# 79 FR 53356: Securement of Unattended Equipment

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2014-21253

## Section

- **Citation:** 79 FR 53356
- **Heading:** Securement of Unattended Equipment
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 79 / 79 FR 53356

## Text

DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 232 [Docket No. FRA-2014-0032, Notice No. 1] RIN 2130-AC47 Securement of Unattended Equipment AGENCY:
Federal Railroad Administration (FRA), Department of Transportation (DOT).

ACTION:
Notice of proposed rulemaking.

SUMMARY:
FRA proposes amendments to the brake system safety standards for freight and other non-passenger trains and equipment to strengthen the requirements relating to the securement of unattended equipment. Specifically, FRA would codify many of the requirements already included in its Emergency Order 28, Establishing Additional Requirements for Attendance and Securement of Certain Freight Trains and Vehicles on Mainline Track or Mainline Siding Outside of a Yard or Terminal. FRA proposes to amend existing regulations to include additional securement requirements for unattended equipment, primarily for trains transporting poisonous by inhalation hazardous materials or large volumes of Division 2.1 (flammable gases), Class 3 (flammable or combustible liquids, including crude oil and ethanol), and Class 1.1 or 1.2 (explosives) hazardous materials. For these trains, FRA also proposes additional communication requirements relating to job briefings and securement verification. Finally, FRA proposes to require all locomotives left unattended outside of a yard to be equipped with an operative exterior locking mechanism. Attendance on trains would be required on equipment not capable of being secured in accordance with the proposed and existing requirements.

DATES:
so proposes additional communication requirements relating to job briefings and securement verification. Finally, FRA proposes to require all locomotives left unattended outside of a yard to be equipped with an operative exterior locking mechanism. Attendance on trains would be required on equipment not capable of being secured in accordance with the proposed and existing requirements.

DATES:
(1) Written comments must be received by November 10, 2014. Comments received after that date will be considered to the extent possible without incurring additional expenses or delays. (2) FRA anticipates being able to resolve this rulemaking without a public hearing. However, if prior to October 9, 2014, FRA receives a specific request for a public hearing, a hearing will be scheduled and FRA will publish a supplemental document in the Federal Register to inform interested parties of the date, time, and location of such hearing.

ADDRESSES:
Comments: Comments related to this proceeding may be submitted by any of the following methods:
• Web site: Comments should be filed at the Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting comments.
• Fax: 202-493-2251.
• Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590.
• Hand Delivery: Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information. Please see the Privacy Act heading in the “Supplementary Information” section of this document for Privacy Act information related to any submitted comments or materials
clude the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information. Please see the Privacy Act heading in the “Supplementary Information” section of this document for Privacy Act information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to Room W12-140 on the Ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays.
FOR FURTHER INFORMATION CONTACT:
Steven Zuiderveen, Railroad Safety Specialist, Motive & Power Equipment Division, Office of Safety Assurance and Compliance, Federal Railroad Administration, RRS-14, West Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-6337); Jason Schlosberg, Trial Attorney, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-207, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-6032).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information
I. Executive Summary II. Background A. Lac-Mégantic Derailment 1. Facts 2. Response B. Safety Concerns Arising Out of the Lac-Mégantic Derailment and Other Train Incidents Involving Flammable Liquids and Gases and Poison Inhalation Hazard Materials. C. Current Securement Regulations and Related Guidance D. Emergency Order 28 and Related Guidance E. RSAC Overview III. Section-by-Section Analysis IV. Regulatory Impact and Notices A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism E. International Trade Impact Assessment F. Environmental Assessment G. Unfunded Mandates Reform Act of 1995 H. Energy Impact I
ted Guidance E. RSAC Overview III. Section-by-Section Analysis IV. Regulatory Impact and Notices A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Federalism E. International Trade Impact Assessment F. Environmental Assessment G. Unfunded Mandates Reform Act of 1995 H. Energy Impact I. Privacy Act I. Executive Summary
Purpose of the Proposed Regulatory Action
While FRA's existing securement regulations have been successful in mitigating risks associated with the rolling of unattended equipment, FRA recognizes that—particularly in light of certain accidents like the one last year in Lac-Mégantic, Quebec, Canada—additional requirements may be warranted when such equipment includes certain hazardous materials that can contribute to high-consequence events. To address these concerns, FRA issued Emergency Order 28, 78 FR 48218 (Aug. 7, 2013), engaged in proceedings with the Railroad Safety Advisory Committee to draft recommended regulations, and is issuing this responsive notice of proposed rulemaking (NPRM). FRA is proposing this rulemaking pursuant to the authority granted to the Secretary of Transportation in 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-20303, 20306, 21301-20302, 21304; 28 U.S.C. 2461, note; which the Secretary has delegated to the Administrator of FRA pursuant to 49 CFR 1.89.
Summary of the Major Provisions of the Proposed Regulatory Action
In this proceeding, FRA proposes requirements to ensure that each locomotive left unattended outside of a yard be equipped with an operative exterior locking mechanism and that such locks be applied on the controlling locomotive cab door when a train is transporting tank cars loaded with certain hazardous materials
49 CFR 1.89.
Summary of the Major Provisions of the Proposed Regulatory Action
In this proceeding, FRA proposes requirements to ensure that each locomotive left unattended outside of a yard be equipped with an operative exterior locking mechanism and that such locks be applied on the controlling locomotive cab door when a train is transporting tank cars loaded with certain hazardous materials. This proposed rule would provide that such hazardous materials trains may only be left unattended on a main track or siding if justified in a plan adopted by the railroad, accompanied by an appropriate job briefing, and proper securement is made and verified. This proposed rule would also require additional verification of securement in the event that a non-railroad emergency responder may have been in a position to have affected the equipment.
Costs and Benefits of the Proposed Regulatory Action
In this rule, the benefits ($1,163,669 at a 7% discount, $1,579,240 at a 3% discount) outweigh the costs ($86,685 at a 7% discount, $99,909 at a 3% discount), with total net benefits over 20 years of $1,076,984 at a 7% discount (or $95,009 annualized) and $1,478,331 at a 3% discount (or $96,538 annualized).
Discounted values Discounted value Discount factor 7% 3% Costs: Attending Trains $36,685 $49,909 Installing Locks 50,000 50,000 Total Costs 86,685 99,909 Benefits: Reduced Vandalism 180,873 250,666 Reduced Recordkeeping 982,786 1,328,573 Total Benefits $1,163,669 $1,579,240 Discounted values net benefits Discounted value Discount factor 7% 3% Total $1,076,984 $1,479,331 Annualized 95,009 96,538 II. Background
In 2001, FRA issued regulations governing the securement of unattended equipment. 66 FR 4104 (Jan. 17, 2001). These regulations have been effective in protecting against the risk of rolling equipment
eping 982,786 1,328,573 Total Benefits $1,163,669 $1,579,240 Discounted values net benefits Discounted value Discount factor 7% 3% Total $1,076,984 $1,479,331 Annualized 95,009 96,538 II. Background
In 2001, FRA issued regulations governing the securement of unattended equipment. 66 FR 4104 (Jan. 17, 2001). These regulations have been effective in protecting against the risk of rolling equipment. Over the last few years, there has been a significant increase in the volume of rail traffic for certain types of commodities, such as petroleum crude oil (crude oil) and ethanol, both of which are highly flammable and often transported in large unit or “key” trains, as defined in the industry by the Association of American Railroads (AAR). See AAR Circular No. OT-55-N (Aug. 5, 2013), available at http://www.boe.aar.com/CPC-1258%20OT-55-N%208-5-13.pdf.
Since 2009, there have been a number of serious rail accidents involving the transportation of large quantities of flammable liquids. A number of these accidents involved trains transporting large quantities of ethanol. However, since 2011, there has been significant growth in the rail transport of flammable crude oil, and FRA has seen a number of accident-related releases of crude oil in that time. One significant accident involving tank cars loaded with crude oil was July 6, 2013, derailment in the town of Lac-Mégantic, Quebec, Canada. After reviewing the facts related to this derailment, FRA concluded that additional action was necessary to eliminate an immediate hazard of death, personal injury, or significant harm to the environment, particularly in instances where certain hazardous materials are involved. Thus about a year ago FRA issued Emergency Order 28 requiring railroads to implement additional procedures to ensure the proper securement of equipment containing certain types and amounts of hazardous materials when left unattended. Subsequent to the
A. Lac-Mégantic Derailment
1
, or significant harm to the environment, particularly in instances where certain hazardous materials are involved. Thus about a year ago FRA issued Emergency Order 28 requiring railroads to implement additional procedures to ensure the proper securement of equipment containing certain types and amounts of hazardous materials when left unattended. Subsequent to the
A. Lac-Mégantic Derailment
1. Facts
On July 6, 2013, in the town of Lac-Mégantic, Quebec, Canada, an accident involving tank cars loaded with petroleum crude oil occurred on track owned by Montreal, Maine & Atlantic Railway Corporation (MMA), a company incorporated in the United States.
According to a report issued by the Transportation Safety Board (TSB) of Canada, the incident is summarized as follows. 1 On July 5, 2013, a locomotive engineer was operating freight train MMA-002 on the Sherbrooke Subdivision from Farnham (milepost 125.60) and at around 10:50 p.m. stopped near Nantes, Quebec (milepost 7.40) on its way to its destination, Brownville Junction, Maine. The train was approximately 4,700 feet long, weighed over 10,000 tons, and included a locomotive consist of 5 head-end locomotives and one VB car, 1 box car (buffer car), and 72 tank cars loaded with approximately 7.7 million liters of petroleum crude oil (UN 1267). The locomotive engineer parked train MMA-002 on the main line, on a descending grade of 1.2%, attempted to secure the train, and departed, leaving the train unattended. At around 11:40 p.m., a local resident reported a fire on the train. The local fire department was called and responded with another MMA employee. At approximately midnight, the controlling locomotive was shut down and the fire extinguished. After the fire was extinguished, the fire department and the MMA employee left the site.
1 Railway Investigative Report R13D0054, TSB, July 6, 2013, available at http://www.tsb.gc.ca/eng/rapports-reports/rail/2013/R13D0054/R13D0054.pdf.
At approximately 1:00 a.m
vacuated from the surrounding area.
2 See id.; see also Statistical Summary Railway Occurrences 2013, TSB, pp. 2, 5, available at http://www.tsb.gc.ca/eng/stats/rail/2013/ssro-2013.pdf.
2. Response
In response to this accident, Transport Canada—the Canadian government department responsible for regulating transportation safety in Canada—issued an emergency railroad directive on July 23, 2013. 3 While Transport Canada explained in the emergency directive that the cause of the accident in Lac-Mégantic remained unknown, the emergency directive stated that, “in light of the catastrophic results of the Lac-Mégantic accident and in the interest of ensuring the continued safety and security of railway transportation, there is an immediate need to clarify the regime respecting unattended locomotives on main track and sidings and the transportation of dangerous goods in tank cars using a one person crew to address any threat to the safety and security of railway operations.” As such, Transport Canada exercised its statutory emergency directive authority to order railroad companies in Canada to comply with certain requirements related to unauthorized entry into locomotive cabs, directional controls on locomotives, the application of hand brakes to cars left unattended for more than one hour, setting of the automatic brake and independent brake on any locomotive attached to cars that is left unattended for one hour or less, attendance related to locomotives attached to loaded tank cars transporting dangerous goods on main track, and the number of crew members assigned to a locomotive attached to loaded tank cars transporting dangerous goods on a main track or siding
more than one hour, setting of the automatic brake and independent brake on any locomotive attached to cars that is left unattended for one hour or less, attendance related to locomotives attached to loaded tank cars transporting dangerous goods on main track, and the number of crew members assigned to a locomotive attached to loaded tank cars transporting dangerous goods on a main track or siding.
3 See Emergency Directive Pursuant to Section 33 of the Railway Safety Act, Safety and Security of Locomotives in Canada, July 23, 2013, available at http://news.gc.ca/web/article-en.do?nid=829609; see also Rail Safety Advisor Letter—09/13, Securement of Equipment and Trains Left Unattended, Transport Canada (July 18, 2013), available at http://www.tsb.gc.ca/eng/medias-media/sur-safe/letter/rail/2013/r13d0054/r13d0054-617-09-13.asp.
Also on July 23, 2013, Transport Canada issued an accompanying order pursuant to paragraph 19(a)(1) of the Canadian Railway Safety Act directing railroad companies in Canada to formulate or revise certain railroad operating rules, respecting the safety and security of unattended locomotives, uncontrolled movements, and crew size requirements. 4 The order provides that rules should be based on an assessment of safety and security risks, and shall at a minimum ensure that the cab(s) of unattended controlling locomotives are secure against unauthorized entry; ensure that the reverse levers (commonly referred to as a “reversers”) of unattended locomotives are removed and secured; prevent uncontrolled movements of railway equipment by addressing the application of hand brakes; ensure the security of stationary railway equipment transporting dangerous goods; and provide for minimum operating crew requirements considering technology, length of train, speeds, classification of dangerous goods being transported, and other risk factors
tended locomotives are removed and secured; prevent uncontrolled movements of railway equipment by addressing the application of hand brakes; ensure the security of stationary railway equipment transporting dangerous goods; and provide for minimum operating crew requirements considering technology, length of train, speeds, classification of dangerous goods being transported, and other risk factors.
4 Railroads operating within Canada were at the time of the Lac-Mégantic derailment, and are currently, required to comply with the Canadian Rail Operating Rules (CROR) that have been approved by Transport Canada.
The Railway Association of Canada submitted proposed operating rules to Transport Canada on November 20, 2013. Transport Canada accepted the proposed rules submitted on December 26, 2013, making the operating rules applicable to all railway companies operating in Canada. See TC O 0-167. As a result, railroads operating in Canada are now required to comply with Canadian Rail Operating Rules (CROR) CROR 112, as amended.
CROR 62 pertains to “Unattended engines.” The term “unattended” is now defined in the CROR as “when an employee is not in close enough proximity to take effective action.” The new Canadian requirements, applicable to each engine left unattended outside of an attended yard or terminal, requires cab securement to prevent unauthorized entry and removal of the reverser from the engine when it does not have a high idle feature and not in sub-zero temperatures. See CROR 62 (TC O 0-167). Transport Canada also approved expansive revisions to CROR 112, which now provides minimum requirements, acceptable methods, and factors to consider for securing equipment while switching en route or left unattended. See CROR 112 (TC O 0-167).
In direct response to the Lac-Mégantic derailment, DOT began taking actions consistent with Transport Canada to ensure the safe transportation of products by rail in the United States, with a particular focus on certain hazardous materials that present an
s, acceptable methods, and factors to consider for securing equipment while switching en route or left unattended. See CROR 112 (TC O 0-167).
In direct response to the Lac-Mégantic derailment, DOT began taking actions consistent with Transport Canada to ensure the safe transportation of products by rail in the United States, with a particular focus on certain hazardous materials that present an
(1) A railroad must not leave equipment unattended on a mainline outside of a yard or terminal when the equipment includes a minimum number of loaded tank cars containing certain types of hazardous materials, referred to as “Appendix A Materials” —5 or more tank cars containing materials poisonous by inhalation (PIH), including anhydrous ammonia and ammonia solutions and/or 20 rail car loads of flammable gases or liquids (e.g., crude oil and ethanol)—until the railroad develops, adopts, and complies with a plan that identifies specific locations and circumstances when such equipment may be left unattended. 5
5 AAR has voluntarily applied EO 28 to trains that have a single PIH tank car.
(2) A railroad must develop a process for securing unattended equipment containing Appendix A Materials that includes: (a) locking the controlling locomotive cab or removing and securing the reverser and (b) communication of pertinent securement information to the dispatcher for recordation.
(3) Each railroad must review and verify, and adjust, as necessary, existing procedures and processes related to the number of hand brakes to be set on all unattended trains and equipment.
(4) Each railroad must require a job briefing addressing securement for any job that will impact or require the securement of any equipment in the course in the course of the work being performed.
(5) Each railroad must ensure that a qualified railroad employee inspects all equipment that any emergency responder has been on, under, or between for proper securement before the train or vehicle is left unattended.
must require a job briefing addressing securement for any job that will impact or require the securement of any equipment in the course in the course of the work being performed.
(5) Each railroad must ensure that a qualified railroad employee inspects all equipment that any emergency responder has been on, under, or between for proper securement before the train or vehicle is left unattended.
(6) Each railroad must provide notice to all employees affected by Emergency Order 28.
See 78 FR 48224 (Aug. 7, 2013). Following a request from AAR and ASLRRA, FRA granted partial relief from Emergency Order 28's dispatcher communication requirement in certain limited situations. FRA's relief letter provides that a railroad employee may leave equipment unattended on a mainline or siding without contacting the train dispatcher when the employee is actively engaged in switching duties as long as the employee ensures that there is an emergency application of the air brakes, hand brakes are set in accordance with 49 CFR 232.103(n), and the employee has demonstrated knowledge of FRA and railroad securement requirements. See Letter from Robert C. Lauby, Acting Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, to Michael J. Rush, Associate General Counsel, AAR, and Keith T. Borman, Vice President and General Counsel, ASLRRA, (Aug. 27, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php. Additionally, FRA and the Pipeline and Hazardous Materials Safety Administration (PHMSA) jointly issued a Safety Advisory to railroads and commodity shippers detailing eight recommended actions the industry should take to better ensure the safe transport of hazardous materials. See Federal Railroad Administration Safety Advisory 2013-06, Lac-Mégantic Railroad Accident and DOT Safety Recommendations, 78 FR 48224 (Aug. 7, 2013), available at http://www.fra.dot.gov/eLib/details/L04720
A) jointly issued a Safety Advisory to railroads and commodity shippers detailing eight recommended actions the industry should take to better ensure the safe transport of hazardous materials. See Federal Railroad Administration Safety Advisory 2013-06, Lac-Mégantic Railroad Accident and DOT Safety Recommendations, 78 FR 48224 (Aug. 7, 2013), available at http://www.fra.dot.gov/eLib/details/L04720. These recommendations include: Reviewing the details and lessons learned from the Lac Mégantic accident; reviewing crew staffing levels; removing and securing the train's “reverser” when unattended; review of all railroad operating procedures, testing and operating rules related to securing a train; reviewing Transport Canada's directives to secure and safely operate a train; and conducting a system-wide assessment of security risks when a train is unattended and identify mitigation efforts for those risks. Additionally, the Safety Advisory recommends testing and sampling of crude oil for proper classification for shipment, as well as a review of all shippers' safety and security plans. FRA also convened an emergency meeting of FRA's RSAC to begin the deliberative process with FRA's stakeholders, including railroad management, railroad labor, shippers, car owners, and others, as the agency considers requirements in Emergency Order 28 and recommendations in the Safety Advisory that should be made a part of its regulations. 6
6 The RSAC was given three tasks. In addition to developing securement recommendations, it was also tasked with developing recommendations addressing issues relating to train crew size and hazardous materials such as identification and classification of hazardous materials, operational controls, and handling of certain hazardous materials shipments
hat should be made a part of its regulations. 6
6 The RSAC was given three tasks. In addition to developing securement recommendations, it was also tasked with developing recommendations addressing issues relating to train crew size and hazardous materials such as identification and classification of hazardous materials, operational controls, and handling of certain hazardous materials shipments. The RSAC hazardous materials working group was able to reach consensus on amending the definitions of “residue” and “key train” and clarifying the jurisdiction concerning loading, unloading, and storage of hazardous materials before and during transportation. These recommendations have been provided to PHMSA, which has regulatory authority over hazardous materials shipments.
On August 19, 2014, the TSB released its Railway Investigation Report R13D0054, citing 18 causal and contributing factors, plus an additional 16 findings as to risk, concerning the accident at Lac-Mégantic. FRA believes that DOT has taken, or is already taking, action concerning each of those factors. The TSB notably included in its list of factors the MMA's weak safety culture and ineffective oversight on train securement. The report also identified factors relating directly to train securement such as insufficient hand brakes and improper hand brake test applications. This instant rulemaking proposes requirements that would enhance safety culture and oversight and that would address train securement. For instance, as further discussed below, FRA proposes to mandate by regulation the implementation of operating rules and practices requiring that securement be part of all relevant job briefings. FRA also proposes rules requiring verification with a qualified person that equipment is adequately and effectively secured in accordance with the regulations before being left unattended. These requirements aim to increase the safety dialog between railroad employees and to provide enhanced oversight within the organization
ractices requiring that securement be part of all relevant job briefings. FRA also proposes rules requiring verification with a qualified person that equipment is adequately and effectively secured in accordance with the regulations before being left unattended. These requirements aim to increase the safety dialog between railroad employees and to provide enhanced oversight within the organization. In doing so, these communications should better ensure that crew members apply the proper number of hand brakes, and more correctly apply hand brake tests, on unattended equipment. Also notable was the report's findings as to risk that states: “If trains are left unattended in easily accessible locations, with locomotive cab doors unlocked and the reverser handle available in the cab, the risk of unauthorized access, vandalism, and tampering with locomotive controls is increased.” This proposed rule directly addresses this concern with requirements relating to the installation and use of locomotive door locks and reverser removal.
B. Safety Concerns Arising Out of the Lac-Mégantic Derailment and Other Train Incidents Involving Flammable Liquids and Gases and Poison Inhalation Hazard Materials
The vast majority of hazardous materials shipped by rail each year arrive at their destinations safely and without incident. Indeed, in calendar year 2013, there were only 18 accidents in which a hazardous material was released (involving a total of 78 cars) out of approximately 1.6 million shipments of hazardous material transported in rail tank cars in the United States. However, the Lac-Mégantic incident demonstrates the substantial potential for danger that exists when an unattended train rolls away and derails resulting in the sudden release of hazardous materials into the environment. Although the Lac-Mégantic incident occurred in Canada, the freight railroad operating environment in Canada is similar to that in the United States, and a number of railroads operate in both countries
tic incident demonstrates the substantial potential for danger that exists when an unattended train rolls away and derails resulting in the sudden release of hazardous materials into the environment. Although the Lac-Mégantic incident occurred in Canada, the freight railroad operating environment in Canada is similar to that in the United States, and a number of railroads operate in both countries. 7 Freight railroads in the United States also transport a substantial amount and variety of hazardous materials, including materials poisonous by inhalation (PIH materials), also known as materials toxic by inhalation (TIH), and explosive materials. Moreover, an increasing proportion of the hazardous materials transported by rail is classified as flammable. 8
7 As an example, MMA formerly operated in both the United States and Canada, with approximately 510 miles of track in Maine, Vermont, and Quebec, and the tank cars transporting the crude oil that derailed in Lac-Mégantic originated in the Williston Basin of North Dakota. A discussion concerning the applicable Canadian securement requirements can be found above in the section titled “2. Response,” which addresses the actions taken by the United States and Canada in direct response to the Lac-Mégantic incident.
8 PHMSA prescribes a comprehensive regulatory safety system that categorizes hazardous materials into nine hazard classes based on the type of hazards presented by the materials. See 49 CFR parts 172 and 173. Under PHMSA's regulations, crude oil, in most forms, meets the definition of a “Class 3” hazardous material, which signifies that it is a flammable liquid. Ethanol, discussed below, also is a Class 3 hazardous material. PIH materials, referenced above, include “Class 2 and Division 2.3” gases and “Class 6, and Division 6.1” poisons other than gases. Chlorine gas and anhydrous ammonia are two examples of PIH materials (Division 2.3) that are commonly transported by rail
of a “Class 3” hazardous material, which signifies that it is a flammable liquid. Ethanol, discussed below, also is a Class 3 hazardous material. PIH materials, referenced above, include “Class 2 and Division 2.3” gases and “Class 6, and Division 6.1” poisons other than gases. Chlorine gas and anhydrous ammonia are two examples of PIH materials (Division 2.3) that are commonly transported by rail.
The MMA train in the Lac-Mégantic incident was transporting 72 carloads of crude oil with five locomotives and a loaded box car. A similar type of train consist is commonly found on rail lines in the United States, because crude oil is often transported in solid blocks or by a unit train consisting entirely of tank cars containing crude oil. Crude oil is often classified by an offeror as a flammable liquid; per PHMSA's Hazardous Materials Regulations (HMRs), however, its packing group can be I, II, or III depending on the blend of constituent crude oils. According to the AAR, crude oil traffic increased 68-fold in the United States between 2005 and 2013. Much of this growth has occurred because of developments in North Dakota, as the Bakken formation in the Williston Basin has become a major source for oil production in the United States. Texas also has contributed to the growth of crude oil shipments by rail. As a result, carloads of crude oil increased from approximately 81,452 in 2011 to approximately 485,384 in 2013. The Bakken crude oil from North Dakota is primarily shipped via rail to refineries located near the U.S. Gulf Coast—particularly in Texas and Louisiana—or also to pipeline connections, most notably to connections located in Oklahoma. Crude oil is also shipped via rail to refineries on the East Coast and West Coast, and to a lesser extent, refineries in other regions of the U.S. 9
9 See AAR's May 2013 paper “Moving Crude Oil by Rail”, available online at: https://www.aar.org/safety/Documents/Assets/Transportation_of_Crude_Oil_by_Rail.pdf.
All indications from the U.S. Department of Energy's U.S
nections located in Oklahoma. Crude oil is also shipped via rail to refineries on the East Coast and West Coast, and to a lesser extent, refineries in other regions of the U.S. 9
9 See AAR's May 2013 paper “Moving Crude Oil by Rail”, available online at: https://www.aar.org/safety/Documents/Assets/Transportation_of_Crude_Oil_by_Rail.pdf.
All indications from the U.S. Department of Energy's U.S. Energy Information Administration (EIA) are that rail capacity for Bakken crude oil from the Williston Basin will continue to expand to meet production. 10 Rail shipments from the North Dakota region are forecast to increase over the next two years (as are pipeline shipments). Much of the near-term growth in rail originations is a function of how quickly rail car manufacturers can meet the demand by producing new tank cars, primarily for transporting Bakken crude oil. The rise in rail originations in crude oil is subject to changes in the number of tank cars available, price of crude oil, overall production of crude oil in that region; and if, or how quickly, additional pipeline capacity from that region comes online. However, for the foreseeable future, all indications are for continued growth of rail originations of crude in that region as new tank car fleets come online to meet demand.
10 See EIA reports “Bakken crude oil price differential to WTI narrows over last 14 months,” available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=10431; and “Rail delivery of U.S. oil and petroleum products continues to increase, but pace slows,” available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=12031.
As demonstrated by the Lac-Mégantic derailment, in a high-consequence incident, crude oil is problematic when released because it is flammable. This risk is compounded because it is commonly shipped in large unit trains
id=10431; and “Rail delivery of U.S. oil and petroleum products continues to increase, but pace slows,” available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=12031.
As demonstrated by the Lac-Mégantic derailment, in a high-consequence incident, crude oil is problematic when released because it is flammable. This risk is compounded because it is commonly shipped in large unit trains. Subsequent to the Lac-Mégantic derailment, the United States has seen at least three major rail-related incidents involving crude oil unit trains that evidence the dangerous results that can occur when crude oil is not transported safely. FRA recognizes that none of these three derailments resulted from a roll-away situation that would have been addressed by this rule.
On April 30, 2014, there was derailment near downtown Lynchburg, Virginia, of an eastbound CSX Transportation, Inc. (CSX) unit train consisting of 105 tank cars loaded with crude oil. Seventeen of the train's cars derailed. One of the tank cars was breached, leading to a crude oil fire. Emergency responders were forced to evacuate approximately 350 individuals from the immediate area. Additionally, three of the derailed tank cars came to rest in the adjacent James River, causing up to 30,000 gallons of crude oil to be spilled into the river. The National Transportation Safety Board (NTSB) and DOT are both investigating this accident to determine the cause.
On December 30, 2013, a westbound grain train derailed 13 cars near Casselton, North Dakota, fouling main track 2. 11 Simultaneously, an eastbound crude oil unit train was operating on main track 2. The crude oil unit train reduced its speed and collided with a derailed car that was fouling, resulting in the derailment of the head-end locomotives and the first 21 cars of the crude oil unit train. Eighteen of the 21 derailed tank cars ruptured, releasing an estimated 400,000 gallons of crude. The ruptured tank cars ignited causing an explosion
rude oil unit train was operating on main track 2. The crude oil unit train reduced its speed and collided with a derailed car that was fouling, resulting in the derailment of the head-end locomotives and the first 21 cars of the crude oil unit train. Eighteen of the 21 derailed tank cars ruptured, releasing an estimated 400,000 gallons of crude. The ruptured tank cars ignited causing an explosion. There were no reported injuries by either train crew, nor were there any injuries to the public; however, about 1,400 people were evacuated. Damages from the derailment are estimated at $6.1 million. 12
11 This derailment currently is being investigated by the National Transportation Safety Board (NTSB), and information regarding this incident can be found at the NTSB Web site. See http://www.ntsb.gov/doclib/reports/2014/Casselton_ND_Preliminary.pdf.
12 See id.
Also, on November 8, 2013, a 90-car crude oil train derailed in a rural area near Aliceville, Alabama. The crude oil shipment had originated in North Dakota and was bound for Walnut Hill, Florida, to be transported by a regional pipeline to a refinery in Saraland, Alabama. More than 20 cars derailed, and at least 11 cars ignited, resulting in an explosion and fire. Although there were no reported injuries, an undetermined amount of crude oil escaped from derailed cars and fouled a wetlands area near the derailment site.
The dangers related to crude oil trains are not necessarily unique. They also exist with other hazardous materials such as ethanol, which is another flammable liquid that is commonly transported in large quantities by rail. In 2012, more carloads of ethanol were transported via rail than any other hazardous material. The railroads experienced an increase in ethanol traffic of 442 percent between 2005 and 2010. Although in 2013 the number of carloads dropped by 10 percent from 2010 levels, there were still approximately 297,000 carloads transported by rail
quid that is commonly transported in large quantities by rail. In 2012, more carloads of ethanol were transported via rail than any other hazardous material. The railroads experienced an increase in ethanol traffic of 442 percent between 2005 and 2010. Although in 2013 the number of carloads dropped by 10 percent from 2010 levels, there were still approximately 297,000 carloads transported by rail. Since 2009, there have been at least four major mainline derailments resulting in the breach of tank cars containing ethanol. While FRA recognizes that none of these four derailments resulted from a roll-away situation, they are instructive on the destructive potential of a derailment involving tank cars containing flammable products:
• On August 5, 2012, in Plevna, Montana, a BNSF Railway Co. train derailed 18 cars while en route from Baker, Montana. Seventeen of the 18 cars were tank cars loaded with denatured alcohol, a form of ethanol. Five of the cars caught on fire resulting in explosions, the burning of surrounding property not within the railroad's right-of-way, and the evacuation of the immediate area.
• On July 11, 2012, in Columbus, OH, a Norfolk Southern Railway Co. train derailed while operating on main track. Thirteen tank cars containing ethanol derailed resulting in a fire and the evacuation of 100 people within a one-mile radius of the derailment.
• On February 6, 2011, in Arcadia, Ohio, a Norfolk Southern Railway Co. train operating on single main track derailed 33 tank cars loaded with ethanol. The derailment caused a major fire and forced the evacuation of a one-mile radius around the derailment.
• On June 19, 2009, in Cherry Valley, Illinois, a Canadian National Railway train derailed 19 tank cars loaded with ethanol. Thirteen of the 19 derailed cars caught fire, and there were reports of explosions. One person died, and there were 9 reported injuries related to the fire. Additionally, approximately 600 residences were evacuated within a 1/2 -mile radius of the derailment
he derailment.
• On June 19, 2009, in Cherry Valley, Illinois, a Canadian National Railway train derailed 19 tank cars loaded with ethanol. Thirteen of the 19 derailed cars caught fire, and there were reports of explosions. One person died, and there were 9 reported injuries related to the fire. Additionally, approximately 600 residences were evacuated within a 1/2 -mile radius of the derailment.
While these accidents were serious, their results had potential for more higher-consequence outcomes. The higher-consequence releases created the potential for additional deaths, injuries, property damage, and environmental damage. There are other hazardous materials that have similar potential for higher-consequence danger. For example, accidents involving trains transporting other hazardous materials, including PIH materials such as chlorine and anhydrous ammonia, can also result in serious consequences as evidenced by the following accidents:
• On January 6, 2005, in Graniteville, South Carolina, a Norfolk Southern Railway Co. train collided with another Norfolk Southern Railway Co. train that was parked on a customer side track, derailing both locomotives and 16 cars of the moving train. The accident was caused by a misaligned switch. Three tank cars containing chlorine derailed, one of which was punctured. The resulting chlorine exposure caused 9 deaths, approximately 554 people were taken to local hospitals, and an additional 5,400 people within a one-mile radius of the site were evacuated by law enforcement personnel. FRA's analysis of the total cost of the accident was $126 million, including fatalities, injuries, evacuation costs, property damage, environmental cleanup, and track out of service.
• On June 28, 2004, near Macdona, TX, a Union Pacific Railroad Co. train passed a stop signal and collided with a BNSF Railway Co. train. A chlorine car was punctured, and the chlorine gas that was released killed three and injured 32
he total cost of the accident was $126 million, including fatalities, injuries, evacuation costs, property damage, environmental cleanup, and track out of service.
• On June 28, 2004, near Macdona, TX, a Union Pacific Railroad Co. train passed a stop signal and collided with a BNSF Railway Co. train. A chlorine car was punctured, and the chlorine gas that was released killed three and injured 32.
• On January 18, 2002, a Canadian Pacific Railway train containing 15 tank cars of anhydrous ammonia derailed half a mile from the city limits of Minot, North Dakota due to a breaking of the rail at a joint. Five of these tank cars ruptured, which resulted in an ammonia vapor that spread 5 miles downwind over an area where 11,600 people lived. The accident caused one death, 11 serious injuries, and 322 minor injuries. Environmental cleanup costs reported to the NTSB were $8 million.
• On July 18, 2001, 11 of 60 cars in a CSX Transportation, Inc. freight train derailed while passing through the Howard Street Tunnel in downtown Baltimore, Maryland. The train included 8 tank cars loaded with hazardous material; 4 of these were among the cars that derailed. A leak in a tank car containing tripropylene resulted in a chemical fire. A break in a water main above the tunnel flooded both the tunnel and the streets above it with millions of gallons of water.
While train accidents involving hazardous materials are caused by variety of factors, nearly one-half of all accidents are related to railroad human factors or equipment defects. FRA's data shows that since 2009, human factors have been the most common cause of reportable train accidents. Based on FRA's accident reporting data for the period from 2010 through May 2014, approximately 34 percent of reported train accidents/incidents, as defined by 49 CFR 225.5, were human factor-caused
arly one-half of all accidents are related to railroad human factors or equipment defects. FRA's data shows that since 2009, human factors have been the most common cause of reportable train accidents. Based on FRA's accident reporting data for the period from 2010 through May 2014, approximately 34 percent of reported train accidents/incidents, as defined by 49 CFR 225.5, were human factor-caused. 13 With regard to the securement of unattended equipment, specifically, FRA accident/incident data indicates that approximately 8.7 percent of reported human factor-caused train accidents/incidents from calendar year 2010 until May 2014 were the result of improper securement, which means that improper securement is the cause of approximately 2.9 percent of all reported accidents/incidents. 14 The types of securement errors that typically lead to accidents/incidents include failing to apply any hand brakes at all, failing to apply a sufficient number of hand brakes, and failing to correctly apply hand brakes. Emergency Order 28 and this proposed rulemaking intend to address some of the human factors failures that may cause unattended equipment to be improperly secured to protect against a derailment situation similar to that which occurred in Lac-Mégantic.
13 FRA estimates that there were a total of approximately 8,976 accidents/incidents reported during that time period. Approximately 3,030 of those accidents/incidents were caused by human factors, and 906 involved equipment that was placarded as containing hazardous materials.
14 There were a total of approximately 264 reported accidents/incidents that were caused by securement errors. Of those 264 accidents/incidents, approximately 98 involved equipment that was placarded as containing hazardous materials.
C. Current Securement Regulations and Related Guidance
As previously noted, FRA has existing regulations designed to ensure that trains and vehicles are properly secured before being left unattended. See 49 CFR 232.103(n)
s/incidents that were caused by securement errors. Of those 264 accidents/incidents, approximately 98 involved equipment that was placarded as containing hazardous materials.
C. Current Securement Regulations and Related Guidance
As previously noted, FRA has existing regulations designed to ensure that trains and vehicles are properly secured before being left unattended. See 49 CFR 232.103(n). In FRA's view, if existing regulations are followed, the risk of movement of unattended equipment is substantially reduced. The current regulations define “unattended equipment” as “equipment left standing and unmanned in such a manner that the brake system of the equipment cannot be readily controlled by a qualified person.” Id. Section 232.103(n) generally addresses the securement of unattended equipment by stating that a train's air brakes must not be depended on to hold equipment standing unattended on a grade. More specifically, § 232.103(n) also requires that the railroad apply a sufficient number of hand brakes to hold the equipment with the air brakes released and that the brake pipe pressure be reduced to zero with the angle cock opened on one end of a cut of cars when
• All hand brakes must be fully applied on all locomotives in the lead consist of an unattended train.
• All hand brakes must be fully applied on all locomotives in an unattended locomotive consist outside of yard limits.
• The minimum requirement for an unattended locomotive consist within yard limits is that the hand brake must be fully applied on the controlling locomotive.
• Railroads must develop, adopt, and comply with procedures for securing any unattended locomotive that is not equipped with an operative hand brake.
Additionally, FRA requires each railroad to adopt and comply with instructions addressing each unattended locomotive's position of the throttle, generator field switch, isolation switch, and automatic brake valve and the status of its reverser and independent brakes. See 49 CFR 232.103(n)(4)
with procedures for securing any unattended locomotive that is not equipped with an operative hand brake.
Additionally, FRA requires each railroad to adopt and comply with instructions addressing each unattended locomotive's position of the throttle, generator field switch, isolation switch, and automatic brake valve and the status of its reverser and independent brakes. See 49 CFR 232.103(n)(4). FRA has also issued guidance documents interpreting these regulations. For instance, on March 24, 2010, FRA issued Technical Bulletin MP&E 2010-01, Enforcement Guidance Regarding Securement of Equipment with Title 49 Code of Federal Regulations Section 232.103(n) (TB 10-01), available at http://www.fra.dot.gov/eLib/details/L02394 . While FRA continues to believe that the securement requirements of § 232.103 are not met where there is a complete failure to apply even a single hand brake on unattended equipment, FRA also recognizes that there are times when it is necessary to have unsecured equipment, such as during switching activities when assembling and disassembling trains within classification yards. Therefore, TB 10-01 provides guidance regarding alternative forms of securement in such instances. As an example, TB 10-01 notes that FRA will allow a train crew cutting away from a cut of cars, to initiate an emergency brake application on the cut of cars, and then close the angle cock if the crew is taking a locomotive consist directly to the opposite end of the cut of cars to in order to couple the locomotive consist to the cars or to open the angle cock at the other end and leave the angle cock open and vented to the atmosphere, as required under 49 CFR 232.103(n)(2). Additionally, TB 10-01 makes clear that FRA will allow the use of skates and retarders in hump classification yards, classification yards with bowl tracks, or flat switching yards if the retarders and skates are used within their design criteria and as intended
o open the angle cock at the other end and leave the angle cock open and vented to the atmosphere, as required under 49 CFR 232.103(n)(2). Additionally, TB 10-01 makes clear that FRA will allow the use of skates and retarders in hump classification yards, classification yards with bowl tracks, or flat switching yards if the retarders and skates are used within their design criteria and as intended. While this proposal does not contain any specific proposed regulatory text referencing the content of TB 10-01, FRA is considering codifying TB 10-01 by amending the rule at the final rule stage of this proceeding. This would constitute a clarifying amendment to ensure that FRA's long-standing interpretation and application of the existing regulation is contained directly in the regulation. FRA seeks comments on clarifying the rule to address the provisions of TB 10-01 in the final rule.
Despite the demonstrated effectiveness of FRA's current securement regulations, FRA recognizes that due to increased shipments of hazardous materials such as crude oil and ethanol, combined with the potential for higher-consequences related to any accident that might occur due to improper securement, particularly on mainline track and mainline sidings outside of a yard or terminal, proper securement has become a serious and immediate safety concern. Therefore, FRA established additional securement measures in Emergency Order 28 in an effort to ensure the continued protection of the health and safety of railroad employees, the general public, and the environment. In this NPRM, FRA proposes establishing permanent rules that will strengthen the current regulations and ensure public safety by adopting the necessary and effective securement measures that FRA included in Emergency Order 28 as part of its immediate response to the Lac-Mégantic derailment.
Also notable is that over the past year, FRA and PHMSA have undertaken nearly two dozen actions to enhance the safe transport of crude oil
lishing permanent rules that will strengthen the current regulations and ensure public safety by adopting the necessary and effective securement measures that FRA included in Emergency Order 28 as part of its immediate response to the Lac-Mégantic derailment.
Also notable is that over the past year, FRA and PHMSA have undertaken nearly two dozen actions to enhance the safe transport of crude oil. This comprehensive approach includes near- and long-term steps such as the following: Launching “Operation Classification” in the Bakken region to verify that crude oil is properly classified; issuing safety advisories, alerts, emergency orders and regulatory updates; conducting special inspections; aggressively moving forward with a rulemaking to enhance tank car standards; and reaching agreement with railroad companies on a series of immediate voluntary actions including reducing speeds, increasing inspections, using new brake technology and investing in first responder training. Most of those actions have been well outside the scope of securement. However, FRA references these actions here to help place this rulemaking in the broader context of DOT's wide-ranging response to the safety issues created by these trains. For a summary of these actions, see Federal Railroad Administration's Action Plan for Hazardous Materials Safety, Federal Railroad Administration (May 20, 2014) available at http://www.fra.dot.gov/eLib/details/L04721.
D. Emergency Order 28 and Related Guidance
On August 2, 2013, FRA issued Emergency Order 28 establishing additional requirements on the treatment of securement of unattended equipment. On the same date, FRA issued a related Safety Advisory and announced an emergency RSAC meeting. See Federal Railroad Administration Safety Advisory 2013-06, Lac-Mégantic Railroad Accident and DOT Safety Recommendations, 78 FR 48224 (Aug. 7, 2013), available at http://www.fra.dot.gov/eLib/details/L04720
28 establishing additional requirements on the treatment of securement of unattended equipment. On the same date, FRA issued a related Safety Advisory and announced an emergency RSAC meeting. See Federal Railroad Administration Safety Advisory 2013-06, Lac-Mégantic Railroad Accident and DOT Safety Recommendations, 78 FR 48224 (Aug. 7, 2013), available at http://www.fra.dot.gov/eLib/details/L04720. FRA also subsequently issued guidance related to Emergency Order 28 and granted partial relief from Emergency Order 28 to the AAR and ASLRRA. See Guidance on Emergency Order 28 (Aug. 21, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php; Letter from Robert C. Lauby, Acting Associate Administrator for Railroad Safety/Chief Safety Officer, FRA, to Michael J. Rush, Associate General Counsel, AAR, and Keith T. Borman, Vice President and General Counsel, American Short Line and Regional Railroad Association, (Aug. 27, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php.
E. RSAC Overview
In March 1996, FRA established the RSAC, which provides a forum for collaborative rulemaking and program development. RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of RSAC members follows:
• American Association of Private Railroad Car Owners (AARPCO);
• American Association of State Highway & Transportation Officials (AASHTO);
• American Chemistry Council (ACC);
• American Petroleum Institute (API);
• American Public Transportation Association (APTA);
• American Short Line and Regional Railroad Association (ASLRRA);
• American Train Dispatchers Association (ATDA);
• AAR;
• Association of State Rail Safety Managers (ASRSM);
• Association of Tourist Railroads and Railway Museums (ATRRM);
• Brotherhood of Locomotive Engineers and Trainmen (BLET);
• Brotherhood of Maintenance of Way Employes Division (BMWED);
• Brotherhood of Railroad Signalme
n Short Line and Regional Railroad Association (ASLRRA);
• American Train Dispatchers Association (ATDA);
• AAR;
• Association of State Rail Safety Managers (ASRSM);
• Association of Tourist Railroads and Railway Museums (ATRRM);
• Brotherhood of Locomotive Engineers and Trainmen (BLET);
• Brotherhood of Maintenance of Way Employes Division (BMWED);
• Brotherhood of Railroad Signalmen (BRS);
• Chlorine Institute;
• Federal Transit Administration (FTA);*
• Fertilizer Institute;
• Institute of Makers of Explosives;
• International Association of Machinists and Aerospace Workers (IAM);
• International Brotherhood of Electrical Workers (IBEW);
• Labor Council for Latin American Advancement (LCLAA);*
• League of Railway Industry Women;*
• National Association of Railroad Passengers (NARP);
• National Association of Railway Business Women;*
• National Conference of Firemen & Oilers;
• National Railroad Construction and Maintenance Association (NRC);
• National Railroad Passenger Corporation (Amtrak);
• National Transportation Safety Board (NTSB);*
• Railway Passenger Car Alliance (RPCA)
• Railway Supply Institute (RSI);
• Safe Travel America (STA);
• Secretaria de Comunicaciones y Transporte;*
• SMART Transportation Division (SMART TD);
• Transport Canada;*
• Transport Workers Union of America (TWU);
• Transportation Communications International Union/Brotherhood of Railway Carmen (TCIU/BRC);
• Transportation Security Administration (TSA).
* Indicates associate, non-voting membership. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus
n (TSA).
* Indicates associate, non-voting membership. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. The working group may establish one or more task forces or other subgroups to develop facts and options on a particular aspect of a given task. The task force, or other subgroup, reports to the working group. If a working group comes to consensus on recommendations for action, the package is presented to RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, and because the RSAC recommendation constitutes the consensus of some of the industry's leading experts on a given subject, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goals, is soundly supported, and is in accordance with applicable policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA resolves the issue(s) through traditional rulemaking proceedings or other action
quirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA resolves the issue(s) through traditional rulemaking proceedings or other action.
The RSAC convened an emergency session on August 29, 2013, in response to the accident at Lac-Mégantic, to brief members on the preliminary findings of the accident, to discuss the safety issues related to the accident, and to discuss Emergency Order 28. At that meeting, the RSAC accepted Task No. 13-03 to refer to the Securement Working Group (SWG) the responsibility of ensuring that “appropriate processes and procedures are in place to ensure that any unattended trains and vehicles on mainline track or mainline sidings outside of a yard or terminal are properly secured against unintended movement, and as appropriate, such securement is properly confirmed and verified.” In doing so, the SWG was tasked with reviewing: the standards for the securement of unattended equipment under 49 CFR 232.103(n) and its concomitant regulatory guidance published in TB 10-01; the requirements of Emergency Order 28; and the recommendations contained in Federal Railroad Administration Safety Advisory 2013-06—Lac-Mégantic Railroad Accident Discussion and DOT Safety Recommendations. The SWG was also tasked with identifying any other issues relevant to FRA's regulatory treatment of securement of equipment to prevent unintended movement. While the RSAC also tasked the SWG with reviewing operational testing, the SWG concluded that no changes were necessary to the regulations relating to operational testing.
In addition to FRA, the following organizations contributed members to the SWG:
• AAR, including members from BNSF Railway Company (BNSF), Canadian National Railway (CN), Canadian Pacific Railway (CP), CSX Transportation, Inc
hile the RSAC also tasked the SWG with reviewing operational testing, the SWG concluded that no changes were necessary to the regulations relating to operational testing.
In addition to FRA, the following organizations contributed members to the SWG:
• AAR, including members from BNSF Railway Company (BNSF), Canadian National Railway (CN), Canadian Pacific Railway (CP), CSX Transportation, Inc. (CSX), Genesee & Wyoming Inc. (GNWR), Kansas City Southern Railway (KCS), Long Island Rail Road (LIRR), Metro-North Railroad (MNCW), Northeast Illinois Regional Commuter Railroad Corporation (METRA), Norfolk Southern Railway Company (NS), Railway Association of Canada, and Union Pacific Railroad Company (UP);
• Amtrak;
• API;
• APTA, including members Keolis North America, Massachusetts Bay Commuter Railroad Company, LLC (MBCR); and North County Transit District (NCTD);
• ASLRRA, including members from Anacostia Rail Holdings, Central California Traction Company (CCT), OmniTRAX, Rio Grande Pacific Corporation, and WATCO Companies, Inc. (WATCO);
• ASRSM, including members from California Public Utilities Commission (CPUC);
• ATDA;
• BLET;
• BMWED;
• BRS;
• IAM;
• NRC, including members from Herzog Transit Services (Herzog);
• NTSB;
• PHMSA;
• RSI;
• SMART TD;
• TCIU/BRC;
• Transport Canada; and
• TWU.
The SWG convened subsequently on October 30, 2013, December 17, 2013, January 28, 2014, and March 4, 2014, in Washington, DC to respond to these tasks and voted to approve the recommendation on March 4, 2014
T;
• BMWED;
• BRS;
• IAM;
• NRC, including members from Herzog Transit Services (Herzog);
• NTSB;
• PHMSA;
• RSI;
• SMART TD;
• TCIU/BRC;
• Transport Canada; and
• TWU.
The SWG convened subsequently on October 30, 2013, December 17, 2013, January 28, 2014, and March 4, 2014, in Washington, DC to respond to these tasks and voted to approve the recommendation on March 4, 2014. The SWG presented its recommendation to the full RSAC, which voted by electronic ballot between March 25 and March 31, 2015, to accept the
The recommendation of the RSAC include amendments to 49 CFR 232.103(n) that would do the following: (1) provide additional requirements for the securement of unattended equipment carrying certain hazardous materials; (2) mandate the implementation of operating rules and practices requiring that securement be part of all relevant job briefings; and (3) require adoption and compliance with procedures to secure equipment subsequent to an emergency response. The RSAC recommendation also includes amendments to 49 CFR 232.105 that would require equipping locomotives with exterior locking mechanisms.
III. Section-by-Section Analysis
Unless otherwise noted, all “part” and “section” references below refer to provisions either in title 49 of the CFR or proposed to be in title 49 of the CFR. FRA seeks comments on all proposals made in this NPRM.
Before entering into specific analysis of each proposed section, it is important to make clear that this proposal, which provides more restrictive securement requirements for specific types of equipment, does not affect FRA's policy concerning the Federal hours of service requirements. FRA continues to believe that a railroad may not require or allow a train employee with an accumulated time on duty of 12 hours or more to remain on a train for the sole purpose of meeting the securement requirements, including those proposed here
restrictive securement requirements for specific types of equipment, does not affect FRA's policy concerning the Federal hours of service requirements. FRA continues to believe that a railroad may not require or allow a train employee with an accumulated time on duty of 12 hours or more to remain on a train for the sole purpose of meeting the securement requirements, including those proposed here. A train employee may, however, remain on an unsecured train, if that employee is legitimately waiting for deadhead transportation from duty to a point of final release, performs no covered or commingled service, 15 and is free to leave the equipment when deadhead transportation arrives. In this case, time spent waiting for and in deadhead transportation is treated as neither time on duty nor time off duty.
15 A person is considered by the hours of service laws to be neither on duty nor off duty during periods they are either waiting for or in deadhead transportation to their point of final release (i.e., have completed their time on duty and are waiting for or in transportation to end their duty tour). In order to be considered “waiting for” deadhead transportation, the person must not be required to perform other duties. Merely being on a train and remaining sufficiently alert to respond to any unintended movement of the equipment is not inherently performing a duty; being on or with the train is a necessary element of waiting for transportation from the train. This is true even when the railroad receives the benefit of having the train attended while employees aboard wait for transportation. Such time is considered “limbo time” and is not contingent upon the train's securement status. See BLET v. Atchison Topeka and Santa Fe Railway, 516 U.S. 152 (1996) (holding that the time waiting for deadhead transportation under the hours of service laws must be counted as “limbo time.”)
the railroad receives the benefit of having the train attended while employees aboard wait for transportation. Such time is considered “limbo time” and is not contingent upon the train's securement status. See BLET v. Atchison Topeka and Santa Fe Railway, 516 U.S. 152 (1996) (holding that the time waiting for deadhead transportation under the hours of service laws must be counted as “limbo time.”). However, should the employee be required to perform some activity to prevent the movement of the equipment or to secure the train prior to departing with deadhead transportation, then the time spent performing the activity and any intervening time spent waiting would be considered covered and commingled service respectively. See 49 CFR part 228, app. A. Thus, whether a train is secured or unsecured when an employee is waiting for deadhead transportation, that waiting time will count as limbo time, so long as no covered activities are performed.
FRA also notes that this proposed rule does not include the portion of Emergency Order 28 that requires railroads to review, verify, and adjust, as necessary, existing requirements and instructions related to the number of hand brakes to be set on unattended trains and vehicles, and to review and adjust, as necessary, the procedures for verifying that the number of hand brakes is sufficient to hold the train or vehicle with the air brakes released. It was FRA's concern that existing railroad processes and procedures related to setting and verifying hand brakes on unattended trains and equipment were not sufficient to hold all trains and vehicles in all circumstances. FRA believes that the railroads have fulfilled this requirement and thus there is no need to include it in this proposed rule. FRA seeks comments on the exclusion of this Emergency Order 28 requirement here.
Proposed Amendments to 49 CFR Part 232
Section 232.5 Definitions
In the 2001 rule, the definition of “unattended equipment” was included in § 232.103(n)
nd vehicles in all circumstances. FRA believes that the railroads have fulfilled this requirement and thus there is no need to include it in this proposed rule. FRA seeks comments on the exclusion of this Emergency Order 28 requirement here.
Proposed Amendments to 49 CFR Part 232
Section 232.5 Definitions
In the 2001 rule, the definition of “unattended equipment” was included in § 232.103(n). As further discussed below, FRA is proposing a new paragraph (h) for § 232.105, which would also make use of the definition for “unattended equipment.” Since the term would be used in multiple sections, FRA believes it would be prudent to move the definition to the more broadly applicable definitions in § 232.5. Doing so would also allow FRA to rephrase paragraph (n) for clarity purposes, as discussed further below. Proposed placement of the definition in § 232.5 would not change its meaning and would be solely for applicability and clarity purposes.
FRA proposes changing the term “yard limits” to “yard” without any change to its definition, with concurrent changes from “yard limits” to “yard” in § 232.103(n). FRA also proposes to include the term “yard” in its new § 232.105(h). As currently defined in part 232, a yard limit is “a system of tracks, not including main tracks and sidings, used for classifying cars, making-up and inspecting trains, or storing cars and equipment.” But in part 218, yard limits are described as a railroad-designated operating territory that is established by yard limit signs; and timetable, train orders, or special instructions. See 49 CFR 218.35(a). Making this change clarifies that specific securement practices are connected to the physical presence of a yard, and not to an operating practices description of yard limits, which could potentially encompass an entire railway system
bed as a railroad-designated operating territory that is established by yard limit signs; and timetable, train orders, or special instructions. See 49 CFR 218.35(a). Making this change clarifies that specific securement practices are connected to the physical presence of a yard, and not to an operating practices description of yard limits, which could potentially encompass an entire railway system.
Section 232.103 General Requirements for all Train Brake Systems
As previously noted, FRA is proposing to move the definition of “unattended equipment” to § 232.5, creating an opportunity to rephrase and clarify the introductory language of paragraph (n). Part of this proposal is to move the opening sentence in paragraph (n)—“A train's air brake shall not be depended upon to hold equipment standing unattended on a grade (including a locomotive, a car, or a train whether or not locomotive is attached)”—to paragraph (n)(2). The introductory language of paragraph (n) would remain more succinct and clear.
While it is not an RSAC recommendation, FRA also proposes to amend paragraph (n)(1) to make more clear its existing expectation that in most circumstances at least one hand brake must be applied to hold unattended equipment. While this has been stated in earlier rulemakings and guidance documents, see e.g., TB 10-01, there has been some confusion about whether the use of wheel chocks, skates, or other securement devices is sufficient to hold unattended equipment. FRA's longstanding interpretation is that at least one hand brake is required to hold unattended equipment except in certain limited situations. For instance, in a hump classification yard an alternative form securement, such as skates and retarders may be allowed provided they are used within their design criteria and as intended. FRA believes adding explicit language to the regulatory text is warranted in order to formally address the requirement to set at least one hand brake in most instances
pment except in certain limited situations. For instance, in a hump classification yard an alternative form securement, such as skates and retarders may be allowed provided they are used within their design criteria and as intended. FRA believes adding explicit language to the regulatory text is warranted in order to formally address the requirement to set at least one hand brake in most instances.
As previously mentioned, proposed paragraph (n)(2) would be amended to include language from the introduction of paragraph (n), which prohibits a train's air brake from being depended upon to hold equipment standing unattended on a grade (including a
Proposed paragraphs (n)(6) through (n)(8) attempt to address the aforementioned heightened concerns relating to the securement of unattended equipment carrying certain hazardous materials. Proposed paragraph (n)(6) defines the type of cars covered by these requirements and is intended to ensure that proposed paragraphs (n)(7) and (n)(8) apply only to equipment that includes loads. Specifically, paragraph (n)(6) provides that the substantive requirements of paragraphs (n)(7) and (n)(8) will apply to:
(1) any loaded freight car containing PIH material, including anhydrous ammonia and ammonia solutions; or
(2) twenty (20) or more loaded cars or loaded intermodal portable tanks of any one or any combination of PIH materials (including anhydrous ammonia and ammonia solutions), or any flammable gas, flammable or combustible liquid, explosives, or a hazardous substance listed at § 173.31(f)(2) of this title.
FRA notes that this language is broader than the language used in PHMSA's NPRM on Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains (HHFTs). See 79 FR 45016 (Aug. 1, 2014)
rials (including anhydrous ammonia and ammonia solutions), or any flammable gas, flammable or combustible liquid, explosives, or a hazardous substance listed at § 173.31(f)(2) of this title.
FRA notes that this language is broader than the language used in PHMSA's NPRM on Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains (HHFTs). See 79 FR 45016 (Aug. 1, 2014). In that rule, PHMSA proposed certain new requirements for HHFTs, which it defines as “a train comprised of 20 or more carloads of a Class 3 flammable liquid and ensures that the rail requirements are more closely aligned with the risks posed by the operation of these trains.” 79 FR at 45017. Paragraph (n)(6) proposes new securement requirements that would cover a single PIH tank car. Moreover, where the proposed PHMSA rule would only cover trains with 20 or more carloads of flammable liquids, paragraph (n)(6) proposes to cover situations where there are 20 or more carloads or loaded intermodal portable tanks of PIH materials, flammable gases, flammable or combustible liquids, explosives, other hazard substances listed at § 173.31(f)(2), or any combination thereof. FRA seeks comment on this proposal and also seeks comment on whether a defined term should be used for equipment covered under paragraph (n)(6).
The proposed regulatory text exempts residue cars from consideration. Residue cars are defined by PHMSA under the HMRs. FRA will continue to rely on the HMRs for this definition, even if amended. Together, FRA and PHMSA are concurrently considering new regulations relating to the placement in trains of cars containing hazardous materials. In that effort, loaded and residue cars may be treated the same. FRA does not believe that any resulting train placement regulation would affect the securement regulations we are considering in the instant proceeding
for this definition, even if amended. Together, FRA and PHMSA are concurrently considering new regulations relating to the placement in trains of cars containing hazardous materials. In that effort, loaded and residue cars may be treated the same. FRA does not believe that any resulting train placement regulation would affect the securement regulations we are considering in the instant proceeding. Nevertheless, the parties have expressed concerns that such inconsistent use may foster confusion or be “pitted against one another.” FRA seeks further comment explaining how such confusion or conflict may manifest itself.
Proposed paragraph (n)(7) provides certain conditions under which such equipment may be left unattended, including the development of a plan identifying locations where such equipment may be left unattended. Proposed paragraph (n)(8) includes specific requirements regarding the securement of such equipment.
Emergency Order 28 prohibits each railroad from leaving trains or vehicles that are transporting certain hazardous materials on mainline track or mainline siding outside of a yard or terminal unless the railroad adopts and complies with a plan that identifies the specific locations and circumstances for which it is safe and suitable for leaving such trains or vehicles unattended. According to Emergency Order 28, the plan must contain sufficient analysis of the safety risks and any mitigating circumstances the railroad has considered in making its determination. FRA expressed its intent not to formally grant approval to any plan, and it continues to monitor such plans. In the event that FRA determines that adequate justification is not provided, the railroad is required to ensure that trains and equipment are attended until appropriate modifications are made to the railroad's plan.
In proposed paragraph (n)(7)(i), FRA intends to continue these requirements by regulation
intent not to formally grant approval to any plan, and it continues to monitor such plans. In the event that FRA determines that adequate justification is not provided, the railroad is required to ensure that trains and equipment are attended until appropriate modifications are made to the railroad's plan.
In proposed paragraph (n)(7)(i), FRA intends to continue these requirements by regulation. While FRA continues to believe that it is not necessary to provide approval for each plan, which could take considerable resources, FRA must ensure proper enforcement and oversight. Accordingly, proposed paragraph (n)(7)(i) includes a requirement that the railroad notify FRA when it modifies its existing plan and provide FRA with a copy of the plan upon request. For similar reasons, FRA will also retain the right to require modifications to any insufficient plan.
Proposed paragraph (n)(7)(i), however, differs from Emergency Order 28 in one manner. It allows a railroad to leave a train or equipment unattended on mainline track that is running through a yard or on mainline track that is adjacent to the yard without covering the location in the railroad's plan. This change is based on feedback received during the SWG meetings, which voted unanimously to adopt the proposed language in paragraph (n)(7)(i), with the recommendation of the full RSAC to move forward with the regulatory provision.
In Emergency Order 28, FRA made a decision that it was not necessary to include mainline tracks and mainline sidings that run through a yard in a railroad's plan for leaving equipment unattended. FRA's rationale for this decision was that a yard was defined space where the railroad performed a particular set of tasks (classifying cars, making-up and inspecting trains, or storing cars and equipment)
n Emergency Order 28, FRA made a decision that it was not necessary to include mainline tracks and mainline sidings that run through a yard in a railroad's plan for leaving equipment unattended. FRA's rationale for this decision was that a yard was defined space where the railroad performed a particular set of tasks (classifying cars, making-up and inspecting trains, or storing cars and equipment). As a result of the tasks performed there, yards tend to have appropriate geographic characteristics, sufficient railroad activity, and a population of railroad personnel in close proximity that make them safer places for leaving equipment unattended. In FRA's view, mainline tracks that run through yards share those characteristics with the yard tracks surrounding it and is often used as a de facto “yard” track to assist with classifying cars and with making-up and inspecting trains. As such, FRA did not see a need when drafting Emergency Order 28 for railroads to identify mainline tracks within a yard in the railroad's securement plan before a railroad would be allowed to leave equipment unattended on the mainline track that is surrounded by a yard.
The feedback received through the RSAC process was that tracks adjacent to the yard share many of the same characteristics as mainline tracks that run through a yard. Therefore, FRA has proposed in this rulemaking to treat mainline track that is adjacent to the yard in the same manner that it is
Proposed paragraph (n)(7)(ii) would establish new requirements for those trains that are left unattended on mainline track that is running through a yard or on mainline track that is adjacent to the yard
same characteristics as mainline tracks that run through a yard. Therefore, FRA has proposed in this rulemaking to treat mainline track that is adjacent to the yard in the same manner that it is
Proposed paragraph (n)(7)(ii) would establish new requirements for those trains that are left unattended on mainline track that is running through a yard or on mainline track that is adjacent to the yard. It would apply aspects of Emergency Order 28 to these tracks by requiring verification that securement has been completed in accordance with the railroad's process and procedures (see discussion below concerning paragraph (n)(8)(i)), and that the locomotive cab is locked or the reverser is removed from the control stand and placed in a secured location (see discussion below concerning paragraph (n)(8)(ii)).
Emergency Order 28 requires railroads to develop specific processes for employees responsible for securing any unattended train or vehicles transporting certain hazardous materials that must be left on mainline track or a mainline siding outside of a yard. FRA believes that this requirement should continue in regulation. The proposed rule allows a railroad to leave a paragraph (n)(6) train unattended on mainline track or a siding outside of a yard where the railroad has a plan in place and on mainline tracks that are in or adjacent to yards. In doing so, proposed paragraph (n)(8)(i) requires the employee responsible for the securement of the equipment to verify securement and proposed paragraph (n)(8)(ii) requires the train crew to lock the controlling locomotive cab or remove and secure the reverser from the control stand. 16
16 The reverser is the directional control for the locomotive. Removing the reverser would essentially put the locomotive in neutral, preventing it from moving forward or backward under the power of the engine.
Proposed paragraph (n)(8)(i) requires that an employee responsible for securing equipment defined by paragraph (n)(6) verify securement with another qualified person
e control stand. 16
16 The reverser is the directional control for the locomotive. Removing the reverser would essentially put the locomotive in neutral, preventing it from moving forward or backward under the power of the engine.
Proposed paragraph (n)(8)(i) requires that an employee responsible for securing equipment defined by paragraph (n)(6) verify securement with another qualified person. This is similar to Emergency Order 28 which currently requires employees to verify proper securement with a qualified railroad employee. This may be done by relaying pertinent securement information (i.e., the number of hand brakes applied, the tonnage and length of the train or vehicle, the grade and terrain features of the track, any relevant weather conditions, and the type of equipment being secured) to the qualified railroad employee. The qualified railroad employee must then verify and confirm with the train crew that the securement meets the railroad's requirements. However, proposed paragraph (n)(8)(i) does not contain a requirement that the railroad maintain a record of the verification of proper securement.
FRA believes that the type of verification requirement in proposed paragraph (n)(8)(i) will serve to ensure that any employee who is responsible for securing equipment containing hazardous materials will follow appropriate procedures because the employee will need to fully consider the securement procedures to relay what was done to the qualified employee. Further, the qualified railroad employee (e.g. a trainmaster, road foreman of engines, or another train crew employee) will be in a position to ensure that a sufficient number of hand brakes have been applied. Under this proposed rule, the qualified railroad employee must have adequate knowledge of the railroad's securement requirements for the specific location or for the specific circumstance for which the equipment will be left unattended
. a trainmaster, road foreman of engines, or another train crew employee) will be in a position to ensure that a sufficient number of hand brakes have been applied. Under this proposed rule, the qualified railroad employee must have adequate knowledge of the railroad's securement requirements for the specific location or for the specific circumstance for which the equipment will be left unattended. Without limiting the type of employee who may be qualified, FRA envisions that a dispatcher, roadmaster, yardmaster, road foreman of engines, or another crew member would be able to serve in the verification capacity.
FRA has decided not to continue the recordation requirement based on experience in enforcing Emergency Order 28. FRA has found that requiring recordation of securement information is superfluous because the verification requirement ensures that two individuals consulting with each other make certain that the appropriate securement method is used. The intent of the recordation requirement was to ensure the communications are taking place. FRA has found over the last year that communications occur in the course of the verification process. Therefore, it does not believe requiring railroads to make a record of each securement event is necessary to ensure proper securement. Nevertheless, FRA seeks comment concerning enforcement of the verification requirement, absent recordation.
Also under Emergency Order 28, the employees responsible for securing the train or vehicles must lock the controlling locomotive cab door or remove and secure the reverser before leaving it unattended. Accordingly, proposed paragraph (n)(8)(ii) requires further protection of the locomotive to prevent movement of unattended equipment that could be caused by unauthorized access to the locomotive cab.
Representatives from the railroad labor strongly suggested at the SWG meetings that a locking mechanism be applied to each locomotive covered under this rule, seeking that lock installation be complete within 18 months
d paragraph (n)(8)(ii) requires further protection of the locomotive to prevent movement of unattended equipment that could be caused by unauthorized access to the locomotive cab.
Representatives from the railroad labor strongly suggested at the SWG meetings that a locking mechanism be applied to each locomotive covered under this rule, seeking that lock installation be complete within 18 months. BLET stated that locomotive cab security is a major concern to the labor caucus.
The language approved by the SWG provided that the controlling locomotive cab shall be locked on locomotives capable of being locked or the reverser on the controlling locomotive shall be removed from the control stand and placed in a secured location. The use of the conjunctive appears to indicate a choice; each railroad may opt to either lock the locomotive or remove its reverser. However, based on the discussions during the SWG meetings, FRA believes that the SWG intended for proposed paragraph (n)(8)(ii) to mean that all covered locomotives should be locked when so equipped. FRA has made slight alterations to the language in paragraph (n)(8)(ii) from the language that was approved by the SWG in order to more accurately address the lock requirement. FRA understands that the reverser provision is intended for the interim period until locks are installed or when a locomotive has been equipped with a lock but the lock has become inoperative. FRA also notes that under this proposal a railroad would be free to require both the locking of the locomotive and the removal of the reverser. FRA does not intend to limit a railroad to just one or the other. FRA seeks comment on this understanding, particularly as to whether the alternative of removing the reverser should only be available during the timeframe when the locking mechanism becomes broken or otherwise ineffective or whether, in the interest of safety redundancy, the regulations should require railroads to both lock cab doors and to remove reverser handles
ailroad to just one or the other. FRA seeks comment on this understanding, particularly as to whether the alternative of removing the reverser should only be available during the timeframe when the locking mechanism becomes broken or otherwise ineffective or whether, in the interest of safety redundancy, the regulations should require railroads to both lock cab doors and to remove reverser handles.
When a railroad relies on removing the reverser as a means for securement, FRA expects that the reverser will be taken by the appropriate railroad employee from the controlling locomotive cab so that it is not accessible to an unauthorized person such as a trespasser. Alternatively, FRA anticipates allowing the reverser to be secured in the cab of an unlocked controlling locomotive as long as the reverser is kept in a box or other compartment that can be locked within the locomotive cab. However, FRA would not consider a reverser “secured” within the meaning of this proposal if
In most instances, FRA would consider a locomotive with an ineffective locking mechanism to be noncompliant with paragraph (n)(8)(ii) if the locomotive is left unattended with the reverser remaining in the control stand. FRA recognizes that there may be times when a locomotive's lock becomes inoperative and its reverser cannot be removed, thus making compliance with proposed paragraph (n)(8)(ii) nearly impossible. Accordingly, for such instances, FRA proposes an exception under paragraph (n)(8)(iii). FRA believes that application of this exception would only be utilized on the rare occasion where older locomotives with integrated reversers may be utilized or where weather conditions make the reverser necessary for operations (i.e., to prevent the locomotive from freezing). FRA seeks comments on the intent, application, and language of this proposed exception.
FRA believes that the job briefing requirement in Emergency Order 28 should be codified in regulation
d on the rare occasion where older locomotives with integrated reversers may be utilized or where weather conditions make the reverser necessary for operations (i.e., to prevent the locomotive from freezing). FRA seeks comments on the intent, application, and language of this proposed exception.
FRA believes that the job briefing requirement in Emergency Order 28 should be codified in regulation. Accordingly, proposed paragraph (n)(9) would require each railroad to implement operating rules and practices requiring the discussion of securement among crew members and other involved railroad employees before engaging in any job that will impact or require the securement of any equipment in the course of the work being performed. This proposed requirement is analogous to other Federal regulations that require crew members to have a job briefing before performing various tasks, such as confirming the position of a main track switch before leaving an area. The purpose of this proposed job briefing requirement is to make certain that all crew members and other involved railroad employees are aware of what is necessary to properly secure the equipment in compliance with § 232.103(n).
Under this proposal, FRA expects that the crew will discuss the equipment that is impacted, the responsibilities of each employee involved in the securement of a train or vehicle, the number of hand brakes that will be required to secure the affected equipment, the process for ensuring that securement is sufficient, how the verification will be determined, and any other relevant factors affecting securement. FRA seeks comments on whether these expectations are reasonable, accurate, and either sufficiently comprehensive or somehow lacking.
FRA recognizes that in some instances, there may be only one crew member performing a switch or operation and that would have to secure equipment alone at the end of the activity. FRA believes that the issue of self-satisfying a job briefing is best left to the railroad when complying with part 218
e expectations are reasonable, accurate, and either sufficiently comprehensive or somehow lacking.
FRA recognizes that in some instances, there may be only one crew member performing a switch or operation and that would have to secure equipment alone at the end of the activity. FRA believes that the issue of self-satisfying a job briefing is best left to the railroad when complying with part 218. Nevertheless, FRA seeks comments on how to apply this requirement in a situation involving a single person crew and how it interrelates with part 218.
Under paragraph (n)(10), FRA is proposing to require railroads to develop procedures to ensure that a qualified railroad employee inspects all equipment that any emergency responder has been on, under, or between for proper securement before the rail equipment or train is left unattended. As it may be necessary for emergency responders to modify the state of the equipment for the performance of their jobs by going on, under, or between equipment, it is critical for the railroad to have a qualified employee subsequently inspect the equipment to ensure that the equipment continues to be properly secured before it is again left unattended.
The proposed rule requires railroads to establish a process to ensure that a qualified railroad employee inspects all equipment that any emergency responder (e.g., fireman or paramedic) has been on, under, or between for proper securement before the train or vehicle is left unattended. FRA understands that on rare occasions there may be situations where an emergency responder accesses railroad equipment without the knowledge of the railroad. The railroad's process can take that type of situation into account; however, FRA will expect that a qualified railroad employee will inspect equipment after it has been accessed by an emergency responder in any circumstance where the railroad acting in a reasonable manner knew or should have known of an emergency responder's presence on, under, or between the subject equipment
ge of the railroad. The railroad's process can take that type of situation into account; however, FRA will expect that a qualified railroad employee will inspect equipment after it has been accessed by an emergency responder in any circumstance where the railroad acting in a reasonable manner knew or should have known of an emergency responder's presence on, under, or between the subject equipment.
The proposed rule requires that these procedures are followed as soon as safely practicable after learning that an emergency responder has interfaced with the equipment. FRA seeks comments on what should be considered “as soon as safely practicable.”
Section 232.105 General Requirements for Locomotives
FRA proposes a new paragraph (h) to § 232.105 to provide further requirements concerning locking mechanisms on locomotive doors. While proposed § 232.103(n)(8)(ii) provides securement controls for the controlling locomotive cab that is left unattended on a mainline track or siding as part of a train that meets the minimum quantities of hazardous materials established in proposed § 232.103(n)(6)(i), FRA believes that additional requirement should apply to all locomotives left outside a yard. Accordingly, FRA proposes including those requirements under § 232.105.
During the meetings of the RSAC SWG, representatives of the labor unions proposed requiring the installation of locking mechanisms on all locomotives covered by these proposed rules. AAR subsequently committed that all locomotives will be equipped with cab door locks by March of 2017. AAR clarified its statement by ensuring that there will be no distinction between interchange and non-interchange locomotives. In the interest of codifying this deadline as applicable to the scope of this proposed rule, paragraph (h)(1) proposes that after March 1, 2017, each locomotive left unattended outside of a yard be equipped with an operative exterior locking mechanism
cks by March of 2017. AAR clarified its statement by ensuring that there will be no distinction between interchange and non-interchange locomotives. In the interest of codifying this deadline as applicable to the scope of this proposed rule, paragraph (h)(1) proposes that after March 1, 2017, each locomotive left unattended outside of a yard be equipped with an operative exterior locking mechanism. By no means does this requirement limit AAR's ambition that its members equip additional locomotives (e.g., switching locomotives inside a yard) in their respective fleets. FRA also proposes to include this requirement in § 232.105 so that it applies to all locomotives left unattended outside of a yard or on a track immediately adjacent to a yard, not just those locomotives defined under § 232.103(n)(6). FRA seeks comment on this requirement.
Proposed paragraphs (h)(2) and (h)(3) are meant to ensure that locking mechanisms, if broken or otherwise inoperative, are repaired in a reasonable timeframe. FRA expects that each locomotive equipped with a locking mechanism will be inspected and maintained at the time of the locomotive's periodic inspection. See 49 CFR 229.23. If a locking mechanism is found inoperative at any time other than the periodic inspection, proposed paragraph (h)(3) would require the railroad to repair it within 30 days. However, if the periodic inspection falls within the 30-day limit for repair, FRA would expect that the lock will be repaired at the time of the periodic inspection in accordance with the requirement in paragraph (h)(2). For instance, if a locomotive engineer were to find the lock inoperative during a daily inspection and the periodic inspection was scheduled 15 days later, then FRA would expect that the railroad
For the purposes of this regulation, “operative” means that, when applied, the locking mechanism will reasonably be expected to keep unauthorized people from gaining access into a locomotive while the locomotive is unoccupied
motive engineer were to find the lock inoperative during a daily inspection and the periodic inspection was scheduled 15 days later, then FRA would expect that the railroad
For the purposes of this regulation, “operative” means that, when applied, the locking mechanism will reasonably be expected to keep unauthorized people from gaining access into a locomotive while the locomotive is unoccupied. However, in doing so, the railroad must assure that ingress and egress is provided for in normal circumstances and emergencies. FRA seeks comments on this understanding. FRA also seeks information and comments on the possibility of a qualified person finding difficulty accessing the locomotive cab in the event of an unintentional movement of the equipment.
Under proposed paragraph (h)(4), if a locking mechanism becomes inoperative in the interval between a locomotive's periodic inspection dates, this provision does not require that a locomotive be removed from service upon the discovery of an inoperative locking mechanism. Railroads may continue to use the locomotive without an operative lock. However, if such equipment covered by proposed § 232.103(n)(6) is left unattended and without an operative lock, then the railroad must default to the alternative securement option governing the reverser under proposed § 232.103(n)(8)(ii) or fall under the exception provided per proposed § 232.103(n)(8)(iii).
IV. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures
This proposed rule has been evaluated in accordance with existing policies and procedures, and determined to be significant under Executive Order 12866, Executive Order 13563, and DOT policies and procedures. 44 FR 11034 (Feb. 26, 1979). For purposes of analyzing this rule, FRA uses as a baseline the rules in effect at the time of publication, including Emergency Order 28
Policies and Procedures
This proposed rule has been evaluated in accordance with existing policies and procedures, and determined to be significant under Executive Order 12866, Executive Order 13563, and DOT policies and procedures. 44 FR 11034 (Feb. 26, 1979). For purposes of analyzing this rule, FRA uses as a baseline the rules in effect at the time of publication, including Emergency Order 28. The analysis separately quantifies ongoing costs of Emergency Order 28 that might exceed business practices that would remain in effect in absence of Emergency Order 28. It is reasonable to assume that most of the requirements of Emergency Order 28 would continue as business practices; for example the railroads have already improved their practices in determining the proper application of hand brakes to secure a train and the verification that the hand brake application is adequate. Further, the exterior locking mechanism provision in the rule reflects an existing commitment among AAR member railroads, which had been working on developing a lock standard applicable to its members for over a year, so the costs associated with this provision are limited to non-AAR member railroads, primarily short line railroads. This analysis also does not include sunk costs.
FRA was able to quantify the costs of the proposed rule, but not able to quantify all the benefits, as many of the benefits are the result of reducing risk from high consequence, low probability events that are not easily quantified. Thus, FRA will discuss the benefits that can be quantified, that by themselves justify the cost of the proposal and will provide a brief discussion of the non-quantified benefits. The monetized discounted and annualized net benefits would be:
Discounted values Discounted value Discount factor 7% 3% Total $1,076,984 $1,479,331 Annualized 95,009 96,538 Statement of Need
The United States has experienced a dramatic growth in the quantity of flammable materials being shipped by rail in recent years
proposal and will provide a brief discussion of the non-quantified benefits. The monetized discounted and annualized net benefits would be:
Discounted values Discounted value Discount factor 7% 3% Total $1,076,984 $1,479,331 Annualized 95,009 96,538 Statement of Need
The United States has experienced a dramatic growth in the quantity of flammable materials being shipped by rail in recent years. According to the rail industry, in the U.S. in 2009, there were 10,800 carloads of crude oil shipped by rail. In 2013, there were 400,000 carloads. In the Bakken region, over one million barrels a day of crude oil was produced in March 2014, 17 most of which is transported by rail. Transporting flammable material carries safety and environmental risks. The risk of flammability is compounded in the context of rail transportation because petroleum crude oil and ethanol are commonly shipped in large unit trains. In recent years, train accidents involving a flammable material release and resulting fire with severe consequences have occurred with increasing frequency (i.e. Arcadia, OH, Plevna, MT, Casselton, ND, Aliceville, AL, Lac-Mégantic, Quebec).
17 Information regarding oil and gas production is available at the following URL: http://www.eia.gov/petroleum/drilling/#tabs-summary-2 .
Shippers and rail companies are not insured against the full liability of the potential consequences of incidents involving hazardous materials. As a result, these events impose externalities. Among Class I railroads, a self-insured retention of $25 million is common, though it can be as much as $50 million, especially when PIH/TIH material is involved. Smaller regional and short line carriers, i.e., Class II and Class III railroads, on the other hand, typically maintain retention levels well below $25 million as they usually have a more conservative view of risk and usually do not have the cash-flow to support substantial self-insurance levels
llion is common, though it can be as much as $50 million, especially when PIH/TIH material is involved. Smaller regional and short line carriers, i.e., Class II and Class III railroads, on the other hand, typically maintain retention levels well below $25 million as they usually have a more conservative view of risk and usually do not have the cash-flow to support substantial self-insurance levels. At this time, the maximum coverage available in the commercial rail insurance market appears to be $1 billion per carrier, per incident. 18 While this level of insurance is sufficient for the vast majority of accidents, it appears that no amount of coverage is adequate to cover a higher consequence event. One example of this issue is the incident that occurred at Lac Mégantic, Quebec, in July of 2013. The rail carrier responsible for the incident was covered for a maximum of $25 million in insurance liability, and it had to declare bankruptcy because that coverage and the companies remaining capital combined were insufficient to pay for more than a fraction of the harm that was caused. This is one example where rail carriers and shippers may not bear the entire cost of “making whole” those affected when an incident
18 See “The Transportation of Hazardous Materials: Insurance, Security, and Safety Costs,” DOT Report to Congress, December 2009, at http://www.dot.gov/office-policy/transportation-hazardous-materials-insurance-security-and-safety-costs.
FRA believes that the failure to secure equipment decreases the safe transportation of goods by rail, and increases the possibility of a higher-consequence event, particularly when dealing with a key train transporting a material such as crude oil. It is difficult to assess how much of the decrease in safety is from railroads not requiring their employees to secure equipment or from employees failing to comply with railroad securement requirements
ecreases the safe transportation of goods by rail, and increases the possibility of a higher-consequence event, particularly when dealing with a key train transporting a material such as crude oil. It is difficult to assess how much of the decrease in safety is from railroads not requiring their employees to secure equipment or from employees failing to comply with railroad securement requirements. The Lac-Mégantic accident shows that the railroads were not successful using operating rules in effect at the time of the accident, perhaps because an employee did not follow those rules or might not have had adequate guidance on what constituted adequate securement. FRA believes that use of its authority will enhance compliance with railroad issued orders. There may also have been an issue of incomplete information—which can cause a market failure—that was corrected in the wake of the Lac-Mégantic accident and Emergency Order 28, in that railroads had not yet developed the procedures required in response to Emergency Order 28. This problem of incomplete information related to securement procedures has been addressed, so it is not part of the baseline. Finally, incomplete information also may be causing a market failure among some railroads that have not put locks on their locomotives left outside yards.
Cost-Benefit Analysis of Individual Sections
Following is a discussion of the regulatory costs and benefits associated with each proposed requirement.
Proposed changes to the definition in § 232.5 have no substantive impact and do not result in any new costs or benefits.
Proposed changes to § 232.103(n)(2) will have negligible impact or real burdens, but may increase compliance with existing rules. As noted above, the changes being proposed to this paragraph merely clarify FRA's longstanding interpretation, application, and enforcement of the existing regulation
the definition in § 232.5 have no substantive impact and do not result in any new costs or benefits.
Proposed changes to § 232.103(n)(2) will have negligible impact or real burdens, but may increase compliance with existing rules. As noted above, the changes being proposed to this paragraph merely clarify FRA's longstanding interpretation, application, and enforcement of the existing regulation.
Proposed § 232.103(n)(6) lists types of trains and equipment covered by proposed § 232.103(n)(7) and (n)(8), but does not directly impose any specific requirements.
Proposed § 232.103(n)(7)(i) prohibits leaving affected equipment unattended on a main track or siding (except when that main track or siding runs through, or is directly adjacent to a yard) until the railroad has adopted and is complying with a plan identifying specific locations or circumstances when the equipment may be left unattended. Railroads already have developed and implemented such plans under Emergency Order 28, so there is no cost to create such plans. The initial revision and notification burden would have been in identifying safety rationale related to such locations and circumstances, but that has already been accomplished through compliance with Emergency Order 28. To the extent that railroads further revise their plans in the future, there will be some additional costs. This will not occur frequently, resulting in nominal burden in the future.
Proposed § 232.103(n)(7)(ii), an expansion of Emergency Order 28 that applies to trains left unattended on main tracks that are in or adjacent to yards, requires trains left in yards to have the locomotive cab locked, or the reverser removed, if possible, but would not impose additional requirements in a yard if the locking mechanism is inoperative. This portion of the proposed requirement is part of long-standing railroad business practices, and will add no costs or benefits
trains left unattended on main tracks that are in or adjacent to yards, requires trains left in yards to have the locomotive cab locked, or the reverser removed, if possible, but would not impose additional requirements in a yard if the locking mechanism is inoperative. This portion of the proposed requirement is part of long-standing railroad business practices, and will add no costs or benefits.
In proposed paragraph (n)(8)(i), there is a new proposed requirement, which in almost all cases was already in place as a business practice. It requires that the qualified individual who secures the train verify with a second qualified individual that the train has been secured in accordance with the railroad's operating rules, including whatever the employee has done to ensure that an adequate number of hand brakes have been employed. On a train with two or more crew members, the train crew will verify among themselves. This would happen as a matter of business practice. In the event that the train is secured by a single person crew, the verification would involve a second person, typically a yardmaster, who is also qualified. All safety-critical activities by train crews are communicated to at least one additional person as a standard operating practice. This is part of the railroads' conscious effort to avoid a single point human factor failure that can cause an accident. FRA believes that less than one-tenth of one-percent (0.1%) of the affected trains will be operated by a single crew member when securing in a yard, because there are very few single person crews operating affected trains, and because many affected trains will be operated continuously to their destination. Some trains will be secured outside of yards, but that burden is discussed below in this analysis. In this analysis, FRA assumes that there will be 1,000 affected trains per day, of which 0.1% (1 daily or 365 annually) would have a single person crew
here are very few single person crews operating affected trains, and because many affected trains will be operated continuously to their destination. Some trains will be secured outside of yards, but that burden is discussed below in this analysis. In this analysis, FRA assumes that there will be 1,000 affected trains per day, of which 0.1% (1 daily or 365 annually) would have a single person crew. Further, FRA assumes that in the absence of the proposed rule, 95 percent of railroads would require the verification as a business practice. This means that over 20 years, only 365 trains would be affected. FRA believes the communication will take 15 seconds of two qualified individuals' time, or 30 labor seconds. There is no cost to initiate communication, because in any event a person leaving a train would have to communicate with the yardmaster to let the yardmaster know where the crew member left the train and to let the yardmaster know the train would no longer be moving in the yard. Over the 20-year life, the undiscounted value would be 182.5 labor minutes or roughly 3 labor hours. At $50 per hour the cost over 20 years, undiscounted cost would be $150, and the annual cost would only be $7.50. FRA requests comments on the current and future levels of train operations impacted and the labor estimates associated with compliance.
Proposed § 232.103(n)(8)(i) requires that where a freight train or standing freight car or cars as described in proposed paragraph (n)(6) is left unattended on a main track or siding outside of a yard, an employee responsible for securing the equipment shall verify with another person qualified to make the determination that the equipment is secured in accordance with the railroad's processes and procedures. This will impose no new burden nor create any new benefit since it is identical to what is currently required by Emergency Order 28
ft unattended on a main track or siding outside of a yard, an employee responsible for securing the equipment shall verify with another person qualified to make the determination that the equipment is secured in accordance with the railroad's processes and procedures. This will impose no new burden nor create any new benefit since it is identical to what is currently required by Emergency Order 28. Where train crews with more than one crew member are involved, then the crew members would need to discuss the securement and ensure that they had secured the correct number of hand brakes and taken other steps to properly secure the train. Where single member crews are involved, then the crew member would have to call the dispatcher or some other qualified railroad employee to verify with the qualified employee that the train had been properly secured. As noted above, Emergency Order 28 requires this communication to occur presently, thus railroads already have these procedures established and continuing such practice will not impose an additional cost. Thus, the proposed changes to § 232.103(n) would create no new benefits or costs, compared to the base case.
Proposed § 232.103(n)(8)(ii) requires that the controlling locomotive cab of a freight train described in paragraph
• A railroad could remove the reverser; almost all locomotives can idle with the reverser removed, except in very cold weather;
• A railroad could attend the locomotive, which could involve either placing a qualified individual aboard the locomotive while it stands, or boarding a new crew and having the new crew continue moving the train toward its destination. The most economical way to accomplish this would be to board a new crew and take the train further along its route. The railroad was going to have to call a crew to move the train on its route anyway, so if the railroad has sufficient time to call a new crew, generally two hours, the railroad would call a crew earlier than originally planned
w crew continue moving the train toward its destination. The most economical way to accomplish this would be to board a new crew and take the train further along its route. The railroad was going to have to call a crew to move the train on its route anyway, so if the railroad has sufficient time to call a new crew, generally two hours, the railroad would call a crew earlier than originally planned. Dispatchers continually adjust the flow of trains, and adding a single train earlier than originally planned would have little effect on operations in almost all cases. If the train is already close to its destination this would not be practical if the consignee unloading or transfer operation were not available, or if the train could not proceed for some other reason, such as track congestion or blockage, the railroad would not simply board the next crew and the railroad would have to comply by some other means;
• A railroad could arrange for the train to stop in a yard, or on a main track in or adjacent to a yard. This might involve having the dispatcher expedite the train so it can make a yard further along its route, which might have little cost;
• A railroad could have the train crew switch locomotives, putting a lock-equipped locomotive in the lead, which would be costly and impractical; or
• A railroad could arrange to have the lock repaired before leaving the train unattended, which would also carry a cost.
The burdens of proposed § 232.103(n)(8)(ii) on main track or sidings outside of yards are imposed by Emergency Order 28, so they are not new burdens, and they still are relatively small. For purposes of this analysis, FRA conservatively estimates that 1,000 trains per day 19 will be subject to the proposed requirements of § 232.103(n)(8)(ii), but that 90 percent of them will be excepted under proposed § 232.103(n)(8)(iii), because they will have routing that calls for unattended stops only in or adjacent to yards. 20 That leaves 100 trains per day, or 36,500 trains per year
small. For purposes of this analysis, FRA conservatively estimates that 1,000 trains per day 19 will be subject to the proposed requirements of § 232.103(n)(8)(ii), but that 90 percent of them will be excepted under proposed § 232.103(n)(8)(iii), because they will have routing that calls for unattended stops only in or adjacent to yards. 20 That leaves 100 trains per day, or 36,500 trains per year. FRA estimates that one in 500 locomotives or 73 per year will have a defective lock. FRA also estimates that 50 percent, or 36.5 per year, would have been left running while unattended, or would have been equipped w

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2014-21253. Check the current official text before relying on it. Not legal advice.