
exits in single-level passenger cars and main levels of multi-level
passenger

[[Page 50286]]

cars. Emergency window exits are intended to 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 is proposing to revise this section
to expressly include emergency window exit requirements for any level
with passenger seating in a multi-level passenger car. FRA is also
proposing to revise 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), which applies to both new and existing passenger
cars, would be 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
proposed paragraph (a)(1), and for main levels of multi-level passenger
cars in proposed paragraph (a)(2), would effectively remain unchanged.
The current requirements for single-level passenger cars require 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 is proposing to slightly modify 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 half and rear halves of the car. See Figure 1
to subpart B. Additionally, the text would be reorganized to emphasize
that a window would be required in each end (half) of each side of the
car and that, if practical, the windows would also be in a staggered
configuration. This clarification would remove any ambiguity in the
current rule text that wrongly suggests that one could choose to simply
stagger the windows without regard to having one window in each side of
each end. To illustrate the requirements of paragraph (a)(2), FRA is
proposing to add Figure 1 to subpart B, as referenced above. FRA
invites comment on whether this and other figures proposed in this 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 notes that the proposed figures, which are
not drawn to scale, represent possible ways of complying with the
proposed requirements and should not be construed as depicting the only
way to comply.
Paragraph (a)(3) would contain the 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 proposal 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 would help ensure
that, if a car rolled onto its side or if there was a hazard on one
side of the train, an emergency window exit on the opposite side would
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 proposed 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 the proposed definition of ``main
level,'' some passenger cars would no longer have main levels. Such
cars would thus be subject to the proposed 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) would meet the
proposed definition of a ``main level.'' Yet, each of the four,
separate seating areas in such a car would be subject to the emergency
window exit number and location requirements proposed in paragraph
(a)(3). Further, the proposed requirements are consistent with the
number and location of emergency windows on existing gallery-style
passenger cars, would not impact current operations, and would not
diminish the effect of FRA's existing requirements.
Paragraph (a)(3)(i) would require 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 proposal 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 proposal is intended to address situations in which a passenger car
has rolled onto its side as a result of a collision, derailment, or
other accident, by providing that at least one of these emergency
window exits would be required in each side of the passenger car,
except as provided below. See Figures 2, 2a, and 2b to subpart B.
The proposed rule provides flexibility for locating an emergency
window exit 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 would not be considered located within the
``passenger compartment'' if an interior door separates the seating
area from the area where the side doors are located. The provision
would require that there be an open passageway between the seating area
and the vestibule, in such a circumstance. Use of the word
``practical'' would allow 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 seat backs or other fixtures, while windows in the exterior
side doors could be more easily and rapidly removed. Since there would
still be two accessible side windows in a passenger compartment, one on
each side, there would be 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 is not proposing to allow the unrestricted

[[Page 50287]]

placement of emergency window exits in side doors. FRA makes clear
that, all things being equal, emergency window exits should be placed
in a separate location 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 proposed
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
proposal takes this into account, and otherwise would afford railroads
sufficient time to come into compliance regardless of the state of the
existing windows, by phasing the requirement in over an 18-month period
from the date of publication of the final rule.
Paragraph (a)(3)(ii) contains a proposed exception for non-main
levels of multi-level passenger cars that would require 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 proposed
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 the cars on the
intermediate level, and disabled passengers would not be able to access
accommodations on another level of the cars, any accommodations
provided to passengers would have to be located on the intermediate
level. The proposal recognizes this need, and the proposed exception
would apply to both existing and new passenger cars but would be
limited to situations that arise from the need to provide accessible
accommodations under the ADA and limited to passenger compartments
where there are no more than four seats and a suitable alternative for
egress is provided. FRA makes clear that use of the word ``practical''
in paragraph (a)(3)(ii) would 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 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.
The proposal would also require that a suitable, alternative
arrangement for emergency egress be provided. Such an arrangement
should not require the use of a tool or implement to operate, and
should 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 proposed rule, Kawasaki presented a car design
with a seating area separated from a vestibule by an interior door and
an alternative arrangement for emergency egress. The interior door
would be designed with a removable window panel (with pull-handles on
both sides) to allow passengers access to the vestibule, if the door
itself were inoperable. Further, in the vestibule the exterior side
door located on the same side as the one in the seating area without
the emergency window exit would itself contain an emergency window
exit. As a result, a means of exiting the car from that side would be
available to passengers. FRA notes that a combination of several
factors would render this arrangement a suitable, alternate means of
emergency egress. First, the alternate emergency exit location would
provide a measure of redundancy, i.e., a safety factor, in that there
would both be an exterior side door and an emergency window exit in the
same door. The door, if operable, should allow passengers and crew
members to exit more expeditiously than through a window. In the event
that this door would be rendered inoperable, a window meeting the
minimum dimension requirements in proposed paragraph (c) would then be
available. To the extent both the door and its window were rendered
inoperable, the exterior side door exits in the adjacent car's
vestibule would then be next in sequence for use since this car design
has no end-frame doors separating adjoining cars. 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. Further,
the panel in the interior door leading to the vestibule would not be
glass but a polycarbonate, which is significantly lighter than glass
and thus easier to remove, and the opening in the interior door would
be large enough for a person to pass through it relatively quickly.
Paragraph (a)(3)(iii) would require passenger cars ordered both
prior to 14 months after the publication of the final rule and placed
in service prior to 38 months after the publication of the final rule
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 such structures as a
bathroom, electrical locker, or kitchen). This exception would be
broader than the one in paragraph (a)(3)(ii) as it would apply to non-
main levels with more seats and would not be dependent on providing
accessible accommodations under the ADA. However, it would not apply to
new cars. New car designs should take into consideration the need to
provide an emergency window exit in each side of a passenger compartment.
Use of the word ``practicable'' would limit railroad discretion so
that a car would be required to have an emergency window exit in a side
of a seating area, if a window were already located there.
Nevertheless, FRA notes that a railroad would be under no obligation to
install a window in a side of a passenger compartment for purposes of
providing an emergency window exit, if an emergency window exit were
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 would not be required.
Requirements for cars with sleeping compartments or similar private
compartments would be clarified and moved from existing paragraph
(a)(2) to proposed 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 crew member would continue to be
required to have at least one emergency window exit in each such
compartment. A private seating area (such as one 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

[[Page 50288]]

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 would clarify 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, bathrooms are distinguishable from sleeping compartments
because a passenger could leave a private bathroom to access an
emergency window exit in the sleeping compartment, and a passenger can
leave a public bathroom to access an emergency window exit in the
passenger compartment.
As part of the proposed revision and reorganization of this
section, paragraph (b) would contain the same requirements for ease of
operability of emergency window exits that are currently stated in
paragraph (a)(3) of the existing regulation. The only modification
would be that the applicability date of November 8, 1999, which is
currently stated in the introductory text of paragraph (a), be added
directly to this paragraph. 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
proposed paragraph (b) is found below in the paragraph discussing
proposed requirements for marking emergency window exits.
Consistent with the proposed reorganization and revision of this
section, FRA is proposing to move existing requirements for the
dimensions of emergency window exits from paragraph (b) to paragraph
(c). The applicability date of the dimension requirements is unchanged
from current 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 is proposing a
slight modification to 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 proposed requirements of paragraph (a)(3)(i) of
this section. FRA makes clear that, for purposes of determining
compliance with the emergency window exit dimension requirements, the
dimensions of the unobstructed opening are measured after the emergency
window exit has been opened. The transparent area of the window for
viewing use by passengers may be several inches smaller than the
opening created once the window is removed, and that would be acceptable.
FRA notes that a 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, that does not create an unobstructed opening meeting
the minimum dimension requirements of this paragraph may not be
considered an ``emergency window exit'' for purposes of this section
and may not be marked as an ``emergency window exit.'' Nevertheless,
FRA is not seeking to require that such a window exit be modified or
removed, provided the passenger car is otherwise in compliance with all
applicable emergency window exit requirements. For example, FRA is
aware of window exits that do not create openings of the required
dimensions because of the presence of seat backs 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 a passenger or crewmember. It is not FRA's intent to
discourage a railroad from retaining these additional window exits in
its passenger cars, for circumstances such as those present in the
derailment of an Amtrak train near Mobile, Alabama in 1993. There, six
passenger cars fell into a bayou and submerged, drowning 42 passengers
and two crewmembers in those cars, and killing all three crewmembers in
the locomotive. In what has been the U.S.'s deadliest passenger train
accident in over 50 years, train occupants needed to evacuate the cars
as quickly as possible, 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, or that their
dimensions were too small.)
Nevertheless, FRA is inviting comment on 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 unobstructed
openings not meeting the minimum dimension requirements of this
paragraph. As FRA has noted, these window exits are not ``emergency
window exits,'' and may not be identified as emergency window exits.
However, FRA is not seeking to have these window exits removed, and is
instead considering that pull-handles on these window exits may state
or retain instructional markings such as ``pull to open.'' FRA invites
comment on whether these window exits should or should not be removed,
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 invites comment as to whether they should have to be tested
periodically to ensure that they operate properly. 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. In general, these principles
require that the greater the percentage of window exits that a railroad
finds defective, the greater the percentage of windows that the
railroad will have to test. Specifically, sampling must be conducted to
meet a 95-percent confidence level that no defective units remain and
be in accord with either Military Standard MIL-STD-105(D), ``Sampling
for Attributes,'' or American National Standards Institute ANSI-ASQC
Z1.4-1993, ``Sampling Procedures for Inspections by Attributes.''
Although testing these window exits would appear desirable, a testing
requirement may discourage railroads from retaining these windows at all.
As the final part of the proposed reorganization and revision of
this section, paragraph (d) would contain 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 are currently contained in Sec. 223.9(d)(1) of this
chapter, and are currently referenced in paragraph (c) of this section.
The requirements in Sec. 223.9(d)(1) would be moved to proposed
paragraph (d) of this section and be modified. This paragraph would
require 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, proposed paragraph (d) would specifically require that
emergency window exit operating instructions address potential
hindrances to removal of the window

[[Page 50289]]

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 seat back 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 window removal may
be hindered by the presence of a seatback, headrest, luggage rack, or
other fixture, the instructions would be required to 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
would be allowed to 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 Sec. 223.9(d)(1) currently requires that the
operating instructions for emergency window exits be ``clear and
legible.'' FRA proposes to modify this requirement by replacing the
word ``clear'' with the word ``understandable,'' so that railroads
would be required to post ``legible and understandable'' operating
instructions. Use of the word ``clear'' in Sec. 223.9(d) has created
some confusion since it can have more than one meaning, and FRA
believes the proposal would eliminate 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. Proposed
paragraph (d) would continue to require that luminescent material be
used to mark emergency window exits. However, as further discussed
below, the Task Force has been considering 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 for a period of
less than 10 minutes only in many cases. Following this, photo-
luminescent sign technology evolved, and materials, such as strontium-
aluminate, which is capable of providing high levels of luminance for
much longer periods, began to be used. Prices for such signage also
decreased, making the cost of such ``high-performance, photo-
luminescent'' (HPPL) signs comparable to that of the 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, photo-
luminescent markings that are installed must emit a minimum of not less
than 7.5 milli-candela per square meter (7.5 mcd/m\2\) for 90 minutes
after removal of the charging source. The duration period of 90 minutes
corresponds with the 90-minute duration requirement for emergency
lighting contained in Sec. 238.115 for new passenger cars and is based
on 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 on the
appropriate action(s) to take, and if necessary, begin to evacuate the
train. It is also possible for a seemingly minor emergency situation to
evolve into a more significant one requiring evacuation. In conditions
of darkness, a brighter sign is more easily recognizable and
facilitates identification of emergency exits. These points have been
discussed within the Task Force, and the Task Force has been focusing
on revisions to the APTA standard for purposes of incorporating it into
FRA's regulations. FRA is considering incorporating elements of this
APTA standard into the final rule arising from this NPRM so that
emergency exit signs in passenger cars would be required to be made of
HPPL material, and FRA invites comment on doing so. FRA will evaluate
the comments received in considering what standard should be
established in the final rule.
Section 238.114 Rescue Access Windows
FRA is proposing to establish a new section that would contain
requirements for rescue access windows for both new and existing
passenger cars. As discussed in detail, above, this proposed 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 proposal 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) would contain requirements specifying the minimum
number and location of rescue access windows. These requirements would
apply on or after the effective date of the final rule to all passenger
cars, except

[[Page 50290]]

for certain, existing single-level cars. As noted above, FRA's current
regulations do not specifically require any minimum number of rescue
access windows for passenger cars; however, they do 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) would contain the number and location requirements
for rescue access windows in single-level passenger cars. FRA is
proposing that each single-level passenger car be required to have a
minimum of two rescue access windows. At least one rescue access window
would have to 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.
Rescue access windows in a single-level passenger car would be
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 of crush at one end of
the car by making available window exits throughout the rest of the
car; (ii) optimize the rate of egress, as passengers have less distance
to walk 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 would
be required, the best way to ensure that a window would be available
for access in the event that one end of a car is crushed would be to
locate the window in the center portion of the car, which is generally
less vulnerable to crush in the event of a collision. Congestion should
likely not be an issue for rescue access window usage as car occupants
should have likely begun to self-evacuate through doors and emergency
window exits to the extent possible 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 would
be designated for their location. This flexibility would allow
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 would 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 proposal would require
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 proposed 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 proposed 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 would permit the location of the rescue access windows
in four exterior side doors, and it was approved by the Task Force,
Working Group, and the full RSAC. Although the recommended text was
silent as to whether the windows were required to be located within 15
feet of the car's centerline, FRA makes clear that no such restriction
was intended to apply. As a result, FRA is expressly proposing that
these windows could be located farther than 15 feet from the car's
centerline, provided that there would be 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, would be appropriate for granting flexibility for installing
rescue access windows on existing equipment in side doors.
Proposed paragraph (a)(1)(ii) would address 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 would have to
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 proposed paragraph (a)(1)(ii) would become effective 18
months after publication of the final rule. FRA decided to propose to
allow this additional time to install rescue access windows at least in
part because these passenger cars are equipped with manual releases
capable of opening side doors from outside of the car, as provided in
Sec. 238.235(b), even though such releases are not required for such
older passenger cars by that section.
This proposed paragraph would also address those passenger cars
equipped with compressed frame window systems in which rescue access
windows would need to be retrofitted in the four side doors by
replacing the polycarbonate glazing with glass that could be broken to
gain access into the car. The 18-month implementation period would
allow for the time necessary to plan and carry out the retrofit without
disrupting train service. In the interim, emergency responders would
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 is proposing 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

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passenger car would be subject to the same, minimum requirements proposed
for single-level passenger cars in paragraph (a)(1) of this section.
In paragraph (a)(3) FRA is proposing minimum requirements for the
number and location of rescue access windows in non-main levels of
multi-level passenger cars with seating areas. These proposed
requirements and exceptions for non-main levels with passenger seating
would also be the same as those for emergency window exits on non-main
levels with passenger seating. Specifically, paragraph (a)(3)(i) would
require that any other 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 would have to be located in each
side of the seating area. A rescue access window could 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) would require 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 proposed Sec. 238.113(a)(3)(ii), as discussed above.
Proposed paragraph (a)(3)(iii) would provide that passenger cars
both ordered prior to 14 months after publication of the final rule and
placed in service prior to 38 months after publication of the final
rule be required to 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 such structures as a bathroom,
electrical locker, or kitchen) and there are no more than eight seats
in the seating area. For more background on this proposal, please see
the related discussion above for emergency window exits in such seating
areas.
In paragraph (a)(4) FRA is proposing 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
would be 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 proposed
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.
Proposed paragraph (a)(5) would address 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 would be met for that
level. Under this provision, four rescue access windows would be
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.
Proposed paragraph (b) would contain the requirements for the ease
of operability of rescue access windows. The requirements would apply
on or after the effective date of the final rule, and would require
that each rescue access window be capable of being removed without
undue 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. FRA notes that the proposed performance requirement for
removing windows ``without undue delay'' is intended to be less
stringent than the performance requirement of ``rapid and easy'' for
emergency window exits. For example, using a sledge hammer to shatter a
glass window would be considered removal without undue delay. Windows
that are not made of glass may also be designed to be removed without
undue 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.
Proposed paragraph (c) would contain 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 14 months
after publication of the final rule, or placed in service for the first
time on or after 38 months after publication of the final rule, would
be required to 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 proposed paragraph (a)(3)(i) of this section, would be
permitted to have an unobstructed opening with minimum dimensions of 24
inches horizontally by 26 inches vertically. A seatback would not be
considered an obstruction if it could be moved away from the window
opening without requiring the use of a tool or other implement. The
proposed dimensions for rescue access window unobstructed openings
would be the same as those for emergency window exit unobstructed
openings. Accordingly, FRA's reasoning for proposing these minimum
dimensions for emergency window exits applies here. These minimum
dimensions should allow an emergency responder equipped with a self-
contained breathing apparatus to pass through the window, as well as
allow a person to be carried through the window on a stretcher of
common size.
As discussed above, FRA is proposing that existing rescue access
window marking and operating instruction requirements, which are
contained in Sec. 223.9(d)(2), be modified and moved to paragraph (d)
of Sec. 238.114. Each rescue access window is currently required to be
``marked with a retroreflective, unique, and easily recognizable symbol
or other clear'' marking. FRA is proposing to restate these
requirements to make clear that rescue access windows must be marked
with retroreflective material. Second, FRA is making clear that a
unique and easily recognizable symbol, sign, or other conspicuous
marking must be used to identify each rescue access window. FRA would
replace the word ``clear'' in the existing requirements with the word
``conspicuous'' and add the word ``sign'' as another example of a
conspicuous marking. This revision would make clear that use of
retroreflective material to mark a rescue access window is a distinct
requirement in itself, to enable emergency responders to quickly
identify rescue access windows under conditions of darkness by shining a

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flashlight on a car. Second, the revision would 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. Current regulations also
require that each railroad post ``clear and understandable'' window
access instructions either at each rescue access window or at each end
of the car. FRA is proposing that the word ``clear'' be replaced with
the word ``legible,'' so that railroads would be required to post
``legible and understandable'' operating instructions. Use of the word
``clear'' in Sec. 223.9(d) has created some confusion since it can
have more than one meaning, and FRA believes the proposal would
eliminate any further confusion.
As noted above in the discussion of emergency window exits, the
Task Force has been focusing on draft 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 invites
comment on whether the criteria in the APTA Standard or in draft
revisions to this Standard for marking rescue access windows are
appropriate for use in the final rule.
FRA is also proposing to modify current requirements so that it
would no longer be permissible to have window access instructions
solely at the end of the car. Instead, legible and understandable
rescue access window instructions, including instructions for removing
the window, would be required to be posted at or near each rescue
access window. The Task Force agreed 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.
Section 238.117 Emergency Communications
Currently, Sec. 238.117 contains requirements for ``protection
against personal injury,'' e.g., installing guards on moving parts of
passenger equipment. FRA is proposing to redesignate this Sec. 238.117
as Sec. 238.121. In its place, FRA is proposing that this section
contain the requirements for systems that may be used for passenger and
crew communication in the event of an emergency. This would keep the
emergency system requirements together in section numbering sequence
for benefit of the reader. This proposed section would establish
emergency communication requirements for Tier I passenger equipment and
replace the current emergency communication's requirements in Sec.
238.437 for Tier II passenger equipment. Overall, the proposed
requirements generally reflect current practice for Tier I passenger
equipment and existing requirements for Tier II passenger equipment.
Paragraph (a) contains proposed requirements for public address
(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 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.
Accordingly, the crew must have the means to provide passengers with
appropriate instructions as soon as possible.
Paragraph (a)(1) would require 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 proposing to require in this
section that the communication system be wireless; communication
through use of a train line would be permitted.
Paragraph (a)(2) contains proposed requirements for new Tier I and
all Tier II passenger cars. As is stated for existing Tier I passenger
cars in proposed paragraph (a)(1), this paragraph would require that
each Tier I passenger car ordered on or after 60 days after publication
of the final rule, or placed in service for the first time on or after
26 months after publication of the final rule, 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 would be 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 proposed
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) contains the proposed 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 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 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

[[Page 50293]]

conductor were incapacitated, passengers would need to communicate with
the engineer. The Task Force therefore recommended that emergency
communication systems in new passenger cars should include intercom
systems to enable passengers to quickly communicate emergency
situations to the train crew. These proposed requirements reflect
common intercom system configurations for new passenger cars.
Specifically, paragraph (b)(1) contains the proposed intercom
system requirements for new Tier I and all Tier II passenger cars. Each
Tier I passenger car ordered on or after 60 days after publication of
the final rule, or placed in service for the first time on or after 26
months after publication of the final rule, and all Tier II passenger
cars would be 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 would be 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, others have only one per car. An intercom in each half of a car is
proposed so that passengers would have access to an intercom within
half a car length, which is normally 42 to 45 feet, and would not have
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.
Proposed paragraph (b)(1) would continue the logic of existing
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 proposed paragraph would also continue to require, as
Sec. 238.437 currently does, that a Tier II passenger car ordered
prior to May 12, 1999, be equipped with only one intercom. This
exception corresponds to the current requirements for Tier II passenger
equipment, as discussed in the April 23, 2002, final rule. See 67 FR
19986. The preamble to that 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,
and 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.
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. FRA invites comment on whether passenger misuse of
intercom systems has been identified as a problem, and, if so, FRA
invites suggestions for measures that could curb such misuse without
rendering the systems inaccessible to passengers in an emergency. FRA
makes clear that intercoms would need to be accessible to passengers
with disabilities to the extent required by the ADA and its
implementing regulations.
Paragraph (b)(2) would require 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 would apply to each Tier I passenger car on or after 26
months after publication of the final rule, and continue to apply to
each Tier II passenger car. Some railroad representatives noted that
although instructions are currently posted at the intercom locations on
their cars, there are no luminescent markings. Thus, luminescent
marking of each intercom location is proposed 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, would not need to be luminescent under the
proposal, as some Task Force members have 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, Rev. 2, ``Standard for Emergency
Signage for Egress/Access of Passenger Rail Equipment,'' contains
specific criteria for luminescent markings. The Task Force has been
focusing on additional 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 will revise APTA SS-
PS-001-98, ``Standard for Passenger Railroad Emergency
Communications,'' to include more specific requirements for marking
emergency communication systems. In the meantime, FRA invites comment
whether the luminescent material that would be required by this
proposed paragraph should be HPPL material. FRA will evaluate any
comments received in considering whether a requirement for use of HPPL
material should be established in the final rule.
Paragraph (c) would continue to require that PA and intercom
systems on Tier II passenger trains have back-up power for a minimum
period of 90 minutes. See Sec. 238.437(d). An example of a back-up
power source is a passenger car battery. 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 would have to 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. 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 has 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 is considering inserting in the
final rule a back-up power system requirement containing the provisions
recommended by the Task Force, and FRA invites comment on doing so. In
particular, FRA seeks comment whether the system needs to be capable of
providing continuous communication over the 90-minute period, or only
intermittent

[[Page 50294]]

communication, which would draw less battery power. Providing the means
to communicate continually for a 90-minute period may not be necessary,
and FRA invites comment as to how many minutes of intermittent
communication would need to be provided.
Section 238.118 Emergency Roof Access
This section, which is being proposed for addition to part 238,
contains emergency roof access requirements for Tier I and Tier II
passenger cars ordered on or after 14 months after publication of the
final rule, or placed in service for the first time on or after 38
months after publication of the final rule. 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 Sec. 238.441 and APTA PRESS
recommended practice RP-C&S-001-98, ``Recommended Practice for
Passenger Equipment Roof Emergency Access,'' served as the basis for
the proposed requirements in this section.
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. This
increases the potential need for rescue access of the car's occupants
by correspondingly reducing the likelihood that the occupants can
evacuate the car on their own. In such a situation, doors, which are
the preferred means of access under normal circumstances, may be
rendered inoperable due to structural damage to the door or the door
pocket, as a result of the incident. 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) contains proposed requirements for the number and
dimensions of emergency roof access locations. Each passenger car
ordered on or after 14 months after publication of the final rule, or
placed in service for the first time on or after 38 months after
publication of the final rule, must have a minimum of two emergency
roof access locations. Although Tier II passenger cars and power cars
are currently required to have at least 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
Emergency Preparedness Task Force agreed it would be useful to protect
the emergency roof access location against crush at either end of the
car. To do so would require placement of the location 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 located at
diagonally opposite quadrants of the roof. See Figure 3 to subpart B.
Under the proposal, each roof access location would be 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.
Paragraph (b) would provide 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. The proposal
would afford railroads the flexibility of installing either roof
hatches or providing structural weak points in the roof, as each
individual railroad would be 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 multiple-unit (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) would require 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'' would allow railroads and car builders some discretion
regarding the location of the access points and would be 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.

[[Page 50295]]

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) contains proposed requirements related to
obstructions and would require that the ceiling space below each
emergency roof access location be free from wire, cabling, conduit, and
piping. Additionally, paragraph (d) would require 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 would need
to consider the requirements of Sec. 238.118 as a whole. Use of the
word ``practical'' in paragraph (c) is intended to allow more
discretion than 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 would recognize that avoidance of the rigid secondary
structure would be 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 velcro to secure the
lining in place. This type of cover and securement would 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 would be
permissible provided emergency responders would be 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 proposal states that it shall be 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 would be 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 proposed to be required in
paragraph (e).
Paragraph (e) contains proposed requirements for providing markings
of, and instructions for, emergency roof access locations. Each
emergency roof access location would be 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. FRA notes that
APTA is in the process of revising APTA SS-PS-002-98, Rev. 2,
``Standard for Emergency Signage for Egress/Access of Passenger Rail
Equipment,'' which contains more specific requirements for
retroreflectivity than provided for in this NPRM. The Task Force has
been reviewing draft revisions to this standard and intends to make a
recommendation concerning its incorporation into part 238, once the
standard is revised. As a result, the final rule may incorporate more
detailed APTA retroreflectivity criteria for marking emergency roof
access locations.
Paragraph (e) also proposes to require that legible and
understandable instructions be posted at or near each emergency roof
access location. These instructions would not need 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 would likely be available for reading the instructions as
well. This proposal is consistent with the existing and proposed
requirements for marking rescue access windows. As an additional
requirement, paragraph (e) proposes that if emergency roof access is
provided by means of a structural weak point, the line along which the
roof skin would be cut would be 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 would retain
the minimum dimensions required for the opening. Structural weak points
would also be 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, the proposal would require providing a warning
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.
Section 238.121 Protection Against Personal Injury
As discussed above, FRA is proposing to redesignate current Sec.
238.117 (``Protection against personal injury'') as Sec. 238.121 with
no substantive change to the section's requirements.

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 proposed 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.
FRA proposes to insert a new paragraph (e)(18) that would require
that all rescue-access-related exterior markings, signage, and
instructions required by proposed Sec. 238.114 (rescue access windows)
and existing Sec. 239.107 (emergency exits) be in place and, as
applicable, conspicuous, and/or legible. Proposed paragraph (e)(18)(i)
would allow 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

[[Page 50296]]

exterior calendar day mechanical inspection or next periodic mechanical
inspection required under Sec. 238.307, whichever occurs first, after
the non-complying condition is discovered, where it would have to be
repaired or removed from service.
The four-day repair flexibility is proposed 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 necessitates that some flexibility be
provided that would allow equipment to continue to operate in service
for a sufficient amount of time to reach a suitable repair location or
the train's final destination.
In paragraph (e)(18)(ii), FRA proposes to provide 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 would be permitted to remain in passenger
service until no later than the car's next periodic mechanical
inspection required under Sec. 238.307, where it would have to be
repaired or removed from service. FRA agrees 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 would be
required under proposed 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 would make
little sense to require immediate repair of the damaged markings when
more than a sufficient number meeting the requirements of proposed
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 proposed to be required
by Sec. 238.114.
Similarly, proposed paragraph (e)(18)(iii) would provide
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, where it would have to be
repaired or removed from service. FRA believes this flexibility is
necessary because each sleeping compartment intended to be occupied by
passengers or train crewmembers would be required to have a minimum of
one rescue access window in the compartment under proposed 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.
Proposed paragraph (e)(18)(iv) requires that a record of any non-
complying marking, signage, or instruction described in paragraphs
(e)(18)(i) through (iii) be maintained. The record would have to
contain the date and time that the defective condition was first
discovered and be retained until all necessary repairs were completed.
These records are necessary for purposes of tracking when the defect
was first discovered and would be utilized in determining when repairs
would have to be made on cars that remain in passenger service. Most
commuter and intercity railroads already keep these type of records
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. Under the current rule,
all en route-defects and 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, with the exception of non-complying
conditions related to paragraphs (c)(5) through (c)(10).
FRA is proposing to slightly modify existing paragraph (c)(10) in
order to add a condition under which a car with non-compliant end doors
and side doors may continue in passenger service pursuant to paragraph
(d) of this section. The current conditions for such operation are: If
at least one operative and accessible door is available on each side of
the car; and a notice is prominently displayed directly on the
defective door indicating that the door is defective. In addition to
those conditions, FRA proposes to require that the train crew be
provided written notification of the non-complying condition. This
additional condition would 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. Under the existing regulation,
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 is also proposing to add new paragraph (c)(12) to cover the
inspection of PA and intercom systems. Paragraph (c)(12) contains
proposed 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

[[Page 50297]]

also proposes flexibility for handling non-complying equipment,
provided 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 non-functioning PA or
intercom system would be 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 non-complying
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.
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 non-compliant PA or
intercom is proposed to ensure that the crew is aware of any non-
functioning 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 proposing to modify paragraph (c), FRA is reserving paragraph
(c)(11) for a contemplated requirement that all low-location emergency
exit path markings required by Sec. 238.116 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 by a separate NPRM as new Sec. 238.116,
and this document proposes to reserve Sec. 238.116 for inclusion of
these minimum standards at a later time.
Finally, FRA notes that it is considering clarifying paragraph
(c)(7), the interior calendar day inspection requirement that ``[a]ll
safety-related signage is in place and legible.'' FRA is considering
including in paragraph (c)(7) express references to signage, as well as
markings and instructions, required by parts 238 and 239. FRA invites
comment on whether such clarification should be provided in the final rule.
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
frequently than every 184 days. FRA proposes to modify paragraph
(c)(5), which currently requires that emergency lighting systems be
operational, to include other emergency systems such as emergency roof
access markings and instructions. Specifically, paragraph (c)(5)(i)
would continue to require that emergency lighting systems required
under Sec. 238.115 are in place and operational, and paragraph
(c)(5)(iii) would require that emergency roof access markings and
instructions required under proposed Sec. 238.118(e) are in place and,
as applicable, conspicuous, and/or legible. FRA does note that if
emergency lighting is found to be defective at any time other than the
periodic mechanical inspection, it must be brought into compliance
pursuant to the provisions contained in Sec. 238.17 related to non-
running-gear defects.
In proposing the modification, FRA is reserving paragraph
(c)(5)(ii) for a contemplated requirement that electrical low-location
emergency exit path markings required by Sec. 238.116 be in place and
operational. As discussed above, FRA intends to propose minimum
standards for low-location emergency exit path markings by a separate
NPRM as new Sec. 238.116.

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 would
be moved to new Sec. 238.117 (``Emergency communications'') to be
integrated with the new emergency communication 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. 238.117 for a discussion of the emergency communication
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
future rulemaking with a view to applying emergency roof access
requirements to Tier I passenger equipment. Id.
As discussed above, FRA is proposing in Sec. 238.118 to apply
emergency roof access requirements to Tier I passenger equipment and to
make the requirements the same for new Tier I and Tier II passenger
cars. In doing so, FRA is proposing to revise 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 proposing
to increase the required dimensions of emergency roof access locations
for existing Tier II passenger equipment and for any power car, and to
provide general marking and instruction requirements for such
equipment. FRA believes that existing Tier II passenger equipment would
be in compliance with the proposed revisions to this section and that
these revisions would more closely approximate the requirements
proposed for new passenger equipment.
Specifically, paragraph (a) would be revised to limit its
applicability to Tier II passenger cars both ordered prior to 14 months
after publication of the final rule and placed in service for the first

[[Page 50298]]

time prior to 38 months after publication of the final rule, and to
Tier II power cars. As specified in proposed paragraph (b), new Tier II
passenger cars would be required to comply with the standards contained
in proposed Sec. 238.118, which were developed exclusively for
passenger cars. Paragraph (a) would also be 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 proposed requirements for
Tier I passenger equipment. In addition, paragraph (a) would be 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 proposed in
Sec. 238.118 for new passenger cars and those proposed in revised
paragraph (a) of Sec. 238.441 for existing Tier I passenger cars and
for Tier II power cars are as follows: the number of required emergency
roof access locations--two in proposed Sec. 238.118, and one in
existing Sec. 238.441--and the specifications for their location--
detailed specifications are proposed in Sec. 238.118, while more
general requirements would be 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) would be revised to make clear that each passenger
car ordered on or after 14 months after publication of the final rule,
or placed in service for the first time on or after 38 months after
publication of the final rule, would be required to comply with the
emergency roof access requirements specified in Sec. 238.118. Section
238.118 proposes to subject 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 proposal.

Appendix A to Part 238--Schedule of Civil Penalties

Appendix A to part 238 contains a schedule of civil penalties for
use in connection with this part. FRA intends to revise the schedule of
civil penalties in issuing the final rule to reflect revisions made to
part 238. 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, commenters are invited to
submit suggestions to FRA describing the types of actions or omissions
for each proposed regulatory section that would subject a person to the
assessment of a civil penalty. Commenters are also invited to recommend
what penalties may be appropriate, based upon the relative seriousness
of each type of violation.

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This proposed rule has been evaluated in accordance with existing
policies and procedures, and determined to be significant under both
Executive Order 12866 and DOT policies and procedures (44 FR 11034;
Feb. 26, 1979). FRA has prepared and placed in the docket a regulatory
evaluation addressing the economic impact of this proposed rule.
Document inspection and copying facilities are available at the DOT
Central Docket Management Facility located in Room PL-401 on the Plaza
level of the Nassif Building, 400 Seventh Street, SW., Washington, DC
20590. Access to the docket may also be obtained electronically through
the Web site for the DOT Docket Management System at http://dms.dot.gov.
Photocopies may also be obtained by submitting a written
request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10,
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington,
DC 20590; please refer to Docket No. FRA-2006-25273. FRA invites
comments on the regulatory evaluation.
Certain of the proposed requirements reflect current industry
practice, or restate existing regulations, or both. As a result, in
calculating the costs of this proposed 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 proposed in this rule
is $15.4 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 10,880
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......................... 11,640
(238.117) Emergency Communications
--Addition of second intercom transmission location 213,675
--Addition of outside speaker for public address 101,526
system............................................
(238.118) Emergency Roof Access
--Structural weak points--engineering redesign..... 80,000
--Structural weak points--additional materials..... 117,250
(238.303, 238.305, and 238.307) Exterior, Interior, and 14,717,246
Periodic Inspection, Testing, and Maintenance.........
------------
Total Costs.................................... 15,421,507
------------------------------------------------------------------------

[[Page 50299]]

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
proposed requirements (from a combination of fatalities prevented, and
injuries avoided or minimized), the proposed 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
proposed 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 proposed requirements; these cannot be
forecasted with a level of precision that would allow us to predict the
actual need for the measures proposed in the rule. Yet, FRA believes
that the proposed requirements would protect passengers and crew
members against known safety concerns in a cost-effective manner. These
safety concerns are discussed in detail, above, in the preamble to this
proposed rule.
In particular, as discussed in Section III.C., the proposed
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 crew member 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 a 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. FRA is, of course, proposing to 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 proposed in this rule may save lives or prevent or minimize
injuries. For instance, eleven 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 may facilitate the rescue of one or more passengers.
FRA notes that similar accidents and incidents have unique
circumstances which ultimately determine their severity in terms of
casualties, and again emphasizes that actual future events cannot be
predicted with certainty. Nonetheless, it is possible that over the
next 20 years the safety features proposed to be required by this rule
would preserve life in a single event in an amount that exceeds the
entire estimated costs of the rule.
FRA seeks comments and input from all interested parties regarding
the estimates and statements contained in the regulatory evaluation
developed in connection with this NPRM.

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 proposal. Document inspection and copying
facilities are available at the DOT's Central Docket Management
Facility located in Room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC 20590. Docket
material is also available for inspection on the Internet at http://
dms.dot.gov. Photocopies may also be obtained by submitting a written
request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10,
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington,
DC 20590; please refer to Docket No. FRA-2005-23080.
The AISE developed in connection with this NPRM concludes that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. The principal entities impacted
by the rule would be 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 would be exempt
from the rule, and, therefore, these smaller operations would not incur
any costs.
The rule would impact passenger car manufacturers. However, these
entities are principally large international corporations that would
not be 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 would neither be significant nor negative, to
the extent demand for products and services they provide actually increases.
Having made these determinations, FRA certifies that this proposed
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 proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) for review and approval in accordance with the Paperwork

[[Page 50300]]

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 Average time
CFR Section--49 CFR universe Total annual per response Total annual Total annual
(railroads) responses (minutes) burden hours burden cost
----------------------------------------------------------------------------------------------------------------
238.113--Emergency Window 22 482 markings.... 60/90/120 694 $27,760
Exits: Marking and
Instructions.
238.114--Rescue Access 22 964 markings.... 45 723 \1\0
Windows: Marking and
Instructions.
238.117--Emergency 22 116 markings.... 5 10 400
Communications: Intercom
System--Marking and
Instructions.
238.118--Emergency Roof 22 234 marked 30 117 4,680
Access: Marking and locations.
Instructions.
238.303--Exterior Calendar Day
Mechanical Inspection of
Passenger Equipment:
--Repair/Replacement of 22 150 replacement 20 50 2,000
Non-complying Rescue markings.
Access Window Markings.
--Records of Non-complying 22 150 records..... 2 5 200
Rescue Access Window
Markings.
238.305--Interior Calendar Day
Mechanical Inspection of
Passenger Cars:
--Non-complying Conditions 22 260 1 9 360
of End Doors and Side notifications
Doors. +260 notices.
--Written Notification to 22 300 1 5 200
Train Crew of Inoperative/ notifications.
Non-functioning Public
Address and Intercom
Systems.
238.307--Periodic Mechanical 22 260 replacement 20 87 3,480
Inspection of Passenger Cars: markings.
Replacement of Non-complying
Emergency Roof Access Marking
and Instructions.
----------------------------------------------------------------------------------------------------------------
\1\ Incl. in RIA.

All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning the following issues:
whether these information collection requirements are necessary for the
proper performance of the functions of FRA, including whether the
information has practical utility; the accuracy of FRA's estimates of
the burden of the information collection requirements; the quality,
utility, and clarity of the information to be collected; and whether
the burden of collection of information on those who are to respond,
including through the use of automated collection techniques or other
forms of information technology, may be minimized. For information or a
copy of the paperwork package submitted to OMB, contact Mr. Robert
Brogan at (202) 493-6292.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail
Stop 17, Washington, DC 20590.
OMB is required to make a decision concerning the collection of
information requirements contained in this NPRM between 30 and 60 days
after publication of this document 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. The final rule will respond
to any OMB or public comments on the information collection
requirements contained in this proposal.
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 a final rule. The
OMB control number, when assigned, will be announced by separate notice
in the Federal Register.

D. Federalism Implications

FRA has analyzed this proposed 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 proposed 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 ``[f]ederalism 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
issued 49 U.S.C. 20106, which provides that all regulations prescribed
by the Secretary relating to railroad safety preempt any State law,
regulation, or order covering the same subject matter, except a
provision necessary to eliminate or reduce an essentially local safety
hazard that is not incompatible with a Federal law, regulation, or
order and that does not unreasonably burden interstate commerce. 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 things as
``emergency response procedures and

[[Page 50301]]

equipment'' before prescribing such regulations. This proposed 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 NPRM both internally and through consultation
within the RSAC forum, as described in Section II of this preamble. The
full RSAC, which reached consensus on the proposed rule text before
recommending 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. 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 proposed rule is
in accordance with the principles and criteria contained in Executive
Order 13132.

E. Environmental Impact

FRA has evaluated this proposed regulation in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this proposed regulation 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. 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 proposed regulation 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. 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) [currently $120,700,000]
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 proposed rule would not result
in the expenditure, in the aggregate, of $120,700,000 or more 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.''
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 NPRM in accordance with Executive Order
13211. FRA has determined that this NPRM 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. Privacy Act

FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of all comments received into any agency
docket by the name of the individual submitting the comment (or signing
the comment, 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 (Volume 65, Number 70;
Pages 19477-78) or you may visit http://dms.dot.gov.

List of Subjects

49 CFR Part 223

Glazing standards, Penalties, Railroad safety, Reporting and
recordkeeping requirements.

49 CFR Part 238

Passenger equipment, Penalties, Railroad safety, Reporting and
recordkeeping requirements.

The Proposed Rule

For the reasons discussed in the preamble, FRA proposes to amend
parts 223 and 238 of chapter II, subtitle B of Title 49, Code of
Federal Regulations, as follows:

PART 223--[AMENDED]

1. The authority citation for part 223 is revised to read as follows:

Authority: 49 U.S.C. 20102-03, 20133, 20701-02, 21301-02, 21304;
28 U.S.C. 2461, note; and 49 CFR 1.49.

Subpart A--General

2. Section 223.5 is amended by removing the definitions ``Emergency
responder'' and ``Passenger train service''; and by revising the
definition ``Emergency window'' to read as follows:

Sec. 223.5 Definitions.

* * * * *
Emergency window means that segment of a side-facing glazing panel
which has been designed to permit rapid and easy removal from inside a
passenger car in an emergency situation.
* * * * *

Subpart B--Specific Requirements

3. Section 223.9 is amended by removing paragraph (d); and by
revising paragraph (c) to read as follows:

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.

[[Page 50302]]

PART 238--[AMENDED]

4. 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

5. Section 238.5 is amended by revising the definition ``Emergency
window'' and by adding the definitions ``Emergency responder,'' ``Dual-
function window,'' ``Intercom,'' ``Intercom system,'' ``Intermediate
level,'' ``Main level,'' ``Passenger compartment,'' ``PA System,''
``Rescue access window,'' 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 that segment of a side-facing glazing panel
which 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.
* * * * *
Seating area means an area of a passenger car that normally
contains passenger seating.
* * * * *
6. 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, 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 special requirements in paragraph
(e) of this section:
* * * * *

Subpart B--Safety Planning and General Requirements

7. 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 apply on or after [DATE 60
DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN FEDERAL REGISTER].
(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 below, on or after [DATE 18
MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL
REGISTER] 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; compare to Figure 2b of
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 [DATE 14 MONTHS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and
placed in service prior to [DATE 38 MONTHS AFTER DATE OF PUBLICATION OF
THE FINAL RULE IN THE FEDERAL REGISTER], only one emergency window exit
is required in a seating area in a passenger compartment if it is not
practicable to place a window exit in a side of the passenger
compartment (due to the presence of such structures as a bathroom,
electrical locker, or kitchen) and there are no more than eight seats
in the seating area.

[[Page 50303]]

(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
passengers 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. 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. 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. A seatback is not an obstruction if it can be moved away
from the window opening without requiring the use of a tool or other
implement.
(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.
8. 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 apply on or after [DATE 60
DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
(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 [DATE 14
MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL
REGISTER], and placed in service prior to [DATE 38 MONTHS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], 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) of this section apply on or after
[DATE 18 MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER] if the car has at least two exterior side doors (or
door leaves), each with a 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) which it controls;
and
(C) Designed and maintained so that a person may access the
override device from outside the car without requiring the use of 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 below, 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; compare to Figure 2b 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 [DATE 14 MONTHS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and
placed in service prior to [DATE 38 MONTHS AFTER DATE OF PUBLICATION OF
THE FINAL RULE IN THE FEDERAL REGISTER], only one rescue access window
is required in a seating area in a passenger compartment if it is not
practicable to place an access window in a side of the passenger
compartment (due to the presence of such structures as a bathroom,
electrical locker, or kitchen) and 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 of this part are also intended to function as rescue
access windows, the minimum requirements for the number and location of
rescue access windows in

[[Page 50304]]

paragraphs (a)(1) through (a)(4) of this section are also met for that
level.
(b) Ease of operability. On or after [DATE 60 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], each rescue
access window must be capable of being removed without undue 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 [DATE 14 MONTHS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], or
placed in service for the first time on or after [DATE 38 MONTHS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], 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 requiring the use of 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.

Sec. 238.117 [Redesignated as Sec. 238.121]

9. Redesignate Sec. 238.117 as Sec. 238.121.
10. Add new Sec. 238.117 to read as follows:

Sec. 238.117 Emergency communications.

(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 crewmember
to communicate to all train passengers in an emergency situation.
(2) New Tier I and all Tier II passenger cars. Each Tier I
passenger car ordered on or after [DATE 60 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], or placed in
service for the first time [DATE 26 MONTHS AFTER DATE OF PUBLICATION OF
THE FINAL RULE IN THE FEDERAL REGISTER], and all Tier II passenger cars
shall be equipped with a PA system that provides a means for a
crewmember to communicate to all train passengers in an emergency
situation. The PA system shall also 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). 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 [DATE 60 DAYS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], or
placed in service for the first time on or after [DATE 26 MONTHS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and all
Tier II passenger cars shall be equipped with an intercom system that
provides a means for passengers and crewmembers to communicate with
each other in an emergency situation. Except as further specified, at
least one intercom that is accessible to passengers without requiring
the use of 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 to apply
to each Tier I passenger car on or after [DATE 26 MONTHS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]
and to all Tier
II passenger cars:
(i) The location of each intercom intended for passenger use shall
be clearly 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 on Tier II passenger
trains shall have back-up power for a minimum period of 90 minutes.
11. Section 238.118 is added to read as follows:

Sec. 238.118 Emergency roof access.

Except as provided in Sec. 238.441--
(a) Number and dimensions. Each passenger car ordered on or after
[DATE 14 MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER], or placed in service for the first time on or after
[DATE 38 MONTHS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER], 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 clearly 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, 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)
of this section 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:
CAUTION--DO NOT USE FLAME CUTTING DEVICES.

[[Page 50305]]

CAUTION--WARN PASSENGERS BEFORE CUTTING.
CUT ALONG DASHED LINE TO GAIN ACCESS.
ROOF CONSTRUCTION--[STATE RELEVANT DETAILS]

Subpart D--Inspection, Testing, and Maintenance Requirements for
Tier I Passenger Equipment

12. 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 non-complying condition is
discovered, where it 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 it 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 it shall be repaired or removed
from service.
(iv) A record shall be maintained of any non-complying 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.
* * * * *
13. Section 238.305 is amended by revising paragraphs (c)
introductory text and (c)(10), and 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 interior 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)(5) through (c)(12), and paragraph (d) of this section.
* * * * *
(10) All end doors and side doors operate safely and as intended. A
non-complying car may continue in passenger service pursuant to
paragraph (d) of this section if at least one operative and accessible
door is available on each side of the car; the train crew is provided
written notification of the non-complying condition; and 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 non-functioning 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 non-complying condition is
discovered, where it shall be repaired or removed from service;
provided, the train crew is given written notification of the non-
complying condition, and all of the requirements contained in paragraph
(d)(3) of this section are met.
* * * * *
14. Section 238.307 is amended by revising paragraphs (c)
introductory text and (c)(5) 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]
(iii) Emergency roof access markings and instructions required
under Sec. 238.118 (e) are in place and, as applicable, conspicuous,
or legible, or both.
* * * * *

Subpart E--Specific Requirements for Tier II Passenger Equipment

Sec. 238.437 [Removed and Reserved]

15. Section 238.437 is removed and reserved.
16. Section 238.441 is revised to read as follows:

Sec. 238.441 Emergency roof access.

(a) Each passenger car ordered prior to [DATE 14 MONTHS AFTER DATE
OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] and placed in
service for the first time prior to [DATE 38 MONTHS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and each power
car 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) Each passenger car ordered on or after [DATE 14 MONTHS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], or
placed in service for the first time on or after [DATE 38 MONTHS AFTER
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER,]
shall
comply with the emergency roof access requirements specified in Sec.
238.118.

Issued in Washington, DC, on August 17, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
BILLING CODE 4910-06-P

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[FR Doc. 06-7099 Filed 8-23-06; 8:45 am]
BILLING CODE 4910-06-C

Notices For
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