Securement of Unattended Equipment
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Notice of proposed rulemaking.
CFR Part: "49 CFR Part 232"
RIN Number: "RIN 2130-AC47"
Citation: "79 FR 53356"
Document Number: "Docket No. FRA-2014-0032, Notice No. 1"
Page Number: "53356"
"Proposed Rules"
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.
EFFECTIVE DATE: (1) Written comments must be received by
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,
* Hand Delivery: Room W12-140 on the Ground level of the
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.
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
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Background
A. Lac-Megantic Derailment
1. Facts
2. Response
B. Safety Concerns Arising Out of the Lac-Megantic Derailment and Other Train Incidents Involving Flammable Liquids and Gases and Poison Inhalation Hazard Materials.
C. Current Securement Regulations and Related Guidance
D. Emergency Order 28 and Related Guidance
E. RSAC Overview
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
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 (
Discounted value Discount factor Discounted values 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
GOES
Discounted value Discount factor Discounted values net benefits 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 (
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
A. Lac-Megantic Derailment
1. Facts
On
According to a report issued by the
FOOTNOTE 1 Railway Investigative Report R13D0054, TSB,
At approximately
The derailment caused a release of 6 million liters of petroleum crude oil, resulting in a large fire with multiple explosions. At this time, it is estimated that there were 47 fatalities. /2/ There was also extensive damage to the town, and approximately 2,000 people were evacuated from the surrounding area.
FOOTNOTE 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. END FOOTNOTE
2. Response
In response to this accident,
FOOTNOTE 3 See Emergency Directive Pursuant to Section 33 of the Railway Safety Act, Safety and Security of Locomotives in
Also on
FOOTNOTE 4 Railroads operating within
The Railway Association of
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
In direct response to the
(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/
FOOTNOTE 5 AAR has voluntarily applied EO 28 to trains that have a single PIH tank car. END FOOTNOTE
(2) A railroad must develop a process for securing unattended equipment containing Appendix A Materials that includes: (a) locking the controlling locomotive cab or removing and securing the reverser and (b) communication of pertinent securement information to the dispatcher for recordation.
(3) Each railroad must review and verify, and adjust, as necessary, existing procedures and processes related to the number of hand brakes to be set on all unattended trains and equipment.
(4) Each railroad must require a job briefing addressing securement for any job that will impact or require the securement of any equipment in the course in the course of the work being performed.
(5) Each railroad must ensure that a qualified railroad employee inspects all equipment that any emergency responder has been on, under, or between for proper securement before the train or vehicle is left unattended.
(6) Each railroad must provide notice to all employees affected by Emergency Order 28.
See 78 FR 48224 (
Additionally, FRA and the
FOOTNOTE 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. END FOOTNOTE
On
B. Safety Concerns Arising Out of the Lac-Megantic Derailment and Other Train Incidents Involving Flammable Liquids and Gases and Poison Inhalation Hazard Materials
The vast majority of hazardous materials shipped by rail each year arrive at their destinations safely and without incident. Indeed, in calendar year 2013, there were only 18 accidents in which a hazardous material was released (involving a total of 78 cars) out of approximately 1.6 million shipments of hazardous material transported in rail tank cars in
FOOTNOTE 7 As an example, MMA formerly operated in both
FOOTNOTE 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. END FOOTNOTE
The MMA train in the
FOOTNOTE 9 See AAR's
All indications from the
FOOTNOTE 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. END FOOTNOTE
As demonstrated by the
On
On
FOOTNOTE 11 This derailment currently is being investigated by the
FOOTNOTE 12 See id. END FOOTNOTE
Also, on
The dangers related to crude oil trains are not necessarily unique. They also exist with other hazardous materials such as ethanol, which is another flammable liquid that is commonly transported in large quantities by rail. In 2012, more carloads of ethanol were transported via rail than any other hazardous material. The railroads experienced an increase in ethanol traffic of 442 percent between 2005 and 2010. Although in 2013 the number of carloads dropped by 10 percent from 2010 levels, there were still approximately 297,000 carloads transported by rail. Since 2009, there have been at least 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:
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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:
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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
FOOTNOTE 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. END FOOTNOTE
FOOTNOTE 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. END FOOTNOTE
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,
* 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).
FRA has also issued guidance documents interpreting these regulations. For instance, on
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
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,
D. Emergency Order 28 and Related Guidance
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E. RSAC Overview
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* Safe Travel America (STA);
* Secretaria de Comunicaciones y Transporte;*
* SMART Transportation Division (SMART TD);
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* Indicates associate, non-voting membership.
When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. The working group may establish one or more task forces or other subgroups to develop facts and options on a particular aspect of a given task. The task force, or other subgroup, reports to the working group. If a working group comes to consensus on recommendations for action, the package is presented to RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, and because the RSAC recommendation constitutes the consensus of some of the industry's leading experts on a given subject, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goals, is soundly supported, and is in accordance with applicable policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA resolves the issue(s) through traditional rulemaking proceedings or other action.
The RSAC convened an emergency session on
In addition to FRA, the following organizations contributed members to the SWG:
* AAR, including members from
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* API;
* APTA, including members
* ASLRRA, including members from
* ASRSM, including members from
* ATDA;
* BLET;
* BMWED;
* BRS;
* IAM;
* NRC, including members from
* NTSB;
* PHMSA;
* RSI;
* SMART TD;
* TCIU/BRC;
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* TWU.
The SWG convened subsequently on
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. 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.
FOOTNOTE 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.
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
FRA proposes changing the term "yard limits" to "yard" without any change to its definition, with concurrent changes from "yard limits" to "yard" in
Section 232.103 General Requirements for all Train Brake Systems
As previously noted, FRA is proposing to move the definition of "unattended equipment" to
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.
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 locomotive, a car, or a train whether or not locomotive is attached). FRA further proposes to remove the phrase "on a grade," as such a requirement is arguably superfluous and confusing. Perfectly level track is rare, and there is still a risk of unattended movement caused by numerous factors, such as a mistake in the location or length of the level track, the effect of extreme weather, or an impact from other equipment. Moreover, the phrase "on a grade" has led some to the erroneous conclusion that hand brakes must only be applied if the equipment is left on a grade. While grade is likely a factor in determining the number of hand brakes that would sufficiently hold unattended equipment, it is not a factor in determining whether hand brakes should be applied at all. Accordingly, FRA proposes that the language be modified to make clearer that the hand brake application requirement is universal, regardless of grade.
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
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 (
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. 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. 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). 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 currently treating mainline track that runs through a yard under Emergency Order 28. In proposing this change, FRA intends only to cover those tracks that are immediately adjacent to the yard and that are in close enough proximity to the yard that the adjacent tracks share the characteristics of the yard. FRA seeks comments on its treatment of tracks adjacent to the yard.
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/
FOOTNOTE 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. END FOOTNOTE
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. 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. 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.
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 the railroad allows the reverser to be stored merely out of plain sight.
In most instances, FRA would consider a locomotive with an ineffective locking mechanism to be noncompliant with paragraph (n)(8)(ii) if the locomotive is left unattended with the reverser remaining in the control stand. FRA recognizes that there may be 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. 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
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. 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.
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
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
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 will repair the locking mechanism at the time of the periodic inspection. Alternatively, if the same situation were to arise but the periodic inspection was scheduled to occur 45 days later, the railroad would be expected to repair the locking mechanism prior to the time of the periodic inspection to comply with the 30-day time limit in paragraph (h)(3).
For the purposes of this regulation, "operative" means that, when applied, the locking mechanism will reasonably be expected to keep unauthorized people from gaining access into a locomotive while the locomotive is unoccupied. However, in doing so, the railroad must assure that ingress and egress is provided for in normal circumstances and emergencies. 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
IV. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures</p>
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 (
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: GOES
Discounted value Discount factor Discounted values 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
FOOTNOTE 17 Information regarding oil and gas production is available at the following URL: http://www.eia.gov/petroleum/drilling/#tabs-summary-2. END FOOTNOTE
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
FOOTNOTE 18 See "The Transportation of Hazardous Materials: Insurance, Security, and Safety Costs," DOT Report to
FRA believes that the failure to secure equipment decreases the safe transportation of goods by rail, and increases the possibility of a higher-consequence event, particularly when dealing with a key train transporting a material such as crude oil. It is difficult to assess how much of the decrease in safety is from railroads not requiring their employees to secure equipment or from employees failing to comply with railroad securement requirements. The
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
Proposed changes to
Proposed SEC 232.103(n)(6) lists types of trains and equipment covered by proposed
Proposed SEC 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 SEC 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.
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. 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
Proposed SEC 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. 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
Proposed SEC 232.103(n)(8)(ii) requires that the controlling locomotive cab of a freight train described in paragraph (n)(6) shall be locked on locomotives capable of being locked or the reverser on the controlling locomotive shall be removed from the control stand and placed in a secured location. In the case of a locomotive with an operative lock, the compliance will simply be locking the lock. Railroads all require their employees to lock unattended locomotives equipped with operative locks, for both safety and security reasons. This provision of the proposed rule codifies current business practices, and creates no new benefits or costs. Under proposed
* A railroad could remove the reverser; almost all locomotives can idle with the reverser removed, except in very cold weather;
* A railroad could attend the locomotive, which could involve either placing a qualified individual aboard the locomotive while it stands, or boarding a new crew and having the new crew continue moving the train toward its destination. The most economical way to accomplish this would be to board a new crew and take the train further along its route. The railroad was going to have to call a crew to move the train on its route anyway, so if the railroad has sufficient time to call a new crew, generally two hours, the railroad would call a crew earlier than originally planned. Dispatchers continually adjust the flow of trains, and adding a single train earlier than originally planned would have little effect on operations in almost all cases. If the train is already close to its destination this would not be practical if the consignee unloading or transfer operation were not available, or if the train could not proceed for some other reason, such as track congestion or blockage, the railroad would not simply board the next crew and the railroad would have to comply by some other means;
* A railroad could arrange for the train to stop in a yard, or on a main track in or adjacent to a yard. This might involve having the dispatcher expedite the train so it can make a yard further along its route, which might have 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
FOOTNOTE 19 In an analysis of the safety of HHFTs, PHMSA estimates that there are 150 trains per day. FRA's estimate of 1,000 trains per day is conservative. END FOOTNOTE
FOOTNOTE 20 FRA assumes that railroads will fix locks in or adjacent to the first yard available, as a business practice, and will leave any unattended trains in yards locked. END FOOTNOTE
FOOTNOTE 21 Taking the train further along its route is the least costly method of attending a train. The railroad is obligated to provide a crew to move the train further along its route anyway, and train crews are on call. Once the train gets to the first yard on its path, the lock will be repaired. Unloading facilities are not part of the railroad, and FRA does not regulate securement at unloading facilities, which are subject instead to PHMSA regulations. END FOOTNOTE
Trains per year:
Affected by the proposed rule: 365,000
No planned stop outside yards (90 percent of 365,000): 328,500
Planned stop outside yards (365,000-328,500): 36,500
Defective lock and planned stop outside yard (36,500/500): 73
Removing reverser provides compliance (50 percent of 73): 36.5
Further action needed (73-36.5): 36.5
Sent on to next yard or destination: 26.5
Remedial action must be taken: 10 /22/
FOOTNOTE 22 FRA requests comment on the number of cases per year where remedial action would be required, and on the assumptions relied upon to estimate that number. END FOOTNOTE
FRA believes that in half the cases remaining (five cases), the railroad will repair or replace the lock, and in the other half (also five cases), the railroad will have personnel attend a standing train. The railroad may repair or replace the lock, in which case the cost is the additional cost of repairing the lock outside of a yard. A railroad using AAR standard locks may attach an additional locking mechanism, not compliant with AAR standards until the AAR standard lock can be replaced. This appears to be the lowest cost means of complying with the rule. If a hasp is present, the railroad may have provided the crew with a spare lock, in which case the cost is negligible, two of the five cases per year. If a hasp is not present, the railroad may have repair personnel locate to the train, estimated at an average cost of
FOOTNOTE 23
FRA estimates the cost to switch locomotives at
FRA estimates the cost to attend a standing train at
FOOTNOTE 24 STB wage data show that the average compensation for personnel engaged in Train, Yard and Engine was
In summary of the foregoing costs associated with locomotive locks, FRA believes the likely responses to inoperative locking mechanisms, where the railroad cannot simply remove a reverser or move the train, will break down as follows: GOES
Approach taken Unit cost Frequency Annual total cost Place Lock in Existing Hasp$0.00 2$0.00 Install New Hasp and Lock 311.20 1 311.20 Replace Existing Lock 211.20 2 422.40 Attend Train 470.00 5 2,350.00 Total (25M) 3,083.60
The total cost imposed by proposed section 232.103(n)(8)(ii) would be
FOOTNOTE 25 Rounds to
To more accurately annualize these costs, however, FRA must also consider the direct wage portion of the costs attending trains and provide for annual real wage increases. Of the aforementioned burdened wage rate,
FOOTNOTE 26 Based on real wage growth forecasts from the
FRA compiled the following summary table, using initial annual costs of
Discounted value Discount factor Year Wage Direct All other Total 7% 3% inflator wage cost costs costs (percent) 2015 101.18$1,315.34 $1,800 $3,115.34 $3,115 $3,115 2016 102.37 1,330.86 1,800 3,130.86 2,926 3,040 2017 103.58 1,346.57 1,800 3,146.57 2,748 2,966 2018 104.80 1,362.45 1,800 3,162.45 2,582 2,894 2019 106.04 1,378.53 1,800 3,178.53 2,425 2,824 2020 107.29 1,394.80 1,800 3,194.80 2,278 2,756 2021 108.56 1,411.26 1,800 3,211.26 2,140 2,689 2022 109.84 1,427.91 1,800 3,227.91 2,010 2,625 2023 111.14 1,444.76 1,800 3,244.76 1,888 2,561 2024 112.45 1,461.81 1,800 3,261.81 1,774 2,500 2025 113.77 1,479.06 1,800 3,279.06 1,667 2,440 2026 115.12 1,496.51 1,800 3,296.51 1,566 2,381 2027 116.47 1,514.17 1,800 3,314.17 1,472 2,324 2028 117.85 1,532.04 1,800 3,332.04 1,383 2,269 2029 119.24 1,550.11 1,800 3,350.11 1,299 2,215 2030 120.65 1,568.40 1,800 3,368.40 1,221 2,162 2031 122.07 1,586.91 1,800 3,386.91 1,147 2,111 2032 123.51 1,605.64 1,800 3,405.64 1,078 2,060 2033 124.97 1,624.58 1,800 3,424.58 1,013 2,012 2034 126.44 1,643.75 1,800 3,443.75 952 1,964 Total 36,685 49,909 Annualized 3,236 3,257
Proposed SEC 232.103(n)(8)(ii) also provides a direct safety benefit of this rulemaking. Only about 36.5 trains per year are likely to be affected, as described above. FRA believes that in the absence of this rulemaking all locomotives would be equipped with locks as a business practice, as described below. FRA believes that as a business practice, the locomotives that can be locked will be locked, and the remaining locomotives that have reversers that can be removed that are not left running would have their reversers removed and secured. FRA believes that trains left running with reversers in place are the most vulnerable to serious harm as a result of casual mischief. It is possible that a vandal moving a reverser in an unattended running locomotive could cause a higher-consequence event, given the kinds of materials regulated here. Further, individuals who believe they are doing some good--for example first responders who believe the train is in a dangerous location--may also be tempted to try to move the train. If they lack proper skills, this movement creates a risk. FRA does not have a good way to estimate the likelihood of a serious event from such a small number of affected trains; however, given the kinds of trains involved, FRA finds that the costs are justified by the benefits of risk reduction.
Proposed SEC 232.103(n)(8)(iii) provides an exception for trains left unattended on main tracks in or adjacent to yards, and does not change burdens from Emergency Order 28. The communication requirement in proposed
One requirement of Emergency Order 28 that is not included in the proposed rule is a requirement that employees who are responsible for securing trains and vehicles transporting Appendix A Materials must communicate to the train dispatcher the number of hand brakes applied, the tonnage and length of the train or vehicle, the grade and terrain features of the track, any relevant weather conditions, and the type of equipment being secured; train dispatchers must record the information provided; and train dispatchers or other qualified railroad employees must verify and confirm with the train crew that the securement meets the railroad's requirements. The proposed rule includes verification procedures but does not include the recordkeeping required by Emergency Order 28. FRA's Paperwork Reduction Act analysis of the recordkeeping requirements shows the annual burden at 867 hours to notify the dispatcher to make the record, and an additional 867 hours to make the record. FRA estimates that there will be an average of 26,000 communications (100 instances on 260 days per year) to dispatchers triggering the recording requirement, which takes an average of four minutes to complete, for a total of 1,734 hours. If the value of the employees' time is
Proposed SEC 232.105(h) requires, after
FRA believes that the reason Class I and Class II railroads have just recently started installing locking mechanisms on their locomotives is that until recently there was no standard for keying the locking mechanisms. Locomotives of these railroads operate in interchange service and can move from railroad to railroad. If each railroad had to maintain a set of keys for all other railroads' locomotives, that would have been cumbersome. The recent, common keyed, industry standard provides a solution, and allows the business practice of installing locking mechanisms to proceed.
FRA believes that, for smaller railroads, locking locomotive cabs is a good business practice that already takes place because it avoids vandalism and locomotive cab intruders. Several reports indicate that a locomotive belonging to the
FOOTNOTE 27 Adirondack Scenic Railroad Locomotive Vandalized,
The unit cost for a locking mechanism meeting AAR standard S-5520 is
FRA believes that no more than 500 locomotives belonging to Class III railroads lack locking mechanisms that comply with proposed
Based on anecdotal information from FRA staff, between 1 percent and 3 percent of locomotives are vandalized each year. Some vandalism is relatively minor, such as graffiti sprayed on the walls of the cab, but some is much more serious, for example damage or removal of electrical equipment, or of instruments. More modern cabs have very expensive control systems, with one or more monitor screens. It would not be difficult for vandals to cause more than
Locomotive cabs are also occupied by unauthorized occupants, usually homeless, from time to time. Based on staff anecdotal data, FRA assumes that five percent of locomotive cabs are occupied at least once per year. FRA believes that the cost per incident is
FOOTNOTE 28 PHMSA's proposed rule "Hazardous Materials: Enhanced Rail Tank Car Standards and Operational Controls for High-Hazard Flammable Trains" applies a
FRA assumes the locks will be purchased in the first year, because the business benefit is apparent. Thus, the costs are
Discounted value Discount factor Year Total costs 7% 3% 2015$50,000.00 $50,000 $50,000 Total 50,000.00 50,000 50,000 Annualized 4,411 3,263
A more serious crime with far more potential to cause harm off the railroads' rights-of-way is theft and operation of a train. In 1975, two teenagers stole a switching locomotive and operated it until it crashed. /29/ FRA staff has received anecdotal information regarding other locomotives being stolen and operated, but permanent records of the incidents could not be found. If a train described in proposed
FOOTNOTE 29 Pierce Haviland, The Putnam Division, last updated
In estimating the damages of a higher-consequence event, we begin with the current estimated damages of
By installing locks to avoid such dangers, the benefits indicated in the following table are
Discounted value Discount factor Year Total 7% 3% benefits 2015$0.00 $0 $0 2016 17,500.00 16,355 16,990 2017 17,500.00 15,285 16,495 2018 17,500.00 14,285 16,015 2019 17,500.00 13,351 15,549 2020 17,500.00 12,477 15,096 2021 17,500.00 11,661 14,656 2022 17,500.00 10,898 14,229 2023 17,500.00 10,185 13,815 2024 17,500.00 9,519 13,412 2025 17,500.00 8,896 13,022 2026 17,500.00 8,314 12,642 2027 17,500.00 7,770 12,274 2028 17,500.00 7,262 11,917 2029 17,500.00 6,787 11,570 2030 17,500.00 6,343 11,233 2031 17,500.00 5,928 10,905 2032 17,500.00 5,540 10,588 2033 17,500.00 5,178 10,279 2034 17,500.00 4,839 9,980 Total 180,873 250,666 Annualized 15,956 16,358
In addition to the above noted benefits, the proposed rule itself reduces costs--by removing the requirement to record securement activities provided under Emergency Order 28--by
Discounted value Discount factor Year Total 7% 3% benefits 2015$86,700.00 $86,700 $86,700 2016 86,700.00 81,028 84,175 2017 86,700.00 75,727 81,723 2018 86,700.00 70,773 79,343 2019 86,700.00 66,143 77,032 2020 86,700.00 61,816 74,788 2021 86,700.00 57,772 72,610 2022 86,700.00 53,992 70,495 2023 86,700.00 50,460 68,442 2024 86,700.00 47,159 66,448 2025 86,700.00 44,074 64,513 2026 86,700.00 41,191 62,634 2027 86,700.00 38,496 60,810 2028 86,700.00 35,977 59,038 2029 86,700.00 33,624 57,319 2030 86,700.00 31,424 55,649 2031 86,700.00 29,368 54,029 2032 86,700.00 27,447 52,455 2033 86,700.00 25,651 50,927 2034 86,700.00 23,973 49,444 Total 982,796 1,328,573 Annualized 86,700 86,700
FRA calculated the total monetized costs of the rule, with the costs for locomotive lock installation accounted for only for the first year:
Discounted value Discount factor Year Wage Direct All other Total 7% 3% inflator wage cost costs costs (percent) 2015 101.18$1,315.34 $51,800 $$53,115 $53,115 53,115.34 2016 102.37 1,330.86 1,800 3,130.86 2,926 3,040 2017 103.58 1,346.57 1,800 3,146.57 2,748 2,966 2018 104.80 1,362.45 1,800 3,162.45 2,582 2,894 2019 106.04 1,378.53 1,800 3,178.53 2,425 2,824 2020 107.29 1,394.80 1,800 3,194.80 2,278 2,756 2021 108.56 1,411.26 1,800 3,211.26 2,140 2,689 2022 109.84 1,427.91 1,800 3,227.91 2,010 2,625 2023 111.14 1,444.76 1,800 3,244.76 1,888 2,561 2024 112.45 1,461.81 1,800 3,261.81 1,774 2,500 2025 113.77 1,479.06 1,800 3,279.06 1,667 2,440 2026 115.12 1,496.51 1,800 3,296.51 1,566 2,381 2027 116.47 1,514.17 1,800 3,314.17 1,472 2,324 2028 117.85 1,532.04 1,800 3,332.04 1,383 2,269 2029 119.24 1,550.11 1,800 3,350.11 1,299 2,215 2030 120.65 1,568.40 1,800 3,368.40 1,221 2,162 2031 122.07 1,586.91 1,800 3,386.91 1,147 2,111 2032 123.51 1,605.64 1,800 3,405.64 1,078 2,060 2033 124.97 1,624.58 1,800 3,424.58 1,013 2,012 2034 126.44 1,643.75 1,800 3,443.75 952 1,964 Total 86,685 99,909 Annualized 7,647 6,520
FRA calculated the total monetized benefits of the rule, which includes savings from relief of Emergency Order 28's recordation requirement for each year plus savings provided each year from the use of locomotive locks after the first year of installation: GOES
Discounted value Discount factor Year Total 7% 3% benefits 2015$86,700.00 $86,700 $86,700 2016 104,200.00 97,383 101,165 2017 104,200.00 91,012 98,218 2018 104,200.00 85,058 95,358 2019 104,200.00 79,494 92,580 2020 104,200.00 74,293 89,884 2021 104,200.00 69,433 87,266 2022 104,200.00 64,891 84,724 2023 104,200.00 60,645 82,256 2024 104,200.00 56,678 79,861 2025 104,200.00 52,970 77,535 2026 104,200.00 49,505 75,276 2027 104,200.00 46,266 73,084 2028 104,200.00 43,239 70,955 2029 104,200.00 40,411 68,888 2030 104,200.00 37,767 66,882 2031 104,200.00 35,296 64,934 2032 104,200.00 32,987 63,043 2033 104,200.00 30,829 61,207 2034 104,200.00 28,812 59,424 Total 1,163,669 1,579,240 Annualized 102,656 103,058
Summary of the Costs and Benefits
To summarize the above identified costs and benefits, FRA tabulated the contributions of each item to the total discounted costs and benefits over 20 years. GOES
Discounted value Discount factor Discounted values 7% 3% Costs: Attending Trains$36,685 $49,909 Installing Locks 50,000 50,000 Total Costs 86,685 99,909 Benefits: Reduced Vandalism 180,873 250,666 Reduced Recordkeeping 982,786 1,328,573 Total Benefits 1,163,669 1,579,240
For further distillation, FRA calculated the net benefits over 20 years: GOES
Discounted value Discount factor Discounted values net benefits 7% 3% Total$1,076,984 $1,479,331 Annualized 95,009 96,538
FRA could eliminate Emergency Order 28, but most of the requirements of Emergency Order 28 conform to business practices of the railroads.
The costs that are not directly offset by a monetized benefit are the annual costs of either attending locomotives or expediting their repair. Above, FRA estimates the annualized cost beyond current business practices at
FOOTNOTE 30 This cost is slightly increased by the increase in value of real wages over time. END FOOTNOTE
FOOTNOTE 31 This estimate falls between the damages of
The remainder of Emergency Order 28 and the proposed rule do not impose costs beyond expected business practices. FRA believes that the business benefits of installing locking mechanisms and locking locomotive cabs return net benefits to the railroads. FRA believes that locking the locomotive cab or removing the reverser will reduce the likelihood of a higher-consequence event. FRA believes the continuing requirements from Emergency Order 28 or the requirements of the proposed rule will sever the potential causal chain of a low-probability high-consequence event. Thus, FRA rejects the alternative of simply removing Emergency Order 28.
Alternatives Considered
FRA considered as an alternative requiring all trains subject to proposed
FRA believes the proposed rule is as effective as the alternative considered, at much lower cost. Thus, FRA rejected the more restrictive alternative. FRA further believes that given the tradeoff between the certainty of relatively low costs and the benefit of very low-probability yet very high-consequence incidents, the proposed rule is a reasonable approach. FRA requests comments on all aspects of this analysis.
B. Regulatory Flexibility Act and Executive Order 13272
To ensure that the impact of this rulemaking on small entities is properly considered, FRA developed this proposed rule in accordance with Executive Order 13272 ("Proper Consideration of Small Entities in Agency Rulemaking") and DOT's policies and procedures to promote compliance with the Regulatory Flexibility Act (5 U.S.C.
The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant economic impact on a substantial number of small entities.
As discussed in the preamble above, FRA is proposing to amend regulations affecting securement of certain trains carrying particular hazardous materials in particular quantities, and requiring that cabs of all locomotives left unattended, except for those left unattended on main tracks that are in or adjacent to yards, be equipped with locking mechanisms. FRA is certifying that this proposed rule will result in "no significant economic impact on a substantial number of small entities." The following section explains the reasons for this certification.
1. Description of Regulated Entities and Impacts
The "universe" of the entities under consideration includes only those small entities that can reasonably be expected to be directly affected by the provisions of this rule. In this case, the "universe" will be Class III freight railroads that own locomotives or that have traffic including trains that would be subject to proposed
The U.S. Small Business Administration (SBA) stipulates in its "Size Standards" that the largest a railroad business firm that is "for-profit" may be, and still be classified as a "small entity," is 1,500 employees for "Line Haul Operating Railroads" and 500 employees for "Switching and Terminal Establishments." "Small entity" is defined in the Act as a small business that is independently owned and operated, and is not dominant in its field of operation. Additionally, section 601(5) defines "small entities" as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.
Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final policy that formally establishes "small entities" as railroads which meet the line haulage revenue requirements of a Class III railroad. /32/ The revenue requirements are currently
FOOTNOTE 32 See 68 FR 24891 (
FOOTNOTE 33 For further information on the calculation of the specific dollar limit, please see 49 CFR Part 1201. END FOOTNOTE
FRA believes that virtually all small railroads on the general system of rail transportation will be affected by this rule, as there are almost no railroads that do not own at least one locomotive. There are 671 small railroads on the general system of rail transportation.
As noted above, no small entities are expected to incur any costs under proposed
Further, small railroads will benefit from a reduction in recordkeeping requirements, as described above.
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the FRA Administrator certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. FRA requests comment on both this analysis and this certification, and its estimates of the impacts on small railroads.
C. Paperwork Reduction Act
The new information collection requirements in this proposed rule are being submitted for approval to the
CFR Section Respondent Total annual Average time Total annual universe responses per burden hours response 229.27--Annual 30,000 120,000 tests 15 minutes 30,000 hours. tests locomotives 232.3-- 655 railroads 8 cards 10 minutes 1 hour. Applicability-- Export, industrial, & other cars not owned by railroads- identification 232.7--Waivers 655 railroads 10 petitions 160 hours 1,600 hours. 232.15--Movement 1,620,000 cars 128,400 2.5 minutes 5,350 hours of Defective tags/records Equipment-- Tags/Records --Written 1,620,000 cars 25,000 notices 3 minutes 1,250 hours. Notification 232.17--Special Approval Procedure --Petitions for 655 railroads 1 petition 100 hours 100 hours. special approval of safety- critical revision --Petitions for 655 railroads 1 petition 100 hours 100 hours. special approval of pre-revenue service acceptance plan --Service of 655 railroads 1 petition 20 hours 20 hours. petitions --Statement of Public/ 4 statements 8 hours 32 hours. interest railroads --Comment Public/ 13 comments 4 hours 52 hours. railroads 232.103--Gen'l 114,000 cars 70,000 sticker 10 minutes 11,667 hours. requirements--all train brake systems--Stickers $G*__*Proposed Rule New Requirements %#! 232.103(n)(3)(iv) Already Fulfilled Fulfilled Fulfilled --RR Procedure Fulfilled under OMB No. under OMB No. under OMB No. for Securing under OMB No. 210-0601 210-0601 210-0601. Unattended 210-0601 Locomotive 232.103(n)(7)--RR 655 railroads 10 revised 10 hours 100 hours. Plan Identifying plans Specific Locations or Circumstances where Equipment May Be Left Unattended --Notification to 655 railroads 10 notices 30 minutes 5 hours. FRA When RR Develops and Hast Plan in Place or Modifies Existing Plan 232.103(n)(8)-- Included under Included Under Included under Included under Employee Sec. Sec. Sec. Sec. Verification with 232.103(n)(9) 232.103(n)(9) 232.103(n)(9) 232.103(n)(9). Another Qualified Employee of Securement of Freight Train or Freight Car Left Unattended 232.103(n)(9)--RR 655 railroads 491 revised 2 hours 982 hours. Implementation of rules/ Op. practices Rules/Practices Requiring Job Briefing for Securement of Unattended Equipment --Securement Job 100,000 23,400,000 job 30 seconds 195,000 hours. Briefings Employees briefings 232.103(n)(10)-- 655 railroads 100 4 hours 400 hours. RR Adoption of inspections/ Procedure for records Verification of Securement of Equipment by Qualified Employee-- Inspection of Equipment by Qualified Employee after Responder Visit 232.105--General 30,000 30,000 forms 5 minutes 2,500 hours. requirements for Locomotives locomotives-- Inspection $G*__*Proposed Rule New Requirements %#! 232.105(h)--RR 30,000 30,000 insp. 30 seconds 250 hours. Inspection of Locomotives records Locomotive Exterior Locking Mechanism/Records --RR Repair, 30,000 73 repairs/ 60.25 minutes 73 hours. where necessary, Locomotives records of Locomotive Exterior Locking Mechanism 232.107--Air 10 new 1 plan 40 hours 40 hours. source railroads requirements and cold weather operations-- Monitoring Plan (Subsequent Years) -- 50 railroads/ 10 revisions 20 hours 200 hours. Amendments/Revisi plans ons to Plan --Recordkeeping 50 railroads/ 1,150 records 20 hours 23,000 hours. plans 232.109--Dynamic 655 railroads 1,656,000 rec 4 minutes 110,400 hours. brake requirements-- status/record --Inoperative 30,000 6,358 records 4 minutes 424 hours. dynamic brakes: locomotives Repair record --Tag bearing 30,000 6,358 tags 30 seconds 53 hours. words locomotives "inoperative dynamic brakes" --Deactivated 8,000 10 markings 5 minutes 1 hour. dynamic brakes locomotives (Sub. Yrs.) --Operating rules 5 new 5 .rules 4 hours 20 hours. (Subsequent railroads Years) -- 655 railroads 15 revisions 1 hour 15 hours. Amendments/Revisi ons --Requests to 655 railroads 5 requests 30 min. + 20 103 hours. increase 5 mph hours Overspeed restriction --Knowledge 5 new 5 amendments 16 hours 80 hours. criteria-- railroads locomotive engineers-- Subsequent Years 232.111--Train 5 new 5 procedures 40 hours 200 hours. information railroads handling --Sub. Yrs.-- 100 railroads 100 revisions 20 hours 2,000 hours. Amendments/Revisi ons --Report 655 railroads 2,112,000 10 minutes 352,000 hours. requirements to reports train crew 232.203--Training 15 railroads 5 programs 100 hours 500 hours. requirements--Tr. Prog.--Sub Yr --Amendments to 655 railroads 559 revisions 8 hours 4,472 hours. written program --Training 655 railroads 67,000 record 8 minutes 8,933 hours. records --Training 655 railroads 67,000 notices 3 minutes 3,350 hours. notifications --Audit program 655 railroads 1 plan + 559 40 hours/1 49 hours. copies min. --Amendments to 655 railroads 50 revisions 20 hours 1,000 hours. validation/assess ment program 232.205--Class 1 655 railroads 1,646,000 45 seconds 20,575 hours. brake test-- notices/record Notifications/Rec ords 232.207--Class 1A 655 railroads 5 lists 1 hour 5 hours. brake tests-- Designation Lists Where Performed Subsequent Years: 655 railroads 250 notices 10 minutes 42 hours. Notice of Change to 232.209--Class II 655 railroads 1,597,400 3 seconds 1,331 hours. brake tests-- comments intermediate "Roll-by inspection-- Results to train driver 232.213--Written 83,000 long 250 letters 15 minutes 63 hours. Designation to dist. FRA of Extended movements haul trains 232.303--General 1,600,000 5,600 tags 5 minutes 467 hours. requirements-- frgt. cars single car test: Tagging of Moved Equipment --Last repair 1,600,000 320,000 5 minutes 26,667 hours. track brake frgt. cars markings test/single car test--Stenciled on Side of Equipment 232.305--Single 1,600,000 320,000 60 minutes 320,000 hours. Car Tests-- frgt. cars tests/records Performance and Records 232.307-- AAR 1 request + 3 100 hours + 5 100 hours. Modification of copies minutes single car air brake test procedures: Requests --Affirmation AAR 1 statement + 30 minutes + 5 1 hour. Statement on Mod. 4 copies minutes Req. To Employee Representatives --Comments on Railroad/ 2 comments 8 hours 16 hours. Modification Public Request 232.309--Repair 640 shops 5,000 tests 30 minutes 2,500 hours. track brake test 232.403--Unique 245 railroads 12 requests 5 minutes 1 hour. Code 232.407--EOT 245 railroads 50,000 verbal 30 seconds 417 hours. Operations comments requiring 2-way Voice Radio Communications 232.409-- 245 railroads 447,500 30 seconds 3,729 hours. Inspection/Tests/ tests/notices/ Records EOTs record --Telemetry 245 railroads 32,708 units 1 minute 545 hours. Equipment-- marked Testing and Calibration 232.503--Process 655 railroads 1 letter 1 hour 1 hour. to introduce new brake technology --Special 655 railroads 1 request 3 hours 3 hours. approval 232.505--Pre- revenue svc accept. test plan --Submission of 655 railroads 1 procedure 160 hours 160 hours. maintenance procedure --Amendments to 655 railroads 1 revision 40 hours 40 hours. maintenance procedure --Design 655 railroads 1 petition 67 hours 67 hours. description --Report to FRA 655 railroads 1 report 13 hours 13 hours. Assoc. Admin. for Railroad Safety --Brake system 655 railroads 1 description 40 hours 40 hours. technology testing 232.603-- 4 railroads 1 plan 160 hours 160 hours. Configuration Management-- Configuration Management Plan (ECP) --Subsequent 4 railroads 1 plan 60 hours 60 hours. Years-- Configuration Management Plans --Request for 4 railroads 1 request + 2 8 hours + 5 8 hours. Modification of copies minutes Standards and Extra Copies to FRA --Affirmative 4 railroads 4 statements + 60 minutes + 5 6 hours. Statements that 24 copies minutes RRs have served copies of Modification Request to Employee Representatives --Comments on Public/ 4 comments 2 hours 8 hours. requested Industry modification 232.605--ECP 1 railroad 1 program 100 hours 100 hours. Brakes: Training-- Adopt/Developing an ECP Training Program--First Year --Subsequent 1 railroad 1 program 100 hour 100 hours. Years--ECP Training Prog --ECP Brakes 1 railroad 1,602 trained 8 hours/24 26,480 hours. Training of employees hrs. Employees--First Year --ECP Brakes 2 railroads 1,602 trained 1 hour/8 hours 7,580 hours. Training of employees Employees-- Subsequent Years --ECP Training 2 railroads 1,602 records 8 minutes 214 hours. Records--Yr. One --ECP Training 2 railroads 1,602 records 4 minutes 107 hours. Records-- Subsequent Yrs --Assessment of 2 railroads 1 ECP plan 40 hours 40 hours. ECP Training Plan --Adopt Operating 2 railroads 1 Oper. Rule 24 hours 24 hours. Rules for ECP Brakes --Amended 2 railroads 1 amended 40 hours 40 hours. Locomotive programs Engineer Certification Program (ECP Brakes) 232.607--ECP 1 railroad 2,500 insp.+ 90 min. + 45 3,781 hours. Inspection and 2,500 notices seconds Testing--Initial Terminal-- Inspections and Notification/Reco rd of Class I Brake Tests --Cars added or 1 railroad 250 inspection 60 minutes + 253 hours. removed en + 125 notices 45 seconds route--Class I Brake Test and Notification --Non-ECP cars 200 Cars 50 insp.+ 100 5 minutes + 8 hours. added to ECP tags/records 2.5 minutes Trains-- Inspections and Tags for Defective Cars 232.609--Handling 25 Cars 50 2.5 minutes 2 hours. of Defective tags/records Equipment with ECP Brake Systems--Freight Car w/defective conventional brakes moved in train operating in ECP brake mode -- 20 Cars 20 insp. + 40 5 minutes + 3 hours. Inspections/Taggi tags/records 2.5 minutes ng for ECP Train moving w/less than 85 percent operative/effecti ve brakes --Cars tagged in 25 Cars 50 2.5 minutes 2 hours. accordance with tags/records Section 232.15 232.609-- 50 Cars 100 2.5 minutes 4 hours. Conventional tags/records Train with stand- alone ECP brake equipped cars-- Tagging --Procedures for 2 railroads 2 procedures 24 hours 48 hours. handling ECP brake system repairs and designation of repair locations --List of repair 2 railroads 2 lists 8 hours 16 hours. locations --Notification to 2 railroads 1 notification 1 hour 1 hour. FRA Safety Administrator regarding change to repair location list 232.611--Periodic 500 Freight 500 insp./rcds 10 minutes 83 hours. Maintenance-- Cars Inspections before being released from repair Shop -- 1 Railroad 1 petition + 2 24 hours + 5 24 hours. Procedures/Petiti Rep. copies minutes on for ECP Single Car Test --Single Car Air 50 Freight 50 45 minutes 38 hours. Brake Tests-- Cars tests/records Records --Modification of 1 Railroad 1 mod. Proc. 40 hours 40 hours. Single Car Test Rep. Standards
The new requirements of the proposed rule essentially duplicate those already approved by OMB for Emergency Order No. 28 (under OMB No. 2130-0601). When this instant rule becomes final (assuming no changes from proposed to final rule) and the information collection associated with it is approved by OMB (under OMB No. 2130-0008), FRA will discontinue OMB No. 2130-0601 and eliminate the 205,404 hour burden associated with it from the OMB inventory. Thus, the FRA total burden in OMB's inventory then will actually show a net reduction of 24,520 hours from the present inventory.
As reflected in the below table, program changes will have increased the number of burden hours by 196,810 hours, and increased the number of responses by 23,430,684. The current inventory shows a burden total of 991,451 hours, while the present submission exhibits a burden total of 1,172,335 hours. Hence, there is a total burden increase of 180,884 hours for this information collection request.
Accordingly here is the table for program changes:
CFR Section Responses & Responses & Burden hours FRA burden Difference avg. time avg. time (previous hours (plus/minus) (previous (this submission) (this submission) submission) submission) 232.103(n) 0 revised 10 revised 0 hours 100 hours +100 hours (7)--RR Plan plans plans +10 identifying 0 hours 10 hours responses. specific locations where equipment may be left unattended -- 0 notices 10 notices 0 hours 5 hours +5 hours Notification 0 minutes 30 minutes +10 to FRA when responses. RR develops & has plan in place or modifies existing plan --(n)(9)-- 0 revised 491 revised 0 hours 982 hours +982 hours Railroad rules/ rules/ +491 resp. Implemen- practices practices tation of 0 hours 2 hours operating rules requiring job briefing for securing unattended trains 232.103(n) 0 job 23,400,000 0 hours 195,000 +195,000 (9)-- briefings job hours hrs. Securement 0 seconds briefings +23,400,000 Job 30 seconds responses. Briefings --(n)(10)-- 0 100 0 hours 400 hours +400 hours Inspection inspections inspections +100 resp. of equipment 0 hours 4 hours after emergency responder visit 232.105(h)-- 0 30,000 0 hours 250 hours +250 hours RR inspections inspections/ +30,000 inspection 0 seconds records resp. of exterior 30 seconds locking mechanism on locomotive left unattended outside a yard --RR repair, 0 73 0 hours 73 hours +73 hours where repairs/ repairs/ +73 necessary, record records responses. of 0 minutes 60.25 locomotive minutes exterior locking mechanism
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr.
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr.
OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the
FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the
D. Federalism
Executive Order 13132, "Federalism" (64 FR 43255,
This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that the proposed rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined that this proposed rule does not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This rule adds requirements to part 232. FRA is not aware of any State having regulations similar to these proposals. However, FRA notes that this part could have preemptive effect by the operation of law under a provision of the former Federal Railroad Safety Act of 1970, repealed, revised, reenacted, and codified at 49 U.S.C. 20106 (Sec. 20106). Sec. 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the "essentially local safety or security hazard" exception to Sec. 20106. In addition, section 20119(b) authorizes FRA to issue a rule governing the discovery and use of risk analysis information in litigation.
In sum, FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws under 49 U.S.C. 20106 and 20119. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required.
E. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of
F. Environmental Assessment
FRA has evaluated this rule in accordance with its "Procedures for Considering Environmental Impacts" (FRA's Procedures) (64 FR 28545,
* * * (20) Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation."
In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this proposed regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this rule is not a major Federal action significantly affecting the quality of the human environment.
G. Unfunded Mandates Reform Act of 1995
Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency "shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law)." Section 202 of the Act (2 U.S.C. 1532) further requires that "before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of
H. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any "significant energy action." 66 FR 28355,
I. Privacy Act
Interested parties should be aware that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
List of Subjects in 49 CFR Part 232
Hazardous material, Power brakes, Railroad safety, Securement.
The Proposed Rule
In consideration of the foregoing, FRA is proposing to amend part 232 of chapter II, subtitle B of title 49, Code of Federal Regulations as follows:
PART 232--[AMENDED]
1. The authority citation for part 232 is revised to read as follows:
Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-20303, 20306, 21301-20302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.89.
2. Section 232.5 is amended by adding in alphabetical order the definition of "Unattended equipment", by removing the word "limits" from the term "Yard limits", and by moving the newly designated definition of "Yard" before the definition of "Yard air" to read as follows:
* * * * *
Unattended equipment means equipment left standing and unmanned in such a manner that the brake system of the equipment cannot be readily controlled by a qualified person.
* * * * *
Yard * * *
3. Amend
a. Revising paragraphs (n) introductory text and (n)(1) through (3).
b. Adding paragraphs (n)(6) through (10).
The revisions and additions read as follows:
* * * * *
(n) Securement of unattended equipment. Unattended equipment shall be secured in accordance with the following requirements:
(1) A sufficient number of hand brakes, to be not fewer than one, shall be applied to hold the equipment unless an acceptable alternative method of securement is provided. Railroads shall develop and implement a process or procedure to verify that the applied hand brakes will sufficiently hold the equipment with the air brakes released.
(2) Except for equipment connected to a source of compressed air (e.g., locomotive or ground air source), prior to leaving equipment unattended, the brake pipe shall be reduced to zero at a rate that is no less than a service rate reduction, and the brake pipe vented to atmosphere by leaving the angle cock in the open position on the first unit of the equipment left unattended. A train's air brake shall not be depended upon to hold equipment standing unattended (including a locomotive, a car, or a train whether or not locomotive is attached).
(3) Except for distributed power units, the following requirements apply to unattended locomotives:
(i) All hand brakes shall be fully applied on all locomotives in the lead consist of an unattended train.
(ii) All hand brakes shall be fully applied on all locomotives in an unattended locomotive consist outside of a yard.
(iii) At a minimum, the hand brake shall be fully applied on the lead locomotive in an unattended locomotive consist within a yard.
(iv) A railroad shall develop, adopt, and comply with procedures for securing any unattended locomotive required to have a hand brake applied pursuant to paragraph (n)(3)(i) through (n)(3)(iii) of this section when the locomotive is not equipped with an operative hand brake.
* * * * *
(6)(i) The requirements in paragraph (n)(7) through (n)(8) of this section apply to any freight train or standing freight car or cars that contain:
(A) Any loaded freight car containing a material poisonous by inhalation as defined in
(B) Twenty (20) or more loaded cars or loaded intermodal portable tanks of any one or any combination of a hazardous material listed in paragraph (n)(6)(i)(A), or any Division 2.1 (flammable gas), Class 3 (flammable or combustible liquid), Class 1.1 or 1.2 (explosive), or a hazardous substance listed at
(ii) For the purposes of this paragraph, a tank car containing a residue of a hazardous material as defined in
(7)(i) No equipment described in paragraph (n)(6) of this section shall be left unattended on a main track or siding (except when that main track or siding runs through, or is directly adjacent to a yard) until the railroad has adopted and is complying with a plan identifying specific locations or circumstances when the equipment may be left unattended. The plan shall contain sufficient safety justification for determining when equipment may be left unattended. The railroad must notify FRA when the railroad develops and has in place a plan, or modifies an existing plan, under this provision prior to operating pursuant to the plan. The plan shall be made available to FRA upon request. FRA reserves the right to require modifications to any plan should it determine the plan is not sufficient.
(ii) Except as provided in paragraph (n)(8)(iii) of this section, any freight train described in paragraph (n)(6) of this section that is left unattended on a main track or siding that runs through, or is directly adjacent to a yard shall comply with the requirements contained in paragraphs (n)(8)(i) and (n)(8)(ii) of this section.
(8)(i) Where a freight train or standing freight car or cars as described in paragraph (n)(6) of this section is left unattended on a main track or siding outside of a yard, and not directly adjacent to a yard, an employee responsible for securing the equipment shall verify with another person qualified to make the determination that the equipment is secured in accordance with the railroad's processes and procedures.
(ii) The controlling locomotive cab of a freight train described in paragraph (n)(6) of this section shall be locked on locomotives capable of being locked. If the controlling cab is not capable of being locked, the reverser on the controlling locomotive shall be removed from the control stand and placed in a secured location.
(iii) A locomotive that is left unattended on a main track or siding that runs through, or is directly adjacent to, a yard is excepted from the requirements in (n)(8)(ii) of this section where the locomotive is not equipped with an operative lock and the locomotive has a reverser that cannot be removed from its control stand or has a reverser that is necessary for cold weather operations.
(9) Each railroad shall implement operating rules and practices requiring the job briefing of securement for any activity that will impact or require the securement of any unattended equipment in the course of the work being performed.
(10) Each railroad shall adopt and comply with procedures to ensure that, as soon as safely practicable, a qualified employee verifies the proper securement of any unattended equipment when the railroad has knowledge that a non-railroad emergency responder has been on, under, or between the equipment.
* * * * *
4. Add paragraph (h) to
* * * * *
(h)(1) After
(2) The railroad shall inspect and, where necessary, repair the locking mechanism during a locomotive's periodic inspection required in
(3) In the event that a locking mechanism becomes inoperative during the time interval between periodic inspections, the railroad must repair the locking mechanism within 30 days of finding the inoperative lock.
(4) A railroad may continue the use of a locomotive without an operative locking mechanism; however, if the controlling locomotive of a train meeting the requirements of
* * * * *
Administrator.
[FR Doc. 2014-21253 Filed 9-8-14;
BILLING CODE 4910-06-P
Copyright: | (c) 2014 Federal Information & News Dispatch, Inc. |
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