[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Proposed Rules]
[Pages 38248-38266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15746]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 239

[Docket No. FRA-2011-0062, Notice No. 1; 2130-AC33]


Passenger Train Emergency Preparedness

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to revise its regulations for passenger train 
emergency preparedness. These proposed revisions would: ensure that 
railroad personnel who communicate and coordinate with first responders 
during emergency situations receive initial and periodic training and 
are subject to operational (efficiency) tests and inspections; clarify 
that railroads must develop procedures in their emergency preparedness 
plans (e-prep plans) addressing the safe evacuation of passengers with 
disabilities during emergency situations; limit the need for FRA to 
formally approve purely administrative changes to approved e-prep 
plans; specify new operational (efficiency) testing and inspection 
requirements for both operating and non-operating employees; and remove 
as unnecessary the section on the preemptive effect of the regulations.

DATES: Comments: Written comments must be received by August 27, 2012. 
Comments received after that date will be considered to the extent 
possible without incurring additional expense or delay.
    Hearing: FRA anticipates being able to resolve this rulemaking 
without a public, oral hearing. However, if FRA receives a specific 
request for a public, oral hearing prior to July 27, 2012, one will be 
scheduled and FRA will publish a supplemental notice in the Federal 
Register to inform interested parties of the date, time, and location 
of any such hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2011-0062, 
Notice No. 1, may be submitted by any of the following methods:
     Web site: The Federal eRulemaking Portal, 
www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, 
DC 20590.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the 
Ground level of the West Building, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC33). Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. 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://www.regulations.gov at any time or 
visit the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground 
level of the West Building, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Knote, Staff Director, 
Passenger Rail Division, U.S. Department of Transportation, Federal 
Railroad Administration, Office of Railroad Safety, Mail Stop 25, West 
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: 202-493-6350); or Brian Roberts, Trial Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Chief Counsel, Mail Stop 10, West Building 3rd Floor,

[[Page 38249]]

1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-
6056).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. 1998 Passenger Train Emergency Preparedness Final Rule
    B. 2008 Passenger Train Emergency Systems (PTES I) Final Rule
    C. 2012 Passenger Train Emergency Systems (PTES II) NPRM
    D. The Need for Revisions to Passenger Train Emergency 
Preparedness Regulations
    E. RSAC Overview
    F. Passenger Safety Working Group
    G. General Passenger Safety Task Force
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    FRA is issuing this NPRM to revise FRA's passenger train emergency 
preparedness regulations. This NPRM is intended to clarify certain 
requirements and address issues that have arisen since the regulations 
were issued in May 1998. This NPRM is based on language developed by 
the General Passenger Safety Task Force (Task Force), a subgroup of the 
Railroad Safety Advisory Committee (RSAC), to resolve four main issues 
involving the regulations. The Task Force developed recommendations 
principally to: (1) Ensure that railroad personnel who communicate and 
coordinate with first responders during emergency situations receive 
initial and periodic training and are subject to operational 
(efficiency) tests and inspections under part 239; (2) clarify that 
railroads must develop procedures in their e-prep plans addressing the 
safe evacuation of passengers with disabilities during an emergency 
situation; (3) limit the need for FRA to formally approve purely 
administrative changes to approved e-prep plans; and (4) specify new 
operational (efficiency) testing and inspection requirements for both 
operating and non-operating employees for railroads covered by part 
239. The recommendations developed by the Task Force were approved by 
the full RSAC, and they form the basis of this NPRM.
    Among the NPRM's main proposals, the rule would:
     Clarify the types of railroad personnel who are required 
to be trained or be subjected to operational (efficiency) testing and 
inspections under part 239. This would include railroad personnel who 
directly coordinate with emergency responders;
     Clarify that operational (efficiency) testing under part 
239 can be conducted under and considered part of the railroad's 
efficiency testing program under 49 CFR part 217;
     Allow purely administrative changes to railroad e-prep 
plans to be excluded from the formal review and approval process 
required for more substantive amendments to e-prep plans under part 
239;
     Clarify that railroads must include procedures in their e-
prep plans addressing the safe evacuation of persons with disabilities 
during emergency situations as well as full-scale simulations of 
emergency situations; and
     Remove as unnecessary the section on the preemptive effect 
of the regulations.
    In analyzing the economic impacts of this proposed rule, FRA found 
that proposed regulatory changes would enhance the emergency planning 
process currently in place in part 239. FRA has quantified the costs 
associated with this NPRM. Any additional costs associated with 
amending part 239 would be mostly related to the inclusion of 
additional personnel in the testing and training programs required by 
part 239. Railroads would see reduced burdens in the filing and 
approval process of e-prep plans with non-substantive changes. The 
industry, however, would be subject to additional burden from minor new 
requirements for the submission of e-prep plans to make the review and 
approval of e-prep plans more efficient. Total costs over the next 10 
years are estimated to be $1,049,308 (or present value of $734,922 when 
discounted at 7 percent).
    FRA has analyzed the benefits associated with this rule. Benefits 
would accrue from the increased likelihood that the passenger railroads 
would handle external communications more efficiently, expediting the 
arrival of emergency responders to the accident scene, and from the 
ability of the railroad personnel to minimize health and safety risks 
through improved internal and external communications. FRA utilized a 
break-even analysis to quantify the minimum safety benefits necessary 
for the proposed rule to be cost-effective, considering the estimated 
quantified costs. The break-even point was found to be a reduction in 
severity of 3.84 injuries from Abbreviated Injury Scale (AIS) level 2 
to AIS level 1. Safety benefits are estimated to total $1,091,200 when 
four injuries have their severity mitigated from AIS 2 to AIS 1. Total 
discounted benefits are estimated to be $735,757 (PV 7 percent). The 
benefits for this proposed rule would exceed the estimated costs when 
four injuries are prevented from increasing in severity from an AIS 1 
to an AIS 2. FRA believes the proposed changes in this rulemaking will 
more than exceed the break-even estimate.

II. Background

A. 1998 Passenger Train Emergency Preparedness Final Rule

    On May 4, 1998, FRA published a final rule on passenger train 
emergency preparedness that was codified at 49 CFR part 239. See 63 FR 
24629 (May 4, 1998). The rule addresses passenger train emergencies of 
various kinds, including security situations, and sets minimum Federal 
safety standards for the preparation, adoption, and implementation of 
e-prep plans by railroads connected with the operation of passenger 
trains. The existing rule requires e-prep plans to include elements 
such as communication, employee training and qualification, joint 
operations, tunnel safety, liaison with emergency responders, on-board 
emergency equipment, and passenger safety information. Under the 
requirements of the rule, each affected railroad is required to 
instruct its employees on the applicable provisions of its plan. In 
addition, the plan adopted by each railroad is subject to formal review 
and approval by FRA. The rule also requires each railroad operating 
passenger train service to conduct emergency simulations to determine 
its capability to execute the e-prep plan under the variety of 
emergency scenarios that could reasonably be expected to occur.
    In promulgating the rule, FRA also established specific 
requirements for passenger train emergency systems. Among these are 
requirements that all emergency window exits and windows intended for 
rescue access by emergency responders be marked accordingly and that 
instructions be provided for their use. In addition, FRA established 
requirements that all door exits intended for egress be lighted or 
marked, all door exits intended for rescue access by emergency 
responders be marked, and that instructions be provided for their use.

[[Page 38250]]

B. 2008 Passenger Train Emergency Systems (PTES I) Final Rule

    In 2008, FRA revisited requirements for emergency systems on 
passenger trains by enhancing existing requirements for emergency 
window exits and establishing new requirements for rescue access 
windows used by emergency responders to evacuate passengers. See 73 FR 
6369 (February 1, 2008). While this final rule did not make any changes 
to the passenger train emergency preparedness regulations, the rule 
expanded existing requirements that were previously only applicable to 
passenger trains operating at speeds in excess of 125 mph but not 
exceeding 150 mph (Tier II passenger trains) to passenger trains 
operating at speeds not exceeding 125 mph (Tier I passenger trains), 
see Sec.  238.5. Specifically, Tier I passenger trains were required to 
be equipped with public address and intercom systems for emergency 
communication, as well as provide emergency roof access for use by 
emergency responders. FRA applied certain requirements to both existing 
and new passenger equipment, while other requirements applied only to 
new passenger equipment.

C. 2012 Passenger Train Emergency Systems (PTES II) NPRM

    On January 3, 2012, FRA published an NPRM proposing to enhance 
existing requirements as well as create new requirements for passenger 
train emergency systems. See 77 FR 154 (January 3, 2012). The NPRM 
proposes to add emergency passage requirements for interior vestibule 
doors as well as enhance emergency egress and rescue access signage 
requirements. The NPRM also proposes requirements for low-location 
emergency exit path markings, the creation of minimum emergency 
lighting standards for existing passenger cars, and enhancements to 
existing requirements for the survivability of emergency lighting 
systems in new passenger cars.
    Additionally, the NPRM proposes changes to FRA's passenger train 
emergency preparedness regulations in part 239. These changes include 
clarifying existing requirements for participation in debriefing and 
critique sessions following both passenger train emergency situations 
and full-scale simulations. Under the current regulation, a debriefing 
and critique session is required after each passenger train emergency 
situation or full-scale simulation to determine the effectiveness of 
the railroad's e-prep plan. See Sec.  239.105. The railroad is then 
required to improve or amend its plan, or both, in accordance with the 
information gathered from the session. Language proposed in the PTES II 
NPRM clarifies that, to the extent practicable, all on-board personnel, 
control center personnel, and any other employee involved in the 
emergency situation or full-scale simulation shall participate in the 
debriefing and critique session. The proposed rule would also clarify 
that employees be provided flexibility to participate in the debrief 
and critique sessions through a variety of different methods.

D. The Need for Revisions to Passenger Train Emergency Preparedness 
Regulations

    Among FRA's reasons for initiating this rulemaking, FRA learned 
that there was confusion regarding certain requirements within FRA's 
passenger train emergency preparedness regulations. For example, FRA 
learned that some passenger railroads were confused as to which types 
of railroad personnel were required to be trained or be subjected to 
operational (efficiency) testing and inspections under part 239. These 
railroads were unclear whether part 239 required certain railroad 
personnel who directly coordinate with emergency responders and other 
outside organizations during emergency situations to be trained or be 
subjected to operational (efficiency) testing and inspections. As a 
result, FRA believes that it is necessary to clarify the regulatory 
language in part 239 to ensure that railroad personnel who directly 
coordinate with emergency responders actually receive the proper 
training and are subject to operational (efficiency) testing and 
inspections. FRA also learned that many railroads were unclear whether 
operational (efficiency) testing under part 239 could be considered for 
purposes of the railroad's efficiency testing program required under 49 
CFR part 217.
    In addition, as a result of FRA's experience in reviewing and 
approving passenger railroads' e-prep plans that are updated 
periodically, FRA realized that a number of the changes were purely 
administrative in nature. While part 239 currently subjects all changes 
to an e-prep plan to a formal review and approval process, FRA believes 
that such purely administrative changes should be excluded from the 
process so that the agency can focus its resources on more substantive 
matters.
    Finally, FRA believed it was necessary to clarify part 239 to 
address the requirements of Executive Order 13347. 69 FR 44573 (July 
26, 2004). Executive Order 13347 requires, among other things, that 
Federal agencies encourage State, local, and tribal governments, 
private organizations, and individuals to consider in their emergency 
preparedness planning the unique needs of individuals with disabilities 
whom they serve. While under part 239 the unique needs of passengers 
with disabilities must already be considered in the railroads' e-prep 
plans, the NPRM would clarify the railroads' responsibilities.

E. RSAC Overview

    In March 1996, FRA established RSAC as a forum for collaborative 
rulemaking and program development. RSAC includes representatives from 
all of the agency's major stakeholder groups, including railroads, 
labor organizations, suppliers and manufacturers, and other interested 
parties. A list of member groups follows:
     American Association of Private Railroad Car Owners 
(AAPRCO);
     American Association of State Highway and Transportation 
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association 
(ASLRRA);
     American Train Dispatchers Association (ATDA);
     Association of American Railroads (AAR);
     Association of Railway Museums;
     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);
     Chlorine Institute;
     Federal Transit Administration (FTA);*
     Fertilizer Institute;
     High Speed Ground Transportation Association;
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace 
Workers;
     International Brotherhood of Electrical Workers;
     Labor Council for Latin American Advancement;*
     League of Railway Industry Women;*
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association 
(NRCMA);

[[Page 38251]]

     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB);*
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte;*
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association, Inc.;
     Transport Canada;*
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC 
(TCIU/BRC);
     Transportation Security Administration (TSA);* and
     United Transportation Union (UTU).
    *Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The individual task force then provides that information to 
the working group for consideration. When a working group comes to 
unanimous consensus on recommendations for action, the package is 
presented to the full RSAC for a vote. If the proposal is accepted by a 
simple majority of RSAC, the proposal is formally recommended to FRA. 
FRA then determines what action to take on the recommendation. Because 
FRA staff members play an active role at the working group level in 
discussing the issues and options and in drafting the language of the 
consensus proposal, FRA is often favorably inclined toward the RSAC 
recommendation. However, FRA is in no way bound to follow the 
recommendation, and the agency exercises its independent judgment on 
whether the recommended rule achieves the agency's regulatory goal, is 
soundly supported, and is in accordance with policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal or final 
rule. Any such variations would be noted and explained in the 
rulemaking document issued by FRA. However, to the maximum extent 
practicable, FRA utilizes RSAC to provide consensus recommendations 
with respect to both proposed and final agency action. If RSAC is 
unable to reach consensus on a recommendation for action, the task is 
withdrawn and FRA determines the best course of action.

F. Passenger Safety Working Group

    The RSAC established the Passenger Safety Working Group (Working 
Group) to handle the task of reviewing passenger equipment safety needs 
and programs and recommending consideration of specific actions that 
could be useful in advancing the safety of rail passenger service and 
develop recommendations for the full RSAC to consider. Members of the 
Working Group, in addition to FRA, include the following:
     AAR, including members from BNSF Railway Company (BNSF), 
CSX Transportation, Inc. (CSXT), and Union Pacific Railroad Company 
(UP);
     AAPRCO;
     AASHTO;
     Amtrak;
     APTA, including members from Bombardier, Inc., Herzog 
Transit Services, Inc., Interfleet Technology, Inc. (Interfleet, 
formerly LDK Engineering, Inc.), Long Island Rail Road (LIRR), Maryland 
Transit Administration (MTA), Metro-North Commuter Railroad Company 
(Metro-North), Northeast Illinois Regional Commuter Railroad 
Corporation, Southern California Regional Rail Authority (Metrolink), 
and Southeastern Pennsylvania Transportation Authority (SEPTA);
     ASLRRA;
     BLET;
     BRS;
     FTA;
     NARP;
     NTSB;
     RSI;
     SMWIA;
     STA;
     TCIU/BRC;
     TSA;
     TWU; and
     UTU.
    In 2007, the Working Group tasked the Task Force (General Passenger 
Safety Task Force) to resolve four issues involving FRA's regulations 
related to passenger train emergency preparedness. The issues taken up 
by the Task Force were: (1) Ensure that railroad personnel who 
communicate and coordinate with first responders during emergency 
situations receive initial and periodic training and are subject to 
operational (efficiency) tests and inspections under part 239; (2) 
clarify that railroads must develop procedures in their e-prep plans 
addressing the safe evacuation of passengers with disabilities during 
an emergency situation; (3) limit the need for FRA to formally approve 
purely administrative changes to approved e-prep plans and update FRA 
headquarters' address; and (4) specify new operational (efficiency) 
testing and inspection requirements for both operating and non-
operating employees for railroads covered by part 239.
    While the Task Force was initially charged with updating FRA 
headquarters' address as it appeared in various regulations found in 
part 239, FRA has already amended its regulations to update the address 
of the physical headquarters of FRA and the U.S. Department of 
Transportation in Washington, DC. See 74 FR 25169 (May 27, 2009).

G. General Passenger Safety Task Force

    Members of the Task Force include representatives from various 
organizations that are part of the larger Working Group. Members of the 
Task Force, in addition to FRA, include the following:
     AAR, including members from BNSF, CSXT, Norfolk Southern 
Railway Co., and UP;
     AASHTO;
     Amtrak;
     APTA, including members from Alaska Railroad Corporation, 
Peninsula Corridor Joint Powers Board (Caltrain), LIRR, Massachusetts 
Bay Commuter Railroad Company, Metro-North, MTA, New Jersey Transit 
Corporation, New Mexico Rail Runner Express, Port Authority Trans-
Hudson, SEPTA, Metrolink, and Utah Transit Authority;
     ASLRRA;
     ATDA;
     BLET;
     FTA;
     NARP;
     NRCMA;
     NTSB;
     Transport Canada; and
     UTU.
    The full Task Force met together on the following dates and in the 
following locations to discuss the four e-prep-related issues charged 
to the Task Force:
     July 18-19, 2007, in Chicago, IL;
     December 12-13, 2007, in Ft. Lauderdale, FL;
     April 23-24, 2008, in San Diego, CA; and
     December 3, 2008, in Cambridge, MA.
    Staff from the Volpe Center attended all of the meetings and 
contributed to the technical discussions through their comments and 
presentations. To aid the Task Force in its delegated task, FRA's 
Office of Chief Counsel drafted regulatory text for discussion 
purposes. Task Force members made changes to

[[Page 38252]]

this draft text. Minutes of each of these Task Force meetings are part 
of the docket in this proceeding and are available for public 
inspection. The Task Force reached consensus on all four assigned tasks 
and adopted the draft text created from its meetings as a 
recommendation to the Working Group on December 4, 2008.
    FRA's Office of Chief Counsel revised the Task Force's 
recommendation to conform to technical drafting guidelines and to 
clarify the intent of the recommendation. On June 8, 2009, the Task 
Force presented both its initial consensus language as well as the 
consensus language revised by FRA's Office of Chief Counsel to the 
Working Group. The Working Group approved the Task Force's initial and 
revised consensus language at its June 8, 2009 meeting in Washington, 
DC. The consensus language was then presented before the full RSAC on 
June 25, 2009, where it was approved by unanimous vote. Thus, the 
Working Group's recommendation was adopted by the full RSAC as a 
recommendation to FRA.
    While RSAC's recommendation has provided a strong basis for this 
proposed rule, FRA has varied from the recommendation principally in 
one substantive way: FRA has declined to adopt the RSAC's 
recommendation to add language to Sec.  239.101(a)(2)(ii) that would 
require control center and ERCC personnel to receive initial and 
periodic training only on those portions of the railroad's e-prep plan 
that relate to their specific duties under the plan. FRA explains this 
decision, below. FRA has also made minor changes for purposes of 
clarity and formatting in the Federal Register, but these changes are 
not intended to affect the RSAC's consensus recommendation.

III. Section-by-Section Analysis

Subpart A--General

Section 239.5 Preemptive Effect
    FRA is proposing to remove this section on the preemptive effect of 
the regulations. FRA believes that this section is unnecessary because 
it is duplicative of statutory law at 49 U.S.C. 20106 and case law, 
which sufficiently address the preemptive scope of FRA's regulations.
Section 239.7 Definitions
    FRA is proposing that this section be amended to add a definition 
for the new term ``emergency response communications center'' (ERCC) to 
mean a central location designated by a railroad with responsibility 
for establishing, coordinating, or maintaining communication with 
emergency responders, representatives of adjacent modes of 
transportation, and appropriate railroad officials during a passenger 
train emergency. The ERCC may be part of the railroad's ``control 
center.'' The RSAC recommended that such a definition be added to this 
section, and FRA agrees with the RSAC's recommendation for the reasons 
stated below.
    Currently, the requirements of part 239 do not specifically apply 
to ERCC personnel but rather to personnel in a control center, i.e., a 
central location on a railroad with responsibility for directing the 
safe movement of trains. The individuals working in these train 
dispatch centers are subject to emergency preparedness plan training 
and operational (efficiency) tests and inspections. See 49 CFR 239.101. 
However, only requiring control center personnel to receive training on 
a railroad's emergency preparedness plan may be problematic because in 
many railroads' operational structures train dispatchers only notify 
internal railroad officials about an emergency situation and provide 
block protection for the affected train(s) or equipment involved in the 
incident. While an ERCC can be part of a railroad's dispatch center, 
most railroads maintain a separate center within their organizational 
structure that establishes and maintains communications with emergency 
first responders, adjacent modes of transportation, and appropriate 
railroad officials. In addition, ERCCs assist in coordinating the 
actual emergency response with first responders.
    This NPRM proposes to define ERCCs, which provide vital services 
during an emergency situation, and include the definition in various 
provisions of part 239 that address training, testing, and inspection 
requirements. By including this definition in the existing regulation, 
FRA can expressly require that ERCC personnel, who directly interact 
with emergency first responders, receive the proper training, testing, 
and oversight under the regulation to appropriately prepare for and 
respond to an emergency situation.
    The definition of ERCC recommended by the RSAC and that FRA is 
proposing in this rulemaking provides the railroads with maximum 
flexibility in designating what centers or groups of individuals within 
the railroad's organizational structure qualify as ERCCs and are 
responsible for communicating with the emergency first responders and 
other outside entities during an emergency situation on the railroad. 
With this flexibility, each affected railroad can ensure that the 
correct center or group of individuals within the railroad's 
organizational structure receives training on the railroad's e-prep 
plan, and that the center or group of individuals is subject to 
operational (efficiency) tests and inspections regardless of how the 
center or group of individuals is organized within the railroad.

Subpart B--Specific Requirements

Section 239.101 Emergency Preparedness Plan
    Each railroad subject to the regulation is required to establish an 
e-prep plan under this section that is designed to safely manage 
emergencies and minimize subsequent trauma and injury to passengers and 
on-board personnel. FRA is proposing to revise this section in several 
different ways. Additional language is being proposed to the following 
paragraphs of this section: paragraphs (a)(1)(ii), and (a)(2)(ii) 
through (v). Conversely, this NPRM proposes to remove language from 
paragraph (a)(2)(ii). Finally, FRA is proposing to create an entire new 
paragraph (a)(8). Each proposed change to this section is addressed 
below by paragraph.
    Paragraph (a)(1)(ii). As currently written, paragraph (a)(1) 
requires railroad control center or dispatch personnel to notify 
outside emergency responders, adjacent rail modes of transportation, 
and appropriate railroad officials when a passenger train emergency has 
occurred. However, a number of railroads have found it inefficient to 
use the control center or railroad dispatcher to perform these duties 
during an emergency situation because the personnel are likely 
providing block protection for the incident as well as performing their 
usual dispatching duties for other parts of the railroad unaffected by 
the emergency event. Instead, many railroads currently maintain in 
their organizational structure a separate center or desk within, or 
even completely separate from, the railroad dispatch center that 
establishes and maintains communications with internal and external 
organizations during a railroad emergency. See the discussion in Sec.  
239.7, above.
    Consequently, FRA is proposing to add specific language to this 
paragraph that would provide for ERCCs to notify outside emergency 
responders, adjacent rail modes of transportation, and appropriate 
railroad officials, when an emergency occurs under the passenger 
railroad's e-prep plan. Without this proposed language, the regulation 
would continue to place these responsibilities specifically on control

[[Page 38253]]

center personnel working in the railroad dispatch office. Instead, the 
regulation would now clearly recognize that railroads have the 
flexibility to decide which part of railroad operations should handle 
these tasks during an emergency situation.
    Paragraph (a)(2)(ii). Similar to the proposed change to paragraph 
(a)(1)(ii), additional language is being proposed to paragraph 
(a)(2)(ii) that would require ERCC personnel to receive initial and 
periodic training on appropriate courses of action for each potential 
emergency situation. Under this paragraph, initial and periodic 
training is already required for control center personnel. FRA also 
proposes adding language to this paragraph clarifying that control 
center or ERCC personnel can be employees of the railroad, as well as 
contractors, subcontractors, or employees of a contractor or 
subcontractor to the railroad. FRA notes that contractors, 
subcontractors, and employees of a contactor or subcontractor to the 
railroad are already subject to the requirements of part 239 when 
performing functions under this part per the requirements of Sec.  
239.9. Nonetheless, for clarity FRA is revising the rule text in 
paragraph (a)(2)(ii) and the text in various other paragraphs of this 
part to make clear that contractors, subcontractors, and employees of a 
contractor or subcontractor are indeed covered under the requirements 
of this part.
    FRA notes that RSAC reached consensus on adding language that would 
require control center and ERCC personnel to receive initial and 
periodic training only on those portions of the railroad's e-prep plan 
that relate to their specific duties under the plan. However, FRA 
believes that adding this language could create safety concerns and 
therefore declines to propose adding such language to this paragraph in 
this NPRM. Specifically, FRA is concerned that if individuals receive 
only initial and periodic training on the very specific parts of the 
railroad's e-prep plan they are required to perform during an emergency 
situation, a railroad's entire emergency response could be hindered if 
specific individuals happen to be absent during an actual emergency 
situation. For example, if a specific control center or ERCC employee 
is required under the railroad's e-prep plan to notify internal 
railroad personnel during an emergency situation that an emergency 
situation on the railroad has occurred, and that employee is absent or 
incapacitated during an actual emergency, then the railroad's emergency 
response may be hindered. By ensuring that control center and ERCC 
personnel receive broader initial and periodic training on appropriate 
courses of action on potential emergency situations beyond the 
individual's specific duties under the railroad's e-prep plan, these 
individuals will have a more holistic view of the railroad's emergency 
response and therefore be better prepared to respond to an emergency 
situation regardless of the specific circumstances.
    FRA believes that training control center and ERCC personnel on the 
railroad's entire e-prep plan, not just the specific portions of the 
plan that relate to their specific duties, will not add any additional 
cost to the railroads because the railroads are already providing this 
broader level of training to their employees. Many railroads provide 
this holistic training on the railroad's e-prep plan through an 
informational video, which provides useful information to the employees 
on all levels of the railroad's emergency response.
    FRA also proposes to amend paragraphs (a)(2)(ii)(A) through (D). In 
paragraph (a)(2)(ii)(A), FRA proposes to remove the word ``dispatch'' 
before ``territory familiarization.'' The Task Force recommended that 
the word ``dispatch'' be removed from this subsection so that control 
center and ERCC personnel who are not railroad dispatchers would not be 
required to be as familiar with a territory as dispatchers are required 
to be under current railroad operating rules. For example, to conduct 
their duties efficiently and safely, railroad dispatchers are required 
to memorize the physical characteristics of the railroad territory over 
which they control train movements. While this is necessary for a 
railroad dispatcher, the Task Force believed, and FRA agrees, that this 
level of familiarity with railroad territory is not necessary for 
individuals working in a control center or ERCC who are not railroad 
dispatchers.
    Therefore, FRA proposes that the word ``dispatch'' be struck from 
paragraph (a)(2)(ii)(A). Individuals working in control centers or 
ERCCs who are not also railroad dispatchers would not be required to 
have complete dispatch territory familiarization in their capacity to 
assist in emergency situations. If the proposed language is adopted, 
railroads would not have to spend resources training all control center 
and ERCC personnel who are not railroad dispatchers to be as familiar 
with the railroad territory in question. Instead, for the purposes of 
this paragraph, territory familiarization would focus on, but not be 
limited to: access points for emergency responders along the railroad's 
right-of-way; special circumstances (e.g., tunnels); parallel 
operations; and other operating conditions (e.g., elevated structures, 
bridges, and electrified territory) including areas along the 
railroad's right-of-way that are remote and known to present challenges 
for emergency personnel responding to a passenger train emergency.
    To complement the proposed language in paragraph (a)(2)(ii)(A), 
paragraph (a)(2)(ii)(B) would require initial and periodic training for 
control center and ERCC personnel on their ability to access and 
retrieve information that would aid emergency personnel in responding 
to an emergency situation. (Current paragraph (a)(2)(ii)(B) would be 
redesignated as proposed paragraph (a)(2)(ii)(C), below). Under the 
proposed regulation, control center and ERCC personnel would be 
required to receive sufficient training to be able to retrieve 
information to assist emergency personnel in their emergency response. 
For example, under a railroad's e-prep plan, a railroad employee 
designated as part of an ERCC might be required to be trained on how to 
electronically retrieve a map of railroad property, read it properly, 
and identify and describe important points of access to emergency 
responders.
    Language is also proposed to be added to paragraph (a)(2)(ii)(C) 
(redesignated from (a)(2)(ii)(B)). This new proposed language would 
require control center and ERCC personnel to receive initial and 
periodic training on the railroad's e-prep plan, including what 
protocols govern internal communications between these two groups when 
an actual emergency situation occurs. The language ``as applicable 
under the plan,'' would also be added to the regulatory text to 
emphasize that due to the variety of possible organizational designs on 
how railroads handle emergency responses, it is ultimately each 
individual railroad's decision on what protocols will be followed to 
govern internal communication between control center and ERCC 
personnel.
    Finally, a new paragraph (a)(2)(ii)(D) is proposed. This new 
paragraph reflects the Task Force's recommendation that initial and 
periodic e-prep plan training should include the protocols for 
establishing and maintaining external communications between the 
railroad's control center or ERCC, or both, and emergency responders. 
The Task Force recommended and FRA agrees that adding this requirement 
will ensure that control center and ERCC personnel receive initial and 
periodic training on what protocols need to be followed to

[[Page 38254]]

establish and maintain communications with external organizations 
assisting in the emergency response. The Task Force and FRA believe 
that it is just as important for control center and ERCC personnel to 
learn the protocols for establishing and maintaining communications 
with external organizations as for the protocols governing internal 
communications between centers being proposed in paragraph 
(a)(2)(ii)(C).
    FRA also realizes that if these proposed changes to part 239's 
emergency preparedness plan requirements are adopted, then railroads 
may have to amend their e-prep plans in order to be in compliance with 
the new requirements. Therefore, FRA intends to provide railroads 
sufficient time to have their amended e-prep plans submitted to FRA for 
review after the final rule making these changes is issued. FRA is 
considering lengthening the effective date of the final rule to do so, 
and invites comment on this issue.
    Paragraph (a)(2)(iii). FRA is proposing to add language to 
paragraph (a)(2)(iii) that would require ERCC personnel to be included 
in the initial training after the e-prep plan is approved under Sec.  
239.201(b)(1). It is important that ERCC personnel be included in this 
training because, depending on the organizational structure of the 
railroad, the actions of ERCC personnel during an emergency response 
situation may be more pivotal to the successful implementation of the 
plan than the actions of control center personnel. Language is also 
proposed to be added to paragraph (a)(2)(iii) so that not only would 
control center and ERCC personnel who are employed by the railroad be 
covered by the regulation, but also control center and ERCC personnel 
who are railroad contractors and subcontractors as well as employees of 
these contractors and subcontractors. The proposed heading of this 
paragraph reflects this change as well.
    Paragraph (a)(2)(iv). Similar to the proposed language in paragraph 
(a)(2)(iii), this NPRM proposes to add language to paragraph (a)(2)(iv) 
to ensure that ERCC personnel hired after the e-prep plan is approved 
by FRA receive initial training within 90 days after the individual's 
initial date of service with the railroad. Currently, this paragraph 
expressly requires that only on-board and control center personnel 
receive initial training within 90 days after their initial date of 
service with the railroad. Depending on how a railroad has chosen to 
organize its response to a specific emergency situation, failure to 
train a new ERCC employee within 90 days of starting his or her service 
on the railroad could create inefficiencies in the railroad's response 
to an emergency situation. Therefore, FRA proposes this modification to 
ensure that the railroads do not delay in providing training to new 
ERCC personnel.
    In addition, FRA is also proposing to add language to paragraph 
(a)(2)(iv) clarifying that not only are railroad employees covered by 
the requirements of this paragraph, but also on-board, control center, 
and ERCC contractors, subcontractors, and employees of contractors or 
subcontractors. A change to the heading of paragraph (a)(2)(iv) is also 
being proposed to reflect the proposed modification of the regulatory 
text.
    Paragraph (a)(2)(v). FRA is proposing to add language to this 
paragraph to clarify that railroads need to develop testing procedures 
not only for employees, but also for contractors and subcontractors, as 
well as employees of contractors and subcontractors who are being 
evaluated for qualification under the railroad's e-prep plan. The 
current regulatory text expressly requires railroads to develop testing 
procedures for railroad employees only. This proposed language, if 
adopted, would clarify that employees, as well as contractors, 
subcontractors, and employees of contractors and subcontractors, are 
required to be evaluated for qualification under the railroad's e-prep 
plan using appropriate testing procedures. Language is also being 
proposed to the heading of this paragraph to reflect the proposed 
change and to clarify that railroads need to develop testing procedures 
for ERCC personnel as well as on-board and control center personnel.
    Finally, paragraph (a)(2)(v)(A) is proposed to be modified to 
require that testing procedures developed by the railroads accurately 
measure an individual's, rather than an individual employee's, 
knowledge of his or her responsibilities under the railroad's e-prep 
plan. Currently, paragraph (a)(2)(v)(A) expressly applies only to 
railroad employees, and this modification would ensure that railroad 
contractors and subcontractor are covered by the provision as well.
    Paragraph (a)(8). Executive Order 13347 (``Individuals with 
Disabilities in Emergency Preparedness'') requires the Federal 
government to appropriately support safety and security for individuals 
with disabilities in all types of emergency situations. 69 FR 44573 
(July 26, 2004). Currently, each railroad subject to part 239 is 
required to provide for the safety of each of its passengers in its 
emergency preparedness planning. Nonetheless, FRA is proposing a new 
paragraph (a)(8) that would clarify that these railroads must include 
procedures in their e-prep plans addressing the safe evacuation of 
persons with disabilities during emergency situations (and full-scale 
simulations of them). FRA expects the railroads to address the 
responsibilities of on-board personnel to carry out these specific 
procedures. For example, if a train has a failure or is involved in an 
incident and an evacuation is deemed necessary, a crewmember in the 
body of the train would need to search for and identify those 
passengers who cannot reasonably be evacuated by stairs or steps.
    This new paragraph would not require a railroad to maintain any 
list of train passengers, whether or not they have a disability. 
However, the railroad must have in place procedures so that the 
locations of persons with disabilities on board its trains are 
generally known to the train crew, and that such persons can be 
evacuated under all potential conditions that require passenger 
evacuation, including those conditions identified under the Special 
Circumstances portion of the railroad's e-prep plan, when applicable, 
as required by paragraph (a)(4) of this section. In this regard, the 
railroad must address those situations requiring immediate passenger 
evacuation with or without the assistance of emergency response 
personnel or railroad personnel not on board its trains. At the same 
time, the railroad must have a process for notifying emergency response 
personnel in an emergency situation about the presence and general 
location of persons with disabilities when the railroad has knowledge 
that such passengers are on board a train.
Section 239.105 Debriefing and Critique
    This section requires railroads operating passenger train service 
to conduct debriefing and critique sessions after each passenger train 
emergency situation or full-scale emergency simulation to determine the 
effectiveness of the railroad's e-prep plan. FRA is proposing to add 
language to paragraph (c)(3) of this section so that the debriefing and 
critique session would be designed to determine whether the ERCC, as 
well as the control center, promptly initiated the required 
notifications. In addition, FRA makes clear that the plan's 
effectiveness in the evacuation of passengers with disabilities must be 
addressed during debrief and critique sessions.

[[Page 38255]]

Subpart C--Review, Approval, and Retention of Emergency Preparedness 
Plans

Section 239.201 Emergency Preparedness Plan; Filing and Approval
    Section 239.201 specifies the process for review and approval by 
FRA of each passenger railroad's e-prep plan. FRA is proposing to 
divide paragraph (a) of this section into paragraphs (a)(1) and (a)(2). 
As proposed, paragraph (a)(1) contains the regulatory requirements on 
how to file an e-prep plan, while proposed paragraph (a)(2) contains 
the requirements on how to file an amendment to an FRA-approved plan. 
Proposed paragraph (a)(2) is then further subdivided. Proposed 
paragraph (a)(2)(i) describes what procedures a railroad must follow 
when filing amendments to its e-prep plan with FRA. Conversely, 
proposed paragraph (a)(2)(ii) lists the limited circumstances in which 
a railroad could enact an amendment to its approved e-prep plan without 
first getting FRA approval of the amendment. Finally, FRA is also 
proposing to add language to paragraph (b)(3) to clarify that FRA will 
not formally review the limited number of amendments that could be 
enacted without prior FRA approval as described in proposed paragraph 
(a)(2)(ii).
    Specifically, FRA proposes a few small modifications to paragraph 
(a)(1). First, FRA is proposing to update the title of the FRA official 
who receives a railroad's e-prep plan, from Associate Administrator for 
Safety to Associate Administrator for Railroad Safety/Chief Safety 
Officer. Additionally, since the time part 239 was enacted, FRA's 
Office of Safety officially became the Office of Railroad Safety. 
Therefore, FRA proposes to update the language in proposed paragraph 
(a)(1) to reflect the name change of this FRA office. The RSAC also 
recommended modification of the time period new-start passenger 
railroads have to submit their e-prep plans to FRA before commencing 
passenger service. Currently, e-prep plans must be submitted by these 
passenger railroads no less than 45 days prior to commencing passenger 
operations. Consistent with this recommendation, FRA proposes that such 
railroads must submit their plans to FRA no less than 60 days prior to 
commencing passenger operations. This proposed change would provide FRA 
safety officials more time to review a railroad's e-prep plan, identify 
any safety concerns, and notify the railroad of any such concerns so 
that changes to the plan could be made before actual passenger 
operations commence. FRA notes that the original filing deadline for 
passenger railroads in operation around the time part 239 went into 
effect was not more than 180 days after May 4, 1998. For those 
passenger railroads then in existence and for those passenger railroads 
that have started-up service since and have already filed and received 
approval on their plans, the rule would make clear that those plans are 
timely filed.
    FRA also proposes to redesignate as paragraph (a)(2)(i) the 
regulatory requirement that all amendments to approved e-prep plans be 
filed with FRA 60 days prior to the effective date of the amendment. 
One exception to this requirement would be the limited number of e-prep 
plan amendments that can be enacted without FRA approval, listed in 
proposed paragraph (a)(2)(ii). These limited types of amendments to 
railroad e-prep plans would continue to be required to be filed with 
FRA, but they would become immediately effective and would not require 
FRA formal approval.
    However, under proposed paragraph (a)(2)(i), e-prep plan amendments 
submitted to FRA that do not qualify for the exception in proposed 
paragraph (a)(2)(ii) must be submitted with a written summary of what 
the proposed amendment would change in the approved e-prep plan and, as 
applicable, a training plan describing how and when current and new 
employees and contractors would be trained on any amendment. For 
example, if the amendment would affect how current and new railroad 
employees and contractors assist emergency responders, then under this 
paragraph the railroad must also submit a training plan with the 
amendment stating how and when these employees and contractors would be 
trained on these changes to the railroad's e-prep plan. As another 
example, if the railroad wants to identify new access roads to railroad 
property in its e-prep plan, then a training plan for employees and 
contractors should be included with the proposed amendment. Having the 
railroads include a summary with their proposed e-prep plan amendments 
that are not exempted by proposed paragraph (a)(2)(ii) is necessary 
because currently railroads have been submitting their entire approved 
e-prep plans with the amendment changes already incorporated in the 
plan without identifying to FRA what changes the railroad is 
specifically seeking to make to its approved e-prep plan. This has 
delayed FRA's ability to review the railroad's proposed amendment and 
respond to the railroad within 45 days as specified in paragraph 
(b)(3)(i). Requiring the railroads to include such summaries will help 
FRA efficiently review the proposed amendments and respond back to the 
railroad normally within 45 days; nevertheless, some reviews may take 
longer.
    As previously stated, FRA is proposing a new paragraph (a)(2)(ii) 
under which qualifying amendments would not be subject to FRA's formal 
approval process as outlined in paragraph (b)(3)(i). Amendments that 
add or amend the name, title, address, or telephone number of the e-
prep plan's primary contact person would qualify under paragraph 
(a)(2)(ii). Railroads filing amendments under this paragraph would be 
permitted to enact the amendment changes upon filing the amendment with 
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer. 
Including a summary of the proposed changes caused by the amendment 
would not be required. All other e-prep plan amendments not covered by 
paragraph (a)(2)(ii) would be required to be filed in accordance with 
paragraph (a)(2)(i) and be subject to the formal approval process 
proposed in paragraph (b)(3)(i). FRA believes that paragraph (a)(2)(ii) 
is needed in order to limit the need for FRA to formally approve purely 
administrative changes to previously approved railroad e-prep plans. 
This new paragraph will allow these specific types of amendments to 
become effective immediately upon filing with FRA and thereby help to 
streamline the approval process.
    Additional language is also being proposed to paragraph (b)(3) in 
order to clarify that the limited types of amendments containing only 
administrative changes described in proposed paragraph (a)(2)(ii) would 
be exempt from the formal FRA review that is described in this 
paragraph.

Subpart D--Operational (Efficiency) Tests; Inspection of Records and 
Recordkeeping

Section 239.301 Operational (Efficiency) Tests and Inspections
    Section 239.301 requires railroads to monitor the routine 
performance of their personnel who have individual responsibilities 
under the e-prep plan to verify that they can perform the duties 
required under the plan in a safe and effective manner. FRA is 
proposing to modify this section in several ways. First, FRA is 
proposing to add headings to each main paragraph for clarity. Second, 
FRA proposes to add language to paragraph (a) that clarifies that 
railroads are required to specify in their e-prep plans the specific 
intervals they will periodically conduct operational (efficiency) tests 
and inspections for

[[Page 38256]]

individuals with responsibilities under the e-prep plans. Additionally, 
FRA is proposing to add language to paragraph (a) that will require any 
ERCC personnel, railroad contractors or subcontractors, or employees of 
railroad contractors or subcontractors, to be subject to operational 
(efficiency) tests and inspections. Finally, FRA is proposing to add 
new paragraphs (a)(1), (a)(1)(i) through (vi), (a)(2), (d), and (e). 
The specific requirements proposed in each new paragraph are discussed 
below.
    In paragraph (a), FRA is proposing to add the heading, 
``Requirement to conduct operational (efficiency) tests and 
inspections.'' FRA believes that this heading will help the regulated 
community identify that paragraph (a) of this section specifically 
addresses operational (efficiency) test and inspection requirements. 
Additionally, FRA is proposing to add language to paragraph (a) that 
will require ERCC personnel, railroad contractors or subcontractors, as 
well as employees of railroad contractors to be subject to the same 
periodic operational (efficiency) tests and inspections as on-board and 
control center employees are under the current regulation. Adding this 
language to the regulation is necessary to ensure that all individuals 
who assist in the railroad's emergency response are subject to 
operational (efficiency) tests and inspections. This proposed language 
is intended to help ensure that railroads are prepared to provide an 
appropriate response in the event of an emergency situation. FRA is 
also proposing in paragraph (a)(1) to identify basic elements that must 
be included in the railroad's written program of operational 
(efficiency) tests and inspections.
    FRA proposes six new paragraphs under paragraph (a)(1). Each new 
paragraph includes a required element that must be addressed in every 
railroad's written program of operational (efficiency) tests and 
inspections. RSAC recommended that FRA adopt these requirements, which 
were modeled from regulations found in 49 CFR 217.9, Program of 
operational tests and inspections; recordkeeping. In fact, in several 
instances, language was directly taken from various provisions of Sec.  
217.9--specifically, Sec.  217.9(c)(3) through (5). While part 217 
prescribes processes for railroad operating employees only (e.g., train 
and engine crews), its approach to operational tests and inspections is 
useful for governing individuals covered by FRA's emergency 
preparedness requirements in part 239. However, as proposed, not just 
railroad operating employees but all on-board, control center, and ERCC 
employees, as well as contractors and sub-contractors in these roles, 
would be subject to these tests and inspections as applicable under the 
railroad's e-prep plan. Each of the new proposed paragraphs is 
discussed below.
    For clarification, FRA notes that part 239 operational (efficiency) 
tests and inspections can also qualify as operational tests under Sec.  
217.9 if the employee, contractor or subcontractor being tested is also 
performing functions that are covered by part 217. Likewise, 
operational tests conducted under part 217 can also be accredited as 
operational (efficiency) tests under part 239 as long as the criteria 
for operational (efficiency) tests and inspections in part 239 are met. 
For example, passenger train conductors are subject to operational 
(efficiency) testing under both parts 217 and 239. An operational 
(efficiency) test of a passenger train conductor that involves the 
procedures for passenger train emergency preparedness would satisfy 
requirements under both parts 217 and 239. In contrast, an operational 
(efficiency) test of a passenger train conductor that involves the 
procedures for operating derails would satisfy the requirements under 
part 217 only.
    Operational (efficiency) testing under part 239 can be conducted as 
part of a railroad's efficiency testing program under Sec.  217.9 or in 
an entirely separate program. However, if adopted, the proposed 
operational (efficiency) test and inspections requirements for part 239 
will have a broader applicability than just to the employees covered by 
Sec.  217.9, as noted above. For example, these proposed requirements 
would also cover such individuals as passenger car attendants and ERCC 
employees, who would not be covered under part 217. Therefore, a 
railroad that would prefer to conduct its operational (efficiency) 
testing required by part 239 as part of its efficiency testing program 
under Sec.  217.9 would need to modify its program to ensure that the 
additional tests are included and conducted for all of the employees 
required to be covered under part 239.
    As proposed, paragraph (a)(1)(i) will require railroads to provide 
in their e-prep plans a program of operational (efficiency) tests and 
inspections for railroad employees, railroad contractors or 
subcontractors, and employees of railroad contractors and 
subcontractors addressing the appropriate courses of action in response 
to various potential emergency situations and the responsibilities for 
these individuals under the railroad's e-prep plan. For example, they 
should address how railroad personnel on board a train respond in case 
a fire occurs. They should also address what each on-board employee's, 
contractor's, or subcontractor's individual responsibilities are during 
such an emergency situation. FRA believes that these proposed 
requirements would help to reduce confusion during an actual emergency 
situation and ensure that the railroad's on-board staff undergo 
operational (efficiency) tests and inspections on actions they would be 
performing during an emergency event. Only railroad employees, railroad 
contractor and subcontractors, and employees of railroad contractors 
and subcontractors who are covered by or have responsibilities under 
the railroad's e-prep plan would be subject to operational (efficiency) 
tests and inspections from the railroad. Hired or contracted employees 
working for the railroad who do not have any responsibilities under the 
railroad's e-prep plan would not have to be subject to operational 
(efficiency) tests and inspections.
    Paragraph (a)(1)(ii) proposes that the railroads describe each type 
of operational (efficiency) test and inspection required for passenger 
train emergency preparedness. The description must also specify the 
means and procedures used to carry out these operational (efficiency) 
tests and inspections. For example, an operational (efficiency) test 
intended for an on-board employee may be conducted as a challenge 
question posed by a supervisor. In this example, the supervisor may ask 
the employee what his or her responsibilities are for the evacuation of 
passengers, including passengers with disabilities, in specific 
circumstances such as a passenger car filling with smoke. In another 
instance, a supervisor may ask an ERCC employee to identify a special 
circumstance (e.g., a tunnel or bridge) located in his or her territory 
and demonstrate how the employee would direct emergency responders to 
the location during an actual emergency. Overall, operational 
(efficiency) tests and inspections adopted for passenger train 
emergency preparedness should cover all affected employees and be 
comprehensive.
    Proposed paragraph (a)(1)(iii) will require the railroads to state 
in their e-prep plans the purpose of each type of operational 
(efficiency) test and inspection conducted. For example, an operational 
(efficiency) test intended for on-board employees may be conducted to 
determine if the employees are familiar with passenger evacuation 
procedures. As another example, such tests intended for ERCC employees 
may

[[Page 38257]]

be conducted to determine if the ERCC employees are familiar with 
special circumstances on their territory and if they know how to direct 
emergency responders to these locations. In particular, conducting 
operational (efficiency) tests on ERCC employees to determine their 
knowledge of the railroad's e-prep plan, special circumstances, and 
access points would be necessary to ensure that they are familiar with 
emergency procedures and capable of directing emergency responders to a 
passenger train in the event of an emergency.
    FRA is also proposing to add new paragraph (a)(1)(iv), which will 
clarify that each railroad must specify in its operational testing 
program the specific intervals at which it will periodically conduct 
operational (efficiency) tests and inspections for individuals covered 
by paragraph (a). This information should be listed according to 
operating division where applicable. FRA believes that this additional 
language is necessary after reviewing e-prep plans submitted by various 
railroads to FRA. In reviewing railroad e-prep plans, FRA discovered 
that some railroads would simply state in their plans that they would 
periodically conduct operational (efficiency) tests and inspections 
without specifying by what specific interval these tests or inspections 
would be administered. In some instances, railroads simply copied the 
language directly from Sec.  239.301(a) and placed it into their e-prep 
plans.
    By adding this proposed language, FRA is not mandating any specific 
interval by which the railroad should conduct these tests and 
inspections. FRA believes that the regulated community should have the 
flexibility to decide when individuals covered by paragraph (a) should 
be periodically subject to these tests and inspections based on the 
individual circumstances of each railroad and its e-prep plan and 
operational testing program. The proposed language will not affect the 
railroad's current ability to determine how often these periodic tests 
and inspections should occur. However, FRA will require the railroad to 
provide more information to the agency so that FRA can better verify 
that these types of tests and inspections are in fact occurring as 
planned, and that the railroads are properly carrying out their 
responsibilities in preparing to deal with various emergency 
situations.
    Proposed paragraph (a)(1)(v) will require the railroad to identify 
in its e-prep plan each officer by name, job title, and division or 
system, who is responsible for ensuring that the program of operational 
(efficiency) tests and inspections is properly implemented. Therefore, 
for each railroad division or system there should be a separate contact 
person listed within the e-prep plan who is responsible for 
implementing the details of the plan on that specific division or 
system during an emergency situation. In addition, for railroads that 
have multiple divisions, the proposed regulation would require the 
railroad to identify at least one officer at the railroad's system 
headquarters who is responsible for overseeing the entire railroad's 
program and the e-prep plan implementation. This individual should be 
knowledgeable about the current state of the railroad's operational 
(efficiency) test and inspection requirements as well as the current 
state of the railroad's e-prep program system-wide.
    The final proposal, in paragraph (a)(1)(vi), would require that 
railroad officers conducting operational (efficiency) tests and 
inspections be trained on the elements of the railroad's e-prep plan 
that are relevant to the tests and inspections that the officers will 
be conducting. In addition, the railroad officers conducting the 
operational (efficiency) tests and inspections must be qualified on the 
procedures for administering such tests and inspections in accordance 
with the railroads written program.
    FRA also proposes to add headings to both paragraphs (b) and (c) of 
this section. FRA believes that adding the heading ``Keeping records of 
operational (efficiency) test and inspection records'' to paragraph (b) 
will help clarify that paragraph (b) addresses what types of written 
records need to be created and retained after the performance of an 
operational (efficiency) test or inspection. Similarly, the heading 
``Retention of operational (efficiency) test and inspection records'' 
is proposed to be added to paragraph (c). This proposed heading will 
clarify that paragraph (c) addresses the requirements for how long 
records of operational (efficiency) tests and inspections need to be 
retained by the railroad. FRA believes that these proposed headings 
will be useful guides for the regulated community, especially those who 
are unfamiliar with part 239 and its requirements.
    Proposed paragraph (d) contains a new requirement that each 
railroad retain one copy of its current operational (efficiency) 
testing and inspection program required by paragraph (a) of this 
section and each subsequent amendment to the program. If this proposed 
requirement is adopted, railroads will be required to retain a copy of 
the current program and any subsequent amendment to the program at the 
railroad's system headquarters and at each divisional headquarters for 
three calendar years after the end of the calendar year to which the 
program relates. The records must also be made available for inspection 
and copying during normal business hours by representatives of FRA and 
States participating under 49 CFR part 212.
    Finally, FRA is proposing to add a new paragraph (e) to this 
section. As recommended by RSAC, this proposed paragraph will require 
each railroad subject to this part to retain a written annual summary 
of the number, type and result of each operational (efficiency) test 
and inspection that was conducted in the previous year as required by 
paragraph (a) of this section. When applicable, these summaries 
describing the railroad's operational (efficiency) tests and 
inspections would be required to be organized by operating division. 
These summaries are intended to provide FRA with a clearer 
understanding of how operational (efficiency) tests and inspections are 
being applied and how successful these programs are over different 
railroad divisions. Annual summaries would be required to be completed 
and in the possession of the railroad's division and system 
headquarters by March 1 of the year following the year covered by the 
summary.
    In addition, the annual summary will be required to be retained by 
the railroad for three calendar years after the end of the calendar 
year covered by the summary. For example, a railroad's 2013 annual 
summary of operational (efficiency) tests and inspections would be 
required to be retained through calendar year 2016. Annual summaries 
would be required to be made available for inspection and copying 
during normal business hours by representatives of FRA and States 
participating under 49 CFR part 212.
    FRA specifically invites comment on the appropriateness of proposed 
paragraph (e). Given that the intended purpose of the proposal is to 
provide FRA with a clear understanding of how operational (efficiency) 
tests and inspections are being applied and how successful these 
programs are being implemented from a systems perspective, FRA invites 
comment whether the periodic review and analysis requirements of Sec.  
217.9(e) should be adopted in the final rule to more appropriately 
fulfill the intended purpose. Indeed, under Sec.  217.9(e), railroads 
should already be reviewing and analyzing operational (efficiency) test 
and inspection data conducted for

[[Page 38258]]

passenger train emergency preparedness on individuals subject to part 
217; the requirements of the paragraph could then be broadened to cover 
individuals subject to part 239. FRA also believes that a railroad 
could consolidate such a review and analysis required by part 239 with 
one required under Sec.  217.9(e), and that they could be retained for 
a period of one year after the end of the calendar year to which they 
relate and be made available to representatives of FRA and States 
participating under 49 CFR part 212.

IV. Regulatory Impact and Notices

A. Executive Order 12866s and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures under both Executive Orders 12866 and 13563 and 
DOT policies and procedures. See 44 FR 11034; February 26, 1979. FRA 
has prepared and placed in the docket (FRA-2011-0062, Notice No. 1) a 
regulatory impact analysis addressing the economic impact of this 
proposed rule.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of the cost streams expected to result from 
the implementation of this proposed rule. For the 10-year period 
analyzed, the estimated quantified cost that would be imposed on 
industry totals $1,049,308 with a present value (PV, 7 percent) of 
$734,922. The largest burdens that would be expected to be imposed are 
from the new requirements related to the operational (efficiency) tests 
in Sec.  239.301 of the proposed regulation. The table below presents 
the estimated discounted costs associated with the proposed rulemaking.

                10-Year Estimated Costs of Proposed Rule
------------------------------------------------------------------------
                                                    Present value  (7-
                                                         percent)
------------------------------------------------------------------------
Emergency Preparedness Plan (Sec.   239.101)...                 $219,833
Debriefing and Critique (Sec.   239.105).......                  200,273
Emergency Preparedness Plan; Filing and                           12,006
 Approval (Sec.   239.201).....................
Operational (efficiency) Tests (Sec.   239.301)                  302,810
                                                ------------------------
    Total Costs................................                  734,922
------------------------------------------------------------------------

    As part of the regulatory impact analysis, FRA has explained what 
the likely benefits for this proposed rule would be, and provided 
numerical assessments of the potential value of such benefits. The 
proposed regulation would generate safety benefits by preventing 
injuries in passenger rail accidents from becoming more severe. FRA 
uses the Abbreviated Injury Scale (AIS) as a measure of the severity 
for injuries with an AIS 1 injury being defined as minor and an AIS 5 
as the most severe, i.e., critical.\1\ As noted in Appendix A of the 
regulatory impact analysis an AIS 1 would be an injury that is minor 
and may not require professional medical treatment. An AIS 2 injury 
would be an injury that always requires treatment but is not ordinarily 
life-threatening. Benefits would accrue from the increased likelihood 
that the passenger railroads would handle external communications more 
efficiently, expediting the arrival of emergency responders to accident 
scenes, and from the ability of the railroad personnel to minimize 
health and safety risks through improved internal and external 
communications. This proposed regulation would allow for more 
flexibility in passenger train emergency preparedness planning and 
implementation and provides for necessary emergency preparedness 
training.
---------------------------------------------------------------------------

    \1\ Association for the Advancement of Automotive Medicine. 
http://www.aaam1.org/ais/#.
---------------------------------------------------------------------------

    Additionally, the NPRM would allow passenger railroads to adjust to 
future personnel reorganizations and to incorporate technological 
innovations by affording the railroad's management flexibility in 
determining which part of the organization to designate as the ERCC.
    Given the nature of the proposed regulatory change, FRA believes 
that the ideal methodology to estimate the safety benefits is a break-
even analysis. A break-even analysis quantifies what minimum safety 
benefits are necessary for the proposed rule to be cost-effective, 
considering the estimated quantified costs. For this proposed rule, 
this analysis estimates that the break-even point is met when 3.84 
injuries are prevented from increasing in severity from AIS 1 to AIS 2.
    The table below presents the estimated benefits necessary for this 
proposed rule to break-even with the estimated costs. For the 10-year 
period analyzed the safety benefits would total $1,049,308 with a 
present value (PV, 7 percent) of $735,757.

               10-Year Estimated Benefits of Proposed Rule
------------------------------------------------------------------------
                                   Limitation of injury      Monetary
                                         severity            benefits
------------------------------------------------------------------------
Break-even point (not            3.84 less severe             $1,049,308
 discounted).                     injuries.
Discounted benefits (PV 7        3.84 less severe                735,757
 percent).                        injuries.
------------------------------------------------------------------------


[[Page 38259]]

    The benefits for this proposed rule would exceed the estimated 
costs when 4 injuries are prevented from increasing in severity from an 
AIS 1 to an AIS 2. FRA believes the proposed changes in this rulemaking 
will more than exceed the break-even estimate.

B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. An agency must prepare an initial regulatory flexibility 
analysis (IRFA) unless it can determine and certify that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. FRA has not determined whether this proposed 
rule would have a significant impact on a substantial number of small 
entities. Therefore, FRA is publishing this IRFA to aid the public in 
commenting on the potential small business impacts of the requirements 
in this NPRM. FRA invites all interested parties to submit data and 
information regarding the potential economic impact on small entities 
that would result from adoption of the proposals in this NPRM. FRA will 
consider all comments received in the public comment process when 
making a final determination.
    The proposed rule would apply to all passenger railroads (commuter 
and intercity) and railroads that host passenger rail operations. Based 
on information currently available, FRA estimates that less than 2 
percent of the total costs associated with implementing the proposed 
rule would be borne by small entities. Based on very conservative 
assumptions, FRA estimates that the total non-discounted cost for the 
proposed rule would be approximately $1 million for the railroad 
industry. There are two passenger railroads that would be considered 
small for purposes of this analysis and together they comprise less 
than 5 percent of the railroads impacted directly by this proposed 
regulation. Both of these railroads would have to make some investment 
to meet the proposed requirements. Thus, a substantial number of small 
entities in this sector may be impacted by this proposed rule. These 
small railroads carry out smaller operations than the average passenger 
railroad, allowing them to meet the proposed requirements at lower 
overall costs. Thus, although a substantial number of small entities in 
this sector would likely be impacted, the economic impact on them would 
likely not be significant.
    In order to get a better understanding of the total costs for the 
railroad industry, which forms the basis for the estimates in this 
IRFA, or more cost detail on any specific requirement, please see the 
Regulatory Impact Analysis (RIA) that FRA has placed in the docket for 
this rulemaking.
    In accordance with the Regulatory Flexibility Act, an IRFA must 
contain:
     A description of the reasons why the action by the agency 
is being considered.
     A succinct statement of the objectives of, and legal basis 
for, the proposed rule.
     A description--and, where feasible, an estimate of the 
number--of small entities to which the proposed rule would apply.
     A description of the projected reporting, record keeping, 
and other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that would be subject to the 
requirements and the types of professional skills necessary for 
preparation of the report or record.
     An identification, to the extent practicable, of all 
relevant Federal rules that may duplicate, overlap, or conflict with 
the proposed rule.
1. Reasons for Considering Agency Action
    FRA initiated this rulemaking through RSAC in part upon learning 
that in the regulated community there was some confusion regarding 
existing requirements on passenger train emergency preparedness (49 CFR 
part 239). As a result, the General Passenger Safety Task Force (Task 
Force), a subgroup of the RSAC, was tasked to resolve these issues. The 
Task Force found that as currently written, part 239 expressly requires 
only the railroad's control center employees to be subject to training 
and operational (efficiency) tests and inspections. However, in many 
instances, control center employees were not found to be the primary 
points of contact for emergency first responders during a passenger 
train emergency. Instead, they were carrying out other important 
duties, such as providing block protection and diverting trains to 
other parts of the railroad's network. The proposed language in this 
NPRM would ensure that all personnel involved in emergency preparedness 
under part 239 are subject to appropriate training as well as 
operational (efficiency) tests and inspections. At the same time, the 
NPRM would relieve personnel not involved in emergency preparedness 
from such requirements. While, the proposed regulation differs slightly 
from the consensus language, the need for this NPRM is backed by the 
RSAC and would improve passenger train emergency preparedness by 
clarifying training and testing requirements.
    In addition, as a result of FRA's experience in the periodic review 
and approval of passenger railroads' e-prep plans, FRA realized that a 
number of the changes submitted were purely administrative in nature. 
While part 239 currently subjects all changes to an e-prep plan to a 
formal review and approval process, FRA believes that purely 
administrative changes should be excluded from the formal approval 
process so that the agency can focus its resources on more substantive 
matters. Accordingly, this NPRM would streamline the approval of e-prep 
plans.
    Further, Executive Order 13347 (``Individuals with Disabilities in 
Emergency Preparedness'') requires the Federal government to 
appropriately support safety and security for individuals with 
disabilities in all types of emergency situations. 69 FR 44573; July 
26, 2004. Currently, each railroad subject to part 239 is required to 
provide for the safety of each of its passengers in its emergency 
preparedness planning. Nonetheless, FRA is proposing to clarify that 
these railroads must include procedures in their e-prep plans 
addressing the safe evacuation of persons with disabilities during 
emergency situations (and full-scale simulations of them).
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The purpose of this rulemaking is to further Federal safety 
standards on passenger train emergency preparedness currently in place 
in part 239. As a result of the proposed regulation, passenger 
railroads would have more flexibility to carry out the requirements of 
part 239 and keep their plans current. The NPRM would permit multiple 
parts of the organization to be involved in the emergency preparedness 
process to maintain resiliency while helping to clarify the role of 
various parts of the structure in an emergency situation. Additionally, 
the NPRM would provide flexibility to adjust to future personnel 
reorganizations and to incorporate technological innovations by 
allowing the railroad's management to determine what part of the 
organization is designated to be the ERCC.
    Among FRA's reasons for initiating this rulemaking was that some 
confusion arose regarding certain requirements of FRA's passenger train

[[Page 38260]]

emergency preparedness regulations. For example, FRA learned that some 
passenger railroads were confused as to which types of railroad 
personnel were required to be trained or be subjected to operational 
(efficiency) testing and inspections under part 239. These railroads 
were unclear whether part 239 required certain railroad personnel who 
directly coordinate with emergency responders and other outside 
organizations during emergency situations to be trained or be subjected 
to operational (efficiency) testing and inspections. As a result, FRA 
believes that it is necessary to clarify the regulatory language in 
part 239 to ensure that railroad personnel who directly coordinate with 
emergency responders actually receive the proper training and are 
subject to operational (efficiency) testing and inspections. FRA also 
learned that many railroads were unclear whether operational 
(efficiency) testing under part 239 could be considered for purposes of 
the railroad's efficiency testing program required under 49 CFR part 
217.
    Finally, FRA believed it was necessary to clarify part 239 to 
address the requirements of Executive Order 13347. Executive Order 
13347 requires, among other things, that Federal agencies encourage 
State, local, and tribal governments, private organizations, and 
individuals to consider in their emergency preparedness planning the 
unique needs of individuals with disabilities whom they serve. While 
under part 239 the unique needs of passengers with disabilities must 
already be considered in the railroads' e-prep plans, the NPRM would 
clarify the railroads' responsibilities.
    In order to further FRA's ability to respond effectively to 
contemporary safety problems and hazards as they arise in the railroad 
industry, Congress enacted the Federal Railroad Safety Act of 1970 
(Safety Act) (formerly 45 U.S.C. 421, 431 et seq., now found primarily 
in chapter 201 of title 49). (Until July 5, 1994, the Federal railroad 
safety statutes existed as separate acts found primarily in title 45 of 
the United States Code. On that date, all of the acts were repealed, 
and their provisions were recodified into title 49 of the United States 
Code.) The Safety Act grants the Secretary of Transportation rulemaking 
authority over all areas of railroad safety (49 U.S.C. 20103(a)) and 
confers all powers necessary to detect and penalize violations of any 
rail safety law. This authority was subsequently delegated to the FRA 
Administrator (49 CFR 1.49). Accordingly, FRA is using this authority 
to initiate a rulemaking that would clarify and revise FRA's 
regulations for passenger train emergency preparedness. These standards 
are codified in Part 239, which was originally issued in May 1999 as 
part of FRA's implementation of rail passenger safety regulations 
required by Section 215 of the Federal Railroad Safety Authorization 
Act of 1994, Public Law 103-440, 108 Stat. 4619, 4623-4624 (November 2, 
1994). Section 215 of this Act has been codified at 49 U.S.C. 20133.
3. A Description of, and Where Feasible, an Estimate of Small Entities 
to Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally 
includes only those small entities that are reasonably expected to be 
directly regulated by this action. This proposed rule would directly 
affect commuter and intercity passenger railroads, and freight 
railroads hosting passenger rail operations.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under Section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of ``small entities'' not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their field of operation. The U.S. Small Business 
Administration (SBA) stipulates in its size standards that the largest 
a railroad business firm that is ``for profit'' may be and still be 
classified as a ``small entity'' is 1,500 employees for ``Line Haul 
Operating Railroads'' and 500 employees for ``Switching and Terminal 
Establishments.'' Additionally, 5 U.S.C. 601(5) defines as ``small 
entities'' governments of cities, counties, towns, townships, villages, 
school districts, or special districts with populations less than 
50,000.
    Federal agencies may adopt their own size standards for small 
entities 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'' or 
``small businesses'' as being railroads, contractors and hazardous 
materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 
209. The $20-million limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is proposing to use this 
definition for this rulemaking. Any comments received pertinent to its 
use will be addressed in the final rule.
Railroads
    There are only two intercity passenger railroads, Amtrak and the 
Alaska Railroad. Neither can be considered a small entity. Amtrak is a 
Class I railroad and the Alaska Railroad is a Class II railroad. The 
Alaska Railroad is owned by the State of Alaska, which has a population 
well in excess of 50,000.
    There are 28 commuter or other short-haul passenger railroad 
operations in the U.S. Most of these railroads are part of larger 
transit organizations that receive Federal funds and serve major 
metropolitan areas with populations greater than 50,000. However, two 
of these railroads do not fall in this category and are considered 
small entities. The impact of the proposed regulation on these two 
railroads is discussed in the following section.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Will Be Subject to the Requirements and the Type 
of Professional Skill Necessary for Preparation of the Report or Record
    For a thorough presentation of cost estimates, please refer to the 
RIA, which has been placed in the docket for this rulemaking. FRA also 
notes that this proposed rule was developed in consultation with an 
RSAC working group and task force that included representatives from 
the Association of American Railroads, freight railroads, Amtrak, and 
individual commuter railroads.
    FRA is aware of two passenger railroads that qualify as small 
entities: Saratoga & North Creek Railway (SNC), and the Hawkeye 
Express, which is operated by the Iowa Northern Railway Company (IANR). 
All other passenger railroad operations in the United States are part 
of larger governmental entities whose service jurisdictions exceed 
50,000 in population.
    In 2010 Hawkeye Express transported approximately 5,000 passengers 
per game over a 7-mile round-trip distance to and from University of 
Iowa

[[Page 38261]]

(University) football games. IANR has approximately 100 employees and 
is primarily a freight operation totaling 184,385 freight train miles 
in 2010. The service is on a contractual arrangement with the 
University, a State of Iowa institution. (The population of Iowa City, 
Iowa is approximately 69,000.) Iowa Northern, which is a Class III 
railroad, owns and operates the 6 bi-level passenger cars used for this 
passenger operation which runs on average 7 days over a calendar year. 
FRA expects that any costs imposed on the railroad by this regulation 
will likely be passed on to the University as part of the 
transportation cost, and requests comment on this assumption.
    The SNC began operation in the summer of 2011 and currently 
provides daily rail service over a 57-mile line between Saratoga 
Springs and North Creek, New York. The SNC, a Class III railroad, is a 
limited liability company, wholly owned by San Luis & Rio Grande 
Railroad (SLRG). SLRG is a Class III rail carrier and a subsidiary of 
Permian Basin Railways, Inc. (Permian), which in turn is owned by Iowa 
Pacific Holdings, LLC (IPH). The SNC primarily transports visitors to 
Saratoga Springs, tourists seeking to sightsee along the Hudson River, 
and travelers connecting to and from Amtrak service. The railroad 
operates year round, with standard coach passenger trains. Additional 
service activity includes seasonal ski trains, and specials such as 
``Thomas The Train.'' This railroad operates under a five-year contract 
with the local government, and is restarting freight operations as 
well. The railroad has about 25 employees.
    FRA believes that these two entities would not be impacted 
significantly. While, each of these entities would most likely have to 
file a new e-prep plan, FRA does not expect they would have to change 
how each railroad reacts to an emergency situation due to including 
ERCCs under part 239's requirements. Their operating structure is small 
and it is probable that employees with e-prep duties would continue to 
have the same emergency responsibilities. FRA expects that both 
railroads would see additional burden from inclusion of other 
provisions of the proposed regulation related to recordkeeping, and 
other training and testing requirements. This NPRM would not be a 
significant financial impact on these railroad and their operations. 
They could expect the total regulatory costs for this proposed rule, if 
it is adopted, to be less than $6,500 for each of the railroads over 
the next 10 years. The Hawkeye Express and the SNC currently have e-
prep plans that have been reviewed and approved by the FRA. Although 
this NPRM would change several requirements in part 239, professional 
skills necessary for compliance with existing and new requirements 
would be the same. FRA believes that both entities have the 
professional knowledge to fulfill the requirements in the proposed 
rulemaking.
    In conclusion, FRA believes that there are two small entities and 
that both could be impacted. Thus, a substantial number of small 
entities could be impacted by the proposed regulation. However, FRA has 
found that these entities that are directly burdened by the regulation 
would not be impacted significantly. FRA believes that the costs 
associated with the proposed rule are reasonable and would not cause 
any significant financial impact on their operations.
Market and Competition Considerations
    The small railroad segment of the passenger railroad industry 
essentially faces no intra-modal competition. The two railroads under 
consideration would only be competing with individual automobile 
traffic and serve in large part as a service offering to get drivers 
out of their automobiles and off congested roadways. One of the two 
entities provides service at a sporting event to assist attendees to 
travel to the stadium from distant parking areas. The other entity 
provides passenger train service to tourist and other destinations. FRA 
is not aware of any bus service that currently exists that directly 
competes with either of these railroads. FRA requests comments and 
input on current or planned future existence of any such service or 
competition.
    The railroad industry has several significant barriers to entry, 
such as the need to own the right-of-way and the high capital 
expenditure needed to purchase a fleet, track, and equipment. As such, 
small railroads usually have monopolies over the small and segmented 
markets in which they operate. Thus, while this rule may have an 
economic impact on all passenger railroads, it should not have an 
impact on the intra-modal competitive position of small railroads.
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    FRA is aware that some railroads are unclear whether operational 
(efficiency) testing under part 239 could be considered for purposes of 
the railroad's efficiency testing program required under 49 CFR part 
217. In the NPRM, FRA clarifies that part 239 operational (efficiency) 
tests and inspections can also qualify as operational tests under Sec.  
217.9 if the employee, contractor, or subcontractor being tested is 
also performing functions that are covered by part 217. Likewise, 
operational tests conducted under part 217 can also be accredited as 
operational (efficiency) tests under part 239 as long as the criteria 
for operational (efficiency) tests and inspections in part 239 are met.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact that would result from adoption 
of the proposals in this NPRM. FRA will consider all comments received 
in the public comment process when making a determination.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule are 
being 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 current and new or revised information collection 
requirements and the estimated time to fulfill each requirement is as 
follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR Section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
239.13--Waiver Petitions (Current  45 railroads.......  1 petition.........  20 hours...........              20
 requirement).
239.107--Marking of Emergency
 Exits (Current requirements).
    --Marking of windows and door  45 railroads.......  4,575 decals, 1,950  10 minutes/5                    706
     exits intended for emergency                        decals.              minutes.
     egress.
    --Marking of window and door   45 railroads.......  6,320 decals, 1,300  5 minutes/10                    744
     exit intended for emergency                         decals.              minutes.
     access by emergency
     responders.

[[Page 38262]]

 
    --Records of inspection,       45 railroads.......  1,800 tests/records  20 minutes.........           1,000
     maintenance, and repair.                            + 1,200 tests/
                                                         records.
239.101/201/203--Emergency
 Preparedness Plans (Revised
 requirements).
    --1st Year--Amended plans....  45 railroads.......  45 plans...........  20.33 hours........             915
    --Subsequent years--amended    45 railroads.......  9 plans............  20.33 hours........             183
     plans--substantive changes.
    --Subsequent years--amended    45 railroads.......  4 plans............  60 minutes.........               4
     plans--non-substantive
     changes.
    --New RRs--e-prep plans......  2 railroads........  2 plans............  80 hours...........             160
    --Current employee initial     45 railroads.......  540 trained          60 minutes.........             540
     training for train crews,                           employees.
     control center & emergency
     response communications
     members.
    --Employee periodic training.  45 railroads.......  27 trained           4 hours............             108
                                                         employees.
    --Initial training of New      45 railroads.......  110 trained          60 minutes.........             110
     Employees.                                          employees.
239.101(a)(1)(ii) 3--Designation   45 railroads.......  45 designations....  5 minutes..........               4
 of RR employee to maintain
 current emergency telephone
 numbers to notify outside
 responders, etc. (Current
 requirement).
239.101(a)(1)(ii) 3--Railroads'    45 railroads.......  2 updated lists....  1 hour.............               2
 list/record of emergency
 telephone numbers to notify
 outside responders, etc.
 (Current requirement).
239.101(a)(3)--Emergency           45 railroads.......  1 plan.............  16 hours...........              16
 Preparedness Plan--Joint
 Operation (Current requirement).
239.101(a)(5)--RR Training         45 railroads.......  45 updated plans...  40 hours...........           1,800
 Program for on-line emergency
 responders (Current requirement).
239.101(a)(7)--Passenger Safety    2 new railroads....  1,300 cards/2        5 minutes/16 hours/             300
 Information--Posting emergency                          programs/2 safety    48 hours/8 hours/
 instructions inside all                                 messages + 2         24 hours.
 passenger cars (Current                                 programs/2 safety
 requirement).                                           messages.
239.105(a)(3)--Debriefing and      45 railroads.......  79 sessions........  27 hours...........           2,133
 Critique--Sessions conducted
 after passenger emergency
 situation or full scale
 simulation (Current requirement).
239.301(a)--Operational            45 railroads.......  25,000 tests/        15 minutes.........           6,250
 Efficiency Tests (Current                               inspections.
 requirements)--RR Tests/
 inspections of on-board, control
 center, and emergency response
 communications center employees.
(b)(c)--Records of operational     45 railroads.......  25,000 records.....  2 minutes..........             833
 (efficiency) tests/inspections.
(d)--Records of written program    45 railroads.......  90 records.........  3 minutes..........               5
 of operational (efficiency)
 tests (New Requirement).
(e) Annual summary of operational  45 railroads.......  45 annual summaries  5 minutes + 1                     5
 (efficiency) test/inspections                           + 30 copies.         minute.
 and copy of written summary at
 system and division headquarters.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Office of Railroad Safety, Information Clearance Officer, at 202-493-
6292, or Ms. Kimberly Toone, Office of Information Technology, at 202-
493-6139.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed 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. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

[[Page 38263]]

D. 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 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, or the agency consults with State and local government 
officials early in the process of developing the 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 proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132. This 
proposed rule will not have a substantial effect on the States or their 
political subdivisions, and it will not affect the relationships 
between the Federal government and the States or their political 
subdivisions, or the distribution of power and responsibilities among 
the various levels of government. In addition, FRA has determined that 
this regulatory action will not impose substantial direct compliance 
costs on the States or their political subdivisions. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    However, this proposed rule could have preemptive effect by 
operation of law under certain provisions of the Federal railroad 
safety statutes, specifically the former Federal Railroad Safety Act of 
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to section 20106.
    In sum, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws under Federal railroad safety statutes, specifically 49 U.S.C. 
20106. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this proposed rule is not required.

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et 
seq.) prohibits Federal agencies from engaging in any standards or 
related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    FRA has assessed the potential effect of this rulemaking on foreign 
commerce and believes that its requirements are consistent with the 
Trade Agreements Act. The requirements are safety standards, which, as 
noted, are not considered unnecessary obstacles to trade. Moreover, FRA 
has sought, to the extent practicable, to state the requirements in 
terms of the performance desired, rather than in more narrow terms 
restricted to a particular design or system.

F. Environmental Impact

    FRA has evaluated this 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 
proposed rule is not a major FRA action (requiring the preparation of 
an environmental impact statement or environmental assessment) because 
it is categorically excluded from detailed environmental review 
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 
26, 1999).
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) 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. 
This proposed rule will not result in the expenditure, in the 
aggregate, of $100,000,000 or more (as adjusted annually for inflation) 
in any one year, and thus preparation of such a statement is not 
required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355, May 22, 2001. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) that is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action.
    FRA has evaluated this proposed rule in accordance with Executive 
Order 13211. FRA has determined that this proposed rule is not likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy.

[[Page 38264]]

Consequently, FRA has determined that this regulatory action is not a 
``significant energy action'' within the meaning of the Executive 
Order.

I. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). Please visit http://www.regulations.gov/#!privacyNotice. 
You may also review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477-78) or you may visit 
http://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 239

    Passenger train emergency preparedness, Penalties, Railroad safety, 
Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
part 239 of chapter II, subtitle B of title 49, Code of Federal 
Regulations as follows:

PART 239--[AMENDED]

Subpart A--General


Sec.  239.5  [Removed and Reserved]

    1. Section 239.5 is removed and reserved.
    2. Section 239.7 is amended by adding the definition of ``Emergency 
response communications center'' to read as follows:


Sec.  239.7  Definitions.

* * * * *
    Emergency response communications center means a central location 
designated by a railroad with responsibility for establishing, 
coordinating, or maintaining communication with emergency responders, 
representatives of adjacent modes of transportation, and appropriate 
railroad officials during a passenger train emergency. The emergency 
response communications center may be part of the control center.
* * * * *

Subpart B--Specific Requirements

    3. Section 239.101 is amended by revising paragraphs (a)(1)(ii) and 
(a)(2)(ii), (a)(2)(iii) introductory text, (a)(2)(iv), (a)(2)(v) 
introductory text, and (a)(2)(v)(A), and by adding paragraph (a)(8) to 
read as follows:


Sec.  239.101  Emergency preparedness plan.

    (a) * * *
    (1) * * *
    (ii) Notification by control center or emergency response 
communications center. The control center or the emergency response 
communications center, as applicable under the plan, shall promptly 
notify outside emergency responders, adjacent rail modes of 
transportation, and appropriate railroad officials that a passenger 
train emergency has occurred. Each railroad shall designate an employee 
responsible for maintaining current emergency telephone numbers for use 
in making such notifications.
    (2) * * *
    (ii) Control center and emergency response communications center 
personnel. The railroad's emergency preparedness plan shall require 
initial training of responsible control center personnel and any 
emergency response communications center personnel employed by the 
railroad, under a contract or subcontract with the railroad, or 
employed by a contractor or subcontractor to the railroad, as well as 
periodic training at least once every two calendar years thereafter, on 
appropriate courses of action for each potential emergency situation 
under the plan. At a minimum, the initial and periodic training shall 
include:
    (A) Territory familiarization;
    (B) Procedures to retrieve and communicate information to aid 
emergency personnel in responding to an emergency situation;
    (C) Protocols governing internal communications between appropriate 
control center and emergency response communications center personnel 
whenever an imminent potential or actual emergency situation exists, as 
applicable under the plan; and
    (D) Protocols for establishing and maintaining external 
communications between the railroad's control center or emergency 
response communications center, or both, and emergency responders and 
adjacent modes of transportation, as applicable under the plan.
    (iii) Initial training schedule for current employees of the 
railroad, current employees of contractors and subcontractors to the 
railroad, and individuals who are contracted or subcontracted by the 
railroad. The railroad's emergency preparedness plan shall provide for 
the completion of initial training of all on-board and control center 
employees, and any emergency response communications center personnel, 
who are employed by the railroad, under a contract or subcontract with 
the railroad, or employed by a contractor or subcontractor to the 
railroad on the date that the plan is conditionally approved under 
Sec.  239.201(b)(1), in accordance with the following schedule:
* * * * *
    (iv) Initial training schedule for new railroad employees, 
contractor and subcontractor employees, and contracted individuals. The 
railroad's emergency preparedness plan shall provide for the completion 
of initial training of all on-board and control center personnel, as 
well as any emergency response communications center personnel, who are 
hired by the railroad, contracted or subcontracted by the railroad, or 
hired by the contractor or subcontractor to the railroad after the date 
on which the plan is conditionally approved under Sec.  239.201(b)(1). 
Each individual shall receive initial training within 90 days after the 
individual's initial date of service.
    (v) Testing of on-board, control center, and emergency response 
communications center railroad employees, contractor or subcontractor 
employees, and contracted individuals. The railroad shall have 
procedures for testing a person being evaluated for qualification under 
the emergency preparedness plan who is employed by the railroad, under 
a contract or subcontract with the railroad, or employed by a 
contractor or subcontractor to the railroad. The types of testing 
selected by the railroad shall be:
    (A) Designed to accurately measure an individual's knowledge of his 
or her responsibilities under the plan;
* * * * *
    (8) Procedures regarding passengers with disabilities. The railroad 
shall have procedures in place to promote the safe evacuation of 
passengers with disabilities under all conditions identified in its 
emergency preparedness plan. These procedures shall include, but not be 
limited to, a process for notifying emergency responders in an 
emergency situation about the presence and general location of each 
such passenger when the railroad has knowledge that the passenger is on 
board the train. This paragraph does not require the railroad to 
maintain any list of train passengers.
* * * * *
    4. Section 239.105 is amended by revising paragraph (c)(3) to read 
as follows:


Sec.  239.105  Debriefing and critique.

* * * * *
    (c) * * *
    (3) Whether the control center or the emergency response 
communications

[[Page 38265]]

center promptly initiated the required notifications, as applicable 
under the plan:
* * * * *

Subpart C--Review, Approval, and Retention of Emergency 
Preparedness Plans

    5. Section 239.201 is amended by revising paragraphs (a) and 
(b)(3)(i) to read as follows:


Sec.  239.201  Emergency preparedness plan; filing and approval.

    (a) Filing of plan and amendments. (1) Filing of plan. Each 
passenger railroad to which this part applies and all railroads hosting 
its passenger train service (if applicable) shall jointly adopt a 
single emergency preparedness plan for that service, and the passenger 
railroad shall file one copy of that plan with the Associate 
Administrator for Railroad Safety/Chief Safety Officer, Federal 
Railroad Administration, 1200 New Jersey Avenue SE., Mail Stop 25, 
Washington, DC 20590, not less than 60 days prior to commencing 
passenger operations. Any passenger railroad that has an emergency 
preparedness plan approved by FRA as of (the effective date of the 
final rule) is considered to have timely-filed its plan. The emergency 
preparedness plan shall include the name, title, address, and telephone 
number of the primary person on each affected railroad to be contacted 
with regard to review of the plan, and shall include a summary of each 
railroad's analysis supporting each plan element and describing how 
every condition on the railroad's property that is likely to affect 
emergency response is addressed in the plan.
    (2) Filing of amendments to the plan. (i) Except as provided in 
paragraph (a)(2)(ii) of this section, each subsequent amendment to a 
railroad's emergency preparedness plan shall be filed with FRA by the 
passenger railroad not less than 60 days prior to the proposed 
effective date. When filing an amendment, the railroad must include a 
written summary of the proposed changes to the previously approved plan 
and, as applicable, a training plan describing how and when current and 
new employees and contractors would be trained on any amendment.
    (ii) If the proposed amendment is limited to adding or changing the 
name, title, address, or telephone number of the primary person to be 
contacted on each affected railroad with regard to the review of the 
plan, approval is not required under the process in paragraph (b)(3)(i) 
of this section. These proposed amendments may be implemented by the 
railroad upon filing with FRA's Associate Administrator for Railroad 
Safety/Chief Safety Officer. All other proposed amendments must comply 
with the formal approval process in paragraph (b)(3)(i) of this 
section.
    (b) * * *
    (3) * * *
    (i) Except as provided in paragraph (a)(2)(ii) of this section, FRA 
will normally review each proposed plan amendment within 45 days of 
receipt. FRA will then notify the primary contact person of each 
affected railroad of the results of the review, whether the proposed 
amendment has been approved by FRA, and if not approved, the specific 
points in which the proposed amendment is deficient.
* * * * *

Subpart D--Operational (Efficiency) Tests; Inspection of Records 
and Recordkeeping

    6. Section 239.301 is revised to read as follows:


Sec.  239.301  Operational (efficiency) tests and inspections.

    (a) Requirement to conduct operational (efficiency) tests and 
inspections. Each railroad to which this part applies shall 
periodically conduct operational (efficiency) tests and inspections of 
on-board, control center, and, as applicable, emergency response 
communications center personnel employed by the railroad, under a 
contract or subcontract with the railroad, or employed by a contractor 
or subcontractor to the railroad, to determine the extent of compliance 
with its emergency preparedness plan.
    (1) Written program of operational (efficiency) tests and 
inspections. Operational (efficiency) tests and inspections shall be 
conducted pursuant to a written program. New railroads shall adopt such 
a program within 30 days of commencing rail operations. The program 
shall--
    (i) Provide for operational (efficiency) testing and inspection on 
appropriate courses of action in response to various potential 
emergency situations and on the responsibilities of an employee of the 
railroad, of an individual who is a contractor or subcontractor to the 
railroad, or an employee of a contractor of subcontractor to the 
railroad, as they relate to the railroad's emergency preparedness plan.
    (ii) Describe each type of operational (efficiency) test and 
inspection required, including the means and procedures used to carry 
it out.
    (iii) State the purpose of each type of operational (efficiency) 
test and inspection.
    (iv) State, according to operating divisions where applicable, the 
frequency with which each type of operational (efficiency) test and 
inspection is to be conducted.
    (v) Identify the officer(s) by name, job title, and, division or 
system, who shall be responsible for ensuring that the program of 
operational (efficiency) tests and inspections is properly implemented. 
A railroad with operating divisions shall identify at least one officer 
at the system headquarters who is responsible for overseeing the entire 
program and the implementation by each division.
    (vi) Require that each railroad officer who conducts operational 
(efficiency) tests and inspections be trained on those aspects of the 
railroad's emergency preparedness plan that are relevant to the 
operational (efficiency) tests and inspections that the officer 
conducts, and that the officer be qualified on the procedures for 
conducting such operational (efficiency) tests and inspections in 
accordance with the railroad's written program of operational 
(efficiency) tests and inspections and the requirements of this 
section.
    (2) The operational (efficiency) testing program required by 
paragraph (a)(1) of this section may be combined with the written 
program of operational (efficiency) tests and inspections required by 
Sec.  217.9(c) of this chapter.
    (b) Keeping records of operational (efficiency) tests and 
inspections. Each railroad to which this part applies shall maintain a 
written record of the date, time, place, and result of each operational 
(efficiency) test and inspection that was performed in accordance with 
paragraph (a) of this section. Each record shall also specify the name 
of the railroad officer who administered the test or inspection, the 
name of each employee tested, and sufficient information to identify 
the relevant facts relied on for evaluation purposes.
    (c) Retention of operational (efficiency) test and inspection 
records. Each record required by paragraph (a) of this section shall be 
retained at the system headquarters of the railroad and, as applicable, 
at the division headquarters for the division where the test or 
inspection was conducted, for one calendar year after the end of the 
calendar year to which the test or inspection relates. Each such record 
shall be made available to representatives of FRA and States 
participating under part 212 of this chapter for inspection and copying 
during normal business hours.

[[Page 38266]]

    (d) Keeping records of written program of operational (efficiency) 
tests and inspections. Each railroad shall retain one copy of its 
current operational (efficiency) testing and inspection program 
required by paragraph (a) of this section and one copy of each 
subsequent amendment to such program. These records shall be retained 
at the system headquarters, and, as applicable, at each division 
headquarters where the operational (efficiency) tests and inspections 
are conducted, for three calendar years after the end of the calendar 
year to which they relate. These records shall be made available to 
representatives of FRA and States participating under part 212 of this 
chapter for inspection and copying during normal business hours.
    (e) Annual summary of operational (efficiency) tests and 
inspections. Before March 1 of each calendar year, each railroad to 
which this part applies shall retain at the system headquarters of the 
railroad and, as applicable, at each of its division headquarters, one 
copy of a written summary of the following with respect to its previous 
calendar year activities: the number, type, and result of each 
operational (efficiency) test and inspection, stated according to 
operating divisions as applicable, that was conducted as required by 
paragraph (a) of this section. These records shall be retained for 
three calendar years after the end of the calendar year to which they 
relate and shall be made available to representatives of FRA and States 
participating under part 212 of this chapter for inspection and copying 
during normal business hours.

    Issued in Washington, DC, on June 21, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-15746 Filed 6-26-12; 8:45 am]
BILLING CODE 4910-06-P