
[Federal Register: September 27, 2010 (Volume 75, Number 186)]
[Rules and Regulations]               
[Page 59108-59118]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27se10-26]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 236

[Docket No. FRA-2008-0132, Notice No. 4]
RIN 2130-AC03

 
Positive Train Control Systems

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

ACTION: Final rule amendments.

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SUMMARY: FRA is issuing amendments to the final rule regarding the 
development, testing, implementation, and use of Positive Train Control 
(PTC) systems for railroads as mandated by the Rail Safety Improvement 
Act of 2008. With publication of the final rule on January 15, 2010, 
FRA sought further comment on certain specific issues. These amendments 
are being made partially in response to the applicable comments filed 
and to further clarify certain provisions of the final rule.

DATES: The amendments to the final rule are effective November 26, 
2010.

FOR FURTHER INFORMATION CONTACT: Thomas McFarlin, Office of Safety 
Assurance and Compliance, Staff Director, Signal & Train Control 
Division, Federal Railroad Administration, Mail Stop 25, West Building 
3rd Floor, Room W35-332, 1200 New Jersey Avenue, SE., Washington, DC 
20590 (telephone: 202-493-6203) (e-mail: Thomas.McFarlin@dot.gov); or 
Jason Schlosberg, Trial Attorney, Office of Chief Counsel, RCC-10, Mail 
Stop 10, West Building 3rd Floor, Room W31-217, 1200 New Jersey Avenue, 
SE., Washington, DC 20590 (telephone: 202-493-6032) (e-mail: 
Jason.Schlosberg@dot.gov).

SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary 
Information:

I. Introduction and Background
II. Scope of Further Comments Sought
III. Further Comments Filed and FRA's Response
    A. Removal From PTCIP of Track Segments Not Yet Implemented With 
PTC Systems
    B. De Minimis Exception
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices

I. Introduction and Background

    Partially as a consequence and severity of certain very public 
accidents, coupled with a series of other less publicized accidents, 
Congress passed the Rail Safety Improvement Act of 2008 Sec.  104, 
Public Law 110-432, 122 Stat.

[[Page 59109]]

4854 (Oct. 16, 2008) (codified at 9 U.S.C. 20157) [hereinafter 
``RSIA08'']. The RSIA08 was signed into law by President George W. Bush 
on October 16, 2008, marking a public policy decision that, despite the 
implementation costs, railroad employee and general public safety 
warranted mandatory and accelerated installation and operation of 
Positive Train Control (PTC) systems.
    On January 15, 2010, FRA issued regulations (``final rule'') 
implementing the PTC requirements under RSIA08. The final rule, among 
other things, contained the process for submission of statutorily 
required PTC Implementation Plans for FRA review and approval. The 
final rule also established 2008 as a statistical baseline for 
determining which track segments must be outfitted and operated with 
PTC systems, a process to request modification of that baseline, and 
standards for approval of such requests.
    While that document is a final rule, FRA identified specific 
provisions for which it would consider making changes and sought 
comments on those provisions. FRA indicated that it would only consider 
comments falling within the scope of those provisions.
    Following the issuance of the final rule, FRA received several 
comments. In this document, FRA responds to those comments that fell 
within the scope of the comments requested and amends the final rule 
accordingly.

II. Scope of Further Comments Sought

    While the final rule became effective on March 16, 2010, FRA 
believed that certain issues warranted further discussion. Accordingly, 
FRA sought comments limited to increasing the clarity, certainty, and 
transparency of the criteria governing the removal from a PTC 
Implementation Plan (PTCIP) (and therefore from the requirement to 
install PTC) of any track segments on which PTC systems have yet to be 
installed for which a railroad seeks relief from the requirement to 
install PTC. FRA continues to consider this issue separate and distinct 
from the discontinuance of any already installed or existing PTC 
systems, which is governed under Sec.  236.1021, part 236 of title 49, 
and the ``Signal Inspection Act'' (codified at 49 U.S.C. 20501-20505). 
FRA indicated that any comments should be limited to the scope of those 
issues to which FRA requested further comment.
    As explained in the preamble to the final rule, 2008 traffic data 
will be used as an initial baseline in each PTCIP to determine the 
breadth and scope of PTC system implementation. In recognition of the 
fact that traffic patterns are likely to change to some degree before 
December 31, 2015, the final rule also provides a means of adjusting 
the track segments on which PTC must be installed where adjustments are 
appropriately justified. These issues relate to a railroad's potential 
request to scale back the breadth and scope of that baseline 
contemporaneously or subsequently to PTCIP submission and prior to 
actual PTC system implementation. Since those issues should not affect 
the PTCIP required to be filed by the April 16, 2010, statutory 
deadline, FRA believed that time was available for some further 
consideration.
    In Sec.  236.1005(b)(4)(i)(A)(2), the final rule provided three 
tests that must be satisfied to remove a line due to cessation of 
poison by inhalation (PIH, also commonly referred to as toxic by 
inhalation or TIH) materials traffic over the track segment; each of 
these tests will be discussed in greater detail but are summarized 
here. First, Sec.  236.1005(b)(4)(i)(A)(2)(i), provides that the 
requesting railroad must show that the line segment will be free from 
local PIH materials traffic. Second, under Sec.  
236.1005(b)(4)(i)(A)(2)(ii), the requesting railroad must submit a 
routing analysis that assumes that the line segment and all of the 
carrier's practicable alternative routes that the carrier considers 
using to transport the PIH materials traffic are equipped with PTC. The 
analysis must show that any rerouting of PIH materials traffic from the 
subject track segment is justified based upon the route analysis 
submitted or that an alternative route is substantially as safe and 
secure as the track segment in question. FRA sought comments on how the 
elements of a route analysis should be weighed by FRA when determining 
whether rerouting as provided under this paragraph is sufficiently 
justified.
    Third, under Sec.  236.1005(b)(4)(i)(A)(2)(iii) the requesting 
railroad must establish that the remaining risk arising from rail 
operations on the track segment is less than the average equivalent 
risk per route mile on line segments required to be equipped with PTC 
because of gross tonnage and the presence of PIH materials traffic. FRA 
sought comment on how to measure the appropriate level of risk 
established. No railroad had supplied data supporting further track 
exceptions from PTC system installation consistent with statutory and 
safety requirements. Thus, in the final rule, FRA requested additional 
data to support commenters' positions. FRA also sought comment and 
information on ways that it might consider risk mitigations other than 
by a compensating extension of PTC or PTC technologies. Section 
236.1005(b)(4)(i)(A)(2)(iii) also provides that if the railroad would 
otherwise be required to install PTC on a line segment under paragraph 
(iii), that the railroad would be able to make a compensating extension 
of PTC on a different line segment rather than installing PTC on the 
line segment.
    In Sec.  236.1005(b)(4)(ii), the final rule provides an exception 
to PTC system implementation where there is a de minimis risk of 
release of PIH materials on the line segment. While in the proposed 
rule FRA sought means to reduce the railroads' burdens associated with 
this rule, no specific de minimis exception was proposed. AAR mentioned 
this possibility in its comment filed during the final rule's comment 
period and offered to work with FRA on this issue in supplementary 
comments filed after that comment period. FRA believes that the de 
minimis exception provided in the final rule fell within the scope of 
the issues set forth in the proposed rule. However, since none of the 
parties has had an opportunity to comment on this specific exception as 
provided in this final rule, FRA sought comments on the extent of the 
de minimis exception.

III. Further Comments Filed and FRA's Response

    In the comment period following issuance of the final rule, 
documents were filed by Association for American Railroads (AAR), Fred 
Millar, Invensys Rail Corporation (Invensys), the Metropolitan 
Transportation Authority of New York (NYMTA), the National 
Transportation Safety Board (NTSB), and the Rail Interoperability Group 
(RIG). However, the four comments filed by Fred Millar, Invensys, 
NYMTA, and RIG were squarely outside of the scope of further comments 
requested. For instance, Mr. Millar's comments regarding what should be 
done under the PHMSA rail routing rule are outside the scope of this 
rulemaking and do not require a change in the PTC final rule. 
Accordingly, FRA has elected to treat those four comments as Petitions 
for Reconsideration. FRA also received three formal Petitions for 
Reconsideration from AAR, Siemens Industry, Inc., and the Chlorine 
Institute. FRA will respond to all Petitions for Reconsideration, 
including those comments FRA is treating as Petitions for 
Reconsideration, in a separate document that will be mailed to the 
Petitioners and made part of the public docket in this proceeding.

[[Page 59110]]

    The purpose of this document is to respond to comments that are 
within the scope of FRA's request for comments contained in the final 
rule. As previously noted, these issues include the pre-installation 
removal of track segments from PTCIPs and the de minimis exception.

A. Removal From PTCIP of Track Segments Not Yet Implemented With PTC 
Systems

    Section 236.1005(b)(4) of the final rule provided for exclusions or 
removal of track segments from the PTC baseline. Paragraph (b)(4) 
provides that a railroad may request FRA review of the requirement to 
install PTC on a track segment where a PTC system is otherwise required 
by the rule, but has not yet been installed, based upon changes in rail 
traffic such as reductions in total traffic volume or cessation of 
passenger or PIH materials service. More specifically, paragraph 
(b)(4)(i)(A)(2) provides that in the case of cessation of PIH materials 
traffic over a track segment, and absent special circumstances, FRA 
will approve an exclusion of a line from the PTCIP (determined on the 
basis of 2008 traffic levels) upon a showing by the railroad that:

    (i) There is no remaining local PIH traffic expected on the 
track segment;
    (ii) Either any rerouting of PIH traffic from the subject track 
segment is justified based upon the route analysis submitted, which 
shall assume that each alternative route will be equipped with PTC, 
and shall take into consideration any significant interline routing 
impacts; or the next preferred alternative route in the analysis is 
shown to be substantially as safe and secure as the route employing 
the track segment in question and demonstrated considerations of 
practicability indicate consolidation of the traffic on that next 
preferred alternative route; and
    (iii) After cessation of PIH traffic on the subject line, the 
remaining risk associated with PTC-preventable accidents per route 
mile on the track segment will not exceed the average comparable 
risk per route mile on Class I lines in the United States required 
to be equipped with PTC because of gross tonnage and the presence of 
PIH traffic. If the subject risk is greater than the average risk on 
those PIH lines, and if the railroad making the application for 
removal of the track segment from the PTCIP offers no compensating 
extension of PTC or PTC technologies from the minimum required to be 
equipped, FRA may deny the request.
    NTSB filed comments expressing its belief that the final rule as 
written provides enough flexibility to railroads either at the time of 
initial filing or through a request for amendment to subsequently 
address changes in traffic patterns. NTSB noted that in the final rule 
FRA delineated the requirements it will consider before approving any 
exclusion. According to NTSB, it appears that both the railroads and 
FRA have an understanding of the term ``consistent with safety and in 
the public interest'' for conventional signal systems covered by 
subparts A through F of part 236. Railroads routinely submit block 
signal applications in accordance with part 235, ``Instructions 
Governing Applications for Approval of a Discontinuance or Material 
Modification of a Signal System or Relief From the Requirements of Part 
236,'' to modify or retire these conventional signal systems. FRA also 
has demonstrated use of its discretionary authority to review these 
Block Signal Applications and to either approve or deny them. The NTSB 
believes that any justified adjustments to the track segments on which 
PTC must be installed are an extension of FRA's use of its 
discretionary authority to review and consider any amendments to ensure 
they meet the requirements of this rule and are consistent with safety 
and in the public interest.
    AAR also filed comments regarding the exclusions provided by 
paragraph (b)(4). These comments fall into three subcategories.
    First, AAR contested FRA's multiple uses of the phrase ``absent 
special circumstances.'' After consideration of AAR's concerns, FRA has 
decided to remove this language from the rule.
    Second, AAR challenged paragraph (b)(4)(i)(A)(2)(ii), which 
provides that where the request involves prior or planned rerouting of 
PIH materials traffic, the railroad must provide a supporting route 
analysis that takes into consideration the requirements of the Pipeline 
and Hazardous Materials Safety Administration (PHMSA) Rail Route 
Analysis Rule, 49 CFR Sec.  172.820 (PHMSA rail routing rule). The 
paragraph also assumes that the subject route and each practicable 
alternative route that the carrier considers using to transport the PIH 
materials traffic is PTC equipped. FRA has decided to clarify Sec.  
236.1005 and the relationship between the PHMSA rail routing rule and 
the PTC final rule. FRA has also slightly modified the substance of 
paragraph (b)(4)(i)(A)(2)(ii) in response to AAR's comments and has 
moved the text to a new Sec.  236.1020.
    Finally, AAR disputes the residual risk analysis requirements under 
paragraph (b)(4)(i)(A)(2)(iii) of Sec.  236.1005. FRA has slightly 
modified the substance of this paragraph in response to AAR's comments 
and has also moved this text to the new Sec.  236.1020, and has delayed 
the effective date of the residual risk analysis requirement under 
paragraph (b)(4)(i)(A)(2)(iii), as revised herein, until an appropriate 
notice and comment period can be conducted on the risk analysis tool 
currently being developed by FRA.
1. ``Absent Special Circumstances'' Language
    Section 236.1005(b)(4)(i)(A)(1) of the final rule provides that, in 
the case of a requested exclusion based on cessation of passenger 
service or a decline in gross tonnage below 5 million gross tons as 
computed over a 2-year period, the removal will be approved absent 
``special circumstances.'' AAR recommended that FRA remove the special 
circumstances proviso to provide clarity, certainty, and transparency. 
While Sec.  236.1005(b)(4)(i)(A)(1) gives an example of a special 
circumstance (anticipated traffic growth), AAR states that the 
regulations address traffic growth in Sec.  236.1005(b)(3) and it is 
unnecessary to address traffic growth here. According to AAR, the 
``special circumstances'' language is too vague to provide sufficient 
guidance to the regulated community and if FRA were to insist it is 
necessary to address traffic growth in Sec.  236.1005(b)(4)(i)(A)(1), 
it can do so specifically.
    In any event, AAR asserts that there should be no discretion in 
deciding whether to approve the withdrawal of a line segment from the 
PTCIP if the criteria in the PTC regulation are met. According to AAR, 
the ``special circumstances'' clauses are inconsistent with FRA's 
stated aim of clarity, certainty, and transparency and should be 
deleted.
    FRA believes that there is merit in AAR's request and, in order to 
ensure consistency and certainty in decision making, FRA is removing 
the ``special circumstances'' language in paragraph (b)(4)(i)(A)(1). 
FRA can address special circumstances (such as an extreme grade 
approaching major interlocking or a moveable bridge location), if 
necessary, using its general authority to install signal and train 
control systems. See 49 U.S.C. 20502.
2. Alternative Route Analysis and the PHMSA Rail Routing Rule
    AAR recommends that paragraph (b)(4)(i)(A)(2)(ii) be deleted. AAR 
objects to the requirement that the railroads have to perform an 
analysis that assumes that the subject route and each practicable 
alternative route that the carrier considers for the movement of PIH 
materials are PTC equipped. AAR asserts that the criteria addressing 
the

[[Page 59111]]

cessation of PIH materials service are confusing and inconsistent with 
PHMSA rail routing rule. AAR notes that the PHMSA rail routing rule 
does not require an analysis assuming that all routes are equipped with 
PTC or the railroads to ``take into consideration any significant 
interline routing impacts,'' but only to ``consider the use of 
interchange agreements with other rail carriers.'' Moreover, AAR does 
not understand what ``next'' means, since there is no rank ordering of 
alternatives to be considered under PHMSA's routing regulations, and 
how to quantify ``as safe and secure,'' which is not the same as the 
PHMSA criterion, which focuses on the ``overall safety and security 
risk.'' AAR is also confused by the last sentence, not understanding 
why a railroad would choose a route that is less practicable than an 
alternative and asks what evidence FRA would expect to see pursuant to 
this requirement.
    AAR notes that the PHMSA rail routing rule requires railroads to 
analyze a line currently used to move PIH materials traffic (as well as 
other security-sensitive materials) and all practicable alternative 
routes, and to utilize the line posing the least overall safety and 
security risk. See 49 CFR 172.820. AAR indicates its belief that RSIA08 
cannot be read to require PTC installation on routes used for PIH 
materials and routes that could be used for PIH materials if only a 
different routing analysis than that mandated by PHMSA rail routing 
rule were used.
    AAR argues that a decision to require the installation of PTC based 
on FRA's determination as to where TIH should be routed as opposed to 
the route chosen pursuant to the PHMSA routing analysis would, as a 
practical matter, place the two agencies in conflict. According to AAR, 
``[i]f under the PHMSA analysis of two routes one route was found to 
pose the least overall safety and security risk and FRA mandated PTC on 
the other route because its analysis of safety concerns disagreed with 
the PHMSA outcome, the two agencies would be in disagreement as to 
which route should be used for TIH.''
    AAR also claims that this FRA requirement conflicts with RSIA08. 
AAR states that:

    [i]f FRA decides that TIH should be routed on a line segment 
different than the line segment chosen pursuant to the PHMSA routing 
analysis and requires PTC on its favored route, FRA would be 
mandating PTC on both the route of its choice and the route actually 
used for TIH pursuant to the PHMSA routing analysis. Certainly, 
RSIA08 cannot be read to require installation of PTC on routes used 
for TIH and routes that could be used for TIH if only a different 
routing analysis than that mandated by PHMSA were used.

AAR believes that any perceived deficiency in the rail routing rule 
should be remedied by amending that regulation, not engaging in a 
separate, conflicting analysis in the PTC regulation. Accordingly, AAR 
believes that FRA should delete Sec.  236.1005(b)(4)(i)(A)(2)(ii).
    AAR is incorrect in assuming that FRA does not intend the railroads 
to follow the requirements of the PHMSA rail routing rule in 
determining whether to reroute PIH materials traffic and FRA will make 
this explicit.
    Routing analysis is useful for two entirely different purposes. 
Routing analysis under the PHMSA rule, which FRA participated in 
developing and has the responsibility to administer, governs current 
routing of PIH materials, certain explosives, and certain high level 
nuclear waste and is based upon an annual analysis that a carrier 
performs to select the routes that pose the least overall safety and 
security risks based on conditions as they exist at the time of the 
analysis and changes that may reasonably be anticipated to occur in the 
upcoming year. Nothing in the PTC final rule disturbs this regime in 
any way. Carriers will continue to do their analysis and route traffic 
as they are today, with the caveat described below.
    However, there are two unbreakable policy links between this 
rulemaking and the operation of the PHMSA rule:
    First, RSIA08 is clear that PTC must be installed on lines carrying 
PIH materials and at least 5 million gross tons of traffic. Thus, to 
the extent this rulemaking permits PTC to be installed on a distinct 
subset of the alternative routes available for overhead (non-local) 
transportation of PIH materials, those routes will de facto and de jure 
be the only routes available for PIH materials transportation on and 
after December 31, 2015--regardless of overriding safety or security 
concerns that might argue for alternative routing. There is nothing in 
the PHMSA rule that specifically requires PTC to be installed as a 
mitigation measure, and although railroads would be free do so, that 
structure is not designed to deal with the full range of issues related 
to PTC (including other pertinent risks). It was the RSIA08, not the 9/
11 Commission Implementation Act of 2004, Public Law 108-548, 118 Stat. 
3638 (Dec. 17, 2004) (9/11 Commission Act), that addressed the 
requirement for PTC on PIH materials lines, and the PHMSA structure is 
not the place to address the RSIA08 mandate.
    Second, even before this PTC rule is fully implemented it will 
begin to have an inevitable impact on some routing decisions. One of 
the 27 factors called out for analysis under the PHMSA rule is ``method 
of operation.'' As used in rail parlance, ``method of operation'' can 
be understood in either a very narrow sense to mean the source of 
movement authorities for train operations or in a broader sense to 
include all means by which train movements are authorized and 
controlled. It is the latter sense intended for purposes of the PHMSA 
rule.\1\ PTC is part of the method of operation wherever installed. It 
is already installed on portions of the Northeast Corridor and on 
Amtrak's Michigan line. When installed in a new territory, and when 
most lead locomotives operating over the territory have PTC onboard 
apparatus installed and operative, PTC will reduce the safety risk 
associated with transporting PIH commodities by something on the order 
of one-third. Thus, over time, installation of PTC will affect some 
routing choices even before the end of 2015.
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    \1\ Thus, for example, in most non-signal territory we would say 
that the method of operation is by track warrants. In territory with 
automatic block signals, the method of operation is typically by 
track warrant supplemented by indications of the automatic block 
signal system. In territory equipped with a traffic control system, 
the method of operation is by indications of the signal system. In 
territory equipped with a traffic control system and cab signals 
(with or without train control or train stop), the method of 
operation is still by indications of the signal system while the cab 
signals could provide authority for movement between interlockings. 
On the Northeast Corridor today between New Haven and Boston, the 
method of operation is by indications of the traffic control system 
and cab signals, supplemented by automatic train control and the 
Advanced Civil Speed Enforcement System (which together make up a 
form of PTC).
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    The PTC final rule could have ignored these inevitable 
interrelationships. However, the responsible path was to recognize the 
interrelationships and try to craft an approach to PTC planning that 
took them fully into account. That is what FRA has attempted to do. In 
this response to comments, and with final rule amendments, we endeavor 
to assure that all parties fully understand what is intended and to 
ensure that the language we employ in rule text is as clear as we can 
make it.
    FRA's comments in the preamble to the final rule were not intended 
to criticize the PHMSA rail routing rule, but rather to illuminate the 
significance of the difference between the two rules and to point out 
that a decision under the PHMSA rail routing rule concerning where PIH 
materials traffic will be routed is not necessarily determinative 
concerning which routes will receive

[[Page 59112]]

PTC. The two decisions, though related, differ significantly. At the 
same time, FRA does not intend to ``redo'' under the PTC rule any 
decisions made under the PHMSA rail routing rule. Although they are 
complementary, the two rules are not the same and do not have the same 
purposes. Again, under the PHMSA rail routing rule, routing of PIH 
materials shipments is reconsidered annually based on the overall 
safety and security risks posed at the time. Under the PTC rule, there 
is an orderly process for moving from signal systems and traffic 
patterns extant in 2008 to installation and operation of PTC systems by 
December 31, 2015. The presence of PIH materials shipments is a 
criterion for requiring installation of PTC if the traffic volume level 
on the line is 5 million gross tons or more. However, as noted above, 
the railroad's analysis under the PHMSA rail routing rule would not 
consider the positive safety effects of the installation of PTC unless 
the railroad intended to promptly install a PTC system on a particular 
line (risk mitigations planned for future years are not considered). By 
the same token, routing analysis conducted under the PTC rule will not 
affect current routings, since this could result in PIH materials 
traffic moving off of a line in 2010 despite the fact that PTC will not 
be installed until 2014 or 2015. Paragraph (b)(4)(i)(A)(2)(ii) attempts 
to bridge the timing differences between the two rules in a manner that 
achieves the goals of both rules while respecting the way each rule 
works. It appears that FRA did not succeed in doing so with the clarity 
intended, so FRA will clarify this provision.
    FRA wishes to emphasize that the interrelationships between the 
PHMSA rule and this rulemaking are fundamental; not transient or 
topical. As PTC becomes fully effective on rail lines over the coming 
years, those routes will come to carry the overwhelming bulk of PIH 
materials traffic. If only a small network of PTC lines is built out on 
each railroad, impacts on PIH materials routing could be dramatic. 
Routing alternatives would diminish. Unlike today, when the great 
majority of the PIH materials traffic that takes the most direct route 
to destination with the least amount of switching and least exposure to 
derailment hazards, constricting PIH materials to a small PTC network 
has the potential to drive circuitous routings that could increase 
switching, introduce delays in transportation related to marshalling of 
trains, increase derailment and miscellaneous hazards, and even 
increase security risks due to routing through high threat urban areas. 
The final rule limits these potential adverse consequences by asking 
that--for planning purposes only--the railroads submit alternative 
routing analysis to support any requests to drop lines from the 2008 
base (a period during which, it is undisputed, that most of the subject 
PIH materials traffic was moving by the most direct and expeditious 
route).
    AAR is also incorrect in its reading of RSIA08. Under RSIA08, FRA 
is given the authority--reconfirming its pre-existing authority--to 
require PTC to be installed on lines whether or not they carry PIH 
materials traffic; FRA will discuss its statutory authority further in 
the response to AAR's comments to paragraph (b)(4)(i)(A)(2)(iii). As 
described in this document's section-by-section analysis, FRA is 
clarifying the substance of this paragraph in response to AAR's 
comments and has moved the text to a new Sec.  236.1020.
3. Residual Risk Analysis
    AAR also objected to and urges the deletion of Sec.  
236.1005(b)(4)(i)(A)(2)(iii), arguing that the RSIA08 directive is to 
address lines on which PIH materials or passengers are transported, and 
that a line with no PIH materials or passenger traffic poses no risk of 
the type that RSIA08 addresses through its PTC mandate. AAR does not 
believe there is a need for the industry to make the calculation 
required by paragraph (b)(4)(i)(A)(2)(iii). Accordingly, AAR believes 
that FRA should delete Sec.  236.1005(b)(4)(i)(A)(2)(iii).
    AAR believes that this requirement contrasts with Sec.  
236.1005(b)(4)(ii)(C), which contains a de minimis exception applicable 
where a railroad can show the risk of a PIH materials release to be 
negligible. According to AAR, it would appear that if the risk of a PIH 
materials release is negligible, that would be more significant under 
the RSIA08 than an analysis of the risk of PTC-preventable accidents. 
AAR asserts that if PIH materials were removed from a line segment, 
then the risk of a PIH materials release clearly would be negligible, 
thus providing no reason to require PTC. AAR believes that removal of 
PIH materials from a segment is the ultimate risk mitigation strategy.
    If FRA were to retain Sec.  236.1005(b)(4)(i)(A)(2)(iii), AAR 
asserts that its second sentence should be revised to plainly state 
that a railroad indeed has the discretion to make a compensating 
extension of PTC. Otherwise, according to AAR, that sentence implies, 
but does not clearly state, that if the analysis shows that the risk 
associated with the track segment exceeds the average comparable risk 
on lines required to be equipped with PTC because of PIH, then the 
railroad can choose not to install PTC on the track segment if it makes 
a compensating extension of PTC elsewhere.
    AAR also notes that risk comparison requirements should be clearer. 
For instance, AAR states that FRA needs to determine the time period 
over which risk is to be measured. Comparing risk per route mile 
requires certain knowledge of the applicable host railroad track 
segments, which is not available to all tenant railroads that may be 
filing for an exception here. The analysis only becomes more difficult 
when determining whether an accident is PTC-preventable, which must be 
made on a case-by-case basis.
    We disagree. RSIA08 clearly gives FRA the authority to require PTC 
on lines other than those identified in Sec.  20157(a)(1)(C) of the 
statute and the need for this requirement is discussed in the final 
rule. The fact that the PHMSA rail routing rule may result in some 
rerouting of PIH materials traffic does not mean that FRA should ignore 
the residual safety risks to train crews, roadway workers, and the 
public at large of train operations and the transportation of non-PIH 
hazardous materials on the line formerly used to move the PIH materials 
traffic. Congress obviously wanted to make sure that passenger and PIH 
materials lines were addressed in FRA's PTC rule, and we did so in the 
final rule. But there is no reason to believe that the Congress was 
indifferent to the safety of employees or other members of the public 
or to communities whose water supplies might be polluted by non-PIH 
hazardous materials or spilled diesel fuel. Moreover, deaths of crew 
members from train collisions have exceeded deaths from release of PIH 
commodities over the past two decades. The public interest requires FRA 
to take this and other factors into consideration in determining 
whether to require the installation of PTC on lines from which PIH 
materials traffic is being removed, consistent with RSIA08 statutory 
authority. At a future date, FRA may also examine the appropriateness 
of requiring PTC to be installed on other rail lines not covered by the 
final rule.
    AAR indicated that should FRA decide to retain paragraph 
(b)(4)(i)(A)(2)(iii), further clarification is needed as to how a 
railroad can compare the risk of PTC-preventable accidents on the line 
in question with the risk of PTC-preventable accidents on Class I lines 
in the U.S. required to be equipped with PTC because of the presence of 
PIH materials. AAR also requested that FRA plainly state that

[[Page 59113]]

where PTC would otherwise be required because the risk associated with 
the track segment exceeds the average comparable risk on lines required 
to be equipped with PTC, that the railroad has discretion to make a 
compensating extension of PTC elsewhere. The final rule amendments 
contained in this document provide that confirmation.
    AAR correctly points out that details regarding the risk assessment 
technique used to make the comparison required under paragraph 
(b)(4)(i)(A)(2)(iii) need to be worked out and provided to the 
industry. The preamble to the final rule notes that this will be done, 
and FRA is working on risk evaluation methodology that was discussed at 
a meeting of the RSAC PTC Working Group conducted by webinar on March 
24, 2010. As these amendments to the final rule were being prepared, 
FRA was working to place development of this methodology under 
contract, and the PTC Working Group was forming a task force to provide 
peer review for this effort. FRA expects to subsequently submit the 
methodology for notice and comment.
    Given the limited time that has been available to arrive at this 
point in the regulatory process, a final risk assessment tool was not 
available by April 16, 2010, when each PTCIP was required to be filed. 
It is for this reason that FRA has decided to delay the effective date 
of paragraph (b)(4)(i)(A)(2)(iii), as revised, pending further notice. 
After the risk model is developed, AAR and other interested parties 
will be provided an opportunity for peer review of the methodology 
through the RSAC before the final agency decision-making process 
commences. FRA will solicit public comments on the model and will 
consider the public comments in deciding what final risk model should 
become effective, and will issue a notice announcing its decision. FRA 
contemplates that, when the provision goes into effect, FRA will 
determine the average risk value for lines with PIH materials required 
to be equipped with PTC and conduct the comparison utilizing the line 
segment data provided by the railroads for the subject lines. The risk 
evaluation methodology will also be made available to the railroads for 
their planning purposes (including proposal of any ``risk swaps'' that 
may be desirable, as further discussed below). A railroad may not 
remove a track segment from its PTCIP in accordance with Sec.  
236.1005(b)(4)(i) until the replacement for paragraph 
(b)(4)(i)(A)(2)(iii) contained in the new Sec.  236.1020 becomes 
effective. However, under the new section, the line is not required to 
be equipped with PTC until the request for removal has been ruled upon.
    AAR is correct that if a railroad would otherwise be required to 
install PTC on a line segment under paragraph (b)(4)(i)(A)(2)(iii), 
that railroad would be able to make a compensating extension of PTC 
rather than installing PTC on the line segment. FRA is therefore 
amending paragraph (b)(4)(i)(A)(2)(iii) to make explicit that if the 
railroad is required to install PTC on the subject line under the 
paragraph, it can avoid having to install PTC on the line if it agrees 
to install PTC on a line segment that would not otherwise be required 
to be equipped under the rule and the railroad demonstrates that the 
increment of risk reduction is at least as great as would be achieved 
by equipping the segment sought to be removed from the PTCIP. FRA is 
moving the substance of the modified paragraph to a new Sec.  236.1020.

B. De Minimis Exception

    Paragraph (b)(4)(ii)(A) provides for exclusion or removal of track 
segments carrying less than 100 PIH materials cars per year (loaded or 
residue) from the PTC baseline where there is a de minimis PIH 
materials safety risk and the line segments are not used for intercity 
or commuter passenger service. Paragraphs (b)(4)(ii)(B) and 
(b)(4)(ii)(C) include further requirements for the de minimis 
exception. AAR has filed comments on both provisions.
    Paragraph (b)(4)(ii)(B) provides that absent special circumstances 
related to specific hazards presented by operations of the line 
segment, FRA will approve a request for relief under this paragraph for 
a rail line segment:
    (1) Consisting exclusively of Class 1 or 2 track;
    (2) That carries less than 15 million gross tons annually;
    (3) Has a ruling grade of less than 1 percent; and
    (4) On which any train transporting a car containing PIH materials 
(including a residue car) is operated under conditions of temporal 
separation from other trains using the line segment.
    The NTSB believes that a broad-based type of de minimis exception 
like the one proposed by AAR and its member railroads in response to 
the notice of proposed rulemaking (NPRM) preceding the final rule and 
based solely on the number of PIH material cars transported annually 
cannot be supported on a safety basis and would represent a departure 
from the intent of the statute. According to the NTSB, without proper 
federal oversight--including a detailed safety assessment of each 
affected railroad territory--unforeseen circumstances might affect the 
safe operation of trains.
    The NTSB believes that if a de minimis exception is allowed based 
solely on the number of PIH materials cars transported annually, some 
railroads might consider establishing annual PIH materials car limits 
on segments of track in order to be exempt from the requirements of 
implementing a PTC system on that segment. Therefore, the NTSB supports 
the exclusion criteria that FRA uses in this section to evaluate each 
request on a case-by-case basis for each segment of track to allow the 
FRA to apply its inherent discretionary authority to grant de minimis 
exceptions that are consistent with safety and in the public interest.
    AAR states that FRA needs to modify the de minimis exception 
provided under Sec.  236.1005(b)(4)(ii)(B). AAR notes that the preamble 
to the final rule at 75 FR 2,622 explains that this exception is 
limited to Class 1 and 2 track because, ``[l]imiting maximum authorized 
train speed reduces the kinetic energy available in any accident, and 
the forces impinging on the tank should be sustainable.'' Accordingly, 
AAR asserts that the exception should not be limited to Class 1 and 2 
track, but should instead apply to operations subject to a maximum 
speed of 25 miles per hour.
    AAR suggests that FRA should use contemporaneous train speeds, 
rather than track class to define the limits of this portion of the de 
minimis exception. According to AAR, it would make the provision more 
``usable.'' But in order to have confidence that appropriate speed 
restrictions were imposed and complied with, PTC would be required. 
Crews operating on particular rail lines are qualified on the physical 
characteristics of those lines, including the prevailing maximum 
authorized speed. They are acclimated to observing those speeds. What 
AAR proposes is that, in order to limit collision speeds on lines where 
trains may operate at 49 miles per hour or more, speeds be temporarily 
reduced for any train carrying PIH materials. But that would require 
special designation of trains carrying PIH materials, special attention 
by dispatchers to imposition and removal of appropriate speed 
restrictions on other trains using the line segment, and rigorous 
compliance by crews with these speed restrictions. Those steps would 
introduce multiple new opportunities for human error, and PTC is 
largely about prevention of human errors. FRA does not find this 
suggestion practical or consistent with safety.

[[Page 59114]]

    AAR also urges FRA to specify the showing required to remove a line 
from the PTCIP on the grounds that the risk of a TIH release is 
negligible. AAR points to Sec.  236.1005(b)(4)(ii)(C), which provides 
that FRA will ``consider'' relief from the obligation to install PTC 
for line segments with annual traffic levels under 15 million gross 
tons (and under 100 TIH shipments) where the risk of a release of PIH 
materials is ``negligible.'' It is unclear to AAR what constitutes a 
``negligible'' risk and what discretion FRA would exercise should there 
be a showing of negligible risk. AAR further requests that FRA set a 
quantitative threshold for negligible risk, and suggests ``one in a 
million'' as the criterion. AAR references standard MIL-STD-882C.
    FRA notes that standard MIL-STD-882C is recognized in Appendix C to 
49 CFR part 236 as an available standard for evaluating the safety of 
train control systems. The difficulties with using this type of 
criterion as a decisional criterion, as opposed to a convention in 
hazard analysis, are manifold. First, the actual metric is always 
unclear. We will assume that AAR may refer to release of a reportable 
quantity of a PIH material. The apparent suggestion is probability per 
route mile. However, it is unclear what should be the level of chance 
and the measurable time period (e.g., calendar hours, operating hours, 
PTC system life-cycle). Given that PIH materials releases are already 
infrequent events, and the potential for catastrophe from a single 
release is significant, it is also unclear how this criterion would 
relate to the judgments that the Congress has already made with respect 
to PIH materials transportation. AAR does not provide any reasoning or 
evidence sufficient to prove that the criterion is satisfied. AAR 
should be aware that the industry and FRA have experienced significant 
difficulty in developing tools for comparative risk assessment related 
to train control, which is the easier task in contrast with use of 
absolute risk criteria. Further, FRA is not persuaded that what is 
required here is the expenditure of large amounts of money to avoid a 
statutory mandate. Available funds should be expended to satisfy the 
mandate. FRA will, of course, welcome well-presented hazard analyses of 
a simple and direct sort (see FRA's Collision Analysis Guide, available 
at http://www.fra.dot.gov/us/content/1900). At the end of the day, in 
this particular frame of reference, FRA will be looking to achieve 
confidence that the chance of an unintended release of PIH material is 
negligible (which, given emphatic congressional action in this arena is 
best described as ``improbable'' in conventional risk assessment 
terminology), given the chances for severe mishaps on the particular 
line segment in question. Quantitative proofs are neither feasible nor 
required.

IV. Section-by-Section Analysis

Section 236.100 Requirements for Positive Train Control Systems

    In the final rule, FRA attempted to describe in Sec. Sec.  
236.1005(b)(4)(i)(A)(2)(ii) and (iii) exactly what analysis was 
required and what standard would be applied if a railroad wished to 
remove from its PTCIP a line that carried PIH materials in 2008. FRA 
continues to believe that the language expresses what was intended 
unambiguously, as further amplified in the preamble. However, without 
question the provision compresses into a few words concepts that some 
have had difficulty in parsing; and that presents an important 
challenge. Clarity in expression is always a central objective in 
writing a rule. Accordingly, FRA has taken another run at this drafting 
problem; and, in doing so, has broken out both this and the next 
provision (dealing with residual risk) for separate treatment.
    For the reasons stated above, FRA first removes from Sec.  
236.1005(b)(4)(i)(A)(1) the words ``absent special circumstances as set 
forth in writing (e.g., because of anticipated traffic growth in the 
near future).''
    FRA then removes the current text of (b)(4)(i)(A)(2) and inserts in 
its place a cross reference to a new section 236.1020. This new section 
follows the section on passenger ``main line'' exceptions, and it is 
intended that utilizing a separate section will provide flexibility to 
express the necessary concepts with greater clarity.

Section 236.1011 PTC Implementation Plan Content Requirements

    While not part of the scope of the further comments requested, FRA 
would like to take this opportunity to make some minor, non-
substantive, clarifying amendments.
    First, FRA recognizes that there was a typographical error in Sec.  
236.1011(a)(6)(iv)(B). In that paragraph, there is a cross-reference to 
paragraph (a)(6)(iii)(A). While that cross-referenced paragraph existed 
in the proposed rule, it was moved to (a)(6)(iv)(A) in the final rule. 
The cross-reference should have been changed. We do so here.

Section 236.1019 Main Line Track Exceptions

    Second, FRA would also like to clarify its intent regarding Sec.  
236.1019(c). With this language, FRA merely meant to remind regulated 
entities that observance of Sec.  236.1019(c) does not diminish or 
obviate the applicability of Sec.  236.0. FRA intended to state that a 
``limited operations exception'' would not be considered for any 
segment of track that did not comport with the requirements of Sec.  
236.0. The qualifying language ``(at speeds not exceeding those 
permitted under Sec.  236.0 of this part)'' was meant to highlight that 
the requirements Sec.  236.0, based partially on speed limits, were 
still applicable.
    FRA recognizes that the parenthetical language in that paragraph 
reading ``(at speeds not exceeding those permitted under Sec.  236.0 of 
this part)'' may be confusing.
    FRA intended to indicate that if a limited operations exception 
were provided under Sec.  236.1019(c), thus allowing a railroad not to 
implement and operate a PTC system on a particular track segment, the 
railroad would still be required to implement and operate any other 
systems required by Sec.  236.0. For instance, if a limited operations 
exception is approved and applied to a particular track segment where 
trains may operate at or in excess of 80 miles per hour, the railroad 
would be required to install, or more likely maintain, and operate an 
automatic cab signal, automatic train stop, or automatic train control 
system in accordance with Sec.  236.0(d).
    While FRA's intent remains as stated above, FRA hereby amends Sec.  
236.1019(c) for the purposes of ensuring clarity. Thus, FRA will strike 
the aforementioned qualifying language so that the parenthetical text 
reads: ``(operating in accordance with Sec.  236.0 of this part)''.

Section 236.1020 Exclusion of Track Segments for Implementation Due to 
Cessation of PIH Materials Service or Rerouting

    As noted above, FRA is adding a new section that specifically 
addresses exclusion of track segments due to cessation or rerouting of 
PIH materials. Section 236.1020 begins with paragraph (a), which 
explains that it sets forth the conditions under which track segments 
identified in the 2008 baseline described in Sec.  236.1005(b)(2) may 
be removed from the PTCIP. A track segment qualified for removal may be 
removed after FRA approves a request contained in the PTCIP or a 
request for amendment (RFA) filed prior to

[[Page 59115]]

required installation of PTC on the subject track segment. This process 
would thus be available throughout the initial implementation period 
that extends to the end of 2015.
    Paragraph (b) contains the three tests that must be satisfied to 
remove a line due to cessation of PIH materials transportation over the 
track segment. Paragraph (b)(1) deals with local traffic. In railroad 
parlance, local traffic is freight traffic that originates or 
terminates on the particular rail line or terminal. A railroad that 
wishes to remove a line segment under paragraph (b)(1) must first 
establish that the line is free of local PIH materials traffic or will 
be before the line would otherwise be required to be equipped. Where 
there are still local customers whose business involves production or 
use of PIH materials that could request service but are not expected to 
do so, the section explains that obtaining statements from those 
customers that they have no plan to do so should be sufficient. 
Railroads are not required to anticipate future requests for service. 
(The Chlorine Institute suggests that substantially the entire rail 
system should be equipped, so that shippers are not chilled from 
requesting service at new locations; however, there is already 
provision for requesting service at new locations, after which PTC must 
be installed if traffic levels meet the required threshold.)
    Paragraph (b)(2) deals with ``overhead'' traffic, which in rail 
parlance is traffic that does not originate or terminate on the line in 
question. Here it must be shown that the traffic has been rerouted or 
will be rerouted in accordance with the PHMSA rule. However, 
exclusively for the purpose of analysis, the analysis must introduce 
the hypothetical condition that all of the carrier's practicable 
alternative routes for moving the PIH materials traffic are assumed to 
be equipped with PTC. This is a valid assumption for purposes of this 
rulemaking, since PTC must be installed on all Class I railroad routes 
carrying PIH materials and more than 5 million gross tons of traffic 
according to RSIA08; FRA provided relief from this requirement for 
lines with de minimis PIH materials safety risk. The required analysis 
permits FRA to determine whether selective installation of PTC would 
create routing distortions under the PHMSA rule, which FRA administers 
and enforces. If installing PTC only on one or more alternative routes 
to the route under examination would result in or facilitate rerouting 
off the subject line to a more circuitous route--a route that might 
involve greater risk of derailment, greater exposure to collisions and 
secondary derailments at highway-rail crossings, more switching (which 
increases the likelihood of accidents), a longer time in 
transportation, and even more traversing of high threat urban areas--
then the rule would generally require that PTC be installed on the 
subject line. This approach would uphold the values of both the 9/11 
Commission Act and the RSIA08 while ensuring that PTC is provided on a 
reasonable scale across the core of the national rail system. However, 
the paragraph also allows for exceptions where the overall safety and 
security risks on the track segment in question is substantially the 
same as that on the alternate route, assuming both to be equipped with 
PTC--i.e., where the difference is small. FRA also referred in the 
final rule to whether ``demonstrated considerations of practicability 
indicate consolidation of the traffic on that next preferred 
alternative route.'' FRA had intended this to be an open invitation for 
each railroad to state its case regarding issues of operational and 
engineering practicability (e.g., more effective use of key trains that 
are subject to the 50 miles per hour restriction in the PHMSA rail 
routing rule, cost considerations related to equipping of the subject 
line, etc.). However, on the railroads' behalf, AAR asserted only that 
the provision is ``confusing.'' FRA is satisfied that AAR missed the 
point of the larger provision and thus lacked context within which to 
recognize and affirm language favorable to its members. FRA is hopeful 
that the global redrafting of the subject provisions, together with 
further explanation language with regard to this specific provision, is 
helpful in that regard.
    Paragraph (b)(3) deals with line segments that pass the first two 
tests. This provision is included because PTC is not just directed at 
the reduction of risk from transportation of PIH materials and rail 
passengers. As evidenced by NTSB reports and recommendations, testimony 
before Congress on legislation leading to RSIA08, and the PTC core 
functions themselves, PTC confers safety benefits that include the 
following:
     Prevention of crew fatalities and injuries in train-to-
train collisions;
     Protection of roadway workers within the limits of their 
authorities; and
     Protection of communities and natural resources from 
release of other hazardous materials in PTC-preventable accidents.
    FRA reviewed PTC-preventable accidents over the period 2002-2008 
and determined that 35 train crew fatalities occurred in the period, 
only two of which resulted from PIH materials and only 1 of which 
occurred in a passenger train accident. This can be compared with 29 
passenger fatalities in the same period (24 of them a Chatsworth, CA) 
and 10 fatalities from release of PIH materials (9 of which were at 
Graniteville, SC--the single most serious accident of its kind since at 
least 1978). For further comparison, the most deadly rail accident 
which involved hazardous materials was at Waverly, Tennessee, in 1978. 
The Waverly accident involved release and ignition of flammable 
compressed gas (not a PIH material) during a re-railing operation and 
illustrates the risk posed by hazardous materials other than PIH 
materials.
    Accordingly, FRA is seeking to ensure that the core of the national 
rail network, which would be equipped with PTC under the absolute 
minimum mandate of the RSIA08 strictly construed, is at least seriously 
reviewed for installation of PTC. In that regard, FRA notes that the 
rule would satisfy the requirements of the statute and work perfectly 
well if the flexibility afforded the railroads by Sec. Sec.  
236.1005(b)(4)(i)(A)(2) and 236.1020 were not included in the rule. 
Those provisions are severable. Paragraph (b)(3) thus describes the 
showing that will be necessary to evaluate the residual risks after 
removal of PIH materials traffic from a subject line.
    At the time of the final rule, FRA called attention to the need to 
develop a risk evaluation methodology to estimate residual risk on rail 
lines and compare that risk to the national average risk on non-
passenger lines with 5 million gross tons of annual freight traffic and 
some PIH materials traffic. That developmental process is underway and 
must be completed before railroads are required to commit resources for 
installation of PTC on any track segments pending for review under 
paragraph (b)(3).
    Paragraph (b)(3)(i) informs the regulated community that FRA will 
develop the risk evaluation methodology through a separate rulemaking 
proceeding. As detailed earlier in the preamble discussion of 
``Residual Risk Analysis'', FRA has retained an independent contractor 
to help it initially develop the risk evaluation methodology. FRA 
intends to utilize the RSAC and a PTC Working Group to provide peer 
review of the initially developed methodology. After completion of peer 
review and changes made based upon that review, FRA intends to issue an 
NPRM to solicit public comments on the sufficiency of the developed 
methodology and the

[[Page 59116]]

advisability of using such a model. FRA will consider the public 
comments before deciding what, if any, final risk evaluation 
methodology should become effective. Once a determination is made, FRA 
will then issue a final rule to complete the proceeding, which will 
either implement the risk evaluation methodology or remove the residual 
risk provision from the regulation.
    If FRA determines that a particular risk model should be 
implemented in the final rule, then when the provision goes into 
effect, FRA will determine the average risk value for lines with PIH 
materials required to be equipped with PTC and conduct the comparison 
utilizing the line segment data provided by the railroads for the 
subject lines. In this scenario, FRA also anticipates that the 
methodology and related notices might identify automatic approval of 
specific types of line segments, when such line segments pose minimal 
risks. This approach could be similar to that utilized in regard to 
lines considered to have de minimis PIH risks identified in Sec.  
236.1005(b)(4)(ii) of the final rule.
    Lines identified for removal by the railroad will be considered to 
be pending for decision during the period that the methodology is being 
developed, and should be noted as such in the PTCIP. Any such line may 
be placed at the back of the order for PTC installation (within the 
sequence required to be shown in the PTCIP) if the railroad believes 
that it is warranted, subject to subsequent FRA review and a final 
decision. A railroad will not be required to equip any line with PTC 
under paragraph (b)(3) until the risk evaluation methodology is 
finalized, the railroad is provided an opportunity to supplement its 
request, and a final decision is made regarding the railroads request 
for removal of that track line or track segment.
    Paragraph (c) recognizes that the 2008 baseline for analysis should 
not become a restraint that bars recognition of changing or equally 
relevant risk elsewhere. Accordingly, the provision states that, if a 
track segment qualifies for removal from the PTCIP under paragraphs 
(b)(1) and (b)(2) of this section but does not meet the test of 
paragraph (b)(3), the railroad may nevertheless request that the PTCIP 
be amended to remove the track segment based upon compensating 
reductions in the risk related to PTC-preventable accidents based on 
installation of PTC technology on one or more track segments not 
otherwise required to be equipped. Upon a proper showing that the other 
installation(s) fully compensate using the risk evaluation methodology 
accepted for use under paragraph (b)(3), FRA approves the substitution. 
AAR seemed to be receptive to this flexibility, but asked that its 
understanding be confirmed. We attempt to do so in this revision.

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    These amendments to the final rule have been evaluated in 
accordance with existing policies and procedures, and determined to be 
significant under both Executive Order 12866 and DOT policies and 
procedures. 44 FR 11034 (Feb. 26, 1979). Although the final rule met 
the criteria for being considered an economically significant rule 
under those policies and procedures, the amendments contained in this 
document are not considered economically significant because they 
either clarify requirements currently contained in the final rule or 
allow for greater flexibility in complying with the final rule. The 
economic impact of the amendments and clarifications contained in this 
document will generally reduce the cost of compliance with the rule. 
However, the cost reduction is not easily quantified and does not 
significantly alter FRA's original analysis of the cost and benefits 
associated with the final rule. Consequently, FRA strongly supports the 
economic arguments and estimates advanced in its RIA for the final 
rule.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of rules to assess their impact on small entities. 
FRA certifies that these amendments to the final rule do not have a 
significant impact on a substantial number of small entities. Because 
the amendments contained in this document either clarify requirements 
currently contained in the final rule or allow for greater flexibility 
in complying with the rule, FRA has concluded that there are no 
substantial economic impacts on small units of government, businesses, 
or other organizations.

C. Paperwork Reduction Act

    These amendments of the final rule do not significantly change any 
of the information collection requirements contained in the original 
final rule. The OMB control number for that information collection is 
2130-0553, and it has been approved through May 31, 2013.

D. Federalism Implications

    FRA believes it is in compliance with Executive Order 13132, 
``Federalism.'' See 64 FR 43255 (Aug. 4, 1999). Because these 
amendments to the final rule either clarify requirements currently 
contained in the final rule or allow for greater flexibility in 
complying with the rule, this document will not have a substantial 
effect 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. This document 
will not have federalism implications that impose any direct compliance 
costs on state and local governments.

E. Environmental Impact

    FRA has evaluated these amendments to the final rule in accordance 
with its ``Procedures for Considering Environmental Impacts'' (FRA's 
Procedures) (64 FR 28545, May 26, 1999) as required by the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental 
statutes, Executive Orders, and related regulatory requirements. FRA 
has determined that this document is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c) of FRA's Procedures.

F. 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 $140,800,000 or more (adjusted 
annually for inflation) in any 1 year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement'' detailing the 
effect on State, local, and tribal governments and the private sector. 
Because the amendments

[[Page 59117]]

contained in this response document either clarify requirements 
currently contained in the final rule or allow for greater flexibility 
in complying with the rule, this document will not result in the 
expenditure, in the aggregate, of $100,000,000 or more in any one year, 
and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated these amendments to the final rule in 
accordance with Executive Order 13211. Because the amendments contained 
in this document either clarify requirements currently contained in the 
final rule or allow for greater flexibility in complying with the rule, 
FRA has determined that this document will not have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this regulatory action is not a 
``significant energy action'' within the meaning of Executive Order 
13211.

H. Privacy Act

    FRA wishes to inform all interested parties that anyone is able to 
search the electronic form of any written communications and comments 
received into any of our dockets by the name of the individual 
submitting the document (or signing the document, if submitted on 
behalf of an association, business, labor union, etc.). Interested 
parties may also review DOT's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (65 FR 19477) or visit 
http://www.regulations.gov.

List of Subjects in 49 CFR Part 236

    Penalties, Positive train control, Railroad safety, Reporting and 
recordkeeping requirements.

The Rule

0
In consideration of the foregoing, FRA amends chapter II, subtitle B of 
title 49, Code of Federal Regulations as follows:

PART 236--[AMENDED]

0
1. The authority citation for part 236 is revised to read as follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20157, 
20301-20303, 20306, 20501-20505, 20701-20703, 21301-21302, 21304; 28 
U.S.C. 2461, note; and 49 CFR 1.49.


0
2. In Sec.  236.1005, revise paragraph (b)(4)(i)(A)(2) to read as 
follows:


Sec.  236.1005  Requirements for Positive Train Control systems.

* * * * *
    (b) * * *
    (4) * * *
    (i) * * *
    (A) * * *
    (2) In the case of current or planned cessation of PIH materials 
traffic over a track segment, FRA will approve an exclusion of a line 
from the PTCIP if the railroad satisfies the requirements of Sec.  
236.1020.
* * * * *

0
3. In Sec.  236.1011, revise paragraph (a)(6)(iv)(B) to read as 
follows:


Sec.  236.1011  PTC Implementation Plan content requirements.

    (a) * * *
    (6) * * *
    (iv) * * *
    (B) Include each tenant railroad's response to the host railroad's 
written request made in accordance with paragraph (a)(6)(iv)(A) of this 
section;
* * * * *

0
4. In Sec.  236.1019, revise the introductory text of paragraph (c) to 
read as follows:


Sec.  236.1019  Main line track exceptions.

* * * * *
    (c) Limited operations exception. FRA will consider an exception in 
the case of a track segment used for limited operations (operating in 
accordance with Sec.  236.0 of this part) under one of the following 
sets of conditions:
* * * * *
0
5. Add a new Sec.  236.1020 to subpart I to part 236 to read as 
follows:


Sec.  236.1020  Exclusion of track segments for implementation due to 
cessation of PIH materials service or rerouting.

    (a) Purpose and scope. This section sets forth the conditions under 
which track segments identified in the 2008 baseline described in Sec.  
236.1005(b)(2) may be removed from the PTCIP. A track segment qualified 
for removal under this section may be removed after FRA approves a 
request contained in the PTCIP or an RFA filed prior to the required 
and scheduled PTC installation date for the subject track segment.
    (b) Cessation of PIH materials service. Except as provided in 
paragraph (c) of this section, the following three conditions must all 
be satisfied in order to justify removal of a track segment from the 
PTCIP:
    (1) Local service. The railroad must affirm that there is no 
remaining local PIH materials traffic expected on the track segment, or 
that service is expected to cease as of a date certain prior to 
December 31, 2015. In the case of future cessation of local service, 
the expectation may be documented by statements from all current PIH 
materials shippers and/or consignees. The railroad is not required to 
anticipate future requests for service not in keeping with prior 
service patterns. (See Sec.  236.1005(b)(3)).
    (2) Overhead traffic.
    (i) To the extent that the track segment carried PIH materials 
traffic other than local traffic in 2008, the railroad must establish 
that current or prospective rerouting to one or more alternate track 
segments is justified. In making this showing, the railroad must 
assume, for purposes of analysis only, that both the subject track 
segment and the alternative route(s) will be equipped and operated with 
PTC. Rerouting will be justified if the analysis is conducted in 
accordance with the same procedures and using the same methodology as 
required for safety and security route analysis under 49 CFR 172.820, 
with appropriate quantitative weight given to risk reduction effected 
by installation of a PTC system. If the track segment in question is 
not clearly the route posing the least overall safety and security 
risks, then removal of the line from the PTCIP may be granted.
    (ii) However, unlike analysis under part 172, FRA will consider the 
case for rerouting and removal of the line from the PTCIP to be made if 
the alternative(s) to the track segment sought to be removed has 
substantially the same overall safety and security risks as the subject 
routes under the stipulated conditions for analysis. In determining 
whether risk is substantially the same, FRA will consider the volume of 
traffic diverted, and such other factors as safety may require.
    (3) Residual risk. In the case of a track segment for which 
cessation of local service is established under paragraph (b)(1) of 
this section and for which analysis shows any overhead PIH materials 
traffic could properly be

[[Page 59118]]

rerouted under paragraph (b)(2) of this section, the railroad shall 
also establish that the remaining risk arising from rail operations on 
the track segment--pertaining to events that can be prevented or 
mitigated in severity by a PTC system--is less than the average 
equivalent risk per route mile on track segments required to be 
equipped with PTC because of annual gross tonnage and the presence of 
PIH materials traffic (excluding track segments also carrying passenger 
traffic). Such average equivalent risk shall be determined as of a time 
prior to installation of PTC on the line segments. This provision of 
the rule requires a future rulemaking to finalize and implement a risk 
evaluation methodology. Lines identified for removal subject to this 
provision will not be required to be equipped with PTC prior to the 
issuance of a final rule detailing the methodology.
    (i) FRA will develop a risk evaluation methodology for the purpose 
of conducting the analysis required pursuant to paragraph (b)(3) of 
this section. The risk evaluation methodology will be finalized through 
a separate rulemaking proceeding that will permit all interested 
parties to provide input on the specific methodology and, whether that 
methodology should be employed. If in the rulemaking proceeding FRA 
determines that a risk methodology should not be employed, then FRA 
will amend this final rule to eliminate the residual risk provisions.
    (ii) Any track segment qualifying for consideration under paragraph 
(b)(3) of this section and identified by the railroad for requested 
removal from the PTCIP shall be considered to be ``pending for 
decision'' until such time as FRA has published the risk evaluation 
methodology identified in paragraph (b)(3)(i) of this section. If a 
final risk evaluation methodology is employed, the railroad may be 
requested to provide supplemental information related to its request 
for removal of specific lines. The railroad is not required to commence 
installation of PTC on any track segment ``pending for decision'' under 
this paragraph, until a final FRA determination is made.
    (c) If a track segment qualifies for removal from the PTCIP under 
paragraphs (b)(1) and (b)(2) of this section but does not meet the test 
of paragraph (b)(3) of this section, the railroad may nevertheless 
request that the PTCIP be amended to remove the track segment based 
upon compensating reductions in the risk related to PTC-preventable 
accidents based on installation of PTC technology on one or more track 
segments not otherwise required to be equipped. Upon a proper showing 
that the increment of risk reduction is at least as great on the 
substitute line as it would be on the line sought to be excluded from 
the PTCIP, FRA may approve the substitution.

    Issued in Washington, DC, on September 15, 2010.
Joseph C. Szabo,
Administrator.
[FR Doc. 2010-24102 Filed 9-24-10; 8:45 am]
BILLING CODE 4910-06-P

