SUMMARY: FRA is issuing comprehensive Federal safety standards for 
railroad passenger equipment. The purpose of these safety standards is 
to prevent collisions, derailments, and other occurrences involving 
railroad passenger equipment that cause injury or death to railroad 
employees, railroad passengers, or the general public; and to mitigate 
the consequences of any such occurrences, to the extent they cannot be 
prevented. The final rule promotes passenger train safety through 
requirements for railroad passenger equipment design and performance; 
fire safety; emergency systems; the inspection, testing, and 
maintenance of passenger equipment; and other provisions for the safe 
operation of railroad passenger equipment. The final rule addresses 
passenger train safety in an environment where technology is advancing 
and equipment is being designed for operation at higher speeds. The 
final rule amends existing regulations concerning special notice for 
repairs, safety glazing, locomotive safety, safety appliances, and 
railroad power brakes as applied to passenger equipment.
    The final rule does not apply to tourist and historic railroad 
operations. However, after consulting with the excursion railroad 
associations to determine appropriate applicability in light of 
financial, operational, or other factors unique to such operations, FRA 
may prescribe requirements for these operations that are similar to or 
different from those affecting other types of passenger operations.

DATES: This regulation is effective July 12, 1999. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of July 12, 1999.

ADDRESSES: Any petition for reconsideration should reference FRA Docket 
No. PCSS-1, Notice No. 5, and be submitted in triplicate to the Docket 
Clerk, Office of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 10, 
Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Ronald Newman, Staff Director, Motive 
Power and Equipment Division, Office of Safety Assurance and 
Compliance, FRA, 1120 Vermont Avenue, Mail Stop 25, Washington, D.C. 
20590 (telephone: 202-493-6300); Daniel Alpert, Trial Attorney, Office 
of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 10, Washington, 
D.C. 20590 (telephone: 202-493-6026); or Thomas Herrmann, Trial 
Attorney, Office of Chief Counsel, FRA, 1120 Vermont Avenue, Mail Stop 
10, Washington, D.C. 20590 (telephone: 202-493-6036).

Supplementary Information:

Table of Contents for Supplementary Information

I. Introduction
II. Statutory Background
III. Passenger Equipment Safety Standards Working Group
IV. Proceedings to Date
V. Discussion of Specific Comments and Conclusions
    A. Application of the final rule to rapid transit operations and 
``light rail''
    B. Static end strength requirement: application to existing 
equipment
    C. United States international treaty obligations
    D. Non-conventional passenger equipment
    E. System safety
    F. Side exit doors on passenger cars
    G. Fuel tank standards
    H. Train interior safety
    I. Fire safety
VI. Inspection and Testing of Brake Systems and Mechanical 
Components
    A. Background prior to 1997 NPRM
    B. 1997 NPRM on Passenger Equipment Safety Standards
    1. Proposed brake system inspections
    2. Proposed mechanical inspections
    3. Proposed qualification of inspection and testing personnel
    C. Overview of comments relating to proposed inspection and 
testing requirements
    D. General FRA conclusions
    1. Brake and mechanical inspections
    2. Qualified maintenance person
    3. Long-distance intercity passenger trains
VII. Movement of Defective Equipment
    A. Background
    B. Overview of 1997 NPRM
    C. Discussion of comments on the 1997 NPRM and general FRA 
conclusions
    1. Movement of equipment with defective brakes
    2. Movement of equipment with other than power brake defects
VIII. FRA's Passenger Train Safety Initiatives
IX. Section-by-Section Analysis
X. Regulatory Impact
    A. Executive Order 12866 and DOT regulatory policies and 
procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental impact
    E. Federalism implications
    F. Compliance with the Unfunded Mandates Reform Act of 1995
    G. Effects on the Year 2000 computer problem
XI. List of Subjects

I. Introduction

    Passenger railroads offer the traveling public one of the safest 
forms of transportation available. In the eight-year period 1990-1997, 
there were 0.89 passenger fatalities for every billion miles of 
passenger transportation by rail. Nevertheless, collisions, 
derailments, and other such occurrences continue to occur, often as a 
result of factors beyond the control of the passenger railroad. 
Further, the rail passenger environment is rapidly changing. Worldwide, 
passenger equipment operating speeds are increasing. Passenger 
trainsets designed to European safety standards have been proposed for 
operation in the United States-and a few are in operation. Overall, 
these trainsets do not meet the structural standards that are common 
for passenger equipment operating in the United States. FRA believes 
that adherence to such common standards by the nation's passenger 
railroads has in large measure contributed to the high level of safety 
at which rail passenger service is currently provided in the United 
States. However, these standards generally do not have the force of 
law.
    Effective Federal safety standards for freight equipment have long 
been in place, but equivalent Federal safety standards for passenger 
equipment have not existed. Further, the Association of American 
Railroads (AAR) currently sets industry standards for the design and 
maintenance of freight equipment that add materially to the safe 
operation of such equipment. However, over the years, the AAR has 
discontinued the development and maintenance of industry standards for 
railroad passenger equipment.
    FRA must necessarily be vigilant in ensuring that passenger trains 
continue to be designed, built, and operated with a high level of 
safety. In general, the railroad operating environment in the United 
States requires passenger equipment to operate commingled with very 
heavy and long freight trains, often over track with frequent grade 
crossings used by heavy highway equipment. European passenger 
operations, on the other hand, are intermingled with freight equipment 
of lesser weight than in North America. In many cases, highway-rail 
grade crossings also pose lesser hazards to passenger trains in Europe 
due to lower highway vehicle weight. FRA is concerned with the level of safety provided by passenger equipment designed to European and 
other international standards when such equipment is operated in the 
United States.
    A clear set of Federal safety standards for railroad passenger 
equipment is needed that is tailored to the nation's operating 
environment in order to provide for the safety of rail operations in 
the United States and to facilitate sound planning for these 
operations. In furtherance of this safety objective, FRA is pleased by 
the American Public Transit Association's (APTA) initiative to continue 
the development and maintenance of voluntary industry standards for the 
safety of railroad passenger equipment. These standards will complement 
FRA's safety standards and, thus, will work together to provide an even 
higher level of safety for rail passengers, rail employees, and the 
public as a whole.

II. Statutory Background

    In September, 1994, the Secretary of Transportation convened a 
meeting of representatives from all sectors of the rail industry with 
the goal of enhancing rail safety. As one of the initiatives arising 
from this Rail Safety Summit, the Secretary announced that DOT would 
begin developing safety standards for rail passenger equipment over a 
five-year period. In November, 1994, Congress adopted the Secretary's 
schedule for implementing rail passenger equipment regulations and 
included it in the Federal Railroad Safety Authorization Act of 1994 
(the Act), Pub. L. No. 103-440, 108 Stat. 4619, 4623-4624 (November 2, 
1994). Section 215 of the Act, as now codified at 49 U.S.C. 20133, 
requires:

    (a) MINIMUM STANDARDS.--The Secretary of Transportation shall 
prescribe regulations establishing minimum standards for the safety 
of cars used by railroad carriers to transport passengers. Before 
prescribing such regulations, the Secretary shall consider--
    (1) the crashworthiness of the cars;
    (2) interior features (including luggage restraints, seat belts, 
and exposed surfaces) that may affect passenger safety;
    (3) maintenance and inspection of the cars;
    (4) emergency response procedures and equipment; and
    (5) any operating rules and conditions that directly affect 
safety not otherwise governed by regulations.

The Secretary may make applicable some or all of the standards 
established under this subsection to cars existing at the time the 
regulations are prescribed, as well as to new cars, and the 
Secretary shall explain in the rulemaking document the basis for 
making such standards applicable to existing cars.
    (b) INITIAL AND FINAL REGULATIONS.--(1) The Secretary shall 
prescribe initial regulations under subsection (a) within 3 years 
after the date of enactment of the Federal Railroad Safety 
Authorization Act of 1994. The initial regulations may exempt 
equipment used by tourist, historic, scenic, and excursion railroad 
carriers to transport passengers.
    (2) The Secretary shall prescribe final regulations under 
subsection
    (a) within 5 years after such date of enactment.
    (c) PERSONNEL.--The Secretary may establish within the 
Department of Transportation 2 additional full-time equivalent 
positions beyond the number permitted under existing law to assist 
with the drafting, prescribing, and implementation of regulations 
under this section.
    (d) CONSULTATION.--In prescribing regulations, issuing orders, 
and making amendments under this section, the Secretary may consult 
with Amtrak, public authorities operating railroad passenger 
service, other railroad carriers transporting passengers, 
organizations of passengers, and organizations of employees. A 
consultation is not subject to the Federal Advisory Committee Act (5 
U.S.C. App.), but minutes of the consultation shall be placed in the 
public docket of the regulatory proceeding.

    The Secretary of Transportation has delegated these rulemaking 
responsibilities to the Federal Railroad Administrator. 49 CFR 1.49(m).

III. Passenger Equipment Safety Standards Working Group

    Consistent with the intent of Congress that FRA consult with the 
railroad industry in prescribing these regulations, FRA invited various 
organizations to participate in a working group to focus on the issues 
related to railroad passenger equipment safety and assist FRA in 
developing Federal safety standards. The Passenger Equipment Safety 
Standards Working Group (or the ``Working Group'') first met on June 7, 
1995, and has assisted FRA throughout the rulemaking process. Since its 
initial meeting, the Working Group has evolved so that its membership 
includes representatives from the following organizations:

American Association of Private Railroad Car Owners, Inc. (AAPRCO)
American Association of State Highway and Transportation Officials 
(AASHTO)
APTA
AAR
Brotherhood of Locomotive Engineers (BLE)
Brotherhood Railway Carmen (BRC)
FRA
Federal Transit Administration (FTA) of DOT
National Railroad Passenger Corporation (Amtrak)
National Association of Railroad Passengers (NARP)
Railway Progress Institute (RPI)
Safe Travel America (STA)
Transportation Workers Union of America (TWU)
United Transportation Union (UTU), and
Washington State Department of Transportation (WDOT)

    The Working Group is chaired by FRA, and supported by FRA program, 
legal, and research staff, including technical personnel from the Volpe 
National Transportation Systems Center (Volpe Center) of the Research 
and Special Programs Administration of DOT. FRA has included vendor 
representatives designated by RPI as associate members of the Working 
Group. FRA has also included the AAPRCO as an associate Working Group 
member. The National Transportation Safety Board (NTSB) has designated 
staff members to advise the Working Group.
    In developing proposed safety standards for passenger equipment 
operating at speeds greater than 125 mph but not exceeding 150 mph, FRA 
formed a subgroup (the ``Tier II Equipment Subgroup'') of Working Group 
members representing interests associated with the provision of rail 
passenger service at such high speeds. The full Working Group 
recommended the formation of a smaller subgroup to consider Tier II 
passenger equipment standards, as a number of Working Group members 
found the operation of high-speed passenger equipment to be outside 
their immediate interest and expertise. FRA invited representatives 
from organizations including Amtrak, the BLE, BRC, RPI, and UTU to 
participate in developing the Tier II standards.
    In accordance with 49 U.S.C. 20133(d), the evolving positions of 
the Working Group members--as reflected in the minutes of the group's 
meetings and associated documentation, together with data provided by 
the members during their deliberations--have been placed in the public 
docket of this rulemaking.

IV. Proceedings to Date

    On June 17, 1996, FRA published an Advance Notice of Proposed 
Rulemaking (ANPRM) concerning the establishment of comprehensive safety 
standards for railroad passenger equipment (61 FR 30672). The ANPRM 
provided background information on the need for such standards, offered 
preliminary ideas on approaching passenger safety issues, and presented 
questions on various topics including: system safety programs and 
plans; passenger equipment crashworthiness; inspection, testing, and maintenance requirements; training and 
qualification requirements for mechanical personnel and train crews; 
excursion, tourist, and private equipment; commuter equipment and 
operations; train make-up and operating speed; tiered safety standards; 
fire safety; and operating practices and procedures.
    FRA's commitment to developing proposed regulations through the 
Working Group necessarily influenced the role and purpose of the ANPRM. 
FRA specifically asked that members of the Working Group not respond 
formally to the ANPRM. The issues and ideas presented in the ANPRM had 
already been placed before the Working Group, and the Working Group had 
commented on drafts of the ANPRM. As a result, FRA solicited the 
submission of written comments that might be of assistance in 
developing a proposed rule from interested persons not involved in the 
Working Group's deliberations.
    FRA received 12 comments in response to the ANPRM. These comments 
were shared with the Working Group and were taken into consideration by 
the members of the group as they advised FRA during the development of 
a Notice of Proposed Rulemaking (NPRM). The Working Group worked 
intensively, and concluded with a meeting in Philadelphia on September 
30-October 2, 1996. Working Group members agreed to the preparation of 
a NPRM reflecting partial consensus on a number of the issues in the 
rulemaking. However, the industry parties were unable to agree on any 
option with respect to inspection requirements for power brakes or 
daily inspection of equipment. Further, one labor organization later 
advised FRA that it could not participate in a consensus on less than 
the full range of issues in the rulemaking.
    FRA prepared in draft an NPRM and shared it with the Working Group 
members on March 19, 1997. The NPRM was then enriched with discussions 
of issues and options reflecting concerns of Working Group members in 
response to the draft, and some changes were incorporated into the 
proposed rule.
    On September 23, 1997, FRA published the NPRM (1997 NPRM) in the 
Federal Register to add a new part, 49 CFR part 238 (Passenger 
Equipment Safety Standards), and to amend 49 CFR parts 216 (Special 
Notice and Emergency Order Procedures: Railroad Track, Locomotive and 
Equipment), 223 (Safety Glazing Standards--Locomotives, Passenger Cars 
and Cabooses), 229 (Railroad Locomotive Safety Standards), 231 
(Railroad Safety Appliance Standards), and 232 (Railroad Power Brakes 
and Drawbars). 62 FR 49728. The proposed part 238 set forth 
comprehensive Federal safety standards for the safety of railroad 
passenger equipment, including equipment design and performance 
standards for passenger and crew survivability in the event of a 
passenger train accident, as well as inspection, testing, and 
maintenance standards for passenger equipment.
    The 1997 NPRM generated written comments from 34 separate parties, 
and all of these comments may be found in the public docket of the 
rulemaking. The written comments included a request by the New York 
Department of Transportation (NYDOT) to extend the comment period for 
90 days. The NYDOT sought this additional time to more thoroughly 
review the proposed rule, and secure expert testimony and empirical 
data on the proposed rule's possible impact on the high-speed intercity 
rail passenger program in the State of New York. FRA did not grant the 
request, however, particularly because FRA had planned to convene the 
Working Group in the interim and needed to assemble the comments on the 
rule for discussion within the Working Group. FRA asked the NYDOT to 
submit its comments by the close of the comment period on November 24, 
1997, and it did so. FRA did explain to the NYDOT that it would 
consider comments submitted after the formal close of the comment 
period to the extent possible without incurring additional expense or 
delay in issuing the final rule, and FRA has done so.
    FRA held a public hearing on the proposed rule in Washington, D.C. 
on November 21, 1997, at which nine parties submitted oral comments. 
These parties consisted of: APTA; the BRC; the BLE; Amtrak; Renfe Talgo 
of America, Inc. (Talgo); WDOT; NARP; the Omniglow Corporation; and The 
Institute of Electrical and Electronics Engineers, Inc. (IEEE). A copy 
of the transcript of this hearing is available in the public docket of 
this rulemaking.
    As noted earlier, FRA convened the Passenger Equipment Safety 
Standards Working Group following the close of the comment period to 
consider the comments received in response to the 1997 NPRM and help 
develop the final rule. This continued the consultative process FRA has 
used throughout the rulemaking. Notice of the Working Group meetings 
was available through the FRA Docket Clerk, as stated in the NPRM, see 
62 FR 49729, and the meetings were open to the public.
    The Working Group met in full in Washington, D.C., on December 15-
16, 1997. A smaller body of the Working Group met again on January 6, 
1998, to discuss in particular high-speed passenger equipment safety 
issues, as well as brake inspection, testing and maintenance issues for 
long-distance intercity passenger trains. Minutes of these meetings, 
including copies of the discussion documents circulated at the 
meetings, are available in the public docket of the rulemaking. See 63 
FR 28496; May 26, 1998. FRA received one set of written comments on the 
minutes of the meetings, which FRA had prepared, and these comments are 
also available in the same docket.

V. Discussion of Specific Comments and Conclusions

A. Application of the Final Rule to Rapid Transit Operations and 
``Light Rail''

    In the 1997 NPRM, FRA proposed applying the rule to rapid transit 
operations in an urban area, unless those operations are not connected 
with the general system of railroad transportation. In other words, FRA 
made clear that its rule would apply to rapid transit operations over 
the general system. The Utah Transit Authority (UTA), in commenting on 
the NPRM, expressed concern with the inclusion of rapid transit 
operations, including light rail transit, in the proposed rule. The UTA 
stated that the rule provided no definition of what is meant by the 
phrase ``not connected with the general railroad system of 
transportation.'' As a result, the UTA requested that the final rule 
provide such a definition. Further, the UTA requested that any such 
definition take into account rail operations that are time-separated or 
physically separated (using derails and electric locks), or both, so 
that under such circumstances rapid transit systems would not be 
considered connected with the general railroad system of transportation 
and, therefore, be excluded from the rule.
    In response to the 1997 NPRM, New Jersey Transit (NJT) commented 
that by permitting FRA to rule on whether a transit agency may operate 
light rail service over a freight right-of-way, FRA's jurisdiction 
would be expanded in conflict with FTA's mandate in 49 C.F.R. part 659. 
NJT explained that the Intermodal Surface Transportation Efficiency Act 
of 1991, Public Law 102-240, and 49 C.F.R. part 659 promulgated in its 
pursuance, required states to designate an agency of the state, other 
than a transit agency, to oversee and implement requirements concerning 
all fixed-guideway systems not under FRA's jurisdiction. The safety jurisdictions of FRA and FTA are mutually exclusive. 
FTA's regulatory authority to issue regulations creating a state safety 
oversight program applies only to ``rail fixed guideway mass 
transportation systems not subject to regulation by the Federal 
Railroad Administration.'' 49 U.S.C. 5330(a). Consistent with DOT 
Secretary of Transportation Rodney Slater's concept of One-DOT and the 
need to assure seamless application of intermodal transportation 
policies, FRA and FTA are jointly developing a proposed policy 
statement outlining the scope of FRA's jurisdiction over ``light rail'' 
operations that share the use of rights-of-way with conventional 
railroads. As discussed later in this document, the two agencies will 
be soliciting input from rail operators and other interested entities 
during the development of this policy statement.
    FRA's safety jurisdiction is very broad and extends to all types of 
railroads except for urban rapid transit operations not connected to 
the general railroad system. The term ``railroad'' is defined by 
statute as follows:

    In this part--
    (1) ``railroad''--
    (A) Means any form of nonhighway ground transportation that runs 
on rails or electromagnetic guideways, including--
    (i) Commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; 
and
    (ii) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads; but
    (B) does not include rapid transit operations in an urban area 
that are not connected to the general railroad system of 
transportation.

49 U.S.C. 20102.
    The statutory definition of the term ``railroad'' makes certain 
elements of FRA's safety jurisdiction quite clear:
     FRA, with one exception, has jurisdiction over all 
railroads regardless of the type of equipment they use, their 
connection to the general railroad system of transportation, or their 
status as a common carrier engaged in interstate commerce. FRA will, 
for example, assert jurisdiction over high-speed intercity rail service 
even if completely separated from the general railroad system that now 
exists and magnetic levitation systems that are not urban rapid 
transit.
     Commuter and other short-haul railroad passenger 
operations in a metropolitan or suburban area (except for one type of 
short-haul operation, i.e., urban rapid transit) are railroads within 
FRA's jurisdiction whether or not they are connected to the general 
railroad system. For operations on or over the general system, the 
commuter/rapid transit distinction has no jurisdictional relevance--all 
general system operations are within FRA's exercise of jurisdiction. 
Because the only urban rapid transit operations that FRA intends to 
cover under this rule are those on the general system, there is no need 
to expand on the commuter/rapid transit distinction here.
     Rapid transit operations in an urban area that are not 
connected to the general railroad system are not within FRA's 
jurisdiction. This is the sole exception to FRA's jurisdiction over all 
railroads. There is no exception for ``light rail,'' a term not found 
in the statute. Although FRA could assert jurisdiction over a rapid 
transit operation based on any connection it has to the general 
railroad system, FRA believes there are certain connections that are 
too minimal to warrant the exercise of its jurisdiction. For example, a 
rapid transit system that has a switch for receiving shipments from the 
general system railroad is not one over which FRA would assert 
jurisdiction. This assumes that the switch is used only for that 
purpose. In that case, any entry onto the rapid transit line by the 
freight railroad would be for a very short distance and solely for the 
purpose of dropping off or picking up cars. In this situation, the 
rapid transit line is in the same situation as any shipper or 
consignee; without this sort of connection, it cannot receive goods by 
rail. Absent a change in policy, FRA will not attempt to apply this 
rule to rapid transit systems with these sorts of connections. However, 
if such a system is properly considered a rail fixed guideway system, 
FTA's rules (49 CFR 659) will apply to it.
     Rapid transit operations in an urban area that are 
connected to the general railroad system of transportation are within 
FRA's jurisdiction. FRA will assert jurisdiction over a rapid transit 
operation that is conducted on or over the general system. It does not 
matter that the rapid transit operation occupies the track only at 
times when the freight, commuter, or intercity passenger railroad that 
shares the track is not operating. While such time separation could, as 
explained in the 1997 NPRM, provide the basis for waiver of certain of 
FRA's rules, it does not mean that FRA will not assert jurisdiction. 
However, FRA will assert jurisdiction over only the portions of the 
rapid transit system that are conducted on the general system. For 
example, a rapid transit line that operates over the general system for 
a portion of its length but has significant portions of street railway 
that are not part of the general system would be subject to FRA's rules 
only with respect to the general system portion. The remaining portions 
would not be subject to FRA's rules. If the non-general system portions 
of the rapid transit line are considered a ``rail fixed guideway 
system'' under 49 CFR part 659, those rules, issued by FTA, would apply 
to them.
    As discussed above, it is the nature and location of the railroad 
operation, not the nature of the equipment, that determines whether FRA 
has jurisdiction under the safety statutes. Light rail operations that 
operate on the general system are always within that statutory 
jurisdiction. They are not within the sole statutory exception (urban 
rapid transit not connected to the general system) so they are 
railroads under the safety statutes. The greatest risk inherent in the 
shared use of the trackage is a collision between the light rail 
equipment and conventional equipment. The light rail vehicles are not 
designed to withstand such a collision with far heavier equipment. Were 
such a crash to occur with either or both equipment operating at high 
speeds, the consequences for passengers in the light rail vehicle(s) 
would likely be catastrophic.
    In the past, FRA has withheld exercise of its jurisdiction with 
respect to light rail operations over general system trackage where 
there was full time separation (freight operations limited to nighttime 
hours). The recent proliferation of proposals for light rail operations 
on the general system and the issuance of this final rule establishing 
the first comprehensive Federal standards for railroad passenger 
equipment call for changing this approach. Moreover, recent 
developments have indicated that FRA's current approach assumes a 
degree of separation that is unlikely to be maintained over time. 
Proposals for limited overlap, deadhead movement of transit equipment, 
etc., have demonstrated the complexity of using common trackage for 
disparate purposes. Accordingly, FRA has asked that new transit starts 
that propose using the general rail system trackage submit appropriate 
waiver applications to FRA; such applications should be submitted as 
early as possible. As previously noted, FTA and FRA are working toward 
the development of a joint policy statement on the appropriate scope of 
FRA's jurisdiction over ``light rail'' that shares rights-of-way with 
conventional railroads. The agencies foresee an approach intended to dovetail FRA's safety regulations with the FTA state safety 
oversight program where that is appropriate and FTA jurisdiction is 
applicable. The agencies would work together to ensure coordination of 
decision making. Before general implementation, the policy statement 
will be discussed with the affected communities of interest and may be 
published (together with any needed regulatory amendments) for formal 
comment in the Federal Register. At the same time this joint policy is 
issued, FRA plans to issue a separate proposed statement of policy 
that, among other things, will provide guidance on how light rail 
operators may seek waivers of FRA's rules. In the interim, the policy 
expressed in this preamble will guide FRA's actions with respect to 
this rule (subject to an appropriate period of consultation and 
adjustment with respect to the two time-separated shared use projects 
currently in operation).
    FRA does, however, recognize that lower speed rail operations that 
do not operate over highway-rail grade crossings and that totally 
preclude the sharing of trackage between light rail equipment and 
conventional equipment provide an operating environment that does not 
require the structural standards needed for commingled passenger and 
freight operations. Accordingly, the final rule (in Sec. 238.201) 
provides that passenger equipment, including locomotives, are not 
subject to the structural requirements of the rule if they are used 
exclusively on a rail line (A) with no public highway-rail grade 
crossings, (B) on which no freight operations occur at any time, (C) on 
which only passenger equipment of compatible design is utilized, and 
(D) on which trains operate at speeds no higher than 79 mph. FRA will 
discuss with the Working Group in Phase II of the rulemaking what 
structural standards are appropriate for such operations.

B. Static End Sstrength Requirement: Application to Existing Equipment

    In Sec. 238.203 of the 1997 NPRM, FRA generally proposed that on or 
after January 1, 1998, all passenger equipment shall be required to 
have a minimum static end strength (or ``buff'' or ``compressive'' 
strength) of 800,000 pounds. As some commenters recognized, FRA 
intended the date of January 1, 1998, to represent the effective date 
of the final rule. Yet, in light of the actual publication date of the 
1997 NPRM, the date of January 1, 1998, appeared anachronistic, and FRA 
should have modified the NPRM to make its intent more explicit. A 
number of commenters nonetheless raised concerns with the application 
of this section-whether the date were January 1, 1998, or later-since 
FRA proposed to apply the static end strength requirement to existing 
passenger equipment.
    APTA recommended, in its comments on the rule, that FRA modify the 
proposal so that the requirement apply on or after the effective date 
of the final rule to passenger equipment placed in service for the 
first time. APTA stated that the AEM-7 locomotive and the RTG model 
turbo train could not meet the requirement as proposed. APTA estimated 
that the purchase of replacement equipment could take up to four years 
and would cost more than $500 million.
    Amtrak commented that the proposed requirement to have buff loading 
apply to the existing rail fleet is not justified based on the 
industry's experience. Amtrak did agree that, in order to move the 
industry forward on crash energy management, new equipment must be 
built to a uniform strength standard. Amtrak stated that it currently 
operates AEM-7 locomotives that do not meet the proposed requirement. 
In addition, Amtrak was not sure it had available the appropriate 
technical information on whether its fleet of Heritage equipment 
conformed to the proposal. At the public hearing, though, Amtrak did 
explain that it had no evidence that its fleet of passenger cars did 
not comply with the proposal. (See transcript of public hearing, pages 
173-174).
    The Northeast Illinois Regional Commuter Railroad Corporation 
(Metra), in its comments on the rule, recommended that the static end 
strength provision apply only to new passenger equipment orders placed 
on or after January 1, 1998. Metra explained that it was awaiting 
delivery of cars under construction, that some of the cars may be built 
after January 1, 1998, and that a change order would cause a series of 
problems.
    In commenting on the 1997 NPRM, Talgo expressed concern that FRA 
proposed applying the static end strength requirement to existing 
passenger equipment in service on or after January 1, 1998. Talgo 
stated that this proposal would render unusable its two trainsets then 
in service on lease to the WDOT. Additionally, Talgo explained that it 
was well underway in manufacturing five new trainsets--two for the 
WDOT, one for Amtrak, and two others for future sale in the U.S. 
market--that would likewise be rendered unusable in their current form. 
Talgo stated that neither it nor any other manufacturer of rail 
equipment could have anticipated the proposed regulation's immediate 
application of broad structural design changes. Citing discussions 
within the Working Group and the comments of other parties, Talgo 
asserted that other passenger equipment manufacturers and operators 
likewise assumed that modifications in basic structural standards would 
be applicable only to equipment purchased after January 1, 1999, or 
placed in service after January 1, 2001, and that much existing 
passenger equipment operating in the United States would be unable to 
comply with the structural requirements scheduled for early 
implementation. Talgo also stated that FRA did not properly identify 
the economic impact of its proposal on Talgo equipment. Talgo requested 
that FRA modify the rule so that the static end strength requirement 
and other structural requirements apply only to passenger equipment 
ordered on or after January 1, 1999, or placed in service for the first 
time on or after January 1, 2001.
    The WDOT commented that FRA's proposal appeared to be directly 
targeted at the State of Washington and Amtrak's purchase of Talgo 
trains under manufacture. WDOT stated that imposition of the proposal 
in the middle of the construction process, without ``grandfathering,'' 
appeared to reveal an effort to make its Talgo equipment non-compliant. 
WDOT recommended that the rule be modified so that the static end 
strength provision only apply to passenger equipment ordered after 
January 1, 1999. The NARP, in its comments on the proposed rule, shared 
WDOT's opposition to imposing the static end strength requirement on 
existing passenger equipment, and it recommended instead applying the 
requirement under a time-table similar to that proposed generally for 
structural requirements--i.e., ordered on or after January 1, 1999, or 
placed in service for the first time on or after January 1, 2001. The 
NARP believed that the proposal could cancel WDOT's rail passenger 
program and thereby lead to countless, unnecessary highway deaths 
involving people that otherwise would have been on a WDOT passenger 
train.
    In commenting on the 1997 NPRM, the State of Vermont Agency of 
Transportation (VAOT) explained that it was in the process of 
implementing new passenger rail service with used rail diesel cars 
manufactured by Budd. The cars were originally built to meet the AAR 
buff strength requirement, according to the VAOT, but it could not 
assure that the vehicles meet the standards today. The VAOT requested 
that the Budd cars be grandfathered because they were manufactured to 
AAR standards, built prior to April 1, 1956, and have a proven service record. The VAOT believed it fair for 
the rulemaking to grandfather these cars as being compliant at the time 
ordered by VAOT. Similarly, the NYDOT recommended in its comments on 
the proposed rule that the structural requirements apply only to new 
equipment, citing its intent to operate rebuilt turboliner equipment in 
the Empire Corridor through a cooperative effort with FRA and Amtrak. 
Further, the North Carolina Department of Transportation (NCDOT) 
expressed concern in its comments on the proposed rule that the 
rulemaking would require its fleet of rebuilt passenger, food service 
and specialty cars to undergo additional renovations and retrofitting 
to comply with the rule. NCDOT commented that its trainsets were 
designed to meet the passenger equipment safety standards in effect at 
the time of their order, and that the proposed regulation has the 
potential to thwart its rail passenger initiative.
    In the final rule, FRA is retaining the 800,000-pound static end 
strength requirement for most new and existing passenger equipment. 
However, the final rule does provide that the static end strength 
standard and other structural standards do not apply to equipment used 
exclusively on a rail line (A) with no public highway-rail grade 
crossings, (B) on which no freight operations occur at any time, (C) on 
which only passenger equipment of compatible design is utilized, and 
(D) on which trains operate at speeds no higher than 79 mph. See 
Sec. 238.201. Furthermore, the final rule creates a presumption that 
passenger equipment in service in the United States as of the effective 
date of the final rule meets the 800,000-pound static end strength 
requirement, unless the railroad operating the equipment knows, or FRA 
can show, that the equipment was not built to this 800,000-pound 
strength requirement. See Sec. 238.203(b). Under this formulation, for 
example, Amtrak's fleet of Heritage passenger cars are presumed to 
comply with the static end strength requirement on the basis of 
Amtrak's testimony at the public hearing on the NPRM.
    FRA has decided that it is in the best interest of safety to apply 
the buff strength requirement to existing passenger equipment and 
effectively regulate the use of passenger equipment not possessing at 
least 800,000 pounds of buff strength as specified in this rule. As 
noted, the operating environment in the United States requires railroad 
passenger equipment to operate commingled with heavy and long freight 
trains, often over track with frequent grade crossings used by heavy 
highway equipment. FRA has serious concerns about the operation in such 
an environment of passenger equipment not possessing a minimum buff 
strength of 800,000 pounds. As a result, and in response to Talgo's and 
WDOT's comments on this rule, FRA cannot avoid directly addressing the 
current operation in the United States of the passenger trainsets 
manufactured by Talgo unless FRA disregards its duty to provide for the 
safety of rail passenger transportation. Since FRA has raised the issue 
of compressive strength on passenger equipment with all affected 
parties since well before the inception of this rulemaking, it would 
strain credulity to assert that a requirement for 800,000 pounds of 
compressive strength could truly be a matter of surprise in a 
rulemaking on railroad passenger equipment safety.
    Making the 800,000-pound compressive strength requirement 
applicable to existing passenger equipment creates a bright line that 
will help bring needed clarity to the growing number of situations 
where light rail equipment is likely to be used on the general railroad 
system of transportation. Operation on the general system of this 
equipment, which is built to standards far lower than the 800,000-pound 
standard specified in this rule, presents enormous safety risks to the 
occupants of the equipment, absent imposition of strict conditions 
designed to virtually eliminate the risk of a light rail/conventional 
equipment collision. The need to address these risks as a condition of 
operation will be made perfectly clear by imposition of the buff 
strength requirement across the board. Light rail operators will have 
to seek a waiver of the requirement and will have to plan their 
operations in such a way as to maximize the likelihood of obtaining 
such a waiver. (A petition for grandfathering approval of the equipment 
could also be filed in certain cases, as discussed below.)
    In regulating the use of passenger equipment not possessing a 
minimum buff strength of 800,000 pounds as specified in this final 
rule, the rule permits non-compliant passenger equipment to be 
continued in service for a six-month period following publication of 
the rule in order to permit the filing of a grandfathering petition 
with FRA; if a petition is filed within this six-month period, 
operation may continue for up to an additional six months while the 
petition is being processed. Grandfathering approval of non-compliant 
equipment is limited to usage of the equipment on a particular rail 
line or lines. Before grandfathered equipment can be used on another 
rail line, a railroad must first file and secure approval of a 
grandfathering petition for such usage. See discussion under 
Sec. 238.203 for the contents of the petition and the approval process. 
FRA will approve a petition for ``grandfathering'' if it complies with 
the requirements of Sec. 238.203 and the proposed usage of the 
equipment is in the public interest and consistent with railroad 
safety. Amtrak and WDOT may file petitions for grandfathering approval 
of their Talgo-manufactured passenger equipment, in accordance with the 
requirements of Sec. 238.203.

C. United States International Treaty Obligations

    The United States is a party to the General Agreement on Tarriffs 
and Trade (GATT). One of the GATT agreements is the Agreement on 
Technical Barriers to Trade (TBT), originally concluded in 1979 and 
approved by the United States Congress in the Trade Agreements Act of 
1979, Pub. L. No. 96-39 (July 26, 1979). A new TBT Agreement was 
reached as a result of the 1994 Uruguay Round of GATT multinational 
trade negotiations, and subsequently approved by the United States 
Congress in the Uruguay Round Agreements Act, Pub. L. No. 103-465 
(December 8, 1994). The TBT Agreement seeks to avoid creating 
unnecessary obstacles to trade, while recognizing the right of 
signatory countries to establish and maintain technical regulations for 
the protection of human, animal, and plant life or health. The TBT 
Agreement has been codified into law at 19 U.S.C. 2531 et seq.
    In commenting on the NPRM, Talgo believed that a number of the 
proposed structural standards were inconsistent with the TBT Agreement 
in that domestic industry would be favored by adopting the de facto 
standards of North American passenger equipment. Talgo stated that many 
requirements in the proposed rule seem to have been developed 
exclusively with domestically-manufactured equipment in mind, 
``arbitrarily making compliance with the rules by other, non-U.S. 
manufactured equipment--such as Talgo equipment--extremely difficult.'' 
Talgo also asserted that domestic industry would be favored under the 
implementation schedule of the rule by noting FRA's statements in the 
NPRM that several of the proposed structural requirements chosen for 
early implementation reflect the current construction practice for 
North American passenger equipment. Talgo contended that the 
implementation schedule disregards that, solely because imported equipment has been 
designed differently, it cannot satisfy the requirements at once.
    FRA believes that this final rule is consistent with the United 
States' obligations under the TBT Agreement, and that Talgo's concerns 
arise, in part, from a misunderstanding of FRA's use of the term 
``North American passenger equipment.'' Article 2.1 of the TBT 
Agreement, cited by Talgo in its comments, states:

    Members shall ensure that in respect of technical regulations, 
products imported from the territory of any Member shall be accorded 
treatment no less favorable than that accorded to like products of 
national origin and to like products originating in any other 
country.

A ``technical regulation'' refers to mandatory product standards, and 
FRA agrees with Talgo that the structural standards in this rule fall 
under this definition. See Annex 1 to the TBT Agreement, ``Terms and 
Their Definitions for the Purpose of this Agreement, 1.'' However, the 
impact of this rule on Talgo passenger equipment, specifically its 
passenger cars, has nothing to do with the fact that the equipment 
originates in a foreign country, Spain, as opposed to the United 
States.
    Through this rule, FRA is not favoring rail passenger cars that are 
domestically manufactured over those of foreign origin since, as far as 
FRA is aware, there is currently no domestic manufacturer of rail 
passenger cars in the United States. (The General Electric Company and 
the General Motors Corporation manufacture locomotives in the United 
States--not rail passenger cars; and neither entity is being favored by 
FRA in this rule over foreign manufacturers of locomotives.) Of course, 
a significant portion of the nation's rail passenger car fleet--the 
oldest portion--has been manufactured in the United States. Yet, over 
the years, manufacturers from Japan, Canada, and other countries have 
exported passenger cars to the United States for service on the 
nation's railroads. Overall, these imported rail passenger cars have 
possessed the same minimum structural strength as their domestic 
forebearers; they have been constructed to standards that are common to 
North American passenger equipment, i.e., passenger equipment operated 
in North America. The five Talgo trainsets noted earlier have not been 
so constructed. FRA's use of the term North American passenger 
equipment (or United States passenger equipment, for that matter) was 
not intended to refer to passenger equipment manufactured in North 
America in distinction to passenger equipment manufactured elsewhere.
    Talgo also commented that, to a significant extent, the proposed 
requirements were design-based and phrased in a number of places in 
variables dependent on design rather than performance. In this regard, 
Talgo believed the proposed rule violates Article 2.8 of the TBT 
Agreement, which states: ``Wherever appropriate, Members shall specify 
technical regulations based on product requirements in terms of 
performance rather than design or descriptive characteristics.'' Talgo 
asserted that the rule can and should be stated in terms of variables 
relating to the performance of the equipment rather than its design, 
and that the rule should accommodate different engineering designs, 
such as its articulated, lightweight trainsets.
    The principal structural requirement of the final rule, which 
existing Talgo-manufactured passenger cars do not meet, is in fact a 
performance-based requirement. As further specified in Sec. 238.203, 
the rule requires that new and existing passenger cars must possess a 
minimum static end strength of 800,000 pounds. The rule does not 
dictate how a passenger car must be constructed to meet this 
requirement, as long as the car can resist the specified 800,000-pound 
load. This formulation is consistent with the requirements of 19 U.S.C. 
2532(3), which states:

    Performance Criteria.--Each Federal agency shall, if 
appropriate, develop standards based on performance criteria such as 
those relating to the intended use of a product and the level of 
performance that the product must achieve under defined conditions, 
rather than on design criteria, such as those relating to physical 
form of the product or the types of material of which the product is 
made.

(Of course, the rule does require that the body structure of a 
passenger car be designed, to the maximum extent possible, to fail by 
buckling or crushing, or both, of structural members when overloaded in 
compression rather than by fracture of structural members or failure of 
structural connections. See Sec. 238.203(c). Yet, in any regard, FRA 
believes it unsafe to design a passenger car to fail first by fracture 
of structural members or failure of structural connections, as the 
ability of the car structure to absorb collision energy is negated.)
    FRA recognizes that the five Talgo trainsets were designed to 
international standards that require lesser compressive strength. Talgo 
has pointed out that these trainsets will be configured in the same 
manner as two leased trainsets formerly operated in the State of 
Washington. These trains are intended to be pulled by a conventional 
locomotive and have unoccupied units at the front and rear of the 
trainsets which are available to absorb initial crash energy. Talgo 
contends that this configuration provides equivalent protection from 
loss of occupied volume in a rear-end or head-on collision when 
compared with conventional cars which would be occupied by passengers 
or crew. FRA has provided a process for WDOT and others to secure 
grandfathering approval regarding the compressive strength requirement 
for passenger equipment placed in use prior to November 8, 1999, as 
previously noted. However, as explained below, FRA is unable to relax 
the minimum compressive strength requirement for passenger equipment 
simply on the basis of train configuration, since to do so would 
diminish the safety provided for the rail travelling public as a whole.
    FRA believes the minimum static end strength requirement in the 
final rule is not inconsistent with the TBT Agreement, in that it 
fulfills FRA's objective of protecting human safety and only restricts 
the use of equipment not meeting that objective because of the 
performance of the equipment--not because of the origin of the 
equipment. In this regard, 19 U.S.C. 2531(b) provides in part:

    No standards-related activity of any * * * Federal agency * * * 
shall be deemed to constitute an unnecessary obstacle to the foreign 
commerce of the United States if the demonstrable purpose of the 
standards-related activity is to achieve a legitimate domestic 
purpose including * * * the protection of legitimate health or 
safety * * * and if such activity does not operate to exclude 
imported products which fully meet the objectives of such activity.

    Having a passenger car possess a minimum compressive strength of 
800,000 pounds, along with other features, has evolved as a result of a 
long history of efforts by railroads and suppliers to learn the hard 
lessons taught by a difficult operating environment in the United 
States. Passenger train collisions and derailments may occur in a 
variety of different scenarios and implicate structural features of 
passenger equipment in similarly numerous ways. The rule cannot be 
applied in a general way to both (1) except any consist of passenger 
cars from the same compressive strength requirements applicable to all 
other passenger cars solely because the passenger car consist is 
buffered at each end by an unoccupied car and linked by articulated 
connections, and (2) provide for the safety of the occupants of passenger cars.
    Further, over the past few years, FRA has funded the most extensive 
and detailed research and analysis ever conducted by a public body in 
the United States concerning passenger car safety. That effort has 
included attention to international practice, particularly for high-
speed equipment. However, given existing data and analysis, FRA is 
unable to specify an alternate performance standard for passenger car 
compressive strength that would meet FRA's safety objectives and be 
equally applicable to passenger cars of any design that might some day 
be proffered for use in the United States. Nor, so far as FRA is aware, 
has any government or international body achieved a similar feat. 
Certainly doing so within the time available to issue standards under 
the 1994 statutory mandate would not have been possible.
    FRA notes that Talgo further commented that the early 
implementation dates proposed for certain structural requirements are 
inconsistent with Article 2.12 of the TBT Agreement in that a 
sufficient amount of time would not be provided foreign producers to 
modify their products' design or manufacturing processes to comply with 
new or significantly revised regulatory requirements. Article 2.12 
provides:

    Except in those urgent circumstances referred to in [Article 2] 
paragraph 10 [of the TBT Agreement], Members shall allow a 
reasonable interval between the publication of technical regulations 
and their entry into force in order to allow time for producers in 
exporting Members * * * to adapt their products or methods of 
production to the requirements of the importing Member.

In the final rule, the compressive strength requirement takes effect 
sooner than any other principal structural requirement, and it applies 
to both new and existing passenger cars and locomotives. If any 
provision of the rule were found to be inconsistent with Article 2.12 
of the TBT Agreement, then, it would most likely be the compressive 
strength requirement. However, the United States Congress has expressly 
authorized applying the requirements of the final rule to existing 
passenger cars, provided only that the basis for doing so is explained 
in the rulemaking document. See Section 215 of the Federal Railroad 
Safety Authorization Act of 1994, above, as codified at 49 U.S.C. 20133 
(``The Secretary may make applicable some or all of the standards 
established under this subsection [, 49 U.S.C. 20133(a),] to cars 
existing at the time the regulations are prescribed.''). FRA has made 
the compressive strength requirement applicable to existing passenger 
cars as explained in the preamble. However, through the submission of 
appropriate data and analysis, and approval by FRA as further specified 
in Sec. 238.203, discussed below, certain passenger cars not possessing 
the minimum compressive strength of 800,000 pounds may operate on the 
general railroad system of transportation, and the rule does afford a 
reasonable time for that information to be gathered.
    In providing the possibility that some equipment now being used 
which does not meet the buff strength requirement of this rule might 
continue to be used (``grandfathered''), FRA intends to permit only 
very safe operations to occur. Petitioners will need to demonstrate--
through a quantitative risk assessment that incorporates design 
information, engineering analysis of the equipment's static end 
strength and of the likely performance of the equipment in derailment 
and collision scenarios, and risk mitigation measures to avoid the 
possibility of collisions or to limit the speed at which a collision 
might occur, or both, that will be employed in connection with the 
usage of the equipment on a specified rail line or lines--that use of 
the equipment, as utilized in the service environment for which 
recognition is sought, is in the public interest and is consistent with 
railroad safety. In this regard, FRA notes that passenger equipment not 
possessing the minimum static end strength specified in this rule does 
not have the same capacity to absorb safely within its body structure 
the compressive forces that develop in a collision as equipment meeting 
the standard. The engineering analysis submitted by the petitioner 
should address how these forces will be dissipated in a manner that 
does not jeopardize occupant safety in collision scenarios.

D. Non-Conventional Passenger Equipment

    As noted above, commenters have requested that FRA specify design-
neutral or performance-based requirements so that the safety of all 
passenger equipment may be evaluated on the same basis. In comments in 
this docket, Talgo has suggested substituted (and reduced) force levels 
that it believes are appropriate for inclusion in the final rule in 
lieu of those proposed for truck-to-carbody attachment and anti-
climbing arrangements, for instance. As explained, FRA has specified 
the compressive strength requirement as fairly as we are able in 
consideration of the safety of the rail travelling public. FRA has also 
done so with respect to the other structural requirements in the rule.
    FRA recognizes that the existing Talgo trainsets presents unique 
challenges in terms of describing appropriate force levels in several 
regards. FRA understands that the Talgo trainsets are articulated, low-
floor trainsets with independently rotating wheels. The car bodies are 
made from light-weight aluminum extrusions. In contrast, the vast 
majority of passenger carrying equipment used on the nations's 
railroads is individually suspended, has automatic couplers, has a 
higher floor height above the rail, has wheels fixed to an axle, and is 
constructed with a steel underframe made up from fabricated members. 
FRA has conducted, and continues to conduct, research which addresses 
the influence of carbody construction, suspension configuration, and 
coupling arrangement on the crashworthiness, derailment tendency, and 
other safety-related aspects of Talgo and other non-conventional 
equipment.
    Developing safety regulations requires detailed technical knowledge 
of the system being regulated. At the time this rule is being written, 
FRA is unable to specify alternative performance-based standards with 
respect to the structural requirements in this rule that would meet 
FRA's safety objectives for passenger equipment of any design. Areas of 
particular technical concern with regard to the Talgo trainsets, which 
need to be resolved by FRA through an ongoing exchange of information, 
include the nature of its articulated connection and its potential to 
allow override in a collision, and the welding of the aluminum 
extrusions which make up the body shell. The Talgo tilt trainsets have 
characteristics that are unique, or nearly unique, that may either 
reduce or increase vulnerability in a derailment or collision. For 
instance, the articulated design of the trainset may tend to keep the 
train in line in the case of a derailment where the decelerations are 
reasonably uniform throughout the length of the train, preventing 
secondary impacts. On the other hand, the absence of major structural 
members in the floor of the passenger units could be a serious problem 
should the train be involved in a collision with freight train cars or 
lading that has fouled the track on which the passenger train is 
travelling, as a result of the freight train having derailed. In this 
regard, the absence of major structural members in the floor of the 
Talgo passenger units increases their vulnerability to penetration by 
the trainset's trucks, should the trucks separate from the train.
    Historically, the United States industry requirement for a minimum 
compressive strength has reinforced a pattern of passenger car 
construction resulting in use of stiff, quite substantial underframes 
that have served other practical purposes in derailments and 
collisions, including prevention of car body buckling, prevention of 
harm to passengers from failure of the floor structure and entry of 
debris, and resistance to penetration of the car from the side where 
the primary impact was at the floor level. Both with respect to 
compressive strength and other structural requirements that the Talgo 
trainset may not be able to meet, it is important to ensure that 
alternative means of achieving crashworthiness are just as successful 
as the standards described in this final rule.
    Creating alternative performance-based standards for a particular 
type of passenger equipment requires a very early dialogue and 
technical information exchange. In the summer of 1995, FRA convened the 
first meeting of equipment manufacturers (including representatives of 
Canadian, European and Japanese consortia) to discuss passenger safety 
standards. That meeting led to designation of equipment manufacturer 
representatives as associate members of the Passenger Equipment Safety 
Standards Working Group. Although notified along with a number of other 
manufacturers of passenger equipment, Talgo representatives did not 
participate in the process. (For its part, the WDOT did not formally 
indicate to FRA an interest in participating in the rulemaking until 
after the Working Group had tentatively agreed on the structural 
standard proposals--FRA received a letter from the WDOT commenting on 
the ANPRM on September 4, 1996. However, AASHTO had participated from 
the beginning of the rulemaking.) Talgo did not enter the discussions 
directly until publication of the NPRM in September of 1997, and was 
still in the process of providing engineering data through October of 
1998. Given the timing of this latest submission of data to FRA, 
approximately ten-months after the close of the public comment period 
on the NPRM, FRA has not had the opportunity to fully evaluate the 
information provided by Talgo for purposes of this rule.
    FRA appreciates Talgo's recent undertakings to conform any future 
trainsets (beyond the five trainsets noted earlier) built for North 
American service to the 800,000-pound static end strength requirement 
and any other applicable requirements in this rule. FRA will be pleased 
to work with Talgo and members of the Working Group in Phase II of the 
rulemaking to determine whether different performance-based regulations 
are appropriate. In the interim, FRA has provided a special approval 
process in Sec. 238.201 for considering whether the new generation of 
Talgo equipment and any other passenger equipment of special 
construction provide an equivalent level of safety with the Tier I 
standards (other than the static end strength requirements) contained 
in the final rule. See the discussion in the section-by-section 
analysis of Sec. 238.201 for an explanation of the special approval 
process.

E. System Safety

    FRA believes that passenger railroads should carefully evaluate 
their operations with a view toward enhancing the safety of those 
operations. The importance of formal safety planning has been 
recognized in Emergency Order No. 20 (61 FR 6880; Feb. 22, 1996) and 
the rule on passenger train emergency preparedness (63 FR 24630; May 4, 
1998). In furtherance of safety planning, the 1997 NPRM contained a set 
of system safety requirements to be applied to all intercity passenger 
and commuter rail equipment. See 62 FR 49760. FRA intended that each 
individual passenger railroad be required to develop a system safety 
plan and a system safety program tailored to its specific operation, 
including train speed. FRA explained, however, that the Working Group 
did not reach consensus on system safety requirements for