[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