27 June 2012
Passenger Train Emergency Preparedness
[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Proposed Rules]
[Pages 38248-38266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15746]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 239
[Docket No. FRA-2011-0062, Notice No. 1; 2130-AC33]
Passenger Train Emergency Preparedness
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA is proposing to revise its regulations for passenger train
emergency preparedness. These proposed revisions would: ensure that
railroad personnel who communicate and coordinate with first responders
during emergency situations receive initial and periodic training and
are subject to operational (efficiency) tests and inspections; clarify
that railroads must develop procedures in their emergency preparedness
plans (e-prep plans) addressing the safe evacuation of passengers with
disabilities during emergency situations; limit the need for FRA to
formally approve purely administrative changes to approved e-prep
plans; specify new operational (efficiency) testing and inspection
requirements for both operating and non-operating employees; and remove
as unnecessary the section on the preemptive effect of the regulations.
DATES: Comments: Written comments must be received by August 27, 2012.
Comments received after that date will be considered to the extent
possible without incurring additional expense or delay.
Hearing: FRA anticipates being able to resolve this rulemaking
without a public, oral hearing. However, if FRA receives a specific
request for a public, oral hearing prior to July 27, 2012, one will be
scheduled and FRA will publish a supplemental notice in the Federal
Register to inform interested parties of the date, time, and location
of any such hearing.
ADDRESSES: Comments: Comments related to Docket No. FRA-2011-0062,
Notice No. 1, may be submitted by any of the following methods:
Web site: The Federal eRulemaking Portal,
www.regulations.gov. Follow the Web site's online instructions for
submitting comments.
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington,
DC 20590.
Hand Delivery: Docket Management Facility, U.S. Department
of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the
Ground level of the West Building, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identification Number (RIN) for
this rulemaking (2130-AC33). Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or
visit the Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground
level of the West Building, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Daniel Knote, Staff Director,
Passenger Rail Division, U.S. Department of Transportation, Federal
Railroad Administration, Office of Railroad Safety, Mail Stop 25, West
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590
(telephone: 202-493-6350); or Brian Roberts, Trial Attorney, U.S.
Department of Transportation, Federal Railroad Administration, Office
of Chief Counsel, Mail Stop 10, West Building 3rd Floor,
[[Page 38249]]
1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-
6056).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Background
A. 1998 Passenger Train Emergency Preparedness Final Rule
B. 2008 Passenger Train Emergency Systems (PTES I) Final Rule
C. 2012 Passenger Train Emergency Systems (PTES II) NPRM
D. The Need for Revisions to Passenger Train Emergency
Preparedness Regulations
E. RSAC Overview
F. Passenger Safety Working Group
G. General Passenger Safety Task Force
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act
I. Executive Summary
FRA is issuing this NPRM to revise FRA's passenger train emergency
preparedness regulations. This NPRM is intended to clarify certain
requirements and address issues that have arisen since the regulations
were issued in May 1998. This NPRM is based on language developed by
the General Passenger Safety Task Force (Task Force), a subgroup of the
Railroad Safety Advisory Committee (RSAC), to resolve four main issues
involving the regulations. The Task Force developed recommendations
principally to: (1) Ensure that railroad personnel who communicate and
coordinate with first responders during emergency situations receive
initial and periodic training and are subject to operational
(efficiency) tests and inspections under part 239; (2) clarify that
railroads must develop procedures in their e-prep plans addressing the
safe evacuation of passengers with disabilities during an emergency
situation; (3) limit the need for FRA to formally approve purely
administrative changes to approved e-prep plans; and (4) specify new
operational (efficiency) testing and inspection requirements for both
operating and non-operating employees for railroads covered by part
239. The recommendations developed by the Task Force were approved by
the full RSAC, and they form the basis of this NPRM.
Among the NPRM's main proposals, the rule would:
Clarify the types of railroad personnel who are required
to be trained or be subjected to operational (efficiency) testing and
inspections under part 239. This would include railroad personnel who
directly coordinate with emergency responders;
Clarify that operational (efficiency) testing under part
239 can be conducted under and considered part of the railroad's
efficiency testing program under 49 CFR part 217;
Allow purely administrative changes to railroad e-prep
plans to be excluded from the formal review and approval process
required for more substantive amendments to e-prep plans under part
239;
Clarify that railroads must include procedures in their e-
prep plans addressing the safe evacuation of persons with disabilities
during emergency situations as well as full-scale simulations of
emergency situations; and
Remove as unnecessary the section on the preemptive effect
of the regulations.
In analyzing the economic impacts of this proposed rule, FRA found
that proposed regulatory changes would enhance the emergency planning
process currently in place in part 239. FRA has quantified the costs
associated with this NPRM. Any additional costs associated with
amending part 239 would be mostly related to the inclusion of
additional personnel in the testing and training programs required by
part 239. Railroads would see reduced burdens in the filing and
approval process of e-prep plans with non-substantive changes. The
industry, however, would be subject to additional burden from minor new
requirements for the submission of e-prep plans to make the review and
approval of e-prep plans more efficient. Total costs over the next 10
years are estimated to be $1,049,308 (or present value of $734,922 when
discounted at 7 percent).
FRA has analyzed the benefits associated with this rule. Benefits
would accrue from the increased likelihood that the passenger railroads
would handle external communications more efficiently, expediting the
arrival of emergency responders to the accident scene, and from the
ability of the railroad personnel to minimize health and safety risks
through improved internal and external communications. FRA utilized a
break-even analysis to quantify the minimum safety benefits necessary
for the proposed rule to be cost-effective, considering the estimated
quantified costs. The break-even point was found to be a reduction in
severity of 3.84 injuries from Abbreviated Injury Scale (AIS) level 2
to AIS level 1. Safety benefits are estimated to total $1,091,200 when
four injuries have their severity mitigated from AIS 2 to AIS 1. Total
discounted benefits are estimated to be $735,757 (PV 7 percent). The
benefits for this proposed rule would exceed the estimated costs when
four injuries are prevented from increasing in severity from an AIS 1
to an AIS 2. FRA believes the proposed changes in this rulemaking will
more than exceed the break-even estimate.
II. Background
A. 1998 Passenger Train Emergency Preparedness Final Rule
On May 4, 1998, FRA published a final rule on passenger train
emergency preparedness that was codified at 49 CFR part 239. See 63 FR
24629 (May 4, 1998). The rule addresses passenger train emergencies of
various kinds, including security situations, and sets minimum Federal
safety standards for the preparation, adoption, and implementation of
e-prep plans by railroads connected with the operation of passenger
trains. The existing rule requires e-prep plans to include elements
such as communication, employee training and qualification, joint
operations, tunnel safety, liaison with emergency responders, on-board
emergency equipment, and passenger safety information. Under the
requirements of the rule, each affected railroad is required to
instruct its employees on the applicable provisions of its plan. In
addition, the plan adopted by each railroad is subject to formal review
and approval by FRA. The rule also requires each railroad operating
passenger train service to conduct emergency simulations to determine
its capability to execute the e-prep plan under the variety of
emergency scenarios that could reasonably be expected to occur.
In promulgating the rule, FRA also established specific
requirements for passenger train emergency systems. Among these are
requirements that all emergency window exits and windows intended for
rescue access by emergency responders be marked accordingly and that
instructions be provided for their use. In addition, FRA established
requirements that all door exits intended for egress be lighted or
marked, all door exits intended for rescue access by emergency
responders be marked, and that instructions be provided for their use.
[[Page 38250]]
B. 2008 Passenger Train Emergency Systems (PTES I) Final Rule
In 2008, FRA revisited requirements for emergency systems on
passenger trains by enhancing existing requirements for emergency
window exits and establishing new requirements for rescue access
windows used by emergency responders to evacuate passengers. See 73 FR
6369 (February 1, 2008). While this final rule did not make any changes
to the passenger train emergency preparedness regulations, the rule
expanded existing requirements that were previously only applicable to
passenger trains operating at speeds in excess of 125 mph but not
exceeding 150 mph (Tier II passenger trains) to passenger trains
operating at speeds not exceeding 125 mph (Tier I passenger trains),
see Sec. 238.5. Specifically, Tier I passenger trains were required to
be equipped with public address and intercom systems for emergency
communication, as well as provide emergency roof access for use by
emergency responders. FRA applied certain requirements to both existing
and new passenger equipment, while other requirements applied only to
new passenger equipment.
C. 2012 Passenger Train Emergency Systems (PTES II) NPRM
On January 3, 2012, FRA published an NPRM proposing to enhance
existing requirements as well as create new requirements for passenger
train emergency systems. See 77 FR 154 (January 3, 2012). The NPRM
proposes to add emergency passage requirements for interior vestibule
doors as well as enhance emergency egress and rescue access signage
requirements. The NPRM also proposes requirements for low-location
emergency exit path markings, the creation of minimum emergency
lighting standards for existing passenger cars, and enhancements to
existing requirements for the survivability of emergency lighting
systems in new passenger cars.
Additionally, the NPRM proposes changes to FRA's passenger train
emergency preparedness regulations in part 239. These changes include
clarifying existing requirements for participation in debriefing and
critique sessions following both passenger train emergency situations
and full-scale simulations. Under the current regulation, a debriefing
and critique session is required after each passenger train emergency
situation or full-scale simulation to determine the effectiveness of
the railroad's e-prep plan. See Sec. 239.105. The railroad is then
required to improve or amend its plan, or both, in accordance with the
information gathered from the session. Language proposed in the PTES II
NPRM clarifies that, to the extent practicable, all on-board personnel,
control center personnel, and any other employee involved in the
emergency situation or full-scale simulation shall participate in the
debriefing and critique session. The proposed rule would also clarify
that employees be provided flexibility to participate in the debrief
and critique sessions through a variety of different methods.
D. The Need for Revisions to Passenger Train Emergency Preparedness
Regulations
Among FRA's reasons for initiating this rulemaking, FRA learned
that there was confusion regarding certain requirements within FRA's
passenger train emergency preparedness regulations. For example, FRA
learned that some passenger railroads were confused as to which types
of railroad personnel were required to be trained or be subjected to
operational (efficiency) testing and inspections under part 239. These
railroads were unclear whether part 239 required certain railroad
personnel who directly coordinate with emergency responders and other
outside organizations during emergency situations to be trained or be
subjected to operational (efficiency) testing and inspections. As a
result, FRA believes that it is necessary to clarify the regulatory
language in part 239 to ensure that railroad personnel who directly
coordinate with emergency responders actually receive the proper
training and are subject to operational (efficiency) testing and
inspections. FRA also learned that many railroads were unclear whether
operational (efficiency) testing under part 239 could be considered for
purposes of the railroad's efficiency testing program required under 49
CFR part 217.
In addition, as a result of FRA's experience in reviewing and
approving passenger railroads' e-prep plans that are updated
periodically, FRA realized that a number of the changes were purely
administrative in nature. While part 239 currently subjects all changes
to an e-prep plan to a formal review and approval process, FRA believes
that such purely administrative changes should be excluded from the
process so that the agency can focus its resources on more substantive
matters.
Finally, FRA believed it was necessary to clarify part 239 to
address the requirements of Executive Order 13347. 69 FR 44573 (July
26, 2004). Executive Order 13347 requires, among other things, that
Federal agencies encourage State, local, and tribal governments,
private organizations, and individuals to consider in their emergency
preparedness planning the unique needs of individuals with disabilities
whom they serve. While under part 239 the unique needs of passengers
with disabilities must already be considered in the railroads' e-prep
plans, the NPRM would clarify the railroads' responsibilities.
E. RSAC Overview
In March 1996, FRA established RSAC as a forum for collaborative
rulemaking and program development. RSAC includes representatives from
all of the agency's major stakeholder groups, including railroads,
labor organizations, suppliers and manufacturers, and other interested
parties. A list of member groups follows:
American Association of Private Railroad Car Owners
(AAPRCO);
American Association of State Highway and Transportation
Officials (AASHTO);
American Chemistry Council;
American Petroleum Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association
(ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums;
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employees Division
(BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA);*
Fertilizer Institute;
High Speed Ground Transportation Association;
Institute of Makers of Explosives;
International Association of Machinists and Aerospace
Workers;
International Brotherhood of Electrical Workers;
Labor Council for Latin American Advancement;*
League of Railway Industry Women;*
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association
(NRCMA);
[[Page 38251]]
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB);*
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association, Inc.;
Transport Canada;*
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC
(TCIU/BRC);
Transportation Security Administration (TSA);* and
United Transportation Union (UTU).
*Indicates associate, non-voting membership.
When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts and options on a particular aspect of a
given task. The individual task force then provides that information to
the working group for consideration. When a working group comes to
unanimous consensus on recommendations for action, the package is
presented to the full RSAC for a vote. If the proposal is accepted by a
simple majority of RSAC, the proposal is formally recommended to FRA.
FRA then determines what action to take on the recommendation. Because
FRA staff members play an active role at the working group level in
discussing the issues and options and in drafting the language of the
consensus proposal, FRA is often favorably inclined toward the RSAC
recommendation. However, FRA is in no way bound to follow the
recommendation, and the agency exercises its independent judgment on
whether the recommended rule achieves the agency's regulatory goal, is
soundly supported, and is in accordance with policy and legal
requirements. Often, FRA varies in some respects from the RSAC
recommendation in developing the actual regulatory proposal or final
rule. Any such variations would be noted and explained in the
rulemaking document issued by FRA. However, to the maximum extent
practicable, FRA utilizes RSAC to provide consensus recommendations
with respect to both proposed and final agency action. If RSAC is
unable to reach consensus on a recommendation for action, the task is
withdrawn and FRA determines the best course of action.
F. Passenger Safety Working Group
The RSAC established the Passenger Safety Working Group (Working
Group) to handle the task of reviewing passenger equipment safety needs
and programs and recommending consideration of specific actions that
could be useful in advancing the safety of rail passenger service and
develop recommendations for the full RSAC to consider. Members of the
Working Group, in addition to FRA, include the following:
AAR, including members from BNSF Railway Company (BNSF),
CSX Transportation, Inc. (CSXT), and Union Pacific Railroad Company
(UP);
AAPRCO;
AASHTO;
Amtrak;
APTA, including members from Bombardier, Inc., Herzog
Transit Services, Inc., Interfleet Technology, Inc. (Interfleet,
formerly LDK Engineering, Inc.), Long Island Rail Road (LIRR), Maryland
Transit Administration (MTA), Metro-North Commuter Railroad Company
(Metro-North), Northeast Illinois Regional Commuter Railroad
Corporation, Southern California Regional Rail Authority (Metrolink),
and Southeastern Pennsylvania Transportation Authority (SEPTA);
ASLRRA;
BLET;
BRS;
FTA;
NARP;
NTSB;
RSI;
SMWIA;
STA;
TCIU/BRC;
TSA;
TWU; and
UTU.
In 2007, the Working Group tasked the Task Force (General Passenger
Safety Task Force) to resolve four issues involving FRA's regulations
related to passenger train emergency preparedness. The issues taken up
by the Task Force were: (1) Ensure that railroad personnel who
communicate and coordinate with first responders during emergency
situations receive initial and periodic training and are subject to
operational (efficiency) tests and inspections under part 239; (2)
clarify that railroads must develop procedures in their e-prep plans
addressing the safe evacuation of passengers with disabilities during
an emergency situation; (3) limit the need for FRA to formally approve
purely administrative changes to approved e-prep plans and update FRA
headquarters' address; and (4) specify new operational (efficiency)
testing and inspection requirements for both operating and non-
operating employees for railroads covered by part 239.
While the Task Force was initially charged with updating FRA
headquarters' address as it appeared in various regulations found in
part 239, FRA has already amended its regulations to update the address
of the physical headquarters of FRA and the U.S. Department of
Transportation in Washington, DC. See 74 FR 25169 (May 27, 2009).
G. General Passenger Safety Task Force
Members of the Task Force include representatives from various
organizations that are part of the larger Working Group. Members of the
Task Force, in addition to FRA, include the following:
AAR, including members from BNSF, CSXT, Norfolk Southern
Railway Co., and UP;
AASHTO;
Amtrak;
APTA, including members from Alaska Railroad Corporation,
Peninsula Corridor Joint Powers Board (Caltrain), LIRR, Massachusetts
Bay Commuter Railroad Company, Metro-North, MTA, New Jersey Transit
Corporation, New Mexico Rail Runner Express, Port Authority Trans-
Hudson, SEPTA, Metrolink, and Utah Transit Authority;
ASLRRA;
ATDA;
BLET;
FTA;
NARP;
NRCMA;
NTSB;
Transport Canada; and
UTU.
The full Task Force met together on the following dates and in the
following locations to discuss the four e-prep-related issues charged
to the Task Force:
July 18-19, 2007, in Chicago, IL;
December 12-13, 2007, in Ft. Lauderdale, FL;
April 23-24, 2008, in San Diego, CA; and
December 3, 2008, in Cambridge, MA.
Staff from the Volpe Center attended all of the meetings and
contributed to the technical discussions through their comments and
presentations. To aid the Task Force in its delegated task, FRA's
Office of Chief Counsel drafted regulatory text for discussion
purposes. Task Force members made changes to
[[Page 38252]]
this draft text. Minutes of each of these Task Force meetings are part
of the docket in this proceeding and are available for public
inspection. The Task Force reached consensus on all four assigned tasks
and adopted the draft text created from its meetings as a
recommendation to the Working Group on December 4, 2008.
FRA's Office of Chief Counsel revised the Task Force's
recommendation to conform to technical drafting guidelines and to
clarify the intent of the recommendation. On June 8, 2009, the Task
Force presented both its initial consensus language as well as the
consensus language revised by FRA's Office of Chief Counsel to the
Working Group. The Working Group approved the Task Force's initial and
revised consensus language at its June 8, 2009 meeting in Washington,
DC. The consensus language was then presented before the full RSAC on
June 25, 2009, where it was approved by unanimous vote. Thus, the
Working Group's recommendation was adopted by the full RSAC as a
recommendation to FRA.
While RSAC's recommendation has provided a strong basis for this
proposed rule, FRA has varied from the recommendation principally in
one substantive way: FRA has declined to adopt the RSAC's
recommendation to add language to Sec. 239.101(a)(2)(ii) that would
require control center and ERCC personnel to receive initial and
periodic training only on those portions of the railroad's e-prep plan
that relate to their specific duties under the plan. FRA explains this
decision, below. FRA has also made minor changes for purposes of
clarity and formatting in the Federal Register, but these changes are
not intended to affect the RSAC's consensus recommendation.
III. Section-by-Section Analysis
Subpart A--General
Section 239.5 Preemptive Effect
FRA is proposing to remove this section on the preemptive effect of
the regulations. FRA believes that this section is unnecessary because
it is duplicative of statutory law at 49 U.S.C. 20106 and case law,
which sufficiently address the preemptive scope of FRA's regulations.
Section 239.7 Definitions
FRA is proposing that this section be amended to add a definition
for the new term ``emergency response communications center'' (ERCC) to
mean a central location designated by a railroad with responsibility
for establishing, coordinating, or maintaining communication with
emergency responders, representatives of adjacent modes of
transportation, and appropriate railroad officials during a passenger
train emergency. The ERCC may be part of the railroad's ``control
center.'' The RSAC recommended that such a definition be added to this
section, and FRA agrees with the RSAC's recommendation for the reasons
stated below.
Currently, the requirements of part 239 do not specifically apply
to ERCC personnel but rather to personnel in a control center, i.e., a
central location on a railroad with responsibility for directing the
safe movement of trains. The individuals working in these train
dispatch centers are subject to emergency preparedness plan training
and operational (efficiency) tests and inspections. See 49 CFR 239.101.
However, only requiring control center personnel to receive training on
a railroad's emergency preparedness plan may be problematic because in
many railroads' operational structures train dispatchers only notify
internal railroad officials about an emergency situation and provide
block protection for the affected train(s) or equipment involved in the
incident. While an ERCC can be part of a railroad's dispatch center,
most railroads maintain a separate center within their organizational
structure that establishes and maintains communications with emergency
first responders, adjacent modes of transportation, and appropriate
railroad officials. In addition, ERCCs assist in coordinating the
actual emergency response with first responders.
This NPRM proposes to define ERCCs, which provide vital services
during an emergency situation, and include the definition in various
provisions of part 239 that address training, testing, and inspection
requirements. By including this definition in the existing regulation,
FRA can expressly require that ERCC personnel, who directly interact
with emergency first responders, receive the proper training, testing,
and oversight under the regulation to appropriately prepare for and
respond to an emergency situation.
The definition of ERCC recommended by the RSAC and that FRA is
proposing in this rulemaking provides the railroads with maximum
flexibility in designating what centers or groups of individuals within
the railroad's organizational structure qualify as ERCCs and are
responsible for communicating with the emergency first responders and
other outside entities during an emergency situation on the railroad.
With this flexibility, each affected railroad can ensure that the
correct center or group of individuals within the railroad's
organizational structure receives training on the railroad's e-prep
plan, and that the center or group of individuals is subject to
operational (efficiency) tests and inspections regardless of how the
center or group of individuals is organized within the railroad.
Subpart B--Specific Requirements
Section 239.101 Emergency Preparedness Plan
Each railroad subject to the regulation is required to establish an
e-prep plan under this section that is designed to safely manage
emergencies and minimize subsequent trauma and injury to passengers and
on-board personnel. FRA is proposing to revise this section in several
different ways. Additional language is being proposed to the following
paragraphs of this section: paragraphs (a)(1)(ii), and (a)(2)(ii)
through (v). Conversely, this NPRM proposes to remove language from
paragraph (a)(2)(ii). Finally, FRA is proposing to create an entire new
paragraph (a)(8). Each proposed change to this section is addressed
below by paragraph.
Paragraph (a)(1)(ii). As currently written, paragraph (a)(1)
requires railroad control center or dispatch personnel to notify
outside emergency responders, adjacent rail modes of transportation,
and appropriate railroad officials when a passenger train emergency has
occurred. However, a number of railroads have found it inefficient to
use the control center or railroad dispatcher to perform these duties
during an emergency situation because the personnel are likely
providing block protection for the incident as well as performing their
usual dispatching duties for other parts of the railroad unaffected by
the emergency event. Instead, many railroads currently maintain in
their organizational structure a separate center or desk within, or
even completely separate from, the railroad dispatch center that
establishes and maintains communications with internal and external
organizations during a railroad emergency. See the discussion in Sec.
239.7, above.
Consequently, FRA is proposing to add specific language to this
paragraph that would provide for ERCCs to notify outside emergency
responders, adjacent rail modes of transportation, and appropriate
railroad officials, when an emergency occurs under the passenger
railroad's e-prep plan. Without this proposed language, the regulation
would continue to place these responsibilities specifically on control
[[Page 38253]]
center personnel working in the railroad dispatch office. Instead, the
regulation would now clearly recognize that railroads have the
flexibility to decide which part of railroad operations should handle
these tasks during an emergency situation.
Paragraph (a)(2)(ii). Similar to the proposed change to paragraph
(a)(1)(ii), additional language is being proposed to paragraph
(a)(2)(ii) that would require ERCC personnel to receive initial and
periodic training on appropriate courses of action for each potential
emergency situation. Under this paragraph, initial and periodic
training is already required for control center personnel. FRA also
proposes adding language to this paragraph clarifying that control
center or ERCC personnel can be employees of the railroad, as well as
contractors, subcontractors, or employees of a contractor or
subcontractor to the railroad. FRA notes that contractors,
subcontractors, and employees of a contactor or subcontractor to the
railroad are already subject to the requirements of part 239 when
performing functions under this part per the requirements of Sec.
239.9. Nonetheless, for clarity FRA is revising the rule text in
paragraph (a)(2)(ii) and the text in various other paragraphs of this
part to make clear that contractors, subcontractors, and employees of a
contractor or subcontractor are indeed covered under the requirements
of this part.
FRA notes that RSAC reached consensus on adding language that would
require control center and ERCC personnel to receive initial and
periodic training only on those portions of the railroad's e-prep plan
that relate to their specific duties under the plan. However, FRA
believes that adding this language could create safety concerns and
therefore declines to propose adding such language to this paragraph in
this NPRM. Specifically, FRA is concerned that if individuals receive
only initial and periodic training on the very specific parts of the
railroad's e-prep plan they are required to perform during an emergency
situation, a railroad's entire emergency response could be hindered if
specific individuals happen to be absent during an actual emergency
situation. For example, if a specific control center or ERCC employee
is required under the railroad's e-prep plan to notify internal
railroad personnel during an emergency situation that an emergency
situation on the railroad has occurred, and that employee is absent or
incapacitated during an actual emergency, then the railroad's emergency
response may be hindered. By ensuring that control center and ERCC
personnel receive broader initial and periodic training on appropriate
courses of action on potential emergency situations beyond the
individual's specific duties under the railroad's e-prep plan, these
individuals will have a more holistic view of the railroad's emergency
response and therefore be better prepared to respond to an emergency
situation regardless of the specific circumstances.
FRA believes that training control center and ERCC personnel on the
railroad's entire e-prep plan, not just the specific portions of the
plan that relate to their specific duties, will not add any additional
cost to the railroads because the railroads are already providing this
broader level of training to their employees. Many railroads provide
this holistic training on the railroad's e-prep plan through an
informational video, which provides useful information to the employees
on all levels of the railroad's emergency response.
FRA also proposes to amend paragraphs (a)(2)(ii)(A) through (D). In
paragraph (a)(2)(ii)(A), FRA proposes to remove the word ``dispatch''
before ``territory familiarization.'' The Task Force recommended that
the word ``dispatch'' be removed from this subsection so that control
center and ERCC personnel who are not railroad dispatchers would not be
required to be as familiar with a territory as dispatchers are required
to be under current railroad operating rules. For example, to conduct
their duties efficiently and safely, railroad dispatchers are required
to memorize the physical characteristics of the railroad territory over
which they control train movements. While this is necessary for a
railroad dispatcher, the Task Force believed, and FRA agrees, that this
level of familiarity with railroad territory is not necessary for
individuals working in a control center or ERCC who are not railroad
dispatchers.
Therefore, FRA proposes that the word ``dispatch'' be struck from
paragraph (a)(2)(ii)(A). Individuals working in control centers or
ERCCs who are not also railroad dispatchers would not be required to
have complete dispatch territory familiarization in their capacity to
assist in emergency situations. If the proposed language is adopted,
railroads would not have to spend resources training all control center
and ERCC personnel who are not railroad dispatchers to be as familiar
with the railroad territory in question. Instead, for the purposes of
this paragraph, territory familiarization would focus on, but not be
limited to: access points for emergency responders along the railroad's
right-of-way; special circumstances (e.g., tunnels); parallel
operations; and other operating conditions (e.g., elevated structures,
bridges, and electrified territory) including areas along the
railroad's right-of-way that are remote and known to present challenges
for emergency personnel responding to a passenger train emergency.
To complement the proposed language in paragraph (a)(2)(ii)(A),
paragraph (a)(2)(ii)(B) would require initial and periodic training for
control center and ERCC personnel on their ability to access and
retrieve information that would aid emergency personnel in responding
to an emergency situation. (Current paragraph (a)(2)(ii)(B) would be
redesignated as proposed paragraph (a)(2)(ii)(C), below). Under the
proposed regulation, control center and ERCC personnel would be
required to receive sufficient training to be able to retrieve
information to assist emergency personnel in their emergency response.
For example, under a railroad's e-prep plan, a railroad employee
designated as part of an ERCC might be required to be trained on how to
electronically retrieve a map of railroad property, read it properly,
and identify and describe important points of access to emergency
responders.
Language is also proposed to be added to paragraph (a)(2)(ii)(C)
(redesignated from (a)(2)(ii)(B)). This new proposed language would
require control center and ERCC personnel to receive initial and
periodic training on the railroad's e-prep plan, including what
protocols govern internal communications between these two groups when
an actual emergency situation occurs. The language ``as applicable
under the plan,'' would also be added to the regulatory text to
emphasize that due to the variety of possible organizational designs on
how railroads handle emergency responses, it is ultimately each
individual railroad's decision on what protocols will be followed to
govern internal communication between control center and ERCC
personnel.
Finally, a new paragraph (a)(2)(ii)(D) is proposed. This new
paragraph reflects the Task Force's recommendation that initial and
periodic e-prep plan training should include the protocols for
establishing and maintaining external communications between the
railroad's control center or ERCC, or both, and emergency responders.
The Task Force recommended and FRA agrees that adding this requirement
will ensure that control center and ERCC personnel receive initial and
periodic training on what protocols need to be followed to
[[Page 38254]]
establish and maintain communications with external organizations
assisting in the emergency response. The Task Force and FRA believe
that it is just as important for control center and ERCC personnel to
learn the protocols for establishing and maintaining communications
with external organizations as for the protocols governing internal
communications between centers being proposed in paragraph
(a)(2)(ii)(C).
FRA also realizes that if these proposed changes to part 239's
emergency preparedness plan requirements are adopted, then railroads
may have to amend their e-prep plans in order to be in compliance with
the new requirements. Therefore, FRA intends to provide railroads
sufficient time to have their amended e-prep plans submitted to FRA for
review after the final rule making these changes is issued. FRA is
considering lengthening the effective date of the final rule to do so,
and invites comment on this issue.
Paragraph (a)(2)(iii). FRA is proposing to add language to
paragraph (a)(2)(iii) that would require ERCC personnel to be included
in the initial training after the e-prep plan is approved under Sec.
239.201(b)(1). It is important that ERCC personnel be included in this
training because, depending on the organizational structure of the
railroad, the actions of ERCC personnel during an emergency response
situation may be more pivotal to the successful implementation of the
plan than the actions of control center personnel. Language is also
proposed to be added to paragraph (a)(2)(iii) so that not only would
control center and ERCC personnel who are employed by the railroad be
covered by the regulation, but also control center and ERCC personnel
who are railroad contractors and subcontractors as well as employees of
these contractors and subcontractors. The proposed heading of this
paragraph reflects this change as well.
Paragraph (a)(2)(iv). Similar to the proposed language in paragraph
(a)(2)(iii), this NPRM proposes to add language to paragraph (a)(2)(iv)
to ensure that ERCC personnel hired after the e-prep plan is approved
by FRA receive initial training within 90 days after the individual's
initial date of service with the railroad. Currently, this paragraph
expressly requires that only on-board and control center personnel
receive initial training within 90 days after their initial date of
service with the railroad. Depending on how a railroad has chosen to
organize its response to a specific emergency situation, failure to
train a new ERCC employee within 90 days of starting his or her service
on the railroad could create inefficiencies in the railroad's response
to an emergency situation. Therefore, FRA proposes this modification to
ensure that the railroads do not delay in providing training to new
ERCC personnel.
In addition, FRA is also proposing to add language to paragraph
(a)(2)(iv) clarifying that not only are railroad employees covered by
the requirements of this paragraph, but also on-board, control center,
and ERCC contractors, subcontractors, and employees of contractors or
subcontractors. A change to the heading of paragraph (a)(2)(iv) is also
being proposed to reflect the proposed modification of the regulatory
text.
Paragraph (a)(2)(v). FRA is proposing to add language to this
paragraph to clarify that railroads need to develop testing procedures
not only for employees, but also for contractors and subcontractors, as
well as employees of contractors and subcontractors who are being
evaluated for qualification under the railroad's e-prep plan. The
current regulatory text expressly requires railroads to develop testing
procedures for railroad employees only. This proposed language, if
adopted, would clarify that employees, as well as contractors,
subcontractors, and employees of contractors and subcontractors, are
required to be evaluated for qualification under the railroad's e-prep
plan using appropriate testing procedures. Language is also being
proposed to the heading of this paragraph to reflect the proposed
change and to clarify that railroads need to develop testing procedures
for ERCC personnel as well as on-board and control center personnel.
Finally, paragraph (a)(2)(v)(A) is proposed to be modified to
require that testing procedures developed by the railroads accurately
measure an individual's, rather than an individual employee's,
knowledge of his or her responsibilities under the railroad's e-prep
plan. Currently, paragraph (a)(2)(v)(A) expressly applies only to
railroad employees, and this modification would ensure that railroad
contractors and subcontractor are covered by the provision as well.
Paragraph (a)(8). Executive Order 13347 (``Individuals with
Disabilities in Emergency Preparedness'') requires the Federal
government to appropriately support safety and security for individuals
with disabilities in all types of emergency situations. 69 FR 44573
(July 26, 2004). Currently, each railroad subject to part 239 is
required to provide for the safety of each of its passengers in its
emergency preparedness planning. Nonetheless, FRA is proposing a new
paragraph (a)(8) that would clarify that these railroads must include
procedures in their e-prep plans addressing the safe evacuation of
persons with disabilities during emergency situations (and full-scale
simulations of them). FRA expects the railroads to address the
responsibilities of on-board personnel to carry out these specific
procedures. For example, if a train has a failure or is involved in an
incident and an evacuation is deemed necessary, a crewmember in the
body of the train would need to search for and identify those
passengers who cannot reasonably be evacuated by stairs or steps.
This new paragraph would not require a railroad to maintain any
list of train passengers, whether or not they have a disability.
However, the railroad must have in place procedures so that the
locations of persons with disabilities on board its trains are
generally known to the train crew, and that such persons can be
evacuated under all potential conditions that require passenger
evacuation, including those conditions identified under the Special
Circumstances portion of the railroad's e-prep plan, when applicable,
as required by paragraph (a)(4) of this section. In this regard, the
railroad must address those situations requiring immediate passenger
evacuation with or without the assistance of emergency response
personnel or railroad personnel not on board its trains. At the same
time, the railroad must have a process for notifying emergency response
personnel in an emergency situation about the presence and general
location of persons with disabilities when the railroad has knowledge
that such passengers are on board a train.
Section 239.105 Debriefing and Critique
This section requires railroads operating passenger train service
to conduct debriefing and critique sessions after each passenger train
emergency situation or full-scale emergency simulation to determine the
effectiveness of the railroad's e-prep plan. FRA is proposing to add
language to paragraph (c)(3) of this section so that the debriefing and
critique session would be designed to determine whether the ERCC, as
well as the control center, promptly initiated the required
notifications. In addition, FRA makes clear that the plan's
effectiveness in the evacuation of passengers with disabilities must be
addressed during debrief and critique sessions.
[[Page 38255]]
Subpart C--Review, Approval, and Retention of Emergency Preparedness
Plans
Section 239.201 Emergency Preparedness Plan; Filing and Approval
Section 239.201 specifies the process for review and approval by
FRA of each passenger railroad's e-prep plan. FRA is proposing to
divide paragraph (a) of this section into paragraphs (a)(1) and (a)(2).
As proposed, paragraph (a)(1) contains the regulatory requirements on
how to file an e-prep plan, while proposed paragraph (a)(2) contains
the requirements on how to file an amendment to an FRA-approved plan.
Proposed paragraph (a)(2) is then further subdivided. Proposed
paragraph (a)(2)(i) describes what procedures a railroad must follow
when filing amendments to its e-prep plan with FRA. Conversely,
proposed paragraph (a)(2)(ii) lists the limited circumstances in which
a railroad could enact an amendment to its approved e-prep plan without
first getting FRA approval of the amendment. Finally, FRA is also
proposing to add language to paragraph (b)(3) to clarify that FRA will
not formally review the limited number of amendments that could be
enacted without prior FRA approval as described in proposed paragraph
(a)(2)(ii).
Specifically, FRA proposes a few small modifications to paragraph
(a)(1). First, FRA is proposing to update the title of the FRA official
who receives a railroad's e-prep plan, from Associate Administrator for
Safety to Associate Administrator for Railroad Safety/Chief Safety
Officer. Additionally, since the time part 239 was enacted, FRA's
Office of Safety officially became the Office of Railroad Safety.
Therefore, FRA proposes to update the language in proposed paragraph
(a)(1) to reflect the name change of this FRA office. The RSAC also
recommended modification of the time period new-start passenger
railroads have to submit their e-prep plans to FRA before commencing
passenger service. Currently, e-prep plans must be submitted by these
passenger railroads no less than 45 days prior to commencing passenger
operations. Consistent with this recommendation, FRA proposes that such
railroads must submit their plans to FRA no less than 60 days prior to
commencing passenger operations. This proposed change would provide FRA
safety officials more time to review a railroad's e-prep plan, identify
any safety concerns, and notify the railroad of any such concerns so
that changes to the plan could be made before actual passenger
operations commence. FRA notes that the original filing deadline for
passenger railroads in operation around the time part 239 went into
effect was not more than 180 days after May 4, 1998. For those
passenger railroads then in existence and for those passenger railroads
that have started-up service since and have already filed and received
approval on their plans, the rule would make clear that those plans are
timely filed.
FRA also proposes to redesignate as paragraph (a)(2)(i) the
regulatory requirement that all amendments to approved e-prep plans be
filed with FRA 60 days prior to the effective date of the amendment.
One exception to this requirement would be the limited number of e-prep
plan amendments that can be enacted without FRA approval, listed in
proposed paragraph (a)(2)(ii). These limited types of amendments to
railroad e-prep plans would continue to be required to be filed with
FRA, but they would become immediately effective and would not require
FRA formal approval.
However, under proposed paragraph (a)(2)(i), e-prep plan amendments
submitted to FRA that do not qualify for the exception in proposed
paragraph (a)(2)(ii) must be submitted with a written summary of what
the proposed amendment would change in the approved e-prep plan and, as
applicable, a training plan describing how and when current and new
employees and contractors would be trained on any amendment. For
example, if the amendment would affect how current and new railroad
employees and contractors assist emergency responders, then under this
paragraph the railroad must also submit a training plan with the
amendment stating how and when these employees and contractors would be
trained on these changes to the railroad's e-prep plan. As another
example, if the railroad wants to identify new access roads to railroad
property in its e-prep plan, then a training plan for employees and
contractors should be included with the proposed amendment. Having the
railroads include a summary with their proposed e-prep plan amendments
that are not exempted by proposed paragraph (a)(2)(ii) is necessary
because currently railroads have been submitting their entire approved
e-prep plans with the amendment changes already incorporated in the
plan without identifying to FRA what changes the railroad is
specifically seeking to make to its approved e-prep plan. This has
delayed FRA's ability to review the railroad's proposed amendment and
respond to the railroad within 45 days as specified in paragraph
(b)(3)(i). Requiring the railroads to include such summaries will help
FRA efficiently review the proposed amendments and respond back to the
railroad normally within 45 days; nevertheless, some reviews may take
longer.
As previously stated, FRA is proposing a new paragraph (a)(2)(ii)
under which qualifying amendments would not be subject to FRA's formal
approval process as outlined in paragraph (b)(3)(i). Amendments that
add or amend the name, title, address, or telephone number of the e-
prep plan's primary contact person would qualify under paragraph
(a)(2)(ii). Railroads filing amendments under this paragraph would be
permitted to enact the amendment changes upon filing the amendment with
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer.
Including a summary of the proposed changes caused by the amendment
would not be required. All other e-prep plan amendments not covered by
paragraph (a)(2)(ii) would be required to be filed in accordance with
paragraph (a)(2)(i) and be subject to the formal approval process
proposed in paragraph (b)(3)(i). FRA believes that paragraph (a)(2)(ii)
is needed in order to limit the need for FRA to formally approve purely
administrative changes to previously approved railroad e-prep plans.
This new paragraph will allow these specific types of amendments to
become effective immediately upon filing with FRA and thereby help to
streamline the approval process.
Additional language is also being proposed to paragraph (b)(3) in
order to clarify that the limited types of amendments containing only
administrative changes described in proposed paragraph (a)(2)(ii) would
be exempt from the formal FRA review that is described in this
paragraph.
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