
[Federal Register Volume 79, Number 174 (Tuesday, September 9, 2014)]
[Proposed Rules]
[Pages 53356-53383]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21253]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[Docket No. FRA-2014-0032, Notice No. 1]
RIN 2130-AC47


Securement of Unattended Equipment

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

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

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

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

ADDRESSES: Comments: Comments related to this proceeding may be 
submitted by any of the following methods:
     Web site: Comments should be filed at the Federal 
eRulemaking Portal, http://www.regulations.gov. Follow the online 
instructions for submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, 
DC 20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 
a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://www.regulations.gov including any personal 
information. Please see the Privacy Act heading in the ``Supplementary 
Information'' section of this document for Privacy Act information 
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140 on the Ground level of the West Building, 1200 New Jersey 
Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through 
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Steven Zuiderveen, Railroad Safety 
Specialist, Motive & Power Equipment Division, Office of Safety 
Assurance and Compliance, Federal Railroad Administration, RRS-14, West 
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: 202-493-6337); Jason Schlosberg, Trial Attorney, Office of 
Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-
207, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-
493-6032).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. Lac-M[eacute]gantic Derailment
    1. Facts
    2. Response
    B. Safety Concerns Arising Out of the Lac-M[eacute]gantic 
Derailment and Other Train Incidents Involving Flammable Liquids and 
Gases and Poison Inhalation Hazard Materials.
    C. Current Securement Regulations and Related Guidance

[[Page 53357]]

    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 Lac-M[eacute]gantic, Quebec, Canada--additional 
requirements may be warranted when such equipment includes certain 
hazardous materials that can contribute to high-consequence events. To 
address these concerns, FRA issued Emergency Order 28, 78 FR 48218 
(Aug. 7, 2013), engaged in proceedings with the Railroad Safety 
Advisory Committee to draft recommended regulations, and is issuing 
this responsive notice of proposed rulemaking (NPRM). FRA is proposing 
this rulemaking pursuant to the authority granted to the Secretary of 
Transportation in 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20301-
20303, 20306, 21301-20302, 21304; 28 U.S.C. 2461, note; which the 
Secretary has delegated to the Administrator of FRA pursuant to 49 CFR 
1.89.

Summary of the Major Provisions of the Proposed Regulatory Action

    In this proceeding, FRA proposes requirements to ensure that each 
locomotive left unattended outside of a yard be equipped with an 
operative exterior locking mechanism and that such locks be applied on 
the controlling locomotive cab door when a train is transporting tank 
cars loaded with certain hazardous materials. This proposed rule would 
provide that such hazardous materials trains may only be left 
unattended on a main track or siding if justified in a plan adopted by 
the railroad, accompanied by an appropriate job briefing, and proper 
securement is made and verified. This proposed rule would also require 
additional verification of securement in the event that a non-railroad 
emergency responder may have been in a position to have affected the 
equipment.

Costs and Benefits of the Proposed Regulatory Action

    In this rule, the benefits ($1,163,669 at a 7% discount, $1,579,240 
at a 3% discount) outweigh the costs ($86,685 at a 7% discount, $99,909 
at a 3% discount), with total net benefits over 20 years of $1,076,984 
at a 7% discount (or $95,009 annualized) and $1,478,331 at a 3% 
discount (or $96,538 annualized).

------------------------------------------------------------------------
                                                 Discounted value
                                         -------------------------------
            Discounted values                     Discount factor
                                         -------------------------------
                                                7%              3%
------------------------------------------------------------------------
Costs:
    Attending Trains....................         $36,685         $49,909
    Installing Locks....................          50,000          50,000
    Total Costs.........................          86,685          99,909
Benefits:
    Reduced Vandalism...................         180,873         250,666
    Reduced Recordkeeping...............         982,786       1,328,573
rrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr
        Total Benefits..................      $1,163,669      $1,579,240
------------------------------------------------------------------------


------------------------------------------------------------------------
                                                 Discounted value
                                         -------------------------------
     Discounted values net benefits               Discount factor
                                         -------------------------------
                                                7%              3%
------------------------------------------------------------------------
Total...................................      $1,076,984      $1,479,331
Annualized..............................          95,009          96,538
------------------------------------------------------------------------

II. Background

    In 2001, FRA issued regulations governing the securement of 
unattended equipment. 66 FR 4104 (Jan. 17, 2001). These regulations 
have been effective in protecting against the risk of rolling 
equipment. Over the last few years, there has been a significant 
increase in the volume of rail traffic for certain types of 
commodities, such as petroleum crude oil (crude oil) and ethanol, both 
of which are highly flammable and often transported in large unit or 
``key'' trains, as defined in the industry by the Association of 
American Railroads (AAR). See AAR Circular No. OT-55-N (Aug. 5, 2013), 
available at http://www.boe.aar.com/CPC-1258%20OT-55-N%208-5-13.pdf.
    Since 2009, there have been a number of serious rail accidents 
involving the transportation of large quantities of flammable liquids. 
A number of these accidents involved trains transporting large 
quantities of ethanol. However, since 2011, there has been significant 
growth in the rail transport of flammable crude oil, and FRA has seen a 
number of accident-related releases of crude oil in that time. One 
significant accident involving tank cars loaded with crude oil was July 
6, 2013, derailment in the town of Lac-M[eacute]gantic, Quebec, Canada. 
After reviewing the facts related to this derailment, FRA concluded 
that additional action was necessary to eliminate an immediate hazard 
of death, personal injury, or significant harm to the environment, 
particularly in instances where certain hazardous materials are 
involved. Thus about a year ago FRA issued Emergency Order 28 requiring 
railroads to implement additional procedures to ensure the proper 
securement of equipment containing certain types and amounts of 
hazardous materials when left unattended. Subsequent to the

[[Page 53358]]

issuance of Emergency Order 28, FRA also enlisted the assistance of the 
Railroad Safety Advisory Committee (RSAC) to develop recommendations 
regarding the attendance and securement of railroad equipment 
transporting certain hazardous materials when left unattended in light 
of the requirements contained in Emergency Order 28.

A. Lac-M[eacute]gantic Derailment

1. Facts
    On July 6, 2013, in the town of Lac-M[eacute]gantic, Quebec, 
Canada, an accident involving tank cars loaded with petroleum crude oil 
occurred on track owned by Montreal, Maine & Atlantic Railway 
Corporation (MMA), a company incorporated in the United States.
    According to a report issued by the Transportation Safety Board 
(TSB) of Canada, the incident is summarized as follows.\1\ On July 5, 
2013, a locomotive engineer was operating freight train MMA-002 on the 
Sherbrooke Subdivision from Farnham (milepost 125.60) and at around 
10:50 p.m. stopped near Nantes, Quebec (milepost 7.40) on its way to 
its destination, Brownville Junction, Maine. The train was 
approximately 4,700 feet long, weighed over 10,000 tons, and included a 
locomotive consist of 5 head-end locomotives and one VB car, 1 box car 
(buffer car), and 72 tank cars loaded with approximately 7.7 million 
liters of petroleum crude oil (UN 1267). The locomotive engineer parked 
train MMA-002 on the main line, on a descending grade of 1.2%, 
attempted to secure the train, and departed, leaving the train 
unattended. At around 11:40 p.m., a local resident reported a fire on 
the train. The local fire department was called and responded with 
another MMA employee. At approximately midnight, the controlling 
locomotive was shut down and the fire extinguished. After the fire was 
extinguished, the fire department and the MMA employee left the site.
---------------------------------------------------------------------------

    \1\ Railway Investigative Report R13D0054, TSB, July 6, 2013, 
available at http://www.tsb.gc.ca/eng/rapports-reports/rail/2013/R13D0054/R13D0054.pdf.
---------------------------------------------------------------------------

    At approximately 1:00 a.m. the next day (the early morning of July 
6th), the train began rolling and picking up speed down the descending 
grade toward the town of Lac-M[eacute]gantic, Quebec, located 7.2 miles 
away and approximately 30 miles from the United States-Canada border. 
At about 1:15 a.m., near the center of town, the train derailed. The 
locomotive consist, which separated from the train, did not derail and 
traveled an additional \1/2\ mile before stopping.
    The derailment caused a release of 6 million liters of petroleum 
crude oil, resulting in a large fire with multiple explosions. 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.
---------------------------------------------------------------------------

    \2\ See id.; see also Statistical Summary Railway Occurrences 
2013, TSB, pp. 2, 5, available at http://www.tsb.gc.ca/eng/stats/rail/2013/ssro-2013.pdf.
---------------------------------------------------------------------------

2. Response
    In response to this accident, Transport Canada--the Canadian 
government department responsible for regulating transportation safety 
in Canada--issued an emergency railroad directive on July 23, 2013.\3\ 
While Transport Canada explained in the emergency directive that the 
cause of the accident in Lac-M[eacute]gantic remained unknown, the 
emergency directive stated that, ``in light of the catastrophic results 
of the Lac-M[eacute]gantic accident and in the interest of ensuring the 
continued safety and security of railway transportation, there is an 
immediate need to clarify the regime respecting unattended locomotives 
on main track and sidings and the transportation of dangerous goods in 
tank cars using a one person crew to address any threat to the safety 
and security of railway operations.'' As such, Transport Canada 
exercised its statutory emergency directive authority to order railroad 
companies in Canada to comply with certain requirements related to 
unauthorized entry into locomotive cabs, directional controls on 
locomotives, the application of hand brakes to cars left unattended for 
more than one hour, setting of the automatic brake and independent 
brake on any locomotive attached to cars that is left unattended for 
one hour or less, attendance related to locomotives attached to loaded 
tank cars transporting dangerous goods on main track, and the number of 
crew members assigned to a locomotive attached to loaded tank cars 
transporting dangerous goods on a main track or siding.
---------------------------------------------------------------------------

    \3\ See Emergency Directive Pursuant to Section 33 of the 
Railway Safety Act, Safety and Security of Locomotives in Canada, 
July 23, 2013, available at http://news.gc.ca/web/article-en.do?nid=829609; see also Rail Safety Advisor Letter--09/13, 
Securement of Equipment and Trains Left Unattended, Transport Canada 
(July 18, 2013), available at http://www.tsb.gc.ca/eng/medias-media/sur-safe/letter/rail/2013/r13d0054/r13d0054-617-09-13.asp.
---------------------------------------------------------------------------

    Also on July 23, 2013, Transport Canada issued an accompanying 
order pursuant to paragraph 19(a)(1) of the Canadian Railway Safety Act 
directing railroad companies in Canada to formulate or revise certain 
railroad operating rules, respecting the safety and security of 
unattended locomotives, uncontrolled movements, and crew size 
requirements.\4\ The order provides that rules should be based on an 
assessment of safety and security risks, and shall at a minimum ensure 
that the cab(s) of unattended controlling locomotives are secure 
against unauthorized entry; ensure that the reverse levers (commonly 
referred to as a ``reversers'') of unattended locomotives are removed 
and secured; prevent uncontrolled movements of railway equipment by 
addressing the application of hand brakes; ensure the security of 
stationary railway equipment transporting dangerous goods; and provide 
for minimum operating crew requirements considering technology, length 
of train, speeds, classification of dangerous goods being transported, 
and other risk factors.
---------------------------------------------------------------------------

    \4\ Railroads operating within Canada were at the time of the 
Lac-M[eacute]gantic derailment, and are currently, required to 
comply with the Canadian Rail Operating Rules (CROR) that have been 
approved by Transport Canada.
---------------------------------------------------------------------------

    The Railway Association of Canada submitted proposed operating 
rules to Transport Canada on November 20, 2013. Transport Canada 
accepted the proposed rules submitted on December 26, 2013, making the 
operating rules applicable to all railway companies operating in 
Canada. See TC O 0-167. As a result, railroads operating in Canada are 
now required to comply with Canadian Rail Operating Rules (CROR) CROR 
112, as amended.
    CROR 62 pertains to ``Unattended engines.'' The term ``unattended'' 
is now defined in the CROR as ``when an employee is not in close enough 
proximity to take effective action.'' The new Canadian requirements, 
applicable to each engine left unattended outside of an attended yard 
or terminal, requires cab securement to prevent unauthorized entry and 
removal of the reverser from the engine when it does not have a high 
idle feature and not in sub-zero temperatures. See CROR 62 (TC O 0-
167). Transport Canada also approved expansive revisions to CROR 112, 
which now provides minimum requirements, acceptable methods, and 
factors to consider for securing equipment while switching en route or 
left unattended. See CROR 112 (TC O 0-167).
    In direct response to the Lac-M[eacute]gantic derailment, DOT began 
taking actions consistent with Transport Canada to ensure the safe 
transportation of products by rail in the United States, with a 
particular focus on certain hazardous materials that present an

[[Page 53359]]

immediate danger for communities and the environment in the event of a 
train accident. In Emergency Order 28, FRA sought to address the 
immediate dangers that arise from unattended equipment that is left 
unsecured on mainline tracks. Emergency Order 28 remains in effect 
today, as amended by FRA's August 27, 2013, letter approving with 
conditions a joint petition for relief from the AAR and the American 
Short Line and Regional Railroad Association (ASLRRA). Railroads 
currently are required to comply with Emergency Order 28, as amended, 
in addition to 49 CFR 232.103(n). Emergency Order 28, as amended, 
contains six securement-related requirements governing when, where, and 
how certain hazardous materials tank cars may be left unattended, 
including certain communication requirements:

    (1) A railroad must not leave equipment unattended on a mainline 
outside of a yard or terminal when the equipment includes a minimum 
number of loaded tank cars containing certain types of hazardous 
materials, referred to as ``Appendix A Materials'' --5 or more tank 
cars containing materials poisonous by inhalation (PIH), including 
anhydrous ammonia and ammonia solutions and/or 20 rail car loads of 
flammable gases or liquids (e.g., crude oil and ethanol)--until the 
railroad develops, adopts, and complies with a plan that identifies 
specific locations and circumstances when such equipment may be left 
unattended.\5\
---------------------------------------------------------------------------

    \5\ AAR has voluntarily applied EO 28 to trains that have a 
single PIH tank car.
---------------------------------------------------------------------------

    (2) A railroad must develop a process for securing unattended 
equipment containing Appendix A Materials that includes: (a) locking 
the controlling locomotive cab or removing and securing the reverser 
and (b) communication of pertinent securement information to the 
dispatcher for recordation.
    (3) Each railroad must review and verify, and adjust, as 
necessary, existing procedures and processes related to the number 
of hand brakes to be set on all unattended trains and equipment.
    (4) Each railroad must require a job briefing addressing 
securement for any job that will impact or require the securement of 
any equipment in the course in the course of the work being 
performed.
    (5) Each railroad must ensure that a qualified railroad employee 
inspects all equipment that any emergency responder has been on, 
under, or between for proper securement before the train or vehicle 
is left unattended.
    (6) Each railroad must provide notice to all employees affected 
by Emergency Order 28.

See 78 FR 48224 (Aug. 7, 2013). Following a request from AAR and 
ASLRRA, FRA granted partial relief from Emergency Order 28's dispatcher 
communication requirement in certain limited situations. FRA's relief 
letter provides that a railroad employee may leave equipment unattended 
on a mainline or siding without contacting the train dispatcher when 
the employee is actively engaged in switching duties as long as the 
employee ensures that there is an emergency application of the air 
brakes, hand brakes are set in accordance with 49 CFR 232.103(n), and 
the employee has demonstrated knowledge of FRA and railroad securement 
requirements. See Letter from Robert C. Lauby, Acting Associate 
Administrator for Railroad Safety/Chief Safety Officer, Federal 
Railroad Administration, to Michael J. Rush, Associate General Counsel, 
AAR, and Keith T. Borman, Vice President and General Counsel, ASLRRA, 
(Aug. 27, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php.
    Additionally, FRA and the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) jointly issued a Safety Advisory to railroads 
and commodity shippers detailing eight recommended actions the industry 
should take to better ensure the safe transport of hazardous materials. 
See Federal Railroad Administration Safety Advisory 2013-06, Lac-
M[eacute]gantic Railroad Accident and DOT Safety Recommendations, 78 FR 
48224 (Aug. 7, 2013), available at http://www.fra.dot.gov/eLib/details/L04720. These recommendations include: Reviewing the details and 
lessons learned from the Lac M[eacute]gantic accident; reviewing crew 
staffing levels; removing and securing the train's ``reverser'' when 
unattended; review of all railroad operating procedures, testing and 
operating rules related to securing a train; reviewing Transport 
Canada's directives to secure and safely operate a train; and 
conducting a system-wide assessment of security risks when a train is 
unattended and identify mitigation efforts for those risks. 
Additionally, the Safety Advisory recommends testing and sampling of 
crude oil for proper classification for shipment, as well as a review 
of all shippers' safety and security plans. FRA also convened an 
emergency meeting of FRA's RSAC to begin the deliberative process with 
FRA's stakeholders, including railroad management, railroad labor, 
shippers, car owners, and others, as the agency considers requirements 
in Emergency Order 28 and recommendations in the Safety Advisory that 
should be made a part of its regulations.\6\
---------------------------------------------------------------------------

    \6\ The RSAC was given three tasks. In addition to developing 
securement recommendations, it was also tasked with developing 
recommendations addressing issues relating to train crew size and 
hazardous materials such as identification and classification of 
hazardous materials, operational controls, and handling of certain 
hazardous materials shipments. The RSAC hazardous materials working 
group was able to reach consensus on amending the definitions of 
``residue'' and ``key train'' and clarifying the jurisdiction 
concerning loading, unloading, and storage of hazardous materials 
before and during transportation. These recommendations have been 
provided to PHMSA, which has regulatory authority over hazardous 
materials shipments.
---------------------------------------------------------------------------

    On August 19, 2014, the TSB released its Railway Investigation 
Report R13D0054, citing 18 causal and contributing factors, plus an 
additional 16 findings as to risk, concerning the accident at Lac-
M[eacute]gantic. FRA believes that DOT has taken, or is already taking, 
action concerning each of those factors. The TSB notably included in 
its list of factors the MMA's weak safety culture and ineffective 
oversight on train securement. The report also identified factors 
relating directly to train securement such as insufficient hand brakes 
and improper hand brake test applications. This instant rulemaking 
proposes requirements that would enhance safety culture and oversight 
and that would address train securement. For instance, as further 
discussed below, FRA proposes to mandate by regulation the 
implementation of operating rules and practices requiring that 
securement be part of all relevant job briefings. FRA also proposes 
rules requiring verification with a qualified person that equipment is 
adequately and effectively secured in accordance with the regulations 
before being left unattended. These requirements aim to increase the 
safety dialog between railroad employees and to provide enhanced 
oversight within the organization. In doing so, these communications 
should better ensure that crew members apply the proper number of hand 
brakes, and more correctly apply hand brake tests, on unattended 
equipment. Also notable was the report's findings as to risk that 
states: ``If trains are left unattended in easily accessible locations, 
with locomotive cab doors unlocked and the reverser handle available in 
the cab, the risk of unauthorized access, vandalism, and tampering with 
locomotive controls is increased.'' This proposed rule directly 
addresses this concern with requirements relating to the installation 
and use of locomotive door locks and reverser removal.

[[Page 53360]]

B. Safety Concerns Arising Out of the Lac-M[eacute]gantic Derailment 
and Other Train Incidents Involving Flammable Liquids and Gases and 
Poison Inhalation Hazard Materials

    The vast majority of hazardous materials shipped by rail each year 
arrive at their destinations safely and without incident. Indeed, in 
calendar year 2013, there were only 18 accidents in which a hazardous 
material was released (involving a total of 78 cars) out of 
approximately 1.6 million shipments of hazardous material transported 
in rail tank cars in the United States. However, the Lac-
M[eacute]gantic incident demonstrates the substantial potential for 
danger that exists when an unattended train rolls away and derails 
resulting in the sudden release of hazardous materials into the 
environment. Although the Lac-M[eacute]gantic incident occurred in 
Canada, the freight railroad operating environment in Canada is similar 
to that in the United States, and a number of railroads operate in both 
countries.\7\ Freight railroads in the United States also transport a 
substantial amount and variety of hazardous materials, including 
materials poisonous by inhalation (PIH materials), also known as 
materials toxic by inhalation (TIH), and explosive materials. Moreover, 
an increasing proportion of the hazardous materials transported by rail 
is classified as flammable.\8\
---------------------------------------------------------------------------

    \7\ As an example, MMA formerly operated in both the United 
States and Canada, with approximately 510 miles of track in Maine, 
Vermont, and Quebec, and the tank cars transporting the crude oil 
that derailed in Lac-M[eacute]gantic originated in the Williston 
Basin of North Dakota. A discussion concerning the applicable 
Canadian securement requirements can be found above in the section 
titled ``2. Response,'' which addresses the actions taken by the 
United States and Canada in direct response to the Lac-
M[eacute]gantic incident.
    \8\ PHMSA prescribes a comprehensive regulatory safety system 
that categorizes hazardous materials into nine hazard classes based 
on the type of hazards presented by the materials. See 49 CFR parts 
172 and 173. Under PHMSA's regulations, crude oil, in most forms, 
meets the definition of a ``Class 3'' hazardous material, which 
signifies that it is a flammable liquid. Ethanol, discussed below, 
also is a Class 3 hazardous material. PIH materials, referenced 
above, include ``Class 2 and Division 2.3'' gases and ``Class 6, and 
Division 6.1'' poisons other than gases. Chlorine gas and anhydrous 
ammonia are two examples of PIH materials (Division 2.3) that are 
commonly transported by rail.
---------------------------------------------------------------------------

    The MMA train in the Lac-M[eacute]gantic incident was transporting 
72 carloads of crude oil with five locomotives and a loaded box car. A 
similar type of train consist is commonly found on rail lines in the 
United States, because crude oil is often transported in solid blocks 
or by a unit train consisting entirely of tank cars containing crude 
oil. Crude oil is often classified by an offeror as a flammable liquid; 
per PHMSA's Hazardous Materials Regulations (HMRs), however, its 
packing group can be I, II, or III depending on the blend of 
constituent crude oils. According to the AAR, crude oil traffic 
increased 68-fold in the United States between 2005 and 2013. Much of 
this growth has occurred because of developments in North Dakota, as 
the Bakken formation in the Williston Basin has become a major source 
for oil production in the United States. Texas also has contributed to 
the growth of crude oil shipments by rail. As a result, carloads of 
crude oil increased from approximately 81,452 in 2011 to approximately 
485,384 in 2013. The Bakken crude oil from North Dakota is primarily 
shipped via rail to refineries located near the U.S. Gulf Coast--
particularly in Texas and Louisiana--or also to pipeline connections, 
most notably to connections located in Oklahoma. Crude oil is also 
shipped via rail to refineries on the East Coast and West Coast, and to 
a lesser extent, refineries in other regions of the U.S.\9\
---------------------------------------------------------------------------

    \9\ See AAR's May 2013 paper ``Moving Crude Oil by Rail'', 
available online at: https://www.aar.org/safety/Documents/Assets/
TransportationofCrudeOilby
Rail.pdf.
---------------------------------------------------------------------------

    All indications from the U.S. Department of Energy's U.S. Energy 
Information Administration (EIA) are that rail capacity for Bakken 
crude oil from the Williston Basin will continue to expand to meet 
production.\10\ Rail shipments from the North Dakota region are 
forecast to increase over the next two years (as are pipeline 
shipments). Much of the near-term growth in rail originations is a 
function of how quickly rail car manufacturers can meet the demand by 
producing new tank cars, primarily for transporting Bakken crude oil. 
The rise in rail originations in crude oil is subject to changes in the 
number of tank cars available, price of crude oil, overall production 
of crude oil in that region; and if, or how quickly, additional 
pipeline capacity from that region comes online. However, for the 
foreseeable future, all indications are for continued growth of rail 
originations of crude in that region as new tank car fleets come online 
to meet demand.
---------------------------------------------------------------------------

    \10\ See EIA reports ``Bakken crude oil price differential to 
WTI narrows over last 14 months,'' available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=10431; and ``Rail delivery 
of U.S. oil and petroleum products continues to increase, but pace 
slows,'' available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=12031.
---------------------------------------------------------------------------

    As demonstrated by the Lac-M[eacute]gantic derailment, in a high-
consequence incident, crude oil is problematic when released because it 
is flammable. This risk is compounded because it is commonly shipped in 
large unit trains. Subsequent to the Lac-M[eacute]gantic derailment, 
the United States has seen at least three major rail-related incidents 
involving crude oil unit trains that evidence the dangerous results 
that can occur when crude oil is not transported safely. FRA recognizes 
that none of these three derailments resulted from a roll-away 
situation that would have been addressed by this rule.
    On April 30, 2014, there was derailment near downtown Lynchburg, 
Virginia, of an eastbound CSX Transportation, Inc. (CSX) unit train 
consisting of 105 tank cars loaded with crude oil. Seventeen of the 
train's cars derailed. One of the tank cars was breached, leading to a 
crude oil fire. Emergency responders were forced to evacuate 
approximately 350 individuals from the immediate area. Additionally, 
three of the derailed tank cars came to rest in the adjacent James 
River, causing up to 30,000 gallons of crude oil to be spilled into the 
river. The National Transportation Safety Board (NTSB) and DOT are both 
investigating this accident to determine the cause.
    On December 30, 2013, a westbound grain train derailed 13 cars near 
Casselton, North Dakota, fouling main track 2.\11\ Simultaneously, an 
eastbound crude oil unit train was operating on main track 2. The crude 
oil unit train reduced its speed and collided with a derailed car that 
was fouling, resulting in the derailment of the head-end locomotives 
and the first 21 cars of the crude oil unit train. Eighteen of the 21 
derailed tank cars ruptured, releasing an estimated 400,000 gallons of 
crude. The ruptured tank cars ignited causing an explosion. There were 
no reported injuries by either train crew, nor were there any injuries 
to the public; however, about 1,400 people were evacuated. Damages from 
the derailment are estimated at $6.1 million.\12\
---------------------------------------------------------------------------

    \11\ This derailment currently is being investigated by the 
National Transportation Safety Board (NTSB), and information 
regarding this incident can be found at the NTSB Web site. See 
http://www.ntsb.gov/doclib/reports/2014/
CasseltonNDPreliminary.pdf.
    \12\ See id.
---------------------------------------------------------------------------

    Also, on November 8, 2013, a 90-car crude oil train derailed in a 
rural area near Aliceville, Alabama. The crude oil shipment had 
originated in North Dakota and was bound for Walnut Hill, Florida, to 
be transported by a regional pipeline to a refinery in Saraland, 
Alabama. More than 20 cars derailed, and at least 11 cars ignited, 
resulting in an explosion and fire. Although there were no reported 
injuries, an undetermined amount of crude oil escaped from derailed 
cars and fouled a wetlands area near the derailment site.

[[Page 53361]]

    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:
     On August 5, 2012, in Plevna, Montana, a BNSF Railway Co. 
train derailed 18 cars while en route from Baker, Montana. Seventeen of 
the 18 cars were tank cars loaded with denatured alcohol, a form of 
ethanol. Five of the cars caught on fire resulting in explosions, the 
burning of surrounding property not within the railroad's right-of-way, 
and the evacuation of the immediate area.
     On July 11, 2012, in Columbus, OH, a Norfolk Southern 
Railway Co. train derailed while operating on main track. Thirteen tank 
cars containing ethanol derailed resulting in a fire and the evacuation 
of 100 people within a one-mile radius of the derailment.
     On February 6, 2011, in Arcadia, Ohio, a Norfolk Southern 
Railway Co. train operating on single main track derailed 33 tank cars 
loaded with ethanol. The derailment caused a major fire and forced the 
evacuation of a one-mile radius around the derailment.
     On June 19, 2009, in Cherry Valley, Illinois, a Canadian 
National Railway train derailed 19 tank cars loaded with ethanol. 
Thirteen of the 19 derailed cars caught fire, and there were reports of 
explosions. One person died, and there were 9 reported injuries related 
to the fire. Additionally, approximately 600 residences were evacuated 
within a \1/2\-mile radius of the derailment.

While these accidents were serious, their results had potential for 
more higher-consequence outcomes. The higher-consequence releases 
created the potential for additional deaths, injuries, property damage, 
and environmental damage.
    There are other hazardous materials that have similar potential for 
higher-consequence danger. For example, accidents involving trains 
transporting other hazardous materials, including PIH materials such as 
chlorine and anhydrous ammonia, can also result in serious consequences 
as evidenced by the following accidents:
     On January 6, 2005, in Graniteville, South Carolina, a 
Norfolk Southern Railway Co. train collided with another Norfolk 
Southern Railway Co. train that was parked on a customer side track, 
derailing both locomotives and 16 cars of the moving train. The 
accident was caused by a misaligned switch. Three tank cars containing 
chlorine derailed, one of which was punctured. The resulting chlorine 
exposure caused 9 deaths, approximately 554 people were taken to local 
hospitals, and an additional 5,400 people within a one-mile radius of 
the site were evacuated by law enforcement personnel. FRA's analysis of 
the total cost of the accident was $126 million, including fatalities, 
injuries, evacuation costs, property damage, environmental cleanup, and 
track out of service.
     On June 28, 2004, near Macdona, TX, a Union Pacific 
Railroad Co. train passed a stop signal and collided with a BNSF 
Railway Co. train. A chlorine car was punctured, and the chlorine gas 
that was released killed three and injured 32.
     On January 18, 2002, a Canadian Pacific Railway train 
containing 15 tank cars of anhydrous ammonia derailed half a mile from 
the city limits of Minot, North Dakota due to a breaking of the rail at 
a joint. Five of these tank cars ruptured, which resulted in an ammonia 
vapor that spread 5 miles downwind over an area where 11,600 people 
lived. The accident caused one death, 11 serious injuries, and 322 
minor injuries. Environmental cleanup costs reported to the NTSB were 
$8 million.
     On July 18, 2001, 11 of 60 cars in a CSX Transportation, 
Inc. freight train derailed while passing through the Howard Street 
Tunnel in downtown Baltimore, Maryland. The train included 8 tank cars 
loaded with hazardous material; 4 of these were among the cars that 
derailed. A leak in a tank car containing tripropylene resulted in a 
chemical fire. A break in a water main above the tunnel flooded both 
the tunnel and the streets above it with millions of gallons of water.
    While train accidents involving hazardous materials are caused by 
variety of factors, nearly one-half of all accidents are related to 
railroad human factors or equipment defects. FRA's data shows that 
since 2009, human factors have been the most common cause of reportable 
train accidents. Based on FRA's accident reporting data for the period 
from 2010 through May 2014, approximately 34 percent of reported train 
accidents/incidents, as defined by 49 CFR 225.5, were human factor-
caused.\13\ With regard to the securement of unattended equipment, 
specifically, FRA accident/incident data indicates that approximately 
8.7 percent of reported human factor-caused train accidents/incidents 
from calendar year 2010 until May 2014 were the result of improper 
securement, which means that improper securement is the cause of 
approximately 2.9 percent of all reported accidents/incidents.\14\ The 
types of securement errors that typically lead to accidents/incidents 
include failing to apply any hand brakes at all, failing to apply a 
sufficient number of hand brakes, and failing to correctly apply hand 
brakes. Emergency Order 28 and this proposed rulemaking intend to 
address some of the human factors failures that may cause unattended 
equipment to be improperly secured to protect against a derailment 
situation similar to that which occurred in Lac-M[eacute]gantic.
---------------------------------------------------------------------------

    \13\ FRA estimates that there were a total of approximately 
8,976 accidents/incidents reported during that time period. 
Approximately 3,030 of those accidents/incidents were caused by 
human factors, and 906 involved equipment that was placarded as 
containing hazardous materials.
    \14\ There were a total of approximately 264 reported accidents/
incidents that were caused by securement errors. Of those 264 
accidents/incidents, approximately 98 involved equipment that was 
placarded as containing hazardous materials.
---------------------------------------------------------------------------

C. Current Securement Regulations and Related Guidance

    As previously noted, FRA has existing regulations designed to 
ensure that trains and vehicles are properly secured before being left 
unattended. See 49 CFR 232.103(n). 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, Sec.  232.103(n) also requires that the 
railroad apply a sufficient number of hand brakes to hold the equipment 
with the air brakes released and that the brake pipe pressure be 
reduced to zero with the angle cock opened on one end of a cut of cars 
when

[[Page 53362]]

not connected to a locomotive or other compressed air source. The 
regulations also require railroads to develop a process or procedure 
for verifying that the hand brakes applied are sufficient to hold the 
equipment with the air brakes released. When dealing with locomotives 
and locomotive consists, Sec.  232.103(n)(3) establishes specific 
additional requirements:
     All hand brakes must be fully applied on all locomotives 
in the lead consist of an unattended train.
     All hand brakes must be fully applied on all locomotives 
in an unattended locomotive consist outside of yard limits.
     The minimum requirement for an unattended locomotive 
consist within yard limits is that the hand brake must be fully applied 
on the controlling locomotive.
     Railroads must develop, adopt, and comply with procedures 
for securing any unattended locomotive that is not equipped with an 
operative hand brake.

Additionally, FRA requires each railroad to adopt and comply with 
instructions addressing each unattended locomotive's position of the 
throttle, generator field switch, isolation switch, and automatic brake 
valve and the status of its reverser and independent brakes. See 49 CFR 
232.103(n)(4).
    FRA has also issued guidance documents interpreting these 
regulations. For instance, on March 24, 2010, FRA issued Technical 
Bulletin MP&E 2010-01, Enforcement Guidance Regarding Securement of 
Equipment with Title 49 Code of Federal Regulations Section 232.103(n) 
(TB 10-01), available at http://www.fra.dot.gov/eLib/details/L02394. 
While FRA continues to believe that the securement requirements of 
Sec.  232.103 are not met where there is a complete failure to apply 
even a single hand brake on unattended equipment, FRA also recognizes 
that there are times when it is necessary to have unsecured equipment, 
such as during switching activities when assembling and disassembling 
trains within classification yards. Therefore, TB 10-01 provides 
guidance regarding alternative forms of securement in such instances. 
As an example, TB 10-01 notes that FRA will allow a train crew cutting 
away from a cut of cars, to initiate an emergency brake application on 
the cut of cars, and then close the angle cock if the crew is taking a 
locomotive consist directly to the opposite end of the cut of cars to 
in order to couple the locomotive consist to the cars or to open the 
angle cock at the other end and leave the angle cock open and vented to 
the atmosphere, as required under 49 CFR 232.103(n)(2). Additionally, 
TB 10-01 makes clear that FRA will allow the use of skates and 
retarders in hump classification yards, classification yards with bowl 
tracks, or flat switching yards if the retarders and skates are used 
within their design criteria and as intended. While this proposal does 
not contain any specific proposed regulatory text referencing the 
content of TB 10-01, FRA is considering codifying TB 10-01 by amending 
the rule at the final rule stage of this proceeding. This would 
constitute a clarifying amendment to ensure that FRA's long-standing 
interpretation and application of the existing regulation is contained 
directly in the regulation. FRA seeks comments on clarifying the rule 
to address the provisions of TB 10-01 in the final rule.
    Despite the demonstrated effectiveness of FRA's current securement 
regulations, FRA recognizes that due to increased shipments of 
hazardous materials such as crude oil and ethanol, combined with the 
potential for higher-consequences related to any accident that might 
occur due to improper securement, particularly on mainline track and 
mainline sidings outside of a yard or terminal, proper securement has 
become a serious and immediate safety concern. Therefore, FRA 
established additional securement measures in Emergency Order 28 in an 
effort to ensure the continued protection of the health and safety of 
railroad employees, the general public, and the environment. In this 
NPRM, FRA proposes establishing permanent rules that will strengthen 
the current regulations and ensure public safety by adopting the 
necessary and effective securement measures that FRA included in 
Emergency Order 28 as part of its immediate response to the Lac-
M[eacute]gantic derailment.
    Also notable is that over the past year, FRA and PHMSA have 
undertaken nearly two dozen actions to enhance the safe transport of 
crude oil. This comprehensive approach includes near- and long-term 
steps such as the following: Launching ``Operation Classification'' in 
the Bakken region to verify that crude oil is properly classified; 
issuing safety advisories, alerts, emergency orders and regulatory 
updates; conducting special inspections; aggressively moving forward 
with a rulemaking to enhance tank car standards; and reaching agreement 
with railroad companies on a series of immediate voluntary actions 
including reducing speeds, increasing inspections, using new brake 
technology and investing in first responder training. Most of those 
actions have been well outside the scope of securement. However, FRA 
references these actions here to help place this rulemaking in the 
broader context of DOT's wide-ranging response to the safety issues 
created by these trains. For a summary of these actions, see Federal 
Railroad Administration's Action Plan for Hazardous Materials Safety, 
Federal Railroad Administration (May 20, 2014) available at http://www.fra.dot.gov/eLib/details/L04721.

D. Emergency Order 28 and Related Guidance

    On August 2, 2013, FRA issued Emergency Order 28 establishing 
additional requirements on the treatment of securement of unattended 
equipment. On the same date, FRA issued a related Safety Advisory and 
announced an emergency RSAC meeting. See Federal Railroad 
Administration Safety Advisory 2013-06, Lac-M[eacute]gantic Railroad 
Accident and DOT Safety Recommendations, 78 FR 48224 (Aug. 7, 2013), 
available at http://www.fra.dot.gov/eLib/details/L04720. FRA also 
subsequently issued guidance related to Emergency Order 28 and granted 
partial relief from Emergency Order 28 to the AAR and ASLRRA. See 
Guidance on Emergency Order 28 (Aug. 21, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php; Letter from Robert C. Lauby, 
Acting Associate Administrator for Railroad Safety/Chief Safety 
Officer, FRA, to Michael J. Rush, Associate General Counsel, AAR, and 
Keith T. Borman, Vice President and General Counsel, American Short 
Line and Regional Railroad Association, (Aug. 27, 2013), available at 
https://rsac.fra.dot.gov/meetings/20130829.php.

E. RSAC Overview

    In March 1996, FRA established the RSAC, which provides a forum for 
collaborative rulemaking and program development. RSAC includes 
representatives from all of the agency's major stakeholder groups, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. A list of RSAC members follows:
     American Association of Private Railroad Car Owners 
(AARPCO);
     American Association of State Highway & Transportation 
Officials (AASHTO);
     American Chemistry Council (ACC);
     American Petroleum Institute (API);
     American Public Transportation Association (APTA);

[[Page 53363]]

     American Short Line and Regional Railroad Association 
(ASLRRA);
     American Train Dispatchers Association (ATDA);
     AAR;
     Association of State Rail Safety Managers (ASRSM);
     Association of Tourist Railroads and Railway Museums 
(ATRRM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employes Division 
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     Federal Transit Administration (FTA);*
     Fertilizer Institute;
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace 
Workers (IAM);
     International Brotherhood of Electrical Workers (IBEW);
     Labor Council for Latin American Advancement (LCLAA);*
     League of Railway Industry Women;*
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association 
(NRC);
     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB);*
     Railway Passenger Car Alliance (RPCA)
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte;*
     SMART Transportation Division (SMART TD);
     Transport Canada;*
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/
Brotherhood of Railway Carmen (TCIU/BRC);
     Transportation Security Administration (TSA).

* Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. The working group may establish one or more 
task forces or other subgroups to develop facts and options on a 
particular aspect of a given task. The task force, or other subgroup, 
reports to the working group. If a working group comes to consensus on 
recommendations for action, the package is presented to RSAC for a 
vote. If the proposal is accepted by a simple majority of RSAC, the 
proposal is formally recommended to FRA. FRA then determines what 
action to take on the recommendation. Because FRA staff play an active 
role at the working group level in discussing the issues and options 
and in drafting the language of the consensus proposal, and because the 
RSAC recommendation constitutes the consensus of some of the industry's 
leading experts on a given subject, FRA is often favorably inclined 
toward the RSAC recommendation. However, FRA is in no way bound to 
follow the recommendation and the agency exercises its independent 
judgment on whether the recommended rule achieves the agency's 
regulatory goals, is soundly supported, and is in accordance with 
applicable policy and legal requirements. Often, FRA varies in some 
respects from the RSAC recommendation in developing the actual 
regulatory proposal or final rule. Any such variations would be noted 
and explained in the rulemaking document issued by FRA. If the working 
group or RSAC is unable to reach consensus on recommendations for 
action, FRA resolves the issue(s) through traditional rulemaking 
proceedings or other action.
    The RSAC convened an emergency session on August 29, 2013, in 
response to the accident at Lac-M[eacute]gantic, to brief members on 
the preliminary findings of the accident, to discuss the safety issues 
related to the accident, and to discuss Emergency Order 28. At that 
meeting, the RSAC accepted Task No. 13-03 to refer to the Securement 
Working Group (SWG) the responsibility of ensuring that ``appropriate 
processes and procedures are in place to ensure that any unattended 
trains and vehicles on mainline track or mainline sidings outside of a 
yard or terminal are properly secured against unintended movement, and 
as appropriate, such securement is properly confirmed and verified.'' 
In doing so, the SWG was tasked with reviewing: the standards for the 
securement of unattended equipment under 49 CFR 232.103(n) and its 
concomitant regulatory guidance published in TB 10-01; the requirements 
of Emergency Order 28; and the recommendations contained in Federal 
Railroad Administration Safety Advisory 2013-06--Lac-M[eacute]gantic 
Railroad Accident Discussion and DOT Safety Recommendations. The SWG 
was also tasked with identifying any other issues relevant to FRA's 
regulatory treatment of securement of equipment to prevent unintended 
movement. While the RSAC also tasked the SWG with reviewing operational 
testing, the SWG concluded that no changes were necessary to the 
regulations relating to operational testing.
    In addition to FRA, the following organizations contributed members 
to the SWG:
     AAR, including members from BNSF Railway Company (BNSF), 
Canadian National Railway (CN), Canadian Pacific Railway (CP), CSX 
Transportation, Inc. (CSX), Genesee & Wyoming Inc. (GNWR), Kansas City 
Southern Railway (KCS), Long Island Rail Road (LIRR), Metro-North 
Railroad (MNCW), Northeast Illinois Regional Commuter Railroad 
Corporation (METRA), Norfolk Southern Railway Company (NS), Railway 
Association of Canada, and Union Pacific Railroad Company (UP);
     Amtrak;
     API;
     APTA, including members Keolis North America, 
Massachusetts Bay Commuter Railroad Company, LLC (MBCR); and North 
County Transit District (NCTD);
     ASLRRA, including members from Anacostia Rail Holdings, 
Central California Traction Company (CCT), OmniTRAX, Rio Grande Pacific 
Corporation, and WATCO Companies, Inc. (WATCO);
     ASRSM, including members from California Public Utilities 
Commission (CPUC);
     ATDA;
     BLET;
     BMWED;
     BRS;
     IAM;
     NRC, including members from Herzog Transit Services 
(Herzog);
     NTSB;
     PHMSA;
     RSI;
     SMART TD;
     TCIU/BRC;
     Transport Canada; and
     TWU.
    The SWG convened subsequently on October 30, 2013, December 17, 
2013, January 28, 2014, and March 4, 2014, in Washington, DC to respond 
to these tasks and voted to approve the recommendation on March 4, 
2014. The SWG presented its recommendation to the full RSAC, which 
voted by electronic ballot between March 25 and March 31, 2015, to 
accept the

[[Page 53364]]

recommendations. On April 2, 2014, the RSAC announced that by majority 
vote the recommendations had been approved and would become its 
recommendation to the Administrator.
    The recommendation of the RSAC 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.
---------------------------------------------------------------------------

    \15\ A person is considered by the hours of service laws to be 
neither on duty nor off duty during periods they are either waiting 
for or in deadhead transportation to their point of final release 
(i.e., have completed their time on duty and are waiting for or in 
transportation to end their duty tour). In order to be considered 
``waiting for'' deadhead transportation, the person must not be 
required to perform other duties. Merely being on a train and 
remaining sufficiently alert to respond to any unintended movement 
of the equipment is not inherently performing a duty; being on or 
with the train is a necessary element of waiting for transportation 
from the train. This is true even when the railroad receives the 
benefit of having the train attended while employees aboard wait for 
transportation. Such time is considered ``limbo time'' and is not 
contingent upon the train's securement status. See BLET v. Atchison 
Topeka and Santa Fe Railway, 516 U.S. 152 (1996) (holding that the 
time waiting for deadhead transportation under the hours of service 
laws must be counted as ``limbo time.''). However, should the 
employee be required to perform some activity to prevent the 
movement of the equipment or to secure the train prior to departing 
with deadhead transportation, then the time spent performing the 
activity and any intervening time spent waiting would be considered 
covered and commingled service respectively. See 49 CFR part 228, 
app. A. Thus, whether a train is secured or unsecured when an 
employee is waiting for deadhead transportation, that waiting time 
will count as limbo time, so long as no covered activities are 
performed.
---------------------------------------------------------------------------

    FRA also notes that this proposed rule does not include the portion 
of Emergency Order 28 that requires railroads to review, verify, and 
adjust, as necessary, existing requirements and instructions related to 
the number of hand brakes to be set on unattended trains and vehicles, 
and to review and adjust, as necessary, the procedures for verifying 
that the number of hand brakes is sufficient to hold the train or 
vehicle with the air brakes released. It was FRA's concern that 
existing railroad processes and procedures related to setting and 
verifying hand brakes on unattended trains and equipment were not 
sufficient to hold all trains and vehicles in all circumstances. FRA 
believes that the railroads have fulfilled this requirement and thus 
there is no need to include it in this proposed rule. FRA seeks 
comments on the exclusion of this Emergency Order 28 requirement here.

Proposed Amendments to 49 CFR Part 232

Section 232.5 Definitions

    In the 2001 rule, the definition of ``unattended equipment'' was 
included in Sec.  232.103(n). As further discussed below, FRA is 
proposing a new paragraph (h) for Sec.  232.105, which would also make 
use of the definition for ``unattended equipment.'' Since the term 
would be used in multiple sections, FRA believes it would be prudent to 
move the definition to the more broadly applicable definitions in Sec.  
232.5. Doing so would also allow FRA to rephrase paragraph (n) for 
clarity purposes, as discussed further below. Proposed placement of the 
definition in Sec.  232.5 would not change its meaning and would be 
solely for applicability and clarity purposes.
    FRA proposes changing the term ``yard limits'' to ``yard'' without 
any change to its definition, with concurrent changes from ``yard 
limits'' to ``yard'' in Sec.  232.103(n). FRA also proposes to include 
the term ``yard'' in its new Sec.  232.105(h). As currently defined in 
part 232, a yard limit is ``a system of tracks, not including main 
tracks and sidings, used for classifying cars, making-up and inspecting 
trains, or storing cars and equipment.'' But in part 218, yard limits 
are described as a railroad-designated operating territory that is 
established by yard limit signs; and timetable, train orders, or 
special instructions. See 49 CFR 218.35(a). Making this change 
clarifies that specific securement practices are connected to the 
physical presence of a yard, and not to an operating practices 
description of yard limits, which could potentially encompass an entire 
railway system.

Section 232.103 General Requirements for all Train Brake Systems

    As previously noted, FRA is proposing to move the definition of 
``unattended equipment'' to Sec.  232.5, creating an opportunity to 
rephrase and clarify the introductory language of paragraph (n). Part 
of this proposal is to move the opening sentence in paragraph (n)--``A 
train's air brake shall not be depended upon to hold equipment standing 
unattended on a grade (including a locomotive, a car, or a train 
whether or not locomotive is attached)''--to paragraph (n)(2). The 
introductory language of paragraph (n) would remain more succinct and 
clear.
    While it is not an RSAC recommendation, FRA also proposes to amend 
paragraph (n)(1) to make more clear its existing expectation that in 
most circumstances at least one hand brake must be applied to hold 
unattended equipment. While this has been stated in earlier rulemakings 
and guidance documents, see e.g., TB 10-01, there has been some 
confusion about whether the use of wheel chocks, skates, or other 
securement devices is sufficient to hold unattended equipment. FRA's 
longstanding interpretation is that at least one hand brake is required 
to hold unattended equipment except in certain limited situations. For 
instance, in a hump classification yard an alternative form securement, 
such as skates and retarders may be allowed provided they are used 
within their design criteria and as intended. FRA believes adding 
explicit language to the regulatory text is warranted in order to 
formally address the requirement to set at least one hand brake in most 
instances.
    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

[[Page 53365]]

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 Sec.  173.31(f)(2) of this title.
    FRA notes that this language is broader than the language used in 
PHMSA's NPRM on Enhanced Tank Car Standards and Operational Controls 
for High-Hazard Flammable Trains (HHFTs). See 79 FR 45016 (Aug. 1, 
2014). In that rule, PHMSA proposed certain new requirements for HHFTs, 
which it defines as ``a train comprised of 20 or more carloads of a 
Class 3 flammable liquid and ensures that the rail requirements are 
more closely aligned with the risks posed by the operation of these 
trains.'' 79 FR at 45017. Paragraph (n)(6) proposes new securement 
requirements that would cover a single PIH tank car. Moreover, where 
the proposed PHMSA rule would only cover trains with 20 or more 
carloads of flammable liquids, paragraph (n)(6) proposes to cover 
situations where there are 20 or more carloads or loaded intermodal 
portable tanks of PIH materials, flammable gases, flammable or 
combustible liquids, explosives, other hazard substances listed at 
Sec.  173.31(f)(2), or any combination thereof. FRA seeks comment on 
this proposal and also seeks comment on whether a defined term should 
be used for equipment covered under paragraph (n)(6).
    The proposed regulatory text exempts residue cars from 
consideration. Residue cars are defined by PHMSA under the HMRs. FRA 
will continue to rely on the HMRs for this definition, even if amended. 
Together, FRA and PHMSA are concurrently considering new regulations 
relating to the placement in trains of cars containing hazardous 
materials. In that effort, loaded and residue cars may be treated the 
same. FRA does not believe that any resulting train placement 
regulation would affect the securement regulations we are considering 
in the instant proceeding. 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

[[Page 53366]]

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\
---------------------------------------------------------------------------

    \16\ The reverser is the directional control for the locomotive. 
Removing the reverser would essentially put the locomotive in 
neutral, preventing it from moving forward or backward under the 
power of the engine.
---------------------------------------------------------------------------

    Proposed paragraph (n)(8)(i) requires that an employee responsible 
for securing equipment defined by paragraph (n)(6) verify securement 
with another qualified person. This is similar to Emergency Order 28 
which currently requires employees to verify proper securement with a 
qualified railroad employee. This may be done by relaying pertinent 
securement information (i.e., the number of hand brakes applied, the 
tonnage and length of the train or vehicle, the grade and terrain 
features of the track, any relevant weather conditions, and the type of 
equipment being secured) to the qualified railroad employee. The 
qualified railroad employee must then verify and confirm with the train 
crew that the securement meets the railroad's requirements. However, 
proposed paragraph (n)(8)(i) does not contain a requirement that the 
railroad maintain a record of the verification of proper securement.
    FRA believes that the type of verification requirement in proposed 
paragraph (n)(8)(i) will serve to ensure that any employee who is 
responsible for securing equipment containing hazardous materials will 
follow appropriate procedures because the employee will need to fully 
consider the securement procedures to relay what was done to the 
qualified employee. Further, the qualified railroad employee (e.g. a 
trainmaster, road foreman of engines, or another train crew employee) 
will be in a position to ensure that a sufficient number of hand brakes 
have been applied. Under this proposed rule, the qualified railroad 
employee must have adequate knowledge of the railroad's securement 
requirements for the specific location or for the specific circumstance 
for which the equipment will be left unattended. 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

[[Page 53367]]

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 Sec.  232.103(n).
    Under this proposal, FRA expects that the crew will discuss the 
equipment that is impacted, the responsibilities of each employee 
involved in the securement of a train or vehicle, the number of hand 
brakes that will be required to secure the affected equipment, the 
process for ensuring that securement is sufficient, how the 
verification will be determined, and any other relevant factors 
affecting securement. FRA seeks comments on whether these expectations 
are reasonable, accurate, and either sufficiently comprehensive or 
somehow lacking.
    FRA recognizes that in some instances, there may be only one crew 
member performing a switch or operation and that would have to secure 
equipment alone at the end of the activity. FRA believes that the issue 
of self-satisfying a job briefing is best left to the railroad when 
complying with part 218. 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 Sec.  232.105 to provide 
further requirements concerning locking mechanisms on locomotive doors. 
While proposed Sec.  232.103(n)(8)(ii) provides securement controls for 
the controlling locomotive cab that is left unattended on a mainline 
track or siding as part of a train that meets the minimum quantities of 
hazardous materials established in proposed Sec.  232.103(n)(6)(i), FRA 
believes that additional requirement should apply to all locomotives 
left outside a yard. Accordingly, FRA proposes including those 
requirements under Sec.  232.105.
    During the meetings of the RSAC SWG, representatives of the labor 
unions proposed requiring the installation of locking mechanisms on all 
locomotives covered by these proposed rules. AAR subsequently committed 
that all locomotives will be equipped with cab door locks by March of 
2017. AAR clarified its statement by ensuring that there will be no 
distinction between interchange and non-interchange locomotives. In the 
interest of codifying this deadline as applicable to the scope of this 
proposed rule, paragraph (h)(1) proposes that after March 1, 2017, each 
locomotive left unattended outside of a yard be equipped with an 
operative exterior locking mechanism. By no means does this requirement 
limit AAR's ambition that its members equip additional locomotives 
(e.g., switching locomotives inside a yard) in their respective fleets. 
FRA also proposes to include this requirement in Sec.  232.105 so that 
it applies to all locomotives left unattended outside of a yard or on a 
track immediately adjacent to a yard, not just those locomotives 
defined under Sec.  232.103(n)(6). FRA seeks comment on this 
requirement.
    Proposed paragraphs (h)(2) and (h)(3) are meant to ensure that 
locking mechanisms, if broken or otherwise inoperative, are repaired in 
a reasonable timeframe. FRA expects that each locomotive equipped with 
a locking mechanism will be inspected and maintained at the time of the 
locomotive's periodic inspection. See 49 CFR 229.23. If a locking 
mechanism is found inoperative at any time other than the periodic 
inspection, proposed paragraph (h)(3) would require the railroad to 
repair it within 30 days. However, if the periodic inspection falls 
within the 30-day limit for repair, FRA would expect that the lock will 
be repaired at the time of the periodic inspection in accordance with 
the requirement in paragraph (h)(2). For instance, if a locomotive 
engineer were to find the lock inoperative during a daily inspection 
and the periodic inspection was scheduled 15 days later, then FRA would 
expect that the railroad

[[Page 53368]]

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 Sec.  232.103(n)(6) is 
left unattended and without an operative lock, then the railroad must 
default to the alternative securement option governing the reverser 
under proposed Sec.  232.103(n)(8)(ii) or fall under the exception 
provided per proposed Sec.  232.103(n)(8)(iii).

IV. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be significant under 
Executive Order 12866, Executive Order 13563, and DOT policies and 
procedures. 44 FR 11034 (Feb. 26, 1979). For purposes of analyzing this 
rule, FRA uses as a baseline the rules in effect at the time of 
publication, including Emergency Order 28. The analysis separately 
quantifies ongoing costs of Emergency Order 28 that might exceed 
business practices that would remain in effect in absence of Emergency 
Order 28. It is reasonable to assume that most of the requirements of 
Emergency Order 28 would continue as business practices; for example 
the railroads have already improved their practices in determining the 
proper application of hand brakes to secure a train and the 
verification that the hand brake application is adequate. Further, the 
exterior locking mechanism provision in the rule reflects an existing 
commitment among AAR member railroads, which had been working on 
developing a lock standard applicable to its members for over a year, 
so the costs associated with this provision are limited to non-AAR 
member railroads, primarily short line railroads. This analysis also 
does not include sunk costs.
    FRA was able to quantify the costs of the proposed rule, but not 
able to quantify all the benefits, as many of the benefits are the 
result of reducing risk from high consequence, low probability events 
that are not easily quantified. Thus, FRA will discuss the benefits 
that can be quantified, that by themselves justify the cost of the 
proposal and will provide a brief discussion of the non-quantified 
benefits. The monetized discounted and annualized net benefits would 
be:

------------------------------------------------------------------------
                                                 Discounted value
                                         -------------------------------
            Discounted values                     Discount factor
                                         -------------------------------
                                                7%              3%
------------------------------------------------------------------------
Total...................................      $1,076,984      $1,479,331
Annualized..............................          95,009          96,538
------------------------------------------------------------------------

Statement of Need

    The United States has experienced a dramatic growth in the quantity 
of flammable materials being shipped by rail in recent years. According 
to the rail industry, in the U.S. in 2009, there were 10,800 carloads 
of crude oil shipped by rail. In 2013, there were 400,000 carloads. In 
the Bakken region, over one million barrels a day of crude oil was 
produced in March 2014,\17\ most of which is transported by rail. 
Transporting flammable material carries safety and environmental risks. 
The risk of flammability is compounded in the context of rail 
transportation because petroleum crude oil and ethanol are commonly 
shipped in large unit trains. In recent years, train accidents 
involving a flammable material release and resulting fire with severe 
consequences have occurred with increasing frequency (i.e. Arcadia, OH, 
Plevna, MT, Casselton, ND, Aliceville, AL, Lac-M[eacute]gantic, 
Quebec).
---------------------------------------------------------------------------

    \17\ Information regarding oil and gas production is available 
at the following URL: http://www.eia.gov/petroleum/drilling/#tabs-summary-2.
---------------------------------------------------------------------------

    Shippers and rail companies are not insured against the full 
liability of the potential consequences of incidents involving 
hazardous materials. As a result, these events impose externalities. 
Among Class I railroads, a self-insured retention of $25 million is 
common, though it can be as much as $50 million, especially when PIH/
TIH material is involved. Smaller regional and short line carriers, 
i.e., Class II and Class III railroads, on the other hand, typically 
maintain retention levels well below $25 million as they usually have a 
more conservative view of risk and usually do not have the cash-flow to 
support substantial self-insurance levels. At this time, the maximum 
coverage available in the commercial rail insurance market appears to 
be $1 billion per carrier, per incident.\18\ While this level of 
insurance is sufficient for the vast majority of accidents, it appears 
that no amount of coverage is adequate to cover a higher consequence 
event. One example of this issue is the incident that occurred at Lac 
M[eacute]gantic, Quebec, in July of 2013. The rail carrier responsible 
for the incident was covered for a maximum of $25 million in insurance 
liability, and it had to declare bankruptcy because that coverage and 
the companies remaining capital combined were insufficient to pay for 
more than a fraction of the harm that was caused. This is one example 
where rail carriers and shippers may not bear the entire cost of 
``making whole'' those affected when an incident

[[Page 53369]]

involving crude and ethanol shipment by rail occurs.
---------------------------------------------------------------------------

    \18\ See ``The Transportation of Hazardous Materials: Insurance, 
Security, and Safety Costs,'' DOT Report to Congress, December 2009, 
at http://www.dot.gov/office-policy/transportation-hazardous-materials-insurance-security-and-safety-costs.
---------------------------------------------------------------------------

    FRA believes that the failure to secure equipment decreases the 
safe transportation of goods by rail, and increases the possibility of 
a higher-consequence event, particularly when dealing with a key train 
transporting a material such as crude oil. It is difficult to assess 
how much of the decrease in safety is from railroads not requiring 
their employees to secure equipment or from employees failing to comply 
with railroad securement requirements. The Lac-M[eacute]gantic accident 
shows that the railroads were not successful using operating rules in 
effect at the time of the accident, perhaps because an employee did not 
follow those rules or might not have had adequate guidance on what 
constituted adequate securement. FRA believes that use of its authority 
will enhance compliance with railroad issued orders. There may also 
have been an issue of incomplete information--which can cause a market 
failure--that was corrected in the wake of the Lac-M[eacute]gantic 
accident and Emergency Order 28, in that railroads had not yet 
developed the procedures required in response to Emergency Order 28. 
This problem of incomplete information related to securement procedures 
has been addressed, so it is not part of the baseline. Finally, 
incomplete information also may be causing a market failure among some 
railroads that have not put locks on their locomotives left outside 
yards.

Cost-Benefit Analysis of Individual Sections

    Following is a discussion of the regulatory costs and benefits 
associated with each proposed requirement.
    Proposed changes to the definition in Sec.  232.5 have no 
substantive impact and do not result in any new costs or benefits.
    Proposed changes to Sec.  232.103(n)(2) will have negligible impact 
or real burdens, but may increase compliance with existing rules. As 
noted above, the changes being proposed to this paragraph merely 
clarify FRA's longstanding interpretation, application, and enforcement 
of the existing regulation.
    Proposed Sec.  232.103(n)(6) lists types of trains and equipment 
covered by proposed Sec.  232.103(n)(7) and (n)(8), but does not 
directly impose any specific requirements.
    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 $50 per hour 
the cost over 20 years, undiscounted cost would be $150, and the annual 
cost would only be $7.50. FRA requests comments on the current and 
future levels of train operations impacted and the labor estimates 
associated with compliance.
    Proposed 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 Sec.  
232.103(n) would create no new benefits or costs, compared to the base 
case.
    Proposed Sec.  232.103(n)(8)(ii) requires that the controlling 
locomotive cab of a freight train described in paragraph

[[Page 53370]]

(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 Sec.  232.105(h) each locomotive will have been equipped with 
a lock, and if there should be a lock malfunction, removing the 
reverser will be sufficient to comply. Removing the reverser of such a 
locomotive is likely to be a business practice required by operating 
rules except for two conditions. The first condition is where the 
locomotive does not have a removable reverser. Such locomotives are 
relatively old and are rarely used outside of yard operations. The 
second condition is where there is a reason to keep the locomotive 
running while standing. Almost all locomotives can idle with the 
reverser removed, but there are no locomotives that can run at speeds 
above normal idle, sometimes needed for cold weather conditions, with 
the reverser removed. If a lock should malfunction under either of 
those two conditions, a railroad could comply by several means:
     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 Sec.  232.103(n)(8)(ii) on main track or 
sidings outside of yards are imposed by Emergency Order 28, so they are 
not new burdens, and they still are relatively small. For purposes of 
this analysis, FRA conservatively estimates that 1,000 trains per day 
\19\ will be subject to the proposed requirements of Sec.  
232.103(n)(8)(ii), but that 90 percent of them will be excepted under 
proposed Sec.  232.103(n)(8)(iii), because they will have routing that 
calls for unattended stops only in or adjacent to yards.\20\ That 
leaves 100 trains per day, or 36,500 trains per year. FRA estimates 
that one in 500 locomotives or 73 per year will have a defective lock. 
FRA also estimates that 50 percent, or 36.5 per year, would have been 
left running while unattended, or would have been equipped with a non-
removable reverser. A locomotive would be left running either to avoid 
cold weather starting or to avoid a brake test when the next crew takes 
charge of the train. If the locomotive would have been left running to 
maintain brake pressure, the train crew can leave one of the trailing 
locomotives running to maintain brake pressure, and lock its door. FRA 
estimates that in all but ten cases per year, the railroad will have 
been notified of the lock malfunction, and will have the next crew or 
current crew take the train to a yard or its destination, avoiding any 
costs.\21\
---------------------------------------------------------------------------

    \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.
    \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.
    \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.

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\
---------------------------------------------------------------------------

    \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.

    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 
$0.56 per mile for 20 miles, or $11.20 per incident. In addition, the 
installation is expected to require two hours service time, including 
travel, for two repair personnel, at an estimated cost of $50 per 
person hour,\23\ for a labor cost of $200. The installation is expected 
to cost $100 if the railroad does not install a standard lock, one case 
per year. The total cost for this repair would be $11.20 for 
transportation, $100 for materials, plus $200 for labor, a total of 
$311.20. If the railroad replaces the existing lock, then no materials 
cost is added, because the railroad could have been expected to replace 
the lock at the next yard. The total cost to replace an existing lock 
would be $11.20 for transportation, plus $200 for labor for a total of 
$211.20. The total cost to replace existing locks is 2 times $211.20, 
or $422.40. The total cost for lock replacement includes the negligible 
costs if the crew has a lock that fits an existing hasp, plus $311.20

[[Page 53371]]

to install a new hasp and lock, plus $422.20 to replace existing locks, 
a total of $733.60. In any estimate of net present value, the labor 
costs for lock installation should not be incremented by a factor to 
account for growth in real wages, because the growth in real wages is 
assumed to be directly related to productivity. The more productive the 
worker, the fewer hours needed to install a lock, including reductions 
in time needed to travel. FRA believes that small railroads will not be 
affected by these costs because small railroads will use a lock and 
hasp system and will be able to replace the lock before the train is 
left stopped, should the lock malfunction.
---------------------------------------------------------------------------

    \23\ Surface Transportation Board (STB) wage data show that the 
average compensation for personnel engaged in Maintenance of 
Equipment & Stores was $28.46 in 2013. FRA adds a 75 percent burden 
which would yield $49.81 per hour, which is rounded here to $50 per 
hour.
---------------------------------------------------------------------------

    FRA estimates the cost to switch locomotives at $150 for the cost 
of switching and at least $500 for a brake test after switching, for a 
total of $650 per train. A railroad is unlikely to do this unless the 
purpose of keeping engines running was to keep the engines warm on a 
cold day, no stop was likely at a location where the lock could be 
repaired, and at least one more stop was likely on the train's route. 
The likelihood of such a situation is so small as to be negligible. FRA 
does not believe this is a likely response, and this value is not used 
any further.
    FRA estimates the cost to attend a standing train at $470 per 
incident,\24\ or a total of $2,350 per year for 5 incidents, which 
assumes a burdened rate for labor of $51.04 per hour.
---------------------------------------------------------------------------

    \24\ STB wage data show that the average compensation for 
personnel engaged in Train, Yard and Engine was $29.16 in 2013. FRA 
adds a 75 percent burden which would yield $51.04 per hour. The 
minimum payment for qualified personnel called out is a fixed sum or 
hourly pay, whichever is greater. The fixed amount is roughly equal 
to 8 hours' pay. There may be instances where the duration of the 
assignment exceeds 8 hours. FRA assumed a 9 hour average pay, or 9 
times $51.04, for a burdened wage of $459.32 per incident. FRA 
further assumed $11.20 in travel costs, or a total cost of $470.52 
per incident, which FRA rounded to $470 per incident.
---------------------------------------------------------------------------

    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:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Annual total
                         Approach taken                              Unit cost       Frequency         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.......................................................  ..............  ..............   \25\ 3,083.60
----------------------------------------------------------------------------------------------------------------

The total cost imposed by proposed section 232.103(n)(8)(ii) would be 
$2,350 plus $311.20 plus $411.40 per year, a total of $3,083.60, or 
roughly $3,100, per year.
---------------------------------------------------------------------------

    \25\ Rounds to $3,100.
---------------------------------------------------------------------------

    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, $29.16 is the direct wage portion. Multiplying the direct 
wage portion hourly rate against 9 hours pay per event with 5 events 
per year, the direct wage portion annual cost total is $1,312.33, which 
we will round to $1,300. These direct wage costs for train personnel 
will need to be incremented by a factor of 1.18 percent per year to 
account for increases in real wage, induced by increased productivity 
in accordance with estimates from the Congressional Budget Office.\26\
---------------------------------------------------------------------------

    \26\ Based on real wage growth forecasts from the Congressional 
Budget Office, DOT's guidance estimates that there will be an 
expected 1.18 percent annual growth rate in median real wages over 
the next 30 years (2013-2043).
---------------------------------------------------------------------------

    FRA compiled the following summary table, using initial annual 
costs of $3,100 (i.e., the first year's annual locomotive locks costs 
total rounded up), broken into direct wage costs for simply attending 
trains, $1,300--which are increased every year by 1.18 percent to 
account for growth in real wages, whereas the first year's increase 
would result in a direct wage cost of $1,315.34--and other costs of 
$1,800, including initial burden on wages to attend trains, labor costs 
to repair or replace locks, where productivity growth is assumed to 
match growth in real wages, and costs for other items. The costs are 
all the result of actions taken to comply with attendance of a train in 
the event a locking mechanism becomes inoperative:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                         Discounted value
                                                                                                         -----------------------------------------------
                          Year                             Wage inflator    Direct wage      All other                            Discount factor
                                                             (percent)         cost            costs        Total costs  -------------------------------
                                                                                                                                7%              3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
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

[[Page 53372]]

 
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 Sec.  232.103(n)(9), is unchanged from Emergency Order 28, 
and will impose no new burden nor create any new benefit for train 
crews with more than one crew member. Proposed Sec.  232.103(n)(10) 
requires railroads to 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. This was required by Emergency Order 28 and remains 
unchanged from Emergency Order 28, and will impose no new burden nor 
create any new benefit. FRA also believes that after the Lac 
M[eacute]gantic accident that railroads would have adopted this 
practice even in the absence of Emergency Order 28, as a standard 
business practice, so FRA is confident that this section creates no new 
benefits or costs.
    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 $50 per hour, the annual cost of the Emergency Order 
28 recordkeeping requirement is $86,700, and that cost would be 
eliminated by the proposed rule. FRA believes the recordkeeping 
requirements have been relatively more onerous for smaller railroads, 
but does not have a breakdown of the proportion of the cost reduction 
benefit that will accrue to small railroads.
    Proposed Sec.  232.105(h) requires, after March 1, 2017, that each 
locomotive left unattended outside of a yard shall be equipped with an 
operative exterior locking mechanism. AAR standard S-5520 requires that 
each locomotive left unattended outside of a yard shall be equipped 
with an operative exterior locking mechanism, and requires that 
locomotives be equipped in order to be used in interchange service. 
These mechanisms will meet the requirements of proposed Sec.  
232.105(h). FRA believes that for Class I and Class II railroads, all 
costs and benefits of proposed Sec.  232.105(h) will be a result of 
business practices because their locomotives operate in interchange 
service. These railroads are already in the process of installing 
exterior locking mechanisms on all of their locomotives that do not 
operate exclusively in yard service. FRA further believes that small 
railroads have already equipped virtually all of their locomotives with 
exterior locking mechanisms. This was discussed at RSAC meetings.
    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 Adirondack Scenic Railroad was vandalized 
on or around

[[Page 53373]]

October 15, 2013.\27\ Damage to the locomotive was approximately 
$50,000, and does not include lost revenue. Anecdotal reports are that 
the vandals removed the copper wiring, which has value as scrap. This 
event was not reported to FRA. This is an example of unreported 
vandalism, and FRA staff believes that a great deal of vandalism is 
unreported, largely because the events do not meet all the requirements 
that would result in filing an accident/incident report with FRA. Over 
the years, FRA staff has received several first-hand accounts of 
vandalism or cabs occupied by intruders. FRA believes that the 
likelihood of vandalism or cabs being occupied by trespassers increases 
as the likelihood of railroad observation of the train decreases. Most 
small railroads operate in environments with a lower than average 
likelihood of observation. FRA believes that vandalism is also more 
likely to have a severe impact on a small railroad's operations since 
these railroads do not have many spare locomotives or personnel. If a 
railroad has ten locomotives and five get vandalized, its operations 
will be severely impacted. Likewise if a small railroad's operating 
crew is injured by an intruder in a cab, the operations for that day 
will likely be halted. As indicated by small railroad representatives 
at RSAC, small railroads do generally equip their locomotives with 
exterior cab locks. FRA believes that if all small railroads considered 
the impacts of vandalism and intruders, the small railroads would and 
have installed exterior cab locks.
---------------------------------------------------------------------------

    \27\ Adirondack Scenic Railroad Locomotive Vandalized, North 
County Public Radio Web site, October 15, 2013.
---------------------------------------------------------------------------

    The unit cost for a locking mechanism meeting AAR standard S-5520 
is $215. FRA believes that smaller railroads could comply with proposed 
Sec.  232.105(h) with a simpler lock and hasp system, for a unit cost 
of $100. FRA requests comment regarding this estimate. Given the 
smaller number of locomotives, personnel, territory, and facilities, 
use of this type of system would not be problematic.
    FRA believes that no more than 500 locomotives belonging to Class 
III railroads lack locking mechanisms that comply with proposed Sec.  
232.105(h). Thus, the cost to install the locking mechanisms would be 
no more than 500 times $100, or $50,000.
    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 $50,000 in damage to a 
modern cab. The repairs not only would involve removal and replacement 
of damaged components, but would also involve calibration. For purposes 
of this analysis, FRA is assuming 1 percent of locomotives would be 
vandalized each year if not equipped with locks, and the mean cost of a 
vandalism incident is $3,000. The expected cost of vandalism is 
therefore $30 per locomotive year for unequipped locomotives.
    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 $100, including 
costs to clean debris and inspect to determine that nothing in the cab 
has been damaged. This cost represents 20 minutes delay with a train 
delay cost. The economic impact of slowing trains depends upon multiple 
factors including other types of trains, other train speeds, 
dispatching requirements, work zones, and topography. Looking at 
numerous variables, for purposes of another analysis, DOT estimated the 
average cost of a train delay to be $500 per hour.\28\ This cost 
estimate was determined by reviewing costs associated with crew 
members, supply chain logistic time delays based on various freight 
commodities, and passenger operating costs for business and other 
travel. It is reasonable to assume that delays to smaller railroad 
operations are lower in cost. Thus, for purposes of this analysis, for 
the impacted railroads, FRA is using an hourly train delay cost of $300 
per hour. FRA requests comment regarding this assumption. Thus the cost 
per year for 500 locomotives would be 500 times 5 percent times $100, 
or $2,500, or $5 per locomotive year. Added to the vandalism cost the 
total cost of exposure would be $35 per locomotive year. If an 
installation of a locking mechanism costs $100, it would take less than 
3 years for the locks to pay for themselves (before applying discount 
factors). FRA believes that in the absence of this rule most small 
railroads would apply locking mechanisms to locomotives left unattended 
outside of yards, especially in light of the vandalism incident on the 
Adirondack Scenic Railroad. FRA believes the net cost of installing and 
using the locks for small railroads is zero because the installation 
cost is offset by the business benefits.
---------------------------------------------------------------------------

    \28\ PHMSA's proposed rule ``Hazardous Materials: Enhanced Rail 
Tank Car Standards and Operational Controls for High-Hazard 
Flammable Trains'' applies a $500 per hour estimate of the cost of 
delay for the rail network overall. 79 FR 45015 (Aug. 1, 2014).
---------------------------------------------------------------------------

    FRA assumes the locks will be purchased in the first year, because 
the business benefit is apparent. Thus, the costs are $100 times 500 
locomotives, or $50,000, the same at both discount rates because 2015 
is not discounted.

----------------------------------------------------------------------------------------------------------------
                                                                                         Discounted value
                                                                                 -------------------------------
                              Year                                  Total costs           Discount factor
                                                                                 -------------------------------
                                                                                        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

[[Page 53374]]

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 Sec.  232.103(n)(6) was stolen and 
operated, it could easily cause the kinds of harm seen at in the 
Graniteville, South Carolina accident and the Lac M[eacute]gantic 
incident, with societal costs of $260 million to $1.2 billion. The Lac 
M[eacute]gantic incident is illustrative of, but not necessarily the 
outer limit of, a high-consequence event scenario for derailment of a 
paragraph (n)(6) train. The derailment occurred in a small town with a 
low population density by U.S. standards, but resulted in the deaths of 
47 people and the destruction of much of the downtown area. A year 
after the event, decontamination of the soil and water/sewer systems is 
still ongoing. Cleanup of the lake and river that flows from it has not 
been completed, and downstream communities are still using alternative 
sources for drinking water. Initial estimates of the cost of this event 
were roughly $1 billion, but the cleanup costs have doubled from 
initial estimates of $200 million to at least $400 million, and the 
total cost to clean up, remediate, and rebuild the town could rise as 
high as $2.7 billion. The frequency and magnitude of these events is 
highly uncertain. It is, therefore, difficult to predict with any 
precision how many of these higher consequence events may occur over 
the coming years, or how costly these events may be. In the worst case 
scenario for a fatal event, the results could be several times the 
damages seen at Lac M[eacute]gantic both in loss of life and other 
associated costs.
---------------------------------------------------------------------------

    \29\ Pierce Haviland, The Putnam Division, last updated November 
10, 2010, available at http://piercehaviland.com/rail/putnam.html 
This incident was probably not reportable because it occurred on an 
abandoned railroad, no longer part of the general system of rail 
transportation.
---------------------------------------------------------------------------

    In estimating the damages of a higher-consequence event, we begin 
with the current estimated damages of Lac M[eacute]gantic. We used this 
accident to illustrate the potential benefits of preventing or 
mitigating events of this magnitude. It is challenging to use this one 
data point to model potential damages of higher consequence events that 
differ in nature from the Lac M[eacute]gantic accident. However, as the 
volume of crude oil shipped by rail continues to grow, it is reasonable 
to assume that events of this magnitude may occur.
    By installing locks to avoid such dangers, the benefits indicated 
in the following table are $17,500 per year ($35 times 500 
locomotives), starting in 2016, the year after the locks are installed.

----------------------------------------------------------------------------------------------------------------
                                                                                         Discounted value
                                                                                 -------------------------------
                              Year                                Total benefits          Discount factor
                                                                                 -------------------------------
                                                                                        7%              3%
----------------------------------------------------------------------------------------------------------------
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 $86,700 per year, with 
no decrease in safety. In FRA's view, these savings more than offset 
the minor costs associated with the proposed rule.

----------------------------------------------------------------------------------------------------------------
                                                                                         Discounted value
                                                                                 -------------------------------
                              Year                                Total benefits          Discount factor
                                                                                 -------------------------------
                                                                                        7%              3%
----------------------------------------------------------------------------------------------------------------
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

[[Page 53375]]

 
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
                                                                                                                         -------------------------------
                          Year                             Wage inflator    Direct wage      All other      Total costs           Discount factor
                                                             (percent)         cost            costs                     -------------------------------
                                                                                                                                7%              3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015....................................................          101.18       $1,315.34         $51,800      $53,115.34         $53,115         $53,115
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...............................................  ..............  ..............  ..............  ..............          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:

----------------------------------------------------------------------------------------------------------------
                                                                                         Discounted value
                                                                                 -------------------------------
                              Year                                Total benefits          Discount factor
                                                                                 -------------------------------
                                                                                        7%              3%
----------------------------------------------------------------------------------------------------------------
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

[[Page 53376]]

 
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.

------------------------------------------------------------------------
                                                 Discounted value
                                         -------------------------------
            Discounted values                     Discount factor
                                         -------------------------------
                                                7%              3%
------------------------------------------------------------------------
Costs:
    Attending Trains....................         $36,685         $49,909
    Installing Locks....................          50,000          50,000
    Total Costs.........................          86,685          99,909
Benefits:
    Reduced Vandalism...................         180,873         250,666
    Reduced Recordkeeping...............         982,786       1,328,573
                                         -------------------------------
        Total Benefits..................       1,163,669       1,579,240
------------------------------------------------------------------------

    For further distillation, FRA calculated the net benefits over 20 
years:

------------------------------------------------------------------------
                                                 Discounted value
                                         -------------------------------
     Discounted values net benefits               Discount factor
                                         -------------------------------
                                                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 $3,236-$3,257 per year.\30\ These costs are 
balanced against an incident with costs of $260 million to $1.2 
billion, but with extremely low probability. The incidents avoided by 
attendance provisions would only occur where the train was not equipped 
with functioning locking mechanisms under conditions where the railroad 
would have sent a repair team out to the location of the train to 
repair the locking mechanism or would have sent a qualified employee to 
attend the train, roughly ten events per year. As discussed above, 
these situations would involve a locomotive that is left running either 
to avoid cold weather starting or to avoid a brake test when the next 
crew takes charge of the train. The number of events estimated is based 
on professional judgment. If the

[[Page 53377]]

event avoided is $330 million,\31\ and the annual cost is less than 
$3,300 for ten events, then the rule costs about $330 per event and 
would roughly break even if one in a million events of leaving a 
locomotive consist for one of the regulated trains unattended with an 
unlocked cab and a reverser unsecured in the cab were to result in a 
higher-consequence incident. FRA believes the small but relatively 
predictable annual cost is justified by the hard to measure very small 
probability, very high consequence incident risk avoided. The portion 
of the rule requiring attendance of a train with inoperative locking 
mechanisms will not affect the likelihood of such an incident where the 
locking mechanism is functioning or where railroad does not comply with 
the proposed rule.
---------------------------------------------------------------------------

    \30\ This cost is slightly increased by the increase in value of 
real wages over time.
    \31\ This estimate falls between the damages of Graniteville and 
Lac-Megantic. It is selected only for illustrative purposes.
---------------------------------------------------------------------------

    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 Sec.  232.103(n)(6) to be attended if left stopped outside 
yards, without regard to the presence of a locking mechanism or 
reverser. FRA believes that railroads would work to enhance routing and 
crew scheduling so that of the 1,000 affected trains per day, only 50 
would require unattended stops outside of yards. The cost per event to 
attend a train would be $470 per incident. The daily cost would be 50 
times $470, or $23,500. The annual cost would be $8,577,500.
    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. 601 et seq.).
    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 Sec.  
232.103(n)(6).
    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 $20 million or less in annual 
operating revenue. The $20 million limit (which is adjusted by applying 
the railroad revenue deflator adjustment) \33\ is based on the Surface 
Transportation Board's (STB) threshold for a Class III railroad 
carrier. FRA is using the STB's threshold in its definition of ``small 
entities'' for this rule.
---------------------------------------------------------------------------

    \32\ See 68 FR 24891 (May 9, 2003); 49 CFR Part 209, app. C.
    \33\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR Part 1201.
---------------------------------------------------------------------------

    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 Sec.  232.103. Small entities owning locomotives may 
incur a cost to install a locking mechanism under proposed Sec.  
232.105, but as also noted above, the locking mechanisms will pay for 
themselves in reduced vandalism costs in less than three years. FRA 
believes that at least 90 percent of affected locomotives are already 
equipped with locking mechanisms, and the cost to install a locking 
mechanism is $100 for a mechanism that does not have to comply with AAR 
standards for interchange. Any small railroad's locomotives operated in 
interchange service would have to have AAR compliant locks to remain in 
interchange service, but that is not a cost of the rule. Thus, the rule 
will impose a cost of $100 on about ten percent of locomotives, but the 
investment will pay for itself in less than three years. FRA believes 
this is not a substantial impact on any small entity.
    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

[[Page 53378]]

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 Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new and current information collection 
requirements and the estimated time to fulfill each requirement are as 
follows:

----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual
           CFR Section                 universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
229.27--Annual tests............  30,000 locomotives  120,000 tests.....  15 minutes........  30,000 hours.
232.3--Applicability--Export,     655 railroads.....  8 cards...........  10 minutes........  1 hour.
 industrial, & other cars not
 owned by railroads-
 identification.
232.7--Waivers..................  655 railroads.....  10 petitions......  160 hours.........  1,600 hours.
232.15--Movement of Defective     1,620,000 cars....  128,400 tags/       2.5 minutes.......  5,350 hours
 Equipment--Tags/Records.                              records.
    --Written Notification......  1,620,000 cars....  25,000 notices....  3 minutes.........  1,250 hours.
232.17--Special Approval
 Procedure.
    --Petitions for special       655 railroads.....  1 petition........  100 hours.........  100 hours.
     approval of safety-critical
     revision.
    --Petitions for special       655 railroads.....  1 petition........  100 hours.........  100 hours.
     approval of pre-revenue
     service acceptance plan.
    --Service of petitions......  655 railroads.....  1 petition........  20 hours..........  20 hours.
    --Statement of interest.....  Public/railroads..  4 statements......  8 hours...........  32 hours.
    --Comment...................  Public/railroads..  13 comments.......  4 hours...........  52 hours.
232.103--Gen'l requirements--all  114,000 cars......  70,000 sticker....  10 minutes........  11,667 hours.
 train brake systems--Stickers.
 
 Proposed Rule New Requirements
232.103(n)(3)(iv)--RR Procedure   Already Fulfilled   Fulfilled under     Fulfilled under     Fulfilled under
 for Securing Unattended           under OMB No. 210-  OMB No. 210-0601.   OMB No. 210-0601.   OMB No. 210-0601.
 Locomotive.                       0601.
232.103(n)(7)--RR Plan            655 railroads.....  10 revised plans..  10 hours..........  100 hours.
 Identifying Specific Locations
 or Circumstances where
 Equipment May Be Left
 Unattended.
    --Notification to FRA When    655 railroads.....  10 notices........  30 minutes........  5 hours.
     RR Develops and Hast Plan
     in Place or Modifies
     Existing Plan.
232.103(n)(8)--Employee           Included under      Included Under      Included under      Included under
 Verification with Another         Sec.                Sec.                Sec.                Sec.
 Qualified Employee of             232.103(n)(9).      232.103(n)(9).      232.103(n)(9).      232.103(n)(9).
 Securement of Freight Train or
 Freight Car Left Unattended.
232.103(n)(9)--RR Implementation  655 railroads.....  491 revised rules/  2 hours...........  982 hours.
 of Op. Rules/Practices                                practices.
 Requiring Job Briefing for
 Securement of Unattended
 Equipment.
    --Securement Job Briefings..  100,000 Employees.  23,400,000 job      30 seconds........  195,000 hours.
                                                       briefings.
232.103(n)(10)--RR Adoption of    655 railroads.....  100 inspections/    4 hours...........  400 hours.
 Procedure for Verification of                         records.
 Securement of Equipment by
 Qualified Employee--Inspection
 of Equipment by Qualified
 Employee after Responder Visit.
232.105--General requirements     30,000 Locomotives  30,000 forms......  5 minutes.........  2,500 hours.
 for locomotives--Inspection.
 
 Proposed Rule New Requirements
 
232.105(h)--RR Inspection of      30,000 Locomotives  30,000 insp.        30 seconds........  250 hours.
 Locomotive Exterior Locking                           records.
 Mechanism/Records.
    --RR Repair, where            30,000 Locomotives  73 repairs/records  60.25 minutes.....  73 hours.
     necessary, of Locomotive
     Exterior Locking Mechanism.
232.107--Air source requirements  10 new railroads..  1 plan............  40 hours..........  40 hours.
 and cold weather operations--
 Monitoring Plan (Subsequent
 Years).
    --Amendments/Revisions to     50 railroads/plans  10 revisions......  20 hours..........  200 hours.
     Plan.
    --Recordkeeping.............  50 railroads/plans  1,150 records.....  20 hours..........  23,000 hours.
232.109--Dynamic brake            655 railroads.....  1,656,000 rec.....  4 minutes.........  110,400 hours.
 requirements--status/record.
    --Inoperative dynamic         30,000 locomotives  6,358 records.....  4 minutes.........  424 hours.
     brakes: Repair record.
    --Tag bearing words           30,000 locomotives  6,358 tags........  30 seconds........  53 hours.
     ``inoperative dynamic
     brakes''.
    --Deactivated dynamic brakes  8,000 locomotives.  10 markings.......  5 minutes.........  1 hour.
     (Sub. Yrs.).
    --Operating rules             5 new railroads...  5 .rules..........  4 hours...........  20 hours.
     (Subsequent Years).
    --Amendments/Revisions......  655 railroads.....  15 revisions......  1 hour............  15 hours.

[[Page 53379]]

 
    --Requests to increase 5 mph  655 railroads.....  5 requests........  30 min. + 20 hours  103 hours.
     Overspeed restriction.
    --Knowledge criteria--        5 new railroads...  5 amendments......  16 hours..........  80 hours.
     locomotive engineers--
     Subsequent Years.
232.111--Train information        5 new railroads...  5 procedures......  40 hours..........  200 hours.
 handling.
    --Sub. Yrs.--Amendments/      100 railroads.....  100 revisions.....  20 hours..........  2,000 hours.
     Revisions.
    --Report requirements to      655 railroads.....  2,112,000 reports.  10 minutes........  352,000 hours.
     train crew.
232.203--Training requirements--  15 railroads......  5 programs........  100 hours.........  500 hours.
 Tr. Prog.--Sub Yr.
    --Amendments to written       655 railroads.....  559 revisions.....  8 hours...........  4,472 hours.
     program.
    --Training records..........  655 railroads.....  67,000 record.....  8 minutes.........  8,933 hours.
    --Training notifications....  655 railroads.....  67,000 notices....  3 minutes.........  3,350 hours.
    --Audit program.............  655 railroads.....  1 plan + 559        40 hours/1 min....  49 hours.
                                                       copies.
    --Amendments to validation/   655 railroads.....  50 revisions......  20 hours..........  1,000 hours.
     assessment program.
232.205--Class 1 brake test--     655 railroads.....  1,646,000 notices/  45 seconds........  20,575 hours.
 Notifications/Records.                                record.
232.207--Class 1A brake tests--   655 railroads.....  5 lists...........  1 hour............  5 hours.
 Designation Lists Where
 Performed.
    Subsequent Years: Notice of   655 railroads.....  250 notices.......  10 minutes........  42 hours.
     Change to.
232.209--Class II brake tests--   655 railroads.....  1,597,400 comments  3 seconds.........  1,331 hours.
 intermediate ``Roll-by
 inspection--Results to train
 driver.
232.213--Written Designation to   83,000 long dist.   250 letters.......  15 minutes........  63 hours.
 FRA of Extended haul trains.      movements.
232.303--General requirements--   1,600,000 frgt.     5,600 tags........  5 minutes.........  467 hours.
 single car test: Tagging of       cars.
 Moved Equipment.
    --Last repair track brake     1,600,000 frgt.     320,000 markings..  5 minutes.........  26,667 hours.
     test/single car test--        cars.
     Stenciled on Side of
     Equipment.
232.305--Single Car Tests--       1,600,000 frgt.     320,000 tests/      60 minutes........  320,000 hours.
 Performance and Records.          cars.               records.
232.307--Modification of single   AAR...............  1 request + 3       100 hours + 5       100 hours.
 car air brake test procedures:                        copies.             minutes.
 Requests.
    --Affirmation Statement on    AAR...............  1 statement + 4     30 minutes + 5      1 hour.
     Mod. Req. To Employee                             copies.             minutes.
     Representatives.
    --Comments on Modification    Railroad/Public...  2 comments........  8 hours...........  16 hours.
     Request.
232.309--Repair track brake test  640 shops.........  5,000 tests.......  30 minutes........  2,500 hours.
232.403--Unique Code............  245 railroads.....  12 requests.......  5 minutes.........  1 hour.
232.407--EOT Operations           245 railroads.....  50,000 verbal       30 seconds........  417 hours.
 requiring 2-way Voice Radio                           comments.
 Communications.
232.409--Inspection/Tests/        245 railroads.....  447,500 tests/      30 seconds........  3,729 hours.
 Records EOTs.                                         notices/record.
    --Telemetry Equipment--       245 railroads.....  32,708 units        1 minute..........  545 hours.
     Testing and Calibration.                          marked.
232.503--Process to introduce     655 railroads.....  1 letter..........  1 hour............  1 hour.
 new brake technology.
    --Special approval..........  655 railroads.....  1 request.........  3 hours...........  3 hours.
232.505--Pre-revenue svc accept.
 test plan.
    --Submission of maintenance   655 railroads.....  1 procedure.......  160 hours.........  160 hours.
     procedure.
    --Amendments to maintenance   655 railroads.....  1 revision........  40 hours..........  40 hours.
     procedure.
    --Design description........  655 railroads.....  1 petition........  67 hours..........  67 hours.
    --Report to FRA Assoc.        655 railroads.....  1 report..........  13 hours..........  13 hours.
     Admin. for Railroad Safety.
    --Brake system technology     655 railroads.....  1 description.....  40 hours..........  40 hours.
     testing.
232.603--Configuration            4 railroads.......  1 plan............  160 hours.........  160 hours.
 Management--Configuration
 Management Plan (ECP).
    --Subsequent Years--          4 railroads.......  1 plan............  60 hours..........  60 hours.
     Configuration Management
     Plans.
    --Request for Modification    4 railroads.......  1 request + 2       8 hours + 5         8 hours.
     of Standards and Extra                            copies.             minutes.
     Copies to FRA.
    --Affirmative Statements      4 railroads.......  4 statements + 24   60 minutes + 5      6 hours.
     that RRs have served copies                       copies.             minutes.
     of Modification Request to
     Employee Representatives.
    --Comments on requested       Public/Industry...  4 comments........  2 hours...........  8 hours.
     modification.
232.605--ECP Brakes: Training--   1 railroad........  1 program.........  100 hours.........  100 hours.
 Adopt/Developing an ECP
 Training Program--First Year.
    --Subsequent Years--ECP       1 railroad........  1 program.........  100 hour..........  100 hours.
     Training Prog.
    --ECP Brakes Training of      1 railroad........  1,602 trained       8 hours/24 hrs....  26,480 hours.
     Employees--First Year.                            employees.
    --ECP Brakes Training of      2 railroads.......  1,602 trained       1 hour/8 hours....  7,580 hours.
     Employees--Subsequent Years.                      employees.

[[Page 53380]]

 
    --ECP Training Records--Yr.   2 railroads.......  1,602 records.....  8 minutes.........  214 hours.
     One.
    --ECP Training Records--      2 railroads.......  1,602 records.....  4 minutes.........  107 hours.
     Subsequent Yrs.
    --Assessment of ECP Training  2 railroads.......  1 ECP plan........  40 hours..........  40 hours.
     Plan.
    --Adopt Operating Rules for   2 railroads.......  1 Oper. Rule......  24 hours..........  24 hours.
     ECP Brakes.
    --Amended Locomotive          2 railroads.......  1 amended programs  40 hours..........  40 hours.
     Engineer Certification
     Program (ECP Brakes).
232.607--ECP Inspection and       1 railroad........  2,500 insp.+ 2,500  90 min. + 45        3,781 hours.
 Testing--Initial Terminal--                           notices.            seconds.
 Inspections and Notification/
 Record of Class I Brake Tests.
    --Cars added or removed en    1 railroad........  250 inspection +    60 minutes + 45     253 hours.
     route--Class I Brake Test                         125 notices.        seconds.
     and Notification.
    --Non-ECP cars added to ECP   200 Cars..........  50 insp.+ 100 tags/ 5 minutes + 2.5     8 hours.
     Trains--Inspections and                           records.            minutes.
     Tags for Defective Cars.
232.609--Handling of Defective    25 Cars...........  50 tags/records...  2.5 minutes.......  2 hours.
 Equipment with ECP Brake
 Systems--Freight Car w/
 defective conventional brakes
 moved in train operating in ECP
 brake mode.
    --Inspections/Tagging for     20 Cars...........  20 insp. + 40 tags/ 5 minutes + 2.5     3 hours.
     ECP Train moving w/less                           records.            minutes.
     than 85 percent operative/
     effective brakes.
    --Cars tagged in accordance   25 Cars...........  50 tags/records...  2.5 minutes.......  2 hours.
     with Section 232.15.
232.609--Conventional Train with  50 Cars...........  100 tags/records..  2.5 minutes.......  4 hours.
 stand-alone ECP brake equipped
 cars--Tagging.
    --Procedures for handling     2 railroads.......  2 procedures......  24 hours..........  48 hours.
     ECP brake system repairs
     and designation of repair
     locations.
    --List of repair locations..  2 railroads.......  2 lists...........  8 hours...........  16 hours.
    --Notification to FRA Safety  2 railroads.......  1 notification....  1 hour............  1 hour.
     Administrator regarding
     change to repair location
     list.
232.611--Periodic Maintenance--   500 Freight Cars..  500 insp./rcds....  10 minutes........  83 hours.
 Inspections before being
 released from repair Shop.
    --Procedures/Petition for     1 Railroad Rep....  1 petition + 2      24 hours + 5        24 hours.
     ECP Single Car Test.                              copies.             minutes.
    --Single Car Air Brake        50 Freight Cars...  50 tests/records..  45 minutes........  38 hours.
     Tests--Records.
    --Modification of Single Car  1 Railroad Rep....  1 mod. Proc.......  40 hours..........  40 hours.
     Test 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:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Responses & avg. time   Responses & avg. time       Burden hours         FRA burden hours      Difference  (plus/
            CFR Section               (previous submission)     (this submission)    (previous submission)    (this submission)            minus)
--------------------------------------------------------------------------------------------------------------------------------------------------------
232.103(n)(7)--RR Plan identifying   0 revised plans.......  10 revised plans......  0 hours..............  100 hours............  +100 hours
 specific locations where equipment  0 hours...............  10 hours..............                                                +10 responses.
 may be left unattended.
    --Notification to FRA when RR    0 notices.............  10 notices............  0 hours..............  5 hours..............  +5 hours
     develops & has plan in place    0 minutes.............  30 minutes............                                                +10 responses.
     or modifies existing plan.
    --(n)(9)--Railroad               0 revised rules/        491 revised rules/      0 hours..............  982 hours............  +982 hours
     Implementation of operating      practices.              practices.                                                           +491 resp.
     rules requiring job briefing    0 hours...............  2 hours...............
     for securing unattended trains.

[[Page 53381]]

 
232.103(n)(9)--Securement Job        0 job briefings.......  23,400,000 job          0 hours..............  195,000 hours........  +195,000 hrs.
 Briefings.                          0 seconds.............   briefings.                                                           +23,400,000
                                                             30 seconds............                                                 responses.
    --(n)(10)--Inspection of         0 inspections.........  100 inspections.......  0 hours..............  400 hours............  +400 hours
     equipment after emergency       0 hours...............  4 hours...............                                                +100 resp.
     responder visit.
232.105(h)--RR inspection of         0 inspections.........  30,000 inspections/     0 hours..............  250 hours............  +250 hours
 exterior locking mechanism on       0 seconds.............   records.                                                             +30,000 resp.
 locomotive left unattended outside                          30 seconds............
 a yard.
    --RR repair, where necessary,    0 repairs/record......  73 repairs/records....  0 hours..............  73 hours.............  +73 hours
     of locomotive exterior locking  0 minutes.............  60.25 minutes.........                                                +73 responses.
     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. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone 
at 202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    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 Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    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 Federal Register.

D. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that 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.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local governments 
or the agency consults with State and local government officials early 
in the process of developing the regulation. Where a regulation has 
federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    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

[[Page 53382]]

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 the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. This rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

F. Environmental Assessment

    FRA has evaluated this 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 rule 
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)(20) of FRA's Procedures. See 64 FR 28547, May 26, 1999. 
Section 4(c)(20) reads as follows: ``(c) Actions categorically 
excluded. Certain classes of FRA actions have been determined to be 
categorically excluded from the requirements of these Procedures as 
they do not individually or cumulatively have a significant effect on 
the human environment. * * * The following classes of FRA actions are 
categorically excluded:

* * * (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 $100,000,000 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. 
For the year 2013, this monetary amount of $100,000,000 has been 
adjusted to $151,000,000 to account for inflation. This proposed rule 
will not result in the expenditure of more than $151,000,000 by the 
public sector in any one year, and thus preparation of such a statement 
is not required.

H. 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 a 
notice of inquiry, advance NPRM, and NPRM) that (1)(i) 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) is designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action. FRA has evaluated this proposed rule in 
accordance with Executive Order 13211. FRA has determined that this 
proposed rule will not have a significant adverse effect on the supply, 
distribution, or use of energy. Consequently, FRA has determined that 
this proposed regulatory action is not a ``significant energy action'' 
within the meaning of Executive Order 13211.

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 Federal Register published on April 11, 2000 (65 FR 19477-19478), 
or you may visit http://www.dot.gov/privacy.html.

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]

0
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.

0
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:


Sec.  232.5  Definitions.

* * * * *
    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 * * *
0
3. Amend Sec.  232.103 by:
0
a. Revising paragraphs (n) introductory text and (n)(1) through (3).
0
b. Adding paragraphs (n)(6) through (10).
    The revisions and additions read as follows:


Sec.  232.103  General requirements for all train brake systems.

* * * * *
    (n) Securement of unattended equipment. Unattended equipment shall 
be secured in accordance with the following requirements:

[[Page 53383]]

    (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 Sec.  171.8 of this title, including anhydrous 
ammonia (UN 1005) and ammonia solutions (UN 3318); or
    (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 Sec.  173.31(f)(2) of this title.
    (ii) For the purposes of this paragraph, a tank car containing a 
residue of a hazardous material as defined in Sec.  171.8 of this title 
is not considered a loaded car.
    (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.
* * * * *
0
4. Add paragraph (h) to Sec.  232.105 to read as follows:


Sec.  232.105  General requirements for locomotives.

* * * * *
    (h)(1) After March 1, 2017, each locomotive left unattended outside 
of a yard or on a track directly adjacent to the yard shall be equipped 
with an operative exterior locking mechanism.
    (2) The railroad shall inspect and, where necessary, repair the 
locking mechanism during a locomotive's periodic inspection required in 
Sec.  229.23 of this chapter.
    (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 Sec.  232.103(n)(6)(i) does not 
have an operative locking mechanism for the locomotive, the train must 
not be left unattended on main track or a siding unless the reverser is 
removed from the control stand as required in Sec.  232.103(n)(8)(ii) 
or the locomotive otherwise meets one of the exceptions described in 
Sec.  232.103(n)(8)(iii).
* * * * *

Joseph C. Szabo,
Administrator.
[FR Doc. 2014-21253 Filed 9-8-14; 8:45 am]
BILLING CODE 4910-06-P


