Securement of Unattended Equipment, 47349-47386 [2015-19002]
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Vol. 80
Thursday,
No. 151
August 6, 2015
Part XIV
Department of Transportation
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Federal Railroad Administration
49 CFR Part 232
Securement of Unattended Equipment; Final Rule
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Federal Register / Vol. 80, No. 151 / Thursday, August 6, 2015 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 232
[Docket No. FRA–2014–0032, Notice No. 2]
RIN 2130–AC47
Securement of Unattended Equipment
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
FRA amends the brake system
safety standards for freight and other
non-passenger trains and equipment to
strengthen the requirements relating to
the securement of unattended
equipment. Specifically, FRA codifies
many of the requirements already
included in its Emergency Order 28,
Establishing Additional Requirements
for Attendance and Securement of
Certain Freight Trains and Vehicles on
Mainline Track or Mainline Siding
Outside of a Yard or Terminal. FRA
amends existing regulations to include
additional securement requirements for
unattended equipment, primarily for
trains transporting poisonous by
inhalation hazardous materials or large
volumes of Division 2.1 (flammable
gases), Division 3 (flammable or
combustible liquids, including crude oil
and ethanol), and Class 1.1 or 1.2
(explosives) hazardous materials. For
these trains, FRA also provides
additional communication requirements
relating to job briefings and securement
verification. Finally, FRA requires all
locomotives left unattended outside of a
yard to be equipped with an operative
exterior locking mechanism. Attendance
on trains is required on equipment not
capable of being secured in accordance
with the proposed and existing
requirements.
SUMMARY:
This final rule is effective
October 5, 2015. Petitions for
reconsideration must be received on or
before September 25, 2015. Petitions for
reconsideration will be posted in the
docket for this proceeding. Comments
on any submitted petition for
reconsideration must be received on or
before November 9, 2015.
ADDRESSES: Petitions for reconsideration
and comments on petitions for
reconsideration: Any petitions for
reconsideration or comments on
petitions for reconsideration related to
this docket may be submitted by any of
the following methods:
• Web site: Federal eRulemaking
Portal, https://www.regulations.gov.
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DATES:
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Follow the online instructions for
submitting documents.
• Fax: 202–493–2251.
• Mail: Docket Management Facility,
U.S. Department of Transportation, 1200
New Jersey Avenue SE., Room W12–
140, Washington, DC 20590.
• Hand Delivery: Room W12–140 on
the Ground level of the West Building,
1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5
p.m. ET, 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. Note
that all submissions received will be
posted without change to https://
www.regulations.gov including any
personal information. Please see the
Privacy Act heading in the
‘‘Supplementary Information’’ section of
this document for Privacy Act
information related to any submitted
comments or materials.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov at any time or to
Room W12–140 on the Ground level of
the West Building, 1200 New Jersey
Avenue SE., Washington, DC between 9
a.m. and 5 p.m. Monday through Friday,
except Federal Holidays.
FOR FURTHER INFORMATION CONTACT:
Steven Zuiderveen, Railroad Safety
Specialist, Motive & Power Equipment
Division, Office of Safety Assurance and
Compliance, Federal Railroad
Administration, RRS–14, West Building
3rd Floor, 1200 New Jersey Avenue SE.,
Washington, DC 20590 (telephone: 202–
493–6337); Jason Schlosberg, Trial
Attorney, Office of Chief Counsel, RCC–
10, Mail Stop 10, West Building 3rd
Floor, Room W31–207, 1200 New Jersey
Avenue SE., Washington, DC 20590
(telephone: 202–493–6032).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary
Information
I. Executive Summary
II. Background
´
A. Lac-Megantic Derailment
1. Facts
2. Response
B. Safety Concerns Arising Out of the Lac´
Megantic Derailment and Other Train
Incidents Involving Flammable Liquids
and Gases and Poison Inhalation Hazard
Materials.
C. Current Securement Regulations and
Related Guidance
D. Emergency Order 28 and Related
Guidance
E. RSAC Overview
F. NPRM and Comments
III. Rescinding Emergency Order 28
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IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and
DOT Regulatory Policies and Procedures
Regulatory Flexibility Act and Executive
Order 13272
B. Paperwork Reduction Act
C. Federalism
D. International Trade Impact Assessment
E. Environmental Assessment
F. Unfunded Mandates Reform Act of 1995
G. Energy Impact
H. Privacy Act
I. Executive Order 12898 (Environmental
Justice)
J. Executive Order 13175 (Tribal
Consultation)
I. Executive Summary
Purpose of the Regulatory Action
While FRA’s existing securement
regulations have been successful in
mitigating risks associated with the
unintended movement of unattended
equipment, FRA recognizes that—
particularly in light of certain incidents
´
like the 2013 accident in Lac-Megantic,
Quebec, Canada—additional
requirements are warranted when such
equipment includes certain hazardous
materials that can contribute to highconsequence events. To address these
concerns, FRA issued Emergency Order
28, 78 FR 48218, Aug. 7, 2013, engaged
in proceedings with the Railroad Safety
Advisory Committee to draft
recommended regulations, and issued a
responsive notice of proposed
rulemaking (NPRM) and this instant
final rule. FRA is issuing this final rule
pursuant to the authority granted to the
Secretary of Transportation in 49 U.S.C.
20102–20103, 20107, 20133, 20141,
20301–20303, 20306, 21301–20302,
21304; 28 U.S.C. 2461, note; which the
Secretary has delegated to the
Administrator of FRA pursuant to 49
CFR 1.89.
Summary of the Major Provisions of the
Regulatory Action
In this proceeding, FRA issues
requirements to ensure that each
locomotive left unattended outside of a
yard is equipped with an operative
exterior locking mechanism and that
such locks be applied on the controlling
locomotive cab door when a train is
transporting tank cars loaded with
certain hazardous materials. This rule
provides that such hazardous materials
trains may only be left unattended on a
main track or siding if justified in a plan
adopted by the railroad, accompanied
by an appropriate job briefing, and
proper securement is made and verified.
This rule also requires additional
verification of securement in the event
that a non-railroad emergency responder
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may have been in a position to have
affected the equipment.
Costs and Benefits of the Proposed
Regulatory Action
In this rule, the benefits ($1,163,669 at
a 7% discount, $1,579,240 at a 3%
discount) outweigh the costs ($86,685 at
a 7% discount, $99,909 at a 3%
discount), with total net benefits over 20
years of $1,076,984 at a 7% discount (or
$95,009 annualized) and $1,478,331 at a
3% discount (or $96,538 annualized).
Discounted value
Discounted values
Discount factor
7%
3%
Costs
Attending Trains .......................................................................................................................................................
Installing Locks ........................................................................................................................................................
$36,685
50,000
$49,909
50,000
Total Costs .......................................................................................................................................................
86,685
99,909
Reduced Vandalism .................................................................................................................................................
Reduced Recordkeeping .........................................................................................................................................
180,873
982,786
250,666
1,328,573
Total Benefits ....................................................................................................................................................
1,163,669
1,579,240
Benefits
Discounted value
Discounted values net benefits
Discount factor
7%
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Total .........................................................................................................................................................................
Annualized ...............................................................................................................................................................
II. Background
In 2001, FRA issued regulations
governing the securement of unattended
equipment. 66 FR 4104, Jan. 17, 2001.
These regulations have been effective in
protecting against the risk of rolling
equipment. Over the last few years,
there has been a significant increase in
the volume of rail traffic for certain
types of commodities, such as
petroleum crude oil (crude oil) and
ethanol, both of which are highly
flammable and often transported in
large unit or ‘‘key’’ trains, as defined in
the industry by the Association of
American Railroads (AAR). See AAR
Circular No. OT–55–N (Aug. 5, 2013),
available at https://www.boe.aar.com/
CPC-1258%20OT-55-N%208-5-13.pdf.
Since 2009, there have been a number
of serious rail accidents involving the
transportation of large quantities of
flammable liquids. A number of these
accidents involved trains transporting
large quantities of ethanol. However,
since 2011, there has been significant
growth in the rail transport of
flammable crude oil, and FRA has seen
a number of accident-related releases of
crude oil in that time. One significant
accident involving tank cars loaded
with crude oil was the July 6, 2013,
´
derailment in the town of Lac-Megantic,
Quebec, Canada. After reviewing the
facts related to this derailment, FRA
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concluded that additional action was
necessary to eliminate an immediate
hazard of death, personal injury, or
significant harm to the environment,
particularly in instances where certain
hazardous materials are involved. Thus,
FRA issued Emergency Order 28
requiring railroads to implement
additional procedures to ensure the
proper securement of equipment
containing certain types and amounts of
hazardous materials when left
unattended. See 78 FR 48213, Aug. 7,
2013. Subsequent to the issuance of
Emergency Order 28, FRA also enlisted
the assistance of the Railroad Safety
Advisory Committee (RSAC) to develop
recommendations regarding the
attendance and securement of railroad
equipment transporting certain
hazardous materials when left
unattended in light of the requirements
contained in Emergency Order 28.
´
A. Lac-Megantic Derailment
1. Facts
On July 6, 2013, in the town of Lac´
Megantic, Quebec, Canada, an accident
involving tank cars loaded with
petroleum crude oil occurred on track
owned by Montreal, Maine & Atlantic
Railway (MMA), a company
incorporated in the United States.
The Transportation Safety Board
(TSB) of Canada issued a report at the
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$1,076,984
95,009
3%
$1,479,331
96,538
conclusion of its investigation into the
incident, and the following is a
summary of the TSB’s factual findings.1
On July 5, 2013, a locomotive engineer
was operating freight train MMA–002
on the Sherbrooke Subdivision from
Farnham (milepost 125.60) and at
around 10:50 p.m. stopped near Nantes,
Quebec (milepost 7.40) on its way to its
destination, Brownville Junction,
Maine. The train was approximately
4,700 feet long, weighed over 10,000
tons, and included a locomotive consist
of 5 head-end locomotives and one VB
car (which served as a type of specialpurpose caboose), one box car (buffer
car), and 72 tank cars loaded with
approximately 7.7 million liters of
petroleum crude oil (UN 1267). The
locomotive engineer parked train
MMA–002 on the main line, on a
descending grade of 1.2%, attempted to
secure the train—including setting the
independent brake, but not the
automatic brake—and departed by
automobile, leaving the train
unattended. At around 11:40 p.m., a
local resident reported a fire on the
train. The local fire department was
called and responded with another
MMA employee. At approximately
1 Railway Investigative Report R13D0054, TSB,
July 6, 2013, available at https://www.tsb.gc.ca/eng/
rapports-reports/rail/2013/R13D0054/
R13D0054.pdf.
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midnight, the controlling locomotive
was shut down and the fire
extinguished. After the fire was
extinguished, the fire department and
the MMA employee left the site.
At approximately 1:00 a.m. the next
day (the early morning of July 6th), the
train began rolling and picking up speed
down the descending grade toward the
´
town of Lac-Megantic, Quebec, located
7.2 miles away and approximately 30
miles from the United States-Canada
border. At about 1:15 a.m., near the
center of town, the train derailed. The
locomotive consist, which separated
from the train, did not derail and
traveled an additional 1⁄2 mile before
stopping.
The derailment caused a release of 6
million liters of petroleum crude oil,
resulting in a large fire with multiple
explosions and 47 fatalities.2 There was
also extensive damage to the town, and
approximately 2,000 people were
evacuated from the surrounding area.
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2. Response
In response to this accident, Transport
Canada—the Canadian government
department responsible for regulating
transportation safety in Canada—issued
an emergency railroad directive on July
23, 2013.3 While Transport Canada
explained in the emergency directive
that the cause of the accident in Lac´
Megantic remained unknown, the
emergency directive stated that, ‘‘in
light of the catastrophic results of the
´
Lac-Megantic accident and in the
interest of ensuring the continued safety
and security of railway transportation,
there is an immediate need to clarify the
regime respecting unattended
locomotives on main track and sidings
and the transportation of dangerous
goods in tank cars using a one person
crew to address any threat to the safety
and security of railway operations.’’ As
such, Transport Canada exercised its
statutory emergency directive authority
to order railroad companies in Canada
to comply with certain requirements
related to unauthorized entry into
locomotive cabs, directional controls on
locomotives, the application of hand
brakes to cars left unattended for more
than one hour, setting of the automatic
2 See id.; see also Statistical Summary Railway
Occurrences 2013, TSB, pp. 2, 5, available at http:
//www.tsb.gc.ca/eng/stats/rail/2013/ssro-2013.pdf.
3 See Emergency Directive Pursuant to Section 33
of the Railway Safety Act, Safety and Security of
Locomotives in Canada, July 23, 2013, available at
https://news.gc.ca/web/article-en.do?nid=829609;
see also Rail Safety Advisor Letter—09/13,
Securement of Equipment and Trains Left
Unattended, Transport Canada (July 18, 2013),
available at https://www.tsb.gc.ca/eng/mediasmedia/sur-safe/letter/rail/2013/r13d0054/r13d0054617-09-13.asp.
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brake and independent brake on any
locomotive attached to cars that are left
unattended for one hour or less,
attendance related to locomotives
attached to loaded tank cars
transporting dangerous goods on main
track, and the number of crew members
assigned to a locomotive attached to
loaded tank cars transporting dangerous
goods on a main track or siding.
Also on July 23, 2013, Transport
Canada issued an accompanying order
pursuant to paragraph 19(a)(1) of the
Canadian Railway Safety Act directing
railroad companies in Canada to
formulate or revise certain railroad
operating rules, respecting the safety
and security of unattended locomotives,
uncontrolled movements, and crew size
requirements.4 The order provides that
rules should be based on an assessment
of safety and security risks, and shall at
a minimum ensure that the cab(s) of
unattended controlling locomotives are
secure against unauthorized entry;
ensure that the reverse levers
(commonly referred to as a ‘‘reversers’’)
of unattended locomotives are removed
and secured; prevent uncontrolled
movements of railway equipment by
addressing the application of hand
brakes; ensure the security of stationary
railway equipment transporting
dangerous goods; and provide for
minimum operating crew requirements
considering technology, length of train,
speeds, classification of dangerous
goods being transported, and other risk
factors.
The Railway Association of Canada
submitted proposed operating rules to
Transport Canada on November 20,
2013. Transport Canada accepted the
proposed rules submitted on December
26, 2013, making the operating rules
applicable to all railway companies
operating in Canada. See TC O 0–167.
As a result, railroads operating in
Canada are now required to comply
with Canadian Rail Operating Rules
(CROR) CROR 112, as amended.
CROR 62 pertains to ‘‘Unattended
engines.’’ The term ‘‘unattended’’ is
now defined in the CROR as ‘‘when an
employee is not in close enough
proximity to take effective action.’’ The
new Canadian requirements, applicable
to each engine left unattended outside
of an attended yard or terminal, requires
cab securement to prevent unauthorized
entry and removal of the reverser from
the engine when it does not have a high
idle feature and not in sub-zero
temperatures. See CROR 62 (TC O 0–
4 Railroads operating within Canada were at the
´
time of the Lac-Megantic derailment, and are
currently, required to comply with the Canadian
Rail Operating Rules that have been approved by
Transport Canada.
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167). Transport Canada also approved
expansive revisions to CROR 112, which
now provides minimum requirements,
acceptable methods, and factors to
consider for securing equipment while
switching en route or left unattended.
See CROR 112 (TC O 0–167).
´
In direct response to the Lac-Megantic
derailment, DOT began taking actions
consistent with Transport Canada to
ensure the safe transportation of
products by rail in the United States,
with a particular focus on certain
hazardous materials that present an
immediate danger for communities and
the environment in the event of a train
accident. In Emergency Order 28, FRA
sought to address the immediate
dangers that arise from unattended
equipment that is left unsecured on
mainline tracks.
FRA has decided that Emergency
Order 28 will sunset on the effective
date of this final rule. AAR and the
American Short Line and Regional
Railroad Association (ASLRRA) concur
in their comments. Until such time,
however, Emergency Order 28 will
remain in effect, as amended by FRA’s
August 27, 2013, letter approving with
conditions a joint petition for relief from
the AAR and the ASLRRA. Railroads are
required to comply with Emergency
Order 28, as amended, in addition to 49
CFR 232.103(n). As further discussed
below, once Emergency Order 28
sunsets upon the effective date of this
final rule, the requirements of the
Emergency Order that are not
promulgated in this final rule will no
longer apply. Emergency Order 28, as
amended, contains six securementrelated requirements governing when,
where, and how certain hazardous
materials tank cars may be left
unattended, including certain
communication requirements:
(1) A railroad must not leave equipment
unattended on a mainline outside of a yard
or terminal when the equipment includes a
minimum number of loaded tank cars
containing certain types of hazardous
materials, referred to as ‘‘Appendix A
Materials’’—5 or more tank cars containing
materials poisonous by inhalation (PIH),
including anhydrous ammonia and ammonia
solutions and/or 20 rail car loads of
flammable gases or liquids (e.g., crude oil
and ethanol)—until the railroad develops,
adopts, and complies with a plan that
identifies specific locations and
circumstances when such equipment may be
left unattended.5
(2) A railroad must develop a process for
securing unattended equipment containing
Appendix A Materials that includes: (a)
Locking the controlling locomotive cab or
5 AAR has voluntarily applied Emergency Order
28 to trains that have a single PIH materials tank
car.
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removing and securing the reverser and (b)
communication of pertinent securement
information to the dispatcher for recordation.
(3) Each railroad must review and verify,
and adjust, as necessary, existing procedures
and processes related to the number of hand
brakes to be set on all unattended trains and
equipment.
(4) Each railroad must require a job briefing
addressing securement for any job that will
impact or require the securement of any
equipment in the course in the course of the
work being performed.
(5) Each railroad must ensure that a
qualified railroad employee inspects all
equipment that any emergency responder has
been on, under, or between for proper
securement before the train or vehicle is left
unattended.
(6) Each railroad must provide notice to all
employees affected by Emergency Order 28.
See 78 FR 48224, Aug. 7, 2013.
Following a request from AAR and
ASLRRA, FRA granted partial relief
from Emergency Order 28’s dispatcher
communication requirement in certain
limited situations. FRA’s relief letter
provides that a railroad employee may
leave equipment unattended on a
mainline or siding without contacting
the train dispatcher when the employee
is actively engaged in switching duties
as long as the employee ensures that
there is an emergency application of the
air brakes, hand brakes are set in
accordance with 49 CFR 232.103(n), and
the employee has demonstrated
knowledge of FRA and railroad
securement requirements. See Letter
from Robert C. Lauby, Acting Associate
Administrator for Railroad Safety/Chief
Safety Officer, Federal Railroad
Administration, to Michael J. Rush,
Associate General Counsel, AAR, and
Keith T. Borman, Vice President and
General Counsel, ASLRRA, (Aug. 27,
2013), available at https://
rsac.fra.dot.gov/meetings/
20130829.php.
Additionally, FRA and the Pipeline
and Hazardous Materials Safety
Administration (PHMSA) jointly issued
a Safety Advisory to railroads and
commodity shippers detailing eight
recommended actions the industry
should take to better ensure the safe
transport of hazardous materials. See
Federal Railroad Administration Safety
´
Advisory 2013–06, Lac-Megantic
Railroad Accident and DOT Safety
Recommendations, 78 FR 48224, Aug. 7,
2013, available at https://
www.fra.dot.gov/eLib/details/L04720.
These recommendations include:
Reviewing the details and lessons
´
learned from the Lac Megantic accident;
reviewing crew staffing levels; removing
and securing the train’s ‘‘reverser’’ when
unattended; review of all railroad
operating procedures, testing and
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operating rules related to securing a
train; reviewing Transport Canada’s
directives to secure and safely operate a
train; and conducting a system-wide
assessment of security risks when a
train is unattended and identify
mitigation efforts for those risks.
Additionally, the Safety Advisory
recommends testing and sampling of
crude oil for proper classification for
shipment, as well as a review of all
shippers’ safety and security plans. FRA
also convened an emergency meeting of
FRA’s RSAC to begin the deliberative
process with FRA’s stakeholders,
including railroad management, railroad
labor, shippers, car owners, and others,
as the agency considers requirements in
Emergency Order 28 and
recommendations in the Safety
Advisory that should be made a part of
its regulations.6
On August 19, 2014, the TSB released
its Railway Investigation Report
R13D0054, citing 18 causal and
contributing factors, plus an additional
16 findings as to risk, concerning the
´
accident at Lac-Megantic. FRA believes
that it is taking—or has already taken—
action concerning each of those factors.
The TSB notably included in its list of
factors the MMA’s weak safety culture
and ineffective oversight on train
securement. The report also identified
factors relating directly to train
securement such as insufficient hand
brakes and improper hand brake test
applications. The requirements in this
final rule intend to enhance safety
culture and oversight that addresses
train securement. For instance, as
further discussed below, FRA is
mandating by regulation the
implementation of operating rules and
practices requiring that securement be
part of all relevant job briefings. This
final rule also requires verification with
a qualified person that equipment is
adequately and effectively secured in
accordance with the regulations before
being left unattended. These
requirements aim to increase the safety
dialog between railroad employees and
to provide enhanced oversight within
the organization. In doing so, these
6 The RSAC was given three tasks. In addition to
developing securement recommendations, it was
also tasked with developing recommendations
addressing issues relating to train crew size and
hazardous materials such as identification and
classification of hazardous materials, operational
controls, and handling of certain hazardous
materials shipments. The RSAC hazardous
materials working group was able to reach
consensus on amending the definitions of ‘‘residue’’
and ‘‘key train’’ and clarifying the jurisdiction
concerning loading, unloading, and storage of
hazardous materials before and during
transportation. These recommendations have been
provided to PHMSA, which has regulatory
authority over hazardous materials shipments.
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47353
communications should better ensure
that crew members apply the proper
number of hand brakes, and more
correctly apply hand brake tests, on
unattended equipment. Also notable
was the report’s findings as to risk that
states: ‘‘If trains are left unattended in
easily accessible locations, with
locomotive cab doors unlocked and the
reverser handle available in the cab, the
risk of unauthorized access, vandalism,
and tampering with locomotive controls
is increased.’’ This final rule directly
addresses this concern with
requirements relating to the installation
and use of locomotive exterior door
locks and reverser removal.
B. Safety Concerns Arising Out of the
´
Lac-Megantic Derailment and Other
Train Incidents Involving Flammable
Liquids and Gases and Poison
Inhalation Hazard Materials
The vast majority of hazardous
materials shipped by rail each year
arrive at their destinations safely and
without incident. Indeed, in calendar
year 2013, there were only 18 accidents
in which a hazardous material was
released (involving a total of 78 cars) out
of approximately 1.6 million shipments
of hazardous material transported in rail
tank cars in the United States. However,
´
the Lac-Megantic incident demonstrates
the substantial potential for danger that
exists when an unattended train rolls
away and derails resulting in the
sudden release of hazardous materials
into the environment. Although the Lac´
Megantic incident occurred in Canada,
the freight railroad operating
environment in Canada is similar to that
in the United States, and a number of
railroads operate in both countries.7
Freight railroads in the United States
also transport a substantial amount and
variety of hazardous materials,
including PIH materials, also known as
materials toxic by inhalation (TIH), and
explosive materials. Moreover, an
increasing proportion of the hazardous
materials transported by rail is classified
as flammable.8
7 As an example, MMA formerly operated in both
the United States and Canada, with approximately
510 miles of track in Maine, Vermont, and Quebec,
and the tank cars transporting the crude oil that
´
derailed in Lac-Megantic originated in the Williston
Basin of North Dakota. A discussion concerning the
applicable Canadian securement requirements can
be found above in the section titled ‘‘2. Response,’’
which addresses the actions taken by the United
States and Canada in direct response to the Lac´
Megantic incident.
8 PHMSA prescribes a comprehensive regulatory
safety system that categorizes hazardous materials
into nine hazard classes based on the type of
hazards presented by the materials. See 49 CFR
parts 172 and 173. Under PHMSA’s regulations,
crude oil, in most forms, meets the definition of a
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´
The MMA train in the Lac-Megantic
incident was transporting 72 carloads of
crude oil with five locomotives, a VB
car, and a loaded box car. A similar type
of train consist is commonly found on
rail lines in the United States, because
crude oil is often transported in solid
blocks or by a unit train consisting
entirely of tank cars containing crude
oil. Crude oil is generally classified by
an offeror as a Class 3 flammable liquid;
per PHMSA’s Hazardous Materials
Regulations (HMR), however, its
packing group can be I, II, or III
depending on the blend of constituent
crude oils.9 According to the AAR,
crude oil traffic increased 68-fold in the
United States between 2005 and 2013.
Much of this growth has occurred
because of developments in North
Dakota, as the Bakken formation in the
Williston Basin has become a major
source for oil production in the United
States. Texas also has contributed to the
growth of crude oil shipments by rail.
As a result, carloads of crude oil
increased from approximately 81,452 in
2011 to approximately 485,384 in 2013.
The Bakken crude oil from North Dakota
is primarily shipped via rail to refineries
located near the U.S. Gulf Coast—
particularly in Texas and Louisiana—or
to pipeline connections, most notably to
connections located in Oklahoma.
Crude oil is also shipped via rail to
refineries on the East Coast and West
Coast, and to a lesser extent, refineries
in other regions of the U.S.10
All indications from the U.S.
Department of Energy’s U.S. Energy
Information Administration (EIA) are
that rail capacity for Bakken crude oil
from the Williston Basin will continue
to expand to meet production.11 Rail
shipments from the North Dakota region
are forecast to increase over the next
‘‘Class 3’’ hazardous material, which signifies that
it is a flammable liquid. Ethanol, discussed below,
also is a Class 3 hazardous material. PIH materials,
referenced above, include ‘‘Class 2 and Division
2.3’’ gases and ‘‘Class 6, and Division 6.1’’ poisons
other than gases. Chlorine gas and anhydrous
ammonia are two examples of PIH materials
(Division 2.3) that are commonly transported by
rail.
9 PHMSA uses packing groups to categorize
hazardous materials according to the danger
presented. Hazardous materials in Packing Group I
present great danger; Packing Group II present
medium danger; and Packing Group III presents
minor danger. See 49 CFR 171.8.
10 See AAR’s May 2013 paper ‘‘Moving Crude Oil
by Rail’’, available online at: https://www.aar.org/
safety/Documents/Assets/Transportation_of_
Crude_Oil_by_Rail.pdf.
11 See EIA reports ‘‘Bakken crude oil price
differential to WTI narrows over last 14 months,’’
available online at: https://www.eia.gov/
todayinenergy/detail.cfm?id=10431; and ‘‘Rail
delivery of U.S. oil and petroleum products
continues to increase, but pace slows,’’ available
online at: https://www.eia.gov/todayinenergy/
detail.cfm?id=12031.
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two years (as are pipeline shipments).
Much of the near-term growth in rail
originations is a function of how quickly
rail car manufacturers can meet the
demand by producing new tank cars,
primarily for transporting Bakken crude
oil. The rise in rail originations in crude
oil is subject to changes in the number
of tank cars available, price of crude oil,
overall production of crude oil in that
region; and if, or how quickly,
additional pipeline capacity from that
region comes online. However, for the
foreseeable future, all indications are for
continued growth of rail originations of
crude in that region as new tank car
fleets come online to meet demand.
´
As demonstrated by the Lac-Megantic
derailment, in a high-consequence
incident, crude oil is problematic when
released because it is flammable. This
risk is compounded because it is
commonly shipped in large unit trains.
´
Subsequent to the Lac-Megantic
derailment, the United States has seen
at least three major rail-related incidents
involving crude oil unit trains that
evidence the dangerous results that can
occur when crude oil is not transported
safely. FRA recognizes that none of
these three derailments resulted from a
roll-away situation that would have
been addressed by this rule.
On April 30, 2014, there was
derailment near downtown Lynchburg,
Virginia, of an eastbound CSX
Transportation, Inc. (CSX) unit train
consisting of 105 tank cars loaded with
crude oil. Seventeen of the train’s cars
derailed. One of the tank cars was
breached, leading to a crude oil fire.
Emergency responders were forced to
evacuate approximately 400 individuals
and 20 businesses from the immediate
area. Additionally, three of the derailed
tank cars came to rest in the adjacent
James River, causing up to 30,000
gallons of crude oil to be spilled into the
river. The National Transportation
Safety Board (NTSB) and DOT both
investigated this accident and
determined that it was caused by a
sudden rail failure under the moving
train.
On December 30, 2013, a westbound
grain train derailed 13 cars near
Casselton, North Dakota, fouling main
track 2.12 Simultaneously, an eastbound
crude oil unit train was operating on
main track 2. The crude oil unit train
reduced its speed and collided with a
derailed car that was fouling, resulting
in the derailment of the head-end
12 This derailment currently is being investigated
by the National Transportation Safety Board
(NTSB), and information regarding this incident can
be found at the NTSB Web site. See https://
www.ntsb.gov/doclib/reports/2014/Casselton_ND_
Preliminary.pdf.
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locomotives and the first 21 cars of the
crude oil unit train. Eighteen of the 21
derailed tank cars ruptured, releasing an
estimated 400,000 gallons of crude. The
ruptured tank cars ignited causing an
explosion. There were no reported
injuries by either train crew, nor were
there any injuries to the public;
however, about 1,400 people were
evacuated. Damages from the derailment
are estimated at $6.1 million.13
Also, on November 8, 2013, a 90-car
crude oil train derailed in a rural area
near Aliceville, Alabama. The crude oil
shipment had originated in North
Dakota and was bound for Walnut Hill,
Florida, to be transported by a regional
pipeline to a refinery in Saraland,
Alabama. More than 20 cars derailed
and at least 11 cars ignited, resulting in
an explosion and fire. Although there
were no reported injuries, an
undetermined amount of crude oil
escaped from derailed cars and fouled a
wetlands area near the derailment site.
The dangers related to crude oil trains
are not necessarily unique. They also
exist with other hazardous materials
such as ethanol, which is another
flammable liquid that is commonly
transported in large quantities by rail. In
2012, more carloads of ethanol were
transported via rail than any other
hazardous material. The railroads
experienced an increase in ethanol
traffic of 442 percent between 2005 and
2010. Although in 2013 the number of
carloads dropped by 10 percent from
2010 levels, there were still
approximately 297,000 carloads
transported by rail. Since 2009, there
have been at least six major mainline
derailments resulting in the breach of
tank cars containing ethanol. While FRA
recognizes that none of these six
derailments resulted from a roll-away
situation, they are instructive on the
destructive potential of a derailment
involving tank cars containing
flammable products:
• On August 5, 2012, in Plevna,
Montana, a BNSF Railway Co. train
derailed 18 cars while en route from
Baker, Montana. Seventeen of the 18
cars were tank cars loaded with
denatured alcohol, a form of ethanol.
Five of the cars caught on fire resulting
in explosions, the burning of
surrounding property not within the
railroad’s right-of-way, and the
evacuation of the immediate area.
• On July 11, 2012, in Columbus,
Ohio, a Norfolk Southern Railway Co.
train derailed while operating on main
track. Thirteen tank cars containing
ethanol derailed resulting in a fire and
13 See
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the evacuation of 100 people within a
one-mile radius of the derailment.
• On February 6, 2011, in Arcadia,
Ohio, a Norfolk Southern Railway Co.
train operating on single main track
derailed 33 tank cars loaded with
ethanol. The derailment caused a major
fire and forced the evacuation of a onemile radius around the derailment.
• On June 19, 2009, in Cherry Valley,
Illinois, a Canadian National Railway
train derailed 19 tank cars loaded with
ethanol. Thirteen of the 19 derailed cars
caught fire, and there were reports of
explosions. One person died, and there
were 9 reported injuries related to the
fire. Additionally, approximately 600
residences were evacuated within a 1⁄2mile radius of the derailment.
• On October 7, 2011, at about 2:14
a.m. CDT, at milepost 121.8 on the No.
1 Subdivision near Tiskilwa, Illinois, an
eastbound Iowa Interstate Railroad
(IAIS) freight train No. RI–BI–06—with
two locomotives and 131 cars—derailed
its head 26 cars. The derailed cars
included ten cars of ethanol, several of
which were breached and lost a
substantial amount of their product,
resulting in a fire and an evacuation of
about 800 residents. The emergency
responses began almost immediately
and were supported by surrounding
local fire and police departments to
control and suppress the fire and
execute the evacuation. The fire
suppression was sustained over two and
half days. There were no injuries or
fatalities.
• On February 4, 2015, in Dubuque,
Iowa, a Canadian Pacific Railway unit
train—with 13 of its 80 tank cars
containing denatured alcohol—derailed,
with at least one of the cars falling into
the Mississippi River. Three of the cars
caught fire and there was a release of an
unknown quantity of denatured alcohol
into the river. Officials established a
half-mile evacuation zone, but there
were no occupied structure in that area.
While these accidents were serious,
their results had potential for higherconsequence outcomes. The higherconsequence releases created the
potential for additional deaths, injuries,
property damage, and environmental
damage.
There are other hazardous materials
that have similar potential for higherconsequence danger. For example,
accidents involving trains transporting
other hazardous materials, including
PIH materials such as chlorine and
anhydrous ammonia, can also result in
serious consequences as evidenced by
the following accidents:
• On January 6, 2005, in Graniteville,
South Carolina, a Norfolk Southern
Railway Co. train collided with another
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Norfolk Southern Railway Co. train that
was parked on a customer side track,
derailing both locomotives and 16 cars
of the moving train. The accident was
caused by a misaligned switch. Three
tank cars containing chlorine derailed,
one of which was punctured. The
resulting chlorine exposure caused 9
deaths, approximately 554 people were
taken to local hospitals, and an
additional 5,400 people within a onemile radius of the site were evacuated
by law enforcement personnel. FRA’s
analysis of the total cost of the accident
was $126 million, including fatalities,
injuries, evacuation costs, property
damage, environmental cleanup, and
track out of service.
• On June 28, 2004, near Macdona,
Texas, a Union Pacific Railroad Co. train
passed a stop signal and collided with
a BNSF Railway Co. train. A chlorine
car was punctured, and the chlorine gas
that was released killed three and
injured 32.
• On January 18, 2002, a Canadian
Pacific Railway train containing 15 tank
cars of anhydrous ammonia derailed
half a mile from the city limits of Minot,
North Dakota due to a breaking of the
rail at a joint. Five of these tank cars
ruptured, which resulted in an ammonia
vapor that spread 5 miles downwind
over an area where 11,600 people lived.
The accident caused one death, 11
serious injuries, and 322 minor injuries.
Environmental cleanup costs reported to
the NTSB were $8 million.
• On July 18, 2001, 11 of 60 cars in
a CSX Transportation, Inc. freight train
derailed while passing through the
Howard Street Tunnel in downtown
Baltimore, Maryland. The train included
8 tank cars loaded with hazardous
material; 4 of these were among the cars
that derailed. A leak in a tank car
containing tripropylene resulted in a
chemical fire. A break in a water main
above the tunnel flooded both the
tunnel and the streets above it with
millions of gallons of water.
FRA recognizes that these four
incidents did not result from a roll-away
situation. However, they illustrate the
destructive potential of PIH materials’
derailments.
While train accidents involving
hazardous materials are caused by
variety of factors, nearly one-half of all
accidents are related to railroad human
factors or equipment defects. FRA’s data
shows that since 2009, human factors
have been the most common cause of
reportable train accidents. Based on
FRA’s accident reporting data for the
period from 2010 through May 2014,
approximately 34 percent of reported
train accidents/incidents, as defined by
49 CFR 225.5, were human factor-
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caused.14 With regard to the securement
of unattended equipment, specifically,
FRA accident/incident data indicates
that approximately 8.7 percent of
reported human factor-caused train
accidents/incidents from calendar year
2010 until May 2014 were the result of
improper securement, which means that
improper securement is the cause of
approximately 2.9 percent of all
reported accidents/incidents.15 The
types of securement errors that typically
lead to accidents/incidents include
failing to apply any hand brakes at all,
failing to apply a sufficient number of
hand brakes, and failing to correctly
apply hand brakes. Emergency Order 28
and this final rule intends to address
some of the human factors failures that
may cause unattended equipment to be
improperly secured to protect against a
derailment situation similar to that
´
which occurred in Lac-Megantic.
C. Current Securement Regulations and
Related Guidance
As previously noted, FRA has existing
regulations—issued years before the
´
accident at Lac-Megantic and
promulgation of Emergency Order 28—
designed to ensure that trains and
vehicles are properly secured before
being left unattended. See 49 CFR
232.103(n). In FRA’s view, if existing
regulations are followed, the risk of
movement of unattended equipment is
substantially reduced. Despite the
demonstrated effectiveness of FRA’s
current securement regulations, FRA
has determined that the increased
shipments of hazardous materials such
as crude oil and ethanol, combined with
the potential for higher-consequences
from any accident that might occur due
to improper securement, particularly on
mainline track and mainline sidings
outside of a yard, proper securement has
become a serious and immediate safety
concern. Therefore, FRA established
additional securement measures in
Emergency Order 28 to ensure the
continued protection of the health and
safety of railroad employees, the general
public, and the environment. In this
final rule, FRA establishes permanent
rules to strengthen the current
regulations and ensure public safety by
adopting the necessary and effective
14 FRA estimates that there were a total of
approximately 8976 accidents/incidents reported
during that time period. Approximately 3030 of
those accidents/incidents were caused by human
factors, and 906 involved equipment that was
placarded as containing hazardous materials.
15 There were a total of approximately 264
reported accidents/incidents that were caused by
securement errors. Of those 264 accidents/
incidents, approximately 98 involved equipment
that was placarded as containing hazardous
materials.
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securement measures FRA included in
Emergency Order 28 as part of its
´
immediate response to the Lac-Megantic
derailment.
The current regulations define
‘‘unattended equipment’’ as ‘‘equipment
left standing and unmanned in such a
manner that the brake system of the
equipment cannot be readily controlled
by a qualified person.’’ Id. Section
232.103(n) generally addresses the
securement of unattended equipment by
stating that a train’s air brakes must not
be depended on to hold equipment
standing unattended on a grade. More
specifically, § 232.103(n) also requires
that the railroad apply a sufficient
number of hand brakes to hold the
equipment with the air brakes released
and that the brake pipe pressure be
reduced to zero with the angle cock
opened on one end of a cut of cars when
not connected to a locomotive or other
compressed air source. The existing
regulations also require railroads to
develop a process or procedure for
verifying that the hand brakes applied
are sufficient to hold the equipment
with the air brakes released. When
dealing with locomotives and
locomotive consists, § 232.103(n)(3)
establishes specific additional
requirements:
• All hand brakes must be fully
applied on all locomotives in the lead
consist of an unattended train.
• All hand brakes must be fully
applied on all locomotives in an
unattended locomotive consist outside
of yard limits.
• The minimum requirement for an
unattended locomotive consist within
yard limits is that the hand brake must
be fully applied on the controlling
locomotive.
• Railroads must develop, adopt, and
comply with procedures for securing
any unattended locomotive that is not
equipped with an operative hand brake.
Additionally, FRA continues to require
each railroad to adopt and comply with
instructions addressing each unattended
locomotive’s position of the throttle,
generator field switch, isolation switch,
and automatic brake valve and the
status of its reverser and independent
brakes. See 49 CFR 232.103(n)(4).
FRA has also issued guidance
documents interpreting these
regulations. For instance, on March 24,
2010, FRA issued Technical Bulletin
MP&E 2010–01, Enforcement Guidance
Regarding Securement of Equipment
with Title 49 Code of Federal
Regulations Section 232.103(n) (TB 10–
01), available at https://www.fra.dot.gov/
eLib/details/L02394. While FRA
continues to believe that the securement
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requirements of § 232.103 are not met
where there is a complete failure to
apply even a single hand brake on
unattended equipment, FRA also
recognizes that there are times when it
is necessary to have unsecured
equipment, such as during switching
activities when assembling and
disassembling trains within
classification yards. Therefore, TB 10–
01 has provided guidance regarding
alternative forms of securement in such
instances. For example, TB 10–01 notes
that FRA will allow a train crew cutting
away from a cut of cars to initiate an
emergency brake application on the cut
of cars, and then close the angle cock,
if the crew is taking a locomotive
consist directly to the opposite end of
the cut of cars to in order to couple the
locomotive consist to the cars or to open
the angle cock at the other end and
leave the angle cock open and vented to
the atmosphere, as required under 49
CFR 232.103(n)(2). Additionally, TB 10–
01 makes clear that FRA will allow the
use of skates and retarders in hump
classification yards, classification yards
with bowl tracks, or flat switching yards
if the retarders and skates are used
within their design criteria and as
intended. In the NPRM to this
proceeding, FRA considered codifying
TB 10–01 by amending the rule at the
final rule stage of this proceeding. The
final rule makes the amendment
considered and codifies the existing
guidance contained in TB 10–01. This
particular amendment does not include
any additional requirements from the
original guidance issued in the technical
bulletin and is further explained below.
Also notable is that in 2013 and 2014,
FRA and PHMSA undertook nearly two
dozen actions to enhance the safe
transport of crude oil. This
comprehensive approach included nearand long-term steps such as the
following: launching ‘‘Operation
Classification’’ in the Bakken region to
verify that crude oil is properly
classified; issuing safety advisories,
alerts, emergency orders and regulatory
updates; conducting special inspections;
aggressively moving forward with a
rulemaking to enhance tank car
standards; and reaching agreement with
railroad companies on a series of
immediate voluntary actions including
reducing speeds, increasing inspections,
using new brake technology and
investing in first responder training.
Most of those actions have been well
outside the scope of securement.
However, FRA references these actions
here to help place this rulemaking in the
broader context of DOT’s wide-ranging
response to the safety issues created by
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these trains. For a summary of these
actions, see Federal Railroad
Administration’s Action Plan for
Hazardous Materials Safety, Federal
Railroad Administration (May 20, 2014)
available at https://www.fra.dot.gov/
eLib/details/L04721.
Additionally, in August 2014,
PHMSA, in coordination with FRA,
published an NPRM proposing
enhanced tank car standards and
operational controls for high-hazard
flammable trains, which is defined as a
single train carrying 20 or more tank
cars of a Class 3 flammable liquid in a
continuous block or a single train
carrying 35 or more tank cars of a Class
3 flammable liquid throughout the train
consist. See ‘‘Hazardous Materials:
Enhanced Tank Car Standards and
Operational Controls for High-Hazard
Flammable Trains,’’ 79 FR 45015, Aug.
1, 2014. PHMSA recently issued that
final rule including operational controls
considered in the PHMSA NPRM such
as speed restrictions and enhanced
braking systems for HHFTs. See 80 FR
26643, May 8, 2015. FRA expects that
the operational controls contemplated
in that PHMSA final rule will work in
concert with the securement
requirements that FRA is implementing
in this final rule.
D. Emergency Order 28 and Related
Guidance
On August 2, 2013, FRA issued
Emergency Order 28 establishing
additional requirements on the
treatment of securement of unattended
equipment. On the same date, FRA
issued a related Safety Advisory and
announced an emergency RSAC
meeting. See Federal Railroad
Administration Safety Advisory 2013–
´
06, Lac-Megantic Railroad Accident and
DOT Safety Recommendations, 78 FR
48224, Aug. 7, 2013, available at https://
www.fra.dot.gov/eLib/details/L04720.
FRA also subsequently issued guidance
related to Emergency Order 28 and
granted partial relief from Emergency
Order 28 to the AAR and ASLRRA. See
Guidance on Emergency Order 28 (Aug.
21, 2013), available at https://
rsac.fra.dot.gov/meetings/
20130829.php; Letter from Robert C.
Lauby, Acting Associate Administrator
for Railroad Safety/Chief Safety Officer,
FRA, to Michael J. Rush, Associate
General Counsel, AAR, and Keith T.
Borman, Vice President and General
Counsel, American Short Line and
Regional Railroad Association, (Aug. 27,
2013), available at https://
rsac.fra.dot.gov/meetings/
20130829.php.
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E. RSAC Overview
In March 1996, FRA established the
RSAC, which provides 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 RSAC members
follows:
• American Association of Private
Railroad Car Owners (AARPCO);
• American Association of State
Highway & Transportation Officials
(AASHTO);
• American Chemistry Council
(ACC);
• American Petroleum Institute (API);
• American Public Transportation
Association (APTA);
• ASLRRA;
• American Train Dispatchers
Association (ATDA);
• AAR;
• Association of State Rail Safety
Managers (ASRSM);
• Association of Tourist Railroads
and Railway Museums (ATRRM);
• Brotherhood of Locomotive
Engineers and Trainmen (BLET);
• Brotherhood of Maintenance of Way
Employes Division (BMWED);
• Brotherhood of Railroad Signalmen
(BRS);
• Chlorine Institute;
• Federal Transit Administration
(FTA);*
• Fertilizer Institute;
• Institute of Makers of Explosives;
• International Association of
Machinists and Aerospace Workers
(IAM);
• International Brotherhood of
Electrical Workers (IBEW);
• Labor Council for Latin American
Advancement (LCLAA);*
• 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 (NRC);
• National Railroad Passenger
Corporation (Amtrak);
• National Transportation Safety
Board (NTSB);*
• Railway Passenger Car Alliance
(RPCA)
• Railway Supply Institute (RSI);
• Safe Travel America (STA);
• Secretaria de Comunicaciones y
Transporte;*
• SMART Transportation Division
(SMART TD);
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• Transport Canada;*
• Transport Workers Union of
America (TWU);
• Transportation Communications
International Union/Brotherhood of
Railway
• Carmen (TCIU/BRC);
• Transportation Security
Administration (TSA).
* 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 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. The working group may
establish one or more task forces or
other subgroups to develop facts and
options on a particular aspect of a given
task. The task force, or other subgroup,
reports to the working group. If a
working group comes to consensus on
recommendations for action, the
package is presented to 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
play an active role at the working group
level in discussing the issues and
options and in drafting the language of
the consensus proposal, and because the
RSAC recommendation constitutes the
consensus of some of the industry’s
leading experts on a given subject, 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 goals, is soundly
supported, and is in accordance with
applicable 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. If the working group or
RSAC is unable to reach consensus on
recommendations for action, FRA
resolves the issue(s) through traditional
rulemaking proceedings or other action.
The RSAC convened an emergency
session on August 29, 2013, in response
´
to the accident at Lac-Megantic, to brief
members on the preliminary findings of
the accident, to discuss the safety issues
related to the accident, and to discuss
Emergency Order 28. At that meeting,
the RSAC accepted Task No. 13–03 to
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47357
refer to the Securement Working Group
(SWG) the responsibility of ensuring
that ‘‘appropriate processes and
procedures are in place to ensure that
any unattended trains and vehicles on
mainline track or mainline sidings
outside of a yard or terminal are
properly secured against unintended
movement, and as appropriate, such
securement is properly confirmed and
verified.’’ In doing so, the SWG was
tasked with reviewing: The standards
for the securement of unattended
equipment under 49 CFR 232.103(n)
and its concomitant regulatory guidance
published in TB 10–01; the
requirements of Emergency Order 28;
and the recommendations contained in
Federal Railroad Administration Safety
´
Advisory 2013–06—Lac-Megantic
Railroad Accident Discussion and DOT
Safety Recommendations. The SWG was
also tasked with identifying any other
issues relevant to FRA’s regulatory
treatment of securement of equipment to
prevent unintended movement. While
the RSAC also tasked the SWG with
reviewing operational testing, the SWG
concluded that no changes were
necessary to the regulations relating to
operational testing. FRA notes that, in
its comments, NTSB suggested that
more emphasis should be made on
observations by railroad supervisors, as
part of operational testing programs, to
ensure unattended equipment is
properly secured. While FRA does not
contest this suggestion, it is outside the
scope of this rulemaking, since FRA
declined to consider operational testing.
In addition to FRA, the following
organizations contributed members to
the SWG:
• AAR, including members from
BNSF Railway Company (BNSF),
Canadian National Railway (CN),
Canadian Pacific Railway (CP), CSX
Transportation, Inc. (CSX), Genesee &
Wyoming Inc. (GNWR), Kansas City
Southern Railway (KCS), Long Island
Rail Road (LIRR), Metro-North Railroad
(MNCW), Northeast Illinois Regional
Commuter Railroad Corporation
(METRA), Norfolk Southern Railway
Company (NS), Railway Association of
Canada, and Union Pacific Railroad
Company (UP);
• Amtrak;
• API;
• APTA, including members Keolis
North America, Massachusetts Bay
Commuter Railroad Company, LLC
(MBCR); and North County Transit
District (NCTD);
• ASLRRA, including members from
Anacostia Rail Holdings, Central
California Traction Company (CCT),
OmniTRAX, Rio Grande Pacific
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Corporation, and WATCO Companies,
Inc. (WATCO);
• ASRSM, including members from
California Public Utilities Commission
(CPUC);
• ATDA;
• BLET;
• BMWED;
• BRS;
• IAM;
• NRC, including members from
Herzog Transit Services (Herzog);
• NTSB;
• PHMSA;
• RSI;
• SMART TD;
• TCIU/BRC;
• Transport Canada; and
• TWU.
The SWG convened subsequently on
October 30, 2013, December 17, 2013,
January 28, 2014, and March 4, 2014, in
Washington, DC to respond to these
tasks and voted to approve the
recommendation on March 4, 2014. The
SWG presented its recommendation to
the full RSAC, which voted by
electronic ballot between March 25 and
March 31, 2015, to accept the
recommendations. On April 2, 2014, the
RSAC announced that by majority vote
the recommendations had been
approved and would become its
recommendation to the Administrator.
The recommendation of the RSAC
included amendments to 49 CFR
232.103(n) that would do the following:
(1) Provide additional requirements for
the securement of unattended
equipment carrying certain hazardous
materials; (2) mandate the
implementation of operating rules and
practices requiring that securement be
part of all relevant job briefings; and (3)
require adoption and compliance with
procedures to secure equipment
subsequent to an emergency response.
The RSAC recommendation also
included amendments to 49 CFR
232.105 that would require equipping
locomotives with exterior locking
mechanisms.
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F. NPRM and Comments
On September 9, 2014, FRA issued
the NPRM in this proceeding. See 79 FR
53356, Sept 9, 2014. Subsequent to the
issuance of the NPRM, FRA received
comments from: Amsted Rail Company,
Inc. (Amsted), BLET, CPUC, NTSB, the
North America Freight Car Association
(NAFCA), Riverkeeper, Inc.
(Riverkeeper), and the State of New
York Department of Transportation
(NYSDOT). AAR and ASLRRA also filed
a joint comment on behalf of their
member railroads. These comments are
addressed in detail in the section-bysection analysis contained below.
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III. Rescinding Emergency Order 28
This final rule codifies the
requirements of Emergency Order 28
that FRA believes are necessary to
ensure the safe securement of the types
of trains and equipment identified in
the Emergency Order. Once this final
rule becomes effective, FRA believes
that the unsafe condition or practices
identified in the Emergency Order will
be addressed by the provisions of this
final rule. Accordingly, Emergency
Order 28 is rescinded on the effective
date of this final rule.
IV. Section-by-Section Analysis
Unless otherwise noted, all ‘‘part’’
and ‘‘section’’ references below refer to
provisions either in title 49 of the CFR
or proposed to be in title 49 of the CFR.
Before entering into specific analysis
of each section, it is important to make
clear that this final rule, which like
Emergency Order 28 provides more
restrictive securement requirements for
specific types of equipment than the
existing regulations, does not affect
FRA’s policy concerning the Federal
hours of service requirements. FRA
continues to believe that a railroad may
not require or allow a train employee
with an accumulated time on duty of 12
hours or more to remain on a train for
the sole purpose of meeting the
securement requirements, including
those proposed here. A train employee
may, however, remain on an unsecured
train, if that employee is legitimately
waiting for deadhead transportation
from duty to a point of final release,
performs no covered or commingled
service,16 and is free to leave the
16 A person is considered by the hours of service
laws to be neither on duty nor off duty during
periods they are either waiting for or in deadhead
transportation to their point of final release (i.e.,
have completed their time on duty and are waiting
for or in transportation to end their duty tour). In
order to be considered ‘‘waiting for’’ deadhead
transportation, the person must not be required to
perform other duties. Merely being on a train is not
inherently performing a duty; being on or with the
train is a necessary element of waiting for
transportation from the train. This is true even
when the railroad receives the benefit of having the
train attended while employees aboard wait for
transportation. Such time is considered ‘‘limbo
time’’ and is not contingent upon the train’s
securement status. See BLET v. Atchison Topeka
and Santa Fe Railway, 516 U.S. 152 (1996) (holding
that the time waiting for deadhead transportation
under the hours of service laws must be counted as
‘‘limbo time’’). However, should the employee be
required to perform some activity to prevent the
movement of the equipment or to secure the train
prior to departing with deadhead transportation,
then the time spent performing the activity and any
intervening time spent waiting would be considered
covered and commingled service respectively. See
49 CFR part 228, app. A. Thus, whether a train is
secured or unsecured when an employee is waiting
for deadhead transportation, that waiting time will
count as limbo time, so long as no covered activities
are performed.
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equipment when deadhead
transportation arrives. In this case, time
spent waiting for and in deadhead
transportation is treated as neither time
on duty nor time off duty.
In its comment, BLET expressed
concern about FRA’s discussion in the
NPRM of the hours of service
implications of the proposed rule. BLET
particularly objected to the reference in
the directly preceding footnote
regarding employees ‘‘remaining
sufficiently alert to respond to
unattended movement,’’ which it
viewed as potentially establishing a new
requirement. To reduce confusion, and
as there was no intention to establish a
new requirement, FRA has eliminated
that language in this preamble to the
final rule. FRA’s intention was merely
to provide an example of the application
of the hours of service laws in the
NPRM for the benefit and convenience
of the reader. This final rule does not in
any way change the application of the
hours of service laws to the time that
employees may spend waiting for
deadhead transportation aboard an
unsecured train.
FRA also notes that this final rule
does not include the portion of
Emergency Order 28 that requires
railroads to review, verify, and adjust, as
necessary, existing requirements and
instructions related to the number of
hand brakes to be set on unattended
trains and vehicles, and to review and
adjust, as necessary, the procedures for
verifying that the number of hand
brakes is sufficient to hold the train or
vehicle with the air brakes released. As
stated in the NPRM, it was FRA’s
concern that existing railroad processes
and procedures related to setting and
verifying hand brakes on unattended
trains and equipment were not
sufficient to hold all trains and vehicles
in all circumstances. FRA believes that
the railroads have fulfilled this
requirement and thus there is no need
to include it in this final rule.
NAFCA has expressed concern with
the elimination of the requirement in
Emergency Order 28 that the railroads
review, verify, and adjust their existing
requirements and instructions related to
the number of hand brakes to be set on
unattended trains and vehicles and to
ensure that such a number is sufficient
to hold the train or vehicle with the air
brakes released. While NAFCA
recognizes that FRA believes that the
railroads have already fulfilled this
requirement, it contends that FRA is
eliminating a salutary safety measure
that is not unduly burdensome to the
railroad. NAFCA recommends that the
requirement remain in place while FRA
and the industry gain more experience
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with the Class 3 flammable liquid
transportation issues and consider
removing the requirement at a later
time.
NYSDOT concedes that periodic
review, verification and adjustment of
those processes and procedures are an
inherent obligation of the railroads,
citing the existing and continuing
requirement under § 232.103(n)(1) that
‘‘[r]ailroads shall develop and
implement a process or procedure to
verify that the applied hand brakes will
sufficiently hold the equipment with the
air brakes released.’’ Given FRA’s
expressed confidence that the railroads
have fulfilled the requirement in
Emergency Order 28 to review, verify,
and adjust, as necessary, those
requirements, NYSDOT agrees that it is
unnecessary to include it in this final
rule.
FRA declines to postpone elimination
of this specific requirement, which was
designed as a one-time requirement to
emphasize the need following the Lac´
Megantic derailment for each railroad to
review their securement policy and
procedures to ensure that it had
sufficient measures in place. It is
unclear to FRA the benefits of
maintaining a requirement that has
already been fulfilled and NAFCA does
not explain what benefits could be
gained with additional experience
beyond the years in which the
securement regulations have already
been in place. Moreover, FRA’s existing
regulations already require railroads to
have procedures in place and comply
with those procedures to ensure that
unattended equipment is properly
secured. Thus, retention of a duplicate
provision would not be in the interest
of regulatory economy.
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Amendments to 49 CFR Part 232
Section 232.5 Definitions
In this final rule, FRA is including a
new defined term, ‘‘mechanical
securement device’’. ‘‘Mechanical
securement device’’ means a device,
other than the air brake, that provides at
least the equivalent securement that a
sufficient number of hand brakes would
provide in the same situation. In TB 10–
01, further analyzed below, FRA
contemplated the proper use of skates,
retarders, or inert retarders to secure
equipment in certain circumstance and
within classification yards. FRA
recognizes, however, that other current
and future securement technologies
could perhaps be utilized for the same
purpose. By using the more generalized,
performance-based term, mechanical
securement device, FRA intends to
provide additional flexibility, and to
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‘‘future proof’’ the regulation, to allow
the use of other sufficient securement
technologies in the same circumstances
and locations. By definition, FRA
understands mechanical securement
devices to include current examples
such as skates, retarders, and inert
retarders; which are also further
discussed below.
In the 2001 rule, the definition of
‘‘unattended equipment’’ was included
in § 232.103(n). As further discussed
below, this final rule includes a new
paragraph (h) for § 232.105, which also
makes use of the definition for
‘‘unattended equipment.’’ Since the
term would be used in multiple
sections, this final rule moves the
definition to the more broadly
applicable definitions in § 232.5. Doing
so allows FRA to rephrase paragraph (n)
for clarity purposes, as discussed further
below. Placement of the definition in
§ 232.5 does not change its meaning and
is solely for applicability and clarity
purposes. FRA received no comments
on this organizational change and is
amending § 232.5 accordingly.
FRA is also changing the term ‘‘yard
limits’’ to ‘‘yard’’ without any change to
its definition, with concurrent changes
from ‘‘yard limits’’ to ‘‘yard’’ in
§ 232.103(n). FRA is also including the
term ‘‘yard’’ in its new § 232.105(h). As
currently defined in part 232, a yard
limit is ‘‘a system of tracks, not
including main tracks and sidings, used
for classifying cars, making-up and
inspecting trains, or storing cars and
equipment.’’ But in part 218, yard limits
are described as a railroad-designated
operating territory that is established by
yard limit signs; and timetable, train
orders, or special instructions. See 49
CFR 218.35(a). Making this change
minimizes the risk of ambiguity and
confusion by clarifying that specific
securement practices are connected to
the physical presence of a yard, and not
to an operating practices description of
yard limits, which could potentially
encompass an entire railway system.
NTSB concurred with this change
removing the word ‘‘limits’’ from the
term ‘‘Yard limits.’’ According to NTSB,
this distinction will appropriately
define the intent of the rule to include
only those main tracks that are
connected to the physical presence of a
yard and will avoid the operating
practices description of yard limits that
could potentially encompass an entire
railway system. FRA received no
negative comments on this clarifying
change and is amending § 232.5
accordingly.
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47359
Section 232.103 General Requirements
for all Train Brake Systems
As previously noted, FRA is moving
the definition of ‘‘unattended
equipment’’ to § 232.5, creating an
opportunity to rephrase and clarify the
introductory language of paragraph (n).
Part of this rephrasing includes moving
the opening sentence of paragraph (n)—
‘‘A train’s air brake shall not be
depended upon to hold equipment
standing unattended on a grade
(including a locomotive, a car, or a train
whether or not locomotive is
attached)’’—to paragraph (n)(2). The
remaining introductory language of
paragraph (n) would become more
succinct and clear.
While it is not an RSAC
recommendation, FRA is also amending
paragraph (n)(1) to make more clear its
existing expectation that in most
circumstances at least one hand brake
must be applied to hold unattended
equipment. Although this has been
stated in earlier rulemakings and
guidance documents (see, e.g., TB 10–
01), there has been some confusion
about whether the use of wheel chocks,
skates, or other securement devices is
sufficient to hold unattended
equipment. FRA’s longstanding
interpretation is that at least one hand
brake is required to hold unattended
equipment except in certain limited
situations. For instance, in a hump
classification yard, an alternative form
of securement, such as skates and
retarders, may be allowed provided they
are used within their design criteria and
as intended. FRA believes adding
explicit language to the regulatory text
is warranted in order to formally
address the requirement to set at least
one hand brake in most instances.
Further changes to the rule to
incorporate TB 10–01 are discussed
further below.
NAFCA encourages FRA to harmonize
its changes to § 232.103 in the final rule
with the Emergency Directive Pursuant
to Section 33 of the Railway Safety
Act—Securement of Railway
Equipment—issued by Transport
Canada on October 29, 2014. In this
Emergency Directive, the Canadian
government replaced the ‘‘sufficient
number of hand brakes’’ requirement
with a requirement that trains have a
specific number of hand brakes,
determined by the weight of the train
and the slope of the track. NAFCA
favors the increased specificity of the
Canadian approach and urges FRA to
develop harmonized rules with Canada
that are prescriptive, based on sound
engineering, and incorporate factors
such as train consist/weight, terrain,
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environmental, and other
considerations. According to NAFCA, it
is critically important that the two
countries’ respective efforts be
harmonized, given the closely integrated
nature of the North American railroad
system. NAFCA asserts that anything
less than full harmonization of the two
regulatory regimes will significantly
disrupt the current flow of rail cars,
particularly the tank cars that are the
primary topic of the regulatory efforts,
between Canada and the United States.
NYSDOT agrees with FRA’s
clarification that at least one hand brake
must be applied except in limited
circumstances, such as when skates or
retarders are applied in a classification
yard. However, similar to NAFCA,
NYSDOT states that a more uniform
approach to ensuring that unattended
trains are left with a sufficient number
of hand brakes could be accomplished
by codifying in regulation the
appropriate number of hand brakes
required given the weight, number of
cars, and track gradient. According to
NYSDOT, this would ensure uniformity
amongst all railroads, and would allow
inspectors the ability to verify that
unattended trains are left with the
required amount of hand brakes
applied.
When FRA initially drafted the
securement rule, it purposefully
developed a performance-based
requirement in order to permit a
railroad to develop appropriate
operating rules to verify the sufficiency
of the hand brakes applied which can be
tailored to the specific territory and
equipment operated by the railroad. See
66 FR 4104, 4157, Jan. 17, 2001. When
drafting the rule, FRA did not limit such
operating rules to a matrix format and
stated that the number of hand brakes
required to be applied depends on a
wide variety of factors not easily
captured in a matrix format and that a
matrix approach might result in either
too few or too many hand brakes being
applied. While the commenters listed a
few variables—such as the weight,
number of cars, and track gradient—
FRA does not believe that such a list is
definitely exhaustive. FRA also does not
presume to know all location and
equipment configurations; a regulatory
matrix may result in inadvertently
ignoring certain other variables to which
the railroads may be more intimately
aware and cognizant. Moreover, FRA
has not found the existing performance
requirement to be insufficient; its
concern relates primarily to its
application, compliance, and
enforcement. For the same reasons, in
this instance and at this time, FRA does
not support developing a technical-
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based regulation to apply a uniform
regulatory procedure. FRA recognizes
that Canada is a strong partner in
maintaining cross-border railroad safety
and FRA continues to believe that
harmonization between Canadian and
United States rail safety regulations is
beneficial, particularly when differences
in regulations create barriers to crossborder transportation, and should be
maximized to the extent possible.
Therefore, FRA traditionally seeks out
and incorporates the views of Canada in
developing its safety regulations. FRA,
for instance, has actively engaged
Canada as a member of RSAC. However,
there is no requirement that FRA
harmonize each of its requirements with
those in Canada and, in light of the
aforementioned reasons, FRA believes
in this instance that a uniform technical
standard is not ideal and that its
performance-based securement
measures better and more appropriately
capture the variables presented by the
different rail systems throughout the
United States. Further, FRA does not see
the absence of harmonization as
potentially establishing barriers to crossborder train movements; first, because
the operational issue of securement can
easily be handled differently on either
side of the border, and, second, because
in many instances there will not be an
actual difference in the number of hand
brakes applied to secure similarly
situated unattended equipment.
In its comments, BLET indicated that
another component of rail securement is
derail protection. While BLET
acknowledges that this was not
discussed in detail in the RSAC SWG,
derail protection would reduce the risk
of a more serious accident by preventing
inadvertently rolling equipment from
moving further and gaining speed and
momentum. This particular means of
securement was not discussed in the
NPRM, and FRA is not convinced that
this is the safest securement practice.
Nevertheless, FRA will continue to
monitor the safety efficacy of derail
protection as it is applied by regulation
in Canada.
As previously mentioned, paragraph
(n)(2) now includes language originally
placed in the introduction of paragraph
(n), which prohibits a train’s air brake
from being ‘‘depended upon to hold
equipment standing unattended on a
grade (including a locomotive, a car, or
a train whether or not locomotive is
attached).’’ (Emphasis added.) This final
rule also removes the phrase ‘‘on a
grade,’’ as such a requirement is
arguably superfluous and confusing. In
its comments, Amsted indicated its
support for this change. Perfectly level
track is rare, and there is still a risk of
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unattended movement caused by
numerous factors, such as a mistake in
the location or length of the level track,
the effect of extreme weather, or an
impact from other equipment.
Moreover, the phrase ‘‘on a grade’’ has
led some to the erroneous conclusion
that hand brakes must only be applied
if the equipment is left on a grade.
While grade is likely a factor in
determining the number of hand brakes
that would sufficiently hold unattended
equipment, it is not a factor in
determining whether hand brakes
should be applied at all. Accordingly,
this final rule makes clearer that the
hand brake application requirement is
not contingent upon the existence of a
grade.
Proposed paragraphs (n)(6) through
(n)(8) address the aforementioned
heightened concerns relating to the
securement of unattended equipment
carrying certain hazardous materials.
Paragraph (n)(6) defines the type of
equipment covered by these
requirements and is intended to ensure
that proposed paragraphs (n)(7) and
(n)(8) apply only to equipment that
includes loads. Specifically, paragraph
(n)(6) provides that the substantive
requirements of paragraphs (n)(7) and
(n)(8) apply to:
(1) Any loaded tank car containing
PIH material, including anhydrous
ammonia and ammonia solutions; or
(2) twenty (20) or more loaded tank
cars or loaded intermodal portable tanks
of any one or any combination of PIH
materials (including anhydrous
ammonia and ammonia solutions), or
any flammable gas, flammable or
combustible liquid, explosives, or a
hazardous substance listed at
§ 173.31(f)(2) of this title.
FRA notes that this language is broader
than the language used in PHMSA’s
NPRM on Enhanced Tank Car Standards
and Operational Controls for HighHazard Flammable Trains (HHFTs). See
79 FR 45016, Aug. 1, 2014. In that rule,
PHMSA proposed certain new
requirements for HHFTs, which it
defines as ‘‘a train comprised of 20 or
more carloads of a Class 3 flammable
liquid and ensures that the rail
requirements are more closely aligned
with the risks posed by the operation of
these trains.’’ 79 FR at 45017. Paragraph
(n)(6) includes new securement
requirements that cover a single PIH
tank car. Moreover, where the proposed
PHMSA rule would only cover trains
with 20 or more carloads of flammable
liquids, paragraph (n)(6) covers
situations where there are 20 or more
loaded tank cars or loaded intermodal
portable tanks of PIH materials,
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flammable gases, flammable or
combustible liquids, explosives, other
hazard substances listed at
§ 173.31(f)(2), or any combination
thereof.
FRA sought comment on this proposal
and on whether a defined term should
be used for equipment covered under
paragraph (n)(6).
From the standpoint of public safety,
NYSDOT supports FRA’s broadening
the language of this rule to include the
securement of unattended equipment
transporting hazardous materials
beyond those defined as HHFTs in
PHMSA’s earlier NPRM. NYSDOT also
suggests using a ‘‘defined term’’ for the
equipment covered under paragraph
(n)(6), which it says would provide a
simple way to differentiate it from those
defined elsewhere in regulation (e.g.
HHFTs).
AAR and ASLRRA expressed concern
that this requirement in Emergency
Order 28 applied to a ‘‘loaded tank car,’’
but that the proposed rule applies to a
‘‘loaded freight car.’’ AAR and ASLRRA
assert that this change could potentially
and inadvertently affect a much larger
number of rail cars, including those
intermodal shipments of miscellaneous
items such as cleaning supplies and
swimming pool chemicals. Accordingly,
AAR and ASLRRA recommend that the
final rule retain the original language
from Emergency Order 28.
FRA recognizes the merit in AAR’s
and ASLRRA’s comment and is
reverting to the language that was
originally proposed at the RSAC level.
As for using a defined term to capture
the types of equipment delineated in
paragraph (n)(6), FRA declines. FRA
recognizes and appreciates the benefits
of using a more elegantly defined term.
However, no such term was offered and
FRA is unaware of any appropriate term
to use at this time.
The regulatory text exempts residue
cars from consideration. Residue cars
are defined by PHMSA under the HMR.
See 49 CFR 171.8. FRA will continue to
rely on the HMR for this definition,
even if amended. FRA does not believe
the train placement requirements in that
PHMSA rulemaking will affect the
securement regulations we are adopting
in the instant proceeding. Nevertheless,
the labor representatives have expressed
concerns that such inconsistent use may
foster confusion or be ‘‘pitted against
one another.’’ FRA sought further
comment explaining how such
confusion or conflict may manifest
itself.
NYSDOT believes that exempting
residue cars from the requirements of
this rule would appear contradictory to
the language contained throughout the
HMR, which have been written from a
perspective that a packaging containing
residue remains potentially hazardous.
Although FRA does not believe that any
resulting train placement regulation
would affect the securement regulations
we are considering, it is not clear to
NYSDOT what particular advantage is
gained by granting this exception for
residue cars. From a risk perspective,
NYSDOT believes it would seem
reasonable to treat all placarded residue
cars as potentially hazardous until such
time that they are cleaned and purged,
including for the purposes of
securement. In order to avoid the
potential for confusion in terms of
interpreting the HMR, NYSDOT
contends that the provisions that apply
to residue cars should remain consistent
throughout. Therefore, NYSDOT
recommends that the exclusion outlined
in 232.103(n)(6)(ii) not be included in
the final rule.
Riverkeeper believes that residue cars
are still inherently dangerous and
47361
should be covered by the regulation.
According to Riverkeeper, cars carrying
crude oil such as heavy, sinking tar
sands oils, are expected to become more
regularly shipped and, if spilled, could
cause equally significant economic and
environmental damage.
When considering whether to apply
the applicable requirements to residue
cars, FRA made an effort to balance the
associated risks with the cost of
compliance. While FRA recognizes that
certain residue tank cars may still pose
inherent danger in the event of a release,
experience has shown that the
magnitude of the results are
significantly less than those from an
event releasing the contents of a loaded
tank car. Further, loaded tank cars are
generally treated more rigorously by
existing Federal safety regulations. See,
e.g., 49 CFR 172.204(b)(2), 174.14, and
174.86(b). Given the cost of compliance,
FRA believes that regulatory relief is
warranted here. Moreover, FRA notes
that all of its existing securement
requirements contained in paragraph (n)
apply to trains and cars containing
residue cars. Nevertheless, FRA will
continue to monitor accidents involving
residue tank cars and will continue to
dialog with PHMSA to determine
whether further action will become
necessary in the future.
Paragraph (n)(7) provides certain
conditions under which such
equipment may be left unattended,
including the development of a plan
identifying locations where such
equipment may be left unattended.
Paragraph (n)(8) includes specific
requirements regarding the securement
of such equipment. The following chart
attempts to quickly summarize the
requirements of paragraphs (n)(7) and
(n)(8).
SECUREMENT OF UNATTENDED EQUIPMENT DEFINED BY § 232.103(N)(6)
Paragraph
Equipment
Track location
(7)(i) ...................
All ...........................................................
(7)(ii) ..................
(8)(i) ...................
Freight train ............................................
Freight train or standing freight car or
cars.
Controlling locomotive cab .....................
Locomotive .............................................
Main track or siding outside and not adjacent to a yard.
In or adjacent to yard .............................
Main line outside yard ............................
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(8)(ii) ..................
(8)(iii) ..................
Emergency Order 28 prohibits each
railroad from leaving trains or vehicles
that are transporting certain hazardous
materials on mainline track or mainline
siding outside of a yard or terminal
unless the railroad adopts and complies
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Everywhere ............................................
In or adjacent to yard .............................
with a plan that identifies the specific
locations and circumstances for which it
is safe and suitable for leaving such
trains or vehicles unattended.
According to Emergency Order 28, the
plan must contain sufficient analysis of
PO 00000
Requirement
Frm 00013
Fmt 4701
Sfmt 4700
Plan.
Verify (8)(i) and Apply Lock (8)(ii).
Verify (8)(i) and Apply Lock (8)(ii).
Apply Lock.
Exception to applying lock if locomotive
not equipped with lock, or if lock not
operable and reverser not removable.
the safety risks and any mitigating
circumstances the railroad has
considered in making its determination.
FRA expressed its intent not to formally
grant approval to any plan. However, it
does monitor such plans, and, in the
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event that FRA determines that
adequate justification is not provided,
the railroad is required to ensure that
trains and equipment are attended until
appropriate modifications are made to
the railroad’s plan.
In paragraph (n)(7)(i), FRA continues
these requirements by regulation. While
FRA continues to believe that it is not
necessary to provide approval for each
plan, which could take considerable
resources, FRA must ensure proper
enforcement and oversight.
Accordingly, paragraph (n)(7)(i) also
requires that the railroad notify FRA
when it modifies its existing plan and
provide FRA with a copy of the plan
upon request. For similar reasons, FRA
will also retain the right to require
modifications to any insufficient plan.
Riverkeeper notes that the equipment
defined under paragraph (n)(6) can be
left unattended if a justification is
provided to FRA, characterizing this
allowance as a ‘‘loophole.’’ Riverkeeper
also criticizes FRA’s decision to reserve
the right to review any plan as an
‘‘abrogation of responsibility’’ and
asserts that railroads should not be left
to develop their own plans without FRA
review.
FRA disagrees with Riverkeeper’s
characterization. The existing
regulations have always allowed
equipment to be left unattended and
provided that certain actions be taken to
secure equipment in such instances.
From an economic perspective, this
would be extremely burdensome. From
a safety perspective, there would only
be a marginal benefit to require at all
times attendance on a train defined by
§ 232.103(n)(6) when it has been
properly secured in accordance with the
provisions in this final rule. The
‘‘justification’’ referenced by
Riverkeeper is not a ‘‘loophole’’ because
it relates solely to the new requirement
that the railroads identify locations
where equipment may be left
unattended. Moreover, FRA’s decision
to not require FRA approval of each
plan is also consistent with the
principles of regulatory economy and
FRA’s budget and personnel
capabilities. The plans, which concern
appropriate and safe locations, do not
necessarily include any additional
safety requirements per paragraph
(n)(7). Thus, FRA does not believe that
prior FRA approval is absolutely
necessary here. Nevertheless, FRA has
reserved the right to access, review, and
require modification of the plan in the
event it determines a location is
insufficiently safe to leave equipment
unattended.
In relation to the requirement that the
railroad must notify FRA when it
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Jkt 235001
modifies its existing plan and provide
FRA with a copy of the plan upon
request, CPUC requests that such
authority extend to all State Safety
Participation personnel. CPUC also
requests that FRA and its state partners
have access upon request to the
underlying research that validates these
plans as safe to provide for ‘‘validating
oversight.’’
FRA believes that the modification
proposed by CPUC is unnecessary
because state inspectors that have the
authority to inspect for part 232
compliance would be entitled to
independently receive the plan directly
from a railroad as long as it is requested
in the course of a safety inspection and
it is necessary for determining
compliance with the relevant section in
part 232. While state inspectors have
faced difficulties with railroad
responsiveness, FRA inspectors have
experienced the same problems. The
agency has engaged AAR on this issue
to ensure that railroads are providing
requested materials in a timely manner.
See Letter to Edward R. Hamberger,
President, AAR, from Joseph C. Szabo,
Administrator, FRA (April 4, 2013). If
FRA or state inspectors are unable to
obtain such documentation, they should
contact the appropriate FRA Railroad
System Oversight Manager (RSOM) or
FRA Regional personnel for assistance.
Paragraph (n)(7)(i) differs from
Emergency Order 28 in one manner. The
final rule allows a railroad to leave a
train or equipment unattended on
mainline track that is running through
a yard or on mainline track that is
adjacent to the yard without covering
the location in the railroad’s plan. This
change is based on feedback received
during the SWG meetings, which voted
unanimously to adopt the language in
paragraph (n)(7)(i), with the
recommendation of the full RSAC to
move forward with the regulatory
provision.
In Emergency Order 28, FRA made a
decision that it was not necessary to
include mainline tracks and mainline
sidings that run through a yard in a
railroad’s plan for leaving equipment
unattended. FRA’s rationale for this
decision was that a yard was defined
space where the railroad performed a
particular set of tasks (classifying cars,
making-up and inspecting trains, or
storing cars and equipment). As a result
of the tasks performed there, yards tend
to have appropriate geographic
characteristics, sufficient railroad
activity, and a population of railroad
personnel in close proximity that make
them appropriate places for leaving
equipment unattended. In FRA’s view,
mainline track that runs through a yard
PO 00000
Frm 00014
Fmt 4701
Sfmt 4700
shares those characteristics with the
yard tracks surrounding it. As a result,
it is often used as a de facto ‘‘yard’’
track to assist with classifying cars and
with making-up and inspecting trains.
As such, FRA did not see a need when
drafting Emergency Order 28 for
railroads to identify mainline tracks
within a yard in the railroad’s
securement plan before a railroad would
be allowed to leave equipment
unattended on the mainline track that is
surrounded by a yard.
The feedback received through the
RSAC process was that tracks adjacent
to the yard share many of the same
characteristics as mainline tracks that
run through a yard. Therefore, this final
rule, as proposed in the NPRM, treats
mainline track that is adjacent to the
yard in the same manner that it is
currently treating mainline track that
runs through a yard under Emergency
Order 28. This requirement intends only
to cover those tracks that are
immediately adjacent to the yard and
that are in close enough proximity to the
yard that the adjacent tracks share the
characteristics of the yard.
NAFCA contests this requirement as
proposed, believing that such a change
should be postponed until after more
experience with observing multi-car
train movements of Class 3 flammable
liquids. According to NAFCA, the
requirement in Emergency Order 28 is
not unduly burdensome to the railroad.
FRA declines to postpone treating the
identified adjacent tracks as mainline
yard tracks. NAFCA does not explain
what benefits could be gained with
additional experience and does not
provide quantifiable or qualified
information to support its position that
such a postponement would not be
unduly burdensome to the railroads.
Given that there are vast differences
in surrounding population densities and
in the amount of railroad activity that
takes place at different rail yards,
NYSDOT believes that there should be
no differentiation in plan requirements
simply because the mainline tracks go
through or are adjacent to rail yards.
According to NYSDOT, there are many
railroad yards located in rural areas of
New York State with limited rail
operation activity, low population
density and in which ambient lighting
may be poor or nonexistent. In a letter
to President Obama dated September 23,
2014, Governor Cuomo recently
outlined New York’s safety concerns in
and around the areas in which crude-byrail trains dwell. NYSDOT believes that
sufficient analysis of the safety risks and
any mitigating circumstances should be
part of a railroad’s plan for all mainline
tracks and sidings irrespective of
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whether those tracks go through or are
adjacent to a rail yard.
Similarly, Riverkeeper contends that
FRA is assuming that trains are
inherently more secure in and around
yards to the point that they do not need
to be included in these securement
regulations, because rail yards and
sidings generally have more activity
than lone, far-flung mainline track.
Riverkeeper asserts that this conclusion
is not supported by any presented facts
and ignores the risks of unsecured trains
rolling out of yards, or sidings, or
mainlines near yards, potentially toward
imminent and significant disaster.
According to Riverkeeper, FRA’s
decision to treat yard-adjacent tracks the
same as mainline tracks within the yard
arbitrarily relies on nonspecific
‘‘railroad’’ activity and the assumption
that rail yard workers would be able to
respond to a runaway train in time to
avoid disaster. Riverkeeper concludes
that any final rule on securement must
apply to all unattended trains,
regardless of where they are left.
As discussed previously, the yard
exception in paragraph (n)(7)(i) is due to
FRA’s assessment that yards
overwhelming tend to have appropriate
geographic characteristics for leaving
equipment unattended and that there is
a higher likelihood of qualified people
being present and switching operations
occurring. FRA believes that some
commenters misunderstand the purpose
of the plan, which is merely to identify
locations where equipment may be left
unattended. The plan requirement does
not exempt the railroads from any
securement requirements under
§ 232.103(n). In other words,
securement of unattended equipment is
required regardless of location—except
as subject to certain switching-related
exceptions, including those relating to
TB 10–01—and paragraph (n)(7)(i) does
not affect those requirements. To the
extent that those commenting on
paragraph (n)(7)(i) are concerned that
the plan would exempt railroads from
complying with the hand brake and
other mechanical securement
requirements, FRA assures them that
this is not the case.
Paragraph (n)(7)(ii) establishes new
requirements for those trains that are
left unattended on mainline track that is
running through a yard or on mainline
track that is adjacent to the yard. It
applies aspects of Emergency Order 28
to these tracks by requiring verification
that securement has been completed in
accordance with the railroad’s process
and procedures (see discussion below
concerning paragraph (n)(8)(i)), and that
the locomotive cab is locked or the
reverser is removed from the control
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stand and placed in a secured location
(see discussion below concerning
paragraph (n)(8)(ii)), unless the
exception contained in paragraph
(n)(8)(iii) is applicable.
Emergency Order 28 requires
railroads to develop specific processes
for employees responsible for securing
any unattended train or vehicles
transporting certain hazardous materials
that must be left on mainline track or a
mainline siding outside of a yard. FRA
believes that this requirement should
continue in regulation. This final rule
allows a railroad to leave a paragraph
(n)(6) train unattended on mainline
track or a siding outside of a yard where
the railroad has a plan in place and on
mainline tracks that are in or adjacent
to yards. In doing so, paragraph (n)(8)(i)
requires the employee responsible for
the securement of the equipment to
verify securement and paragraph
(n)(8)(ii) requires the train crew to lock
the controlling locomotive cab or
remove and secure the reverser from the
control stand.17
NYSDOT expresses confusion as to
the consistency of cross-referencing
language in paragraphs (n)(7)(ii) and
(n)(8)(i). Paragraph (n)(7)(ii) refers to
trains described in paragraph (n)(6) that
are ‘‘left unattended on a main track or
siding that runs through, or is directly
adjacent to a yard,’’ and states that the
requirements of paragraph 8(i) and 8(ii)
‘‘shall apply.’’ (Emphases NYSDOT’s.)
However, paragraph (n)(8)(i) states,
‘‘Where a freight train or standing
freight car or cars as described in
paragraph (n)(6) of this section is left
unattended on a main track or siding
outside of a yard, and not directly
adjacent to a yard, an employee
responsible for securing the equipment
shall verify with another person
qualified to make the determination that
the equipment is secured in accordance
with the railroad’s processes and
procedures.’’ (Emphasis NYSDOT’s.)
According to NYSDOT, the wording
‘‘shall apply’’ would seem to render the
provisions of paragraph (n)(7)(ii) moot,
since it appears to default to the
provisions of paragraphs (n)(8)(i) and
(n)(8)(ii) for all trains left unattended,
irrespective of their location relative to
a yard.
FRA understands that NYSDOT is
expressing confusion in that paragraph
(n)(7)(ii) applies to trains in or adjacent
to a yard must follow paragraph
(n)(8)(i), which actually applies to trains
outside a yard. FRA would like to
17 The reverser is the directional control for the
locomotive. Removing the reverser would
essentially put the locomotive in neutral,
preventing it from moving forward or backward
under the power of the engine.
PO 00000
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47363
clarify that the distinction here is that
(n)(7)(ii) limits the applicability of (n)(8)
only to trains left unattended in yards
or adjacent to them, whereas the
provisions of (n)(8) apply to both trains
and cars left outside of yards. In other
words, in context with one another,
these paragraphs require securement
verification and lock application on all
unattended freight trains defined under
paragraph (n)6), regardless of whether
they are located inside or outside of a
yard, and on all standing freight cars
defined under paragraph (n)6) on a main
line outside of a yard. The implication
is that these requirements do not apply
to standing freight cars inside and
adjacent to yards. FRA intends the
above chart to act as a visual aid to
communicate these similarities and
differences.
NYSDOT is in agreement with the
requirement that an employee
responsible for securing the equipment
shall verify with another qualified
person that the equipment is secured in
accordance with railroad procedures for
all trains left unattended. Based upon its
interpretation as written, NYSDOT
suggests that paragraph (n)(7)(ii) be
omitted and that the language of
paragraph (n)(8)(i) be changed to:
‘‘Where a freight train or standing
freight car or cars as described in
paragraph [(n)(6)] of this section is left
unattended on a main track or siding, an
employee responsible for securing the
equipment shall verify [. . .] etc.’’
Paragraph (n)(8)(i) requires that an
employee responsible for securing
equipment defined by paragraph (n)(6)
verify securement with another
qualified person. This is similar to
Emergency Order 28, which requires
employees to verify proper securement
with a qualified railroad employee. This
may be done by relaying pertinent
securement information (i.e., the
number of hand brakes applied, the
tonnage and length of the train or
vehicle, the grade and terrain features of
the track, any relevant weather
conditions, and the type of equipment
being secured) to the qualified railroad
employee. The qualified railroad
employee must then verify and confirm
with the train crew that the securement
meets the railroad’s requirements.
However, paragraph (n)(8)(i) does not
contain a requirement that the railroad
maintain a record of the verification of
proper securement.
FRA believes that the type of
verification requirement in paragraph
(n)(8)(i) will serve to ensure that any
employee who is responsible for
securing equipment containing
hazardous materials will follow
appropriate procedures because the
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employee will need to fully consider the
securement procedures to relay what
was done to the qualified employee.
Further, the qualified railroad employee
(e.g. a trainmaster, road foreman of
engines, or another train crew
employee) will be in a position to
ensure that a sufficient number of hand
brakes have been applied. Under this
final rule, the qualified railroad
employee must have adequate
knowledge of the railroad’s securement
requirements for the specific location or
for the specific circumstance for which
the equipment will be left unattended.
Without limiting the type of employee
who may be qualified, FRA envisions
that a dispatcher, roadmaster,
yardmaster, road foreman of engines, or
another crew member would be able to
serve in the verification capacity.
Riverkeeper criticizes FRA’s ‘‘refusal’’
to limit the type of employee who may
be qualified and claims that FRA also
fails to specify the type of verification
or even the details that must be
provided.
As previously noted, FRA believes
that a certain set of qualifications or
base of knowledge is necessary to be
part of the conversation relating to
securement. While the employee’s
‘‘type’’ or title may be instructive, it
should not be the sole or primary
element in determining whether an
individual is qualified to apply or verify
the securement rules. FRA also believes
that the existing rule and this final rule
address the needs relating to the type of
verification or its required details. As
for the required details, they have
already been established in the existing
regulations and in each railroad’s
processes and procedures. According to
the proposed text, the responsible
employee must ‘‘verify with another
person qualified to make the
determination that the equipment is
secured in accordance with the
railroad’s processes and procedures.’’
Riverkeeper suggests no further details
clarifying its position to FRA.
FRA has decided not to continue the
recordation requirement based on
experience enforcing section 2b of
Emergency Order 28. FRA has found
that requiring recordation of securement
information is superfluous because the
verification requirement ensures that
two individuals consulting with each
other make certain that the appropriate
securement method is used. The intent
of the recordation requirement was to
ensure the communications are taking
place. FRA has found that, since
issuance of Emergency Order 28,
communications occur in the course of
the verification process. Therefore, it
does not believe requiring railroads to
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make a record of each securement event
is necessary to ensure proper
securement. FRA sought comment
concerning enforcement of the
verification requirement, absent
recordation.
CPUC does not see sufficient
justification for eliminating the
recordation requirement under
Emergency Order 28. CPUC
recommends that FRA at least reinstate
some form of recording of the details of
securing the train—such as a crew
member filling out a form and leaving
on the controlling locomotive—detailing
the method used and the specifics of
implementing the method—such as the
number of hand brakes tied per the
railroad’s process and procedure already
required by regulation. According to
CPUC, such a requirement would
enhance accountability, require more
careful attention, provide better crew-tocrew communications, avoid dispatcher
time and record keeping, and aid in
accident investigations, enforcement
efforts, and safety practice
improvements.
CPUC would also not rely on FRA’s
recent experience as sufficient to
warrant removal of the recordation
requirement. CPUC believes that as
more time passes and attention to the
´
Lac-Megantic accident fades, the public
cannot be confident that all safe
practices will be followed without
structured verification.
NAFCA believes that recordation is a
salutatory safety measure that should
remain in place for the foreseeable
future, recommending that it only be
rescinded after FRA gains more
experience in this area.
NTSB believes that a recordation
process for the verification of proper
securement is critical for ensuring that
unattended equipment is secure and
that FRA should continue this
requirement from Emergency Order 28,
which provided a definitive check on
the process. NTSB suggests that written
verification (recordation) be required
when one crew member leaves a train
unattended. According to NTSB, such a
requirement would provide verification
of the work performed and offer
information to the relieving crew (for
inclusion in job briefings) regarding the
condition and status of equipment.
NTSB also claims that in the NPRM
FRA provided no data to support its
decision not to continue the recordation
requirement ‘‘based on experience in
enforcing Emergency Order 28.’’
NYSDOT supports maintaining the
recordation requirement and believes
that its removal would make extremely
challenging enforcement of § 232.103(n)
as it relates to such recordation and to
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Frm 00016
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verify how actual and adequate
securement. NYSDOT notes that it aids
the incoming train crew in its
assessment of how many hand brakes
need to be released before the train
continues its movement.
Riverkeeper also believes that the
recordation requirement should remain.
Otherwise, states Riverkeeper, an
employee may easily not comply with
safety protocols and FRA may find it
difficult to meaningfully enforce the
securement requirements. Riverkeeper
also characterizes as circular FRA’s
justification for removing the
recordation requirement; while FRA’s
purpose to require recordation was to
ensure that communications are taking
place, FRA found that over the last year
that communications occur in the
course of the verification process and
that recording is not necessary.
Riverkeeper asserts that FRA failed to
provide any evidence supporting its
contention that ‘‘over the last year . . .
communications occur’’ between the
securing employee and the overseeing
employee. Riverkeeper also believes that
FRA misses the point that maintaining
records is to allow for oversight and
enforcement.
Under the existing rule, the railroads
are required to secure unattended
equipment by applying a sufficient
number of hand brakes and other safety
procedures. FRA continues to believe
that the existing requirements, if
followed, include sufficient protections.
FRA’s concerns have been raised,
particularly in the face of the accident
´
in Lac Megantic, regarding compliance
with those measures. Thus, when FRA
issued Emergency Order 28, it included
requirements with the primary goal to
increase railroad compliance with the
existing safety requirements as they
apply to certain hazardous materials
shipments. The requirement that the
employee responsible for securement
verify with a qualified person whether
the equipment was secured
appropriately was drafted as a
communicative measure to ensure
compliance with existing securement
requirements. The recordation
requirement was an additional, second
layer of communication to also ensure
such compliance. While its
supplementary benefits included a
documentation of the information that
could aid other crews, future
investigations, and enforcement actions,
those were not FRA’s primary goals.
While recordation would provide such
additional benefits, FRA believes that
verification should be sufficient at this
time, especially since recordation of
securement could result in expending
railroad resources as an unnecessary
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redundancy. FRA’s inspectors have
extensive experience in enforcing
communicative regulations without the
benefit of documentation (see, e.g., 49
CFR 218.99, 218.103, 218.105, and
218.109). While recordation may be
helpful in some instances, it is not
necessary. For instance, since
verification must be accomplished by at
least two people, an inspector may
interview them both to determine
whether verification occurred correctly.
FRA has faced similar questions
before regarding recordation of certain
activities. For instance, in a rulemaking
codifying the requirements of
Emergency Order 24 concerning the
handling of equipment, switches, and
fixed derails, FRA declined to
continually require the use of a Switch
Position Awareness Form (SPAF) to
remind employees of the importance of
properly lining and locking main track
switches. See 73 FR 8442, 8448, Feb. 13,
2008. While the resulting paperwork
burden and communication redundancy
was acceptable for the purposes of
Emergency Order 24, FRA decided not
to require a SPAF in the associated final
rule because other comprehensive
communication regulatory requirements
created a direct enforcement mechanism
that made enforcement through a SPAF
redundant. See id. In that rulemaking,
and in its own proceedings, NTSB
supported removal of the similar
paperwork burden. See id; NTSB,
Collision of Norfolk Southern Freight
Train 192 With Standing Norfolk
Southern Local Train P22 With
Subsequent Hazardous Materials
Release at Graniteville, South Carolina,
Railroad Accident Report, NTSB/RAR–
05/04, at 45, available at https://
www.ntsb.gov/investigations/
AccidentReports/Reports/RAR0504.pdf.
FRA’s position in this rulemaking is
consistent with the position taken in the
final rule codifying Emergency Order
24. There have not been adverse safety
consequences associated with
eliminating the reporting requirement in
Emergency Order 24, and FRA does not
expect any adverse safety consequences
in this instance. However, FRA will
continue to monitor securement of
equipment defined under paragraph
(n)(6) to assess the effectiveness of the
verification process that is being
instituted in this final rule.
Also under Emergency Order 28, the
employees responsible for securing the
train or vehicles must lock the
controlling locomotive cab door or
remove and secure the reverser before
leaving it unattended. Accordingly,
paragraph (n)(8)(ii) requires further
protection of the locomotive to prevent
movement of unattended equipment
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Jkt 235001
that could be caused by unauthorized
access to the locomotive cab.
Representatives from the railroad
labor strongly suggested at the SWG
meetings that a locking mechanism be
applied to each locomotive covered
under this rule, seeking that lock
installation be complete within 18
months. BLET stated that locomotive
cab security is a major concern to the
labor caucus.
The language approved by the SWG
provided that the controlling locomotive
cab shall be locked on locomotives
capable of being locked or the reverser
on the controlling locomotive shall be
removed from the control stand and
placed in a secured location. The use of
the conjunctive appears to indicate a
choice; each railroad may opt to either
lock the locomotive or remove its
reverser. However, based on the
discussions during the SWG meetings,
FRA believes that the SWG intended for
paragraph (n)(8)(ii) to mean that all
covered locomotives should be locked
when so equipped. FRA has made slight
alterations to the language in paragraph
(n)(8)(ii) from the language that was
approved by the SWG in order to more
accurately address the lock requirement.
FRA understands that the reverser
provision is intended for the interim
period until locks are installed or for
when a locomotive has been equipped
with a lock but the lock has become
inoperative. FRA also notes that under
this final rule a railroad would be free
to require both the locking of the
locomotive and the removal of the
reverser. FRA does not intend to limit
a railroad to just one or the other. FRA
sought comment on this understanding,
particularly as to whether the
alternative of removing the reverser
should only be available during the
timeframe when the locking mechanism
becomes broken or otherwise ineffective
or whether, in the interest of safety
redundancy, the regulations should
require railroads to both lock cab doors
and to remove reverser handles.
NTSB believes that, in the interest of
safety, the regulation should require the
locking of the locomotive cab doors, as
well as removing and securing the
reverser handles. According to NTSB,
such redundancy will ensure a higher
level of safety.
NYSDOT also supports the view that
redundancy of safety or security
procedures is beneficial in terms of
addressing risk. Therefore, NYSDOT
believes that, when the train is left
unattended, the locomotive cab door
lock must be engaged (if operative) and
the reverser must be removed and
secured where feasible.
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FRA is not persuaded by the
comments, which provide no new
information or argument. FRA continues
to believe that it is not necessary to
ensure safety by requiring by regulation
the locking of the cab door and removal
of the reverser. FRA recognizes that the
railroads are already, or will be,
installing locks on cab doors. This final
rule formally requires such installation
and requires their application for
unsecured equipment in accordance
with this rule. While this final rule does
not require removal of the reverser in
cases where an operative lock is
applied, the railroads are free to include
such a requirement in their respective
operating rules. For the purpose of this
final rule, the lock will be the primary
means of locomotive cab securement
and reverser removal will be required
only as a backup.
When a railroad relies on removing
the reverser as a means for securement,
FRA expects that the reverser will be
taken by the appropriate railroad
employee from the controlling
locomotive cab so that it is not
accessible to an unauthorized person
such as a trespasser. Alternatively, FRA
anticipates allowing the reverser to be
secured in the cab of an unlocked
controlling locomotive as long as the
reverser is kept in a box or other
compartment that can be locked within
the locomotive cab. However, FRA
would not consider a reverser ‘‘secured’’
within the meaning of this final rule if
the railroad allows the reverser to be
stored merely out of plain sight.
In most instances, FRA would
consider a locomotive with an
ineffective locking mechanism to be
noncompliant with paragraph (n)(8)(ii)
if the locomotive is left unattended with
the reverser remaining in the control
stand. FRA recognizes that there may be
limited circumstances where a
locomotive’s lock becomes inoperative
and its reverser cannot be removed, thus
making compliance with proposed
paragraph (n)(8)(ii) nearly impossible.
Accordingly, for such instances, this
final rule includes an exception under
paragraph (n)(8)(iii). FRA believes that
application of this exception would
only be utilized on the rare occasion
where older locomotives with integrated
reversers may be utilized or where
weather conditions make the reverser
necessary for operations (i.e., to prevent
the locomotive from freezing) and that
such trains would only be left
unattended in a yard or on a track
directly adjacent to a yard. FRA sought
comments on the intent, application,
and language of this proposed
exception.
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NYSDOT states that the data provided
in the analysis section of the NPRM
indicates that the cost associated with
repairing or replacing a locking
mechanism is relatively small.
According to NYSDOT, it is accepted
that the goal of this particular exception
is to provide relief in the rare instances
where operation of ‘‘non-conforming’’
equipment (e.g. locomotive cabs without
operative locks or removable reversers)
would be required. However, given the
acknowledged security concerns
inherent with leaving trains unattended,
NYSDOT asserts that consideration
should be given to requiring attendance
on the affected equipment until such
time that the inoperative locking
mechanisms can be repaired or replaced
in conformance with paragraph
(n)(8)(ii).
The purpose of the existing
securement rule and this final rule is
not to require attendance, but to require
certain safety protocols when certain
equipment is left unattended. To require
attendance, as suggested by NYSDOT,
would have this rule go further than
FRA’s intent and could amount to
substantial and unnecessary costs for
the railroads. Moreover, such a
requirement likely would result in
unanticipated impacts affecting FRA’s
hours of service rules, which is not
FRA’s intent in this rulemaking.
FRA believes that the job briefing
requirement in Emergency Order 28
should be codified in regulation.
Accordingly, paragraph (n)(9) requires
each railroad to implement operating
rules and practices requiring the
discussion of securement among crew
members and other involved railroad
employees before engaging in any job
that will impact or require the
securement of any equipment in the
course of the work being performed.
This requirement is analogous to other
Federal regulations that require crew
members to have a job briefing before
performing various tasks, such as
confirming the position of a main track
switch before leaving an area. The
purpose of this job briefing requirement
is to make certain that all crew members
and other involved railroad employees
are aware of what is necessary to
properly secure the equipment in
compliance with § 232.103(n).
Under this final rule, FRA expects
that the crew will discuss the
equipment that is impacted, the
responsibilities of each employee
involved in the securement of a train or
vehicle, the number of hand brakes that
will be required to secure the affected
equipment, the process for ensuring that
securement is sufficient, how the
verification will be determined, and any
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other relevant factors affecting
securement. FRA sought comments on
whether these expectations are
reasonable, accurate, and either
sufficiently comprehensive or somehow
lacking.
NYSDOT agrees that the specific job
briefing requirements should be left up
to the railroads and that effective
policies and procedures are important.
However, NYSDOT remains concerned
about the ability to record or document
the actions taken in accordance with
those policies and procedures.
Riverkeeper believes that, although
FRA claims that new requirements of
the rules proposed here would indeed
‘‘enhance safety culture and oversight,’’
the new requirements do not go far
enough and lack the enforceability
needed to actually change the status
quo. Riverkeeper says that, while the
NPRM proposes ‘‘requiring that
securement be part of all relevant job
briefings,’’ FRA has no ability to
ascertain whether briefed employees
understand, or are implementing,
securement policies. Riverkeeper
similarly states that although FRA
proposes requiring that there be more
‘‘dialog between railroad employees
[which would] provide enhanced
oversight within the organization,’’ it
has no way to ensure that such dialogs
occur, or whether they actually improve
compliance rates. Riverkeeper notes that
neither of these cultural changes will
necessarily be reported to the FRA or
the public in a manner that promotes
transparent oversight and robust
enforcement.
FRA disagrees with Riverkeeper’s
assessment regarding the effectiveness
of the job briefing requirement and its
regulatory enforceability. Crew members
are already trained and qualified to
understand briefing contents and the
procedures and mechanics involved
with securing unattended equipment.
FRA also has extensive experience
enforcing the job briefing criteria (see,
e.g., 49 CFR 214.315, 218.99, 218.103,
218.105, and 218.109) and expects to
apply similar investigative methods
when enforcing paragraph (n).
FRA recognizes that, in some
instances, there may be only one crew
member performing a switch or
operation and that crew member would
have to secure equipment alone at the
end of the activity. In the NPRM, FRA
expressed its belief that the issue of selfsatisfying a job briefing is best left to the
railroad when complying with part 218
and sought comment on how to apply
this requirement in a situation involving
a single person crew and how it
interrelates with part 218.
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NYSDOT acknowledges that single
person crews pose a challenge in terms
of ensuring that the safety benefits
inherent with effective job briefings are
assured in all instances, including
single-person operations. At a
minimum, states NYSDOT, the
procedures for conducting job briefings
should be established in the railroad’s
operating rules or in its timetable
special instruction for all locations and
operations to ensure that expectations
are clearly established.
FRA continues to believe that it is
sufficient for a one-person crew to selfsatisfy a job briefing in accordance with
the railroad’s own operating rules
developed pursuant to part 218.
Under paragraph (n)(10), FRA is
requiring railroads to develop
procedures to ensure that a qualified
railroad employee inspects all
equipment that any emergency
responder has been on, under, or
between for proper securement before
the rail equipment or train is left
unattended. As it may be necessary for
emergency responders to modify the
state of the equipment for the
performance of their jobs by going on,
under, or between equipment, it is
critical for the railroad to have a
qualified employee subsequently
inspect the equipment to ensure that the
equipment continues to be properly
secured before it is again left
unattended.
The final rule requires railroads to
establish a process to ensure that a
qualified railroad employee inspects all
equipment that any emergency
responder (e.g., fireman, policeman, or
paramedic) has been on, under, or
between for proper securement before
the train or vehicle is left unattended.
FRA understands that on rare occasions
there may be situations where an
emergency responder accesses railroad
equipment without the knowledge of
the railroad. FRA will expect that a
qualified railroad employee inspect
equipment after it has been accessed by
an emergency responder in any
circumstance where the railroad acting
in a reasonable manner knew or should
have known of an emergency
responder’s presence on, under, or
between the subject equipment.
The final rule requires that these
procedures are followed as soon as
safely practicable after learning that an
emergency responder has interfaced
with the equipment. In the NPRM, FRA
sought comments on what should be
considered ‘‘as soon as safely
practicable.’’
AAR and ASLRRA reiterated earlier
statements that the railroads support,
and that the final rule should include,
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the language ‘‘as soon as safely
practicable.’’ AAR and ASLRRA assert
that this language addresses the reality
of situations where an emergency
responder has had contact with rail
equipment.
NYSDOT believes that the type and
severity associated with any emergency
event will significantly influence the
definition of ‘‘as soon as safely
practicable.’’ NYSDOT would
recommend that, given their significant
training regarding personal safety and
protection, the first responders on-site
would be a reasonable ‘real time’
resource to provide the requisite
guidance in each case. NYSDOT
consulted with counterparts from the
NYS Division of Homeland Security and
Emergency Services (DHSES), Office of
Fire Prevention and Control (OFPC) on
this topic. OFPC recommends that for
scenarios in which first responders
access unattended equipment without
the on-site presence of railroad
personnel, effective communication and
coordination will be critical in assuring
that the incident scene and access to the
equipment be turned over to the
appropriate railroad representative (i.e.
‘‘qualified employee’’) when it has been
determined safe to do so. NYSDOT also
states that in no case should the affected
equipment be left in a potentially unsafe
or unattended condition prior to the
arrival of railroad personnel designated
by the railroad to inspect and assume
responsibility for that equipment and its
proper securement.
FRA shares NYSDOT’s concerns.
However, while emergency and first
responder training would certainly be
beneficial, FRA will refrain from
imposing such requirements at this
time. Emergency response is primarily a
local function that falls under State or
local governance, which could impose
such training requirements. FRA notes,
however, that AAR is currently
providing training at its Transportation
Technology Center, Inc. (TTCI) to
emergency responders on handling
accidents involving crude oil. Moreover,
if each railroad’s employee is properly
trained and complies with this
regulation, there is little need to require
emergency responder training, which
could be quite costly nationwide.
AAR and ASLRRA also make clear
their belief that, in such a situation, the
railroad has to have actual knowledge
that an emergency responder has been
on the equipment and it has to be safe
for the employee to inspect the
equipment. According to AAR and
ASLRRA, in some situations, the
railroad might not know that an
emergency responder has been in
contact with the equipment until
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sometime after the contact.
Additionally, AAR and ASLRRA assert
that in a potential emergency situation,
the railroad needs to be able to ensure
that its employees can safely examine
the equipment before being able to
verify its securement.
When enforcing this provision, FRA
will consider the railroad’s actual and
constructive knowledge of any
emergency responder’s presence.
However, FRA does not expect to hold
the railroad accountable if there is no
reasonable means for the railroad to
have known. Further, the ‘‘safely
practicable’’ language is intended to
take into consideration the
circumstances presented. FRA’s intent
with this regulation is not put a railroad
employee in harm’s way by requiring
him or her to enter an unsafe situation
following an instance where a first
responder goes on, under, or between
equipment. However, FRA will require
the railroad to take action once it can be
reasonably ascertained that securement
can be effectuated without unnecessary
danger.
As noted above, on March 24, 2010,
FRA issued TB 10–01 to provide
enforcement guidance regarding the
securement of equipment, particularly
in classification yards. In the NPRM to
this proceeding, FRA proposed
codifying TB 10–01 by amending the
rule at the final rule stage of this
proceeding. Accordingly, this final rule
includes a clarifying amendment to
ensure that FRA’s long-standing
interpretation and application of the
existing regulation is contained directly
in the regulation. These amendments
are for clarification purposes only and
add no new requirements to the
regulations.
NYSDOT agrees with the exception in
TB 10–01 that, in certain circumstances
within classification yards, skates or
retarders in lieu of hand brakes may be
used to secure equipment. AAR and
ASLRRA expressed concern that the
NPRM did not include any proposed
regulatory text and recommended that
FRA place the issue before the RSAC
SWG for discussion.
TB 10–01 was issued approximately
five years ago and the railroad industry
has had significant opportunity to
become accustomed to its
interpretations of the existing rules. TB
10–01, and its codification in this
rulemaking, does not provide any new
requirements; if anything, it formalizes
exceptions that provide operational
flexibility for railroads in classification
yards. FRA sought comment on this
issue and had not received any
regulatory text recommendations.
Accordingly, FRA does not believe it is
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necessary to either extend the comment
period on this issue or recall the RSAC
SWG for further discussion.
The purpose of TB 10–01, and its
codification in this final rule, is to
indicate how § 232.103(n) applies in
classification yards. Much of TB 10–01
is purely guidance, which will be
incorporated into this preamble for
posterity. There are a few portions of TB
10–01, however, which provide
alternative securement options. These
alternatives are being codified into the
rule text as further discussed below.
Upon the effective date of this final rule,
which will incorporate TB 10–01, that
guidance document itself will be
rescinded. However, for continued
guidance and educational purposes,
FRA has placed the illustrative
photographs from TB 10–01 into the
docket of this proceeding.
Prior to issuance of TB 10–01, FRA’s
Railroad Safety Board reiterated that the
failure to apply any hand brakes on
unattended equipment does not comply
with the securement requirements of
§ 232.103.18 However, FRA recognizes
that it is sometimes necessary in the
switching of trains within classification
yards to have equipment unsecured
with hand brakes. Therefore, like the
TB, this final rule allows for alternate
forms of securement in limited
circumstances—including where they
may be appropriate and what
constitutes effective use of alternate
forms of securement. It also provides
flexibility in the application of
securement on repair tracks.
Section 232.103(n) addresses the
securement of unattended equipment by
means of applying hand brakes, venting
the brake pipe to zero and leaving the
angle cock open on one end of a cut of
cars, and requiring the railroad to
develop and implement procedures to
verify that the equipment is secure.
Unattended equipment is equipment left
standing and unmanned in such a
manner that the brake system of the
equipment cannot be readily controlled
by a qualified person. When assessing
this situation for compliance, FRA may
take into account the following factors:
• Can an individual take corrective
action if the equipment should start to
roll away?
• Can the individual readily mount
the car and apply the hand brake, or can
the individual safely open an angle cock
should the equipment start to roll away?
18 See Letter from Grady C. Cothen, Jr., Deputy
Associate Administrator for Safety Standards and
Program Development, Federal Railroad
Administration, to Thomas J. Healey, Regulatory
Counsel, and Jeffery A. Liepelt, VP Operations,
Canadian National Railway Company, Docket No.
FRA–2008–0060 (Apr. 3, 2009).
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• Can the individual readily mount
the locomotive and either apply the
hand brake or operate the brake handles
or emergency brake valve to stop the
unexpected movement?
• Is a qualified person focused on the
situation?
• If the individual is eating lunch or
in the bathroom, full attention is not
being given to the equipment.
• If the individual is in a crew room
or talking on the phone, full attention is
not being given to the equipment.
If an engineer and crew get off of their
train to watch a passing train, and
remain in close proximity to their
locomotive consist, hand brakes would
not have to be applied on the
locomotives as long as someone is close
enough to readily mount the locomotive
and apply an emergency brake or hand
brake, should the locomotives or train
start to roll away. In these situations,
FRA would consider the equipment
attended. However, if the engineer and
crew get off their train and position
themselves with the passing train
between them and their train, hand
brakes have to be applied, as their train
would be considered unattended.
Paragraph (n)(1) of § 232.103 includes
a performance-based requirement that a
sufficient number of hand brakes be
applied to hold the equipment and that
railroads have to develop and
implement a process or procedure to
verify that the applied hand brakes will
sufficiently hold the equipment when
the air brakes are released. This requires
a railroad to develop appropriate
operating rules to verify the sufficiency
of the hand brakes applied, which can
be tailored to the specific territory and
equipment operated by the railroad.
This can be as elaborate as the use of a
sophisticated matrix or some other type
of ‘‘set calculations’’ that specify exactly
how many hand brakes have to be
applied on specific numbers of cars; or
it can be as simple as having the
engineer release the pneumatic brakes
after the hand brakes have been applied
(and before uncoupling from the cars) to
determine if the equipment is secure. To
simply have instructions that state ‘‘a
sufficient number of hand brakes have
to be applied’’ does not satisfy the intent
of the regulation, unless there is the
provision that the pneumatic brake has
to be released to determine the
equipment is secure. When observing
this practice, it is important that the
pneumatic brakes fully release. This can
be accomplished by observing piston
travel on the rearmost car, or observing
and ensuring that the end-of-train brake
pipe pressure returns to its original
setting.
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Unless alternate forms of securement
are permitted (as discussed below), it is
FRA’s enforcement policy that one or
more hand brakes will have to be
applied to a car in order to sufficiently
secure equipment in accordance with
the regulation. The application of no
hand brakes on a car or a block of
unattended freight cars will not meet
the securement requirements of 49 CFR
232.103(n).
In paragraph (n)(11) of this final rule,
FRA is including exceptions from
certain portions of the remainder of
§ 232.103(n) as long as a delineated
alternative is followed.
Paragraph (n)(11)(i) provides the
flexibility to allow a railroad to use in
a prescribed location an alternative
means of securement in lieu of hand
brakes per the remainder of paragraph
(n). Like in TB 10–01, FRA continues to
believe in this final rule that unattended
equipment in classification yards—a
series of tracks where locomotives and
cars are classified or switched to
dismantle and make-up train sets—
present situations where alternate forms
of securement can be allowed.
Classification yards may have hump,
bowl, flat, graded, or other
characteristics. These characteristics
and other local conditions, such as
prevailing winds and possible severe
weather, should be considered by the
railroad in developing its instructions
for using alternate forms of securement.
The burden of proof is on the railroad
in the use of alternate securement. If
alternate securement is not effective,
securement defaults to the application
of a sufficient number of hand brakes.
In classification yards, securement is
not required for the end of the yard that
is actively being switched and is
attended by the switch crew or hump
tower operator. At these locations, FRA
does not require securement for cars or
blocks of cars on the yard tracks, as long
as the equipment on the opposite end of
those tracks being actively switched are
secure. FRA believes that this flexibility
applies only when active switching is
occurring and is not otherwise affected
by the commodities being handled,
including equipment defined by
paragraph (n)(6). If the operations at
these locations do not work for 24 hours
a day, 7 days a week, then the
equipment at each end of the track
would have to be secured, but cars in
between the secured equipment would
not have to be secured. At these
locations, if a train crew removes a car
or block of cars, the railroad shall have
instructions in place to ensure any car
remaining in the track is secure. This
could be accomplished by either placing
the burden on the train crew making the
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pickup, or by having other workers in
place to secure the remaining
equipment. At all other locations
outside of actively switched yards—
such as sidings, storage yards, or the
mainline—each car and each individual
block of unattended equipment must be
secure in compliance with the
regulation.
FRA recognizes that there may be
overlap between the securement
requirements within locomotive and car
repair track areas and with the alternate
methods of Blue Signal Protection (49
CFR 218.29), which are the primary
methods of ensuring safety in these
areas. However, once repair tracks
become unattended and the blue signals
are removed, securement will be
required in these areas subject to the
limitation that under certain repair and
servicing situations it will be
impractical or unnecessary to require
the application of a hand brake. These
would include equipment in repair
status that may be lacking hand brakes,
wheels, or trucks; and that is secured by
means of a mechanical securement
device; which could include jack
stands, chocks, chains, skates, or other
similar devices.
Without applying hand brakes in
classification yards, an alternative
means of securement is required per
paragraph (n)(11)(i). FRA is generally
referring to such alternative means as
mechanical securement devices, which,
as previously noted, FRA is including in
this final rule a new defined term. FRA
intends mechanical securement devices
to include skates, retarders, inert
retarders, and other devices that provide
at least the equivalent securement that
a sufficient number of hand brakes
would provide in the same situation. In
these situations, skates or retarders are
considered an alternative form of
securement, if they are maintained and
used within their design criteria and as
intended.
A skate (or rail skid) is a portable
sliding device placed on the rail to
engage with a car wheel so as to provide
continuous braking by sliding friction. If
using a skate to comply with this
paragraph, the rail car must be at rest
and at least one skate must be fully
engaged to prevent movement. To be
clearer, the following applies for the use
of skates:
• The railcar shall be constructively
placed at rest, fully engaged, with at
least one skate, preventing movement
away from the actively switched
direction of the yard track.
• Unengaged skates placed near the
clearance points of yard tracks (without
a railcar in place) are not considered
securement.
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• A single railcar secured by a skate
that is overwhelmed by the mass of
following railcars shall be considered
the same as an insufficient quantity of
hand brakes, and a violation may be
taken.
Under paragraph (n)(11), a railroad
may also use a retarder, which is a
powered or unpowered braking device
permanently built into a railway track to
reduce the speed or secure railcars by
means of brake shoes that press against
the lower sides of railcar wheels. When
installed at the exit of a hump yard, they
are often referred to as inert retarders or
skate retarders (not to be confused with
a skate defined above). It is not
necessary to have the first car in each
block engaged by the retarder during
active switching. Also, a car may be past
a retarder and be considered secure if it
is coupled to a car engaged by the
retarder and is not in a fouling
condition as defined in § 218.101.
However, if a railcar or following
railcars are switched into a retarder in
a manner that overwhelms the capacity
of the device and consistently places
equipment in a fouling condition, it
shall be considered the same as an
insufficient quantity of hand brakes, and
a violation may be taken. While
unengaged skates may be placed after
retarders to provide additional safety in
the event that a retarder is
overwhelmed; their sole use will not be
consider a properly used mechanical
securement device. If skates are being
engaged excessively, FRA may consider
the retarders as being overwhelmed or
not being maintained, and a violation
may be taken. For these and similar
reasons, skates and retarders are not
usually considered sufficiently safe
securement alternatives to hand brakes
when used outside of a classification
yard or within a repair shop
environment where blue signal
protection has been initiated.
In paragraph (n)(11)(ii) to this final
rule, FRA is also incorporating the
flexibility afforded by TB 10–01 as it
relates to the isolation of the train pipe,
also known as ‘‘bottling of air.’’ FRA
will continue to not take exception to a
train crew cutting away from a cut of
cars, initiating an emergency brake
application on the cut of cars, and then
closing the angle cock for the sole
purpose of taking the locomotives or
otherwise proceeding directly to the
opposite end of the cut of cars to either:
(1) Couple the locomotives to the cars or
(2) open the angle cock at the other end
and leave the angle cock open and
vented to the atmosphere, as required
under 49 CFR 232.103(n)(2). However, if
the locomotive cuts away from the cars
and closes the angle cock without the
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locomotive or an employee going
‘‘directly’’ to the other end to either
open the angle cock or couple the
locomotives to the cars, the railroad will
be in violation of 49 CFR 232.103(n)(2).
The emphasis is on ‘‘directly’’ because,
even though it may be the train crew’s
intent to go directly to the opposite end
of the cars to take the appropriate
action, if a train dispatcher, or whoever,
directs the crew to perform another job
task before they directly go to the
opposite end of the cars, a violation is
committed. It is only with the
understanding that the train crew goes
directly to the other end of the cars to
take the appropriate action that FRA
will permit this type of activity.
Section 232.105 General Requirements
for Locomotives
New paragraph (h) to § 232.105
provides further requirements
concerning locking mechanisms on
locomotive doors. While
§ 232.103(n)(8)(ii) provides securement
requirements for the controlling
locomotive cab that is left unattended
on a mainline track or siding as part of
a train that meets the minimum
quantities of hazardous materials
established in proposed
§ 232.103(n)(6)(i), FRA believes that
additional requirements should apply to
all locomotives left outside a yard
except if directly adjacent to the yard.
Accordingly, FRA includes those
requirements under § 232.105.
During the meetings of the RSAC
SWG, representatives of the labor
unions proposed requiring the
installation of locking mechanisms on
all locomotives covered by this
rulemaking. AAR subsequently
committed that all locomotives will be
equipped with cab door locks by March
of 2017. AAR clarified its statement by
ensuring that there will be no
distinction between interchange and
non-interchange locomotives. In the
interest of codifying this deadline as
applicable to the scope of this proposed
rule, paragraph (h)(1) requires that after
March 1, 2017, each locomotive left
unattended outside of a yard be
equipped with an operative exterior
locking mechanism. By no means does
this requirement limit AAR’s ambition
that its members equip additional
locomotives (e.g., switching locomotives
inside a yard) in their respective fleets.
FRA is also including this requirement
in § 232.105 so that it applies to all
locomotives left unattended outside of a
yard, but not on a track directly adjacent
to a yard, not just those locomotives
defined under § 232.103(n)(6).
BLET expresses concern with a 2017
deadline, describing it as too long. BLET
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47369
also asserts that, without explanation or
supporting data, the proposed rule, in
comparison to the RSAC
recommendation, narrowed the scope of
the lock requirement to locomotives left
outside of a yard. In one-day snapshot
surveys performed in 2004 and 2008,
BLET says that most respondents
replied that there was no secured access
to—or security presence within—their
rail yards. Many reported seeing
trespassers in the yard on the day they
were surveyed, although the second
survey showed a marked decrease.
NTSB supports the labor union’s
suggestion that locking mechanisms be
applied to each covered locomotive
within 18 months after the effective date
of this final rule.
NYSDOT supports the intent of this
requirement, but notes that while it
requires all locomotives to have
operative locks by 2017, other than the
language in paragraph (n)(8)(ii) for
hazardous trains as defined in
paragraph (n)(6)(i), there is no
requirement for the train crew to apply
the lock. NYSDOT suggests additional
language to that included in paragraph
(n)(8)(ii) to cover all unattended
locomotives on mainline tracks and
sidings regardless of the lading carried
by the train.
Given that the railroads are already
voluntarily installing locks and have
committed to a reasonable deadline of
March 2017, which is supported by
factors highlighted by AAR during the
RSAC process, FRA does not believe it
is appropriate to accelerate the process
by regulation. Without additional
information, which was not provided in
comments, shortening the deadline by
regulation could be viewed as arbitrary.
Nevertheless, at the time this final rule
becomes effective, it will be close to 18
months away from that deadline
anyway, thus rendering BLET’s and
NTSB’s concerns moot.
FRA also notes that AAR has issued
standards regarding locomotive cab
securement and has committed to install
locks on all locomotives. See
Locomotive Cab Securement, S–5520,
AAR Manual of Standards and
Recommended Practices, Section M–
Locomotives and Locomotive
Interchange Equipment (May 2014).
Regardless of whether they operate in or
out of yards, this final rule only requires
lock installation on locomotives left
unattended outside of yards, where
trespasser access is arguably easier.
Nevertheless, as previously discussed
under paragraphs (n)(7)(ii) and (n)(8)(ii),
any locomotive covered under
paragraph (n)(6) with an installed
locked left unattended anywhere, either
within or outside of a yard, must have
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that lock applied. Ultimately, this may
provide each railroad with the
flexibility to determine on its own
whether to install and operate locks on
locomotives dedicated to switching
operations and confined to classification
yard limits.
Paragraphs (h)(2) and (h)(3) are meant
to ensure that locking mechanisms, if
broken or otherwise inoperative, are
repaired in a reasonable timeframe. FRA
expects that each locomotive equipped
with a locking mechanism will be
inspected and maintained at the time of
the locomotive’s periodic inspection.
See 49 CFR 229.23. If a locking
mechanism is found inoperative at any
time other than the periodic inspection,
paragraph (h)(3) requires the railroad to
repair it within 30 days. However, if the
periodic inspection falls within the 30day limit for repair, FRA would expect
that the lock will be repaired at the time
of the periodic inspection in accordance
with the requirement in paragraph
(h)(2). For instance, if a locomotive
engineer were to find the lock
inoperative during a daily inspection
and the periodic inspection was
scheduled 15 days later, then FRA
would expect that the railroad could
repair the locking mechanism at the
time of the periodic inspection.
Alternatively, if the same situation were
to arise but the periodic inspection was
scheduled to occur 45 days later, the
railroad would be expected to repair the
locking mechanism prior to the time of
the periodic inspection to comply with
the 30-day time limit in paragraph
(h)(3).
For the purposes of this regulation,
‘‘operative’’ means that, when applied,
the locking mechanism will reasonably
be expected to keep unauthorized
people from gaining access into a
locomotive while the locomotive is
unoccupied. However, in doing so, the
railroad must assure that ingress and
egress is provided for in normal
circumstances and emergencies. In the
NPRM, FRA sought comments on this
understanding. FRA also sought
information and comments on the
possibility of a qualified person having
difficulty accessing the locomotive cab
in the event of an unintentional
movement of the equipment.
NYSDOT believes that the proposed
definition is reasonable. NYSDOT
understands that whatever type of
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locking mechanism is provided by the
railroad would be based upon its
effectiveness and appropriate
functionality to accommodate the
required ingress and egress under all
conditions.
Since the railroad would decide upon
the locking mechanism, NYSDOT
suggests relying upon the railroad to
develop appropriate procedures to
address this scenario. In the event there
is unintentional movement of the
equipment as described, and access to
the cab is problematic, NYSDOT would
expect that the qualified person would
likely attempt to apply the hand brake
from the outside of the locomotive.
In its comments, AAR and ASLRRA
indicated that the railroads have
evaluated this concern and that
qualified employees will all have keys
to locked locomotives. AAR and
ASLRRA also say that, if the qualified
employee has lost his or her company
issued key, the train can be accessed by
a non-lead locomotive, which is where
the train could be placed into
emergency.
For the moment, FRA is satisfied with
AAR’s and ASLRRA’s explanation that,
if locked out of a rolling locomotive, a
qualified employee could alternatively
enter a non-lead locomotive and make
an emergency brake application. FRA
also recognizes that, just as with a
rolling consist of cars without a
locomotive, the qualified employee
would be expected to apply the
outwardly-facing hand brakes in such a
situation.
Under paragraph (h)(4), if the railroad
discovers that a locking mechanism has
become inoperative in the interval
between a locomotive’s periodic
inspection dates, this provision does not
require that a locomotive be removed
from service. Railroads may continue to
use the locomotive without an operative
lock. However, if such equipment
covered by § 232.103(n)(6) is left
unattended and without an operative
lock, then the railroad must default to
the alternative securement option
governing the reverser under proposed
§ 232.103(n)(8)(ii) or fall under the
exception provided per proposed
§ 232.103(n)(8)(iii).
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V. 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, and determined to be
significant under Executive Order
12866, Executive Order 13563, and DOT
policies and procedures. 44 FR 11034,
Feb. 26, 1979. For purposes of analyzing
this rule, FRA uses as a baseline the
rules in effect at the time of publication,
including Emergency Order 28. The
analysis separately quantifies ongoing
costs of Emergency Order 28 that might
exceed business practices that would
remain in effect in absence of
Emergency Order 28. It is reasonable to
assume that most of the requirements of
Emergency Order 28 would continue as
business practices; for example the
railroads have already improved their
practices in determining the proper
application of hand brakes to secure a
train and the verification that the hand
brake application is adequate. Further,
the exterior locking mechanism
provision in the rule reflects an existing
commitment among AAR member
railroads, which had been working on
developing a lock standard applicable to
its members for over a year, so the costs
associated with this provision are
limited to non-AAR member railroads,
primarily short line railroads. FRA
received comments that the analysis
should include the total cost of
installing locks; however, the analysis
only counts costs that would not have
been incurred in the absence of the final
rule. Since AAR members were in the
process of installing locks compliant
with the final rule on the affected
locomotives, FRA will not include those
costs in this analysis. This analysis also
does not include sunk costs.
FRA was able to quantify the costs of
the final rule, but not able to quantify
all the benefits, as many of the benefits
are the result of reducing risk from high
consequence, low probability events
that are not easily quantified. Thus, FRA
will discuss the benefits that can be
quantified, that by themselves justify
the cost of the final rule and will
provide a brief discussion of the nonquantified benefits. The monetized
discounted and annualized net benefits
would be:
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47371
Discounted value
Discount
factor
Discounted values
7%
Total .........................................................................................................................................................................
Annualized ...............................................................................................................................................................
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Statement of Need
The United States has experienced a
dramatic growth in the quantity of
flammable materials being shipped by
rail in recent years. According to the rail
industry, in the U.S. in 2009, there were
10,800 carloads of crude oil shipped by
rail. In 2013, there were 400,000
carloads. In the Bakken region, over one
million barrels a day of crude oil was
produced in March 2014,19 most of
which is transported by rail.
Transporting flammable material carries
safety and environmental risks. The risk
of flammability is compounded in the
context of rail transportation because
petroleum crude oil and ethanol are
commonly shipped in large unit trains.
In recent years, train accidents
involving a flammable material release
and resulting fire with severe
consequences have occurred with
increasing frequency (i.e. Arcadia, OH,
Plevna, MT, Casselton, ND, Aliceville,
´
AL, Lac-Megantic, Quebec).
Shippers and rail companies are not
insured against the full liability of the
potential consequences of incidents
involving hazardous materials. As a
result, these events impose externalities.
Among Class I railroads, a self-insured
retention of $25 million is common,
though it can be as much as $50 million,
especially when PIH/TIH material is
involved. Smaller regional and short
line carriers, i.e., Class II and Class III
railroads, on the other hand, typically
maintain retention levels well below
$25 million as they usually have a more
conservative view of risk and usually do
not have the cash-flow to support
substantial self-insurance levels. At this
time, the maximum coverage available
in the commercial rail insurance market
appears to be $1 billion per carrier, per
incident.20 While this level of insurance
is sufficient for the vast majority of
accidents, it appears that no amount of
coverage is adequate to cover a higher
consequence event. One example of this
19 Information regarding oil and gas production is
available at the following URL: https://www.eia.gov/
petroleum/drilling/#tabs-summary-2.
20 See ‘‘The Transportation of Hazardous
Materials: Insurance, Security, and Safety Costs,’’
DOT Report to Congress, December 2009, at
https://www.dot.gov/office-policy/transportationhazardous-materials-insurance-security-and-safetycosts.
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issue is the incident that occurred at Lac
´
Megantic, Quebec, in July of 2013. The
rail carrier responsible for the incident
was covered for a maximum of $25
million in insurance liability, and it had
to declare bankruptcy because that
coverage and the companies remaining
capital combined were insufficient to
pay for more than a fraction of the harm
that was caused. This is one example
where rail carriers and shippers may not
bear the entire cost of ‘‘making whole’’
those affected when an incident
involving crude and ethanol shipment
by rail occurs.
FRA believes that the failure to secure
equipment decreases the safe
transportation of goods by rail, and
increases the possibility of a higherconsequence event, particularly when
dealing with a key train transporting a
material such as crude oil. It is difficult
to assess how much of the decrease in
safety is from railroads not requiring
their employees to secure equipment or
from employees failing to comply with
railroad securement requirements. The
´
Lac-Megantic accident shows that the
railroads were not successful using
operating rules in effect at the time of
the accident, perhaps because an
employee did not follow those rules or
might not have had adequate guidance
on what constituted adequate
securement. FRA believes that use of its
authority will enhance compliance with
railroad issued orders. There may also
have been an issue of incomplete
information—which can cause a market
failure—that was corrected in the wake
´
of the Lac-Megantic accident and
Emergency Order 28, in that railroads
had not yet developed the procedures
required in response to Emergency
Order 28. This problem of incomplete
information related to securement
procedures has been addressed, so it is
not part of the baseline. Finally,
incomplete information also may be
causing a market failure among some
railroads that have not put locks on
their locomotives left outside yards.
Cost-Benefit Analysis of Individual
Sections
Following is a discussion of the
regulatory costs and benefits associated
with each requirement.
PO 00000
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$1,076,984
95,009
3%
$1,479,331
96,538
Changes to the definition in § 232.5
have no substantive impact and do not
result in any new costs or benefits.
Changes to § 232.103(n)(2) will have
negligible impact or real burdens, but
may increase compliance with existing
rules. As noted above, the changes to
this paragraph merely clarify FRA’s
longstanding interpretation, application,
and enforcement of the existing
regulation.
Section 232.103(n)(6) lists types of
trains and equipment covered by
§ 232.103(n)(7) and (n)(8), but does not
directly impose any specific
requirements.
Section 232.103(n)(7)(i) prohibits
leaving affected equipment unattended
on a main track or siding (except when
that main track or siding runs through,
or is directly adjacent to a yard) until
the railroad has adopted and is
complying with a plan identifying
specific locations or circumstances
when the equipment may be left
unattended. Railroads already have
developed and implemented such plans
under Emergency Order 28, so there is
no cost to create such plans. The initial
revision and notification burden would
have been in identifying safety rationale
related to such locations and
circumstances, but that has already been
accomplished through compliance with
Emergency Order 28. To the extent that
railroads further revise their plans in the
future, there will be some additional
costs. This will not occur frequently,
resulting in nominal burden in the
future.
Section 232.103(n)(7)(ii), an
expansion of Emergency Order 28 that
applies to trains left unattended on
main tracks that are in or adjacent to
yards, requires trains left in yards to
have the locomotive cab locked, or the
reverser removed, if possible, but would
not impose additional requirements in a
yard if the locking mechanism is
inoperative. This portion of the final
rule’s requirements is part of longstanding railroad business practices,
and will add no costs or benefits.
In paragraph (n)(8)(i), there is a new
requirement, which in almost all cases
was already in place as a business
practice. It requires that the qualified
individual who secures the train verify
with a second qualified individual that
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the train has been secured in accordance
with the railroad’s operating rules,
including whatever the employee has
done to ensure that an adequate number
of hand brakes have been employed. On
a train with two or more crew members,
the train crew will verify among
themselves. This would happen as a
matter of business practice. In the event
that the train is secured by a single
person crew, the verification would
involve a second person, typically a
yardmaster, who is also qualified. All
safety-critical activities by train crews
are communicated to at least one
additional person as a standard
operating practice. This is part of the
railroads’ conscious effort to avoid a
single point human factor failure that
can cause an accident. FRA believes that
less than one-tenth of one-percent
(0.1%) of the affected trains will be
operated by a single crew member when
securing in a yard, because there are
very few single person crews operating
affected trains, and because many
affected trains will be operated
continuously to their destination. Some
trains will be secured outside of yards,
but that burden is discussed below in
this analysis. In this analysis, FRA
assumes that there will be 1,000 affected
trains per day, of which 0.1% (1 daily
or 365 annually) would have a single
person crew. Further, FRA assumes that
in the absence of the final rule, 95
percent of railroads would require the
verification as a business practice. This
means that over 20 years, only 365
trains would be affected. FRA believes
the communication will take 15 seconds
of two qualified individuals’ time, or 30
labor seconds. There is no cost to
initiate communication, because in any
event a person leaving a train would
have to communicate with the
yardmaster to let the yardmaster know
where the crew member left the train
and to let the yardmaster know the train
would no longer be moving in the yard.
Over the 20-year life, the undiscounted
value would be 182.5 labor minutes or
roughly 3 labor hours. At $50 per hour
the cost over 20 years, undiscounted
cost would be $150, and the annual cost
would only be $7.50. FRA requested
comments on the current and future
levels of train operations impacted and
the labor estimates associated with
compliance, but did not receive any
comments which directly discussed
costs or benefits of this provision.
Section 232.103(n)(8)(i) requires that
where a freight train or standing freight
car or cars as described in paragraph
(n)(6) is left unattended on a main track
or siding outside of a yard, an employee
responsible for securing the equipment
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shall verify with another person
qualified to make the determination that
the equipment is secured in accordance
with the railroad’s processes and
procedures. This will impose no new
burden nor create any new benefit since
it is identical to what is currently
required by Emergency Order 28. Where
train crews with more than one crew
member are involved, then the crew
members would need to discuss the
securement and ensure that they had
secured the correct number of hand
brakes and taken other steps to properly
secure the train. Where single member
crews are involved, then the crew
member would have to call the
dispatcher or some other qualified
railroad employee to verify with the
qualified employee that the train had
been properly secured. As noted above,
Emergency Order 28 requires this
communication to occur presently, thus
railroads already have these procedures
established and continuing such
practice will not impose an additional
cost. Thus, the changes to § 232.103(n)
would create no new benefits or costs,
compared to the base case.
Section 232.103(n)(8)(ii) requires that
the controlling locomotive cab of a
freight train described in paragraph
(n)(6) shall be locked on locomotives
capable of being locked or the reverser
on the controlling locomotive shall be
removed from the control stand and
placed in a secured location. In the case
of a locomotive with an operative lock,
the compliance will simply be locking
the lock. Railroads all require their
employees to lock unattended
locomotives equipped with operative
locks, for both safety and security
reasons. This provision of the final rule
codifies current business practices, and
creates no new benefits or costs. Under
§ 232.105(h) each locomotive will have
been equipped with a lock, and if there
should be a lock malfunction, removing
the reverser will be sufficient to comply.
Removing the reverser of such a
locomotive is likely to be a business
practice required by operating rules
except for two conditions. The first
condition is where the locomotive does
not have a removable reverser. Such
locomotives are relatively old and are
rarely used outside of yard operations.
The second condition is where there is
a reason to keep the locomotive running
while standing. Almost all locomotives
can idle with the reverser removed, but
there are no locomotives that can run at
speeds above normal idle, sometimes
needed for cold weather conditions,
with the reverser removed. If a lock
should malfunction under either of
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those two conditions, a railroad could
comply by several means:
• A railroad could remove the
reverser; almost all locomotives can idle
with the reverser removed, except in
very cold weather;
• A railroad could attend the
locomotive, which could involve either
placing a qualified individual aboard
the locomotive while it stands, or
boarding a new crew and having the
new crew continue moving the train
toward its destination. The most
economical way to accomplish this
would be to board a new crew and take
the train further along its route. The
railroad was going to have to call a crew
to move the train on its route anyway,
so if the railroad has sufficient time to
call a new crew, generally two hours,
the railroad would call a crew earlier
than originally planned. Dispatchers
continually adjust the flow of trains,
and adding a single train earlier than
originally planned would have little
effect on operations in almost all cases.
If the train is already close to its
destination, this would not be practical
if the consignee unloading or transfer
operation were not available, or if the
train could not proceed for some other
reason, such as track congestion or
blockage, the railroad would not simply
board the next crew and the railroad
would have to comply by some other
means;
• A railroad could arrange for the
train to stop in a yard, or on a main
track in or adjacent to a yard. This might
involve having the dispatcher expedite
the train so it can make a yard further
along its route, which might have
minimal costs;
• A railroad could have the train crew
switch locomotives, putting a lockequipped locomotive in the lead, which
would be costly and impractical; or
• A railroad could arrange to have the
lock repaired before leaving the train
unattended, which would also carry a
cost.
The burdens of § 232.103(n)(8)(ii) on
main track or sidings outside of yards
are imposed by Emergency Order 28, so
they are not new burdens, and they still
are relatively small. For purposes of this
analysis, FRA conservatively estimates
that 1,000 trains per day 21 will be
subject to the requirements of
§ 232.103(n)(8)(ii), but that 90 percent of
them will be excepted under
§ 232.103(n)(8)(iii), because they will
have routing that calls for unattended
stops only in or adjacent to yards.22
21 In an analysis of the safety of HHFTs, PHMSA
estimates that there are 150 trains per day. FRA’s
estimate of 1,000 trains per day is conservative.
22 FRA assumes that railroads will fix locks in or
adjacent to the first yard available, as a business
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That leaves 100 trains per day, or 36,500
trains per year. FRA estimates that one
in 500 locomotives or 73 per year will
have a defective lock. FRA also
estimates that 50 percent, or 36.5
locomotives per year, would have been
left running while unattended, or would
have been equipped with a nonremovable reverser. A locomotive would
be left running either to avoid cold
weather starting or to avoid a brake test
when the next crew takes charge of the
train. If the locomotive would have been
left running to maintain brake pressure,
the train crew can leave one of the
trailing locomotives running to maintain
brake pressure, and lock its door. FRA
estimates that in all but ten cases per
year, the railroad will have been
notified of the lock malfunction, and
will have the next crew or current crew
take the train to a yard or its destination,
avoiding any costs.23
Trains per year:
Affected by the final rule: 365,000.
No planned stop outside yards (90
percent of 365,000): 328,500.
Planned stop outside yards (365,000–
328,500): 36,500.
Defective lock and planned stop
outside yard (36,500/500): 73.
Removing reverser provides
compliance (50 percent of 73): 36.5.
Further action needed (73–36.5): 36.5.
Sent on to next yard or destination:
26.5.
Remedial action must be taken: 10.24
FRA believes that in half the cases
remaining (five cases), the railroad will
repair or replace the lock, and in the
other half (also five cases), the railroad
will have personnel attend a standing
train. The railroad may repair or replace
the lock, in which case the cost is the
additional cost of repairing the lock
outside of a yard. A railroad using AAR
standard locks may attach an additional
locking mechanism, not compliant with
AAR standards until the AAR standard
lock can be replaced. This appears to be
the lowest cost means of complying
with the rule. If a hasp is present, the
railroad may have provided the crew
with a spare lock, in which case the cost
is negligible, two of the five cases per
year. If a hasp is not present, the
railroad may have repair personnel
locate to the train, estimated at an
average cost of $0.56 per mile for 20
miles, or $11.20 per incident. In
addition, the installation is expected to
require two hours service time,
including travel, for two repair
personnel, at an estimated cost of $50
per person hour,25 for a labor cost of
$200. The installation is expected to
cost $100 if the railroad does not install
a standard lock, one case per year. The
total cost for this repair would be $11.20
for transportation, $100 for materials,
plus $200 for labor, a total of $311.20.
If the railroad replaces the existing lock,
then no materials cost is added, because
the railroad could have been expected to
replace the lock at the next yard. The
total cost to replace an existing lock
would be $11.20 for transportation, plus
$200 for labor for a total of $211.20. The
total cost to replace existing locks is 2
times $211.20, or $422.40. The total cost
for lock replacement includes the
negligible costs if the crew has a lock
that fits an existing hasp, plus $311.20
to install a new hasp and lock, plus
$422.20 to replace existing locks, a total
of $733.60. In any estimate of net
Approach taken
47373
present value, the labor costs for lock
installation should not be incremented
by a factor to account for growth in real
wages, because the growth in real wages
is assumed to be directly related to
productivity. The more productive the
worker, the fewer hours needed to
install a lock, including reductions in
time needed to travel. FRA believes that
small railroads will not be affected by
these costs because small railroads will
use a lock and hasp system and will be
able to replace the lock before the train
is left stopped, should the lock
malfunction.
FRA estimates the cost to switch
locomotives at $150 for the cost of
switching and at least $500 for a brake
test after switching, for a total of $650
per train. A railroad is unlikely to do
this unless the purpose of keeping
engines running was to keep the engines
warm on a cold day, no stop was likely
at a location where the lock could be
repaired, and at least one more stop was
likely on the train’s route. The
likelihood of such a situation is so small
as to be negligible. FRA does not believe
this is a likely response, and this value
is not used any further.
FRA estimates the cost to attend a
standing train at $470 per incident,26 or
a total of $2,350 per year for 5 incidents,
which assumes a burdened rate for labor
of $51.04 per hour.
In summary of the foregoing costs
associated with locomotive locks, FRA
believes the likely responses to
inoperative locking mechanisms, where
the railroad cannot simply remove a
reverser or move the train, will break
down as follows:
Unit cost
Annual total
cost
Frequency
$0.00
311.20
211.20
470.00
2
1
2
5
$0.00
311.20
422.40
2,350.00
Total ............................................................................................................................................
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Place Lock in Existing Hasp ..............................................................................................................
Install New Hasp and Lock ................................................................................................................
Replace Existing Lock .......................................................................................................................
Attend Train .......................................................................................................................................
......................
......................
27 3,083.60
practice, and will leave any unattended trains in
yards locked.
23 Taking the train further along its route is the
least costly method of attending a train. The
railroad is obligated to provide a crew to move the
train further along its route anyway, and train crews
are on call. Once the train gets to the first yard on
its path, the lock will be repaired. Unloading
facilities are not part of the railroad, and FRA does
not regulate securement at unloading facilities,
which are subject instead to PHMSA regulations.
24 In the NPRM, FRA requested comment on the
number of cases per year where remedial action
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22:37 Aug 05, 2015
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would be required, and on the assumptions relied
upon to estimate that number. Since FRA did not
receive any such comments, it continues to rely on
the assumptions used in the NPRM.
25 Surface Transportation Board (STB) wage data
show that the average compensation for personnel
engaged in Maintenance of Equipment & Stores was
$28.46 in 2013. FRA adds a 75 percent burden
which would yield $49.81 per hour, which is
rounded here to $50 per hour.
26 STB wage data show that the average
compensation for personnel engaged in Train, Yard
and Engine was $29.16 in 2013. FRA adds a 75
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Fmt 4701
Sfmt 4700
percent burden which would yield $51.04 per hour.
The minimum payment for qualified personnel
called out is a fixed sum or hourly pay, whichever
is greater. The fixed amount is roughly equal to 8
hours’ pay. There may be instances where the
duration of the assignment exceeds 8 hours. FRA
assumed a 9 hour average pay, or 9 times $51.04,
for a burdened wage of $459.32 per incident. FRA
further assumed $11.20 in travel costs, or a total
cost of $470.52 per incident, which FRA rounded
to $470 per incident.
27 Rounds to $3,100.
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The total cost imposed by
§ 232.103(n)(8)(ii) would be $2,350 plus
$311.20 plus $411.40 per year, a total of
$3,083.60, or roughly $3,100, per year.
To more accurately annualize these
costs, however, FRA must also consider
the direct wage portion of the costs
attending trains and provide for annual
real wage increases. Of the
aforementioned burdened wage rate,
$29.16 is the direct wage portion.
Multiplying the direct wage portion
hourly rate against 9 hours pay per
event with 5 events per year, the direct
wage portion annual cost total is
$1,312.33, which we will round to
$1,300. These direct wage costs for train
personnel will need to be incremented
by a factor of 1.18 percent per year to
account for increases in real wage,
induced by increased productivity in
accordance with estimates from the
Congressional Budget Office.28
FRA compiled the following summary
table, using initial annual costs of
$3,100 (i.e., the first year’s annual
locomotive locks costs total rounded
up), broken into direct wage costs for
simply attending trains, $1,300—which
are increased every year by 1.18 percent
to account for growth in real wages,
whereas the first year’s increase would
result in a direct wage cost of
$1,315.34—and other costs of $1,800,
including initial burden on wages to
attend trains, labor costs to repair or
replace locks, where productivity
growth is assumed to match growth in
real wages, and costs for other items.
The costs are all the result of actions
taken to comply with attendance of a
train in the event a locking mechanism
becomes inoperative:
Discounted value
Wage inflator
(%)
Year
Direct wage
cost
All other costs
Discount factor
Total costs
7%
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
101.18
102.37
103.58
104.80
106.04
107.29
108.56
109.84
111.14
112.45
113.77
115.12
116.47
117.85
119.24
120.65
122.07
123.51
124.97
126.44
$1,315.34
1,330.86
1,346.57
1,362.45
1,378.53
1,394.80
1,411.26
1,427.91
1,444.76
1,461.81
1,479.06
1,496.51
1,514.17
1,532.04
1,550.11
1,568.40
1,586.91
1,605.64
1,624.58
1,643.75
$1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
$3,115.34
3,130.86
3,146.57
3,162.45
3,178.53
3,194.80
3,211.26
3,227.91
3,244.76
3,261.81
3,279.06
3,296.51
3,314.17
3,332.04
3,350.11
3,368.40
3,386.91
3,405.64
3,424.58
3,443.75
$3,115
2,926
2,748
2,582
2,425
2,278
2,140
2,010
1,888
1,774
1,667
1,566
1,472
1,383
1,299
1,221
1,147
1,078
1,013
952
$3,115
3,040
2,966
2,894
2,824
2,756
2,689
2,625
2,561
2,500
2,440
2,381
2,324
2,269
2,215
2,162
2,111
2,060
2,012
1,964
Total ..................................................
........................
........................
........................
........................
36,685
49,909
Annualized ........................................
mstockstill on DSK4VPTVN1PROD with RULES4
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
3%
........................
........................
........................
........................
3,236
3,257
Section 232.103(n)(8)(ii) also provides
a direct safety benefit of this
rulemaking. Only about 36.5 trains per
year are likely to be affected, as
described above. FRA believes that in
the absence of this rulemaking all
locomotives would be equipped with
locks as a business practice, as
described below. FRA believes that as a
business practice, the locomotives that
can be locked will be locked, and the
remaining locomotives that have
reversers that can be removed that are
not left running would have their
reversers removed and secured. FRA
believes that trains left running with
reversers in place are the most
vulnerable to serious harm as a result of
casual mischief. It is possible that a
vandal moving a reverser in an
unattended running locomotive could
cause a higher-consequence event, given
the kinds of materials regulated here.
Further, individuals who believe they
are doing some good—for example first
responders who believe the train is in a
dangerous location—may also be
tempted to try to move the train. If they
lack proper skills, this movement
creates a risk. FRA does not have a good
way to estimate the likelihood of a
serious event from such a small number
of affected trains; however, given the
kinds of trains involved, FRA finds that
the costs are justified by the benefits of
risk reduction.
Section 232.103(n)(8)(iii) provides an
exception for trains left unattended on
main tracks in or adjacent to yards, and
does not change burdens from
Emergency Order 28. The
communication requirement in
§ 232.103(n)(9) is unchanged from
Emergency Order 28, and will impose
no new burden nor create any new
benefit for train crews with more than
one crew member. Section
232.103(n)(10) requires railroads to
adopt and comply with procedures to
ensure that, as soon as safely
practicable, a qualified employee
verifies the proper securement of any
unattended equipment when the
railroad has knowledge that a nonrailroad emergency responder has been
on, under, or between the equipment.
This was required by Emergency Order
28 and remains unchanged from
Emergency Order 28, and will impose
no new burden nor create any new
benefit. FRA also believes that after the
´
Lac Megantic accident that railroads
would have adopted this practice even
28 Based on real wage growth forecasts from the
Congressional Budget Office, DOT’s guidance
estimates that there will be an expected 1.18
percent annual growth rate in median real wages
over the next 30 years (2013–2043).
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in the absence of Emergency Order 28,
as a standard business practice, so FRA
is confident that this section creates no
new benefits or costs.
One requirement of Emergency Order
28 that is not included in the final rule
is a requirement that employees who are
responsible for securing trains and
vehicles transporting Appendix A
Materials must communicate to the train
dispatcher the number of hand brakes
applied, the tonnage and length of the
train or vehicle, the grade and terrain
features of the track, any relevant
weather conditions, and the type of
equipment being secured; train
dispatchers must record the information
provided; and train dispatchers or other
qualified railroad employees must verify
and confirm with the train crew that the
securement meets the railroad’s
requirements. The final rule includes
verification procedures but does not
include the recordkeeping required by
Emergency Order 28. FRA’s Paperwork
Reduction Act analysis of the
recordkeeping requirements shows the
annual burden at 867 hours to notify the
dispatcher to make the record, and an
additional 867 hours to make the record.
FRA estimates that there will be an
average of 26,000 communications (100
instances on 260 days per year) to
dispatchers triggering the recording
requirement, which takes an average of
four minutes to complete, for a total of
1,734 hours. If the value of the
employees’ time is $50 per hour, the
annual cost of the Emergency Order 28
recordkeeping requirement is $86,700,
and that cost would be eliminated by
the final rule. FRA believes the
recordkeeping requirements have been
relatively more onerous for smaller
railroads, but does not have a
breakdown of the proportion of the cost
reduction benefit that will accrue to
small railroads.
Section 232.105(h) requires, after
March 1, 2017, that each locomotive left
unattended outside of a yard shall be
equipped with an operative exterior
locking mechanism. AAR standard S–
5520 requires that each locomotive left
unattended outside of a yard shall be
equipped with an operative exterior
locking mechanism, and requires that
locomotives be equipped in order to be
used in interchange service. These
mechanisms will meet the requirements
of § 232.105(h). FRA believes that for
Class I and Class II railroads, all costs
and benefits of § 232.105(h) will be a
result of business practices because
their locomotives operate in interchange
service. These railroads are already in
the process of installing exterior locking
mechanisms on all of their locomotives
that do not operate exclusively in yard
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Jkt 235001
service. FRA further believes that small
railroads have already equipped
virtually all of their locomotives with
exterior locking mechanisms. This was
discussed at RSAC meetings.
FRA believes that the reason Class I
and Class II railroads have just recently
started installing locking mechanisms
on their locomotives is that until
recently there was no standard for
keying the locking mechanisms.
Locomotives of these railroads operate
in interchange service and can move
from railroad to railroad. If each railroad
had to maintain a set of keys for all
other railroads’ locomotives, that would
have been cumbersome. The recent,
common keyed, industry standard
provides a solution, and allows the
business practice of installing locking
mechanisms to proceed.
FRA believes that, for smaller
railroads, locking locomotive cabs is a
good business practice that already
takes place because it avoids vandalism
and locomotive cab intruders. Several
reports indicate that a locomotive
belonging to the Adirondack Scenic
Railroad was vandalized on or around
October 15, 2013.29 Damage to the
locomotive was approximately $50,000,
and does not include lost revenue.
Anecdotal reports are that the vandals
removed the copper wiring, which has
value as scrap. This event was not
reported to FRA. This is an example of
unreported vandalism, and FRA staff
believes that a great deal of vandalism
is unreported, largely because the events
do not meet all the requirements that
would result in filing an accident/
incident report with FRA. Over the
years, FRA staff has received several
first-hand accounts of vandalism or cabs
occupied by intruders. FRA believes
that the likelihood of vandalism or cabs
being occupied by trespassers increases
as the likelihood of railroad observation
of the train decreases. Most small
railroads operate in environments with
a lower than average likelihood of
observation. FRA believes that
vandalism is also more likely to have a
severe impact on a small railroad’s
operations since these railroads do not
have many spare locomotives or
personnel. If a railroad has ten
locomotives and five get vandalized, its
operations will be severely impacted.
Likewise if a small railroad’s operating
crew is injured by an intruder in a cab,
the operations for that day will likely be
halted. As indicated by small railroad
representatives at RSAC, small railroads
do generally equip their locomotives
29 Adirondack Scenic Railroad Locomotive
Vandalized, North County Public Radio Web site,
October 15, 2013.
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47375
with exterior cab locks. FRA believes
that if all small railroads considered the
impacts of vandalism and intruders, the
small railroads would and have
installed exterior cab locks.
The unit cost for a locking mechanism
meeting AAR standard S–5520 is $215.
FRA believes that smaller railroads
could comply with § 232.105(h) with a
simpler lock and hasp system, for a unit
cost of $100. Given the smaller number
of locomotives, personnel, territory, and
facilities, use of this type of system
would not be problematic. FRA
requested comment regarding this
estimate. ASLRRA commented that its
members claim that the unit cost will be
greater for small railroads than the $210
per unit estimated for AAR type locks.
FRA rejects the contention that a hasp
and padlock would cost more than $100
per unit, based on observation of hasp
and lock costs at hardware stores, and
FRA staff knowledge of the costs to
install a hasp by welding, based on
actual work experience as Class III
railroad employees. Nevertheless, FRA
points out that the business benefits of
installing locks far exceed the unit costs
of $210 per locomotive for AAR type
locks, so even if FRA were to accept the
ASLRRA comment, the business
benefits of locks would still exceed their
costs.
FRA believes that no more than 500
locomotives belonging to Class III
railroads lack locking mechanisms that
comply with § 232.105(h). Thus, the
cost to install the locking mechanisms
would be no more than 500 times $100,
or $50,000.
Based on anecdotal information from
FRA staff, between 1 percent and 3
percent of locomotives are vandalized
each year. Some vandalism is relatively
minor, such as graffiti sprayed on the
walls of the cab, but some is much more
serious, for example damage or removal
of electrical equipment, or of
instruments. More modern cabs have
very expensive control systems, with
one or more monitor screens. It would
not be difficult for vandals to cause
more than $50,000 in damage to a
modern cab. The repairs not only would
involve removal and replacement of
damaged components, but would also
involve calibration. For purposes of this
analysis, FRA is assuming 1 percent of
locomotives would be vandalized each
year if not equipped with locks, and the
mean cost of a vandalism incident is
$3,000. The expected cost of vandalism
is therefore $30 per locomotive year for
unequipped locomotives.
Locomotive cabs are also occupied by
unauthorized occupants, usually
homeless, from time to time. Based on
staff anecdotal data, FRA assumes that
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five percent of locomotive cabs are
occupied at least once per year. FRA
believes that the cost per incident is
$100, including costs to clean debris
and inspect to determine that nothing in
the cab has been damaged. This cost
represents 20 minutes delay with a train
delay cost. The economic impact of
slowing trains depends upon multiple
factors including other types of trains,
other train speeds, dispatching
requirements, work zones, and
topography. Looking at numerous
variables, for purposes of another
analysis, DOT estimated the average
cost of a train delay to be $500 per
hour.30 This cost estimate was
determined by reviewing costs
associated with crew members, supply
chain logistic time delays based on
various freight commodities, and
passenger operating costs for business
and other travel. It is reasonable to
assume that delays to smaller railroad
operations are lower in cost. Thus, for
purposes of this analysis, for the
impacted railroads, FRA is using an
hourly train delay cost of $300 per hour.
FRA requests comment regarding this
assumption. Thus the cost per year for
500 locomotives would be 500 times 5
percent times $100, or $2,500, or $5 per
locomotive year. Added to the
vandalism cost the total cost of exposure
would be $35 per locomotive year. If an
installation of a locking mechanism
costs $100, it would take less than 3
years for the locks to pay for themselves
(before applying discount factors). FRA
believes that in the absence of this rule
most small railroads would apply
locking mechanisms to locomotives left
unattended outside of yards, especially
in light of the vandalism incident on the
Adirondack Scenic Railroad. FRA
believes the net cost of installing and
using the locks for small railroads is less
than zero because the installation cost is
more than offset by the business
benefits. FRA did not receive any
comments taking issue with FRA’s
estimates of locomotive vandalism
costs.
FRA assumes the locks will be
purchased in the first year, because the
business benefit is apparent. Thus, the
costs are $100 times 500 locomotives, or
$50,000, the same at both discount rates
because 2015 is not discounted.
Discounted value
Year
Total costs
Discount factor
7%
3%
2015 .............................................................................................................................................
$50,000.00
$50,000
$50,000
Total ......................................................................................................................................
50,000.00
50,000
50,000
Annualized ............................................................................................................................
........................
4,411
3,263
mstockstill on DSK4VPTVN1PROD with RULES4
A more serious crime with far more
potential to cause harm off the railroads’
rights-of-way is theft and operation of a
train. In 1975, two teenagers stole a
switching locomotive and operated it
until it crashed.31 FRA staff has received
anecdotal information regarding other
locomotives being stolen and operated,
but permanent records of the incidents
could not be found. If a train described
in § 232.103(n)(6) were stolen and
operated, it could easily cause the kinds
of harm seen at in the Graniteville,
South Carolina accident and the Lac
´
Megantic incident, with societal costs of
$260 million to $1.2 billion. The Lac
´
Megantic incident is illustrative of, but
not necessarily the outer limit of, a highconsequence event scenario for
derailment of a paragraph (n)(6) train.
The derailment occurred in a small
town with a low population density by
U.S. standards, but resulted in the
deaths of 47 people and the destruction
of much of the downtown area. A year
after the event, decontamination of the
soil and water/sewer systems is still
ongoing. Cleanup of the lake and river
that flows from it has not been
completed, and downstream
communities are still using alternative
sources for drinking water. Initial
estimates of the cost of this event were
roughly $1 billion, but the cleanup costs
have doubled from initial estimates of
$200 million to at least $400 million,
and the total cost to clean up, remediate,
and rebuild the town could rise as high
as $2.7 billion. The frequency and
magnitude of these events is highly
uncertain. It is, therefore, difficult to
predict with any precision how many of
these higher consequence events may
occur over the coming years, or how
costly these events may be. In the worst
case scenario for a fatal event, the
results could be several times the
´
damages seen at Lac Megantic both in
loss of life and other associated costs.
In estimating the damages of a higherconsequence event, we begin with the
current estimated damages of Lac
´
Megantic. We used this accident to
illustrate the potential benefits of
preventing or mitigating events of this
magnitude. It is challenging to use this
one data point to model potential
damages of higher consequence events
that differ in nature from the Lac
´
Megantic accident. However, as the
volume of crude oil shipped by rail
continues to grow, it is reasonable to
assume that events of this magnitude
may occur.
By installing locks to avoid such
dangers, the benefits indicated in the
following table are $17,500 per year
($35 times 500 locomotives), starting in
2016, the year after the locks are
installed.
30 In analyzing the NPRM, FRA noted that
PHMSA’s proposed rule ‘‘Hazardous Materials:
Enhanced Rail Tank Car Standards and Operational
Controls for High-Hazard Flammable Trains’’
applied a $500 per hour estimate of the cost of
delay for the rail network overall. 79 FR 45015,
Aug. 1, 2014. There were no comments to the
NPRM taking issue with that estimate, and FRA
continues to use that estimate here.
31 Pierce Haviland, The Putnam Division, last
updated November 10, 2010, available at https://
piercehaviland.com/rail/putnam.html This incident
was probably not reportable because it occurred on
an abandoned railroad, no longer part of the general
system of rail transportation.
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Discounted value
Year
Total benefits
Discount factor
7%
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
3%
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
$0.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
17,500.00
$0
16,355
15,285
14,285
13,351
12,477
11,661
10,898
10,185
9,519
8,896
8,314
7,770
7,262
6,787
6,343
5,928
5,540
5,178
4,839
$0
16,990
16,495
16,015
15,549
15,096
14,656
14,229
13,815
13,412
13,022
12,642
12,274
11,917
11,570
11,233
10,905
10,588
10,279
9,980
Total ....................................................................................................................................
Annualized ..........................................................................................................................
..........................
..........................
180,873
15,956
250,666
16,358
In addition to the above noted
benefits, the final rule itself reduces
costs—by removing the requirement to
record securement activities, provided
under Emergency Order 28—by $86,700
per year, with no decrease in safety. In
FRA’s view, these savings more than
offset the minor costs associated with
the final rule.
Discounted value
Year
Total benefits
Discount factor
7%
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
...........................................................................................................................................
$86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
86,700.00
$86,700
81,028
75,727
70,773
66,143
61,816
57,772
53,992
50,460
47,159
44,074
41,191
38,496
35,977
33,624
31,424
29,368
27,447
25,651
23,973
$86,700
84,175
81,723
79,343
77,032
74,788
72,610
70,495
68,442
66,448
64,513
62,634
60,810
59,038
57,319
55,649
54,029
52,455
50,927
49,444
Total ....................................................................................................................................
Annualized ..........................................................................................................................
mstockstill on DSK4VPTVN1PROD with RULES4
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
3%
..........................
..........................
982,796
86,700
1,328,573
86,700
FRA calculated the total monetized
costs of the rule, with the costs for
locomotive lock installation accounted
for only for the first year:
Discounted value
Wage inflator
(%)
Year
Direct wage
cost
All other costs
Total costs
Discount factor
7%
2015 .........................................................
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$51,800
$53,115.34
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06AUR4
$53,115
3%
$53,115
47378
Federal Register / Vol. 80, No. 151 / Thursday, August 6, 2015 / Rules and Regulations
Discounted value
Wage inflator
(%)
Year
Direct wage
cost
All other costs
Total costs
Discount factor
7%
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
3%
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
.........................................................
102.37
103.58
104.80
106.04
107.29
108.56
109.84
111.14
112.45
113.77
115.12
116.47
117.85
119.24
120.65
122.07
123.51
124.97
126.44
1,330.86
1,346.57
1,362.45
1,378.53
1,394.80
1,411.26
1,427.91
1,444.76
1,461.81
1,479.06
1,496.51
1,514.17
1,532.04
1,550.11
1,568.40
1,586.91
1,605.64
1,624.58
1,643.75
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
1,800
3,130.86
3,146.57
3,162.45
3,178.53
3,194.80
3,211.26
3,227.91
3,244.76
3,261.81
3,279.06
3,296.51
3,314.17
3,332.04
3,350.11
3,368.40
3,386.91
3,405.64
3,424.58
3,443.75
2,926
2,748
2,582
2,425
2,278
2,140
2,010
1,888
1,774
1,667
1,566
1,472
1,383
1,299
1,221
1,147
1,078
1,013
952
3,040
2,966
2,894
2,824
2,756
2,689
2,625
2,561
2,500
2,440
2,381
2,324
2,269
2,215
2,162
2,111
2,060
2,012
1,964
Total ..................................................
Annualized ........................................
........................
........................
........................
........................
........................
........................
........................
........................
86,685
7,647
99,909
6,520
FRA calculated the total monetized
benefits of the rule, which includes
savings from relief of Emergency Order
28’s recordation requirement for each
year plus savings provided each year
from the use of locomotive locks after
the first year of installation:
Discounted value
Year
Total benefits
Discount factor
7%
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
3%
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
$86,700.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
104,200.00
$86,700
97,383
91,012
85,058
79,494
74,293
69,433
64,891
60,645
56,678
52,970
49,505
46,266
43,239
40,411
37,767
35,296
32,987
30,829
28,812
$86,700
101,165
98,218
95,358
92,580
89,884
87,266
84,724
82,256
79,861
77,535
75,276
73,084
70,955
68,888
66,882
64,934
63,043
61,207
59,424
Total ......................................................................................................................................
Annualized ............................................................................................................................
........................
........................
1,163,669
102,656
1,579,240
103,058
mstockstill on DSK4VPTVN1PROD with RULES4
Summary of the Costs and Benefits
To summarize the above identified
costs and benefits, FRA tabulated the
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contributions of each item to the total
discounted costs and benefits over 20
years.
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Discounted value
Discounted values
Discount factor
7%
3%
Costs
Attending Trains .......................................................................................................................................................
Installing Locks ........................................................................................................................................................
$36,685
50,000
$49,909
50,000
Total Costs .......................................................................................................................................................
Benefits
86,685
99,909
Reduced Vandalism .................................................................................................................................................
Reduced Recordkeeping .........................................................................................................................................
180,873
982,786
250,666
1,328,573
Total Benefits ....................................................................................................................................................
1,163,669
1,579,240
For further distillation, FRA
calculated the net benefits over 20 years:
Discounted value
Discounted values net benefits
Discount factor
7%
mstockstill on DSK4VPTVN1PROD with RULES4
Total .........................................................................................................................................................................
Annualized ...............................................................................................................................................................
The costs that are not directly offset
by a monetized benefit are the annual
costs of either attending locomotives or
expediting their repair. Above, FRA
estimates the annualized cost beyond
current business practices at $3,236–
$3,257 per year.32 These costs are
balanced against an incident with costs
of $260 million to $1.2 billion, but with
extremely low probability. The
incidents avoided by attendance
provisions would only occur where the
train was not equipped with functioning
locking mechanisms under conditions
where the railroad would have sent a
repair team out to the location of the
train to repair the locking mechanism or
would have sent a qualified employee to
attend the train, roughly ten events per
year. As discussed above, these
situations would involve a locomotive
that is left running either to avoid cold
weather starting or to avoid a brake test
when the next crew takes charge of the
train. The number of events estimated is
based on professional judgment. If the
event avoided is $330 million,33 and the
annual cost is less than $3,300 for ten
events, then the rule costs about $330
per event and would roughly break even
if one in a million events of leaving a
32 This cost is slightly increased by the increase
in value of real wages over time.
33 This estimate falls between the damages of
´
Graniteville and Lac-Megantic. It is selected only
for illustrative purposes.
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Jkt 235001
locomotive consist for one of the
regulated trains unattended with an
unlocked cab and a reverser unsecured
in the cab were to result in a higherconsequence incident. FRA believes the
small but relatively predictable annual
cost is justified by the hard to measure
very small probability, very high
consequence incident risk avoided. The
portion of the rule requiring attendance
of a train with inoperative locking
mechanisms will not affect the
likelihood of such an incident where the
locking mechanism is functioning or
where railroad does not comply with
the rule.
The remainder of Emergency Order 28
and the final rule do not impose costs
beyond expected business practices.
FRA believes that the business benefits
of installing locking mechanisms and
locking locomotive cabs return net
benefits to the railroads. FRA believes
that locking the locomotive cab or
removing the reverser will reduce the
likelihood of a higher-consequence
event. FRA believes the continuing
requirements from Emergency Order 28
or the requirements of the final rule will
provide more opportunities to sever the
potential causal chain of a lowprobability high-consequence event.
Thus, FRA rejects the alternative of
simply removing Emergency Order 28.
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$1,076,984
95,009
3%
$1,479,331
96,538
Alternatives Considered
FRA considered as an alternative
requiring all trains subject to
§ 232.103(n)(6) to be attended if left
stopped outside yards, without regard to
the presence of a locking mechanism or
reverser. FRA believes that railroads
would work to enhance routing and
crew scheduling so that of the 1,000
affected trains per day, only 50 would
require unattended stops outside of
yards. The cost per event to attend a
train would be $470 per incident. The
daily cost would be 50 times $470, or
$23,500. The annual cost would be
$8,577,500.
FRA believes the final rule is as
effective as the alternative considered,
at much lower cost. Thus, FRA rejected
the more restrictive alternative. FRA
further believes that given the tradeoff
between the certainty of relatively low
costs and the benefit of very lowprobability yet very high-consequence
incidents, the final rule is a reasonable
approach. In the NPRM FRA requested
comments on all aspects of this analysis.
The comments FRA received are
discussed above.
Regulatory Flexibility Act and Executive
Order 13272
To ensure that the impact of this
rulemaking on small entities is properly
considered, FRA developed this final
rule in accordance with Executive Order
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Federal Register / Vol. 80, No. 151 / Thursday, August 6, 2015 / Rules and Regulations
13272 (‘‘Proper Consideration of Small
Entities in Agency Rulemaking’’) and
DOT’s policies and procedures to
promote compliance with the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.).
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 is not expected
to have a significant economic impact
on a substantial number of small
entities.
As discussed in the preamble above,
FRA is amending regulations affecting
securement of certain trains carrying
particular hazardous materials in
particular quantities, and requiring that
cabs of all locomotives left unattended,
except for those left unattended on main
tracks that are in or adjacent to yards,
be equipped with locking mechanisms.
FRA is certifying that this final rule will
result in ‘‘no significant economic
impact on a substantial number of small
entities.’’ The following section explains
the reasons for this certification.
1. Description of Regulated Entities and
Impacts
The ‘‘universe’’ of the entities under
consideration includes only those small
entities that can reasonably be expected
to be directly affected by the provisions
of this rule. In this case, the ‘‘universe’’
will be Class III freight railroads that
own locomotives or that have traffic
including trains that would be subject to
§ 232.103(n)(6).
The U.S. Small Business
Administration (SBA) stipulates in its
‘‘Size Standards’’ that the largest a
railroad business firm that is ‘‘forprofit’’ 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.’’ ‘‘Small
entity’’ is defined in the Act as a small
business that is independently owned
and operated, and is not dominant in its
field of operation. Additionally, section
601(5) defines ‘‘small entities’’ as
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 policy that formally
establishes ‘‘small entities’’ as railroads
which meet the line haulage revenue
requirements of a Class III railroad.34
The revenue requirements are currently
$20 million or less in annual operating
revenue. The $20 million limit (which
is adjusted by applying the railroad
revenue deflator adjustment) 35 is based
on the Surface Transportation Board’s
(STB) threshold for a Class III railroad
carrier. FRA is using the STB’s
threshold in its definition of ‘‘small
entities’’ for this rule.
FRA believes that virtually all small
railroads on the general system of rail
transportation will be affected by this
rule, as there are almost no railroads
that do not own at least one locomotive.
There are 671 small railroads on the
general system of rail transportation.
As noted above, no small entities are
expected to incur any costs under
§ 232.103. Small entities owning
locomotives may incur a cost to install
a locking mechanism under § 232.105,
but as also noted above, the locking
mechanisms will pay for themselves in
reduced vandalism costs in less than
three years. FRA believes that at least 90
percent of affected locomotives are
already equipped with locking
mechanisms, and the cost to install a
locking mechanism is $100 for a
mechanism that does not have to
comply with AAR standards for
interchange. Any small railroad’s
locomotives operated in interchange
service would have to have AAR
compliant locks to remain in
interchange service, but that is not a
cost of the rule. Thus, the rule will
impose a cost of $100 on about ten
percent of locomotives, but the
investment will pay for itself in less
than three years. FRA believes this is
not a substantial impact on any small
entity.
Further, small railroads will benefit
from a reduction in recordkeeping
requirements, as described above.
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 605(b), the FRA
Administrator certifies that this final
rule will not have a significant
economic impact on a substantial
number of small entities. In the NPRM,
FRA requested comment on both this
analysis and the certification, and its
estimates of the impacts on small
railroads. The only comment FRA
received was that the unit cost of locks
for small railroads would be more than
$100, exceeding even the AARestimated unit cost of $210 per
locomotive. For reasons discussed in the
Regulatory Impact section above, FRA
rejects that comment.
B. Paperwork Reduction Act
The information collection
requirements in this final rule are being
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995,
44 U.S.C. 3501 et seq. The sections that
contain the new and current
information collection requirements and
the estimated time to fulfill each
requirement are as follows:
mstockstill on DSK4VPTVN1PROD with RULES4
CFR section
Respondent
universe
Total annual
responses
Average time per
response
229.27—Annual tests ..........................................................
232.3—Applicability—Export, industrial, & other cars not
owned by railroads—identification.
232.7—Waivers ...................................................................
232.15—Movement of Defective Equipment—Tags/
Records.
—Written Notification ....................................................
232.17—Special Approval Procedure
—Petitions for special approval of safety—critical revision.
—Petitions for special approval of pre-revenue service acceptance plan.
—Service of petitions ...................................................
—Statement of interest .................................................
30,000 locomotives
655 railroads .........
120,000 tests ........
8 cards ..................
15 minutes ............
10 minutes ............
30,000 hours.
1 hour.
655 railroads .........
1,620,000 cars ......
160 hours .............
2.5 minutes ...........
1,600 hours.
5,350 hours.
1,620,000 cars ......
10 petitions ...........
128,400 tags/
records.
25,000 notices ......
3 minutes ..............
1,250 hours.
655 railroads .........
1 petition ...............
100 hours .............
100 hours.
655 railroads .........
1 petition ...............
100 hours .............
100 hours.
655 railroads .........
Public/railroads .....
1 petition ...............
4 statements .........
20 hours ...............
8 hours .................
20 hours.
32 hours.
34 See 68 FR 24891, May 9, 2003; 49 CFR part 209,
app. C.
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35 For further information on the calculation of
the specific dollar limit, please see 49 CFR part
1201.
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burden hours
47381
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CFR section
Respondent
universe
Total annual
responses
Average time per
response
—Comment ...................................................................
232.103—Gen’l requirements—all train brake systems—
Stickers.
Proposed Rule New Requirements .....................................
232.103(n)(3)(iv)—RR Procedure for Securing Unattended
Locomotive.
232.103(n)(7)—RR Plan Identifying Specific Locations or
Circumstances where Equipment May Be Left Unattended.
—Notification to FRA When RR Develops and Has
Plan in Place or Modifies Existing Plan.
232.103(n)(8)—Employee Verification with Another Qualified Employee of Securement of Freight Train or Freight
Car Left Unattended.
232.103(n)(9)—RR Implementation of Op. Rules/Practices
Requiring Job Briefing for Securement of Unattended
Equipment.
—Securement Job Briefings .........................................
Public/railroads .....
114,000 cars .........
13 comments ........
70,000 sticker .......
4 hours .................
10 minutes ............
52 hours.
11,667 hours.
Already Fulfilled
under OMB No.
2130–0601.
655 railroads .........
Fulfilled under
OMB No. 2130–
0601.
10 revised plans ...
Fulfilled under
OMB No. 2130–
0601.
10 hours ...............
Fulfilled under
OMB No. 2130–
0601.
100 hours.
655 railroads .........
10 notices .............
30 minutes ............
5 hours.
Included under
Sec.
232.103(n)(9).
655 railroads .........
Included Under
Sec.
232.103(n)(9).
491 revised rules/
practices.
Included under
Section
232.103(n)(9).
2 hours .................
Included under
Sec.
232.103(n)(9).
982 hours.
100,000 Employees.
655 railroads .........
23,400,000 job
briefings.
12 inspections/
records.
30 seconds ...........
195,000 hours.
4 hours .................
48 hours.
655 railroads .........
655 procedures ....
1 hour ...................
655 hours.
30,000 Locomotives.
30,000 forms ........
5 minutes ..............
2,500 hours.
30,000 Locomotives.
30,000 Locomotives.
10 new railroads ...
30,000 insp./
records.
73 repairs/records
30 seconds ...........
250 hours.
60.25 minutes .......
73 hours.
1 plan ....................
40 hours ...............
40 hours.
50 railroads/plans
50 railroads/plans
655 railroads .........
30,000 locomotives
30,000 locomotives
8,000 locomotives
5 new railroads .....
655 railroads .........
655 railroads .........
5 new railroads .....
10 revisions ..........
1,150 records .......
1,656,000 rec .......
6,358 records .......
6,358 tags .............
10 markings ..........
5 rules ...................
15 revisions ..........
5 requests .............
5 amendments ......
20 hours ...............
20 hours ...............
4 minutes ..............
4 minutes ..............
30 seconds ...........
5 minutes ..............
4 hours .................
1 hour ...................
30 min. + 20 hours
16 hours ...............
200 hours.
23,000 hours.
110,400 hours.
424 hours.
53 hours.
1 hour.
20 hours.
15 hours.
103 hours.
80 hours.
5 new railroads .....
100 railroads .........
655 railroads .........
15 railroads ...........
655 railroads .........
655 railroads .........
655 railroads .........
655 railroads .........
5 procedures ........
100 revisions ........
2,112,000 reports
5 programs ...........
559 revisions ........
67,000 records .....
67,000 notices ......
1 plan + 559 copies.
50 revisions ..........
1,646,000 notices/
records.
5 lists ....................
40 hours ...............
20 hours ...............
10 minutes ............
100 hours .............
8 hours .................
8 minutes ..............
3 minutes ..............
40 hours/1 min. ....
200 hours
2,000 hours.
352,000 hours.
500 hours.
4,472 hours.
8,933 hours.
3,350 hours.
49 hours.
20 hours ...............
45 seconds ...........
1,000 hours.
20,575 hours.
1 hour ...................
5 hours.
250 notices ...........
1,597,400 comments.
250 letters .............
10 minutes ............
3 seconds .............
42 hours.
1,331 hours.
15 minutes ............
63 hours.
5,600 tags .............
5 minutes ..............
467 hours.
320,000 markings
5 minutes ..............
26,667 hours.
320,000 tests/
records.
1 request + 3 copies.
60 minutes ............
320,000 hours.
100 hours + 5 minutes.
100 hours.
232.103(n)(10)—RR Adoption of Procedure for Verification
of Securement of Equipment by Qualified Employee.
—Inspection of Equipment by Qualified Employee
after Responder Visit.
—Procedure for Alternative Securement (New Requirement).
232.105—General requirements for locomotives—Inspection.
Proposed Rule New Requirements
232.105(h)—RR Inspection of Locomotive Exterior Locking Mechanism/Records.
—RR Repair, where necessary, of Locomotive Exterior Locking Mechanism.
232.107—Air source requirements and cold weather operations—Monitoring Plan (Subsequent Years).
—Amendments/Revisions to Plan ................................
—Recordkeeping ..........................................................
232.109—Dynamic brake requirements—status/record ......
—Inoperative dynamic brakes: repair record ...............
—Tag bearing words ‘‘inoperative dynamic brakes’’ ...
—Deactivated dynamic brakes (Sub. Yrs.) ..................
—Operating rules (Subsequent Years) ........................
—Amendments/Revisions ............................................
—Requests to increase 5 mph Overspeed restriction
—Knowledge criteria—locomotive engineers—Subsequent Years.
232.111—Train information handling—Sub. Yrs.—Amendments/Revisions.
—R655 report requirements to train crew ....................
232.203—Training requirements—Tr. Prog.—Sub Yr. ........
—Amendments to written program ..............................
—Training records ........................................................
—Training notifications .................................................
—Audit program ...........................................................
mstockstill on DSK4VPTVN1PROD with RULES4
—Amendments to validation/assessment program ......
232.205—Class 1 brake test—Notifications/Records .........
655 railroads .........
655 railroads .........
232.207—Class 1A brake tests—Designation Lists Where
Performed.
Subsequent Years: Notice of Change to .............................
232.209—Class II brake tests—intermediate ‘‘Roll-by inspection’’—Results to train driver.
232.213—Written Designation to FRA of Extended haul
trains.
232.303—General requirements—single car test: Tagging
of Moved Equipment.
—Last repair track brake test/single car test ...............
—Stenciled on Side of Equipment ...............................
232.305—Single Car Tests—Performance and Records ...
655 railroads .........
232.307—Modification of single car air brake test procedures: Requests.
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655 railroads .........
655 railroads .........
83,000 long dist.
movements.
1,600,000 frgt.
cars.
1,600,000 frgt.
cars.
1,600,000 frgt.
cars.
AAR ......................
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Total annual
burden hours
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Respondent
universe
Total annual
responses
Average time per
response
—Affirmation Statement on Mod. Req. To Employee
Representatives.
—Comments on Modification Request .........................
232.309—Repair track brake test ........................................
232.403—Unique Code .......................................................
232.407—EOT Operations requiring 2-way Voice Radio
Communications.
232.409—Inspection/Tests/Records EOTs .........................
AAR ......................
16 hours.
2,500 hours.
1 hour.
417 hours.
245 railroads .........
30 seconds ...........
3,729 hours.
245 railroads .........
1 minute ................
545 hours.
232.503—Process to introduce new brake technology .......
—Special approval .......................................................
232.505—Pre-revenue svc accept. test plan ......................
—Submission of maintenance procedure
—Amendments to maintenance procedure ..................
—Design description ....................................................
—Report to FRA Assoc. Admin. for Safety ..................
—Brake system technology testing ..............................
232.603—Configuration Management—Configuration Management Plan (ECP).
—Subsequent Years—Configuration Management
Plans.
—Request for Modification of Standards and Extra
Copies to FRA.
—Affirmative Statements that RRs have served copies of Modification Request to Employee Representatives.
—Comments on requested modification ......................
232.605—ECP Brakes: Training—Adopt/Developing an
ECP Training Program—First Year.
—Subsequent Years—ECP Training Prog. .................
—ECP Brakes Training of Employees—First Year ......
655 railroads .........
655 railroads .........
655 railroads .........
1 statement + 4
copies.
2 comments ..........
5,000 tests ............
12 requests ...........
50,000 verbal comments.
447,500 tests/notices/record.
32,708 units
marked.
1 letter ..................
1 request ..............
1 procedure ..........
30 minutes + 5
minutes.
8 hours .................
30 minutes ............
5 minutes ..............
30 seconds ...........
—Telemetry Equipment—Testing and Calibration .......
mstockstill on DSK4VPTVN1PROD with RULES4
CFR section
1 hour ...................
3 hours .................
160 hours .............
1 hour.
3 hours.
160 hours.
655 railroads .........
655 railroads .........
655 railroads .........
655 railroads .........
4 railroads .............
1
1
1
1
1
revision ..............
petition ...............
report .................
description .........
plan ....................
40 hours ...............
67 hours ...............
13 hours ...............
40 hours ...............
160 hours .............
40 hours.
67 hours.
13 hours.
40 hours.
160 hours.
4 railroads .............
1 plan ....................
60 hours ...............
60 hours.
4 railroads .............
8 hours + 5 minutes.
60 minutes + 5
minutes.
8 hours.
4 railroads .............
1 request + 2 copies.
4 statements + 24
copies.
Public/Industry ......
1 railroad ..............
4 comments ..........
1 program .............
2 hours .................
100 hours .............
8 hours.
100 hours.
1 railroad ..............
1 railroad ..............
100 hours .............
8 hours/24 hrs. .....
100 hours.
26,480 hours.
—ECP Brakes Training of Employees—Subsequent
Years.
—ECP Training Records—Yr. One ..............................
—ECP Training Records—Subsequent Yrs. ................
—Assessment of ECP Training Plan ...........................
—Adopt Operating Rules for ECP Brakes ...................
—Amended Locomotive Engineer Certification Program (ECP Brakes).
232.607—ECP Inspection and Testing—Initial Terminal—
Inspections and Notification/Record of Class I Brake
Tests.
—Cars added or removed en route—Class I Brake
Test and Notification.
—Non-ECP cars added to ECP Trains—Inspections
and Tags for Defective Cars.
232.609—Handling of Defective Equipment with ECP
Brake Systems—Freight Car w/defective conventional
brakes moved in train operating in ECP brake mode.
—Inspections/Tagging for ECP Train moving w/less
than 85 percent operative/effective brakes.
—Cars tagged in accordance with Section 232.15 ......
232.609—Conventional Train with stand-alone ECP brake
equipped cars—Tagging.
—Procedures for handling ECP brake system repairs
and designation of repair locations.
—List of repair locations ...............................................
—Notification to FRA Safety Administrator regarding
change to repair location list.
232.611—Periodic Maintenance—Inspections before being
released from repair Shop.
—Procedures/Petition for ECP Single Car Test ..........
2 railroads .............
1 program .............
1,602 trained employees.
1,602 trained employees.
1,602 records .......
1,602 records .......
1 ECP plan ...........
1 Oper. Rule .........
1 amended program.
2,500 insp.+ 2,500
notices.
1 hour/8 hours ......
7,580 hours.
8 minutes ..............
4 minutes ..............
40 hours ...............
24 hours ...............
40 hours ...............
214 hours.
107 hours.
40 hours.
24 hours.
40 hours.
90 min. + 45 seconds.
3,781 hours.
250 inspection +
125 notices.
50 insp. + 100
tags/records.
50 tags/records .....
60 minutes + 45
seconds.
5 minutes + 2.5
minutes.
2.5 minutes ...........
253 hours.
25 Cars .................
50 Cars .................
20 insp. + 40 tags/
records.
50 tags/records .....
100 tags/records ...
5 minutes + 2.5
minutes.
2.5 minutes ...........
2.5 minutes ...........
2 hours.
4 hours.
2 railroads .............
2 procedures ........
24 hours ...............
48 hours.
2 railroads .............
2 railroads .............
2 lists ....................
1 notification .........
8 hours .................
1 hour ...................
16 hours.
1 hour.
500 Freight Cars ..
500 insp./rcds .......
10 minutes ............
83 hours.
1 Railroad Rep. ....
50 Freight Cars ....
1 Railroad Rep. ....
24 hours + 5 minutes.
45 minutes ............
40 hours ...............
24 hours.
—Single Car Air Brake Tests—Records ......................
—Modification of Single Car Test Standards ...............
1 petition + 2 copies.
50 tests/records ....
1 mod. Proc. .........
VerDate Sep<11>2014
23:16 Aug 05, 2015
Jkt 235001
PO 00000
Railroad/Public .....
640 shops .............
245 railroads .........
245 railroads .........
2
2
2
2
2
railroads
railroads
railroads
railroads
railroads
.............
.............
.............
.............
.............
1 railroad ..............
1 railroad ..............
200 Cars ...............
25 Cars .................
20 Cars .................
Frm 00034
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Total annual
burden hours
1 hour.
6 hours.
8 hours.
2 hours.
3 hours.
38 hours.
40 hours.
Federal Register / Vol. 80, No. 151 / Thursday, August 6, 2015 / Rules and Regulations
All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. For
information or a copy of the paperwork
package submitted to OMB, contact Mr.
Robert Brogan, Information Clearance
Officer, at 202–493–6292, or Ms. Nakia
Poston, Information Clearance Officer,
at 202–493–6073.
OMB is required to make a decision
concerning the collection of information
requirements contained in this final rule
between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
to OMB is best assured of having its full
effect if OMB receives it within 30 days
of publication.
FRA is not authorized to impose a
penalty on persons for violating
information collection requirements
which do not display a current OMB
control number, if required. FRA
intends to obtain current OMB control
numbers for any new information
collection requirements resulting from
this rulemaking action prior to the
effective date of the final rule. The OMB
control number, when assigned, will be
announced by separate notice in the
Federal Register.
mstockstill on DSK4VPTVN1PROD with RULES4
C. Federalism
Executive Order 13132, ‘‘Federalism’’
(64 FR 43255, Aug. 10, 1999), requires
FRA to develop an accountable process
to ensure ‘‘meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ are
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ Under Executive
Order 13132, the agency may not issue
a regulation with federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments or the agency consults
with State and local government
officials early in the process of
developing the regulation. Where a
regulation has federalism implications
and preempts State law, the agency
seeks to consult with State and local
officials in the process of developing the
regulation.
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This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132. FRA has determined that the
final rule does not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. In addition, FRA
has determined that this final rule does
not impose substantial direct
compliance costs on State and local
governments. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
This rule adds requirements to part
232. FRA is not aware of any State
having regulations similar to these
proposals. However, FRA notes that this
part could have preemptive effect by the
operation of law under a provision of
the former Federal Railroad Safety Act
of 1970, repealed, revised, reenacted,
and codified at 49 U.S.C. 20106 (Sec.
20106). Sec. 20106 provides that States
may not adopt or continue in effect any
law, regulation, or order related to
railroad safety or security that covers
the subject matter of a regulation
prescribed or order issued by the
Secretary of Transportation (with
respect to railroad safety matters) or the
Secretary of Homeland Security (with
respect to railroad security matters),
except when the State law, regulation,
or order qualifies under the ‘‘essentially
local safety or security hazard’’
exception to Sec. 20106. In addition,
section 20119(b) authorizes FRA to
issue a rule governing the discovery and
use of risk analysis information in
litigation.
In sum, FRA has analyzed this final
rule in accordance with the principles
and criteria contained in Executive
Order 13132. As explained above, FRA
has determined that this final rule has
no federalism implications, other than
the possible preemption of State laws
under 49 U.S.C. 20106 and 20119.
Accordingly, FRA has determined that
preparation of a federalism summary
impact statement for this final rule is
not required.
D. International Trade Impact
Assessment
The Trade Agreement Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
statute also requires consideration of
international standards and where
PO 00000
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47383
appropriate, that they be the basis for
U.S. standards. This rulemaking is
purely domestic in nature and is not
expected to affect trade opportunities
for U.S. firms doing business overseas or
for foreign firms doing business in the
United States.
E. Environmental Assessment
FRA has evaluated this rule in
accordance with its ‘‘Procedures for
Considering Environmental Impacts’’
(FRA’s Procedures) (64 FR 28545, May
26, 1999) as required by the National
Environmental Policy Act (42 U.S.C.
4321 et seq.), other environmental
statutes, Executive Orders, and
requirements covered under FRA NEPA
reviews. FRA has determined that this
rule is not a major FRA action as
defined in FRA’s Procedures (requiring
the preparation of an environmental
assessment or environmental impact
statement) because it is categorically
excluded from further environmental
review pursuant to section 4(c)(20) of
FRA’s Procedures. See 64 FR 28547,
May 26, 1999. Section 4(c)(20) reads as
follows:
(c) Actions categorically excluded. Certain
classes of FRA actions have been determined
to be categorically excluded from the
requirements of these Procedures as they do
not individually or cumulatively have a
significant effect on the human environment.
* * * The following classes of FRA actions
are categorically excluded:
* * * (20) Promulgation of railroad safety
rules and policy statements that do not result
in significantly increased emissions or air or
water pollutants or noise or increased traffic
congestion in any mode of transportation.
This rule amends existing FRA
regulations and strengthen the
requirements relating to securement and
unattended equipment. Compliance
with these requirements would not
result in actions that would adversely
affect the environment. To the extent
that a reduction in safety incidents, in
particular hazardous materials releases,
prevents adverse environmental
impacts, this rule will have the potential
for minor environmental benefits. The
rule does not require any new
infrastructure improvements or changes
in railroad operating practices that
would result in adverse environmental
consequences. As such, FRA does not
expect any significant increases in air
emissions, water pollution, noise, or
traffic congestion. Thus, in accordance
with section 4(c) and (e) of FRA’s
Procedures, the agency concludes that
no extraordinary circumstances exist
with respect to this proposed regulation
that might trigger the need for a more
detailed environmental review. As a
result, FRA finds that this rule will not
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Federal Register / Vol. 80, No. 151 / Thursday, August 6, 2015 / Rules and Regulations
significantly affect the quality of the
human environment and is categorically
excluded from further review.
determined that this regulatory action is
not a ‘‘significant energy action’’ within
the meaning of Executive Order 13211.
List of Subjects in 49 CFR Part 232
F. Unfunded Mandates Reform Act of
1995
Pursuant to section 201 of the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, 2 U.S.C. 1531), each
Federal agency ‘‘shall, unless otherwise
prohibited by law, assess the effects of
Federal regulatory actions on State,
local, and tribal governments, and the
private sector (other than to the extent
that such regulations incorporate
requirements specifically set forth in
law).’’ Section 202 of the Act (2 U.S.C.
1532) further requires that the agency
prepare a written statement detailing the
effect of this rule on State, local, and
tribal governments and the private
sector:
H. Privacy Act
The Rule
Interested parties should be aware
that anyone is able to search the
electronic form of all comments
received into any agency docket by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477), or you may visit https://
www.dot.gov/privacy.html.
In consideration of the foregoing, FRA
is amending part 232 of chapter II,
subtitle B of title 49, Code of Federal
Regulations as follows:
[B]efore promulgating any general notice of
proposed rulemaking that is likely to result
in the promulgation of any rule that includes
any Federal mandate that may result in
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
(adjusted annually for inflation) in any 1
year, and before promulgating any final rule
for which a general notice of proposed
rulemaking was published.
Executive Order 12898, Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534 May 10,
2012) require DOT agencies to achieve
environmental justice (EJ) as part of
their mission by identifying and
addressing, as appropriate,
disproportionately high and adverse
human health or environmental effects,
including interrelated social and
economic effects, of their programs,
policies, and activities on minority
populations and low-income
populations. The DOT Order instructs
DOT agencies to address compliance
with Executive Order 12898 and the
DOT Order in rulemaking activities, as
appropriate. FRA has evaluated this
proposed rule under Executive Order
12898 and the DOT Order and has
determined that it would not cause
disproportionately high and adverse
human health and environmental effects
on minority or low-income populations.
mstockstill on DSK4VPTVN1PROD with RULES4
For the year 2013, this monetary amount
of $100,000,000 has been adjusted to
$151,000,000 to account for inflation.
This final rule will not result in the
expenditure of more than $151,000,000
by the public sector in any one year, and
thus preparation of such a statement is
not required.
G. Energy Impact
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ 66 FR 28355, May 22,
2001. Under the Executive Order, a
‘‘significant energy action’’ is defined as
any action by an agency (normally
published in the Federal Register) that
promulgates, or is expected to lead to
the promulgation of, a final rule or
regulation (including a notice of
inquiry, advance NPRM, and NPRM)
that (1)(i) is a significant regulatory
action under Executive Order 12866 or
any successor order and (ii) is likely to
have a significant adverse effect on the
supply, distribution, or use of energy; or
(2) is designated by the Administrator of
the Office of Information and Regulatory
Affairs as a significant energy action.
FRA has evaluated this final rule in
accordance with Executive Order 13211.
FRA has determined that this final rule
will not have a significant adverse effect
on the supply, distribution, or use of
energy. Consequently, FRA has
VerDate Sep<11>2014
21:30 Aug 05, 2015
Jkt 235001
I. Executive Order 12898
(Environmental Justice)
J. Executive Order 13175 (Tribal
Consultation)
FRA has evaluated this proposed rule
in accordance with the principles and
criteria contained in Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments, dated
November 6, 2000. The proposed rule
would not have a substantial direct
effect on one or more Indian tribes,
would not impose substantial direct
compliance costs on Indian tribal
governments, and would not preempt
tribal laws. Therefore, the funding and
consultation requirements of Executive
Order 13175 do not apply, and a tribal
summary impact statement is not
required.
PO 00000
Frm 00036
Fmt 4701
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Hazardous material, Power brakes,
Railroad safety, Securement.
PART 232—[AMENDED]
1. The authority citation for part 232
is revised to read as follows:
■
Authority: 49 U.S.C. 20102–20103, 20107,
20133, 20141, 20301–20303, 20306, 21301–
21302, 21304; 28 U.S.C. 2461, note; and 49
CFR 1.89.
2. Section 232.5 is amended by adding
in alphabetical order the definitions of
‘‘Mechanical securement device’’ and
‘‘Unattended equipment’’, and by
removing the word ‘‘limits’’ from the
defined term ‘‘Yard limits’’.
The revisions read as follows:
■
§ 232.5
Definitions.
*
*
*
*
*
Mechanical securement device means
a device, other than the air brake, that
provides at least the equivalent
securement that a sufficient number of
hand brakes would provide in the same
situation. Current examples include
skates, retarders, and inert retarders.
*
*
*
*
*
Unattended equipment means
equipment left standing and unmanned
in such a manner that the brake system
of the equipment cannot be readily
controlled by a qualified person.
*
*
*
*
*
3. In § 232.103, revise paragraphs (n)
introductory text and (n)(1) through (3)
and add paragraphs (n)(6) through (11)’’
to read as follows:
■
§ 232.103 General requirements for all
train brake systems.
*
*
*
*
*
(n) Securement of unattended
equipment. Unattended equipment shall
be secured in accordance with the
following requirements:
(1) A sufficient number of hand
brakes, to be not fewer than one, shall
be applied to hold the equipment unless
an acceptable alternative method of
securement is provided pursuant to
paragraph (n)(11)(i) of this section.
Railroads shall develop and implement
a process or procedure to verify that the
applied hand brakes will sufficiently
hold the equipment with the air brakes
released.
(2) Except for equipment connected to
a source of compressed air (e.g.,
locomotive or ground air source), or as
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Federal Register / Vol. 80, No. 151 / Thursday, August 6, 2015 / Rules and Regulations
provided under paragraph (n)(11)(ii) of
this section, prior to leaving equipment
unattended, the brake pipe shall be
reduced to zero at a rate that is no less
than a service rate reduction, and the
brake pipe vented to atmosphere by
leaving the angle cock in the open
position on the first unit of the
equipment left unattended. A train’s air
brake shall not be depended upon to
hold equipment standing unattended
(including a locomotive, a car, or a train
whether or not locomotive is attached).
(3) Except for distributed power units,
the following requirements apply to
unattended locomotives:
(i) All hand brakes shall be fully
applied on all locomotives in the lead
consist of an unattended train.
(ii) All hand brakes shall be fully
applied on all locomotives in an
unattended locomotive consist outside
of a yard.
(iii) At a minimum, the hand brake
shall be fully applied on the lead
locomotive in an unattended locomotive
consist within a yard.
(iv) A railroad shall develop, adopt,
and comply with procedures for
securing any unattended locomotive
required to have a hand brake applied
pursuant to paragraph (n)(3)(i) through
(iii) of this section when the locomotive
is not equipped with an operative hand
brake.
*
*
*
*
*
(6)(i) The requirements in paragraph
(n)(7) through (8) of this section apply
to any freight train or standing freight
car or cars that contain:
(A) Any loaded tank car containing a
material poisonous by inhalation as
defined in § 171.8 of this title, including
anhydrous ammonia (UN 1005) and
ammonia solutions (UN 3318); or
(B) Twenty (20) or more loaded tank
cars or loaded intermodal portable tanks
of any one or any combination of a
hazardous material listed in paragraph
(n)(6)(i)(A) of this section, or any
Division 2.1 (flammable gas), Class 3
(flammable or combustible liquid),
Division 1.1 or 1.2 (explosive), or a
hazardous substance listed at
§ 173.31(f)(2) of this title.
(ii) For the purposes of this paragraph,
a tank car containing a residue of a
hazardous material as defined in § 171.8
of this title is not considered a loaded
car.
(7)(i) No equipment described in
paragraph (n)(6) of this section shall be
left unattended on a main track or
siding (except when that main track or
siding runs through, or is directly
adjacent to a yard) until the railroad has
adopted and is complying with a plan
identifying specific locations or
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21:30 Aug 05, 2015
Jkt 235001
circumstances when the equipment may
be left unattended. The plan shall
contain sufficient safety justification for
determining when equipment may be
left unattended. The railroad must
notify FRA when the railroad develops
and has in place a plan, or modifies an
existing plan, under this provision prior
to operating pursuant to the plan. The
plan shall be made available to FRA
upon request. FRA reserves the right to
require modifications to any plan
should it determine the plan is not
sufficient.
(ii) Except as provided in paragraph
(n)(8)(iii) of this section, any freight
train described in paragraph (n)(6) of
this section that is left unattended on a
main track or siding that runs through,
or is directly adjacent to, a yard shall
comply with the requirements
contained in paragraphs (n)(8)(i) and
(n)(8)(ii) of this section.
(8)(i) Where a freight train or standing
freight car or cars as described in
paragraph (n)(6) of this section is left
unattended on a main track or siding
outside of a yard, and not directly
adjacent to a yard, an employee
responsible for securing the equipment
shall verify with another person
qualified to make the determination that
the equipment is secured in accordance
with the railroad’s processes and
procedures.
(ii) The controlling locomotive cab of
a freight train described in paragraph
(n)(6) of this section shall be locked on
locomotives capable of being locked. If
the controlling cab is not capable of
being locked, the reverser on the
controlling locomotive shall be removed
from the control stand and placed in a
secured location.
(iii) A locomotive that is left
unattended on a main track or siding
that runs through, or is directly adjacent
to, a yard is excepted from the
requirements in (n)(8)(ii) of this section
where the locomotive is not equipped
with an operative lock and the
locomotive has a reverser that cannot be
removed from its control stand or has a
reverser that is necessary for cold
weather operations.
(9) Each railroad shall implement
operating rules and practices requiring
the job briefing of securement for any
activity that will impact or require the
securement of any unattended
equipment in the course of the work
being performed.
(10) Each railroad shall adopt and
comply with procedures to ensure that,
as soon as safely practicable, a qualified
employee verifies the proper
securement of any unattended
equipment when the railroad has
knowledge that a non-railroad
PO 00000
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Fmt 4701
Sfmt 4700
47385
emergency responder has been on,
under, or between the equipment.
(11) A railroad may adopt and then
must comply with alternative
securement procedures to do the
following:
(i) In lieu of applying hand brakes as
required under paragraph (n) of this
section, properly maintain and use
mechanical securement devices, within
their design criteria and as intended
within a classification yard or on a
repair track.
(ii) In lieu of compliance with the
associated requirement in paragraph
(n)(2) of this section—and in lieu of
applying hand brakes as required under
paragraph (n) of this section— isolate
the brake pipe of standing equipment
from atmosphere if it:
(A) Initiates an emergency brake
application on the equipment;
(B) Closes the angle cock; and
(C) Operates the locomotive or
otherwise proceeds directly to the
opposite end of the equipment for the
sole purpose to either open the angle
cock to vent to atmosphere or provide
an air source.
(iii) Upon completion of the
procedure described in paragraph
(n)(11)(ii) of this section, the securement
requirements of paragraph (n) of this
section shall apply.
*
*
*
*
*
■ 4. In § 232.105, add paragraph (h) to
read as follows:
§ 232.105 General requirements for
locomotives.
*
*
*
*
*
(h)(1) After March 1, 2017, each
locomotive left unattended outside of a
yard, but not on a track directly adjacent
to the yard, shall be equipped with an
operative exterior locking mechanism.
(2) The railroad shall inspect and,
where necessary, repair the locking
mechanism during a locomotive’s
periodic inspection required in § 229.23
of this chapter.
(3) In the event that a locking
mechanism becomes inoperative during
the time interval between periodic
inspections, the railroad must repair the
locking mechanism within 30 days of
finding the inoperative lock.
(4) A railroad may continue the use of
a locomotive without an operative
locking mechanism; however, if the
controlling locomotive of a train
meeting the requirements of
§ 232.103(n)(6)(i) does not have an
operative locking mechanism for the
locomotive, the train must not be left
unattended on main track or a siding
unless the reverser is removed from the
control stand as required in
§ 232.103(n)(8)(ii) or the locomotive
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otherwise meets one of the exceptions
described in § 232.103(n)(8)(iii).
5. In appendix A to part 232, revise
the entry for § 232.103(n) and add an
entry for § 232.105(h) to read as follows:
■
Appendix A to Part 232—Schedule of
Civil Penalties (1)
Section
*
*
*
232.103 General requirements for all train brake systems:
Violation
*
*
*
*
*
*
*
(n) Securement of unattended equipment.
(1) Failure to apply sufficient number of hand brakes; failure to develop or implement procedure to verify
number applied .............................................................................................................................................
(2) Failure to initiate emergency or depend upon air brake ............................................................................
(3) Failure to apply hand brakes on locomotives .............................................................................................
(4) Failure to adopt or comply with procedures for securing unattended locomotive ......................................
(5) Release of hand brakes before brake system is properly charged ............................................................
(7)(i) Failure to adopt or comply with unattended location plan .......................................................................
(8)(i) Failure to verify securement ....................................................................................................................
(8)(ii) Failure to apply lock or remove and secure reverser .............................................................................
(9) Failure implement operating rule for securement job briefing ....................................................................
(10) Failure to adopt and comply with securement procedures for after emergency response ......................
232.105 General requirements for locomotives:
*
*
*
*
*
*
*
(h)(1) Failure to equip with operative locomotive lock .....................................................................................
(h)(2)–(h)(3) Failure to inspect or timely repair locomotive lock ......................................................................
*
*
*
*
*
*
Willful
Violation
*
*
5,000
2,500
2,500
5,000
5,000
2,500
2,500
2,500
2,500
2,500
7,500
5,000
5,000
7,500
7,500
5,000
5,000
5,000
2,500
5,000
*
2,500
2,500
*
5,000
5,000
*
Issued in Washington, DC, on July 27,
2015.
Sarah Feinberg,
Acting Administrator.
[FR Doc. 2015–19002 Filed 8–5–15; 8:45 am]
mstockstill on DSK4VPTVN1PROD with RULES4
BILLING CODE 4910–06–P
1 A penalty may be assessed against an individual
only for a willful violation. Generally when two or
more violations of these regulations are discovered
with respect to a single unit of equipment that is
placed or continued in service by a railroad, the
appropriate penalties set forth above are aggregated
up to a maximum of $25,000 per day. An exception
to this rule is the $15,000 penalty for willful
violation of § 232.503 (failure to get FRA approval
before introducing new technology) with respect to
a single unit of equipment; if the unit has additional
violative conditions, the penalty may routinely be
aggregated to $15,000. Although the penalties listed
for failure to perform the brake inspections and
tests under § 232.205 through § 232.209 may be
assessed for each train that is not properly
VerDate Sep<11>2014
21:30 Aug 05, 2015
Jkt 235001
inspected, failure to perform any of the inspections
and tests required under those sections will be
treated as a violation separate and distinct from,
and in addition to, any substantive violative
conditions found on the equipment contained in
the train consist. Moreover, the Administrator
reserves the right to assess a penalty of up to
$105,000 for any violation where circumstances
warrant. See 49 CFR part 209, appendix A.
Failure to observe any condition for movement of
defective equipment set forth in § 232.15(a) will
deprive the railroad of the benefit of the movementfor-repair provision and make the railroad and any
responsible individuals liable for penalty under the
particular regulatory section(s) concerning the
PO 00000
Frm 00038
Fmt 4701
Sfmt 9990
substantive defect(s) present on the equipment at
the time of movement.
Failure to provide any of the records or plans
required by this part pursuant to § 232.19 will be
considered a failure to maintain or develop the
record or plan and will make the railroad liable for
penalty under the particular regulatory section(s)
concerning the retention or creation of the
document involved.
Failure to properly perform any of the inspections
specifically referenced in § 232.209, § 232.213,
§ 232.217, and subpart G may be assessed under
each section of this part or this chapter, or both, that
contains the requirements for performing the
referenced inspection.
E:\FR\FM\06AUR4.SGM
06AUR4
]]>Agencies
[Federal Register Volume 80, Number 151 (Thursday, August 6, 2015)]
[Rules and Regulations]
[Pages 47349-47386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19002]
[[Page 47349]]
Vol. 80
Thursday,
No. 151
August 6, 2015
Part XIV
Department of Transportation
-----------------------------------------------------------------------
Federal Railroad Administration
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49 CFR Part 232
Securement of Unattended Equipment; Final Rule
Federal Register / Vol. 80 , No. 151 / Thursday, August 6, 2015 /
Rules and Regulations
[[Page 47350]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 232
[Docket No. FRA-2014-0032, Notice No. 2]
RIN 2130-AC47
Securement of Unattended Equipment
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FRA amends the brake system safety standards for freight and
other non-passenger trains and equipment to strengthen the requirements
relating to the securement of unattended equipment. Specifically, FRA
codifies many of the requirements already included in its Emergency
Order 28, Establishing Additional Requirements for Attendance and
Securement of Certain Freight Trains and Vehicles on Mainline Track or
Mainline Siding Outside of a Yard or Terminal. FRA amends existing
regulations to include additional securement requirements for
unattended equipment, primarily for trains transporting poisonous by
inhalation hazardous materials or large volumes of Division 2.1
(flammable gases), Division 3 (flammable or combustible liquids,
including crude oil and ethanol), and Class 1.1 or 1.2 (explosives)
hazardous materials. For these trains, FRA also provides additional
communication requirements relating to job briefings and securement
verification. Finally, FRA requires all locomotives left unattended
outside of a yard to be equipped with an operative exterior locking
mechanism. Attendance on trains is required on equipment not capable of
being secured in accordance with the proposed and existing
requirements.
DATES: This final rule is effective October 5, 2015. Petitions for
reconsideration must be received on or before September 25, 2015.
Petitions for reconsideration will be posted in the docket for this
proceeding. Comments on any submitted petition for reconsideration must
be received on or before November 9, 2015.
ADDRESSES: Petitions for reconsideration and comments on petitions for
reconsideration: Any petitions for reconsideration or comments on
petitions for reconsideration related to this docket may be submitted
by any of the following methods:
Web site: Federal eRulemaking Portal, https://www.regulations.gov. Follow the online instructions for submitting
documents.
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington,
DC 20590.
Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9
a.m. and 5 p.m. ET, 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. Note that all submissions received will be posted without
change to https://www.regulations.gov including any personal
information. Please see the Privacy Act heading in the ``Supplementary
Information'' section of this document for Privacy Act information
related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov at any time or to
Room W12-140 on the Ground level of the West Building, 1200 New Jersey
Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through
Friday, except Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Steven Zuiderveen, Railroad Safety
Specialist, Motive & Power Equipment Division, Office of Safety
Assurance and Compliance, Federal Railroad Administration, RRS-14, West
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590
(telephone: 202-493-6337); Jason Schlosberg, Trial Attorney, Office of
Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-
207, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-
493-6032).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Background
A. Lac-M[eacute]gantic Derailment
1. Facts
2. Response
B. Safety Concerns Arising Out of the Lac-M[eacute]gantic
Derailment and Other Train Incidents Involving Flammable Liquids and
Gases and Poison Inhalation Hazard Materials.
C. Current Securement Regulations and Related Guidance
D. Emergency Order 28 and Related Guidance
E. RSAC Overview
F. NPRM and Comments
III. Rescinding Emergency Order 28
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
Regulatory Flexibility Act and Executive Order 13272
B. Paperwork Reduction Act
C. Federalism
D. International Trade Impact Assessment
E. Environmental Assessment
F. Unfunded Mandates Reform Act of 1995
G. Energy Impact
H. Privacy Act
I. Executive Order 12898 (Environmental Justice)
J. Executive Order 13175 (Tribal Consultation)
I. Executive Summary
Purpose of the Regulatory Action
While FRA's existing securement regulations have been successful in
mitigating risks associated with the unintended movement of unattended
equipment, FRA recognizes that--particularly in light of certain
incidents like the 2013 accident in Lac-M[eacute]gantic, Quebec,
Canada--additional requirements are warranted when such equipment
includes certain hazardous materials that can contribute to high-
consequence events. To address these concerns, FRA issued Emergency
Order 28, 78 FR 48218, Aug. 7, 2013, engaged in proceedings with the
Railroad Safety Advisory Committee to draft recommended regulations,
and issued a responsive notice of proposed rulemaking (NPRM) and this
instant final rule. FRA is issuing this final rule pursuant to the
authority granted to the Secretary of Transportation in 49 U.S.C.
20102-20103, 20107, 20133, 20141, 20301-20303, 20306, 21301-20302,
21304; 28 U.S.C. 2461, note; which the Secretary has delegated to the
Administrator of FRA pursuant to 49 CFR 1.89.
Summary of the Major Provisions of the Regulatory Action
In this proceeding, FRA issues requirements to ensure that each
locomotive left unattended outside of a yard is equipped with an
operative exterior locking mechanism and that such locks be applied on
the controlling locomotive cab door when a train is transporting tank
cars loaded with certain hazardous materials. This rule provides that
such hazardous materials trains may only be left unattended on a main
track or siding if justified in a plan adopted by the railroad,
accompanied by an appropriate job briefing, and proper securement is
made and verified. This rule also requires additional verification of
securement in the event that a non-railroad emergency responder
[[Page 47351]]
may have been in a position to have affected the equipment.
Costs and Benefits of the Proposed Regulatory Action
In this rule, the benefits ($1,163,669 at a 7% discount, $1,579,240
at a 3% discount) outweigh the costs ($86,685 at a 7% discount, $99,909
at a 3% discount), with total net benefits over 20 years of $1,076,984
at a 7% discount (or $95,009 annualized) and $1,478,331 at a 3%
discount (or $96,538 annualized).
------------------------------------------------------------------------
Discounted value
-------------------------------
Discounted values Discount factor
-------------------------------
7% 3%
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
Attending Trains........................ $36,685 $49,909
Installing Locks........................ 50,000 50,000
-------------------------------
Total Costs......................... 86,685 99,909
------------------------------------------------------------------------
Benefits
------------------------------------------------------------------------
Reduced Vandalism....................... 180,873 250,666
Reduced Recordkeeping................... 982,786 1,328,573
-------------------------------
Total Benefits...................... 1,163,669 1,579,240
------------------------------------------------------------------------
------------------------------------------------------------------------
Discounted value
-------------------------------
Discounted values net benefits Discount factor
-------------------------------
7% 3%
------------------------------------------------------------------------
Total................................... $1,076,984 $1,479,331
Annualized.............................. 95,009 96,538
------------------------------------------------------------------------
II. Background
In 2001, FRA issued regulations governing the securement of
unattended equipment. 66 FR 4104, Jan. 17, 2001. These regulations have
been effective in protecting against the risk of rolling equipment.
Over the last few years, there has been a significant increase in the
volume of rail traffic for certain types of commodities, such as
petroleum crude oil (crude oil) and ethanol, both of which are highly
flammable and often transported in large unit or ``key'' trains, as
defined in the industry by the Association of American Railroads (AAR).
See AAR Circular No. OT-55-N (Aug. 5, 2013), available at https://www.boe.aar.com/CPC-1258%20OT-55-N%208-5-13.pdf.
Since 2009, there have been a number of serious rail accidents
involving the transportation of large quantities of flammable liquids.
A number of these accidents involved trains transporting large
quantities of ethanol. However, since 2011, there has been significant
growth in the rail transport of flammable crude oil, and FRA has seen a
number of accident-related releases of crude oil in that time. One
significant accident involving tank cars loaded with crude oil was the
July 6, 2013, derailment in the town of Lac-M[eacute]gantic, Quebec,
Canada. After reviewing the facts related to this derailment, FRA
concluded that additional action was necessary to eliminate an
immediate hazard of death, personal injury, or significant harm to the
environment, particularly in instances where certain hazardous
materials are involved. Thus, FRA issued Emergency Order 28 requiring
railroads to implement additional procedures to ensure the proper
securement of equipment containing certain types and amounts of
hazardous materials when left unattended. See 78 FR 48213, Aug. 7,
2013. Subsequent to the issuance of Emergency Order 28, FRA also
enlisted the assistance of the Railroad Safety Advisory Committee
(RSAC) to develop recommendations regarding the attendance and
securement of railroad equipment transporting certain hazardous
materials when left unattended in light of the requirements contained
in Emergency Order 28.
A. Lac-M[eacute]gantic Derailment
1. Facts
On July 6, 2013, in the town of Lac-M[eacute]gantic, Quebec,
Canada, an accident involving tank cars loaded with petroleum crude oil
occurred on track owned by Montreal, Maine & Atlantic Railway (MMA), a
company incorporated in the United States.
The Transportation Safety Board (TSB) of Canada issued a report at
the conclusion of its investigation into the incident, and the
following is a summary of the TSB's factual findings.\1\ On July 5,
2013, a locomotive engineer was operating freight train MMA-002 on the
Sherbrooke Subdivision from Farnham (milepost 125.60) and at around
10:50 p.m. stopped near Nantes, Quebec (milepost 7.40) on its way to
its destination, Brownville Junction, Maine. The train was
approximately 4,700 feet long, weighed over 10,000 tons, and included a
locomotive consist of 5 head-end locomotives and one VB car (which
served as a type of special-purpose caboose), one box car (buffer car),
and 72 tank cars loaded with approximately 7.7 million liters of
petroleum crude oil (UN 1267). The locomotive engineer parked train
MMA-002 on the main line, on a descending grade of 1.2%, attempted to
secure the train--including setting the independent brake, but not the
automatic brake--and departed by automobile, leaving the train
unattended. At around 11:40 p.m., a local resident reported a fire on
the train. The local fire department was called and responded with
another MMA employee. At approximately
[[Page 47352]]
midnight, the controlling locomotive was shut down and the fire
extinguished. After the fire was extinguished, the fire department and
the MMA employee left the site.
---------------------------------------------------------------------------
\1\ Railway Investigative Report R13D0054, TSB, July 6, 2013,
available at https://www.tsb.gc.ca/eng/rapports-reports/rail/2013/R13D0054/R13D0054.pdf.
---------------------------------------------------------------------------
At approximately 1:00 a.m. the next day (the early morning of July
6th), the train began rolling and picking up speed down the descending
grade toward the town of Lac-M[eacute]gantic, Quebec, located 7.2 miles
away and approximately 30 miles from the United States-Canada border.
At about 1:15 a.m., near the center of town, the train derailed. The
locomotive consist, which separated from the train, did not derail and
traveled an additional \1/2\ mile before stopping.
The derailment caused a release of 6 million liters of petroleum
crude oil, resulting in a large fire with multiple explosions and 47
fatalities.\2\ There was also extensive damage to the town, and
approximately 2,000 people were evacuated from the surrounding area.
---------------------------------------------------------------------------
\2\ See id.; see also Statistical Summary Railway Occurrences
2013, TSB, pp. 2, 5, available at https://www.tsb.gc.ca/eng/stats/rail/2013/ssro-2013.pdf.
---------------------------------------------------------------------------
2. Response
In response to this accident, Transport Canada--the Canadian
government department responsible for regulating transportation safety
in Canada--issued an emergency railroad directive on July 23, 2013.\3\
While Transport Canada explained in the emergency directive that the
cause of the accident in Lac-M[eacute]gantic remained unknown, the
emergency directive stated that, ``in light of the catastrophic results
of the Lac-M[eacute]gantic accident and in the interest of ensuring the
continued safety and security of railway transportation, there is an
immediate need to clarify the regime respecting unattended locomotives
on main track and sidings and the transportation of dangerous goods in
tank cars using a one person crew to address any threat to the safety
and security of railway operations.'' As such, Transport Canada
exercised its statutory emergency directive authority to order railroad
companies in Canada to comply with certain requirements related to
unauthorized entry into locomotive cabs, directional controls on
locomotives, the application of hand brakes to cars left unattended for
more than one hour, setting of the automatic brake and independent
brake on any locomotive attached to cars that are left unattended for
one hour or less, attendance related to locomotives attached to loaded
tank cars transporting dangerous goods on main track, and the number of
crew members assigned to a locomotive attached to loaded tank cars
transporting dangerous goods on a main track or siding.
---------------------------------------------------------------------------
\3\ See Emergency Directive Pursuant to Section 33 of the
Railway Safety Act, Safety and Security of Locomotives in Canada,
July 23, 2013, available at https://news.gc.ca/web/article-en.do?nid=829609; see also Rail Safety Advisor Letter--09/13,
Securement of Equipment and Trains Left Unattended, Transport Canada
(July 18, 2013), available at https://www.tsb.gc.ca/eng/medias-media/sur-safe/letter/rail/2013/r13d0054/r13d0054-617-09-13.asp.
---------------------------------------------------------------------------
Also on July 23, 2013, Transport Canada issued an accompanying
order pursuant to paragraph 19(a)(1) of the Canadian Railway Safety Act
directing railroad companies in Canada to formulate or revise certain
railroad operating rules, respecting the safety and security of
unattended locomotives, uncontrolled movements, and crew size
requirements.\4\ The order provides that rules should be based on an
assessment of safety and security risks, and shall at a minimum ensure
that the cab(s) of unattended controlling locomotives are secure
against unauthorized entry; ensure that the reverse levers (commonly
referred to as a ``reversers'') of unattended locomotives are removed
and secured; prevent uncontrolled movements of railway equipment by
addressing the application of hand brakes; ensure the security of
stationary railway equipment transporting dangerous goods; and provide
for minimum operating crew requirements considering technology, length
of train, speeds, classification of dangerous goods being transported,
and other risk factors.
---------------------------------------------------------------------------
\4\ Railroads operating within Canada were at the time of the
Lac-M[eacute]gantic derailment, and are currently, required to
comply with the Canadian Rail Operating Rules that have been
approved by Transport Canada.
---------------------------------------------------------------------------
The Railway Association of Canada submitted proposed operating
rules to Transport Canada on November 20, 2013. Transport Canada
accepted the proposed rules submitted on December 26, 2013, making the
operating rules applicable to all railway companies operating in
Canada. See TC O 0-167. As a result, railroads operating in Canada are
now required to comply with Canadian Rail Operating Rules (CROR) CROR
112, as amended.
CROR 62 pertains to ``Unattended engines.'' The term ``unattended''
is now defined in the CROR as ``when an employee is not in close enough
proximity to take effective action.'' The new Canadian requirements,
applicable to each engine left unattended outside of an attended yard
or terminal, requires cab securement to prevent unauthorized entry and
removal of the reverser from the engine when it does not have a high
idle feature and not in sub-zero temperatures. See CROR 62 (TC O 0-
167). Transport Canada also approved expansive revisions to CROR 112,
which now provides minimum requirements, acceptable methods, and
factors to consider for securing equipment while switching en route or
left unattended. See CROR 112 (TC O 0-167).
In direct response to the Lac-M[eacute]gantic derailment, DOT began
taking actions consistent with Transport Canada to ensure the safe
transportation of products by rail in the United States, with a
particular focus on certain hazardous materials that present an
immediate danger for communities and the environment in the event of a
train accident. In Emergency Order 28, FRA sought to address the
immediate dangers that arise from unattended equipment that is left
unsecured on mainline tracks.
FRA has decided that Emergency Order 28 will sunset on the
effective date of this final rule. AAR and the American Short Line and
Regional Railroad Association (ASLRRA) concur in their comments. Until
such time, however, Emergency Order 28 will remain in effect, as
amended by FRA's August 27, 2013, letter approving with conditions a
joint petition for relief from the AAR and the ASLRRA. Railroads are
required to comply with Emergency Order 28, as amended, in addition to
49 CFR 232.103(n). As further discussed below, once Emergency Order 28
sunsets upon the effective date of this final rule, the requirements of
the Emergency Order that are not promulgated in this final rule will no
longer apply. Emergency Order 28, as amended, contains six securement-
related requirements governing when, where, and how certain hazardous
materials tank cars may be left unattended, including certain
communication requirements:
(1) A railroad must not leave equipment unattended on a mainline
outside of a yard or terminal when the equipment includes a minimum
number of loaded tank cars containing certain types of hazardous
materials, referred to as ``Appendix A Materials''--5 or more tank
cars containing materials poisonous by inhalation (PIH), including
anhydrous ammonia and ammonia solutions and/or 20 rail car loads of
flammable gases or liquids (e.g., crude oil and ethanol)--until the
railroad develops, adopts, and complies with a plan that identifies
specific locations and circumstances when such equipment may be left
unattended.\5\
---------------------------------------------------------------------------
\5\ AAR has voluntarily applied Emergency Order 28 to trains
that have a single PIH materials tank car.
---------------------------------------------------------------------------
(2) A railroad must develop a process for securing unattended
equipment containing Appendix A Materials that includes: (a) Locking
the controlling locomotive cab or
[[Page 47353]]
removing and securing the reverser and (b) communication of
pertinent securement information to the dispatcher for recordation.
(3) Each railroad must review and verify, and adjust, as
necessary, existing procedures and processes related to the number
of hand brakes to be set on all unattended trains and equipment.
(4) Each railroad must require a job briefing addressing
securement for any job that will impact or require the securement of
any equipment in the course in the course of the work being
performed.
(5) Each railroad must ensure that a qualified railroad employee
inspects all equipment that any emergency responder has been on,
under, or between for proper securement before the train or vehicle
is left unattended.
(6) Each railroad must provide notice to all employees affected
by Emergency Order 28.
See 78 FR 48224, Aug. 7, 2013. Following a request from AAR and ASLRRA,
FRA granted partial relief from Emergency Order 28's dispatcher
communication requirement in certain limited situations. FRA's relief
letter provides that a railroad employee may leave equipment unattended
on a mainline or siding without contacting the train dispatcher when
the employee is actively engaged in switching duties as long as the
employee ensures that there is an emergency application of the air
brakes, hand brakes are set in accordance with 49 CFR 232.103(n), and
the employee has demonstrated knowledge of FRA and railroad securement
requirements. See Letter from Robert C. Lauby, Acting Associate
Administrator for Railroad Safety/Chief Safety Officer, Federal
Railroad Administration, to Michael J. Rush, Associate General Counsel,
AAR, and Keith T. Borman, Vice President and General Counsel, ASLRRA,
(Aug. 27, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php.
Additionally, FRA and the Pipeline and Hazardous Materials Safety
Administration (PHMSA) jointly issued a Safety Advisory to railroads
and commodity shippers detailing eight recommended actions the industry
should take to better ensure the safe transport of hazardous materials.
See Federal Railroad Administration Safety Advisory 2013-06, Lac-
M[eacute]gantic Railroad Accident and DOT Safety Recommendations, 78 FR
48224, Aug. 7, 2013, available at https://www.fra.dot.gov/eLib/details/L04720. These recommendations include: Reviewing the details and
lessons learned from the Lac M[eacute]gantic accident; reviewing crew
staffing levels; removing and securing the train's ``reverser'' when
unattended; review of all railroad operating procedures, testing and
operating rules related to securing a train; reviewing Transport
Canada's directives to secure and safely operate a train; and
conducting a system-wide assessment of security risks when a train is
unattended and identify mitigation efforts for those risks.
Additionally, the Safety Advisory recommends testing and sampling of
crude oil for proper classification for shipment, as well as a review
of all shippers' safety and security plans. FRA also convened an
emergency meeting of FRA's RSAC to begin the deliberative process with
FRA's stakeholders, including railroad management, railroad labor,
shippers, car owners, and others, as the agency considers requirements
in Emergency Order 28 and recommendations in the Safety Advisory that
should be made a part of its regulations.\6\
---------------------------------------------------------------------------
\6\ The RSAC was given three tasks. In addition to developing
securement recommendations, it was also tasked with developing
recommendations addressing issues relating to train crew size and
hazardous materials such as identification and classification of
hazardous materials, operational controls, and handling of certain
hazardous materials shipments. The RSAC hazardous materials working
group was able to reach consensus on amending the definitions of
``residue'' and ``key train'' and clarifying the jurisdiction
concerning loading, unloading, and storage of hazardous materials
before and during transportation. These recommendations have been
provided to PHMSA, which has regulatory authority over hazardous
materials shipments.
---------------------------------------------------------------------------
On August 19, 2014, the TSB released its Railway Investigation
Report R13D0054, citing 18 causal and contributing factors, plus an
additional 16 findings as to risk, concerning the accident at Lac-
M[eacute]gantic. FRA believes that it is taking--or has already taken--
action concerning each of those factors. The TSB notably included in
its list of factors the MMA's weak safety culture and ineffective
oversight on train securement. The report also identified factors
relating directly to train securement such as insufficient hand brakes
and improper hand brake test applications. The requirements in this
final rule intend to enhance safety culture and oversight that
addresses train securement. For instance, as further discussed below,
FRA is mandating by regulation the implementation of operating rules
and practices requiring that securement be part of all relevant job
briefings. This final rule also requires verification with a qualified
person that equipment is adequately and effectively secured in
accordance with the regulations before being left unattended. These
requirements aim to increase the safety dialog between railroad
employees and to provide enhanced oversight within the organization. In
doing so, these communications should better ensure that crew members
apply the proper number of hand brakes, and more correctly apply hand
brake tests, on unattended equipment. Also notable was the report's
findings as to risk that states: ``If trains are left unattended in
easily accessible locations, with locomotive cab doors unlocked and the
reverser handle available in the cab, the risk of unauthorized access,
vandalism, and tampering with locomotive controls is increased.'' This
final rule directly addresses this concern with requirements relating
to the installation and use of locomotive exterior door locks and
reverser removal.
B. Safety Concerns Arising Out of the Lac-M[eacute]gantic Derailment
and Other Train Incidents Involving Flammable Liquids and Gases and
Poison Inhalation Hazard Materials
The vast majority of hazardous materials shipped by rail each year
arrive at their destinations safely and without incident. Indeed, in
calendar year 2013, there were only 18 accidents in which a hazardous
material was released (involving a total of 78 cars) out of
approximately 1.6 million shipments of hazardous material transported
in rail tank cars in the United States. However, the Lac-
M[eacute]gantic incident demonstrates the substantial potential for
danger that exists when an unattended train rolls away and derails
resulting in the sudden release of hazardous materials into the
environment. Although the Lac-M[eacute]gantic incident occurred in
Canada, the freight railroad operating environment in Canada is similar
to that in the United States, and a number of railroads operate in both
countries.\7\ Freight railroads in the United States also transport a
substantial amount and variety of hazardous materials, including PIH
materials, also known as materials toxic by inhalation (TIH), and
explosive materials. Moreover, an increasing proportion of the
hazardous materials transported by rail is classified as flammable.\8\
---------------------------------------------------------------------------
\7\ As an example, MMA formerly operated in both the United
States and Canada, with approximately 510 miles of track in Maine,
Vermont, and Quebec, and the tank cars transporting the crude oil
that derailed in Lac-M[eacute]gantic originated in the Williston
Basin of North Dakota. A discussion concerning the applicable
Canadian securement requirements can be found above in the section
titled ``2. Response,'' which addresses the actions taken by the
United States and Canada in direct response to the Lac-
M[eacute]gantic incident.
\8\ PHMSA prescribes a comprehensive regulatory safety system
that categorizes hazardous materials into nine hazard classes based
on the type of hazards presented by the materials. See 49 CFR parts
172 and 173. Under PHMSA's regulations, crude oil, in most forms,
meets the definition of a ``Class 3'' hazardous material, which
signifies that it is a flammable liquid. Ethanol, discussed below,
also is a Class 3 hazardous material. PIH materials, referenced
above, include ``Class 2 and Division 2.3'' gases and ``Class 6, and
Division 6.1'' poisons other than gases. Chlorine gas and anhydrous
ammonia are two examples of PIH materials (Division 2.3) that are
commonly transported by rail.
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[[Page 47354]]
The MMA train in the Lac-M[eacute]gantic incident was transporting
72 carloads of crude oil with five locomotives, a VB car, and a loaded
box car. A similar type of train consist is commonly found on rail
lines in the United States, because crude oil is often transported in
solid blocks or by a unit train consisting entirely of tank cars
containing crude oil. Crude oil is generally classified by an offeror
as a Class 3 flammable liquid; per PHMSA's Hazardous Materials
Regulations (HMR), however, its packing group can be I, II, or III
depending on the blend of constituent crude oils.\9\ According to the
AAR, crude oil traffic increased 68-fold in the United States between
2005 and 2013. Much of this growth has occurred because of developments
in North Dakota, as the Bakken formation in the Williston Basin has
become a major source for oil production in the United States. Texas
also has contributed to the growth of crude oil shipments by rail. As a
result, carloads of crude oil increased from approximately 81,452 in
2011 to approximately 485,384 in 2013. The Bakken crude oil from North
Dakota is primarily shipped via rail to refineries located near the
U.S. Gulf Coast--particularly in Texas and Louisiana--or to pipeline
connections, most notably to connections located in Oklahoma. Crude oil
is also shipped via rail to refineries on the East Coast and West
Coast, and to a lesser extent, refineries in other regions of the
U.S.\10\
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\9\ PHMSA uses packing groups to categorize hazardous materials
according to the danger presented. Hazardous materials in Packing
Group I present great danger; Packing Group II present medium
danger; and Packing Group III presents minor danger. See 49 CFR
171.8.
\10\ See AAR's May 2013 paper ``Moving Crude Oil by Rail'',
available online at: https://www.aar.org/safety/Documents/Assets/Transportation_of_Crude_Oil_by_Rail.pdf.
---------------------------------------------------------------------------
All indications from the U.S. Department of Energy's U.S. Energy
Information Administration (EIA) are that rail capacity for Bakken
crude oil from the Williston Basin will continue to expand to meet
production.\11\ Rail shipments from the North Dakota region are
forecast to increase over the next two years (as are pipeline
shipments). Much of the near-term growth in rail originations is a
function of how quickly rail car manufacturers can meet the demand by
producing new tank cars, primarily for transporting Bakken crude oil.
The rise in rail originations in crude oil is subject to changes in the
number of tank cars available, price of crude oil, overall production
of crude oil in that region; and if, or how quickly, additional
pipeline capacity from that region comes online. However, for the
foreseeable future, all indications are for continued growth of rail
originations of crude in that region as new tank car fleets come online
to meet demand.
---------------------------------------------------------------------------
\11\ See EIA reports ``Bakken crude oil price differential to
WTI narrows over last 14 months,'' available online at: https://www.eia.gov/todayinenergy/detail.cfm?id=10431; and ``Rail delivery
of U.S. oil and petroleum products continues to increase, but pace
slows,'' available online at: https://www.eia.gov/todayinenergy/detail.cfm?id=12031.
---------------------------------------------------------------------------
As demonstrated by the Lac-M[eacute]gantic derailment, in a high-
consequence incident, crude oil is problematic when released because it
is flammable. This risk is compounded because it is commonly shipped in
large unit trains. Subsequent to the Lac-M[eacute]gantic derailment,
the United States has seen at least three major rail-related incidents
involving crude oil unit trains that evidence the dangerous results
that can occur when crude oil is not transported safely. FRA recognizes
that none of these three derailments resulted from a roll-away
situation that would have been addressed by this rule.
On April 30, 2014, there was derailment near downtown Lynchburg,
Virginia, of an eastbound CSX Transportation, Inc. (CSX) unit train
consisting of 105 tank cars loaded with crude oil. Seventeen of the
train's cars derailed. One of the tank cars was breached, leading to a
crude oil fire. Emergency responders were forced to evacuate
approximately 400 individuals and 20 businesses from the immediate
area. Additionally, three of the derailed tank cars came to rest in the
adjacent James River, causing up to 30,000 gallons of crude oil to be
spilled into the river. The National Transportation Safety Board (NTSB)
and DOT both investigated this accident and determined that it was
caused by a sudden rail failure under the moving train.
On December 30, 2013, a westbound grain train derailed 13 cars near
Casselton, North Dakota, fouling main track 2.\12\ Simultaneously, an
eastbound crude oil unit train was operating on main track 2. The crude
oil unit train reduced its speed and collided with a derailed car that
was fouling, resulting in the derailment of the head-end locomotives
and the first 21 cars of the crude oil unit train. Eighteen of the 21
derailed tank cars ruptured, releasing an estimated 400,000 gallons of
crude. The ruptured tank cars ignited causing an explosion. There were
no reported injuries by either train crew, nor were there any injuries
to the public; however, about 1,400 people were evacuated. Damages from
the derailment are estimated at $6.1 million.\13\
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\12\ This derailment currently is being investigated by the
National Transportation Safety Board (NTSB), and information
regarding this incident can be found at the NTSB Web site. See
https://www.ntsb.gov/doclib/reports/2014/Casselton_ND_Preliminary.pdf.
\13\ See id.
---------------------------------------------------------------------------
Also, on November 8, 2013, a 90-car crude oil train derailed in a
rural area near Aliceville, Alabama. The crude oil shipment had
originated in North Dakota and was bound for Walnut Hill, Florida, to
be transported by a regional pipeline to a refinery in Saraland,
Alabama. More than 20 cars derailed and at least 11 cars ignited,
resulting in an explosion and fire. Although there were no reported
injuries, an undetermined amount of crude oil escaped from derailed
cars and fouled a wetlands area near the derailment site.
The dangers related to crude oil trains are not necessarily unique.
They also exist with other hazardous materials such as ethanol, which
is another flammable liquid that is commonly transported in large
quantities by rail. In 2012, more carloads of ethanol were transported
via rail than any other hazardous material. The railroads experienced
an increase in ethanol traffic of 442 percent between 2005 and 2010.
Although in 2013 the number of carloads dropped by 10 percent from 2010
levels, there were still approximately 297,000 carloads transported by
rail. Since 2009, there have been at least six major mainline
derailments resulting in the breach of tank cars containing ethanol.
While FRA recognizes that none of these six derailments resulted from a
roll-away situation, they are instructive on the destructive potential
of a derailment involving tank cars containing flammable products:
On August 5, 2012, in Plevna, Montana, a BNSF Railway Co.
train derailed 18 cars while en route from Baker, Montana. Seventeen of
the 18 cars were tank cars loaded with denatured alcohol, a form of
ethanol. Five of the cars caught on fire resulting in explosions, the
burning of surrounding property not within the railroad's right-of-way,
and the evacuation of the immediate area.
On July 11, 2012, in Columbus, Ohio, a Norfolk Southern
Railway Co. train derailed while operating on main track. Thirteen tank
cars containing ethanol derailed resulting in a fire and
[[Page 47355]]
the evacuation of 100 people within a one-mile radius of the
derailment.
On February 6, 2011, in Arcadia, Ohio, a Norfolk Southern
Railway Co. train operating on single main track derailed 33 tank cars
loaded with ethanol. The derailment caused a major fire and forced the
evacuation of a one-mile radius around the derailment.
On June 19, 2009, in Cherry Valley, Illinois, a Canadian
National Railway train derailed 19 tank cars loaded with ethanol.
Thirteen of the 19 derailed cars caught fire, and there were reports of
explosions. One person died, and there were 9 reported injuries related
to the fire. Additionally, approximately 600 residences were evacuated
within a \1/2\-mile radius of the derailment.
On October 7, 2011, at about 2:14 a.m. CDT, at milepost
121.8 on the No. 1 Subdivision near Tiskilwa, Illinois, an eastbound
Iowa Interstate Railroad (IAIS) freight train No. RI-BI-06--with two
locomotives and 131 cars--derailed its head 26 cars. The derailed cars
included ten cars of ethanol, several of which were breached and lost a
substantial amount of their product, resulting in a fire and an
evacuation of about 800 residents. The emergency responses began almost
immediately and were supported by surrounding local fire and police
departments to control and suppress the fire and execute the
evacuation. The fire suppression was sustained over two and half days.
There were no injuries or fatalities.
On February 4, 2015, in Dubuque, Iowa, a Canadian Pacific
Railway unit train--with 13 of its 80 tank cars containing denatured
alcohol--derailed, with at least one of the cars falling into the
Mississippi River. Three of the cars caught fire and there was a
release of an unknown quantity of denatured alcohol into the river.
Officials established a half-mile evacuation zone, but there were no
occupied structure in that area.
While these accidents were serious, their results had potential for
higher-consequence outcomes. The higher-consequence releases created
the potential for additional deaths, injuries, property damage, and
environmental damage.
There are other hazardous materials that have similar potential for
higher-consequence danger. For example, accidents involving trains
transporting other hazardous materials, including PIH materials such as
chlorine and anhydrous ammonia, can also result in serious consequences
as evidenced by the following accidents:
On January 6, 2005, in Graniteville, South Carolina, a
Norfolk Southern Railway Co. train collided with another Norfolk
Southern Railway Co. train that was parked on a customer side track,
derailing both locomotives and 16 cars of the moving train. The
accident was caused by a misaligned switch. Three tank cars containing
chlorine derailed, one of which was punctured. The resulting chlorine
exposure caused 9 deaths, approximately 554 people were taken to local
hospitals, and an additional 5,400 people within a one-mile radius of
the site were evacuated by law enforcement personnel. FRA's analysis of
the total cost of the accident was $126 million, including fatalities,
injuries, evacuation costs, property damage, environmental cleanup, and
track out of service.
On June 28, 2004, near Macdona, Texas, a Union Pacific
Railroad Co. train passed a stop signal and collided with a BNSF
Railway Co. train. A chlorine car was punctured, and the chlorine gas
that was released killed three and injured 32.
On January 18, 2002, a Canadian Pacific Railway train
containing 15 tank cars of anhydrous ammonia derailed half a mile from
the city limits of Minot, North Dakota due to a breaking of the rail at
a joint. Five of these tank cars ruptured, which resulted in an ammonia
vapor that spread 5 miles downwind over an area where 11,600 people
lived. The accident caused one death, 11 serious injuries, and 322
minor injuries. Environmental cleanup costs reported to the NTSB were
$8 million.
On July 18, 2001, 11 of 60 cars in a CSX Transportation,
Inc. freight train derailed while passing through the Howard Street
Tunnel in downtown Baltimore, Maryland. The train included 8 tank cars
loaded with hazardous material; 4 of these were among the cars that
derailed. A leak in a tank car containing tripropylene resulted in a
chemical fire. A break in a water main above the tunnel flooded both
the tunnel and the streets above it with millions of gallons of water.
FRA recognizes that these four incidents did not result from a
roll-away situation. However, they illustrate the destructive potential
of PIH materials' derailments.
While train accidents involving hazardous materials are caused by
variety of factors, nearly one-half of all accidents are related to
railroad human factors or equipment defects. FRA's data shows that
since 2009, human factors have been the most common cause of reportable
train accidents. Based on FRA's accident reporting data for the period
from 2010 through May 2014, approximately 34 percent of reported train
accidents/incidents, as defined by 49 CFR 225.5, were human factor-
caused.\14\ With regard to the securement of unattended equipment,
specifically, FRA accident/incident data indicates that approximately
8.7 percent of reported human factor-caused train accidents/incidents
from calendar year 2010 until May 2014 were the result of improper
securement, which means that improper securement is the cause of
approximately 2.9 percent of all reported accidents/incidents.\15\ The
types of securement errors that typically lead to accidents/incidents
include failing to apply any hand brakes at all, failing to apply a
sufficient number of hand brakes, and failing to correctly apply hand
brakes. Emergency Order 28 and this final rule intends to address some
of the human factors failures that may cause unattended equipment to be
improperly secured to protect against a derailment situation similar to
that which occurred in Lac-M[eacute]gantic.
---------------------------------------------------------------------------
\14\ FRA estimates that there were a total of approximately 8976
accidents/incidents reported during that time period. Approximately
3030 of those accidents/incidents were caused by human factors, and
906 involved equipment that was placarded as containing hazardous
materials.
\15\ There were a total of approximately 264 reported accidents/
incidents that were caused by securement errors. Of those 264
accidents/incidents, approximately 98 involved equipment that was
placarded as containing hazardous materials.
---------------------------------------------------------------------------
C. Current Securement Regulations and Related Guidance
As previously noted, FRA has existing regulations--issued years
before the accident at Lac-M[eacute]gantic and promulgation of
Emergency Order 28--designed to ensure that trains and vehicles are
properly secured before being left unattended. See 49 CFR 232.103(n).
In FRA's view, if existing regulations are followed, the risk of
movement of unattended equipment is substantially reduced. Despite the
demonstrated effectiveness of FRA's current securement regulations, FRA
has determined that the increased shipments of hazardous materials such
as crude oil and ethanol, combined with the potential for higher-
consequences from any accident that might occur due to improper
securement, particularly on mainline track and mainline sidings outside
of a yard, proper securement has become a serious and immediate safety
concern. Therefore, FRA established additional securement measures in
Emergency Order 28 to ensure the continued protection of the health and
safety of railroad employees, the general public, and the environment.
In this final rule, FRA establishes permanent rules to strengthen the
current regulations and ensure public safety by adopting the necessary
and effective
[[Page 47356]]
securement measures FRA included in Emergency Order 28 as part of its
immediate response to the Lac-M[eacute]gantic derailment.
The current regulations define ``unattended equipment'' as
``equipment left standing and unmanned in such a manner that the brake
system of the equipment cannot be readily controlled by a qualified
person.'' Id. Section 232.103(n) generally addresses the securement of
unattended equipment by stating that a train's air brakes must not be
depended on to hold equipment standing unattended on a grade. More
specifically, Sec. 232.103(n) also requires that the railroad apply a
sufficient number of hand brakes to hold the equipment with the air
brakes released and that the brake pipe pressure be reduced to zero
with the angle cock opened on one end of a cut of cars when not
connected to a locomotive or other compressed air source. The existing
regulations also require railroads to develop a process or procedure
for verifying that the hand brakes applied are sufficient to hold the
equipment with the air brakes released. When dealing with locomotives
and locomotive consists, Sec. 232.103(n)(3) establishes specific
additional requirements:
All hand brakes must be fully applied on all locomotives
in the lead consist of an unattended train.
All hand brakes must be fully applied on all locomotives
in an unattended locomotive consist outside of yard limits.
The minimum requirement for an unattended locomotive
consist within yard limits is that the hand brake must be fully applied
on the controlling locomotive.
Railroads must develop, adopt, and comply with procedures
for securing any unattended locomotive that is not equipped with an
operative hand brake.
Additionally, FRA continues to require each railroad to adopt and
comply with instructions addressing each unattended locomotive's
position of the throttle, generator field switch, isolation switch, and
automatic brake valve and the status of its reverser and independent
brakes. See 49 CFR 232.103(n)(4).
FRA has also issued guidance documents interpreting these
regulations. For instance, on March 24, 2010, FRA issued Technical
Bulletin MP&E 2010-01, Enforcement Guidance Regarding Securement of
Equipment with Title 49 Code of Federal Regulations Section 232.103(n)
(TB 10-01), available at https://www.fra.dot.gov/eLib/details/L02394.
While FRA continues to believe that the securement requirements of
Sec. 232.103 are not met where there is a complete failure to apply
even a single hand brake on unattended equipment, FRA also recognizes
that there are times when it is necessary to have unsecured equipment,
such as during switching activities when assembling and disassembling
trains within classification yards. Therefore, TB 10-01 has provided
guidance regarding alternative forms of securement in such instances.
For example, TB 10-01 notes that FRA will allow a train crew cutting
away from a cut of cars to initiate an emergency brake application on
the cut of cars, and then close the angle cock, if the crew is taking a
locomotive consist directly to the opposite end of the cut of cars to
in order to couple the locomotive consist to the cars or to open the
angle cock at the other end and leave the angle cock open and vented to
the atmosphere, as required under 49 CFR 232.103(n)(2). Additionally,
TB 10-01 makes clear that FRA will allow the use of skates and
retarders in hump classification yards, classification yards with bowl
tracks, or flat switching yards if the retarders and skates are used
within their design criteria and as intended. In the NPRM to this
proceeding, FRA considered codifying TB 10-01 by amending the rule at
the final rule stage of this proceeding. The final rule makes the
amendment considered and codifies the existing guidance contained in TB
10-01. This particular amendment does not include any additional
requirements from the original guidance issued in the technical
bulletin and is further explained below.
Also notable is that in 2013 and 2014, FRA and PHMSA undertook
nearly two dozen actions to enhance the safe transport of crude oil.
This comprehensive approach included near- and long-term steps such as
the following: launching ``Operation Classification'' in the Bakken
region to verify that crude oil is properly classified; issuing safety
advisories, alerts, emergency orders and regulatory updates; conducting
special inspections; aggressively moving forward with a rulemaking to
enhance tank car standards; and reaching agreement with railroad
companies on a series of immediate voluntary actions including reducing
speeds, increasing inspections, using new brake technology and
investing in first responder training. Most of those actions have been
well outside the scope of securement. However, FRA references these
actions here to help place this rulemaking in the broader context of
DOT's wide-ranging response to the safety issues created by these
trains. For a summary of these actions, see Federal Railroad
Administration's Action Plan for Hazardous Materials Safety, Federal
Railroad Administration (May 20, 2014) available at https://www.fra.dot.gov/eLib/details/L04721.
Additionally, in August 2014, PHMSA, in coordination with FRA,
published an NPRM proposing enhanced tank car standards and operational
controls for high-hazard flammable trains, which is defined as a single
train carrying 20 or more tank cars of a Class 3 flammable liquid in a
continuous block or a single train carrying 35 or more tank cars of a
Class 3 flammable liquid throughout the train consist. See ``Hazardous
Materials: Enhanced Tank Car Standards and Operational Controls for
High-Hazard Flammable Trains,'' 79 FR 45015, Aug. 1, 2014. PHMSA
recently issued that final rule including operational controls
considered in the PHMSA NPRM such as speed restrictions and enhanced
braking systems for HHFTs. See 80 FR 26643, May 8, 2015. FRA expects
that the operational controls contemplated in that PHMSA final rule
will work in concert with the securement requirements that FRA is
implementing in this final rule.
D. Emergency Order 28 and Related Guidance
On August 2, 2013, FRA issued Emergency Order 28 establishing
additional requirements on the treatment of securement of unattended
equipment. On the same date, FRA issued a related Safety Advisory and
announced an emergency RSAC meeting. See Federal Railroad
Administration Safety Advisory 2013-06, Lac-M[eacute]gantic Railroad
Accident and DOT Safety Recommendations, 78 FR 48224, Aug. 7, 2013,
available at https://www.fra.dot.gov/eLib/details/L04720. FRA also
subsequently issued guidance related to Emergency Order 28 and granted
partial relief from Emergency Order 28 to the AAR and ASLRRA. See
Guidance on Emergency Order 28 (Aug. 21, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php; Letter from Robert C. Lauby,
Acting Associate Administrator for Railroad Safety/Chief Safety
Officer, FRA, to Michael J. Rush, Associate General Counsel, AAR, and
Keith T. Borman, Vice President and General Counsel, American Short
Line and Regional Railroad Association, (Aug. 27, 2013), available at
https://rsac.fra.dot.gov/meetings/20130829.php.
[[Page 47357]]
E. RSAC Overview
In March 1996, FRA established the RSAC, which provides 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 RSAC members follows:
American Association of Private Railroad Car Owners
(AARPCO);
American Association of State Highway & Transportation
Officials (AASHTO);
American Chemistry Council (ACC);
American Petroleum Institute (API);
American Public Transportation Association (APTA);
ASLRRA;
American Train Dispatchers Association (ATDA);
AAR;
Association of State Rail Safety Managers (ASRSM);
Association of Tourist Railroads and Railway Museums
(ATRRM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division
(BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA);*
Fertilizer Institute;
Institute of Makers of Explosives;
International Association of Machinists and Aerospace
Workers (IAM);
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA);*
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
(NRC);
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB);*
Railway Passenger Car Alliance (RPCA)
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte;*
SMART Transportation Division (SMART TD);
Transport Canada;*
Transport Workers Union of America (TWU);
Transportation Communications International Union/
Brotherhood of Railway
Carmen (TCIU/BRC);
Transportation Security Administration (TSA).
* 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
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. The working group may establish one or more
task forces or other subgroups to develop facts and options on a
particular aspect of a given task. The task force, or other subgroup,
reports to the working group. If a working group comes to consensus on
recommendations for action, the package is presented to 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 play an active
role at the working group level in discussing the issues and options
and in drafting the language of the consensus proposal, and because the
RSAC recommendation constitutes the consensus of some of the industry's
leading experts on a given subject, 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 goals, is soundly supported, and is in accordance with
applicable 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. If the working
group or RSAC is unable to reach consensus on recommendations for
action, FRA resolves the issue(s) through traditional rulemaking
proceedings or other action.
The RSAC convened an emergency session on August 29, 2013, in
response to the accident at Lac-M[eacute]gantic, to brief members on
the preliminary findings of the accident, to discuss the safety issues
related to the accident, and to discuss Emergency Order 28. At that
meeting, the RSAC accepted Task No. 13-03 to refer to the Securement
Working Group (SWG) the responsibility of ensuring that ``appropriate
processes and procedures are in place to ensure that any unattended
trains and vehicles on mainline track or mainline sidings outside of a
yard or terminal are properly secured against unintended movement, and
as appropriate, such securement is properly confirmed and verified.''
In doing so, the SWG was tasked with reviewing: The standards for the
securement of unattended equipment under 49 CFR 232.103(n) and its
concomitant regulatory guidance published in TB 10-01; the requirements
of Emergency Order 28; and the recommendations contained in Federal
Railroad Administration Safety Advisory 2013-06--Lac-M[eacute]gantic
Railroad Accident Discussion and DOT Safety Recommendations. The SWG
was also tasked with identifying any other issues relevant to FRA's
regulatory treatment of securement of equipment to prevent unintended
movement. While the RSAC also tasked the SWG with reviewing operational
testing, the SWG concluded that no changes were necessary to the
regulations relating to operational testing. FRA notes that, in its
comments, NTSB suggested that more emphasis should be made on
observations by railroad supervisors, as part of operational testing
programs, to ensure unattended equipment is properly secured. While FRA
does not contest this suggestion, it is outside the scope of this
rulemaking, since FRA declined to consider operational testing.
In addition to FRA, the following organizations contributed members
to the SWG:
AAR, including members from BNSF Railway Company (BNSF),
Canadian National Railway (CN), Canadian Pacific Railway (CP), CSX
Transportation, Inc. (CSX), Genesee & Wyoming Inc. (GNWR), Kansas City
Southern Railway (KCS), Long Island Rail Road (LIRR), Metro-North
Railroad (MNCW), Northeast Illinois Regional Commuter Railroad
Corporation (METRA), Norfolk Southern Railway Company (NS), Railway
Association of Canada, and Union Pacific Railroad Company (UP);
Amtrak;
API;
APTA, including members Keolis North America,
Massachusetts Bay Commuter Railroad Company, LLC (MBCR); and North
County Transit District (NCTD);
ASLRRA, including members from Anacostia Rail Holdings,
Central California Traction Company (CCT), OmniTRAX, Rio Grande Pacific
[[Page 47358]]
Corporation, and WATCO Companies, Inc. (WATCO);
ASRSM, including members from California Public Utilities
Commission (CPUC);
ATDA;
BLET;
BMWED;
BRS;
IAM;
NRC, including members from Herzog Transit Services
(Herzog);
NTSB;
PHMSA;
RSI;
SMART TD;
TCIU/BRC;
Transport Canada; and
TWU.
The SWG convened subsequently on October 30, 2013, December 17,
2013, January 28, 2014, and March 4, 2014, in Washington, DC to respond
to these tasks and voted to approve the recommendation on March 4,
2014. The SWG presented its recommendation to the full RSAC, which
voted by electronic ballot between March 25 and March 31, 2015, to
accept the recommendations. On April 2, 2014, the RSAC announced that
by majority vote the recommendations had been approved and would become
its recommendation to the Administrator.
The recommendation of the RSAC included amendments to 49 CFR
232.103(n) that would do the following: (1) Provide additional
requirements for the securement of unattended equipment carrying
certain hazardous materials; (2) mandate the implementation of
operating rules and practices requiring that securement be part of all
relevant job briefings; and (3) require adoption and compliance with
procedures to secure equipment subsequent to an emergency response. The
RSAC recommendation also included amendments to 49 CFR 232.105 that
would require equipping locomotives with exterior locking mechanisms.
F. NPRM and Comments
On September 9, 2014, FRA issued the NPRM in this proceeding. See
79 FR 53356, Sept 9, 2014. Subsequent to the issuance of the NPRM, FRA
received comments from: Amsted Rail Company, Inc. (Amsted), BLET, CPUC,
NTSB, the North America Freight Car Association (NAFCA), Riverkeeper,
Inc. (Riverkeeper), and the State of New York Department of
Transportation (NYSDOT). AAR and ASLRRA also filed a joint comment on
behalf of their member railroads. These comments are addressed in
detail in the section-by-section analysis contained below.
III. Rescinding Emergency Order 28
This final rule codifies the requirements of Emergency Order 28
that FRA believes are necessary to ensure the safe securement of the
types of trains and equipment identified in the Emergency Order. Once
this final rule becomes effective, FRA believes that the unsafe
condition or practices identified in the Emergency Order will be
addressed by the provisions of this final rule. Accordingly, Emergency
Order 28 is rescinded on the effective date of this final rule.
IV. Section-by-Section Analysis
Unless otherwise noted, all ``part'' and ``section'' references
below refer to provisions either in title 49 of the CFR or proposed to
be in title 49 of the CFR.
Before entering into specific analysis of each section, it is
important to make clear that this final rule, which like Emergency
Order 28 provides more restrictive securement requirements for specific
types of equipment than the existing regulations, does not affect FRA's
policy concerning the Federal hours of service requirements. FRA
continues to believe that a railroad may not require or allow a train
employee with an accumulated time on duty of 12 hours or more to remain
on a train for the sole purpose of meeting the securement requirements,
including those proposed here. A train employee may, however, remain on
an unsecured train, if that employee is legitimately waiting for
deadhead transportation from duty to a point of final release, performs
no covered or commingled service,\16\ and is free to leave the
equipment when deadhead transportation arrives. In this case, time
spent waiting for and in deadhead transportation is treated as neither
time on duty nor time off duty.
---------------------------------------------------------------------------
\16\ A person is considered by the hours of service laws to be
neither on duty nor off duty during periods they are either waiting
for or in deadhead transportation to their point of final release
(i.e., have completed their time on duty and are waiting for or in
transportation to end their duty tour). In order to be considered
``waiting for'' deadhead transportation, the person must not be
required to perform other duties. Merely being on a train is not
inherently performing a duty; being on or with the train is a
necessary element of waiting for transportation from the train. This
is true even when the railroad receives the benefit of having the
train attended while employees aboard wait for transportation. Such
time is considered ``limbo time'' and is not contingent upon the
train's securement status. See BLET v. Atchison Topeka and Santa Fe
Railway, 516 U.S. 152 (1996) (holding that the time waiting for
deadhead transportation under the hours of service laws must be
counted as ``limbo time''). However, should the employee be required
to perform some activity to prevent the movement of the equipment or
to secure the train prior to departing with deadhead transportation,
then the time spent performing the activity and any intervening time
spent waiting would be considered covered and commingled service
respectively. See 49 CFR part 228, app. A. Thus, whether a train is
secured or unsecured when an employee is waiting for deadhead
transportation, that waiting time will count as limbo time, so long
as no covered activities are performed.
---------------------------------------------------------------------------
In its comment, BLET expressed concern about FRA's discussion in
the NPRM of the hours of service implications of the proposed rule.
BLET particularly objected to the reference in the directly preceding
footnote regarding employees ``remaining sufficiently alert to respond
to unattended movement,'' which it viewed as potentially establishing a
new requirement. To reduce confusion, and as there was no intention to
establish a new requirement, FRA has eliminated that language in this
preamble to the final rule. FRA's intention was merely to provide an
example of the application of the hours of service laws in the NPRM for
the benefit and convenience of the reader. This final rule does not in
any way change the application of the hours of service laws to the time
that employees may spend waiting for deadhead transportation aboard an
unsecured train.
FRA also notes that this final rule does not include the portion of
Emergency Order 28 that requires railroads to review, verify, and
adjust, as necessary, existing requirements and instructions related to
the number of hand brakes to be set on unattended trains and vehicles,
and to review and adjust, as necessary, the procedures for verifying
that the number of hand brakes is sufficient to hold the train or
vehicle with the air brakes released. As stated in the NPRM, it was
FRA's concern that existing railroad processes and procedures related
to setting and verifying hand brakes on unattended trains and equipment
were not sufficient to hold all trains and vehicles in all
circumstances. FRA believes that the railroads have fulfilled this
requirement and thus there is no need to include it in this final rule.
NAFCA has expressed concern with the elimination of the requirement
in Emergency Order 28 that the railroads review, verify, and adjust
their existing requirements and instructions related to the number of
hand brakes to be set on unattended trains and vehicles and to ensure
that such a number is sufficient to hold the train or vehicle with the
air brakes released. While NAFCA recognizes that FRA believes that the
railroads have already fulfilled this requirement, it contends that FRA
is eliminating a salutary safety measure that is not unduly burdensome
to the railroad. NAFCA recommends that the requirement remain in place
while FRA and the industry gain more experience
[[Page 47359]]
with the Class 3 flammable liquid transportation issues and consider
removing the requirement at a later time.
NYSDOT concedes that periodic review, verification and adjustment
of those processes and procedures are an inherent obligation of the
railroads, citing the existing and continuing requirement under Sec.
232.103(n)(1) that ``[r]ailroads shall develop and implement a process
or procedure to verify that the applied hand brakes will sufficiently
hold the equipment with the air brakes released.'' Given FRA's
expressed confidence that the railroads have fulfilled the requirement
in Emergency Order 28 to review, verify, and adjust, as necessary,
those requirements, NYSDOT agrees that it is unnecessary to include it
in this final rule.
FRA declines to postpone elimination of this specific requirement,
which was designed as a one-time requirement to emphasize the need
following the Lac-M[eacute]gantic derailment for each railroad to
review their securement policy and procedures to ensure that it had
sufficient measures in place. It is unclear to FRA the benefits of
maintaining a requirement that has already been fulfilled and NAFCA
does not explain what benefits could be gained with additional
experience beyond the years in which the securement regulations have
already been in place. Moreover, FRA's existing regulations already
require railroads to have procedures in place and comply with those
procedures to ensure that unattended equipment is properly secured.
Thus, retention of a duplicate provision would not be in the interest
of regulatory economy.
Amendments to 49 CFR Part 232
Section 232.5 Definitions
In this final rule, FRA is including a new defined term,
``mechanical securement device''. ``Mechanical securement device''
means a device, other than the air brake, that provides at least the
equivalent securement that a sufficient number of hand brakes would
provide in the same situation. In TB 10-01, further analyzed below, FRA
contemplated the proper use of skates, retarders, or inert retarders to
secure equipment in certain circumstance and within classification
yards. FRA recognizes, however, that other current and future
securement technologies could perhaps be utilized for the same purpose.
By using the more generalized, performance-based term, mechanical
securement device, FRA intends to provide additional flexibility, and
to ``future proof'' the regulation, to allow the use of other
sufficient securement technologies in the same circumstances and
locations. By definition, FRA understands mechanical securement devices
to include current examples such as skates, retarders, and inert
retarders; which are also further discussed below.
In the 2001 rule, the definition of ``unattended equipment'' was
included in Sec. 232.103(n). As further discussed below, this final
rule includes a new paragraph (h) for Sec. 232.105, which also makes
use of the definition for ``unattended equipment.'' Since the term
would be used in multiple sections, this final rule moves the
definition to the more broadly applicable definitions in Sec. 232.5.
Doing so allows FRA to rephrase paragraph (n) for clarity purposes, as
discussed further below. Placement of the definition in Sec. 232.5
does not change its meaning and is solely for applicability and clarity
purposes. FRA received no comments on this organizational change and is
amending Sec. 232.5 accordingly.
FRA is also changing the term ``yard limits'' to ``yard'' without
any change to its definition, with concurrent changes from ``yard
limits'' to ``yard'' in Sec. 232.103(n). FRA is also including the
term ``yard'' in its new Sec. 232.105(h). As currently defined in part
232, a yard limit is ``a system of tracks, not including main tracks
and sidings, used for classifying cars, making-up and inspecting
trains, or storing cars and equipment.'' But in part 218, yard limits
are described as a railroad-designated operating territory that is
established by yard limit signs; and timetable, train orders, or
special instructions. See 49 CFR 218.35(a). Making this change
minimizes the risk of ambiguity and confusion by clarifying that
specific securement practices are connected to the physical presence of
a yard, and not to an operating practices description of yard limits,
which could potentially encompass an entire railway system.
NTSB concurred with this change removing the word ``limits'' from
the term ``Yard limits.'' According to NTSB, this distinction will
appropriately define the intent of the rule to include only those main
tracks that are connected to the physical presence of a yard and will
avoid the operating practices description of yard limits that could
potentially encompass an entire railway system. FRA received no
negative comments on this clarifying change and is amending Sec. 232.5
accordingly.
Section 232.103 General Requirements for all Train Brake Systems
As previously noted, FRA is moving the definition of ``unattended
equipment'' to Sec. 232.5, creating an opportunity to rephrase and
clarify the introductory language of paragraph (n). Part of this
rephrasing includes moving the opening sentence of paragraph (n)--``A
train's air brake shall not be depended upon to hold equipment standing
unattended on a grade (including a locomotive, a car, or a train
whether or not locomotive is attached)''--to paragraph (n)(2). The
remaining introductory language of paragraph (n) would become more
succinct and clear.
While it is not an RSAC recommendation, FRA is also amending
paragraph (n)(1) to make more clear its existing expectation that in
most circumstances at least one hand brake must be applied to hold
unattended equipment. Although this has been stated in earlier
rulemakings and guidance documents (see, e.g., TB 10-01), there has
been some confusion about whether the use of wheel chocks, skates, or
other securement devices is sufficient to hold unattended equipment.
FRA's longstanding interpretation is that at least one hand brake is
required to hold unattended equipment except in certain limited
situations. For instance, in a hump classification yard, an alternative
form of securement, such as skates and retarders, may be allowed
provided they are used within their design criteria and as intended.
FRA believes adding explicit language to the regulatory text is
warranted in order to formally address the requirement to set at least
one hand brake in most instances. Further changes to the rule to
incorporate TB 10-01 are discussed further below.
NAFCA encourages FRA to harmonize its changes to Sec. 232.103 in
the final rule with the Emergency Directive Pursuant to Section 33 of
the Railway Safety Act--Securement of Railway Equipment--issued by
Transport Canada on October 29, 2014. In this Emergency Directive, the
Canadian government replaced the ``sufficient number of hand brakes''
requirement with a requirement that trains have a specific number of
hand brakes, determined by the weight of the train and the slope of the
track. NAFCA favors the increased specificity of the Canadian approach
and urges FRA to develop harmonized rules with Canada that are
prescriptive, based on sound engineering, and incorporate factors such
as train consist/weight, terrain,
[[Page 47360]]
environmental, and other considerations. According to NAFCA, it is
critically important that the two countries' respective efforts be
harmonized, given the closely integrated nature of the North American
railroad system. NAFCA asserts that anything less than full
harmonization of the two regulatory regimes will significantly disrupt
the current flow of rail cars, particularly the tank cars that are the
primary topic of the regulatory efforts, between Canada and the United
States.
NYSDOT agrees with FRA's clarification that at least one hand brake
must be applied except in limited circumstances, such as when skates or
retarders are applied in a classification yard. However, similar to
NAFCA, NYSDOT states that a more uniform approach to ensuring that
unattended trains are left with a sufficient number of hand brakes
could be accomplished by codifying in regulation the appropriate number
of hand brakes required given the weight, number of cars, and track
gradient. According to NYSDOT, this would ensure uniformity amongst all
railroads, and would allow inspectors the ability to verify that
unattended trains are left with the required amount of hand brakes
applied.
When FRA initially drafted the securement rule, it purposefully
developed a performance-based requirement in order to permit a railroad
to develop appropriate operating rules to verify the sufficiency of the
hand brakes applied which can be tailored to the specific territory and
equipment operated by the railroad. See 66 FR 4104, 4157, Jan. 17,
2001. When drafting the rule, FRA did not limit such operating rules to
a matrix format and stated that the number of hand brakes required to
be applied depends on a wide variety of factors not easily captured in
a matrix format and that a matrix approach might result in either too
few or too many hand brakes being applied. While the commenters listed
a few variables--such as the weight, number of cars, and track
gradient--FRA does not believe that such a list is definitely
exhaustive. FRA also does not presume to know all location and
equipment configurations; a regulatory matrix may result in
inadvertently ignoring certain other variables to which the railroads
may be more intimately aware and cognizant. Moreover, FRA has not found
the existing performance requirement to be insufficient; its concern
relates primarily to its application, compliance, and enforcement. For
the same reasons, in this instance and at this time, FRA does not
support developing a technical-based regulation to apply a uniform
regulatory procedure. FRA recognizes that Canada is a strong partner in
maintaining cross-border railroad safety and FRA continues to believe
that harmonization between Canadian and United States rail safety
regulations is beneficial, particularly when differences in regulations
create barriers to cross-border transportation, and should be maximized
to the extent possible. Therefore, FRA traditionally seeks out and
incorporates the views of Canada in developing its safety regulations.
FRA, for instance, has actively engaged Canada as a member of RSAC.
However, there is no requirement that FRA harmonize each of its
requirements with those in Canada and, in light of the aforementioned
reasons, FRA believes in this instance that a uniform technical
standard is not ideal and that its performance-based securement
measures better and more appropriately capture the variables presented
by the different rail systems throughout the United States. Further,
FRA does not see the absence of harmonization as potentially
establishing barriers to cross-border train movements; first, because
the operational issue of securement can easily be handled differently
on either side of the border, and, second, because in many instances
there will not be an actual difference in the number of hand brakes
applied to secure similarly situated unattended equipment.
In its comments, BLET indicated that another component of rail
securement is derail protection. While BLET acknowledges that this was
not discussed in detail in the RSAC SWG, derail protection would reduce
the risk of a more serious accident by preventing inadvertently rolling
equipment from moving further and gaining speed and momentum. This
particular means of securement was not discussed in the NPRM, and FRA
is not convinced that this is the safest securement practice.
Nevertheless, FRA will continue to monitor the safety efficacy of
derail protection as it is applied by regulation in Canada.
As previously mentioned, paragraph (n)(2) now includes language
originally placed in the introduction of paragraph (n), which prohibits
a train's air brake from being ``depended upon to hold equipment
standing unattended on a grade (including a locomotive, a car, or a
train whether or not locomotive is attached).'' (Emphasis added.) This
final rule also removes the phrase ``on a grade,'' as such a
requirement is arguably superfluous and confusing. In its comments,
Amsted indicated its support for this change. Perfectly level track is
rare, and there is still a risk of unattended movement caused by
numerous factors, such as a mistake in the location or length of the
level track, the effect of extreme weather, or an impact from other
equipment. Moreover, the phrase ``on a grade'' has led some to the
erroneous conclusion that hand brakes must only be applied if the
equipment is left on a grade. While grade is likely a factor in
determining the number of hand brakes that would sufficiently hold
unattended equipment, it is not a factor in determining whether hand
brakes should be applied at all. Accordingly, this final rule makes
clearer that the hand brake application requirement is not contingent
upon the existence of a grade.
Proposed paragraphs (n)(6) through (n)(8) address the
aforementioned heightened concerns relating to the securement of
unattended equipment carrying certain hazardous materials. Paragraph
(n)(6) defines the type of equipment covered by these requirements and
is intended to ensure that proposed paragraphs (n)(7) and (n)(8) apply
only to equipment that includes loads. Specifically, paragraph (n)(6)
provides that the substantive requirements of paragraphs (n)(7) and
(n)(8) apply to:
(1) Any loaded tank car containing PIH material, including
anhydrous ammonia and ammonia solutions; or
(2) twenty (20) or more loaded tank cars or loaded intermodal
portable tanks of any one or any combination of PIH materials
(including anhydrous ammonia and ammonia solutions), or any flammable
gas, flammable or combustible liquid, explosives, or a hazardous
substance listed at Sec. 173.31(f)(2) of this title.
FRA notes that this language is broader than the language used in
PHMSA's NPRM on Enhanced Tank Car Standards and Operational Controls
for High-Hazard Flammable Trains (HHFTs). See 79 FR 45016, Aug. 1,
2014. In that rule, PHMSA proposed certain new requirements for HHFTs,
which it defines as ``a train comprised of 20 or more carloads of a
Class 3 flammable liquid and ensures that the rail requirements are
more closely aligned with the risks posed by the operation of these
trains.'' 79 FR at 45017. Paragraph (n)(6) includes new securement
requirements that cover a single PIH tank car. Moreover, where the
proposed PHMSA rule would only cover trains with 20 or more carloads of
flammable liquids, paragraph (n)(6) covers situations where there are
20 or more loaded tank cars or loaded intermodal portable tanks of PIH
materials,
[[Page 47361]]
flammable gases, flammable or combustible liquids, explosives, other
hazard substances listed at Sec. 173.31(f)(2), or any combination
thereof.
FRA sought comment on this proposal and on whether a defined term
should be used for equipment covered under paragraph (n)(6).
From the standpoint of public safety, NYSDOT supports FRA's
broadening the language of this rule to include the securement of
unattended equipment transporting hazardous materials beyond those
defined as HHFTs in PHMSA's earlier NPRM. NYSDOT also suggests using a
``defined term'' for the equipment covered under paragraph (n)(6),
which it says would provide a simple way to differentiate it from those
defined elsewhere in regulation (e.g. HHFTs).
AAR and ASLRRA expressed concern that this requirement in Emergency
Order 28 applied to a ``loaded tank car,'' but that the proposed rule
applies to a ``loaded freight car.'' AAR and ASLRRA assert that this
change could potentially and inadvertently affect a much larger number
of rail cars, including those intermodal shipments of miscellaneous
items such as cleaning supplies and swimming pool chemicals.
Accordingly, AAR and ASLRRA recommend that the final rule retain the
original language from Emergency Order 28.
FRA recognizes the merit in AAR's and ASLRRA's comment and is
reverting to the language that was originally proposed at the RSAC
level. As for using a defined term to capture the types of equipment
delineated in paragraph (n)(6), FRA declines. FRA recognizes and
appreciates the benefits of using a more elegantly defined term.
However, no such term was offered and FRA is unaware of any appropriate
term to use at this time.
The regulatory text exempts residue cars from consideration.
Residue cars are defined by PHMSA under the HMR. See 49 CFR 171.8. FRA
will continue to rely on the HMR for this definition, even if amended.
FRA does not believe the train placement requirements in that PHMSA
rulemaking will affect the securement regulations we are adopting in
the instant proceeding. Nevertheless, the labor representatives have
expressed concerns that such inconsistent use may foster confusion or
be ``pitted against one another.'' FRA sought further comment
explaining how such confusion or conflict may manifest itself.
NYSDOT believes that exempting residue cars from the requirements
of this rule would appear contradictory to the language contained
throughout the HMR, which have been written from a perspective that a
packaging containing residue remains potentially hazardous. Although
FRA does not believe that any resulting train placement regulation
would affect the securement regulations we are considering, it is not
clear to NYSDOT what particular advantage is gained by granting this
exception for residue cars. From a risk perspective, NYSDOT believes it
would seem reasonable to treat all placarded residue cars as
potentially hazardous until such time that they are cleaned and purged,
including for the purposes of securement. In order to avoid the
potential for confusion in terms of interpreting the HMR, NYSDOT
contends that the provisions that apply to residue cars should remain
consistent throughout. Therefore, NYSDOT recommends that the exclusion
outlined in 232.103(n)(6)(ii) not be included in the final rule.
Riverkeeper believes that residue cars are still inherently
dangerous and should be covered by the regulation. According to
Riverkeeper, cars carrying crude oil such as heavy, sinking tar sands
oils, are expected to become more regularly shipped and, if spilled,
could cause equally significant economic and environmental damage.
When considering whether to apply the applicable requirements to
residue cars, FRA made an effort to balance the associated risks with
the cost of compliance. While FRA recognizes that certain residue tank
cars may still pose inherent danger in the event of a release,
experience has shown that the magnitude of the results are
significantly less than those from an event releasing the contents of a
loaded tank car. Further, loaded tank cars are generally treated more
rigorously by existing Federal safety regulations. See, e.g., 49 CFR
172.204(b)(2), 174.14, and 174.86(b). Given the cost of compliance, FRA
believes that regulatory relief is warranted here. Moreover, FRA notes
that all of its existing securement requirements contained in paragraph
(n) apply to trains and cars containing residue cars. Nevertheless, FRA
will continue to monitor accidents involving residue tank cars and will
continue to dialog with PHMSA to determine whether further action will
become necessary in the future.
Paragraph (n)(7) provides certain conditions under which such
equipment may be left unattended, including the development of a plan
identifying locations where such equipment may be left unattended.
Paragraph (n)(8) includes specific requirements regarding the
securement of such equipment. The following chart attempts to quickly
summarize the requirements of paragraphs (n)(7) and (n)(8).
Securement of Unattended Equipment Defined by Sec. 232.103(n)(6)
----------------------------------------------------------------------------------------------------------------
Paragraph Equipment Track location Requirement
----------------------------------------------------------------------------------------------------------------
(7)(i)..................... All........................ Main track or siding Plan.
outside and not adjacent
to a yard.
(7)(ii).................... Freight train.............. In or adjacent to yard.... Verify (8)(i) and Apply
Lock (8)(ii).
(8)(i)..................... Freight train or standing Main line outside yard.... Verify (8)(i) and Apply
freight car or cars. Lock (8)(ii).
(8)(ii).................... Controlling locomotive cab. Everywhere................ Apply Lock.
(8)(iii)................... Locomotive................. In or adjacent to yard.... Exception to applying lock
if locomotive not
equipped with lock, or if
lock not operable and
reverser not removable.
----------------------------------------------------------------------------------------------------------------
Emergency Order 28 prohibits each railroad from leaving trains or
vehicles that are transporting certain hazardous materials on mainline
track or mainline siding outside of a yard or terminal unless the
railroad adopts and complies with a plan that identifies the specific
locations and circumstances for which it is safe and suitable for
leaving such trains or vehicles unattended. According to Emergency
Order 28, the plan must contain sufficient analysis of the safety risks
and any mitigating circumstances the railroad has considered in making
its determination. FRA expressed its intent not to formally grant
approval to any plan. However, it does monitor such plans, and, in the
[[Page 47362]]
event that FRA determines that adequate justification is not provided,
the railroad is required to ensure that trains and equipment are
attended until appropriate modifications are made to the railroad's
plan.
In paragraph (n)(7)(i), FRA continues these requirements by
regulation. While FRA continues to believe that it is not necessary to
provide approval for each plan, which could take considerable
resources, FRA must ensure proper enforcement and oversight.
Accordingly, paragraph (n)(7)(i) also requires that the railroad notify
FRA when it modifies its existing plan and provide FRA with a copy of
the plan upon request. For similar reasons, FRA will also retain the
right to require modifications to any insufficient plan.
Riverkeeper notes that the equipment defined under paragraph (n)(6)
can be left unattended if a justification is provided to FRA,
characterizing this allowance as a ``loophole.'' Riverkeeper also
criticizes FRA's decision to reserve the right to review any plan as an
``abrogation of responsibility'' and asserts that railroads should not
be left to develop their own plans without FRA review.
FRA disagrees with Riverkeeper's characterization. The existing
regulations have always allowed equipment to be left unattended and
provided that certain actions be taken to secure equipment in such
instances. From an economic perspective, this would be extremely
burdensome. From a safety perspective, there would only be a marginal
benefit to require at all times attendance on a train defined by Sec.
232.103(n)(6) when it has been properly secured in accordance with the
provisions in this final rule. The ``justification'' referenced by
Riverkeeper is not a ``loophole'' because it relates solely to the new
requirement that the railroads identify locations where equipment may
be left unattended. Moreover, FRA's decision to not require FRA
approval of each plan is also consistent with the principles of
regulatory economy and FRA's budget and personnel capabilities. The
plans, which concern appropriate and safe locations, do not necessarily
include any additional safety requirements per paragraph (n)(7). Thus,
FRA does not believe that prior FRA approval is absolutely necessary
here. Nevertheless, FRA has reserved the right to access, review, and
require modification of the plan in the event it determines a location
is insufficiently safe to leave equipment unattended.
In relation to the requirement that the railroad must notify FRA
when it modifies its existing plan and provide FRA with a copy of the
plan upon request, CPUC requests that such authority extend to all
State Safety Participation personnel. CPUC also requests that FRA and
its state partners have access upon request to the underlying research
that validates these plans as safe to provide for ``validating
oversight.''
FRA believes that the modification proposed by CPUC is unnecessary
because state inspectors that have the authority to inspect for part
232 compliance would be entitled to independently receive the plan
directly from a railroad as long as it is requested in the course of a
safety inspection and it is necessary for determining compliance with
the relevant section in part 232. While state inspectors have faced
difficulties with railroad responsiveness, FRA inspectors have
experienced the same problems. The agency has engaged AAR on this issue
to ensure that railroads are providing requested materials in a timely
manner. See Letter to Edward R. Hamberger, President, AAR, from Joseph
C. Szabo, Administrator, FRA (April 4, 2013). If FRA or state
inspectors are unable to obtain such documentation, they should contact
the appropriate FRA Railroad System Oversight Manager (RSOM) or FRA
Regional personnel for assistance.
Paragraph (n)(7)(i) differs from Emergency Order 28 in one manner.
The final rule allows a railroad to leave a train or equipment
unattended on mainline track that is running through a yard or on
mainline track that is adjacent to the yard without covering the
location in the railroad's plan. This change is based on feedback
received during the SWG meetings, which voted unanimously to adopt the
language in paragraph (n)(7)(i), with the recommendation of the full
RSAC to move forward with the regulatory provision.
In Emergency Order 28, FRA made a decision that it was not
necessary to include mainline tracks and mainline sidings that run
through a yard in a railroad's plan for leaving equipment unattended.
FRA's rationale for this decision was that a yard was defined space
where the railroad performed a particular set of tasks (classifying
cars, making-up and inspecting trains, or storing cars and equipment).
As a result of the tasks performed there, yards tend to have
appropriate geographic characteristics, sufficient railroad activity,
and a population of railroad personnel in close proximity that make
them appropriate places for leaving equipment unattended. In FRA's
view, mainline track that runs through a yard shares those
characteristics with the yard tracks surrounding it. As a result, it is
often used as a de facto ``yard'' track to assist with classifying cars
and with making-up and inspecting trains. As such, FRA did not see a
need when drafting Emergency Order 28 for railroads to identify
mainline tracks within a yard in the railroad's securement plan before
a railroad would be allowed to leave equipment unattended on the
mainline track that is surrounded by a yard.
The feedback received through the RSAC process was that tracks
adjacent to the yard share many of the same characteristics as mainline
tracks that run through a yard. Therefore, this final rule, as proposed
in the NPRM, treats mainline track that is adjacent to the yard in the
same manner that it is currently treating mainline track that runs
through a yard under Emergency Order 28. This requirement intends only
to cover those tracks that are immediately adjacent to the yard and
that are in close enough proximity to the yard that the adjacent tracks
share the characteristics of the yard.
NAFCA contests this requirement as proposed, believing that such a
change should be postponed until after more experience with observing
multi-car train movements of Class 3 flammable liquids. According to
NAFCA, the requirement in Emergency Order 28 is not unduly burdensome
to the railroad. FRA declines to postpone treating the identified
adjacent tracks as mainline yard tracks. NAFCA does not explain what
benefits could be gained with additional experience and does not
provide quantifiable or qualified information to support its position
that such a postponement would not be unduly burdensome to the
railroads.
Given that there are vast differences in surrounding population
densities and in the amount of railroad activity that takes place at
different rail yards, NYSDOT believes that there should be no
differentiation in plan requirements simply because the mainline tracks
go through or are adjacent to rail yards. According to NYSDOT, there
are many railroad yards located in rural areas of New York State with
limited rail operation activity, low population density and in which
ambient lighting may be poor or nonexistent. In a letter to President
Obama dated September 23, 2014, Governor Cuomo recently outlined New
York's safety concerns in and around the areas in which crude-by-rail
trains dwell. NYSDOT believes that sufficient analysis of the safety
risks and any mitigating circumstances should be part of a railroad's
plan for all mainline tracks and sidings irrespective of
[[Page 47363]]
whether those tracks go through or are adjacent to a rail yard.
Similarly, Riverkeeper contends that FRA is assuming that trains
are inherently more secure in and around yards to the point that they
do not need to be included in these securement regulations, because
rail yards and sidings generally have more activity than lone, far-
flung mainline track. Riverkeeper asserts that this conclusion is not
supported by any presented facts and ignores the risks of unsecured
trains rolling out of yards, or sidings, or mainlines near yards,
potentially toward imminent and significant disaster. According to
Riverkeeper, FRA's decision to treat yard-adjacent tracks the same as
mainline tracks within the yard arbitrarily relies on nonspecific
``railroad'' activity and the assumption that rail yard workers would
be able to respond to a runaway train in time to avoid disaster.
Riverkeeper concludes that any final rule on securement must apply to
all unattended trains, regardless of where they are left.
As discussed previously, the yard exception in paragraph (n)(7)(i)
is due to FRA's assessment that yards overwhelming tend to have
appropriate geographic characteristics for leaving equipment unattended
and that there is a higher likelihood of qualified people being present
and switching operations occurring. FRA believes that some commenters
misunderstand the purpose of the plan, which is merely to identify
locations where equipment may be left unattended. The plan requirement
does not exempt the railroads from any securement requirements under
Sec. 232.103(n). In other words, securement of unattended equipment is
required regardless of location--except as subject to certain
switching-related exceptions, including those relating to TB 10-01--and
paragraph (n)(7)(i) does not affect those requirements. To the extent
that those commenting on paragraph (n)(7)(i) are concerned that the
plan would exempt railroads from complying with the hand brake and
other mechanical securement requirements, FRA assures them that this is
not the case.
Paragraph (n)(7)(ii) establishes new requirements for those trains
that are left unattended on mainline track that is running through a
yard or on mainline track that is adjacent to the yard. It applies
aspects of Emergency Order 28 to these tracks by requiring verification
that securement has been completed in accordance with the railroad's
process and procedures (see discussion below concerning paragraph
(n)(8)(i)), and that the locomotive cab is locked or the reverser is
removed from the control stand and placed in a secured location (see
discussion below concerning paragraph (n)(8)(ii)), unless the exception
contained in paragraph (n)(8)(iii) is applicable.
Emergency Order 28 requires railroads to develop specific processes
for employees responsible for securing any unattended train or vehicles
transporting certain hazardous materials that must be left on mainline
track or a mainline siding outside of a yard. FRA believes that this
requirement should continue in regulation. This final rule allows a
railroad to leave a paragraph (n)(6) train unattended on mainline track
or a siding outside of a yard where the railroad has a plan in place
and on mainline tracks that are in or adjacent to yards. In doing so,
paragraph (n)(8)(i) requires the employee responsible for the
securement of the equipment to verify securement and paragraph
(n)(8)(ii) requires the train crew to lock the controlling locomotive
cab or remove and secure the reverser from the control stand.\17\
---------------------------------------------------------------------------
\17\ The reverser is the directional control for the locomotive.
Removing the reverser would essentially put the locomotive in
neutral, preventing it from moving forward or backward under the
power of the engine.
---------------------------------------------------------------------------
NYSDOT expresses confusion as to the consistency of cross-
referencing language in paragraphs (n)(7)(ii) and (n)(8)(i). Paragraph
(n)(7)(ii) refers to trains described in paragraph (n)(6) that are
``left unattended on a main track or siding that runs through, or is
directly adjacent to a yard,'' and states that the requirements of
paragraph 8(i) and 8(ii) ``shall apply.'' (Emphases NYSDOT's.) However,
paragraph (n)(8)(i) states, ``Where a freight train or standing freight
car or cars as described in paragraph (n)(6) of this section is left
unattended on a main track or siding outside of a yard, and not
directly adjacent to a yard, an employee responsible for securing the
equipment shall verify with another person qualified to make the
determination that the equipment is secured in accordance with the
railroad's processes and procedures.'' (Emphasis NYSDOT's.) According
to NYSDOT, the wording ``shall apply'' would seem to render the
provisions of paragraph (n)(7)(ii) moot, since it appears to default to
the provisions of paragraphs (n)(8)(i) and (n)(8)(ii) for all trains
left unattended, irrespective of their location relative to a yard.
FRA understands that NYSDOT is expressing confusion in that
paragraph (n)(7)(ii) applies to trains in or adjacent to a yard must
follow paragraph (n)(8)(i), which actually applies to trains outside a
yard. FRA would like to clarify that the distinction here is that
(n)(7)(ii) limits the applicability of (n)(8) only to trains left
unattended in yards or adjacent to them, whereas the provisions of
(n)(8) apply to both trains and cars left outside of yards. In other
words, in context with one another, these paragraphs require securement
verification and lock application on all unattended freight trains
defined under paragraph (n)6), regardless of whether they are located
inside or outside of a yard, and on all standing freight cars defined
under paragraph (n)6) on a main line outside of a yard. The implication
is that these requirements do not apply to standing freight cars inside
and adjacent to yards. FRA intends the above chart to act as a visual
aid to communicate these similarities and differences.
NYSDOT is in agreement with the requirement that an employee
responsible for securing the equipment shall verify with another
qualified person that the equipment is secured in accordance with
railroad procedures for all trains left unattended. Based upon its
interpretation as written, NYSDOT suggests that paragraph (n)(7)(ii) be
omitted and that the language of paragraph (n)(8)(i) be changed to:
``Where a freight train or standing freight car or cars as described in
paragraph [(n)(6)] of this section is left unattended on a main track
or siding, an employee responsible for securing the equipment shall
verify [. . .] etc.''
Paragraph (n)(8)(i) requires that an employee responsible for
securing equipment defined by paragraph (n)(6) verify securement with
another qualified person. This is similar to Emergency Order 28, which
requires employees to verify proper securement with a qualified
railroad employee. This may be done by relaying pertinent securement
information (i.e., the number of hand brakes applied, the tonnage and
length of the train or vehicle, the grade and terrain features of the
track, any relevant weather conditions, and the type of equipment being
secured) to the qualified railroad employee. The qualified railroad
employee must then verify and confirm with the train crew that the
securement meets the railroad's requirements. However, paragraph
(n)(8)(i) does not contain a requirement that the railroad maintain a
record of the verification of proper securement.
FRA believes that the type of verification requirement in paragraph
(n)(8)(i) will serve to ensure that any employee who is responsible for
securing equipment containing hazardous materials will follow
appropriate procedures because the
[[Page 47364]]
employee will need to fully consider the securement procedures to relay
what was done to the qualified employee. Further, the qualified
railroad employee (e.g. a trainmaster, road foreman of engines, or
another train crew employee) will be in a position to ensure that a
sufficient number of hand brakes have been applied. Under this final
rule, the qualified railroad employee must have adequate knowledge of
the railroad's securement requirements for the specific location or for
the specific circumstance for which the equipment will be left
unattended. Without limiting the type of employee who may be qualified,
FRA envisions that a dispatcher, roadmaster, yardmaster, road foreman
of engines, or another crew member would be able to serve in the
verification capacity.
Riverkeeper criticizes FRA's ``refusal'' to limit the type of
employee who may be qualified and claims that FRA also fails to specify
the type of verification or even the details that must be provided.
As previously noted, FRA believes that a certain set of
qualifications or base of knowledge is necessary to be part of the
conversation relating to securement. While the employee's ``type'' or
title may be instructive, it should not be the sole or primary element
in determining whether an individual is qualified to apply or verify
the securement rules. FRA also believes that the existing rule and this
final rule address the needs relating to the type of verification or
its required details. As for the required details, they have already
been established in the existing regulations and in each railroad's
processes and procedures. According to the proposed text, the
responsible employee must ``verify with another person qualified to
make the determination that the equipment is secured in accordance with
the railroad's processes and procedures.'' Riverkeeper suggests no
further details clarifying its position to FRA.
FRA has decided not to continue the recordation requirement based
on experience enforcing section 2b of Emergency Order 28. FRA has found
that requiring recordation of securement information is superfluous
because the verification requirement ensures that two individuals
consulting with each other make certain that the appropriate securement
method is used. The intent of the recordation requirement was to ensure
the communications are taking place. FRA has found that, since issuance
of Emergency Order 28, communications occur in the course of the
verification process. Therefore, it does not believe requiring
railroads to make a record of each securement event is necessary to
ensure proper securement. FRA sought comment concerning enforcement of
the verification requirement, absent recordation.
CPUC does not see sufficient justification for eliminating the
recordation requirement under Emergency Order 28. CPUC recommends that
FRA at least reinstate some form of recording of the details of
securing the train--such as a crew member filling out a form and
leaving on the controlling locomotive--detailing the method used and
the specifics of implementing the method--such as the number of hand
brakes tied per the railroad's process and procedure already required
by regulation. According to CPUC, such a requirement would enhance
accountability, require more careful attention, provide better crew-to-
crew communications, avoid dispatcher time and record keeping, and aid
in accident investigations, enforcement efforts, and safety practice
improvements.
CPUC would also not rely on FRA's recent experience as sufficient
to warrant removal of the recordation requirement. CPUC believes that
as more time passes and attention to the Lac-M[eacute]gantic accident
fades, the public cannot be confident that all safe practices will be
followed without structured verification.
NAFCA believes that recordation is a salutatory safety measure that
should remain in place for the foreseeable future, recommending that it
only be rescinded after FRA gains more experience in this area.
NTSB believes that a recordation process for the verification of
proper securement is critical for ensuring that unattended equipment is
secure and that FRA should continue this requirement from Emergency
Order 28, which provided a definitive check on the process. NTSB
suggests that written verification (recordation) be required when one
crew member leaves a train unattended. According to NTSB, such a
requirement would provide verification of the work performed and offer
information to the relieving crew (for inclusion in job briefings)
regarding the condition and status of equipment. NTSB also claims that
in the NPRM FRA provided no data to support its decision not to
continue the recordation requirement ``based on experience in enforcing
Emergency Order 28.''
NYSDOT supports maintaining the recordation requirement and
believes that its removal would make extremely challenging enforcement
of Sec. 232.103(n) as it relates to such recordation and to verify how
actual and adequate securement. NYSDOT notes that it aids the incoming
train crew in its assessment of how many hand brakes need to be
released before the train continues its movement.
Riverkeeper also believes that the recordation requirement should
remain. Otherwise, states Riverkeeper, an employee may easily not
comply with safety protocols and FRA may find it difficult to
meaningfully enforce the securement requirements. Riverkeeper also
characterizes as circular FRA's justification for removing the
recordation requirement; while FRA's purpose to require recordation was
to ensure that communications are taking place, FRA found that over the
last year that communications occur in the course of the verification
process and that recording is not necessary. Riverkeeper asserts that
FRA failed to provide any evidence supporting its contention that
``over the last year . . . communications occur'' between the securing
employee and the overseeing employee. Riverkeeper also believes that
FRA misses the point that maintaining records is to allow for oversight
and enforcement.
Under the existing rule, the railroads are required to secure
unattended equipment by applying a sufficient number of hand brakes and
other safety procedures. FRA continues to believe that the existing
requirements, if followed, include sufficient protections. FRA's
concerns have been raised, particularly in the face of the accident in
Lac M[eacute]gantic, regarding compliance with those measures. Thus,
when FRA issued Emergency Order 28, it included requirements with the
primary goal to increase railroad compliance with the existing safety
requirements as they apply to certain hazardous materials shipments.
The requirement that the employee responsible for securement verify
with a qualified person whether the equipment was secured appropriately
was drafted as a communicative measure to ensure compliance with
existing securement requirements. The recordation requirement was an
additional, second layer of communication to also ensure such
compliance. While its supplementary benefits included a documentation
of the information that could aid other crews, future investigations,
and enforcement actions, those were not FRA's primary goals. While
recordation would provide such additional benefits, FRA believes that
verification should be sufficient at this time, especially since
recordation of securement could result in expending railroad resources
as an unnecessary
[[Page 47365]]
redundancy. FRA's inspectors have extensive experience in enforcing
communicative regulations without the benefit of documentation (see,
e.g., 49 CFR 218.99, 218.103, 218.105, and 218.109). While recordation
may be helpful in some instances, it is not necessary. For instance,
since verification must be accomplished by at least two people, an
inspector may interview them both to determine whether verification
occurred correctly.
FRA has faced similar questions before regarding recordation of
certain activities. For instance, in a rulemaking codifying the
requirements of Emergency Order 24 concerning the handling of
equipment, switches, and fixed derails, FRA declined to continually
require the use of a Switch Position Awareness Form (SPAF) to remind
employees of the importance of properly lining and locking main track
switches. See 73 FR 8442, 8448, Feb. 13, 2008. While the resulting
paperwork burden and communication redundancy was acceptable for the
purposes of Emergency Order 24, FRA decided not to require a SPAF in
the associated final rule because other comprehensive communication
regulatory requirements created a direct enforcement mechanism that
made enforcement through a SPAF redundant. See id. In that rulemaking,
and in its own proceedings, NTSB supported removal of the similar
paperwork burden. See id; NTSB, Collision of Norfolk Southern Freight
Train 192 With Standing Norfolk Southern Local Train P22 With
Subsequent Hazardous Materials Release at Graniteville, South Carolina,
Railroad Accident Report, NTSB/RAR-05/04, at 45, available at https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0504.pdf. FRA's
position in this rulemaking is consistent with the position taken in
the final rule codifying Emergency Order 24. There have not been
adverse safety consequences associated with eliminating the reporting
requirement in Emergency Order 24, and FRA does not expect any adverse
safety consequences in this instance. However, FRA will continue to
monitor securement of equipment defined under paragraph (n)(6) to
assess the effectiveness of the verification process that is being
instituted in this final rule.
Also under Emergency Order 28, the employees responsible for
securing the train or vehicles must lock the controlling locomotive cab
door or remove and secure the reverser before leaving it unattended.
Accordingly, paragraph (n)(8)(ii) requires further protection of the
locomotive to prevent movement of unattended equipment that could be
caused by unauthorized access to the locomotive cab.
Representatives from the railroad labor strongly suggested at the
SWG meetings that a locking mechanism be applied to each locomotive
covered under this rule, seeking that lock installation be complete
within 18 months. BLET stated that locomotive cab security is a major
concern to the labor caucus.
The language approved by the SWG provided that the controlling
locomotive cab shall be locked on locomotives capable of being locked
or the reverser on the controlling locomotive shall be removed from the
control stand and placed in a secured location. The use of the
conjunctive appears to indicate a choice; each railroad may opt to
either lock the locomotive or remove its reverser. However, based on
the discussions during the SWG meetings, FRA believes that the SWG
intended for paragraph (n)(8)(ii) to mean that all covered locomotives
should be locked when so equipped. FRA has made slight alterations to
the language in paragraph (n)(8)(ii) from the language that was
approved by the SWG in order to more accurately address the lock
requirement. FRA understands that the reverser provision is intended
for the interim period until locks are installed or for when a
locomotive has been equipped with a lock but the lock has become
inoperative. FRA also notes that under this final rule a railroad would
be free to require both the locking of the locomotive and the removal
of the reverser. FRA does not intend to limit a railroad to just one or
the other. FRA sought comment on this understanding, particularly as to
whether the alternative of removing the reverser should only be
available during the timeframe when the locking mechanism becomes
broken or otherwise ineffective or whether, in the interest of safety
redundancy, the regulations should require railroads to both lock cab
doors and to remove reverser handles.
NTSB believes that, in the interest of safety, the regulation
should require the locking of the locomotive cab doors, as well as
removing and securing the reverser handles. According to NTSB, such
redundancy will ensure a higher level of safety.
NYSDOT also supports the view that redundancy of safety or security
procedures is beneficial in terms of addressing risk. Therefore, NYSDOT
believes that, when the train is left unattended, the locomotive cab
door lock must be engaged (if operative) and the reverser must be
removed and secured where feasible.
FRA is not persuaded by the comments, which provide no new
information or argument. FRA continues to believe that it is not
necessary to ensure safety by requiring by regulation the locking of
the cab door and removal of the reverser. FRA recognizes that the
railroads are already, or will be, installing locks on cab doors. This
final rule formally requires such installation and requires their
application for unsecured equipment in accordance with this rule. While
this final rule does not require removal of the reverser in cases where
an operative lock is applied, the railroads are free to include such a
requirement in their respective operating rules. For the purpose of
this final rule, the lock will be the primary means of locomotive cab
securement and reverser removal will be required only as a backup.
When a railroad relies on removing the reverser as a means for
securement, FRA expects that the reverser will be taken by the
appropriate railroad employee from the controlling locomotive cab so
that it is not accessible to an unauthorized person such as a
trespasser. Alternatively, FRA anticipates allowing the reverser to be
secured in the cab of an unlocked controlling locomotive as long as the
reverser is kept in a box or other compartment that can be locked
within the locomotive cab. However, FRA would not consider a reverser
``secured'' within the meaning of this final rule if the railroad
allows the reverser to be stored merely out of plain sight.
In most instances, FRA would consider a locomotive with an
ineffective locking mechanism to be noncompliant with paragraph
(n)(8)(ii) if the locomotive is left unattended with the reverser
remaining in the control stand. FRA recognizes that there may be
limited circumstances where a locomotive's lock becomes inoperative and
its reverser cannot be removed, thus making compliance with proposed
paragraph (n)(8)(ii) nearly impossible. Accordingly, for such
instances, this final rule includes an exception under paragraph
(n)(8)(iii). FRA believes that application of this exception would only
be utilized on the rare occasion where older locomotives with
integrated reversers may be utilized or where weather conditions make
the reverser necessary for operations (i.e., to prevent the locomotive
from freezing) and that such trains would only be left unattended in a
yard or on a track directly adjacent to a yard. FRA sought comments on
the intent, application, and language of this proposed exception.
[[Page 47366]]
NYSDOT states that the data provided in the analysis section of the
NPRM indicates that the cost associated with repairing or replacing a
locking mechanism is relatively small. According to NYSDOT, it is
accepted that the goal of this particular exception is to provide
relief in the rare instances where operation of ``non-conforming''
equipment (e.g. locomotive cabs without operative locks or removable
reversers) would be required. However, given the acknowledged security
concerns inherent with leaving trains unattended, NYSDOT asserts that
consideration should be given to requiring attendance on the affected
equipment until such time that the inoperative locking mechanisms can
be repaired or replaced in conformance with paragraph (n)(8)(ii).
The purpose of the existing securement rule and this final rule is
not to require attendance, but to require certain safety protocols when
certain equipment is left unattended. To require attendance, as
suggested by NYSDOT, would have this rule go further than FRA's intent
and could amount to substantial and unnecessary costs for the
railroads. Moreover, such a requirement likely would result in
unanticipated impacts affecting FRA's hours of service rules, which is
not FRA's intent in this rulemaking.
FRA believes that the job briefing requirement in Emergency Order
28 should be codified in regulation. Accordingly, paragraph (n)(9)
requires each railroad to implement operating rules and practices
requiring the discussion of securement among crew members and other
involved railroad employees before engaging in any job that will impact
or require the securement of any equipment in the course of the work
being performed. This requirement is analogous to other Federal
regulations that require crew members to have a job briefing before
performing various tasks, such as confirming the position of a main
track switch before leaving an area. The purpose of this job briefing
requirement is to make certain that all crew members and other involved
railroad employees are aware of what is necessary to properly secure
the equipment in compliance with Sec. 232.103(n).
Under this final rule, FRA expects that the crew will discuss the
equipment that is impacted, the responsibilities of each employee
involved in the securement of a train or vehicle, the number of hand
brakes that will be required to secure the affected equipment, the
process for ensuring that securement is sufficient, how the
verification will be determined, and any other relevant factors
affecting securement. FRA sought comments on whether these expectations
are reasonable, accurate, and either sufficiently comprehensive or
somehow lacking.
NYSDOT agrees that the specific job briefing requirements should be
left up to the railroads and that effective policies and procedures are
important. However, NYSDOT remains concerned about the ability to
record or document the actions taken in accordance with those policies
and procedures.
Riverkeeper believes that, although FRA claims that new
requirements of the rules proposed here would indeed ``enhance safety
culture and oversight,'' the new requirements do not go far enough and
lack the enforceability needed to actually change the status quo.
Riverkeeper says that, while the NPRM proposes ``requiring that
securement be part of all relevant job briefings,'' FRA has no ability
to ascertain whether briefed employees understand, or are implementing,
securement policies. Riverkeeper similarly states that although FRA
proposes requiring that there be more ``dialog between railroad
employees [which would] provide enhanced oversight within the
organization,'' it has no way to ensure that such dialogs occur, or
whether they actually improve compliance rates. Riverkeeper notes that
neither of these cultural changes will necessarily be reported to the
FRA or the public in a manner that promotes transparent oversight and
robust enforcement.
FRA disagrees with Riverkeeper's assessment regarding the
effectiveness of the job briefing requirement and its regulatory
enforceability. Crew members are already trained and qualified to
understand briefing contents and the procedures and mechanics involved
with securing unattended equipment. FRA also has extensive experience
enforcing the job briefing criteria (see, e.g., 49 CFR 214.315, 218.99,
218.103, 218.105, and 218.109) and expects to apply similar
investigative methods when enforcing paragraph (n).
FRA recognizes that, in some instances, there may be only one crew
member performing a switch or operation and that crew member would have
to secure equipment alone at the end of the activity. In the NPRM, FRA
expressed its belief that the issue of self-satisfying a job briefing
is best left to the railroad when complying with part 218 and sought
comment on how to apply this requirement in a situation involving a
single person crew and how it interrelates with part 218.
NYSDOT acknowledges that single person crews pose a challenge in
terms of ensuring that the safety benefits inherent with effective job
briefings are assured in all instances, including single-person
operations. At a minimum, states NYSDOT, the procedures for conducting
job briefings should be established in the railroad's operating rules
or in its timetable special instruction for all locations and
operations to ensure that expectations are clearly established.
FRA continues to believe that it is sufficient for a one-person
crew to self-satisfy a job briefing in accordance with the railroad's
own operating rules developed pursuant to part 218.
Under paragraph (n)(10), FRA is requiring railroads to develop
procedures to ensure that a qualified railroad employee inspects all
equipment that any emergency responder has been on, under, or between
for proper securement before the rail equipment or train is left
unattended. As it may be necessary for emergency responders to modify
the state of the equipment for the performance of their jobs by going
on, under, or between equipment, it is critical for the railroad to
have a qualified employee subsequently inspect the equipment to ensure
that the equipment continues to be properly secured before it is again
left unattended.
The final rule requires railroads to establish a process to ensure
that a qualified railroad employee inspects all equipment that any
emergency responder (e.g., fireman, policeman, or paramedic) has been
on, under, or between for proper securement before the train or vehicle
is left unattended. FRA understands that on rare occasions there may be
situations where an emergency responder accesses railroad equipment
without the knowledge of the railroad. FRA will expect that a qualified
railroad employee inspect equipment after it has been accessed by an
emergency responder in any circumstance where the railroad acting in a
reasonable manner knew or should have known of an emergency responder's
presence on, under, or between the subject equipment.
The final rule requires that these procedures are followed as soon
as safely practicable after learning that an emergency responder has
interfaced with the equipment. In the NPRM, FRA sought comments on what
should be considered ``as soon as safely practicable.''
AAR and ASLRRA reiterated earlier statements that the railroads
support, and that the final rule should include,
[[Page 47367]]
the language ``as soon as safely practicable.'' AAR and ASLRRA assert
that this language addresses the reality of situations where an
emergency responder has had contact with rail equipment.
NYSDOT believes that the type and severity associated with any
emergency event will significantly influence the definition of ``as
soon as safely practicable.'' NYSDOT would recommend that, given their
significant training regarding personal safety and protection, the
first responders on-site would be a reasonable `real time' resource to
provide the requisite guidance in each case. NYSDOT consulted with
counterparts from the NYS Division of Homeland Security and Emergency
Services (DHSES), Office of Fire Prevention and Control (OFPC) on this
topic. OFPC recommends that for scenarios in which first responders
access unattended equipment without the on-site presence of railroad
personnel, effective communication and coordination will be critical in
assuring that the incident scene and access to the equipment be turned
over to the appropriate railroad representative (i.e. ``qualified
employee'') when it has been determined safe to do so. NYSDOT also
states that in no case should the affected equipment be left in a
potentially unsafe or unattended condition prior to the arrival of
railroad personnel designated by the railroad to inspect and assume
responsibility for that equipment and its proper securement.
FRA shares NYSDOT's concerns. However, while emergency and first
responder training would certainly be beneficial, FRA will refrain from
imposing such requirements at this time. Emergency response is
primarily a local function that falls under State or local governance,
which could impose such training requirements. FRA notes, however, that
AAR is currently providing training at its Transportation Technology
Center, Inc. (TTCI) to emergency responders on handling accidents
involving crude oil. Moreover, if each railroad's employee is properly
trained and complies with this regulation, there is little need to
require emergency responder training, which could be quite costly
nationwide.
AAR and ASLRRA also make clear their belief that, in such a
situation, the railroad has to have actual knowledge that an emergency
responder has been on the equipment and it has to be safe for the
employee to inspect the equipment. According to AAR and ASLRRA, in some
situations, the railroad might not know that an emergency responder has
been in contact with the equipment until sometime after the contact.
Additionally, AAR and ASLRRA assert that in a potential emergency
situation, the railroad needs to be able to ensure that its employees
can safely examine the equipment before being able to verify its
securement.
When enforcing this provision, FRA will consider the railroad's
actual and constructive knowledge of any emergency responder's
presence. However, FRA does not expect to hold the railroad accountable
if there is no reasonable means for the railroad to have known.
Further, the ``safely practicable'' language is intended to take into
consideration the circumstances presented. FRA's intent with this
regulation is not put a railroad employee in harm's way by requiring
him or her to enter an unsafe situation following an instance where a
first responder goes on, under, or between equipment. However, FRA will
require the railroad to take action once it can be reasonably
ascertained that securement can be effectuated without unnecessary
danger.
As noted above, on March 24, 2010, FRA issued TB 10-01 to provide
enforcement guidance regarding the securement of equipment,
particularly in classification yards. In the NPRM to this proceeding,
FRA proposed codifying TB 10-01 by amending the rule at the final rule
stage of this proceeding. Accordingly, this final rule includes a
clarifying amendment to ensure that FRA's long-standing interpretation
and application of the existing regulation is contained directly in the
regulation. These amendments are for clarification purposes only and
add no new requirements to the regulations.
NYSDOT agrees with the exception in TB 10-01 that, in certain
circumstances within classification yards, skates or retarders in lieu
of hand brakes may be used to secure equipment. AAR and ASLRRA
expressed concern that the NPRM did not include any proposed regulatory
text and recommended that FRA place the issue before the RSAC SWG for
discussion.
TB 10-01 was issued approximately five years ago and the railroad
industry has had significant opportunity to become accustomed to its
interpretations of the existing rules. TB 10-01, and its codification
in this rulemaking, does not provide any new requirements; if anything,
it formalizes exceptions that provide operational flexibility for
railroads in classification yards. FRA sought comment on this issue and
had not received any regulatory text recommendations. Accordingly, FRA
does not believe it is necessary to either extend the comment period on
this issue or recall the RSAC SWG for further discussion.
The purpose of TB 10-01, and its codification in this final rule,
is to indicate how Sec. 232.103(n) applies in classification yards.
Much of TB 10-01 is purely guidance, which will be incorporated into
this preamble for posterity. There are a few portions of TB 10-01,
however, which provide alternative securement options. These
alternatives are being codified into the rule text as further discussed
below. Upon the effective date of this final rule, which will
incorporate TB 10-01, that guidance document itself will be rescinded.
However, for continued guidance and educational purposes, FRA has
placed the illustrative photographs from TB 10-01 into the docket of
this proceeding.
Prior to issuance of TB 10-01, FRA's Railroad Safety Board
reiterated that the failure to apply any hand brakes on unattended
equipment does not comply with the securement requirements of Sec.
232.103.\18\ However, FRA recognizes that it is sometimes necessary in
the switching of trains within classification yards to have equipment
unsecured with hand brakes. Therefore, like the TB, this final rule
allows for alternate forms of securement in limited circumstances--
including where they may be appropriate and what constitutes effective
use of alternate forms of securement. It also provides flexibility in
the application of securement on repair tracks.
---------------------------------------------------------------------------
\18\ See Letter from Grady C. Cothen, Jr., Deputy Associate
Administrator for Safety Standards and Program Development, Federal
Railroad Administration, to Thomas J. Healey, Regulatory Counsel,
and Jeffery A. Liepelt, VP Operations, Canadian National Railway
Company, Docket No. FRA-2008-0060 (Apr. 3, 2009).
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Section 232.103(n) addresses the securement of unattended equipment
by means of applying hand brakes, venting the brake pipe to zero and
leaving the angle cock open on one end of a cut of cars, and requiring
the railroad to develop and implement procedures to verify that the
equipment is secure. Unattended equipment is equipment left standing
and unmanned in such a manner that the brake system of the equipment
cannot be readily controlled by a qualified person. When assessing this
situation for compliance, FRA may take into account the following
factors:
Can an individual take corrective action if the equipment
should start to roll away?
Can the individual readily mount the car and apply the
hand brake, or can the individual safely open an angle cock should the
equipment start to roll away?
[[Page 47368]]
Can the individual readily mount the locomotive and either
apply the hand brake or operate the brake handles or emergency brake
valve to stop the unexpected movement?
Is a qualified person focused on the situation?
If the individual is eating lunch or in the bathroom, full
attention is not being given to the equipment.
If the individual is in a crew room or talking on the
phone, full attention is not being given to the equipment.
If an engineer and crew get off of their train to watch a passing
train, and remain in close proximity to their locomotive consist, hand
brakes would not have to be applied on the locomotives as long as
someone is close enough to readily mount the locomotive and apply an
emergency brake or hand brake, should the locomotives or train start to
roll away. In these situations, FRA would consider the equipment
attended. However, if the engineer and crew get off their train and
position themselves with the passing train between them and their
train, hand brakes have to be applied, as their train would be
considered unattended.
Paragraph (n)(1) of Sec. 232.103 includes a performance-based
requirement that a sufficient number of hand brakes be applied to hold
the equipment and that railroads have to develop and implement a
process or procedure to verify that the applied hand brakes will
sufficiently hold the equipment when the air brakes are released. This
requires a railroad to develop appropriate operating rules to verify
the sufficiency of the hand brakes applied, which can be tailored to
the specific territory and equipment operated by the railroad. This can
be as elaborate as the use of a sophisticated matrix or some other type
of ``set calculations'' that specify exactly how many hand brakes have
to be applied on specific numbers of cars; or it can be as simple as
having the engineer release the pneumatic brakes after the hand brakes
have been applied (and before uncoupling from the cars) to determine if
the equipment is secure. To simply have instructions that state ``a
sufficient number of hand brakes have to be applied'' does not satisfy
the intent of the regulation, unless there is the provision that the
pneumatic brake has to be released to determine the equipment is
secure. When observing this practice, it is important that the
pneumatic brakes fully release. This can be accomplished by observing
piston travel on the rearmost car, or observing and ensuring that the
end-of-train brake pipe pressure returns to its original setting.
Unless alternate forms of securement are permitted (as discussed
below), it is FRA's enforcement policy that one or more hand brakes
will have to be applied to a car in order to sufficiently secure
equipment in accordance with the regulation. The application of no hand
brakes on a car or a block of unattended freight cars will not meet the
securement requirements of 49 CFR 232.103(n).
In paragraph (n)(11) of this final rule, FRA is including
exceptions from certain portions of the remainder of Sec. 232.103(n)
as long as a delineated alternative is followed.
Paragraph (n)(11)(i) provides the flexibility to allow a railroad
to use in a prescribed location an alternative means of securement in
lieu of hand brakes per the remainder of paragraph (n). Like in TB 10-
01, FRA continues to believe in this final rule that unattended
equipment in classification yards--a series of tracks where locomotives
and cars are classified or switched to dismantle and make-up train
sets--present situations where alternate forms of securement can be
allowed. Classification yards may have hump, bowl, flat, graded, or
other characteristics. These characteristics and other local
conditions, such as prevailing winds and possible severe weather,
should be considered by the railroad in developing its instructions for
using alternate forms of securement. The burden of proof is on the
railroad in the use of alternate securement. If alternate securement is
not effective, securement defaults to the application of a sufficient
number of hand brakes.
In classification yards, securement is not required for the end of
the yard that is actively being switched and is attended by the switch
crew or hump tower operator. At these locations, FRA does not require
securement for cars or blocks of cars on the yard tracks, as long as
the equipment on the opposite end of those tracks being actively
switched are secure. FRA believes that this flexibility applies only
when active switching is occurring and is not otherwise affected by the
commodities being handled, including equipment defined by paragraph
(n)(6). If the operations at these locations do not work for 24 hours a
day, 7 days a week, then the equipment at each end of the track would
have to be secured, but cars in between the secured equipment would not
have to be secured. At these locations, if a train crew removes a car
or block of cars, the railroad shall have instructions in place to
ensure any car remaining in the track is secure. This could be
accomplished by either placing the burden on the train crew making the
pickup, or by having other workers in place to secure the remaining
equipment. At all other locations outside of actively switched yards--
such as sidings, storage yards, or the mainline--each car and each
individual block of unattended equipment must be secure in compliance
with the regulation.
FRA recognizes that there may be overlap between the securement
requirements within locomotive and car repair track areas and with the
alternate methods of Blue Signal Protection (49 CFR 218.29), which are
the primary methods of ensuring safety in these areas. However, once
repair tracks become unattended and the blue signals are removed,
securement will be required in these areas subject to the limitation
that under certain repair and servicing situations it will be
impractical or unnecessary to require the application of a hand brake.
These would include equipment in repair status that may be lacking hand
brakes, wheels, or trucks; and that is secured by means of a mechanical
securement device; which could include jack stands, chocks, chains,
skates, or other similar devices.
Without applying hand brakes in classification yards, an
alternative means of securement is required per paragraph (n)(11)(i).
FRA is generally referring to such alternative means as mechanical
securement devices, which, as previously noted, FRA is including in
this final rule a new defined term. FRA intends mechanical securement
devices to include skates, retarders, inert retarders, and other
devices that provide at least the equivalent securement that a
sufficient number of hand brakes would provide in the same situation.
In these situations, skates or retarders are considered an alternative
form of securement, if they are maintained and used within their design
criteria and as intended.
A skate (or rail skid) is a portable sliding device placed on the
rail to engage with a car wheel so as to provide continuous braking by
sliding friction. If using a skate to comply with this paragraph, the
rail car must be at rest and at least one skate must be fully engaged
to prevent movement. To be clearer, the following applies for the use
of skates:
The railcar shall be constructively placed at rest, fully
engaged, with at least one skate, preventing movement away from the
actively switched direction of the yard track.
Unengaged skates placed near the clearance points of yard
tracks (without a railcar in place) are not considered securement.
[[Page 47369]]
A single railcar secured by a skate that is overwhelmed by
the mass of following railcars shall be considered the same as an
insufficient quantity of hand brakes, and a violation may be taken.
Under paragraph (n)(11), a railroad may also use a retarder, which
is a powered or unpowered braking device permanently built into a
railway track to reduce the speed or secure railcars by means of brake
shoes that press against the lower sides of railcar wheels. When
installed at the exit of a hump yard, they are often referred to as
inert retarders or skate retarders (not to be confused with a skate
defined above). It is not necessary to have the first car in each block
engaged by the retarder during active switching. Also, a car may be
past a retarder and be considered secure if it is coupled to a car
engaged by the retarder and is not in a fouling condition as defined in
Sec. 218.101. However, if a railcar or following railcars are switched
into a retarder in a manner that overwhelms the capacity of the device
and consistently places equipment in a fouling condition, it shall be
considered the same as an insufficient quantity of hand brakes, and a
violation may be taken. While unengaged skates may be placed after
retarders to provide additional safety in the event that a retarder is
overwhelmed; their sole use will not be consider a properly used
mechanical securement device. If skates are being engaged excessively,
FRA may consider the retarders as being overwhelmed or not being
maintained, and a violation may be taken. For these and similar
reasons, skates and retarders are not usually considered sufficiently
safe securement alternatives to hand brakes when used outside of a
classification yard or within a repair shop environment where blue
signal protection has been initiated.
In paragraph (n)(11)(ii) to this final rule, FRA is also
incorporating the flexibility afforded by TB 10-01 as it relates to the
isolation of the train pipe, also known as ``bottling of air.'' FRA
will continue to not take exception to a train crew cutting away from a
cut of cars, initiating an emergency brake application on the cut of
cars, and then closing the angle cock for the sole purpose of taking
the locomotives or otherwise proceeding directly to the opposite end of
the cut of cars to either: (1) Couple the locomotives to the cars or
(2) open the angle cock at the other end and leave the angle cock open
and vented to the atmosphere, as required under 49 CFR 232.103(n)(2).
However, if the locomotive cuts away from the cars and closes the angle
cock without the locomotive or an employee going ``directly'' to the
other end to either open the angle cock or couple the locomotives to
the cars, the railroad will be in violation of 49 CFR 232.103(n)(2).
The emphasis is on ``directly'' because, even though it may be the
train crew's intent to go directly to the opposite end of the cars to
take the appropriate action, if a train dispatcher, or whoever, directs
the crew to perform another job task before they directly go to the
opposite end of the cars, a violation is committed. It is only with the
understanding that the train crew goes directly to the other end of the
cars to take the appropriate action that FRA will permit this type of
activity.
Section 232.105 General Requirements for Locomotives
New paragraph (h) to Sec. 232.105 provides further requirements
concerning locking mechanisms on locomotive doors. While Sec.
232.103(n)(8)(ii) provides securement requirements for the controlling
locomotive cab that is left unattended on a mainline track or siding as
part of a train that meets the minimum quantities of hazardous
materials established in proposed Sec. 232.103(n)(6)(i), FRA believes
that additional requirements should apply to all locomotives left
outside a yard except if directly adjacent to the yard. Accordingly,
FRA includes those requirements under Sec. 232.105.
During the meetings of the RSAC SWG, representatives of the labor
unions proposed requiring the installation of locking mechanisms on all
locomotives covered by this rulemaking. AAR subsequently committed that
all locomotives will be equipped with cab door locks by March of 2017.
AAR clarified its statement by ensuring that there will be no
distinction between interchange and non-interchange locomotives. In the
interest of codifying this deadline as applicable to the scope of this
proposed rule, paragraph (h)(1) requires that after March 1, 2017, each
locomotive left unattended outside of a yard be equipped with an
operative exterior locking mechanism. By no means does this requirement
limit AAR's ambition that its members equip additional locomotives
(e.g., switching locomotives inside a yard) in their respective fleets.
FRA is also including this requirement in Sec. 232.105 so that it
applies to all locomotives left unattended outside of a yard, but not
on a track directly adjacent to a yard, not just those locomotives
defined under Sec. 232.103(n)(6).
BLET expresses concern with a 2017 deadline, describing it as too
long. BLET also asserts that, without explanation or supporting data,
the proposed rule, in comparison to the RSAC recommendation, narrowed
the scope of the lock requirement to locomotives left outside of a
yard. In one-day snapshot surveys performed in 2004 and 2008, BLET says
that most respondents replied that there was no secured access to--or
security presence within--their rail yards. Many reported seeing
trespassers in the yard on the day they were surveyed, although the
second survey showed a marked decrease.
NTSB supports the labor union's suggestion that locking mechanisms
be applied to each covered locomotive within 18 months after the
effective date of this final rule.
NYSDOT supports the intent of this requirement, but notes that
while it requires all locomotives to have operative locks by 2017,
other than the language in paragraph (n)(8)(ii) for hazardous trains as
defined in paragraph (n)(6)(i), there is no requirement for the train
crew to apply the lock. NYSDOT suggests additional language to that
included in paragraph (n)(8)(ii) to cover all unattended locomotives on
mainline tracks and sidings regardless of the lading carried by the
train.
Given that the railroads are already voluntarily installing locks
and have committed to a reasonable deadline of March 2017, which is
supported by factors highlighted by AAR during the RSAC process, FRA
does not believe it is appropriate to accelerate the process by
regulation. Without additional information, which was not provided in
comments, shortening the deadline by regulation could be viewed as
arbitrary. Nevertheless, at the time this final rule becomes effective,
it will be close to 18 months away from that deadline anyway, thus
rendering BLET's and NTSB's concerns moot.
FRA also notes that AAR has issued standards regarding locomotive
cab securement and has committed to install locks on all locomotives.
See Locomotive Cab Securement, S-5520, AAR Manual of Standards and
Recommended Practices, Section M-Locomotives and Locomotive Interchange
Equipment (May 2014). Regardless of whether they operate in or out of
yards, this final rule only requires lock installation on locomotives
left unattended outside of yards, where trespasser access is arguably
easier. Nevertheless, as previously discussed under paragraphs
(n)(7)(ii) and (n)(8)(ii), any locomotive covered under paragraph
(n)(6) with an installed locked left unattended anywhere, either within
or outside of a yard, must have
[[Page 47370]]
that lock applied. Ultimately, this may provide each railroad with the
flexibility to determine on its own whether to install and operate
locks on locomotives dedicated to switching operations and confined to
classification yard limits.
Paragraphs (h)(2) and (h)(3) are meant to ensure that locking
mechanisms, if broken or otherwise inoperative, are repaired in a
reasonable timeframe. FRA expects that each locomotive equipped with a
locking mechanism will be inspected and maintained at the time of the
locomotive's periodic inspection. See 49 CFR 229.23. If a locking
mechanism is found inoperative at any time other than the periodic
inspection, paragraph (h)(3) requires the railroad to repair it within
30 days. However, if the periodic inspection falls within the 30-day
limit for repair, FRA would expect that the lock will be repaired at
the time of the periodic inspection in accordance with the requirement
in paragraph (h)(2). For instance, if a locomotive engineer were to
find the lock inoperative during a daily inspection and the periodic
inspection was scheduled 15 days later, then FRA would expect that the
railroad could repair the locking mechanism at the time of the periodic
inspection. Alternatively, if the same situation were to arise but the
periodic inspection was scheduled to occur 45 days later, the railroad
would be expected to repair the locking mechanism prior to the time of
the periodic inspection to comply with the 30-day time limit in
paragraph (h)(3).
For the purposes of this regulation, ``operative'' means that, when
applied, the locking mechanism will reasonably be expected to keep
unauthorized people from gaining access into a locomotive while the
locomotive is unoccupied. However, in doing so, the railroad must
assure that ingress and egress is provided for in normal circumstances
and emergencies. In the NPRM, FRA sought comments on this
understanding. FRA also sought information and comments on the
possibility of a qualified person having difficulty accessing the
locomotive cab in the event of an unintentional movement of the
equipment.
NYSDOT believes that the proposed definition is reasonable. NYSDOT
understands that whatever type of locking mechanism is provided by the
railroad would be based upon its effectiveness and appropriate
functionality to accommodate the required ingress and egress under all
conditions.
Since the railroad would decide upon the locking mechanism, NYSDOT
suggests relying upon the railroad to develop appropriate procedures to
address this scenario. In the event there is unintentional movement of
the equipment as described, and access to the cab is problematic,
NYSDOT would expect that the qualified person would likely attempt to
apply the hand brake from the outside of the locomotive.
In its comments, AAR and ASLRRA indicated that the railroads have
evaluated this concern and that qualified employees will all have keys
to locked locomotives. AAR and ASLRRA also say that, if the qualified
employee has lost his or her company issued key, the train can be
accessed by a non-lead locomotive, which is where the train could be
placed into emergency.
For the moment, FRA is satisfied with AAR's and ASLRRA's
explanation that, if locked out of a rolling locomotive, a qualified
employee could alternatively enter a non-lead locomotive and make an
emergency brake application. FRA also recognizes that, just as with a
rolling consist of cars without a locomotive, the qualified employee
would be expected to apply the outwardly-facing hand brakes in such a
situation.
Under paragraph (h)(4), if the railroad discovers that a locking
mechanism has become inoperative in the interval between a locomotive's
periodic inspection dates, this provision does not require that a
locomotive be removed from service. Railroads may continue to use the
locomotive without an operative lock. However, if such equipment
covered by Sec. 232.103(n)(6) is left unattended and without an
operative lock, then the railroad must default to the alternative
securement option governing the reverser under proposed Sec.
232.103(n)(8)(ii) or fall under the exception provided per proposed
Sec. 232.103(n)(8)(iii).
V. 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, and determined to be significant under
Executive Order 12866, Executive Order 13563, and DOT policies and
procedures. 44 FR 11034, Feb. 26, 1979. For purposes of analyzing this
rule, FRA uses as a baseline the rules in effect at the time of
publication, including Emergency Order 28. The analysis separately
quantifies ongoing costs of Emergency Order 28 that might exceed
business practices that would remain in effect in absence of Emergency
Order 28. It is reasonable to assume that most of the requirements of
Emergency Order 28 would continue as business practices; for example
the railroads have already improved their practices in determining the
proper application of hand brakes to secure a train and the
verification that the hand brake application is adequate. Further, the
exterior locking mechanism provision in the rule reflects an existing
commitment among AAR member railroads, which had been working on
developing a lock standard applicable to its members for over a year,
so the costs associated with this provision are limited to non-AAR
member railroads, primarily short line railroads. FRA received comments
that the analysis should include the total cost of installing locks;
however, the analysis only counts costs that would not have been
incurred in the absence of the final rule. Since AAR members were in
the process of installing locks compliant with the final rule on the
affected locomotives, FRA will not include those costs in this
analysis. This analysis also does not include sunk costs.
FRA was able to quantify the costs of the final rule, but not able
to quantify all the benefits, as many of the benefits are the result of
reducing risk from high consequence, low probability events that are
not easily quantified. Thus, FRA will discuss the benefits that can be
quantified, that by themselves justify the cost of the final rule and
will provide a brief discussion of the non-quantified benefits. The
monetized discounted and annualized net benefits would be:
[[Page 47371]]
------------------------------------------------------------------------
Discounted value
-------------------------------
Discounted values Discount factor
-------------------------------
7% 3%
------------------------------------------------------------------------
Total................................... $1,076,984 $1,479,331
Annualized.............................. 95,009 96,538
------------------------------------------------------------------------
Statement of Need
The United States has experienced a dramatic growth in the quantity
of flammable materials being shipped by rail in recent years. According
to the rail industry, in the U.S. in 2009, there were 10,800 carloads
of crude oil shipped by rail. In 2013, there were 400,000 carloads. In
the Bakken region, over one million barrels a day of crude oil was
produced in March 2014,\19\ most of which is transported by rail.
Transporting flammable material carries safety and environmental risks.
The risk of flammability is compounded in the context of rail
transportation because petroleum crude oil and ethanol are commonly
shipped in large unit trains. In recent years, train accidents
involving a flammable material release and resulting fire with severe
consequences have occurred with increasing frequency (i.e. Arcadia, OH,
Plevna, MT, Casselton, ND, Aliceville, AL, Lac-M[eacute]gantic,
Quebec).
---------------------------------------------------------------------------
\19\ Information regarding oil and gas production is available
at the following URL: https://www.eia.gov/petroleum/drilling/#tabs-summary-2.
---------------------------------------------------------------------------
Shippers and rail companies are not insured against the full
liability of the potential consequences of incidents involving
hazardous materials. As a result, these events impose externalities.
Among Class I railroads, a self-insured retention of $25 million is
common, though it can be as much as $50 million, especially when PIH/
TIH material is involved. Smaller regional and short line carriers,
i.e., Class II and Class III railroads, on the other hand, typically
maintain retention levels well below $25 million as they usually have a
more conservative view of risk and usually do not have the cash-flow to
support substantial self-insurance levels. At this time, the maximum
coverage available in the commercial rail insurance market appears to
be $1 billion per carrier, per incident.\20\ While this level of
insurance is sufficient for the vast majority of accidents, it appears
that no amount of coverage is adequate to cover a higher consequence
event. One example of this issue is the incident that occurred at Lac
M[eacute]gantic, Quebec, in July of 2013. The rail carrier responsible
for the incident was covered for a maximum of $25 million in insurance
liability, and it had to declare bankruptcy because that coverage and
the companies remaining capital combined were insufficient to pay for
more than a fraction of the harm that was caused. This is one example
where rail carriers and shippers may not bear the entire cost of
``making whole'' those affected when an incident involving crude and
ethanol shipment by rail occurs.
---------------------------------------------------------------------------
\20\ See ``The Transportation of Hazardous Materials: Insurance,
Security, and Safety Costs,'' DOT Report to Congress, December 2009,
at https://www.dot.gov/office-policy/transportation-hazardous-materials-insurance-security-and-safety-costs.
---------------------------------------------------------------------------
FRA believes that the failure to secure equipment decreases the
safe transportation of goods by rail, and increases the possibility of
a higher-consequence event, particularly when dealing with a key train
transporting a material such as crude oil. It is difficult to assess
how much of the decrease in safety is from railroads not requiring
their employees to secure equipment or from employees failing to comply
with railroad securement requirements. The Lac-M[eacute]gantic accident
shows that the railroads were not successful using operating rules in
effect at the time of the accident, perhaps because an employee did not
follow those rules or might not have had adequate guidance on what
constituted adequate securement. FRA believes that use of its authority
will enhance compliance with railroad issued orders. There may also
have been an issue of incomplete information--which can cause a market
failure--that was corrected in the wake of the Lac-M[eacute]gantic
accident and Emergency Order 28, in that railroads had not yet
developed the procedures required in response to Emergency Order 28.
This problem of incomplete information related to securement procedures
has been addressed, so it is not part of the baseline. Finally,
incomplete information also may be causing a market failure among some
railroads that have not put locks on their locomotives left outside
yards.
Cost-Benefit Analysis of Individual Sections
Following is a discussion of the regulatory costs and benefits
associated with each requirement.
Changes to the definition in Sec. 232.5 have no substantive impact
and do not result in any new costs or benefits.
Changes to Sec. 232.103(n)(2) will have negligible impact or real
burdens, but may increase compliance with existing rules. As noted
above, the changes to this paragraph merely clarify FRA's longstanding
interpretation, application, and enforcement of the existing
regulation.
Section 232.103(n)(6) lists types of trains and equipment covered
by Sec. 232.103(n)(7) and (n)(8), but does not directly impose any
specific requirements.
Section 232.103(n)(7)(i) prohibits leaving affected equipment
unattended on a main track or siding (except when that main track or
siding runs through, or is directly adjacent to a yard) until the
railroad has adopted and is complying with a plan identifying specific
locations or circumstances when the equipment may be left unattended.
Railroads already have developed and implemented such plans under
Emergency Order 28, so there is no cost to create such plans. The
initial revision and notification burden would have been in identifying
safety rationale related to such locations and circumstances, but that
has already been accomplished through compliance with Emergency Order
28. To the extent that railroads further revise their plans in the
future, there will be some additional costs. This will not occur
frequently, resulting in nominal burden in the future.
Section 232.103(n)(7)(ii), an expansion of Emergency Order 28 that
applies to trains left unattended on main tracks that are in or
adjacent to yards, requires trains left in yards to have the locomotive
cab locked, or the reverser removed, if possible, but would not impose
additional requirements in a yard if the locking mechanism is
inoperative. This portion of the final rule's requirements is part of
long-standing railroad business practices, and will add no costs or
benefits.
In paragraph (n)(8)(i), there is a new requirement, which in almost
all cases was already in place as a business practice. It requires that
the qualified individual who secures the train verify with a second
qualified individual that
[[Page 47372]]
the train has been secured in accordance with the railroad's operating
rules, including whatever the employee has done to ensure that an
adequate number of hand brakes have been employed. On a train with two
or more crew members, the train crew will verify among themselves. This
would happen as a matter of business practice. In the event that the
train is secured by a single person crew, the verification would
involve a second person, typically a yardmaster, who is also qualified.
All safety-critical activities by train crews are communicated to at
least one additional person as a standard operating practice. This is
part of the railroads' conscious effort to avoid a single point human
factor failure that can cause an accident. FRA believes that less than
one-tenth of one-percent (0.1%) of the affected trains will be operated
by a single crew member when securing in a yard, because there are very
few single person crews operating affected trains, and because many
affected trains will be operated continuously to their destination.
Some trains will be secured outside of yards, but that burden is
discussed below in this analysis. In this analysis, FRA assumes that
there will be 1,000 affected trains per day, of which 0.1% (1 daily or
365 annually) would have a single person crew. Further, FRA assumes
that in the absence of the final rule, 95 percent of railroads would
require the verification as a business practice. This means that over
20 years, only 365 trains would be affected. FRA believes the
communication will take 15 seconds of two qualified individuals' time,
or 30 labor seconds. There is no cost to initiate communication,
because in any event a person leaving a train would have to communicate
with the yardmaster to let the yardmaster know where the crew member
left the train and to let the yardmaster know the train would no longer
be moving in the yard. Over the 20-year life, the undiscounted value
would be 182.5 labor minutes or roughly 3 labor hours. At $50 per hour
the cost over 20 years, undiscounted cost would be $150, and the annual
cost would only be $7.50. FRA requested comments on the current and
future levels of train operations impacted and the labor estimates
associated with compliance, but did not receive any comments which
directly discussed costs or benefits of this provision.
Section 232.103(n)(8)(i) requires that where a freight train or
standing freight car or cars as described in paragraph (n)(6) is left
unattended on a main track or siding outside of a yard, an employee
responsible for securing the equipment shall verify with another person
qualified to make the determination that the equipment is secured in
accordance with the railroad's processes and procedures. This will
impose no new burden nor create any new benefit since it is identical
to what is currently required by Emergency Order 28. Where train crews
with more than one crew member are involved, then the crew members
would need to discuss the securement and ensure that they had secured
the correct number of hand brakes and taken other steps to properly
secure the train. Where single member crews are involved, then the crew
member would have to call the dispatcher or some other qualified
railroad employee to verify with the qualified employee that the train
had been properly secured. As noted above, Emergency Order 28 requires
this communication to occur presently, thus railroads already have
these procedures established and continuing such practice will not
impose an additional cost. Thus, the changes to Sec. 232.103(n) would
create no new benefits or costs, compared to the base case.
Section 232.103(n)(8)(ii) requires that the controlling locomotive
cab of a freight train described in paragraph (n)(6) shall be locked on
locomotives capable of being locked or the reverser on the controlling
locomotive shall be removed from the control stand and placed in a
secured location. In the case of a locomotive with an operative lock,
the compliance will simply be locking the lock. Railroads all require
their employees to lock unattended locomotives equipped with operative
locks, for both safety and security reasons. This provision of the
final rule codifies current business practices, and creates no new
benefits or costs. Under Sec. 232.105(h) each locomotive will have
been equipped with a lock, and if there should be a lock malfunction,
removing the reverser will be sufficient to comply. Removing the
reverser of such a locomotive is likely to be a business practice
required by operating rules except for two conditions. The first
condition is where the locomotive does not have a removable reverser.
Such locomotives are relatively old and are rarely used outside of yard
operations. The second condition is where there is a reason to keep the
locomotive running while standing. Almost all locomotives can idle with
the reverser removed, but there are no locomotives that can run at
speeds above normal idle, sometimes needed for cold weather conditions,
with the reverser removed. If a lock should malfunction under either of
those two conditions, a railroad could comply by several means:
A railroad could remove the reverser; almost all
locomotives can idle with the reverser removed, except in very cold
weather;
A railroad could attend the locomotive, which could
involve either placing a qualified individual aboard the locomotive
while it stands, or boarding a new crew and having the new crew
continue moving the train toward its destination. The most economical
way to accomplish this would be to board a new crew and take the train
further along its route. The railroad was going to have to call a crew
to move the train on its route anyway, so if the railroad has
sufficient time to call a new crew, generally two hours, the railroad
would call a crew earlier than originally planned. Dispatchers
continually adjust the flow of trains, and adding a single train
earlier than originally planned would have little effect on operations
in almost all cases. If the train is already close to its destination,
this would not be practical if the consignee unloading or transfer
operation were not available, or if the train could not proceed for
some other reason, such as track congestion or blockage, the railroad
would not simply board the next crew and the railroad would have to
comply by some other means;
A railroad could arrange for the train to stop in a yard,
or on a main track in or adjacent to a yard. This might involve having
the dispatcher expedite the train so it can make a yard further along
its route, which might have minimal costs;
A railroad could have the train crew switch locomotives,
putting a lock-equipped locomotive in the lead, which would be costly
and impractical; or
A railroad could arrange to have the lock repaired before
leaving the train unattended, which would also carry a cost.
The burdens of Sec. 232.103(n)(8)(ii) on main track or sidings
outside of yards are imposed by Emergency Order 28, so they are not new
burdens, and they still are relatively small. For purposes of this
analysis, FRA conservatively estimates that 1,000 trains per day \21\
will be subject to the requirements of Sec. 232.103(n)(8)(ii), but
that 90 percent of them will be excepted under Sec.
232.103(n)(8)(iii), because they will have routing that calls for
unattended stops only in or adjacent to yards.\22\
[[Page 47373]]
That leaves 100 trains per day, or 36,500 trains per year. FRA
estimates that one in 500 locomotives or 73 per year will have a
defective lock. FRA also estimates that 50 percent, or 36.5 locomotives
per year, would have been left running while unattended, or would have
been equipped with a non-removable reverser. A locomotive would be left
running either to avoid cold weather starting or to avoid a brake test
when the next crew takes charge of the train. If the locomotive would
have been left running to maintain brake pressure, the train crew can
leave one of the trailing locomotives running to maintain brake
pressure, and lock its door. FRA estimates that in all but ten cases
per year, the railroad will have been notified of the lock malfunction,
and will have the next crew or current crew take the train to a yard or
its destination, avoiding any costs.\23\
---------------------------------------------------------------------------
\21\ In an analysis of the safety of HHFTs, PHMSA estimates that
there are 150 trains per day. FRA's estimate of 1,000 trains per day
is conservative.
\22\ FRA assumes that railroads will fix locks in or adjacent to
the first yard available, as a business practice, and will leave any
unattended trains in yards locked.
\23\ Taking the train further along its route is the least
costly method of attending a train. The railroad is obligated to
provide a crew to move the train further along its route anyway, and
train crews are on call. Once the train gets to the first yard on
its path, the lock will be repaired. Unloading facilities are not
part of the railroad, and FRA does not regulate securement at
unloading facilities, which are subject instead to PHMSA
regulations.
---------------------------------------------------------------------------
Trains per year:
Affected by the final rule: 365,000.
No planned stop outside yards (90 percent of 365,000): 328,500.
Planned stop outside yards (365,000-328,500): 36,500.
Defective lock and planned stop outside yard (36,500/500): 73.
Removing reverser provides compliance (50 percent of 73): 36.5.
Further action needed (73-36.5): 36.5.
Sent on to next yard or destination: 26.5.
Remedial action must be taken: 10.\24\
---------------------------------------------------------------------------
\24\ In the NPRM, FRA requested comment on the number of cases
per year where remedial action would be required, and on the
assumptions relied upon to estimate that number. Since FRA did not
receive any such comments, it continues to rely on the assumptions
used in the NPRM.
---------------------------------------------------------------------------
FRA believes that in half the cases remaining (five cases), the
railroad will repair or replace the lock, and in the other half (also
five cases), the railroad will have personnel attend a standing train.
The railroad may repair or replace the lock, in which case the cost is
the additional cost of repairing the lock outside of a yard. A railroad
using AAR standard locks may attach an additional locking mechanism,
not compliant with AAR standards until the AAR standard lock can be
replaced. This appears to be the lowest cost means of complying with
the rule. If a hasp is present, the railroad may have provided the crew
with a spare lock, in which case the cost is negligible, two of the
five cases per year. If a hasp is not present, the railroad may have
repair personnel locate to the train, estimated at an average cost of
$0.56 per mile for 20 miles, or $11.20 per incident. In addition, the
installation is expected to require two hours service time, including
travel, for two repair personnel, at an estimated cost of $50 per
person hour,\25\ for a labor cost of $200. The installation is expected
to cost $100 if the railroad does not install a standard lock, one case
per year. The total cost for this repair would be $11.20 for
transportation, $100 for materials, plus $200 for labor, a total of
$311.20. If the railroad replaces the existing lock, then no materials
cost is added, because the railroad could have been expected to replace
the lock at the next yard. The total cost to replace an existing lock
would be $11.20 for transportation, plus $200 for labor for a total of
$211.20. The total cost to replace existing locks is 2 times $211.20,
or $422.40. The total cost for lock replacement includes the negligible
costs if the crew has a lock that fits an existing hasp, plus $311.20
to install a new hasp and lock, plus $422.20 to replace existing locks,
a total of $733.60. In any estimate of net present value, the labor
costs for lock installation should not be incremented by a factor to
account for growth in real wages, because the growth in real wages is
assumed to be directly related to productivity. The more productive the
worker, the fewer hours needed to install a lock, including reductions
in time needed to travel. FRA believes that small railroads will not be
affected by these costs because small railroads will use a lock and
hasp system and will be able to replace the lock before the train is
left stopped, should the lock malfunction.
---------------------------------------------------------------------------
\25\ Surface Transportation Board (STB) wage data show that the
average compensation for personnel engaged in Maintenance of
Equipment & Stores was $28.46 in 2013. FRA adds a 75 percent burden
which would yield $49.81 per hour, which is rounded here to $50 per
hour.
---------------------------------------------------------------------------
FRA estimates the cost to switch locomotives at $150 for the cost
of switching and at least $500 for a brake test after switching, for a
total of $650 per train. A railroad is unlikely to do this unless the
purpose of keeping engines running was to keep the engines warm on a
cold day, no stop was likely at a location where the lock could be
repaired, and at least one more stop was likely on the train's route.
The likelihood of such a situation is so small as to be negligible. FRA
does not believe this is a likely response, and this value is not used
any further.
FRA estimates the cost to attend a standing train at $470 per
incident,\26\ or a total of $2,350 per year for 5 incidents, which
assumes a burdened rate for labor of $51.04 per hour.
---------------------------------------------------------------------------
\26\ STB wage data show that the average compensation for
personnel engaged in Train, Yard and Engine was $29.16 in 2013. FRA
adds a 75 percent burden which would yield $51.04 per hour. The
minimum payment for qualified personnel called out is a fixed sum or
hourly pay, whichever is greater. The fixed amount is roughly equal
to 8 hours' pay. There may be instances where the duration of the
assignment exceeds 8 hours. FRA assumed a 9 hour average pay, or 9
times $51.04, for a burdened wage of $459.32 per incident. FRA
further assumed $11.20 in travel costs, or a total cost of $470.52
per incident, which FRA rounded to $470 per incident.
\27\ Rounds to $3,100.
---------------------------------------------------------------------------
In summary of the foregoing costs associated with locomotive locks,
FRA believes the likely responses to inoperative locking mechanisms,
where the railroad cannot simply remove a reverser or move the train,
will break down as follows:
------------------------------------------------------------------------
Annual total
Approach taken Unit cost Frequency cost
------------------------------------------------------------------------
Place Lock in Existing Hasp... $0.00 2 $0.00
Install New Hasp and Lock..... 311.20 1 311.20
Replace Existing Lock......... 211.20 2 422.40
Attend Train.................. 470.00 5 2,350.00
-----------------------------------------
Total..................... ............ ............ \27\
3,083.60
------------------------------------------------------------------------
[[Page 47374]]
The total cost imposed by Sec. 232.103(n)(8)(ii) would be $2,350
plus $311.20 plus $411.40 per year, a total of $3,083.60, or roughly
$3,100, per year.
To more accurately annualize these costs, however, FRA must also
consider the direct wage portion of the costs attending trains and
provide for annual real wage increases. Of the aforementioned burdened
wage rate, $29.16 is the direct wage portion. Multiplying the direct
wage portion hourly rate against 9 hours pay per event with 5 events
per year, the direct wage portion annual cost total is $1,312.33, which
we will round to $1,300. These direct wage costs for train personnel
will need to be incremented by a factor of 1.18 percent per year to
account for increases in real wage, induced by increased productivity
in accordance with estimates from the Congressional Budget Office.\28\
---------------------------------------------------------------------------
\28\ Based on real wage growth forecasts from the Congressional
Budget Office, DOT's guidance estimates that there will be an
expected 1.18 percent annual growth rate in median real wages over
the next 30 years (2013-2043).
---------------------------------------------------------------------------
FRA compiled the following summary table, using initial annual
costs of $3,100 (i.e., the first year's annual locomotive locks costs
total rounded up), broken into direct wage costs for simply attending
trains, $1,300--which are increased every year by 1.18 percent to
account for growth in real wages, whereas the first year's increase
would result in a direct wage cost of $1,315.34--and other costs of
$1,800, including initial burden on wages to attend trains, labor costs
to repair or replace locks, where productivity growth is assumed to
match growth in real wages, and costs for other items. The costs are
all the result of actions taken to comply with attendance of a train in
the event a locking mechanism becomes inoperative:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Discounted value
-----------------------------------------------
Year Wage inflator Direct wage All other Discount factor
(%) cost costs Total costs -------------------------------
7% 3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015.................................................... 101.18 $1,315.34 $1,800 $3,115.34 $3,115 $3,115
2016.................................................... 102.37 1,330.86 1,800 3,130.86 2,926 3,040
2017.................................................... 103.58 1,346.57 1,800 3,146.57 2,748 2,966
2018.................................................... 104.80 1,362.45 1,800 3,162.45 2,582 2,894
2019.................................................... 106.04 1,378.53 1,800 3,178.53 2,425 2,824
2020.................................................... 107.29 1,394.80 1,800 3,194.80 2,278 2,756
2021.................................................... 108.56 1,411.26 1,800 3,211.26 2,140 2,689
2022.................................................... 109.84 1,427.91 1,800 3,227.91 2,010 2,625
2023.................................................... 111.14 1,444.76 1,800 3,244.76 1,888 2,561
2024.................................................... 112.45 1,461.81 1,800 3,261.81 1,774 2,500
2025.................................................... 113.77 1,479.06 1,800 3,279.06 1,667 2,440
2026.................................................... 115.12 1,496.51 1,800 3,296.51 1,566 2,381
2027.................................................... 116.47 1,514.17 1,800 3,314.17 1,472 2,324
2028.................................................... 117.85 1,532.04 1,800 3,332.04 1,383 2,269
2029.................................................... 119.24 1,550.11 1,800 3,350.11 1,299 2,215
2030.................................................... 120.65 1,568.40 1,800 3,368.40 1,221 2,162
2031.................................................... 122.07 1,586.91 1,800 3,386.91 1,147 2,111
2032.................................................... 123.51 1,605.64 1,800 3,405.64 1,078 2,060
2033.................................................... 124.97 1,624.58 1,800 3,424.58 1,013 2,012
2034.................................................... 126.44 1,643.75 1,800 3,443.75 952 1,964
-----------------------------------------------------------------------------------------------
Total............................................... .............. .............. .............. .............. 36,685 49,909
-----------------------------------------------------------------------------------------------
Annualized.......................................... .............. .............. .............. .............. 3,236 3,257
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 232.103(n)(8)(ii) also provides a direct safety benefit of
this rulemaking. Only about 36.5 trains per year are likely to be
affected, as described above. FRA believes that in the absence of this
rulemaking all locomotives would be equipped with locks as a business
practice, as described below. FRA believes that as a business practice,
the locomotives that can be locked will be locked, and the remaining
locomotives that have reversers that can be removed that are not left
running would have their reversers removed and secured. FRA believes
that trains left running with reversers in place are the most
vulnerable to serious harm as a result of casual mischief. It is
possible that a vandal moving a reverser in an unattended running
locomotive could cause a higher-consequence event, given the kinds of
materials regulated here. Further, individuals who believe they are
doing some good--for example first responders who believe the train is
in a dangerous location--may also be tempted to try to move the train.
If they lack proper skills, this movement creates a risk. FRA does not
have a good way to estimate the likelihood of a serious event from such
a small number of affected trains; however, given the kinds of trains
involved, FRA finds that the costs are justified by the benefits of
risk reduction.
Section 232.103(n)(8)(iii) provides an exception for trains left
unattended on main tracks in or adjacent to yards, and does not change
burdens from Emergency Order 28. The communication requirement in Sec.
232.103(n)(9) is unchanged from Emergency Order 28, and will impose no
new burden nor create any new benefit for train crews with more than
one crew member. Section 232.103(n)(10) requires railroads to adopt and
comply with procedures to ensure that, as soon as safely practicable, a
qualified employee verifies the proper securement of any unattended
equipment when the railroad has knowledge that a non-railroad emergency
responder has been on, under, or between the equipment. This was
required by Emergency Order 28 and remains unchanged from Emergency
Order 28, and will impose no new burden nor create any new benefit. FRA
also believes that after the Lac M[eacute]gantic accident that
railroads would have adopted this practice even
[[Page 47375]]
in the absence of Emergency Order 28, as a standard business practice,
so FRA is confident that this section creates no new benefits or costs.
One requirement of Emergency Order 28 that is not included in the
final rule is a requirement that employees who are responsible for
securing trains and vehicles transporting Appendix A Materials must
communicate to the train dispatcher the number of hand brakes applied,
the tonnage and length of the train or vehicle, the grade and terrain
features of the track, any relevant weather conditions, and the type of
equipment being secured; train dispatchers must record the information
provided; and train dispatchers or other qualified railroad employees
must verify and confirm with the train crew that the securement meets
the railroad's requirements. The final rule includes verification
procedures but does not include the recordkeeping required by Emergency
Order 28. FRA's Paperwork Reduction Act analysis of the recordkeeping
requirements shows the annual burden at 867 hours to notify the
dispatcher to make the record, and an additional 867 hours to make the
record. FRA estimates that there will be an average of 26,000
communications (100 instances on 260 days per year) to dispatchers
triggering the recording requirement, which takes an average of four
minutes to complete, for a total of 1,734 hours. If the value of the
employees' time is $50 per hour, the annual cost of the Emergency Order
28 recordkeeping requirement is $86,700, and that cost would be
eliminated by the final rule. FRA believes the recordkeeping
requirements have been relatively more onerous for smaller railroads,
but does not have a breakdown of the proportion of the cost reduction
benefit that will accrue to small railroads.
Section 232.105(h) requires, after March 1, 2017, that each
locomotive left unattended outside of a yard shall be equipped with an
operative exterior locking mechanism. AAR standard S-5520 requires that
each locomotive left unattended outside of a yard shall be equipped
with an operative exterior locking mechanism, and requires that
locomotives be equipped in order to be used in interchange service.
These mechanisms will meet the requirements of Sec. 232.105(h). FRA
believes that for Class I and Class II railroads, all costs and
benefits of Sec. 232.105(h) will be a result of business practices
because their locomotives operate in interchange service. These
railroads are already in the process of installing exterior locking
mechanisms on all of their locomotives that do not operate exclusively
in yard service. FRA further believes that small railroads have already
equipped virtually all of their locomotives with exterior locking
mechanisms. This was discussed at RSAC meetings.
FRA believes that the reason Class I and Class II railroads have
just recently started installing locking mechanisms on their
locomotives is that until recently there was no standard for keying the
locking mechanisms. Locomotives of these railroads operate in
interchange service and can move from railroad to railroad. If each
railroad had to maintain a set of keys for all other railroads'
locomotives, that would have been cumbersome. The recent, common keyed,
industry standard provides a solution, and allows the business practice
of installing locking mechanisms to proceed.
FRA believes that, for smaller railroads, locking locomotive cabs
is a good business practice that already takes place because it avoids
vandalism and locomotive cab intruders. Several reports indicate that a
locomotive belonging to the Adirondack Scenic Railroad was vandalized
on or around October 15, 2013.\29\ Damage to the locomotive was
approximately $50,000, and does not include lost revenue. Anecdotal
reports are that the vandals removed the copper wiring, which has value
as scrap. This event was not reported to FRA. This is an example of
unreported vandalism, and FRA staff believes that a great deal of
vandalism is unreported, largely because the events do not meet all the
requirements that would result in filing an accident/incident report
with FRA. Over the years, FRA staff has received several first-hand
accounts of vandalism or cabs occupied by intruders. FRA believes that
the likelihood of vandalism or cabs being occupied by trespassers
increases as the likelihood of railroad observation of the train
decreases. Most small railroads operate in environments with a lower
than average likelihood of observation. FRA believes that vandalism is
also more likely to have a severe impact on a small railroad's
operations since these railroads do not have many spare locomotives or
personnel. If a railroad has ten locomotives and five get vandalized,
its operations will be severely impacted. Likewise if a small
railroad's operating crew is injured by an intruder in a cab, the
operations for that day will likely be halted. As indicated by small
railroad representatives at RSAC, small railroads do generally equip
their locomotives with exterior cab locks. FRA believes that if all
small railroads considered the impacts of vandalism and intruders, the
small railroads would and have installed exterior cab locks.
---------------------------------------------------------------------------
\29\ Adirondack Scenic Railroad Locomotive Vandalized, North
County Public Radio Web site, October 15, 2013.
---------------------------------------------------------------------------
The unit cost for a locking mechanism meeting AAR standard S-5520
is $215. FRA believes that smaller railroads could comply with Sec.
232.105(h) with a simpler lock and hasp system, for a unit cost of
$100. Given the smaller number of locomotives, personnel, territory,
and facilities, use of this type of system would not be problematic.
FRA requested comment regarding this estimate. ASLRRA commented that
its members claim that the unit cost will be greater for small
railroads than the $210 per unit estimated for AAR type locks. FRA
rejects the contention that a hasp and padlock would cost more than
$100 per unit, based on observation of hasp and lock costs at hardware
stores, and FRA staff knowledge of the costs to install a hasp by
welding, based on actual work experience as Class III railroad
employees. Nevertheless, FRA points out that the business benefits of
installing locks far exceed the unit costs of $210 per locomotive for
AAR type locks, so even if FRA were to accept the ASLRRA comment, the
business benefits of locks would still exceed their costs.
FRA believes that no more than 500 locomotives belonging to Class
III railroads lack locking mechanisms that comply with Sec.
232.105(h). Thus, the cost to install the locking mechanisms would be
no more than 500 times $100, or $50,000.
Based on anecdotal information from FRA staff, between 1 percent
and 3 percent of locomotives are vandalized each year. Some vandalism
is relatively minor, such as graffiti sprayed on the walls of the cab,
but some is much more serious, for example damage or removal of
electrical equipment, or of instruments. More modern cabs have very
expensive control systems, with one or more monitor screens. It would
not be difficult for vandals to cause more than $50,000 in damage to a
modern cab. The repairs not only would involve removal and replacement
of damaged components, but would also involve calibration. For purposes
of this analysis, FRA is assuming 1 percent of locomotives would be
vandalized each year if not equipped with locks, and the mean cost of a
vandalism incident is $3,000. The expected cost of vandalism is
therefore $30 per locomotive year for unequipped locomotives.
Locomotive cabs are also occupied by unauthorized occupants,
usually homeless, from time to time. Based on staff anecdotal data, FRA
assumes that
[[Page 47376]]
five percent of locomotive cabs are occupied at least once per year.
FRA believes that the cost per incident is $100, including costs to
clean debris and inspect to determine that nothing in the cab has been
damaged. This cost represents 20 minutes delay with a train delay cost.
The economic impact of slowing trains depends upon multiple factors
including other types of trains, other train speeds, dispatching
requirements, work zones, and topography. Looking at numerous
variables, for purposes of another analysis, DOT estimated the average
cost of a train delay to be $500 per hour.\30\ This cost estimate was
determined by reviewing costs associated with crew members, supply
chain logistic time delays based on various freight commodities, and
passenger operating costs for business and other travel. It is
reasonable to assume that delays to smaller railroad operations are
lower in cost. Thus, for purposes of this analysis, for the impacted
railroads, FRA is using an hourly train delay cost of $300 per hour.
FRA requests comment regarding this assumption. Thus the cost per year
for 500 locomotives would be 500 times 5 percent times $100, or $2,500,
or $5 per locomotive year. Added to the vandalism cost the total cost
of exposure would be $35 per locomotive year. If an installation of a
locking mechanism costs $100, it would take less than 3 years for the
locks to pay for themselves (before applying discount factors). FRA
believes that in the absence of this rule most small railroads would
apply locking mechanisms to locomotives left unattended outside of
yards, especially in light of the vandalism incident on the Adirondack
Scenic Railroad. FRA believes the net cost of installing and using the
locks for small railroads is less than zero because the installation
cost is more than offset by the business benefits. FRA did not receive
any comments taking issue with FRA's estimates of locomotive vandalism
costs.
---------------------------------------------------------------------------
\30\ In analyzing the NPRM, FRA noted that PHMSA's proposed rule
``Hazardous Materials: Enhanced Rail Tank Car Standards and
Operational Controls for High-Hazard Flammable Trains'' applied a
$500 per hour estimate of the cost of delay for the rail network
overall. 79 FR 45015, Aug. 1, 2014. There were no comments to the
NPRM taking issue with that estimate, and FRA continues to use that
estimate here.
---------------------------------------------------------------------------
FRA assumes the locks will be purchased in the first year, because
the business benefit is apparent. Thus, the costs are $100 times 500
locomotives, or $50,000, the same at both discount rates because 2015
is not discounted.
----------------------------------------------------------------------------------------------------------------
Discounted value
-------------------------------
Year Total costs Discount factor
-------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
2015............................................................ $50,000.00 $50,000 $50,000
-----------------------------------------------
Total....................................................... 50,000.00 50,000 50,000
-----------------------------------------------
Annualized.................................................. .............. 4,411 3,263
----------------------------------------------------------------------------------------------------------------
A more serious crime with far more potential to cause harm off the
railroads' rights-of-way is theft and operation of a train. In 1975,
two teenagers stole a switching locomotive and operated it until it
crashed.\31\ FRA staff has received anecdotal information regarding
other locomotives being stolen and operated, but permanent records of
the incidents could not be found. If a train described in Sec.
232.103(n)(6) were stolen and operated, it could easily cause the kinds
of harm seen at in the Graniteville, South Carolina accident and the
Lac M[eacute]gantic incident, with societal costs of $260 million to
$1.2 billion. The Lac M[eacute]gantic incident is illustrative of, but
not necessarily the outer limit of, a high-consequence event scenario
for derailment of a paragraph (n)(6) train. The derailment occurred in
a small town with a low population density by U.S. standards, but
resulted in the deaths of 47 people and the destruction of much of the
downtown area. A year after the event, decontamination of the soil and
water/sewer systems is still ongoing. Cleanup of the lake and river
that flows from it has not been completed, and downstream communities
are still using alternative sources for drinking water. Initial
estimates of the cost of this event were roughly $1 billion, but the
cleanup costs have doubled from initial estimates of $200 million to at
least $400 million, and the total cost to clean up, remediate, and
rebuild the town could rise as high as $2.7 billion. The frequency and
magnitude of these events is highly uncertain. It is, therefore,
difficult to predict with any precision how many of these higher
consequence events may occur over the coming years, or how costly these
events may be. In the worst case scenario for a fatal event, the
results could be several times the damages seen at Lac M[eacute]gantic
both in loss of life and other associated costs.
---------------------------------------------------------------------------
\31\ Pierce Haviland, The Putnam Division, last updated November
10, 2010, available at https://piercehaviland.com/rail/putnam.html
This incident was probably not reportable because it occurred on an
abandoned railroad, no longer part of the general system of rail
transportation.
---------------------------------------------------------------------------
In estimating the damages of a higher-consequence event, we begin
with the current estimated damages of Lac M[eacute]gantic. We used this
accident to illustrate the potential benefits of preventing or
mitigating events of this magnitude. It is challenging to use this one
data point to model potential damages of higher consequence events that
differ in nature from the Lac M[eacute]gantic accident. However, as the
volume of crude oil shipped by rail continues to grow, it is reasonable
to assume that events of this magnitude may occur.
By installing locks to avoid such dangers, the benefits indicated
in the following table are $17,500 per year ($35 times 500
locomotives), starting in 2016, the year after the locks are installed.
[[Page 47377]]
----------------------------------------------------------------------------------------------------------------
Discounted value
-------------------------------
Year Total benefits Discount factor
-------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
2015........................................................... $0.00 $0 $0
2016........................................................... 17,500.00 16,355 16,990
2017........................................................... 17,500.00 15,285 16,495
2018........................................................... 17,500.00 14,285 16,015
2019........................................................... 17,500.00 13,351 15,549
2020........................................................... 17,500.00 12,477 15,096
2021........................................................... 17,500.00 11,661 14,656
2022........................................................... 17,500.00 10,898 14,229
2023........................................................... 17,500.00 10,185 13,815
2024........................................................... 17,500.00 9,519 13,412
2025........................................................... 17,500.00 8,896 13,022
2026........................................................... 17,500.00 8,314 12,642
2027........................................................... 17,500.00 7,770 12,274
2028........................................................... 17,500.00 7,262 11,917
2029........................................................... 17,500.00 6,787 11,570
2030........................................................... 17,500.00 6,343 11,233
2031........................................................... 17,500.00 5,928 10,905
2032........................................................... 17,500.00 5,540 10,588
2033........................................................... 17,500.00 5,178 10,279
2034........................................................... 17,500.00 4,839 9,980
------------------------------------------------
Total...................................................... ............... 180,873 250,666
Annualized................................................. ............... 15,956 16,358
----------------------------------------------------------------------------------------------------------------
In addition to the above noted benefits, the final rule itself
reduces costs--by removing the requirement to record securement
activities, provided under Emergency Order 28--by $86,700 per year,
with no decrease in safety. In FRA's view, these savings more than
offset the minor costs associated with the final rule.
----------------------------------------------------------------------------------------------------------------
Discounted value
-------------------------------
Year Total benefits Discount factor
-------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
2015........................................................... $86,700.00 $86,700 $86,700
2016........................................................... 86,700.00 81,028 84,175
2017........................................................... 86,700.00 75,727 81,723
2018........................................................... 86,700.00 70,773 79,343
2019........................................................... 86,700.00 66,143 77,032
2020........................................................... 86,700.00 61,816 74,788
2021........................................................... 86,700.00 57,772 72,610
2022........................................................... 86,700.00 53,992 70,495
2023........................................................... 86,700.00 50,460 68,442
2024........................................................... 86,700.00 47,159 66,448
2025........................................................... 86,700.00 44,074 64,513
2026........................................................... 86,700.00 41,191 62,634
2027........................................................... 86,700.00 38,496 60,810
2028........................................................... 86,700.00 35,977 59,038
2029........................................................... 86,700.00 33,624 57,319
2030........................................................... 86,700.00 31,424 55,649
2031........................................................... 86,700.00 29,368 54,029
2032........................................................... 86,700.00 27,447 52,455
2033........................................................... 86,700.00 25,651 50,927
2034........................................................... 86,700.00 23,973 49,444
------------------------------------------------
Total...................................................... ............... 982,796 1,328,573
Annualized................................................. ............... 86,700 86,700
----------------------------------------------------------------------------------------------------------------
FRA calculated the total monetized costs of the rule, with the
costs for locomotive lock installation accounted for only for the first
year:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Discounted value
-------------------------------
Year Wage inflator Direct wage All other Total costs Discount factor
(%) cost costs -------------------------------
7% 3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015.................................................... 101.18 $1,315.34 $51,800 $53,115.34 $53,115 $53,115
[[Page 47378]]
2016.................................................... 102.37 1,330.86 1,800 3,130.86 2,926 3,040
2017.................................................... 103.58 1,346.57 1,800 3,146.57 2,748 2,966
2018.................................................... 104.80 1,362.45 1,800 3,162.45 2,582 2,894
2019.................................................... 106.04 1,378.53 1,800 3,178.53 2,425 2,824
2020.................................................... 107.29 1,394.80 1,800 3,194.80 2,278 2,756
2021.................................................... 108.56 1,411.26 1,800 3,211.26 2,140 2,689
2022.................................................... 109.84 1,427.91 1,800 3,227.91 2,010 2,625
2023.................................................... 111.14 1,444.76 1,800 3,244.76 1,888 2,561
2024.................................................... 112.45 1,461.81 1,800 3,261.81 1,774 2,500
2025.................................................... 113.77 1,479.06 1,800 3,279.06 1,667 2,440
2026.................................................... 115.12 1,496.51 1,800 3,296.51 1,566 2,381
2027.................................................... 116.47 1,514.17 1,800 3,314.17 1,472 2,324
2028.................................................... 117.85 1,532.04 1,800 3,332.04 1,383 2,269
2029.................................................... 119.24 1,550.11 1,800 3,350.11 1,299 2,215
2030.................................................... 120.65 1,568.40 1,800 3,368.40 1,221 2,162
2031.................................................... 122.07 1,586.91 1,800 3,386.91 1,147 2,111
2032.................................................... 123.51 1,605.64 1,800 3,405.64 1,078 2,060
2033.................................................... 124.97 1,624.58 1,800 3,424.58 1,013 2,012
2034.................................................... 126.44 1,643.75 1,800 3,443.75 952 1,964
-----------------------------------------------------------------------------------------------
Total............................................... .............. .............. .............. .............. 86,685 99,909
Annualized.......................................... .............. .............. .............. .............. 7,647 6,520
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRA calculated the total monetized benefits of the rule, which
includes savings from relief of Emergency Order 28's recordation
requirement for each year plus savings provided each year from the use
of locomotive locks after the first year of installation:
----------------------------------------------------------------------------------------------------------------
Discounted value
-------------------------------
Year Total benefits Discount factor
-------------------------------
7% 3%
----------------------------------------------------------------------------------------------------------------
2015............................................................ $86,700.00 $86,700 $86,700
2016............................................................ 104,200.00 97,383 101,165
2017............................................................ 104,200.00 91,012 98,218
2018............................................................ 104,200.00 85,058 95,358
2019............................................................ 104,200.00 79,494 92,580
2020............................................................ 104,200.00 74,293 89,884
2021............................................................ 104,200.00 69,433 87,266
2022............................................................ 104,200.00 64,891 84,724
2023............................................................ 104,200.00 60,645 82,256
2024............................................................ 104,200.00 56,678 79,861
2025............................................................ 104,200.00 52,970 77,535
2026............................................................ 104,200.00 49,505 75,276
2027............................................................ 104,200.00 46,266 73,084
2028............................................................ 104,200.00 43,239 70,955
2029............................................................ 104,200.00 40,411 68,888
2030............................................................ 104,200.00 37,767 66,882
2031............................................................ 104,200.00 35,296 64,934
2032............................................................ 104,200.00 32,987 63,043
2033............................................................ 104,200.00 30,829 61,207
2034............................................................ 104,200.00 28,812 59,424
-----------------------------------------------
Total....................................................... .............. 1,163,669 1,579,240
Annualized.................................................. .............. 102,656 103,058
----------------------------------------------------------------------------------------------------------------
Summary of the Costs and Benefits
To summarize the above identified costs and benefits, FRA tabulated
the contributions of each item to the total discounted costs and
benefits over 20 years.
[[Page 47379]]
------------------------------------------------------------------------
Discounted value
-------------------------------
Discounted values Discount factor
-------------------------------
7% 3%
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
Attending Trains........................ $36,685 $49,909
Installing Locks........................ 50,000 50,000
------------------------------------------------------------------------
Total Costs......................... 86,685 99,909
Benefits
------------------------------------------------------------------------
Reduced Vandalism....................... 180,873 250,666
Reduced Recordkeeping................... 982,786 1,328,573
-------------------------------
Total Benefits...................... 1,163,669 1,579,240
------------------------------------------------------------------------
For further distillation, FRA calculated the net benefits over 20
years:
------------------------------------------------------------------------
Discounted value
-------------------------------
Discounted values net benefits Discount factor
-------------------------------
7% 3%
------------------------------------------------------------------------
Total................................... $1,076,984 $1,479,331
Annualized.............................. 95,009 96,538
------------------------------------------------------------------------
The costs that are not directly offset by a monetized benefit are
the annual costs of either attending locomotives or expediting their
repair. Above, FRA estimates the annualized cost beyond current
business practices at $3,236-$3,257 per year.\32\ These costs are
balanced against an incident with costs of $260 million to $1.2
billion, but with extremely low probability. The incidents avoided by
attendance provisions would only occur where the train was not equipped
with functioning locking mechanisms under conditions where the railroad
would have sent a repair team out to the location of the train to
repair the locking mechanism or would have sent a qualified employee to
attend the train, roughly ten events per year. As discussed above,
these situations would involve a locomotive that is left running either
to avoid cold weather starting or to avoid a brake test when the next
crew takes charge of the train. The number of events estimated is based
on professional judgment. If the event avoided is $330 million,\33\ and
the annual cost is less than $3,300 for ten events, then the rule costs
about $330 per event and would roughly break even if one in a million
events of leaving a locomotive consist for one of the regulated trains
unattended with an unlocked cab and a reverser unsecured in the cab
were to result in a higher-consequence incident. FRA believes the small
but relatively predictable annual cost is justified by the hard to
measure very small probability, very high consequence incident risk
avoided. The portion of the rule requiring attendance of a train with
inoperative locking mechanisms will not affect the likelihood of such
an incident where the locking mechanism is functioning or where
railroad does not comply with the rule.
---------------------------------------------------------------------------
\32\ This cost is slightly increased by the increase in value of
real wages over time.
\33\ This estimate falls between the damages of Graniteville and
Lac-M[eacute]gantic. It is selected only for illustrative purposes.
---------------------------------------------------------------------------
The remainder of Emergency Order 28 and the final rule do not
impose costs beyond expected business practices. FRA believes that the
business benefits of installing locking mechanisms and locking
locomotive cabs return net benefits to the railroads. FRA believes that
locking the locomotive cab or removing the reverser will reduce the
likelihood of a higher-consequence event. FRA believes the continuing
requirements from Emergency Order 28 or the requirements of the final
rule will provide more opportunities to sever the potential causal
chain of a low-probability high-consequence event. Thus, FRA rejects
the alternative of simply removing Emergency Order 28.
Alternatives Considered
FRA considered as an alternative requiring all trains subject to
Sec. 232.103(n)(6) to be attended if left stopped outside yards,
without regard to the presence of a locking mechanism or reverser. FRA
believes that railroads would work to enhance routing and crew
scheduling so that of the 1,000 affected trains per day, only 50 would
require unattended stops outside of yards. The cost per event to attend
a train would be $470 per incident. The daily cost would be 50 times
$470, or $23,500. The annual cost would be $8,577,500.
FRA believes the final rule is as effective as the alternative
considered, at much lower cost. Thus, FRA rejected the more restrictive
alternative. FRA further believes that given the tradeoff between the
certainty of relatively low costs and the benefit of very low-
probability yet very high-consequence incidents, the final rule is a
reasonable approach. In the NPRM FRA requested comments on all aspects
of this analysis. The comments FRA received are discussed above.
Regulatory Flexibility Act and Executive Order 13272
To ensure that the impact of this rulemaking on small entities is
properly considered, FRA developed this final rule in accordance with
Executive Order
[[Page 47380]]
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's policies and procedures to promote compliance with the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
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 is not expected to have a significant economic
impact on a substantial number of small entities.
As discussed in the preamble above, FRA is amending regulations
affecting securement of certain trains carrying particular hazardous
materials in particular quantities, and requiring that cabs of all
locomotives left unattended, except for those left unattended on main
tracks that are in or adjacent to yards, be equipped with locking
mechanisms. FRA is certifying that this final rule will result in ``no
significant economic impact on a substantial number of small
entities.'' The following section explains the reasons for this
certification.
1. Description of Regulated Entities and Impacts
The ``universe'' of the entities under consideration includes only
those small entities that can reasonably be expected to be directly
affected by the provisions of this rule. In this case, the ``universe''
will be Class III freight railroads that own locomotives or that have
traffic including trains that would be subject to Sec. 232.103(n)(6).
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.'' ``Small
entity'' is defined in the Act as a small business that is
independently owned and operated, and is not dominant in its field of
operation. Additionally, section 601(5) defines ``small entities'' as
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 policy
that formally establishes ``small entities'' as railroads which meet
the line haulage revenue requirements of a Class III railroad.\34\ The
revenue requirements are currently $20 million or less in annual
operating revenue. The $20 million limit (which is adjusted by applying
the railroad revenue deflator adjustment) \35\ is based on the Surface
Transportation Board's (STB) threshold for a Class III railroad
carrier. FRA is using the STB's threshold in its definition of ``small
entities'' for this rule.
---------------------------------------------------------------------------
\34\ See 68 FR 24891, May 9, 2003; 49 CFR part 209, app. C.
\35\ For further information on the calculation of the specific
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------
FRA believes that virtually all small railroads on the general
system of rail transportation will be affected by this rule, as there
are almost no railroads that do not own at least one locomotive. There
are 671 small railroads on the general system of rail transportation.
As noted above, no small entities are expected to incur any costs
under Sec. 232.103. Small entities owning locomotives may incur a cost
to install a locking mechanism under Sec. 232.105, but as also noted
above, the locking mechanisms will pay for themselves in reduced
vandalism costs in less than three years. FRA believes that at least 90
percent of affected locomotives are already equipped with locking
mechanisms, and the cost to install a locking mechanism is $100 for a
mechanism that does not have to comply with AAR standards for
interchange. Any small railroad's locomotives operated in interchange
service would have to have AAR compliant locks to remain in interchange
service, but that is not a cost of the rule. Thus, the rule will impose
a cost of $100 on about ten percent of locomotives, but the investment
will pay for itself in less than three years. FRA believes this is not
a substantial impact on any small entity.
Further, small railroads will benefit from a reduction in
recordkeeping requirements, as described above.
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the
FRA Administrator certifies that this final rule will not have a
significant economic impact on a substantial number of small entities.
In the NPRM, FRA requested comment on both this analysis and the
certification, and its estimates of the impacts on small railroads. The
only comment FRA received was that the unit cost of locks for small
railroads would be more than $100, exceeding even the AAR-estimated
unit cost of $210 per locomotive. For reasons discussed in the
Regulatory Impact section above, FRA rejects that comment.
B. Paperwork Reduction Act
The information collection requirements in this final rule are
being submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new and current information collection
requirements and the estimated time to fulfill each requirement are as
follows:
----------------------------------------------------------------------------------------------------------------
Respondent Total annual Average time per Total annual
CFR section universe responses response burden hours
----------------------------------------------------------------------------------------------------------------
229.27--Annual tests............. 30,000 locomotives 120,000 tests..... 15 minutes........ 30,000 hours.
232.3--Applicability--Export, 655 railroads..... 8 cards........... 10 minutes........ 1 hour.
industrial, & other cars not
owned by railroads--
identification.
232.7--Waivers................... 655 railroads..... 10 petitions...... 160 hours......... 1,600 hours.
232.15--Movement of Defective 1,620,000 cars.... 128,400 tags/ 2.5 minutes....... 5,350 hours.
Equipment--Tags/Records. records.
--Written Notification....... 1,620,000 cars.... 25,000 notices.... 3 minutes......... 1,250 hours.
232.17--Special Approval
Procedure
--Petitions for special 655 railroads..... 1 petition........ 100 hours......... 100 hours.
approval of safety--critical
revision.
--Petitions for special 655 railroads..... 1 petition........ 100 hours......... 100 hours.
approval of pre-revenue
service acceptance plan.
--Service of petitions....... 655 railroads..... 1 petition........ 20 hours.......... 20 hours.
--Statement of interest...... Public/railroads.. 4 statements...... 8 hours........... 32 hours.
[[Page 47381]]
--Comment.................... Public/railroads.. 13 comments....... 4 hours........... 52 hours.
232.103--Gen'l requirements--all 114,000 cars...... 70,000 sticker.... 10 minutes........ 11,667 hours.
train brake systems--Stickers.
Proposed Rule New Requirements... Already Fulfilled Fulfilled under Fulfilled under Fulfilled under
232.103(n)(3)(iv)--RR Procedure under OMB No. OMB No. 2130-0601. OMB No. 2130-0601. OMB No. 2130-
for Securing Unattended 2130-0601. 0601.
Locomotive.
232.103(n)(7)--RR Plan 655 railroads..... 10 revised plans.. 10 hours.......... 100 hours.
Identifying Specific Locations
or Circumstances where Equipment
May Be Left Unattended.
--Notification to FRA When RR 655 railroads..... 10 notices........ 30 minutes........ 5 hours.
Develops and Has Plan in
Place or Modifies Existing
Plan.
232.103(n)(8)--Employee Included under Included Under Included under Included under
Verification with Another Sec. Sec. Section Sec.
Qualified Employee of Securement 232.103(n)(9). 232.103(n)(9). 232.103(n)(9). 232.103(n)(9).
of Freight Train or Freight Car
Left Unattended.
232.103(n)(9)--RR Implementation 655 railroads..... 491 revised rules/ 2 hours........... 982 hours.
of Op. Rules/Practices Requiring practices.
Job Briefing for Securement of
Unattended Equipment.
--Securement Job Briefings... 100,000 Employees. 23,400,000 job 30 seconds........ 195,000 hours.
briefings.
232.103(n)(10)--RR Adoption of 655 railroads..... 12 inspections/ 4 hours........... 48 hours.
Procedure for Verification of records.
Securement of Equipment by
Qualified Employee.
--Inspection of Equipment by
Qualified Employee after
Responder Visit.
--Procedure for Alternative 655 railroads..... 655 procedures.... 1 hour............ 655 hours.
Securement (New Requirement).
232.105--General requirements for 30,000 Locomotives 30,000 forms...... 5 minutes......... 2,500 hours.
locomotives--Inspection.
Proposed Rule New Requirements
232.105(h)--RR Inspection of 30,000 Locomotives 30,000 insp./ 30 seconds........ 250 hours.
Locomotive Exterior Locking records.
Mechanism/Records.
--RR Repair, where necessary, 30,000 Locomotives 73 repairs/records 60.25 minutes..... 73 hours.
of Locomotive Exterior
Locking Mechanism.
232.107--Air source requirements 10 new railroads.. 1 plan............ 40 hours.......... 40 hours.
and cold weather operations--
Monitoring Plan (Subsequent
Years).
--Amendments/Revisions to 50 railroads/plans 10 revisions...... 20 hours.......... 200 hours.
Plan.
--Recordkeeping.............. 50 railroads/plans 1,150 records..... 20 hours.......... 23,000 hours.
232.109--Dynamic brake 655 railroads..... 1,656,000 rec..... 4 minutes......... 110,400 hours.
requirements--status/record.
--Inoperative dynamic brakes: 30,000 locomotives 6,358 records..... 4 minutes......... 424 hours.
repair record.
--Tag bearing words 30,000 locomotives 6,358 tags........ 30 seconds........ 53 hours.
``inoperative dynamic
brakes''.
--Deactivated dynamic brakes 8,000 locomotives. 10 markings....... 5 minutes......... 1 hour.
(Sub. Yrs.).
--Operating rules (Subsequent 5 new railroads... 5 rules........... 4 hours........... 20 hours.
Years).
--Amendments/Revisions....... 655 railroads..... 15 revisions...... 1 hour............ 15 hours.
--Requests to increase 5 mph 655 railroads..... 5 requests........ 30 min. + 20 hours 103 hours.
Overspeed restriction.
--Knowledge criteria-- 5 new railroads... 5 amendments...... 16 hours.......... 80 hours.
locomotive engineers--
Subsequent Years.
232.111--Train information 5 new railroads... 5 procedures...... 40 hours.......... 200 hours
handling--Sub. Yrs.--Amendments/ 100 railroads..... 100 revisions..... 20 hours.......... 2,000 hours.
Revisions.
--R655 report requirements to 655 railroads..... 2,112,000 reports. 10 minutes........ 352,000 hours.
train crew.
232.203--Training requirements-- 15 railroads...... 5 programs........ 100 hours......... 500 hours.
Tr. Prog.--Sub Yr..
--Amendments to written 655 railroads..... 559 revisions..... 8 hours........... 4,472 hours.
program.
--Training records........... 655 railroads..... 67,000 records.... 8 minutes......... 8,933 hours.
--Training notifications..... 655 railroads..... 67,000 notices.... 3 minutes......... 3,350 hours.
--Audit program.............. 655 railroads..... 1 plan + 559 40 hours/1 min.... 49 hours.
copies.
--Amendments to validation/ 655 railroads..... 50 revisions...... 20 hours.......... 1,000 hours.
assessment program.
232.205--Class 1 brake test-- 655 railroads..... 1,646,000 notices/ 45 seconds........ 20,575 hours.
Notifications/Records. records.
232.207--Class 1A brake tests-- 655 railroads..... 5 lists........... 1 hour............ 5 hours.
Designation Lists Where
Performed.
Subsequent Years: Notice of 655 railroads..... 250 notices....... 10 minutes........ 42 hours.
Change to.
232.209--Class II brake tests-- 655 railroads..... 1,597,400 comments 3 seconds......... 1,331 hours.
intermediate ``Roll-by
inspection''--Results to train
driver.
232.213--Written Designation to 83,000 long dist. 250 letters....... 15 minutes........ 63 hours.
FRA of Extended haul trains. movements.
232.303--General requirements-- 1,600,000 frgt. 5,600 tags........ 5 minutes......... 467 hours.
single car test: Tagging of cars.
Moved Equipment.
--Last repair track brake 1,600,000 frgt. 320,000 markings.. 5 minutes......... 26,667 hours.
test/single car test. cars.
--Stenciled on Side of
Equipment.
232.305--Single Car Tests-- 1,600,000 frgt. 320,000 tests/ 60 minutes........ 320,000 hours.
Performance and Records. cars. records.
232.307--Modification of single AAR............... 1 request + 3 100 hours + 5 100 hours.
car air brake test procedures: copies. minutes.
Requests.
[[Page 47382]]
--Affirmation Statement on AAR............... 1 statement + 4 30 minutes + 5 1 hour.
Mod. Req. To Employee copies. minutes.
Representatives.
--Comments on Modification Railroad/Public... 2 comments........ 8 hours........... 16 hours.
Request.
232.309--Repair track brake test. 640 shops......... 5,000 tests....... 30 minutes........ 2,500 hours.
232.403--Unique Code............. 245 railroads..... 12 requests....... 5 minutes......... 1 hour.
232.407--EOT Operations requiring 245 railroads..... 50,000 verbal 30 seconds........ 417 hours.
2-way Voice Radio Communications. comments.
232.409--Inspection/Tests/Records 245 railroads..... 447,500 tests/ 30 seconds........ 3,729 hours.
EOTs. notices/record.
--Telemetry Equipment-- 245 railroads..... 32,708 units 1 minute.......... 545 hours.
Testing and Calibration. marked.
232.503--Process to introduce new 655 railroads..... 1 letter.......... 1 hour............ 1 hour.
brake technology.
--Special approval........... 655 railroads..... 1 request......... 3 hours........... 3 hours.
232.505--Pre-revenue svc accept. 655 railroads..... 1 procedure....... 160 hours......... 160 hours.
test plan.
--Submission of maintenance
procedure
--Amendments to maintenance 655 railroads..... 1 revision........ 40 hours.......... 40 hours.
procedure.
--Design description......... 655 railroads..... 1 petition........ 67 hours.......... 67 hours.
--Report to FRA Assoc. Admin. 655 railroads..... 1 report.......... 13 hours.......... 13 hours.
for Safety.
--Brake system technology 655 railroads..... 1 description..... 40 hours.......... 40 hours.
testing.
232.603--Configuration 4 railroads....... 1 plan............ 160 hours......... 160 hours.
Management--Configuration
Management Plan (ECP).
--Subsequent Years-- 4 railroads....... 1 plan............ 60 hours.......... 60 hours.
Configuration Management
Plans.
--Request for Modification of 4 railroads....... 1 request + 2 8 hours + 5 8 hours.
Standards and Extra Copies copies. minutes.
to FRA.
--Affirmative Statements that 4 railroads....... 4 statements + 24 60 minutes + 5 6 hours.
RRs have served copies of copies. minutes.
Modification Request to
Employee Representatives.
--Comments on requested Public/Industry... 4 comments........ 2 hours........... 8 hours.
modification.
232.605--ECP Brakes: Training-- 1 railroad........ 1 program......... 100 hours......... 100 hours.
Adopt/Developing an ECP Training
Program--First Year.
--Subsequent Years--ECP 1 railroad........ 1 program......... 100 hours......... 100 hours.
Training Prog..
--ECP Brakes Training of 1 railroad........ 1,602 trained 8 hours/24 hrs.... 26,480 hours.
Employees--First Year. employees.
--ECP Brakes Training of 2 railroads....... 1,602 trained 1 hour/8 hours.... 7,580 hours.
Employees--Subsequent Years. employees.
--ECP Training Records--Yr. 2 railroads....... 1,602 records..... 8 minutes......... 214 hours.
One.
--ECP Training Records-- 2 railroads....... 1,602 records..... 4 minutes......... 107 hours.
Subsequent Yrs..
--Assessment of ECP Training 2 railroads....... 1 ECP plan........ 40 hours.......... 40 hours.
Plan.
--Adopt Operating Rules for 2 railroads....... 1 Oper. Rule...... 24 hours.......... 24 hours.
ECP Brakes.
--Amended Locomotive Engineer 2 railroads....... 1 amended program. 40 hours.......... 40 hours.
Certification Program (ECP
Brakes).
232.607--ECP Inspection and 1 railroad........ 2,500 insp.+ 2,500 90 min. + 45 3,781 hours.
Testing--Initial Terminal-- notices. seconds.
Inspections and Notification/
Record of Class I Brake Tests.
--Cars added or removed en 1 railroad........ 250 inspection + 60 minutes + 45 253 hours.
route--Class I Brake Test 125 notices. seconds.
and Notification.
--Non-ECP cars added to ECP 200 Cars.......... 50 insp. + 100 5 minutes + 2.5 8 hours.
Trains--Inspections and Tags tags/records. minutes.
for Defective Cars.
232.609--Handling of Defective 25 Cars........... 50 tags/records... 2.5 minutes....... 2 hours.
Equipment with ECP Brake
Systems--Freight Car w/defective
conventional brakes moved in
train operating in ECP brake
mode.
--Inspections/Tagging for ECP 20 Cars........... 20 insp. + 40 tags/ 5 minutes + 2.5 3 hours.
Train moving w/less than 85 records. minutes.
percent operative/effective
brakes.
--Cars tagged in accordance 25 Cars........... 50 tags/records... 2.5 minutes....... 2 hours.
with Section 232.15.
232.609--Conventional Train with 50 Cars........... 100 tags/records.. 2.5 minutes....... 4 hours.
stand-alone ECP brake equipped
cars--Tagging.
--Procedures for handling ECP 2 railroads....... 2 procedures...... 24 hours.......... 48 hours.
brake system repairs and
designation of repair
locations.
--List of repair locations... 2 railroads....... 2 lists........... 8 hours........... 16 hours.
--Notification to FRA Safety 2 railroads....... 1 notification.... 1 hour............ 1 hour.
Administrator regarding
change to repair location
list.
232.611--Periodic Maintenance-- 500 Freight Cars.. 500 insp./rcds.... 10 minutes........ 83 hours.
Inspections before being
released from repair Shop.
--Procedures/Petition for ECP 1 Railroad Rep.... 1 petition + 2 24 hours + 5 24 hours.
Single Car Test. copies. minutes.
--Single Car Air Brake Tests-- 50 Freight Cars... 50 tests/records.. 45 minutes........ 38 hours.
Records.
--Modification of Single Car 1 Railroad Rep.... 1 mod. Proc....... 40 hours.......... 40 hours.
Test Standards.
----------------------------------------------------------------------------------------------------------------
[[Page 47383]]
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Poston,
Information Clearance Officer, at 202-493-6073.
OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
C. Federalism
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local governments
or the agency consults with State and local government officials early
in the process of developing the regulation. Where a regulation has
federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132. FRA has determined
that the final rule does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. In addition, FRA has determined that this
final rule does not impose substantial direct compliance costs on State
and local governments. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
This rule adds requirements to part 232. FRA is not aware of any
State having regulations similar to these proposals. However, FRA notes
that this part could have preemptive effect by the operation of law
under a provision of the former Federal Railroad Safety Act of 1970,
repealed, revised, reenacted, and codified at 49 U.S.C. 20106 (Sec.
20106). Sec. 20106 provides that States may not adopt or continue in
effect any law, regulation, or order related to railroad safety or
security that covers the subject matter of a regulation prescribed or
order issued by the Secretary of Transportation (with respect to
railroad safety matters) or the Secretary of Homeland Security (with
respect to railroad security matters), except when the State law,
regulation, or order qualifies under the ``essentially local safety or
security hazard'' exception to Sec. 20106. In addition, section
20119(b) authorizes FRA to issue a rule governing the discovery and use
of risk analysis information in litigation.
In sum, FRA has analyzed this final rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this final rule has no
federalism implications, other than the possible preemption of State
laws under 49 U.S.C. 20106 and 20119. Accordingly, FRA has determined
that preparation of a federalism summary impact statement for this
final rule is not required.
D. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This rulemaking is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.
E. Environmental Assessment
FRA has evaluated this rule in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545,
May 26, 1999) as required by the National Environmental Policy Act (42
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders,
and requirements covered under FRA NEPA reviews. FRA has determined
that this rule is not a major FRA action as defined in FRA's Procedures
(requiring the preparation of an environmental assessment or
environmental impact statement) because it is categorically excluded
from further environmental review pursuant to section 4(c)(20) of FRA's
Procedures. See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as
follows:
(c) Actions categorically excluded. Certain classes of FRA
actions have been determined to be categorically excluded from the
requirements of these Procedures as they do not individually or
cumulatively have a significant effect on the human environment. * *
* The following classes of FRA actions are categorically excluded:
* * * (20) Promulgation of railroad safety rules and policy
statements that do not result in significantly increased emissions
or air or water pollutants or noise or increased traffic congestion
in any mode of transportation.
This rule amends existing FRA regulations and strengthen the
requirements relating to securement and unattended equipment.
Compliance with these requirements would not result in actions that
would adversely affect the environment. To the extent that a reduction
in safety incidents, in particular hazardous materials releases,
prevents adverse environmental impacts, this rule will have the
potential for minor environmental benefits. The rule does not require
any new infrastructure improvements or changes in railroad operating
practices that would result in adverse environmental consequences. As
such, FRA does not expect any significant increases in air emissions,
water pollution, noise, or traffic congestion. Thus, in accordance with
section 4(c) and (e) of FRA's Procedures, the agency concludes that no
extraordinary circumstances exist with respect to this proposed
regulation that might trigger the need for a more detailed
environmental review. As a result, FRA finds that this rule will not
[[Page 47384]]
significantly affect the quality of the human environment and is
categorically excluded from further review.
F. Unfunded Mandates Reform Act of 1995
Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that the agency prepare a written
statement detailing the effect of this rule on State, local, and tribal
governments and the private sector:
[B]efore promulgating any general notice of proposed rulemaking
that is likely to result in the promulgation of any rule that
includes any Federal mandate that may result in expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any 1 year, and before promulgating any final rule for
which a general notice of proposed rulemaking was published.
For the year 2013, this monetary amount of $100,000,000 has been
adjusted to $151,000,000 to account for inflation. This final rule will
not result in the expenditure of more than $151,000,000 by the public
sector in any one year, and thus preparation of such a statement is not
required.
G. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355, May 22, 2001. Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates, or is expected to
lead to the promulgation of, a final rule or regulation (including a
notice of inquiry, advance NPRM, and NPRM) that (1)(i) is a significant
regulatory action under Executive Order 12866 or any successor order
and (ii) is likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (2) is designated by the
Administrator of the Office of Information and Regulatory Affairs as a
significant energy action. FRA has evaluated this final rule in
accordance with Executive Order 13211. FRA has determined that this
final rule will not have a significant adverse effect on the supply,
distribution, or use of energy. Consequently, FRA has determined that
this regulatory action is not a ``significant energy action'' within
the meaning of Executive Order 13211.
H. Privacy Act
Interested parties should be aware that anyone is able to search
the electronic form of all comments received into any agency docket by
the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477), or you
may visit https://www.dot.gov/privacy.html.
I. Executive Order 12898 (Environmental Justice)
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534 May 10, 2012) require DOT agencies to
achieve environmental justice (EJ) as part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects, including interrelated
social and economic effects, of their programs, policies, and
activities on minority populations and low-income populations. The DOT
Order instructs DOT agencies to address compliance with Executive Order
12898 and the DOT Order in rulemaking activities, as appropriate. FRA
has evaluated this proposed rule under Executive Order 12898 and the
DOT Order and has determined that it would not cause disproportionately
high and adverse human health and environmental effects on minority or
low-income populations.
J. Executive Order 13175 (Tribal Consultation)
FRA has evaluated this proposed rule in accordance with the
principles and criteria contained in Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, dated
November 6, 2000. The proposed rule would not have a substantial direct
effect on one or more Indian tribes, would not impose substantial
direct compliance costs on Indian tribal governments, and would not
preempt tribal laws. Therefore, the funding and consultation
requirements of Executive Order 13175 do not apply, and a tribal
summary impact statement is not required.
List of Subjects in 49 CFR Part 232
Hazardous material, Power brakes, Railroad safety, Securement.
The Rule
In consideration of the foregoing, FRA is amending part 232 of
chapter II, subtitle B of title 49, Code of Federal Regulations as
follows:
PART 232--[AMENDED]
0
1. The authority citation for part 232 is revised to read as follows:
Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-
20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR
1.89.
0
2. Section 232.5 is amended by adding in alphabetical order the
definitions of ``Mechanical securement device'' and ``Unattended
equipment'', and by removing the word ``limits'' from the defined term
``Yard limits''.
The revisions read as follows:
Sec. 232.5 Definitions.
* * * * *
Mechanical securement device means a device, other than the air
brake, that provides at least the equivalent securement that a
sufficient number of hand brakes would provide in the same situation.
Current examples include skates, retarders, and inert retarders.
* * * * *
Unattended equipment means equipment left standing and unmanned in
such a manner that the brake system of the equipment cannot be readily
controlled by a qualified person.
* * * * *
0
3. In Sec. 232.103, revise paragraphs (n) introductory text and (n)(1)
through (3) and add paragraphs (n)(6) through (11)'' to read as
follows:
Sec. 232.103 General requirements for all train brake systems.
* * * * *
(n) Securement of unattended equipment. Unattended equipment shall
be secured in accordance with the following requirements:
(1) A sufficient number of hand brakes, to be not fewer than one,
shall be applied to hold the equipment unless an acceptable alternative
method of securement is provided pursuant to paragraph (n)(11)(i) of
this section. Railroads shall develop and implement a process or
procedure to verify that the applied hand brakes will sufficiently hold
the equipment with the air brakes released.
(2) Except for equipment connected to a source of compressed air
(e.g., locomotive or ground air source), or as
[[Page 47385]]
provided under paragraph (n)(11)(ii) of this section, prior to leaving
equipment unattended, the brake pipe shall be reduced to zero at a rate
that is no less than a service rate reduction, and the brake pipe
vented to atmosphere by leaving the angle cock in the open position on
the first unit of the equipment left unattended. A train's air brake
shall not be depended upon to hold equipment standing unattended
(including a locomotive, a car, or a train whether or not locomotive is
attached).
(3) Except for distributed power units, the following requirements
apply to unattended locomotives:
(i) All hand brakes shall be fully applied on all locomotives in
the lead consist of an unattended train.
(ii) All hand brakes shall be fully applied on all locomotives in
an unattended locomotive consist outside of a yard.
(iii) At a minimum, the hand brake shall be fully applied on the
lead locomotive in an unattended locomotive consist within a yard.
(iv) A railroad shall develop, adopt, and comply with procedures
for securing any unattended locomotive required to have a hand brake
applied pursuant to paragraph (n)(3)(i) through (iii) of this section
when the locomotive is not equipped with an operative hand brake.
* * * * *
(6)(i) The requirements in paragraph (n)(7) through (8) of this
section apply to any freight train or standing freight car or cars that
contain:
(A) Any loaded tank car containing a material poisonous by
inhalation as defined in Sec. 171.8 of this title, including anhydrous
ammonia (UN 1005) and ammonia solutions (UN 3318); or
(B) Twenty (20) or more loaded tank cars or loaded intermodal
portable tanks of any one or any combination of a hazardous material
listed in paragraph (n)(6)(i)(A) of this section, or any Division 2.1
(flammable gas), Class 3 (flammable or combustible liquid), Division
1.1 or 1.2 (explosive), or a hazardous substance listed at Sec.
173.31(f)(2) of this title.
(ii) For the purposes of this paragraph, a tank car containing a
residue of a hazardous material as defined in Sec. 171.8 of this title
is not considered a loaded car.
(7)(i) No equipment described in paragraph (n)(6) of this section
shall be left unattended on a main track or siding (except when that
main track or siding runs through, or is directly adjacent to a yard)
until the railroad has adopted and is complying with a plan identifying
specific locations or circumstances when the equipment may be left
unattended. The plan shall contain sufficient safety justification for
determining when equipment may be left unattended. The railroad must
notify FRA when the railroad develops and has in place a plan, or
modifies an existing plan, under this provision prior to operating
pursuant to the plan. The plan shall be made available to FRA upon
request. FRA reserves the right to require modifications to any plan
should it determine the plan is not sufficient.
(ii) Except as provided in paragraph (n)(8)(iii) of this section,
any freight train described in paragraph (n)(6) of this section that is
left unattended on a main track or siding that runs through, or is
directly adjacent to, a yard shall comply with the requirements
contained in paragraphs (n)(8)(i) and (n)(8)(ii) of this section.
(8)(i) Where a freight train or standing freight car or cars as
described in paragraph (n)(6) of this section is left unattended on a
main track or siding outside of a yard, and not directly adjacent to a
yard, an employee responsible for securing the equipment shall verify
with another person qualified to make the determination that the
equipment is secured in accordance with the railroad's processes and
procedures.
(ii) The controlling locomotive cab of a freight train described in
paragraph (n)(6) of this section shall be locked on locomotives capable
of being locked. If the controlling cab is not capable of being locked,
the reverser on the controlling locomotive shall be removed from the
control stand and placed in a secured location.
(iii) A locomotive that is left unattended on a main track or
siding that runs through, or is directly adjacent to, a yard is
excepted from the requirements in (n)(8)(ii) of this section where the
locomotive is not equipped with an operative lock and the locomotive
has a reverser that cannot be removed from its control stand or has a
reverser that is necessary for cold weather operations.
(9) Each railroad shall implement operating rules and practices
requiring the job briefing of securement for any activity that will
impact or require the securement of any unattended equipment in the
course of the work being performed.
(10) Each railroad shall adopt and comply with procedures to ensure
that, as soon as safely practicable, a qualified employee verifies the
proper securement of any unattended equipment when the railroad has
knowledge that a non-railroad emergency responder has been on, under,
or between the equipment.
(11) A railroad may adopt and then must comply with alternative
securement procedures to do the following:
(i) In lieu of applying hand brakes as required under paragraph (n)
of this section, properly maintain and use mechanical securement
devices, within their design criteria and as intended within a
classification yard or on a repair track.
(ii) In lieu of compliance with the associated requirement in
paragraph (n)(2) of this section--and in lieu of applying hand brakes
as required under paragraph (n) of this section-- isolate the brake
pipe of standing equipment from atmosphere if it:
(A) Initiates an emergency brake application on the equipment;
(B) Closes the angle cock; and
(C) Operates the locomotive or otherwise proceeds directly to the
opposite end of the equipment for the sole purpose to either open the
angle cock to vent to atmosphere or provide an air source.
(iii) Upon completion of the procedure described in paragraph
(n)(11)(ii) of this section, the securement requirements of paragraph
(n) of this section shall apply.
* * * * *
0
4. In Sec. 232.105, add paragraph (h) to read as follows:
Sec. 232.105 General requirements for locomotives.
* * * * *
(h)(1) After March 1, 2017, each locomotive left unattended outside
of a yard, but not on a track directly adjacent to the yard, shall be
equipped with an operative exterior locking mechanism.
(2) The railroad shall inspect and, where necessary, repair the
locking mechanism during a locomotive's periodic inspection required in
Sec. 229.23 of this chapter.
(3) In the event that a locking mechanism becomes inoperative
during the time interval between periodic inspections, the railroad
must repair the locking mechanism within 30 days of finding the
inoperative lock.
(4) A railroad may continue the use of a locomotive without an
operative locking mechanism; however, if the controlling locomotive of
a train meeting the requirements of Sec. 232.103(n)(6)(i) does not
have an operative locking mechanism for the locomotive, the train must
not be left unattended on main track or a siding unless the reverser is
removed from the control stand as required in Sec. 232.103(n)(8)(ii)
or the locomotive
[[Page 47386]]
otherwise meets one of the exceptions described in Sec.
232.103(n)(8)(iii).
0
5. In appendix A to part 232, revise the entry for Sec. 232.103(n) and
add an entry for Sec. 232.105(h) to read as follows:
Appendix A to Part 232--Schedule of Civil Penalties \(1)\
---------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a
willful violation. Generally when two or more violations of these
regulations are discovered with respect to a single unit of
equipment that is placed or continued in service by a railroad, the
appropriate penalties set forth above are aggregated up to a maximum
of $25,000 per day. An exception to this rule is the $15,000 penalty
for willful violation of Sec. 232.503 (failure to get FRA approval
before introducing new technology) with respect to a single unit of
equipment; if the unit has additional violative conditions, the
penalty may routinely be aggregated to $15,000. Although the
penalties listed for failure to perform the brake inspections and
tests under Sec. 232.205 through Sec. 232.209 may be assessed for
each train that is not properly inspected, failure to perform any of
the inspections and tests required under those sections will be
treated as a violation separate and distinct from, and in addition
to, any substantive violative conditions found on the equipment
contained in the train consist. Moreover, the Administrator reserves
the right to assess a penalty of up to $105,000 for any violation
where circumstances warrant. See 49 CFR part 209, appendix A.
Failure to observe any condition for movement of defective
equipment set forth in Sec. 232.15(a) will deprive the railroad of
the benefit of the movement-for-repair provision and make the
railroad and any responsible individuals liable for penalty under
the particular regulatory section(s) concerning the substantive
defect(s) present on the equipment at the time of movement.
Failure to provide any of the records or plans required by this
part pursuant to Sec. 232.19 will be considered a failure to
maintain or develop the record or plan and will make the railroad
liable for penalty under the particular regulatory section(s)
concerning the retention or creation of the document involved.
Failure to properly perform any of the inspections specifically
referenced in Sec. 232.209, Sec. 232.213, Sec. 232.217, and
subpart G may be assessed under each section of this part or this
chapter, or both, that contains the requirements for performing the
referenced inspection.
------------------------------------------------------------------------
Willful
Section Violation Violation
------------------------------------------------------------------------
* * * * * * *
232.103 General requirements for all
train brake systems:
* * * * * * *
(n) Securement of unattended
equipment..........................
(1) Failure to apply sufficient 5,000 7,500
number of hand brakes; failure to
develop or implement procedure to
verify number applied..............
(2) Failure to initiate emergency or 2,500 5,000
depend upon air brake..............
(3) Failure to apply hand brakes on 2,500 5,000
locomotives........................
(4) Failure to adopt or comply with 5,000 7,500
procedures for securing unattended
locomotive.........................
(5) Release of hand brakes before 5,000 7,500
brake system is properly charged...
(7)(i) Failure to adopt or comply 2,500 5,000
with unattended location plan......
(8)(i) Failure to verify securement. 2,500 5,000
(8)(ii) Failure to apply lock or 2,500 5,000
remove and secure reverser.........
(9) Failure implement operating rule 2,500 2,500
for securement job briefing........
(10) Failure to adopt and comply 2,500 5,000
with securement procedures for
after emergency response...........
232.105 General requirements for
locomotives:
* * * * * * *
(h)(1) Failure to equip with 2,500 5,000
operative locomotive lock..........
(h)(2)-(h)(3) Failure to inspect or 2,500 5,000
timely repair locomotive lock......
* * * * * * *
------------------------------------------------------------------------
Issued in Washington, DC, on July 27, 2015.
Sarah Feinberg,
Acting Administrator.
[FR Doc. 2015-19002 Filed 8-5-15; 8:45 am]
BILLING CODE 4910-06-P
