[Federal Register Volume 79, Number 61 (Monday, March 31, 2014)]
[Rules and Regulations]
[Pages 18127-18151]
[FR Doc No: 2014-06998]

Vol. 79

Monday,

No. 61

March 31, 2014

Part II

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 239

Revisions to Passenger Train Emergency Preparedness Regulations; Final
Rule

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 239

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

Revisions to Passenger Train Emergency Preparedness Regulations

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

ACTION: Final rule.

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

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

ADDRESSES: Petitions for reconsideration and comments on petitions for
reconsideration: Any petitions for reconsideration or comments on
petitions for reconsideration related to this Docket No. FRA-2011-0062,
Notice No. 2, may be submitted by any of the following methods:
     Web site: The Federal eRulemaking Portal,
www.regulations.gov. Follow the Web site's online instructions for
submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington,
DC 20590.
     Hand Delivery: Docket Management Facility, Room W12-140 on
the ground level of the West Building, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Washington, DC between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking (2130-AC33). Note that all petitions and comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided. Please see the Privacy Act heading
in the SUPPLEMENTARY INFORMATION section of this document for Privacy
Act information related to any submitted petitions, comments or
materials.
    Docket: For access to the docket to read background documents,
petitions for reconsideration, or comments received, go to http://www.regulations.gov at any time or visit the Docket Management
Facility, U.S. Department of Transportation, 1200 New Jersey Avenue
SE., Room W12-140 on the Ground level of the West Building, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Knote, Staff Director,
Passenger Rail Division, Office of Railroad Safety, Mail Stop 25,
Federal Railroad Administration, 1200 New Jersey Avenue SE.,
Washington, DC 20590 (telephone:<PHONE_NUMBER>); or Anna Nassif Winkle,
Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590
(telephone:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

Abbreviations of Terms Frequently Used in This Final Rule

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

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. Overview of FRA's Prior Rulemakings Concerning Passenger
Train Emergency Preparedness and Passenger Train Emergency Systems
    1. 1998 Final Rule Primarily on Passenger Train Emergency
Preparedness and Partly on Passenger Train Emergency Systems
    2. 2008 Passenger Train Emergency Systems (PTES) Final Rule
    3. 2013 Passenger Train Emergency Systems (PTES II) Final Rule
    B. Proceedings to Date in the Present Rulemaking
    1. The Need for Additional Revisions to the Passenger Train
Emergency Preparedness Regulations
    2. RSAC Overview
    3. Passenger Safety Working Group
    4. General Passenger Safety Task Force
    5. Development of the NPRM
    6. Development of the Final Rule and Response to General
Comments on the NPRM
III. Section-by-Section Analysis, Including Response to Other
Comments on the NPRM
IV. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272;
Certification of No Significant Economic Impact on a Substantial
Number of Small Entities
    1. Description of Regulated Entities
    2. Railroads Impacted
    3. Certification
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Trade Impact
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    Having considered the public comments in response to the notice of
proposed rulemaking (NPRM) in this proceeding, which was published on
June 27, 2012 (see 77 FR 38248), FRA issues this final rule amending
the passenger train emergency preparedness regulations at 49 CFR part
239 (part 239). This final rule is intended to clarify certain
requirements and address issues that have arisen since the regulations
were first published in May 1998. This final rule is based on language
developed by the General Passenger Safety Task Force (Task Force), a
subgroup of FRA's Railroad Safety Advisory Committee (RSAC), to resolve
four main issues involving the regulations. The Task Force developed
recommendations principally to (1) ensure that railroad personnel who
communicate and coordinate with first responders during emergency
situations receive initial and periodic training and are subject to
operational tests and inspections under part 239; (2) clarify that
railroads must develop procedures in their passenger train emergency
preparedness plans under part 239 (e-

prep plans) that address the safe evacuation of passengers with
disabilities during an emergency situation; (3) limit the need for FRA
to formally approve certain purely administrative changes to approved
e-prep plans; and (4) specify new operational testing and inspection
requirements for both operating and non-operating personnel for
railroads covered by part 239. The recommendations developed by the
Task Force were approved by the full RSAC, and they formed the basis of
the NPRM and this final rule.
    The main provisions of the final rule--
     Clarify the types of railroad personnel who are required
to be trained or be subjected to operational testing and inspections
under part 239, by explicitly including railroad personnel who directly
coordinate with emergency responders;
     Clarify that railroads must include procedures in their e-
prep plans specifically addressing the safety of persons with
disabilities during actual emergency situations as well as during full-
scale simulations of emergency situations, such as during train
evacuations;
     Allow certain purely administrative changes to e-prep
plans to be excluded from the formal review and approval process
required for more substantive amendments to e-prep plans under part
239;
     Require that operational tests and inspections be
conducted in accordance with a program that meets the minimum
requirements specified in this part and provides for such tests and
inspections on appropriate courses of action in response to various
potential emergency situations;
     Clarify that operational testing and inspections under
part 239 may be conducted under, and considered part of, the railroad's
operational testing and inspection program under 49 CFR part 217 (part
217); and
     Remove as unnecessary the provision discussing the
preemptive effect of part 239.
    In analyzing the economic impacts of this final rule, FRA found
that the rule's provisions will enhance the emergency planning process
currently in place in part 239. FRA has quantified the costs associated
with this final rule. Any additional costs associated with amending
part 239 will be mostly related to the inclusion of additional
personnel in the testing and training programs required by part 239.
The industry will also be subject to additional burden from minor new
requirements for the submission of e-prep plans to make the review and
approval of e-prep plans more efficient. Total costs over the next 10
years are estimated to be $1,492,792 (undiscounted) with a present
value (PV) of $1,073,755 when discounted at 7 percent.
    The following table presents the estimated discounted costs of the
final rule, broken down by section of the rule:

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

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

II. Background

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

emergency window exits and windows intended for rescue access by
emergency responders be marked accordingly and that instructions be
provided for their use. In addition, FRA established requirements that
all door exits intended for egress be lighted or marked, all door exits
intended for rescue access by emergency responders be marked, and that
instructions be provided for their use.
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    \2\ Note that, effective January 28, 2014, Sec.  239.107 is
removed and reserved, and the requirements have been revised and
moved to 49 CFR part 238. See 78 FR 71786 (November 29, 2013).
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2. 2008 Passenger Train Emergency Systems (PTES) Final Rule
    In 2008, FRA revisited requirements for emergency systems on
passenger trains by enhancing existing requirements for emergency
window exits under FRA's Safety Glazing Standards and establishing new
requirements for rescue access windows used by emergency responders to
evacuate passengers under FRA's Passenger Equipment Safety Standards
(49 CFR part 238). See 73 FR 6369 (February 1, 2008). While this 2008
final rule did not make any changes to part 239, the rule expanded
other existing requirements that were previously only applicable to
passenger trains operating at speeds in excess of 125 mph but not
exceeding 150 mph (Tier II passenger trains) to passenger trains
operating at speeds not exceeding 125 mph (Tier I passenger trains),
see Sec.  238.5. Specifically, Tier I passenger trains were required to
be equipped with public address and intercom systems for emergency
communication, as well as provide emergency roof access for use by
emergency responders. FRA applied certain requirements to both existing
and new passenger equipment, while other requirements applied only to
new passenger equipment.
3. 2013 Passenger Train Emergency Systems (PTES II) Final Rule
    On November 29, 2013, FRA published a final rule that became
effective January 28, 2014, amending FRA's Passenger Equipment Safety
Standards by enhancing existing requirements for passenger train
emergency systems as well as creating new requirements for passenger
train emergency systems. See 78 FR 71786. The final rule adds emergency
passage requirements for interior vestibule doors as well as enhances
emergency egress and rescue access signage requirements. The final rule
also adds requirements for low-location emergency exit path markings,
creates minimum emergency lighting standards for existing passenger
cars, and enhances existing requirements for the survivability of
emergency lighting systems in new passenger cars.
    Additionally, the final rule amends FRA's passenger train emergency
preparedness regulations in part 239. In addition to moving the
``emergency exits'' provision of part 239, as previously noted, these
amendments include clarifying existing requirements for participation
in debriefing and critique sessions following both actual passenger
train emergency situations and full-scale simulations. Under the
current regulation, a debriefing and critique session is required after
each passenger train emergency situation or full-scale simulation to
determine the effectiveness of the railroad's e-prep plan. See Sec.
239.105. The railroad is then required to improve or amend its plan, or
both, in accordance with the information gathered from the session. The
language added in the PTES II final rule clarifies that, to the extent
practicable, all on-board personnel, control center personnel, and any
other employee involved in the emergency situation or full-scale
simulation shall participate in the debriefing and critique session.
The final rule also clarifies that employees be provided flexibility to
participate in the debriefing and critique sessions through a variety
of different methods.

B. Proceedings to Date in the Present Rulemaking

1. The Need for Additional Revisions to the Passenger Train Emergency
Preparedness Regulations
    Among FRA's reasons for initiating the present rulemaking, FRA
learned that there was confusion regarding certain requirements within
FRA's passenger train emergency preparedness regulations. For example,
FRA learned that some passenger railroads were confused as to which
types of railroad personnel were required to be trained or be subjected
to operational testing and inspections under part 239. Specifically,
these railroads were unclear whether part 239 required certain railroad
personnel who directly coordinate with emergency responders and other
outside organizations during emergency situations to be trained or be
subjected to operational testing and inspections. As a result, FRA
believes that it is necessary to clarify the regulatory language in
part 239 to ensure that railroad personnel who directly coordinate with
emergency responders actually receive the proper training and are
subject to operational testing and inspections. FRA also learned that
many railroads were unclear whether operational testing under part 239
was permitted to be considered as part of the railroad's operational
testing and inspection program required under part 217. In addition, as
a result of FRA's experience in reviewing and approving passenger
railroads' e-prep plans that are updated periodically, FRA realized
that a number of the changes were purely administrative in nature.
While part 239 currently subjects all changes to an e-prep plan to a
formal review and approval process, FRA believes that certain purely
administrative changes should be excluded from the process so that the
agency can focus its resources on more substantive matters.
    Finally, FRA believes it is necessary to clarify part 239 to
address the requirements of Executive Order 13347. See 69 FR 44573
(July 26, 2004). Executive Order 13347 requires, among other things,
that Federal agencies encourage State, local, and tribal governments,
private organizations, and individuals to consider in their emergency
preparedness planning the unique needs of individuals with disabilities
whom they serve. While part 239 already requires railroads' e-prep
plans to consider the unique needs of passengers with disabilities (as
each railroad subject to part 239 is required to address the safety of
each of its passengers in its e-prep plan), this final rule makes this
requirement more explicit and clarifies the railroads' responsibilities
in that regard.
2. RSAC Overview
    In March 1996, FRA established RSAC as a forum for collaborative
rulemaking and program development. RSAC includes representatives from
all of the agency's major stakeholder groups, including railroads,
labor organizations, suppliers and manufacturers, and other interested
parties. A list of member groups follows:
     American Association of Private Railroad Car Owners
(AAPRCO);
     American Association of State Highway and Transportation
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association
(ASLRRA);
     American Train Dispatchers Association (ATDA);
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employees Division
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);

     Chlorine Institute;
     Federal Transit Administration (FTA); *
     Fertilizer Institute;
     High Speed Ground Transportation Association;
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace
Workers;
     International Brotherhood of Electrical Workers;
     Labor Council for Latin American Advancement; *
     League of Railway Industry Women; *
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women; *
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association
(NRCMA);
     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB); *
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte; *
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association, Inc.;
     Transport Canada; *
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC
(TCIU/BRC);
     Transportation Security Administration (TSA); * and
     United Transportation Union (UTU).

* Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If the
task is accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. A working group may establish one or more
task forces to develop facts and options on a particular aspect of a
given task. The individual task force then provides that information to
the working group for consideration. When a working group comes to
unanimous consensus on recommendations for action, the package is
presented to the full RSAC for a vote. If the proposal is accepted by a
simple majority of RSAC, the proposal is formally recommended to FRA.
FRA then determines what action to take on the recommendation. Because
FRA staff members play an active role at the working group level in
discussing the issues and options and in drafting the language of the
consensus proposal, FRA is often favorably inclined toward the RSAC
recommendation. However, FRA is in no way bound to follow the
recommendation, and the agency exercises its independent judgment on
whether the recommended rule achieves the agency's regulatory goal, is
soundly supported, and is in accordance with policy and legal
requirements. Often, FRA varies in some respects from the RSAC
recommendation in developing the actual regulatory proposal or final
rule. Any such variations would be noted and explained in the
rulemaking document issued by FRA. However, to the maximum extent
practicable, FRA utilizes RSAC to provide consensus recommendations
with respect to both proposed and final agency action. If RSAC is
unable to reach consensus on a recommendation for action, the task is
withdrawn and FRA determines the best course of action.
3. Passenger Safety Working Group
    The RSAC established the Passenger Safety Working Group (Working
Group) to handle the task of reviewing passenger equipment safety needs
and programs and recommending consideration of specific actions that
could be useful in advancing the safety of rail passenger service and
develop recommendations for the full RSAC to consider. Members of the
Working Group, in addition to FRA, include the following:
     AAR, including members from BNSF Railway Company (BNSF),
CSX Transportation, Inc. (CSXT), and Union Pacific Railroad Company
(UP);
     AAPRCO;
     AASHTO;
     Amtrak;
     APTA, including members from Bombardier, Inc., Herzog
Transit Services, Inc., Interfleet Technology, Inc. (Interfleet,
formerly LDK Engineering, Inc.), Long Island Rail Road (LIRR), Maryland
Transit Administration (MTA), Metro-North Commuter Railroad Company
(Metro-North), Northeast Illinois Regional Commuter Railroad
Corporation (NIRCRC), Southern California Regional Rail Authority
(Metrolink), and Southeastern Pennsylvania Transportation Authority
(SEPTA);
     ASLRRA;
     BLET;
     BRS;
     FTA;
     NARP;
     NTSB;
     RSI;
     SMWIA;
     STA;
     TCIU/BRC;
     TSA;
     TWU; and
     UTU.
    In 2007, the Working Group tasked the Task Force (General Passenger
Safety Task Force) to resolve four issues involving FRA's regulations
related to passenger train emergency preparedness. The issues taken up
by the Task Force were as follows: (1) Ensure that railroad personnel
who communicate and coordinate with first responders during emergency
situations receive initial and periodic training and are subject to
operational tests and inspections under part 239; (2) clarify that
railroads must develop procedures in their e-prep plans addressing the
safety of passengers with disabilities during an emergency situation,
such as during a train evacuation; (3) limit the need for FRA to
formally approve certain purely administrative changes to approved e-
prep plans and update FRA headquarters' address; and (4) specify new
operational testing and inspection requirements for both operating and
non-operating employees for railroads covered by part 239.
    While the Task Force was initially also charged with updating FRA
headquarters' address as it appeared in various regulations found in
part 239, FRA has already amended its regulations to update the address
of the physical headquarters of FRA and the U.S. Department of
Transportation in Washington, DC. See 74 FR 25169 (May 27, 2009).
4. General Passenger Safety Task Force
    Members of the Task Force include representatives from various
organizations that are part of the larger Working Group. Members of the
Task Force, in addition to FRA, include the following:
     AAR, including members from BNSF, CSXT, Norfolk Southern
Railway Co., and UP;
     AASHTO;
     Amtrak;
     APTA, including members from Alaska Railroad Corporation,
Peninsula Corridor Joint Powers Board (Caltrain), LIRR, Massachusetts
Bay Commuter Railroad Company, Metro-North, MTA, New Jersey Transit
Corporation, New Mexico Rail Runner Express, Port Authority Trans-
Hudson, SEPTA, Metrolink, and Utah Transit Authority;
     ASLRRA;
     ATDA;
     BLET;
     FTA;

     NARP;
     NRCMA;
     NTSB;
     Transport Canada; and
     UTU.
    The full Task Force met together on the following dates and in the
following locations to discuss the four e-prep-related issues charged
to the Task Force:
     July 18-19, 2007, in Chicago, IL;
     December 12, 2007, in Ft. Lauderdale, FL;
     April 23-24, 2008, in San Diego, CA; and
     December 3, 2008, in Cambridge, MA.
    Minutes of each of these Task Force meetings are part of the docket
in this proceeding and are available for public inspection.
5. Development of the NPRM
    The NPRM was developed to address a number of the concerns raised
and issues discussed during the various Task Force and Working Group
meetings. Staff from the DOT's Volpe National Transportation Systems
Center in Cambridge, MA, attended many of the meetings and contributed
to the technical discussions through their comments and presentations.
To aid the Task Force in its delegated task, FRA drafted regulatory
text for discussion purposes and made various changes to the draft text
based upon input from Task Force members, as reflected in the meeting
minutes. The Task Force reached consensus on all four assigned tasks
and adopted the draft text created from its meetings as a
recommendation to the Working Group on December 4, 2008.
    FRA revised the Task Force's recommendation to conform to technical
drafting guidelines and to clarify the intent of the recommendation. On
June 8, 2009, the Task Force presented both its initial consensus
language as well as the consensus language revised by FRA to the
Working Group. The Working Group approved the Task Force's initial and
revised consensus language at its June 8, 2009 meeting in Washington,
DC. The consensus language was then presented before the full RSAC on
June 25, 2009, where it was approved by unanimous vote. Thus, the
Working Group's recommendation was adopted by the full RSAC as a
recommendation to FRA.
    While the RSAC's recommendation provided a strong basis for the
proposed rule, the language FRA proposed in the NPRM varied from the
recommendation principally in one substantive way: FRA declined to
adopt the RSAC's recommendation that FRA add language to Sec.
239.101(a)(2)(ii) that would require control center and emergency
response communications center (ERCC) personnel to receive initial and
periodic training only on those portions of the railroad's e-prep plan
that relate to their specific duties under the plan. FRA explained this
decision in the section-by-section analysis. FRA had also proposed
minor changes for purposes of clarity and formatting in the Federal
Register, but these changes were not intended to affect the RSAC's
consensus recommendation.
6. Development of the Final Rule and Response to General Comments on
the NPRM
    FRA notified the public of its options to submit written comments
on the NPRM and to request a public, oral hearing on the NPRM as well.
No request for a public hearing was received. However, a number of
interested parties did submit written comments to the docket in this
proceeding, and FRA considered all of these comments in preparing this
final rule. Specifically, written comments were received from the
Commuter Rail Division of the Regional Transportation Authority (Metra)
and its operating company NIRCRC; MTA; the Disability Rights Education
and Defense Fund (DREDF); individual commenter Jeffrey Scott Moore; and
the Transportation Communications Union/IAM (TCU/IAM), TWU, UNITE-HERE,
and UTU (jointly).
    FRA notes that throughout the preamble discussion of this final
rule, FRA refers to comments, views, suggestions, or recommendations
made by members of the Task Force, Working Group, or full RSAC, as they
are identified or contained in meeting minutes or other materials in
the public docket. FRA does so to show the origin of certain issues and
the nature of discussions concerning those issues at the Task Force,
Working Group, and full RSAC level. FRA believes this serves to
illuminate factors it has weighed in making its regulatory decisions,
as well as the rationale for those decisions.
    The majority of the comments received appear to address specific
provisions proposed in the NPRM. FRA's response to such comments can be
found in the section-by-section analysis of the specific provisions to
which the comments apply. However, as there were two comments that were
more general in nature and did not directly relate to a particular
proposed provision, FRA is discussing these comments in this section.
    The first general comment is from an individual, Mr. Jeffrey Scott
Moore. Mr. Moore suggests that FRA redefine what ``railroad'' means in
part 239 and which railroads are subject to part 239. He believes that
passenger density should be the driving force for meeting the
definition of a passenger railroad covered by part 239, rather than the
items currently listed in the definition of ``railroad'' in part 239
and the applicability section at Sec.  239.3 (e.g., whether the
passenger service is a commuter railroad), and recommends that FRA
apply the same standard to all passenger railroads, ``right down to the
first aid kits.'' Mr. Moore's comment appears to be requesting that FRA
reconsider both the definition of ``railroad'' and the general
applicability of part 239, neither of which was raised as an issue in
the NPRM. Accordingly, FRA believes that Mr. Moore's comment is outside
of the scope of this rulemaking proceeding. FRA's rationale for
defining the term ``railroad'' as it is used in Sec.  239.7 and for the
criteria determining part 239's applicability can be found in the
preamble to the 1998 final rule at 63 FR 24630, 24643-24645 (May 4,
1998).
    The second general comment is a joint comment from TCU/IAM, TWU,
UNITE-HERE, and UTU (collectively, the Unions) urging FRA to further
modify Sec.  239.7 by eliminating the exclusion of persons performing
``food, beverage, or security service'' from the definition of
``crewmember.'' \3\ The Unions assert that on-board service employees
may be called upon, and have been called upon, to assist passengers in
an emergency, and note that such employees are often in a unique
position to assist passengers with special needs. Further, the Unions
submit that passengers do not often differentiate between uniformed
employees and, due to more regular interaction with on-board service
employees that are on the train point-to-point with passengers, are
more likely to go to them for assistance during an emergency situation.
While recognizing that ``the vast majority of these [on-board service]
employees are already trained in safety and emergency procedures (via
Amtrak required training),'' the Unions assert that training of ``all''
on-board service employees (including food, beverage, and security
workers, and employees of

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

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

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

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

Subpart A--General

Section 239.5 Preemptive Effect
    FRA is eliminating this section on the preemptive effect of part
239, the passenger train emergency preparedness regulations. FRA
believes that this section is unnecessary because it is duplicative of
statutory law at 49 U.S.C. 20106 and case law, which sufficiently
address the preemptive scope of FRA's regulations. FRA is retaining the
section number itself rather than deleting it.
Section 239.7 Definitions
    FRA is amending this section in one major and two minor ways. Most
importantly, FRA is adding a definition for the new term ``emergency
response communications center'' (ERCC) as will be explained in detail
below. In addition, FRA is adding a definition for two existing terms
``on-line emergency responder'' (see Sec.  239.101(a)(5)) and ``outside
emergency responder'' (see Sec.  239.101(a)(1)(ii)) to clarify that FRA
intends those terms to have the same meaning as that of the existing,
and defined, term ``emergency responder.'' Finally, FRA is updating the
definition of the existing term ``crewmember'' for technical reasons to
reflect that most individuals assigned to be engaged in or connected
with the movement of a passenger train are not subject to ``the Federal
hours of service laws'' as the definition presently reads, but are
subject to the obligations encompassed by the more generic term, ``the
Federal hours of service requirements.''
    Under the final rule, the new term ``ERCC'' is defined, in part, as
``a central location, or a group of individuals, designated by a
railroad with responsibility for establishing, coordinating, or
maintaining communication with outside emergency responders,
representatives of adjacent rail modes of transportation, or
appropriate railroad officials during a passenger train emergency.''
The definition continues that the ERCC may be part of the railroad's
``control center,'' which has already been defined as ``a central
location on a railroad with responsibility for directing the safe
movement of trains.'' See current Sec.  239.7. A control center is
commonly called a ``train dispatch center.'' FRA believes this new
definition of ``ERCC'' is necessary for the reasons stated below.
    Currently, the requirements of part 239 do not specifically apply
to all personnel assigned to perform the above-described emergency
response communication functions, but rather to personnel in the
railroad's control center. The individuals working in these control
centers are subject to e-prep plan training and operational tests. See
current Sec.  239.101. However, requiring only responsible control
center personnel (in addition to on-board personnel (``crewmembers''
within the meaning of Sec.  239.7)) to receive training on a railroad's
e-prep plan may be problematic because, in many railroads' operational
structures, train dispatchers only notify internal railroad officials
(as opposed to ``outside emergency responders'') about an emergency
situation and provide block protection for the affected train(s) or
equipment involved in the incident. While an ERCC may be part of a
railroad's dispatch center, many railroads maintain a separate center
within their organizational structure that establishes and maintains
communications with outside emergency responders, adjacent rail modes
of transportation, and appropriate railroad officials. In addition,
ERCC personnel often assist in coordinating the actual emergency
response with outside emergency responders.
    This final rule defines an ``ERCC,'' which provides vital services
during an emergency situation, and includes the term in various
provisions of part 239 that address training, testing, and inspection
requirements. By including this definition and inserting this term in
the existing regulation, FRA is expressly requiring that ERCC
personnel, who directly interact with outside emergency responders and
perform other key emergency response communications functions, receive
the proper training, testing, and oversight under the regulation to
appropriately prepare for and respond to an emergency situation.
    The definition of ``ERCC'' that FRA is adopting in this final rule
provides the railroads with maximum flexibility in designating what
centers or groups of individuals within the railroad's organizational
structure are responsible for communicating with the outside emergency
responders and other outside entities during an emergency situation on
the railroad and would therefore qualify as ERCCs or ERCC personnel.
With this flexibility, each affected railroad is permitted to ensure
that the correct center or group of individuals within the railroad's
organizational structure responsible for such emergency response
communications receives training on the railroad's e-prep

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

Subpart B--Specific Requirements

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

both for any failure to provide e-prep training required by this part,
as the railroad's e-prep plan must provide for such training, and a
contractor performing any function under part 239 must perform that
function in accordance with this part and is subject to a civil penalty
for failure to perform the function in accordance with this part. See
Sec. Sec.  239.101(a)(2), 239.9, and 239.11. In making the
determination as to whether to assess a civil penalty against the
railroad or contractor or both under such situations, FRA will consider
the criteria listed in Appendix A to part 209.
    FRA notes that the RSAC reached consensus on adding language that
would have required that control center and ERCC personnel receive
initial and periodic training only on those portions of the railroad's
e-prep plan that relate to their specific duties under the plan.
However, FRA declined to propose adding such language to this paragraph
in the NPRM, due to the concern that a railroad's entire emergency
response could be hindered if specific individuals happen to be absent
during an actual emergency situation. For example, if a specific
control center or ERCC employee is required under the railroad's e-prep
plan to notify internal railroad personnel during an emergency
situation that an emergency situation on the railroad has occurred, and
that employee is absent or incapacitated during an actual emergency,
then the railroad's emergency response may be hindered if the remaining
individuals had received training only on the very specific parts of
the railroad's e-prep plan for which they were directly responsible
during an emergency situation. By ensuring that control center and ERCC
personnel receive broader initial and periodic training on appropriate
courses of action on potential emergency situations beyond the
individual's specific duties under the railroad's e-prep plan, these
individuals will have a more holistic view of the railroad's emergency
response and therefore be better prepared to respond to an emergency
situation regardless of the specific circumstances. Although MTA
submitted a comment urging FRA to adopt the RSAC recommendation (and
suggesting that such training would be consistent with existing
protocol and would not compromise passenger safety), the comment did
not address the safety concerns that FRA expressed in the NPRM.
    FRA believes that training control center and ERCC personnel on the
railroad's entire e-prep plan, not just the specific portions of the
plan that relate to their specific duties, will not add substantial
cost to the railroads because most railroads are already providing this
broader level of training to their employees, as the current training
requirements are not limited to an employee's specific duties, and
specifically require training on coordination of functions. See current
Sec.  239.101(a)(2)(ii). Many railroads provide this holistic training
on the railroad's e-prep plan through an informational video, which
provides useful information to the employees on all levels of the
railroad's emergency response. In addition, FRA understands that the
RSAC language that would have only required training specific to the
employee's duties under the plan was included in the consensus language
in response to concerns that, under the current requirement inSec.
239.101(a)(2)(ii)(A), some railroads were training control center
personnel that were not also dispatchers to be familiar with a
territory to the same level as a dispatcher. As further discussed
below, FRA has already addressed this concern elsewhere in the training
requirements by removing the word ``dispatch'' from the requirement
that training include ``Dispatch territory familiarization.''
Accordingly, for the reasons expressed in the NPRM and above, FRA
declines to add to this provision the RSAC-recommended language
regarding providing training to individuals only on their specific
duties under the e-prep plan.
    FRA is also amending paragraphs (a)(2)(ii)(A) through (D). In
paragraph (a)(2)(ii)(A), FRA is removing the word ``dispatch'' before
``territory familiarization,'' as noted above. The Task Force
recommended that the word ``dispatch'' be removed from this paragraph
so that control center and ERCC personnel who are not railroad
dispatchers would not be required to be as familiar with a territory as
dispatchers are required to be under current railroad operating rules.
For example, to conduct their duties efficiently and safely, railroad
dispatchers are required to memorize the physical characteristics of
the railroad territory over which they control train movements. While
this is necessary for a railroad dispatcher, the Task Force believed,
and FRA agrees, that this level of familiarity with railroad territory
is not necessary for individuals working in a control center or ERCC
who are not railroad dispatchers.
    No comments were received on this amendment. Therefore, for the
reasons noted in the NPRM and above, FRA has removed the word
``dispatch'' from ``Dispatch territory familiarization'' in paragraph
(a)(2)(ii)(A). This amendment clarifies that individuals working in
control centers or ERCCs who are not also railroad dispatchers are not
required to have complete dispatch territory familiarization in their
capacity to assist in emergency situations. Instead, for the purposes
of this paragraph, ``Territory familiarization'' will focus on, but not
be limited to the following: access points for emergency responders
along the railroad's right-of-way; special circumstances (e.g.,
tunnels); parallel operations; and other operating conditions (e.g.,
elevated structures, bridges, and electrified territory) including
areas along the railroad's right-of-way that are remote and that would
likely present challenges for individuals responding to a passenger
train emergency.
    To complement the language being adopted in paragraph
(a)(2)(ii)(A), paragraph (a)(2)(ii)(B) is being amended to require
initial and periodic training for responsible control center and ERCC
personnel on how to access and retrieve information that would aid
emergency personnel in responding to an emergency situation. (Current
paragraph (a)(2)(ii)(B) is being redesignated as paragraph
(a)(2)(ii)(C), below.) Under the amended provision, responsible control
center and ERCC personnel are required to receive sufficient training
to be able to retrieve information to assist emergency personnel in
their emergency response. For example, under a railroad's e-prep plan,
a railroad employee designated as part of an ERCC might be required to
be trained on how to electronically retrieve a map of railroad
property, read it properly, and identify and describe important points
of access to emergency responders. No comments were received on this
amendment, and, except for adding an explanation of ``Territory
familiarization,'' FRA has adopted the provision as proposed in the
NPRM for the reasons stated above.
    FRA is also adding language to paragraph (a)(2)(ii)(C)
(redesignated from (a)(2)(ii)(B)). This new language requires
responsible control center and ERCC personnel to receive initial and
periodic training on the railroad's e-prep plan, including what
protocols govern internal communications between these two groups when
an actual emergency situation occurs. The language ``as applicable
under the plan,'' is also being added to the regulatory text to
emphasize that, due to the variety of possible organizational designs
on how railroads handle emergency responses, it is ultimately each
individual railroad's decision on

what protocols will be followed to govern internal communication
between control center and ERCC personnel. No comments were received on
this amendment, and FRA is adopting the provision as proposed in the
NPRM for the reasons stated above.
    Finally, FRA is adding a new paragraph (a)(2)(ii)(D). This new
paragraph reflects the Task Force's recommendation that initial and
periodic e-prep plan training should include the protocols for
establishing and maintaining external communications between the
railroad's control center or ERCC, or both, and emergency responders.
The Task Force recommended, and FRA agrees, that adding this
requirement will ensure that responsible control center and ERCC
personnel receive initial and periodic training on what protocols need
to be followed to establish and maintain communications with external
organizations assisting in the emergency response. Like the Task Force,
FRA believes that it is just as important for control center and ERCC
personnel to learn the protocols for establishing and maintaining
communications with external organizations as for the protocols
governing internal communications between centers in newly-designated
paragraph (a)(2)(ii)(C). No comments were received on this amendment,
and FRA is adopting the provision as proposed in the NPRM for the
reasons stated above.
    FRA also realizes that railroads may have to amend their e-prep
plans in order to comply with the new requirements. FRA noted in the
NPRM that it intended to provide railroads sufficient time to have
their amended e-prep plans submitted to FRA for review after the
issuance of this final rule, and invited comment as to whether FRA
should lengthen the usual period before the final rule would become
effective. No comments were received on this issue. FRA believes that a
total of 120 days should provide railroads with sufficient time to
amend their plans and submit them to FRA for review, and has therefore
decided to make the rule effective on July 29, 2014.
    Paragraph (a)(2)(iii). FRA is adding language to paragraph
(a)(2)(iii) that requires ERCC personnel to be included in the initial
training after the e-prep plan is approved under Sec.  239.201(b)(1).
It is important that ERCC personnel be included in this training
because, depending on the organizational structure of the railroad, the
actions of ERCC personnel during an emergency response situation may be
more pivotal to the successful implementation of the plan than the
actions of control center personnel. FRA is also adding clarifying
language to paragraph (a)(2)(iii) to specify that responsible control
center and ERCC personnel are subject to the training requirements
regardless of whether they are railroad employees, railroad contractors
and subcontractors, or employees of these contractors and
subcontractors. This clarification addresses the joint comment from the
Unions, as discussed in the section-by-section analysis of paragraph
(a)(2)(ii) of this section, above. No further comments were received on
these amendments, and other than a simplification of the heading (i.e.,
replacing ``employees of the railroad, current employees of contractors
and subcontractors to the railroad, and individuals who are contracted
or subcontracted by the railroad'' with ``personnel''), FRA is adopting
the provision as proposed in the NPRM for the reasons stated above.
    Paragraph (a)(2)(iv). For the same reasons that FRA is adding
language to paragraph (a)(2)(iii), FRA is adding similar language to
paragraph (a)(2)(iv), namely, to ensure that ERCC personnel hired after
the e-prep plan is approved by FRA receive initial training within 90
days after the individual's initial date of service with the railroad.
Currently, this paragraph expressly requires that only on-board and
control center personnel receive initial training within 90 days after
their initial date of service with the railroad. Depending on how a
railroad has chosen to organize its response to a specific emergency
situation, failure to train a new ERCC employee within 90 days of
starting his or her service on the railroad could create inefficiencies
in the railroad's response to an emergency situation.
    In addition, FRA is adding language to paragraph (a)(2)(iv)
clarifying that the requirements of this paragraph are not limited to
on-board and control center personnel that are railroad employees, but
include ERCC personnel that are railroad employees, as well as on-
board, control center, and ERCC personnel that are contractors,
subcontractors, and employees of contractors or subcontractors. This
clarification also addresses the joint comment from the Unions, as
discussed in the section-by-section analysis of paragraph (a)(2)(ii) of
this section, above. No further comments were received on these
amendments. Other than three minor edits (i.e., the modification of the
header for simplicity and consistency with Sec.  239.101(a)(2)(iii),
the addition of the word ``responsible'' in front of ``control center
personnel'' for consistency with its use in the training requirements
in Sec.  239.101(a)(2), and the revision of ``and'' to ``as well as''
in front of ``any emergency response communications center personnel''
for consistency with Sec.  239.101(a)(2)(v)), FRA is adopting the
provision as proposed in the NPRM for the reasons stated above.
    Paragraph (a)(2)(v). FRA is adding language to this paragraph to
clarify that railroads need to develop testing procedures not only for
employees, but also for contractors and subcontractors, as well as
employees of contractors and subcontractors who are being evaluated for
qualification under the railroad's e-prep plan. The current regulatory
text expressly requires railroads to develop testing procedures for
railroad employees only. This final rule clarifies that employees, as
well as contractors, subcontractors, and employees of contractors and
subcontractors, are required to be evaluated for qualification under
the railroad's e-prep plan using appropriate testing procedures. The
heading of this paragraph is also being amended for simplicity (and
consistency with paragraphs (a)(2)(iii) and (a)(2)(iv)) and to clarify
that railroads need to develop testing procedures for ERCC personnel as
well as on-board and control center personnel.
    Finally, FRA is modifying paragraph (a)(2)(v)(A) to require that
testing procedures developed by the railroads accurately measure an
individual's, rather than an individual employee's, knowledge of his or
her responsibilities under the railroad's e-prep plan. Currently,
paragraph (a)(2)(v)(A) expressly applies only to railroad employees,
and this modification ensures that railroad contractors and
subcontractors are covered by the provision as well. This clarification
addresses the joint comment from the Unions, as discussed in the
section-by-section analysis of paragraph (a)(2)(ii) of this section,
above. No further comments were received on these amendments, and FRA
is adopting the provision as proposed in the NPRM for the reasons
stated above.
    Paragraph (a)(8). For the reasons stated below, FRA has adopted the
provision as proposed in the NPRM, except that FRA has added an
explanation of the term ``knowledge.'' Executive Order 13347
(``Individuals with Disabilities in Emergency Preparedness'') requires
the Federal government to appropriately support safety and security for
individuals with disabilities in all types of emergency situations. See
69 FR 44573 (July 26, 2004). Currently, each railroad subject to part
239 is required to address the safety of each of its passengers in its
emergency preparedness planning.

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

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

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

Section 239.201 Emergency Preparedness Plan; Filing and Approval
    This section specifies the process for review and approval by FRA
of each passenger railroad's e-prep plan. As proposed in the NPRM, FRA
is dividing paragraph (a) of this section into paragraphs (a)(1) and
(a)(2). Paragraph (a)(1) contains the regulatory requirements on how to
file an e-prep plan, while paragraph (a)(2) contains the requirements
on how to file an amendment to an FRA-approved plan. Paragraph (a)(2)
is then further subdivided. Paragraph (a)(2)(i) describes what
procedures a railroad must follow when filing amendments, other than
certain purely administrative changes, to its e-prep plan with FRA.
Paragraph (a)(2)(ii) lists the limited circumstances in which a
railroad is permitted to implement an amendment to its approved e-prep
plan without first obtaining FRA approval of the amendment. Consistent
with this exception, FRA is also adding language to paragraph (b)(3) to
clarify that FRA will not formally review the limited purely
administrative amendments that are permitted to be implemented without
prior FRA approval as described in paragraph (a)(2)(ii). Each of these
changes is discussed in further detail, below.
    Specifically, FRA is modifying paragraph (a)(1) in four minor ways.
First, FRA is updating the title of the FRA official who must receive a
railroad's e-prep plan, from ``Associate Administrator for Safety'' to
the current title of ``Associate Administrator for Railroad Safety and
Chief Safety Officer.'' Additionally, since the time part 239 was
issued, FRA's ``Office of Safety'' was officially renamed the ``Office
of Railroad Safety.'' Therefore, FRA is updating the language in
paragraph (a)(1) to reflect the name change of this FRA office. The
RSAC also recommended that FRA modify the time period that new-start
passenger railroads have to submit their e-prep plans to FRA before
commencing passenger service. Currently, e-prep plans must be submitted
by these passenger railroads no less than 45 days prior to commencing
passenger operations. Consistent with the RSAC's consensus
recommendation, and with what FRA proposed in the NPRM, FRA is
requiring that such railroads submit their plans to FRA no less than 60
days prior to commencing passenger operations. This change provides FRA
safety officials more time to review a railroad's e-prep plan, identify
any safety concerns, and notify the railroad of any such concerns so
that changes to the plan can be made before passenger operations
commence. FRA notes that the original filing deadline for passenger
railroads in operation during the time part 239 went into effect was
``not more than 180 days after May 4, 1998.'' For those passenger
railroads then in existence and for those passenger railroads that have
commenced operations since and have already filed and received approval
on their plans as of the effective date of the rule (July 29, 2014,
which has been specifically added to this paragraph of the final rule
for easy reference), FRA considers that those plans are timely filed.
Finally, regarding the requirement that the e-prep plan must include
the ``address'' of the primary person on each affected railroad to be
contacted with regard to review of the plan, FRA is adding ``(street
address and, if available, email address)'' following the word
``address'' in order to facilitate communication between FRA and the
railroad concerning review of the plan.
    FRA is also redesignating as paragraph (a)(2)(i) the regulatory
requirement (currently part of paragraph (a)) that all amendments to
approved e-prep plans be filed with FRA 60 days prior to the effective
date of the amendment. As discussed above, FRA is permitting an
exception to this requirement for the limited purely administrative
amendments that are permitted to be implemented without FRA approval,
as listed in paragraph (a)(2)(ii). Although these limited types of
amendments to e-prep plans must continue to be filed with FRA, they are
permitted to become effective immediately, and do not require formal
approval from FRA.
    However, pursuant to paragraph (a)(2)(i), e-prep plan amendments
that do not qualify for the exception in paragraph (a)(2)(ii) must be
submitted to FRA with a written summary of what the proposed amendment
would change in the approved e-prep plan and, as applicable, a training
plan describing how and when current and new employees and contractors
would be trained on any amendment. For example, if the amendment would
affect how current and new railroad employees and contractors assist
emergency responders, then under this paragraph the railroad must also
submit a training plan with the amendment stating how and when these
employees and contractors would be trained on these changes to the
railroad's e-prep plan. As another example, if the railroad wants to
identify new access roads to railroad property in its e-prep plan, then
a training plan for employees and contractors must be included with the
proposed amendment. Requiring railroads to include a summary with their
proposed e-prep plan amendments that are not exempted by paragraph
(a)(2)(ii) is necessary to permit FRA to review the plan amendments
more efficiently. Currently, railroads have been submitting their
entire approved e-prep plans with the amendment changes already
incorporated in the plan without identifying to FRA what changes the
railroad is specifically seeking to make to its approved e-prep plan.
This has delayed FRA's ability to review the railroad's proposed
amendment(s) and respond to the railroad within the 45 days specified
in paragraph (b)(3)(i). Requiring the railroads to include such
summaries will help FRA efficiently review the proposed amendments and
respond

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

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

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

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

determine if the ERCC employees are familiar with special circumstances
on their territory and if they know how to direct emergency responders
to these locations. In particular, conducting operational tests on ERCC
employees to determine their knowledge of the railroad's e-prep plan,
special circumstances, and access points is necessary to ensure that
they are familiar with emergency procedures and capable of directing
emergency responders to a passenger train in the event of an emergency.
    Paragraph (a)(1)(iv). New paragraph (a)(1)(iv) clarifies that each
railroad must state in its operational testing program the specific
intervals at which it will periodically conduct operational tests and
inspections of individuals covered by paragraph (a). This information
must be listed according to operating division, where applicable. FRA
believes that this additional language is necessary after reviewing
various railroads' submitted e-prep plans, some of which simply copied
the language directly from Sec.  239.301(a) and placed it into their e-
prep plans or stated that the railroad would periodically conduct
operational tests and inspections without indicating a specific
interval by which these tests or inspections would be administered. By
adding a requirement to specify a frequency, FRA is not mandating any
specific interval by which the railroad must conduct these tests and
inspections, as FRA believes that the regulated community should
continue to have the flexibility to decide the appropriate periodic
interval based on the individual circumstances of each railroad and its
e-prep plan and operational testing program. However, FRA is requiring
the railroad to provide more information to the agency so that FRA can
better verify that these types of tests and inspections are in fact
occurring as planned, and that the railroads are properly carrying out
their responsibilities in preparing to deal with various emergency
situations.
    Paragraph (a)(1)(v). Paragraph (a)(1)(v) requires the railroad to
identify in its e-prep plan each officer by name, job title, and
division or system, who is responsible for ensuring that the program of
operational tests and inspections is properly implemented. For
railroads that have multiple divisions or systems, the regulation
requires that each railroad identify at least one officer at the
railroad's system headquarters who is responsible for overseeing the
entire railroad's program and the e-prep plan implementation. This
individual should be knowledgeable about the current state of the
railroad's operational test and inspection requirements as well as the
current state of the railroad's e-prep program system-wide. If more
than one individual is responsible for ensuring that the program is
properly implemented on a railroad that has multiple divisions or
systems, the e-prep plan should make clear which individual is
responsible for overseeing the program and implementation on which
division(s) or system(s), and require that such individuals coordinate
results and jointly prepare the annual summary required by paragraph
(f) of this section.
    Paragraph (a)(1)(vi). The final basic element of the program, in
paragraph (a)(1)(vi), is that the program must require that railroad
officers conducting operational tests and inspections be trained on the
elements of the railroad's e-prep plan that are relevant to the tests
and inspections that the officers will be conducting. In addition, the
railroad officers conducting the operational tests and inspections must
be qualified on the procedures for administering such tests and
inspections in accordance with the railroad's program.
    Paragraphs (b) and (c). FRA is also adding headings to both
paragraphs (b) and (c) of this section. FRA believes that adding the
heading ``Maintaining records of operational test and inspection
records'' to paragraph (b) will help clarify that paragraph (b)
addresses what types of records need to be created for each operational
test or inspection performed. Similarly, the heading ``Retaining
operational test and inspection records'' is being added to paragraph
(c). This heading clarifies that paragraph (c) addresses the
requirements for how long records of operational tests and inspections
need to be retained by the railroad. Note that these headings differ
slightly from those proposed in the NPRM. For the header in paragraph
(b), FRA changed the word ``Keeping'' to ``Maintaining'' to be
consistent with the use of the word ``maintain'' within the body of
that paragraph. For paragraph (c), FRA changed the words ``Retention
of'' to ``Retaining'' in order to be more consistent stylistically with
the language used in the heading of paragraph (b). In addition, FRA is
modifying the cross-reference to paragraph (a) in the first sentence to
reflect that the requirement in paragraph (c) to retain each record
``required by paragraph (a)'' is actually required by paragraph (b),
not paragraph (a). Paragraph (a) requires railroads to conduct the
tests and inspections that are the subject of the records required to
be kept by paragraph (b) and retained by paragraph (c). FRA believes
that these headings and clarifying amendments will be useful guides for
the regulated community, especially those who are unfamiliar with part
239 and its requirements.
    Paragraphs (c) and (d). Regarding the record-retention requirements
in revised paragraph (c) and new paragraph (d) (see also, new
paragraphs (e) and (f)), MTA and Metra commented that requiring
railroads to retain copies of the operational test and inspection
records, program and summaries at both the railroad's headquarters and
divisional headquarters is unnecessary. Metra suggests that FRA modify
paragraphs (c) and (d) of this section to eliminate the proposed
requirement to retain a copy at the divisional headquarters. MTA
suggests that requiring a copy of each record at the headquarters only,
coupled with a provision that electronic copies be available at
divisional headquarters, would be sufficient to ensure compliance,
while reducing redundancy and paperwork. In response to these comments,
FRA is modifying the language proposed in the NPRM for existing
paragraph (c) and new paragraph (d) (and using conforming language in
other similarly-worded or related paragraphs, as further discussed
below) to clarify that records required by paragraphs (a)(1) and (b)
and required to be retained by paragraphs (c) and (d) of this section
may be retained either in hard copy or electronically, provided that
the electronic records are retained pursuant to the conditions set
forth in Sec.  239.303.
    Paragraph (d) contains a new requirement that each railroad retain
one copy of its current operational testing and inspection program
required by paragraph (a) of this section and each subsequent amendment
to the program. Railroads are required to retain such records at the
railroad's system headquarters and, as applicable, at each division
headquarters for three calendar years after the end of the calendar
year to which the program relates. As noted above, the records may be
retained electronically, subject to the conditions set forth in Sec.
239.303, and must also be made available for inspection and copying
during normal business hours by representatives of FRA and States
participating under 49 CFR part 212 (part 212).
    Paragraph (e). In the NPRM, FRA requested comment as to whether the
periodic review and analysis requirements of Sec.  217.9(e) should be
adopted in this final rule amending part 239 to more appropriately
fulfill the intended purpose of providing FRA

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

Appendix A to Part 239--Schedule of Civil Penalties

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

IV. Regulatory Impact and Notices

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

    This final rule has been evaluated in accordance with existing
policies and procedures under both Executive Orders 12866 and 13563 and
DOT policies and procedures. See 44 FR 11034 (February 26, 1979). FRA
has prepared and placed in the docket (FRA-2011-0062, Notice No. 2) a
regulatory impact analysis addressing the economic impact of this final
rule.
    As part of the regulatory impact analysis, FRA has assessed
quantitative measurements of the cost streams expected to result from
the implementation of this final rule. For the 10-year period analyzed,
the estimated quantified cost that will be imposed on industry totals
$1,492,792 with a present value (PV, 7 percent) of $1,073,775. The
largest cost burdens are from the new requirements related to the
operational tests in Sec.  239.301 of the final rule. The table below
presents the estimated discounted costs associated with the final rule,
broken down by section of the rule:

                  10-Year Estimated Cost of Final Rule*
------------------------------------------------------------------------

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

    As part of the regulatory impact analysis, FRA has explained what
the likely benefits for this final rule will be, and provided
assessments of the potential value of such benefits. This final rule
will generate safety benefits by preventing injuries in passenger rail
accidents from becoming more severe. FRA uses the Abbreviated Injury
Scale (AIS) as a measure of the severity for injuries with an AIS 1
injury being defined as minor and an AIS 5 as the most severe, i.e.,
critical.\4\ Benefits will accrue from the expedited arrival of
emergency responders to accident scenes, and from the ability of the
ERCC personnel to minimize health and safety risks through improved
internal and external communications. This final rule will ensure that
passenger railroads' emergency preparedness planning and implementation
is more flexible and provides the required emergency preparedness
training.
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    \4\ Association for the Advancement of Automotive Medicine.
http://www.aaam1.org/ais/#.
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    Additionally, this final rule will allow passenger railroads to
adjust to future personnel reorganizations and to incorporate
technological innovations by affording the railroad's management
flexibility in determining which part of the organization to designate
as the ERCC.
    Given the nature of the final rule amendments, FRA believes that
the most appropriate methodology to estimate the safety benefits is a
break-even analysis. A break-even analysis quantifies the minimum
safety benefits necessary for the final rule to be cost-beneficial,
considering the estimated quantified costs. For this final rule, the
analysis estimates that the break-even point is met when 5.47 injuries
are prevented from increasing in severity from AIS 1 (minor) to AIS 2
(moderate).
    The table below presents the estimated benefits necessary for this
final rule to break-even with the estimated costs. For the 10-year
period analyzed, the safety benefits would total $1,492,792
(undiscounted) with a present value (PV, 7 percent) of $1,073,775 at
the break-even point.

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

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

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

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

    FRA initiated this rulemaking through RSAC in part upon learning
that in the regulated community there was some confusion regarding
existing requirements on passenger train emergency preparedness (49 CFR
part 239). As a result, the General Passenger Safety Task Force (Task
Force), a subgroup of the RSAC, was tasked to resolve these issues. The
Task Force found that, as currently written, part 239 expressly
requires only the railroad's control center employees (along with on-
board personnel) to be subject to training and operational tests.
However, in many instances, control center employees were not found to
be the primary points of contact for outside emergency responders
during a passenger train emergency. Instead, control center employees
were carrying out other important duties related to ordinary train
operations and the emergency at hand, such as providing block
protection and diverting trains to other parts of the railroad's
network. This regulation is adding a definition for the new term
``emergency response communications center'' (ERCC) to Sec.  239.7 and
providing for the incorporation of the term ERCC in relevant sections
of part 239 (see e.g., Sec. Sec.  239.101, 239.105, 239.201, and
239.301). The amendments in the regulation will help to ensure that all
personnel involved in emergency preparedness under part 239 are subject
to appropriate training as well as operational tests and inspections.
While, the regulation differs slightly from the consensus language, the
need for this rulemaking is backed by the RSAC and is improving
passenger train emergency preparedness by clarifying training and
testing requirements.
    In addition, as a result of FRA's experience in the periodic review
and approval of passenger railroads' e-prep plans, FRA realized that a
number of the changes submitted were purely administrative in nature.
While part 239 currently subjects all changes to an e-prep plan to a
formal review and approval process, FRA believes that certain purely
administrative changes should be excluded from the formal approval
process so that the agency can focus its resources on more substantive
matters. Accordingly, this final rule is streamlining the approval of
such minor modifications to e-prep plans.
    Further, Executive Order 13347 (``Individuals with Disabilities in
Emergency Preparedness'') requires the Federal government to
appropriately support safety and security for individuals with
disabilities in all types of emergency situations. See 69 FR 44573
(July 26, 2004). Currently, each railroad subject to part 239 is
required to address the safety of each of its passengers in its
emergency preparedness planning. Nonetheless, FRA is clarifying that
these railroads must include procedures in their e-prep plans
addressing the safe evacuation of persons with disabilities during
emergency situations (and full-scale simulations of them).
1. Description of Regulated Entities
    The ``universe'' of the entities to be considered generally
includes only those small entities that are reasonably expected to be
directly regulated by this action. This final rule will directly affect
commuter and intercity passenger railroads, and freight railroads
hosting passenger rail operations.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under Section 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) likewise
includes within the definition of ``small entities'' not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their field of operation. The U.S. Small Business
Administration (SBA) stipulates in its size standards that the largest
a railroad business firm that is ``for profit'' may be and still be
classified as a ``small entity'' is 1,500 employees for ``Line Haul
Operating Railroads'' and 500 employees for ``Switching and Terminal
Establishments.'' Additionally, 5 U.S.C. 601(5) defines as ``small
entities'' governments of cities, counties, towns, townships, villages,
school districts, or special districts with populations less than
50,000.
    Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority FRA has published a final statement
of agency policy that formally establishes ``small entities'' or
``small businesses'' as being railroads, contractors, and hazardous
materials shippers that meet the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
in inflation-adjusted annual revenues, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891 (May 9, 2003), codified at appendix C to 49 CFR part
209. The $20-million limit is based on the Surface Transportation
Board's revenue threshold for a Class III railroad. Railroad revenue is
adjusted for inflation by applying a revenue deflator formula in
accordance with 49 CFR 1201.1-1. FRA is using this definition for this
rulemaking.
2. Railroads Impacted
    There are only two intercity passenger railroads, Amtrak and the
Alaska Railroad. Neither is a small entity. Amtrak is a Class I
railroad and the Alaska Railroad is a Class II railroad. Additionally,
both railroads are owned by public entities that exceed the population
threshold of 50,000.
    There are 28 commuter or other short-haul passenger railroad
operations in the U.S. Most of these railroads are part of larger
transit organizations that receive Federal funds and serve major
metropolitan areas with populations greater than 50,000. However, two
of these railroads do not fall in this category and are considered
small entities that do not conduct exclusively tourist, scenic,
historic, or excursion railroad service within the meaning of the
exception to part 239 at Sec.  239.3(b)(3).
    The Hawkeye Express is owned and operated by the Iowa Northern
Railway Company (IANR). In 2012, Hawkeye Express transported
approximately 5,000 passengers per game over a seven-mile round-trip
distance to and from the University of Iowa (University) football
games. IANR has approximately 110 employees and is primarily a freight
operation totaling 184,385 freight train miles in 2010. The service is
on a contractual arrangement with the University, a State of Iowa
institution. (The population of Iowa City, Iowa is approximately
69,000.) IANR, which is a Class III railroad, owns and operates the six
bi-level passenger cars used for this passenger operation which runs an
average seven days over a calendar year. FRA expects that any costs
imposed on the railroad by this regulation will likely be passed on to
the University as part of the transportation cost.
    The SNC began operation in the summer of 2011 and currently
provides daily rail service over a 57-mile line between Saratoga
Springs and North Creek, New York. The SNC, a Class III railroad, is a
limited liability company, wholly owned by San Luis & Rio Grande
Railroad (SLRG). SLRG is a Class III rail carrier and a subsidiary of
Permian Basin Railways, Inc. (Permian), which in turn is owned by Iowa