Positive Train Control Systems

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 229, 234, 235, and 236

[Docket No. FRA-2008-0132, Notice No. 3]

RIN 2130-AC03

Positive Train Control Systems

AGENCY:

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

ACTION:

Final rule; request for comment on specific issues.

SUMMARY:

FRA is issuing regulations implementing a requirement of the Rail Safety Improvement Act of 2008 that defines criteria for certain passenger and freight rail lines requiring the implementation of positive train control (PTC) systems. This final rule includes required functionalities of PTC system technology and the means by which PTC systems will be certified. This final rule also describes the contents of the PTC implementation plans required by the statute and contains the process for submission of those plans for review and approval by FRA. These regulations could also be voluntarily complied with by entities not mandated to install PTC systems. This is a final rule; however, FRA has identified specific provisions for which we are considering making changes to the final rule, if warranted by the public comments received. We expect to publish our response to those comments, including any possible changes to the rule made as a result of them, as soon as possible following the end of the comment period. However, the limited areas of this rule open for additional comment do not affect the requirement for railroads to prepare and submit plans in accordance with the deadlines established in this final rule.

DATES:

This final rule is effective March 16, 2010. Petitions for reconsideration must be received on or before March 16, 2010. Comments must be received on or before February 16, 2010.

ADDRESSES:

Petitions for reconsideration and comments:

Any petitions for reconsideration or comments related to Docket No. FRA-2008-0132, may be submitted by any of the following methods:

•

Web site:

The Federal eRulemaking Portal,

http://www.regulations.gov.

Follow the Web site's online instructions for submitting comments.

•

Fax:

202-493-2251.

•

Mail:

Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., 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. 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 petitions 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 petitions, comments, or materials.

Docket:

For access to the docket to read background documents or comments received, go to

http://www.regulations.gov

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:

Thomas McFarlin, Office of Safety Assurance and Compliance, Staff Director, Signal & Train Control Division, Federal Railroad Administration, Mail Stop 25, West Building 3rd Floor, Room W35-332, 1200 New Jersey Avenue, SE., Washington, DC 20590 (

telephone:

202-493-6203); or Jason Schlosberg, Trial Attorney, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-217, 1200 New Jersey Avenue, SE., Washington, DC 20590 (

telephone:

202-493-6032).

SUPPLEMENTARY INFORMATION:

FRA is issuing this final rule to provide regulatory guidance and performance standards for the development, testing, implementation, and use of Positive Train Control (PTC) systems for railroads mandated by the Rail Safety Improvement Act of 2008 § 104, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 9 U.S.C. 20157) (hereinafter “RSIA08”), to implement PTC systems. These regulations may also be voluntarily complied with by entities not mandated to install PTC in lieu of the requirements contained in subpart H of part 236. The final rule establishes requirements for PTC system standard design and functionality, the associated submissions for FRA PTC system approval and certification, requirements for training, and required risk-based criteria. The RSIA08 mandates that widespread implementation of PTC across a major portion of the U.S. rail industry be accomplished by December 31, 2015. This final rule intends to provide the necessary Federal oversight, guidance, and assistance toward successful completion of that congressional requirement. This final rule also necessitates or results in some minimal revision or amendment to parts 229, 234, and 235, as well as previously existing subparts A through H of part 236.

Table of Contents for Supplementary Information

I. Introduction

II. Background

A. The Need for Positive Train Control Technology

B. Earlier Efforts To Encourage Voluntary PTC Implementation

C. Technology Advances Under Subpart H

III. The Rail Safety Improvement Act of 2008

IV. Public Participation

A. RSAC Process

B. Public Hearing and Comments Filed

V. Overview: The Proposed Rule, Comments, and Resolution of Comments

VI. Seeking Further Comments

VII. Section-by-Section Analysis

VIII. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

B. Regulatory Flexibility Act and Executive Order 13272

C. Paperwork Reduction Act

D. Federalism Implications

E. Environmental Impact

F. Unfunded Mandates Reform Act of 1995

G. Energy Impact

H. Privacy Act

IX. The Rule

I. Introduction

This final rule provides new performance standards for the implementation and operation of PTC systems as mandated by the RSIA08 and as otherwise voluntarily adopted. This final rule also details the process and identifies the documents that railroads and operators of passenger trains are to utilize and incorporate in their PTC implementation plans required by the RSIA08. The final rule also details the process and procedure for obtaining FRA approval of such plans.

While developing this final rule, FRA applied the performance-based principles embodied in existing subpart H of part 236 to identify and remedy any weaknesses discovered in the subpart H regulatory approach, while exploiting lessons learned from products developed under subpart H. FRA has continued to make performance-based safety decisions while supporting railroads in their development and implementation of PTC system technologies. Development of this final rule was enhanced with the participation of the Railroad Safety

Advisory Committee (RSAC), which tasked a PTC Working Group to provide advice regarding development of implementing regulations for PTC systems and their deployment that are required under the RSIA08. The PTC Working Group made a number of consensus recommendations, which were identified and included in the proposed rule, and has contributed further refinements in the form of recommendations for resolution of the public comments. The preamble discusses the statutory background, the regulatory background, the RSAC proceedings, the alternatives considered and the rationale for the options selected, the proceedings to date, as well as the comments and conclusions on general issues. Other comments and resolutions are discussed within the corresponding section-by-section analysis.

II. Background

A. The Need for Positive Train Control Technology

Since the early 1920s, systems have been in use that can intervene in train operations by warning crews or causing trains to stop if they are not being operated safely because of inattention, misinterpretation of wayside signal indications, or incapacitation of the crew. Pursuant to orders of the Interstate Commerce Commission (ICC)—whose safety regulatory activities were later transferred to FRA when it was established in 1967—cab signal systems, automatic train control, and automatic train stop systems were deployed on a significant portion of the national rail system to supplement and enforce the indications of wayside signals and operating speed limitations. However, these systems were expensive to install and maintain, and with the decline of intercity passenger service following the Second World War, the ICC and the industry allowed many of these systems to be discontinued. During this period, railroads were heavily regulated with respect to rates and service responsibilities. The development of the Interstate Highway System and other factors led to reductions in the railroads' revenues without regulatory relief, leading to bankruptcies, railroad mergers, and eventual abandonment of many rail lines. Consequently, railroads focused on fiscal survival, and investments in expensive relay-based train control technology were economically out of reach. The removal of these train control systems, which had never been pervasively installed, permitted train collisions to continue, notwithstanding enforcement of railroad operating rules designed to prevent them.

As early as 1970, following its investigation of the August 20, 1969, head-on collision of two Penn Central Commuter trains near Darien, Connecticut, in which 4 people were killed and 45 people were injured, the National Transportation Safety Board (NTSB) asked FRA to study the feasibility of requiring a form of automatic train control system to protect against train operator error and prevent train collisions. Following the Darien accident, the NTSB continued to investigate one railroad accident after another caused by human error. During the next two decades, the NTSB issued a number of safety recommendations asking for train control measures. Following its investigation of the May 7, 1986, rear-end collision involving a Boston and Maine Corporation commuter train and a Consolidated Rail Corporation (Conrail) freight train in which 153 people were injured, the NTSB recommended that FRA promulgate standards to require the installation and operation of a train control system that would provide for positive train separation. NTSB Recommendation R-87-16 (May 19, 1987),

available at http://www.ntsb.gov/Recs/letters/1987/R87_16.pdf.

When the NTSB first established its Most Wanted List of Transportation Safety Improvements in 1990, the issue of Positive Train Separation was among the improvements listed, and it remained on the list until just after enactment of the RSIA08. Original “Most Wanted” list of Transportation Safety Improvements, as adopted September 1990,

available at http://www.ntsb.gov/Recs/mostwanted/original_list.htm.

The NTSB continues to follow the progress of the technology's implementation closely and participated through staff in the most recent PTC Working Group deliberations.

Meanwhile, enactment of the Staggers Rail Act of 1980 signaled a shift in public policy that permitted the railroads to shed unprofitable lines, largely replace published “tariffs” with appropriately priced contract rates, and generally respond to marketplace realities, which increasingly demanded flexible service options responsive to customer needs. The advent of microprocessor-based electronic control systems and digital data radio technology during the mid-1980s led the freight railroad industry, through the Association of American Railroads (AAR) and the Railway Association of Canada, to explore the development of Advanced Train Control Systems (ATCS). With broad participation by suppliers, railroads, and FRA, detailed specifications were developed for a multi-level “open” architecture that would permit participation by many suppliers while ensuring that systems deployed on various railroads would work in harmony as trains crossed corporate boundaries. ATCS was intended to serve a variety of business purposes, in addition to enhancing the safety of train operations. Pilot versions of ATCS and a similar system known as Advanced Railroad Electronic Systems (ARES) were tested relatively successfully, but the systems were never deployed on a wide scale primarily due to cost. However, sub-elements of these systems were employed for various purposes, particularly for replacement of pole lines associated with signal systems.

Collisions, derailments, and incursions into work zones used by roadway workers continued as a result of the absence of effective enforcement systems designed to compensate for the effects of fatigue and other human factors. Renewed emphasis on rules compliance and federal regulatory initiatives, including rules for the control of alcohol and drug use in railroad operations, operational testing and inspection programs designed to verify railroad rules compliance, requirements for qualification and certification of locomotive engineers, and negotiated rules for roadway worker protection, led to substantial reductions in risk. However, the lack of an effective collision avoidance system allowed the continued occurrence of accidents, some involving tragic losses of life, serious injury, and significant property damage.

B. Earlier Efforts To Encourage Voluntary PTC Implementation

As the NTSB continued to highlight the opportunities for accident prevention associated with emerging train control technology through its investigations and findings, Congress showed increasing interest, mandating three separate reports over the period of a decade. In 1994, FRA reported to Congress on this problem, calling for implementation of an action plan to deploy PTC systems (Report to Congress on Railroad Communications and Train Control (July 1994) (hereinafter “1994 Report”)). The 1994 Report forecasted substantial benefits of advanced train control technology in supporting a variety of business and safety purposes, but noted that an immediate regulatory mandate for PTC could not be justified based upon normal cost-benefit principles relying on direct safety

benefits. The report outlined an aggressive Action Plan implementing a public-private sector partnership to explore technology potential, deploy systems for demonstration, and structure a regulatory framework to support emerging PTC initiatives.

Following through on the 1994 Report, FRA committed approximately $40 million through the Next Generation High-Speed Rail Program and the Research and Development Program to support development, testing, and deployment of PTC prototype systems in the Pacific Northwest, Michigan, Illinois, Alaska, and on some Eastern railroads. FRA also initiated a comprehensive effort to structure an appropriate regulatory framework for facilitating voluntary implementation of PTC and for evaluating future safety needs and opportunities.

In September of 1997, FRA asked the RSAC to address the issue of PTC. The RSAC accepted three tasks: Standards for New Train Control Systems (Task 1997-06), Positive Train Control Systems-Implementation Issues (Task 1997-05), and Positive Train Control Systems-Technologies, Definitions, and Capabilities (Task 1997-04). The PTC Working Group was established, comprised of representatives of labor organizations, suppliers, passenger and freight railroads, other federal agencies, and interested state departments of transportation. The PTC Working Group was supported by FRA counsel and staff, analysts from the Volpe National Transportation Systems Center (Volpe Center), and advisors from the NTSB staff.

In 1999, the PTC Working Group provided to the Federal Railroad Administrator a consensus report (Report of the Railroad Safety Advisory Committee to the Federal Railroad Administrator, Implementation of Positive Train Control Systems (August 1999) (hereinafter “1999 Report”)) with an indication that it would be continuing its efforts. The 1999 Report defined the PTC core functions to include: prevention of train-to-train collisions (positive train separation); enforcement of speed restrictions, including civil engineering restrictions (curves, bridges, etc.) and temporary slow orders; and protection for roadway workers and their equipment operating within their limits of authority. The PTC Working Group identified additional safety functions that might be included in some PTC architectures: provide warning of on-track equipment operating outside their limits of authority; receive and act upon hazard information, when available, in a more timely or more secure manner (

e.g.,

compromised bridge integrity, wayside detector data); and provide for future capability by generating data for transfer to highway users to enhance warning at highway-rail grade crossings. The PTC Working Group stressed that efforts to enhance highway-rail grade crossing safety must recognize the train's necessary right of way at grade crossings and that it is important that warning systems employed at highway-rail grade crossings be highly reliable and “fail-safe” in their design.

As the PTC Working Group's work continued, other collaborative efforts, including development of Passenger Equipment Safety Standards (including private standards through the American Public Transit Association), Passenger Train Emergency Preparedness rules, and proposals for improving locomotive crashworthiness (including improved fuel tank standards) have targeted reduction in collision and derailment consequences.

In 2003, in light of technological advances and potential increased cost and system savings related to prioritized deployment of PTC systems, the Appropriations Committees of Congress requested that FRA update the costs and benefits for the deployment of PTC and related systems. As requested, FRA carried out a detailed analysis that was filed in August of 2004,

Benefits and Costs of Positive Train Control

(Report in Response to Committees on Appropriations, August 2004) (“2004 Report”), which indicated that under one set of highly controversial assumptions, substantial public benefits would likely flow from the installation of PTC systems on the railroad system. Further, the total amount of these benefits was subject to considerable controversy. While many of the other findings of the 2004 Report were disputed, there were no data submitted to challenge the 2004 Report finding that reaffirmed earlier conclusions that the safety benefits of PTC systems were relatively small in comparison to the large capital and maintenance costs. Accordingly, FRA continued to believe that an immediate regulatory mandate for widespread PTC implementation could not be justified based upon traditional cost-benefit principles relying on direct railroad safety benefits.

Despite the economic infeasibility of PTC based on safety benefits alone, as outlined in the 1994, 1999, and 2004 Reports, FRA continued with regulatory and other efforts to facilitate and encourage the voluntary installation of PTC systems. As part of the High-Speed Rail Initiative, and in conjunction with the National Railroad Passenger Corporation (Amtrak), the AAR, the State of Illinois, and the Union Pacific Railroad Company (UP), FRA created the North American Joint Positive Train Control (NAJPTC) Program, which set out to describe a single standardized open source PTC architecture and system. UP's line between Springfield and Mazonia, Illinois was selected for initial installation of a train control system to support Amtrak operations up to 110 miles per hour, and the system was installed and tested on portions of that line. Although the system did not prove viable as then conceived, the project hastened the development of PTC technology that was subsequently employed in other projects. Promised standards for interoperability of PTC systems also proved elusive.

In addition to financially supporting the NAJPTC Program, FRA continued to work with the rail carriers, rail labor, and suppliers on regulatory reforms to facilitate voluntary PTC implementation. The regulatory reform effort culminated when FRA issued a final rule on March 7, 2005, establishing a technology neutral safety-based performance standard for processor-based signal and train control systems. This new regulation, codified as subpart H to part 236, was carefully crafted to encourage the voluntary implementation and operation of processor-based signal and train control systems without impairing technological development. 70 FR 11,052 (Mar. 7, 2005).

FRA intended that final rule—developed through the RSAC process in close cooperation with rail management, rail labor, and suppliers—to further facilitate individual railroad efforts to voluntarily develop and deploy cost effective PTC technologies that would make system-wide deployment more economically viable. It also appeared very possible that major railroads would elect to make voluntary investments in PTC to enhance safety, improve service quality, and foster efficiency (e.g., better asset utilization, reduced fuel use through train pacing).

C. Technology Advances Under Subpart H

While FRA and RSAC worked to develop consensus on the regulations that would become subpart H, the railroads continued with PTC prototype development. The technology neutral, performance-based regulatory process established by subpart H proved to be very successful in facilitating the development of other PTC implementation approaches. Although the railroads prototype development efforts were generally technically

successful and offered significant improvements in safety, costs of nationwide deployment continued to be untenable in the judgment of those determining allocation of railroad capital. Information gained from prototype efforts did little to reduce the estimated costs for widespread implementation of the core PTC safety functions on the nation's railroads.

Working under subpart H, the BNSF Railway Company (BNSF), CSX Transportation, Inc. (CSXT), the Norfolk Southern Corporation (NS), and UP undertook more aggressive design and implementation work. The new subpart H regulatory approach also made it feasible for smaller railroads, such as the Alaska Railroad and the Ohio Central Railroad, to begin voluntary design and implementation work on PTC systems that best suited their needs. FRA provided, and continues to provide, technical assistance and guidance regarding regulatory compliance to enable the railroads to more effectively design, install, and test their respective systems.

In December 2006, FRA approved the initial version of the Electronic Train Management System (ETMS®) product for deployment on 35 of BNSF's subdivisions (“ETMS I Configuration”) comprising single track territory that was either non-signaled or equipped with traffic control systems. ETMS is a registered trademark of Wabtec Railway Electronics. BNSF Railway has also referred to its application of this technology as “ETMS.”

In a separate proceeding, FRA agreed that ETMS could be installed in lieu of restoring a block signal system on a line for which discontinuance had been authorized followed by a significant increase in traffic. During the same period, BNSF successfully demonstrated a Switch Point Monitoring System (SPMS)—a system that contains devices attached to switches that electronically report the position of the switches to the railroad's central dispatching office and to the crew of an approaching train—and a Track Integrity Warning System (TIWS)—a system that also electronically reports to the railroad's central dispatching office and to the crew of an approaching train if there are any breaks in the rail that might lead to derailments or the condition of track occupancy. FRA believes both of these technologies help to reduce risk in non-signaled territory and are forward-compatible for use with existing and new PTC systems. To be forward-compatible, not to be confused with the similar concept of extensibility, a system must be able to gracefully provide input intended for use in later system versions. The introduction of a forward-compatible technology implies that older devices can partly understand and provide data generated or used by new devices or systems. The concept can be applied to electrical interfaces, telecommunication signals, data communication protocols, file formats, and computer programming languages. A standard supports forward-compatibility if older product versions can receive, read, view, play, execute, or transmit data to the new standard. In the case of wayside devices, they are said to be forward-compatible if they can appropriately communicate and interact with a PTC system when later installed. A wayside device might serve the function of providing only information or providing information and accepting commands from a new system.

In addition to scheduling the installation of the ETMS I configuration as capital funding became available, BNSF voluntarily undertook the design and testing of complementary versions of ETMS that would support BNSF operations on more complex track configurations, at higher allowable train speeds, and with additional types of rail traffic. Meanwhile, CSXT was in the process of redesigning and relocating the test bed for its Communications Based Train Management (CBTM) system, which it has tested for several years, and UP and NS were working on similar systems using vital onboard processing.

As congressional consideration of legislation that resulted in the RSIA08 commenced, all four major railroads had settled on the core technology developed for them by Wabtec Railway Electronics (“Wabtec”). As the legislation progressed, the railroads and Wabtec worked toward greater commonality in the basic functioning of the onboard system with a view toward interoperability. PTC applications of ETMS include the non-vital PTC systems of BNSF's ETMS I and ETMS II, CSXT's CBTM, UP's Vital Train Management System (VTMS), and NS's Optimized Train Control (OTC). Further work is being undertaken by BNSF to advance the capability of ETMS by integrating Amtrak operations (ETMS III). For a description of system enhancements planned by BNSF as per the Product Safety Plan filed in accordance with subpart H, see FRA Docket No. 2006-23687, Document 0017, at pp. 40-43.

While the freight railroads' efforts for developing and installing PTC systems progressed over a relatively long period of time, starting with demonstrations of ATCS and ARES in the late 1980s and culminating in the initial ETMS Product Safety Plan approval in December of 2006, Amtrak demonstrated its ability to turn on revenue-quality PTC systems on its own railroad in support of high-speed rail. Beginning in the early 1990s, Amtrak developed plans for enhanced high-speed service on the Northeast Corridor (NEC), which included electrification and other improvements between New Haven and Boston and introduction of the Acela trainsets as the premium service from Washington to New York and New York to Boston. In connection with these improvements, which support train speeds up to 150 miles per hour, Amtrak undertook to install the Advanced Civil Speed Enforcement System (ACSES) as a supplement to existing cab signals and automatic train control (speed control). Together, these systems deliver PTC core functionalities. In support of this effort, FRA issued an order for the installation of the system, which required all passenger and freight operators in the New Haven-Boston segment to equip their locomotives with ACSES.

See

63 FR 39,343 (July 22, 1998). ACSES was installed between 2000 and 2002, and has functioned successfully between New Haven and Boston, and on selected high-speed segments between Washington and New York, for a number of years.

Amtrak voluntarily began development of an architecturally different PTC system, the Incremental Train Control System (ITCS), for installation on its Michigan Line. Amtrak developed and installed ITCS under waivers from specific sections of 49 CFR part 236, subparts A through G, granted by FRA. ITCS was applied to tenant NS locomotives as well as Amtrak locomotives traversing the route. Highway-rail grade crossings on the route were fitted with ITCS units to pre-start the warning systems for high-speed trains and to monitor crossing warning system health in real time. The ITCS was tested extensively in the field for safety and reliability, and it was placed in revenue service in 2001. As experience was gained, FRA authorized increases in speed to 95 miles per hour; and FRA is presently awaiting final results of an independent assessment of verification and validation for the system with a view toward authorizing operations at the design speed of 110 miles per hour.

Despite these successes, the widespread deployment of these various train control systems, particularly on the general freight system, remained very much constrained by prohibitive capital costs. While the railroads were committed to installing these new systems to enhance the safety afforded

to the public and their employees, the railroads' actual widespread implementation remained forestalled due to an inability to generate sufficient funding for these new projects in excess of the capital expenditures necessary to cover the ongoing operating and maintenance costs. Accordingly, the railroads continued to plan very slow deployments of PTC system technologies.

III. The Rail Safety Improvement Act of 2008

On May 1, 2007, H.R. 2095 was introduced in the House of Representatives, which would, among other things, mandate the implementation and use of PTC systems. The bill passed the House, as amended, on October 17, 2007. The bill was then amended and passed by the Senate on August 1, 2008. While the bill was awaiting final passage, the FRA Administrator testified before Congress that “FRA is a strong supporter of PTC technology and is an active advocate for its continued development and deployment.” Senate Commerce Committee Briefing on Metrolink Accident, 110th Cong. (Sept. 23, 2008) (written statement of Federal Railroad Administrator Joseph H. Boardman),

available at http://www.fra.dot.gov/downloads/PubAffairs/09-23-08FinalStatementFRAAdministratorPTC_Sen_Boxer_Meeting.pdf.

On September 24, 2008, the House concurred with the Senate amendment and added another amendment pursuant to H. Res. 1492. When considering the House's amendment, various Senators made statements referencing certain train accidents that were believed to be PTC-preventable. For instance, Senator Lautenberg (NJ) took notice of the collision at Graniteville, South Carolina, in 2005, and Senators Lautenberg, Hutchinson (TX), Boxer (CA), Levin (MI), and Carper (DE) took notice of an accident at Chatsworth, California, on September 12, 2008. According to Senator Levin, federal investigators have said that a collision warning system could have prevented that crash and the subject legislation would require that new technology to prevent crashes be installed in high risk tracks. Senators Carper and Boxer made similar statements, indicating that PTC systems are designed to prevent train derailments and collisions, like the one in Chatsworth. 154 Cong. Rec. S10283-S10290 (2008). Ultimately, on October 1, 2008, the Senate concurred with the House amendment.

The Graniteville accident referenced by Senator Lautenberg occurred in the early morning hours of January 6, 2005, when a northbound NS freight train, operating within non-signaled (dark) territory, encountered an improperly lined switch that diverted the train from the main line onto an industry track, where it struck the locomotive of an unoccupied, parked train. The collision derailed both locomotives and 16 of the 42 freight cars of the moving train, as well as the locomotive and 1 of the 2 cars of the parked train. Among the derailed cars from the moving train were three tank cars containing chlorine, one of which was breached, releasing about 60 tons of chlorine gas. The train engineer and eight other people died as a result of chlorine gas inhalation. About 554 people complaining of respiratory difficulties were taken to local hospitals. Of these, 75 were admitted for treatment. Because of the chlorine release, about 5,400 people within a 1-mile radius of the derailment site were evacuated for almost 2 weeks.

The Chatsworth train collision occurred on the afternoon of September 12, 2008, when a UP freight train and a Metrolink commuter train collided head-on on a single main track equipped with a Traffic Control System (TCS) in the Chatsworth district of Los Angeles, California. Although NTSB has not yet released its final report, evidence summarized at the NTSB's public hearing suggested that the Metrolink passenger train was being operated on the main track past an absolute signal at a control point displaying a stop indication, when it trailed through a power-operated switch lined against its movement, and entered a section of single track where the opposing UP freight train was operating on a permissive signal indication. The UP train was lined to enter the siding at the control point, after which the switch would have been lined for the Metrolink train to proceed. As a consequence of the accident, 25 people died and over 130 more were seriously injured.

Prior to the accidents in Graniteville and Chatsworth, the railroads' slow incremental deployment of PTC technologies—while not uniformly agreed upon by the railroads, FRA, and NTSB—was generally deemed acceptable by them in view of the tremendous costs involved. Partially as a consequence and severity of these very public accidents, coupled with a series of other less publicized accidents, Congress passed the RSIA08 and it was signed into law by the president on October 16, 2008, marking a public policy decision that, despite the implementation costs, railroad employee and general public safety warranted mandatory and accelerated installation and operation of PTC systems.

As immediately relevant to this rulemaking, the RSIA08 requires the installation and operation of PTC systems on all rail main lines, meaning all intercity and commuter lines—with limited exceptions entrusted to FRA—and on freight-only rail lines when they are part of a Class I railroad system, carrying at least 5 million gross tons of freight annually, and carrying any amount of poison- or toxic-by-inhalation (PIH or TIH) materials. While the statute vests certain responsibilities with the Secretary of the U.S. Department of Transportation, the Secretary has since delegated those responsibilities to the FRA Administrator.

See

49 CFR 1.49(oo); 74 FR 26,981 (June 5, 2009);

see also

49 U.S.C. 103(g).

In the RSIA08, Congress established very aggressive dates for PTC system build-out completion. Each subject railroad is required to submit to FRA by April 16, 2010, a PTC Implementation Plan (PTCIP) indicating where and how it intends to install PTC systems by December 31, 2015.

In light of the timetable instituted by Congress, and to better support railroads with their installation while maintaining safety, FRA decided that it is appropriate for mandatory PTC systems to be reviewed by FRA differently than the regulatory approval process provided under subpart H. FRA believes that it is important to develop a process more suited specifically for PTC systems that would better facilitate railroad reuse of safety documentation and simplify the process of showing that the installation of the intended PTC system did not degrade safety. FRA also believes that subpart H does not clearly address the statutory mandates and that such lack of clarity would complicate railroad efforts to comply with the new statutory requirements. Accordingly, FRA hereby amends part 236 by modifying existing subpart H and adding a new subpart I.

IV. Public Participation

A.

RSAC Process

In March 1996, FRA established the RSAC, which provides a forum for collaborative rulemaking and program development. The RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, other government agencies, and other interested parties. When appropriate, FRA assigns a task to the RSAC, and after consideration and debate, the RSAC may accept or reject

the task. If accepted, the RSAC establishes a working group comprised of persons that possess 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 the working group comes to consensus on recommendations for action, the package is presented to the RSAC for a vote. If the proposal is accepted by a simple majority of the RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff has played an active role at the working group and subgroup levels 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 generally 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 was developed in accordance with the applicable policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal.

In developing the proposed rule in this proceeding, FRA adopted the RSAC approach by re-convening the PTC Working Group that had produced the rule recommendation resulting in subpart H. As part of this effort, FRA worked with the major stakeholders affected by this rulemaking in collaborative a manner as possible. FRA believes establishing a collaborative relationship early in the product development and regulatory development cycles can help bridge the divide between the railroad carrier's management, railroad labor organizations, the suppliers, and FRA by ensuring that all stakeholders are working with the same set of data and have a common understanding of product characteristics and functionality or their related processes production methods, including the regulatory provisions, with which compliance is mandatory. However, where the group failed to reach consensus on an issue, FRA used its authority to resolve the issue, attempting to reconcile as many of the divergent positions as possible through traditional rulemaking proceedings.

On December 10, 2008, the RSAC accepted a task (No. 08-04) entitled “Implementation of Positive Train Control Systems.” The purpose of this task was defined as follows: “To provide advice regarding development of implementing regulations for Positive Train Control (PTC) systems and their deployment under the Rail Safety Improvement Act of 2008.” The task called for the RSAC PTC Working Group to perform the following:

• Review the mandates and objectives of the Act related to deployment of PTC systems;

• Help to describe the specific functional attributes of systems meeting the statutory purposes in light of available technology;

• Review impacts on small entities and ascertain how best to address them in harmony with the statutory requirements;

• Help to describe the details that should be included in the implementation plans that railroads must file within 18 months of enactment of the Act;

• Offer recommendations on the specific content of implementing regulations; and

The task also required the PTC Working Group to:

• Report on the functionalities of PTC systems;

• Describe the essential elements bearing on interoperability and the requirements for consultation with other railroads in joint operations; and

• Determine how PTC systems will work with the operation of non-equipped trains.

The PTC Working Group was formed from interested organizations that are members of the RSAC. The following organizations contributed members:

American Association of State Highway and Transportation Officials (AAHSTO)

American Chemistry Council (ACC)

American Public Transportation Association (APTA)

American Short Line and Regional Railroad Association (ASLRRA)

Association of American Railroads (AAR)

Association of State Rail Safety Managers (ASRSM)

Brotherhood of Maintenance of Way Employes Division (BMWED)

Brotherhood of Locomotive Engineers and Trainmen Division (BLET)

Brotherhood of Railroad Signalmen (BRS)

Federal Transit Administration* (FTA)

International Brotherhood of Electrical Workers (IBEW)

National Railroad Construction and Maintenance Association

National Railroad Passenger Corporation (Amtrak)

National Transportation Safety Board (NTSB)*

Railway Supply Institute (RSI)

Transport Canada*

Tourist Railway Association Inc.

United Transportation Union (UTU)

——————

*Indicates associate (non-voting) member.

From January to April 2009, FRA met with the entire PTC Working Group 5 times over the course of 12 days. During those meetings, in order to efficiently accomplish the tasks assigned to it, the PTC Working Group empowered three task forces to work concurrently. These task forces were the passenger, short line and regional railroad, and the radio and communications task forces. Each discussed issues specific to its particular interests and needs and produced proposed rule language for the PTC Working Group's consideration. The majority of the proposals were adopted into the proposed rule as agreed upon by the working group, with rule language related to a remaining few issues being further discussed and enhanced for inclusion into the rule by the PTC Working Group.

The passenger task force discussed testing issues relating to parts 236 and 238 and the definition of “main line” under the statute, including possible passenger terminal and limited operations exceptions to PTC implementation. Recommendations of the task force were presented to the PTC Working Group, which adopted or refined each suggestion.

The short line and regional railroad task force was formed to address the questions pertaining to Class II and Class III railroads. Specifically, the group discussed issues regarding the trackage rights of Class II and III railroads using trains not equipped with PTC technology over a Class I railroad's PTC territory, passenger service over track owned by a Class II or Class III railroads where PTC would not otherwise be required, and rail-to-rail crossings-at-grade involving a Class I railroad's PTC equipped line and a Class II or III railroad's PTC unequipped line. After much discussion, there were no consensus resolutions reached to any of the main issues raised. However, the discussion yielded insights utilized by FRA in preparing this final rule.

The radio and communications task force addressed wireless communications issues, particularly as they relate to communications security, and recommended language for § 236.1033.

FRA staff worked with the PTC Working Group and its task forces in

developing many facets of the final rule. FRA gratefully acknowledges the participation and leadership of representatives who served on the PTC Working Group and its task forces. These points are discussed to show the origin of certain issues and the course of discussion on these issues at the task force and working group levels. We believe this helps illuminate the factors FRA weighed in making its regulatory decisions regarding this final rule and the logic behind those decisions.

In general, the PTC Working Group agreed on the process for implementing PTC under the statute, including decisional criteria to be applied by FRA in evaluating safety plans, adaptation of subpart H principles to support this mandatory implementation, and refinements to subpart H and the part 236 appendices necessary to dovetail the two regulatory regimes and take lessons from early implementation of subpart H, including most aspects of the training requirements. Notable accords were reached, as well, on major functionalities of PTC and on exceptions applicable to passenger service (terminal areas and limited main line exceptions). Major areas of disagreement included whether to allow non-equipped trains on PTC lines, extension of PTC to lines not within the statutory mandate, and whether to provide for onboard displays or terminals visible and accessible to employees other than the locomotive engineer when two or more persons are regularly assigned duties in the cab. Some additional areas of concern were discussed but could not be resolved in the time available. It was understood that where discussion did not yield agreement, FRA would make proposals within a Notice of Proposed Rulemaking (NPRM) and receive public comment.

B. Public Hearing and Comments Filed

FRA issued an NPRM on July 21, 2009, and accepted comments on this proposed regulation until August 20, 2009. A public hearing was also held in connection with the NPRM in Washington, DC, on August 13, 2009, as further described below.

During the comment period, a number of entities filed comments requesting that FRA extend the comment period to the proposed rule in this proceeding. FRA regrettably denied those requests due to the urgent need to prepare, process, and publish a final rule at the earliest possible date. Since railroads subject to the rules are each required to file a PTCIP by April 16, 2010, under the terms of the RSIA08, it was important that FRA provide reliable guidance for this process to occur in a timely manner. However, FRA responded to two of those requests on the record, indicating that it is FRA's policy to consider late-filed comments to the extent practicable and inviting the railroads to supplement their comments as soon as possible even if it is necessary to file after the formal comment period has closed.

On August 13, 2009, FRA held a hearing to provide interested parties an opportunity to enter oral statements into the record. The AAR, Amtrak, BNSF, and CSXT entered prepared statements into the record and UP and NS indicated their concurrence with those statements. An oral statement was also entered into the record by a representative of six (6) rail labor organizations, including the American Train Dispatchers Association (ATDA), BLET, BMWED, BRS, IBEW, and UTU (collectively, the “Rail Labor Organizations” or “RLO”). AASHTO also provided an oral statement at the hearing, indicating that it fully supports the implementation of the proposed rule. Copies of the prepared statements and of the hearing transcript can be found in the docket to this proceeding.

Subsequently, written comments were filed by the American Shortline and Regional Railroad Association (ASLRRA), Amtrak, APTA, ACC, AAR, BNSF, Caltrain, Canadian Pacific (CP), The Chlorine Institute (CI), CSXT, Friends of the Earth, GE Transportation (GE), HCRQ, Inc. and Cattron Group International (collectively, “HCRQ/CGI”), Invensys Rail Group—Safetran Systems (“Safetran”), NTSB, New York State Metropolitan Transportation Authority (NYSMTA), NJ Transit, Northern Indiana Commuter Transportation District (NICTD), Pacific Southwest Railway Museum, RLO, Railroad Passenger Car Alliance, San Bernardino Railway Historical Society, Southern California Regional Rail Authority (SCRRA or Metrolink), The Fertilizer Institute (TFI), Tourist Railway Association, Trinity Railway Express (TRE or Trinity), Utah Transit Authority (UTA) and a number of individuals.

After the comment period closed on August 20, 2009, the RSAC PTC Working Group was reconvened for 3 days. The PTC Working Group agreed on a number of recommendations for resolution of comments which were presented to the full RSAC on September 10. In voting by mail ballot that concluded on September 24, the RSAC adopted the recommendations, which are discussed below in the context of the specific issues that they address.

V. Overview: The Proposed Rule, Comments, and Resolution of Comments

In broad summary, the proposed rule provided for joint filing of PTCIPs by all railroads engaged in joint operations. Each PTCIP was to be accompanied or preceded by a PTC Development Plan (PTCDP) or PTC Safety Plan (PTCSP) detailing the technology to be employed, or by a Type Approval obtained by another railroad through approval of a PTCDP. As further discussed below, this overall structure was generally embraced by the industry parties and the commenters; but the extended period for delivery of interoperability standards has given rise to the need for some significant adjustments that are included in the final rule.

Under the NPRM language, Class I freight railroads would be required to describe in their PTCIPs the routes to be equipped based on traffic densities (lines carrying more than 5 million gross tons) and presence of PIH traffic during calendar year 2008. They would be permitted to amend those plans if FRA found that removal of a line was “consistent with safety and in the public interest.” The discussion below reflects the serious objections of the Class I railroads to this “base year” approach and adjustments that FRA makes in this final rule to provide somewhat greater flexibility on the face of the regulation. The discussion and final rule also provide FRA's response to a suggestion by the AAR that FRA create a

“de minimis”

exception to the requirement that lines carrying PIH traffic be equipped with PTC, an issue raised for the first time in response to the NPRM.

FRA proposed to adapt the performance-based structure of subpart H, which had been developed through the consensus process to encourage deployment of PTC and related technologies to provide a means of qualifying PTC systems under the RSIA08. In order to promote completion of PTC deployment by the end of 2015, as required by law, FRA proposed functional requirements that could be met by available technology. These provisions continue to enjoy broad support from the industry parties and commenters, but the final rule makes numerous perfecting changes to the implementing language in response to specific comments.

The NPRM set forth requirements for equipping of trains with PTC that reflected FRA's perception of practical considerations (e.g., not all locomotives can be equipped at once, and switching out locomotives to commit them to

equipped routes would involve significant cost and safety exposure), historic tolerance for some incidental unequipped movements under circumstances where strict adherence would create obvious hardship without commensurate safety benefits (e.g., locomotives of Class II and III railroads generally spend little time on Class I railroads and have a good safety record, yet requiring that they be equipped could result in expenditures greater than the previous value of the locomotives), and movement restrictions applicable where controlling locomotives might have failed onboard PTC equipment. These proposals elicited some strong objections and proposals for improvement. Several commenters asked that occasional movement of trains led by historic locomotives be permitted without equipping the locomotives with PTC technology. The final rule makes a number of changes, while endeavoring to carry forward the lessons of many decades and while recognizing the need for regulatory flexibility.

Relying on existing train control requirements, the NPRM proposed that each assigned crew member be able to view the PTC display and perform assigned functions from their normal position in the cab. The NPRM also addressed the need to avoid task overload on the locomotive engineer by having that person perform functions that could distract from attention to current safety duties. FRA has considered the Class I railroads' argument that, if a single display was acceptable under subpart H, it should be acceptable under the proposed subpart I. Although FRA has considered carefully the carriers' arguments on this point, the final rule carries forward principles of crew resource management by ensuring that each crew member has the information and ability to perform their assigned function and, therefore, where a PTC overlay system is used, that all of the safety features of the underlying operation to which PTC is added will be kept.

One of the critical choices assigned to FRA under the law was specification of any exceptions to passenger “main track” requiring installation of PTC. The NPRM carried forward narrow exceptions crafted at the request of commuter and intercity railroads. Amtrak followed with comments on the NPRM asking for a broader exception. They noted in particular that the incremental costs of PTC on some lines with limited freight traffic and relatively few Amtrak trains might need to be borne by states that support particular services, and the funding might not be available to do so. Following recommendations from the RSAC Working Group, FRA is including additional latitude to bring forward specific exceptions for FRA review and approval, with or without conditions.

The NPRM was technology neutral and directed at the outcomes desired. A number of the comments addressed the issue of market concentration and absence of effective choices in selecting PTC technology. In this regard, some felt that FRA should specify attributes of interoperability in the form of open standards. The final rule continues to rely on safety performance as the basis for FRA certification of PTC systems. FRA declines at this time to deprive those railroads that have served as technology leaders in developing PTC systems of the latitude to implement their systems, given their apparent willingness to provide open standards for attributes of the technology over which they have control, and given the predictable delays that would ensue should alternative approaches be specified. FRA is aware that this creates a degree of reliance on others with respect to those railroads that stood back and waited for others to develop PTC technology. Further, some degree of market concentration may exist on the general freight network, in particular, given the dominance of one vendor or supplier with respect to the core of the onboard systems. FRA financially supported development of interoperability standards through the North American Positive Train Control Program (the technology selected for demonstration was not deployed, and no standards were delivered) and again through the American Railway Engineering and Maintenance Association (standards have been published and are available, but no railroad has signaled an intention to employ them). The choice of technology that will be deployed should, in FRA's view, be made by those who are making the investments.

Finally, the NPRM took a traditional approach to recognition of technology, requiring that railroads step forward, individually or with their suppliers, to request recognition of PTC systems. Suppliers commented that they should be able to step forward without railroad participation and receive recognition for systems, subsystems, and components that would later be incorporated in PTC systems approved by FRA. They noted that the NPRM would burden them with reporting obligations while not conferring status to receive direct product recognition. While recognizing the commenters' logic, FRA could not find a means in the final rule to relieve these concerns, given limited technical staffing at FRA, the potential for filings representing technology that the industry would not employ, the inherent difficulty associated with addressing the safety of technology below the system level, and the critical need to provide rapid responses to necessary filings.

Each of the comments on the NPRM, including comments not within the scope of this overview, is discussed in relation to the topic addressed in the section-by-section analysis below.

VI. Seeking Further Comments

While this final rule is effective on the date indicated herein, FRA believes that certain issues warrant further discussion. Accordingly, FRA will continue to seek comments limited to increasing the clarity, certainty, and transparency of the criteria governing the removal from a PTCIP (and therefore from the requirement to install PTC) of any track segments on which PTC systems have yet to be installed for which a railroad seeks relief from the requirement to install PTC. FRA considers this issue separate and distinct from the discontinuance of any already installed or existing PTC systems, which is governed under § 236.1021, part 235 of this title, and the “Signal Inspection Act” (codified at 49 U.S.C. 20501-20505). Any further comments should be limited to the scope of the issues indicated in this preamble to which FRA seeks further comments.

In § 236.1005(b)(4)(i)(A)(

2

), the final rule provides certain factors that FRA will consider when determining whether to approve exclusion of a line from the PTCIP in the case of cessation of PIH traffic over a particular track segment. For instance, under § 236.1005(b)(4)(i)(A)(

2

)(

ii

), the requesting railroad must show that any rerouting of PIH traffic from the subject track segment is justified based upon the route analysis submitted. FRA seeks comments on how the elements of a route analysis should be weighed by FRA when determining whether rerouting as provided under this paragraph is sufficiently justified.

Section 236.1005(b)(4)(i)(A)(

2

)(

iii

) concerns the risk remaining on a track segment if PIH traffic were to be removed. FRA also seeks comments on how to measure the appropriate level of risk established in § 236.1005(b)(4)(i)(A)(

2

)(

iii

) to require the installation of PTC on lines not carrying PIH or passenger traffic. No railroad has supplied data supporting further track exceptions from PTC system installation consistent with

statutory and safety requirements. Thus, FRA requests additional data to support commenters' positions. FRA also seeks comment and information on ways that it might consider risk mitigations other than by a compensating extension of PTC or PTC technologies.

In § 236.1005(b)(4)(i), the final rule provides an exception to PTC system implementation where such implementation would provide only a

de minimis

PIH risk. While in the proposed rule FRA sought means to reduce the railroads' burdens associated with this rule, no specific

de minimis

exception was proposed. The AAR mentioned this possibility in its comment filed during the comment period and offered in supplementary comments filed after the comment period to work with FRA on this issue. FRA believes that the de minimis exception provided in this final rule falls within the scope of the issues set forth in the proposed rule. However, since none of the parties has had an opportunity to comment on this specific exception as provided in this final rule, FRA seeks comments on the extent of the

de minimis

exception.

As further explained below, this final rule uses 2008 traffic data as an initial baseline in each PTCIP to determine the breadth and scope of PTC system implementation and, in recognition of the fact that traffic patterns are likely to change to some degree before December 31, 2015, provides means of adjusting the track segments on which PTC must be installed where adjustments are appropriately justified. These issues relate to the potential scaling back of the breadth and scope of that baseline through the request by the railroads—made contemporaneously or subsequently to PTCIP submission and prior to actual PTC system implementation—on the subject track segments for FRA to apply certain regulatory exceptions. Under the procedures set forth in this final rule, requests for such amendments may be made after PTCIP submission. Since these issues should not affect the PTCIP required to be filed by the April 16, 2010, statutory deadline, FRA believes that time is available for some further consideration.

VII. Section-by-Section Analysis

Unless otherwise noted, all section references below refer to sections in title 49 of the Code of Federal Regulations (CFR). FRA sought comments on all proposals made in the NPRM. This portion of the preamble discusses the comments received, FRA's assessment of those comments, and the basis for the final rule provisions. Any analysis in the NPRM that is not explicitly modified in this final rule remains applicable.

Proposed Amendments to 49 CFR Part 229

Section 229.135 Event Recorders

The proposed amendment to the existing event recorder section of the Locomotive Safety Standards is intended to make that section parallel to the additions in § 236.1005(d) below. No comments were received, and the section is adopted as proposed.

Proposed Amendments to 49 CFR Part 234

Section 234.275 Processor-Based Systems

Section 234.275 presently requires that each processor-based system, subsystem, or component used for active warning at highway-rail grade crossings that is new or novel technology, or that provides safety-critical data to a railroad signal or train control system which is qualified using the subpart H process, shall also be governed by those requirements, including approval of a Product Safety Plan. Particularly with respect to high-speed rail, FRA anticipates that PTC systems will in some cases incorporate new or novel technology to provide for crossing warning system pre-starts (eliminating the necessity of lengthening the approach circuits for high-speed trains), to verify crossing system health between the wayside warning system and approaching trains, or to slow trains approaching locations where vehicle storage has been detected on a crossing, among other options. Indeed, each of these functions is presently incorporated in at least one train control system, and others may one day be feasible (including in-vehicle warning). There would appear to be no reason why such a functionality intended for inclusion in a PTC system mandated by subpart I could not be qualified with the rest of the PTC system under subpart I. On the other hand, care should be taken to set an appropriate safety standard taking into consideration highway users, occupants of the high-speed trains, and others potentially affected.

In fact, with new emphasis on high-speed rail, FRA needs to consider the ability of PTC systems to integrate this type of new technology and thereby reduce risk associated with high-speed rail service. Risk includes derailment of a high-speed train with catastrophic consequences after encountering an obstacle at a highway-rail grade crossing. To avoid such consequences, as many crossings as possible should be eliminated. To that end, 49 CFR 213.347 requires a warning and barrier plan to be approved for Class 7 track (speeds above 110 miles per hour) and prohibits grade crossings on Class 8 and 9 track (above 125 miles per hour). That leaves significant exposure on Class 5 and 6 track (80 miles per hour for freight and 90 miles per hour for passenger trains, up to 110 miles per hour for either) which is currently not specifically addressed by regulation.

At the public hearing in this proceeding, the RLO indicated its agreement with FRA's interpretation of 49 CFR 213.347 and stated that significant exposure remains at highway-rail grade crossings for Class 5 and 6 track, because “such plans or prohibitions are not currently addressed by Federal Regulation.” In addition to the proposed amendments to § 234.275, however, the RLO believes that PTC systems should also be mandated under subpart I to incorporate technology that would verify a highway-rail grade crossing warning system's activation for an approaching train and slow a train approaching a location where such system activation could not be verified. The RLO believes that such verification and speed restriction enforcement would significantly lower the exposure for a potential collision between a highway motor vehicle and a train. According to the RLO, this function is currently incorporated into at least one deployed train control system and is therefore feasible. In addition, the RLO propose that certain existing highway-rail grade crossing warning system regulations and requirements, including those in parts 213 and 234, and in subpart H to part 236, could be cross referenced or included in subpart I to ensure regulatory harmony.

While AAR understands the safety concern, it asserts that this function is not related to the core PTC functions mandated by Congress. Furthermore, asserts AAR, the cost of installing wayside interface units at grade crossings on PTC routes would be prohibitively expensive and would divert resources that would otherwise be devoted to meeting the mandated PTC deadline.

The NTSB recommends that the warning and barrier protection plans similar to those for Class 7 track at grade crossings in 49 CFR 213.347 should also apply to Class 5 and 6 tracks. According to the NTSB, such protection at crossings (similar to protection at crossings afforded within the ITCS project) should be integrated as part of an approved PTC plan to reduce the risk

of high-speed catastrophic derailments at such grade crossings.

FRA, while certainly recognizing these concerns, does not choose to provide further prescriptive requirements for highway-rail grade crossings beyond those set forth in § 213.347. FRA will, however, require that highway-rail grade crossing safety at Class 5 and 6 track speeds be specifically addressed within a railroad's PTCDP and PTCSP (

see

§§ 236.1013 and 236.1015 respectively) subject to FRA approval. FRA has separately developed Guidelines for Highway-Rail Grade Crossing Safety for high-speed rail that will be employed in the grant review and negotiation process under the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (2009) (ARRA). These Guidelines encourage use of sealed corridor strategies for Emerging High-Speed Rail systems and integration of highway-rail warning systems with PTC where feasible.

See

Docket No. FRA-2009-0095.

Proposed Amendments to 49 CFR Part 235

Section 235.7 Changes Not Requiring Filing of Application

FRA amends § 235.7, which allows specified changes within existing signal or train control systems be made without the necessity of filing an application. The amendments consist of adding allowance for a railroad to remove an intermittent automatic train stop system in conjunction with the implementation of a PTC system approved under subpart I of part 236, and a couple of minor editorial corrections.

The changes allowable under this section, without filing of an application, are those identified on the basis that the resultant condition will be at least no less safe than the previous condition. The required functions of PTC within subpart I provide a considerably higher level of functionality related to both alerting and enforcing necessary operating limitations than an intermediate automatic train stop system does. Additionally, in the event of the loss of PTC functionality (

see

§ 236.1029 regarding a failure en route), the operating restrictions required will provide the needed level of safety in lieu of the railroad being expected to keep and maintain an underlying system such as intermittent automatic train stop for use only in such cases. Therefore, FRA believes that with the implementation of PTC under the requirements of subpart I, the safety value of any previously existing intermittent automatic train stop system is entirely obviated. There were no objections in the PTC Working Group to this amendment.

The AAR submitted comment that within § 236.1021, paragraphs (j)(2) and (j)(3) should be revised to recognize the allowance for removal of a signal used in lieu of an electric or mechanical lock in the same manner as removal of the electric or mechanical lock. These two paragraphs are intended to recognize that where train speed over the switch does not exceed 20 miles per hour, or where trains are not permitted to clear the main track at such switch, removal of the devices intended to provide the necessary protection without filing for approval is appropriate.

The regulation requiring the installation of an electric or mechanical lock identifies the allowance for a signal used in lieu thereof (

see

§ 236.410). FRA agrees with the AAR that when the requirement for an electric or mechanical lock, or a signal used in lieu thereof, are eliminated, the removal of any of these devices in their entirety without filing for approval is appropriate. FRA is therefore amending paragraphs (j)(2) and (j)(3) of § 236.1021 as recommended in order to clarify these allowances.

For the same reasoning and in a consistent manner, FRA is amending paragraphs (b)(2) and (b)(3) in existing § 235.7 in order to provide the same allowances for removal of a signal used in lieu of an electric or mechanical lock within block signal systems without filing for approval.

Proposed Amendments to 49 CFR Part 236

Section 236.0  Applicability, Minimum Requirements, and Penalties

FRA amends this existing section of the regulation to remove manual block from the methods of operation permitting speeds of 50 miles per hour or greater for freight trains and 60 miles per hour or greater for passenger trains. Manual block rules create a reasonably secure means of preventing train collisions. However, where the attributes of block signal systems are not present, misaligned switches, broken rails, or fouling equipment may cause a train accident. FRA believes that contemporary expectations for safe operations require this adjustment, which also provides a more orderly foundation for the application of PTC to the subject territories. There were no objections in the PTC Working Group to this change and the NTSB supports the removal of manual block from a method of operation permitting train speeds of above 49 and 59 miles per hour for freight and passenger trains, respectively. According to the NTSB, manual block does not afford the level of safety that block signal or PTC systems provide for the detection of misaligned switches, broken rails, or fouling equipment that may cause a train accident.

After review of the NPRM, AAR stated that paragraph (c)(1)(ii)(A) seemed to preclude the operations identified in paragraph (c)(1)(ii)(B) and that it was unclear whether paragraph (c)(1)(ii)(A) applies to opposing trains or some other condition. Therefore, the AAR recommended that paragraphs (c)(1)(ii)(A) and (c)(1)(ii)(B) be revised. FRA agrees and has therefore revised paragraphs (c)(1)(ii)(A) and (c)(1)(ii)(B), and added paragraphs (c)(1)(ii)(C) and (c)(1)(ii)(D), in the final rule to improve clarity.

FRA has also added paragraph (d)(2) in the final rule to address the use of automatic cab signal, automatic train stop, or automatic train control systems on or after December 31, 2015. On or after December 31, 2015, the method of protecting high-speed train operations will be through the use of PTC. FRA recognizes that there may be justifiable reasons for continued use of automatic cab signal, automatic train stop, or automatic train control systems on or after December 31, 2015 on certain lines, where the installation of PTC would be inappropriate. In situations where the automatic cab signal, automatic train stop, or automatic train control systems are an integral part of the PTC system design, no action will be required by a railroad. In any other situation, however, FRA will only allow continued use of an automatic cab signal, automatic train stop, or automatic train control system on a case-by-case basis after sufficient justification has been provided to the Associate Administrator.

FRA has also added a preemption provision at the end of section 236.0. Part 236, which FRA inherited from the Interstate Commerce Commission at the time FRA was created, has had preemptive effect by operation of law at least since enactment of the Federal Railroad Safety Act of 1970 (Pub. L. 111-43). However, no preemption provision was ever added, largely as an historical accident. Since enactment of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act of 2007), Public Law 110-53, which amended 49 U.S.C. 20106 significantly, FRA has been updating the preemption provisions of its regulations to conform to the current statute as opportunities to do so are

presented. New subsection 236.0(i) is added to accomplish that and to recite the preemptive effect of the Locomotive Boiler Inspection Act (49 U.S.C. 20701-20703), which has been held by the U.S. Supreme Court to preempt the entire field of locomotive safety; therefore, this part preempts any state law, including common law, covering the design, construction, or material of any part of or appurtenance to a locomotive.

The text of section 236.0(i)(1) and (2) directly reflects FRA's interpretation of 49 U.S.C. 20106, as amended. Read by itself, 49 U.S.C. 20106(a) preempts state standards of care, including common law standards,

Norfolk Southern Ry.

v.

Shanklin,

529 U.S. 344, 358-359 (2000),

CSX Transp., Inc.

v.

Easterwood,

507 U.S. 658, 664 (1993), but does not expressly state whether anything replaces the preempted standards of care for purposes of tort suits. The focus of that provision is clearly on who regulates railroad safety: The federal government or the states. It is about improving railroad safety, for which Congress deems nationally uniform standards to be necessary in the great majority of cases. That purpose has collateral consequences for tort law which new statutory section 20106 paragraphs (b) and (c) address. New paragraph (b)(1) creates three exceptions to the possible consequences flowing from paragraph (a). One of those exceptions (paragraph (b)(1)(B)) precisely addresses an issue presented in

Lundeen

v.

Canadian Pacific Ry.,

507 F.Supp.2d 1006 (D.Minn. 2007) that Congress wished to rectify: It allows plaintiffs to sue a railroad in tort for violation of its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the secretaries. None of those exceptions covers a plan, rule, or standard that a regulated entity creates for itself in order to produce a higher level of safety than federal law requires, and such plans, rules, or standards were not at issue in

Lundeen.

The key concept of section 20106(b) is permitting actions under state law seeking damages for personal injury, death, or property damage to proceed using a federal standard of care. A plan, rule, or standard that a regulated entity creates pursuant to a federal regulation logically fits the paradigm of a federal standard of care—federal law requires it and determines its adequacy. A plan, rule, or standard, or portions of one, that a regulated entity creates on its own in order to exceed the requirements of federal law does not fit the paradigm of a federal standard of care—federal law does not require that the law be surpassed and, past the point at which the requirements of federal law are satisfied, says nothing about its adequacy. That is why FRA believes that section 20106(b)(1)(B) covers the former, but not the latter. The basic purpose of the statute—improving railroad safety—is best served by encouraging regulated entities to do more than the law requires and would be disserved by increasing potential tort liability of regulated entities that choose to exceed federal standards, which would discourage them from ever exceeding federal standards again.

In this manner, Congress adroitly preserved its policy of national uniformity of railroad safety regulation expressed in section 20106(a)(1) and assured plaintiffs in tort cases involving railroads, such as

Lundeen,

of their ability to pursue their cases by clarifying that federal railroad safety regulations preempt the standard of care, not the underlying causes of action in tort. Under this interpretation, all parts of the statute are given meanings that work together effectively and serve the safety purposes of the statute.

Section 236.410 Locking, Hand-Operated Switch; Requirements

In this final rule, FRA is removing the Note following paragraph (b) of this section. During FRA's review of the requirements contained in this part, FRA discovered that the Note following paragraph (b), which had previously been removed as part of FRA's 1984 amendments to this part, was inadvertently reprinted in the rule text several years later and has remained there. As reflected in the preamble discussion of the 1983 proposed rule, FRA moved the provisions for removal of electric or mechanical locks to § 235.7 based on FRA's determination that the industry was capable of achieving compliance of train operations in procedures more suitable to individual properties.

In light of the history of this section, FRA is taking the opportunity within this rulemaking to remove the Note following paragraph (b), which presents information in conflict with the allowances that have been added into §§ 235.7(b)(2) and (b)(3).

Section 236.909 Minimum Performance Standard

FRA is modifying paragraph (e)(1) of this section to include a requirement for the risk metric sensitivity analysis to be an integral part of the full risk assessment that is required to be provided in the Product Safety Plan (PSP) submittal in accordance with § 236.907(a)(7). Paragraph (e)(2) of this section is also being modified to eliminate an alternative option for a railroad to use a risk metric in which consequences of potential accidents are measured strictly in terms of fatalities.

Prior to the modification of this section, paragraph (e)(1) discussed how safety and risk should be measured for the full risk assessment, but did not accentuate the need for running a sensitivity analysis on chosen risk metrics to ensure that the worst case scenarios for the proposed system failures or malfunctions are accounted for in the risk assessment. On the other hand, Appendix B to this part mandates that each risk metric for the proposed product must be expressed with an upper bound, as estimated with a sensitivity analysis. The FRA's experience gained while reviewing PSP documents required by subpart H of this part and submitted to FRA for approval revealed that railroads did not consider it mandatory to run a sensitivity analysis for the chosen risk metrics. Thus, an additional effort was required from the FRA staff reviewing PSP submittals to demonstrate to the railroads the validity and significance of such a request. Therefore, this final rule amends paragraph (e)(1) to explicitly require the performance of a sensitivity analysis for the chosen risk metrics. The language in paragraph (e)(1) of this section explains why the sensitivity analysis is needed and what key input parameters must be analyzed.

FRA received comments on the proposed modification to paragraph (e)(1) of this section. While the RLO expressed support for making the risk metric sensitivity analysis an integral part of the full risk assessment, GE sought clarification and a sample regarding the proposed amendment to the clause regarding the risk assessment sensitivity analysis. GE believes that a literal interpretation of this clause would mean that the risk analysis must evaluate the risk sensitivity to variations in every individual electronic and mechanical component of the system. If so interpreted, GE asserts that the combinatorial calculations would present a significant barrier to the safety analysis and delay PTC system approval. GE further asserts that safety coverage of discrete component failures can be assured through other techniques in the overall system design. GE believes that the intent of this rule is that “component” should mean “functional subsystem,” as system safety can be completely addressed by performing the sensitivity analysis at that level. Accordingly, GE proffers that paragraph (e)(1) of this section should be modified to allow the level of detail

of the risk analysis to be chosen based on the system safety philosophy and technology chosen.

Similar concerns were expressed by HCRQ/CGI, which questioned the need for an additional requirement in the rule that would require the sensitivity analysis to document the sensitivity to worst case failure scenarios. In the alternative, HCRQ/CGI suggested that the final rule should require a reasonable justification for all failure rates.

In response to these comments, FRA would like to clarify that the lowest level of system elements constructing the overall system that would be subject to risk analysis and the following sensitivity analysis are “components,” “modules,” “pieces of equipment,” or “subsystems” that are processor-based in nature, the functionality and performance of which are governed by this part. FRA declines, however, to provide a sample sensitivity analysis in this rulemaking document, as the technique of sensitivity analysis has been well covered by a number of system safety engineering studies.

FRA notes that the term, “worst case failure scenario” is a subject of general theory of system safety and reliability. Therefore, it does not appear to be necessary to provide an interpretation of this term. Nonetheless, in response to comments that have been received on this issue, FRA would like to add a clarifying statement. A sensitivity analysis must be conducted by defining the range of values (i.e., lower bound, upper bound, and associated distribution) for key input parameters and assessing the impact of variations over those ranges on the overall system risk. The worst case analysis must consider realistic combinations of the key input parameters as they tend toward their worst case values. Justification must be provided for the ranges and process used in the design of the sensitivity analysis.

Another comment from HCRQ/CGI relates to the requirement that “the sensitivity analysis must confirm that the risk metrics of the system are not negatively affected by sensitivity analysis input parameters. * * *” HCRQ/CGI requested that the meaning of the phrase “negatively affected” be specified. FRA agreed to provide such an explanation and therefore offered an interpretation of the words “negatively affected” in paragraph (e)(1).

The modification to paragraph (e)(2) of this section is intended to clarify how the exposure and its consequences, as main components of the risk computation formula, must be measured. As stated in paragraph (e)(2), the exposure must be measured in train miles per year over the relevant railroad infrastructure where a proposed system is to be implemented. When determining the consequences of potential accidents, the railroad must identify the total costs involved, including those relating to fatalities, injuries, property damage, and other incidentals. This final rule eliminates the option of using an alternative risk metric, which would allow the measurement of consequences strictly in terms of fatalities. It is FRA's experience that measuring consequences of accidents strictly in term of fatalities did not serve as an adequate alternative to metrics of total cost of accidents for two main reasons. First, the statistical data on railroad accidents shows that accidents involving fatalities also cause injuries and significant damage to railroad property and infrastructure for both freight and especially passenger operations. Even though the cost of human life is often the highest component of monetary estimates of accident consequences, the dollar estimates of injuries, property losses, and damage to the environment associated with accidents involving fatalities cannot and should not be discounted in the risk analysis. Second, allowing fatalities to serve as the only risk metrics of accident consequences confused the industry and the risk assessment analysts attempting to determine the overall risk associated with the use of certain types of train control systems. As a result, some risk analysts inappropriately converted injuries and property damages for observed accidents into relative estimates of fatalities. This method cannot be considered acceptable because, while distorting the overall picture of accident consequences, it also raises questions on appropriateness of conversion coefficients. Therefore, FRA considers it appropriate to eliminate from the rule the alternative option for consequences to be measured in fatalities only. This approach gained the support of the RLO, who in their comments concur with a modification of paragraph (e)(2) that is eliminating an option of risk consequences to be measured in fatalities only.

Subpart I—Positive Train Control Systems

Section 236.1001 Purpose and Scope

This section describes both the purpose and the scope of subpart I. Subpart I provides performance-based regulations for the development, test, installation, and maintenance of PTC systems, and the associated personnel training requirements, that are mandated for installation by FRA. This subpart details the process and identifies the documents that railroads and operators of passenger trains are to utilize and incorporate in their PTC implementation plans. This subpart also details the process and procedure for obtaining FRA approval of such plans.

A number of railroads indicated concern with a potentially significant reprogramming of funds due to the statutorily mandated implementation of PTC systems. These railroads claim that the costs associated with PTC system implementation will lead to deferred capital improvements and maintenance elsewhere in the general railroad system, including degraded track, bridge, or drainage conditions, which may then lead to accidents. Thus, according to these railroads, the mandated PTC implementation, within an extremely aggressive timeframe, may lead to an overall reduced level of safety. FRA recognizes that the cost of PTC will be substantial. FRA does note that capital expenditures can often be financed; and the Railroad Rehabilitation and Improvement Financing (RRIF) program is one source of such financing. Other potential sources include private financing, public bond authority, and state and federal appropriations. It is the responsibility of each public and private railroad to determine appropriate funding sources to meet its needs.

Various railroads also urge FRA to not use its discretion to require more than the minimum mandated by the RSIA08. These railroads note that under FRA's economic analysis, the costs of PTC implementation outweigh its benefits by a ratio of 15 to 1. While these railroads acknowledge that these costs are mostly unavoidable due to the congressional mandate, they believe that there are ways FRA may mitigate these and other costs associated with this rule. FRA has crafted this final rule to limit the cost of implementation and to avoid further PTC development that could require additional funding and additional time. Accordingly, in the proposed and final rule, FRA indicates a willingness to approve suitable systems employing non-vital onboard processing, to recognize wayside signal logic as an appropriate means of protecting movements over switches, to recognize systems that enforce the upper limit of restricted speed as suitable collision avoidance in the case of following trains and joint authorities, to avoid any requirements for monitoring of derails off the main line in conventional speed territory, to allow for conventional arrangements at rail-to-rail crossings at-

grade where speeds are moderate, and to recognize to the maximum extent possible safety case showings made under subpart H prior to the effective date of this rule. In addition, FRA has made allowances for operation of Class II and III locomotives in PTC territory and significant “main line” exceptions for passenger routes. Together, these actions will save the railroads billions of dollars of initial expense, as well as continuing expense in maintenance over the coming years.

Section 236.1003 Definitions

Given that a natural language such as English contains, at any given time, a finite number of words, any comprehensive list of definitions must either be circular or leave some terms undefined. In some cases, it is not possible and indeed not necessary to state a definition. Where possible and practicable, FRA prefers to provide explicit definitions for terms and concepts rather than rely solely on a shared understanding of a term through use.

Paragraph (a) reinforces the applicability of existing definitions of subparts A through H. The definitions of subparts A through H are applicable to subpart I, unless otherwise modified by this part.

Paragraph (b) introduces definitions for a number of terms that have specific meanings within the context of subpart I. Paragraph (b) has been modified in the final rule by adding a definition for the term, “Notice of Product Intent.”

In lieu of analyzing each definition here, however, some of the delineated terms will be discussed as appropriate while analyzing other sections below.

As a general matter, however, FRA believes it is important to explain certain organizational changes required pursuant to the RSIA08. The statute establishes the position of a Chief Safety Officer within FRA. The Chief Safety Officer has been designated as the Associate Administrator for Railroad Safety. Thus, the use of the term Associate Administrator in this subpart refers to the Associate Administrator for Railroad Safety and Chief Safety Officer, or as otherwise referenced, the Associate Administrator for Railroad Safety/Chief Safety Officer.

The NPRM defined “host railroad” to mean “a railroad that has effective operating control over a segment of track.” This term is used in § 236.1005(b) to identify the party responsible for installing PTC and in § 236.1007 with respect to attributes of PTC systems for high-speed service. The host railroad is also responsible for planning and filing requirements (see, e.g., § 236.1009). In proposing this definition, FRA sought to capture in a word the essence of fundamental responsibility for the rail operation. FRA considered terms such as “track owner” (used in the Track Safety Standards), but found that the alternatives had drawbacks of one kind or another. There are places, for instance, where a non-railroad State or local government or private corporation owns the underlying fee beneath the railroad infrastructure but is not engaged in any way in managing or benefitting from the railroad (except in some cases by receiving revenue from a lease). There are also situations where multiple railroads are dispatched from a common location, either by one of the railroads or by a third party. It is increasingly the case that commuter service is provided by a public authority through multiple contractors who are responsible for discrete portions of service as agents of the sponsoring entity (e.g., equipment maintenance, track and signal maintenance, train operations, dispatching). In short, it is hard to describe, in a common way, who is responsible here; nevertheless, in any concrete case, there can be but one entity ultimately responsible.

The Southern California Regional Rail Authority submitted comments requesting that FRA provide additional clarification to what constitutes “effective operating control” as stated in the definition of the term “host railroad.” Specifically, SCRRA questioned whether FRA would consider control of dispatching as “effective operating control” even if responsibilities for the installation and maintenance of wayside devices and infrastructure are under a different party than the dispatcher. Although FRA does not find it necessary to change the definition contained in the regulation, FRA will offer clarification as to the intended meaning. As noted above, very often railroads cooperate in dispatching trains that traverse contiguous lines in order to maximize tactical planning and efficiency. Whether one railroad might dispatch another railroad's territory would not cause the dispatching railroad to take on the responsibilities of the host. Similarly, the fact that a railroad might contract with another railroad to dispatch all or a portion of its lines would not relieve the former railroad of responsibilities of the host.

In the example of SCRRA's Metrolink operations, we would expect SCRRA, which defines its route structure and timetable for passenger operations, to undertake the duties of the host for the lines for which it enjoys effective control in the sense that it has the right to determine who operates over the lines and under what conditions. In general, those are the lines it owns directly or through public authorities that cooperate in the joint powers arrangement. Lines owned and operated by BNSF or UP and over which Metrolink trains operate would be the responsibility of BNSF and UP, respectively, even if SCRRA or its contractor has day-to-day responsibility for dispatching some of them.

GE Transportation expressed concern regarding the definition and use of the term Type Approval in § 236.1003 and subsequent sections, including § 236.1031. GE Transportation notes that under the proposed rule Type Approvals apply only to complete PTC systems, although it is generally recognized in the industry that there are five core component subsystems in a PTC system configuration: (1) A locomotive onboard subsystem; (2) a dispatch center supervisory control and data acquisition (SCADA) subsystem; (3) a PTC server (central or wayside) if a server is required; (4) wayside interface units; and (5) a data communications network connecting the other subsystems. When a Type Approval is granted to a PTC system, GE Transportation suggests that core subsystems of that PTC system should be granted Component Type Approval under certain conditions. According to GE Transportation, the granting of such Component Type Approvals will drive simplified filings, faster approval, and faster deployment for new system configurations using a building block approach. In addition, states GE Transportation, it reduces the risks associated with PTC deployment by simplifying substitution of components in the event of a problem, the market for PTC system components becomes less restrictive, and the next logical step is for a supplier to be permitted to introduce a core subsystem component for approval. GE Transportation asserts that this will encourage market development and further reduce risks for PTC deployment and sustained operation.

FRA understands GE's concern. However, it appears to be based on a misunderstanding of FRA's definition of “Type Approval.” In developing the “Type Approval” concept, FRA looked to the Federal Aviation Administration (FAA) model of system approval as a basis. However, FRA modified the FAA approach to better fit FRA's regulatory mandate and resources. FRA considers the “Type Approval” to be more akin to the FAA concept of an “Airworthiness Certificate.” Under FAA rules, an airworthiness certificate is only issued

to a system (and, in the case of the FAA, this system is an aircraft). This analogy is made only to make a minor clarification and should not necessarily be construed to entirely equate subpart I's Type Approval concept with that of FAA's Airworthiness Certificate concept.

FRA has also considered GE's position that an FRA failure to issue component level approvals could restrict the development of new products. FRA notes that the current industry practice is based on vendor or supplier determination that there will be a market for a particular product. This determination may be based on a specific request from a customer, or on the vendor's or supplier's perception that there is a need for the product. While this process may consider the regulatory requirements that may be applicable to a component, it has not required FRA to issue an “approval” for any particular component. Given the number of new products that have been brought to market, FRA believes that this development model has worked very successfully. Further, the requirements of the RSIA08 require FRA to certify that the PTC system, not the PTC system components, meets the regulatory requirements. The “Type Approval” does not in any way certify a PTC system as required by statute; it only indicates to the system developer/integrator that FRA believes that the proposed system, if properly implemented, may meet the statutory requirements. FRA therefore declines, at this time, to issue component level “type approvals”.

The AAR believes that the definition of “safe state” includes conditions not necessarily applicable. According to AAR, this term may be utilized to describe the operation of a system in non-failure scenarios and, in fact, is arguably used in this fashion even within the NPRM preamble (

see, e.g.

, 74 FR 35,966 (July 21, 2009) (“If a switch is misaligned, the PTC system shall provide an acceptable safe state of train operations.”)). Accordingly, the AAR asserts that the definition of “safe state” should be modified to strike the clause “when the system fails.”

Some other commenters expressed the opinion that in the current definition of “safe state,” the clause “cannot cause harm” lacks specificity. FRA agrees to modify the definition of “safe state” by replacing the clause “system configuration that cannot cause harm when the system fails” with the clause “system state that, when the system fails, cannot cause death, injury, occupational illness, or damage to or loss of property, or damage to the environment.” This definition corresponds to that of the safe state definition in the U.S. Department of Defense Military Standard (MIL-STD) 882C. FRA, however, disagrees with AAR that the term “safe state” should be also applicable for the description of system state in non-failed conditions. The definition of the term “safe state” should not be confused with the term “safe operation” or “operating safely.” The term “safe state” was added in § 236.1003 strictly for the purpose of defining a “protective” state (safe state) of the system, which the system must take when it fails. At the same time, FRA admits erroneous use of the term “safe state” in the section quoted by AAR (74 FR 35,966) and amends it to read: “If a switch is misaligned, the PTC system shall provide an acceptable level of safety of train operations.”

Section 236.1005 Requirements for Positive Train Control Systems

The RSIA08 specifically requires that each PTC system be designed to prevent train-to-train collisions, overspeed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position. Section 236.1005 includes the minimum statutory requirements and provides amplifying information defining the necessary PTC functions and the situations under which PTC systems must be installed. Each PTC system must be reliable and perform the functions specified in the RSIA08.

Train-to-train collisions

. Paragraph (a)(1)(i) applies the statutory requirement that a mandatory PTC system must be designed to prevent train-to-train collisions. FRA understands this to mean head-to-head, rear-end, and side and raking collisions between trains on the same, converging, or intersecting tracks. Currently available PTC technology can meet these needs by providing current and continuous guidance to the locomotive engineer and enforcement using predictive braking to stop short of known targets. FRA notes that the technology associated with currently available PTC systems may not completely eliminate all collisions risks. For instance, a PTC system mandated by this subpart is not required to prevent a collision caused by a train that derails and moves onto a neighboring or adjacent track (known in common parlance as a “secondary collision”).

During discussions regarding available PTC technology, it has been noted that this technology also has inherent limitations with respect to prevention of certain collisions that might occur at restricted speed. In signaled territory, there are circumstances under which trains may pass red signals, other than absolute signals without verbal authority, either at restricted speed or after stopping and then proceeding at restricted speed. To avoid rear end collisions, available PTC technology does not always track the rear-end of each train, but instead relies on the signal system to indicate the appropriate action. In this example, the PTC system would display “restricted speed” to the locomotive engineer as the action required and would enforce the upper limit of restricted speed (i.e., 15 or 20 miles per hour, depending on the railroad). This means that more serious rear end collisions will be prevented, because the upper limit of restricted speed is enforced. This also means that fewer low speed rear-end collisions will occur because a continuous reminder of the required action will be displayed to the locomotive engineer (rather than the engineer relying on the aspect displayed by the last signal, which may have been passed some time ago). However, some potential for a low speed rear-end collision will remain in these cases, and the rule is clear that this limitation has been accepted. Similar exposure may occur in non-signaled territory where trains are conducting switching operations or other activities under joint authorities. The PTC system can enforce the limits of the authority and the upper limit of restricted speed, but it cannot guarantee that the trains sharing the authority will not collide. Again, however, the likelihood and average severity of any potential collisions would be greatly reduced considering such movements would be made under restricted speed. FRA may address this issue in a later modification to subpart I if necessary as technology becomes available.

FRA received comments on this discussion of the inherent limitations of available PTC technology with respect to the prevention of certain collisions that may occur at restricted speed from NYSMTA. NYSMTA sought clarification that PTC is not intended to enforce conformance of block entry speeds associated with wayside signal aspects or similar cab signal aspects provided without speed control, except when a train is operating under a wayside signal or cab signal aspect requiring a speed not to exceed restricted speed. FRA noted in the NPRM, and repeats here, that FRA recognizes that some PTC architectures will not directly enforce speed restrictions imposed by all intermediate signals. FRA does expect that the

PTCDP will be clear on how the system accomplishes train separation and regulation of speeds over turnouts.

The final rule text, however, does provide an example of a potential train-to-train collision that a PTC system should be designed to prevent. Rail-to-rail crossings-at-grade—otherwise known as diamond crossings—present a risk of side collisions. FRA recognizes that such intersecting lines may or may not require PTC system implementation and operation. Since a train operating with an unregulated PTC system cannot necessarily recognize a train not operating with a PTC system or moving on an intersecting track without a PTC system, the PTC system—no matter how intelligent—may not be able to prevent a train-to-train collision in such circumstances.

Accordingly, paragraph (a)(1)(i) requires certain protections for such rail-to-rail crossings-at-grade. While these locations are specifically referenced in paragraph (a)(1)(i), their inclusion is merely illustrative and does not necessarily preclude any other type of potential train-to-train collision. Moreover, a host railroad may have alternative arrangements to the specific protections referenced in the associated table under paragraph (a)(1)(i), which it must submit in its PTCSP—discussed in detail below—and receive a PTC System Certification associated with that PTCSP.

Rail-to-rail crossings-at-grade that have one or more PTC routes intersecting with one or more routes without a PTC system must have an interlocking signal arrangement in place developed in accordance with subparts A through G of part 236 and a PTC enforced stop on all PTC routes. FRA has also determined that the level of risk varies based upon the speeds at which the trains operate through such crossings, as well as the presence, or lack, of PTC equipped lines leading into the crossing. Accordingly, under a compromise accepted by the PTC Working Group, if the maximum speed on at least one of the intersecting tracks is more than 40 miles per hour, then the routes without a PTC system must also have either some type of positive stop enforcement or a split-point derail on each approach to the crossing and incorporated into the signal system, and a permanent maximum speed limit of 20 miles per hour. FRA expects that these protections be instituted as far in advance of the crossing as is necessary to stop the encroaching train from entering the crossing. The 40 miles per hour threshold appears to be appropriate given three factors. First, the frequency of collisions at these rail intersections is low, because typically one of the routes is favored on a regular basis and train crews expect delays until signals clear for their movement. Second, the special track structure used at these intersections, known as crossing diamonds, experiences heavy wear; and railroads tend to limit speeds over these locations to no more than 40 miles per hour. Finally, FRA recognizes that for a train on either intersecting route, elevated speed will translate into higher kinetic energy available to do damage in a collision-induced derailment. Thus, for the small number of rail crossings with one or more routes having an authorized train speed above 40 miles per hour, including higher speed passenger routes, it is particularly important that any collision be prevented. FRA believes that these more aggressive measures are required to ensure train safety in the event the engineer does not stop a train before reaching the crossing when the engineer does not have a cleared route displayed by the interlocking signal system and higher speed operations are possible on the route intersected. The split-point derail would prevent a collision in such a case by derailing the offending train onto the ground before it reaches the crossing. Should the train encounter a split-point derail as a result of the crew's failure to observe the signal indication, the slower speed at which the unequipped train is required to travel would minimize the damage to the unequipped train and the potential affect on the surrounding area.

As an alternative to split-point derails, the non-PTC line may be outfitted with some other mechanism that ensures a positive stop of the unequipped crossing train. If a PTC system or systems are installed and operated on all crossing lines, there are no speed restrictions other than those that might be enforced as part of a civil or temporary speed restriction. However, the crossing must be interlocked and the PTC system or systems must ensure that each of the crossing trains can be brought safely to a stop before reaching the crossing in the event that another train is already cleared through or occupying the crossing.

The Rail Labor Organizations shares FRA's concerns regarding diamond crossings, supporting the requirements for interlocking signal arrangements, a PTC enforced stop on PTC routes, and installation of split-point derails with a 20 miles per hour maximum authorized speed on the approach of any intersecting non-PTC route. However, the RLO believe that split-point derails should be required regardless of the PTC route's maximum speed in order to protect the PTC route against a non-equipped train passing through a stop indication and equipment inadvertently rolling out (i.e., a roll away) from the non-PTC route.

AAR and CSXT challenge the imposition of split-point derails. CSXT believes that the proposed rule merely shifts the safety risks associated with Class II and III railroads, but does not eliminate them altogether. For instance, CSXT points out that unlike a PTC-compliant system, the split-point derail would not avoid derailment altogether; rather, it would simply cause the non-PTC Class II or III train to derail away from the crossing. According to CSXT, the most comprehensive safety regime that would avoid both collisions and derailments would be to require Class II and Class III railroads operating on PTC routes also to be PTC equipped.

One commenter objected to the costs of derails being borne by PTC equipped Class I railroads. The NPRM did not purport to address who would pay this cost, but merely recited in a brief reference that the assumption had been made in the Regulatory Flexibility Analysis that the railroad installing PTC would bear the cost. FRA does not stipulate who is responsible for the cost of split-point derails at rail-to-rail crossings at-grade, as the cost will be borne in conformance with any agreements between the railroads or prior rights arising out of previous transactions under which property was acquired. FRA would have appreciated some indication of how those costs are likely to fall, but no information was provided on this point.

The commenter also proposes exploration of lower-cost alternatives in lieu of split-point derails. FRA agrees that less expensive alternatives to split-point derails at rail-to-rail crossings at-grade can and should be proposed in a railroad's PTCIP or PTCDP. As FRA stated in the preamble discussion of paragraph (a)(1)(i) in the proposed rule, “the non-PTC line may be outfitted with some other mechanism that ensures a positive stop of the unequipped * * * train.” (74 FR 35,950, 35,960). FRA expects, however, that any alternative to the split-point derail will provide the same level of separation as that afforded by the installation of the split-point derail.

CSXT submitted comments stating that the installation of split-point derails would create a new danger, including a secondary collision. However, FRA believes that these aggressive measures at locations where train speeds exceed 40 miles per hour through rail-to-rail crossings at-grade, where not all routes

have been equipped with a PTC system or positive stop enforcement, are necessary in order to ensure train safety. FRA fully agrees that full PTC technology that provides positive stop enforcement from all directions is a more desirable method of protecting such locations. However, where such technology has not been installed, the prescribed use of split-point derails in approach to the crossing-at-grade is deemed necessary in the event the engineer of a train operating on a line without positive stop enforcement does not have a cleared route and fails to stop the train prior to reaching the crossing. The split-point derail, in combination with the required speed limitation of 20 miles per hour or less, would prevent a collision by derailing the offending train onto the ground before it reached the crossing. Should such a train encounter a split-point derail in its derailing position as a result of the crew's failure to observe or adhere to the signal indication, the slower speed at which an unequipped train is required to travel would minimize damage to the unequipped train and the potential effect on the surrounding area.

FRA has also considered the comments of the RLO that more secure arrangements should be provided at each rail-to-rail crossing-at-grade, regardless of speed. FRA believes that where the PTC-equipped and non-PTC-equipped lines of the Class I railroads intersect, the railroads will generally utilize the available PTC technology to ensure a positive stop short of the crossing for any train required to stop short of the interlocking. The WIU at the location and available onboard capability supported by a radio data link should make this an obvious solution. FRA will scrutinize Class I PTCDPs to ensure that this is the case. FRA remains concerned that more aggressive solutions for intersections with Class II and III lines could impose substantial costs without returning significant benefits.

Overspeed derailments

. Paragraph (a)(1)(ii) requires that PTC systems mandated under subpart I be designed to prevent overspeed derailments and addresses specialized requirements for doing so. FRA notes that a number of passenger train accidents with a significant number of injuries have been caused by trains exceeding the maximum allowable speed at turnouts and crossovers and upon entering stations. Accordingly, FRA emphasizes the importance of enforcement of turnout and crossover speed restrictions, as well as civil speed restrictions.

For instance, in the Chicago region, two serious train accidents occurred on the same Metra commuter line when locomotive engineers operated trains at more than 60 miles per hour while traversing between tracks using crossovers, which were designed to be safely traversed at 10 miles per hour. For illustrative purposes, the rule text makes clear that such derailments may be related to railroad civil engineering speed restrictions, slow orders, and excessive speeds over switches and through turnouts and that these types of speed restrictions are to be enforced by the system.

The UTA and APTA each submitted the same basic comment pertaining to paragraph (a)(1)(ii), with which SCRRA concurred. They contend that speed restrictions are often set at a speed that is far below a speed that would cause a derailment. Therefore, they request that a PTC system should allow or display a speed higher than the actual speed restriction, but well short of a speed that may cause a derailment.

The RLO submitted a comment that, while the language “prevent overspeed derailments” accurately reflects the language found in the RSIA08, this paragraph misses the congressional intent of the statute and appears to be unenforceable unless a derailment occurs in conjunction with a PTC system that fails to enforce an overspeed event. The RLO believe that FRA should amend this paragraph to establish that it will be a violation of this section if the PTC system fails to enforce an overspeed condition that is not corrected by the locomotive engineer regardless of whether or not such overspeed results in a derailment. Since most overspeed occurrences do not result in a derailment, the RLO asserts that waiting for a derailment to happen before declaring that the PTC system is not operating as intended is contrary to the purpose of the law.

FRA intends and believes that the PTC core feature concerning “overspeed derailments” is such that the system shall enforce various speed restrictions (i.e., civil speed restrictions, temporary slow orders, excessive speeds over switches and through turnouts and crossovers, etc.) regardless of whether a derailment actually occurs. However, FRA elects to leave the rule text of paragraph (a)(1)(ii) as it was written in the proposed rule. FRA is aware of various train control systems that have a tolerance of 3 miles per hour before the system displays a warning to the train operator and that apply a penalty brake application when the train reaches a speed 5 miles per hour above the posted speed restriction. Appropriate speed margins or leeways associated with maximum authorized speed are expected, but they must be presented, justified, and approved within the context of a railroad's PTCDP and PTCSP.

Roadway work zones

. Paragraph (a)(1)(iii) requires that PTC systems mandated under subpart I be designed to prevent incursions into established work zone limits. Work zone limits are defined by time and space. The length of time a work zone limit is applicable is determined by human elements. Working limits are obtained by contacting the train dispatcher, who will confirm an authority only after it has been transmitted to the PTC system's server. Paragraph (a)(1)(iii) emphasizes the importance of each PTC system to provide positive protection for roadway workers working within the limits of their work zone. Accordingly, once a work zone limit has been established, the PTC system must be notified. The PTC system must continue to obey that limit until it is notified by the dispatcher or roadway worker in charge, with verification from the other, either that the limit has been released and the train is authorized to enter or the roadway worker in charge has authorized movement of the train through the work zone.

As a way to achieve this technological functionality, FRA's Office of Railroad Development has funded the development of a Roadway Worker Employee in Charge (EIC) Portable Terminal that allows the EIC to control the entry of trains into the work zone. While no rule includes the commonly used term EIC, FRA recognizes that it is the equivalent to the term “Roadway Worker In Charge” as used in part 214. With the portable terminal, the EIC can directly control the entry of trains into the work zone and restrict the speed of the train through the work zone. If the EIC does not grant authority for the train to enter the work zone, the train is forced to a stop by the PTC system prior to violating the work zone authority limits. If the EIC authorizes entry of the train into the work zone, the EIC may establish a maximum operating speed for the train consistent with the safety of the roadway work employees. This speed is then enforced on the train authorized to enter and pass through the work zone. The technology is significantly less complex than the technology associated with dispatching systems and the PTC onboard system. In view of this, FRA strongly encourages deployment of such portable terminals as opposed to current methods that only require the locomotive engineer to, in some manner, “acknowledge” his or her

authority to operate into or through the limits of the work zone (e.g., by pressing a soft key on the onboard display, even if in error).

Pending the adoption of more secure technology, such as the EIC Portable Terminal, FRA will scrutinize each submitted PTCDP and PTCSP to determine whether they leave any opportunity for single point human failure in the enforcement of work zone limits. FRA again notes that some methods in the past have allowed the locomotive engineer to simply acknowledge a work zone warning, even if inappropriately, after which the train could proceed into the work zone. FRA expects that more secure procedures will be included in safety plans submitted under subpart I.

The RLO submitted a comment that, in order for a PTC system to effectively perform the core function of protecting roadway workers operating within the limits of their authority, the PTC system must be designed in a manner that prevents override of an enforced stop prior to entering an established work zone through simple acknowledgement of the existence of work zone limits by a member of the train crew (i.e., by pressing a soft key on the onboard display, even if in error). The RLO expressed support for FRA's intention to closely scrutinize each PTCSP to determine whether they leave any opportunity for a single point human failure in the enforcement of work limits. The RLO strongly encouraged FRA to withhold approval of any PTC system that does not enforce a positive stop at the entrance to established work zones until notified directly by the dispatcher or the roadway worker in charge, with verification from the other, that the movement into the work zone has been authorized by the roadway worker in charge.

FRA agrees with the concern expressed by the RLO on this issue. However, in the spirit of staying strictly within the mandate of the RSIA08 relating to required PTC functionality, FRA will require that the actual method of enforcement and acknowledgement associated with work zones be presented within the PTCDP and PTCSP and subject to FRA approval. FRA continues to strongly encourage use of EIC portable terminals with electronic handshake of acknowledgement and authorizations to enter work zones.

Movement over main line switches

. Paragraph (a)(1)(iv) requires that PTC systems mandated under subpart I be designed to prevent the movement of a train through a main line switch in the improper position. Given the complicated nature of switches—especially when operating in concert with wayside, cab, or other similar signal systems—the final rule provides more specific requirements in paragraph (e) as discussed further below.

In numerous paragraphs, the final rule requires various operating requirements based primarily on signal indications. Generally, these indications are communicated to the engineer, who would then be expected to operate the train in accordance with the indications and authorities provided. However, a technology that receives the same information does not necessarily have the wherewithal to respond unless it is programmed to do so. Thus, paragraph (a)(2) requires PTC systems implemented under subpart I to obey and enforce all such indications and authorities provided by these safety-critical underlying systems. The integration of the delivery of the indication or authority with the PTC system's response to those communications must be described and justified in the PTCDP—further described below—and the PTCSP, as applicable, and then must comply with those descriptions and justifications. Again, FRA recognizes that in the case of intermediate signals, this may not involve direct enforcement of the signal indication.

APTA submitted a comment that the draft language of paragraph (a)(2) appears to disallow systems such as moving block overlays that may provide superior service. Since APTA does not believe this was the intent of the provision, APTA suggests that FRA clarify the language in this paragraph.

Paragraph (a)(2) is clear that the specified functions must be performed “except as justified” in the PTCDP or PTCSP. Here, FRA specifically intends to afford a means by which advanced systems permitting moving block operations could be qualified, either as stand-alone systems or as overlays integrated with the existing signal and train control arrangements.

The PTC Working Group had extensive discussions concerning the monitoring of main line switches and came to the following general conclusions:

First, signal systems do a good job of monitoring switch position, and enforcement of restrictions imposed in accordance with the signal system is the best approach within signaled territory (main track and controlled sidings). As a general rule, the enforcement required for crossovers, junctions, and entry into and departure from controlled sidings will be a positive stop, and the enforcement provided for other switches (providing access to industry tracks and non-signaled sidings and auxiliary tracks) will be display and enforcement of the upper limit of restricted speed. National Transportation Safety Board representatives were asked to evaluate whether this strategy meets the needs of safety from their perspective. The NTSB returned with a list of accidents caused by misaligned switches that it had investigated in recent years, none of which was in signaled territory. Based on that data, the NTSB staff decided that it was not necessary to monitor individual switches in signaled territory.

In a filing to this proceeding, the NTSB indicated that switch monitoring in both dark and signaled territories must demonstrate that a train will be stopped before crossing through a misaligned switch. Although the NTSB recognizes that signal systems currently provide information about switch positions, it asserts that FRA must ensure that any PTC system that uses the signal system to monitor switch positions will provide adequate safeguards to prevent trains from being routed through misaligned switches. Accordingly, the NTSB agreed with FRA's decision to protect switches within sidings with speed limits greater than 20 miles per hour to prevent switch misalignment accidents.

Second, switch monitoring functions of contemporary PTC systems provide an excellent approach to addressing this requirement in dark territory. However, it is important to ensure that switch position is determined with the same degree of integrity that one would expect within a signaling system (e.g., fail-safe point detection, proper verification of adjustment). The PTC Working Group puzzled over sidings in dark territory and how to handle the requirement for switch monitoring in connection with those situations. (While these are not “controlled” sidings, as such, they will often be mapped so that train movements into and out of the sidings are appropriately constrained.) At the final PTC Working Group meeting, a proposal was accepted that would treat a siding as part of the main line track structure requiring monitoring of each switch off of the siding if the siding is non-signaled and the authorized train speed within the siding exceeds 20 miles per hour. This issue is more fully discussed below.

Other functions.

While FRA has included the core PTC system requirements in § 236.1005, there is the possibility that other functions may be explicitly or implicitly required elsewhere in subpart I. Accordingly, under paragraph (a)(3), each PTC system required by subpart I must also perform

any other functions specified in subpart I. According to 49 U.S.C. 20157(g), FRA must prescribe regulations specifying in appropriate technical detail the essential functionalities of positive train control systems and the means by which those systems will be qualified.

In addition to the general performance standards required under paragraphs (a)(1)-(3), paragraph (a)(4) contains more detailed standards relating to the situations paragraphs (a)(1)-(3) intend to prevent. Paragraph (a)(4) defines specific situations where FRA has determined that specific warning and enforcement measures are necessary to provide for the safety of train operations, their crews, and the public and to accomplish the goals of the PTC system's essential core functions. Under paragraph (a)(4)(i), FRA intends to prevent unintended movements onto PTC main lines and possible collisions at switches by ensuring proper integration and enforcement of the PTC system as it relates to derails and switches protecting access to the main line.

Paragraph (a)(4)(ii) intends to account for operating restrictions associated with a highway-rail grade crossing active warning system that is in a reduced or non-operative state and unable to provide the required warning for the motoring public. In this situation, the PTC system must provide positive protection and enforcement related to the operational restrictions of alternative warning that are issued to the crew of any train operating over such crossing in accordance with part 234. Paragraph (a)(4)(iii) concerns the movement of a PTC operated train in conjunction with the issuance of an after arrival mandatory directive. While FRA recognizes that the use of after arrival mandatory directives poses a risk that the train crew will misidentify one or more trains and proceed prematurely, PTC provides a means to intervene should that occur. Further, such directives may sometimes be considered operationally useful. Accordingly, FRA fully expects that the PTC system will prevent collisions between the receiving trains and the approaching train or trains.

Numerous comments were received related to PTC system functional requirements associated with highway-rail grade crossing active warning systems. At the public hearing, the RLO asserted that the use of technologies providing warning system pre-starts, activation verification, and various health monitoring information related to the warning system to approaching trains needs to be a required component of the PTC system warning and enforcement functionalities where warranted. AASHTO submitted comments expressing agreement that inclusion of hazard warning detection in PTC systems for highway-rail grade crossing warning systems is a significant enhancement to mitigate potential risk. AASHTO also underlined its position of enhancing grade crossing safety further by implementation of a program to fully eliminate at-grade highway-rail crossings through consolidation and grade separation wherever possible.

Some commenters expressed various logistic concerns with the proposed rule language relating to operational restrictions issued in response to a warning system malfunction as required by §§ 234.105, 236.106, and 236.107 of this part. Other commenters asserted that any PTC system functional requirements related to highway-rail grade crossing warning systems fall entirely outside the scope of the statutory mandate contained within the RSIA08 and therefore should not be addressed in this rulemaking.

The AAR stated that, while they understand the safety concern, this function is not even remotely related to the “core” PTC functions mandated by Congress. Furthermore, the AAR asserts that the great cost of installing wayside interface units at grade crossings on PTC routes would be prohibitively expensive and would divert resources that would otherwise be devoted to meeting the mandated PTC deadline.

NJ Transit stated that the RSIA08 does not indicate a requirement for highway-rail grade crossing inclusion in the PTC system speed and stop enforcement. Thus, the requirement contained in paragraph (a)(4)(ii) to include warning and enforcement functionality simply adds an additional effort to an already extremely aggressive December 31, 2015, mandate for PTC.

APTA and SCRRA stated that the requirements contained in proposed paragraph (a)(4)(ii) were unclear. APTA and SCRRA recommended that FRA should clarify that the language in paragraph (a)(4)(ii) is intended solely to provide that a dispatcher can place a restriction on a crossing that the PTC system must enforce in the event that a malfunction is reported. However, according to APTA, paragraph (a)(4)(ii) should not be read to require a PTC system to protect a grade crossing and restrict or prevent a movement authority of a train from being advanced across the crossing in the event of a failure being detected in real time; nor should paragraph (a)(4)(ii) be interpreted to require a grade crossing warning system to self-monitor and, if in a degraded condition, impose a speed restriction or stop for an approaching train.

NYSMTA states that the addition of highway-rail grade crossings to this subpart falls outside the statutory mandate for PTC systems within the RSIA08. This additional functionality presents an additional burden for LIRR and Metro-North. Both railroads have hundreds of grade crossings in their rail networks. NYSMTA further asserted that the language in paragraph (a)(4)(ii) was ambiguous with respect to whether “warning or enforcement” of reported grade crossing failures would be required, and what constitutes a “warning.” Required enforcement will increase the capital cost of PTC, have an adverse impact on operations, risk modifications to ACSES that could trigger verification and validation, and create a further impediment to meeting the other requirements of the proposed FRA regulations. NYSMTA therefore recommended that the final rule be limited at this time to the four requirements of the RSIA08.

FRA believes that, although the RSIA08 does not specifically require PTC systems to cover highway-rail grade crossing warning system malfunctions and associated operational requirements, it does stipulate that FRA must develop rules and standards for PTC system functionality, which include the four core features identified. In light of the safety-critical nature of the specified operational limitations for providing alternative warning to highway users pursuant to §§ 234.105, 236.106, and 236.107, and the catastrophic consequences that have often been experienced when those operational limitations have not been accomplished (including actual and potential impacts with motor vehicles involving serious injury and loss of life) and the fact that these operational limitations equate to speed and stop targets that PTC systems may surely warn and enforce, FRA intends to carry the language contained within the proposed paragraph into this final rule. Although FRA believes that the proposed rule was clear that its purpose was to enforce dispatcher-issued “stop-and-flag” orders and slow orders associated with credible reports of highway-rail grade crossing warning device malfunctions, reference has been added to “mandatory directives,” a term with a well-established meaning in FRA regulatory parlance (

see

49 CFR part 220).

While FRA recognizes that technologies exist to provide even further interface with warning system activation and health, and encourages railroads to include these technologies

to the extent possible, FRA elects to not require those interfaces beyond that which has been already identified within this paragraph.

The NTSB submitted comments recommending that requirements for warning and barrier protection plans for Class 7 track should also apply to Class 5 and 6 tracks as part of an approved PTCSP in order to reduce the risk of high-speed catastrophic derailments at associated grade crossings. FRA notes that the requirements contained within § 213.347 of this part require that a warning/barrier plan be approved and adhered to for Class 7 track operations and prohibit grade crossings on Class 8 and 9 track. Those requirements do not, however, address Class 5 and 6 tracks specifically. Therefore, FRA believes that this comment falls outside the scope of the present rulemaking. As noted elsewhere in this preamble, FRA has developed Guidelines for Highway-Rail Grade Crossing Safety on high-speed rail lines that endeavor to improve engineering with a strong emphasis on closures. Those Guidelines will be used to review and negotiate grants under ARRA.

FRA recognizes that movable bridges, including draw bridges, present an operational issue for PTC systems. Under subpart C, § 236.312 already governs the interlocking of signal appliances with movable bridge devices and FRA believes that this section should equally apply to PTC systems governing movement over such bridges. While subparts A through H apply to PTC systems—as stated in § 236.1001—paragraph (a)(4)(iv) proposes to make this abundantly clear. Accordingly, in paragraph (a)(4)(iv) and consistent with § 236.312, movable bridges within a PTC route are to be equipped with an interlocked signal arrangement which is also to be integrated into the PTC system. A train shall be forced to stop prior to the bridge in the event that the bridge locking mechanism is not locked, the locking device is out of position, or the bridge rails of the movable span are out of position vertically or horizontally from the rails of the fixed span. Effective locking of the bridge is necessary to assure that the bridge is properly seated and thereby capable to support both the weight of the bridge and that of a passing train(s) and preventing possible derailment or other potential unsafe conditions. Proper track rail alignment is also necessary to prevent derailments, either of which again could result in damage to the bridge or a train derailing off the bridge. No comments were received on this issue, and the provision is carried forward in the final rule.

Paragraph (a)(4)(v) requires that hazard detectors integrated into the PTC system—as required by paragraph (c) of this section or the FRA approved PTCSP—must provide an appropriate warning and associated applicable enforcement through the PTC system. There are many types of hazard detection systems and devices. Each type has varying operational requirements, limitations, and warnings based on the types and levels of hazard indications and severities. FRA expects this enforcement to include a positive stop where necessary to protect the train (e.g., areas with high water, flood, rock slide, or track structure flaws) or to provide an appropriate warning with possible movement restriction being acknowledged (i.e., hot journal or flat wheel detection). The details of these warnings and associated required enforcements are to be specifically addressed within a PTCDP and PTCSP subject to FRA approval, and the PTC system functions are to be maintained in accordance with the system specifications. FRA does not expect that all hazard detectors be integrated into the PTC systems, but where they are, they must interact properly with the PTC system to protect the train from the hazard that the detector is monitoring. With the exception of the RLO's strong emphasis on safety in PTC system deployment, no comments were received on this issue; and the provision is carried forward in the final rule.

Paragraph (a)(5) addresses the issue of broken rails, which is the leading cause of train derailments. FRA proposes to strictly limit the speed of passenger and freight operations in those areas where broken rail detection is not provided. Under § 236.0(c), as amended in this final rule, 24 months after the publication of this final rule, freight trains operating at or above 50 miles per hour, and passenger trains operating at or above 60 miles per hour, are required to have a block signal system unless a PTC system meeting the requirements of this part is installed. Since current technology for block signal systems relies on track circuits—which also provide for broken rail detection—this final rule requires limiting speeds where broken rail detection is not available to the maximums allowed under amended § 236.0 when a block signal system is not installed. No comments were received on this issue, and the provision is carried forward in the final rule.

Deployment requirements.

Paragraph (a) of 49 U.S.C. 20157, as enacted by the RSIA08, reads as follows:

“(a) IN GENERAL.—

“(1) PLAN REQUIRED.—Not later than 18 months after the date of enactment of the Rail Safety Improvement Act of 2008, each Class I railroad carrier and each entity providing regularly scheduled intercity or commuter rail passenger transportation shall develop and submit to the Secretary of Transportation a plan for implementing a positive train control system by December 31, 2015, governing operations on—

“(A) its main line over which intercity rail passenger transportation or commuter rail passenger transportation, as defined in section 24102, is regularly provided;

“(B) its main line over which poison- or toxic-by-inhalation hazardous materials, as defined in parts 171.8, 173.115, and 173.132 of title 49, Code of Federal Regulations,

are transported; and

“(C) such other tracks as the Secretary may prescribe by regulation or order.

“(2) IMPLEMENTATION.—The plan shall describe how it will provide for interoperability of the system with movements of trains of other railroad carriers over its lines and shall, to the extent practical, implement the system in a manner that addresses areas of greater risk before areas of lesser risk. The railroad carrier shall implement a positive train control system in accordance with the plan.”

It is plain on the face of the statute that certain actions are required and some are discretionary and that these actions must come together progressively over a period beginning on April 16, 2010 (18 months after enactment) and ending on December 31, 2015. FRA has included revisions in this final rule designed to fully express this intent.

In paragraph (b) of § 236.1005 in the NPRM, FRA proposed to use 2008 traffic levels as a baseline to fix the network that would receive PTC, subject to any subsequently requested and approved amendments to the PTCIP that would justify removal of the line, and subject to the addition of lines that might qualify under the statutory mandate based on later data. In addition to FRA's understanding of the rail lines Congress intended to cover, FRA had several other fundamental reasons for doing so. First, in order to reach completion by December 31, 2015, as required by law, the railroads and FRA need to identify the relevant route structure very early in the short implementation period and the railroads need to stage the financing and logistics to reach completion. Otherwise, the statutory deadline will not be met. Second, 2009 traffic levels will be notably atypical as a result of the recession, which has caused overall traffic levels to fall by as much as 20%. Third, the burden of installing PTC, which the statute applies obligatorily to very large railroads but not to others, may create an incentive to further “spin off” certain lines to avoid installing PTC

on lines Congress intended to cover. Finally, FRA was concerned about responsive and anticipatory actions being taken by some railroads in the face of emerging regulatory influences. Accordingly, FRA sought in the NPRM to take a snapshot of the Class I system at the time the Congress directed the implementation of PTC and then, using its discretionary authority under the statute, to evaluate what adjustments may be in order.

The Class I railroads responded with the suggestion that FRA is without discretion to require inclusion of lines that do not qualify as of 2015. However, FRA has already quoted the statute, which makes clear the inclusion of FRA-identified lines in the 2015 mandate. The statutory “shall” applies to these lines. Also, FRA and its predecessor agency have long enjoyed the power to require installation of train control under the “Signal Inspection Act” (codified at 49 U.S.C. 20501-20505). Further, FRA has been mandated since 1970 to issue rules and standards covering “every area of railroad safety” (49 U.S.C. 20103). In conferring new responsibilities, the Congress in no sense repealed what preceded them.

Arguing in the alternative, the Class I railroads said that FRA had failed to rely on its discretionary authority to accomplish its purpose. In fact, the subject statutory provisions were called out in the authority section of the NPRM text, with the exception of the Signal Inspection Act, as codified (an oversight remedied here).

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FRA also explicitly stated in the preamble to the NPRM its intention to use its statutory discretion to preserve congressional intent and tied that intention to the use of 2008 traffic levels. The railroads' ancillary claim is that, in effect, FRA would be “arbitrary and capricious” should the agency require PTC on lines not carrying PIH as of the end of 2015 absent a further congressional mandate or a showing that PTC on the subject lines would be “cost beneficial.”

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Here we recognize the interest of railroads that will be making very costly investments to meet the requirements of the statute and this rule. The “Signal Inspection Act,” as codified, makes it explicit that the presence of a signal or train control system on one line may not be considered in a civil action with respect to an accident on another line. This law is also explicit that, once installed, such a system may not be removed without approval. 49 U.S.C. 20501-20505. It should have been cited in the NPRM.

FRA is very conscious of the fact that PTC is expensive, and the agency's regulatory evaluation for the proposed rule does not seek to conceal it. The unit costs will be particularly high during the period before December 31, 2015, and trying to do too much too fast could result in significant disruption of rail transportation. Accordingly, during the initial implementation period, FRA will not exercise its authority to require a build out of the PTC network beyond something on the order of what the Congress contemplated. However, FRA will exercise its discretion to ensure that the network design reflects safety needs and places a value on PTC that reflects an understanding of the value applied by the Congress.

FRA understands the arguments surrounding PTC costs and benefits, having filed three congressionally-required reports since 1994 with information on the subject, having worked through the RSAC for several years evaluating this issue, having funded PTC technology development and overseen PTC pilot projects from the State of Washington to the State of South Carolina, and having provided testimony to the Congress on many occasions. However, FRA believes that the issue is now presented in a different light than before. The Congress was aware that the monetized safety benefits of PTC were not large in comparison with the loss of life and injuries associated with PTC-preventable accidents. With the passage of RSIA08, Congress has in effect set its own value on PTC and directed implementation of PTC without regard to the rules by which costs and benefits are normally evaluated in rulemaking.

One could conclude that the Congress set the value only with respect to passenger trains and PIH releases, but that would assume that the interest expressed by the Congress over much more than a decade and a half was so limited. In fact, longtime congressional interest stemmed in large part from the loss of life among railroad crew members in collisions, as well the potential for release of other hazardous materials. Most of the NTSB investigations and investigations pertaining to this “most wanted” transportation safety improvement in fact derived from such events.

In this light, the focus of the statute on PIH and scheduled passenger trains was clearly intended to provide specific guidance to the agency—a minimum standard for action—and reflected the prominence of passenger train accidents (Placentia, CA, April 23, 2002; Chatsworth, CA); and PIH releases (Macdona, TX, June 28, 2004; Graniteville, SC) in the most serious of the recent PTC-preventable accidents. FRA does not take this to mean that the Congress meant us to be indifferent to the crew fatality at Shepherd, Texas, on September 15, 2005, which resulted from a misaligned main track switch in a collision very similar to the one at Graniteville. Nor do we believe that FRA was expected to be indifferent to the collision between two freight trains at Anding, Mississippi, on July 10, 2005, which killed four crew members, or the collision with release of liquefied propylene gas and ensuing explosion at Texarkana, Arkansas, on October 15, 2005, which killed a resident of a community abutting the railroad.

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See, e.g., Rail Safety Reauthorization: Hearing Before the Subcomm. on Surface Transportation and Merchant Marine of the S. Comm. on Commerce, Science, & Transportation,

110th Cong. (May 22, 2007) (statement of Robert L. Sumwalt, Vice Chairman, National Transportation Safety Board). Thus, FRA was provided latitude to require PTC system installation and operation on lines beyond those specifically prescribed by Congress. While FRA has enjoyed the same latitude under pre-existing authority, RSIA08 indicates Congress' elevated concern that FRA ensure the more serious and thoughtful proliferation of PTC system technologies. Although, as noted above, FRA would expect to exercise any such authority with significant reserve, given the high costs involved, it would be an abdication of the agency's responsibility not to determine that the basic core of the Class I system is addressed,

as would be the case based on 2008 traffic patterns.

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Unique among these events, the Texarkana collision may not have been prevented by PTC technology now being perfected. However, the consequences which ensued, including the fatality, destruction of two residences and a highway bridge, and a significant evacuation are illustrative of the consequences that can result from release of flammable compressed gases in train accidents. There are approximately 100,000 carloads of PIH commodities shipped each year. There are approximately 228,000 carloads of flammable compressed gases (other than those classified as PIH) shipped each year.

The tone of the Class I freight railroad comments justified FRA's concerns that railroads might take the wrong lesson from the statutory mandate. The lesson FRA perceives is that the core of the national rail system, which carries passenger and PIH traffic, needs to be equipped with PTC and that Congress used 5 million gross tons of freight traffic, the presence of PIH traffic, and the presence of passenger service as readily perceptible markers identifying the core lines on which Congress wants PTC to be installed. In making its judgments, Congress was necessarily looking at the national rail system as it existed in 2008 when the statute was passed. A corollary of that lesson is that the later disappearance or diminution of

one of those markers from a line does not necessarily mean that Congress would no longer see that line as part of the core national rail system meriting PTC. An alternative response would be to adopt policies and tactics that penalize rail passenger service and attempt to drive PIH traffic off the network, consolidating the traffic that remains on the smallest possible route structure for PTC.

The freight railroads do not pretend that FRA is wrong in perceiving that the freight railroads wish to remove PIH traffic from the network. That is wise, since the public record is replete with pleas from the Class I railroads to remove their common carrier obligation to transport PIH traffic. Rather, they contend, in effect, that FRA should not trouble itself with this issue, since the Congress and the Surface Transportation Safety Board (STB) will ensure that PIH shippers receive fair treatment, and the Pipeline and Hazardous Materials Safety Administration (PHMSA) Rail Route Analysis Rule will determine whether the traffic goes on the safest and most secure routes.

There are significant problems with this contention. First, while the Congress shows no interest in relieving the carriers of duty to transport PIH commodities, and STB has likewise brushed back a recent attempt by a Class I railroad to avoid this duty (

see

Surface Transportation Board Decision, Union Pacific Railroad Company—Petition for Declaratory Order, STB Finance Docket No. 35219 (June 11, 2009)), it is by no means yet determined how the cost burden associated with PTC will be borne. A railroad seeking to make the most favorable case for burdening a PIH shipper with the cost of PTC installation would first clear a line of overhead traffic through rerouting and then seek to surcharge the remaining shipper(s) for the incremental cost of installing the system. Under those circumstances, would the STB decide that the railroad should transfer all of those costs to other shippers, or would the STB uphold the surcharge in whole or in part, thereby potentially making the cost of transportation unsupportable?

The carriers would have us rely on the PHMSA Rail Route Analysis Rule in determining whether the PIH criterion requires installation of PTC on a particular line. The Class I railroads' comments state that “FRA is not even the DOT agency with substantive responsibility for how railroads route TIH.” This is an odd point, considering that: (1) The statutory authority for both this rulemaking and the Rail Route Analysis Rulemaking are vested in the Secretary of Transportation, and FRA and PHMSA have a long and well established history of working together for the safe transportation of hazardous materials; (2) as reflected in the rulemaking documents, FRA initiated the Rail Routing action in concert with PHMSA and participated in developing the proposed rule well before the Congress mandated that the rulemaking be concluded; (3) the final rule affirms that PHMSA issued the revision in coordination with FRA and TSA; (4) by delegation from the Secretary, FRA is the agency responsible for administering and enforcing the Rail Route Analysis Rule and has issued a final rule (73 FR 72,194 (Nov. 26, 2008)) detailing the procedures railroads must follow when challenging FRA enforcement decisions; and (5) FRA and has worked with TSA to provide funding and oversight for development of the risk model intended for use under the rule.

As it happens, FRA has good reason to be concerned with rail routing of PIH commodities (as well as explosives and high level radioactive waste, which are also covered by the PHMSA rule), both on the merits of the routing decisions (as the agency responsible for administering the rule) and in relation to the incidental impacts of re-routing decisions on the network of lines that will be equipped with PTC technology. Because the Rail Route Analysis Rule addresses both security and safety risks, operations under that rule necessarily lack the transparency typically afforded to safety risks.

Significant re-routing has already occurred since 2008 as a result of the TSA Rail Transportation Security Rule (73 FR 72,130 (Nov. 26, 2008)). In its comments, CSXT states that the TSA rule “required railroads to modify their routing operations to ensure that only attended interchanges are used for transporting TIH.” The resulting changes are said to be “dramatic.” Comment of CSX Transportation, Inc., Docket FRA-2008-0132-0028.1, at 12 (Aug. 24, 2009). However, the TSA regulation requires a secure chain of custody, not re-routing; and so any re-routing resulting from the TSA regulation presumably resulted not from the direct command of the rule itself but from the desire to hold down costs by focusing the handoffs of these commodities where personnel are already employed to oversee the transfers. This is perfectly sensible, of course, to the extent that the re-routing did not create greater safety or security concerns. However, since railroads have contended for years that their current routings were already optimized for safety, investigation is warranted.

The Rail Route Analysis Rule is only now being put into effect. Most railroads will not complete their initial analysis until the first quarter of 2009, using 12 months of 2008 data (per their request in the subject rulemaking). While the rule requires railroads to consider the use of interchange agreements when considering alternative routes, FRA has not had the opportunity to verify that this has actually occurred with the two railroads opting to comply with the September 2009 due date for use of only six months of data.

The risk model intended to provide the foundation for the rail routing process is still subject to considerable refinement. No methodology is currently specified for evaluating the potential impact of a PTC system (which would vary in risk reduction depending upon the underlying or previous method of operation). Under these circumstances, there is a distinct possibility the railroads may not give sufficient weight to train control (existing or planned).

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Railroads are not required to submit their route analysis and route selections to FRA for approval. While FRA intends to aggressively oversee railroads' route analysis and route selections during FRA's normal review process, including their consideration of PTC, and require rerouting when justified, this process will be resource-intensive and time-consuming to complete. So FRA sees no reason necessarily to defer in this context to decision making made under the Rail Route Analysis Rule, even as to the role of PTC in safeguarding the transportation of traffic within its ambit (PIH, certain explosives, and spent nuclear fuel). Instead, those decisions are simply useful information under this rule. In April of 2010 when railroads must complete their PTCIP's, a railroad may know its own routing decisions under the Rail Route Analysis Rule, but not FRA's evaluation of those decisions. Furthermore, the Rail Route Analysis Rule analysis does not consider the safety risk posed by the rail movement of hazardous materials it does not cover—but, as noted above, this is a legitimate concern when deciding where to put PTC.

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At least one Class I railroad consolidated some of its PIH traffic on signalized lines prior to adoption of the Rail Route Analysis Rule. This reflects a recognition that method of operations matters, but that is not the same thing as having completed a fully mature routing analysis against the 27 factors—something that will occur only over time in the face of great complexity.

The Rail Route Analysis Rule considers both safety and security, and PHMSA and FRA have worked with TSA to ensure that the inherently

speculative risk of a security incident does not overwhelm known safety risks in the decision making. At the same time, the structure is very responsive to known threats and special circumstances. However, FRA is aware of at least one railroad that has balanced its evaluation of safety and security risks under the rule affording equal weight to each across the board. FRA will be working with that railroad to determine the basis for this action and may later require the railroad to revise its analysis and possibly reroute traffic.

See

Railroad Safety Enforcement Procedures; Enforcement, Appeal and Hearing Procedures for Rail Routing Decisions, 73 FR 72,194 (Nov. 26, 2008).

Since any given railroad may have thousands of origin-destination pairs for its PIH traffic, and since railroads are just at the threshold of cooperation to evaluate interline re-routing options, this new program will settle out over a period of several years during which lessons are learned. As custodian of this program, FRA is best situated to conclude that using the products of initial analysis within a framework that confers significant discretion to utilize judgment should not control where PTC is built—particularly given the strong incentives that carriers perceive to reduce the wayside mileage equipped with PTC and the fact that installation of PTC might overwhelm other considerations with respect to PIH routing.

In the proposed rule, FRA said that changes from the 2008 base could be granted if “consistent with safety.” Even though this is a familiar phrase drawn from FRA's basic safety statute, concern was expressed regarding how this term might be applied. The final rule further defines that standard by adding a rule for FRA decision making, i.e., if the remaining safety risk on the line exceeds the average safety risk per route mile on lines carrying PIH traffic, as determined in accordance with Appendix B to 49 CFR part 236, FRA denies the request. The provision leaves open the possibility of granting the request if the railroad making application offers a compensating further build out on another line where the resources would be better spent because they would enhance safety to a greater degree. FRA has available to it adequate data to construct a simple risk model for use in this context and expects to do so when reviewing such requests. This provision treats similarly risky rail lines similarly in carrying out the perceived congressional intent for PTC to be installed on the portion of the rail system Congress described, and it is an appropriate exercise of FRA's statutory discretion because it is rationally related to the red

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