Federal Railroad Administration (FRA), Department of Transportation (DOT).
Final rule.
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.
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.
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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).
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-Mégantic, 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.
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
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).
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).
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-Mégantic, 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.
On July 6, 2013, in the town of Lac-Mégantic, 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.
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-Mégantic, 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
The derailment caused a release of 6 million liters of petroleum crude oil, resulting in a large fire with multiple explosions and 47 fatalities.
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.
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.
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.
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.
In direct response to the Lac-Mégantic 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 (
(2) A railroad must develop a process for securing unattended equipment containing Appendix A Materials that includes: (a) Locking the controlling locomotive cab or
(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.
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.
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-Mégantic. 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.
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-Mégantic 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-Mégantic 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.
The MMA train in the Lac-Mégantic 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.
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.
As demonstrated by the Lac-Mégantic 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-Mégantic 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.
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
• 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
• 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.
As previously noted, FRA has existing regulations—issued years before the accident at Lac-Mégantic and promulgation of Emergency Order 28—designed to ensure that trains and vehicles are properly secured before being left unattended.
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.”
• 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.
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),
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,
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.
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.
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-Mégantic, 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-Mégantic 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
• 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.
On September 9, 2014, FRA issued the NPRM in this proceeding.
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.
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,
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
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-Mégantic 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.
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 § 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.
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.
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 (
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,
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.
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
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 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 (
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.
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.
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).
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
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 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.
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
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
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 (
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.
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
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 (
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
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-Mégantic 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 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 Mégantic, 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
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.
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 (
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 (
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 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 (
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 (
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,
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 (
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 § 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.
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?
• 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.
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 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.
• 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 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.
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
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.
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.
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 § 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).
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:
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,
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,
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-Mégantic 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-Mégantic 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.
Following is a discussion of the regulatory costs and benefits associated with each requirement.
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 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
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 § 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 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 § 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
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.
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,
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,
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:
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.
FRA compiled the following summary table, using initial annual costs of $3,100 (
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 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 Mégantic accident that railroads would have adopted this practice even
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 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.
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
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.
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.
In estimating the damages of a higher-consequence event, we begin with the current estimated damages of Lac Mégantic. 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 Mégantic 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.
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.
FRA calculated the total monetized costs of the rule, with the costs for locomotive lock installation accounted for only for the first year:
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:
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.
For further distillation, FRA calculated the net benefits over 20 years:
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.
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.
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 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.
To ensure that the impact of this rulemaking on small entities is properly considered, FRA developed this final rule in accordance with Executive Order
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.
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 “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.
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 AAR-estimated unit cost of $210 per locomotive. For reasons discussed in the Regulatory Impact section above, FRA rejects that comment.
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
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
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
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.
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.
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
(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
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.
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
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
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.
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.
Hazardous material, Power brakes, Railroad safety, Securement.
In consideration of the foregoing, FRA is amending part 232 of chapter II, subtitle B of title 49, Code of Federal Regulations as follows:
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.
The revisions read as follows:
(n)
(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 (
(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 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.
(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
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 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 § 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.