# Securement of Unattended Equipment > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-19002 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** August 6, 2015 - **Citation:** 80 FR 47350 ## Text DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 232 [Docket No. FRA-2014-0032, Notice No. 2] RIN 2130-AC47 Securement of Unattended Equipment AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: FRA amends the brake system safety standards for freight and other non-passenger trains and equipment to strengthen the requirements relating to the securement of unattended equipment. Specifically, FRA codifies many of the requirements already included in its Emergency Order 28, Establishing Additional Requirements for Attendance and Securement of Certain Freight Trains and Vehicles on Mainline Track or Mainline Siding Outside of a Yard or Terminal. FRA amends existing regulations to include additional securement requirements for unattended equipment, primarily for trains transporting poisonous by inhalation hazardous materials or large volumes of Division 2.1 (flammable gases), Division 3 (flammable or combustible liquids, including crude oil and ethanol), and Class 1.1 or 1.2 (explosives) hazardous materials. For these trains, FRA also provides additional communication requirements relating to job briefings and securement verification. Finally, FRA requires all locomotives left unattended outside of a yard to be equipped with an operative exterior locking mechanism. Attendance on trains is required on equipment not capable of being secured in accordance with the proposed and existing requirements. DATES: This final rule is effective October 5, 2015. Petitions for reconsideration must be received on or before September 25, 2015. Petitions for reconsideration will be posted in the docket for this proceeding. Comments on any submitted petition for reconsideration must be received on or before November 9, 2015. ADDRESSES: Petitions for reconsideration and comments on petitions for reconsideration: Any petitions for reconsideration or comments on petitions for reconsideration related to this docket may be submitted by any of the following methods: • Web site: Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting documents. • Fax: 202-493-2251. • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590. • Hand Delivery: Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all submissions received will be posted without change to http://www.regulations.gov including any personal information. Please see the Privacy Act heading in the “Supplementary Information” section of this document for Privacy Act information related to any submitted comments or materials. Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: Steven Zuiderveen, Railroad Safety Specialist, Motive & Power Equipment Division, Office of Safety Assurance and Compliance, Federal Railroad Administration, RRS-14, West Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-6337); Jason Schlosberg, Trial Attorney, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-207, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-6032). SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Executive Summary II. Background A. Lac-Mégantic Derailment 1. Facts 2. Response B. Safety Concerns Arising Out of the Lac-Mégantic Derailment and Other Train Incidents Involving Flammable Liquids and Gases and Poison Inhalation Hazard Materials. C. Current Securement Regulations and Related Guidance D. Emergency Order 28 and Related Guidance E. RSAC Overview F. NPRM and Comments III. Rescinding Emergency Order 28 IV. Section-by-Section Analysis V. Regulatory Impact and Notices A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures Regulatory Flexibility Act and Executive Order 13272 B. Paperwork Reduction Act C. Federalism D. International Trade Impact Assessment E. Environmental Assessment F. Unfunded Mandates Reform Act of 1995 G. Energy Impact H. Privacy Act I. Executive Order 12898 (Environmental Justice) J. Executive Order 13175 (Tribal Consultation) I. Executive Summary Purpose of the Regulatory Action While FRA's existing securement regulations have been successful in mitigating risks associated with the unintended movement of unattended equipment, FRA recognizes that—particularly in light of certain incidents like the 2013 accident in Lac-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. Summary of the Major Provisions of the Regulatory Action In this proceeding, FRA issues requirements to ensure that each locomotive left unattended outside of a yard is equipped with an operative exterior locking mechanism and that such locks be applied on the controlling locomotive cab door when a train is transporting tank cars loaded with certain hazardous materials. This rule provides that such hazardous materials trains may only be left unattended on a main track or siding if justified in a plan adopted by the railroad, accompanied by an appropriate job briefing, and proper securement is made and verified. This rule also requires additional verification of securement in the event that a non-railroad emergency responder may have been in a position to have affected the equipment. Costs and Benefits of the Proposed Regulatory Action In this rule, the benefits ($1,163,669 at a 7% discount, $1,579,240 at a 3% discount) outweigh the costs ($86,685 at a 7% discount, $99,909 at a 3% discount), with total net benefits over 20 years of $1,076,984 at a 7% discount (or $95,009 annualized) and $1,478,331 at a 3% discount (or $96,538 annualized). Discounted values Discounted value Discount factor 7% 3% Costs Attending Trains $36,685 $49,909 Installing Locks 50,000 50,000 Total Costs 86,685 99,909 Benefits Reduced Vandalism 180,873 250,666 Reduced Recordkeeping 982,786 1,328,573 Total Benefits 1,163,669 1,579,240 Discounted values net benefits Discounted value Discount factor 7% 3% Total $1,076,984 $1,479,331 Annualized 95,009 96,538 II. Background In 2001, FRA issued regulations governing the securement of unattended equipment. 66 FR 4104, Jan. 17, 2001. These regulations have been effective in protecting against the risk of rolling equipment. Over the last few years, there has been a significant increase in the volume of rail traffic for certain types of commodities, such as petroleum crude oil (crude oil) and ethanol, both of which are highly flammable and often transported in large unit or “key” trains, as defined in the industry by the Association of American Railroads (AAR). See AAR Circular No. OT-55-N (Aug. 5, 2013), available at http://www.boe.aar.com/CPC-1258%20OT-55-N%208-5-13.pdf. Since 2009, there have been a number of serious rail accidents involving the transportation of large quantities of flammable liquids. A number of these accidents involved trains transporting large quantities of ethanol. However, since 2011, there has been significant growth in the rail transport of flammable crude oil, and FRA has seen a number of accident-related releases of crude oil in that time. One significant accident involving tank cars loaded with crude oil was the July 6, 2013, derailment in the town of Lac-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. See 78 FR 48213, Aug. 7, 2013. Subsequent to the issuance of Emergency Order 28, FRA also enlisted the assistance of the Railroad Safety Advisory Committee (RSAC) to develop recommendations regarding the attendance and securement of railroad equipment transporting certain hazardous materials when left unattended in light of the requirements contained in Emergency Order 28. A. Lac-Mégantic Derailment 1. Facts 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. 1 On July 5, 2013, a locomotive engineer was operating freight train MMA-002 on the Sherbrooke Subdivision from Farnham (milepost 125.60) and at around 10:50 p.m. stopped near Nantes, Quebec (milepost 7.40) on its way to its destination, Brownville Junction, Maine. The train was approximately 4,700 feet long, weighed over 10,000 tons, and included a locomotive consist of 5 head-end locomotives and one VB car (which served as a type of special-purpose caboose), one box car (buffer car), and 72 tank cars loaded with approximately 7.7 million liters of petroleum crude oil (UN 1267). The locomotive engineer parked train MMA-002 on the main line, on a descending grade of 1.2%, attempted to secure the train—including setting the independent brake, but not the automatic brake—and departed by automobile, leaving the train unattended. At around 11:40 p.m., a local resident reported a fire on the train. The local fire department was called and responded with another MMA employee. At approximately midnight, the controlling locomotive was shut down and the fire extinguished. After the fire was extinguished, the fire department and the MMA employee left the site. 1 Railway Investigative Report R13D0054, TSB, July 6, 2013, available at http://www.tsb.gc.ca/eng/rapports-reports/rail/2013/R13D0054/R13D0054.pdf. At approximately 1:00 a.m. the next day (the early morning of July 6th), the train began rolling and picking up speed down the descending grade toward the town of Lac-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 1/2 mile before stopping. The derailment caused a release of 6 million liters of petroleum crude oil, resulting in a large fire with multiple explosions and 47 fatalities. 2 There was also extensive damage to the town, and approximately 2,000 people were evacuated from the surrounding area. 2 See id.; see also Statistical Summary Railway Occurrences 2013, TSB, pp. 2, 5, available at http://www.tsb.gc.ca/eng/stats/rail/2013/ssro-2013.pdf. 2. Response In response to this accident, Transport Canada—the Canadian government department responsible for regulating transportation safety in Canada—issued an emergency railroad directive on July 23, 2013. 3 While Transport Canada explained in the emergency directive that the cause of the accident in Lac-Mégantic remained unknown, the emergency directive stated that, “in light of the catastrophic results of the Lac-Mégantic accident and in the interest of ensuring the continued safety and security of railway transportation, there is an immediate need to clarify the regime respecting unattended locomotives on main track and sidings and the transportation of dangerous goods in tank cars using a one person crew to address any threat to the safety and security of railway operations.” As such, Transport Canada exercised its statutory emergency directive authority to order railroad companies in Canada to comply with certain requirements related to unauthorized entry into locomotive cabs, directional controls on locomotives, the application of hand brakes to cars left unattended for more than one hour, setting of the automatic brake and independent brake on any locomotive attached to cars that are left unattended for one hour or less, attendance related to locomotives attached to loaded tank cars transporting dangerous goods on main track, and the number of crew members assigned to a locomotive attached to loaded tank cars transporting dangerous goods on a main track or siding. 3 See Emergency Directive Pursuant to Section 33 of the Railway Safety Act, Safety and Security of Locomotives in Canada, July 23, 2013, available at http://news.gc.ca/web/article-en.do?nid=829609; see also Rail Safety Advisor Letter—09/13, Securement of Equipment and Trains Left Unattended, Transport Canada (July 18, 2013), available at http://www.tsb.gc.ca/eng/medias-media/sur-safe/letter/rail/2013/r13d0054/r13d0054-617-09-13.asp. Also on July 23, 2013, Transport Canada issued an accompanying order pursuant to paragraph 19(a)(1) of the Canadian Railway Safety Act directing railroad companies in Canada to formulate or revise certain railroad operating rules, respecting the safety and security of unattended locomotives, uncontrolled movements, and crew size requirements. 4 The order provides that rules should be based on an assessment of safety and security risks, and shall at a minimum ensure that the cab(s) of unattended controlling locomotives are secure against unauthorized entry; ensure that the reverse levers (commonly referred to as a “reversers”) of unattended locomotives are removed and secured; prevent uncontrolled movements of railway equipment by addressing the application of hand brakes; ensure the security of stationary railway equipment transporting dangerous goods; and provide for minimum operating crew requirements considering technology, length of train, speeds, classification of dangerous goods being transported, and other risk factors. 4 Railroads operating within Canada were at the time of the Lac-Mégantic derailment, and are currently, required to comply with the Canadian Rail Operating Rules that have been approved by Transport Canada. The Railway Association of Canada submitted proposed operating rules to Transport Canada on November 20, 2013. Transport Canada accepted the proposed rules submitted on December 26, 2013, making the operating rules applicable to all railway companies operating in Canada. See TC O 0-167. As a result, railroads operating in Canada are now required to comply with Canadian Rail Operating Rules (CROR) CROR 112, as amended. CROR 62 pertains to “Unattended engines.” The term “unattended” is now defined in the CROR as “when an employee is not in close enough proximity to take effective action.” The new Canadian requirements, applicable to each engine left unattended outside of an attended yard or terminal, requires cab securement to prevent unauthorized entry and removal of the reverser from the engine when it does not have a high idle feature and not in sub-zero temperatures. See CROR 62 (TC O 0-167). Transport Canada also approved expansive revisions to CROR 112, which now provides minimum requirements, acceptable methods, and factors to consider for securing equipment while switching en route or left unattended. See CROR 112 (TC O 0-167). In direct response to the Lac-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 ( e.g., crude oil and ethanol)—until the railroad develops, adopts, and complies with a plan that identifies specific locations and circumstances when such equipment may be left unattended. 5 5 AAR has voluntarily applied Emergency Order 28 to trains that have a single PIH materials tank car. (2) A railroad must develop a process for securing unattended equipment containing Appendix A Materials that includes: (a) Locking the controlling locomotive cab or removing and securing the reverser and (b) communication of pertinent securement information to the dispatcher for recordation. (3) Each railroad must review and verify, and adjust, as necessary, existing procedures and processes related to the number of hand brakes to be set on all unattended trains and equipment. (4) Each railroad must require a job briefing addressing securement for any job that will impact or require the securement of any equipment in the course in the course of the work being performed. (5) Each railroad must ensure that a qualified railroad employee inspects all equipment that any emergency responder has been on, under, or between for proper securement before the train or vehicle is left unattended. (6) Each railroad must provide notice to all employees affected by Emergency Order 28. See 78 FR 48224, Aug. 7, 2013. Following a request from AAR and ASLRRA, FRA granted partial relief from Emergency Order 28's dispatcher communication requirement in certain limited situations. FRA's relief letter provides that a railroad employee may leave equipment unattended on a mainline or siding without contacting the train dispatcher when the employee is actively engaged in switching duties as long as the employee ensures that there is an emergency application of the air brakes, hand brakes are set in accordance with 49 CFR 232.103(n), and the employee has demonstrated knowledge of FRA and railroad securement requirements. See Letter from Robert C. Lauby, Acting Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, to Michael J. Rush, Associate General Counsel, AAR, and Keith T. Borman, Vice President and General Counsel, ASLRRA, (Aug. 27, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php. Additionally, FRA and the Pipeline and Hazardous Materials Safety Administration (PHMSA) jointly issued a Safety Advisory to railroads and commodity shippers detailing eight recommended actions the industry should take to better ensure the safe transport of hazardous materials. See Federal Railroad Administration Safety Advisory 2013-06, Lac-Mégantic Railroad Accident and DOT Safety Recommendations, 78 FR 48224, Aug. 7, 2013, available at http://www.fra.dot.gov/eLib/details/L04720. These recommendations include: Reviewing the details and lessons learned from the Lac Mégantic accident; reviewing crew staffing levels; removing and securing the train's “reverser” when unattended; review of all railroad operating procedures, testing and operating rules related to securing a train; reviewing Transport Canada's directives to secure and safely operate a train; and conducting a system-wide assessment of security risks when a train is unattended and identify mitigation efforts for those risks. Additionally, the Safety Advisory recommends testing and sampling of crude oil for proper classification for shipment, as well as a review of all shippers' safety and security plans. FRA also convened an emergency meeting of FRA's RSAC to begin the deliberative process with FRA's stakeholders, including railroad management, railroad labor, shippers, car owners, and others, as the agency considers requirements in Emergency Order 28 and recommendations in the Safety Advisory that should be made a part of its regulations. 6 6 The RSAC was given three tasks. In addition to developing securement recommendations, it was also tasked with developing recommendations addressing issues relating to train crew size and hazardous materials such as identification and classification of hazardous materials, operational controls, and handling of certain hazardous materials shipments. The RSAC hazardous materials working group was able to reach consensus on amending the definitions of “residue” and “key train” and clarifying the jurisdiction concerning loading, unloading, and storage of hazardous materials before and during transportation. These recommendations have been provided to PHMSA, which has regulatory authority over hazardous materials shipments. On August 19, 2014, the TSB released its Railway Investigation Report R13D0054, citing 18 causal and contributing factors, plus an additional 16 findings as to risk, concerning the accident at Lac-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. B. Safety Concerns Arising Out of the Lac-Mégantic Derailment and Other Train Incidents Involving Flammable Liquids and Gases and Poison Inhalation Hazard Materials The vast majority of hazardous materials shipped by rail each year arrive at their destinations safely and without incident. Indeed, in calendar year 2013, there were only 18 accidents in which a hazardous material was released (involving a total of 78 cars) out of approximately 1.6 million shipments of hazardous material transported in rail tank cars in the United States. However, the Lac-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. 7 Freight railroads in the United States also transport a substantial amount and variety of hazardous materials, including PIH materials, also known as materials toxic by inhalation (TIH), and explosive materials. Moreover, an increasing proportion of the hazardous materials transported by rail is classified as flammable. 8 7 As an example, MMA formerly operated in both the United States and Canada, with approximately 510 miles of track in Maine, Vermont, and Quebec, and the tank cars transporting the crude oil that derailed in Lac-Mégantic originated in the Williston Basin of North Dakota. A discussion concerning the applicable Canadian securement requirements can be found above in the section titled “2. Response,” which addresses the actions taken by the United States and Canada in direct response to the Lac-Mégantic incident. 8 PHMSA prescribes a comprehensive regulatory safety system that categorizes hazardous materials into nine hazard classes based on the type of hazards presented by the materials. See 49 CFR parts 172 and 173. Under PHMSA's regulations, crude oil, in most forms, meets the definition of a “Class 3” hazardous material, which signifies that it is a flammable liquid. Ethanol, discussed below, also is a Class 3 hazardous material. PIH materials, referenced above, include “Class 2 and Division 2.3” gases and “Class 6, and Division 6.1” poisons other than gases. Chlorine gas and anhydrous ammonia are two examples of PIH materials (Division 2.3) that are commonly transported by rail. 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. 9 According to the AAR, crude oil traffic increased 68-fold in the United States between 2005 and 2013. Much of this growth has occurred because of developments in North Dakota, as the Bakken formation in the Williston Basin has become a major source for oil production in the United States. Texas also has contributed to the growth of crude oil shipments by rail. As a result, carloads of crude oil increased from approximately 81,452 in 2011 to approximately 485,384 in 2013. The Bakken crude oil from North Dakota is primarily shipped via rail to refineries located near the U.S. Gulf Coast—particularly in Texas and Louisiana—or to pipeline connections, most notably to connections located in Oklahoma. Crude oil is also shipped via rail to refineries on the East Coast and West Coast, and to a lesser extent, refineries in other regions of the U.S. 10 9 PHMSA uses packing groups to categorize hazardous materials according to the danger presented. Hazardous materials in Packing Group I present great danger; Packing Group II present medium danger; and Packing Group III presents minor danger. See 49 CFR 171.8. 10 See AAR's May 2013 paper “Moving Crude Oil by Rail”, available online at: https://www.aar.org/safety/Documents/Assets/Transportation_of_Crude_Oil_by_Rail.pdf. All indications from the U.S. Department of Energy's U.S. Energy Information Administration (EIA) are that rail capacity for Bakken crude oil from the Williston Basin will continue to expand to meet production. 11 Rail shipments from the North Dakota region are forecast to increase over the next two years (as are pipeline shipments). Much of the near-term growth in rail originations is a function of how quickly rail car manufacturers can meet the demand by producing new tank cars, primarily for transporting Bakken crude oil. The rise in rail originations in crude oil is subject to changes in the number of tank cars available, price of crude oil, overall production of crude oil in that region; and if, or how quickly, additional pipeline capacity from that region comes online. However, for the foreseeable future, all indications are for continued growth of rail originations of crude in that region as new tank car fleets come online to meet demand. 11 See EIA reports “Bakken crude oil price differential to WTI narrows over last 14 months,” available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=10431; and “Rail delivery of U.S. oil and petroleum products continues to increase, but pace slows,” available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=12031. 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. 12 Simultaneously, an eastbound crude oil unit train was operating on main track 2. The crude oil unit train reduced its speed and collided with a derailed car that was fouling, resulting in the derailment of the head-end locomotives and the first 21 cars of the crude oil unit train. Eighteen of the 21 derailed tank cars ruptured, releasing an estimated 400,000 gallons of crude. The ruptured tank cars ignited causing an explosion. There were no reported injuries by either train crew, nor were there any injuries to the public; however, about 1,400 people were evacuated. Damages from the derailment are estimated at $6.1 million. 13 12 This derailment currently is being investigated by the National Transportation Safety Board (NTSB), and information regarding this incident can be found at the NTSB Web site. See http://www.ntsb.gov/doclib/reports/2014/Casselton_ND_Preliminary.pdf. 13 See id. Also, on November 8, 2013, a 90-car crude oil train derailed in a rural area near Aliceville, Alabama. The crude oil shipment had originated in North Dakota and was bound for Walnut Hill, Florida, to be transported by a regional pipeline to a refinery in Saraland, Alabama. More than 20 cars derailed and at least 11 cars ignited, resulting in an explosion and fire. Although there were no reported injuries, an undetermined amount of crude oil escaped from derailed cars and fouled a wetlands area near the derailment site. The dangers related to crude oil trains are not necessarily unique. They also exist with other hazardous materials such as ethanol, which is another flammable liquid that is commonly transported in large quantities by rail. In 2012, more carloads of ethanol were transported via rail than any other hazardous material. The railroads experienced an increase in ethanol traffic of 442 percent between 2005 and 2010. Although in 2013 the number of carloads dropped by 10 percent from 2010 levels, there were still approximately 297,000 carloads transported by rail. Since 2009, there have been at least six major mainline derailments resulting in the breach of tank cars containing ethanol. While FRA recognizes that none of these six derailments resulted from a roll-away situation, they are instructive on the destructive potential of a derailment involving tank cars containing flammable products: • On August 5, 2012, in Plevna, Montana, a BNSF Railway Co. train derailed 18 cars while en route from Baker, Montana. Seventeen of the 18 cars were tank cars loaded with denatured alcohol, a form of ethanol. Five of the cars caught on fire resulting in explosions, the burning of surrounding property not within the railroad's right-of-way, and the evacuation of the immediate area. • On July 11, 2012, in Columbus, Ohio, a Norfolk Southern Railway Co. train derailed while operating on main track. Thirteen tank cars containing ethanol derailed resulting in a fire and the evacuation of 100 people within a one-mile radius of the derailment. • On February 6, 2011, in Arcadia, Ohio, a Norfolk Southern Railway Co. train operating on single main track derailed 33 tank cars loaded with ethanol. The derailment caused a major fire and forced the evacuation of a one-mile radius around the derailment. • On June 19, 2009, in Cherry Valley, Illinois, a Canadian National Railway train derailed 19 tank cars loaded with ethanol. Thirteen of the 19 derailed cars caught fire, and there were reports of explosions. One person died, and there were 9 reported injuries related to the fire. Additionally, approximately 600 residences were evacuated within a 1/2 -mile radius of the derailment. • On October 7, 2011, at about 2:14 a.m. CDT, at milepost 121.8 on the No. 1 Subdivision near Tiskilwa, Illinois, an eastbound Iowa Interstate Railroad (IAIS) freight train No. RI-BI-06—with two locomotives and 131 cars—derailed its head 26 cars. The derailed cars included ten cars of ethanol, several of which were breached and lost a substantial amount of their product, resulting in a fire and an evacuation of about 800 residents. The emergency responses began almost immediately and were supported by surrounding local fire and police departments to control and suppress the fire and execute the evacuation. The fire suppression was sustained over two and half days. There were no injuries or fatalities. • On February 4, 2015, in Dubuque, Iowa, a Canadian Pacific Railway unit train—with 13 of its 80 tank cars containing denatured alcohol—derailed, with at least one of the cars falling into the Mississippi River. Three of the cars caught fire and there was a release of an unknown quantity of denatured alcohol into the river. Officials established a half-mile evacuation zone, but there were no occupied structure in that area. While these accidents were serious, their results had potential for higher-consequence outcomes. The higher-consequence releases created the potential for additional deaths, injuries, property damage, and environmental damage. There are other hazardous materials that have similar potential for higher-consequence danger. For example, accidents involving trains transporting other hazardous materials, including PIH materials such as chlorine and anhydrous ammonia, can also result in serious consequences as evidenced by the following accidents: • On January 6, 2005, in Graniteville, South Carolina, a Norfolk Southern Railway Co. train collided with another Norfolk Southern Railway Co. train that was parked on a customer side track, derailing both locomotives and 16 cars of the moving train. The accident was caused by a misaligned switch. Three tank cars containing chlorine derailed, one of which was punctured. The resulting chlorine exposure caused 9 deaths, approximately 554 people were taken to local hospitals, and an additional 5,400 people within a one-mile radius of the site were evacuated by law enforcement personnel. FRA's analysis of the total cost of the accident was $126 million, including fatalities, injuries, evacuation costs, property damage, environmental cleanup, and track out of service. • On June 28, 2004, near Macdona, Texas, a Union Pacific Railroad Co. train passed a stop signal and collided with a BNSF Railway Co. train. A chlorine car was punctured, and the chlorine gas that was released killed three and injured 32. • On January 18, 2002, a Canadian Pacific Railway train containing 15 tank cars of anhydrous ammonia derailed half a mile from the city limits of Minot, North Dakota due to a breaking of the rail at a joint. Five of these tank cars ruptured, which resulted in an ammonia vapor that spread 5 miles downwind over an area where 11,600 people lived. The accident caused one death, 11 serious injuries, and 322 minor injuries. Environmental cleanup costs reported to the NTSB were $8 million. • On July 18, 2001, 11 of 60 cars in a CSX Transportation, Inc. freight train derailed while passing through the Howard Street Tunnel in downtown Baltimore, Maryland. The train included 8 tank cars loaded with hazardous material; 4 of these were among the cars that derailed. A leak in a tank car containing tripropylene resulted in a chemical fire. A break in a water main above the tunnel flooded both the tunnel and the streets above it with millions of gallons of water. FRA recognizes that these four incidents did not result from a roll-away situation. However, they illustrate the destructive potential of PIH materials' derailments. While train accidents involving hazardous materials are caused by variety of factors, nearly one-half of all accidents are related to railroad human factors or equipment defects. FRA's data shows that since 2009, human factors have been the most common cause of reportable train accidents. Based on FRA's accident reporting data for the period from 2010 through May 2014, approximately 34 percent of reported train accidents/incidents, as defined by 49 CFR 225.5, were human factor-caused. 14 With regard to the securement of unattended equipment, specifically, FRA accident/incident data indicates that approximately 8.7 percent of reported human factor-caused train accidents/incidents from calendar year 2010 until May 2014 were the result of improper securement, which means that improper securement is the cause of approximately 2.9 percent of all reported accidents/incidents. 15 The types of securement errors that typically lead to accidents/incidents include failing to apply any hand brakes at all, failing to apply a sufficient number of hand brakes, and failing to correctly apply hand brakes. Emergency Order 28 and this final rule intends to address some of the human factors failures that may cause unattended equipment to be improperly secured to protect against a derailment situation similar to that which occurred in Lac-Mégantic. 14 FRA estimates that there were a total of approximately 8976 accidents/incidents reported during that time period. Approximately 3030 of those accidents/incidents were caused by human factors, and 906 involved equipment that was placarded as containing hazardous materials. 15 There were a total of approximately 264 reported accidents/incidents that were caused by securement errors. Of those 264 accidents/incidents, approximately 98 involved equipment that was placarded as containing hazardous materials. C. Current Securement Regulations and Related Guidance As previously noted, FRA has existing regulations—issued years before the accident at Lac-Mégantic and promulgation of Emergency Order 28—designed to ensure that trains and vehicles are properly secured before being left unattended. See 49 CFR 232.103(n). In FRA's view, if existing regulations are followed, the risk of movement of unattended equipment is substantially reduced. Despite the demonstrated effectiveness of FRA's current securement regulations, FRA has determined that the increased shipments of hazardous materials such as crude oil and ethanol, combined with the potential for higher-consequences from any accident that might occur due to improper securement, particularly on mainline track and mainline sidings outside of a yard, proper securement has become a serious and immediate safety concern. Therefore, FRA established additional securement measures in Emergency Order 28 to ensure the continued protection of the health and safety of railroad employees, the general public, and the environment. In this final rule, FRA establishes permanent rules to strengthen the current regulations and ensure public safety by adopting the necessary and effective securement measures FRA included in Emergency Order 28 as part of its immediate response to the Lac-Mégantic derailment. The current regulations define “unattended equipment” as “equipment left standing and unmanned in such a manner that the brake system of the equipment cannot be readily controlled by a qualified person.” Id. Section 232.103(n) generally addresses the securement of unattended equipment by stating that a train's air brakes must not be depended on to hold equipment standing unattended on a grade. More specifically, § 232.103(n) also requires that the railroad apply a sufficient number of hand brakes to hold the equipment with the air brakes released and that the brake pipe pressure be reduced to zero with the angle cock opened on one end of a cut of cars when not connected to a locomotive or other compressed air source. The existing regulations also require railroads to develop a process or procedure for verifying that the hand brakes applied are sufficient to hold the equipment with the air brakes released. When dealing with locomotives and locomotive consists, § 232.103(n)(3) establishes specific additional requirements: • All hand brakes must be fully applied on all locomotives in the lead consist of an unattended train. • All hand brakes must be fully applied on all locomotives in an unattended locomotive consist outside of yard limits. • The minimum requirement for an unattended locomotive consist within yard limits is that the hand brake must be fully applied on the controlling locomotive. • Railroads must develop, adopt, and comply with procedures for securing any unattended locomotive that is not equipped with an operative hand brake. Additionally, FRA continues to require each railroad to adopt and comply with instructions addressing each unattended locomotive's position of the throttle, generator field switch, isolation switch, and automatic brake valve and the status of its reverser and independent brakes. See 49 CFR 232.103(n)(4). FRA has also issued guidance documents interpreting these regulations. For instance, on March 24, 2010, FRA issued Technical Bulletin MP&E 2010-01, Enforcement Guidance Regarding Securement of Equipment with Title 49 Code of Federal Regulations Section 232.103(n) (TB 10-01), available at http://www.fra.dot.gov/eLib/details/L02394. While FRA continues to believe that the securement requirements of § 232.103 are not met where there is a complete failure to apply even a single hand brake on unattended equipment, FRA also recognizes that there are times when it is necessary to have unsecured equipment, such as during switching activities when assembling and disassembling trains within classification yards. Therefore, TB 10-01 has provided guidance regarding alternative forms of securement in such instances. For example, TB 10-01 notes that FRA will allow a train crew cutting away from a cut of cars to initiate an emergency brake application on the cut of cars, and then close the angle cock, if the crew is taking a locomotive consist directly to the opposite end of the cut of cars to in order to couple the locomotive consist to the cars or to open the angle cock at the other end and leave the angle cock open and vented to the atmosphere, as required under 49 CFR 232.103(n)(2). Additionally, TB 10-01 makes clear that FRA will allow the use of skates and retarders in hump classification yards, classification yards with bowl tracks, or flat switching yards if the retarders and skates are used within their design criteria and as intended. In the NPRM to this proceeding, FRA considered codifying TB 10-01 by amending the rule at the final rule stage of this proceeding. The final rule makes the amendment considered and codifies the existing guidance contained in TB 10-01. This particular amendment does not include any additional requirements from the original guidance issued in the technical bulletin and is further explained below. Also notable is that in 2013 and 2014, FRA and PHMSA undertook nearly two dozen actions to enhance the safe transport of crude oil. This comprehensive approach included near- and long-term steps such as the following: launching “Operation Classification” in the Bakken region to verify that crude oil is properly classified; issuing safety advisories, alerts, emergency orders and regulatory updates; conducting special inspections; aggressively moving forward with a rulemaking to enhance tank car standards; and reaching agreement with railroad companies on a series of immediate voluntary actions including reducing speeds, increasing inspections, using new brake technology and investing in first responder training. Most of those actions have been well outside the scope of securement. However, FRA references these actions here to help place this rulemaking in the broader context of DOT's wide-ranging response to the safety issues created by these trains. For a summary of these actions, see Federal Railroad Administration's Action Plan for Hazardous Materials Safety, Federal Railroad Administration (May 20, 2014) available at http://www.fra.dot.gov/eLib/details/L04721. Additionally, in August 2014, PHMSA, in coordination with FRA, published an NPRM proposing enhanced tank car standards and operational controls for high-hazard flammable trains, which is defined as a single train carrying 20 or more tank cars of a Class 3 flammable liquid in a continuous block or a single train carrying 35 or more tank cars of a Class 3 flammable liquid throughout the train consist. See “Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains,” 79 FR 45015, Aug. 1, 2014. PHMSA recently issued that final rule including operational controls considered in the PHMSA NPRM such as speed restrictions and enhanced braking systems for HHFTs. See 80 FR 26643, May 8, 2015. FRA expects that the operational controls contemplated in that PHMSA final rule will work in concert with the securement requirements that FRA is implementing in this final rule. D. Emergency Order 28 and Related Guidance On August 2, 2013, FRA issued Emergency Order 28 establishing additional requirements on the treatment of securement of unattended equipment. On the same date, FRA issued a related Safety Advisory and announced an emergency RSAC meeting. See Federal Railroad Administration Safety Advisory 2013-06, Lac-Mégantic Railroad Accident and DOT Safety Recommendations, 78 FR 48224, Aug. 7, 2013, available at http://www.fra.dot.gov/eLib/details/L04720. FRA also subsequently issued guidance related to Emergency Order 28 and granted partial relief from Emergency Order 28 to the AAR and ASLRRA. See Guidance on Emergency Order 28 (Aug. 21, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php; Letter from Robert C. Lauby, Acting Associate Administrator for Railroad Safety/Chief Safety Officer, FRA, to Michael J. Rush, Associate General Counsel, AAR, and Keith T. Borman, Vice President and General Counsel, American Short Line and Regional Railroad Association, (Aug. 27, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php. E. RSAC Overview In March 1996, FRA established the RSAC, which provides a forum for collaborative rulemaking and program development. RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of RSAC members follows: • American Association of Private Railroad Car Owners (AARPCO); • American Association of State Highway & Transportation Officials (AASHTO); • American Chemistry Council (ACC); • American Petroleum Institute (API); • American Public Transportation Association (APTA); • ASLRRA; • American Train Dispatchers Association (ATDA); • AAR; • Association of State Rail Safety Managers (ASRSM); • Association of Tourist Railroads and Railway Museums (ATRRM); • Brotherhood of Locomotive Engineers and Trainmen (BLET); • Brotherhood of Maintenance of Way Employes Division (BMWED); • Brotherhood of Railroad Signalmen (BRS); • Chlorine Institute; • Federal Transit Administration (FTA);* • Fertilizer Institute; • Institute of Makers of Explosives; • International Association of Machinists and Aerospace Workers (IAM); • International Brotherhood of Electrical Workers (IBEW); • Labor Council for Latin American Advancement (LCLAA);* • League of Railway Industry Women;* • National Association of Railroad Passengers (NARP); • National Association of Railway Business Women;* • National Conference of Firemen & Oilers; • National Railroad Construction and Maintenance Association (NRC); • National Railroad Passenger Corporation (Amtrak); • National Transportation Safety Board (NTSB);* • Railway Passenger Car Alliance (RPCA) • Railway Supply Institute (RSI); • Safe Travel America (STA); • Secretaria de Comunicaciones y Transporte;* • SMART Transportation Division (SMART TD); • Transport Canada;* • Transport Workers Union of America (TWU); • Transportation Communications International Union/Brotherhood of Railway • Carmen (TCIU/BRC); • Transportation Security Administration (TSA). * Indicates associate, non-voting membership. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. The working group may establish one or more task forces or other subgroups to develop facts and options on a particular aspect of a given task. The task force, or other subgroup, reports to the working group. If a working group comes to consensus on recommendations for action, the package is presented to RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, and because the RSAC recommendation constitutes the consensus of some of the industry's leading experts on a given subject, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goals, is soundly supported, and is in accordance with applicable policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA resolves the issue(s) through traditional rulemaking proceedings or other action. The RSAC convened an emergency session on August 29, 2013, in response to the accident at Lac-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 Corporation, and WATCO Companies, Inc. (WATCO); • ASRSM, including members from California Public Utilities Commission (CPUC); • ATDA; • BLET; • BMWED; • BRS; • IAM; • NRC, including members from Herzog Transit Services (Herzog); • NTSB; • PHMSA; • RSI; • SMART TD; • TCIU/BRC; • Transport Canada; and • TWU. The SWG convened subsequently on October 30, 2013, December 17, 2013, January 28, 2014, and March 4, 2014, in Washington, DC to respond to these tasks and voted to approve the recommendation on March 4, 2014. The SWG presented its recommendation to the full RSAC, which voted by electronic ballot between March 25 and March 31, 2015, to accept the recommendations. On April 2, 2014, the RSAC announced that by majority vote the recommendations had been approved and would become its recommendation to the Administrator. The recommendation of the RSAC included amendments to 49 CFR 232.103(n) that would do the following: (1) Provide additional requirements for the securement of unattended equipment carrying certain hazardous materials; (2) mandate the implementation of operating rules and practices requiring that securement be part of all relevant job briefings; and (3) require adoption and compliance with procedures to secure equipment subsequent to an emergency response. The RSAC recommendation also included amendments to 49 CFR 232.105 that would require equipping locomotives with exterior locking mechanisms. F. NPRM and Comments On September 9, 2014, FRA issued the NPRM in this proceeding. See 79 FR 53356, Sept 9, 2014. Subsequent to the issuance of the NPRM, FRA received comments from: Amsted Rail Company, Inc. (Amsted), BLET, CPUC, NTSB, the North America Freight Car Association (NAFCA), Riverkeeper, Inc. (Riverkeeper), and the State of New York Department of Transportation (NYSDOT). AAR and ASLRRA also filed a joint comment on behalf of their member railroads. These comments are addressed in detail in the section-by-section analysis contained below. III. Rescinding Emergency Order 28 This final rule codifies the requirements of Emergency Order 28 that FRA believes are necessary to ensure the safe securement of the types of trains and equipment identified in the Emergency Order. Once this final rule becomes effective, FRA believes that the unsafe condition or practices identified in the Emergency Order will be addressed by the provisions of this final rule. Accordingly, Emergency Order 28 is rescinded on the effective date of this final rule. IV. Section-by-Section Analysis Unless otherwise noted, all “part” and “section” references below refer to provisions either in title 49 of the CFR or proposed to be in title 49 of the CFR. Before entering into specific analysis of each section, it is important to make clear that this final rule, which like Emergency Order 28 provides more restrictive securement requirements for specific types of equipment than the existing regulations, does not affect FRA's policy concerning the Federal hours of service requirements. FRA continues to believe that a railroad may not require or allow a train employee with an accumulated time on duty of 12 hours or more to remain on a train for the sole purpose of meeting the securement requirements, including those proposed here. A train employee may, however, remain on an unsecured train, if that employee is legitimately waiting for deadhead transportation from duty to a point of final release, performs no covered or commingled service, 16 and is free to leave the equipment when deadhead transportation arrives. In this case, time spent waiting for and in deadhead transportation is treated as neither time on duty nor time off duty. 16 A person is considered by the hours of service laws to be neither on duty nor off duty during periods they are either waiting for or in deadhead transportation to their point of final release ( i.e., have completed their time on duty and are waiting for or in transportation to end their duty tour). In order to be considered “waiting for” deadhead transportation, the person must not be required to perform other duties. Merely being on a train is not inherently performing a duty; being on or with the train is a necessary element of waiting for transportation from the train. This is true even when the railroad receives the benefit of having the train attended while employees aboard wait for transportation. Such time is considered “limbo time” and is not contingent upon the train's securement status. See BLET v. Atchison Topeka and Santa Fe Railway, 516 U.S. 152 (1996) (holding that the time waiting for deadhead transportation under the hours of service laws must be counted as “limbo time”). However, should the employee be required to perform some activity to prevent the movement of the equipment or to secure the train prior to departing with deadhead transportation, then the time spent performing the activity and any intervening time spent waiting would be considered covered and commingled service respectively. See 49 CFR part 228, app. A. Thus, whether a train is secured or unsecured when an employee is waiting for deadhead transportation, that waiting time will count as limbo time, so long as no covered activities are performed. In its comment, BLET expressed concern about FRA's discussion in the NPRM of the hours of service implications of the proposed rule. BLET particularly objected to the reference in the directly preceding footnote regarding employees “remaining sufficiently alert to respond to unattended movement,” which it viewed as potentially establishing a new requirement. To reduce confusion, and as there was no intention to establish a new requirement, FRA has eliminated that language in this preamble to the final rule. FRA's intention was merely to provide an example of the application of the hours of service laws in the NPRM for the benefit and convenience of the reader. This final rule does not in any way change the application of the hours of service laws to the time that employees may spend waiting for deadhead transportation aboard an unsecured train. FRA also notes that this final rule does not include the portion of Emergency Order 28 that requires railroads to review, verify, and adjust, as necessary, existing requirements and instructions related to the number of hand brakes to be set on unattended trains and vehicles, and to review and adjust, as necessary, the procedures for verifying that the number of hand brakes is sufficient to hold the train or vehicle with the air brakes released. As stated in the NPRM, it was FRA's concern that existing railroad processes and procedures related to setting and verifying hand brakes on unattended trains and equipment were not sufficient to hold all trains and vehicles in all circumstances. FRA believes that the railroads have fulfilled this requirement and thus there is no need to include it in this final rule. NAFCA has expressed concern with the elimination of the requirement in Emergency Order 28 that the railroads review, verify, and adjust their existing requirements and instructions related to the number of hand brakes to be set on unattended trains and vehicles and to ensure that such a number is sufficient to hold the train or vehicle with the air brakes released. While NAFCA recognizes that FRA believes that the railroads have already fulfilled this requirement, it contends that FRA is eliminating a salutary safety measure that is not unduly burdensome to the railroad. NAFCA recommends that the requirement remain in place while FRA and the industry gain more experience with the Class 3 flammable liquid transportation issues and consider removing the requirement at a later time. NYSDOT concedes that periodic review, verification and adjustment of those processes and procedures are an inherent obligation of the railroads, citing the existing and continuing requirement under § 232.103(n)(1) that “[r]ailroads shall develop and implement a process or procedure to verify that the applied hand brakes will sufficiently hold the equipment with the air brakes released.” Given FRA's expressed confidence that the railroads have fulfilled the requirement in Emergency Order 28 to review, verify, and adjust, as necessary, those requirements, NYSDOT agrees that it is unnecessary to include it in this final rule. FRA declines to postpone elimination of this specific requirement, which was designed as a one-time requirement to emphasize the need following the Lac-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. Amendments to 49 CFR Part 232 Section 232.5 Definitions In this final rule, FRA is including a new defined term, “mechanical securement device”. “Mechanical securement device” means a device, other than the air brake, that provides at least the equivalent securement that a sufficient number of hand brakes would provide in the same situation. In TB 10-01, further analyzed below, FRA contemplated the proper use of skates, retarders, or inert retarders to secure equipment in certain circumstance and within classification yards. FRA recognizes, however, that other current and future securement technologies could perhaps be utilized for the same purpose. By using the more generalized, performance-based term, mechanical securement device, FRA intends to provide additional flexibility, and to “future proof” the regulation, to allow the use of other sufficient securement technologies in the same circumstances and locations. By definition, FRA understands mechanical securement devices to include current examples such as skates, retarders, and inert retarders; which are also further discussed below. In the 2001 rule, the definition of “unattended equipment” was included in § 232.103(n). As further discussed below, this final rule includes a new paragraph (h) for § 232.105, which also makes use of the definition for “unattended equipment.” Since the term would be used in multiple sections, this final rule moves the definition to the more broadly applicable definitions in § 232.5. Doing so allows FRA to rephrase paragraph (n) for clarity purposes, as discussed further below. Placement of the definition in § 232.5 does not change its meaning and is solely for applicability and clarity purposes. FRA received no comments on this organizational change and is amending § 232.5 accordingly. FRA is also changing the term “yard limits” to “yard” without any change to its definition, with concurrent changes from “yard limits” to “yard” in § 232.103(n). FRA is also including the term “yard” in its new § 232.105(h). As currently defined in part 232, a yard limit is “a system of tracks, not including main tracks and sidings, used for classifying cars, making-up and inspecting trains, or storing cars and equipment.” But in part 218, yard limits are described as a railroad-designated operating territory that is established by yard limit signs; and timetable, train orders, or special instructions. See 49 CFR 218.35(a). Making this change minimizes the risk of ambiguity and confusion by clarifying that specific securement practices are connected to the physical presence of a yard, and not to an operating practices description of yard limits, which could potentially encompass an entire railway system. NTSB concurred with this change removing the word “limits” from the term “Yard limits.” According to NTSB, this distinction will appropriately define the intent of the rule to include only those main tracks that are connected to the physical presence of a yard and will avoid the operating practices description of yard limits that could potentially encompass an entire railway system. FRA received no negative comments on this clarifying change and is amending § 232.5 accordingly. Section 232.103 General Requirements for all Train Brake Systems As previously noted, FRA is moving the definition of “unattended equipment” to § 232.5, creating an opportunity to rephrase and clarify the introductory language of paragraph (n). Part of this rephrasing includes moving the opening sentence of paragraph (n)—“A train's air brake shall not be depended upon to hold equipment standing unattended on a grade (including a locomotive, a car, or a train whether or not locomotive is attached)”—to paragraph (n)(2). The remaining introductory language of paragraph (n) would become more succinct and clear. While it is not an RSAC recommendation, FRA is also amending paragraph (n)(1) to make more clear its existing expectation that in most circumstances at least one hand brake must be applied to hold unattended equipment. Although this has been stated in earlier rulemakings and guidance documents ( see, e.g., TB 10-01), there has been some confusion about whether the use of wheel chocks, skates, or other securement devices is sufficient to hold unattended equipment. FRA's longstanding interpretation is that at least one hand brake is required to hold unattended equipment except in certain limited situations. For instance, in a hump classification yard, an alternative form of securement, such as skates and retarders, may be allowed provided they are used within their design criteria and as intended. FRA believes adding explicit language to the regulatory text is warranted in order to formally address the requirement to set at least one hand brake in most instances. Further changes to the rule to incorporate TB 10-01 are discussed further below. NAFCA encourages FRA to harmonize its changes to § 232.103 in the final rule with the Emergency Directive Pursuant to Section 33 of the Railway Safety Act—Securement of Railway Equipment—issued by Transport Canada on October 29, 2014. In this Emergency Directive, the Canadian government replaced the “sufficient number of hand brakes” requirement with a requirement that trains have a specific number of hand brakes, determined by the weight of the train and the slope of the track. NAFCA favors the increased specificity of the Canadian approach and urges FRA to develop harmonized rules with Canada that are prescriptive, based on sound engineering, and incorporate factors such as train consist/weight, terrain, environmental, and other considerations. According to NAFCA, it is critically important that the two countries' respective efforts be harmonized, given the closely integrated nature of the North American railroad system. NAFCA asserts that anything less than full harmonization of the two regulatory regimes will significantly disrupt the current flow of rail cars, particularly the tank cars that are the primary topic of the regulatory efforts, between Canada and the United States. NYSDOT agrees with FRA's clarification that at least one hand brake must be applied except in limited circumstances, such as when skates or retarders are applied in a classification yard. However, similar to NAFCA, NYSDOT states that a more uniform approach to ensuring that unattended trains are left with a sufficient number of hand brakes could be accomplished by codifying in regulation the appropriate number of hand brakes required given the weight, number of cars, and track gradient. According to NYSDOT, this would ensure uniformity amongst all railroads, and would allow inspectors the ability to verify that unattended trains are left with the required amount of hand brakes applied. When FRA initially drafted the securement rule, it purposefully developed a performance-based requirement in order to permit a railroad to develop appropriate operating rules to verify the sufficiency of the hand brakes applied which can be tailored to the specific territory and equipment operated by the railroad. See 66 FR 4104, 4157, Jan. 17, 2001. When drafting the rule, FRA did not limit such operating rules to a matrix format and stated that the number of hand brakes required to be applied depends on a wide variety of factors not easily captured in a matrix format and that a matrix approach might result in either too few or too many hand brakes being applied. While the commenters listed a few variables—such as the weight, number of cars, and track gradient—FRA does not believe that such a list is definitely exhaustive. FRA also does not presume to know all location and equipment configurations; a regulatory matrix may result in inadvertently ignoring certain other variables to which the railroads may be more intimately aware and cognizant. Moreover, FRA has not found the existing performance requirement to be insufficient; its concern relates primarily to its application, compliance, and enforcement. For the same reasons, in this instance and at this time, FRA does not support developing a technical-based regulation to apply a uniform regulatory procedure. FRA recognizes that Canada is a strong partner in maintaining cross-border railroad safety and FRA continues to believe that harmonization between Canadian and United States rail safety regulations is beneficial, particularly when differences in regulations create barriers to cross-border transportation, and should be maximized to the extent possible. Therefore, FRA traditionally seeks out and incorporates the views of Canada in developing its safety regulations. FRA, for instance, has actively engaged Canada as a member of RSAC. However, there is no requirement that FRA harmonize each of its requirements with those in Canada and, in light of the aforementioned reasons, FRA believes in this instance that a uniform technical standard is not ideal and that its performance-based securement measures better and more appropriately capture the variables presented by the different rail systems throughout the United States. Further, FRA does not see the absence of harmonization as potentially establishing barriers to cross-border train movements; first, because the operational issue of securement can easily be handled differently on either side of the border, and, second, because in many instances there will not be an actual difference in the number of hand brakes applied to secure similarly situated unattended equipment. In its comments, BLET indicated that another component of rail securement is derail protection. While BLET acknowledges that this was not discussed in detail in the RSAC SWG, derail protection would reduce the risk of a more serious accident by preventing inadvertently rolling equipment from moving further and gaining speed and momentum. This particular means of securement was not discussed in the NPRM, and FRA is not convinced that this is the safest securement practice. Nevertheless, FRA will continue to monitor the safety efficacy of derail protection as it is applied by regulation in Canada. As previously mentioned, paragraph (n)(2) now includes language originally placed in the introduction of paragraph (n), which prohibits a train's air brake from being “depended upon to hold equipment standing unattended on a grade (including a locomotive, a car, or a train whether or not locomotive is attached).” (Emphasis added.) This final rule also removes the phrase “on a grade,” as such a requirement is arguably superfluous and confusing. In its comments, Amsted indicated its support for this change. Perfectly level track is rare, and there is still a risk of unattended movement caused by numerous factors, such as a mistake in the location or length of the level track, the effect of extreme weather, or an impact from other equipment. Moreover, the phrase “on a grade” has led some to the erroneous conclusion that hand brakes must only be applied if the equipment is left on a grade. While grade is likely a factor in determining the number of hand brakes that would sufficiently hold unattended equipment, it is not a factor in determining whether hand brakes should be applied at all. Accordingly, this final rule makes clearer that the hand brake application requirement is not contingent upon the existence of a grade. Proposed paragraphs (n)(6) through (n)(8) address the aforementioned heightened concerns relating to the securement of unattended equipment carrying certain hazardous materials. Paragraph (n)(6) defines the type of equipment covered by these requirements and is intended to ensure that proposed paragraphs (n)(7) and (n)(8) apply only to equipment that includes loads. Specifically, paragraph (n)(6) provides that the substantive requirements of paragraphs (n)(7) and (n)(8) apply to: (1) Any loaded tank car containing PIH material, including anhydrous ammonia and ammonia solutions; or (2) twenty (20) or more loaded tank cars or loaded intermodal portable tanks of any one or any combination of PIH materials (including anhydrous ammonia and ammonia solutions), or any flammable gas, flammable or combustible liquid, explosives, or a hazardous substance listed at § 173.31(f)(2) of this title. FRA notes that this language is broader than the language used in PHMSA's NPRM on Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains (HHFTs). See 79 FR 45016, Aug. 1, 2014. In that rule, PHMSA proposed certain new requirements for HHFTs, which it defines as “a train comprised of 20 or more carloads of a Class 3 flammable liquid and ensures that the rail requirements are more closely aligned with the risks posed by the operation of these trains.” 79 FR at 45017. Paragraph (n)(6) includes new securement requirements that cover a single PIH tank car. Moreover, where the proposed PHMSA rule would only cover trains with 20 or more carloads of flammable liquids, paragraph (n)(6) covers situations where there are 20 or more loaded tank cars or loaded intermodal portable tanks of PIH materials, flammable gases, flammable or combustible liquids, explosives, other hazard substances listed at § 173.31(f)(2), or any combination thereof. FRA sought comment on this proposal and on whether a defined term should be used for equipment covered under paragraph (n)(6). From the standpoint of public safety, NYSDOT supports FRA's broadening the language of this rule to include the securement of unattended equipment transporting hazardous materials beyond those defined as HHFTs in PHMSA's earlier NPRM. NYSDOT also suggests using a “defined term” for the equipment covered under paragraph (n)(6), which it says would provide a simple way to differentiate it from those defined elsewhere in regulation ( e.g. HHFTs). AAR and ASLRRA expressed concern that this requirement in Emergency Order 28 applied to a “loaded tank car,” but that the proposed rule applies to a “loaded freight car.” AAR and ASLRRA assert that this change could potentially and inadvertently affect a much larger number of rail cars, including those intermodal shipments of miscellaneous items such as cleaning supplies and swimming pool chemicals. Accordingly, AAR and ASLRRA recommend that the final rule retain the original language from Emergency Order 28. FRA recognizes the merit in AAR's and ASLRRA's comment and is reverting to the language that was originally proposed at the RSAC level. As for using a defined term to capture the types of equipment delineated in paragraph (n)(6), FRA declines. FRA recognizes and appreciates the benefits of using a more elegantly defined term. However, no such term was offered and FRA is unaware of any appropriate term to use at this time. The regulatory text exempts residue cars from consideration. Residue cars are defined by PHMSA under the HMR. See 49 CFR 171.8. FRA will continue to rely on the HMR for this definition, even if amended. FRA does not believe the train placement requirements in that PHMSA rulemaking will affect the securement regulations we are adopting in the instant proceeding. Nevertheless, the labor representatives have expressed concerns that such inconsistent use may foster confusion or be “pitted against one another.” FRA sought further comment explaining how such confusion or conflict may manifest itself. NYSDOT believes that exempting residue cars from the requirements of this rule would appear contradictory to the language contained throughout the HMR, which have been written from a perspective that a packaging containing residue remains potentially hazardous. Although FRA does not believe that any resulting train placement regulation would affect the securement regulations we are considering, it is not clear to NYSDOT what particular advantage is gained by granting this exception for residue cars. From a risk perspective, NYSDOT believes it would seem reasonable to treat all placarded residue cars as potentially hazardous until such time that they are cleaned and purged, including for the purposes of securement. In order to avoid the potential for confusion in terms of interpreting the HMR, NYSDOT contends that the provisions that apply to residue cars should remain consistent throughout. Therefore, NYSDOT recommends that the exclusion outlined in 232.103(n)(6)(ii) not be included in the final rule. Riverkeeper believes that residue cars are still inherently dangerous and should be covered by the regulation. According to Riverkeeper, cars carrying crude oil such as heavy, sinking tar sands oils, are expected to become more regularly shipped and, if spilled, could cause equally significant economic and environmental damage. When considering whether to apply the applicable requirements to residue cars, FRA made an effort to balance the associated risks with the cost of compliance. While FRA recognizes that certain residue tank cars may still pose inherent danger in the event of a release, experience has shown that the magnitude of the results are significantly less than those from an event releasing the contents of a loaded tank car. Further, loaded tank cars are generally treated more rigorously by existing Federal safety regulations. See, e.g., 49 CFR 172.204(b)(2), 174.14, and 174.86(b). Given the cost of compliance, FRA believes that regulatory relief is warranted here. Moreover, FRA notes that all of its existing securement requirements contained in paragraph (n) apply to trains and cars containing residue cars. Nevertheless, FRA will continue to monitor accidents involving residue tank cars and will continue to dialog with PHMSA to determine whether further action will become necessary in the future. Paragraph (n)(7) provides certain conditions under which such equipment may be left unattended, including the development of a plan identifying locations where such equipment may be left unattended. Paragraph (n)(8) includes specific requirements regarding the securement of such equipment. The following chart attempts to quickly summarize the requirements of paragraphs (n)(7) and (n)(8). Securement of Unattended Equipment Defined by § 232.103(n)(6) Paragraph Equipment Track location Requirement (7)(i) All Main track or siding outside and not adjacent to a yard Plan. (7)(ii) Freight train In or adjacent to yard Verify (8)(i) and Apply Lock (8)(ii). (8)(i) Freight train or standing freight car or cars Main line outside yard Verify (8)(i) and Apply Lock (8)(ii). (8)(ii) Controlling locomotive cab Everywhere Apply Lock. (8)(iii) Locomotive In or adjacent to yard Exception to applying lock if locomotive not equipped with lock, or if lock not operable and reverser not removable. Emergency Order 28 prohibits each railroad from leaving trains or vehicles that are transporting certain hazardous materials on mainline track or mainline siding outside of a yard or terminal unless the railroad adopts and complies with a plan that identifies the specific locations and circumstances for which it is safe and suitable for leaving such trains or vehicles unattended. According to Emergency Order 28, the plan must contain sufficient analysis of the safety risks and any mitigating circumstances the railroad has considered in making its determination. FRA expressed its intent not to formally grant approval to any plan. However, it does monitor such plans, and, in the event that FRA determines that adequate justification is not provided, the railroad is required to ensure that trains and equipment are attended until appropriate modifications are made to the railroad's plan. In paragraph (n)(7)(i), FRA continues these requirements by regulation. While FRA continues to believe that it is not necessary to provide approval for each plan, which could take considerable resources, FRA must ensure proper enforcement and oversight. Accordingly, paragraph (n)(7)(i) also requires that the railroad notify FRA when it modifies its existing plan and provide FRA with a copy of the plan upon request. For similar reasons, FRA will also retain the right to require modifications to any insufficient plan. Riverkeeper notes that the equipment defined under paragraph (n)(6) can be left unattended if a justification is provided to FRA, characterizing this allowance as a “loophole.” Riverkeeper also criticizes FRA's decision to reserve the right to review any plan as an “abrogation of responsibility” and asserts that railroads should not be left to develop their own plans without FRA review. FRA disagrees with Riverkeeper's characterization. The existing regulations have always allowed equipment to be left unattended and provided that certain actions be taken to secure equipment in such instances. From an economic perspective, this would be extremely burdensome. From a safety perspective, there would only be a marginal benefit to require at all times attendance on a train defined by § 232.103(n)(6) when it has been properly secured in accordance with the provisions in this final rule. The “justification” referenced by Riverkeeper is not a “loophole” because it relates solely to the new requirement that the railroads identify locations where equipment may be left unattended. Moreover, FRA's decision to not require FRA approval of each plan is also consistent with the principles of regulatory economy and FRA's budget and personnel capabilities. The plans, which concern appropriate and safe locations, do not necessarily include any additional safety requirements per paragraph (n)(7). Thus, FRA does not believe that prior FRA approval is absolutely necessary here. Nevertheless, FRA has reserved the right to access, review, and require modification of the plan in the event it determines a location is insufficiently safe to leave equipment unattended. In relation to the requirement that the railroad must notify FRA when it modifies its existing plan and provide FRA with a copy of the plan upon request, CPUC requests that such authority extend to all State Safety Participation personnel. CPUC also requests that FRA and its state partners have access upon request to the underlying research that validates these plans as safe to provide for “validating oversight.” FRA believes that the modification proposed by CPUC is unnecessary because state inspectors that have the authority to inspect for part 232 compliance would be entitled to independently receive the plan directly from a railroad as long as it is requested in the course of a safety inspection and it is necessary for determining compliance with the relevant section in part 232. While state inspectors have faced difficulties with railroad responsiveness, FRA inspectors have experienced the same problems. The agency has engaged AAR on this issue to ensure that railroads are providing requested materials in a timely manner. See Letter to Edward R. Hamberger, President, AAR, from Joseph C. Szabo, Administrator, FRA (April 4, 2013). If FRA or state inspectors are unable to obtain such documentation, they should contact the appropriate FRA Railroad System Oversight Manager (RSOM) or FRA Regional personnel for assistance. Paragraph (n)(7)(i) differs from Emergency Order 28 in one manner. The final rule allows a railroad to leave a train or equipment unattended on mainline track that is running through a yard or on mainline track that is adjacent to the yard without covering the location in the railroad's plan. This change is based on feedback received during the SWG meetings, which voted unanimously to adopt the language in paragraph (n)(7)(i), with the recommendation of the full RSAC to move forward with the regulatory provision. In Emergency Order 28, FRA made a decision that it was not necessary to include mainline tracks and mainline sidings that run through a yard in a railroad's plan for leaving equipment unattended. FRA's rationale for this decision was that a yard was defined space where the railroad performed a particular set of tasks (classifying cars, making-up and inspecting trains, or storing cars and equipment). As a result of the tasks performed there, yards tend to have appropriate geographic characteristics, sufficient railroad activity, and a population of railroad personnel in close proximity that make them appropriate places for leaving equipment unattended. In FRA's view, mainline track that runs through a yard shares those characteristics with the yard tracks surrounding it. As a result, it is often used as a de facto “yard” track to assist with classifying cars and with making-up and inspecting trains. As such, FRA did not see a need when drafting Emergency Order 28 for railroads to identify mainline tracks within a yard in the railroad's securement plan before a railroad would be allowed to leave equipment unattended on the mainline track that is surrounded by a yard. The feedback received through the RSAC process was that tracks adjacent to the yard share many of the same characteristics as mainline tracks that run through a yard. Therefore, this final rule, as proposed in the NPRM, treats mainline track that is adjacent to the yard in the same manner that it is currently treating mainline track that runs through a yard under Emergency Order 28. This requirement intends only to cover those tracks that are immediately adjacent to the yard and that are in close enough proximity to the yard that the adjacent tracks share the characteristics of the yard. NAFCA contests this requirement as proposed, believing that such a change should be postponed until after more experience with observing multi-car train movements of Class 3 flammable liquids. According to NAFCA, the requirement in Emergency Order 28 is not unduly burdensome to the railroad. FRA declines to postpone treating the identified adjacent tracks as mainline yard tracks. NAFCA does not explain what benefits could be gained with additional experience and does not provide quantifiable or qualified information to support its position that such a postponement would not be unduly burdensome to the railroads. Given that there are vast differences in surrounding population densities and in the amount of railroad activity that takes place at different rail yards, NYSDOT believes that there should be no differentiation in plan requirements simply because the mainline tracks go through or are adjacent to rail yards. According to NYSDOT, there are many railroad yards located in rural areas of New York State with limited rail operation activity, low population density and in which ambient lighting may be poor or nonexistent. In a letter to President Obama dated September 23, 2014, Governor Cuomo recently outlined New York's safety concerns in and around the areas in which crude-by-rail trains dwell. NYSDOT believes that sufficient analysis of the safety risks and any mitigating circumstances should be part of a railroad's plan for all mainline tracks and sidings irrespective of whether those tracks go through or are adjacent to a rail yard. Similarly, Riverkeeper contends that FRA is assuming that trains are inherently more secure in and around yards to the point that they do not need to be included in these securement regulations, because rail yards and sidings generally have more activity than lone, far-flung mainline track. Riverkeeper asserts that this conclusion is not supported by any presented facts and ignores the risks of unsecured trains rolling out of yards, or sidings, or mainlines near yards, potentially toward imminent and significant disaster. According to Riverkeeper, FRA's decision to treat yard-adjacent tracks the same as mainline tracks within the yard arbitrarily relies on nonspecific “railroad” activity and the assumption that rail yard workers would be able to respond to a runaway train in time to avoid disaster. Riverkeeper concludes that any final rule on securement must apply to all unattended trains, regardless of where they are left. As discussed previously, the yard exception in paragraph (n)(7)(i) is due to FRA's assessment that yards overwhelming tend to have appropriate geographic characteristics for leaving equipment unattended and that there is a higher likelihood of qualified people being present and switching operations occurring. FRA believes that some commenters misunderstand the purpose of the plan, which is merely to identify locations where equipment may be left unattended. The plan requirement does not exempt the railroads from any securement requirements under § 232.103(n). In other words, securement of unattended equipment is required regardless of location—except as subject to certain switching-related exceptions, including those relating to TB 10-01—and paragraph (n)(7)(i) does not affect those requirements. To the extent that those commenting on paragraph (n)(7)(i) are concerned that the plan would exempt railroads from complying with the hand brake and other mechanical securement requirements, FRA assures them that this is not the case. Paragraph (n)(7)(ii) establishes new requirements for those trains that are left unattended on mainline track that is running through a yard or on mainline track that is adjacent to the yard. It applies aspects of Emergency Order 28 to these tracks by requiring verification that securement has been completed in accordance with the railroad's process and procedures ( see discussion below concerning paragraph (n)(8)(i)), and that the locomotive cab is locked or the reverser is removed from the control stand and placed in a secured location ( see discussion below concerning paragraph (n)(8)(ii)), unless the exception contained in paragraph (n)(8)(iii) is applicable. Emergency Order 28 requires railroads to develop specific processes for employees responsible for securing any unattended train or vehicles transporting certain hazardous materials that must be left on mainline track or a mainline siding outside of a yard. FRA believes that this requirement should continue in regulation. This final rule allows a railroad to leave a paragraph (n)(6) train unattended on mainline track or a siding outside of a yard where the railroad has a plan in place and on mainline tracks that are in or adjacent to yards. In doing so, paragraph (n)(8)(i) requires the employee responsible for the securement of the equipment to verify securement and paragraph (n)(8)(ii) requires the train crew to lock the controlling locomotive cab or remove and secure the reverser from the control stand. 17 17 The reverser is the directional control for the locomotive. Removing the reverser would essentially put the locomotive in neutral, preventing it from moving forward or backward under the power of the engine. NYSDOT expresses confusion as to the consistency of cross-referencing language in paragraphs (n)(7)(ii) and (n)(8)(i). Paragraph (n)(7)(ii) refers to trains described in paragraph (n)(6) that are “left unattended on a main track or siding that runs through, or is directly adjacent to a yard,” and states that the requirements of paragraph 8(i) and 8(ii) “ shall apply.” (Emphases NYSDOT's.) However, paragraph (n)(8)(i) states, “Where a freight train or standing freight car or cars as described in paragraph (n)(6) of this section is left unattended on a main track or siding outside of a yard, and not directly adjacent to a yard, an employee responsible for securing the equipment shall verify with another person qualified to make the determination that the equipment is secured in accordance with the railroad's processes and procedures.” (Emphasis NYSDOT's.) According to NYSDOT, the wording “shall apply” would seem to render the provisions of paragraph (n)(7)(ii) moot, since it appears to default to the provisions of paragraphs (n)(8)(i) and (n)(8)(ii) for all trains left unattended, irrespective of their location relative to a yard. FRA understands that NYSDOT is expressing confusion in that paragraph (n)(7)(ii) applies to trains in or adjacent to a yard must follow paragraph (n)(8)(i), which actually applies to trains outside a yard. FRA would like to clarify that the distinction here is that (n)(7)(ii) limits the applicability of (n)(8) only to trains left unattended in yards or adjacent to them, whereas the provisions of (n)(8) apply to both trains and cars left outside of yards. In other words, in context with one another, these paragraphs require securement verification and lock application on all unattended freight trains defined under paragraph (n)6), regardless of whether they are located inside or outside of a yard, and on all standing freight cars defined under paragraph (n)6) on a main line outside of a yard. The implication is that these requirements do not apply to standing freight cars inside and adjacent to yards. FRA intends the above chart to act as a visual aid to communicate these similarities and differences. NYSDOT is in agreement with the requirement that an employee responsible for securing the equipment shall verify with another qualified person that the equipment is secured in accordance with railroad procedures for all trains left unattended. Based upon its interpretation as written, NYSDOT suggests that paragraph (n)(7)(ii) be omitted and that the language of paragraph (n)(8)(i) be changed to: “Where a freight train or standing freight car or cars as described in paragraph [(n)(6)] of this section is left unattended on a main track or siding, an employee responsible for securing the equipment shall verify [. . .] etc.” Paragraph (n)(8)(i) requires that an employee responsible for securing equipment defined by paragraph (n)(6) verify securement with another qualified person. This is similar to Emergency Order 28, which requires employees to verify proper securement with a qualified railroad employee. This may be done by relaying pertinent securement information ( i.e., the number of hand brakes applied, the tonnage and length of the train or vehicle, the grade and terrain features of the track, any relevant weather conditions, and the type of equipment being secured) to the qualified railroad employee. The qualified railroad employee must then verify and confirm with the train crew that the securement meets the railroad's requirements. However, paragraph (n)(8)(i) does not contain a requirement that the railroad maintain a record of the verification of proper securement. FRA believes that the type of verification requirement in paragraph (n)(8)(i) will serve to ensure that any employee who is responsible for securing equipment containing hazardous materials will follow appropriate procedures because the employee will need to fully consider the securement procedures to relay what was done to the qualified employee. Further, the qualified railroad employee ( e.g. a trainmaster, road foreman of engines, or another train crew employee) will be in a position to ensure that a sufficient number of hand brakes have been applied. Under this final rule, the qualified railroad employee must have adequate knowledge of the railroad's securement requirements for the specific location or for the specific circumstance for which the equipment will be left unattended. Without limiting the type of employee who may be qualified, FRA envisions that a dispatcher, roadmaster, yardmaster, road foreman of engines, or another crew member would be able to serve in the verification capacity. Riverkeeper criticizes FRA's “refusal” to limit the type of employee who may be qualified and claims that FRA also fails to specify the type of verification or even the details that must be provided. As previously noted, FRA believes that a certain set of qualifications or base of knowledge is necessary to be part of the conversation relating to securement. While the employee's “type” or title may be instructive, it should not be the sole or primary element in determining whether an individual is qualified to apply or verify the securement rules. FRA also believes that the existing rule and this final rule address the needs relating to the type of verification or its required details. As for the required details, they have already been established in the existing regulations and in each railroad's processes and procedures. According to the proposed text, the responsible employee must “verify with another person qualified to make the determination that the equipment is secured in accordance with the railroad's processes and procedures.” Riverkeeper suggests no further details clarifying its position to FRA. FRA has decided not to continue the recordation requirement based on experience enforcing section 2b of Emergency Order 28. FRA has found that requiring recordation of securement information is superfluous because the verification requirement ensures that two individuals consulting with each other make certain that the appropriate securement method is used. The intent of the recordation requirement was to ensure the communications are taking place. FRA has found that, since issuance of Emergency Order 28, communications occur in the course of the verification process. Therefore, it does not believe requiring railroads to make a record of each securement event is necessary to ensure proper securement. FRA sought comment concerning enforcement of the verification requirement, absent recordation. CPUC does not see sufficient justification for eliminating the recordation requirement under Emergency Order 28. CPUC recommends that FRA at least reinstate some form of recording of the details of securing the train—such as a crew member filling out a form and leaving on the controlling locomotive—detailing the method used and the specifics of implementing the method—such as the number of hand brakes tied per the railroad's process and procedure already required by regulation. According to CPUC, such a requirement would enhance accountability, require more careful attention, provide better crew-to-crew communications, avoid dispatcher time and record keeping, and aid in accident investigations, enforcement efforts, and safety practice improvements. CPUC would also not rely on FRA's recent experience as sufficient to warrant removal of the recordation requirement. CPUC believes that as more time passes and attention to the Lac-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 redundancy. FRA's inspectors have extensive experience in enforcing communicative regulations without the benefit of documentation ( see, e.g., 49 CFR 218.99, 218.103, 218.105, and 218.109). While recordation may be helpful in some instances, it is not necessary. For instance, since verification must be accomplished by at least two people, an inspector may interview them both to determine whether verification occurred correctly. FRA has faced similar questions before regarding recordation of certain activities. For instance, in a rulemaking codifying the requirements of Emergency Order 24 concerning the handling of equipment, switches, and fixed derails, FRA declined to continually require the use of a Switch Position Awareness Form (SPAF) to remind employees of the importance of properly lining and locking main track switches. See 73 FR 8442, 8448, Feb. 13, 2008. While the resulting paperwork burden and communication redundancy was acceptable for the purposes of Emergency Order 24, FRA decided not to require a SPAF in the associated final rule because other comprehensive communication regulatory requirements created a direct enforcement mechanism that made enforcement through a SPAF redundant. See id. In that rulemaking, and in its own proceedings, NTSB supported removal of the similar paperwork burden. See id; NTSB, Collision of Norfolk Southern Freight Train 192 With Standing Norfolk Southern Local Train P22 With Subsequent Hazardous Materials Release at Graniteville, South Carolina, Railroad Accident Report, NTSB/RAR-05/04, at 45, available at http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0504.pdf. FRA's position in this rulemaking is consistent with the position taken in the final rule codifying Emergency Order 24. There have not been adverse safety consequences associated with eliminating the reporting requirement in Emergency Order 24, and FRA does not expect any adverse safety consequences in this instance. However, FRA will continue to monitor securement of equipment defined under paragraph (n)(6) to assess the effectiveness of the verification process that is being instituted in this final rule. Also under Emergency Order 28, the employees responsible for securing the train or vehicles must lock the controlling locomotive cab door or remove and secure the reverser before leaving it unattended. Accordingly, paragraph (n)(8)(ii) requires further protection of the locomotive to prevent movement of unattended equipment that could be caused by unauthorized access to the locomotive cab. Representatives from the railroad labor strongly suggested at the SWG meetings that a locking mechanism be applied to each locomotive covered under this rule, seeking that lock installation be complete within 18 months. BLET stated that locomotive cab security is a major concern to the labor caucus. The language approved by the SWG provided that the controlling locomotive cab shall be locked on locomotives capable of being locked or the reverser on the controlling locomotive shall be removed from the control stand and placed in a secured location. The use of the conjunctive appears to indicate a choice; each railroad may opt to either lock the locomotive or remove its reverser. However, based on the discussions during the SWG meetings, FRA believes that the SWG intended for paragraph (n)(8)(ii) to mean that all covered locomotives should be locked when so equipped. FRA has made slight alterations to the language in paragraph (n)(8)(ii) from the language that was approved by the SWG in order to more accurately address the lock requirement. FRA understands that the reverser provision is intended for the interim period until locks are installed or for when a locomotive has been equipped with a lock but the lock has become inoperative. FRA also notes that under this final rule a railroad would be free to require both the locking of the locomotive and the removal of the reverser. FRA does not intend to limit a railroad to just one or the other. FRA sought comment on this understanding, particularly as to whether the alternative of removing the reverser should only be available during the timeframe when the locking mechanism becomes broken or otherwise ineffective or whether, in the interest of safety redundancy, the regulations should require railroads to both lock cab doors and to remove reverser handles. NTSB believes that, in the interest of safety, the regulation should require the locking of the locomotive cab doors, as well as removing and securing the reverser handles. According to NTSB, such redundancy will ensure a higher level of safety. NYSDOT also supports the view that redundancy of safety or security procedures is beneficial in terms of addressing risk. Therefore, NYSDOT believes that, when the train is left unattended, the locomotive cab door lock must be engaged (if operative) and the reverser must be removed and secured where feasible. FRA is not persuaded by the comments, which provide no new information or argument. FRA continues to believe that it is not necessary to ensure safety by requiring by regulation the locking of the cab door and removal of the reverser. FRA recognizes that the railroads are already, or will be, installing locks on cab doors. This final rule formally requires such installation and requires their application for unsecured equipment in accordance with this rule. While this final rule does not require removal of the reverser in cases where an operative lock is applied, the railroads are free to include such a requirement in their respective operating rules. For the purpose of this final rule, the lock will be the primary means of locomotive cab securement and reverser removal will be required only as a backup. When a railroad relies on removing the reverser as a means for securement, FRA expects that the reverser will be taken by the appropriate railroad employee from the controlling locomotive cab so that it is not accessible to an unauthorized person such as a trespasser. Alternatively, FRA anticipates allowing the reverser to be secured in the cab of an unlocked controlling locomotive as long as the reverser is kept in a box or other compartment that can be locked within the locomotive cab. However, FRA would not consider a reverser “secured” within the meaning of this final rule if the railroad allows the reverser to be stored merely out of plain sight. In most instances, FRA would consider a locomotive with an ineffective locking mechanism to be noncompliant with paragraph (n)(8)(ii) if the locomotive is left unattended with the reverser remaining in the control stand. FRA recognizes that there may be limited circumstances where a locomotive's lock becomes inoperative and its reverser cannot be removed, thus making compliance with proposed paragraph (n)(8)(ii) nearly impossible. Accordingly, for such instances, this final rule includes an exception under paragraph (n)(8)(iii). FRA believes that application of this exception would only be utilized on the rare occasion where older locomotives with integrated reversers may be utilized or where weather conditions make the reverser necessary for operations ( i.e., to prevent the locomotive from freezing) and that such trains would only be left unattended in a yard or on a track directly adjacent to a yard. FRA sought comments on the intent, application, and language of this proposed exception. NYSDOT states that the data provided in the analysis section of the NPRM indicates that the cost associated with repairing or replacing a locking mechanism is relatively small. According to NYSDOT, it is accepted that the goal of this particular exception is to provide relief in the rare instances where operation of “non-conforming” equipment ( e.g. locomotive cabs without operative locks or removable reversers) would be required. However, given the acknowledged security concerns inherent with leaving trains unattended, NYSDOT asserts that consideration should be given to requiring attendance on the affected equipment until such time that the inoperative locking mechanisms can be repaired or replaced in conformance with paragraph (n)(8)(ii). The purpose of the existing securement rule and this final rule is not to require attendance, but to require certain safety protocols when certain equipment is left unattended. To require attendance, as suggested by NYSDOT, would have this rule go further than FRA's intent and could amount to substantial and unnecessary costs for the railroads. Moreover, such a requirement likely would result in unanticipated impacts affecting FRA's hours of service rules, which is not FRA's intent in this rulemaking. FRA believes that the job briefing requirement in Emergency Order 28 should be codified in regulation. Accordingly, paragraph (n)(9) requires each railroad to implement operating rules and practices requiring the discussion of securement among crew members and other involved railroad employees before engaging in any job that will impact or require the securement of any equipment in the course of the work being performed. This requirement is analogous to other Federal regulations that require crew members to have a job briefing before performing various tasks, such as confirming the position of a main track switch before leaving an area. The purpose of this job briefing requirement is to make certain that all crew members and other involved railroad employees are aware of what is necessary to properly secure the equipment in compliance with § 232.103(n). Under this final rule, FRA expects that the crew will discuss the equipment that is impacted, the responsibilities of each employee involved in the securement of a train or vehicle, the number of hand brakes that will be required to secure the affected equipment, the process for ensuring that securement is sufficient, how the verification will be determined, and any other relevant factors affecting securement. FRA sought comments on whether these expectations are reasonable, accurate, and either sufficiently comprehensive or somehow lacking. NYSDOT agrees that the specific job briefing requirements should be left up to the railroads and that effective policies and procedures are important. However, NYSDOT remains concerned about the ability to record or document the actions taken in accordance with those policies and procedures. Riverkeeper believes that, although FRA claims that new requirements of the rules proposed here would indeed “enhance safety culture and oversight,” the new requirements do not go far enough and lack the enforceability needed to actually change the status quo. Riverkeeper says that, while the NPRM proposes “requiring that securement be part of all relevant job briefings,” FRA has no ability to ascertain whether briefed employees understand, or are implementing, securement policies. Riverkeeper similarly states that although FRA proposes requiring that there be more “dialog between railroad employees [which would] provide enhanced oversight within the organization,” it has no way to ensure that such dialogs occur, or whether they actually improve compliance rates. Riverkeeper notes that neither of these cultural changes will necessarily be reported to the FRA or the public in a manner that promotes transparent oversight and robust enforcement. FRA disagrees with Riverkeeper's assessment regarding the effectiveness of the job briefing requirement and its regulatory enforceability. Crew members are already trained and qualified to understand briefing contents and the procedures and mechanics involved with securing unattended equipment. FRA also has extensive experience enforcing the job briefing criteria ( see, e.g., 49 CFR 214.315, 218.99, 218.103, 218.105, and 218.109) and expects to apply similar investigative methods when enforcing paragraph (n). FRA recognizes that, in some instances, there may be only one crew member performing a switch or operation and that crew member would have to secure equipment alone at the end of the activity. In the NPRM, FRA expressed its belief that the issue of self-satisfying a job briefing is best left to the railroad when complying with part 218 and sought comment on how to apply this requirement in a situation involving a single person crew and how it interrelates with part 218. NYSDOT acknowledges that single person crews pose a challenge in terms of ensuring that the safety benefits inherent with effective job briefings are assured in all instances, including single-person operations. At a minimum, states NYSDOT, the procedures for conducting job briefings should be established in the railroad's operating rules or in its ti [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-19002. Public record. Not legal advice.