window, or other similar means of egress. To date, no such arrangement
has been placed in a Tier II passenger car, on the basis that the doors
pose a negligible probability of failure following a collision or
derailment. As proposed, Sec.  238.112 would require that such features
be installed in new passenger cars without providing for a showing as
to how the doors perform in the event of a collision or derailment.
Section 238.441 Emergency Roof Access
    This rulemaking proposes to amend existing paragraphs (a) and (c)
to include the APTA emergency signage standard requirements for
retroreflective material and instruction, proposed in this rulemaking
in Sec.  238.125. Existing paragraphs (a) and (c) contain requirements
for marking, and providing instructions for, emergency roof access
locations in passenger cars ordered prior to April 1, 2009, and placed
in service prior to April 1, 2011, and all power cars. Each emergency
roof access location is required to be conspicuously marked with
retroreflective material of contrasting color, and legible and
understandable instructions must be provided near the emergency roof
access location. The retroreflective material is intended to enable
emergency responders to quickly identify the access location(s) by
shining a light on the roof, and the instructions are intended to
facilitate the proper use of the emergency roof access feature(s) by
emergency responders. To enhance the potential use of the required
retroreflective material, markings, and instructions for emergency roof
access, this rulemaking would apply the requirements of Sec.  238.125,
which would incorporate by reference the APTA standard for
retroreflective material. APTA and its member railroads have invested
considerable time and effort in developing industry standards that
address retroreflective material for passenger cars. FRA has reviewed
the industry standards it proposes to incorporate in this rule and has
determined that the standards specify the proper retroreflective
material for passenger cars. FRA believes that compliance with the APTA
standard identified in this section will help ensure that
retroreflective material and instructions for emergency roof exits will
enable emergency responders to gain access to occupants in passenger
cars.
Appendix A to Part 238--Schedule of Civil Penalties
    Appendix A to part 238 contains a schedule of civil penalties for
use in connection with this part. FRA intends to revise the schedule of
civil penalties in issuing the final rule to reflect revisions made to
part 238. Because such penalty schedules are statements of agency
policy, notice and comment are not required prior to their issuance.
See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to
submit suggestions to FRA describing the types of actions or omissions
for each proposed regulatory section that would subject a person to the
assessment of a civil penalty. Commenters are also invited to recommend
what penalties may be appropriate, based upon the relative seriousness
of each type of violation.

B. Proposed Amendments to Part 239, Subpart B

Section 239.105 Debriefing and Critique
    This section would clarify the existing debriefing and critique
requirements by expressly requiring train crew participation in debrief
and critique sessions. Currently, 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 emergency
preparedness plan, and the railroad is required to improve or amend its
plan, or both, as appropriate, in accordance with the information
developed. The debriefing and critique is intended to be an opportunity
to evaluate the effectiveness of the emergency preparedness plan.
Employees directly involved in the emergency situation or full-scale
simulation, have valuable first-hand knowledge of the event.
Participation by these employees in the debriefing and critique is
necessary to adequately evaluate the effectiveness of the emergency
preparedness plan. FRA

proposes to clarify the language of the existing requirement to reflect
this necessary participation. As such, the proposed language would
specify that to the extent practicable, all on-board personnel, control
center personnel, and any other employees involved in the emergency
situation or full-scale simulation shall participate in the session.
The section would also be clarified with respect to the flexibility for
employees to participate in the debrief and critique sessions in
person, offsite via teleconference, or in writing, by a statement
responding to question provided prior to the session, and by responding
to any follow-up questions.
Section 239.107 Emergency Exits
    FRA is proposing to remove Sec.  239.107 and move the existing
requirements that are contained in this section into proposed
Sec. Sec.  238.112 and 238.307. Existing requirements that are
contained in Sec.  239.107 and are related to doors would be moved to
proposed Sec.  238.112. Existing requirements that are contained in
Sec.  239.107 and are related to windows would be moved to proposed
Sec.  238.307. FRA believes that the consolidation of these
requirements will make the regulation more user-friendly, which will
help facilitate compliance with its requirements. FRA does not intend
to make substantive changes to the requirements contained in this
section in moving them to new sections. Of course, FRA does note that
it is proposing to amend the requirements for emergency exits as
discussed in this rule.
Appendix A to Part 239--Schedule of Civil Penalties
    Appendix A to part 239 contains a schedule of civil penalties for
use in connection with this part. FRA intends to revise the schedule of
civil penalties in issuing the final rule to reflect revisions made to
part 239. Because such penalty schedules are statements of agency
policy, notice and comment are not required prior to their issuance.
See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to
submit suggestions to FRA describing the types of actions or omissions
for each proposed regulatory section that would subject a person to the
assessment of a civil penalty. Commenters are also invited to recommend
what penalties may be appropriate, based upon the relative seriousness
of each type of violation.

VIII. Regulatory Impact and Notices

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

    This proposed rule has been evaluated in accordance with existing
policies and procedures and determined to be non-significant under both
Executive Order 12866 and 13563 and DOT policies and procedures. See 44
FR 11034; February 26, 1979. FRA has prepared and placed in the docket
a Regulatory Evaluation addressing the economic impact of this proposed
rule. As part of the regulatory evaluation, FRA has assessed
quantitative estimates of the cost streams expected to result from the
implementation of this proposed rule. For the 20-year period analyzed,
the estimated quantified cost that would be imposed on industry totals
$21.8 million with a present value (PV, 7 percent) of $13.4 million.
    FRA considered the industry costs associated with complying with
the three APTA standards, installation of removable panels or windows
in single-panel vestibule door of new passenger cars, requirements for
bi-parting vestibule doors as well as inspection, testing, and
maintenance. The range of total cost estimates depends mostly on
whether voluntary implementation of the APTA standards; SS-E-013-99,
Rev. 1 Standard for Emergency Lighting System Design for Passenger
Cars; SS-PS-004-99, Rev. 2 Standard for Low-Location Exit Path Marking;
and SS-PS-002-98, Rev. 3 Standard for Emergency Signage for Egress/
Access of Passenger Rail Equipment, in this proposed rule are
considered as a cost of the rulemaking. Many railroads have already
implemented these APTA standards in advance of this NPRM. .
    FRA believes that $13.4 million is the most appropriate estimate of
regulatory cost. For more details on the costing, please see the
Regulatory Evaluation found in the docket. The requirements that are
expected to impose the largest burdens relate to emergency lighting,
door/removable panels or windows (or bi-parting doors), and emergency
egress and rescue access marking and instructions. The table below
presents the estimated costs associated with the proposed rulemaking.

                     20-Year Cost for Proposed Rule
------------------------------------------------------------------------

------------------------------------------------------------------------
Door/Removable Panels or Windows, and Bi-Parting              $4,399,223
 Doors...............................................
Emergency Lighting...................................          2,450,213
Emergency Egress and Rescue Access Marking and                 4,730,631
 Instructions........................................
 Low-Location Emergency Exit Path Markings...........          1,377,615
Debriefing and Critique..............................                N/A
Inspection, Testing, and Recordkeeping (APTA                     405,296
 Standards)..........................................
                                                      ------------------
    Total............................................         13,362,979
------------------------------------------------------------------------
Future costs are discounted to present value using a 7 percent discount
  rate.

    As part of the Regulatory Evaluation, FRA has explained what the
likely benefits for this proposed rule would be, and provided a break-
even analysis. The proposed rulemaking is expected to improve railroad
safety by promoting the safe evacuation of passengers and crewmembers
in the event of an emergency. The primary benefits include a heightened
safety environment in egress from a passenger train after an accident.
This corresponds to a reduction of casualties and fatalities in the
aftermath of an accident or other emergency situations. FRA believes
the value of the anticipated safety benefits would justify the cost of
implementing the proposed rule.

B. Initial Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency
review of proposed and final rules to assess their impact on small
entities. An agency must prepare an initial regulatory flexibility
analysis (IRFA) unless it determine and certifies that a rule, if
promulgated, would not have a significant impact on a substantial
number of small entities. FRA has not determined whether this proposed
rule would have a significant impact on a substantial number of small
entities. Therefore, FRA is publishing this IRFA to aid the public in
commenting on the potential small business impacts of the proposed
requirements in this NPRM. FRA invites all interested parties to submit
data and information regarding the potential

economic impact on small entities that would result from adoption of
the proposals in this NPRM. FRA will consider all comments received in
the public comment process when making a final determination.
    The proposed rule would apply to commuter and intercity passenger
railroads. Based on information currently available, FRA estimates that
less than 2 percent of the total railroad installation costs associated
with implementing the proposed rule would be borne by small entities.
Based on analysis that uses generally conservative assumptions, FRA
estimates that the cost for the proposed rule will range between $21.8
million and $40.8 million for the railroad industry. There are two
passenger railroads that would be considered small for purposes of this
analysis and together they comprise less than 7 percent of the
railroads impacted directly by this proposed regulation. Both of these
railroads would have to make some investment to meet the proposed
requirements. These small railroads have much smaller fleets that the
average passenger railroad, allowing them to meet the proposed
requirements at lower overall costs. Thus, although a substantial
number of small entities in this sector would likely be impacted, the
economic impact on them would likely not be significant. This IRFA is
not intended to be a stand-alone document. In order to get a better
understanding of the total costs for the railroad industry, which forms
the basis for the estimates in this IRFA, or more cost detail on any
specific requirement, please see the Regulatory Evaluation that FRA has
placed in the docket for this rulemaking.
    In accordance with the Regulatory Flexibility Act, an IFRA must
contain:
    (1) A description of the reasons why the action by the agency is
being considered.
    (2) A succinct statement of the objectives of, and legal basis for,
the proposed rule.
    (3) A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
    (4) A description of the projected reporting, record keeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirements and the types of professional skills necessary for
preparation of the report or record.
    (5) An identification, to the extent practicable, of all relevant
federal rules that may duplicate, overlap, or conflict with the
proposed rule.
1. Reasons for Considering Agency Action
    Experience with passenger train accidents and simulations, and
technological advances in emergency systems provide the main impetus
for these proposed enhancements and additions to FRA's existing
requirements related to passenger train emergency systems.
Incorporation by references of these APTA standards into Part 238 would
extend their applicability to all commuter and intercity passenger
railroads and make them enforceable by FRA.
    As FRA was issuing comprehensive Federal standards for passenger
train safety in the late 1990s, APTA was also developing and
authorizing complementary industry standards applicable to its commuter
and intercity passenger railroad members. By design, three of these
APTA standards taken together represent an effective systems approach
to enable passengers and train crewmembers to locate, reach, and
operate emergency exits, thereby facilitating safe evacuation in an
emergency. The APTA standards address emergency lighting, signage for
emergency egress and access, and low-location exit path markings. While
the three APTA standards contain specific requirements, they allow for
flexibility in the application of those requirements. The Emergency
Preparedness Task Force was charged with reviewing the standards. After
careful review, the Task Force recommended revising the standards to
address relevant evolving technology, and incorporating them by
reference in their entirety into the Federal regulations.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
    The purpose of this rulemaking is to further the safety of
passenger train occupants through both enhancements and additions to
FRA's existing requirements for emergency systems on passenger trains.
As discussed in the Regulatory Evaluation, FRA is proposing incorporate
three APTA standards covering emergency lighting; emergency egress and
rescue access signage; and low-location emergency exit path markings
for all passenger cars. For new passenger cars, FRA is also proposing
requiring vestibule doors and other interior doors intended for passage
through a passenger car to be equipped with removable panels or windows
or bi-parting doors. The substance of this proposed regulation was
developed by the RSAC's Passenger Safety Working Group. In addition,
FRA is clarifying requirements for debriefing and critique following
emergency situations and simulations.
    In November of 1994, Congress adopted the Secretary's schedule for
implementing rail passenger equipment safety regulations and included
it in the Federal Railroad Safety Authorization Act of 1994 (the Act),
Public Law 103-440, 108 Stat. 4619, 4623-4624 (November 2, 1994).
Congress also authorized the Secretary to consult with various
organizations involved in passenger train operations for purposes of
prescribing and amending these regulations, as well as issuing orders
pursuant to them. Section 215 of the Act (codified at 49 U.S.C. 20133).
3. A Description of, and Where Feasible, an Estimate of Small Entities
to Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally
includes only those small entities that are reasonably expected to be
directly regulated by this action. This proposed rule would directly
affect commuter and intercity passenger railroads. It would indirectly
impact manufacturers of passenger cars, emergency egress and rescue
access related marking, and low-location emergency exit path marking .
    ``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.
Railroads
    There are only two intercity passenger railroads, Amtrak and the
Alaska Railroad. Neither is considered to be a small entity. Amtrak is
a Class I railroad and the Alaska Railroad is a Class II railroad. The
Alaska Railroad is owned by the State of Alaska, which has a population
well in excess of 50,000.
    The level of costs incurred by each organization should generally
vary in proportion to either the size of their passenger car fleet. For
instance, railroads with fewer passenger cars would have lower overall
costs associated with implementing the proposed standards. There are
currently 28 commuter railroad operations in the U.S. Most commuter
railroads are part of larger transportation organizations that receive
Federal funds and serve major metropolitan areas with populations
greater than 50,000. However, two commuter railroads do not fall in
this category and are considered small entities. The impact of the two
small railroads is discussed in the following section.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Will Be Subject to the Requirements and the Type
of Professional Skill Necessary for Preparation of the Report or Record
    For a thorough presentation of cost estimates, please refer to the
Regulatory Evaluation, which has been placed in the docket for this
rulemaking.
    FRA notes that the requirements contained in this proposed rule
were developed in consultation with an RSAC Working Group and task
force that included representatives from Amtrak, individual commuter
railroads, individual passenger car manufacturers, sign manufacturers
and suppliers, and APTA, which represents the interests of commuter
railroads and passenger car manufacturers in regulatory matters.
    The first small entity that would be impacted by this proposal is a
commuter train operation that is an express service to and from a
sporting event. It is owned by a Class III freight railroad that owns
and operates the 6 bi-level passenger cars used for this commuter
operation. The impacts on this entity could include upgrades related to
achieving compliance with the 2007 APTA standards for emergency
lighting, emergency signage, and low-location exit path markings. The
initial costs associated with completing these upgrades for the
railroad is estimated to range between $14,482 and $28,694 depending on
the existing level of compliance and could be spread over 2 to 3 years.
Since this railroad provides service under contract to a State
institution, it could be able to pass some or all of the compliance
cost on to that institution. Thus, the small entity itself would not be
significantly impacted.
    The second small entity is a commuter railroad that is owned by a
Class III railroad. This entity is fully compliant with existing
passenger railroad regulations. Out of its entire fleet of 9 cars, FRA
estimates that 4 cars may need emergency lighting upgrades to comply
with the emergency lighting requirement. The costs associated with the
upgrades of these four cars are estimated to be $18,758, which could be
spread over 2 to 3 years.
    The proposed rule would require railroads to test a representative
sample of passenger railcars in accordance with the APTA LLEPM
standard, using the procedures in Annex F or another statistically
valid documented sampling method. The estimated cost of an inspection/
record keeping is $1,500 per car over the 20-year period analyzed. This
cost was included in the total costs for each of the small entities
above. By following the proposed regulation, only a small percentage of
the fleet would need to be tested. Due to the size of the fleet of each
of these small entities, it is estimated only one car would be tested
in each of the fleets. The record keeping burden to the railroad
industry is estimated to be approximately 5 additional minutes per new
car introduced to the fleet. FRA assumed that a ``Maintenance of
Equipment & Stores'' \1\ personnel would have the professional skills
to prepare the records. Neither of these railroads is operating newly
build cars. They both operate cars purchased from other passenger
railroads.
---------------------------------------------------------------------------

    \1\ Surface Transportation Board (STB) Data Statement No. A-300
for Year 2009 indicates that ``Maintenance of Equipment & Stores''
personnel earn, on average, a ``straight time rate'' of $25.25 per
hour.
---------------------------------------------------------------------------

    FRA believes that the two small entities directly impacted would
not be impacted significantly. One of the entities probably would be
able to pass these costs onto a public entity that contracts to use the
small entity's equipment for fall sporting events. The other entity
would likely only need to upgrade the emergency lighting in four cars,
and the FRA does not believe that will be a significant financial
impact on their operations.
5. An Identification, to the Extent Practicable, of All Relevant
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
    FRA is not aware of any relevant federal rules that may duplicate,
overlap or conflict with the proposed rule.
    FRA invites all interested parties to submit data and information
regarding the potential economic impact that would result from adoption
of the proposals in this NPRM. FRA will consider all comments received
in the public comment process when making a determination.

C. Paperwork Reduction Act

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

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Respondent
               CFR Section                    universe            Total annual  responses               Average time per response         Total annual
                                             (railroads)                                                                                burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
238.112--Doors (New)
    --Conspicuously marking/posting                    28  45,804 markings/Instructions.........  15 minutes..........................            11,451
     instructions on emergency egress
     doors.

    --Marking/posting instructions on                  28  30,536 markings......................  15 minutes..........................             7,634
     emergency responder access doors.
    --Marking/posting instructions on                  28  1,340 panel markings.................  15 minutes..........................               335
     removable panel in car vestibule
     doors.
238.113--Emergency window exits
    --Markings (Current requirement).....              28  662 markings.........................  60 min./90 min./120 min.                           964
238.114--Rescue access windows
    --Markings/instructions on each                    28  1,092 markings.......................  45 minutes..........................               819
     access window (Current Requirement).
238.121--Emergency Communications:
 Intercom System
    --Posting legible/understandable                   28  116 marked intercoms.................  5 minutes...........................                10
     operating instructions at/near each
     intercom (Current requirement).
238.123--Emergency roof access
    --Marking/instructions of each                     28  232 marked locations.................  30 minutes..........................               116
     emergency roof access (Current
     requirement).
238.303--Exterior calendar day mechanical
 inspection of passenger equipment
    --Replacement markings of rescue                   28  150 marking..........................  20 minutes..........................                50
     access related exterior markings,
     signs, instructions (Current
     requirement).
238.303--Records of non-complying                      28  150 records..........................  2 minutes...........................                 5
 conditions (Current requirement).
238.305--Interior calendar day inspection
 of passenger cars
    --Non-complying end/side doors:                    28  260 written notifications + 260        1 minute............................                 9
     Written notification to crew of                        notices.
     condition + notice on door.
    --Non-complying public address/                    28  300 written notifications............  1 minute............................                 5
     intercom systems: Written
     notification to crews.
    --Records of public address/intercom               28  300 records..........................  2 minutes...........................                10
     system non-complying conditions
     (Current requirements).
--New requirement
    --Written procedure for mitigating                 28  28 written Procedures................  40 hours............................             1,120
     hazards of non-complying conditions
     relating to removable panels/windows
     in vestibule doors.
    --Written notification to train crew               28  458 notices..........................  2 minutes...........................                15
     of non-complying condition relating
     to panels/windows in vestibule doors.
238.307--Periodic mechanical inspection
 of passenger cars
    --Records of the inspection, testing,              28  7,634 car inspections/Records........  5 minutes...........................               636
     and maintenance of emergency window
     exits (New requirement).
    --Emergency roof markings and                      28  32 markings..........................  20 minutes..........................                11
     Instructions--replacements (Current
     requirement).
238.311--Single car test (Current
 Requirements)
    --Copies of APTA Standard SS-M-005-98              28  28 copies............................  15 minutes..........................                 7
     to Railroad Head Training Person.
    --Copies to Other Railroad Personnel.              28  336 copies...........................  2 minutes...........................                11
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information.
    Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments
concerning: whether these information collection requirements are
necessary for the proper performance of the functions of FRA, including
whether the information has practical utility; the accuracy of FRA's
estimates of the burden of the information collection requirements; the
quality, utility, and clarity of the information to be collected; and
whether the burden of collection of information on those who are to
respond, including through the use of automated collection techniques
or other forms of information technology, may be minimized. For
information or a copy of the paperwork package submitted to OMB,
contact Mr. Robert Brogan, Office of Safety, Information Clearance
Officer, at<PHONE_NUMBER>, or Ms. Kimberly Toone, Office of
Information Technology, at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via email to Mr. Brogan or Ms. Toone at the following
address<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, 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 NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. This proposed rule would
not have a substantial effect on the States or their political
subdivisions; it would not impose any direct compliance costs; and it
would 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.
Therefore, the consultation and funding requirements of Executive Order
13132 do not apply. Nevertheless, State and local officials were
involved in developing this proposed rule. The RSAC, which recommended
the proposals addressed in this NPRM, has as permanent members two
organizations directly representing State and local interests, AASHTO
and ASRSM.
    However, this proposed rule could have preemptive effect by
operation of law under certain provisions of the Federal railroad
safety statutes, specifically the former Federal Railroad Safety Act of
1970 (former FRSA), repealed and recodified at 49 U.S.C. 20106, and the
former Locomotive Boiler Inspection Act at 45 U.S.C. 22-34, repealed
and recodified at 49 U.S.C. 20701-20703. The former FRSA 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 ``local safety or security hazard'' exception to section
20106. Moreover, the former LIA has been interpreted by the Supreme
Court as preempting the field concerning locomotive safety. See Napier
v. Atlantic Coast Line R.R., 272 U.S. 605 (1926).

E. Environmental Impact

    FRA has evaluated this proposed regulation in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this proposed regulation 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. 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as
follows: (c) Actions categorically excluded. Certain classes of FRA
actions have been determined to be categorically excluded from the
requirements of these Procedures as they do not individually or
cumulatively have a significant effect on the human environment.
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 regulation is not a major Federal action significantly
affecting the quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
This monetary amount of $100,000,000 has been adjusted to $143,100,000
to account for inflation. This proposed rule would not result in the
expenditure of more than $143,100,000 by the public sector in any one
year, and thus preparation of such a statement is not required.

G. Privacy Act

    FRA wishes to inform all interested parties that anyone is able to
search the electronic form of any written communications and comments
received into any of our dockets by the name of the individual
submitting the document (or signing the document, if submitted on
behalf of an association, business, labor union, etc.). Interested
parties may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19477) or visit http://www.dot.gov/privacy.html.

List of Subjects

49 CFR Part 238

    Passenger equipment, Railroad safety, Reporting and recordkeeping
requirements.

49 CFR Part 239

    Passenger equipment, Railroad safety.

    For the reasons discussed in the preamble, FRA proposes to amend
parts 238 and 239 of chapter II, subtitle B of title 49, Code of
Federal Regulations as follows:

PART 238--[AMENDED]

    1. The authority citation for part 238 continues to read as
follows:

    Authority: 49 U.S.C. 20103, 20107, 20133, 20141, 20302-20303,
20306, 20701-20702, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49
CFR 1.49.

    2. Section 238.5 is amended by adding definitions of ``End-frame
door'' and ``Vestibule door,'' and by revising the definitions of
``APTA'' and ``Vestibule'' in alphabetical order to read as follows:

Sec.  238.5  Definitions.

* * * * *
    APTA means The American Public Transportation Association.
* * * * *
    End-frame door means an end-facing door normally located between,
or adjacent to, the collision posts or similar end-frame structural
elements.
* * * * *
    Vestibule means an area of a passenger car that normally does not
contain seating, is located adjacent to a side exit door, and is used
in passing from a seating area to a side exit door.
    Vestibule door means a door separating a seating area from a
vestibule. End-frame doors and doors separating sleeping compartments
or similar private compartments from a passageway are not vestibule
doors.
* * * * *
    3. Section 238.112 is added to read as follows:

Sec.  238.112  Doors.

    Except as provided in Sec.  238.439--
    (a) Each powered, exterior side door in a vestibule that is
partitioned from the passenger compartment of a passenger car shall
have a manual override device that is:
    (1) Capable of releasing the door to permit it to be opened without
power from inside the car;
    (2) Located adjacent to the door which it controls; and
    (3) Designed and maintained so that a person may readily access and
operate the override device from inside the car without requiring the
use of a tool or other implement. If the door is dual-leafed, only one
of the door leaves is required to respond to the manual override
device.
    (b) Each Tier I passenger car ordered on or after September 8,
2000, or placed in service for the first time on or after September 9,
2002, and all Tier II passenger cars shall have a minimum of two
exterior side doors, one in each side of the car. Each such door shall
provide a minimum clear opening with dimensions of 30 inches
horizontally by 74 inches vertically. A set of dual-leafed doors is
considered a single door for purposes of this paragraph. Each powered,
exterior side door on each such passenger car shall have a manual
override device that is:
    (1) Capable of releasing the door to permit it to be opened without
power from both inside and outside the car;
    (2) Located adjacent to the door which it controls; and
    (3) Designed and maintained so that a person may access the
override device from both inside and outside the car without requiring
the use of a tool or other implement.

    Note: The Americans with Disabilities Act (ADA) Accessibility
Specifications for Transportation Vehicles also contain requirements
for doorway clearance (See 49 CFR part 38).

    (c) A manual override device used to open a powered, exterior door
may be protected with a cover or a screen capable of removal without
requiring the use of a tool or other implement.
    (d) All doors intended for emergency egress shall be conspicuously
and legibly marked on the inside of the car, and legible and
understandable instructions shall be provided for their use, as
specified in Sec.  238.125.
    (e) All doors intended for access by emergency responders shall be
marked on the exterior of the car with retroreflective material, and
legible and understandable instructions shall be posted at or near each
such door, as specified in Sec.  238.125.
    (f) Vestibule doors and other interior doors intended for passage
through a passenger car. The requirements of this paragraph apply only
to passenger cars ordered on or after (DATE 60 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE Federal Register), or placed in
service for the first time on or after (1520 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE Federal Register).
    (1) General. Except for a door providing access to a control
compartment and a bi-parting door, which is subject to the requirements
in paragraph (f)(3) of this section, each vestibule door and any other
interior door intended for passage through a passenger car shall be
equipped with a removable panel or removable window in the event the
door will not open in an emergency, or the car is on its side and the
door is difficult to open. If the door is powered, it shall have a
manual override device that conforms with the requirements of
paragraphs (f)(4) through (f)(6) of this section.
    (2) Removable panels and windows.
    (i) Ease of operability. Each removable panel or window shall be
designed to permit rapid and easy removal from both the vestibule and
the passenger seating area during an emergency situation without
requiring the use of a tool or other implement.
    (ii) Dimensions. Removal of the panel or window shall create an
unobstructed opening in the door with minimum dimensions of 21 inches
horizontally by 28 inches vertically.
    (iii) Location. Each removable panel or removable window shall be
located so that the lowest point of the opening created by removing the
panel or window is no higher than 18 inches from the floor.
    (3) Bi-parting doors. Each powered, bi-parting vestibule door and
any other interior, powered bi-parting door intended for passage
through a passenger car shall be equipped with a manual override device
and mechanism to retain each door leaf in the open position (e.g.,
ratchet and pawl, or sprag). Each manual override device shall conform
with the requirements of paragraphs (f)(4), (f)(5)(ii), and (f)(6) of
this section.
    (4) Manual override devices. Each manual override device shall be:
    (i) Capable of releasing the door or door leaf, if door is bi-
parting, to permit it to be opened without power;
    (ii) Located adjacent to the door or door leaf, if door is bi-
parting, it controls; and
    (iii) Designed and maintained so that a person may readily access
and operate the override device from both the vestibule and the
passenger seating area without the use of any tool or other implement.
    (5) Marking and instructions.
    (i) Each removable panel or window in a vestibule door shall be
conspicuously and legibly marked with luminescent material on both the
vestibule side of the door and the passenger seating area side of the
door, to facilitate passenger egress in an emergency situation, as
specified in section 5.4.2 of APTA Standard SS-PS-002-98, Rev. 3,
``Standard for Emergency Signage for Egress/Access of Passenger Rail
Equipment,'' October 2007, or an alternative standard providing at
least an equivalent level of safety, if approved by FRA pursuant to
Sec.  238.21. Legible and understandable operating instructions shall
be posted on both the vestibule and the passenger seating area sides of
the door at each such panel or window.
    (ii) Each manual door override device and each retention mechanism
shall be conspicuously and legibly marked with luminescent material.
Legible and understandable operating instructions for each manual
override device and each retention mechanism shall be

posted at or near each such device or mechanism.
    (6) Testing. At an interval not to exceed 184 days, as part of the
periodic mechanical inspection, a railroad shall test a representative
sample of the removable panels, removable windows, manual override
devices, and door retention mechanisms on its cars to determine that
they operate as intended. The sampling method must conform to a
formalized statistical test method.
    4. Section 238.113 is amended by revising paragraph (d) and adding
new paragraph (e) to read as follows:

Sec.  238.113  Emergency window exits.

* * * * *
    (d) Marking and instructions.
    (1) Each emergency window exit shall be conspicuously and legibly
marked with luminescent material on the inside of each car to
facilitate egress, as specified in Sec.  238.125.
    (2) Legible and understandable operating instructions, including
instructions for removing the window, shall be posted at or near each
such window exit, as specified in Sec.  238.125. If window removal may
be hindered by the presence of a seatback, headrest, luggage rack, or
other fixture, the instructions shall state the method for allowing
rapid and easy removal of the window, taking into account the
fixture(s), and this portion of the instructions may be in written or
pictorial format.
    (e) At an interval not to exceed 184 days, as part of the periodic
mechanical inspection, a railroad shall test a representative sample of
emergency window exits on its cars to determine that they operate as
intended. The sampling method must conform to a formalized statistical
test method.
    5. Section 238.114 is amended by revising paragraph (d) to read as
follows:

Sec.  238.114  Rescue access windows.

* * * * *
    (d) Marking and instructions.
    (1) Each rescue access window shall be marked with retroreflective
material on the exterior of each car as specified in Sec.  238.125. A
unique and easily recognizable symbol, sign, or other conspicuous
marking shall also be used to identify each such window.
    (2) Legible and understandable window-access instructions,
including instructions for removing the window, shall be posted at or
near each rescue access window as specified in Sec.  238.125.
    6. Section 238.115 is revised to read as follows:

Sec.  238.115  Emergency lighting.

    After [DATE ONE YEAR AFTER EFFECTIVE DATE OF THE FINAL RULE],
emergency lighting shall be provided in each passenger car in
accordance with the minimum requirements specified in APTA Standard SS-
E-013-99, Rev. 1, ``Standard for Emergency Lighting System Design for
Passenger Cars,'' October 2007, or an alternative standard providing at
least an equivalent level of safety if approved by FRA pursuant to
Sec.  238.21.
    7. Section 238.121 is amended by revising the first sentence of
paragraph (a)(2), paragraph (b)(2), and the introductory text of
paragraph (c) to read as follows:

Sec.  238.121  Emergency communications.

    (a) * * *
    (2) New Tier I and all Tier II passenger cars. Each Tier I
passenger car ordered on or after April 1, 2008, or placed in service
for the first time on or after April 1, 2010, and all Tier II passenger
cars shall be equipped with a PA system that provides a means for a
train crewmember to communicate by voice to passengers of his or her
train in an emergency situation. * * *
    (b) * * *
    (2) Marking and instructions. The following requirements apply to
each Tier I passenger car on or after April 1, 2010, and to all Tier II
passenger cars. Legible and understandable operating instructions shall
be posted at or near each such intercom, and the location of each
intercom intended for passenger use shall be conspicuously marked with
luminescent material that either:
    (i) Meets the minimum requirements as specified in Sec.  238.125,
or an alternative standard providing at least an equivalent level of
safety if approved by FRA pursuant to Sec.  238.21; or
    (ii) For material installed prior to [DATE 2 YEARS AFTER EFFECTIVE
DATE OF FINAL RULE], meets the requirements specified in paragraph
(b)(2) of this section in effect on April 1, 2008 (see 49 CFR parts
200-299, revised as of October 1, 2008).
    (c) Back-up power. PA and intercom systems in Tier I passenger cars
ordered on or after April 1, 2008, or placed in service for the first
time on or after April 1, 2010, and in all Tier II passenger cars shall
have a back-up power system capable of--
* * * * *
    8. Section 238.123 is amended by revising paragraph (e) to read as
follows:

Sec.  238.123  Emergency roof access.

* * * * *
    (e) Marking and instructions. As specified in Sec.  238.125--
    (1) Each emergency roof access location shall be conspicuously
marked with retroreflective material of contrasting color; and
    (2) Legible and understandable instructions shall be posted at or
near each emergency roof access location.
    9. Section 238.125 is added to read as follows:

Sec.  238.125  Marking and instructions for emergency egress and rescue
access.

    After [DATE ONE YEAR AFTER EFFECTIVE DATE OF THE FINAL RULE],
emergency signage and markings shall be provided for each passenger car
in accordance with the minimum requirements specified in APTA Standard
SS-PS-002-98, Rev. 3, ``Standard for Emergency Signage for Egress/
Access of Passenger Rail Equipment,'' October 2007, or an alternative
standard providing at least an equivalent level of safety, if approved
by FRA pursuant to Sec.  238.21.
    10. Section 238.127 is added to read as follows:

Sec.  238.127  Low-location emergency exit path marking.

    After [DATE ONE YEAR AFTER EFFECTIVE DATE OF THE FINAL RULE], low-
location emergency exit path marking shall be provided in each
passenger car in accordance with the minimum requirements specified in
APTA Standard SS-PS-004-99, Rev. 2. ``Standard for Low-Location Exit
Path Marking,'' October, 2007, or an alternative standard providing at
least an equivalent level of safety, if approved by FRA pursuant to
Sec.  238.21.

Sec.  238.235  [Removed and reserved]

    11. Section 238.235 is removed and reserved.
    12. Section 238.305 is amended by revising paragraph (a), revising
the introductory text of paragraph (c), adding paragraphs (c)(11) and
(c)(13), and revising the introductory text of paragraph (d) to read as
follows:

Sec.  238.305  Interior calendar day mechanical inspection of passenger
cars.

    (a) Except as provided in paragraph (e) of this section, each
passenger car shall receive an interior mechanical inspection at least
once each calendar day that it is placed in service.
* * * * *
    (c) As part of the interior calendar day mechanical inspection, the
railroad shall verify conformity with the following conditions, and
nonconformity with any such condition renders the car defective when
discovered in service, except as

provided in paragraphs (c)(8) through (c)(13) and paragraph (d) of this
section.
* * * * *
    (11) Low-location emergency exit path markings required by Sec.
238.127 are in place and conspicuous.
* * * * *
    (13) Removable panels and windows in vestibule doors and other
interior doors used for passage through a passenger car are properly in
place and secured, based on a visual inspection. A noncomplying
passenger car may remain in passenger service until no later than the
car's fourth interior calendar day mechanical inspection or next
periodic mechanical inspection required under Sec.  238.307, whichever
occurs first, or for a passenger car used in long-distance intercity
train service until the eighth interior calendar day mechanical
inspection or next periodic mechanical inspection required under Sec.
238.307, whichever occurs first, after the noncomplying condition is
discovered, where it shall be repaired or removed from service;
provided--
    (i) The railroad has developed and follows written procedures for
mitigating the hazard(s) caused by the noncomplying condition. The
railroad's procedures shall include consideration of the type of door
in which the removable panel or window is located, the manner in which
the door is normally opened, and the risk of personal injury resulting
from a missing, broken, or improperly secured removal panel or window;
and
    (ii) The train crew is provided written notification of the
noncomplying condition.
    (d) Any passenger car found not to be in compliance with the
requirements contained in paragraphs (c)(5) through (c)(11) of this
section at the time of its interior calendar day mechanical inspection
may remain in passenger service until the car's next interior calendar
day mechanical inspection where it must be repaired or removed from
passenger service; provided, all of the specific conditions contained
in paragraphs (c)(8) through (c)(10) of this section are met and all of
the following requirements are met:
* * * * *
    13. Section 238.307 is amended by revising paragraphs (c)(4),
(c)(5), and (e)(1) to read as follows:

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

* * * * *
    (c) * * *
    (4) A representative sample of the following emergency systems
properly operate: removable panels, removable windows, manual override
devices, and door retention mechanisms, in accordance with Sec.
238.112; and emergency window exits, in accordance with Sec.  238.113.
This portion of the periodic mechanical inspection may be conducted
independently of the other requirements in this paragraph (c). Each
railroad shall retain records of the inspection, testing, and
maintenance of the emergency window exits for two calendar years after
the end of the calendar year to which they relate.
    (5) With regard to the following emergency systems:
    (i) Emergency lighting systems required under Sec.  238.115 are in
place and operational; and
    (ii) Low-location emergency exit path markings required under Sec.
238.127 are operational.
* * * * *
    (e) * * *
    (1) A record shall be maintained of each periodic mechanical
inspection required to be performed by this section. This record shall
be maintained in writing or electronically, provided FRA has access to
the record upon request. The record shall be maintained either in the
railroad's files, the cab of the locomotive, or a designated location
in the passenger car. Except as provided in paragraph (c)(4) of this
section, the record shall be retained until the next periodic
mechanical inspection of the same type is performed and shall contain
the following information:
* * * * *
    14. Section 238.311 is amended by revising paragraph (a) to read as
follows:

Sec.  238.311  Single car test.

    (a) Except for self-propelled passenger cars, single car tests of
all passenger cars and all unpowered vehicles used in passenger trains
shall be performed in accordance with either APTA Standard SS-M-005-98,
``Code of Tests for Passenger Car Equipment Using Single Car Testing
Device,'' published March, 1998; or an alternative procedure approved
by FRA pursuant to Sec. 238.21. The incorporation by reference of this
APTA standard was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a
copy of the incorporated document from the American Public
Transportation Association, 1666 K Street NW., Washington, DC 20006.
You may inspect a copy of the document at the Federal Railroad
Administration, Docket Clerk, 1200 New Jersey Avenue SE., Washington,
DC or at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call (202)
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
* * * * *
    15. Section 238.439 is amended by removing paragraphs (a), (b),
(e), and (g), redesignating paragraphs (c), (d), and (f) as paragraphs
(a) through (c), revising redesignated paragraph (c), and adding
introductory text to read as follows:

Sec.  238.439  Doors.

    In addition to the requirements of Sec.  238.112--
* * * * *
    (c) For a passenger car ordered prior to (60 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE Federal Register), and placed in
service prior to (1520 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE
IN THE Federal Register), a passenger compartment end door (other than
a door providing access to the exterior of the trainset) shall be
equipped with a kick-out panel, pop-out window, or other similar means
of egress in the event the door will not open, or shall be so designed
as to pose a negligible probability of becoming inoperable in the event
of car body distortion following a collision or derailment.
    16. Section 238.441 is amended by revising paragraphs (a) and (c)
to read as follows:

Sec.  238.441  Emergency roof access.

    (a) Existing passenger cars and power cars. Each passenger car and
power car ordered prior to April 1, 2009 and placed in service for the
first time prior to April 1, 2011, shall have a minimum of one roof
hatch emergency access location with a minimum opening of 26 inches by
24 inches, or at least one structural weak point in the roof providing
a minimum opening of the same dimensions, to provide access for
properly equipped emergency response personnel. Each emergency roof
access location shall be conspicuously marked, and legible and
understandable operating instructions shall be posted at or near each
such location. Such marking shall also conform to the requirements
specified in Sec.  238.125.
* * * * *
    (c) New power cars. Each power car ordered on or after April 1,
2009, or placed in service for the first time on or after April 1,
2011, shall have a minimum of one emergency roof access location, with
a minimum opening of 26 inches longitudinally by 24 inches

laterally, and comply with the emergency roof access requirements
specified in Sec.  238.123(b) and (d). Each emergency roof access
location shall be conspicuously marked with retroreflective material of
contrasting color meeting the minimum requirements specified in Sec.
238.125, or an alternative standard providing at least an equivalent
level of safety, if approved by FRA pursuant to Sec.  238.21. Legible
and understandable instructions shall be posted at or near each such
location.

PART 239--[AMENDED]

    17. Section 239.105 is amended by revising paragraph (a) to read as
follows:

Sec.  239.105  Debriefing and critique.

    (a) General. Except as provided in paragraph (b) of this section,
each railroad operating passenger train service shall conduct a
debriefing and critique session after each passenger train emergency
situation or full-scale simulation to determine the effectiveness of
its emergency preparedness plan, and shall improve or amend its plan,
or both, as appropriate, in accordance with the information developed.
The debriefing and critique session shall be conducted within 60 days
of the date of the passenger train emergency situation or full-scale
simulation. To the extent practicable, all on-board personnel, control
center personnel, and any other employees involved in the emergency
situation or full-scale simulation shall participate in the session
either:
    (1) In person;
    (2) Offsite via teleconference; or
    (3) In writing, by a statement responding to questions provided
prior to the session, and by responding to any follow-up questions.
* * * * *

Sec.  239.107  [Removed and reserved]

    18. Section 239.107 is removed and reserved.

    Issued in Washington, DC, on December 19, 2011.
Joseph C. Szabo,
Administrator.
[FR Doc. 2011-33103 Filed 12-30-11; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register: March 13, 2007 (Volume 72, Number 48)]
[Notices]
[Page 11413-11414]
[DOCID:fr13mr07-92]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55413; File No. SR-NASDAQ-2007-013]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change as
Modified by Amendment No. 1 to Assess a Fee for Unsuccessful Appeals
Under Rule 11890

March 7, 2007.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 27, 2007, The NASDAQ Stock Market LLC (``Nasdaq'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been substantially prepared by Nasdaq.
Nasdaq submitted the proposed rule change under Section 19(b)(3)(A) of
the Act \3\ and Rule 19b-4(f)(2) thereunder,\4\ which renders the
proposal effective upon filing with the Commission. On March 1, 2007,
the Exchange filed Amendment No. 1 to the proposed rule change. The
Commission is publishing this notice to solicit comments on the
proposed rule change, as amended, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Nasdaq proposes to assess a fee for unsuccessful appeals under Rule
11890. Nasdaq expects to implement the proposed rule change as of March
1, 2007.
    The text of the proposed rule change is available on the Nasdaq's
Web site at http://www.nasdaq.com, at Nasdaq's Office of the Secretary,

and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, Nasdaq included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. Nasdaq has prepared summaries, set forth in Sections A,
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Nasdaq is amending Rule 11890, which covers the breaking of trades
determined to be clearly erroneous, to add a new Rule 11890(c)(4) that
would assess a fee of $500.00 for unsuccessful appeals of clearly
erroneous adjudications.
    Rule 11890(c) provides that the losing party may appeal decisions
made by Nasdaq officers on whether or not to break trades. Appeals are
heard by the Market Operations Review Committee (``MORC''), a committee
of up to 15 volunteers who are not affiliated with Nasdaq. Each appeal
is heard by a panel of two or three MORC members who must take time
from their work or personal activities to prepare for and hear the
appeal. In addition, appeals take significant staff time to perform a
number functions including: processing the appeal, contacting the
counterparties, communicating with MORC members to determine
availability, preparing briefing materials on the circumstances of the
trade(s) and communicating the MORC's decision to the parties. Nasdaq
estimates that on average the appeals process takes from four to five
person-hours to complete including staff and panel time.

    Nasdaq is concerned that some members have abused the appeals
process by appealing all decisions in which they are involved
regardless of merit or the value of shares at issue. During December
2006 and January 2007, five firms were responsible for 44% of all
appeals. Two appeals were for odd lot amounts, including one appeal for
just 50 shares. Of the appeals during this two-month period, 77% of
appeals were upheld by the MORC and 23% resulted in trade adjustments.
These statistics suggest that parties are overusing and abusing the
appellate system because there is no downside risk. A number of the
appeals involve trades that do not meet the numerical thresholds and
other factors used in adjudicating clearly erroneous filings set forth
in IM-11890-4 and IM-11890-5. As a result, the MORC is often serving as
a redundant decision maker in cases where the outcome is not
legitimately in question. This is not the role Nasdaq intended when it
established the appeals process using the MORC.
    In order to reduce the number of frivolous appeals and to preserve
Nasdaq's ability to attract qualified persons to serve on the MORC,
Nasdaq is proposing a modest fee of $500.00 that will be levied only in
cases where the MORC upholds the Nasdaq officer's decision. Firms would
not be charged for successful appeals. Nasdaq believes that this fee
will encourage members to consider whether the facts and economic value
at stake merit appellate consideration. Nasdaq notes that NYSE Arca
Equities, Inc. (``NYSE Arca'') recently adopted a similar $500.00
appellate fee in order to reduce apparent abuses of the appeals process
on that exchange.\5\
---------------------------------------------------------------------------

    \5\ Securities Exchange Act Release No. 54655 (October 26,
2006), 71 FR 64596 (November 2, 2006) (SR-NYSEArca-2006-48).
---------------------------------------------------------------------------

2. Statutory Basis
    Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\6\ in general, and with Section
6(b)(4) of the Act,\7\ in particular, in that the proposed rule change
provides for the equitable allocation of reasonable dues, fees, and
other charges among members and issuers and other persons using any
facility or system which Nasdaq operates or controls. Nasdaq believes
that the modest fee of $500 for an unsuccessful appeal under Rule 11890
will be equitably assessed against members that impose burdens on the
time of Nasdaq staff and MORC members by filing appeals that lack
merit.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78f.
    \7\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act \8\ and paragraph (f)(2) of Rule 19b-4\9\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission may summarily abrogate such rule change if
it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.\10\
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \9\ 17 CFR 240.19b-4(f)(2).
    \10\ For the purposes of calculating the 60-day abrogation
period, the Commission considers the proposed rule change to have
been filed on March 1, 2007, when Amendment No. 1 was filed.
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number SR-NASDAQ-2007-013 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
    All submissions should refer to File Number SR-NASDAQ-2007-013.
This file number should be included on the subject line if e-mail is
used. To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments,

all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of the Nasdaq. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NASDAQ-2007-013 and should be submitted on or before
April 3, 2007.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-4506 Filed 3-12-07; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 87, Number 21 (Tuesday, February 1, 2022)]
[Proposed Rules]
[Pages 5428-5430]
[FR Doc No: 2022-01955]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2022-0021; Project Identifier AD-2020-01283-A]
RIN 2120-AA64

Airworthiness Directives; Piper Aircraft, Inc., Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: The FAA proposes to adopt a new airworthiness directive (AD)
for certain Piper Aircraft, Inc., (Piper) Model PA-46-600TP airplanes.
This proposed AD was prompted by testing that showed that the wing
splice assembly could fail before the assembly reaches its established
life limit. This proposed AD would require revising the Airworthiness
Limitations section of the existing maintenance manual (MM) or
instructions for continued airworthiness to reduce the life limit of
the wing splice assembly. The FAA is proposing this AD to address the
unsafe condition on these products.

DATES: The FAA must receive comments on this proposed AD by March 18,
2022.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For service information identified in this NPRM, contact Piper
Aircraft, Inc., 2926 Piper Drive, Vero Beach, FL 32960; phone: (772)
299-2141; website: https://www.piper.com. You may view the service
information at the FAA, Airworthiness Products Section, Operational
Safety Branch, 901 Locust, Kansas City, MO 64106. For information on
the availability of this material at the FAA, call<PHONE_NUMBER>.

Examining the AD Docket

    You may examine the AD docket at https://www.regulations.gov by
searching for and locating Docket No. FAA-2022-0021; or in person at
Docket Operations between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket contains this NPRM, any comments
received, and other information. The street address for Docket
Operations is listed above.

FOR FURTHER INFORMATION CONTACT: John Marshall, Aviation Safety
Engineer, Atlanta ACO Branch, FAA, 1701 Columbia Avenue, College Park,
GA 30337; phone:<PHONE_NUMBER>; email: [email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to send any written relevant data, views, or
arguments about this proposal. Send your comments to an address listed
under ADDRESSES. Include ``Docket No. FAA-2022-0021; Project Identifier
AD-2020-01283-A'' at the beginning of your comments. The most helpful
comments reference a specific portion of the proposal, explain the
reason for any recommended change, and include supporting data. The FAA
will consider all comments received by the closing date and may amend
this proposal because of those comments.
    Except for Confidential Business Information (CBI) as described in
the following paragraph, and other information as described in 14 CFR
11.35, the FAA will post all comments received, without change, to
https://www.regulations.gov, including any personal information you
provide. The agency will also post a report summarizing each
substantive verbal contact received about this NPRM.

Confidential Business Information

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt

from public disclosure. If your comments responsive to this NPRM
contain commercial or financial information that is customarily treated
as private, that you actually treat as private, and that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Please mark each page of your submission
containing CBI as ``PROPIN.'' The FAA will treat such marked
submissions as confidential under the FOIA, and they will not be placed
in the public docket of this NPRM. Submissions containing CBI should be
sent to John Marshall, Aviation Safety Engineer, Atlanta ACO Branch,
FAA, 1701 Columbia Avenue, College Park, GA 30337. Any commentary that
the FAA receives which is not specifically designated as CBI will be
placed in the public docket for this rulemaking.

Background

    The FAA was notified by Piper of testing that showed that the wing
splice assembly, part number (P/N) 46W57A100-001, could fail before
reaching its established life limit on Model PA-46-600-TP airplanes.
The wing splice assembly was certificated with a life limit of 5,132
hours time-in-service (TIS); however, the failures of the test assembly
occurred before reaching that established life limit. The stress levels
used in the life limit analysis were not adequate. After a new fatigue
test article analysis, Piper reduced the life limit of the wing splice
assembly P/N 46W57A100-001 from 5,132 hours TIS to 3,767 hours TIS and
revised the Airworthiness Limitations section in the MM accordingly.
    Failure of the wing splice assembly, if not addressed, could result
in loss of airplane control. Airplanes having serial numbers 4698186
and larger (in production airplanes) will be delivered with an
Airworthiness Limitations section with the reduced life limit
incorporated.

FAA's Determination

    The FAA is issuing this NPRM after determining that the unsafe
condition described previously is likely to exist or develop on other
products of the same type design.

Related Service Information

    The FAA reviewed Piper Aircraft, Inc., PA-46-600TP, M600
Maintenance Manual, Airworthiness Limitations, Section 4-00-00, dated
August 31, 2021. This service information specifies the life limits of
structural parts for the Model PA-46-600TP airplane, and reduced the
life limit for the wing splice assembly.

Proposed AD Requirements in This NPRM

    This proposed AD would require revising the Airworthiness
Limitations section of the existing MM or instructions for continued
airworthiness to reduce the life limit of the wing splice assembly.

Costs of Compliance

    The FAA estimates that this AD, if adopted as proposed, would
affect 127 airplanes of U.S. registry.
    The FAA estimates the following costs to comply with this proposed
AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per      Cost on U.S.
              Action                    Labor cost              Parts cost           airplane        operators
----------------------------------------------------------------------------------------------------------------
Revise the Airworthiness           1 work-hour x $85     Not Applicable.........             $85         $10,795
 Limitations section.               per hour = $85.
----------------------------------------------------------------------------------------------------------------

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    The FAA determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect 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.
    For the reasons discussed above, I certify this proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Would not affect intrastate aviation in Alaska, and
    (3) Would not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13   [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive:

Piper Aircraft, Inc.: Docket No. FAA-2022-0021; Project Identifier
AD-2020-01283-A.

(a) Comments Due Date

    The FAA must receive comments on this airworthiness directive
(AD) by March 18, 2022.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to Piper Aircraft, Inc., Model PA-46-600TP
airplanes, serial numbers 4698001 and 4698004 through 4698185,
certificated in any category.

(d) Subject

    Joint Aircraft System Component (JASC) Code 5711, Wing Spar.

(e) Unsafe Condition

    This AD results from testing that showed that the wing splice
assembly could fail before the assembly reaches its established life
limit. The FAA is issuing this AD to prevent failure of the wing
splice assembly before the current established life limit. The
unsafe condition, if not addressed, could result in loss of airplane
control.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Action

    Within 90 days after the effective date of this AD, revise the
Airworthiness Limitations section in the existing maintenance manual
or instructions for continued airworthiness by reducing the life
limit of the wing splice assembly part number 46W57A100-001 to 3,767
hours time-in-service.
    Note 1 to paragraph (g): Section 4-00-00 of Piper Aircraft,
Inc., PA-46-600TP, M600 Maintenance Manual, Airworthiness
Limitations, Page 1, dated August 31, 2021, contains the life limit
in paragraph (g) of this AD.

(h) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Atlanta ACO Branch, FAA, has the authority to
approve AMOCs for this AD, if requested using the procedures found
in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request
to your principal inspector or local Flight Standards District
Office, as appropriate. If sending information directly to the
manager of the certification office, send it to the attention of the
person identified in paragraph (i)(1) of this AD.
    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.

(i) Related Information

    (1) For more information about this AD, contact John Marshall,
Aviation Safety Engineer, Atlanta ACO Branch, FAA, 1701 Columbia
Avenue, College Park, GA 30337; phone:<PHONE_NUMBER>; email:
[email protected].
    (2) For service information identified in this AD, contact Piper
Aircraft, Inc., 2926 Piper Drive, Vero Beach, FL 32960; phone: (772)
299-2141; website: https://www.piper.com. You may view this
referenced service information at the FAA, Airworthiness Products
Section, Operational Safety Branch, 901 Locust, Kansas City, MO
64106. For information on the availability of this material at the
FAA, call<PHONE_NUMBER>.

    Issued on January 26, 2022.
Lance T. Gant,
Director, Compliance & Airworthiness Division, Aircraft Certification
Service.
[FR Doc. 2022-01955 Filed 1-31-22; 8:45 am]
BILLING CODE 4910-13-P