
[Federal Register Volume 80, Number 151 (Thursday, August 6, 2015)]
[Rules and Regulations]
[Pages 47349-47386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19002]



[[Page 47349]]

Vol. 80

Thursday,

No. 151

August 6, 2015

Part XIV





 Department of Transportation





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 Federal Railroad Administration





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49 CFR Part 232





 Securement of Unattended Equipment; Final Rule

  Federal Register / Vol. 80 , No. 151 / Thursday, August 6, 2015 / 
Rules and Regulations  

[[Page 47350]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

[Docket No. FRA-2014-0032, Notice No. 2]
RIN 2130-AC47


Securement of Unattended Equipment

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

ACTION: Final rule.

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SUMMARY: FRA amends 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 
codifies 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 amends 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), Division 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 provides additional 
communication requirements relating to job briefings and securement 
verification. Finally, FRA requires all locomotives left unattended 
outside of a yard to be equipped with an operative exterior locking 
mechanism. Attendance on trains is required on equipment not capable of 
being secured in accordance with the proposed and existing 
requirements.

DATES: This final rule is effective October 5, 2015. Petitions for 
reconsideration must be received on or before September 25, 2015. 
Petitions for reconsideration will be posted in the docket for this 
proceeding. Comments on any submitted petition for reconsideration must 
be received on or before November 9, 2015.

ADDRESSES: Petitions for reconsideration and comments on petitions for 
reconsideration: Any petitions for reconsideration or comments on 
petitions for reconsideration related to this docket may be submitted 
by any of the following methods:
     Web site: Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting 
documents.
     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 submissions 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
    D. Emergency Order 28 and Related Guidance
    E. RSAC Overview
    F. NPRM and Comments
III. Rescinding Emergency Order 28
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    Regulatory Flexibility Act and Executive Order 13272
    B. Paperwork Reduction Act
    C. Federalism
    D. International Trade Impact Assessment
    E. Environmental Assessment
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act
    I. Executive Order 12898 (Environmental Justice)
    J. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

Purpose of the Regulatory Action

    While FRA's existing securement regulations have been successful in 
mitigating risks associated with the unintended movement of unattended 
equipment, FRA recognizes that--particularly in light of certain 
incidents like the 2013 accident in Lac-M[eacute]gantic, Quebec, 
Canada--additional requirements are 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 issued a responsive notice of proposed rulemaking (NPRM) and this 
instant final rule. FRA is issuing this final rule 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 Regulatory Action

    In this proceeding, FRA issues requirements to ensure that each 
locomotive left unattended outside of a yard is 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 rule provides 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 rule also requires additional verification of 
securement in the event that a non-railroad emergency responder

[[Page 47351]]

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
                                         -------------------------------
    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 the 
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, 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. See 78 FR 48213, Aug. 7, 
2013. Subsequent to the 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 (MMA), a 
company incorporated in the United States.
    The Transportation Safety Board (TSB) of Canada issued a report at 
the conclusion of its investigation into the incident, and the 
following is a summary of the TSB's factual findings.\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 (which 
served as a type of special-purpose caboose), one 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--including setting the independent brake, but not the 
automatic brake--and departed by automobile, 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

[[Page 47352]]

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.
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    \1\ Railway Investigative Report R13D0054, TSB, July 6, 2013, 
available at http://www.tsb.gc.ca/eng/rapports-reports/rail/2013/R13D0054/R13D0054.pdf.
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    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 and 47 
fatalities.\2\ There was also extensive damage to the town, and 
approximately 2,000 people were evacuated from the surrounding area.
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    \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.
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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 are 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.
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    \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.
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    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.
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    \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 that have been 
approved by Transport Canada.
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    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 
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.
    FRA has decided that Emergency Order 28 will sunset on the 
effective date of this final rule. AAR and the American Short Line and 
Regional Railroad Association (ASLRRA) concur in their comments. Until 
such time, however, Emergency Order 28 will remain in effect, as 
amended by FRA's August 27, 2013, letter approving with conditions a 
joint petition for relief from the AAR and the ASLRRA. Railroads are 
required to comply with Emergency Order 28, as amended, in addition to 
49 CFR 232.103(n). As further discussed below, once Emergency Order 28 
sunsets upon the effective date of this final rule, the requirements of 
the Emergency Order that are not promulgated in this final rule will no 
longer apply. 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\
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    \5\ AAR has voluntarily applied Emergency Order 28 to trains 
that have a single PIH materials tank car.
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    (2) A railroad must develop a process for securing unattended 
equipment containing Appendix A Materials that includes: (a) Locking 
the controlling locomotive cab or

[[Page 47353]]

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\
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    \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.
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    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 it is taking--or has already taken--
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. The requirements in this 
final rule intend to enhance safety culture and oversight that 
addresses train securement. For instance, as further discussed below, 
FRA is mandating by regulation the implementation of operating rules 
and practices requiring that securement be part of all relevant job 
briefings. This final rule also requires 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 
final rule directly addresses this concern with requirements relating 
to the installation and use of locomotive exterior door locks and 
reverser removal.

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 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\
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    \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.

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[[Page 47354]]

    The MMA train in the Lac-M[eacute]gantic incident was transporting 
72 carloads of crude oil with five locomotives, a VB car, 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 generally classified by an offeror 
as a Class 3 flammable liquid; per PHMSA's Hazardous Materials 
Regulations (HMR), however, its packing group can be I, II, or III 
depending on the blend of constituent crude oils.\9\ 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 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.\10\
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    \9\ PHMSA uses packing groups to categorize hazardous materials 
according to the danger presented. Hazardous materials in Packing 
Group I present great danger; Packing Group II present medium 
danger; and Packing Group III presents minor danger. See 49 CFR 
171.8.
    \10\ See AAR's May 2013 paper ``Moving Crude Oil by Rail'', 
available online at: https://www.aar.org/safety/Documents/Assets/Transportation_of_Crude_Oil_by_Rail.pdf.
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    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.\11\ 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.
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    \11\ 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.
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    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 400 individuals and 20 businesses 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 both investigated this accident and determined that it was 
caused by a sudden rail failure under the moving train.
    On December 30, 2013, a westbound grain train derailed 13 cars near 
Casselton, North Dakota, fouling main track 2.\12\ 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.\13\
---------------------------------------------------------------------------

    \12\ This derailment currently is being investigated by the 
National Transportation Safety Board (NTSB), and information 
regarding this incident can be found at the NTSB Web site. See 
http://www.ntsb.gov/doclib/reports/2014/Casselton_ND_Preliminary.pdf.
    \13\ See id.
---------------------------------------------------------------------------

    Also, on November 8, 2013, a 90-car crude oil train derailed in a 
rural area near Aliceville, Alabama. The crude oil shipment had 
originated in North Dakota and was bound for Walnut Hill, Florida, to 
be transported by a regional pipeline to a refinery in Saraland, 
Alabama. More than 20 cars derailed and at least 11 cars ignited, 
resulting in an explosion and fire. Although there were no reported 
injuries, an undetermined amount of crude oil escaped from derailed 
cars and fouled a wetlands area near the derailment site.
    The dangers related to crude oil trains are not necessarily unique. 
They also exist with other hazardous materials such as ethanol, which 
is another flammable liquid that is commonly transported in large 
quantities by rail. In 2012, more carloads of ethanol were transported 
via rail than any other hazardous material. The railroads experienced 
an increase in ethanol traffic of 442 percent between 2005 and 2010. 
Although in 2013 the number of carloads dropped by 10 percent from 2010 
levels, there were still approximately 297,000 carloads transported by 
rail. Since 2009, there have been at least six major mainline 
derailments resulting in the breach of tank cars containing ethanol. 
While FRA recognizes that none of these six 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, Ohio, a Norfolk Southern 
Railway Co. train derailed while operating on main track. Thirteen tank 
cars containing ethanol derailed resulting in a fire and

[[Page 47355]]

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.
     On October 7, 2011, at about 2:14 a.m. CDT, at milepost 
121.8 on the No. 1 Subdivision near Tiskilwa, Illinois, an eastbound 
Iowa Interstate Railroad (IAIS) freight train No. RI-BI-06--with two 
locomotives and 131 cars--derailed its head 26 cars. The derailed cars 
included ten cars of ethanol, several of which were breached and lost a 
substantial amount of their product, resulting in a fire and an 
evacuation of about 800 residents. The emergency responses began almost 
immediately and were supported by surrounding local fire and police 
departments to control and suppress the fire and execute the 
evacuation. The fire suppression was sustained over two and half days. 
There were no injuries or fatalities.
     On February 4, 2015, in Dubuque, Iowa, a Canadian Pacific 
Railway unit train--with 13 of its 80 tank cars containing denatured 
alcohol--derailed, with at least one of the cars falling into the 
Mississippi River. Three of the cars caught fire and there was a 
release of an unknown quantity of denatured alcohol into the river. 
Officials established a half-mile evacuation zone, but there were no 
occupied structure in that area.
    While these accidents were serious, their results had potential for 
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, Texas, 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.
    FRA recognizes that these four incidents did not result from a 
roll-away situation. However, they illustrate the destructive potential 
of PIH materials' derailments.
    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.\14\ 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.\15\ 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 final rule intends 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.
---------------------------------------------------------------------------

    \14\ FRA estimates that there were a total of approximately 8976 
accidents/incidents reported during that time period. Approximately 
3030 of those accidents/incidents were caused by human factors, and 
906 involved equipment that was placarded as containing hazardous 
materials.
    \15\ 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--issued years 
before the accident at Lac-M[eacute]gantic and promulgation of 
Emergency Order 28--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. Despite the 
demonstrated effectiveness of FRA's current securement regulations, FRA 
has determined that the increased shipments of hazardous materials such 
as crude oil and ethanol, combined with the potential for higher-
consequences from any accident that might occur due to improper 
securement, particularly on mainline track and mainline sidings outside 
of a yard, proper securement has become a serious and immediate safety 
concern. Therefore, FRA established additional securement measures in 
Emergency Order 28 to ensure the continued protection of the health and 
safety of railroad employees, the general public, and the environment. 
In this final rule, FRA establishes permanent rules to strengthen the 
current regulations and ensure public safety by adopting the necessary 
and effective

[[Page 47356]]

securement measures FRA included in Emergency Order 28 as part of its 
immediate response to the Lac-M[eacute]gantic derailment.
    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 not 
connected to a locomotive or other compressed air source. The existing 
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 continues to require 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 has provided 
guidance regarding alternative forms of securement in such instances. 
For 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. In the NPRM to this 
proceeding, FRA considered codifying TB 10-01 by amending the rule at 
the final rule stage of this proceeding. The final rule makes the 
amendment considered and codifies the existing guidance contained in TB 
10-01. This particular amendment does not include any additional 
requirements from the original guidance issued in the technical 
bulletin and is further explained below.
    Also notable is that in 2013 and 2014, FRA and PHMSA undertook 
nearly two dozen actions to enhance the safe transport of crude oil. 
This comprehensive approach included 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.
    Additionally, in August 2014, PHMSA, in coordination with FRA, 
published an NPRM proposing enhanced tank car standards and operational 
controls for high-hazard flammable trains, which is defined as a single 
train carrying 20 or more tank cars of a Class 3 flammable liquid in a 
continuous block or a single train carrying 35 or more tank cars of a 
Class 3 flammable liquid throughout the train consist. See ``Hazardous 
Materials: Enhanced Tank Car Standards and Operational Controls for 
High-Hazard Flammable Trains,'' 79 FR 45015, Aug. 1, 2014. PHMSA 
recently issued that final rule including operational controls 
considered in the PHMSA NPRM such as speed restrictions and enhanced 
braking systems for HHFTs. See 80 FR 26643, May 8, 2015. FRA expects 
that the operational controls contemplated in that PHMSA final rule 
will work in concert with the securement requirements that FRA is 
implementing in this final rule.

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.

[[Page 47357]]

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);
     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. FRA notes that, in its 
comments, NTSB suggested that more emphasis should be made on 
observations by railroad supervisors, as part of operational testing 
programs, to ensure unattended equipment is properly secured. While FRA 
does not contest this suggestion, it is outside the scope of this 
rulemaking, since FRA declined to consider 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

[[Page 47358]]

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 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 included 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 included amendments to 49 CFR 232.105 that 
would require equipping locomotives with exterior locking mechanisms.

F. NPRM and Comments

    On September 9, 2014, FRA issued the NPRM in this proceeding. See 
79 FR 53356, Sept 9, 2014. Subsequent to the issuance of the NPRM, FRA 
received comments from: Amsted Rail Company, Inc. (Amsted), BLET, CPUC, 
NTSB, the North America Freight Car Association (NAFCA), Riverkeeper, 
Inc. (Riverkeeper), and the State of New York Department of 
Transportation (NYSDOT). AAR and ASLRRA also filed a joint comment on 
behalf of their member railroads. These comments are addressed in 
detail in the section-by-section analysis contained below.

III. Rescinding Emergency Order 28

    This final rule codifies the requirements of Emergency Order 28 
that FRA believes are necessary to ensure the safe securement of the 
types of trains and equipment identified in the Emergency Order. Once 
this final rule becomes effective, FRA believes that the unsafe 
condition or practices identified in the Emergency Order will be 
addressed by the provisions of this final rule. Accordingly, Emergency 
Order 28 is rescinded on the effective date of this final rule.

IV. 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.
    Before entering into specific analysis of each section, it is 
important to make clear that this final rule, which like Emergency 
Order 28 provides more restrictive securement requirements for specific 
types of equipment than the existing regulations, 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,\16\ 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.
---------------------------------------------------------------------------

    \16\ 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 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.
---------------------------------------------------------------------------

    In its comment, BLET expressed concern about FRA's discussion in 
the NPRM of the hours of service implications of the proposed rule. 
BLET particularly objected to the reference in the directly preceding 
footnote regarding employees ``remaining sufficiently alert to respond 
to unattended movement,'' which it viewed as potentially establishing a 
new requirement. To reduce confusion, and as there was no intention to 
establish a new requirement, FRA has eliminated that language in this 
preamble to the final rule. FRA's intention was merely to provide an 
example of the application of the hours of service laws in the NPRM for 
the benefit and convenience of the reader. This final rule does not in 
any way change the application of the hours of service laws to the time 
that employees may spend waiting for deadhead transportation aboard an 
unsecured train.
    FRA also notes that this final 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. As stated in the NPRM, 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 final rule.
    NAFCA has expressed concern with the elimination of the requirement 
in Emergency Order 28 that the railroads review, verify, and adjust 
their existing requirements and instructions related to the number of 
hand brakes to be set on unattended trains and vehicles and to ensure 
that such a number is sufficient to hold the train or vehicle with the 
air brakes released. While NAFCA recognizes that FRA believes that the 
railroads have already fulfilled this requirement, it contends that FRA 
is eliminating a salutary safety measure that is not unduly burdensome 
to the railroad. NAFCA recommends that the requirement remain in place 
while FRA and the industry gain more experience

[[Page 47359]]

with the Class 3 flammable liquid transportation issues and consider 
removing the requirement at a later time.
    NYSDOT concedes that periodic review, verification and adjustment 
of those processes and procedures are an inherent obligation of the 
railroads, citing the existing and continuing requirement under Sec.  
232.103(n)(1) that ``[r]ailroads 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.'' Given FRA's 
expressed confidence that the railroads have fulfilled the requirement 
in Emergency Order 28 to review, verify, and adjust, as necessary, 
those requirements, NYSDOT agrees that it is unnecessary to include it 
in this final rule.
    FRA declines to postpone elimination of this specific requirement, 
which was designed as a one-time requirement to emphasize the need 
following the Lac-M[eacute]gantic derailment for each railroad to 
review their securement policy and procedures to ensure that it had 
sufficient measures in place. It is unclear to FRA the benefits of 
maintaining a requirement that has already been fulfilled and NAFCA 
does not explain what benefits could be gained with additional 
experience beyond the years in which the securement regulations have 
already been in place. Moreover, FRA's existing regulations already 
require railroads to have procedures in place and comply with those 
procedures to ensure that unattended equipment is properly secured. 
Thus, retention of a duplicate provision would not be in the interest 
of regulatory economy.

Amendments to 49 CFR Part 232

Section 232.5 Definitions

    In this final rule, FRA is including a new defined term, 
``mechanical securement device''. ``Mechanical securement device'' 
means a device, other than the air brake, that provides at least the 
equivalent securement that a sufficient number of hand brakes would 
provide in the same situation. In TB 10-01, further analyzed below, FRA 
contemplated the proper use of skates, retarders, or inert retarders to 
secure equipment in certain circumstance and within classification 
yards. FRA recognizes, however, that other current and future 
securement technologies could perhaps be utilized for the same purpose. 
By using the more generalized, performance-based term, mechanical 
securement device, FRA intends to provide additional flexibility, and 
to ``future proof'' the regulation, to allow the use of other 
sufficient securement technologies in the same circumstances and 
locations. By definition, FRA understands mechanical securement devices 
to include current examples such as skates, retarders, and inert 
retarders; which are also further discussed below.
    In the 2001 rule, the definition of ``unattended equipment'' was 
included in Sec.  232.103(n). As further discussed below, this final 
rule includes a new paragraph (h) for Sec.  232.105, which also makes 
use of the definition for ``unattended equipment.'' Since the term 
would be used in multiple sections, this final rule moves the 
definition to the more broadly applicable definitions in Sec.  232.5. 
Doing so allows FRA to rephrase paragraph (n) for clarity purposes, as 
discussed further below. Placement of the definition in Sec.  232.5 
does not change its meaning and is solely for applicability and clarity 
purposes. FRA received no comments on this organizational change and is 
amending Sec.  232.5 accordingly.
    FRA is also 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 is also including 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 
minimizes the risk of ambiguity and confusion by clarifying 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.
    NTSB concurred with this change removing the word ``limits'' from 
the term ``Yard limits.'' According to NTSB, this distinction will 
appropriately define the intent of the rule to include only those main 
tracks that are connected to the physical presence of a yard and will 
avoid the operating practices description of yard limits that could 
potentially encompass an entire railway system. FRA received no 
negative comments on this clarifying change and is amending Sec.  232.5 
accordingly.

Section 232.103 General Requirements for all Train Brake Systems

    As previously noted, FRA is moving 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 
rephrasing includes moving the opening sentence of 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 
remaining introductory language of paragraph (n) would become more 
succinct and clear.
    While it is not an RSAC recommendation, FRA is also amending 
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. Although 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 of 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. Further changes to the rule to 
incorporate TB 10-01 are discussed further below.
    NAFCA encourages FRA to harmonize its changes to Sec.  232.103 in 
the final rule with the Emergency Directive Pursuant to Section 33 of 
the Railway Safety Act--Securement of Railway Equipment--issued by 
Transport Canada on October 29, 2014. In this Emergency Directive, the 
Canadian government replaced the ``sufficient number of hand brakes'' 
requirement with a requirement that trains have a specific number of 
hand brakes, determined by the weight of the train and the slope of the 
track. NAFCA favors the increased specificity of the Canadian approach 
and urges FRA to develop harmonized rules with Canada that are 
prescriptive, based on sound engineering, and incorporate factors such 
as train consist/weight, terrain,

[[Page 47360]]

environmental, and other considerations. According to NAFCA, it is 
critically important that the two countries' respective efforts be 
harmonized, given the closely integrated nature of the North American 
railroad system. NAFCA asserts that anything less than full 
harmonization of the two regulatory regimes will significantly disrupt 
the current flow of rail cars, particularly the tank cars that are the 
primary topic of the regulatory efforts, between Canada and the United 
States.
    NYSDOT agrees with FRA's clarification that at least one hand brake 
must be applied except in limited circumstances, such as when skates or 
retarders are applied in a classification yard. However, similar to 
NAFCA, NYSDOT states that a more uniform approach to ensuring that 
unattended trains are left with a sufficient number of hand brakes 
could be accomplished by codifying in regulation the appropriate number 
of hand brakes required given the weight, number of cars, and track 
gradient. According to NYSDOT, this would ensure uniformity amongst all 
railroads, and would allow inspectors the ability to verify that 
unattended trains are left with the required amount of hand brakes 
applied.
    When FRA initially drafted the securement rule, it purposefully 
developed a performance-based requirement in order to permit a railroad 
to develop appropriate operating rules to verify the sufficiency of the 
hand brakes applied which can be tailored to the specific territory and 
equipment operated by the railroad. See 66 FR 4104, 4157, Jan. 17, 
2001. When drafting the rule, FRA did not limit such operating rules to 
a matrix format and stated that the number of hand brakes required to 
be applied depends on a wide variety of factors not easily captured in 
a matrix format and that a matrix approach might result in either too 
few or too many hand brakes being applied. While the commenters listed 
a few variables--such as the weight, number of cars, and track 
gradient--FRA does not believe that such a list is definitely 
exhaustive. FRA also does not presume to know all location and 
equipment configurations; a regulatory matrix may result in 
inadvertently ignoring certain other variables to which the railroads 
may be more intimately aware and cognizant. Moreover, FRA has not found 
the existing performance requirement to be insufficient; its concern 
relates primarily to its application, compliance, and enforcement. For 
the same reasons, in this instance and at this time, FRA does not 
support developing a technical-based regulation to apply a uniform 
regulatory procedure. FRA recognizes that Canada is a strong partner in 
maintaining cross-border railroad safety and FRA continues to believe 
that harmonization between Canadian and United States rail safety 
regulations is beneficial, particularly when differences in regulations 
create barriers to cross-border transportation, and should be maximized 
to the extent possible. Therefore, FRA traditionally seeks out and 
incorporates the views of Canada in developing its safety regulations. 
FRA, for instance, has actively engaged Canada as a member of RSAC. 
However, there is no requirement that FRA harmonize each of its 
requirements with those in Canada and, in light of the aforementioned 
reasons, FRA believes in this instance that a uniform technical 
standard is not ideal and that its performance-based securement 
measures better and more appropriately capture the variables presented 
by the different rail systems throughout the United States. Further, 
FRA does not see the absence of harmonization as potentially 
establishing barriers to cross-border train movements; first, because 
the operational issue of securement can easily be handled differently 
on either side of the border, and, second, because in many instances 
there will not be an actual difference in the number of hand brakes 
applied to secure similarly situated unattended equipment.
    In its comments, BLET indicated that another component of rail 
securement is derail protection. While BLET acknowledges that this was 
not discussed in detail in the RSAC SWG, derail protection would reduce 
the risk of a more serious accident by preventing inadvertently rolling 
equipment from moving further and gaining speed and momentum. This 
particular means of securement was not discussed in the NPRM, and FRA 
is not convinced that this is the safest securement practice. 
Nevertheless, FRA will continue to monitor the safety efficacy of 
derail protection as it is applied by regulation in Canada.
    As previously mentioned, paragraph (n)(2) now includes language 
originally placed in the introduction of paragraph (n), which prohibits 
a train's air brake from being ``depended upon to hold equipment 
standing unattended on a grade (including a locomotive, a car, or a 
train whether or not locomotive is attached).'' (Emphasis added.) This 
final rule also removes the phrase ``on a grade,'' as such a 
requirement is arguably superfluous and confusing. In its comments, 
Amsted indicated its support for this change. 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, this final rule makes 
clearer that the hand brake application requirement is not contingent 
upon the existence of a grade.
    Proposed paragraphs (n)(6) through (n)(8) address the 
aforementioned heightened concerns relating to the securement of 
unattended equipment carrying certain hazardous materials. Paragraph 
(n)(6) defines the type of equipment 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) apply to:
    (1) Any loaded tank car containing PIH material, including 
anhydrous ammonia and ammonia solutions; or
    (2) twenty (20) or more loaded tank 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) includes new securement 
requirements that 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) covers situations where there are 
20 or more loaded tank cars or loaded intermodal portable tanks of PIH 
materials,

[[Page 47361]]

flammable gases, flammable or combustible liquids, explosives, other 
hazard substances listed at Sec.  173.31(f)(2), or any combination 
thereof.
    FRA sought comment on this proposal and on whether a defined term 
should be used for equipment covered under paragraph (n)(6).
    From the standpoint of public safety, NYSDOT supports FRA's 
broadening the language of this rule to include the securement of 
unattended equipment transporting hazardous materials beyond those 
defined as HHFTs in PHMSA's earlier NPRM. NYSDOT also suggests using a 
``defined term'' for the equipment covered under paragraph (n)(6), 
which it says would provide a simple way to differentiate it from those 
defined elsewhere in regulation (e.g. HHFTs).
    AAR and ASLRRA expressed concern that this requirement in Emergency 
Order 28 applied to a ``loaded tank car,'' but that the proposed rule 
applies to a ``loaded freight car.'' AAR and ASLRRA assert that this 
change could potentially and inadvertently affect a much larger number 
of rail cars, including those intermodal shipments of miscellaneous 
items such as cleaning supplies and swimming pool chemicals. 
Accordingly, AAR and ASLRRA recommend that the final rule retain the 
original language from Emergency Order 28.
    FRA recognizes the merit in AAR's and ASLRRA's comment and is 
reverting to the language that was originally proposed at the RSAC 
level. As for using a defined term to capture the types of equipment 
delineated in paragraph (n)(6), FRA declines. FRA recognizes and 
appreciates the benefits of using a more elegantly defined term. 
However, no such term was offered and FRA is unaware of any appropriate 
term to use at this time.
    The regulatory text exempts residue cars from consideration. 
Residue cars are defined by PHMSA under the HMR. See 49 CFR 171.8. FRA 
will continue to rely on the HMR for this definition, even if amended. 
FRA does not believe the train placement requirements in that PHMSA 
rulemaking will affect the securement regulations we are adopting in 
the instant proceeding. Nevertheless, the labor representatives have 
expressed concerns that such inconsistent use may foster confusion or 
be ``pitted against one another.'' FRA sought further comment 
explaining how such confusion or conflict may manifest itself.
    NYSDOT believes that exempting residue cars from the requirements 
of this rule would appear contradictory to the language contained 
throughout the HMR, which have been written from a perspective that a 
packaging containing residue remains potentially hazardous. Although 
FRA does not believe that any resulting train placement regulation 
would affect the securement regulations we are considering, it is not 
clear to NYSDOT what particular advantage is gained by granting this 
exception for residue cars. From a risk perspective, NYSDOT believes it 
would seem reasonable to treat all placarded residue cars as 
potentially hazardous until such time that they are cleaned and purged, 
including for the purposes of securement. In order to avoid the 
potential for confusion in terms of interpreting the HMR, NYSDOT 
contends that the provisions that apply to residue cars should remain 
consistent throughout. Therefore, NYSDOT recommends that the exclusion 
outlined in 232.103(n)(6)(ii) not be included in the final rule.
    Riverkeeper believes that residue cars are still inherently 
dangerous and should be covered by the regulation. According to 
Riverkeeper, cars carrying crude oil such as heavy, sinking tar sands 
oils, are expected to become more regularly shipped and, if spilled, 
could cause equally significant economic and environmental damage.
    When considering whether to apply the applicable requirements to 
residue cars, FRA made an effort to balance the associated risks with 
the cost of compliance. While FRA recognizes that certain residue tank 
cars may still pose inherent danger in the event of a release, 
experience has shown that the magnitude of the results are 
significantly less than those from an event releasing the contents of a 
loaded tank car. Further, loaded tank cars are generally treated more 
rigorously by existing Federal safety regulations. See, e.g., 49 CFR 
172.204(b)(2), 174.14, and 174.86(b). Given the cost of compliance, FRA 
believes that regulatory relief is warranted here. Moreover, FRA notes 
that all of its existing securement requirements contained in paragraph 
(n) apply to trains and cars containing residue cars. Nevertheless, FRA 
will continue to monitor accidents involving residue tank cars and will 
continue to dialog with PHMSA to determine whether further action will 
become necessary in the future.
    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. 
Paragraph (n)(8) includes specific requirements regarding the 
securement of such equipment. The following chart attempts to quickly 
summarize the requirements of paragraphs (n)(7) and (n)(8).

                       Securement of Unattended Equipment Defined by Sec.   232.103(n)(6)
----------------------------------------------------------------------------------------------------------------
         Paragraph                    Equipment                 Track location                Requirement
----------------------------------------------------------------------------------------------------------------
(7)(i).....................  All........................  Main track or siding        Plan.
                                                           outside and not adjacent
                                                           to a yard.
(7)(ii)....................  Freight train..............  In or adjacent to yard....  Verify (8)(i) and Apply
                                                                                       Lock (8)(ii).
(8)(i).....................  Freight train or standing    Main line outside yard....  Verify (8)(i) and Apply
                              freight car or cars.                                     Lock (8)(ii).
(8)(ii)....................  Controlling locomotive cab.  Everywhere................  Apply Lock.
(8)(iii)...................  Locomotive.................  In or adjacent to yard....  Exception to applying lock
                                                                                       if locomotive not
                                                                                       equipped with lock, or if
                                                                                       lock not operable and
                                                                                       reverser not removable.
----------------------------------------------------------------------------------------------------------------

    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. However, it does monitor such plans, and, in the

[[Page 47362]]

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 paragraph (n)(7)(i), FRA continues 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, paragraph (n)(7)(i) also requires 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.
    Riverkeeper notes that the equipment defined under paragraph (n)(6) 
can be left unattended if a justification is provided to FRA, 
characterizing this allowance as a ``loophole.'' Riverkeeper also 
criticizes FRA's decision to reserve the right to review any plan as an 
``abrogation of responsibility'' and asserts that railroads should not 
be left to develop their own plans without FRA review.
    FRA disagrees with Riverkeeper's characterization. The existing 
regulations have always allowed equipment to be left unattended and 
provided that certain actions be taken to secure equipment in such 
instances. From an economic perspective, this would be extremely 
burdensome. From a safety perspective, there would only be a marginal 
benefit to require at all times attendance on a train defined by Sec.  
232.103(n)(6) when it has been properly secured in accordance with the 
provisions in this final rule. The ``justification'' referenced by 
Riverkeeper is not a ``loophole'' because it relates solely to the new 
requirement that the railroads identify locations where equipment may 
be left unattended. Moreover, FRA's decision to not require FRA 
approval of each plan is also consistent with the principles of 
regulatory economy and FRA's budget and personnel capabilities. The 
plans, which concern appropriate and safe locations, do not necessarily 
include any additional safety requirements per paragraph (n)(7). Thus, 
FRA does not believe that prior FRA approval is absolutely necessary 
here. Nevertheless, FRA has reserved the right to access, review, and 
require modification of the plan in the event it determines a location 
is insufficiently safe to leave equipment unattended.
    In relation to the requirement that the railroad must notify FRA 
when it modifies its existing plan and provide FRA with a copy of the 
plan upon request, CPUC requests that such authority extend to all 
State Safety Participation personnel. CPUC also requests that FRA and 
its state partners have access upon request to the underlying research 
that validates these plans as safe to provide for ``validating 
oversight.''
    FRA believes that the modification proposed by CPUC is unnecessary 
because state inspectors that have the authority to inspect for part 
232 compliance would be entitled to independently receive the plan 
directly from a railroad as long as it is requested in the course of a 
safety inspection and it is necessary for determining compliance with 
the relevant section in part 232. While state inspectors have faced 
difficulties with railroad responsiveness, FRA inspectors have 
experienced the same problems. The agency has engaged AAR on this issue 
to ensure that railroads are providing requested materials in a timely 
manner. See Letter to Edward R. Hamberger, President, AAR, from Joseph 
C. Szabo, Administrator, FRA (April 4, 2013). If FRA or state 
inspectors are unable to obtain such documentation, they should contact 
the appropriate FRA Railroad System Oversight Manager (RSOM) or FRA 
Regional personnel for assistance.
    Paragraph (n)(7)(i) differs from Emergency Order 28 in one manner. 
The final rule 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 
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 appropriate places for leaving equipment unattended. In FRA's 
view, mainline track that runs through a yard shares those 
characteristics with the yard tracks surrounding it. As a result, it 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, this final rule, as proposed 
in the NPRM, treats mainline track that is adjacent to the yard in the 
same manner that it is currently treating mainline track that runs 
through a yard under Emergency Order 28. This requirement 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.
    NAFCA contests this requirement as proposed, believing that such a 
change should be postponed until after more experience with observing 
multi-car train movements of Class 3 flammable liquids. According to 
NAFCA, the requirement in Emergency Order 28 is not unduly burdensome 
to the railroad. FRA declines to postpone treating the identified 
adjacent tracks as mainline yard tracks. NAFCA does not explain what 
benefits could be gained with additional experience and does not 
provide quantifiable or qualified information to support its position 
that such a postponement would not be unduly burdensome to the 
railroads.
    Given that there are vast differences in surrounding population 
densities and in the amount of railroad activity that takes place at 
different rail yards, NYSDOT believes that there should be no 
differentiation in plan requirements simply because the mainline tracks 
go through or are adjacent to rail yards. According to NYSDOT, there 
are many railroad yards located in rural areas of New York State with 
limited rail operation activity, low population density and in which 
ambient lighting may be poor or nonexistent. In a letter to President 
Obama dated September 23, 2014, Governor Cuomo recently outlined New 
York's safety concerns in and around the areas in which crude-by-rail 
trains dwell. NYSDOT believes that sufficient analysis of the safety 
risks and any mitigating circumstances should be part of a railroad's 
plan for all mainline tracks and sidings irrespective of

[[Page 47363]]

whether those tracks go through or are adjacent to a rail yard.
    Similarly, Riverkeeper contends that FRA is assuming that trains 
are inherently more secure in and around yards to the point that they 
do not need to be included in these securement regulations, because 
rail yards and sidings generally have more activity than lone, far-
flung mainline track. Riverkeeper asserts that this conclusion is not 
supported by any presented facts and ignores the risks of unsecured 
trains rolling out of yards, or sidings, or mainlines near yards, 
potentially toward imminent and significant disaster. According to 
Riverkeeper, FRA's decision to treat yard-adjacent tracks the same as 
mainline tracks within the yard arbitrarily relies on nonspecific 
``railroad'' activity and the assumption that rail yard workers would 
be able to respond to a runaway train in time to avoid disaster. 
Riverkeeper concludes that any final rule on securement must apply to 
all unattended trains, regardless of where they are left.
    As discussed previously, the yard exception in paragraph (n)(7)(i) 
is due to FRA's assessment that yards overwhelming tend to have 
appropriate geographic characteristics for leaving equipment unattended 
and that there is a higher likelihood of qualified people being present 
and switching operations occurring. FRA believes that some commenters 
misunderstand the purpose of the plan, which is merely to identify 
locations where equipment may be left unattended. The plan requirement 
does not exempt the railroads from any securement requirements under 
Sec.  232.103(n). In other words, securement of unattended equipment is 
required regardless of location--except as subject to certain 
switching-related exceptions, including those relating to TB 10-01--and 
paragraph (n)(7)(i) does not affect those requirements. To the extent 
that those commenting on paragraph (n)(7)(i) are concerned that the 
plan would exempt railroads from complying with the hand brake and 
other mechanical securement requirements, FRA assures them that this is 
not the case.
    Paragraph (n)(7)(ii) establishes 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 applies 
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)), unless the exception 
contained in paragraph (n)(8)(iii) is applicable.
    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. This final 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, 
paragraph (n)(8)(i) requires the employee responsible for the 
securement of the equipment to verify securement and paragraph 
(n)(8)(ii) requires the train crew to lock the controlling locomotive 
cab or remove and secure the reverser from the control stand.\17\
---------------------------------------------------------------------------

    \17\ 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.
---------------------------------------------------------------------------

    NYSDOT expresses confusion as to the consistency of cross-
referencing language in paragraphs (n)(7)(ii) and (n)(8)(i). Paragraph 
(n)(7)(ii) refers to trains described in paragraph (n)(6) that are 
``left unattended on a main track or siding that runs through, or is 
directly adjacent to a yard,'' and states that the requirements of 
paragraph 8(i) and 8(ii) ``shall apply.'' (Emphases NYSDOT's.) However, 
paragraph (n)(8)(i) states, ``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.'' (Emphasis NYSDOT's.) According 
to NYSDOT, the wording ``shall apply'' would seem to render the 
provisions of paragraph (n)(7)(ii) moot, since it appears to default to 
the provisions of paragraphs (n)(8)(i) and (n)(8)(ii) for all trains 
left unattended, irrespective of their location relative to a yard.
    FRA understands that NYSDOT is expressing confusion in that 
paragraph (n)(7)(ii) applies to trains in or adjacent to a yard must 
follow paragraph (n)(8)(i), which actually applies to trains outside a 
yard. FRA would like to clarify that the distinction here is that 
(n)(7)(ii) limits the applicability of (n)(8) only to trains left 
unattended in yards or adjacent to them, whereas the provisions of 
(n)(8) apply to both trains and cars left outside of yards. In other 
words, in context with one another, these paragraphs require securement 
verification and lock application on all unattended freight trains 
defined under paragraph (n)6), regardless of whether they are located 
inside or outside of a yard, and on all standing freight cars defined 
under paragraph (n)6) on a main line outside of a yard. The implication 
is that these requirements do not apply to standing freight cars inside 
and adjacent to yards. FRA intends the above chart to act as a visual 
aid to communicate these similarities and differences.
    NYSDOT is in agreement with the requirement that an employee 
responsible for securing the equipment shall verify with another 
qualified person that the equipment is secured in accordance with 
railroad procedures for all trains left unattended. Based upon its 
interpretation as written, NYSDOT suggests that paragraph (n)(7)(ii) be 
omitted and that the language of paragraph (n)(8)(i) be changed to: 
``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, an employee responsible for securing the equipment shall 
verify [. . .] etc.''
    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 
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, 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 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

[[Page 47364]]

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 final 
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.
    Riverkeeper criticizes FRA's ``refusal'' to limit the type of 
employee who may be qualified and claims that FRA also fails to specify 
the type of verification or even the details that must be provided.
    As previously noted, FRA believes that a certain set of 
qualifications or base of knowledge is necessary to be part of the 
conversation relating to securement. While the employee's ``type'' or 
title may be instructive, it should not be the sole or primary element 
in determining whether an individual is qualified to apply or verify 
the securement rules. FRA also believes that the existing rule and this 
final rule address the needs relating to the type of verification or 
its required details. As for the required details, they have already 
been established in the existing regulations and in each railroad's 
processes and procedures. According to the proposed text, the 
responsible employee must ``verify with another person qualified to 
make the determination that the equipment is secured in accordance with 
the railroad's processes and procedures.'' Riverkeeper suggests no 
further details clarifying its position to FRA.
    FRA has decided not to continue the recordation requirement based 
on experience enforcing section 2b of 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 that, since issuance 
of Emergency Order 28, 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. FRA sought comment concerning enforcement of 
the verification requirement, absent recordation.
    CPUC does not see sufficient justification for eliminating the 
recordation requirement under Emergency Order 28. CPUC recommends that 
FRA at least reinstate some form of recording of the details of 
securing the train--such as a crew member filling out a form and 
leaving on the controlling locomotive--detailing the method used and 
the specifics of implementing the method--such as the number of hand 
brakes tied per the railroad's process and procedure already required 
by regulation. According to CPUC, such a requirement would enhance 
accountability, require more careful attention, provide better crew-to-
crew communications, avoid dispatcher time and record keeping, and aid 
in accident investigations, enforcement efforts, and safety practice 
improvements.
    CPUC would also not rely on FRA's recent experience as sufficient 
to warrant removal of the recordation requirement. CPUC believes that 
as more time passes and attention to the Lac-M[eacute]gantic accident 
fades, the public cannot be confident that all safe practices will be 
followed without structured verification.
    NAFCA believes that recordation is a salutatory safety measure that 
should remain in place for the foreseeable future, recommending that it 
only be rescinded after FRA gains more experience in this area.
    NTSB believes that a recordation process for the verification of 
proper securement is critical for ensuring that unattended equipment is 
secure and that FRA should continue this requirement from Emergency 
Order 28, which provided a definitive check on the process. NTSB 
suggests that written verification (recordation) be required when one 
crew member leaves a train unattended. According to NTSB, such a 
requirement would provide verification of the work performed and offer 
information to the relieving crew (for inclusion in job briefings) 
regarding the condition and status of equipment. NTSB also claims that 
in the NPRM FRA provided no data to support its decision not to 
continue the recordation requirement ``based on experience in enforcing 
Emergency Order 28.''
    NYSDOT supports maintaining the recordation requirement and 
believes that its removal would make extremely challenging enforcement 
of Sec.  232.103(n) as it relates to such recordation and to verify how 
actual and adequate securement. NYSDOT notes that it aids the incoming 
train crew in its assessment of how many hand brakes need to be 
released before the train continues its movement.
    Riverkeeper also believes that the recordation requirement should 
remain. Otherwise, states Riverkeeper, an employee may easily not 
comply with safety protocols and FRA may find it difficult to 
meaningfully enforce the securement requirements. Riverkeeper also 
characterizes as circular FRA's justification for removing the 
recordation requirement; while FRA's purpose to require recordation was 
to ensure that communications are taking place, FRA found that over the 
last year that communications occur in the course of the verification 
process and that recording is not necessary. Riverkeeper asserts that 
FRA failed to provide any evidence supporting its contention that 
``over the last year . . . communications occur'' between the securing 
employee and the overseeing employee. Riverkeeper also believes that 
FRA misses the point that maintaining records is to allow for oversight 
and enforcement.
    Under the existing rule, the railroads are required to secure 
unattended equipment by applying a sufficient number of hand brakes and 
other safety procedures. FRA continues to believe that the existing 
requirements, if followed, include sufficient protections. FRA's 
concerns have been raised, particularly in the face of the accident in 
Lac M[eacute]gantic, regarding compliance with those measures. Thus, 
when FRA issued Emergency Order 28, it included requirements with the 
primary goal to increase railroad compliance with the existing safety 
requirements as they apply to certain hazardous materials shipments. 
The requirement that the employee responsible for securement verify 
with a qualified person whether the equipment was secured appropriately 
was drafted as a communicative measure to ensure compliance with 
existing securement requirements. The recordation requirement was an 
additional, second layer of communication to also ensure such 
compliance. While its supplementary benefits included a documentation 
of the information that could aid other crews, future investigations, 
and enforcement actions, those were not FRA's primary goals. While 
recordation would provide such additional benefits, FRA believes that 
verification should be sufficient at this time, especially since 
recordation of securement could result in expending railroad resources 
as an unnecessary

[[Page 47365]]

redundancy. FRA's inspectors have extensive experience in enforcing 
communicative regulations without the benefit of documentation (see, 
e.g., 49 CFR 218.99, 218.103, 218.105, and 218.109). While recordation 
may be helpful in some instances, it is not necessary. For instance, 
since verification must be accomplished by at least two people, an 
inspector may interview them both to determine whether verification 
occurred correctly.
    FRA has faced similar questions before regarding recordation of 
certain activities. For instance, in a rulemaking codifying the 
requirements of Emergency Order 24 concerning the handling of 
equipment, switches, and fixed derails, FRA declined to continually 
require the use of a Switch Position Awareness Form (SPAF) to remind 
employees of the importance of properly lining and locking main track 
switches. See 73 FR 8442, 8448, Feb. 13, 2008. While the resulting 
paperwork burden and communication redundancy was acceptable for the 
purposes of Emergency Order 24, FRA decided not to require a SPAF in 
the associated final rule because other comprehensive communication 
regulatory requirements created a direct enforcement mechanism that 
made enforcement through a SPAF redundant. See id. In that rulemaking, 
and in its own proceedings, NTSB supported removal of the similar 
paperwork burden. See id; NTSB, Collision of Norfolk Southern Freight 
Train 192 With Standing Norfolk Southern Local Train P22 With 
Subsequent Hazardous Materials Release at Graniteville, South Carolina, 
Railroad Accident Report, NTSB/RAR-05/04, at 45, available at http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0504.pdf. FRA's 
position in this rulemaking is consistent with the position taken in 
the final rule codifying Emergency Order 24. There have not been 
adverse safety consequences associated with eliminating the reporting 
requirement in Emergency Order 24, and FRA does not expect any adverse 
safety consequences in this instance. However, FRA will continue to 
monitor securement of equipment defined under paragraph (n)(6) to 
assess the effectiveness of the verification process that is being 
instituted in this final rule.
    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, 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 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 for when a 
locomotive has been equipped with a lock but the lock has become 
inoperative. FRA also notes that under this final rule 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 sought 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.
    NTSB believes that, in the interest of safety, the regulation 
should require the locking of the locomotive cab doors, as well as 
removing and securing the reverser handles. According to NTSB, such 
redundancy will ensure a higher level of safety.
    NYSDOT also supports the view that redundancy of safety or security 
procedures is beneficial in terms of addressing risk. Therefore, NYSDOT 
believes that, when the train is left unattended, the locomotive cab 
door lock must be engaged (if operative) and the reverser must be 
removed and secured where feasible.
    FRA is not persuaded by the comments, which provide no new 
information or argument. FRA continues to believe that it is not 
necessary to ensure safety by requiring by regulation the locking of 
the cab door and removal of the reverser. FRA recognizes that the 
railroads are already, or will be, installing locks on cab doors. This 
final rule formally requires such installation and requires their 
application for unsecured equipment in accordance with this rule. While 
this final rule does not require removal of the reverser in cases where 
an operative lock is applied, the railroads are free to include such a 
requirement in their respective operating rules. For the purpose of 
this final rule, the lock will be the primary means of locomotive cab 
securement and reverser removal will be required only as a backup.
    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 final rule if the railroad 
allows the reverser to be stored merely out of plain sight.
    In most instances, FRA would consider a locomotive with an 
ineffective locking mechanism to be noncompliant with paragraph 
(n)(8)(ii) if the locomotive is left unattended with the reverser 
remaining in the control stand. FRA recognizes that there may be 
limited circumstances where 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, this final rule includes 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) and that such trains would only be left unattended in a 
yard or on a track directly adjacent to a yard. FRA sought comments on 
the intent, application, and language of this proposed exception.

[[Page 47366]]

    NYSDOT states that the data provided in the analysis section of the 
NPRM indicates that the cost associated with repairing or replacing a 
locking mechanism is relatively small. According to NYSDOT, it is 
accepted that the goal of this particular exception is to provide 
relief in the rare instances where operation of ``non-conforming'' 
equipment (e.g. locomotive cabs without operative locks or removable 
reversers) would be required. However, given the acknowledged security 
concerns inherent with leaving trains unattended, NYSDOT asserts that 
consideration should be given to requiring attendance on the affected 
equipment until such time that the inoperative locking mechanisms can 
be repaired or replaced in conformance with paragraph (n)(8)(ii).
    The purpose of the existing securement rule and this final rule is 
not to require attendance, but to require certain safety protocols when 
certain equipment is left unattended. To require attendance, as 
suggested by NYSDOT, would have this rule go further than FRA's intent 
and could amount to substantial and unnecessary costs for the 
railroads. Moreover, such a requirement likely would result in 
unanticipated impacts affecting FRA's hours of service rules, which is 
not FRA's intent in this rulemaking.
    FRA believes that the job briefing requirement in Emergency Order 
28 should be codified in regulation. Accordingly, paragraph (n)(9) 
requires 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 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 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 final rule, 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 sought comments on whether these expectations 
are reasonable, accurate, and either sufficiently comprehensive or 
somehow lacking.
    NYSDOT agrees that the specific job briefing requirements should be 
left up to the railroads and that effective policies and procedures are 
important. However, NYSDOT remains concerned about the ability to 
record or document the actions taken in accordance with those policies 
and procedures.
    Riverkeeper believes that, although FRA claims that new 
requirements of the rules proposed here would indeed ``enhance safety 
culture and oversight,'' the new requirements do not go far enough and 
lack the enforceability needed to actually change the status quo. 
Riverkeeper says that, while the NPRM proposes ``requiring that 
securement be part of all relevant job briefings,'' FRA has no ability 
to ascertain whether briefed employees understand, or are implementing, 
securement policies. Riverkeeper similarly states that although FRA 
proposes requiring that there be more ``dialog between railroad 
employees [which would] provide enhanced oversight within the 
organization,'' it has no way to ensure that such dialogs occur, or 
whether they actually improve compliance rates. Riverkeeper notes that 
neither of these cultural changes will necessarily be reported to the 
FRA or the public in a manner that promotes transparent oversight and 
robust enforcement.
    FRA disagrees with Riverkeeper's assessment regarding the 
effectiveness of the job briefing requirement and its regulatory 
enforceability. Crew members are already trained and qualified to 
understand briefing contents and the procedures and mechanics involved 
with securing unattended equipment. FRA also has extensive experience 
enforcing the job briefing criteria (see, e.g., 49 CFR 214.315, 218.99, 
218.103, 218.105, and 218.109) and expects to apply similar 
investigative methods when enforcing paragraph (n).
    FRA recognizes that, in some instances, there may be only one crew 
member performing a switch or operation and that crew member would have 
to secure equipment alone at the end of the activity. In the NPRM, FRA 
expressed its belief that the issue of self-satisfying a job briefing 
is best left to the railroad when complying with part 218 and sought 
comment on how to apply this requirement in a situation involving a 
single person crew and how it interrelates with part 218.
    NYSDOT acknowledges that single person crews pose a challenge in 
terms of ensuring that the safety benefits inherent with effective job 
briefings are assured in all instances, including single-person 
operations. At a minimum, states NYSDOT, the procedures for conducting 
job briefings should be established in the railroad's operating rules 
or in its timetable special instruction for all locations and 
operations to ensure that expectations are clearly established.
    FRA continues to believe that it is sufficient for a one-person 
crew to self-satisfy a job briefing in accordance with the railroad's 
own operating rules developed pursuant to part 218.
    Under paragraph (n)(10), FRA is requiring 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 final rule requires railroads to establish a process to ensure 
that a qualified railroad employee inspects all equipment that any 
emergency responder (e.g., fireman, policeman, 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. FRA will expect that a qualified 
railroad employee 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 final rule requires that these procedures are followed as soon 
as safely practicable after learning that an emergency responder has 
interfaced with the equipment. In the NPRM, FRA sought comments on what 
should be considered ``as soon as safely practicable.''
    AAR and ASLRRA reiterated earlier statements that the railroads 
support, and that the final rule should include,

[[Page 47367]]

the language ``as soon as safely practicable.'' AAR and ASLRRA assert 
that this language addresses the reality of situations where an 
emergency responder has had contact with rail equipment.
    NYSDOT believes that the type and severity associated with any 
emergency event will significantly influence the definition of ``as 
soon as safely practicable.'' NYSDOT would recommend that, given their 
significant training regarding personal safety and protection, the 
first responders on-site would be a reasonable `real time' resource to 
provide the requisite guidance in each case. NYSDOT consulted with 
counterparts from the NYS Division of Homeland Security and Emergency 
Services (DHSES), Office of Fire Prevention and Control (OFPC) on this 
topic. OFPC recommends that for scenarios in which first responders 
access unattended equipment without the on-site presence of railroad 
personnel, effective communication and coordination will be critical in 
assuring that the incident scene and access to the equipment be turned 
over to the appropriate railroad representative (i.e. ``qualified 
employee'') when it has been determined safe to do so. NYSDOT also 
states that in no case should the affected equipment be left in a 
potentially unsafe or unattended condition prior to the arrival of 
railroad personnel designated by the railroad to inspect and assume 
responsibility for that equipment and its proper securement.
    FRA shares NYSDOT's concerns. However, while emergency and first 
responder training would certainly be beneficial, FRA will refrain from 
imposing such requirements at this time. Emergency response is 
primarily a local function that falls under State or local governance, 
which could impose such training requirements. FRA notes, however, that 
AAR is currently providing training at its Transportation Technology 
Center, Inc. (TTCI) to emergency responders on handling accidents 
involving crude oil. Moreover, if each railroad's employee is properly 
trained and complies with this regulation, there is little need to 
require emergency responder training, which could be quite costly 
nationwide.
    AAR and ASLRRA also make clear their belief that, in such a 
situation, the railroad has to have actual knowledge that an emergency 
responder has been on the equipment and it has to be safe for the 
employee to inspect the equipment. According to AAR and ASLRRA, in some 
situations, the railroad might not know that an emergency responder has 
been in contact with the equipment until sometime after the contact. 
Additionally, AAR and ASLRRA assert that in a potential emergency 
situation, the railroad needs to be able to ensure that its employees 
can safely examine the equipment before being able to verify its 
securement.
    When enforcing this provision, FRA will consider the railroad's 
actual and constructive knowledge of any emergency responder's 
presence. However, FRA does not expect to hold the railroad accountable 
if there is no reasonable means for the railroad to have known. 
Further, the ``safely practicable'' language is intended to take into 
consideration the circumstances presented. FRA's intent with this 
regulation is not put a railroad employee in harm's way by requiring 
him or her to enter an unsafe situation following an instance where a 
first responder goes on, under, or between equipment. However, FRA will 
require the railroad to take action once it can be reasonably 
ascertained that securement can be effectuated without unnecessary 
danger.
    As noted above, on March 24, 2010, FRA issued TB 10-01 to provide 
enforcement guidance regarding the securement of equipment, 
particularly in classification yards. In the NPRM to this proceeding, 
FRA proposed codifying TB 10-01 by amending the rule at the final rule 
stage of this proceeding. Accordingly, this final rule includes a 
clarifying amendment to ensure that FRA's long-standing interpretation 
and application of the existing regulation is contained directly in the 
regulation. These amendments are for clarification purposes only and 
add no new requirements to the regulations.
    NYSDOT agrees with the exception in TB 10-01 that, in certain 
circumstances within classification yards, skates or retarders in lieu 
of hand brakes may be used to secure equipment. AAR and ASLRRA 
expressed concern that the NPRM did not include any proposed regulatory 
text and recommended that FRA place the issue before the RSAC SWG for 
discussion.
    TB 10-01 was issued approximately five years ago and the railroad 
industry has had significant opportunity to become accustomed to its 
interpretations of the existing rules. TB 10-01, and its codification 
in this rulemaking, does not provide any new requirements; if anything, 
it formalizes exceptions that provide operational flexibility for 
railroads in classification yards. FRA sought comment on this issue and 
had not received any regulatory text recommendations. Accordingly, FRA 
does not believe it is necessary to either extend the comment period on 
this issue or recall the RSAC SWG for further discussion.
    The purpose of TB 10-01, and its codification in this final rule, 
is to indicate how Sec.  232.103(n) applies in classification yards. 
Much of TB 10-01 is purely guidance, which will be incorporated into 
this preamble for posterity. There are a few portions of TB 10-01, 
however, which provide alternative securement options. These 
alternatives are being codified into the rule text as further discussed 
below. Upon the effective date of this final rule, which will 
incorporate TB 10-01, that guidance document itself will be rescinded. 
However, for continued guidance and educational purposes, FRA has 
placed the illustrative photographs from TB 10-01 into the docket of 
this proceeding.
    Prior to issuance of TB 10-01, FRA's Railroad Safety Board 
reiterated that the failure to apply any hand brakes on unattended 
equipment does not comply with the securement requirements of Sec.  
232.103.\18\ However, FRA recognizes that it is sometimes necessary in 
the switching of trains within classification yards to have equipment 
unsecured with hand brakes. Therefore, like the TB, this final rule 
allows for alternate forms of securement in limited circumstances--
including where they may be appropriate and what constitutes effective 
use of alternate forms of securement. It also provides flexibility in 
the application of securement on repair tracks.
---------------------------------------------------------------------------

    \18\ See Letter from Grady C. Cothen, Jr., Deputy Associate 
Administrator for Safety Standards and Program Development, Federal 
Railroad Administration, to Thomas J. Healey, Regulatory Counsel, 
and Jeffery A. Liepelt, VP Operations, Canadian National Railway 
Company, Docket No. FRA-2008-0060 (Apr. 3, 2009).
---------------------------------------------------------------------------

    Section 232.103(n) addresses the securement of unattended equipment 
by means of applying hand brakes, venting the brake pipe to zero and 
leaving the angle cock open on one end of a cut of cars, and requiring 
the railroad to develop and implement procedures to verify that the 
equipment is secure. Unattended equipment is equipment left standing 
and unmanned in such a manner that the brake system of the equipment 
cannot be readily controlled by a qualified person. When assessing this 
situation for compliance, FRA may take into account the following 
factors:
     Can an individual take corrective action if the equipment 
should start to roll away?
     Can the individual readily mount the car and apply the 
hand brake, or can the individual safely open an angle cock should the 
equipment start to roll away?

[[Page 47368]]

     Can the individual readily mount the locomotive and either 
apply the hand brake or operate the brake handles or emergency brake 
valve to stop the unexpected movement?
     Is a qualified person focused on the situation?
     If the individual is eating lunch or in the bathroom, full 
attention is not being given to the equipment.
     If the individual is in a crew room or talking on the 
phone, full attention is not being given to the equipment.
    If an engineer and crew get off of their train to watch a passing 
train, and remain in close proximity to their locomotive consist, hand 
brakes would not have to be applied on the locomotives as long as 
someone is close enough to readily mount the locomotive and apply an 
emergency brake or hand brake, should the locomotives or train start to 
roll away. In these situations, FRA would consider the equipment 
attended. However, if the engineer and crew get off their train and 
position themselves with the passing train between them and their 
train, hand brakes have to be applied, as their train would be 
considered unattended.
    Paragraph (n)(1) of Sec.  232.103 includes a performance-based 
requirement that a sufficient number of hand brakes be applied to hold 
the equipment and that railroads have to develop and implement a 
process or procedure to verify that the applied hand brakes will 
sufficiently hold the equipment when the air brakes are released. This 
requires a railroad to develop appropriate operating rules to verify 
the sufficiency of the hand brakes applied, which can be tailored to 
the specific territory and equipment operated by the railroad. This can 
be as elaborate as the use of a sophisticated matrix or some other type 
of ``set calculations'' that specify exactly how many hand brakes have 
to be applied on specific numbers of cars; or it can be as simple as 
having the engineer release the pneumatic brakes after the hand brakes 
have been applied (and before uncoupling from the cars) to determine if 
the equipment is secure. To simply have instructions that state ``a 
sufficient number of hand brakes have to be applied'' does not satisfy 
the intent of the regulation, unless there is the provision that the 
pneumatic brake has to be released to determine the equipment is 
secure. When observing this practice, it is important that the 
pneumatic brakes fully release. This can be accomplished by observing 
piston travel on the rearmost car, or observing and ensuring that the 
end-of-train brake pipe pressure returns to its original setting.
    Unless alternate forms of securement are permitted (as discussed 
below), it is FRA's enforcement policy that one or more hand brakes 
will have to be applied to a car in order to sufficiently secure 
equipment in accordance with the regulation. The application of no hand 
brakes on a car or a block of unattended freight cars will not meet the 
securement requirements of 49 CFR 232.103(n).
    In paragraph (n)(11) of this final rule, FRA is including 
exceptions from certain portions of the remainder of Sec.  232.103(n) 
as long as a delineated alternative is followed.
    Paragraph (n)(11)(i) provides the flexibility to allow a railroad 
to use in a prescribed location an alternative means of securement in 
lieu of hand brakes per the remainder of paragraph (n). Like in TB 10-
01, FRA continues to believe in this final rule that unattended 
equipment in classification yards--a series of tracks where locomotives 
and cars are classified or switched to dismantle and make-up train 
sets--present situations where alternate forms of securement can be 
allowed. Classification yards may have hump, bowl, flat, graded, or 
other characteristics. These characteristics and other local 
conditions, such as prevailing winds and possible severe weather, 
should be considered by the railroad in developing its instructions for 
using alternate forms of securement. The burden of proof is on the 
railroad in the use of alternate securement. If alternate securement is 
not effective, securement defaults to the application of a sufficient 
number of hand brakes.
    In classification yards, securement is not required for the end of 
the yard that is actively being switched and is attended by the switch 
crew or hump tower operator. At these locations, FRA does not require 
securement for cars or blocks of cars on the yard tracks, as long as 
the equipment on the opposite end of those tracks being actively 
switched are secure. FRA believes that this flexibility applies only 
when active switching is occurring and is not otherwise affected by the 
commodities being handled, including equipment defined by paragraph 
(n)(6). If the operations at these locations do not work for 24 hours a 
day, 7 days a week, then the equipment at each end of the track would 
have to be secured, but cars in between the secured equipment would not 
have to be secured. At these locations, if a train crew removes a car 
or block of cars, the railroad shall have instructions in place to 
ensure any car remaining in the track is secure. This could be 
accomplished by either placing the burden on the train crew making the 
pickup, or by having other workers in place to secure the remaining 
equipment. At all other locations outside of actively switched yards--
such as sidings, storage yards, or the mainline--each car and each 
individual block of unattended equipment must be secure in compliance 
with the regulation.
    FRA recognizes that there may be overlap between the securement 
requirements within locomotive and car repair track areas and with the 
alternate methods of Blue Signal Protection (49 CFR 218.29), which are 
the primary methods of ensuring safety in these areas. However, once 
repair tracks become unattended and the blue signals are removed, 
securement will be required in these areas subject to the limitation 
that under certain repair and servicing situations it will be 
impractical or unnecessary to require the application of a hand brake. 
These would include equipment in repair status that may be lacking hand 
brakes, wheels, or trucks; and that is secured by means of a mechanical 
securement device; which could include jack stands, chocks, chains, 
skates, or other similar devices.
    Without applying hand brakes in classification yards, an 
alternative means of securement is required per paragraph (n)(11)(i). 
FRA is generally referring to such alternative means as mechanical 
securement devices, which, as previously noted, FRA is including in 
this final rule a new defined term. FRA intends mechanical securement 
devices to include skates, retarders, inert retarders, and other 
devices that provide at least the equivalent securement that a 
sufficient number of hand brakes would provide in the same situation. 
In these situations, skates or retarders are considered an alternative 
form of securement, if they are maintained and used within their design 
criteria and as intended.
    A skate (or rail skid) is a portable sliding device placed on the 
rail to engage with a car wheel so as to provide continuous braking by 
sliding friction. If using a skate to comply with this paragraph, the 
rail car must be at rest and at least one skate must be fully engaged 
to prevent movement. To be clearer, the following applies for the use 
of skates:
     The railcar shall be constructively placed at rest, fully 
engaged, with at least one skate, preventing movement away from the 
actively switched direction of the yard track.
     Unengaged skates placed near the clearance points of yard 
tracks (without a railcar in place) are not considered securement.

[[Page 47369]]

     A single railcar secured by a skate that is overwhelmed by 
the mass of following railcars shall be considered the same as an 
insufficient quantity of hand brakes, and a violation may be taken.
    Under paragraph (n)(11), a railroad may also use a retarder, which 
is a powered or unpowered braking device permanently built into a 
railway track to reduce the speed or secure railcars by means of brake 
shoes that press against the lower sides of railcar wheels. When 
installed at the exit of a hump yard, they are often referred to as 
inert retarders or skate retarders (not to be confused with a skate 
defined above). It is not necessary to have the first car in each block 
engaged by the retarder during active switching. Also, a car may be 
past a retarder and be considered secure if it is coupled to a car 
engaged by the retarder and is not in a fouling condition as defined in 
Sec.  218.101. However, if a railcar or following railcars are switched 
into a retarder in a manner that overwhelms the capacity of the device 
and consistently places equipment in a fouling condition, it shall be 
considered the same as an insufficient quantity of hand brakes, and a 
violation may be taken. While unengaged skates may be placed after 
retarders to provide additional safety in the event that a retarder is 
overwhelmed; their sole use will not be consider a properly used 
mechanical securement device. If skates are being engaged excessively, 
FRA may consider the retarders as being overwhelmed or not being 
maintained, and a violation may be taken. For these and similar 
reasons, skates and retarders are not usually considered sufficiently 
safe securement alternatives to hand brakes when used outside of a 
classification yard or within a repair shop environment where blue 
signal protection has been initiated.
    In paragraph (n)(11)(ii) to this final rule, FRA is also 
incorporating the flexibility afforded by TB 10-01 as it relates to the 
isolation of the train pipe, also known as ``bottling of air.'' FRA 
will continue to not take exception to a train crew cutting away from a 
cut of cars, initiating an emergency brake application on the cut of 
cars, and then closing the angle cock for the sole purpose of taking 
the locomotives or otherwise proceeding directly to the opposite end of 
the cut of cars to either: (1) Couple the locomotives to the cars or 
(2) 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). 
However, if the locomotive cuts away from the cars and closes the angle 
cock without the locomotive or an employee going ``directly'' to the 
other end to either open the angle cock or couple the locomotives to 
the cars, the railroad will be in violation of 49 CFR 232.103(n)(2). 
The emphasis is on ``directly'' because, even though it may be the 
train crew's intent to go directly to the opposite end of the cars to 
take the appropriate action, if a train dispatcher, or whoever, directs 
the crew to perform another job task before they directly go to the 
opposite end of the cars, a violation is committed. It is only with the 
understanding that the train crew goes directly to the other end of the 
cars to take the appropriate action that FRA will permit this type of 
activity.

Section 232.105 General Requirements for Locomotives

    New paragraph (h) to Sec.  232.105 provides further requirements 
concerning locking mechanisms on locomotive doors. While Sec.  
232.103(n)(8)(ii) provides securement requirements 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 requirements should apply to all locomotives left 
outside a yard except if directly adjacent to the yard. Accordingly, 
FRA includes 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 this rulemaking. 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) requires 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 is also including this requirement in Sec.  232.105 so that it 
applies to all locomotives left unattended outside of a yard, but not 
on a track directly adjacent to a yard, not just those locomotives 
defined under Sec.  232.103(n)(6).
    BLET expresses concern with a 2017 deadline, describing it as too 
long. BLET also asserts that, without explanation or supporting data, 
the proposed rule, in comparison to the RSAC recommendation, narrowed 
the scope of the lock requirement to locomotives left outside of a 
yard. In one-day snapshot surveys performed in 2004 and 2008, BLET says 
that most respondents replied that there was no secured access to--or 
security presence within--their rail yards. Many reported seeing 
trespassers in the yard on the day they were surveyed, although the 
second survey showed a marked decrease.
    NTSB supports the labor union's suggestion that locking mechanisms 
be applied to each covered locomotive within 18 months after the 
effective date of this final rule.
    NYSDOT supports the intent of this requirement, but notes that 
while it requires all locomotives to have operative locks by 2017, 
other than the language in paragraph (n)(8)(ii) for hazardous trains as 
defined in paragraph (n)(6)(i), there is no requirement for the train 
crew to apply the lock. NYSDOT suggests additional language to that 
included in paragraph (n)(8)(ii) to cover all unattended locomotives on 
mainline tracks and sidings regardless of the lading carried by the 
train.
    Given that the railroads are already voluntarily installing locks 
and have committed to a reasonable deadline of March 2017, which is 
supported by factors highlighted by AAR during the RSAC process, FRA 
does not believe it is appropriate to accelerate the process by 
regulation. Without additional information, which was not provided in 
comments, shortening the deadline by regulation could be viewed as 
arbitrary. Nevertheless, at the time this final rule becomes effective, 
it will be close to 18 months away from that deadline anyway, thus 
rendering BLET's and NTSB's concerns moot.
    FRA also notes that AAR has issued standards regarding locomotive 
cab securement and has committed to install locks on all locomotives. 
See Locomotive Cab Securement, S-5520, AAR Manual of Standards and 
Recommended Practices, Section M-Locomotives and Locomotive Interchange 
Equipment (May 2014). Regardless of whether they operate in or out of 
yards, this final rule only requires lock installation on locomotives 
left unattended outside of yards, where trespasser access is arguably 
easier. Nevertheless, as previously discussed under paragraphs 
(n)(7)(ii) and (n)(8)(ii), any locomotive covered under paragraph 
(n)(6) with an installed locked left unattended anywhere, either within 
or outside of a yard, must have

[[Page 47370]]

that lock applied. Ultimately, this may provide each railroad with the 
flexibility to determine on its own whether to install and operate 
locks on locomotives dedicated to switching operations and confined to 
classification yard limits.
    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, paragraph (h)(3) requires 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 could 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. In the NPRM, FRA sought comments on this 
understanding. FRA also sought information and comments on the 
possibility of a qualified person having difficulty accessing the 
locomotive cab in the event of an unintentional movement of the 
equipment.
    NYSDOT believes that the proposed definition is reasonable. NYSDOT 
understands that whatever type of locking mechanism is provided by the 
railroad would be based upon its effectiveness and appropriate 
functionality to accommodate the required ingress and egress under all 
conditions.
    Since the railroad would decide upon the locking mechanism, NYSDOT 
suggests relying upon the railroad to develop appropriate procedures to 
address this scenario. In the event there is unintentional movement of 
the equipment as described, and access to the cab is problematic, 
NYSDOT would expect that the qualified person would likely attempt to 
apply the hand brake from the outside of the locomotive.
    In its comments, AAR and ASLRRA indicated that the railroads have 
evaluated this concern and that qualified employees will all have keys 
to locked locomotives. AAR and ASLRRA also say that, if the qualified 
employee has lost his or her company issued key, the train can be 
accessed by a non-lead locomotive, which is where the train could be 
placed into emergency.
    For the moment, FRA is satisfied with AAR's and ASLRRA's 
explanation that, if locked out of a rolling locomotive, a qualified 
employee could alternatively enter a non-lead locomotive and make an 
emergency brake application. FRA also recognizes that, just as with a 
rolling consist of cars without a locomotive, the qualified employee 
would be expected to apply the outwardly-facing hand brakes in such a 
situation.
    Under paragraph (h)(4), if the railroad discovers that a locking 
mechanism has become inoperative in the interval between a locomotive's 
periodic inspection dates, this provision does not require that a 
locomotive be removed from service. Railroads may continue to use the 
locomotive without an operative lock. However, if such equipment 
covered by 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).

V. Regulatory Impact and Notices

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

    This final 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. FRA received comments 
that the analysis should include the total cost of installing locks; 
however, the analysis only counts costs that would not have been 
incurred in the absence of the final rule. Since AAR members were in 
the process of installing locks compliant with the final rule on the 
affected locomotives, FRA will not include those costs in this 
analysis. This analysis also does not include sunk costs.
    FRA was able to quantify the costs of the final 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 final rule and 
will provide a brief discussion of the non-quantified benefits. The 
monetized discounted and annualized net benefits would be:

[[Page 47371]]



------------------------------------------------------------------------
                                                 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,\19\ 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).
---------------------------------------------------------------------------

    \19\ 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.\20\ 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 involving crude and 
ethanol shipment by rail occurs.
---------------------------------------------------------------------------

    \20\ 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 requirement.
    Changes to the definition in Sec.  232.5 have no substantive impact 
and do not result in any new costs or benefits.
    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 to this paragraph merely clarify FRA's longstanding 
interpretation, application, and enforcement of the existing 
regulation.
    Section 232.103(n)(6) lists types of trains and equipment covered 
by Sec.  232.103(n)(7) and (n)(8), but does not directly impose any 
specific requirements.
    Section 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.
    Section 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 final rule's requirements is part of 
long-standing railroad business practices, and will add no costs or 
benefits.
    In paragraph (n)(8)(i), there is a new 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

[[Page 47372]]

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 final 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 requested comments on the current and 
future levels of train operations impacted and the labor estimates 
associated with compliance, but did not receive any comments which 
directly discussed costs or benefits of this provision.
    Section 232.103(n)(8)(i) requires that where a freight train or 
standing freight car or cars as described in 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 changes to Sec.  232.103(n) would 
create no new benefits or costs, compared to the base case.
    Section 232.103(n)(8)(ii) requires that the controlling locomotive 
cab of a freight train described in paragraph (n)(6) shall be locked on 
locomotives capable of being locked or the reverser on the controlling 
locomotive shall be removed from the control stand and placed in a 
secured location. In the case of a locomotive with an operative lock, 
the compliance will simply be locking the lock. Railroads all require 
their employees to lock unattended locomotives equipped with operative 
locks, for both safety and security reasons. This provision of the 
final rule codifies current business practices, and creates no new 
benefits or costs. Under 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 minimal costs;
     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 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 \21\ 
will be subject to the requirements of Sec.  232.103(n)(8)(ii), but 
that 90 percent of them will be excepted under Sec.  
232.103(n)(8)(iii), because they will have routing that calls for 
unattended stops only in or adjacent to yards.\22\

[[Page 47373]]

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 locomotives 
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.\23\
---------------------------------------------------------------------------

    \21\ 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.
    \22\ 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.
    \23\ 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 final 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.\24\
---------------------------------------------------------------------------

    \24\ In the NPRM, FRA requested comment on the number of cases 
per year where remedial action would be required, and on the 
assumptions relied upon to estimate that number. Since FRA did not 
receive any such comments, it continues to rely on the assumptions 
used in the NPRM.
---------------------------------------------------------------------------

    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,\25\ 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 
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.
---------------------------------------------------------------------------

    \25\ 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,\26\ or a total of $2,350 per year for 5 incidents, which 
assumes a burdened rate for labor of $51.04 per hour.
---------------------------------------------------------------------------

    \26\ 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.
    \27\ Rounds to $3,100.
---------------------------------------------------------------------------

    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.....................  ............  ............          \27\
                                                                3,083.60
------------------------------------------------------------------------


[[Page 47374]]

    The total cost imposed by Sec.  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.
    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.\28\
---------------------------------------------------------------------------

    \28\ 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
                                                                (%)            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
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
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Section 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.
    Section 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 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. Section 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

[[Page 47375]]

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 
final 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 final 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 final 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.
    Section 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 Sec.  232.105(h). FRA 
believes that for Class I and Class II railroads, all costs and 
benefits of 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 October 15, 2013.\29\ 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.
---------------------------------------------------------------------------

    \29\ 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 Sec.  
232.105(h) with a simpler lock and hasp system, for a unit cost of 
$100. Given the smaller number of locomotives, personnel, territory, 
and facilities, use of this type of system would not be problematic. 
FRA requested comment regarding this estimate. ASLRRA commented that 
its members claim that the unit cost will be greater for small 
railroads than the $210 per unit estimated for AAR type locks. FRA 
rejects the contention that a hasp and padlock would cost more than 
$100 per unit, based on observation of hasp and lock costs at hardware 
stores, and FRA staff knowledge of the costs to install a hasp by 
welding, based on actual work experience as Class III railroad 
employees. Nevertheless, FRA points out that the business benefits of 
installing locks far exceed the unit costs of $210 per locomotive for 
AAR type locks, so even if FRA were to accept the ASLRRA comment, the 
business benefits of locks would still exceed their costs.
    FRA believes that no more than 500 locomotives belonging to Class 
III railroads lack locking mechanisms that comply with 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

[[Page 47376]]

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.\30\ 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 less than zero because the installation 
cost is more than offset by the business benefits. FRA did not receive 
any comments taking issue with FRA's estimates of locomotive vandalism 
costs.
---------------------------------------------------------------------------

    \30\ In analyzing the NPRM, FRA noted that PHMSA's proposed rule 
``Hazardous Materials: Enhanced Rail Tank Car Standards and 
Operational Controls for High-Hazard Flammable Trains'' applied a 
$500 per hour estimate of the cost of delay for the rail network 
overall. 79 FR 45015, Aug. 1, 2014. There were no comments to the 
NPRM taking issue with that estimate, and FRA continues to use that 
estimate here.
---------------------------------------------------------------------------

    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.\31\ FRA staff has received anecdotal information regarding 
other locomotives being stolen and operated, but permanent records of 
the incidents could not be found. If a train described in Sec.  
232.103(n)(6) were 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.
---------------------------------------------------------------------------

    \31\ 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.

[[Page 47377]]



----------------------------------------------------------------------------------------------------------------
                                                                                         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 final 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 final 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
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
                                                                (%)            cost            costs                     -------------------------------
                                                                                                                                7%              3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015....................................................          101.18       $1,315.34         $51,800      $53,115.34         $53,115         $53,115

[[Page 47378]]

 
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
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.

[[Page 47379]]



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

    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.\32\ 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 event avoided is $330 million,\33\ 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 rule.
---------------------------------------------------------------------------

    \32\ This cost is slightly increased by the increase in value of 
real wages over time.
    \33\ This estimate falls between the damages of Graniteville and 
Lac-M[eacute]gantic. It is selected only for illustrative purposes.
---------------------------------------------------------------------------

    The remainder of Emergency Order 28 and the final 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 final 
rule will provide more opportunities to 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 
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 final 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 final rule is a 
reasonable approach. In the NPRM FRA requested comments on all aspects 
of this analysis. The comments FRA received are discussed above.
Regulatory Flexibility Act and Executive Order 13272
    To ensure that the impact of this rulemaking on small entities is 
properly considered, FRA developed this final rule in accordance with 
Executive Order

[[Page 47380]]

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 amending 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 final 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 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.\34\ 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) \35\ 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.
---------------------------------------------------------------------------

    \34\ See 68 FR 24891, May 9, 2003; 49 CFR part 209, app. C.
    \35\ 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 Sec.  232.103. Small entities owning locomotives may incur a cost 
to install a locking mechanism under 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 final rule will not have a 
significant economic impact on a substantial number of small entities. 
In the NPRM, FRA requested comment on both this analysis and the 
certification, and its estimates of the impacts on small railroads. The 
only comment FRA received was that the unit cost of locks for small 
railroads would be more than $100, exceeding even the AAR-estimated 
unit cost of $210 per locomotive. For reasons discussed in the 
Regulatory Impact section above, FRA rejects that comment.

B. Paperwork Reduction Act

    The information collection requirements in this final 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.

[[Page 47381]]

 
    --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...  Already Fulfilled   Fulfilled under     Fulfilled under     Fulfilled under
232.103(n)(3)(iv)--RR Procedure     under OMB No.       OMB No. 2130-0601.  OMB No. 2130-0601.  OMB No. 2130-
 for Securing Unattended            2130-0601.                                                  0601.
 Locomotive.
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 RR  655 railroads.....  10 notices........  30 minutes........  5 hours.
     Develops and Has 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.                Section             Sec.
 Qualified Employee of Securement   232.103(n)(9).      232.103(n)(9).      232.103(n)(9).      232.103(n)(9).
 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 Requiring                       practices.
 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.....  12 inspections/     4 hours...........  48 hours.
 Procedure for Verification of                          records.
 Securement of Equipment by
 Qualified Employee.
    --Inspection of Equipment by
     Qualified Employee after
     Responder Visit.
    --Procedure for Alternative    655 railroads.....  655 procedures....  1 hour............  655 hours.
     Securement (New Requirement).
232.105--General requirements for  30,000 Locomotives  30,000 forms......  5 minutes.........  2,500 hours.
 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 necessary,  30,000 Locomotives  73 repairs/records  60.25 minutes.....  73 hours.
     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 brakes:  30,000 locomotives  6,358 records.....  4 minutes.........  424 hours.
     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 (Subsequent  5 new railroads...  5 rules...........  4 hours...........  20 hours.
     Years).
    --Amendments/Revisions.......  655 railroads.....  15 revisions......  1 hour............  15 hours.
    --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.
    --R655 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 records....  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.                                 records.
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.

[[Page 47382]]

 
    --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 requiring  245 railroads.....  50,000 verbal       30 seconds........  417 hours.
 2-way Voice Radio Communications.                      comments.
232.409--Inspection/Tests/Records  245 railroads.....  447,500 tests/      30 seconds........  3,729 hours.
 EOTs.                                                  notices/record.
    --Telemetry Equipment--        245 railroads.....  32,708 units        1 minute..........  545 hours.
     Testing and Calibration.                           marked.
232.503--Process to introduce new  655 railroads.....  1 letter..........  1 hour............  1 hour.
 brake technology.
    --Special approval...........  655 railroads.....  1 request.........  3 hours...........  3 hours.
232.505--Pre-revenue svc accept.   655 railroads.....  1 procedure.......  160 hours.........  160 hours.
 test plan.
--Submission of maintenance
 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. Admin.  655 railroads.....  1 report..........  13 hours..........  13 hours.
     for 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 of  4 railroads.......  1 request + 2       8 hours + 5         8 hours.
     Standards and Extra Copies                         copies.             minutes.
     to FRA.
    --Affirmative Statements that  4 railroads.......  4 statements + 24   60 minutes + 5      6 hours.
     RRs have served copies of                          copies.             minutes.
     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 hours.........  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.
    --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 Engineer  2 railroads.......  1 amended program.  40 hours..........  40 hours.
     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      5 minutes + 2.5     8 hours.
     Trains--Inspections and Tags                       tags/records.       minutes.
     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 ECP  20 Cars...........  20 insp. + 40 tags/ 5 minutes + 2.5     3 hours.
     Train moving w/less than 85                        records.            minutes.
     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 ECP  2 railroads.......  2 procedures......  24 hours..........  48 hours.
     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 ECP  1 Railroad Rep....  1 petition + 2      24 hours + 5        24 hours.
     Single Car Test.                                   copies.             minutes.
    --Single Car Air Brake Tests-- 50 Freight Cars...  50 tests/records..  45 minutes........  38 hours.
     Records.
    --Modification of Single Car   1 Railroad Rep....  1 mod. Proc.......  40 hours..........  40 hours.
     Test Standards.
----------------------------------------------------------------------------------------------------------------


[[Page 47383]]

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. 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. Nakia Poston, 
Information Clearance Officer, at 202-493-6073.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final 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.
    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.

C. 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 final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132. FRA has determined 
that the final 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 
final 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 final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final rule has no 
federalism implications, other than the possible preemption of State 
laws under 49 U.S.C. 20106 and 20119. Accordingly, FRA has determined 
that preparation of a federalism summary impact statement for this 
final rule is not required.

D. 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.

E. 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 requirements covered under FRA NEPA reviews. FRA has determined 
that this rule is not a major FRA action as defined in FRA's Procedures 
(requiring the preparation of an environmental assessment or 
environmental impact statement) because it is categorically excluded 
from further 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.

    This rule amends existing FRA regulations and strengthen the 
requirements relating to securement and unattended equipment. 
Compliance with these requirements would not result in actions that 
would adversely affect the environment. To the extent that a reduction 
in safety incidents, in particular hazardous materials releases, 
prevents adverse environmental impacts, this rule will have the 
potential for minor environmental benefits. The rule does not require 
any new infrastructure improvements or changes in railroad operating 
practices that would result in adverse environmental consequences. As 
such, FRA does not expect any significant increases in air emissions, 
water pollution, noise, or traffic congestion. Thus, in accordance with 
section 4(c) and (e) of FRA's Procedures, the agency concludes 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 will not

[[Page 47384]]

significantly affect the quality of the human environment and is 
categorically excluded from further review.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that the agency prepare a written 
statement detailing the effect of this rule on State, local, and tribal 
governments and the private sector:

    [B]efore 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.

For the year 2013, this monetary amount of $100,000,000 has been 
adjusted to $151,000,000 to account for inflation. This final 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.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22, 2001. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates, or is expected to 
lead to the promulgation of, a final rule or regulation (including 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 final rule in 
accordance with Executive Order 13211. FRA has determined that this 
final rule will not have a significant adverse effect on the supply, 
distribution, or use of energy. Consequently, FRA has determined that 
this regulatory action is not a ``significant energy action'' within 
the meaning of Executive Order 13211.

H. Privacy Act

    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), or you 
may visit http://www.dot.gov/privacy.html.

I. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) (91 FR 27534 May 10, 2012) require DOT agencies to 
achieve environmental justice (EJ) as part of their mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects, including interrelated 
social and economic effects, of their programs, policies, and 
activities on minority populations and low-income populations. The DOT 
Order instructs DOT agencies to address compliance with Executive Order 
12898 and the DOT Order in rulemaking activities, as appropriate. FRA 
has evaluated this proposed rule under Executive Order 12898 and the 
DOT Order and has determined that it would not cause disproportionately 
high and adverse human health and environmental effects on minority or 
low-income populations.

J. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, dated 
November 6, 2000. The proposed rule would not have a substantial direct 
effect on one or more Indian tribes, would not impose substantial 
direct compliance costs on Indian tribal governments, and would not 
preempt tribal laws. Therefore, the funding and consultation 
requirements of Executive Order 13175 do not apply, and a tribal 
summary impact statement is not required.

List of Subjects in 49 CFR Part 232

    Hazardous material, Power brakes, Railroad safety, Securement.

The Rule

    In consideration of the foregoing, FRA is amending 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, 21301-21302, 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 
definitions of ``Mechanical securement device'' and ``Unattended 
equipment'', and by removing the word ``limits'' from the defined term 
``Yard limits''.
    The revisions read as follows:


Sec.  232.5  Definitions.

* * * * *
    Mechanical securement device means a device, other than the air 
brake, that provides at least the equivalent securement that a 
sufficient number of hand brakes would provide in the same situation. 
Current examples include skates, retarders, and inert retarders.
* * * * *
    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.
* * * * *


0
3. In Sec.  232.103, revise paragraphs (n) introductory text and (n)(1) 
through (3) and add paragraphs (n)(6) through (11)'' to 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:
    (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 pursuant to paragraph (n)(11)(i) of 
this section. 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), or as

[[Page 47385]]

provided under paragraph (n)(11)(ii) of this section, 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 (iii) of this section 
when the locomotive is not equipped with an operative hand brake.
* * * * *
    (6)(i) The requirements in paragraph (n)(7) through (8) of this 
section apply to any freight train or standing freight car or cars that 
contain:
    (A) Any loaded tank 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 tank cars or loaded intermodal 
portable tanks of any one or any combination of a hazardous material 
listed in paragraph (n)(6)(i)(A) of this section, or any Division 2.1 
(flammable gas), Class 3 (flammable or combustible liquid), Division 
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.
    (11) A railroad may adopt and then must comply with alternative 
securement procedures to do the following:
    (i) In lieu of applying hand brakes as required under paragraph (n) 
of this section, properly maintain and use mechanical securement 
devices, within their design criteria and as intended within a 
classification yard or on a repair track.
    (ii) In lieu of compliance with the associated requirement in 
paragraph (n)(2) of this section--and in lieu of applying hand brakes 
as required under paragraph (n) of this section-- isolate the brake 
pipe of standing equipment from atmosphere if it:
    (A) Initiates an emergency brake application on the equipment;
    (B) Closes the angle cock; and
    (C) Operates the locomotive or otherwise proceeds directly to the 
opposite end of the equipment for the sole purpose to either open the 
angle cock to vent to atmosphere or provide an air source.
    (iii) Upon completion of the procedure described in paragraph 
(n)(11)(ii) of this section, the securement requirements of paragraph 
(n) of this section shall apply.
* * * * *

0
4. In Sec.  232.105, add paragraph (h) 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, but not 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

[[Page 47386]]

otherwise meets one of the exceptions described in Sec.  
232.103(n)(8)(iii).

0
5. In appendix A to part 232, revise the entry for Sec.  232.103(n) and 
add an entry for Sec.  232.105(h) to read as follows:

Appendix A to Part 232--Schedule of Civil Penalties \(1)\
---------------------------------------------------------------------------

    \1\ A penalty may be assessed against an individual only for a 
willful violation. Generally when two or more violations of these 
regulations are discovered with respect to a single unit of 
equipment that is placed or continued in service by a railroad, the 
appropriate penalties set forth above are aggregated up to a maximum 
of $25,000 per day. An exception to this rule is the $15,000 penalty 
for willful violation of Sec.  232.503 (failure to get FRA approval 
before introducing new technology) with respect to a single unit of 
equipment; if the unit has additional violative conditions, the 
penalty may routinely be aggregated to $15,000. Although the 
penalties listed for failure to perform the brake inspections and 
tests under Sec.  232.205 through Sec.  232.209 may be assessed for 
each train that is not properly inspected, failure to perform any of 
the inspections and tests required under those sections will be 
treated as a violation separate and distinct from, and in addition 
to, any substantive violative conditions found on the equipment 
contained in the train consist. Moreover, the Administrator reserves 
the right to assess a penalty of up to $105,000 for any violation 
where circumstances warrant. See 49 CFR part 209, appendix A.
    Failure to observe any condition for movement of defective 
equipment set forth in Sec.  232.15(a) will deprive the railroad of 
the benefit of the movement-for-repair provision and make the 
railroad and any responsible individuals liable for penalty under 
the particular regulatory section(s) concerning the substantive 
defect(s) present on the equipment at the time of movement.
    Failure to provide any of the records or plans required by this 
part pursuant to Sec.  232.19 will be considered a failure to 
maintain or develop the record or plan and will make the railroad 
liable for penalty under the particular regulatory section(s) 
concerning the retention or creation of the document involved.
    Failure to properly perform any of the inspections specifically 
referenced in Sec.  232.209, Sec.  232.213, Sec.  232.217, and 
subpart G may be assessed under each section of this part or this 
chapter, or both, that contains the requirements for performing the 
referenced inspection.

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       Violation
------------------------------------------------------------------------
 
                              * * * * * * *
232.103 General requirements for all
 train brake systems:
 
                              * * * * * * *
    (n) Securement of unattended
     equipment..........................
    (1) Failure to apply sufficient                5,000           7,500
     number of hand brakes; failure to
     develop or implement procedure to
     verify number applied..............
    (2) Failure to initiate emergency or           2,500           5,000
     depend upon air brake..............
    (3) Failure to apply hand brakes on            2,500           5,000
     locomotives........................
    (4) Failure to adopt or comply with            5,000           7,500
     procedures for securing unattended
     locomotive.........................
    (5) Release of hand brakes before              5,000           7,500
     brake system is properly charged...
    (7)(i) Failure to adopt or comply              2,500           5,000
     with unattended location plan......
    (8)(i) Failure to verify securement.           2,500           5,000
    (8)(ii) Failure to apply lock or               2,500           5,000
     remove and secure reverser.........
    (9) Failure implement operating rule           2,500           2,500
     for securement job briefing........
    (10) Failure to adopt and comply               2,500           5,000
     with securement procedures for
     after emergency response...........
232.105 General requirements for
 locomotives:
 
                              * * * * * * *
    (h)(1) Failure to equip with                   2,500           5,000
     operative locomotive lock..........
    (h)(2)-(h)(3) Failure to inspect or            2,500           5,000
     timely repair locomotive lock......
 
                              * * * * * * *
------------------------------------------------------------------------


    Issued in Washington, DC, on July 27, 2015.
Sarah Feinberg,
Acting Administrator.
[FR Doc. 2015-19002 Filed 8-5-15; 8:45 am]
BILLING CODE 4910-06-P


