[Federal Register Volume 79, Number 61 (Monday, March 31, 2014)]
[Rules and Regulations]
[Pages 18127-18151]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-06998]



[[Page 18127]]

Vol. 79

Monday,

No. 61

March 31, 2014

Part II





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 239





Revisions to Passenger Train Emergency Preparedness Regulations; Final 
Rule

Federal Register / Vol. 79 , No. 61 / Monday, March 31, 2014 / Rules 
and Regulations

[[Page 18128]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 239

[Docket No. FRA-2011-0062, Notice No. 2]
RIN 2130-AC33


Revisions to Passenger Train Emergency Preparedness Regulations

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

ACTION: Final rule.

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SUMMARY: FRA is amending its existing regulation entitled Passenger 
Train Emergency Preparedness by revising or clarifying various 
provisions. The final rule clarifies that railroad personnel who 
communicate or coordinate with first responders during emergency 
situations must receive certain initial and periodic training and be 
subject to operational tests and inspections related to the railroad's 
emergency preparedness plan. The final rule also clarifies that 
railroads must develop procedures in their emergency preparedness plans 
that specifically address the safety of passengers with disabilities 
during actual and simulated emergency situations, such as during train 
evacuations. The rule also limits the need for FRA to formally approve 
certain purely administrative changes to approved emergency 
preparedness plans. In addition, the final rule requires that 
operational tests and inspections be conducted in accordance with a 
program that meets certain minimum requirements. Finally, the rule 
removes as unnecessary the provision discussing the preemptive effect 
of the regulations.

DATES: This final rule is effective July 29, 2014. Petitions for 
reconsideration must be received on or before May 30, 2014. Comments in 
response to petitions for reconsideration must be received on or before 
July 14, 2014.

ADDRESSES: Petitions for reconsideration and comments on petitions for 
reconsideration: Any petitions for reconsideration or comments on 
petitions for reconsideration related to this Docket No. FRA-2011-0062, 
Notice No. 2, 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, Room W12-140 on 
the ground level of the West Building, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Washington, DC between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking (2130-AC33). Note that all petitions and 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 petitions, comments or 
materials.
    Docket: For access to the docket to read background documents, 
petitions for reconsideration, 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, Office of Railroad Safety, Mail Stop 25, 
Federal Railroad Administration, 1200 New Jersey Avenue SE., 
Washington, DC 20590 (telephone: 631-727-5172); or Anna Nassif Winkle, 
Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: 202-493-6166).

SUPPLEMENTARY INFORMATION: 

Abbreviations of Terms Frequently Used in This Final Rule

AIS Abbreviated Injury Scale
CFR Code of Federal Regulations
DREDF Disability Rights Education and Defense Fund
e-prep plan a passenger train emergency preparedness plan under 49 
CFR 239.101
ERCC emergency response communications center as defined by 49 CFR 
239.7
FR Federal Register
NPRM notice of proposed rulemaking
PTES passenger train emergency systems
PV present value
RSAC Railroad Safety Advisory Committee
U.S.C. United States Code

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. Overview of FRA's Prior Rulemakings Concerning Passenger 
Train Emergency Preparedness and Passenger Train Emergency Systems
    1. 1998 Final Rule Primarily on Passenger Train Emergency 
Preparedness and Partly on Passenger Train Emergency Systems
    2. 2008 Passenger Train Emergency Systems (PTES) Final Rule
    3. 2013 Passenger Train Emergency Systems (PTES II) Final Rule
    B. Proceedings to Date in the Present Rulemaking
    1. The Need for Additional Revisions to the Passenger Train 
Emergency Preparedness Regulations
    2. RSAC Overview
    3. Passenger Safety Working Group
    4. General Passenger Safety Task Force
    5. Development of the NPRM
    6. Development of the Final Rule and Response to General 
Comments on the NPRM
III. Section-by-Section Analysis, Including Response to Other 
Comments on the NPRM
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; 
Certification of No Significant Economic Impact on a Substantial 
Number of Small Entities
    1. Description of Regulated Entities
    2. Railroads Impacted
    3. Certification
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Trade Impact
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    Having considered the public comments in response to the notice of 
proposed rulemaking (NPRM) in this proceeding, which was published on 
June 27, 2012 (see 77 FR 38248), FRA issues this final rule amending 
the passenger train emergency preparedness regulations at 49 CFR part 
239 (part 239). This final rule is intended to clarify certain 
requirements and address issues that have arisen since the regulations 
were first published in May 1998. This final rule is based on language 
developed by the General Passenger Safety Task Force (Task Force), a 
subgroup of FRA's 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 tests and inspections under part 239; (2) clarify that 
railroads must develop procedures in their passenger train emergency 
preparedness plans under part 239 (e-

[[Page 18129]]

prep plans) that address the safe evacuation of passengers with 
disabilities during an emergency situation; (3) limit the need for FRA 
to formally approve certain purely administrative changes to approved 
e-prep plans; and (4) specify new operational testing and inspection 
requirements for both operating and non-operating personnel for 
railroads covered by part 239. The recommendations developed by the 
Task Force were approved by the full RSAC, and they formed the basis of 
the NPRM and this final rule.
    The main provisions of the final rule--
     Clarify the types of railroad personnel who are required 
to be trained or be subjected to operational testing and inspections 
under part 239, by explicitly including railroad personnel who directly 
coordinate with emergency responders;
     Clarify that railroads must include procedures in their e-
prep plans specifically addressing the safety of persons with 
disabilities during actual emergency situations as well as during full-
scale simulations of emergency situations, such as during train 
evacuations;
     Allow certain purely administrative changes to 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;
     Require that operational tests and inspections be 
conducted in accordance with a program that meets the minimum 
requirements specified in this part and provides for such tests and 
inspections on appropriate courses of action in response to various 
potential emergency situations;
     Clarify that operational testing and inspections under 
part 239 may be conducted under, and considered part of, the railroad's 
operational testing and inspection program under 49 CFR part 217 (part 
217); and
     Remove as unnecessary the provision discussing the 
preemptive effect of part 239.
    In analyzing the economic impacts of this final rule, FRA found 
that the rule's provisions will enhance the emergency planning process 
currently in place in part 239. FRA has quantified the costs associated 
with this final rule. Any additional costs associated with amending 
part 239 will be mostly related to the inclusion of additional 
personnel in the testing and training programs required by part 239. 
The industry will also 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 $1,492,792 (undiscounted) with a present 
value (PV) of $1,073,755 when discounted at 7 percent.
    The following table presents the estimated discounted costs of the 
final rule, broken down by section of the rule:

                 10-Year Estimated Cost of Final Rule *
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Emergency Preparedness Plan (Sec.   239.101)...............     $495,530
Debriefing and Critique (Sec.   239.105)...................      200,273
Emergency Preparedness Plan; Filing and Approval (Sec.            16,911
 239.201)..................................................
Operational Tests and Inspections (Sec.   239.301).........      361,060
                                                            ------------
    Total..................................................    1,073,775
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* Dollars are discounted at a present value rate of 7 percent.

    FRA has analyzed the benefits associated with this final rule. 
Benefits will accrue from the expedited arrival of emergency responders 
to accident scenes, and from the ability of ERCC 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 final rule to be cost-
beneficial, considering the estimated quantified costs. The break-even 
point was found to be a reduction in severity of 5.47 injuries from 
Abbreviated Injury Scale (AIS) level 2 to AIS level 1. Safety benefits 
are estimated to total $1,636,800 (undiscounted) when six injuries are 
prevented from increasing in severity from AIS 1 to AIS 2. Total 
discounted benefits are estimated to be $1,149,620 (PV, 7 percent). The 
benefits for this final rule will exceed the estimated costs when six 
injuries are prevented from increasing in severity from AIS 1 to AIS 2. 
FRA believes that implementation of the amendments in this rulemaking 
will more than exceed the break-even estimate.

II. Background

A. Overview of FRA's Prior Rulemakings Concerning Passenger Train 
Emergency Preparedness and Passenger Train Emergency Systems \1\
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    \1\ A ``passenger train emergency system'' may be defined 
briefly as installed or moveable equipment, equipment components, or 
materials, or a combination thereof, that is capable of being used 
to address an emergency on a passenger train.
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1. 1998 Final Rule Primarily on Passenger Train Emergency Preparedness 
and Partly on Passenger Train Emergency Systems
    On May 4, 1998, FRA published a final rule primarily on passenger 
train emergency preparedness that was codified at new part 239, 
Passenger Train Emergency Preparedness, and that also revised 49 CFR 
part 223, Safety Glazing Standards. See 63 FR 24630. That final 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 certain 
railroads connected with the operation of passenger trains on standard 
gage track on the general railroad system of transportation. The rule 
requires e-prep plans to include seven elements addressing 
communication, employee training and qualification, joint operations, 
special circumstances (e.g., identifying tunnels, elevated and 
depressed track sections, bridges, electrified track sections, where 
evacuation would be difficult and developing specific evacuation plans 
for those areas), liaison with emergency responders, on-board emergency 
equipment, and passenger safety information. Under the requirements of 
the rule, each covered railroad is required to instruct certain 
employees on the e-prep plan and their responsibilities under the 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 at Sec.  
239.101(a)(6) and at Sec.  239.107, Emergency exits,\2\ as well as in 
FRA's Safety Glazing Standards. Among these obligations are 
requirements that all

[[Page 18130]]

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.
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    \2\ Note that, effective January 28, 2014, Sec.  239.107 is 
removed and reserved, and the requirements have been revised and 
moved to 49 CFR part 238. See 78 FR 71786 (November 29, 2013).
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2. 2008 Passenger Train Emergency Systems (PTES) Final Rule
    In 2008, FRA revisited requirements for emergency systems on 
passenger trains by enhancing existing requirements for emergency 
window exits under FRA's Safety Glazing Standards and establishing new 
requirements for rescue access windows used by emergency responders to 
evacuate passengers under FRA's Passenger Equipment Safety Standards 
(49 CFR part 238). See 73 FR 6369 (February 1, 2008). While this 2008 
final rule did not make any changes to part 239, the rule expanded 
other 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.
3. 2013 Passenger Train Emergency Systems (PTES II) Final Rule
    On November 29, 2013, FRA published a final rule that became 
effective January 28, 2014, amending FRA's Passenger Equipment Safety 
Standards by enhancing existing requirements for passenger train 
emergency systems as well as creating new requirements for passenger 
train emergency systems. See 78 FR 71786. The final rule adds emergency 
passage requirements for interior vestibule doors as well as enhances 
emergency egress and rescue access signage requirements. The final rule 
also adds requirements for low-location emergency exit path markings, 
creates minimum emergency lighting standards for existing passenger 
cars, and enhances existing requirements for the survivability of 
emergency lighting systems in new passenger cars.
    Additionally, the final rule amends FRA's passenger train emergency 
preparedness regulations in part 239. In addition to moving the 
``emergency exits'' provision of part 239, as previously noted, these 
amendments include clarifying existing requirements for participation 
in debriefing and critique sessions following both actual 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. The 
language added in the PTES II final rule 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 final rule also clarifies that employees be provided flexibility to 
participate in the debriefing and critique sessions through a variety 
of different methods.

B. Proceedings to Date in the Present Rulemaking

1. The Need for Additional Revisions to the Passenger Train Emergency 
Preparedness Regulations
    Among FRA's reasons for initiating the present 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 testing and inspections under part 239. Specifically, 
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 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 testing and inspections. FRA also learned that 
many railroads were unclear whether operational testing under part 239 
was permitted to be considered as part of the railroad's operational 
testing and inspection program required under 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 certain purely 
administrative changes should be excluded from the process so that the 
agency can focus its resources on more substantive matters.
    Finally, FRA believes it is necessary to clarify part 239 to 
address the requirements of Executive Order 13347. See 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 part 239 already requires railroads' e-prep 
plans to consider the unique needs of passengers with disabilities (as 
each railroad subject to part 239 is required to address the safety of 
each of its passengers in its e-prep plan), this final rule makes this 
requirement more explicit and clarifies the railroads' responsibilities 
in that regard.
2. 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);

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     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);
     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.
3. 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 (NIRCRC), 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 as follows: (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 tests and inspections under part 239; (2) clarify that 
railroads must develop procedures in their e-prep plans addressing the 
safety of passengers with disabilities during an emergency situation, 
such as during a train evacuation; (3) limit the need for FRA to 
formally approve certain purely administrative changes to approved e-
prep plans and update FRA headquarters' address; and (4) specify new 
operational testing and inspection requirements for both operating and 
non-operating employees for railroads covered by part 239.
    While the Task Force was initially also 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).
4. 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;

[[Page 18132]]

     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, 2007, in Ft. Lauderdale, FL;
     April 23-24, 2008, in San Diego, CA; and
     December 3, 2008, in Cambridge, MA.
    Minutes of each of these Task Force meetings are part of the docket 
in this proceeding and are available for public inspection.
5. Development of the NPRM
    The NPRM was developed to address a number of the concerns raised 
and issues discussed during the various Task Force and Working Group 
meetings. Staff from the DOT's Volpe National Transportation Systems 
Center in Cambridge, MA, attended many of the meetings and contributed 
to the technical discussions through their comments and presentations. 
To aid the Task Force in its delegated task, FRA drafted regulatory 
text for discussion purposes and made various changes to the draft text 
based upon input from Task Force members, as reflected in the meeting 
minutes. 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 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 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 the RSAC's recommendation provided a strong basis for the 
proposed rule, the language FRA proposed in the NPRM varied from the 
recommendation principally in one substantive way: FRA declined to 
adopt the RSAC's recommendation that FRA add language to Sec.  
239.101(a)(2)(ii) that would require control center and emergency 
response communications center (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 explained this 
decision in the section-by-section analysis. FRA had also proposed 
minor changes for purposes of clarity and formatting in the Federal 
Register, but these changes were not intended to affect the RSAC's 
consensus recommendation.
6. Development of the Final Rule and Response to General Comments on 
the NPRM
    FRA notified the public of its options to submit written comments 
on the NPRM and to request a public, oral hearing on the NPRM as well. 
No request for a public hearing was received. However, a number of 
interested parties did submit written comments to the docket in this 
proceeding, and FRA considered all of these comments in preparing this 
final rule. Specifically, written comments were received from the 
Commuter Rail Division of the Regional Transportation Authority (Metra) 
and its operating company NIRCRC; MTA; the Disability Rights Education 
and Defense Fund (DREDF); individual commenter Jeffrey Scott Moore; and 
the Transportation Communications Union/IAM (TCU/IAM), TWU, UNITE-HERE, 
and UTU (jointly).
    FRA notes that throughout the preamble discussion of this final 
rule, FRA refers to comments, views, suggestions, or recommendations 
made by members of the Task Force, Working Group, or full RSAC, as they 
are identified or contained in meeting minutes or other materials in 
the public docket. FRA does so to show the origin of certain issues and 
the nature of discussions concerning those issues at the Task Force, 
Working Group, and full RSAC level. FRA believes this serves to 
illuminate factors it has weighed in making its regulatory decisions, 
as well as the rationale for those decisions.
    The majority of the comments received appear to address specific 
provisions proposed in the NPRM. FRA's response to such comments can be 
found in the section-by-section analysis of the specific provisions to 
which the comments apply. However, as there were two comments that were 
more general in nature and did not directly relate to a particular 
proposed provision, FRA is discussing these comments in this section.
    The first general comment is from an individual, Mr. Jeffrey Scott 
Moore. Mr. Moore suggests that FRA redefine what ``railroad'' means in 
part 239 and which railroads are subject to part 239. He believes that 
passenger density should be the driving force for meeting the 
definition of a passenger railroad covered by part 239, rather than the 
items currently listed in the definition of ``railroad'' in part 239 
and the applicability section at Sec.  239.3 (e.g., whether the 
passenger service is a commuter railroad), and recommends that FRA 
apply the same standard to all passenger railroads, ``right down to the 
first aid kits.'' Mr. Moore's comment appears to be requesting that FRA 
reconsider both the definition of ``railroad'' and the general 
applicability of part 239, neither of which was raised as an issue in 
the NPRM. Accordingly, FRA believes that Mr. Moore's comment is outside 
of the scope of this rulemaking proceeding. FRA's rationale for 
defining the term ``railroad'' as it is used in Sec.  239.7 and for the 
criteria determining part 239's applicability can be found in the 
preamble to the 1998 final rule at 63 FR 24630, 24643-24645 (May 4, 
1998).
    The second general comment is a joint comment from TCU/IAM, TWU, 
UNITE-HERE, and UTU (collectively, the Unions) urging FRA to further 
modify Sec.  239.7 by eliminating the exclusion of persons performing 
``food, beverage, or security service'' from the definition of 
``crewmember.'' \3\ The Unions assert that on-board service employees 
may be called upon, and have been called upon, to assist passengers in 
an emergency, and note that such employees are often in a unique 
position to assist passengers with special needs. Further, the Unions 
submit that passengers do not often differentiate between uniformed 
employees and, due to more regular interaction with on-board service 
employees that are on the train point-to-point with passengers, are 
more likely to go to them for assistance during an emergency situation. 
While recognizing that ``the vast majority of these [on-board service] 
employees are already trained in safety and emergency procedures (via 
Amtrak required training),'' the Unions assert that training of ``all'' 
on-board service employees (including food, beverage, and security 
workers, and employees of

[[Page 18133]]

contractors and subcontractors) should be required, not voluntary, and 
conclude that this ``loophole'' in the definition of ``crewmember'' in 
Sec.  239.7 has resulted in ``a missed opportunity to enhance safety.''
---------------------------------------------------------------------------

    \3\ The term ``crewmember'' means ``a person, other than a 
passenger, who is assigned to perform either: (1) On-board functions 
connected with the movement of the train (i.e., an employee of a 
railroad, or of a contractor to a railroad, who is assigned to 
perform service subject to the Federal hours of service laws during 
a tour of duty) or (2) On-board functions in a sleeping car or coach 
assigned to intercity service, other than food, beverage, or 
security service.''
---------------------------------------------------------------------------

    Although the NPRM did raise the issue of which employees needed to 
be trained on a railroad's emergency preparedness plan, it did so in 
the limited context of certain employees that were already assigned a 
formal and key role in the railroad's execution of its e-prep plan 
(i.e., establishing, coordinating, or maintaining communication with 
emergency responders, representatives of adjacent modes of 
transportation, or appropriate railroad officials during a passenger 
train emergency), but that were not technically subject to the training 
requirements simply because they were not located within a ``control 
center'' as that term is defined in Sec.  239.7. The Unions, however, 
appear to be requesting that FRA mandate that all on-board service 
employees receive training on a railroad's e-prep plan (which may be 
more extensive than the training that Amtrak is currently providing 
such employees) without regard as to whether these employees have been 
assigned a formal or key role under the plan. Accordingly, FRA believes 
that this comment is outside of the scope of this rulemaking 
proceeding. However, FRA reiterates that in the 1998 final rule, FRA 
recognized ``the practical limits of an expansive definition of 
``crewmember,'' and anticipated that railroads would ``voluntarily 
elect to train most, if not all, on-board personnel in emergency 
response procedures.'' See 63 FR 24630, 24636 (May 4, 1998). FRA 
remains concerned regarding the cost-effectiveness of requiring that 
training be provided to persons performing food, beverage, or security 
service where such persons may not be assigned a key role under the e-
prep plan in precipitating passenger evacuation during the aftermath of 
an emergency. See 63 FR 24630, 24636-24637 (May 4, 1998).
    FRA understands that the overwhelming majority of railroads subject 
to part 239 have not assigned key roles in their e-prep plans to 
contractor employees performing food, beverage, or security service. 
Based on the likelihood that contractor employees performing food, 
beverage, or security service are either being voluntarily trained by 
the railroad, as applicable, or are merely performing incidental 
functions, FRA believes that no further changes to the definition or 
training requirements, other than those included in this final rule 
(see e.g., Sec.  239.101(a)(2)(iii)), are necessary at this time.

III. Section-by-Section Analysis, Including Response to Other Comments 
on the NPRM

Subpart A--General

Section 239.5 Preemptive Effect
    FRA is eliminating this section on the preemptive effect of part 
239, the passenger train emergency preparedness 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. FRA is retaining the 
section number itself rather than deleting it.
Section 239.7 Definitions
    FRA is amending this section in one major and two minor ways. Most 
importantly, FRA is adding a definition for the new term ``emergency 
response communications center'' (ERCC) as will be explained in detail 
below. In addition, FRA is adding a definition for two existing terms 
``on-line emergency responder'' (see Sec.  239.101(a)(5)) and ``outside 
emergency responder'' (see Sec.  239.101(a)(1)(ii)) to clarify that FRA 
intends those terms to have the same meaning as that of the existing, 
and defined, term ``emergency responder.'' Finally, FRA is updating the 
definition of the existing term ``crewmember'' for technical reasons to 
reflect that most individuals assigned to be engaged in or connected 
with the movement of a passenger train are not subject to ``the Federal 
hours of service laws'' as the definition presently reads, but are 
subject to the obligations encompassed by the more generic term, ``the 
Federal hours of service requirements.''
    Under the final rule, the new term ``ERCC'' is defined, in part, as 
``a central location, or a group of individuals, designated by a 
railroad with responsibility for establishing, coordinating, or 
maintaining communication with outside emergency responders, 
representatives of adjacent rail modes of transportation, or 
appropriate railroad officials during a passenger train emergency.'' 
The definition continues that the ERCC may be part of the railroad's 
``control center,'' which has already been defined as ``a central 
location on a railroad with responsibility for directing the safe 
movement of trains.'' See current Sec.  239.7. A control center is 
commonly called a ``train dispatch center.'' FRA believes this new 
definition of ``ERCC'' is necessary for the reasons stated below.
    Currently, the requirements of part 239 do not specifically apply 
to all personnel assigned to perform the above-described emergency 
response communication functions, but rather to personnel in the 
railroad's control center. The individuals working in these control 
centers are subject to e-prep plan training and operational tests. See 
current Sec.  239.101. However, requiring only responsible control 
center personnel (in addition to on-board personnel (``crewmembers'' 
within the meaning of Sec.  239.7)) to receive training on a railroad's 
e-prep plan may be problematic because, in many railroads' operational 
structures, train dispatchers only notify internal railroad officials 
(as opposed to ``outside emergency responders'') about an emergency 
situation and provide block protection for the affected train(s) or 
equipment involved in the incident. While an ERCC may be part of a 
railroad's dispatch center, many railroads maintain a separate center 
within their organizational structure that establishes and maintains 
communications with outside emergency responders, adjacent rail modes 
of transportation, and appropriate railroad officials. In addition, 
ERCC personnel often assist in coordinating the actual emergency 
response with outside emergency responders.
    This final rule defines an ``ERCC,'' which provides vital services 
during an emergency situation, and includes the term in various 
provisions of part 239 that address training, testing, and inspection 
requirements. By including this definition and inserting this term in 
the existing regulation, FRA is expressly requiring that ERCC 
personnel, who directly interact with outside emergency responders and 
perform other key emergency response communications functions, receive 
the proper training, testing, and oversight under the regulation to 
appropriately prepare for and respond to an emergency situation.
    The definition of ``ERCC'' that FRA is adopting in this final rule 
provides the railroads with maximum flexibility in designating what 
centers or groups of individuals within the railroad's organizational 
structure are responsible for communicating with the outside emergency 
responders and other outside entities during an emergency situation on 
the railroad and would therefore qualify as ERCCs or ERCC personnel. 
With this flexibility, each affected railroad is permitted to ensure 
that the correct center or group of individuals within the railroad's 
organizational structure responsible for such emergency response 
communications receives training on the railroad's e-prep

[[Page 18134]]

plan, and that the personnel in that center or group of individuals is 
subject to operational tests and inspections regardless of how the 
center or group of individuals is organized within the railroad.
    For clarity, and in recognizing that a railroad has the flexibility 
to assign ERCC functions to a group of individuals (see above and 77 FR 
38248, 38252 (June 27, 2012)) that, pursuant to its organizational 
structure, may not necessarily be centrally located, FRA is modifying 
the definition of ``ERCC'' that was recommended by the RSAC and 
proposed by FRA in the NPRM in four ways. The first modification is 
adding the phrase ``, or a group of individuals,'' after ``a central 
location'' to encompass a group of individuals that are not centrally 
located, but that nevertheless have an assigned role within the scope 
of the term ``ERCC'' in carrying out the railroad's emergency response 
communications and who, therefore, have to be properly trained and 
tested under this part to ensure that they would be able to execute 
their assigned roles. The second modification of the definition of 
``ERCC'' is changing the word ``and,'' in front of ``appropriate 
railroad officials,'' to ``or'' in order to ensure that a central 
location or a group of individuals designated to perform some, but not 
all of the functions described in the definition would still be 
considered an ERCC for purposes of this part. The third and fourth 
modifications are for clarity and consistency with terms used in 
current Sec.  239.101(a)(1)(ii) regarding the required notifications to 
``outside'' emergency responders and adjacent ``rail'' modes of 
transportation. Accordingly, FRA has added ``outside'' in front of 
``emergency responders'' and ``rail'' in front of ``modes of 
transportation'' in the definition of the term ``ERCC.''
    As noted above, FRA is also making two minor revisions to this 
section. First, FRA is defining the existing term ``outside emergency 
responder,'' which currently lacks a definition, to have the same 
meaning as the already defined term ``emergency responder'' for 
purposes of this part. This final rule includes both terms at the 
beginning of the definition of ``emergency responder,'' and the rest of 
the definition remains the same. Second, FRA is making a technical 
update to the definition of ``crewmember'' by replacing the word 
``laws'' in the phrase ``Federal hours of service laws'' with 
``requirements[.]'' This change is necessary for two reasons: (1) The 
Federal substantive hours of service regulatory scheme applicable to 
the crews of passenger trains no longer includes only laws passed by 
Congress (i.e., 49 U.S.C. chapter 211), but also includes regulations 
issued by FRA (i.e., 49 CFR part 228, subpart F); and (2) currently, 
train employees providing passenger service are subject to these FRA 
substantive hours of service regulations at 49 CFR part 228, subpart F 
and are not subject to the hours of service laws at 49 U.S.C. chapter 
211 except in fairly rare situations where both the hours of service 
regulations and the hours of service laws apply to the same period of 
service. See Second Interim Statement of Agency Policy and 
Interpretation on the Hours of Service Law as Amended in 2008; 78 FR 
58,830, 58,838 (September 24, 2013) (discussing the applicability of 
statutory and regulatory hours of service requirements to employees 
performing multiple types of covered service).

Subpart B--Specific Requirements

Section 239.101 Emergency Preparedness Plan
    Each railroad subject to part 239 is required to establish an e-
prep plan under this section that is designed to manage emergencies 
effectively and efficiently and to minimize subsequent trauma and 
injury to passengers and on-board personnel. FRA is revising this 
section in several different ways, namely, by adding language to 
paragraphs (a)(1)(ii) and (a)(2)(ii) through (v), removing language 
from paragraph (a)(2)(ii), and creating an entire, new paragraph 
(a)(8). Each change to this section is addressed below, by paragraph or 
subparagraph.
    Paragraph (a)(1)(ii). As currently written, paragraph (a)(1)(ii) 
requires railroad control center personnel (who may be entirely 
comprised of railroad dispatchers) 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 is made up 
of a group of individuals responsible for establishing and maintaining 
communications with internal and external organizations during a 
railroad emergency. See the discussion of ERCCs in Sec.  239.7, above. 
Consequently, FRA is adding specific language to this paragraph that 
permits railroads to have the flexibility to decide which individuals 
or which part of the railroad's organizational structure should handle 
these duties during an emergency situation.
    Paragraph (a)(2)(ii). Similar to the change being made to paragraph 
(a)(1)(ii), FRA is adding language to paragraph (a)(2)(ii) that 
requires ERCC personnel to receive initial and periodic training on 
appropriate courses of action for each potential emergency situation. 
As currently written, this paragraph already requires initial and 
periodic training for ``responsible'' control center personnel (i.e., 
those who are assigned responsibilities under the plan that are more 
than incidental functions). FRA notes for clarification that a clerk or 
a dispatcher that is performing merely an incidental function, such as 
receiving a call from a stalled train, but who does not have an 
assigned role under the plan, is not required to be trained. See 63 FR 
24630, 24651 (May 4, 1998).
    FRA is also 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, it appears that there is some confusion as to the 
training of such employees, as is evident in the joint comment from the 
Unions indicating that the current regulation excludes contractors from 
the training requirements and expressing support for applying the same 
training requirements to contractors, subcontractors, and railroad 
employees. Accordingly, for clarity, and in response to the joint 
comment from the Unions, 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 and must be properly trained. In situations where a 
contractor is providing training on a railroad's e-prep plan to its 
covered employees or to the covered employees of a railroad or another 
contractor to a railroad, FRA has the authority to cite either the 
railroad, the contractor, or

[[Page 18135]]

both for any failure to provide e-prep training required by this part, 
as the railroad's e-prep plan must provide for such training, and a 
contractor performing any function under part 239 must perform that 
function in accordance with this part and is subject to a civil penalty 
for failure to perform the function in accordance with this part. See 
Sec. Sec.  239.101(a)(2), 239.9, and 239.11. In making the 
determination as to whether to assess a civil penalty against the 
railroad or contractor or both under such situations, FRA will consider 
the criteria listed in Appendix A to part 209.
    FRA notes that the RSAC reached consensus on adding language that 
would have required that control center and ERCC personnel 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 declined to propose adding such language to this paragraph 
in the NPRM, due to the concern that 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 if the remaining 
individuals had received training only on the very specific parts of 
the railroad's e-prep plan for which they were directly responsible 
during an emergency situation. 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. Although MTA 
submitted a comment urging FRA to adopt the RSAC recommendation (and 
suggesting that such training would be consistent with existing 
protocol and would not compromise passenger safety), the comment did 
not address the safety concerns that FRA expressed in the NPRM.
    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 substantial 
cost to the railroads because most railroads are already providing this 
broader level of training to their employees, as the current training 
requirements are not limited to an employee's specific duties, and 
specifically require training on coordination of functions. See current 
Sec.  239.101(a)(2)(ii). 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. In addition, FRA understands that the 
RSAC language that would have only required training specific to the 
employee's duties under the plan was included in the consensus language 
in response to concerns that, under the current requirement inSec.  
239.101(a)(2)(ii)(A), some railroads were training control center 
personnel that were not also dispatchers to be familiar with a 
territory to the same level as a dispatcher. As further discussed 
below, FRA has already addressed this concern elsewhere in the training 
requirements by removing the word ``dispatch'' from the requirement 
that training include ``Dispatch territory familiarization.'' 
Accordingly, for the reasons expressed in the NPRM and above, FRA 
declines to add to this provision the RSAC-recommended language 
regarding providing training to individuals only on their specific 
duties under the e-prep plan.
    FRA is also amending paragraphs (a)(2)(ii)(A) through (D). In 
paragraph (a)(2)(ii)(A), FRA is removing the word ``dispatch'' before 
``territory familiarization,'' as noted above. The Task Force 
recommended that the word ``dispatch'' be removed from this paragraph 
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.
    No comments were received on this amendment. Therefore, for the 
reasons noted in the NPRM and above, FRA has removed the word 
``dispatch'' from ``Dispatch territory familiarization'' in paragraph 
(a)(2)(ii)(A). This amendment clarifies that individuals working in 
control centers or ERCCs who are not also railroad dispatchers are not 
required to have complete dispatch territory familiarization in their 
capacity to assist in emergency situations. Instead, for the purposes 
of this paragraph, ``Territory familiarization'' will focus on, but not 
be limited to the following: 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 that would 
likely present challenges for individuals responding to a passenger 
train emergency.
    To complement the language being adopted in paragraph 
(a)(2)(ii)(A), paragraph (a)(2)(ii)(B) is being amended to require 
initial and periodic training for responsible control center and ERCC 
personnel on how to access and retrieve information that would aid 
emergency personnel in responding to an emergency situation. (Current 
paragraph (a)(2)(ii)(B) is being redesignated as paragraph 
(a)(2)(ii)(C), below.) Under the amended provision, responsible control 
center and ERCC personnel are 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. No comments were received on this 
amendment, and, except for adding an explanation of ``Territory 
familiarization,'' FRA has adopted the provision as proposed in the 
NPRM for the reasons stated above.
    FRA is also adding language to paragraph (a)(2)(ii)(C) 
(redesignated from (a)(2)(ii)(B)). This new language requires 
responsible 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,'' is also being 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

[[Page 18136]]

what protocols will be followed to govern internal communication 
between control center and ERCC personnel. No comments were received on 
this amendment, and FRA is adopting the provision as proposed in the 
NPRM for the reasons stated above.
    Finally, FRA is adding a new paragraph (a)(2)(ii)(D). 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 responsible control center and ERCC 
personnel receive initial and periodic training on what protocols need 
to be followed to establish and maintain communications with external 
organizations assisting in the emergency response. Like the Task Force, 
FRA believes 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 in newly-designated 
paragraph (a)(2)(ii)(C). No comments were received on this amendment, 
and FRA is adopting the provision as proposed in the NPRM for the 
reasons stated above.
    FRA also realizes that railroads may have to amend their e-prep 
plans in order to comply with the new requirements. FRA noted in the 
NPRM that it intended to provide railroads sufficient time to have 
their amended e-prep plans submitted to FRA for review after the 
issuance of this final rule, and invited comment as to whether FRA 
should lengthen the usual period before the final rule would become 
effective. No comments were received on this issue. FRA believes that a 
total of 120 days should provide railroads with sufficient time to 
amend their plans and submit them to FRA for review, and has therefore 
decided to make the rule effective on July 29, 2014.
    Paragraph (a)(2)(iii). FRA is adding language to paragraph 
(a)(2)(iii) that requires 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. FRA is also adding clarifying 
language to paragraph (a)(2)(iii) to specify that responsible control 
center and ERCC personnel are subject to the training requirements 
regardless of whether they are railroad employees, railroad contractors 
and subcontractors, or employees of these contractors and 
subcontractors. This clarification addresses the joint comment from the 
Unions, as discussed in the section-by-section analysis of paragraph 
(a)(2)(ii) of this section, above. No further comments were received on 
these amendments, and other than a simplification of the heading (i.e., 
replacing ``employees of the railroad, current employees of contractors 
and subcontractors to the railroad, and individuals who are contracted 
or subcontracted by the railroad'' with ``personnel''), FRA is adopting 
the provision as proposed in the NPRM for the reasons stated above.
    Paragraph (a)(2)(iv). For the same reasons that FRA is adding 
language to paragraph (a)(2)(iii), FRA is adding similar language to 
paragraph (a)(2)(iv), namely, 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.
    In addition, FRA is adding language to paragraph (a)(2)(iv) 
clarifying that the requirements of this paragraph are not limited to 
on-board and control center personnel that are railroad employees, but 
include ERCC personnel that are railroad employees, as well as on-
board, control center, and ERCC personnel that are contractors, 
subcontractors, and employees of contractors or subcontractors. This 
clarification also addresses the joint comment from the Unions, as 
discussed in the section-by-section analysis of paragraph (a)(2)(ii) of 
this section, above. No further comments were received on these 
amendments. Other than three minor edits (i.e., the modification of the 
header for simplicity and consistency with Sec.  239.101(a)(2)(iii), 
the addition of the word ``responsible'' in front of ``control center 
personnel'' for consistency with its use in the training requirements 
in Sec.  239.101(a)(2), and the revision of ``and'' to ``as well as'' 
in front of ``any emergency response communications center personnel'' 
for consistency with Sec.  239.101(a)(2)(v)), FRA is adopting the 
provision as proposed in the NPRM for the reasons stated above.
    Paragraph (a)(2)(v). FRA is adding 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 final rule clarifies 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. The 
heading of this paragraph is also being amended for simplicity (and 
consistency with paragraphs (a)(2)(iii) and (a)(2)(iv)) and to clarify 
that railroads need to develop testing procedures for ERCC personnel as 
well as on-board and control center personnel.
    Finally, FRA is modifying paragraph (a)(2)(v)(A) 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 ensures that railroad contractors and 
subcontractors are covered by the provision as well. This clarification 
addresses the joint comment from the Unions, as discussed in the 
section-by-section analysis of paragraph (a)(2)(ii) of this section, 
above. No further comments were received on these amendments, and FRA 
is adopting the provision as proposed in the NPRM for the reasons 
stated above.
    Paragraph (a)(8). For the reasons stated below, FRA has adopted the 
provision as proposed in the NPRM, except that FRA has added an 
explanation of the term ``knowledge.'' 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. See 
69 FR 44573 (July 26, 2004). Currently, each railroad subject to part 
239 is required to address the safety of each of its passengers in its 
emergency preparedness planning.

[[Page 18137]]

Nonetheless, FRA is adding a new paragraph (a)(8) that clarifies that 
these railroads must include in their e-prep plans specific procedures 
addressing the safety of persons with one or more disabilities during 
emergency situations and full-scale simulations (such as while 
evacuating a train, while moving passengers from car to car in the same 
train, or while ensuring that the passengers remain in place), and for 
notifying emergency responders of the presence and general location of 
any person with a disability when the railroad has knowledge that the 
passenger is on board the train. FRA expects the railroads to address 
the responsibilities of on-board personnel to carry out these specific 
procedures on their own until response personnel arrive. For example, 
if a train has a failure or is involved in an incident and an 
evacuation or other action is deemed necessary, a crewmember in the 
body of the train, most likely someone other than the engineer as he or 
she would typically be in the cab managing communications, would need 
to search for and identify those passengers who cannot reasonably be 
evacuated by stairs or steps.
    This new paragraph does not require a railroad to maintain any list 
of train passengers (nor does any other language currently in part 239 
require this), whether or not they have a disability. 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.
    In particular, the railroad must have in place procedures calling 
on a crewmember (who is generally stationed in the body of the train) 
to identify the locations of any persons with a discernable disability 
on board its trains and, in the event of an emergency, to notify 
emergency responders, to the extent of the crewmember's knowledge, of 
the presence and general whereabouts of such passengers. Further, the 
railroad must have ``readiness procedures designed to ensure passenger 
safety'' addressing how any such person(s) with a disability can be 
evacuated during a potential emergency situation that would require 
evacuation in conditions that could reasonably be expected to occur, 
including in 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's 
readiness procedures must address what protocol on-board personnel 
should follow in situations requiring immediate passenger evacuation 
either with or without the assistance of emergency response personnel 
or railroad personnel not on board its trains, as the non-availability 
of emergency responders in a situation requiring immediate action would 
be a ``condition on the railroad's property that is likely to affect 
emergency response.'' See Sec.  239.101(a).
    FRA received comments from MTA and Metra indicating that this 
paragraph, as proposed in the NPRM, presents a practical challenge in 
that some passengers may have cognitive, emotional, or other 
disabilities that are not readily identifiable to on-board crewmembers. 
While both MTA and Metra note that the voluntary participation in 
Reduced Fare or Ride Free programs by some passengers with disabilities 
may help crews identify such passengers, other passengers with 
disabilities may outwardly appear as any other passenger. Therefore, 
Metra asks FRA to clarify that the railroad's obligation to implement 
procedures that would identify the general location of passengers with 
disabilities be based on the on-board crew's actual knowledge of the 
disability.
    DREDF commented in support of proposed paragraph (a)(8), and 
encouraged FRA to include additional provisions. Specifically, DREDF 
suggests that FRA (1) mandate that staff receive training on the major 
categories of disability and the types of assistance associated with 
each; (2) develop more specific procedures for addressing the safe 
evacuation of persons with disabilities during emergency situations; 
(3) designate an individual with ``formal authority'' for the 
evacuation of persons with disabilities; (4) require that training 
include ``people from the disability community'' and emphasize that 
assistance provided to persons with disabilities during an emergency 
should take into account individual needs as expressed by the passenger 
or by the passenger's companions, if the passenger cannot express his 
or her own needs; and (5) provide that mobility equipment utilized by 
persons with disabilities should be evacuated with the person when at 
all possible. Additionally, DREDF acknowledges the difficulty in 
identifying some passengers with disabilities, as raised by MTA and 
Metra, but urges FRA and the railroads to continue to identify such 
passengers to the greatest extent possible, including by using the 
information available from Disability Reduced Fare Cards and Disabled 
Ride Free Cards.
    The language in paragraph (a)(8) requires that the railroads have a 
process for notifying emergency responders in an emergency situation 
about the presence and general location of each passenger with a 
disability ``when the railroad has knowledge that the passenger is on 
board the train.'' For purposes of this paragraph, FRA notes that a 
railroad would have ``knowledge'' when a reasonable person should have 
known that a passenger has a disability, such as under circumstances 
where the passenger is participating in a reduced fare or ride free 
program for persons with disabilities, or due to the presence of a 
mobility device (e.g., wheelchair, scooter, walker, cane, or crutches) 
or a service animal that is plainly visible. Metra's comment indicates 
that their crewmembers have been able to identify passengers with 
disabilities that are visible, but expresses concern that the rule may 
be requiring their crewmembers to identify each passenger with a 
disability, including those disabilities that are not visible.
    In response to the comments from MTA and Metra, FRA has added 
language to this paragraph that makes it clear that under circumstances 
where a passenger's disability is not readily apparent (e.g., where the 
passenger may not outwardly appear to have a disability and is not 
participating in any reduced fare or ride free program), the railroad 
would not be considered to have knowledge that the passenger has a 
disability unless the crewmember has actual knowledge, such as where a 
passenger (or his or her companion or fellow passenger) has expressly 
informed a crewmember on the train of the disability. Regarding the 
additional provisions proposed by DREDF, FRA strongly encourages 
railroads to consider adopting the suggested provisions in their plans 
where possible and appropriate under the circumstances of the emergency 
situation, but FRA notes that the comments have not provided enough of 
a safety justification to mandate such provisions as written. For 
example, evacuating a person with his or her mobility equipment may be 
considered ``possible,'' but should not be required if there is a fire 
and a quick exit is needed such that leaving the mobility equipment 
behind would speed the exit of any person. In addition, while FRA 
believes railroads would benefit from having one or more participants 
from the disability community present during the training, just as 
railroads benefit from having emergency responders participate in 
emergency simulations

[[Page 18138]]

(see 63 FR 24630, 24656 (May 4, 1998)), such participation is clearly 
voluntary.
Section 239.105 Debriefing and Critique
    This section requires a railroad operating passenger train service 
to conduct debriefing and critique sessions after each of its passenger 
train emergency situations or full-scale emergency simulations to 
determine the effectiveness of the railroad's e-prep plan. FRA is 
adding language to paragraph (c)(3) of this section so that the 
debriefing and critique session will 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 any passengers with a disability 
must be addressed during debrief and critique sessions as part of the 
assessment already required by paragraph (c)(5) of this section 
(regarding how efficiently the passengers exited from the car through 
the emergency exits). To ensure that railroads will be mindful of 
discussing how efficiently the evacuation was for all passengers, 
including any passengers with a disability or injury (when the railroad 
has knowledge of any such passengers), FRA has revised paragraph (c)(5) 
by adding the above clarifying language to the end of the existing 
language in paragraph (c)(5). The paragraph now reads ``How efficiently 
the passengers exited from the car through the emergency exits, 
including any passengers with a disability or injury (when the railroad 
has knowledge of any such passengers).''

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

Section 239.201 Emergency Preparedness Plan; Filing and Approval
    This section specifies the process for review and approval by FRA 
of each passenger railroad's e-prep plan. As proposed in the NPRM, FRA 
is dividing paragraph (a) of this section into paragraphs (a)(1) and 
(a)(2). Paragraph (a)(1) contains the regulatory requirements on how to 
file an e-prep plan, while paragraph (a)(2) contains the requirements 
on how to file an amendment to an FRA-approved plan. Paragraph (a)(2) 
is then further subdivided. Paragraph (a)(2)(i) describes what 
procedures a railroad must follow when filing amendments, other than 
certain purely administrative changes, to its e-prep plan with FRA. 
Paragraph (a)(2)(ii) lists the limited circumstances in which a 
railroad is permitted to implement an amendment to its approved e-prep 
plan without first obtaining FRA approval of the amendment. Consistent 
with this exception, FRA is also adding language to paragraph (b)(3) to 
clarify that FRA will not formally review the limited purely 
administrative amendments that are permitted to be implemented without 
prior FRA approval as described in paragraph (a)(2)(ii). Each of these 
changes is discussed in further detail, below.
    Specifically, FRA is modifying paragraph (a)(1) in four minor ways. 
First, FRA is updating the title of the FRA official who must receive a 
railroad's e-prep plan, from ``Associate Administrator for Safety'' to 
the current title of ``Associate Administrator for Railroad Safety and 
Chief Safety Officer.'' Additionally, since the time part 239 was 
issued, FRA's ``Office of Safety'' was officially renamed the ``Office 
of Railroad Safety.'' Therefore, FRA is updating the language in 
paragraph (a)(1) to reflect the name change of this FRA office. The 
RSAC also recommended that FRA modify the time period that 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 the RSAC's consensus 
recommendation, and with what FRA proposed in the NPRM, FRA is 
requiring that such railroads submit their plans to FRA no less than 60 
days prior to commencing passenger operations. This change provides 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 can be made before passenger operations 
commence. FRA notes that the original filing deadline for passenger 
railroads in operation during 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 
commenced operations since and have already filed and received approval 
on their plans as of the effective date of the rule (July 29, 2014, 
which has been specifically added to this paragraph of the final rule 
for easy reference), FRA considers that those plans are timely filed. 
Finally, regarding the requirement that the e-prep plan must include 
the ``address'' of the primary person on each affected railroad to be 
contacted with regard to review of the plan, FRA is adding ``(street 
address and, if available, email address)'' following the word 
``address'' in order to facilitate communication between FRA and the 
railroad concerning review of the plan.
    FRA is also redesignating as paragraph (a)(2)(i) the regulatory 
requirement (currently part of paragraph (a)) that all amendments to 
approved e-prep plans be filed with FRA 60 days prior to the effective 
date of the amendment. As discussed above, FRA is permitting an 
exception to this requirement for the limited purely administrative 
amendments that are permitted to be implemented without FRA approval, 
as listed in paragraph (a)(2)(ii). Although these limited types of 
amendments to e-prep plans must continue to be filed with FRA, they are 
permitted to become effective immediately, and do not require formal 
approval from FRA.
    However, pursuant to paragraph (a)(2)(i), e-prep plan amendments 
that do not qualify for the exception in paragraph (a)(2)(ii) must be 
submitted to FRA 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 must be included with the 
proposed amendment. Requiring railroads to include a summary with their 
proposed e-prep plan amendments that are not exempted by paragraph 
(a)(2)(ii) is necessary to permit FRA to review the plan amendments 
more efficiently. 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(s) and respond to the railroad within the 45 days specified 
in paragraph (b)(3)(i). Requiring the railroads to include such 
summaries will help FRA efficiently review the proposed amendments and 
respond

[[Page 18139]]

back to the railroad normally within 45 days; nevertheless, some 
reviews may take longer. This paragraph has been slightly modified from 
what was proposed in the NPRM for clarity, namely by adding ``of the 
amendment'' after ``effective date'' and changing ``contractors'' to 
``others within the scope of the training requirement at Sec.  
239.101(a)(2).''
    As previously stated, FRA is adding a new paragraph (a)(2)(ii) 
under which qualifying amendments are not subject to FRA's formal 
approval process as outlined in paragraph (b)(3)(i). As proposed in the 
NPRM, amendments that add or amend the name, title, address, or 
telephone number of the e-prep plan's primary contact person qualify 
for the exception in paragraph (a)(2)(ii). In this final rule, FRA has 
adopted the above proposal and added ``email address'' as another 
amendment that FRA considers to be purely administrative in nature, and 
FRA has changed ``address'' to ``street address'' for clarity. In 
addition, FRA has added a requirement that a summary of the purely 
administrative changes be filed with FRA (in addition to the existing 
requirement to file the amendment itself), in order to assist FRA in 
determining whether the amendment is in fact subject to the exception. 
Railroads filing amendments under this paragraph are permitted to 
implement each amendment upon filing the amendment and a written 
summary of the changes with FRA's Associate Administrator for Railroad 
Safety and Chief Safety Officer. All other e-prep plan amendments not 
covered by paragraph (a)(2)(ii) are required to be filed in accordance 
with paragraph (a)(2)(i) and are subject to the formal approval process 
in paragraph (b)(3)(i). FRA believes that paragraph (a)(2)(ii) is 
necessary in order to limit the need for FRA to formally approve 
certain purely administrative changes to previously-approved e-prep 
plans. This new paragraph allows these specific types of amendments to 
become effective immediately upon filing with FRA and thereby help to 
streamline the approval process.
    FRA is also modifying paragraph (b)(3) in order to clarify that the 
limited types of amendments containing only the administrative changes 
described in paragraph (a)(2)(ii) are exempt from the formal FRA review 
that is described in this paragraph.

Subpart D--Operational Tests and Inspections; Records, Recordkeeping, 
and Availability of Records

    Although not proposed in the NPRM, conforming, non-substantive 
revisions are being made to the title of subpart D. Before these 
revisions, the title read ``Operational (Efficiency) Tests; Inspection 
of Records and Recordkeeping.'' FRA notes that one such revision to the 
title was to delete the parenthetical reference to the term 
``Efficiency'' in the phrase ``Operational (Efficiency) Tests.'' The 
word ``efficiency'' as used in this context is a vernacular term that 
was originally included in the rule to ensure that railroads would not 
interpret the requirement to conduct ``tests'' to mean that classroom-
style written exams were required by this subpart. As the regulated 
community is now much more familiar with operational tests and 
inspections, FRA believes that the parenthetical reference to 
``efficiency'' tests in the title to subpart D is no longer necessary. 
Accordingly, FRA has decided to delete this parenthetical reference to 
``efficiency'' tests in the title, as well as throughout Sec.  239.301, 
for consistency with 49 CFR part 217 (part 217) and for easier 
readability.
Section 239.301 Operational Tests and Inspections
    This section requires a railroad to monitor the routine performance 
of personnel who have one or more responsibilities under its e-prep 
plan to verify that they can perform the duties required under the plan 
in a safe and effective manner. FRA is modifying this section in 
several ways. First, FRA is amending the title and subsequent 
references within this section to include not only operational tests, 
but also inspections. These amendments better reflect the broader types 
of monitoring for compliance that many railroads have already been 
implementing (in addition to the operational tests currently required) 
and that are now explicitly required under this section, as well as 
under part 217, after which this section is modeled. In doing so, FRA 
has deleted all parenthetical references to ``efficiency'' tests 
throughout Sec.  239.301, for the reasons noted above in the discussion 
regarding the revisions to the title of subpart D. Second, FRA is 
adding headings to each main paragraph for clarity and readability. 
Third, FRA is adding language clarifying that railroads are required to 
state in their e-prep plans the specific intervals at which they will, 
per the requirement in paragraph (a), periodically conduct operational 
tests and inspections of individuals with responsibilities under the e-
prep plans. Fourth, FRA is adding language to paragraph (a) that 
requires any ERCC personnel, railroad contractors or subcontractors, or 
employees of railroad contractors or subcontractors, to which part 239 
applies, to be subject to operational tests and inspections. Note that 
this paragraph has been slightly modified from that proposed in the 
NPRM by changing the words ``on-board, control center'' to ``on-board 
personnel, responsible control center personnel'' to better reflect the 
scope of the current requirement. Additionally, FRA is adding language 
to paragraphs (c) and (d) in response to comments in order to clarify 
that the records required to be kept by paragraphs (a)(1) and (b) and 
retained by paragraphs (c) and (d) of this section may be retained 
either in hard copy or electronically, provided that the records are 
retained pursuant to the conditions set forth in Sec.  239.303. 
Finally, FRA is adding new paragraphs (a)(1), (a)(1)(i) through (vi), 
(a)(2), (d), (e), and (f). The specific requirements being adopted in 
each new paragraph are discussed below.
    In paragraph (a), FRA is adding the heading, ``Requirement to 
conduct operational tests and inspections.'' FRA believes that this 
heading will help the regulated community identify that paragraph (a) 
of this section specifically addresses operational test and inspection 
requirements. Additionally, FRA is adding language to paragraph (a) 
that requires ERCC personnel, railroad contractors or subcontractors, 
as well as employees of railroad contractors to be subject to the same 
periodic operational tests (and inspections) as those to which on-board 
and control center employees are subject under the current regulation. 
Adding this language to the regulation is necessary to ensure that all 
individuals who are assigned a role in the railroad's emergency 
response are subject to operational tests and inspections. As modified, 
this requirement will help railroads determine whether they are 
prepared to provide an appropriate response in the event of an 
emergency situation, and, when railroads take measures to address any 
shortfalls discovered through these tests and inspections, will 
ultimately help ensure that they will be prepared for the various 
emergency situations that may arise.
    Paragraph (a)(1). New paragraph (a)(1) requires that the 
operational tests and inspections be conducted in accordance with the 
railroad's program that must include, at a minimum, the six basic 
elements identified in new paragraphs (a)(1)(i) through (a)(1)(vi). 
RSAC recommended that FRA adopt these requirements, which were modeled 
from regulations found in Sec.  217.9, Program of operational tests and 
inspections; recordkeeping. In fact, in several instances, the language 
in these

[[Page 18140]]

new paragraphs mirrors existing language in various provisions of Sec.  
217.9--specifically, Sec.  217.9(c)(3) through (c)(5). While part 217 
prescribes processes for railroad operating employees only (e.g., train 
and engine crews), its approach to operational tests and inspections in 
the above-cited provisions is useful for governing individuals covered 
by FRA's emergency preparedness requirements in part 239. However, the 
employees subject to these part 239 tests and inspections include not 
only certain railroad operating employees (e.g., train and engine 
crewmembers that are assigned to passenger trains), but all on-board 
``crewmembers'' within the meaning of Sec.  239.7, control center, and 
ERCC employees, as well as contractors and sub-contractors in these 
roles, regardless of whether the employees are operating employees, as 
applicable under the railroad's e-prep plan. In adopting this 
paragraph, FRA varied from the language proposed in the NPRM in two 
minor ways for clarity, namely, by changing ``pursuant to a'' to ``in 
accordance with the railroad's'' and changing ``New railroads'' to ``A 
new railroad.''
    Before discussing the six new paragraphs under paragraph (a)(1) 
that detail the basic elements required in a railroad's program of 
operational tests and inspections, FRA believes it would be helpful to 
note the potential overlap of part 217 and part 239 tests, inspections, 
and programs, and explain its effect on compliance with the 
requirements in part 239. For clarification, FRA notes that part 239 
operational tests and inspections also qualify as operational tests and 
inspections 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 and inspections 
conducted under part 217 also qualify as operational tests and 
inspections under part 239 as long as the criteria for operational 
tests and inspections in part 239 are met. For example, passenger train 
conductors are subject to operational testing under both parts 217 and 
239. An operational 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 
test of a passenger train conductor that involves the procedures for 
operating derails would satisfy the requirements under part 217 only.
    Further, operational testing and inspection under part 239 may be 
conducted as part of a railroad's operational testing and inspection 
program under Sec.  217.9 or in an entirely separate program. However, 
as adopted in this final rule, the operational testing and inspection 
requirements for part 239 have a broader applicability and include 
several more categories of employees, rather than just those employees 
covered by Sec.  217.9, as noted above. For example, these requirements 
also cover such individuals as passenger car attendants (who are 
considered to be ``crewmembers'' under Sec.  239.7, as they are 
``person[s], other than a passenger, who [are] assigned to perform . . 
. 2) On-board functions in a sleeping car or coach assigned to 
intercity service, other than food, beverage, or security service.'') 
and ERCC employees, who are not covered under part 217. Therefore, a 
railroad that would prefer to conduct its operational 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 individuals required to be 
covered under part 239, and that the program includes all six of the 
basic elements set forth in paragraphs (a)(1)(i) through (a)(1)(vi).
    Paragraph (a)(1)(i). The first basic element, described in 
paragraph (a)(1)(i), is that the program must provide for operational 
testing and inspection of all covered individuals that addresses the 
appropriate courses of action in response to various potential 
emergency situations, as well as the responsibilities of these 
individuals under the railroad's e-prep plan. For example, railroads 
should address how railroad personnel on board a passenger train should 
respond in the event of a fire. They should also address what each on-
board employee's, contractor's, or subcontractor's individual 
responsibilities are during such an emergency situation, and should 
also test to see if the crewmember(s) have the emergency equipment 
(e.g., flash light). FRA believes that these requirements help to 
reduce confusion during an actual emergency situation and ensure that 
the railroad's on-board, control center, and ERCC personnel undergo 
operational tests and inspections on actions they would be performing 
during an emergency event.
    Regarding the applicability of this section, MTA submitted a 
comment requesting that FRA modify the language proposed in the NPRM to 
make clear that the training and efficiency testing requirements would 
not apply to police officers who are not contractors, subcontractors, 
or employees of contractors or subcontractors and who also are not 
employees of a railroad. As justification for this request, MTA notes 
that MTA Police have more extensive emergency preparedness training 
than railroad employees, and that it would be appropriate for MTA 
Police to monitor compliance with their own internal emergency 
protocols. In response to this comment, FRA makes clear that only 
railroad employees, railroad contractor and subcontractors, and 
employees of railroad contractors and subcontractors who are covered by 
and have responsibilities under the railroad's e-prep plan are subject 
to operational tests and inspections from the railroad. Further, FRA 
notes that hired or contracted employees working for the railroad who 
do not have any responsibilities under the railroad's e-prep plan 
(e.g., a clerk in the control center that is performing an incidental 
function, such as receiving a call from a stalled train, but who does 
not have an assigned role under the plan; see 63 FR 24630, 24651 (May 
4, 1998)) are not required to be subject to operational tests and 
inspections.
    Paragraph (a)(1)(ii). Paragraph (a)(1)(ii) requires that railroads 
describe each type of operational test and inspection required for 
passenger train emergency preparedness. The description must also 
specify the means and procedures used to carry out these operational 
tests and inspections. For example, an operational 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 tests and 
inspections adopted for passenger train emergency preparedness should 
cover all affected employees and be comprehensive.
    Paragraph (a)(1)(iii). Paragraph (a)(1)(iii) requires railroads to 
state in their e-prep plans the purpose of each type of operational 
test and inspection conducted. For example, an operational 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 be conducted to

[[Page 18141]]

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 tests on ERCC 
employees to determine their knowledge of the railroad's e-prep plan, 
special circumstances, and access points is 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.
    Paragraph (a)(1)(iv). New paragraph (a)(1)(iv) clarifies that each 
railroad must state in its operational testing program the specific 
intervals at which it will periodically conduct operational tests and 
inspections of individuals covered by paragraph (a). This information 
must be listed according to operating division, where applicable. FRA 
believes that this additional language is necessary after reviewing 
various railroads' submitted e-prep plans, some of which simply copied 
the language directly from Sec.  239.301(a) and placed it into their e-
prep plans or stated that the railroad would periodically conduct 
operational tests and inspections without indicating a specific 
interval by which these tests or inspections would be administered. By 
adding a requirement to specify a frequency, FRA is not mandating any 
specific interval by which the railroad must conduct these tests and 
inspections, as FRA believes that the regulated community should 
continue to have the flexibility to decide the appropriate periodic 
interval based on the individual circumstances of each railroad and its 
e-prep plan and operational testing program. However, FRA is requiring 
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.
    Paragraph (a)(1)(v). Paragraph (a)(1)(v) requires 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 tests and inspections is properly implemented. For 
railroads that have multiple divisions or systems, the regulation 
requires that each railroad 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 test and inspection requirements as well as the 
current state of the railroad's e-prep program system-wide. If more 
than one individual is responsible for ensuring that the program is 
properly implemented on a railroad that has multiple divisions or 
systems, the e-prep plan should make clear which individual is 
responsible for overseeing the program and implementation on which 
division(s) or system(s), and require that such individuals coordinate 
results and jointly prepare the annual summary required by paragraph 
(f) of this section.
    Paragraph (a)(1)(vi). The final basic element of the program, in 
paragraph (a)(1)(vi), is that the program must require that railroad 
officers conducting operational 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 tests and inspections must 
be qualified on the procedures for administering such tests and 
inspections in accordance with the railroad's program.
    Paragraphs (b) and (c). FRA is also adding headings to both 
paragraphs (b) and (c) of this section. FRA believes that adding the 
heading ``Maintaining records of operational test and inspection 
records'' to paragraph (b) will help clarify that paragraph (b) 
addresses what types of records need to be created for each operational 
test or inspection performed. Similarly, the heading ``Retaining 
operational test and inspection records'' is being added to paragraph 
(c). This heading clarifies that paragraph (c) addresses the 
requirements for how long records of operational tests and inspections 
need to be retained by the railroad. Note that these headings differ 
slightly from those proposed in the NPRM. For the header in paragraph 
(b), FRA changed the word ``Keeping'' to ``Maintaining'' to be 
consistent with the use of the word ``maintain'' within the body of 
that paragraph. For paragraph (c), FRA changed the words ``Retention 
of'' to ``Retaining'' in order to be more consistent stylistically with 
the language used in the heading of paragraph (b). In addition, FRA is 
modifying the cross-reference to paragraph (a) in the first sentence to 
reflect that the requirement in paragraph (c) to retain each record 
``required by paragraph (a)'' is actually required by paragraph (b), 
not paragraph (a). Paragraph (a) requires railroads to conduct the 
tests and inspections that are the subject of the records required to 
be kept by paragraph (b) and retained by paragraph (c). FRA believes 
that these headings and clarifying amendments will be useful guides for 
the regulated community, especially those who are unfamiliar with part 
239 and its requirements.
    Paragraphs (c) and (d). Regarding the record-retention requirements 
in revised paragraph (c) and new paragraph (d) (see also, new 
paragraphs (e) and (f)), MTA and Metra commented that requiring 
railroads to retain copies of the operational test and inspection 
records, program and summaries at both the railroad's headquarters and 
divisional headquarters is unnecessary. Metra suggests that FRA modify 
paragraphs (c) and (d) of this section to eliminate the proposed 
requirement to retain a copy at the divisional headquarters. MTA 
suggests that requiring a copy of each record at the headquarters only, 
coupled with a provision that electronic copies be available at 
divisional headquarters, would be sufficient to ensure compliance, 
while reducing redundancy and paperwork. In response to these comments, 
FRA is modifying the language proposed in the NPRM for existing 
paragraph (c) and new paragraph (d) (and using conforming language in 
other similarly-worded or related paragraphs, as further discussed 
below) to clarify that records required by paragraphs (a)(1) and (b) 
and required to be retained by paragraphs (c) and (d) of this section 
may be retained either in hard copy or electronically, provided that 
the electronic records are retained pursuant to the conditions set 
forth in Sec.  239.303.
    Paragraph (d) contains a new requirement that each railroad retain 
one copy of its current operational testing and inspection program 
required by paragraph (a) of this section and each subsequent amendment 
to the program. Railroads are required to retain such records at the 
railroad's system headquarters and, as applicable, at each division 
headquarters for three calendar years after the end of the calendar 
year to which the program relates. As noted above, the records may be 
retained electronically, subject to the conditions set forth in Sec.  
239.303, and 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 (part 212).
    Paragraph (e). In the NPRM, FRA requested comment as to whether the 
periodic review and analysis requirements of Sec.  217.9(e) should be 
adopted in this final rule amending part 239 to more appropriately 
fulfill the intended purpose of providing FRA

[[Page 18142]]

with a clear understanding of how operational tests and inspections are 
being applied and how successful these programs are being implemented 
from a systems perspective. FRA noted that, under Sec.  217.9(e), 
railroads should already be reviewing and analyzing operational test 
and inspection data conducted for passenger train emergency 
preparedness on individuals subject to part 217. Further, FRA indicated 
that the requirements of the paragraph might be broadened to cover 
individuals subject to part 239, and indicated that a railroad would be 
permitted to consolidate such a review and analysis required by part 
239 with one required under Sec.  217.9(e). If such requirements were 
adopted and a consolidation of reviews was made, then a railroad would 
be required to retain the consolidated reviews for a period of one year 
after the end of the calendar year to which the reviews relate 
(assuming that FRA did not adopt in part 239 a more stringent record- 
retention requirement for such reviews than what is required by Sec.  
217.9(e)(3)) and make the reviews available to representatives of FRA 
and States participating under part 212.
    FRA received comments from Metra and MTA. Both railroads suggest 
that the timing of periodic review and analysis be left to the 
discretion of the railroad. Metra notes that integrating part 239 
analysis with that of part 217 may be problematic in that the railroad 
may designate separate administrators for the requirements of each 
respective part, and that integration would require incorporating 
``non-operating'' employees into the part 217 program.
    After carefully considering the comments, FRA has decided to adopt 
a new paragraph (e) in Sec.  239.301 requiring railroads to conduct a 
six-month review and analysis that is modeled after the similar review 
in Sec.  217.9(e). Railroads have the option of combining the part 239 
program with their part 217 program; however, if that option is not 
convenient given a particular railroad's designation of administrators 
for the respective programs, this alone should not be an impediment to 
FRA's adopting such a provision. In fact, the railroads are not 
objecting to the requirement to perform such a review and analysis, but 
have simply stated a preference, without further explanation as to the 
potential impacts or burdens, that FRA not mandate a specific timeframe 
by which such periodic reviews and analyses must be performed. FRA 
notes that the purpose of the six-month review and analysis is to make 
certain that officers are conducting the minimum number of each type of 
test or inspection required, and that any necessary adjustments have 
been made to the distribution of tests and inspections. FRA believes 
that, without a six-month periodic review and analysis, railroads may 
not realize that they are not compliant regarding operational testing 
until the end of the year. The six-month review is critical to assist 
the railroad regarding compliance with part 239 operational testing 
requirements.
    In furtherance of this purpose, paragraph (e) requires the 
individuals designated pursuant to paragraph (a)(1)(v) of this section 
to conduct periodic reviews and analyses not less than once every six 
months, prepare records of the reviews, and retain one copy of these 
records at the system headquarters, and, as applicable, at each 
division headquarters. The review records must be completed no later 
than 30 days after the time period being reviewed and retained for one 
year. Such review records may be retained in hard copy or 
electronically, if pursuant to Sec.  239.303, and must be made 
available to representatives of FRA for inspection and copying during 
normal business hours. In particular, the designated officer(s) must 
prepare a record of the review of three aspects of the program of 
operational tests and inspections. The first aspect of the program to 
be reviewed and analyzed (see paragraph (e)(1)) is the operational 
testing and inspection data to determine compliance by the railroad 
testing officers with its program, and the review record must include 
the name of each railroad testing officer, the number of tests and 
inspections conducted by each officer, and whether the officer 
conducted the minimum number of each type of test or inspection 
required by the railroad's program. The second aspect required to be 
reviewed and analyzed (see paragraph (e)(2)) is the accident/incident 
data, the results of prior operational tests and inspections under this 
section, and other pertinent safety data to identify the relevant 
operating rules related to those accidents/incidents that occurred 
during the period. Note that paragraph (e)(2) requires railroads to 
make any necessary adjustments to the tests and inspections required of 
railroad officers for the subsequent period(s), based upon the results 
of the review of the data, and that if the railroad has divisions, the 
review must analyze each division's data separately. The third aspect 
to be reviewed and analyzed (see paragraph (e)(3)) is the 
implementation of the program from a system perspective, to ensure that 
the program is being utilized as intended, that the other reviews 
provided for in this paragraph have been properly completed, that 
appropriate adjustments have been made to the distribution of tests and 
inspections required, and that the railroad testing officers are 
appropriately directing their efforts.
    Paragraph (f). Finally, FRA is adding a new paragraph (f) to this 
section (which was proposed as paragraph (e) in the NPRM). As 
recommended by RSAC and adopted by FRA with one minor revision, this 
paragraph requires each railroad subject to this part to prepare and 
retain an annual summary of the number, type, and result of each 
operational test and inspection that was conducted in the previous year 
as required by paragraph (a) of this section. Note that FRA added the 
words ``prepare and'' in front of ``retain,'' for clarity. For 
railroads with operating divisions, the summaries must be organized by 
operating division. The requirement to organize the summaries by 
operating division, where applicable, is intended to provide FRA with a 
clearer understanding of how each railroad is applying its program of 
operational tests and inspections and whether the railroad is 
successfully applying its program over different railroad divisions.
    Each railroad is required by this paragraph to complete its annual 
summary and make it available (to FRA and States participating under 
part 212 for inspection and copying during normal business hours) at 
the railroad's system headquarters by March 1 of the year following the 
year covered by the summary. For a railroad with operating divisions, 
copies of the annual summaries must also be retained and made available 
at each of its division headquarters. In each case, the railroad must 
retain the annual summary (in hard copy or electronically, if pursuant 
to Sec.  239.303) for three calendar years after the end of the 
calendar year covered by the summary. For example, a railroad's annual 
summary of the operational tests and inspections conducted in calendar 
year 2013 must be retained through calendar year 2016. FRA specifically 
invited comment on the appropriateness of proposed paragraph (e) (now 
paragraph (f)). No comments were received, other than regarding the 
retention of records in hard copy, as noted in the discussion of 
paragraph (c), above. As also noted above, railroads may retain such 
records either in hard copy or electronically, subject to the 
conditions set forth in Sec.  239.303.

[[Page 18143]]

Appendix A to Part 239--Schedule of Civil Penalties

    Finally, FRA is revising the schedule of civil penalties in 
Appendix A to part 239 in three ways. The first is by adding new 
entries under Sec. Sec.  239.101, 239.105, 239.201, 239.301 (as more 
specifically noted in the amendatory language of the penalty schedule), 
some of which are new requirements set forth in this final rule, and 
others that are existing requirements that lacked an entry in the 
penalty schedule. The second way is by revising the existing entries, 
mostly to reflect the addition or deletion of terms, such as by adding 
the term ERCC and deleting the term ``(efficiency).'' The third way is 
by revising footnote no. 1 to reflect the new maximum civil penalty 
($105,000) that FRA is permitted to assess per violation and to delete 
language that will be added as a part of a new footnote no. 2, which 
uses a more up-to-date explanation for noting that FRA may use penalty 
codes to facilitate assessment of civil penalties, which may or may not 
correspond to any subsection designation(s). As the penalty schedule is 
a statement of agency policy, it is not required to be subject to 
notice and comment, and was therefore not proposed in the NPRM.

IV. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This final 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. 2) a 
regulatory impact analysis addressing the economic impact of this final 
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 final rule. For the 10-year period analyzed, 
the estimated quantified cost that will be imposed on industry totals 
$1,492,792 with a present value (PV, 7 percent) of $1,073,775. The 
largest cost burdens are from the new requirements related to the 
operational tests in Sec.  239.301 of the final rule. The table below 
presents the estimated discounted costs associated with the final rule, 
broken down by section of the rule:

                  10-Year Estimated Cost of Final Rule*
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Emergency Preparedness Plan (Sec.   239.101)...............     $495,530
Debriefing and Critique (Sec.   239.105)...................      200,273
Emergency Preparedness Plan; Filing and Approval...........       16,911
(Sec.   239.201)...........................................
Operational Tests and Inspections (Sec.   239.301).........      361,060
                                                            ------------
  Total....................................................    1,073,775
------------------------------------------------------------------------
* Dollars are discounted at a present value rate of 7 percent.

    As part of the regulatory impact analysis, FRA has explained what 
the likely benefits for this final rule will be, and provided 
assessments of the potential value of such benefits. This final rule 
will 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.\4\ Benefits will accrue from the expedited arrival of 
emergency responders to accident scenes, and from the ability of the 
ERCC personnel to minimize health and safety risks through improved 
internal and external communications. This final rule will ensure that 
passenger railroads' emergency preparedness planning and implementation 
is more flexible and provides the required emergency preparedness 
training.
---------------------------------------------------------------------------

    \4\ Association for the Advancement of Automotive Medicine. 
http://www.aaam1.org/ais/#.
---------------------------------------------------------------------------

    Additionally, this final rule will 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 final rule amendments, FRA believes that 
the most appropriate methodology to estimate the safety benefits is a 
break-even analysis. A break-even analysis quantifies the minimum 
safety benefits necessary for the final rule to be cost-beneficial, 
considering the estimated quantified costs. For this final rule, the 
analysis estimates that the break-even point is met when 5.47 injuries 
are prevented from increasing in severity from AIS 1 (minor) to AIS 2 
(moderate).
    The table below presents the estimated benefits necessary for this 
final rule to break-even with the estimated costs. For the 10-year 
period analyzed, the safety benefits would total $1,492,792 
(undiscounted) with a present value (PV, 7 percent) of $1,073,775 at 
the break-even point.

                10-Year Estimated Benefits of Final Rule
------------------------------------------------------------------------
 Number of injuries prevented from
 increasing in severity from AIS 1     Undiscounted     Discounted  (PV,
             to AIS 2                                      7 percent)
------------------------------------------------------------------------
5.47 (Break-Even Point)...........         $1,492,792         $1,073,775
6 (Break-Even Point Rounded Up)...          1,636,800          1,149,620
------------------------------------------------------------------------

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

B. Regulatory Flexibility Act and Executive Order 13272; Certification 
of No Significant Economic Impact on a Substantial Number of Small 
Entities

    FRA developed this final rule in accordance with Executive Order 
13272, ``Proper Consideration of Small Entities in Agency Rulemaking'' 
(67 FR 53461 (August 16, 2002)), and DOT's procedures and policies to 
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.) to ensure potential impacts of rules on small entities are 
properly considered. The Regulatory Flexibility Act requires an agency 
to review regulations to assess their impact on small entities. An 
agency must conduct a regulatory flexibility analysis unless it 
determines and certifies that a rule does not have a significant 
economic impact on a substantial number of small entities.

[[Page 18144]]

    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 (along with on-
board personnel) to be subject to training and operational tests. 
However, in many instances, control center employees were not found to 
be the primary points of contact for outside emergency responders 
during a passenger train emergency. Instead, control center employees 
were carrying out other important duties related to ordinary train 
operations and the emergency at hand, such as providing block 
protection and diverting trains to other parts of the railroad's 
network. This regulation is adding a definition for the new term 
``emergency response communications center'' (ERCC) to Sec.  239.7 and 
providing for the incorporation of the term ERCC in relevant sections 
of part 239 (see e.g., Sec. Sec.  239.101, 239.105, 239.201, and 
239.301). The amendments in the regulation will help to ensure that all 
personnel involved in emergency preparedness under part 239 are subject 
to appropriate training as well as operational tests and inspections. 
While, the regulation differs slightly from the consensus language, the 
need for this rulemaking is backed by the RSAC and is improving 
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 certain 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 final rule is streamlining the approval of 
such minor modifications to 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. See 69 FR 44573 
(July 26, 2004). Currently, each railroad subject to part 239 is 
required to address the safety of each of its passengers in its 
emergency preparedness planning. Nonetheless, FRA is clarifying 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).
1. Description of Regulated Entities
    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 final rule will 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 using this definition for this 
rulemaking.
2. Railroads Impacted
    There are only two intercity passenger railroads, Amtrak and the 
Alaska Railroad. Neither is a small entity. Amtrak is a Class I 
railroad and the Alaska Railroad is a Class II railroad. Additionally, 
both railroads are owned by public entities that exceed the population 
threshold 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 that do not conduct exclusively tourist, scenic, 
historic, or excursion railroad service within the meaning of the 
exception to part 239 at Sec.  239.3(b)(3).
    The Hawkeye Express is owned and operated by the Iowa Northern 
Railway Company (IANR). In 2012, Hawkeye Express transported 
approximately 5,000 passengers per game over a seven-mile round-trip 
distance to and from the University of Iowa (University) football 
games. IANR has approximately 110 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.) IANR, which is a Class III railroad, owns and operates the six 
bi-level passenger cars used for this passenger operation which runs an 
average seven 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.
    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

[[Page 18145]]

standard coach passenger trains. Additional service activity includes 
seasonal ski trains, and specials such as the ``Snow Train'' and those 
featuring ``Thomas the Tank Engine\TM\.'' This railroad operates under 
a five-year contract with the local government, and has expressed 
interest to provide freight service as well. The railroad has about 25 
employees.
    FRA believes that these two entities will not be impacted 
significantly. While each of these entities will most likely have to 
file a new e-prep plan, FRA does not expect they will 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 will 
continue to have the same emergency responsibilities. FRA expects that 
both railroads will see additional burden from inclusion of other 
provisions in this final rule related to recordkeeping and other 
training and testing requirements. This final rule will not be a 
significant financial impact on these railroad and their operations. 
They can expect the total regulatory costs for this final rule as 
adopted, to be less than $7,500 for each of the railroads over the next 
10 years. Regulatory burden is mostly expected to be related to 
personnel additions to emergency response training and operational 
tests and inspections, and to new requirements related to debriefing 
and critique sessions. The Hawkeye Express and the SNC currently have 
e-prep plans that have been reviewed and approved by FRA. Although, 
this final rule changes several requirements in part 239, the 
professional skills necessary for compliance with existing and new 
requirements are the same. FRA believes that both entities have the 
professional knowledge to fulfill the requirements in this final rule.
    In conclusion, FRA believes that there are two small entities and 
that both will be impacted. However, FRA has found that entities 
directly burdened by the regulation will not be impacted significantly. 
FRA believes that the costs associated with the final rule are 
reasonable and will not cause any significant financial impact on their 
operations.
3. Certification
    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.

C. Paperwork Reduction Act

    The information collection requirements in this final 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 are as 
follows:

----------------------------------------------------------------------------------------------------------------
                                     Respondent        Total annual     Average time per    Total annual burden
          CFR Section                 universe          responses           response               hours
----------------------------------------------------------------------------------------------------------------
239.13--Waiver petitions         45 railroads.....  1 petition.......  20 hours.........  20 hours.
 (current requirement).
239.101/201/203--Emergency
 preparedness plans (revised
 requirements)
    --1st year--amended plans..  45 railroads.....  45 plans.........  31.33 hours......  1,410 hours.
    --Subsequent years--amended  45 railroads.....  9 plans..........  31.33 hours......  282 hours.
     plans--substantive changes.
    --Subsequent years--amended  45 railroads.....  4 plans..........  60 minutes.......  4 hours.
     plans--non-substantive
     changes.
    --New RRs--e-prep plans....  2 railroads......  2 plans..........  80 hours.........  160 hours.
    --Current employee initial   45 railroads.....  540 trained        8 hours..........  4,320 hours.
     training for crewmembers,                       employees.
     control center & emergency
     response communications
     center personnel.
    --Employee periodic           45 railroads....  54 trained         4 hours..........  216 hours.
     training.                                       employees.
    --Initial training of new    45 railroads.....  135 trained        8 hours..........  1,080 hours.
     employees.                                      employees.
239.101(a)(1)(ii)--Notification
 s by control center (current
 requirements)
    --Designation of RR          45 railroads.....  45 designations..  5 minutes........  4 hours.
     employee to maintain
     current emergency
     telephone numbers to
     notify outside responders,
     etc..
    --Railroads' lists/records   45 railroads.....  2 updated lists..  1 hour...........  2 hours.
     of emergency telephone
     numbers to notify outside
     responders, etc..
239.101(a)(3)--Emergency         45 railroads.....  1 plan...........  16 hours.........  16 hours.
 preparedness plan--joint
 operations (current
 requirement).
239.101(a)(5)--RR training       45 railroads.....  45 updated plans.  40 hours.........  1,800 hours.
 program for on-line emergency
 responders (current
 requirement).
239.101(a)(7)--Passenger safety  2 new railroads..  1,300 cards/2      5 minutes/16       300 hours.
 information--posting emergency                      programs/2         hours/48 hours/8
 instructions inside all                             safety messages/   hours/+24 hours.
 passenger cars (current                             2 programs/+2
 requirement).                                       safety messages.
239.105(a)(3)--Debriefing and    45 railroads.....  79 sessions......  27 hours.........  2,133 hours.
 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 hours.
 efficiency tests (revised                           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 hours.
 tests/inspections.
(d)--Records of program of       45 railroads.....  90 records.......  3 minutes........  5 hours.
 operational tests (new
 requirement).

[[Page 18146]]

 
(e)--Periodic reviews and        45 railroads.....  90 periodic        2 hours..........  180 hours.
 adjustments (not less than                          reviews.
 every 6 months) to program of
 operational tests and
 inspections (new requirement).
(f)--Annual summary of           45 railroads.....  45 annual          5 minutes + 1      5 hours.
 operational tests/inspections                       summaries + 30     minute.
 and copy of summary at system                       hardcopies.
 and division headquarters (new
 requirement).
----------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions; searching 
existing data sources; gathering or maintaining the needed data; and 
reviewing the information. For information or a copy of the paperwork 
package submitted to OMB, please contact Mr. Robert Brogan, Information 
Clearance Officer, Federal Railroad Administration, at 202-493-6292 
(Robert.Brogan@dot.gov), or Ms. Kimberly Toone, Records Management 
Officer, Federal Railroad Administration, at 202-493-6132 
(Kimberly.Toone@dot.gov).
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via email to the Office of Management and Budget at the following 
address: oira_submissions@omb.eop.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements that 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 this final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism,'' 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.'' See 64 FR 43255 (August 10, 1999). 
``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, the agency consults with 
State and local governments, or the agency consults with State and 
local government officials early in the process of developing the 
regulation. Where a regulation has federalism implications and preempts 
State law, the agency seeks to consult with State and local officials 
in the process of developing the regulation.
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. This final 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 final 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 final 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 final rule is not required.

E. Trade Impact

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et 
seq.) prohibits Federal agencies from engaging in any standards or 
related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    FRA has assessed the potential effect of this 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

[[Page 18147]]

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 28545, 28547 (May 26, 1999). Certain classes of FRA actions 
have been determined to be categorically excluded from the requirements 
of these Procedures as they do not individually or cumulatively have a 
significant effect on the human environment. Promulgation of railroad 
safety rules and policy statements that do not result in significantly 
increased emissions or air or water pollutants or noise or increased 
traffic congestion in any mode of transportation are excluded.
    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 one 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 final rule will not result in the expenditure, in the aggregate, 
of $100,000,000 or more (as adjusted annually for inflation) in any one 
year, and thus preparation of such a statement is not required.

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

I. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of any comment or petition received into 
any of FRA's dockets 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 see the privacy 
notice at 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 19477-19478), 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 Rule

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

PART 239--[AMENDED]

0
1. The authority citation for part 239 continues to read as follows:

    Authority:  49 U.S.C. 20102-20103, 20105-20114, 20133, 21301, 
21304, and 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

Subpart A--General


Sec.  239.5  [Removed and Reserved]

0
2. Section 239.5 is removed and reserved.

0
3. Section 239.7 is amended by--
0
a. Revising paragraph (1) of the definition of ``Crewmember'';
0
b. Adding ``, on-line emergency responder, or outside emergency 
responder'' to the term ``Emergency responder''; and
0
c. Adding the definition of ``Emergency response communications 
center'' in alphabetical order.
    The revisions and additions read as follows:


Sec.  239.7  Definitions.

* * * * *
    Crewmember * * *
    (1) On-board functions connected with the movement of the train 
(i.e., an employee of the railroad, or of a contractor to the railroad, 
who is assigned to perform service subject to the Federal hours of 
service requirements during a tour of duty) or
* * * * *
    Emergency responder, on-line emergency responder, or outside 
emergency responder * * *
    Emergency response communications center means a central location, 
or a group of individuals, designated by a railroad with responsibility 
for establishing, coordinating, or maintaining communication with 
outside emergency responders, representatives of adjacent rail modes of 
transportation, or appropriate railroad officials during a passenger 
train emergency. The emergency response communications center may be 
part of the control center.
* * * * *

Subpart B--Specific Requirements

0
4. Section 239.101 is amended by revising paragraphs (a)(1)(ii), 
(a)(2)(ii), (a)(2)(iii) introductory text, (a)(2)(iv), (a)(2)(v) 
introductory text, (a)(2)(v)(A), and adding paragraph (a)(8) to read as 
follows:


Sec.  239.101  Emergency preparedness plan.

    (a) * * *
    (1) * * *
    (i) * * *
    (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

[[Page 18148]]

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 the following:
    (A) Territory familiarization (e.g., 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 
that would likely present challenges for individuals responding to a 
passenger train emergency);
    (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 personnel. The 
railroad's emergency preparedness plan shall provide for the completion 
of initial training of all on-board and responsible control center 
personnel, as well as 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 personnel. The railroad's 
emergency preparedness plan shall provide for the completion of initial 
training of all on-board and responsible 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 of these individuals 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 personnel. The railroad shall have procedures for 
testing an individual 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 the individual's knowledge of 
his or her responsibilities under the plan;
* * * * *
    (8) Procedures regarding passengers with disabilities. The 
railroad's emergency preparedness plan shall include procedures to 
promote the safety of passengers with disabilities under all conditions 
identified in its emergency preparedness plan, such as during a train 
evacuation. 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. The 
railroad does not have knowledge that such passenger has a disability 
unless a crewmember has actual knowledge of the disability, such as 
where a passenger (or his or her companion or fellow passenger) has 
expressly informed a crewmember on the train of the disability or where 
the disability is readily apparent. Nothing in this part requires the 
railroad to maintain any list of train passengers.
* * * * *

0
5. Section 239.105 is amended by revising paragraphs (c)(3) and (c)(5) 
to read as follows:


Sec.  239.105  Debriefing and critique.

* * * * *
    (c) * * *
    (3) Whether the control center or the emergency response 
communications center promptly initiated the required notifications, as 
applicable under the plan;
* * * * *
    (5) How efficiently the passengers exited from the car through the 
emergency exits, including any passengers with a disability or injury 
(when the railroad has knowledge of any such passengers).
* * * * *

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

0
6. 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 and 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 July 29, 2014, is considered to 
have timely filed its plan. The emergency preparedness plan shall 
include the name, title, address (street address and, if available, 
email 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 of the amendment. When filing an amendment, the railroad 
must include a written summary of the proposed changes to the 
previously approved plan and, as applicable, a

[[Page 18149]]

training plan describing how and when current and new employees and 
others within the scope of the training requirement at Sec.  
239.101(a)(2) would be trained on any amendment.
    (ii) If the proposed amendment is limited to adding or changing the 
name, title, street address, email 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 and Chief Safety Officer. All other 
proposed amendments must comply with the formal approval process in 
paragraph (b)(3)(i) of this section.
    (b) * * *
    (3) Review of amendments. (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.
* * * * *

0
7. Revise the heading of subpart D to read as follows:

Subpart D--Operational Tests and Inspections; Records, 
Recordkeeping, and Availability of Records

0
8. Section 239.301 is revised to read as follows:


Sec.  239.301  Operational tests and inspections.

    (a) Requirement to conduct operational tests and inspections. Each 
railroad to which this part applies shall periodically conduct 
operational tests and inspections of on-board personnel, responsible 
control center personnel, 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) Program of operational tests and inspections. Operational tests 
and inspections shall be conducted in accordance with the railroad's 
program. A new railroad shall adopt such a program within 30 days of 
commencing rail operations. The program shall--
    (i) Provide for operational 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 test and inspection 
required, including the means and procedures used to carry it out.
    (iii) State the purpose of each type of operational test and 
inspection.
    (iv) State, according to operating divisions where applicable, the 
frequency with which each type of operational 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 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 
tests and inspections be trained on those aspects of the railroad's 
emergency preparedness plan that are relevant to the operational tests 
and inspections that the officer conducts, and that the officer be 
qualified on the procedures for conducting such operational tests and 
inspections in accordance with the railroad's program of operational 
tests and inspections and the requirements of this section.
    (2) The program of operational tests and inspections required by 
paragraph (a)(1) of this section may be combined with the written 
program of operational tests and inspections required by Sec.  217.9(c) 
of this chapter.
    (b) Maintaining records of operational tests and inspections. Each 
railroad to which this part applies shall maintain a record of the 
date, time, place, and result of each operational 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) Retaining operational test and inspection records. Each record 
required by paragraph (b) 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 
retained either in hard copy or electronically, if pursuant to Sec.  
239.303, 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.
    (d) Retaining records of program of operational tests and 
inspections. Each railroad shall retain one copy of its current 
operational 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 tests 
and inspections are conducted, for three calendar years after the end 
of the calendar year to which they relate. These records shall be 
retained either in hard copy or electronically, if pursuant to Sec.  
239.303, 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.
    (e) Six-month review of tests and inspections and adjustments to 
the program of operational tests and inspections. Not less than once 
every six months, the officer(s) responsible for overseeing the entire 
program of operational tests and inspections under this section and the 
implementation of the program by each division, if any, or the system, 
as designated pursuant to paragraph (a)(1)(v) of this section, shall 
conduct periodic reviews and analyses as provided in this paragraph, 
prepare records of reviews as provided in this paragraph, and retain 
one copy of these records at the system headquarters, and, as 
applicable, at each division headquarters. Each such review and record 
shall be completed within 30 days of the close of the period being 
reviewed. The record of each such review shall be retained (in hard 
copy or electronically, if pursuant to Sec.  239.303) for a period of 
one year after the end of the calendar year to which the review 
relates, and be made available to representatives of FRA for inspection 
and copying during normal business hours. In particular, each 
designated officer's review and record shall include the following:
    (1) The operational testing and inspection data for each division, 
if any, or the system to determine compliance by the railroad testing 
officers with its program of operational tests and inspections required 
by paragraph (a)(1)

[[Page 18150]]

of this section. At a minimum, this review shall include the name of 
each railroad testing officer, the number of tests and inspections 
conducted by each officer, and whether the officer conducted the 
minimum number of each type of test or inspection required by the 
railroad's program;
    (2) Accident/incident data, the results of prior operational tests 
and inspections under this section, and other pertinent safety data for 
each division, if any, or the system to identify the relevant operating 
rules related to those accidents/incidents that occurred during the 
period. Based upon the results of that review of the data for each 
division, if any, or the system, the designated officer(s) shall make 
any necessary adjustments to the tests and inspections required of 
railroad officers for the subsequent period(s); and
    (3) Implementation of the program of operational tests and 
inspections under this section from a system perspective, to ensure 
that the program is being utilized as intended, that the other reviews 
provided for in this paragraph have been properly completed, that 
appropriate adjustments have been made to the distribution of tests and 
inspections required, and that the railroad testing officers are 
appropriately directing their efforts.
    (f) Annual summary of operational tests and inspections. Before 
March 1 of each calendar year, each railroad to which this part applies 
shall prepare and retain at the system headquarters of the railroad 
and, as applicable, at each of its division headquarters, one copy of a 
summary of the following with respect to its previous calendar year 
activities: The number, type, and result of each operational test and 
inspection, stated according to operating divisions as applicable, that 
was conducted as required by paragraph (a) of this section. A record of 
each such summary shall be retained (in hard copy or electronically, if 
pursuant to Sec.  239.303) for three calendar years after the end of 
the calendar year to which the record relates 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.

0
9. Appendix A to part 239 is amended by--
0
a. Revising the entries under subpart B for Sec. Sec.  239.101(a), 
239.101(a)(1)(ii), 239.101(a)(2)(ii), (iii), (iv), and (v),
0
b. Adding entries under subpart B for Sec. Sec.  239.101(a)(1)(iii), 
239.101(a)(8), and 239.105(c) in numerical order,
0
c. Adding an entry under subpart C for Sec.  239.201(a)(iv) in 
numerical order,
0
d. Revising the heading of subpart D,
0
e. Revising the entries under subpart D for Sec. Sec.  239.301, 
239.301(a), 239.301(c)(1) (by adding additional paragraph designations 
for (d)(1), (e)(2), and (f)(1)) and 239.301(c)(2) (by adding additional 
paragraph designations for (d)(2), (e)(3), and (f)(2)).
0
f. Adding entries under subpart D for Sec. Sec.  239.301(a)(1), 
239.301(a)(1)(vi), and 239.301(e)(1) in numerical order,
0
g. Revising footnote 1, and
0
h. Adding footnote 2.
    The revisions and additions read as follows:

Appendix A to Part 239--Schedule of Civil Penalties \1\

------------------------------------------------------------------------
                                                              Willful
               Section \2\                   Violation       violation
------------------------------------------------------------------------
    Subpart B--Specific Requirements
239.101(a) Failure of a railroad to                7,500          11,000
 adopt a written or electronic emergency
 preparedness plan......................
    (a)(1) * * *
        (i) * * *
        (ii) Notification of outside               2,500           5,000
         emergency responders by control
         center or ERCC.................
        (iii) Failure to designate                 2,500           5,000
         employee responsible for
         maintaining current emergency
         telephone numbers for use in
         notifications..................
    (a)(2) * * *
        (i) * * *
        (ii) Initial or periodic                   2,500           5,000
         training of control center and
         ERCC personnel.................
        (iii) Completion of initial                2,500           5,000
         training of each on-board,
         control center, and ERCC
         personnel by the specified date
        (iv) Completion of initial                 2,500           5,000
         training of each newly-hired on-
         board, control center, and ERCC
         personnel by the specified date
        (v) Adequate procedures to                 2,500           5,000
         evaluate and test on-board,
         control center, and ERCC
         personnel for qualification
         under the emergency
         preparedness plan..............
 
                              * * * * * * *
    (a)(8) Failure of the plan to                  2,500           5,000
     include procedures promoting the
     safety of passengers with
     disabilities.......................
 
                              * * * * * * *
239.105 * * *
 
                              * * * * * * *
    (c) Failure to design the debrief              2,500           5,000
     and critique session to determine
     the five items specified...........
 
                              * * * * * * *
    Subpart C--Review, Approval, and
   Retention of Emergency Preparedness
                  Plans
239.201 * * *
    (a):
        (i) * * *
        (ii) * * *
        (iii) * * *
        (iv) Failure of a railroad to              1,000           2,000
         file a summary of an amendment
         to its plan....................
 
                              * * * * * * *
    Subpart D--Operational Tests and
Inspections; Records, Recordkeeping, and
         Availability of Records
239.301 Operational tests and
 inspections
    (a) Failure to periodically conduct            2,500           5,000
     operational tests and inspections
     of applicable personnel in
     accordance with program of
     operational tests and inspections..

[[Page 18151]]

 
    (a)(1) Failure to adopt a program of           5,000           7,500
     operational tests and inspections
     that meets the minimum requirements
     within 30 days of commencing rail
     operations.........................
    (a)(1)(vi) Failure to train or                 2,500           5,000
     qualify each railroad officer who
     conducts operational tests and
     inspections on aspects of the e-
     prep plan and program procedures
     relevant to the operational tests
     and inspections that the officer
     conducts...........................
 
                              * * * * * * *
    (c)(1), (d)(1), (e)(2), (f)(1): * *
     *
    (c)(2), (d)(2), (e)(3), (f)(2): * *
     *
    (e)(1) Failure to conduct six-month            4,000           7,500
     review and analysis of required
     data and make any necessary or
     appropriate adjustments to the
     program of operational tests and
     inspections........................
 
                              * * * * * * *
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $105,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 239. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


    Issued in Washington, DC, on March 25, 2014.
Melissa L. Porter,
Chief Counsel.

[FR Doc. 2014-06998 Filed 3-28-14; 8:45 am]
BILLING CODE 4910-06-P