[Federal Register Volume 79, Number 174 (Tuesday, September 9, 2014)]
[Proposed Rules]
[Pages 53356-53383]
[FR Doc No: 2014-21253]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

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

Securement of Unattended Equipment

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

ACTION: Notice of proposed rulemaking.

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

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

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

FOR FURTHER INFORMATION CONTACT: Steven Zuiderveen, Railroad Safety
Specialist, Motive & Power Equipment Division, Office of Safety
Assurance and Compliance, Federal Railroad Administration, RRS-14, West
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590
(telephone:<PHONE_NUMBER>); 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
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism
    E. International Trade Impact Assessment
    F. Environmental Assessment
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

Purpose of the Proposed Regulatory Action

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

Summary of the Major Provisions of the Proposed Regulatory Action

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

Costs and Benefits of the Proposed Regulatory Action

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

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

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

II. Background

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

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

A. Lac-M[eacute]gantic Derailment

1. Facts
    On July 6, 2013, in the town of Lac-M[eacute]gantic, Quebec,
Canada, an accident involving tank cars loaded with petroleum crude oil
occurred on track owned by Montreal, Maine & Atlantic Railway
Corporation (MMA), a company incorporated in the United States.
    According to a report issued by the Transportation Safety Board
(TSB) of Canada, the incident is summarized as follows.\1\ On July 5,
2013, a locomotive engineer was operating freight train MMA-002 on the
Sherbrooke Subdivision from Farnham (milepost 125.60) and at around
10:50 p.m. stopped near Nantes, Quebec (milepost 7.40) on its way to
its destination, Brownville Junction, Maine. The train was
approximately 4,700 feet long, weighed over 10,000 tons, and included a
locomotive consist of 5 head-end locomotives and one VB car, 1 box car
(buffer car), and 72 tank cars loaded with approximately 7.7 million
liters of petroleum crude oil (UN 1267). The locomotive engineer parked
train MMA-002 on the main line, on a descending grade of 1.2%,
attempted to secure the train, and departed, leaving the train
unattended. At around 11:40 p.m., a local resident reported a fire on
the train. The local fire department was called and responded with
another MMA employee. At approximately midnight, the controlling
locomotive was shut down and the fire extinguished. After the fire was
extinguished, the fire department and the MMA employee left the site.
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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. At this
time, it is estimated that there were 47 fatalities.\2\ There was also
extensive damage to the town, and approximately 2,000 people were
evacuated from the surrounding area.
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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 is left unattended for
one hour or less, attendance related to locomotives attached to loaded
tank cars transporting dangerous goods on main track, and the number of
crew members assigned to a locomotive attached to loaded tank cars
transporting dangerous goods on a main track or siding.
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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 (CROR) 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. Emergency Order 28 remains in effect
today, as amended by FRA's August 27, 2013, letter approving with
conditions a joint petition for relief from the AAR and the American
Short Line and Regional Railroad Association (ASLRRA). Railroads
currently are required to comply with Emergency Order 28, as amended,
in addition to 49 CFR 232.103(n). Emergency Order 28, as amended,
contains six securement-related requirements governing when, where, and
how certain hazardous materials tank cars may be left unattended,
including certain communication requirements:

    (1) A railroad must not leave equipment unattended on a mainline
outside of a yard or terminal when the equipment includes a minimum
number of loaded tank cars containing certain types of hazardous
materials, referred to as ``Appendix A Materials'' --5 or more tank
cars containing materials poisonous by inhalation (PIH), including
anhydrous ammonia and ammonia solutions and/or 20 rail car loads of
flammable gases or liquids (e.g., crude oil and ethanol)--until the
railroad develops, adopts, and complies with a plan that identifies
specific locations and circumstances when such equipment may be left
unattended.\5\
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    \5\ AAR has voluntarily applied EO 28 to trains that have a
single PIH 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 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 DOT has taken, or is already taking,
action concerning each of those factors. The TSB notably included in
its list of factors the MMA's weak safety culture and ineffective
oversight on train securement. The report also identified factors
relating directly to train securement such as insufficient hand brakes
and improper hand brake test applications. This instant rulemaking
proposes requirements that would enhance safety culture and oversight
and that would address train securement. For instance, as further
discussed below, FRA proposes to mandate by regulation the
implementation of operating rules and practices requiring that
securement be part of all relevant job briefings. FRA also proposes
rules requiring verification with a qualified person that equipment is
adequately and effectively secured in accordance with the regulations
before being left unattended. These requirements aim to increase the
safety dialog between railroad employees and to provide enhanced
oversight within the organization. In doing so, these communications
should better ensure that crew members apply the proper number of hand
brakes, and more correctly apply hand brake tests, on unattended
equipment. Also notable was the report's findings as to risk that
states: ``If trains are left unattended in easily accessible locations,
with locomotive cab doors unlocked and the reverser handle available in
the cab, the risk of unauthorized access, vandalism, and tampering with
locomotive controls is increased.'' This proposed rule directly
addresses this concern with requirements relating to the installation
and use of locomotive door locks and reverser removal.

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

    The vast majority of hazardous materials shipped by rail each year
arrive at their destinations safely and without incident. Indeed, in
calendar year 2013, there were only 18 accidents in which a hazardous
material was released (involving a total of 78 cars) out of
approximately 1.6 million shipments of hazardous material transported
in rail tank cars in the United States. However, the Lac-
M[eacute]gantic incident demonstrates the substantial potential for
danger that exists when an unattended train rolls away and derails
resulting in the sudden release of hazardous materials into the
environment. Although the Lac-M[eacute]gantic incident occurred in
Canada, the freight railroad operating environment in Canada is similar
to that in the United States, and a number of railroads operate in both
countries.\7\ Freight railroads in the United States also transport a
substantial amount and variety of hazardous materials, including
materials poisonous by inhalation (PIH materials), also known as
materials toxic by inhalation (TIH), and explosive materials. Moreover,
an increasing proportion of the hazardous materials transported by rail
is classified as flammable.\8\
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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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    The MMA train in the Lac-M[eacute]gantic incident was transporting
72 carloads of crude oil with five locomotives and a loaded box car. A
similar type of train consist is commonly found on rail lines in the
United States, because crude oil is often transported in solid blocks
or by a unit train consisting entirely of tank cars containing crude
oil. Crude oil is often classified by an offeror as a flammable liquid;
per PHMSA's Hazardous Materials Regulations (HMRs), however, its
packing group can be I, II, or III depending on the blend of
constituent crude oils. According to the AAR, crude oil traffic
increased 68-fold in the United States between 2005 and 2013. Much of
this growth has occurred because of developments in North Dakota, as
the Bakken formation in the Williston Basin has become a major source
for oil production in the United States. Texas also has contributed to
the growth of crude oil shipments by rail. As a result, carloads of
crude oil increased from approximately 81,452 in 2011 to approximately
485,384 in 2013. The Bakken crude oil from North Dakota is primarily
shipped via rail to refineries located near the U.S. Gulf Coast--
particularly in Texas and Louisiana--or also to pipeline connections,
most notably to connections located in Oklahoma. Crude oil is also
shipped via rail to refineries on the East Coast and West Coast, and to
a lesser extent, refineries in other regions of the U.S.\9\
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    \9\ See AAR's May 2013 paper ``Moving Crude Oil by Rail'',
available online at: https://www.aar.org/safety/Documents/Assets/
TransportationofCrudeOilby
Rail.pdf.
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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.\10\ Rail shipments from the North Dakota region are
forecast to increase over the next two years (as are pipeline
shipments). Much of the near-term growth in rail originations is a
function of how quickly rail car manufacturers can meet the demand by
producing new tank cars, primarily for transporting Bakken crude oil.
The rise in rail originations in crude oil is subject to changes in the
number of tank cars available, price of crude oil, overall production
of crude oil in that region; and if, or how quickly, additional
pipeline capacity from that region comes online. However, for the
foreseeable future, all indications are for continued growth of rail
originations of crude in that region as new tank car fleets come online
to meet demand.
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    \10\ See EIA reports ``Bakken crude oil price differential to
WTI narrows over last 14 months,'' available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=10431; and ``Rail delivery
of U.S. oil and petroleum products continues to increase, but pace
slows,'' available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=12031.
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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 350 individuals from the immediate area. Additionally,
three of the derailed tank cars came to rest in the adjacent James
River, causing up to 30,000 gallons of crude oil to be spilled into the
river. The National Transportation Safety Board (NTSB) and DOT are both
investigating this accident to determine the cause.
    On December 30, 2013, a westbound grain train derailed 13 cars near
Casselton, North Dakota, fouling main track 2.\11\ Simultaneously, an
eastbound crude oil unit train was operating on main track 2. The crude
oil unit train reduced its speed and collided with a derailed car that
was fouling, resulting in the derailment of the head-end locomotives
and the first 21 cars of the crude oil unit train. Eighteen of the 21
derailed tank cars ruptured, releasing an estimated 400,000 gallons of
crude. The ruptured tank cars ignited causing an explosion. There were
no reported injuries by either train crew, nor were there any injuries
to the public; however, about 1,400 people were evacuated. Damages from
the derailment are estimated at $6.1 million.\12\
---------------------------------------------------------------------------

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

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

    The dangers related to crude oil trains are not necessarily unique.
They also exist with other hazardous materials such as ethanol, which
is another flammable liquid that is commonly transported in large
quantities by rail. In 2012, more carloads of ethanol were transported
via rail than any other hazardous material. The railroads experienced
an increase in ethanol traffic of 442 percent between 2005 and 2010.
Although in 2013 the number of carloads dropped by 10 percent from 2010
levels, there were still approximately 297,000 carloads transported by
rail. Since 2009, there have been at least four major mainline
derailments resulting in the breach of tank cars containing ethanol.
While FRA recognizes that none of these four derailments resulted from
a roll-away situation, they are instructive on the destructive
potential of a derailment involving tank cars containing flammable
products:
     On August 5, 2012, in Plevna, Montana, a BNSF Railway Co.
train derailed 18 cars while en route from Baker, Montana. Seventeen of
the 18 cars were tank cars loaded with denatured alcohol, a form of
ethanol. Five of the cars caught on fire resulting in explosions, the
burning of surrounding property not within the railroad's right-of-way,
and the evacuation of the immediate area.
     On July 11, 2012, in Columbus, OH, a Norfolk Southern
Railway Co. train derailed while operating on main track. Thirteen tank
cars containing ethanol derailed resulting in a fire and the evacuation
of 100 people within a one-mile radius of the derailment.
     On February 6, 2011, in Arcadia, Ohio, a Norfolk Southern
Railway Co. train operating on single main track derailed 33 tank cars
loaded with ethanol. The derailment caused a major fire and forced the
evacuation of a one-mile radius around the derailment.
     On June 19, 2009, in Cherry Valley, Illinois, a Canadian
National Railway train derailed 19 tank cars loaded with ethanol.
Thirteen of the 19 derailed cars caught fire, and there were reports of
explosions. One person died, and there were 9 reported injuries related
to the fire. Additionally, approximately 600 residences were evacuated
within a \1/2\-mile radius of the derailment.

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

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

C. Current Securement Regulations and Related Guidance

    As previously noted, FRA has existing regulations designed to
ensure that trains and vehicles are properly secured before being left
unattended. See 49 CFR 232.103(n). In FRA's view, if existing
regulations are followed, the risk of movement of unattended equipment
is substantially reduced. The current regulations define ``unattended
equipment'' as ``equipment left standing and unmanned in such a manner
that the brake system of the equipment cannot be readily controlled by
a qualified person.'' Id. Section 232.103(n) generally addresses the
securement of unattended equipment by stating that a train's air brakes
must not be depended on to hold equipment standing unattended on a
grade. More specifically, Sec.  232.103(n) also requires that the
railroad apply a sufficient number of hand brakes to hold the equipment
with the air brakes released and that the brake pipe pressure be
reduced to zero with the angle cock opened on one end of a cut of cars
when

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

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

D. Emergency Order 28 and Related Guidance

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

E. RSAC Overview

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

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

* Indicates associate, non-voting membership.

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

recommendations. On April 2, 2014, the RSAC announced that by majority
vote the recommendations had been approved and would become its
recommendation to the Administrator.
    The recommendation of the RSAC include amendments to 49 CFR
232.103(n) that would do the following: (1) provide additional
requirements for the securement of unattended equipment carrying
certain hazardous materials; (2) mandate the implementation of
operating rules and practices requiring that securement be part of all
relevant job briefings; and (3) require adoption and compliance with
procedures to secure equipment subsequent to an emergency response. The
RSAC recommendation also includes amendments to 49 CFR 232.105 that
would require equipping locomotives with exterior locking mechanisms.

III. Section-by-Section Analysis

    Unless otherwise noted, all ``part'' and ``section'' references
below refer to provisions either in title 49 of the CFR or proposed to
be in title 49 of the CFR. FRA seeks comments on all proposals made in
this NPRM.
    Before entering into specific analysis of each proposed section, it
is important to make clear that this proposal, which provides more
restrictive securement requirements for specific types of equipment,
does not affect FRA's policy concerning the Federal hours of service
requirements. FRA continues to believe that a railroad may not require
or allow a train employee with an accumulated time on duty of 12 hours
or more to remain on a train for the sole purpose of meeting the
securement requirements, including those proposed here. A train
employee may, however, remain on an unsecured train, if that employee
is legitimately waiting for deadhead transportation from duty to a
point of final release, performs no covered or commingled service,\15\
and is free to leave the equipment when deadhead transportation
arrives. In this case, time spent waiting for and in deadhead
transportation is treated as neither time on duty nor time off duty.
---------------------------------------------------------------------------

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

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

Proposed Amendments to 49 CFR Part 232

Section 232.5 Definitions

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

Section 232.103 General Requirements for all Train Brake Systems

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

locomotive, a car, or a train whether or not locomotive is attached).
FRA further proposes to remove the phrase ``on a grade,'' as such a
requirement is arguably superfluous and confusing. Perfectly level
track is rare, and there is still a risk of unattended movement caused
by numerous factors, such as a mistake in the location or length of the
level track, the effect of extreme weather, or an impact from other
equipment. Moreover, the phrase ``on a grade'' has led some to the
erroneous conclusion that hand brakes must only be applied if the
equipment is left on a grade. While grade is likely a factor in
determining the number of hand brakes that would sufficiently hold
unattended equipment, it is not a factor in determining whether hand
brakes should be applied at all. Accordingly, FRA proposes that the
language be modified to make clearer that the hand brake application
requirement is universal, regardless of grade.
    Proposed paragraphs (n)(6) through (n)(8) attempt to address the
aforementioned heightened concerns relating to the securement of
unattended equipment carrying certain hazardous materials. Proposed
paragraph (n)(6) defines the type of cars covered by these requirements
and is intended to ensure that proposed paragraphs (n)(7) and (n)(8)
apply only to equipment that includes loads. Specifically, paragraph
(n)(6) provides that the substantive requirements of paragraphs (n)(7)
and (n)(8) will apply to:
    (1) any loaded freight car containing PIH material, including
anhydrous ammonia and ammonia solutions; or
    (2) twenty (20) or more loaded cars or loaded intermodal portable
tanks of any one or any combination of PIH materials (including
anhydrous ammonia and ammonia solutions), or any flammable gas,
flammable or combustible liquid, explosives, or a hazardous substance
listed at Sec.  173.31(f)(2) of this title.
    FRA notes that this language is broader than the language used in
PHMSA's NPRM on Enhanced Tank Car Standards and Operational Controls
for High-Hazard Flammable Trains (HHFTs). See 79 FR 45016 (Aug. 1,
2014). In that rule, PHMSA proposed certain new requirements for HHFTs,
which it defines as ``a train comprised of 20 or more carloads of a
Class 3 flammable liquid and ensures that the rail requirements are
more closely aligned with the risks posed by the operation of these
trains.'' 79 FR at 45017. Paragraph (n)(6) proposes new securement
requirements that would cover a single PIH tank car. Moreover, where
the proposed PHMSA rule would only cover trains with 20 or more
carloads of flammable liquids, paragraph (n)(6) proposes to cover
situations where there are 20 or more carloads or loaded intermodal
portable tanks of PIH materials, flammable gases, flammable or
combustible liquids, explosives, other hazard substances listed at
Sec.  173.31(f)(2), or any combination thereof. FRA seeks comment on
this proposal and also seeks comment on whether a defined term should
be used for equipment covered under paragraph (n)(6).
    The proposed regulatory text exempts residue cars from
consideration. Residue cars are defined by PHMSA under the HMRs. FRA
will continue to rely on the HMRs for this definition, even if amended.
Together, FRA and PHMSA are concurrently considering new regulations
relating to the placement in trains of cars containing hazardous
materials. In that effort, loaded and residue cars may be treated the
same. FRA does not believe that any resulting train placement
regulation would affect the securement regulations we are considering
in the instant proceeding. Nevertheless, the parties have expressed
concerns that such inconsistent use may foster confusion or be ``pitted
against one another.'' FRA seeks further comment explaining how such
confusion or conflict may manifest itself.
    Proposed paragraph (n)(7) provides certain conditions under which
such equipment may be left unattended, including the development of a
plan identifying locations where such equipment may be left unattended.
Proposed paragraph (n)(8) includes specific requirements regarding the
securement of such equipment.
    Emergency Order 28 prohibits each railroad from leaving trains or
vehicles that are transporting certain hazardous materials on mainline
track or mainline siding outside of a yard or terminal unless the
railroad adopts and complies with a plan that identifies the specific
locations and circumstances for which it is safe and suitable for
leaving such trains or vehicles unattended. According to Emergency
Order 28, the plan must contain sufficient analysis of the safety risks
and any mitigating circumstances the railroad has considered in making
its determination. FRA expressed its intent not to formally grant
approval to any plan, and it continues to monitor such plans. In the
event that FRA determines that adequate justification is not provided,
the railroad is required to ensure that trains and equipment are
attended until appropriate modifications are made to the railroad's
plan.
    In proposed paragraph (n)(7)(i), FRA intends to continue these
requirements by regulation. While FRA continues to believe that it is
not necessary to provide approval for each plan, which could take
considerable resources, FRA must ensure proper enforcement and
oversight. Accordingly, proposed paragraph (n)(7)(i) includes a
requirement that the railroad notify FRA when it modifies its existing
plan and provide FRA with a copy of the plan upon request. For similar
reasons, FRA will also retain the right to require modifications to any
insufficient plan.
    Proposed paragraph (n)(7)(i), however, differs from Emergency Order
28 in one manner. It allows a railroad to leave a train or equipment
unattended on mainline track that is running through a yard or on
mainline track that is adjacent to the yard without covering the
location in the railroad's plan. This change is based on feedback
received during the SWG meetings, which voted unanimously to adopt the
proposed language in paragraph (n)(7)(i), with the recommendation of
the full RSAC to move forward with the regulatory provision.
    In Emergency Order 28, FRA made a decision that it was not
necessary to include mainline tracks and mainline sidings that run
through a yard in a railroad's plan for leaving equipment unattended.
FRA's rationale for this decision was that a yard was defined space
where the railroad performed a particular set of tasks (classifying
cars, making-up and inspecting trains, or storing cars and equipment).
As a result of the tasks performed there, yards tend to have
appropriate geographic characteristics, sufficient railroad activity,
and a population of railroad personnel in close proximity that make
them safer places for leaving equipment unattended. In FRA's view,
mainline tracks that run through yards share those characteristics with
the yard tracks surrounding it and is often used as a de facto ``yard''
track to assist with classifying cars and with making-up and inspecting
trains. As such, FRA did not see a need when drafting Emergency Order
28 for railroads to identify mainline tracks within a yard in the
railroad's securement plan before a railroad would be allowed to leave
equipment unattended on the mainline track that is surrounded by a
yard.
    The feedback received through the RSAC process was that tracks
adjacent to the yard share many of the same characteristics as mainline
tracks that run through a yard. Therefore, FRA has proposed in this
rulemaking to treat mainline track that is adjacent to the yard in the
same manner that it is

currently treating mainline track that runs through a yard under
Emergency Order 28. In proposing this change, FRA intends only to cover
those tracks that are immediately adjacent to the yard and that are in
close enough proximity to the yard that the adjacent tracks share the
characteristics of the yard. FRA seeks comments on its treatment of
tracks adjacent to the yard.
    Proposed paragraph (n)(7)(ii) would establish new requirements for
those trains that are left unattended on mainline track that is running
through a yard or on mainline track that is adjacent to the yard. It
would apply aspects of Emergency Order 28 to these tracks by requiring
verification that securement has been completed in accordance with the
railroad's process and procedures (see discussion below concerning
paragraph (n)(8)(i)), and that the locomotive cab is locked or the
reverser is removed from the control stand and placed in a secured
location (see discussion below concerning paragraph (n)(8)(ii)).
    Emergency Order 28 requires railroads to develop specific processes
for employees responsible for securing any unattended train or vehicles
transporting certain hazardous materials that must be left on mainline
track or a mainline siding outside of a yard. FRA believes that this
requirement should continue in regulation. The proposed rule allows a
railroad to leave a paragraph (n)(6) train unattended on mainline track
or a siding outside of a yard where the railroad has a plan in place
and on mainline tracks that are in or adjacent to yards. In doing so,
proposed paragraph (n)(8)(i) requires the employee responsible for the
securement of the equipment to verify securement and proposed paragraph
(n)(8)(ii) requires the train crew to lock the controlling locomotive
cab or remove and secure the reverser from the control stand.\16\
---------------------------------------------------------------------------

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

    Proposed paragraph (n)(8)(i) requires that an employee responsible
for securing equipment defined by paragraph (n)(6) verify securement
with another qualified person. This is similar to Emergency Order 28
which currently requires employees to verify proper securement with a
qualified railroad employee. This may be done by relaying pertinent
securement information (i.e., the number of hand brakes applied, the
tonnage and length of the train or vehicle, the grade and terrain
features of the track, any relevant weather conditions, and the type of
equipment being secured) to the qualified railroad employee. The
qualified railroad employee must then verify and confirm with the train
crew that the securement meets the railroad's requirements. However,
proposed paragraph (n)(8)(i) does not contain a requirement that the
railroad maintain a record of the verification of proper securement.
    FRA believes that the type of verification requirement in proposed
paragraph (n)(8)(i) will serve to ensure that any employee who is
responsible for securing equipment containing hazardous materials will
follow appropriate procedures because the employee will need to fully
consider the securement procedures to relay what was done to the
qualified employee. Further, the qualified railroad employee (e.g. a
trainmaster, road foreman of engines, or another train crew employee)
will be in a position to ensure that a sufficient number of hand brakes
have been applied. Under this proposed rule, the qualified railroad
employee must have adequate knowledge of the railroad's securement
requirements for the specific location or for the specific circumstance
for which the equipment will be left unattended. Without limiting the
type of employee who may be qualified, FRA envisions that a dispatcher,
roadmaster, yardmaster, road foreman of engines, or another crew member
would be able to serve in the verification capacity.
    FRA has decided not to continue the recordation requirement based
on experience in enforcing Emergency Order 28. FRA has found that
requiring recordation of securement information is superfluous because
the verification requirement ensures that two individuals consulting
with each other make certain that the appropriate securement method is
used. The intent of the recordation requirement was to ensure the
communications are taking place. FRA has found over the last year that
communications occur in the course of the verification process.
Therefore, it does not believe requiring railroads to make a record of
each securement event is necessary to ensure proper securement.
Nevertheless, FRA seeks comment concerning enforcement of the
verification requirement, absent recordation.
    Also under Emergency Order 28, the employees responsible for
securing the train or vehicles must lock the controlling locomotive cab
door or remove and secure the reverser before leaving it unattended.
Accordingly, proposed paragraph (n)(8)(ii) requires further protection
of the locomotive to prevent movement of unattended equipment that
could be caused by unauthorized access to the locomotive cab.
    Representatives from the railroad labor strongly suggested at the
SWG meetings that a locking mechanism be applied to each locomotive
covered under this rule, seeking that lock installation be complete
within 18 months. BLET stated that locomotive cab security is a major
concern to the labor caucus.
    The language approved by the SWG provided that the controlling
locomotive cab shall be locked on locomotives capable of being locked
or the reverser on the controlling locomotive shall be removed from the
control stand and placed in a secured location. The use of the
conjunctive appears to indicate a choice; each railroad may opt to
either lock the locomotive or remove its reverser. However, based on
the discussions during the SWG meetings, FRA believes that the SWG
intended for proposed paragraph (n)(8)(ii) to mean that all covered
locomotives should be locked when so equipped. FRA has made slight
alterations to the language in paragraph (n)(8)(ii) from the language
that was approved by the SWG in order to more accurately address the
lock requirement. FRA understands that the reverser provision is
intended for the interim period until locks are installed or when a
locomotive has been equipped with a lock but the lock has become
inoperative. FRA also notes that under this proposal a railroad would
be free to require both the locking of the locomotive and the removal
of the reverser. FRA does not intend to limit a railroad to just one or
the other. FRA seeks comment on this understanding, particularly as to
whether the alternative of removing the reverser should only be
available during the timeframe when the locking mechanism becomes
broken or otherwise ineffective or whether, in the interest of safety
redundancy, the regulations should require railroads to both lock cab
doors and to remove reverser handles.
    When a railroad relies on removing the reverser as a means for
securement, FRA expects that the reverser will be taken by the
appropriate railroad employee from the controlling locomotive cab so
that it is not accessible to an unauthorized person such as a
trespasser. Alternatively, FRA anticipates allowing the reverser to be
secured in the cab of an unlocked controlling locomotive as long as the
reverser is kept in a box or other compartment that can be locked
within the locomotive cab. However, FRA would not consider a reverser
``secured'' within the meaning of this proposal if

the railroad allows the reverser to be stored merely out of plain
sight.
    In most instances, FRA would consider a locomotive with an
ineffective locking mechanism to be noncompliant with paragraph
(n)(8)(ii) if the locomotive is left unattended with the reverser
remaining in the control stand. FRA recognizes that there may be times
when a locomotive's lock becomes inoperative and its reverser cannot be
removed, thus making compliance with proposed paragraph (n)(8)(ii)
nearly impossible. Accordingly, for such instances, FRA proposes an
exception under paragraph (n)(8)(iii). FRA believes that application of
this exception would only be utilized on the rare occasion where older
locomotives with integrated reversers may be utilized or where weather
conditions make the reverser necessary for operations (i.e., to prevent
the locomotive from freezing). FRA seeks comments on the intent,
application, and language of this proposed exception.
    FRA believes that the job briefing requirement in Emergency Order
28 should be codified in regulation. Accordingly, proposed paragraph
(n)(9) would require each railroad to implement operating rules and
practices requiring the discussion of securement among crew members and
other involved railroad employees before engaging in any job that will
impact or require the securement of any equipment in the course of the
work being performed. This proposed requirement is analogous to other
Federal regulations that require crew members to have a job briefing
before performing various tasks, such as confirming the position of a
main track switch before leaving an area. The purpose of this proposed
job briefing requirement is to make certain that all crew members and
other involved railroad employees are aware of what is necessary to
properly secure the equipment in compliance with Sec.  232.103(n).
    Under this proposal, FRA expects that the crew will discuss the
equipment that is impacted, the responsibilities of each employee
involved in the securement of a train or vehicle, the number of hand
brakes that will be required to secure the affected equipment, the
process for ensuring that securement is sufficient, how the
verification will be determined, and any other relevant factors
affecting securement. FRA seeks comments on whether these expectations
are reasonable, accurate, and either sufficiently comprehensive or
somehow lacking.
    FRA recognizes that in some instances, there may be only one crew
member performing a switch or operation and that would have to secure
equipment alone at the end of the activity. FRA believes that the issue
of self-satisfying a job briefing is best left to the railroad when
complying with part 218. Nevertheless, FRA seeks comments on how to
apply this requirement in a situation involving a single person crew
and how it interrelates with part 218.
    Under paragraph (n)(10), FRA is proposing to require railroads to
develop procedures to ensure that a qualified railroad employee
inspects all equipment that any emergency responder has been on, under,
or between for proper securement before the rail equipment or train is
left unattended. As it may be necessary for emergency responders to
modify the state of the equipment for the performance of their jobs by
going on, under, or between equipment, it is critical for the railroad
to have a qualified employee subsequently inspect the equipment to
ensure that the equipment continues to be properly secured before it is
again left unattended.
    The proposed rule requires railroads to establish a process to
ensure that a qualified railroad employee inspects all equipment that
any emergency responder (e.g., fireman or paramedic) has been on,
under, or between for proper securement before the train or vehicle is
left unattended. FRA understands that on rare occasions there may be
situations where an emergency responder accesses railroad equipment
without the knowledge of the railroad. The railroad's process can take
that type of situation into account; however, FRA will expect that a
qualified railroad employee will inspect equipment after it has been
accessed by an emergency responder in any circumstance where the
railroad acting in a reasonable manner knew or should have known of an
emergency responder's presence on, under, or between the subject
equipment.
    The proposed rule requires that these procedures are followed as
soon as safely practicable after learning that an emergency responder
has interfaced with the equipment. FRA seeks comments on what should be
considered ``as soon as safely practicable.''

Section 232.105 General Requirements for Locomotives

    FRA proposes a new paragraph (h) to Sec.  232.105 to provide
further requirements concerning locking mechanisms on locomotive doors.
While proposed Sec.  232.103(n)(8)(ii) provides securement controls for
the controlling locomotive cab that is left unattended on a mainline
track or siding as part of a train that meets the minimum quantities of
hazardous materials established in proposed Sec.  232.103(n)(6)(i), FRA
believes that additional requirement should apply to all locomotives
left outside a yard. Accordingly, FRA proposes including those
requirements under Sec.  232.105.
    During the meetings of the RSAC SWG, representatives of the labor
unions proposed requiring the installation of locking mechanisms on all
locomotives covered by these proposed rules. AAR subsequently committed
that all locomotives will be equipped with cab door locks by March of
2017. AAR clarified its statement by ensuring that there will be no
distinction between interchange and non-interchange locomotives. In the
interest of codifying this deadline as applicable to the scope of this
proposed rule, paragraph (h)(1) proposes that after March 1, 2017, each
locomotive left unattended outside of a yard be equipped with an
operative exterior locking mechanism. By no means does this requirement
limit AAR's ambition that its members equip additional locomotives
(e.g., switching locomotives inside a yard) in their respective fleets.
FRA also proposes to include this requirement in Sec.  232.105 so that
it applies to all locomotives left unattended outside of a yard or on a
track immediately adjacent to a yard, not just those locomotives
defined under Sec.  232.103(n)(6). FRA seeks comment on this
requirement.
    Proposed paragraphs (h)(2) and (h)(3) are meant to ensure that
locking mechanisms, if broken or otherwise inoperative, are repaired in
a reasonable timeframe. FRA expects that each locomotive equipped with
a locking mechanism will be inspected and maintained at the time of the
locomotive's periodic inspection. See 49 CFR 229.23. If a locking
mechanism is found inoperative at any time other than the periodic
inspection, proposed paragraph (h)(3) would require the railroad to
repair it within 30 days. However, if the periodic inspection falls
within the 30-day limit for repair, FRA would expect that the lock will
be repaired at the time of the periodic inspection in accordance with
the requirement in paragraph (h)(2). For instance, if a locomotive
engineer were to find the lock inoperative during a daily inspection
and the periodic inspection was scheduled 15 days later, then FRA would
expect that the railroad

will repair the locking mechanism at the time of the periodic
inspection. Alternatively, if the same situation were to arise but the
periodic inspection was scheduled to occur 45 days later, the railroad
would be expected to repair the locking mechanism prior to the time of
the periodic inspection to comply with the 30-day time limit in
paragraph (h)(3).
    For the purposes of this regulation, ``operative'' means that, when
applied, the locking mechanism will reasonably be expected to keep
unauthorized people from gaining access into a locomotive while the
locomotive is unoccupied. However, in doing so, the railroad must
assure that ingress and egress is provided for in normal circumstances
and emergencies. FRA seeks comments on this understanding. FRA also
seeks information and comments on the possibility of a qualified person
finding difficulty accessing the locomotive cab in the event of an
unintentional movement of the equipment.
    Under proposed paragraph (h)(4), if a locking mechanism becomes
inoperative in the interval between a locomotive's periodic inspection
dates, this provision does not require that a locomotive be removed
from service upon the discovery of an inoperative locking mechanism.
Railroads may continue to use the locomotive without an operative lock.
However, if such equipment covered by proposed Sec.  232.103(n)(6) is
left unattended and without an operative lock, then the railroad must
default to the alternative securement option governing the reverser
under proposed Sec.  232.103(n)(8)(ii) or fall under the exception
provided per proposed Sec.  232.103(n)(8)(iii).

IV. Regulatory Impact and Notices

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

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

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

Statement of Need

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

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

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

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

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

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

Cost-Benefit Analysis of Individual Sections

    Following is a discussion of the regulatory costs and benefits
associated with each proposed requirement.
    Proposed changes to the definition in Sec.  232.5 have no
substantive impact and do not result in any new costs or benefits.
    Proposed changes to Sec.  232.103(n)(2) will have negligible impact
or real burdens, but may increase compliance with existing rules. As
noted above, the changes being proposed to this paragraph merely
clarify FRA's longstanding interpretation, application, and enforcement
of the existing regulation.
    Proposed Sec.  232.103(n)(6) lists types of trains and equipment
covered by proposed Sec.  232.103(n)(7) and (n)(8), but does not
directly impose any specific requirements.
    Proposed Sec.  232.103(n)(7)(i) prohibits leaving affected
equipment unattended on a main track or siding (except when that main
track or siding runs through, or is directly adjacent to a yard) until
the railroad has adopted and is complying with a plan identifying
specific locations or circumstances when the equipment may be left
unattended. Railroads already have developed and implemented such plans
under Emergency Order 28, so there is no cost to create such plans. The
initial revision and notification burden would have been in identifying
safety rationale related to such locations and circumstances, but that
has already been accomplished through compliance with Emergency Order
28. To the extent that railroads further revise their plans in the
future, there will be some additional costs. This will not occur
frequently, resulting in nominal burden in the future.
    Proposed Sec.  232.103(n)(7)(ii), an expansion of Emergency Order
28 that applies to trains left unattended on main tracks that are in or
adjacent to yards, requires trains left in yards to have the locomotive
cab locked, or the reverser removed, if possible, but would not impose
additional requirements in a yard if the locking mechanism is
inoperative. This portion of the proposed requirement is part of long-
standing railroad business practices, and will add no costs or
benefits.
    In proposed paragraph (n)(8)(i), there is a new proposed
requirement, which in almost all cases was already in place as a
business practice. It requires that the qualified individual who
secures the train verify with a second qualified individual that the
train has been secured in accordance with the railroad's operating
rules, including whatever the employee has done to ensure that an
adequate number of hand brakes have been employed. On a train with two
or more crew members, the train crew will verify among themselves. This
would happen as a matter of business practice. In the event that the
train is secured by a single person crew, the verification would
involve a second person, typically a yardmaster, who is also qualified.
All safety-critical activities by train crews are communicated to at
least one additional person as a standard operating practice. This is
part of the railroads' conscious effort to avoid a single point human
factor failure that can cause an accident. FRA believes that less than
one-tenth of one-percent (0.1%) of the affected trains will be operated
by a single crew member when securing in a yard, because there are very
few single person crews operating affected trains, and because many
affected trains will be operated continuously to their destination.
Some trains will be secured outside of yards, but that burden is
discussed below in this analysis. In this analysis, FRA assumes that
there will be 1,000 affected trains per day, of which 0.1% (1 daily or
365 annually) would have a single person crew. Further, FRA assumes
that in the absence of the proposed rule, 95 percent of railroads would
require the verification as a business practice. This means that over
20 years, only 365 trains would be affected. FRA believes the
communication will take 15 seconds of two qualified individuals' time,
or 30 labor seconds. There is no cost to initiate communication,
because in any event a person leaving a train would have to communicate
with the yardmaster to let the yardmaster know where the crew member
left the train and to let the yardmaster know the train would no longer
be moving in the yard. Over the 20-year life, the undiscounted value
would be 182.5 labor minutes or roughly 3 labor hours. At $50 per hour
the cost over 20 years, undiscounted cost would be $150, and the annual
cost would only be $7.50. FRA requests comments on the current and
future levels of train operations impacted and the labor estimates
associated with compliance.
    Proposed Sec.  232.103(n)(8)(i) requires that where a freight train
or standing freight car or cars as described in proposed paragraph
(n)(6) is left unattended on a main track or siding outside of a yard,
an employee responsible for securing the equipment shall verify with
another person qualified to make the determination that the equipment
is secured in accordance with the railroad's processes and procedures.
This will impose no new burden nor create any new benefit since it is
identical to what is currently required by Emergency Order 28. Where
train crews with more than one crew member are involved, then the crew
members would need to discuss the securement and ensure that they had
secured the correct number of hand brakes and taken other steps to
properly secure the train. Where single member crews are involved, then
the crew member would have to call the dispatcher or some other
qualified railroad employee to verify with the qualified employee that
the train had been properly secured. As noted above, Emergency Order 28
requires this communication to occur presently, thus railroads already
have these procedures established and continuing such practice will not
impose an additional cost. Thus, the proposed changes to Sec.
232.103(n) would create no new benefits or costs, compared to the base
case.
    Proposed Sec.  232.103(n)(8)(ii) requires that the controlling
locomotive cab of a freight train described in paragraph

(n)(6) shall be locked on locomotives capable of being locked or the
reverser on the controlling locomotive shall be removed from the
control stand and placed in a secured location. In the case of a
locomotive with an operative lock, the compliance will simply be
locking the lock. Railroads all require their employees to lock
unattended locomotives equipped with operative locks, for both safety
and security reasons. This provision of the proposed rule codifies
current business practices, and creates no new benefits or costs. Under
proposed Sec.  232.105(h) each locomotive will have been equipped with
a lock, and if there should be a lock malfunction, removing the
reverser will be sufficient to comply. Removing the reverser of such a
locomotive is likely to be a business practice required by operating
rules except for two conditions. The first condition is where the
locomotive does not have a removable reverser. Such locomotives are
relatively old and are rarely used outside of yard operations. The
second condition is where there is a reason to keep the locomotive
running while standing. Almost all locomotives can idle with the
reverser removed, but there are no locomotives that can run at speeds
above normal idle, sometimes needed for cold weather conditions, with
the reverser removed. If a lock should malfunction under either of
those two conditions, a railroad could comply by several means:
     A railroad could remove the reverser; almost all
locomotives can idle with the reverser removed, except in very cold
weather;
     A railroad could attend the locomotive, which could
involve either placing a qualified individual aboard the locomotive
while it stands, or boarding a new crew and having the new crew
continue moving the train toward its destination. The most economical
way to accomplish this would be to board a new crew and take the train
further along its route. The railroad was going to have to call a crew
to move the train on its route anyway, so if the railroad has
sufficient time to call a new crew, generally two hours, the railroad
would call a crew earlier than originally planned. Dispatchers
continually adjust the flow of trains, and adding a single train
earlier than originally planned would have little effect on operations
in almost all cases. If the train is already close to its destination
this would not be practical if the consignee unloading or transfer
operation were not available, or if the train could not proceed for
some other reason, such as track congestion or blockage, the railroad
would not simply board the next crew and the railroad would have to
comply by some other means;
     A railroad could arrange for the train to stop in a yard,
or on a main track in or adjacent to a yard. This might involve having
the dispatcher expedite the train so it can make a yard further along
its route, which might have little cost;
     A railroad could have the train crew switch locomotives,
putting a lock-equipped locomotive in the lead, which would be costly
and impractical; or
     A railroad could arrange to have the lock repaired before
leaving the train unattended, which would also carry a cost.
    The burdens of proposed Sec.  232.103(n)(8)(ii) on main track or
sidings outside of yards are imposed by Emergency Order 28, so they are
not new burdens, and they still are relatively small. For purposes of
this analysis, FRA conservatively estimates that 1,000 trains per day
\19\ will be subject to the proposed requirements of Sec.
232.103(n)(8)(ii), but that 90 percent of them will be excepted under
proposed Sec.  232.103(n)(8)(iii), because they will have routing that
calls for unattended stops only in or adjacent to yards.\20\ That
leaves 100 trains per day, or 36,500 trains per year. FRA estimates
that one in 500 locomotives or 73 per year will have a defective lock.
FRA also estimates that 50 percent, or 36.5 per year, would have been
left running while unattended, or would have been equipped with a non-
removable reverser. A locomotive would be left running either to avoid
cold weather starting or to avoid a brake test when the next crew takes
charge of the train. If the locomotive would have been left running to
maintain brake pressure, the train crew can leave one of the trailing
locomotives running to maintain brake pressure, and lock its door. FRA
estimates that in all but ten cases per year, the railroad will have
been notified of the lock malfunction, and will have the next crew or
current crew take the train to a yard or its destination, avoiding any
costs.\21\
---------------------------------------------------------------------------

    \19\ In an analysis of the safety of HHFTs, PHMSA estimates that
there are 150 trains per day. FRA's estimate of 1,000 trains per day
is conservative.
    \20\ FRA assumes that railroads will fix locks in or adjacent to
the first yard available, as a business practice, and will leave any
unattended trains in yards locked.
    \21\ Taking the train further along its route is the least
costly method of attending a train. The railroad is obligated to
provide a crew to move the train further along its route anyway, and
train crews are on call. Once the train gets to the first yard on
its path, the lock will be repaired. Unloading facilities are not
part of the railroad, and FRA does not regulate securement at
unloading facilities, which are subject instead to PHMSA
regulations.

Trains per year:
Affected by the proposed rule: 365,000
No planned stop outside yards (90 percent of 365,000): 328,500
Planned stop outside yards (365,000-328,500): 36,500
Defective lock and planned stop outside yard (36,500/500): 73
Removing reverser provides compliance (50 percent of 73): 36.5
Further action needed (73-36.5): 36.5
Sent on to next yard or destination: 26.5
Remedial action must be taken: 10 \22\
---------------------------------------------------------------------------

    \22\ FRA requests comment on the number of cases per year where
remedial action would be required, and on the assumptions relied
upon to estimate that number.

    FRA believes that in half the cases remaining (five cases), the
railroad will repair or replace the lock, and in the other half (also
five cases), the railroad will have personnel attend a standing train.
The railroad may repair or replace the lock, in which case the cost is
the additional cost of repairing the lock outside of a yard. A railroad
using AAR standard locks may attach an additional locking mechanism,
not compliant with AAR standards until the AAR standard lock can be
replaced. This appears to be the lowest cost means of complying with
the rule. If a hasp is present, the railroad may have provided the crew
with a spare lock, in which case the cost is negligible, two of the
five cases per year. If a hasp is not present, the railroad may have
repair personnel locate to the train, estimated at an average cost of
$0.56 per mile for 20 miles, or $11.20 per incident. In addition, the
installation is expected to require two hours service time, including
travel, for two repair personnel, at an estimated cost of $50 per
person hour,\23\ for a labor cost of $200. The installation is expected
to cost $100 if the railroad does not install a standard lock, one case
per year. The total cost for this repair would be $11.20 for
transportation, $100 for materials, plus $200 for labor, a total of
$311.20. If the railroad replaces the existing lock, then no materials
cost is added, because the railroad could have been expected to replace
the lock at the next yard. The total cost to replace an existing lock
would be $11.20 for transportation, plus $200 for labor for a total of
$211.20. The total cost to replace existing locks is 2 times $211.20,
or $422.40. The total cost for lock replacement includes the negligible
costs if the crew has a lock that fits an existing hasp, plus $311.20

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

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

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

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

    In summary of the foregoing costs associated with locomotive locks,
FRA believes the likely responses to inoperative locking mechanisms,
where the railroad cannot simply remove a reverser or move the train,
will break down as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                Annual total
                         Approach taken                              Unit cost       Frequency         cost
----------------------------------------------------------------------------------------------------------------
Place Lock in Existing Hasp.....................................           $0.00               2           $0.00
Install New Hasp and Lock.......................................          311.20               1          311.20
Replace Existing Lock...........................................          211.20               2          422.40
Attend Train....................................................          470.00               5        2,350.00
                                                                 -----------------------------------------------
    Total.......................................................  ..............  ..............   \25\ 3,083.60
----------------------------------------------------------------------------------------------------------------

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

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

    To more accurately annualize these costs, however, FRA must also
consider the direct wage portion of the costs attending trains and
provide for annual real wage increases. Of the aforementioned burdened
wage rate, $29.16 is the direct wage portion. Multiplying the direct
wage portion hourly rate against 9 hours pay per event with 5 events
per year, the direct wage portion annual cost total is $1,312.33, which
we will round to $1,300. These direct wage costs for train personnel
will need to be incremented by a factor of 1.18 percent per year to
account for increases in real wage, induced by increased productivity
in accordance with estimates from the Congressional Budget Office.\26\
---------------------------------------------------------------------------

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

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

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Discounted value
                                                                                -----------------------------------------------
                          Year                             Wage inflator    Direct wage      All other                            Discount factor
                                                             (percent)         cost            costs        Total costs  -------------------------------
                                                                                7%              3%
--------------------------------------------------------------------------------------------------------------------------------------------------------
2015....................................................          101.18       $1,315.34          $1,800       $3,115.34          $3,115          $3,115
2016....................................................          102.37        1,330.86           1,800        3,130.86           2,926           3,040
2017....................................................          103.58        1,346.57           1,800        3,146.57           2,748           2,966
2018....................................................          104.80        1,362.45           1,800        3,162.45           2,582           2,894
2019....................................................          106.04        1,378.53           1,800        3,178.53           2,425           2,824
2020....................................................          107.29        1,394.80           1,800        3,194.80           2,278           2,756
2021....................................................          108.56        1,411.26           1,800        3,211.26           2,140           2,689
2022....................................................          109.84        1,427.91           1,800        3,227.91           2,010           2,625
2023....................................................          111.14        1,444.76           1,800        3,244.76           1,888           2,561
2024....................................................          112.45        1,461.81           1,800        3,261.81           1,774           2,500
2025....................................................          113.77        1,479.06           1,800        3,279.06           1,667           2,440
2026....................................................          115.12        1,496.51           1,800        3,296.51           1,566           2,381
2027....................................................          116.47        1,514.17           1,800        3,314.17           1,472           2,324
2028....................................................          117.85        1,532.04           1,800        3,332.04           1,383           2,269
2029....................................................          119.24        1,550.11           1,800        3,350.11           1,299           2,215
2030....................................................          120.65        1,568.40           1,800        3,368.40           1,221           2,162

2031....................................................          122.07        1,586.91           1,800        3,386.91           1,147           2,111
2032....................................................          123.51        1,605.64           1,800        3,405.64           1,078           2,060
2033....................................................          124.97        1,624.58           1,800        3,424.58           1,013           2,012
2034....................................................          126.44        1,643.75           1,800        3,443.75             952           1,964
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................  ..............  ..............  ..............  ..............          36,685          49,909
                                                         -----------------------------------------------------------------------------------------------
    Annualized..........................................  ..............  ..............  ..............  ..............           3,236           3,257
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Proposed Sec.  232.103(n)(8)(ii) also provides a direct safety
benefit of this rulemaking. Only about 36.5 trains per year are likely
to be affected, as described above. FRA believes that in the absence of
this rulemaking all locomotives would be equipped with locks as a
business practice, as described below. FRA believes that as a business
practice, the locomotives that can be locked will be locked, and the
remaining locomotives that have reversers that can be removed that are
not left running would have their reversers removed and secured. FRA
believes that trains left running with reversers in place are the most
vulnerable to serious harm as a result of casual mischief. It is
possible that a vandal moving a reverser in an unattended running
locomotive could cause a higher-consequence event, given the kinds of
materials regulated here. Further, individuals who believe they are
doing some good--for example first responders who believe the train is
in a dangerous location--may also be tempted to try to move the train.
If they lack proper skills, this movement creates a risk. FRA does not
have a good way to estimate the likelihood of a serious event from such
a small number of affected trains; however, given the kinds of trains
involved, FRA finds that the costs are justified by the benefits of
risk reduction.
    Proposed Sec.  232.103(n)(8)(iii) provides an exception for trains
left unattended on main tracks in or adjacent to yards, and does not
change burdens from Emergency Order 28. The communication requirement
in proposed Sec.  232.103(n)(9), is unchanged from Emergency Order 28,
and will impose no new burden nor create any new benefit for train
crews with more than one crew member. Proposed Sec.  232.103(n)(10)
requires railroads to adopt and comply with procedures to ensure that,
as soon as safely practicable, a qualified employee verifies the proper
securement of any unattended equipment when the railroad has knowledge
that a non-railroad emergency responder has been on, under, or between
the equipment. This was required by Emergency Order 28 and remains
unchanged from Emergency Order 28, and will impose no new burden nor
create any new benefit. FRA also believes that after the Lac
M[eacute]gantic accident that railroads would have adopted this
practice even in the absence of Emergency Order 28, as a standard
business practice, so FRA is confident that this section creates no new
benefits or costs.
    One requirement of Emergency Order 28 that is not included in the
proposed rule is a requirement that employees who are responsible for
securing trains and vehicles transporting Appendix A Materials must
communicate to the train dispatcher the number of hand brakes applied,
the tonnage and length of the train or vehicle, the grade and terrain
features of the track, any relevant weather conditions, and the type of
equipment being secured; train dispatchers must record the information
provided; and train dispatchers or other qualified railroad employees
must verify and confirm with the train crew that the securement meets
the railroad's requirements. The proposed rule includes verification
procedures but does not include the recordkeeping required by Emergency
Order 28. FRA's Paperwork Reduction Act analysis of the recordkeeping
requirements shows the annual burden at 867 hours to notify the
dispatcher to make the record, and an additional 867 hours to make the
record. FRA estimates that there will be an average of 26,000
communications (100 instances on 260 days per year) to dispatchers
triggering the recording requirement, which takes an average of four
minutes to complete, for a total of 1,734 hours. If the value of the
employees' time is $50 per hour, the annual cost of the Emergency Order
28 recordkeeping requirement is $86,700, and that cost would be
eliminated by the proposed rule. FRA believes the recordkeeping
requirements have been relatively more onerous for smaller railroads,
but does not have a breakdown of the proportion of the cost reduction
benefit that will accrue to small railroads.
    Proposed Sec.  232.105(h) requires, after March 1, 2017, that each