Passenger Equipment Safety Standards; Miscellaneous Amendments and Attachment of Safety Appliances on Passenger Equipment

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

[Federal Register: October 19, 2006 (Volume 71, Number 202)]
[Rules and Regulations]
[Page 61835-61864]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc06-14]

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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 229 and 238
[Docket No. FRA-2005-23080, Notice No. 2]
RIN 2130-AB67

Passenger Equipment Safety Standards; Miscellaneous Amendments
and Attachment of Safety Appliances on Passenger Equipment

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.

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SUMMARY: FRA is amending its existing regulations in an effort to
address various mechanical issues relevant to the manufacture,
efficient utilization, and safe operation of passenger equipment and
trains that have arisen since FRA's original issuance of the Passenger
Equipment Safety Standards. The miscellaneous amendments concentrate on
the following five areas: Clarifying the terminology related to piston
travel indicators; providing alternative design and additional
inspection criteria for new passenger equipment not designed to allow
inspection of the application and release of the brakes from outside
the equipment; permitting some latitude in the use of passenger
equipment with redundant air compressors when a limited number of the
compressors become inoperative; recognizing current locomotive
manufacturing techniques by permitting an alternative pneumatic
pressure test for main reservoirs; and adding provisions to ensure the
proper securement of unattended equipment. FRA is also clarifying the
existing regulatory requirements related to the attachment of safety
appliances and is mandating an identification and inspection protocol
to address passenger equipment containing welded safety appliances or
welded safety appliance brackets or supports. Finally, FRA is amending
the regulations to permit railroads the ability to apply out-of-service
credit to certain periodic maintenance requirements related to
passenger equipment.

DATES: Effective Date: December 18, 2006. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of December 18, 2006.

ADDRESSES: Petitions: Any petitions for reconsideration related to Docket
No. FRA-2005-23080, 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 20590-0001.
? 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: George Scerbo, Office of Safety
Assurance and Compliance, Motive Power & Equipment Division, RRS-14,
Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue,
NW., Washington, DC 20590 (telephone 202-493-6247), or Thomas J.
Herrmann, Deputy Assistant Chief Counsel, Office of Chief Counsel, Mail
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW.,
Washington, DC 20590 (telephone 202-493-6036).

SUPPLEMENTARY INFORMATION:

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
five-year period. In November of 1994, Congress adopted the Secretary's
schedule for implementing rail passenger equipment regulations and
included it in the Federal Railroad Safety Authorization Act of 1994
(the Act), Public Law Number 103-440, 108 Stat. 4619, 4623-4624
(November 2, 1994). Section 215 of the Act, as now codified at 49
U.S.C. 20133, provides as follows:

(a) MINIMUM STANDARDS.--The Secretary of Transportation shall
prescribe regulations establishing minimum standards for the safety
of cars used by railroad carriers to transport passengers. Before
prescribing such regulations, the Secretary shall consider--
(1) the crashworthiness of the cars;
(2) interior features (including luggage restraints, seat belts,
and exposed surfaces) that may affect passenger safety;
(3) maintenance and inspection of the cars;
(4) emergency response procedures and equipment; and
(5) any operating rules and conditions that directly affect
safety not otherwise governed by regulations.
The Secretary may make applicable some or all of the standards
established under this subsection to cars existing at the time the
regulations are prescribed, as well as to new cars, and the
Secretary shall explain in the rulemaking document the basis for
making such standards applicable to existing cars.
(b) INITIAL AND FINAL REGULATIONS.--(1) The Secretary shall
prescribe initial regulations under subsection (a) within 3 years
after the date of enactment of the Federal Railroad Safety
Authorization Act of 1994. The initial regulations may exempt
equipment used by tourist, historic, scenic, and excursion railroad
carriers to transport passengers.
(2) The Secretary shall prescribe final regulations under
subsection (a) within 5 years after such date of enactment.
(c) PERSONNEL.--The Secretary may establish within the
Department of Transportation 2 additional full-time equivalent
positions beyond the number permitted under existing law to assist
with the drafting, prescribing, and implementation of regulations
under this section.
(d) CONSULTATION.--In prescribing regulations, issuing orders,
and making amendments under this section, the Secretary may consult
with Amtrak, public authorities operating railroad passenger
service, other railroad carriers transporting passengers,
organizations of passengers, and organizations of employees. A
consultation is not subject to the Federal Advisory Committee Act (5
U.S.C. App.), but minutes of the consultation shall be placed in the
public docket of the regulatory proceeding.

The Secretary of Transportation has delegated these rulemaking
responsibilities to the Federal Railroad Administrator. See 49 CFR 1.49(m).

II. Proceedings to Date

On June 17, 1996, FRA published an advanced notice of proposed
rulemaking (ANPRM) concerning the establishment of comprehensive safety
standards for railroad passenger

[[Page 61837]]

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 Working Group,
FRA published a Notice of Proposed Rulemaking (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 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 some of the requirements
contained in the final rule. These petitions generally related to the
following subject areas: structural design; fire safety; training;
inspection, testing, and maintenance; and movement of defective
equipment. 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 mechanical-related provisions contained in the
final rule. See 65 FR 41284. On April 23, 2002 and June 25, 2002, FRA
published two additional responses to the petitions for reconsideration
addressing the remaining issues raised in the petitions. See 67 FR
19970, and 67 FR 42892.
Subsequent to the issuance of these responses, FRA and interested
industry members began identifying various issues related to the new
passenger equipment safety standards with the intent that FRA would
address the issues through FRA's Railroad Safety Advisory Committee
(RSAC). On May 20, 2003, FRA presented, and the RSAC accepted, the task
of reviewing existing passenger equipment safety needs and programs and
recommending consideration of specific actions useful to advance the
safety of rail passenger service. The RSAC established the Passenger
Equipment Working Group (Working Group) to handle this task and develop
recommendations for the full RSAC to consider. Due to the variety of
issues involved the Working Group established a number of smaller task
forces, with specific expertise, to develop recommendations on various
subject-specific issues. One of these task forces, the Mechanical
Issues Task Force (Task Force), 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.
The Task Force met several times between 2003 and late-2005 in
order to develop detailed recommendations to the full Working Group.
The Task Force recommendations became the recommendations of the
Working Group and the full RSAC. The RSAC did not make any
recommendations regarding the proposed provisions related to the
attachment of safety appliances on passenger equipment and the proposed
provision involving out-of-service credit. At the October 26-27, 2004
meeting of the full Working Group, FRA withdrew the task related to the
consideration of handling the attachment of safety appliances on
passenger equipment from the RSAC. FRA determined that consensus on
this issue could not be reached in the RSAC process and determined that
it would have to proceed with these issues on its own. Therefore, FRA
developed the proposed provisions related to the attachment of safety
appliances unilaterally based on its own expertise in the area and
based on discussions and information developed by the Working Group and
Task Force. FRA also did not seek consensus in the RSAC process for the
proposed provision related to out-of service credit. This issue was
addressed on FRA's own accord in response to the American Public
Transportation Association's (APTA) petition for rulemaking dated March
28, 2005. Thus, FRA did not seek RSAC consensus on these issues. FRA
reviewed and adopted the recommendations of the full RSAC and issued a
Notice of Proposed Rulemaking (NPRM) on December 8, 2005. See 70 FR 73070.
The comment period for the above noted NPRM closed on February 17,
2006. FRA received comments from two parties, the Brotherhood of
Railway Carmen and APTA. The comments of these two parties were
concentrated almost exclusively on the proposed provisions related to
the attachment of safety appliances on passenger equipment. As the
involved provisions were not developed through the RSAC process and the
comments on those provisions could not be discussed with the members of
the Working Group or Task Force and because FRA received no significant
comments on any of the RSAC developed provisions proposed in the NPRM,
FRA determined that there was no need to hold any further RSAC meetings
related to this proceeding.
Moreover, because this final rule retains all of the RSAC-
recommended provisions proposed in the NPRM without change, there was
no need to seek the full RSAC's approval of this final rule.
Consequently, FRA proceeded to draft this final rule without further
input from the RSAC.

III. RSAC Overview

In March 1996, FRA established the RSAC, which provides a forum for
developing consensus recommendations on rulemakings and other safety
program issues. The Committee includes representation from all of the
agency's major customer groups, including railroads, labor
organizations, suppliers and manufacturers, and other interested
parties. A list of member groups follows:

American Association of Private Railroad Car Owners (AAPRCO)
American Association of State Highway & Transportation Officials
(AASHTO) 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)

[[Page 61838]]

Secretaria de Communicaciones 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)
United Transportation Union (UTU)

*Indicates associate membership.

When appropriate, FRA assigns a task to the RSAC, and after
consideration and debate, RSAC may accept or reject the task. If
accepted, the 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 RSAC for a vote. If the proposal is accepted by a simple majority
of the RSAC, the proposal is formally recommended to FRA. FRA then
determines what action to take on the recommendation. Because FRA staff
has played 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. If the
working group or the RSAC is unable to reach consensus on
recommendations for action, FRA moves ahead to resolve the issue
through traditional rulemaking proceedings.
On May 20, 2003, FRA presented, and the RSAC accepted, the task of
reviewing existing passenger equipment safety needs and programs and
recommending consideration of specific actions useful to advance the
safety of rail passenger service. The Working Group was established to
handle this task and develop recommendations for the full RSAC to
consider. Members of the Working Group, in addition to FRA, included
the following:
AAR, including members from BNSF Railway Company (BNSF), CSX
Transportation, Incorporated (CSX), and Union Pacific Railroad Company
(UP); APTA, including members from Illinois Commuter Rail Corporation
(METRA), Long Island Rail Road (LIRR), Metro-North Railroad (MNR),
Southeastern Pennsylvania Transportation Authority (SEPTA), Southern
California Regional Rail Authority (SCRRA), Saint Gobian Sully NA, LDK
Engineering, and Herzog Transit Services, Incorporated; Amtrak; AAPRCO;
AASHTO; BLET; BRS; HSGTA; IBEW; NARP; RSI; SMWIA; STA; TCIU/BRC; TWU;
and UTU.
The NTSB met with the Working Group and provided staff advisors
when possible. In addition, staff from the U.S. DOT Volpe National
Transportation Systems Center (Volpe) attended many of the meetings and
contributed to the technical discussions. Due to the variety of issues
involved, the Working Group established a number of smaller task
forces, with specific expertise, to develop recommendations on various
subject-specific issues. Members of the task forces included various
representatives from various organizations that were part of the larger
Working Group. One of these task forces, the Mechanical Issues Task
Force (Task Force), 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.
Please refer to the preceding discussion in this document as well as
the NPRM's preamble discussion for a complete overview of this
proceeding both before and after the issuance of the NPRM. See
Discussion in Paragraph II--Proceedings to Date; and 70 FR 73070
through 73071.
Throughout the preamble discussion of this final rule, FRA refers
to comments, views, suggestions, or recommendations made by members of
the Working Group or related Task Force. When using this terminology,
FRA is referring to views, statements, discussions or positions
identified or contained in either the minutes of the Working Group or
Task Force meetings that were conducted during the development of the
NPRM issued in this proceeding. These documents have been made part of
the docket in this proceeding and are available for public inspection
as discussed in the preceding ADDRESSES portion of this document. These
points are discussed to show the origin of certain issues and the
course of discussions on those issues at the task force or working
group level. We believe this helps illuminate factors FRA has weighed
in making its regulatory decisions, and 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 acted in developing the
NPRM and this final rule.

IV. Technical Background

A. Redundancy of Air Compressors

MU passenger locomotives are generally operated as married pairs,
but in some cases they can be operated as single or triple units. In
the case of the married pairs, each pair of MU locomotives share a
single air compressor. When operated in triple units, the three MU
locomotives generally share two air compressors, and single-unit MU
locomotives are equipped with their own air compressor. The amount of
air required to be produced by the air compressors is based on the size
of the brake pipe and the brake cylinder reservoirs, the size of which
is based on the calculated number of brake application-and-release
cycles the train will encounter. In addition, the compressed air
produced by the air compressors is shared within the consist either by
utilizing a main reservoir equalizing pipe or, in single pipe systems,
by utilizing the brake pipe which is then diverted to the brake
cylinder supply reservoir and other air-operated devices by use of a
governor arrangement. Therefore, a passenger train set consisting of
numerous MU locomotives will have multiple air compressors providing
the train consist with the necessary compressed air. FRA agrees with
the determinations of the Task Force that a loss of compressed air from
a limited number of air compressors in such a train will not adversely
effect the operation of the train's brakes or other air-operated
components on the train.
Representatives of railroads and air brake manufacturers provided
information demonstrating that the safety of a train set is not
compromised when a predetermined number of inoperative air compressors
are allowed to continue to operate in service on a MU train set. On
such train sets, the air compressors are applied by technical
specification to a certain number of cars such as one per married pair,
two per triplet, and so on. The technical specifications for these air
compressors generally allow for a duty cycle (percentage of operating
capacity) for

[[Page 61839]]

each air compressor that is something less than 50 percent. In fact,
some technical specifications limit the air compressor duty cycle to 33
percent. This means that on MU train sets the available air compressors
are required to operate at only 33 to 50 percent of their operational
capacity. One of the major reasons for imposing these low duty cycles
is to ensure that adequate air pressure is available if one or more of
the other air compressors in the train set is not operating properly.
Thus, these systems are currently designed to function properly even in
the event that a limited number of air compressors become inoperative
while the train is in service. Moreover, even in the unlikely event
that an MU passenger train set would lose all of its air compressors,
then the air brakes would apply and would remain applied until
sufficient compressed air is restored to the system. Consequently, FRA
does not see any adverse impact on the operational safety of these
types of trains if they are permitted to operate for a relatively short
period of time with a limited number of air compressors being
inoperative or ineffective.
FRA did not receive any comments on the proposed provisions related
to this issue. Thus, the final rule retains the proposed provisions
without change and permits MU train sets with a limited number of
inoperative or ineffective air compressors to continue to be used in
passenger service until the next exterior calendar day mechanical
inspection when found at such an inspection. The final rule requires a
railroad to determine through data, analysis, or actual testing the
number of inoperative or ineffective air compressors that could be in
an MU train set without compromising the integrity or safety of the
train set based on the size and type of train and the train's operating
profile. The railroad is required to submit the maximum number of air
compressors permitted to be inoperative or ineffective on its various
trains to FRA before it can begin operation under the final rule
provision and is required to retain and make available to FRA any data
or analysis relied on to make those determinations. The final rule also
requires a qualified maintenance person (QMP) to verify the safety and
integrity of any train operating with inoperative or ineffective air
compressors before the equipment continues in passenger service. In
addition, the final rule retains the proposal provision requiring
notification to the train crew of any inoperative or ineffective air
compressors and requires that a record be maintained of the defective
condition. FRA believes these provision will ensure the safety of
passenger operations while providing the railroads additional
flexibility in handling defective or inoperative equipment.

B. Pneumatic Testing of Locomotive Main Reservoirs

The current regulations contained at 49 CFR 229.31(a) relating to
main reservoir tests requires that a hydrostatic (water) test of a main
reservoir be conducted before it is originally placed in service or
before an existing main reservoir is placed back in service after being
drilled as provided for in Sec. 229.31(c). At the Working Group and
Task Force meetings, the manufacturers of main reservoirs requested the
ability to conduct a pneumatic (air) test of the reservoirs in lieu of
the currently required hydrostatic test. The request was limited to
providing relief only for those tests required before a main reservoir
is originally placed in service and after an existing main reservoir is
drilled.
The companies that manufacture reservoirs for the rail industry,
whether the reservoir is utilized as a main reservoir or reservoir(s)
utilized for other purposes, must have an American Society of
Mechanical Engineers (ASME) certification. The reservoirs, both main
and other, manufactured by these companies are designed and certified
to meet the requirements of the ASME Boiler and Pressure Vessel Code.
In addition, reservoirs utilized as main reservoirs on locomotives are
also manufactured and certified to meet the requirements for such
contained in part 229 of the Federal regulations. Currently, all
passenger car reservoirs are pneumatically tested after fabrication and
before the application of an interior protective coating. This process
is utilized so that reservoirs may be repaired if the reservoir does
not pass the initial test requirements. If the interior protective
coating is applied prior to testing, any weld repairs cannot be
performed, as the interior coating would be damaged.
The rationale for originally requiring that the main reservoirs be
tested hydrostatically was based on the safety concerns should a main
reservoir catastrophically fail during the testing. The likelihood of
injury is minimized by having the reservoir filled with a liquid rather
than air. However, since the original drafting of the locomotive
regulations, manufacturers of reservoirs have implemented and developed
both equipment and procedures to ensure that test personnel are
adequately shielded when conducting the testing. The manufacturers have
been performing pneumatic testing on reservoir for years and FRA is not
aware of any injury related to such testing in manufacturer-controlled
facilities. Thus, the safety concerns originally attached to pneumatic
testing have been minimized, if not eliminated, when conducted at
properly equipped manufacturer facilities.
The ASME code currently utilized by all manufacturers of main
reservoirs allows for the pneumatic testing of the reservoirs when the
introduction of liquid cannot be tolerated. The introduction of water
to perform hydrostatic testing on main reservoirs creates a problem
because, if the liquid is not completely removed and the reservoir
interior completely dried, the moisture results in poor adhesion or a
lower coating of film than required. This condition has the potential
of causing interior corrosion and premature failure of the reservoir.
Thus, rather than creating this potential, FRA believes that it would
be both safer and more efficient to permit the manufacturers of main
reservoirs to utilize pneumatic testing to meet the requirements
contained in 49 CFR 229.31. FRA received no comments objecting to the
flexibility proposed in the NPRM or suggesting additional restrictions
or requirements. Consequently, this final rule retains the proposed
amendments to the regulation without change to permit pneumatic testing
of newly manufactured main reservoirs and reservoirs that are newly
drilled and tested at a manufacturer's facility.
It should be noted that the final rule retains the proposed
restriction that limits the ability to conduct pneumatic testing of the
main reservoirs at only those facilities with appropriate safeguards in
place to ensure the safety of the personnel conducting the testing.
After a reservoir is installed on a locomotive, FRA continues to
believe that hydrostatic testing would be the only testing method that
adequately ensures the safety and protection of the personnel that are
performing the test or working near the installed reservoir. Regulatory
language inserted at the end of paragraph (c) of Sec. 229.31 makes
clear that pneumatic testing of a reservoir currently in use and newly
drilled may only be conducted by a manufacturer of main reservoirs in a
safe environment. In other circumstances, the final rule makes clear
that a hydrostatic test of the reservoir must be conducted.

C. Design of New Passenger Equipment

The manufacturers and railroad representatives on the Working Group
and Task Force sought clarification of

[[Page 61840]]

the provision originally contained in 49 CFR 238.231(b). This section
requires the brake systems on equipment ordered on or after September
8, 2000, or placed in service on or after September 9, 2002, to be
designed so as not to require an inspector to go on, under, or between
the equipment to observe the brake actuation or release. At the Task
Force meetings and in the NPRM, FRA made clear that the requirement was
intended to be a design standard and was not intended to prohibit or
limit the conduct of brake or mechanical inspections required to be
conducted in part 238. See 70 FR 73074. FRA realizes that in order to
perform many of the brake and mechanical inspections required by the
regulations an inspector will have to go on, under, or between the
equipment. FRA has acknowledged this practice and railroads have
effectively conducted these types of inspections in this manner for decades.
The plain language of existing Sec. 238.231(b) requires new
equipment to be designed to allow direct observation of the brake
actuation and release without fouling the equipment. The preamble to
the original final rule discusses alternative design approaches using
some type of piston travel indicator or piston cylinder pressure
indicator on equipment whose design makes it impossible to meet this
requirement. See 64 FR 25612 (May 12, 1999). FRA's intent was that this
piston travel indicator could be a device similar to the definition of
``actuator'' contained in Sec. 238.5 or some sort of piston cylinder
pressure indicator. The rule text and related preamble make clear that
the actuation and release of the brake (or a direct indication of such)
be able to be observed without an inspector going on, under, or between
the equipment. FRA does not believe that truck pressure indicators
(which provide no information on piston travel or piston cylinder
pressure) meet this requirement. FRA recognized that the envisioned
``indicators'' discussed in the preamble to Sec. 238.231(b) may be
ahead of the technological curve for passenger equipment currently
being delivered and that which may be delivered in the future. Thus,
FRA noted its willingness to discuss additional inspection protocols in
lieu of applying piston travel indicators on such equipment.
During the development of the NPRM, the Task Force discussed the
issue in detail as a number of railroads were in the process of
receiving new equipment, such as bi-level coaches and other low-slung
equipment, the design of which does not allow observation of the brake
actuation and release of the brake without going on, under, or between
the equipment. Several railroads and manufacturers noted that the type
of piston travel indicators envisioned by FRA to meet the Sec.
238.231(b) requirement were not currently available, and even if they
could be developed in the future, they would likely be a maintenance
problem and unreliable. Representatives of rail labor also questioned
the viability and need for the type of piston travel indicators
discussed in the preamble to the original final rule. These
participants did not believe that any type of mechanical indicator
should take the place of direct visual inspection of the brake system
components. Consequently, the members of the Task Force believed that
the best approach to the issue was to provide additional inspection
protocols for new equipment that are designed in a manner that makes
observation of the actuation and release of the brakes impossible from
outside the plane of the equipment rather than mandating the use of
untested and potentially unreliable piston travel indicators.
FRA and the Task Force believe that the brake system and mechanical
components on bi-level and other low-slung passenger equipment can be
adequately inspected through the daily brake and mechanical inspections
currently required in the Federal regulations; provided, appropriate
blue signal protections are established for the personnel required to
perform such inspections. These daily inspections permit a visual
inspection of a large percentage of the brake and mechanical components
and over a period of a few days all portions of the brake system and
mechanical components will be visually observed. However, because the
necessary design of some new equipment makes the daily inspections of
the equipment more difficult, does not permit visual observation of the
brake actuation and release from outside the plane of the vehicle, and
because no reliable mechanical device is currently available to provide
a direct indication of such, FRA and the Task Force believed it was
necessary to adopt additional inspection protocols for this type of
equipment. Thus, the NPRM proposed an additional inspection regiment
for newer equipment designed in such a manner.
The requirements proposed in the NPRM that were related to this
type of equipment were similar to those contained in a FRA Safety Board
letter dated October 19, 2004, granting that portion of the
Massachusetts Bay Transportation Authority's (MBTA) waiver petition
seeking relief from the requirements of Sec. 238.231(b) for 28
Kawasaki bi-level coaches. See Docket Number FRA-2004-18063. FRA did
not receive any comments directly related to the proposed inspection
protocols or the proposed approach to this issue. Thus, this final rule
retains the proposed provisions with slight changes for purposes of
clarity.
The inspection protocols retained in this final rule will be
applicable to equipment placed in service on or after September 9,
2002, the design of which does not permit actual visual observation of
the brake actuation and release. The final rule provisions will require
such equipment to be equipped with either piston travel indicators or
brake indicators as defined in Sec. 238.5. The equipment is also
required to receive a periodic brake inspection by a QMP at intervals
not to exceed five in-service days and the inspection must be performed
while the equipment is over an inspection pit or on a raised track. In
addition, the railroad performing the additional inspection is required
to maintain a record of the inspection consistent with the existing
record requirements related to Class I brake tests. FRA believes that
these additional inspection requirements will ensure the safety and
proper operation of the brake system on equipment which does not permit
actual visual observation of the brake actuation and release without
fouling the vehicle.
FRA received one suggestion from APTA regarding the identification
of cars that will be covered by the provisions added in these sections.
APTA wanted to make clear that the railroad and car manufacturer would
make an initial determination regarding the applicability of the
requirements contained in this section and that FRA would oversee these
determinations for accuracy. FRA agrees with this position as the
railroad and car manufacturer are in the best position to make an
initial determination. FRA will exercise its oversight when conducting
sample car inspections as well as its regular inspection activity. FRA
notes that the additional inspection requirements would be applicable
to new cars constructed similar to the low-slung bi-level passenger
coaches that were the subject of MBTA's waiver request discussed above.

D. Safety Appliances

Several issues regarding the attachment of safety appliances on
passenger equipment have arisen over the last decade. These issues
generally involve the method by which safety appliances on existing
passenger equipment are required to be attached,

[[Page 61841]]

either directly to the car or locomotive body or by use of a bracket or
support. It has come to FRA's attention, due to the investigation of
these issues, that a significant number of existing passenger cars and
locomotives contain some safety appliances that are attached to the
equipment by some form of welding, typically the welding of a bracket
or plate to which the safety appliance is then mechanically fastened.
In the last two decades, manufacturers of certain passenger equipment
have used welding on some of the safety appliance arrangements of newly
built equipment. Some segments of the passenger industry believe
welding of these arrangements is acceptable and have sought a review of
FRA's historical prohibition on the welding of safety appliance
arrangements. These parties believe that new and improved welding
technology, the implementation of new tracking standards, proper
quality control, and historical documentation support the limited use
of welding on certain safety appliance arrangements.
Historically, FRA has required that safety appliances be
mechanically fastened to the car structure. FRA has also historically
required that any brackets or supports applied to a car structure
solely for the purpose of securing a safety appliance must be
mechanically fastened to the car body. See MP&E Technical Bulletin 98-
14 (June 15, 1998). FRA's prohibition on the weldment of safety
appliances and their supports is based on its longstanding
administrative interpretation of the regulatory ``manner of
application'' provisions contained in 49 CFR part 231 which require
that safety appliances be ``securely fastened'' with a specified
mechanical fastener. See e.g., 49 CFR Sec. Sec. 231.12(c)(4);
231.13(b)(4); 231.14(b)(4) and (f)(4)). FRA's historical prohibition on
the welding of safety appliances is based on its belief that welds are
not uniform, are subject to failure, and are very difficult to inspect
to determine if the weld is broken or cracked. Mechanical fasteners, by
contrast, are generally easier to inspect and tend to become noticeably
loose prior to failure. FRA notes that many of its historical beliefs
related to the welded attachment of safety appliance brackets and
supports on passenger equipment are based on welding technologies that
were in their infancy when first being utilized. In addition, many of
FRA's concerns in this area are mitigated when appropriate welding
standards covering quality control, initial manufacture, repair, and
welder qualifications are established and implemented.
Generally, FRA's longstanding interpretation of the regulation
prohibiting the welding of safety appliances has not been seriously
questioned or opposed since its inception. Virtually all freight
railcars manufactured for use in the United States and passenger cars
manufactured in the United States have their safety appliances and
their safety appliance brackets and supports mechanically fastened to
the car body, unless a specific exception has been provided by FRA or
the regulations. FRA acknowledges that it has permitted limited welding
of certain safety appliances or their brackets and supports on
locomotives and tanks cars. See MP&E Technical Bulletins 98-48 and 00-
06 (June 15, 1998 and August 7, 2000, respectively). These exceptions
were provided because there were no other alternative methods available
for mechanically fastening these safety appliance arrangements.
Currently, freight railroad equipment complies with the existing
regulations and FRA's interpretation of those provisions.
Traditionally, FRA has not permitted welding of safety appliance
arrangements on freight equipment. In addition, the AAR does not permit
the welding of safety appliance arrangements. FRA continues to believe
that, except in limited circumstances, the safety appliances on freight
equipment should not be attached with welding under any condition. This
is primarily due to the extreme differences in use and inspection
between passenger and freight equipment. See 70 FR 73076. Thus, FRA
does not intend to permit welded safety appliances or their attachment
in that segment of the industry. Consequently, FRA is limiting any
relief being provided in this final rule to safety appliance
arrangements on passenger equipment.
Although FRA has remained consistent in its prohibition on the
weldment of safety appliances and their supports, a significant amount
of passenger equipment has been manufactured and used in revenue
service for a number of years with safety appliances being attached to
the car body using some form of welding. Currently, FRA is aware of
approximately 3,000 passenger cars or locomotives that have safety
appliances or safety appliance brackets or supports welded to the body
of the equipment. Some units of this equipment were introduced into
service within the last few years; others have been in service for more
than a decade. Some of the 3,000 units noted above have been the
subject of formal waiver requests pursuant to the provisions contained
in 49 CFR Part 211. See Docket Numbers FRA-2000-8588 and FRA-2000-8044.
In an effort to fully develop the issues relating to the welding of
safety appliances on existing passenger equipment, FRA conducted an
informal safety inquiry and subsequently submitted the issue to RSAC in
this proceeding. On June 17, 2003, an informal safety inquiry was held
in Washington, DC, where all interested parties were permitted to
express their concerns relating to FRA's longstanding interpretation
prohibiting welded of safety appliance arrangements. Representatives
from APTA, AAR, consultants, manufacturers, and union representatives
gave presentations or provided comments expressing their points of
interests or concerns. FRA also referred the issue to the RSAC process
in this proceeding, which in turn assigned the issue to the mechanical
Task Force, to aid in developing and determining if there is a
practical application where welding may be suitable and to consider
methods by which FRA could revise or clarify its position for future
guidance and regulatory standards. Although the Task Force engaged in
productive discussions and developed considerable information relating
to the issue, the Task Force could not reach a consensus on any
recommendation. Consequently, on October 27, 2004, FRA withdrew the
task related to the consideration of handling the attachment of safety
appliances on passenger equipment from the RSAC and decided to proceed
with the development of a regulatory proposal unilaterally.
At the safety inquiry and the discussions within the Task Force,
ATPA and its primary members all indicated that FRA needs to provide
clarity and guidance to the industry relating to passenger car safety
appliance arrangements, particularly in the area of attaching brackets
and supports. FRA considered issues ranging from the initial
manufacturing stage to the actual expected life cycle of a weld and the
environment in which the equipment operates. FRA acknowledges that
freight and passenger operations involve significantly different
environments from a safety appliance standpoint, and likely justifies
an allowance for welded safety appliance brackets and supports and in
other instances where the design of a vehicle necessitates such use. In
most cases, passenger equipment is inspected on a more regular basis,
generally used in captive type service, and experiences far less
coupling and uncoupling associated with switching moves inherent in
freight operations. FRA also

[[Page 61842]]

recognizes that it would be extremely costly to the passenger industry
to require existing equipment to be retrofitted with new safety
appliances when the existing welded attachments have not shown a
proclivity for failure at this time.
Based on the information and views provided at both the informal
safety inquiry and through the RSAC, FRA proposed provisions in the
NPRM to clarify FRA's existing interpretations of the safety appliance
regulations and to provide the passenger rail industry some latitude
for existing passenger equipment with welded safety appliance brackets
or supports in lieu of retrofitting nearly one-third of the fleet. The
NPRM proposed a detailed inspection and repair program for existing
passenger equipment with welded safety appliances or welded safety
appliance brackets or supports. The NPRM also sought comments and
information from interested parties on a variety of questions and
concerns relating to both the proposed provisions and the general use
of welding as a means of attaching safety appliance brackets and
supports. See 70 FR 73077. The NPRM indicated FRA's willingness to
consider certain welded safety appliance brackets and supports to be
part of a car's body if viable and enforceable specifications could be
developed that would ensure the safe and reliable attachment of such
brackets and supports.
FRA received comments from two parties regarding the proposed
provisions and in response to the questions presented. BRC submitted
comments requesting that FRA continue its prohibition on welding of
safety appliances and require that safety appliances be mechanically
fastened. BRC indicated that this approach would be consistent with
FRA's historical application of the regulations. BRC stated that it was
not convinced that welding was an effective manner of securement due to
vibration and flex occurring on equipment while in transit. BRC
provided several historical examples of instances when FRA took
exception to certain welded safety appliances. FRA notes that the
examples cited by BRC involved either instances of direct welding of
the safety appliances to a car body, welding of safety appliances on
freight equipment, or welding not conducted in accordance with any
acceptable welding standard. BRC requested that if any change were made
to the existing welding prohibition that they only be considered after
the initiation and implementation of strict safety procedures covering
the inspection, and repair of such welds as well as the qualifications
and training of the individuals responsible for inspecting and welding
such appliances.
APTA's comments focused almost exclusively on the proposed
provisions related to the welding of safety appliance brackets and
supports. In response to questions asked in the NPRM, APTA provided
detailed specifications for use by FRA for determining when a welded
safety appliance bracket or support could be considered part of the
car's body. These specifications included the strength, size,
attachment, design criteria, and quality control procedures that any
welded attachment would be required to meet. APTA comments fully
discussed the implications and basis for its recommended
specifications. APTA seeks to have these welding specifications applied
to both new and existing equipment. APTA also sought to have the
definition of what constitutes a defective weld clarified. APTA asserts
that only a crack in a weld should be considered a defect and that
anomalies in welds should not be considered. APTA contends that, if an
anomaly is significant, it will eventually lead to a crack in the weld.
APTA again noted that it believes both FRA and BRC are operating
under two serious misconceptions relating to welding. The first is that
the failure mode of welds used to attach a safety appliance and their
related brackets or supports is difficult to detect. APTA asserts that
failure of these welds is rare and even if there is a failure it will
start with a small crack that grows very slowly. In the unlikely event
that a crack were to even develop, it would take months or years for
failure of the weld to occur. These cracks would be easy to detect with
the visual inspections performed on safety appliances by railroads on a
daily basis. The second misconception is that weld will have a higher
failure rate toward the end of the life cycle of a piece of equipment.
APTA asserts that older welds do not fail at any higher rate than newer
welds. The endurance limits designed into these welds are so high that
the welds will not fatigue over time regardless of number of stress
cycles that occur. Because of this, there is no data available to FRA
that show a higher failure rate due to the age of the weld. APTA also
stressed that it was not advocating welding a safety appliance directly
to a car body except in the limited circumstances identified in the
NPRM when the design of the equipment makes it impossible to
mechanically fasten the safety appliance.
Based on consideration of these comments as well as previous
information provided to FRA, the final rule is modifying some of the
provisions proposed in the NPRM related to the attachment of safety
appliances on passenger equipment. The final rule retains many of the
provisions proposed in the NPRM but is being expanded to adopt APTA's
recommendations for determining when a welded safety appliance bracket
or support will be considered part of the car body and the definition
of a defective weld. FRA believes that welding technologies have
improved significantly over the last several decades. In addition,
passenger operations provide a unique environment suitable to the use
of welding as a means of attachment in certain situations. Moreover,
FRA believes that APTA has provided a viable and enforceable
specification for ensuring that welded safety appliance brackets and
supports are securely, safely, and reliably attached to the equipment
on which it is placed. Volpe reviewed the welding specifications at
FRA's request and confirmed that safety appliance brackets or supports
welded to the car body in accordance with the standards recommended by
APTA would be at least as secure and reliable as a bracket or support
attached with a mechanical fastener. FRA further believes that BRC's
concerns are addressed by the final rule provisions because the final
rule will only consider welded safety appliance brackets or supports to
be part of the car body if stringent and verifiable standards are
utilized when making the welded connection. In addition, the final rule
will allow existing equipment with welded brackets or supports to
continue in service only if it is inspected and repaired in accordance
with the strict inspection and repair provisions contained in the rule.
Consequently, FRA is including APTA's recommended specifications
related to welded safety appliance brackets and supports in this final
rule with slight modification for clarity and enforceability.
The final rule also retains the proposed provisions providing the
industry with the ability to develop standards relating to the safety
appliance arrangements on new cars of special construction. FRA did not
receive any comments on the proposed provisions and is retaining them
in this final rule without change. Throughout the Railroad Safety
Appliance Standards, currently contained in 49 CFR part 231;
specifically, Sec. 231.12--Passenger-train cars with wide vestibules;
Sec. 231.13--Passenger-train

[[Page 61843]]

cars with open-end platforms; Sec. 231.14--Passenger-train cars
without end platforms; and Sec. 231.23--Unidirectional passenger-train
cars adaptable to van-type semi-trailer use, there may be
inconsistencies and/or opportunities for clarification in the
construction of newly built passenger equipment. Many times, it is
necessary to reference two or more sections of 49 CFR part 231 to
determine if a newly constructed passenger vehicle meets the minimum
requirements of the Federal regulations. However, criteria for most of
today's new types of passenger car construction are found within 49 CFR
231.18--Cars of special construction. This results from the fact that
modern technology in construction of car-building often does not lend
itself to ready application of the current 49 CFR 231 requirements.
Rather, the designer must adapt several different requirements to meet
as closely as possible construction of specific safety appliance
arrangements in order to obtain compliance.
Most passenger cars today are constructed outside the United
States, and this has exacerbated the problem of varying interpretations
of regulations and resulting safety appliance arrangements. At times,
different requirements are applied to cars of similar design where both
could have been constructed in the same manner. Substantial resources
are spent on a regular basis by all parties concerned in review
sessions to determine if a car is in compliance prior to construction;
and even when the cars are delivered, problems have arisen.
In an attempt to limit these problems, the final rule contains a
method by which the industry may request approval of safety appliance
arrangements on new equipment considered to be cars of special
construction under 49 CFR part 231. The final rule will permit the
industry to develop standards to address many of the new types of
passenger equipment introduced into service. The final rule requires
any such standards, and supporting documentation to be submitted to FRA
for agency approval pursuant to the special approval process already
contained in the regulation. The final rule makes clear that any
approved standard will be enforceable against any person who violates
or causes the violation of the approved standards and that the penalty
schedule contained in Appendix A to 49 CFR part 231 will be used as
guidance in assessing any applicable civil penalty. The goal of the
regulation is to develop consistent safety appliance standards for each
new type of passenger car not currently identified in the Federal
regulations that ensures the construction of suitable safety appliance
arrangements in compliance with 49 CFR part 231. FRA believes the final
rule will reduce or eliminate reliance upon criteria for cars of
special construction, will improve communication of safety appliance
requirements to the industry, and will facilitate regulatory compliance
where clarification or guidance is necessary.
Portions of the final rule relating to new passenger equipment are
already progressing. By letter dated September 2, 2005, FRA requested
APTA to determine if it is feasible to form a group to specifically
develop potential safety appliance standards for newly manufactured
passenger equipment and provide guidance where existing Federal
regulations are not specific to the design of a passenger car or
locomotive. On October 11, 2005, APTA informed FRA that it is willing
to undertake this effort and began conducting meetings in early 2006.
FRA believes this approach provides an excellent avenue to take
advantage of the knowledge and expertise possessed by rail operators
and equipment manufactures when considering safety appliance
arrangements on new passenger equipment of unique design. Under the
provisions retained in this final rule, the standards and guidance
developed by this group will need to be submitted to and approved by
FRA pursuant to the special approval provisions contained at Sec. 238.21.

E. Securement of Unattended Equipment

The NPRM proposed various provisions related to the securement of
unattended equipment. FRA did not receive any comments on the proposed
provisions other than APTA's concurrence that the proposal
appropriately captures existing practices of passenger railroads. Thus,
this final rule retains the proposed provisions without change. FRA
believes that the rational for addressing these issues on freight
operations is equally applicable to passenger operations. The preamble
to the final rule related to 49 CFR part 232 contains an in-depth
discussion of the need to address these issues. See 66 FR 4156-4158
(January 17, 2001). The approach proposed in the NPRM and retained in
this final rule is also consistent with the guidance contained in FRA
Safety Advisory 97-1. See 62 FR 49046 (September 15, 1997). Further,
FRA is aware of several incidents on passenger and commuter operation
involving the running away or inadvertent movement of unattended equipment.
As passenger train consists are much shorter and do not possess the
tonnage associated with freight trains, the final rule modifies the
provisions contained in 49 CFR part 232 to make them more readily
applicable to passenger operations. The requirements contained in this
final rule are consistent with and based directly on current passenger
industry practice. Thus, in FRA's view, they will have no economic or
operational impact on passenger operations but will ensure that these
best practices currently adopted by the industry are followed and
complied with by making them part of the Federal regulations.
The final rule requires that unattended equipment be secured by
applying a sufficient number of hand or parking brakes to hold the
equipment and will require railroads to develop and implement a process
or procedure to verify that the applied hand or parking brakes will
hold the equipment. The final rule also prohibits a practice known as
``bottling the air'' in a standing cut of cars. The practice of
``bottling the air'' occurs when a train crew sets out cars from a
train with the air brakes applied and the angle cocks on both ends of
the train closed, thus trapping the existing compressed air and
conserving the brake pipe pressure in the cut of cars they intend to
leave behind. This practice has the potential of causing, first, an
unintentional release of the brakes on these cars and, ultimately, a
runaway. A full discussion of the hazards related to this practice is
contained in the preamble to the final rule related to freight power
brakes. See 66 FR 4156-57. Virtually all railroads currently prohibit
this practice in their operating rules.
The final rule also mandates a minimum number of hand or parking
brakes that must be applied on an unattended locomotive consist or
train. Due to the relatively short length and low tonnage associated
with passenger trains, FRA does not believe that the more stringent
provisions contained in Sec. 232.103(n)(3) are necessary in a
passenger train context. Thus, the final rule only requires that at
least one hand or parking brake be applied in these circumstances;
however, the number of applied hand or parking brakes will vary
depending on the process or procedures developed and implemented by
each covered railroad. In addition, the final rule requires railroads
to develop and implement procedures for securing locomotives not
equipped with a hand or parking brake and instructions for securing any
locomotive left unattended. As noted previously, FRA is not aware of
any railroad which does

[[Page 61844]]

not already have the required procedures or processes in place. Thus,
FRA believes that these requirements will impose no burden on passenger
operations covered by 49 CFR part 238.
In addition to addressing specific issues relating to securing
unattended equipment, the final rule also incorporates and adopts the
industry's best practices related to the inspection and testing of hand
and parking brakes. The final rule requires that the hand or parking on
other than MU locomotives be inspected no less frequently than every
368 days and that a record (either stencil, blue card, or electronic)
be maintained and provided to FRA upon request. The final rule also
requires the application and release of the hand or parking brake at
each periodic mechanical inspection of passenger cars and unpowered
vehicles under Sec. 238.307 and requires a complete inspection of
these components every 368 days, with a record being maintained of this
annual inspection. The inspection and testing intervals as well as the
stenciling and record keeping requirements retained in the final rule
are consistent with the current practices in the industry and will
impose no additional burden on the industry.

V. Section-by-Section Analysis

Amendments to 49 CFR Part 229

Section 229.5 Definitions
The final rule is retaining the proposed technical clarification to
the definition of ``MU locomotive'' contained in this section. FRA did
not receive any comments on this proposed modification. Thus, FRA is
retaining the modification in this final rule without change. Section
229.5 contains a number of definitions that define different types of
locomotives covered by the various provisions contained in part 229.
These include the general definition of ``locomotive'' as well as
various types of locomotives including: ``control cab locomotive,''
``DMU locomotive,'' and ``MU locomotive.'' Representatives of various
railroads and equipment manufacturers have expressed concern over these
definitions, contending that they were confusing and contained some
overlap making it difficult to determine which category a particular
locomotive fell within.
The definition of ``MU locomotive'' was recently reissued in its
full length when the final rule on Locomotive Event Recorders was
published on June 30, 2005. See 70 FR 37939. Subparagraph (2) of the
current definition identifies an MU locomotive as ``a multiple unit
operated electric locomotive * * * (2) without propelling motors but
with one or more control stands.'' This portion of the MU locomotive
definition is identical to the definition of ``control cab
locomotive.'' In an effort to add clarity and to definitively
distinguish a MU locomotive from a control cab locomotive, the final
rule adds some limiting language to the definition of what constitutes
a MU locomotive. Historically, FRA has only considered a locomotive
without propelling motors to be a MU locomotive if it has the ability
to pick-up primary power from a third rail or a pantograph.
Consequently, the final rule adds this language to the existing
definition of MU locomotive to make it consistent with FRA's historical
enforcement and interpretation of the regulation.
Section 229.31 Main Reservoir Tests
The final rule retains the proposed amendments to paragraphs (a)
and (c) of this section to provide the manufacturers of main reservoirs
the option to test main reservoirs pneumatically rather than
hydrostatically as currently mandated. Other than APTA's comments
supporting the provisions, FRA received no comments on the proposed
amendments. The modifications will permit a main reservoir to receive a
pneumatic test before it is originally placed in service or before an
existing main reservoir is placed back in service after being drilled.
As discussed in detail in Section B of the Technical Background portion
of this document, the ASME code currently utilized by all manufacturers
of main reservoirs allows for the pneumatic testing of the reservoirs
when the introduction of liquid cannot be tolerated. The introduction
of water to perform hydrostatic testing on main reservoirs creates a
problem because if the liquid is not completely removed and the
reservoir interior completely dried, the moisture results in poor
adhesion or a lower coating of film than required. This condition has
the potential of causing interior corrosion and premature failure of
the reservoir.
The rationale for originally requiring that the main reservoirs be
tested hydrostatically was based on the safety concerns should a main
reservoir catastrophically fail during the testing. The likelihood of
injury is minimized by having the reservoir filled with a liquid rather
than air. However, since the original drafting of the locomotive
regulations, manufacturers of reservoirs have implemented and developed
both equipment and procedures to ensure that test personnel are
adequately shielded when conducting the testing. The manufacturers have
been performing pneumatic testing on reservoirs for years and FRA is
not aware of any injury related to such testing in manufacturer-
controlled facilities. Thus, the safety concerns originally attached to
pneumatic testing have been minimized, if not eliminated, when
conducted at properly equipped manufacturer facilities.
In addition to the safety benefits related to pneumatic testing,
FRA recognizes that all passenger car main reservoirs are pneumatically
tested after fabrication and before the application of an interior
protective coating. This process is utilized so that reservoirs may be
repaired if the reservoir does not pass the initial the test
requirements. If the interior protective coating were to be applied
prior to testing, any weld repairs could not be performed, as the
interior coating would be damaged. Thus, in recognition of current
industry practice and in an effort to provide compliance options that
are beneficial from a safety perspective, the final rule will to permit
the manufacturers of main reservoirs to utilize pneumatic testing to
meet the requirements contained in paragraphs (a) and (c) of this
section. FRA believes that this flexibility increases both the safety
and efficiency of testing newly manufactured main reservoirs and
reservoirs that are newly drilled and tested at a manufacturer's facility.
It should be noted that the final rule limits the ability to
conduct pneumatic testing of the main reservoirs to only those
facilities with appropriate safeguards in place to ensure the safety of
the personnel conducting the testing. After a reservoir is installed on
a locomotive, FRA believes that hydrostatic testing would be the only
testing method that adequately ensures the safety and protection of the
personnel that are performing the test or working near the installed
reservoir. In order to make this intent clear, paragraph (c) contains
language that plainly states that pneumatic testing of a reservoir
currently in use and newly drilled may only be conducted by a
manufacturer of main reservoirs in a suitably safe environment. In
other circumstances, a hydrostatic test of the reservoir must be conducted.
Section 229.47 Emergency Brake Valve
Section 229.137 Sanitation, General Requirements
The final rule is retaining the proposed technical clarification to
paragraph (b) of Sec. 229.47 and paragraph

[[Page 61845]]

(b)(1)(iv) of Sec. 229.137. FRA did not receive any comments on these
proposed clarifications and is retaining them in this final rule
without change. FRA is making these clarifications in order to ensure
that these sections are consistent with the new definition of ``DMU
locomotive.'' The recently published final rule on Locomotive Event
Recorders added the definition of ``DMU locomotive'' to 49 CFR part
229. See 70 FR 37920 (June 30, 2005). This definition was added to part
229 in order to specifically identify diesel-powered multiple unit
locomotives. These types of locomotives are just starting to be used by
a small number of passenger railroads and FRA wants to be sure that
they are adequately addressed by the safety standards contained in part
229. As these types of locomotives are fairly unique, they do not fit
cleanly within the regulations as they pertain to traditional
locomotives and MU locomotives. In some instances they are treated as
traditional locomotives and in others they are treated as MU
locomotives. In an effort to clarify the applicability of various
provisions contained in part 229, FRA is amending Sec. Sec. 229.47 and
229.137 to specifically state that DMU locomotives are covered by these
provisions. These clarifications are consistent with FRA's historical
application of the regulations to DMU locomotives.

Amendments to 49 CFR Part 238

Section 238.5 Definitions
The final rule retains the proposed clarifying amendments to the
definitions section contained in part 238 by revising the definition of
``actuator'' currently contained in regulation and by adding a new
definition for ``piston travel indicator.'' FRA did not receive any
comments in response to the proposed amendments and is retaining them
in this final rule without change. The term ``actuator'' used by FRA in
the Passenger Equipment Safety Standards final rule is a term that many
members of the passenger industry associate and use to identify a
specific self-contained brake system component that typically consists
of a cylinder, piston, and piston rod. FRA was not intending to
identify this brake system component when it included the term in Sec.
238.313(g)(3) of the original regulation. FRA also notes that the term
actuator is used in the definition of ``piston travel'' in this section
to refer to the brake system component described above.
In order to prevent and limit any confusion on the part of the
regulated community, the final rule modifies the definition of
``actuator'' to describe the brake system component to which the term
has traditionally been attached and which is what the term refers to in
the definition of ``piston travel.'' In addition, the final rule is
adding a new term to part 238 to describe the device originally defined
as an ``actuator.'' Therefore, the final rule adds the term ``piston
travel indicator'' to describe a device directly activated by the
movement of the brake cylinder piston, the disc actuator, or the tread
brake unit cylinder piston that provides an indication of piston
travel. The final rule also replaces the term ``actuator'' in Sec.
238.313(g)(3) with the term ``piston travel indicator.''
Section 238.17 Movement of Passenger Equipment With Other Than Power
Brake Defects
The final rule retains the proposed conforming change in paragraph
(b) of this section to acknowledge the flexibility being provided Sec.
238.303(e)(17) of this final rule relating to inoperative or
ineffective air compressors on MU passenger equipment. As discussed in
detail above in the Technical Background portion of the preamble and in
the section-by-section discussion related to Sec. 238.303 below, the
final rule permits certain MU passenger equipment with inoperative or
ineffective air compressors to continue to be used in passenger service
until the next exterior calendar day mechanical inspection.
Section 238.21 Special approval procedures
The final rule retains the proposed conforming changes to
paragraphs (a) and (c) of this section to recognize the requirements
relating to safety appliances on both existing and new passenger
equipment contained in Sec. Sec. 238.229 and 238.230 of this final
rule. These conforming changes recognize the provisions of those
sections that require a railroad to obtain FRA approval of welded
safety appliance attachment or of an industry-wide standard relating to
safety appliance arrangements on new passenger equipment of unique design.
Section 238.229 Safety appliances--general
In this section, FRA is incorporating and clarifying its long-
standing administrative interpretations regarding the attachment of
safety appliances and safety appliance brackets and supports. FRA is
also requiring an inspection program for permitting existing passenger
equipment to remain in service in lieu of requiring retro-fitting of
the equipment to eliminate welded safety appliance brackets or
supports. FRA adopted these provisions unilaterally and did not seek a
recommendation or concurrence from RSAC. These issues are discussed
above in the Technical Background section of the preamble to the final
rule and in the preamble to the NPRM. See 70 FR 73075-78. As FRA sees
no benefit in reproducing the entire discussion here, interested
parties should refer to those discussions when considering the
provisions contained in this section of the final rule.
Based on consideration of the information provided by the RSAC
Working Group when developing the NPRM as well as the comments
submitted in response to the NPRM, the final rule is modifying some of
the provisions proposed in the NPRM related to the attachment of safety
appliances on passenger equipment. The final rule retains many of the
provisions proposed in the NPRM but is being expanded to adopt APTA's
recommendations for determining when a welded safety appliance bracket
or support will be considered part of the car body. FRA believes that
welding technologies have improved significantly over the last several
decades. In addition, passenger operations provide a unique environment
suitable to the use of welding as a means of attachment in certain
situations. Moreover, FRA believes that APTA has provided a viable and
enforceable specification for ensuring that welded safety appliance
brackets and supports are securely, safely, and reliably attached to
the equipment on which it is placed. Volpe reviewed APTA's welding
specifications, at FRA's request, and confirmed that safety appliance
brackets or supports welded to the car body in accordance with the
standards recommended by APTA would be at least as secure and reliable
as a bracket or support attached with a mechanical fastener. FRA
further believes that BRC's concerns are addressed by the final rule
provisions because the final rule will only consider welded safety
appliance brackets or supports to be part of the car body if stringent
and verifiable standards are utilized when making the welded
connection. In addition, the final rule will allow existing equipment
with welded brackets or supports to continue in service only if it is
inspected and repaired in accordance with the strict inspection and
repair provisions contained in the rule. Consequently, FRA is including
APTA's recommended specifications related to welded safety

[[Page 61846]]

appliance brackets and supports in this final rule with slight
modification for clarity and enforceability.
Paragraphs (a) and (b) of this section contain FRA's long-standing
administrative interpretations prohibiting the use of welding as a
means of attaching or repairing either a safety appliance or a safety
appliance bracket or support. Paragraph (a) makes clear that all
passenger equipment continues to be subject to the statutory provisions
contained in 49 U.S.C. chapter 203 as well as the regulatory provisions
contained in 49 CFR part 231. Paragraph (b) incorporates FRA's long-
standing administrative interpretations regarding the welding of safety
appliances and their supports. This paragraph makes clear that safety
appliances and their brackets or supports are to be mechanically
fastened to the car body and specifically states that welding as a
method of attachment is generally prohibited. This paragraph also
explains that FRA permits the welding of a brace or stiffener used in
connection with mechanically fastened safety appliance and provides a
definition of what constitutes a ``brace'' or ``stiffener'' in these
arrangements.
Paragraph (c) contains specific exceptions to FRA's general
prohibition related to welded safety appliances and welded safety
appliance brackets and supports for passenger equipment placed in
service prior to January 1, 2007. The final rule reorganizes this
paragraph from that proposed in the NPRM in order to provide clarity
and to prevent any misunderstanding. This paragraph only addresses
welded safety appliances on existing passenger equipment (i.e.,
equipment placed in service prior to January 1, 2007). Provisions
related to welded safety appliances on new passenger equipment (i.e.,
equipment placed in service on or after January 1, 2007) are contained
in Sec. 238.230 of this final rule. FRA believes that the segregation
of these two types of vehicles provides a better understanding of the
provisions related to each and allows them to be handled differently.
Paragraph (c)(1) retains the proposed exception for passenger
equipment placed in service prior to January 1, 2007, equipped with a
safety appliance that is mechanically fastened to a bracket or support
that is welded to the vehicle. Rather than require the retrofitting of
existing equipment that currently contain safety appliance brackets or
supports that are attached to the equipment by welding, FRA will permit
the equipment to remain in service provided that the equipment is
identified, inspected, and handled for repair in accordance with the
provisions contained in paragraphs (e) through (k) of this section. FRA
believes the identification and inspection plan required in this final
rule will ensure the safe operation of equipment currently in service.
The final rule also expands this paragraph to provide an exception
for welded safety appliance brackets or supports that are determined to
meet the requirements for being considered part of the car body
contained in Sec. 238.230(b)(1) of this final rule. This paragraph
exempts the safety appliance brackets and supports from any further
periodic inspections if it is determined during the initial inspection
that they are part of the car body, do not contain a defect, and are
identified to FRA in writing. FRA wishes to make clear that all
existing equipment with welded safety appliance brackets or supports
must be given an initial inspection pursuant to paragraphs (g) through
(i) of this section and must be handled for remedial action pursuant to
paragraph (j) of this section. Thus, safety appliance brackets and
supports determined to be part of the car body and meeting the other
restrictions contained in this paragraph are only excepted from the
future 6-year periodic inspections provided for in paragraph (g)(1) of
this section.
Paragraph (c)(2) of this final rule is modified from that proposed
in the NPRM to apply only to existing passenger equipment with safety
appliances directly welded to the equipment. As noted above, FRA
believes that this makes the rule easier to understand. Provisions
related to new passenger equipment with safety appliances directly
welded to the equipment are contained in Sec. 238.230(b)(2) of this
final rule. This paragraph acknowledges the fact that in some
instances, due to the design of a vehicle, safety appliances are
required to be directly attached to a piece of equipment by welding.
Other than this clarifying change, the provision is identical to that
proposed in the NPRM. This paragraph requires railroads to identify
each piece of existing passenger equipment outfitted with a safety
appliance welded directly to the vehicle and requires that any such
safety appliances be inspected and handled in accordance with the
inspection and repair provisions contained in paragraphs (g) through
(k). FRA notes that only the specifically identified safety appliances
will be required to be so inspected and handled.
Paragraph (d) contains standards to clarify when a weld on a safety
appliance and a safety appliance bracket or support is to be considered
defective. This paragraph has been slightly modified from that proposed
in the NPRM. In its comments, APTA recommended that a weld only be
considered defective if it contained a crack. APTA asserted that
including any anomaly affecting the strength of the weld would result
in subjective application of the rule and would require inspectors to
be specially trained to identify such anomalies. Moreover, APTA asserts
that any failure of a weld would begin with a small crack that would
grow very slowly. In the unlikely event that a crack were to even
develop, it would take months or years for failure of the weld to occur
and such cracks would be easy to detect with the visual inspections
performed on safety appliances by railroads on a daily basis. FRA
agrees with APTA's assertions. Thus, the final rule amends the proposed
provision by limiting the definition of a weld defect to being a crack
or fracture of any discernible length or width. FRA believes this
approach is consistent with existing welding technology, ensures
consistent application of the regulation, and will avoid excessive
training of inspectors by limiting their inspection criteria. This
paragraph also requires that any repairs made to a defective weld must
be made in accordance with the inspection plans and remedial action
provisions contained in paragraph (g) and (j) of this section.
Paragraphs (e) and (f) retain the proposed provisions relating to a
railroad's identification of all existing passenger equipment that
contains a welded safety appliance bracket or support. FRA did not
receive any comment directly related to these provisions in response to
the NPRM and is retaining them without change in this final rule.
Paragraph (e) requires the listing to be submitted to FRA by no later
than December 31, 2006, and permits railroads to update the list if
they identify equipment after that date. These paragraphs permit
railroads to exclude certain safety appliances from the inspection
provisions provided the railroad fully explains the basis for any such
exclusion. FRA envisions such exclusions to be limited to situations
where inspection of the weld is impossible or in situations where the
size and quality of a weld are such to make inspection unnecessary
(i.e., where the bracket or support is a structural member of the car).
Paragraph (f) makes clear that FRA reserves the right to disapprove any
exclusion proffered by a railroad by providing

[[Page 61847]]

written notification to the railroad of any such decision.
Paragraphs (g) through (j) contain the inspection and repair
criteria for any equipment identified with a welded safety appliance or
welded safety appliance bracket or support. These paragraphs contain
provisions concerning when visual inspections of the involved safety
appliances would be required to be performed and address the
qualifications of the individuals required to perform the inspections
as well as the procedures to be utilized when performing the
inspections. FRA considered various methods for inspecting the welds on
the involved equipment including various types of non-destructive
testing on smaller numbers of the involved welds. However, FRA
continues to believe that periodic visual inspections of all the
identified welds is the most effective and cost-efficient method of
ensuring the proper condition of the attachments.
Paragraph (h) identifies a number of different types of individuals
that could be utilized by a railroad to perform the required visual
inspections of welded safety appliances and welded safety appliance
brackets and supports. FRA believes that these inspectors must be
properly trained and qualified to identify defective weld conditions.
Rather than limit a railroad's ability to utilize a number of its
available personnel, FRA has attempted to list a number of different
types of persons that would have the ability to conduct the required
visual inspections based on railroad provided training or due to being
certified under an accepted existing industry, national or
international welding standard. This paragraph has been slightly
modified from that proposed in the NPRM in order to remain consistent
with this approach. The final rule recognizes that there are a number
of existing national and international welding standards under which a
person may be certified and that these standards may be modified on a
regular basis. Thus, rather than attempting to incorporate these
existing standards into the regulation, the final rule identifies many
of the currently existing standards and makes clear that a more revised
version of the identified standard is acceptable provided it is
equivalent to the standard it updates. The final rule also acknowledges
that there may be other nationally or internationally recognized
welding standards that would be equivalent to those specifically
identified and makes clear that certification under these other
unspecified standards would be acceptable provided they are equivalent
to one of the specifically identified welding certification standards.
FRA expects that most railroads will utilize a qualified
maintenance person (QMP) to conduct the inspections, as they are the
individuals recognized to conduct most of the other brake and
mechanical inspections required under part 238. FRA notes that a QMP
would be required to receive at least four hours of training specific
to weld defect identification and weld inspection procedures to be
deemed qualified to perform the required periodic inspections. FRA did
not receive any comments suggesting that more training of QMP's would
be necessary and is retaining the four hour training requirement in
this final rule.
Paragraph (j) contains remedial actions that are required to be
utilized in situations where a welded safety appliance or safety
appliance bracket or support is found defective either during the
periodic visual inspections or while otherwise in service. FRA did not
receive any comments specifically related to the provisions contain in
this section in response to the NPRM and is retaining them without
change in this final rule. This paragraph makes clear that unless the
defect is known to be the result of crash damage, the railroad must
conduct a failure and engineering analysis to determine the cause of
the defective condition. The remedial action provisions permit a
defective welded safety appliance or safety appliance bracket or
support to be reattached to a vehicle by either mechanical fastening or
welding if the defective condition is due to crash damage or improper
construction. Any welded repair would be required to be conducted in
accordance with APTA's Standard for Passenger Rail Vehicle Structural
Repair, SS-C&S-020-03 (September 2003).
In conformance with Office of Management and Budget (OMB) Revised
Circular A-119 (February 10, 1998), FRA is using a voluntary national
standard in this paragraph of the final rule. FRA's use of a standard
established by APTA is a means of establishing technical requirements
without increasing the volume of the Code of Federal Regulations. See 1
CFR part 51. In this final rule, FRA has incorporated the most current
version of the APTA standard, however FRA understands that over time,
APTA may revisit this standard and may update it. In such instances,
FRA may approve the use of a more recent standard via the special
approval procedures contained in Sec. 238.21. FRA also intends to
regularly update the rule, most likely through the use of technical
amendments, and would incorporate APTA's revised standards at that
time. Federal law requires that a publication incorporated by reference
be identified by its title, date, edition, author, publisher, and
identification number, this final rule incorporates the most current
APTA standard only. See 1 CFR 51.9(b)(2).
In instances where the defective condition is due to inadequate
design, such as unanticipated stresses or loads during service, the
final rule requires that the safety appliance be mechanically attached,
if possible, and requires railroads to develop a plan for submission to
FRA detailing a schedule for mechanically fastening the safety
appliances of safety appliance brackets or supports on all cars in that
series of cars. The final rule retains these strict provisions because
where inadequate design causes failure of the safety appliances it is
an indication that there is likely a systemic problem for all cars
similarly constructed.
Paragraph (k) retains the proposed requirement related to
maintaining records of both the inspections and any repairs made to
welded safety appliances or welded safety appliance brackets or
supports. FRA did not receive any comments related to these provisions
in response to the NPRM and is retaining them in this final rule
without change. These records will not only aid FRA's enforcement of
the final rule provisions but will also provide invaluable information
regarding the longevity and integrity of welded appliances and brackets
or supports. The records required in this paragraph may be maintained
in any format (written, electronic, etc.), but must be made available
to FRA upon request.
Section 238.230 Safety Appliances--New Equipment
This section contains requirements related to safety appliances on
passenger equipment placed into service after January 1, 2007. This
section reiterates FRA's long-standing prohibition on welding of safety
appliance brackets or supports. Paragraph (b) incorporates FRA's long-
standing administrative interpretations regarding the welding of safety
appliances and their supports. This paragraph makes clear that safety
appliances and their brackets or supports are to be mechanically
fastened to the car body and specifically states that welding as a
method of attachment is generally prohibited except as specifically
provided in this section. Paragraphs (b)(1) through (b)(3) contain the
specific exceptions to FRA general prohibition on welded safety

[[Page 61848]]

appliances and their brackets or supports.
Paragraph (b)(1) contains the criteria for determining when a
safety appliance bracket or support will be considered part of the car
body and thus, obviating the need to mechanically fasten the bracket or
support to the body of the piece of equipment. As discussed above, FRA
carefully considered suggestions that would allow limited use of
welding to attach safety appliances brackets and supports on new
passenger equipment. FRA believes that welding technologies have
improved significantly over the last several decades. In addition,
passenger operations provide a unique environment suitable to the use
of welding as a means of attachment in certain situations. Moreover,
FRA believes that APTA has provided a viable and enforceable
specification for ensuring that welded safety appliance brackets and
supports are securely, safely, and reliably attached to the equipment
on which it is placed. Volpe reviewed APTA's welding specifications, at
FRA's request, and confirmed that safety appliance brackets or supports
welded to the car body in accordance with the standards recommended by
APTA would be at least as secure and reliable as a bracket or support
attached with a mechanical fastener. FRA further believes that BRC's
concerns are addressed by the final rule provisions because the final
rule will only consider welded safety appliance brackets or supports to
be part of the car body if the stringent and verifiable standards
contained in this paragraph are followed when making the welded
connection. Consequently, FRA is including APTA's recommended
specifications related to welded safety appliance brackets and supports
in this paragraph with slight modification for clarity and enforceability.
Paragraph (b)(1) contains specific criteria that must be met in
order for a safety appliance bracket or support to be considered part
of the car body. These include such things as: The surface to which the
bracket or support is welded; the surface area of the weld; the type
and size of the weld; the welding process that must be utilized; and
the qualifications of the individual performing the weld. This
paragraph also requires that any such bracket or support be inspected
by a qualified person prior to being placed in service. This inspection
may be conducted by either the manufacturer or the railroad; provided,
a record of the inspection is maintained and made available to FRA upon
request.
In an effort to remain realistic and practical, paragraphs (b)(2)
and (b)(3) of this section acknowledge that there may be instances
where the design of a vehicle makes it impracticable to mechanically
attach a safety appliance or a safety appliance bracket or support and
necessitates the need to weld the safety appliance or the bracket or
support. These paragraphs are identical to those proposed in the NPRM
but have been reorganized for clarity. FRA did not receive any comments
on these specific provisions and is retaining them in this final rule.
FRA intends to make clear that the flexibility to utilize welding in
these applications will be narrowly construed and will only be
permitted in instances where a clear nexus between the equipment design
and the need to weld a safety appliance or a safety appliance bracket
or support exists.
These paragraphs require a railroad to identify any such equipment
prior to placing it in service and requires the railroad to clearly
describe the necessity to weld the safety appliance or the bracket or
support. In the case of a welded safety appliance bracket or support
not considered to be part of the car body, the railroad must receive
FRA's approval prior to placing the equipment in service and must
describe the industry standard followed when making such an attachment.
In the case of a safety appliance welded directly to the vehicle, the
railroads must provide a detailed rationale explaining how the design
of the vehicle or placement of the safety appliance requires the direct
welding of the appliance to the equipment prior to placing the
equipment in service. Paragraph (b)(2) and (b)(3) make clear that any
new equipment containing a welded safety or a welded safety appliance
bracket or support not considered part of the car body are required to
be inspected and handled in accordance with the provisions contained in
Sec. 238.229(g) through (k).
Paragraph (c) is a new paragraph being added to this final rule to
make clear that a welded safety appliance or a welded safety appliance
bracket or support will be considered defective if any portion of the
weld is considered defective pursuant to Sec. 238.229(d) of this part.
FRA intends to make clear that any welded safety appliance bracket or
support, even if considered part of the car body, is covered by this
provision. This paragraph also makes clear that defective welds on
safety appliances and safety appliance brackets and supports will be
assessed under the penalty schedule contained in 49 CFR part 231,
Appendix A. This paragraph further requires that any repair conducted
to a welded safety appliance bracket or support considered part of the
car body is to be conducted in accordance with APTA Standard SS-C&S-
020-03 that is incorporated by reference in Sec. 238.229.
Paragraph (d) retains the proposed requirements that would permit
the submission of industry-wide safety appliance arrangement standards
to FRA for its approval. FRA did not receive any specific comments on
these provisions in response to the NPRM and is retaining them in this
final rule without change. As discussed in detail in the Section D of
the Technical Background portion of the preamble, the Railroad Safety
Appliance Standards currently contained in 49 CFR part 231 address a
very limited number of different types of passenger equipment. The
criteria for most of today's new types of passenger car construction
are found within 49 CFR 231.18--Cars of special construction. This
results from the fact that modern technology in construction of car-
building often does not lend itself to ready application of the
existing 49 CFR part 231 requirements. Rather, the designer must adapt
several different requirements to meet as closely as possible
construction of specific safety appliance arrangements in order to
obtain compliance. Most passenger cars today are constructed outside
the United States, and this has exacerbated the problem of varying
interpretations of regulations and resulting safety appliance
arrangements. At times, different requirements are applied to cars of
similar design where both could have been constructed in the same
manner. Substantial resources are spent on a regular basis by all
parties concerned in review sessions to determine if a car is in
compliance prior to construction; and even when the cars are delivered,
problems have arisen.
In attempt to limit these problems, paragraph (d) provides a
process by which the industry may request approval of safety appliance
arrangements on new equipment considered to be cars of special
construction under 49 CFR part 231. This paragraph will permit the
industry to develop standards to address many of the new types of
passenger equipment introduced into service. The final rule will
require these standards, and supporting documentation to be submitted
to FRA for FRA approval pursuant to the special approval process
already contained in Sec. 238.21 of this regulation. This paragraph
makes clear that any approved standard will be enforceable against any
person who violates or causes the violation of the approved standard
and that the penalty

[[Page 61849]]

schedule contained in Appendix A to 49 CFR part 231 will be used in
assessing any applicable civil penalty.
The goal of this final rule is to develop consistent safety
appliance standards for each new type of passenger car not currently
identified in the Federal regulations that ensure the construction of
suitable safety appliance arrangements in compliance with 49 CFR part
231. FRA believes the final rule will reduce or eliminate reliance upon
criteria for cars of special construction, will improve communication
of safety appliance requirements to the industry, and will facilitate
regulatory compliance where clarification or guidance is necessary.
Section 238.231 Brake system
Paragraph (b) retains the proposed provision relating to the design
of passenger equipment placed in service for the first time on or after
September 9, 2002. The final rule slightly amends the language of this
provision for purposes of clarity and consistency. The final rule also
retains the proposed additional inspection criteria for such equipment
if it is not designed to permit visual observation of the brake
actuation and release from outside the plane of the equipment. A full
discussion of the development of these provisions is provided in
Section C of the Technical Background portion of this document and need
not be reiterated here. The plain language of paragraph (b), as issued
in the 1999 Passenger Equipment Safety Standards final rule, required
new equipment to be designed to allow direct observation of the brake
actuation and release without fouling the equipment. The preamble to
that final rule discusses alternative design approaches using some type
of piston travel indicator or piston cylinder pressure indicator on
equipment whose design makes it impossible to meet this requirement.
See 64 FR 25612 (May 12, 1999).
Subsequent to the issuance of the 1999 final rule, FRA recognized
that the envisioned ``indicators'' discussed in the preamble of the
final rule were ahead of the technological curve for passenger
equipment currently being delivered and that which may be delivered in
the future. Thus, FRA noted its willingness to the RSAC and the Task
Force to consider alternatives to requiring piston travel indicators on
such equipment. FRA and the members of the Task Force believed that the
best approach to the issue was to provide additional inspection
protocols for new equipment designed in a manner that makes observation
of the actuation and release of the brakes impossible from outside the
plane of the equipment in lieu of mandating the use of untested and
potentially unreliable piston travel indicators. Because the necessary
design of some new equipment makes the daily inspections of the
equipment more difficult, does not permit visual observation of the
brake actuation and release from outside the plane of the vehicle and
because no reliable mechanical device is currently available to provide
a direct indication of such, the NPRM proposed additional inspection
protocols for this type of equipment. FRA did not receive any comments
directly related to the proposed inspection protocols or the proposed
approach to this issue. However, FRA is amending the proposed language
to accurately capture the intent of the provision. Thus, this final
rule language clearly identifies the design requirement that is to be
met when practicable and details equipment and inspection requirements
for equipment not meeting the general design requirement. The
clarifying changes made in this final rule are consistent with the
intent of the provision as originally proposed.
The inspection regiment referenced in paragraph (b) will be
applicable to equipment placed in service on or after September 9,
2002, the design of which does not permit actual visual observation of
the brake actuation and release. The requirements related to this type
of equipment are similar to those contained in a FRA Safety Board
letter dated October 19, 2004, granting that portion of the
Massachusetts Bay Transportation Authority's (MBTA) waiver petition
seeking relief from the requirements of Sec. 238.231(b) for 28
Kawasaki bi-level coaches. See Docket Number FRA-2004-18063. The final
rule requires such equipment to be equipped with either piston travel
indicators or brake indicators as defined in Sec. 238.5. The equipment
will also be required to receive a periodic brake inspection by a QMP
at intervals not to exceed five in-service days and the inspection will
have to be performed while the equipment is over an inspection pit or
on a raised track. In addition, the railroad performing the inspection
will be required to maintain a record of the inspection consistent with
the existing record requirements related to Class I brake tests. The
specific inspection criteria are discussed in more detail in the
section-by-section analysis related to Sec. 238.313. FRA believes that
these additional inspection requirements will ensure the safety and
proper operation of the brake system on equipment which does not permit
actual visual observation of the brake actuation and release without
fouling the vehicle.
FRA received one suggestion from APTA regarding the identification
of cars that will be covered by this paragraph and the additional
inspection requirements contained in Sec. 238.313(j). APTA wanted FRA
to make clear that the railroad and car manufacturer would make an
initial determination regarding the applicability of the requirements
contained in this paragraph and that FRA would oversee these
determinations for accuracy. FRA agrees with this position as the
railroad and car manufacturer are in the best position to make an
initial determination. FRA will exercise its oversight when conducting
sample car inspections as well as its regular inspection activity. FRA
notes that the additional inspection requirements would be applicable
to new cars constructed similar to the low-slung bi-level passenger
coaches that were the subject of MBTA's waiver request discussed above.
Paragraph (h) of the final rule retains the proposed provisions
related to the inspection of locomotive hand or parking brakes as well
as proposed provisions addressing the securement of unattended
equipment. Other than APTA's brief statement in support of the
provisions, FRA did not receive any comments on these proposed
provisions and is retaining them in this final rule without change. The
final rule modifies existing paragraph (h)(3) to require that the hand
or parking brake on other than MU locomotives be inspected no less
frequently that every 368 days and that a record (either stencil, blue
card, or electronic) be maintained and provided to FRA upon request.
Similar provisions were previously contained in Sec. 232.10, prior to
part 232's revision in January of 2001. However, FRA inadvertently
failed to include hand brake inspection provisions in its original
issuance of the Passenger Equipment Safety Standards. The inspection
and testing intervals as well as the stenciling and record keeping
requirements contained in paragraph (b)(3) are consistent with the
current industry practices and will impose no additional burden on the
industry.
The final rule also retains the proposed addition of a new
paragraph (h)(4) that contains specific requirements related to the
securement of unattended equipment. A detailed discussion regarding the
development of these provisions is contained in Section E of the
Technical Background portion of the preamble. FRA believes that the
rational for addressing these issues on freight operations is equally
applicable to passenger operations. The preamble

[[Page 61850]]

to the final rule related to 49 CFR part 232 contains an in-depth
discussion of the need to address these issues. See 66 FR 4156-58
(January 17, 2001). The approach contained in this final rule is also
consistent with the guidance contained in FRA Safety Advisory 97-1. See
62 FR 49046 (September 15, 1997). The requirements contained in this
paragraph are consistent with and based directly on current passenger
industry practice. Thus, in FRA's view, the provisions will have no
economic or operational impact on passenger operations but will ensure
that these best practices currently adopted by the industry are
followed and complied with by making them part of the Federal regulations.
Paragraph (h)(4) requires that unattended equipment be secured by
applying a sufficient number of hand or parking brakes to hold the
equipment and will require railroads to develop and implement a process
or procedure to verify that the applied hand or parking brakes will
hold the equipment. The final rule also prohibits a practice known as
``bottling the air'' in a standing cut of cars. A full discussion of
the hazards related to this practice is contained in the preamble of
the final rule related to freight power brakes. See 66 FR 4156-57.
Virtually all railroads prohibit this practice in their operating
rules, thus FRA does not believe any burden is being imposed on the
railroads by including it in this rule.
Paragraph (h)(4) also establishes the minimum number of hand or
parking brakes that must be applied on an unattended locomotive consist
or train. Due to the relatively short length and low tonnage associated
with passenger trains, FRA does not believe that the more stringent
provisions contained in Sec. 232.103(n)(3) are necessary in a
passenger train context. Thus, this paragraph requires that at least
one hand or parking brake be fully applied on an unattended passenger
locomotive consist or passenger train; however, the number of applied
hand or parking brakes will vary depending on the process or procedures
developed and implemented by each covered railroad.
Members of the Task Force sought clarification as to the meaning of
the term ``fully applied'' as it relates to certain passenger equipment
equipped with parking brakes. With the introduction of the spring
applied parking brake, the parking brake can be ``conditioned to
apply'' but may not be fully applied. Many spring applied parking brake
arrangements usually incorporate an anti-compounding feature so the
service brake application and parking brake application are not
simultaneously applied. This arrangement is utilized to limit the
thermal input that may occur if the forces from the service brake
application and parking brake application are applied simultaneously.
When the train is left unattended, the operator would ``condition'' the
parking brake for application through a cab switch push button or by
simply deactivating the cab through normal shutdown procedures. The
brake equipment is either placed in an emergency brake condition or the
brake pipe is vented to zero pressure at a service reduction rate. This
brake equipment operation would result in brake cylinder pressure being
applied to the brake units. The brake cylinder pressure provides
sufficient force to create an equivalent force to that of the parking
brake. If the equipment is not left on a source of compressed air, the
brake cylinder pressure may be slowly depleted. When the brake cylinder
pressure is gradually reduced, the parking brake gradually applies so
that below a prescribed brake cylinder pressure, the parking brake is
fully applied. In light of the preceding discussion, FRA intends to
make clear that a spring applied parking brake will be considered
``fully applied'' under paragraph (h)(4) if all steps have been take to
permit its full application (i.e., ``conditioned to apply'').
In addition, paragraph (h)(4) requires railroads to develop and
implement procedures for securing locomotives not equipped with a hand
or parking brake and develop, implement, and adopt instructions for
securing any locomotive left unattended. As noted previously, FRA is
not aware of any railroad which does not already have these procedures
or processes in place. Thus, FRA believes that these requirements will
not impose any burden on passenger operations covered by 49 CFR part 238.
Section 238.303 Exterior calendar day mechanical inspection of
passenger equipment
Paragraph (e)(17) contains provisions requiring that air
compressors, on passenger equipment so equipped, be in effective and
operative condition. The provisions also provide flexibility to permit
certain equipment found with ineffective or inoperative air compressors
at its exterior calendar day mechanical inspection to continue in
service until its next such inspection if various conditions are met by
the railroad. Other than APTA's brief statement supporting these
provisions, FRA did not receive any comments in response to the NPRM
proposing the provisions. Thus, this final rule retains the proposed
provisions without change. A full discussion regarding the development
of these proposed provisions is contained in Section A of the Technical
Background portion of the preamble.
MU passenger locomotives are generally operated as married pairs
but in some cases they can be operated as single or triple units. In
the case of the married pairs, each pair of MU locomotives share a
single air compressor. When operated in triple units, the three MU
locomotives generally share two air compressors and single-unit MU
locomotives are equipped with their own air compressor. The amount of
air required to be produced by the air compressors is based on the size
of the brake pipe and the brake cylinder reservoirs, the size of which
are based on the calculated number of brake application and release
cycles the train will encounter. In addition, the compressed air
produced by the air compressors is shared within the consist by
utilizing a main reservoir equalizing pipe or, in single pipe systems,
through the brake pipe which is then diverted to the brake cylinder
supply reservoir and other air operated devices by use of a governor
arrangement. Therefore, a passenger train set consisting of numerous MU
locomotives will have multiple air compressors providing the train
consist with the necessary compressed air. FRA agrees with the
determinations of the Task Force and the full RSAC that a loss of
compressed air from a limited number of air compressors in such a train
will not adversely effect the operation of the train's brakes or other
air-operated components on the train.
Paragraph (e)(17) permits MU train sets with a limited number of
inoperative or ineffective air compressors to continue to be used in
passenger service until the next exterior calendar day mechanical
inspection when found at such an inspection. This paragraph requires a
railroad to determine through data, analysis, or actual testing the
maximum number of inoperative or ineffective air compressors that could
be in an MU train set without compromising the integrity or safety of
the train set based on the size and type of train and the train's
operating profile. The railroad is required to submit the maximum
number of air compressors permitted to be inoperative or ineffective on
its various trains to FRA before it can begin operation under the
provision and will be required to retain and make available to FRA any
data or analysis relied on to make those determinations.
Paragraph (e)(17) also requires a qualified maintenance person (QMP) to

[[Page 61851]]

verify the safety and integrity of any train operating with inoperative
or ineffective air compressors before the equipment continues in
passenger service. In addition, the final rule requires notification to
the train crew of any inoperative or ineffective air compressors and
requires that a record be maintained of the defective condition. FRA
notes that this paragraph provides FRA with the authority to revoke a
railroad's ability to utilize the flexibility contained in this
paragraph if the railroad fails to comply with the maximum limits
established for continued operation of inoperative air compressors or
the maximum limits are not supported by credible and accurate data. FRA
believes that the provisions contained in this paragraph will ensure
the safety of passenger operations while providing the railroads
additional flexibility in handling defective or inoperative equipment.
Section 238.307 Periodic mechanical inspection of passenger cars and
unpowered vehicles used in passenger trains
Paragraphs (c)(13) and (d) retain the proposed requirements related
to the periodic inspection of hand or parking brakes on passenger cars
and other unpowered vehicles. FRA did not receive any comments related
to these provisions in response to the NPRM and is retaining them in
this final rule without change. As noted previously, FRA inadvertently
failed to include any hand brake inspection provisions in its original
issuance of the Passenger Equipment Safety Standards. Thus, FRA raised
the issue with the RSAC and the Task Force and they recommended
inclusion of various provisions regarding the inspection of hand and
parking brakes on passenger equipment.
Paragraph (c)(13) requires that the hand or parking brake on
passenger cars and unpowered vehicles used in passenger trains be
applied and released at each periodic mechanical inspection. No record
of this inspection would need to be prepared or retained. Based on
information provided at the Task Force and Working Group meetings, all
passenger operations currently conduct this type of inspection of the
hand and parking brakes at each periodic mechanical inspection.
Paragraph (d) requires a complete inspection of the hand or parking
brake as well as their parts and connections on passenger cars and
unpowered vehicles no less frequently than every 368 days. Paragraph
(d) also requires that a record (either stencil, blue card, or
electronic) be maintained and provided to FRA upon request. The
inspection and testing intervals as well as the stenciling and
recordkeeping requirements contained in this paragraph are consistent
with the current practices in the industry and will impose no
additional burden on the industry.
Section 238.313 Class I brake tests
Paragraph (g)(3) contains a conforming change to make this
paragraph consistent with the definition changes being made in Sec.
238.5 relating to the terms ``actuator'' and ``piston travel
indicator.'' As noted previously, the final rule modifies the
definition of ``actuator'' to describe the brake system component to
which the term has traditionally been attached and which is what the
term refers to in the definition of ``piston travel.'' In addition, the
final rule adds a new term to part 238 to describe the device
originally defined as an ``actuator.'' Therefore, the final rule adds
the term ``piston travel indicator'' to describe a device directly
activated by the movement of the brake cylinder piston, the disc
actuator, or the tread brake unit cylinder piston that provides an
indication of piston travel. Consequently, a conforming change is being
made in paragraph (g)(3) by replacing the term ``actuator'' with the
term ``piston travel indicator'' in order to add clarity to the
regulatory provision.
Paragraph (j) retains the proposed requirements related to the
periodic inspection of passenger equipment placed in service for the
first time on or after September 9, 2002, the design of which does not
permit actual visual observation of the brake actuation and release as
required in Sec. 238.231(b). FRA did not receive any comments
objecting to these provisions and is retaining them in this final rule
without change. A detailed discussion related to the development and
need for these provisions is contained in Section C of the Technical
Background portion of the preamble and in the section-by-section
analysis related to paragraph (b) of Sec. 238.231. As previously
noted, the periodic inspection requirements contained in this paragraph
are similar to those contained in a FRA Safety Board letter dated
October 19, 2004, granting that portion of the Massachusetts Bay
Transportation Authority's (MBTA) waiver petition seeking relief from
the requirements of Sec. 238.231(b) for 28 Kawasaki bi-level coaches.
See DOT Docket Number FRA-2004-18063.
Paragraph (j) makes clear that the periodic inspection provisions
for the identified types of equipment are in addition to all of the
other inspection provisions contained in paragraphs (a) through (i) of
this section and must be performed by a QMP. The provisions require
equipment not meeting the design requirements contained in Sec.
238.231(b)(1) to receive a periodic brake inspection at intervals not
to exceed five in-service days and the inspection must be performed
while the equipment is over an inspection pit or on a raised track. Any
day or portion of a day that a piece of passenger equipment is actually
used in passenger service constitute an ``in-service day.'' FRA
continues to believe that five in-service days is appropriate and will
permit the required inspection to be performed during weekends or on
other days when the equipment is not being used. Thus, the operational
and economic impact of this additional inspection requirement is
significantly minimized. The periodic inspection must include all of
the items and components identified in paragraphs (g)(1) through
(g)(15) of this section. In addition, the railroad performing the
periodic inspection will be required to maintain a record of the
inspection consistent with the existing record requirements related to
Class I brake tests. FRA believes that these additional inspection
requirements will ensure the safety and proper operation of the brake
system on equipment which does not permit actual visual observation of
the brake actuation and release without fouling the vehicle.
Section 238.321 Out-of-service credit
As discussed previously, FRA did not seek consensus in the RSAC
process for the proposed provision related to out-of-service credit
contained in the NPRM. The issue was addressed on FRA's own motion in
this proceeding in response to APTA's petition for rulemaking dated
March 28, 2005. Other than APTA's support of the provision, FRA did not
receive any comments related to this provision in response to the NPRM.
Thus, this final rule retains the provision without change.
The provision contained in this section is modeled directly on the
``out-of-use credit'' provision contained in the Locomotive Safety
Standards at 49 CFR 229.33. The locomotive out-of-use credit has been
effectively and safely utilized by the railroad industry for decades.
As passenger equipment is generally captive service equipment, is
generally less mechanically complex than locomotives, and because the
provisions for which the credit will be utilized are time-based, FRA
believes it is appropriate to permit passenger and commuter operations
to receive credit for extended periods of time when equipment is not
being used. The

[[Page 61852]]

provision will permit railroads to extend the dates for conducting
periodic mechanical inspections and periodic brake maintenance required
by Sec. Sec. 238.307 and 238.309 for equipment that is out of service
for periods of at least 30 days. The final rule will require railroads
to maintain records of any out-of-service days on the records related
to the periodic attention. FRA does not see a safety concern with
permitting this flexibility. In fact, the regulation already provides
assurances that the brake systems on all passenger cars and unpowered
vehicles are in proper condition after being out of service for 30 days
or more by requiring that a single car test pursuant to Sec. 238.311
is performed on the vehicle before being placed back in service. See 49
CFR 238.311(e)(1).

VI. Regulatory Impact and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule has been evaluated in accordance with existing
policies and procedures, and determined to be non-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 two
regulatory evaluations addressing the economic impact of this rule.
Document inspection and copying facilities are available at the
Department of Transportation 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-2005-23080.
FRA conducted two separate regulatory evaluations addressing the
economic impact of this final rule. One regulatory evaluation addresses
the economic impact of the provisions related to the safety appliance
arrangements on passenger equipment. The other analysis addresses the
economic impact of all of the other provisions contained in this final
rule. As FRA developed the requirements related to safety appliance
arrangements on passenger equipment unilaterally, FRA believes it is
appropriate to provide a separate regulatory analysis regarding the
economic impact of those provisions. As the analyses indicate, this
final rule provides an overall economic savings to the industry due to
the flexibility provided for in many of the provisions and because many
of the requirements incorporate existing industry practice or provide
an alternative means of compliance to what is presently mandated.
The following table presents the estimated twenty-year monetary
impacts associated with the provisions contained in this final rule.
The table contains the estimated costs and benefits associated with
this final rule and provides the total 20-year value as well as the 20-
year net present value (NPV) for each indicated item. The dollar
amounts presented in this table have been rounded to the nearest
thousand. For exact estimates, interested parties should consult the
Regulatory Impact Analysis (RIA) that has been made part of the docket
in this proceeding.

------------------------------------------------------------------------
20-year total 20-year NPV
Description ($) ($)
------------------------------------------------------------------------
Costs:
Periodic Brake Inspection of Low- 4,350,000 1,957,000
Slung Equipment....................
Periodic Inspection of Welded Safety 1,888,000 1,178,000
Appliances.........................
Air Compressor Records.............. 250,000 132,000
-------------------------------
Total Costs..................... 5,488,000 3,268,000
===============================
Benefits:
Pneumatic Testing of Main Reservoirs 5,940,000 3,147,000
Avoided Cost of Piston Travel 1,790,000 890,000
Indicators.........................
Air Compressor--Equipment 17,000,000 9,005,000
Utilization........................
Avoided Cost of Safety Appliance 9,000,000 8,370,000
Retrofit...........................
Out-of-Service Credit--Equipment 1,020,000 542,000
Utilization........................
-------------------------------
Total Benefits.................. 35,510,000 21,953,000
------------------------------------------------------------------------

The economic benefits to the industry related to this final rule
outweigh the economic costs by a ratio in excess of 6 to 1. FRA did not
quantify the safety benefits for most of the provisions contained in
this final rule as many of the provisions are based on improved
manufacturing techniques, equipment reliability, or are the result of
additional regulatory flexibility. However, with regard to the final
rule provision related to the attachment of safety appliances on
passenger equipment, FRA did consider the potential safety benefits
related to the provisions. In addition to the potential avoided cost of
retrofitting equipment containing welded safety appliances or welded
safety appliance brackets or supports estimated at $9 million, FRA also
believes there are potential safety benefits to be derived from the
reduced risk of weld failure resulting from the inspection protocols
for welded safety appliance attachments. The RIA notes two accidents
that were the result of failed welded safety appliances and although
FRA's database did not contain these accidents, there is no reason to
believe that safety appliances in passenger operations are immune from
failure. The lack of an accident record may be due to low risks
involved in passenger operations, but also weld failure accidents are
not generally reported in FRA systems that are geared more for
accidents that stop rail operations. FRA believes that reducing the
risk of weld failures will benefit passenger operations. FRA notes that
if just 2 or 3 critical accidents are avoided over the 20-year period
covered by the RIA, the final rule would be cost-justified by the
safety benefits alone.
FRA further notes that it did not estimate a cost for the
requirements related to the securement of unattended equipment and the
inspection of hand or parking brakes. The final rule provisions related
to these issues are merely an incorporation of current industry
practice. FRA is not aware of any passenger or commuter railroad that
does not already conduct the final rule

[[Page 61853]]

inspections, maintain the records, or have the procedures in place.

Regulatory Flexibility Act and Executive Order 13272

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive
Order 13272 require a review of proposed and final rules to assess
their impact on small entities. FRA has prepared and placed in the
docket an Analysis of Impact on Small Entities (AISE) that assesses the
small entity impact of this final rule. Document inspection and copying
facilities are available at the Department of Transportation 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.
``Small entity'' is defined in 5 U.S.C. 601 as a small business
concern that is independently owned and operated, and is not dominant
in its field of operation. The U.S. Small Business Administration (SBA)
has authority to regulate issues related to small businesses, and
stipulates in its size standards that a ``small entity'' in the
railroad industry is a railroad business ``line-haul operation'' that
has fewer than 1,500 employees and a ``switching and terminal''
establishment with fewer than 500 employees. SBA's ``size standards''
may be altered by Federal agencies, in consultation with SBA and in
conjunction with public comment.
Pursuant to that authority FRA has published a final statement of
agency policy that formally establishes ``small entities'' as being
railroads that meet the line-haulage revenue requirements of a Class
III railroad. See 68 FR 24891 (May 9, 2003). Currently, the revenue
requirements are $20 million or less in annual operating revenue. The
$20 million limit is based on the Surface Transportation Board's
threshold of a Class III railroad carrier, which is adjusted by
applying the railroad revenue deflator adjustment (49 CFR part 1201).
The same dollar limit on revenues is established to determine whether a
railroad, shipper, or contractor is a small entity. FRA uses this
alternative definition of ``small entity'' for this rulemaking.
The AISE developed in connection with this final rule concludes
that this final rule will not have a significant economic impact on a
substantial number of small entities. Thus, FRA certifies that this
final rule is not expected to have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act or Executive Order 13272.

Paperwork Reduction Act

The information collection requirements in this final rule have
been submitted for approval to the Office of Management and Budget
(OMB) for review and approval in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The sections that
contain the new information collection requirements and the estimated
time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
Total annual
CFR section Respondent Total annual Average time Total annual burden cost
universe responses per response burden hours ($)
----------------------------------------------------------------------------------------------------------------
216.14--Special notice for 22 railroads... 9 forms........ 5 minutes...... 1 hour......... $40
repairs--passenger
equipment.
229.47--Emergency Brake 22 railroads... 30 markings.... 1 minute....... 1 hour......... 34
Value--Marking Brake Pipe
Valve as such.
--DMU, MU, Control Cab 22 railroads... 5 markings..... 1 minute....... .08 hour....... 3
Locomotives--Marking
Emergency Brake Valve
as such.
238.7--Waivers.............. 22 railroads... 5 waivers...... 2 hours........ 10 hours....... 400
238.15--Movement of 22 railroads... 1,000 cards/ 3 minutes...... 50 hours....... 2,500
passenger equipment with tags.
power brake defects, and.
--Movement of passenger 22 railroads... 288 cards/tags. 3 minutes...... 14 hours....... 700
equipment that becomes
defective en route.
--Conditional 22 railroads... 144 notices.... 3 minutes...... 7 hours........ 350
requirement--Notificati
ons.
238.17--Limitations on 22 railroads... 200 cards/tags. 3 minutes...... 10 hours....... 340
movement of passenger
equipment containing
defects found at calendar
day inspection and on
movement of passenger
equipment that develops
defects en route.
--Special requisites for 22 railroads... 76 tags........ 3 minutes...... 4 hours........ 136
movement of passenger
equipment with safety
appliance defects.
--Crew member 22 railroads... 38 30 seconds..... .32 hour....... 11
notifications. notifications.
238.21--Petitions for 22 railroads... 1 petition..... 16 hours....... 16 hours....... 640
special approval of
alternative standards.
--Petitions for special 22 railroads... 1 petition..... 120 hours...... 120 hours...... 4,800
approval of alternative
compliance.
--Petitions for special 22 railroads... 2 petitions.... 40 hours....... 80 hours....... 3,200
approval of pre-revenue
service acceptance
testing plan.
--Comments on petitions. Public/RR 4 comments..... 1 hour......... 4 hours........ 280
Industry.
238.103--Fire Safety
--Procuring new 5 equipment 4 equip. 300 hours...... 1,200 hours.... 120,800
passenger equipment. manuf. designs.
--Subsequent orders..... 5 equipment 4 equip. 45 hours....... 180 hours...... 21,600
manuf. designs.

[[Page 61854]]

--Existing equipment-- 5 manuf./22 5 analyses..... 30 hours....... 150 hours...... 18,000
fire safety analysis. railroads.
--Transferring passenger 22 railroads/ 1 analysis..... 20 hours....... 20 hours....... 2,400
cars/locomotives. AAR.
238.107--Inspection/testing/ 22 railroads... 7 reviews...... 60 hours....... 420 hours...... 16,800
maintenance plans--Review
by railroads.
238.109--Employee/contractor 22 railroads... 2 notifications 15 minutes..... 1 hour......... 40
training.
--Training employees: 7,500 employees 2,500 indiv/100 1.33 hours..... 3,458 hours.... 117,572
Mechanical Insp. trainers.
--Recordkeeping......... 22 railroads... 2,500 records.. 3 minutes...... 125 hours...... 5,000
238.111--Pre-revenue service 9 equipment 2 plans........ 16 hours....... 32 hours....... 1,760
acceptance testing plan: manuf.
Passenger equipment that
has previously been used in
service in the U.S.
Passenger equipment that has 9 equipment 2 plans........ 192 hours...... 384 hours...... 38,400
not been previously used in manuf.
service in the U.S.
Subsequent Order............ 9 equipment 2 plans........ 60 hours....... 120 hours...... 9,600
manuf.
238.229--Safety Appliances 22 railroads... 22 lists....... 1 hour......... 22 hours....... 880
(New Rqmnts).
--Welded safety
appliances considered
defective: lists
--Lists Identifying 22 railroads... 22 lists....... 60 minutes..... 22 hours....... 880
Equip. w/Welded Saf.
App.
--Defective Welded Saf. 22 railroads... 4 tags......... 3 minutes...... .20 hr......... 7
Appliance--Tags.
--Notification to 22 railroads... 2 notifications 1 minute....... .0333 hr....... 1
Crewmembers about Non-
Compliant Equipment.
--Inspection plans...... 22 railroads... 22 plans....... 16 hours....... 352 hours...... 19,360
--Inspection Personnel-- 22 railroads... 44 employees... 4 hours........ 176 hours...... 7,040
Training.
238.230--Safety Appliances--
New Equipment (New
Requirement)
--Inspection Record of 22 railroads... 100 records.... 6 minutes...... 10 hours....... 340
Welded Equipment by
Qualified Employee.
--Welded safety 22 railroads... 15 documents... 4 hours........ 60 hours....... 2,400
appliances:
Documentation for
equipment impractically
designed to
mechanically fasten
safety appliances
support.
238.231--Brake System (New
Requirement)
--Inspection and repair 22 railroads... 2,500 forms.... 21 minutes..... 875 hours...... 29,750
of hand/parking brake:
Records.
--Procedures Verifying 22 railroads... 22 procedures.. 2 hours........ 44 hours....... 3,080
Hold of Hand/Parking
Brakes.
238.237--Automated
monitoring
--Documentation for 22 railroads... 3 documents.... 2 hours........ 6 hours........ 240
alerter/deadman control
timing.
--Defective alerter/ 22 railroads... 25 tags........ 3 minutes...... 1 hour......... 50
deadman control:
Tagging.
238.303--Exterior calendar 22 railroads... 25 notices..... 1 minute....... 1 hour......... 50
day mechanical inspection
of passenger equipment:
Notice of previous
inspection.
--Dynamic brakes not in 22 railroads... 50 tags/cards.. 3 minutes...... 3 hours........ 150
operating mode: Tag.
--Conventional 22 railroads... 50 tags/cards.. 3 minutes...... 3 hours........ 150
locomotives equipped
with inoperative
dynamic brakes: Tagging
(New Requirements).
--MU passenger equipment 22 railroads... 4 documents.... 2 hours........ 8 hours........ 560
found with inoperative/
ineffective air
compressors at exterior
calendar day
inspection: Documents.
--Written notice to 22 railroads... 100 messages or 3 minutes...... 5 hours........ 170
train crew about notices.
inoperative/ineffective
air compressors.
--Records of inoperative 22 railroads... 100 records.... 2 minutes...... 3 hours........ 102
air compressors.
--Record of exterior 22 railroads... 2,376,920 10 minutes + 1 435,769 hours.. 15,053,836
calendar day mechanical records. minute.
inspection (Old
Requirement).

[[Page 61855]]

238.305--Interior calendar
day mechanical inspection
of passenger cars
--Tagging of defective 22 railroads... 540 tags....... 1 minute....... 9 hours........ 306
end/side doors.
--Records of interior 22 railroads... 1,968,980 5 minutes + 1 196,898 hours.. 6,891,428
calendar day inspection. records. minute.
238.307--Periodic mechanical
inspection of passenger
cars and unpowered vehicles
--Alternative inspection 22 railroads... 2 notifications 5 hours........ 10 hours....... 400
intervals: Notice.
--Notice of seats/seat 22 railroads... 200 notices.... 2 minutes...... 7 hours........ 280
attachments broken or
loose.
--Records of each 22 railroads... 19,284 records. 200 hrs. + 2 3,857,443 hours 131,156,920
periodic mechanical minutes.
inspection.
--Detailed documentation 22 railroads... 3 documents.... 100 hours...... 300 hours...... 12,000
of reliability
assessments as basis
for alternative
inspection interval.
238.311--Single car test
--Tagging to indicate 22 railroads... 25 tags........ 3 minutes...... 1 hour......... 34
need for single car
test.
238.313--Class I Brake Test
--Record for additional 22 railroads... 15,600 records. 30 minutes..... 7,800 hours.... 265,200
inspection for
passenger equipment
that does not comply
with Sec.
238.231(b)(1) (New
Requirement).
238.315--Class IA brake test
--Notice to train crew 22 railroads... 18,250 verbal 5 seconds...... 25 hours....... 850
that test has been notices.
performed.
--Communicating signal: 22 railroads... 365,000 tests.. 15 seconds..... 1,521 hours.... 60,840
tested and two-way
radio system.
238.317--Class II brake test
--Communicating signal: 22 railroads... 365,000 tests.. 15 seconds..... 1,521 hours.... 60,840
tested and two-way
radio system.
238.321--Out-of-service
credit (New Requirement)
--Passenger Car: Out-of- 22 railroads... 1,250 notations 2 minutes...... 42 hours....... 1,428
use notation.
238.445--Automated
Monitoring
--Performance 1 railroad..... 10,000 alerts.. 10 seconds..... 28 hours....... 0
monitoring: alerters/
alarms.
--Monitoring system: 1 railroad..... 21,900 20 seconds..... 122 hours...... 0
Self-test feature: notifications.
Notifications.
238.503--Inspection,
testing, and maintenance
requirements
238.505--Program approval
procedures
--Submission of program. 1 railroad..... 1 program...... 1,200 hours.... 1,200 hours.... 84,000
--Comments on programs.. Rail Industry.. 3 comments..... 3 hours........ 9 hours........ 360
----------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Robert Brogan at 202-493-
6292 or via e-mail at the following address: robert.brogan@dot.gov.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, 725 17th St., NW., Washington, DC 20590;
Attention: FRA OMB Desk Officer. OMB is required to make a decision
concerning the collection of information requirements contained in this
final rule between 30 and 60 days after publication of this 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.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

Federalism Implications

Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the

[[Page 61856]]

distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, the agency may not issue a
regulation with Federalism implications that imposes substantial direct
compliance costs and that is not required by statute, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, the agency
consults with State and local governments, or the agency consults with
State and local government officials early in the process of developing
the proposed regulation. Where a regulation has Federalism implications
and preempts State law, the agency seeks to consult with State and
local officials in the process of developing the regulation.
This final rule has preemptive effect. Subject to a limited
exception for essentially local safety hazards, its requirements will
establish a uniform Federal safety standard that must be met, and state
requirements covering the same subject are displaced, whether those
standards are in the form of state statutes, regulations, local
ordinances, or other forms of state law, including state common law.
Section 20106 of Title 49 of the United States Code provides that all
regulations prescribed by the Secretary related 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 is consistent with past practice at FRA, and
within the Department of Transportation.
FRA has analyzed this final rule in accordance with the principles
and criteria contained in Executive Order 13132. This final rule will
not have a substantial 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. This
final rule will not have federalism implications that impose any direct
compliance costs on State and local governments.
FRA notes that the RSAC, which endorsed and recommended the
majority of this rule, has as permanent members two organizations
representing State and local interests: AASHTO and the Association of
State Rail Safety Managers (ASRSM). Both of these State organizations
concurred with the RSAC recommendation endorsing this rule. The RSAC
regularly provides recommendations to the FRA Administrator for
solutions to regulatory issues that reflect significant input from its
State members. To date, FRA has received no indication of concerns
about the Federalism implications of this rulemaking from these
representatives or of any other representatives of State government.
Consequently, FRA concludes that this final rule has no federalism
implications, other than the preemption of state laws covering the
subject matter of this final rule, which occurs by operation of law
under 49 U.S.C. 20106 whenever FRA issues a rule or order.
Elements of the final rule dealing with safety appliances affect an
area of safety that has been pervasively regulated at the Federal level
for over a century. Accordingly, the final rule amendments in that area
will involve no impacts on Federal relationships.

Environmental Impact

FRA has evaluated this final rule 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 final rule not a major FRA action (requiring the
preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:

(c) Actions categorically excluded. Certain classes of FRA
actions have been determined to be categorically excluded from the
requirements of these Procedures as they do not individually or
cumulatively have a significant effect on the human environment. * *
* The following classes of FRA actions are categorically excluded: *
* *
(20) Promulgation of railroad safety rules and policy statements
that do not result in significantly increased emissions or air or
water pollutants or noise or increased traffic congestion in any
mode of transportation.

In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this final
rule is not a major Federal action significantly affecting the quality
of the human environment.

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 $120,700,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
The final rule will not result in the expenditure, in the aggregate, of
$120,700,000 or more in any one year, and thus preparation of such a
statement is not required.

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 final rule in accordance with Executive
Order 13211. FRA has determined that this final rule is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Consequently, FRA has determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.

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

[[Page 61857]]

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 229

Locomotives, Main reservoirs, Penalties, Railroads, Railroad
safety, Reporting and recordkeeping requirements.

49 CFR Part 238

Incorporation by reference, Passenger equipment, Penalties, Railroad
safety, Reporting and recordkeeping requirements, Safety appliances.

Adoption of the Amendments

? For the reasons discussed in the preamble, FRA is amending parts 229
and 238 of chapter II, subtitle B of Title 49, Code of Federal
Regulations, as follows:

PART 229--[AMENDED]

? 1. The authority citation for part 229 continues to read as follows:

Authority: 49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143,
20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c), (m).

? 2. Section 229.5 is amended by revising the definition of ``MU
locomotive'' to read as follows:

Sec. 229.5 Definitions.

* * * * *
MU locomotive means a multiple unit operated electric locomotive--
(1) With one or more propelling motors designed to carry freight or
passenger traffic or both; or
(2) Without propelling motors but with one or more control stands
and a means of picking-up primary power such as a pantograph or third
rail.
* * * * *

? 3. Section 229.31 is amended by revising paragraphs (a) and (c) to read
as follows:

Sec. 229.31 Main reservoir tests.

(a) Before it is placed in service, each main reservoir other than
an aluminum reservoir shall be subjected to a pneumatic or hydrostatic
pressure of at least 25 percent more than the maximum working pressure
fixed by the chief mechanical officer. The test date, place, and
pressure shall be recorded on Form FRA F 6180-49A, block eighteen.
Except as provided in paragraph (c) of this section, at intervals that
do not exceed 736 calendar days, each main reservoir other than an
aluminum reservoir shall be subjected to a hydrostatic pressure of at
least 25 percent more than the maximum working pressure fixed by the
chief mechanical officer. The test date, place, and pressure shall be
recorded on Form FRA F 6180-49A, and the person performing the test and
that person's supervisor shall sign the form.
(b) * * *
(c) Each welded main reservoir originally constructed to withstand
at least five times the maximum working pressure fixed by the chief
mechanical officer may be drilled over its entire surface with telltale
holes that are three-sixteenths of an inch in diameter. The holes shall
be spaced not more than 12 inches apart, measured both longitudinally
and circumferentially, and drilled from the outer surface to an extreme
depth determined by the formula--

D = (.6PR/S-0.6P)

Where:

D = extreme depth of telltale holes in inches but in no case less
than one-sixteenth inch;
P = certified working pressure in pounds per square inch;
S = one-fifth of the minimum specified tensile strength of the
material in pounds per square inch; and
R = inside radius of the reservoir in inches.

One row of holes shall be drilled lengthwise of the reservoir on a
line intersecting the drain opening. A reservoir so drilled does not
have to meet the requirements of paragraphs (a) and (b) of this
section, except the requirement for a pneumatic or hydrostatic test
before it is placed in use. Whenever any such telltale hole shall have
penetrated the interior of any reservoir, the reservoir shall be
permanently withdrawn from service. A reservoir now in use may be
drilled in lieu of the tests provided for by paragraphs (a) and (b) of
this section, but shall receive a hydrostatic test before it is
returned to use or may receive a pneumatic test if conducted by the
manufacturer in an appropriately safe environment.
* * * * *

? 4. Section 229.47 is amended by revising paragraph (b) to read as follows:

Sec. 229.47 Emergency brake valve.

* * * * *
(b) DMU, MU, and control cab locomotives operated in road service
shall be equipped with an emergency brake valve that is accessible to
another crew member in the passenger compartment or vestibule. The
words ``Emergency Brake Valve'' shall be legibly stenciled or marked
near each valve or shall be shown on an adjacent badge plate.
* * * * *

? 5. Section 229.137 is amended by revising paragraph (b)(1)(vi) to read
as follows:

Sec. 229.137 Sanitation, general requirements.

* * * * *
(b) * * *
(1) * * *
(vi) Except as provided in Sec. 229.14 of this part, DMU, MU, and
control cab locomotives designed for passenger occupancy and used in
intercity push-pull service that are not equipped with sanitation
facilities, where employees have ready access to railroad-provided
sanitation in other passenger cars on the train at frequent intervals
during the course of their work shift.
* * * * *

PART 238--[AMENDED]

? 6. 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.

? 7. Section 238.5 is amended by revising the definition of ``actuator''
and adding a definition of ``piston travel indicator'' to read as follows:

Sec. 238.5 Definitions.

* * * * *
Actuator means a self-contained brake system component that
generates the force to apply the brake shoe or brake pad to the wheel
or disc. An actuator typically consists of a cylinder, piston, and
piston rod.
* * * * *
Piston Travel Indicator means a device directly activated by the
movement of the brake cylinder piston, the disc brake actuator, or the
tread brake unit cylinder piston that provides an indication of the
piston travel.
* * * * *

? 8. Section 238.17 is amended by revising paragraph (b) introductory
text 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

[[Page 61858]]

inspection. Except as provided in Sec. Sec. 238.303(e)(15) and
(e)(17), 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:
* * * * *

? 9. Section 238.21 is amended by revising paragraphs (a) and (c)(2) to
read as follows:

Sec. 238.21 Special approval procedures.

(a) General. The following procedures govern consideration and
action upon requests for special approval of alternative standards
under Sec. Sec. 238.103, 238.223, 238.229, 238.309, 238.311, 238.405,
or 238.427; for approval of alternative compliance under Sec. Sec.
238.201, 238.229, or 238.230; and for special approval of pre-revenue
service acceptance testing plans as required by Sec. 238.111.
(Requests for approval of programs for the inspection, testing, and
maintenance of Tier II passenger equipment are governed by Sec. 238.505.)
* * * * *
(c) * * *
(2) The elements prescribed in Sec. Sec. 238.201(b),
238.229(j)(2), and 238.230(d); and
* * * * *

? 10. Section 238.229 is revised to read as follows:

Sec. 238.229 Safety appliances--general.

(a) Except as provided in this part, all passenger equipment
continues to be subject to the safety appliance requirements contained
in Federal statute at 49 U.S.C. chapter 203 and in Federal regulations
at part 231 of this chapter.
(b) Except as provided in this part, FRA interprets the provisions
in part 231 of this chapter that expressly mandate that the manner of
application of a safety appliance be a bolt, rivet, or screw to mean
that the safety appliance and any related bracket or support used to
attach that safety appliance to the equipment shall be so affixed to
the equipment. Specifically, FRA prohibits the use of welding as a
method of attachment of any such safety appliance or related bracket or
support. A ``safety appliance bracket or support'' means a component or
part attached to the equipment for the sole purpose of securing or
attaching of the safety appliance. FRA does allow the welded attachment
of a brace or stiffener used in connection with a mechanically fastened
safety appliance. In order to be considered a ``brace'' or
``stiffener,'' the component or part shall not be necessary for the
attachment of the safety appliance to the equipment and is used solely
to provide extra strength or steadiness to the safety appliance.
(c) Welded Safety Appliances. (1) Passenger equipment placed in
service prior to January 1, 2007, that is equipped with a safety
appliance, required by the ``manner of application'' provisions in part
231 of this chapter to be attached by a mechanical fastener (i.e.,
bolts, rivets, or screws), and the safety appliance is mechanically
fastened to a bracket or support that is attached to the equipment by
welding may continue to be used in service provided all of the
requirements in paragraphs (e) through (k) of this section are met. The
welded safety appliance bracket or support only needs to receive the
initial visual inspection required under paragraph (g)(1) of this
section if all of the following conditions are met:
(i) The welded safety appliance bracket or support meets all of the
conditions contained in Sec. 238.230(b)(1) for being considered part
of the car body;
(ii) The weld on the safety appliance bracket or support does not
contain any defect as defined in paragraph (d) of this section; and
(iii) The railroad submits a written list to FRA identifying each
piece of passenger equipment equipped with a welded safety appliance
bracket or support as described in paragraph (c)(1)(i) and (c)(1)(ii)
of this section and provides a description of the specific safety
appliance bracket or support.
(2) Passenger equipment placed in service prior to January 1, 2007,
that is equipped with a safety appliance that is directly attached to
the equipment by welding (i.e., no mechanical fastening of any kind)
shall be considered defective and immediately handled for repair
pursuant to the requirements contained in Sec. 238.17(e) unless the
railroad meets the following:
(i) The railroad submits a written list to FRA that identifies each
piece of passenger equipment equipped with a welded safety appliance as
described in paragraph (c)(2) of this section and provides a
description of the specific safety appliance; and
(ii) The involved safety appliance(s) on such equipment are
inspected and handled pursuant to the requirements contained in
paragraphs (g) through (k) of this section.
(d) Defective welded safety appliance or welded safety appliance
bracket or support. Passenger equipment with a welded safety appliance
or a welded safety appliance bracket or support will be considered
defective and shall be handled in accordance with Sec. 238.17(e) if
any part or portion of the weld contains a defect. Any repairs made to
such equipment shall be in accordance with the inspection plan required
in paragraph (g) of this section and the remedial actions identified in
paragraph (j) of this section. A defect for the purposes of this
section means a crack or fracture of any visibly discernible length or
width. When appropriate, civil penalties for improperly using or
hauling a piece of equipment with a defective welded safety appliance
or safety appliance bracket or support addressed in this section will
be assessed as an improperly applied safety appliance pursuant to the
penalty schedule contained in Appendix A to part 231 of this chapter
under the appropriate defect code contained therein.
(e) Identification of equipment. The railroad shall submit a
written list to FRA that identifies each piece of passenger equipment
equipped with a welded safety appliance bracket or support by January
1, 2007. Passenger equipment placed in service prior to January 1,
2007, but not discovered until after January 1, 2007, shall be
immediately added to the railroad's written list and shall be
immediately inspected in accordance with paragraph (g) through (k) of
this section. The written list submitted by the railroad shall contain
the following:
(1) The equipment number;
(2) The equipment type;
(3) The safety appliance bracket(s) or support(s) affected;
(4) Any equipment and any specific safety appliance bracket(s) or
supports(s) on the equipment that will not be subject to the inspection
plan required in paragraph (g) of this section;
(5) A detailed explanation for any such exclusion recommended in
paragraph (e)(4) of this section;
(f) FRA's Associate Administrator for Safety reserves the right to
disapprove any exclusion recommended by the railroad in paragraphs
(c)(2)(i) and (d)(4) of this section and will provide written
notification to the railroad of any such determination.
(g) Inspection Plans. The railroad shall adopt and comply with and
submit to FRA upon request a written safety appliance inspection plan.
At a minimum, the plan shall include the following:
(1) Except as provided in paragraph (c)(1) of this section, an
initial visual inspection (within 1 year of date of publication) and
periodic re-inspections (at intervals not to exceed 6 years) of each
welded safety appliance bracket or support identified in paragraph (e) of

[[Page 61859]]

this section. If significant disassembly of a car is necessary to
visually inspect the involved safety appliance bracket or support, the
initial visual inspection may be conducted at the equipment's first
periodic brake equipment maintenance interval pursuant to Sec. 238.309
occurring after January 1, 2007.
(2) Identify the personnel that will conduct the initial and
periodic inspections and any training those individuals are required to
receive in accordance with the criteria contained in paragraph (h) of
this section.
(3) Identify the specific procedures and criteria for conducting
the initial and periodic safety appliance inspections in accordance
with the requirements and criteria contained in paragraph (i) of this
section.
(4) Identify when and what type of potential repairs or potential
remedial action will be required for any defective welded safety
appliance bracket or support discovered during the initial or periodic
safety appliance inspection in accordance with paragraph (j) of this
section.
(5) Identify the records that will be maintained that are related
to the initial and periodic safety appliance inspections in accordance
with the requirements contained in paragraph (k) of this section.
(h) Inspection Personnel. The initial and periodic safety appliance
inspections shall be performed by individuals properly trained and
qualified to identify defective weld conditions. At a minimum, these
personnel include the following:
(1) A qualified maintenance person (QMP) with at least 4 hours of
training specific to the identification of weld defects and the
railroad's weld inspection procedures;
(2) A current certified welding inspector (CWI) pursuant to
American Welding Society Standard--AWS QC-1, Standard for AWS Certification
of Welding Inspectors (1996) or its current revised equivalent;
(3) A person possessing a current Canadian Welding Bureau (CWB)
certification pursuant to the Canadian Standards Association Standard
W59 (2003) or its current revised equivalent;
(4) A person possessing a current level II or level III visual
inspector certification from the American Society for Non-destructive
Testing pursuant to Recommended Practice SNT-TC-1A--Personnel
Qualification and Certification in Nondestructive Testing (2001) or its
current revised equivalent; or
(5) A person possessing a current certification under any other
nationally or internationally recognized welding qualification standard
that is equivalent to those identified in paragraphs (h)(2) through
(h)(4) of this section.
(i) Inspection Procedures. The initial and periodic safety
appliance inspections shall be conducted in accordance with the
procedures and criteria established in the railroad's inspection plan.
At a minimum, these procedures and criteria shall include:
(1) A complete visual inspection of the entire welded surface of
any safety appliance bracket or support identified in paragraph (e) of
this section.
(2) The visual inspection shall occur after the complete removal of
any dirt, grease, rust, or any other foreign matter from the welded
portion of the involved safety appliance bracket or support. Removal of
paint is not required.
(3) The railroad shall disassemble any equipment necessary to
permit full visual inspection of the involved weld.
(4) Any materials necessary to conduct a complete inspection must
be made available to the inspection personnel throughout the inspection
process. These include but are not limited to such items as mirrors,
magnifying glasses, or other location specific inspection aids. Remote
viewing aids possessing equivalent sensitivity are permissible for
restricted areas.
(5) Any weld found with a defect as defined in paragraph (d) of
this section during the initial or periodic safety appliance inspection
shall be inspected by either a certified weld inspector identified in
paragraphs (h)(2) through (h)(5) of this section or a welding or
materials engineer possessing a professional engineer's license for a
final determination. No car with a defect in the weld of a safety
appliance or its attachment may continue in use until a final
determination as to the existence of a defect is made by the personnel
identified in this paragraph.
(6) A weld finally determined to contain a defect shall be handled
for repair in accordance with Sec. 238.17(e) and repaired in
accordance with the remedial action criteria contained in paragraph (j)
of this section.
(j) Remedial Action. Unless a defect in a weld is known to have
been caused by crash damage, the railroad shall conduct a failure and
engineering analysis of any weld identified in paragraph (e) of this
section determined to have a break or crack either during the initial
or periodic safety appliance inspection or while otherwise in service
to determine if the break or crack is the result of crash damage,
improper construction, or inadequate design. Based on the results of
the analysis, the repair of the involved safety appliance bracket or
support shall be handled as follows:
(1) A defect in a weld due to crash damage (i.e., impact of the
safety appliance by an outside force during service or an accident) or
improper construction (i.e., the weld did not conform to the engineered
design) shall be reattached by either mechanically fastening the safety
appliance or the safety appliance bracket or support to the equipment
or welding the safety appliance bracket or support to the equipment in
a manner that is at least as strong as the original design or at least
twice the strength of a bolted mechanical attachment, whichever is
greater. If welding is used to repair the damaged appliance, bracket,
or support the following requirements shall be met:
(i) The repair shall be conducted in accordance with the welding
procedures contained in APTA Standard SS-C&S-020-03--Standard for
Passenger Rail Vehicle Structural Repair (September 2003); or an
alternative procedure approved by FRA pursuant to Sec. 238.21. The
Director of the Federal Register approves incorporation by reference of
the APTA Standard SS-C&S-020-03 (September 2003), ``Standard for
Passenger Rail Vehicle Structural Repair,'' in this section in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a
copy of the incorporated standard from the American Public
Transportation Association, 1666 K Street, Washington, DC 20006. You
may inspect a copy of the incorporated standard at the Federal Railroad
Administration, Docket Clerk, 1120 Vermont Ave., NW., Suite 7000,
Washington, DC 20590 or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to
http://www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html;
(ii) A qualified individual under paragraph (h) of this section
shall inspect the weld to ensure it is free of any cracks or fractures
prior to the equipment being placed in-service;
(iii) The welded safety appliance bracket or support shall receive
a periodic safety appliance inspection pursuant to the requirements
contained in paragraphs (g) through (i) of this section; and
(iv) A record of the welded repair pursuant to the requirements of
paragraph (k) of this section shall be maintained by the railroad.
(2) A defect in the weld that is due to inadequate design (i.e.,
unanticipated stresses or loads during service) shall be

[[Page 61860]]

handled in accordance with the following:
(i) The railroad must immediately notify FRA's Associate
Administrator for Safety in writing of its discovery of a defective
weld that is due to inadequate design;
(ii) The involved safety appliance or the safety appliance bracket
or support shall be reattached to the equipment by mechanically
fastening the safety appliance or the safety appliance bracket or
support to the equipment unless such mechanical fastening is
impractical due to the design of the equipment;
(iii) The railroad shall develop and comply with a written plan
submitted to and approved by FRA's Associate Administrator for Safety
detailing a schedule for all passenger equipment in that series of cars
with a similar welded safety appliance bracket or support to have the
involved safety appliance or the safety appliance bracket or support
mechanically fastened to the equipment; and
(iv) If a railroad determines that the design of the equipment
makes it impractical to mechanically fasten the safety appliance or the
safety appliance bracket or support to the equipment, then the railroad
shall submit a request to FRA for special approval of alternative
compliance pursuant to Sec. 238.21. Such a request shall explain the
necessity for any relief sought and shall contain appropriate data and
analysis supporting its determination that any alternative method of
attachment provides at least an equivalent level of safety.
(k) Records. Railroads shall maintain written or electronic records
of the inspection and repair of the welded safety appliance brackets or
supports on any equipment identified in paragraph (e) of this section.
The records shall be made available to FRA upon request. At a minimum,
these records shall include all of the following:
(1) Training or certification records for any person performing any
of the inspections or repairs required in this section.
(2) The date, time, location, and identification of the person
performing the initial and periodic safety appliance inspections for
each piece of equipment identified in paragraph (e) of this section.
This includes the identification of the person making any final
determination as to the existence of a defect under paragraph (i)(5) of
this section.
(3) A record of all passenger equipment found with a safety
appliance weldment that is defective either during the initial or
periodic safety appliance inspection or while the equipment is in-
service. This record shall also identify the cause of the crack or
fracture.
(4) The date, time, location, identification of the person making
the repair, and the nature of the repair to any welded safety appliance
bracket or support identified in paragraph (e) of this section.

? 11. Section 238.230 is added to read as follows:

Sec. 238.230 Safety appliances--new equipment.

(a) Applicability. This section applies to passenger equipment
placed in service on or after January 1, 2007.
(b) Welded Safety Appliances. Except as provided in this section,
all passenger equipment placed into service on or after January 1,
2007, that is equipped with a safety appliance, required by the
``manner of application'' provisions in part 231 of this chapter to be
attached by a mechanical fastener (i.e., bolts, rivets, or screws),
shall have the safety appliance and any bracket or support necessary to
attach the safety appliance to the piece of equipment mechanically
fastened to the piece of equipment.
(1) Safety appliance brackets or supports considered part of the
car body. Safety appliance brackets or supports will be considered part
of the car body and will not be required to be mechanically fastened to
the piece of passenger equipment if all of the following are met:
(i) The bracket or support is welded to a surface of the
equipment's body that is at a minimum 3/16-inch sheet steel or
structurally reinforced to provide the equivalent strength and rigidity
of 3/16-inch sheet steel;
(ii) The area of the weld is sufficient to ensure a minimum weld
strength, based on yield, of three times the strength of the number of
SAE grade 2, \1/2\ inch diameter bolts that would be required for each
attachment;
(iii) Except for any access required for attachment of the safety
appliance, the weld is continuous around the perimeter of the surface
of the bracket or support;
(iv) The attachment is made with fillet welds at least 3/16-inch in
size;
(v) The weld is designed for infinite fatigue life in the
application that it will be placed;
(vi) The weld is performed in accordance with the welding process
and the quality control procedures contained in the current American
Welding Society (AWS) Standard, the Canadian Welding Bureau (CWB)
Standard, or an equivalent nationally or internationally recognized
welding standard;
(vii) The weld is performed by an individual possessing the
qualifications to be certified under the current AWS Standard, CWB
Standard, or any equivalent nationally or internationally recognized
welding qualification standard;
(viii) The weld is inspected by an individual qualified to
determine that all of the conditions identified in paragraph (b)(1)(i)
through (b)(1)(vii) of this section are met prior to the equipment
being placed in service; and
(ix) A written or electronic record of the inspection required in
paragraph (b)(1)(viii) of this section shall be retained by the
railroad operating the equipment and shall be provided to FRA upon
request. At a minimum, this record shall include the date, time,
location, identification of the person performing the inspection, and
the qualifications of the person performing the inspection.
(2) Directly welded safety appliances. Passenger equipment that is
equipped with a safety appliance that is directly attached to the
equipment by welding (i.e., no mechanical fastening of any kind) may be
placed in service only if the railroad meets the following:
(i) The railroad submits a written list to FRA that identifies each
piece of new passenger equipment equipped with a welded safety
appliance as described in paragraph (b)(2) of this section and provides
a description of the specific safety appliance;
(ii) The railroad provides a detailed basis as to why the design of
the vehicle or placement of the safety appliance requires that the
safety appliance be directly welded to the equipment; and
(iii) The involved safety appliance(s) on such equipment are
inspected and handled pursuant to the requirements contained in Sec.
238.229(g) through (k).
(3) Other welded safety appliances and safety appliance brackets
and supports. Except for safety appliance brackets and supports
identified in paragraph (b)(1) of this section, safety appliance
brackets and supports on passenger equipment shall not be welded to the
car body unless the design of the equipment makes it impractical to
mechanically fasten the safety appliance and it is impossible to meet
the conditions for considering the bracket or support part of the car
body contained in paragraph (b)(1) of this section. Prior to placing a
piece of passenger equipment in service with a welded safety appliance
bracket or support as described in this paragraph, the railroad shall
submit documentation to FRA, for FRA's review and approval,

[[Page 61861]]

containing all of the following information:
(i) Identification of the equipment by number, type, series,
operating railroad, and other pertinent data;
(ii) Identification of the safety appliance bracket(s) or
support(s) not mechanically fastened to the equipment and not
considered part of the car body under paragraph (b)(1) of this section;
(iii) A detailed analysis describing the necessity to attach the
safety appliance bracket or support to the equipment by a means other
than mechanical fastening;
(iv) A detailed analysis describing the inability to make the
bracket or support part of the car body as provided for in paragraph
(b)(1) of this section; and
(v) A copy and description of the consensus or other appropriate
industry standard used to ensure the effectiveness and strength of the
attachment;
(c) Inspection and repair. Passenger equipment with a welded safety
appliance or a welded safety appliance bracket or support will be
considered defective and shall be handled in accordance with Sec.
238.17(e) if any part or portion of the weld is defective as defined in
Sec. 238.229(d). When appropriate, civil penalties for improperly
using or hauling a piece of equipment with a defective welded safety
appliance or safety appliance bracket or support addressed in this
section will be assessed pursuant to the penalty schedule contained in
Appendix A to part 231 of this chapter under the appropriate defect
code contained therein.
(1) Any safety appliance bracket or support approved by FRA
pursuant to paragraph (b)(3) of this section shall be inspected and
handled in accordance with the requirements contained in Sec.
238.229(g) through (k).
(2) Any repair to a safety appliance bracket or support considered
to be part of the car body under paragraph (b)(1) of this section shall
be conducted in accordance with APTA Standard SS-C&S-020-03--Standard
for Passenger Rail Vehicle Structural Repair (September 2003), or an
alternative procedure approved by FRA pursuant to Sec. 238.21, and
shall ensure that the repair meets the requirements contained in
paragraphs (b)(1)(i) through (b)(1)(vii) of this section. The Director
of the Federal Register approves incorporation by reference of the APTA
Standard SS-C&S-020-03 (September 2003), ``Standard for Passenger Rail
Vehicle Structural Repair,'' in this section in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the
incorporated standard from the American Public Transportation
Association, 1666 K Street, Washington, DC 20006. You may inspect a
copy of the incorporated standard at the Federal Railroad
Administration, Docket Clerk, 1120 Vermont Ave., NW., Suite 7000,
Washington, DC 20590 or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call 202-741-6030, or go to
http://www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html.
(d) Passenger Cars of Special Construction. A railroad or a
railroad's recognized representative may submit a request for special
approval of alternative compliance pursuant to Sec. 238.21 relating to
the safety appliance arrangements on any passenger car considered a car
of special construction under Sec. 231.18 of this chapter. Any such
petition shall be in the form of an industry-wide standard and at a
minimum shall:
(1) Identify the type(s) of car to which the standard would be
applicable;
(2) As nearly as possible, based upon the design of the equipment,
ensure that the standard provides for the same complement of handholds,
sill steps, ladders, hand or parking brakes, running boards, and other
safety appliances as are required for a piece of equipment of the
nearest approximate type already identified in part 231 of this chapter;
(3) Comply with all statutory requirements relating to safety
appliances contained at 49 U.S.C. 20301 and 20302;
(4) Specifically address the number, dimension, location, and
manner of application of each safety appliance contained in the standard;
(5) Provide specific analysis regarding why and how the standard
was developed and specifically discuss the need or benefit of the
safety appliance arrangement contained in the standard;
(6) Include drawings, sketches, or other visual aids that provide
detailed information relating to the design, location, placement, and
attachment of the safety appliances; and
(7) Demonstrate the ergonomic suitability of the proposed
arrangements in normal use.
(e) Any industry standard approved pursuant to Sec. 238.21 will be
enforced against any person who violates any provision of the approved
standard or causes the violation of any such provision. Civil penalties
will be assessed under part 231 of this chapter by using the applicable
defect code contained in Appendix A to part 231 of this chapter.

? 12. Section 238.231 is amended by revising paragraph (b) and paragraph
(h)(3) and by adding paragraph (h)(4) to read as follows:

Sec. 238.231 Brake system.

* * * * *
(b) Where practicable, the design of passenger equipment ordered on
or after September 8, 2000, or placed in service for the first time on
or after September 9, 2002, shall not require an inspector to place
himself or herself on, under, or between components of the equipment to
observe brake actuation or release. Passenger equipment not designed in
this manner shall be equipped and handled in accordance with one of the
following:
(1) Equipped with piston travel indicators as defined in Sec.
238.5 or devices of similar design and inspected pursuant to the
requirements contained in Sec. 238.313 (j); or
(2) Equipped with brake indicators as defined in Sec. 238.5,
designed so that the pressure sensor is placed in a location so that
nothing may interfere with the air flow to brake cylinder and inspected
pursuant to the requirements contained in Sec. 238.313 (j).
* * * * *
(h) * * *
(3) Except for MU locomotives, on locomotives so equipped, the hand
or parking brake as well as its parts and connections shall be
inspected, and necessary repairs made, as often as service requires but
no less frequently than every 368 days. The date of the last inspection
shall be either entered on Form FRA F 6180-49A, suitably stenciled or
tagged on the equipment, or maintained electronically provided FRA has
access to the record upon request.
(4) A train's air brake shall not be depended upon to hold
unattended equipment (including a locomotive, a car, or a train whether
or not locomotive is attached). For purposes of this section,
``unattended equipment'' means equipment left standing and unmanned in
such a manner that the brake system of the equipment cannot be readily
controlled by a qualified person. Unattended equipment shall be secured
in accordance with the following requirements:
(i) A sufficient number of hand or parking brakes shall be applied
to hold the equipment. Railroads shall develop and implement a process
or procedure to verify that the applied hand or parking brakes will
sufficiently hold the equipment with the air brakes released;
(ii) Except for equipment connected to a source of compressed air (e.g.,

[[Page 61862]]

locomotive or ground air source), prior to leaving equipment
unattended, the brake pipe shall be reduced to zero at a rate that is
no less than a service rate reduction;
(iii) At a minimum, the hand or parking brake shall be fully
applied on at least one locomotive or vehicle in an unattended
locomotive consist or train;
(iv) A railroad shall develop, adopt, and comply with procedures
for securing any unattended locomotive required to have a hand or
parking brake applied when the locomotive is not equipped with an
operative hand or parking brake;
(v) A railroad shall adopt and comply with instructions to address
throttle position, status of the reverser lever, position of the
generator field switch, status of the independent brakes, position of
the isolation switch, and position of the automatic brake valve, or the
functional equivalent of these items, on all unattended locomotives.
The procedures and instruction shall take into account weather
conditions as they relate to throttle position and reverser handle; and
(vi) Any hand or parking brakes applied to hold unattended
equipment shall not be released until it is known that the air brake
system is properly charged.
* * * * *

? 13. Section 238.303 is amended by adding a new paragraph (e)(17) to
read as follows:

Sec. 238.303 Exterior calendar day mechanical inspection of passenger
equipment.

* * * * *
(e) * * *
(17) Each air compressor, on passenger equipment so equipped, shall
be in effective and operative condition. MU passenger equipment found
with an inoperative or ineffective air compressor at the time of its
exterior calendar day mechanical inspection may remain in passenger
service until the equipment's next exterior calendar day mechanical
inspection where it must be repaired or removed from passenger service;
provided, all of the following requirements are met:
(i) The equipment has an inherent redundancy of air compressors,
due to either the make-up of the train consist or the design of the
equipment;
(ii) The railroad demonstrates through verifiable data, analysis,
or actual testing that the safety and integrity of a train is not
compromised in any manner by the inoperative or ineffective air
compressor. The data, analysis, or test shall establish the maximum
number of air compressors that may be inoperative based on size of the
train consist, the type of passenger equipment in the train, and the
number of service and emergency brake applications typically expected
in the run profile for the involved train;
(iii) The involved train does not exceed the maximum number of
inoperative or ineffective air compressors established in accordance
with paragraph (e)(17)(ii) of this section;
(iv) A qualified maintenance person determines and verifies that
the inoperative or ineffective air compressor does not compromise the
safety or integrity of the train and that it is safe to move the
equipment in passenger service;
(v) The train crew is informed in writing of the number of units in
the train consist with inoperative or ineffective air compressors at
the location where the train crew first takes charge of the train;
(vi) A record is maintained of the inoperative or ineffective air
compressor pursuant to the requirements contained in Sec.
238.17(c)(4); and
(vii) Prior to operating equipment under the provisions contained
in this paragraph, the railroad shall provide in writing to FRA's
Associate Administrator for Safety the maximum number of inoperative or
ineffective air compressors identified in accordance with paragraph
(e)(17)(ii) of this section.
(viii) The data, analysis, or testing developed and conducted under
paragraph (e)(17)(ii) of this section shall be made available to FRA
upon request. FRA's Associate Administrator for Safety may revoke a
railroad's ability to utilize the flexibility provided in this
paragraph if the railroad fails to comply with the maximum limits
established under paragraph (e)(17)(ii) or if such maximum limits are
not supported by credible data or do not provide adequate safety assurances.

? 14. Section 238.307 is amended by adding paragraph (c)(13) and by
revising paragraph (d) to read as follows:

Sec. 238.307 Periodic mechanical inspection of passenger cars and
unpowered vehicles used in passenger trains.

* * * * *
(c) * * *
(13) The hand or parking brake shall be applied and released to
determine that it functions as intended.
(d) At intervals not to exceed 368 days, the periodic mechanical
inspection shall specifically include the following:
(1) Inspection of the manual door releases to determine that all
manual door releases operate as intended; and
(2) Inspection of the hand or parking brake as well as its parts
and connections to determine that they are in proper condition and
operate as intended. The date of the last inspection shall be either
entered on Form FRA F 6180-49A, suitably stenciled or tagged on the
equipment, or maintained electronically provided FRA has access to the
record upon request.
* * * * *

? 15. Section 238.313 is amended by revising the first sentence of
paragraph (g)(3) and by adding a new paragraph (j) to read as follows:

Sec. 238.313 Class I brake test.

* * * * *
(g) * * *
(3) Piston travel is within prescribed limits, either by direct
observation, observation of a piston travel indicator, or in the case
of tread or disc brakes by determining that the brake shoe or pad
provides pressure to the wheel. * * *
* * * * *
(j) In addition to complying with all the Class I brake test
requirements performed by a qualified maintenance person as contained
in paragraphs (a) through (i) of this section, railroads operating
passenger equipment that is not designed to permit the visual
observation of the brake actuation and release without the inspector
going on, under, or between the equipment in accordance with Sec.
238.231(b) shall perform an additional inspection. At a minimum, the
additional inspection requirement for such equipment shall include all
of the following:
(1) An additional inspection by a qualified maintenance person of
all items and components contained in paragraphs (g)(1) through (g)(15)
of this section;
(2) The additional inspection shall be conducted at an interval not
to exceed five (5) in-service days and shall be conducted while the
equipment is over an inspection pit or on a raised inspection track;
and
(3) A record of the additional inspection shall be maintained
pursuant to the requirements contained in paragraph (h) of this
section. This record can be combined with the Class I brake test record.
* * * * *

? 16. Section 238.321 is added to read as follows:

Sec. 238.321 Out-of-service credit.

When a passenger car is out of service for 30 or more consecutive
days or is out of service when it is due for any test or inspection
required by Sec. 238.307 or Sec. 238.309 an out of use notation

[[Page 61863]]

showing the number of out of service days shall be made in the records
required under Sec. 238.307(e) and Sec. 238.309(f). If the passenger
car is out of service for one or more periods of at least 30
consecutive days, the interval prescribed for any test or inspection
required by Sec. 238.307 and Sec. 238.309 may be extended by the
number of days in each period the passenger car is out of service since
the last test or inspection in question. A movement made in accordance
with Sec. 229.9 of this chapter or Sec. 238.17 is not considered
service for the purposes of determining the out-of-service credit.

? 17. Appendix A to part 238 is amended by the following:
? a. Adding a new entry for Sec. Sec. 238.229 and 238.230;
? b. Revising the entry for Sec. 238.231(h)(3);
? c. Adding a new entry for Sec. 238.231(h)(4);
? d. Adding a new entry for Sec. 238.303(e)(17);
? e. Adding a new entry for Sec. 238.307(c)(13);
? f. Removing the entries for Sec. 238.307(d), (d)(3), (d)(4) and (d)(5);
? g. Revising the entries for Sec. 238.307(d)(2) and (d)(3);
? h. Adding new entries for Sec. 238.313(j) and (j)(3); and
? i. Adding a new entry for Sec. 238.321 to read as follows:

Appendix A to Part 238--Schedule of Civil Penalties

* * * * *

------------------------------------------------------------------------
Willful
Section Violation violation
------------------------------------------------------------------------

* * * * * * *
238.229 Safety appliances--general:
(e) Failure to properly identify equipment 2,500 5,000
(per car)................................
(g) Failure to adopt or comply with 2,500 5,000
inspection plan..........................
(h) Failure to use qualified person (per 2,500 5,000
car).....................................
(i) Failure to properly conduct initial or 2,500 5,000
periodic inspection (per car)............
(j) Failure to take proper remedial action 2,500 5,000
(per car)................................
(k) Failure to maintain records (per car). 2,000 4,000
238.230 Safety appliances--new equipment:
(b)(2) Failure to identify welded 2,500 5,000
appliance (per car)......................
(b)(3) Failure to receive approval for use 2,500 5,000
(per car)................................
(c)(2) Failure to make proper repair (per 2,500 5,000
car).....................................

* * * * * * *
238.231 Brake system

* * * * * * *
(h)(3) Hand or parking brake inspection or 2,500 5,000
record (per car).........................
(h)(4) Hand or parking brake not applied 5,000 7,500
to hold unattended equipment or
prematurely released.....................

* * * * * * *
238.303 Exterior mechanical inspection of
passenger equipment:

* * * * * * *
(e)(17) Air compressor inoperative........ 2,500 5,000

* * * * * * *
238.307 Periodic mechanical inspection of
passenger cars and unpowered vehicles:

* * * * * * *
(c)(13) Hand or parking brake test not 2,500 5,000
performed................................

* * * * * * *
(d)(1) Manual door release not operate as 2,500 5,000
intended.................................
(d)(2) Hand or parking brake inspection 2,500 5,000
not performed............................

* * * * * * *
238.313 Class I brake test:

* * * * * * *
(j) Failure to perform additional Class I 5,000 7,500
brake test...............................
(j)(3) Failure to maintain record......... 2,000 4,000

* * * * * * *
238.321 Out-of-service credit................. 1,000 2,000

* * * * * * *
------------------------------------------------------------------------

[[Page 61864]]

* * * * *

Issued in Washington, DC, on September 29, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 06-8611 Filed 10-18-06; 8:45 am]
BILLING CODE 4910-06-P

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Passenger Equipment Safety Standards; Miscellaneous Amendments and Attachment of Safety Appliances on Passenger Equipment

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