[Federal Register Volume 80, Number 151 (Thursday, August 6, 2015)]
[Rules and Regulations]
[Pages 47349-47386]
[FR Doc No: 2015-19002]

Vol. 80

Thursday,

No. 151

August 6, 2015

Part XIV

 Department of Transportation

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 Federal Railroad Administration

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49 CFR Part 232

 Securement of Unattended Equipment; Final Rule

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

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 232

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

Securement of Unattended Equipment

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

ACTION: Final rule.

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

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

ADDRESSES: Petitions for reconsideration and comments on petitions for
reconsideration: Any petitions for reconsideration or comments on
petitions for reconsideration related to this docket may be submitted
by any of the following methods:
     Web site: Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting
documents.
     Fax:<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 submissions received will be posted without
change to http://www.regulations.gov including any personal
information. Please see the Privacy Act heading in the ``Supplementary
Information'' section of this document for Privacy Act information
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
Room W12-140 on the Ground level of the West Building, 1200 New Jersey
Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Steven Zuiderveen, Railroad Safety
Specialist, Motive & Power Equipment Division, Office of Safety
Assurance and Compliance, Federal Railroad Administration, RRS-14, West
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590
(telephone:<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
    F. NPRM and Comments
III. Rescinding Emergency Order 28
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
    Regulatory Flexibility Act and Executive Order 13272
    B. Paperwork Reduction Act
    C. Federalism
    D. International Trade Impact Assessment
    E. Environmental Assessment
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act
    I. Executive Order 12898 (Environmental Justice)
    J. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

Purpose of the Regulatory Action

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

Summary of the Major Provisions of the Regulatory Action

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

may have been in a position to have affected the equipment.

Costs and Benefits of the Proposed Regulatory Action

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

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

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

II. Background

    In 2001, FRA issued regulations governing the securement of
unattended equipment. 66 FR 4104, Jan. 17, 2001. These regulations have
been effective in protecting against the risk of rolling equipment.
Over the last few years, there has been a significant increase in the
volume of rail traffic for certain types of commodities, such as
petroleum crude oil (crude oil) and ethanol, both of which are highly
flammable and often transported in large unit or ``key'' trains, as
defined in the industry by the Association of American Railroads (AAR).
See AAR Circular No. OT-55-N (Aug. 5, 2013), available at http://www.boe.aar.com/CPC-1258%20OT-55-N%208-5-13.pdf.
    Since 2009, there have been a number of serious rail accidents
involving the transportation of large quantities of flammable liquids.
A number of these accidents involved trains transporting large
quantities of ethanol. However, since 2011, there has been significant
growth in the rail transport of flammable crude oil, and FRA has seen a
number of accident-related releases of crude oil in that time. One
significant accident involving tank cars loaded with crude oil was the
July 6, 2013, derailment in the town of Lac-M[eacute]gantic, Quebec,
Canada. After reviewing the facts related to this derailment, FRA
concluded that additional action was necessary to eliminate an
immediate hazard of death, personal injury, or significant harm to the
environment, particularly in instances where certain hazardous
materials are involved. Thus, FRA issued Emergency Order 28 requiring
railroads to implement additional procedures to ensure the proper
securement of equipment containing certain types and amounts of
hazardous materials when left unattended. See 78 FR 48213, Aug. 7,
2013. Subsequent to the issuance of Emergency Order 28, FRA also
enlisted the assistance of the Railroad Safety Advisory Committee
(RSAC) to develop recommendations regarding the attendance and
securement of railroad equipment transporting certain hazardous
materials when left unattended in light of the requirements contained
in Emergency Order 28.

A. Lac-M[eacute]gantic Derailment

1. Facts
    On July 6, 2013, in the town of Lac-M[eacute]gantic, Quebec,
Canada, an accident involving tank cars loaded with petroleum crude oil
occurred on track owned by Montreal, Maine & Atlantic Railway (MMA), a
company incorporated in the United States.
    The Transportation Safety Board (TSB) of Canada issued a report at
the conclusion of its investigation into the incident, and the
following is a summary of the TSB's factual findings.\1\ On July 5,
2013, a locomotive engineer was operating freight train MMA-002 on the
Sherbrooke Subdivision from Farnham (milepost 125.60) and at around
10:50 p.m. stopped near Nantes, Quebec (milepost 7.40) on its way to
its destination, Brownville Junction, Maine. The train was
approximately 4,700 feet long, weighed over 10,000 tons, and included a
locomotive consist of 5 head-end locomotives and one VB car (which
served as a type of special-purpose caboose), one box car (buffer car),
and 72 tank cars loaded with approximately 7.7 million liters of
petroleum crude oil (UN 1267). The locomotive engineer parked train
MMA-002 on the main line, on a descending grade of 1.2%, attempted to
secure the train--including setting the independent brake, but not the
automatic brake--and departed by automobile, leaving the train
unattended. At around 11:40 p.m., a local resident reported a fire on
the train. The local fire department was called and responded with
another MMA employee. At approximately

midnight, the controlling locomotive was shut down and the fire
extinguished. After the fire was extinguished, the fire department and
the MMA employee left the site.
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    \1\ Railway Investigative Report R13D0054, TSB, July 6, 2013,
available at http://www.tsb.gc.ca/eng/rapports-reports/rail/2013/R13D0054/R13D0054.pdf.
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    At approximately 1:00 a.m. the next day (the early morning of July
6th), the train began rolling and picking up speed down the descending
grade toward the town of Lac-M[eacute]gantic, Quebec, located 7.2 miles
away and approximately 30 miles from the United States-Canada border.
At about 1:15 a.m., near the center of town, the train derailed. The
locomotive consist, which separated from the train, did not derail and
traveled an additional \1/2\ mile before stopping.
    The derailment caused a release of 6 million liters of petroleum
crude oil, resulting in a large fire with multiple explosions and 47
fatalities.\2\ There was also extensive damage to the town, and
approximately 2,000 people were evacuated from the surrounding area.
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    \2\ See id.; see also Statistical Summary Railway Occurrences
2013, TSB, pp. 2, 5, available at http://www.tsb.gc.ca/eng/stats/rail/2013/ssro-2013.pdf.
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2. Response
    In response to this accident, Transport Canada--the Canadian
government department responsible for regulating transportation safety
in Canada--issued an emergency railroad directive on July 23, 2013.\3\
While Transport Canada explained in the emergency directive that the
cause of the accident in Lac-M[eacute]gantic remained unknown, the
emergency directive stated that, ``in light of the catastrophic results
of the Lac-M[eacute]gantic accident and in the interest of ensuring the
continued safety and security of railway transportation, there is an
immediate need to clarify the regime respecting unattended locomotives
on main track and sidings and the transportation of dangerous goods in
tank cars using a one person crew to address any threat to the safety
and security of railway operations.'' As such, Transport Canada
exercised its statutory emergency directive authority to order railroad
companies in Canada to comply with certain requirements related to
unauthorized entry into locomotive cabs, directional controls on
locomotives, the application of hand brakes to cars left unattended for
more than one hour, setting of the automatic brake and independent
brake on any locomotive attached to cars that are left unattended for
one hour or less, attendance related to locomotives attached to loaded
tank cars transporting dangerous goods on main track, and the number of
crew members assigned to a locomotive attached to loaded tank cars
transporting dangerous goods on a main track or siding.
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    \3\ See Emergency Directive Pursuant to Section 33 of the
Railway Safety Act, Safety and Security of Locomotives in Canada,
July 23, 2013, available at http://news.gc.ca/web/article-en.do?nid=829609; see also Rail Safety Advisor Letter--09/13,
Securement of Equipment and Trains Left Unattended, Transport Canada
(July 18, 2013), available at http://www.tsb.gc.ca/eng/medias-media/sur-safe/letter/rail/2013/r13d0054/r13d0054-617-09-13.asp.
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    Also on July 23, 2013, Transport Canada issued an accompanying
order pursuant to paragraph 19(a)(1) of the Canadian Railway Safety Act
directing railroad companies in Canada to formulate or revise certain
railroad operating rules, respecting the safety and security of
unattended locomotives, uncontrolled movements, and crew size
requirements.\4\ The order provides that rules should be based on an
assessment of safety and security risks, and shall at a minimum ensure
that the cab(s) of unattended controlling locomotives are secure
against unauthorized entry; ensure that the reverse levers (commonly
referred to as a ``reversers'') of unattended locomotives are removed
and secured; prevent uncontrolled movements of railway equipment by
addressing the application of hand brakes; ensure the security of
stationary railway equipment transporting dangerous goods; and provide
for minimum operating crew requirements considering technology, length
of train, speeds, classification of dangerous goods being transported,
and other risk factors.
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    \4\ Railroads operating within Canada were at the time of the
Lac-M[eacute]gantic derailment, and are currently, required to
comply with the Canadian Rail Operating Rules that have been
approved by Transport Canada.
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    The Railway Association of Canada submitted proposed operating
rules to Transport Canada on November 20, 2013. Transport Canada
accepted the proposed rules submitted on December 26, 2013, making the
operating rules applicable to all railway companies operating in
Canada. See TC O 0-167. As a result, railroads operating in Canada are
now required to comply with Canadian Rail Operating Rules (CROR) CROR
112, as amended.
    CROR 62 pertains to ``Unattended engines.'' The term ``unattended''
is now defined in the CROR as ``when an employee is not in close enough
proximity to take effective action.'' The new Canadian requirements,
applicable to each engine left unattended outside of an attended yard
or terminal, requires cab securement to prevent unauthorized entry and
removal of the reverser from the engine when it does not have a high
idle feature and not in sub-zero temperatures. See CROR 62 (TC O 0-
167). Transport Canada also approved expansive revisions to CROR 112,
which now provides minimum requirements, acceptable methods, and
factors to consider for securing equipment while switching en route or
left unattended. See CROR 112 (TC O 0-167).
    In direct response to the Lac-M[eacute]gantic derailment, DOT began
taking actions consistent with Transport Canada to ensure the safe
transportation of products by rail in the United States, with a
particular focus on certain hazardous materials that present an
immediate danger for communities and the environment in the event of a
train accident. In Emergency Order 28, FRA sought to address the
immediate dangers that arise from unattended equipment that is left
unsecured on mainline tracks.
    FRA has decided that Emergency Order 28 will sunset on the
effective date of this final rule. AAR and the American Short Line and
Regional Railroad Association (ASLRRA) concur in their comments. Until
such time, however, Emergency Order 28 will remain in effect, as
amended by FRA's August 27, 2013, letter approving with conditions a
joint petition for relief from the AAR and the ASLRRA. Railroads are
required to comply with Emergency Order 28, as amended, in addition to
49 CFR 232.103(n). As further discussed below, once Emergency Order 28
sunsets upon the effective date of this final rule, the requirements of
the Emergency Order that are not promulgated in this final rule will no
longer apply. Emergency Order 28, as amended, contains six securement-
related requirements governing when, where, and how certain hazardous
materials tank cars may be left unattended, including certain
communication requirements:

    (1) A railroad must not leave equipment unattended on a mainline
outside of a yard or terminal when the equipment includes a minimum
number of loaded tank cars containing certain types of hazardous
materials, referred to as ``Appendix A Materials''--5 or more tank
cars containing materials poisonous by inhalation (PIH), including
anhydrous ammonia and ammonia solutions and/or 20 rail car loads of
flammable gases or liquids (e.g., crude oil and ethanol)--until the
railroad develops, adopts, and complies with a plan that identifies
specific locations and circumstances when such equipment may be left
unattended.\5\
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    \5\ AAR has voluntarily applied Emergency Order 28 to trains
that have a single PIH materials tank car.
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    (2) A railroad must develop a process for securing unattended
equipment containing Appendix A Materials that includes: (a) Locking
the controlling locomotive cab or

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

See 78 FR 48224, Aug. 7, 2013. Following a request from AAR and ASLRRA,
FRA granted partial relief from Emergency Order 28's dispatcher
communication requirement in certain limited situations. FRA's relief
letter provides that a railroad employee may leave equipment unattended
on a mainline or siding without contacting the train dispatcher when
the employee is actively engaged in switching duties as long as the
employee ensures that there is an emergency application of the air
brakes, hand brakes are set in accordance with 49 CFR 232.103(n), and
the employee has demonstrated knowledge of FRA and railroad securement
requirements. See Letter from Robert C. Lauby, Acting Associate
Administrator for Railroad Safety/Chief Safety Officer, Federal
Railroad Administration, to Michael J. Rush, Associate General Counsel,
AAR, and Keith T. Borman, Vice President and General Counsel, ASLRRA,
(Aug. 27, 2013), available at https://rsac.fra.dot.gov/meetings/20130829.php.
    Additionally, FRA and the Pipeline and Hazardous Materials Safety
Administration (PHMSA) jointly issued a Safety Advisory to railroads
and commodity shippers detailing eight recommended actions the industry
should take to better ensure the safe transport of hazardous materials.
See Federal Railroad Administration Safety Advisory 2013-06, Lac-
M[eacute]gantic Railroad Accident and DOT Safety Recommendations, 78 FR
48224, Aug. 7, 2013, available at http://www.fra.dot.gov/eLib/details/L04720. These recommendations include: Reviewing the details and
lessons learned from the Lac M[eacute]gantic accident; reviewing crew
staffing levels; removing and securing the train's ``reverser'' when
unattended; review of all railroad operating procedures, testing and
operating rules related to securing a train; reviewing Transport
Canada's directives to secure and safely operate a train; and
conducting a system-wide assessment of security risks when a train is
unattended and identify mitigation efforts for those risks.
Additionally, the Safety Advisory recommends testing and sampling of
crude oil for proper classification for shipment, as well as a review
of all shippers' safety and security plans. FRA also convened an
emergency meeting of FRA's RSAC to begin the deliberative process with
FRA's stakeholders, including railroad management, railroad labor,
shippers, car owners, and others, as the agency considers requirements
in Emergency Order 28 and recommendations in the Safety Advisory that
should be made a part of its regulations.\6\
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    \6\ The RSAC was given three tasks. In addition to developing
securement recommendations, it was also tasked with developing
recommendations addressing issues relating to train crew size and
hazardous materials such as identification and classification of
hazardous materials, operational controls, and handling of certain
hazardous materials shipments. The RSAC hazardous materials working
group was able to reach consensus on amending the definitions of
``residue'' and ``key train'' and clarifying the jurisdiction
concerning loading, unloading, and storage of hazardous materials
before and during transportation. These recommendations have been
provided to PHMSA, which has regulatory authority over hazardous
materials shipments.
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    On August 19, 2014, the TSB released its Railway Investigation
Report R13D0054, citing 18 causal and contributing factors, plus an
additional 16 findings as to risk, concerning the accident at Lac-
M[eacute]gantic. FRA believes that it is taking--or has already taken--
action concerning each of those factors. The TSB notably included in
its list of factors the MMA's weak safety culture and ineffective
oversight on train securement. The report also identified factors
relating directly to train securement such as insufficient hand brakes
and improper hand brake test applications. The requirements in this
final rule intend to enhance safety culture and oversight that
addresses train securement. For instance, as further discussed below,
FRA is mandating by regulation the implementation of operating rules
and practices requiring that securement be part of all relevant job
briefings. This final rule also requires verification with a qualified
person that equipment is adequately and effectively secured in
accordance with the regulations before being left unattended. These
requirements aim to increase the safety dialog between railroad
employees and to provide enhanced oversight within the organization. In
doing so, these communications should better ensure that crew members
apply the proper number of hand brakes, and more correctly apply hand
brake tests, on unattended equipment. Also notable was the report's
findings as to risk that states: ``If trains are left unattended in
easily accessible locations, with locomotive cab doors unlocked and the
reverser handle available in the cab, the risk of unauthorized access,
vandalism, and tampering with locomotive controls is increased.'' This
final rule directly addresses this concern with requirements relating
to the installation and use of locomotive exterior door locks and
reverser removal.

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

    The vast majority of hazardous materials shipped by rail each year
arrive at their destinations safely and without incident. Indeed, in
calendar year 2013, there were only 18 accidents in which a hazardous
material was released (involving a total of 78 cars) out of
approximately 1.6 million shipments of hazardous material transported
in rail tank cars in the United States. However, the Lac-
M[eacute]gantic incident demonstrates the substantial potential for
danger that exists when an unattended train rolls away and derails
resulting in the sudden release of hazardous materials into the
environment. Although the Lac-M[eacute]gantic incident occurred in
Canada, the freight railroad operating environment in Canada is similar
to that in the United States, and a number of railroads operate in both
countries.\7\ Freight railroads in the United States also transport a
substantial amount and variety of hazardous materials, including PIH
materials, also known as materials toxic by inhalation (TIH), and
explosive materials. Moreover, an increasing proportion of the
hazardous materials transported by rail is classified as flammable.\8\
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    \7\ As an example, MMA formerly operated in both the United
States and Canada, with approximately 510 miles of track in Maine,
Vermont, and Quebec, and the tank cars transporting the crude oil
that derailed in Lac-M[eacute]gantic originated in the Williston
Basin of North Dakota. A discussion concerning the applicable
Canadian securement requirements can be found above in the section
titled ``2. Response,'' which addresses the actions taken by the
United States and Canada in direct response to the Lac-
M[eacute]gantic incident.
    \8\ PHMSA prescribes a comprehensive regulatory safety system
that categorizes hazardous materials into nine hazard classes based
on the type of hazards presented by the materials. See 49 CFR parts
172 and 173. Under PHMSA's regulations, crude oil, in most forms,
meets the definition of a ``Class 3'' hazardous material, which
signifies that it is a flammable liquid. Ethanol, discussed below,
also is a Class 3 hazardous material. PIH materials, referenced
above, include ``Class 2 and Division 2.3'' gases and ``Class 6, and
Division 6.1'' poisons other than gases. Chlorine gas and anhydrous
ammonia are two examples of PIH materials (Division 2.3) that are
commonly transported by rail.

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    The MMA train in the Lac-M[eacute]gantic incident was transporting
72 carloads of crude oil with five locomotives, a VB car, and a loaded
box car. A similar type of train consist is commonly found on rail
lines in the United States, because crude oil is often transported in
solid blocks or by a unit train consisting entirely of tank cars
containing crude oil. Crude oil is generally classified by an offeror
as a Class 3 flammable liquid; per PHMSA's Hazardous Materials
Regulations (HMR), however, its packing group can be I, II, or III
depending on the blend of constituent crude oils.\9\ According to the
AAR, crude oil traffic increased 68-fold in the United States between
2005 and 2013. Much of this growth has occurred because of developments
in North Dakota, as the Bakken formation in the Williston Basin has
become a major source for oil production in the United States. Texas
also has contributed to the growth of crude oil shipments by rail. As a
result, carloads of crude oil increased from approximately 81,452 in
2011 to approximately 485,384 in 2013. The Bakken crude oil from North
Dakota is primarily shipped via rail to refineries located near the
U.S. Gulf Coast--particularly in Texas and Louisiana--or to pipeline
connections, most notably to connections located in Oklahoma. Crude oil
is also shipped via rail to refineries on the East Coast and West
Coast, and to a lesser extent, refineries in other regions of the
U.S.\10\
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    \9\ PHMSA uses packing groups to categorize hazardous materials
according to the danger presented. Hazardous materials in Packing
Group I present great danger; Packing Group II present medium
danger; and Packing Group III presents minor danger. See 49 CFR
171.8.
    \10\ See AAR's May 2013 paper ``Moving Crude Oil by Rail'',
available online at: https://www.aar.org/safety/Documents/Assets/Transportation_of_Crude_Oil_by_Rail.pdf.
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    All indications from the U.S. Department of Energy's U.S. Energy
Information Administration (EIA) are that rail capacity for Bakken
crude oil from the Williston Basin will continue to expand to meet
production.\11\ Rail shipments from the North Dakota region are
forecast to increase over the next two years (as are pipeline
shipments). Much of the near-term growth in rail originations is a
function of how quickly rail car manufacturers can meet the demand by
producing new tank cars, primarily for transporting Bakken crude oil.
The rise in rail originations in crude oil is subject to changes in the
number of tank cars available, price of crude oil, overall production
of crude oil in that region; and if, or how quickly, additional
pipeline capacity from that region comes online. However, for the
foreseeable future, all indications are for continued growth of rail
originations of crude in that region as new tank car fleets come online
to meet demand.
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    \11\ See EIA reports ``Bakken crude oil price differential to
WTI narrows over last 14 months,'' available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=10431; and ``Rail delivery
of U.S. oil and petroleum products continues to increase, but pace
slows,'' available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=12031.
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    As demonstrated by the Lac-M[eacute]gantic derailment, in a high-
consequence incident, crude oil is problematic when released because it
is flammable. This risk is compounded because it is commonly shipped in
large unit trains. Subsequent to the Lac-M[eacute]gantic derailment,
the United States has seen at least three major rail-related incidents
involving crude oil unit trains that evidence the dangerous results
that can occur when crude oil is not transported safely. FRA recognizes
that none of these three derailments resulted from a roll-away
situation that would have been addressed by this rule.
    On April 30, 2014, there was derailment near downtown Lynchburg,
Virginia, of an eastbound CSX Transportation, Inc. (CSX) unit train
consisting of 105 tank cars loaded with crude oil. Seventeen of the
train's cars derailed. One of the tank cars was breached, leading to a
crude oil fire. Emergency responders were forced to evacuate
approximately 400 individuals and 20 businesses from the immediate
area. Additionally, three of the derailed tank cars came to rest in the
adjacent James River, causing up to 30,000 gallons of crude oil to be
spilled into the river. The National Transportation Safety Board (NTSB)
and DOT both investigated this accident and determined that it was
caused by a sudden rail failure under the moving train.
    On December 30, 2013, a westbound grain train derailed 13 cars near
Casselton, North Dakota, fouling main track 2.\12\ Simultaneously, an
eastbound crude oil unit train was operating on main track 2. The crude
oil unit train reduced its speed and collided with a derailed car that
was fouling, resulting in the derailment of the head-end locomotives
and the first 21 cars of the crude oil unit train. Eighteen of the 21
derailed tank cars ruptured, releasing an estimated 400,000 gallons of
crude. The ruptured tank cars ignited causing an explosion. There were
no reported injuries by either train crew, nor were there any injuries
to the public; however, about 1,400 people were evacuated. Damages from
the derailment are estimated at $6.1 million.\13\
---------------------------------------------------------------------------

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

    Also, on November 8, 2013, a 90-car crude oil train derailed in a
rural area near Aliceville, Alabama. The crude oil shipment had
originated in North Dakota and was bound for Walnut Hill, Florida, to
be transported by a regional pipeline to a refinery in Saraland,
Alabama. More than 20 cars derailed and at least 11 cars ignited,
resulting in an explosion and fire. Although there were no reported
injuries, an undetermined amount of crude oil escaped from derailed
cars and fouled a wetlands area near the derailment site.
    The dangers related to crude oil trains are not necessarily unique.
They also exist with other hazardous materials such as ethanol, which
is another flammable liquid that is commonly transported in large
quantities by rail. In 2012, more carloads of ethanol were transported
via rail than any other hazardous material. The railroads experienced
an increase in ethanol traffic of 442 percent between 2005 and 2010.
Although in 2013 the number of carloads dropped by 10 percent from 2010
levels, there were still approximately 297,000 carloads transported by
rail. Since 2009, there have been at least six major mainline
derailments resulting in the breach of tank cars containing ethanol.
While FRA recognizes that none of these six derailments resulted from a
roll-away situation, they are instructive on the destructive potential
of a derailment involving tank cars containing flammable products:
     On August 5, 2012, in Plevna, Montana, a BNSF Railway Co.
train derailed 18 cars while en route from Baker, Montana. Seventeen of
the 18 cars were tank cars loaded with denatured alcohol, a form of
ethanol. Five of the cars caught on fire resulting in explosions, the
burning of surrounding property not within the railroad's right-of-way,
and the evacuation of the immediate area.
     On July 11, 2012, in Columbus, Ohio, a Norfolk Southern
Railway Co. train derailed while operating on main track. Thirteen tank
cars containing ethanol derailed resulting in a fire and

the evacuation of 100 people within a one-mile radius of the
derailment.
     On February 6, 2011, in Arcadia, Ohio, a Norfolk Southern
Railway Co. train operating on single main track derailed 33 tank cars
loaded with ethanol. The derailment caused a major fire and forced the
evacuation of a one-mile radius around the derailment.
     On June 19, 2009, in Cherry Valley, Illinois, a Canadian
National Railway train derailed 19 tank cars loaded with ethanol.
Thirteen of the 19 derailed cars caught fire, and there were reports of
explosions. One person died, and there were 9 reported injuries related
to the fire. Additionally, approximately 600 residences were evacuated
within a \1/2\-mile radius of the derailment.
     On October 7, 2011, at about 2:14 a.m. CDT, at milepost
121.8 on the No. 1 Subdivision near Tiskilwa, Illinois, an eastbound
Iowa Interstate Railroad (IAIS) freight train No. RI-BI-06--with two
locomotives and 131 cars--derailed its head 26 cars. The derailed cars
included ten cars of ethanol, several of which were breached and lost a
substantial amount of their product, resulting in a fire and an
evacuation of about 800 residents. The emergency responses began almost
immediately and were supported by surrounding local fire and police
departments to control and suppress the fire and execute the
evacuation. The fire suppression was sustained over two and half days.
There were no injuries or fatalities.
     On February 4, 2015, in Dubuque, Iowa, a Canadian Pacific
Railway unit train--with 13 of its 80 tank cars containing denatured
alcohol--derailed, with at least one of the cars falling into the
Mississippi River. Three of the cars caught fire and there was a
release of an unknown quantity of denatured alcohol into the river.
Officials established a half-mile evacuation zone, but there were no
occupied structure in that area.
    While these accidents were serious, their results had potential for
higher-consequence outcomes. The higher-consequence releases created
the potential for additional deaths, injuries, property damage, and
environmental damage.
    There are other hazardous materials that have similar potential for
higher-consequence danger. For example, accidents involving trains
transporting other hazardous materials, including PIH materials such as
chlorine and anhydrous ammonia, can also result in serious consequences
as evidenced by the following accidents:
     On January 6, 2005, in Graniteville, South Carolina, a
Norfolk Southern Railway Co. train collided with another Norfolk
Southern Railway Co. train that was parked on a customer side track,
derailing both locomotives and 16 cars of the moving train. The
accident was caused by a misaligned switch. Three tank cars containing
chlorine derailed, one of which was punctured. The resulting chlorine
exposure caused 9 deaths, approximately 554 people were taken to local
hospitals, and an additional 5,400 people within a one-mile radius of
the site were evacuated by law enforcement personnel. FRA's analysis of
the total cost of the accident was $126 million, including fatalities,
injuries, evacuation costs, property damage, environmental cleanup, and
track out of service.
     On June 28, 2004, near Macdona, Texas, a Union Pacific
Railroad Co. train passed a stop signal and collided with a BNSF
Railway Co. train. A chlorine car was punctured, and the chlorine gas
that was released killed three and injured 32.
     On January 18, 2002, a Canadian Pacific Railway train
containing 15 tank cars of anhydrous ammonia derailed half a mile from
the city limits of Minot, North Dakota due to a breaking of the rail at
a joint. Five of these tank cars ruptured, which resulted in an ammonia
vapor that spread 5 miles downwind over an area where 11,600 people
lived. The accident caused one death, 11 serious injuries, and 322
minor injuries. Environmental cleanup costs reported to the NTSB were
$8 million.
     On July 18, 2001, 11 of 60 cars in a CSX Transportation,
Inc. freight train derailed while passing through the Howard Street
Tunnel in downtown Baltimore, Maryland. The train included 8 tank cars
loaded with hazardous material; 4 of these were among the cars that
derailed. A leak in a tank car containing tripropylene resulted in a
chemical fire. A break in a water main above the tunnel flooded both
the tunnel and the streets above it with millions of gallons of water.
    FRA recognizes that these four incidents did not result from a
roll-away situation. However, they illustrate the destructive potential
of PIH materials' derailments.
    While train accidents involving hazardous materials are caused by
variety of factors, nearly one-half of all accidents are related to
railroad human factors or equipment defects. FRA's data shows that
since 2009, human factors have been the most common cause of reportable
train accidents. Based on FRA's accident reporting data for the period
from 2010 through May 2014, approximately 34 percent of reported train
accidents/incidents, as defined by 49 CFR 225.5, were human factor-
caused.\14\ With regard to the securement of unattended equipment,
specifically, FRA accident/incident data indicates that approximately
8.7 percent of reported human factor-caused train accidents/incidents
from calendar year 2010 until May 2014 were the result of improper
securement, which means that improper securement is the cause of
approximately 2.9 percent of all reported accidents/incidents.\15\ The
types of securement errors that typically lead to accidents/incidents
include failing to apply any hand brakes at all, failing to apply a
sufficient number of hand brakes, and failing to correctly apply hand
brakes. Emergency Order 28 and this final rule intends to address some
of the human factors failures that may cause unattended equipment to be
improperly secured to protect against a derailment situation similar to
that which occurred in Lac-M[eacute]gantic.
---------------------------------------------------------------------------

    \14\ FRA estimates that there were a total of approximately 8976
accidents/incidents reported during that time period. Approximately
3030 of those accidents/incidents were caused by human factors, and
906 involved equipment that was placarded as containing hazardous
materials.
    \15\ There were a total of approximately 264 reported accidents/
incidents that were caused by securement errors. Of those 264
accidents/incidents, approximately 98 involved equipment that was
placarded as containing hazardous materials.
---------------------------------------------------------------------------

C. Current Securement Regulations and Related Guidance

    As previously noted, FRA has existing regulations--issued years
before the accident at Lac-M[eacute]gantic and promulgation of
Emergency Order 28--designed to ensure that trains and vehicles are
properly secured before being left unattended. See 49 CFR 232.103(n).
In FRA's view, if existing regulations are followed, the risk of
movement of unattended equipment is substantially reduced. Despite the
demonstrated effectiveness of FRA's current securement regulations, FRA
has determined that the increased shipments of hazardous materials such
as crude oil and ethanol, combined with the potential for higher-
consequences from any accident that might occur due to improper
securement, particularly on mainline track and mainline sidings outside
of a yard, proper securement has become a serious and immediate safety
concern. Therefore, FRA established additional securement measures in
Emergency Order 28 to ensure the continued protection of the health and
safety of railroad employees, the general public, and the environment.
In this final rule, FRA establishes permanent rules to strengthen the
current regulations and ensure public safety by adopting the necessary
and effective

securement measures FRA included in Emergency Order 28 as part of its
immediate response to the Lac-M[eacute]gantic derailment.
    The current regulations define ``unattended equipment'' as
``equipment left standing and unmanned in such a manner that the brake
system of the equipment cannot be readily controlled by a qualified
person.'' Id. Section 232.103(n) generally addresses the securement of
unattended equipment by stating that a train's air brakes must not be
depended on to hold equipment standing unattended on a grade. More
specifically, Sec.  232.103(n) also requires that the railroad apply a
sufficient number of hand brakes to hold the equipment with the air
brakes released and that the brake pipe pressure be reduced to zero
with the angle cock opened on one end of a cut of cars when not
connected to a locomotive or other compressed air source. The existing
regulations also require railroads to develop a process or procedure
for verifying that the hand brakes applied are sufficient to hold the
equipment with the air brakes released. When dealing with locomotives
and locomotive consists, Sec.  232.103(n)(3) establishes specific
additional requirements:
     All hand brakes must be fully applied on all locomotives
in the lead consist of an unattended train.
     All hand brakes must be fully applied on all locomotives
in an unattended locomotive consist outside of yard limits.
     The minimum requirement for an unattended locomotive
consist within yard limits is that the hand brake must be fully applied
on the controlling locomotive.
     Railroads must develop, adopt, and comply with procedures
for securing any unattended locomotive that is not equipped with an
operative hand brake.

Additionally, FRA continues to require each railroad to adopt and
comply with instructions addressing each unattended locomotive's
position of the throttle, generator field switch, isolation switch, and
automatic brake valve and the status of its reverser and independent
brakes. See 49 CFR 232.103(n)(4).
    FRA has also issued guidance documents interpreting these
regulations. For instance, on March 24, 2010, FRA issued Technical
Bulletin MP&E 2010-01, Enforcement Guidance Regarding Securement of
Equipment with Title 49 Code of Federal Regulations Section 232.103(n)
(TB 10-01), available at http://www.fra.dot.gov/eLib/details/L02394.
While FRA continues to believe that the securement requirements of
Sec.  232.103 are not met where there is a complete failure to apply
even a single hand brake on unattended equipment, FRA also recognizes
that there are times when it is necessary to have unsecured equipment,
such as during switching activities when assembling and disassembling
trains within classification yards. Therefore, TB 10-01 has provided
guidance regarding alternative forms of securement in such instances.
For example, TB 10-01 notes that FRA will allow a train crew cutting
away from a cut of cars to initiate an emergency brake application on
the cut of cars, and then close the angle cock, if the crew is taking a
locomotive consist directly to the opposite end of the cut of cars to
in order to couple the locomotive consist to the cars or to open the
angle cock at the other end and leave the angle cock open and vented to
the atmosphere, as required under 49 CFR 232.103(n)(2). Additionally,
TB 10-01 makes clear that FRA will allow the use of skates and
retarders in hump classification yards, classification yards with bowl
tracks, or flat switching yards if the retarders and skates are used
within their design criteria and as intended. In the NPRM to this
proceeding, FRA considered codifying TB 10-01 by amending the rule at
the final rule stage of this proceeding. The final rule makes the
amendment considered and codifies the existing guidance contained in TB
10-01. This particular amendment does not include any additional
requirements from the original guidance issued in the technical
bulletin and is further explained below.
    Also notable is that in 2013 and 2014, FRA and PHMSA undertook
nearly two dozen actions to enhance the safe transport of crude oil.
This comprehensive approach included near- and long-term steps such as
the following: launching ``Operation Classification'' in the Bakken
region to verify that crude oil is properly classified; issuing safety
advisories, alerts, emergency orders and regulatory updates; conducting
special inspections; aggressively moving forward with a rulemaking to
enhance tank car standards; and reaching agreement with railroad
companies on a series of immediate voluntary actions including reducing
speeds, increasing inspections, using new brake technology and
investing in first responder training. Most of those actions have been
well outside the scope of securement. However, FRA references these
actions here to help place this rulemaking in the broader context of
DOT's wide-ranging response to the safety issues created by these
trains. For a summary of these actions, see Federal Railroad
Administration's Action Plan for Hazardous Materials Safety, Federal
Railroad Administration (May 20, 2014) available at http://www.fra.dot.gov/eLib/details/L04721.
    Additionally, in August 2014, PHMSA, in coordination with FRA,
published an NPRM proposing enhanced tank car standards and operational
controls for high-hazard flammable trains, which is defined as a single
train carrying 20 or more tank cars of a Class 3 flammable liquid in a
continuous block or a single train carrying 35 or more tank cars of a
Class 3 flammable liquid throughout the train consist. See ``Hazardous
Materials: Enhanced Tank Car Standards and Operational Controls for
High-Hazard Flammable Trains,'' 79 FR 45015, Aug. 1, 2014. PHMSA
recently issued that final rule including operational controls
considered in the PHMSA NPRM such as speed restrictions and enhanced
braking systems for HHFTs. See 80 FR 26643, May 8, 2015. FRA expects
that the operational controls contemplated in that PHMSA final rule
will work in concert with the securement requirements that FRA is
implementing in this final rule.

D. Emergency Order 28 and Related Guidance

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

E. RSAC Overview

    In March 1996, FRA established the RSAC, which provides a forum for
collaborative rulemaking and program development. RSAC includes
representatives from all of the agency's major stakeholder groups,
including railroads, labor organizations, suppliers and manufacturers,
and other interested parties. A list of RSAC members follows:
     American Association of Private Railroad Car Owners
(AARPCO);
     American Association of State Highway & Transportation
Officials (AASHTO);
     American Chemistry Council (ACC);
     American Petroleum Institute (API);
     American Public Transportation Association (APTA);
     ASLRRA;
     American Train Dispatchers Association (ATDA);
     AAR;
     Association of State Rail Safety Managers (ASRSM);
     Association of Tourist Railroads and Railway Museums
(ATRRM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employes Division
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     Federal Transit Administration (FTA);*
     Fertilizer Institute;
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace
Workers (IAM);
     International Brotherhood of Electrical Workers (IBEW);
     Labor Council for Latin American Advancement (LCLAA);*
     League of Railway Industry Women;*
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association
(NRC);
     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB);*
     Railway Passenger Car Alliance (RPCA)
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte;*
     SMART Transportation Division (SMART TD);
     Transport Canada;*
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/
Brotherhood of Railway
     Carmen (TCIU/BRC);
     Transportation Security Administration (TSA).
    * Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to RSAC, and after
consideration and debate, RSAC may accept or reject the task. If
accepted, RSAC establishes a working group that possesses the
appropriate expertise and representation of interests to develop
recommendations to FRA for action on the task. These recommendations
are developed by consensus. The working group may establish one or more
task forces or other subgroups to develop facts and options on a
particular aspect of a given task. The task force, or other subgroup,
reports to the working group. If a working group comes to consensus on
recommendations for action, the package is presented to RSAC for a
vote. If the proposal is accepted by a simple majority of RSAC, the
proposal is formally recommended to FRA. FRA then determines what
action to take on the recommendation. Because FRA staff play an active
role at the working group level in discussing the issues and options
and in drafting the language of the consensus proposal, and because the
RSAC recommendation constitutes the consensus of some of the industry's
leading experts on a given subject, FRA is often favorably inclined
toward the RSAC recommendation. However, FRA is in no way bound to
follow the recommendation and the agency exercises its independent
judgment on whether the recommended rule achieves the agency's
regulatory goals, is soundly supported, and is in accordance with
applicable policy and legal requirements. Often, FRA varies in some
respects from the RSAC recommendation in developing the actual
regulatory proposal or final rule. Any such variations would be noted
and explained in the rulemaking document issued by FRA. If the working
group or RSAC is unable to reach consensus on recommendations for
action, FRA resolves the issue(s) through traditional rulemaking
proceedings or other action.
    The RSAC convened an emergency session on August 29, 2013, in
response to the accident at Lac-M[eacute]gantic, to brief members on
the preliminary findings of the accident, to discuss the safety issues
related to the accident, and to discuss Emergency Order 28. At that
meeting, the RSAC accepted Task No. 13-03 to refer to the Securement
Working Group (SWG) the responsibility of ensuring that ``appropriate
processes and procedures are in place to ensure that any unattended
trains and vehicles on mainline track or mainline sidings outside of a
yard or terminal are properly secured against unintended movement, and
as appropriate, such securement is properly confirmed and verified.''
In doing so, the SWG was tasked with reviewing: The standards for the
securement of unattended equipment under 49 CFR 232.103(n) and its
concomitant regulatory guidance published in TB 10-01; the requirements
of Emergency Order 28; and the recommendations contained in Federal
Railroad Administration Safety Advisory 2013-06--Lac-M[eacute]gantic
Railroad Accident Discussion and DOT Safety Recommendations. The SWG
was also tasked with identifying any other issues relevant to FRA's
regulatory treatment of securement of equipment to prevent unintended
movement. While the RSAC also tasked the SWG with reviewing operational
testing, the SWG concluded that no changes were necessary to the
regulations relating to operational testing. FRA notes that, in its
comments, NTSB suggested that more emphasis should be made on
observations by railroad supervisors, as part of operational testing
programs, to ensure unattended equipment is properly secured. While FRA
does not contest this suggestion, it is outside the scope of this
rulemaking, since FRA declined to consider operational testing.
    In addition to FRA, the following organizations contributed members
to the SWG:
     AAR, including members from BNSF Railway Company (BNSF),
Canadian National Railway (CN), Canadian Pacific Railway (CP), CSX
Transportation, Inc. (CSX), Genesee & Wyoming Inc. (GNWR), Kansas City
Southern Railway (KCS), Long Island Rail Road (LIRR), Metro-North
Railroad (MNCW), Northeast Illinois Regional Commuter Railroad
Corporation (METRA), Norfolk Southern Railway Company (NS), Railway
Association of Canada, and Union Pacific Railroad Company (UP);
     Amtrak;
     API;
     APTA, including members Keolis North America,
Massachusetts Bay Commuter Railroad Company, LLC (MBCR); and North
County Transit District (NCTD);
     ASLRRA, including members from Anacostia Rail Holdings,
Central California Traction Company (CCT), OmniTRAX, Rio Grande Pacific

Corporation, and WATCO Companies, Inc. (WATCO);
     ASRSM, including members from California Public Utilities
Commission (CPUC);
     ATDA;
     BLET;
     BMWED;
     BRS;
     IAM;
     NRC, including members from Herzog Transit Services
(Herzog);
     NTSB;
     PHMSA;
     RSI;
     SMART TD;
     TCIU/BRC;
     Transport Canada; and
     TWU.
    The SWG convened subsequently on October 30, 2013, December 17,
2013, January 28, 2014, and March 4, 2014, in Washington, DC to respond
to these tasks and voted to approve the recommendation on March 4,
2014. The SWG presented its recommendation to the full RSAC, which
voted by electronic ballot between March 25 and March 31, 2015, to
accept the recommendations. On April 2, 2014, the RSAC announced that
by majority vote the recommendations had been approved and would become
its recommendation to the Administrator.
    The recommendation of the RSAC included amendments to 49 CFR
232.103(n) that would do the following: (1) Provide additional
requirements for the securement of unattended equipment carrying
certain hazardous materials; (2) mandate the implementation of
operating rules and practices requiring that securement be part of all
relevant job briefings; and (3) require adoption and compliance with
procedures to secure equipment subsequent to an emergency response. The
RSAC recommendation also included amendments to 49 CFR 232.105 that
would require equipping locomotives with exterior locking mechanisms.

F. NPRM and Comments

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

III. Rescinding Emergency Order 28

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

IV. Section-by-Section Analysis

    Unless otherwise noted, all ``part'' and ``section'' references
below refer to provisions either in title 49 of the CFR or proposed to
be in title 49 of the CFR.
    Before entering into specific analysis of each section, it is
important to make clear that this final rule, which like Emergency
Order 28 provides more restrictive securement requirements for specific
types of equipment than the existing regulations, does not affect FRA's
policy concerning the Federal hours of service requirements. FRA
continues to believe that a railroad may not require or allow a train
employee with an accumulated time on duty of 12 hours or more to remain
on a train for the sole purpose of meeting the securement requirements,
including those proposed here. A train employee may, however, remain on
an unsecured train, if that employee is legitimately waiting for
deadhead transportation from duty to a point of final release, performs
no covered or commingled service,\16\ and is free to leave the
equipment when deadhead transportation arrives. In this case, time
spent waiting for and in deadhead transportation is treated as neither
time on duty nor time off duty.
---------------------------------------------------------------------------

    \16\ A person is considered by the hours of service laws to be
neither on duty nor off duty during periods they are either waiting
for or in deadhead transportation to their point of final release
(i.e., have completed their time on duty and are waiting for or in
transportation to end their duty tour). In order to be considered
``waiting for'' deadhead transportation, the person must not be
required to perform other duties. Merely being on a train is not
inherently performing a duty; being on or with the train is a
necessary element of waiting for transportation from the train. This
is true even when the railroad receives the benefit of having the
train attended while employees aboard wait for transportation. Such
time is considered ``limbo time'' and is not contingent upon the
train's securement status. See BLET v. Atchison Topeka and Santa Fe
Railway, 516 U.S. 152 (1996) (holding that the time waiting for
deadhead transportation under the hours of service laws must be
counted as ``limbo time''). However, should the employee be required
to perform some activity to prevent the movement of the equipment or
to secure the train prior to departing with deadhead transportation,
then the time spent performing the activity and any intervening time
spent waiting would be considered covered and commingled service
respectively. See 49 CFR part 228, app. A. Thus, whether a train is
secured or unsecured when an employee is waiting for deadhead
transportation, that waiting time will count as limbo time, so long
as no covered activities are performed.
---------------------------------------------------------------------------

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

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

Amendments to 49 CFR Part 232

Section 232.5 Definitions

    In this final rule, FRA is including a new defined term,
``mechanical securement device''. ``Mechanical securement device''
means a device, other than the air brake, that provides at least the
equivalent securement that a sufficient number of hand brakes would
provide in the same situation. In TB 10-01, further analyzed below, FRA
contemplated the proper use of skates, retarders, or inert retarders to
secure equipment in certain circumstance and within classification
yards. FRA recognizes, however, that other current and future
securement technologies could perhaps be utilized for the same purpose.
By using the more generalized, performance-based term, mechanical
securement device, FRA intends to provide additional flexibility, and
to ``future proof'' the regulation, to allow the use of other
sufficient securement technologies in the same circumstances and
locations. By definition, FRA understands mechanical securement devices
to include current examples such as skates, retarders, and inert
retarders; which are also further discussed below.
    In the 2001 rule, the definition of ``unattended equipment'' was
included in Sec.  232.103(n). As further discussed below, this final
rule includes a new paragraph (h) for Sec.  232.105, which also makes
use of the definition for ``unattended equipment.'' Since the term
would be used in multiple sections, this final rule moves the
definition to the more broadly applicable definitions in Sec.  232.5.
Doing so allows FRA to rephrase paragraph (n) for clarity purposes, as
discussed further below. Placement of the definition in Sec.  232.5
does not change its meaning and is solely for applicability and clarity
purposes. FRA received no comments on this organizational change and is
amending Sec.  232.5 accordingly.
    FRA is also changing the term ``yard limits'' to ``yard'' without
any change to its definition, with concurrent changes from ``yard
limits'' to ``yard'' in Sec.  232.103(n). FRA is also including the
term ``yard'' in its new Sec.  232.105(h). As currently defined in part
232, a yard limit is ``a system of tracks, not including main tracks
and sidings, used for classifying cars, making-up and inspecting
trains, or storing cars and equipment.'' But in part 218, yard limits
are described as a railroad-designated operating territory that is
established by yard limit signs; and timetable, train orders, or
special instructions. See 49 CFR 218.35(a). Making this change
minimizes the risk of ambiguity and confusion by clarifying that
specific securement practices are connected to the physical presence of
a yard, and not to an operating practices description of yard limits,
which could potentially encompass an entire railway system.
    NTSB concurred with this change removing the word ``limits'' from
the term ``Yard limits.'' According to NTSB, this distinction will
appropriately define the intent of the rule to include only those main
tracks that are connected to the physical presence of a yard and will
avoid the operating practices description of yard limits that could
potentially encompass an entire railway system. FRA received no
negative comments on this clarifying change and is amending Sec.  232.5
accordingly.

Section 232.103 General Requirements for all Train Brake Systems

    As previously noted, FRA is moving the definition of ``unattended
equipment'' to Sec.  232.5, creating an opportunity to rephrase and
clarify the introductory language of paragraph (n). Part of this
rephrasing includes moving the opening sentence of paragraph (n)--``A
train's air brake shall not be depended upon to hold equipment standing
unattended on a grade (including a locomotive, a car, or a train
whether or not locomotive is attached)''--to paragraph (n)(2). The
remaining introductory language of paragraph (n) would become more
succinct and clear.
    While it is not an RSAC recommendation, FRA is also amending
paragraph (n)(1) to make more clear its existing expectation that in
most circumstances at least one hand brake must be applied to hold
unattended equipment. Although this has been stated in earlier
rulemakings and guidance documents (see, e.g., TB 10-01), there has
been some confusion about whether the use of wheel chocks, skates, or
other securement devices is sufficient to hold unattended equipment.
FRA's longstanding interpretation is that at least one hand brake is
required to hold unattended equipment except in certain limited
situations. For instance, in a hump classification yard, an alternative
form of securement, such as skates and retarders, may be allowed
provided they are used within their design criteria and as intended.
FRA believes adding explicit language to the regulatory text is
warranted in order to formally address the requirement to set at least
one hand brake in most instances. Further changes to the rule to
incorporate TB 10-01 are discussed further below.
    NAFCA encourages FRA to harmonize its changes to Sec.  232.103 in
the final rule with the Emergency Directive Pursuant to Section 33 of
the Railway Safety Act--Securement of Railway Equipment--issued by
Transport Canada on October 29, 2014. In this Emergency Directive, the
Canadian government replaced the ``sufficient number of hand brakes''
requirement with a requirement that trains have a specific number of
hand brakes, determined by the weight of the train and the slope of the
track. NAFCA favors the increased specificity of the Canadian approach
and urges FRA to develop harmonized rules with Canada that are
prescriptive, based on sound engineering, and incorporate factors such
as train consist/weight, terrain,

environmental, and other considerations. According to NAFCA, it is
critically important that the two countries' respective efforts be
harmonized, given the closely integrated nature of the North American
railroad system. NAFCA asserts that anything less than full
harmonization of the two regulatory regimes will significantly disrupt
the current flow of rail cars, particularly the tank cars that are the
primary topic of the regulatory efforts, between Canada and the United
States.
    NYSDOT agrees with FRA's clarification that at least one hand brake
must be applied except in limited circumstances, such as when skates or
retarders are applied in a classification yard. However, similar to
NAFCA, NYSDOT states that a more uniform approach to ensuring that
unattended trains are left with a sufficient number of hand brakes
could be accomplished by codifying in regulation the appropriate number
of hand brakes required given the weight, number of cars, and track
gradient. According to NYSDOT, this would ensure uniformity amongst all
railroads, and would allow inspectors the ability to verify that
unattended trains are left with the required amount of hand brakes
applied.
    When FRA initially drafted the securement rule, it purposefully
developed a performance-based requirement in order to permit a railroad
to develop appropriate operating rules to verify the sufficiency of the
hand brakes applied which can be tailored to the specific territory and
equipment operated by the railroad. See 66 FR 4104, 4157, Jan. 17,
2001. When drafting the rule, FRA did not limit such operating rules to
a matrix format and stated that the number of hand brakes required to
be applied depends on a wide variety of factors not easily captured in
a matrix format and that a matrix approach might result in either too
few or too many hand brakes being applied. While the commenters listed
a few variables--such as the weight, number of cars, and track
gradient--FRA does not believe that such a list is definitely
exhaustive. FRA also does not presume to know all location and
equipment configurations; a regulatory matrix may result in
inadvertently ignoring certain other variables to which the railroads
may be more intimately aware and cognizant. Moreover, FRA has not found
the existing performance requirement to be insufficient; its concern
relates primarily to its application, compliance, and enforcement. For
the same reasons, in this instance and at this time, FRA does not
support developing a technical-based regulation to apply a uniform
regulatory procedure. FRA recognizes that Canada is a strong partner in
maintaining cross-border railroad safety and FRA continues to believe
that harmonization between Canadian and United States rail safety
regulations is beneficial, particularly when differences in regulations
create barriers to cross-border transportation, and should be maximized
to the extent possible. Therefore, FRA traditionally seeks out and
incorporates the views of Canada in developing its safety regulations.
FRA, for instance, has actively engaged Canada as a member of RSAC.
However, there is no requirement that FRA harmonize each of its
requirements with those in Canada and, in light of the aforementioned
reasons, FRA believes in this instance that a uniform technical
standard is not ideal and that its performance-based securement
measures better and more appropriately capture the variables presented
by the different rail systems throughout the United States. Further,
FRA does not see the absence of harmonization as potentially
establishing barriers to cross-border train movements; first, because
the operational issue of securement can easily be handled differently
on either side of the border, and, second, because in many instances
there will not be an actual difference in the number of hand brakes
applied to secure similarly situated unattended equipment.
    In its comments, BLET indicated that another component of rail
securement is derail protection. While BLET acknowledges that this was
not discussed in detail in the RSAC SWG, derail protection would reduce
the risk of a more serious accident by preventing inadvertently rolling
equipment from moving further and gaining speed and momentum. This
particular means of securement was not discussed in the NPRM, and FRA
is not convinced that this is the safest securement practice.
Nevertheless, FRA will continue to monitor the safety efficacy of
derail protection as it is applied by regulation in Canada.
    As previously mentioned, paragraph (n)(2) now includes language
originally placed in the introduction of paragraph (n), which prohibits
a train's air brake from being ``depended upon to hold equipment
standing unattended on a grade (including a locomotive, a car, or a
train whether or not locomotive is attached).'' (Emphasis added.) This
final rule also removes the phrase ``on a grade,'' as such a
requirement is arguably superfluous and confusing. In its comments,
Amsted indicated its support for this change. Perfectly level track is
rare, and there is still a risk of unattended movement caused by
numerous factors, such as a mistake in the location or length of the
level track, the effect of extreme weather, or an impact from other
equipment. Moreover, the phrase ``on a grade'' has led some to the
erroneous conclusion that hand brakes must only be applied if the
equipment is left on a grade. While grade is likely a factor in
determining the number of hand brakes that would sufficiently hold
unattended equipment, it is not a factor in determining whether hand
brakes should be applied at all. Accordingly, this final rule makes
clearer that the hand brake application requirement is not contingent
upon the existence of a grade.
    Proposed paragraphs (n)(6) through (n)(8) address the
aforementioned heightened concerns relating to the securement of
unattended equipment carrying certain hazardous materials. Paragraph
(n)(6) defines the type of equipment covered by these requirements and
is intended to ensure that proposed paragraphs (n)(7) and (n)(8) apply
only to equipment that includes loads. Specifically, paragraph (n)(6)
provides that the substantive requirements of paragraphs (n)(7) and
(n)(8) apply to:
    (1) Any loaded tank car containing PIH material, including
anhydrous ammonia and ammonia solutions; or
    (2) twenty (20) or more loaded tank cars or loaded intermodal
portable tanks of any one or any combination of PIH materials
(including anhydrous ammonia and ammonia solutions), or any flammable
gas, flammable or combustible liquid, explosives, or a hazardous
substance listed at Sec.  173.31(f)(2) of this title.

FRA notes that this language is broader than the language used in
PHMSA's NPRM on Enhanced Tank Car Standards and Operational Controls
for High-Hazard Flammable Trains (HHFTs). See 79 FR 45016, Aug. 1,
2014. In that rule, PHMSA proposed certain new requirements for HHFTs,
which it defines as ``a train comprised of 20 or more carloads of a
Class 3 flammable liquid and ensures that the rail requirements are
more closely aligned with the risks posed by the operation of these
trains.'' 79 FR at 45017. Paragraph (n)(6) includes new securement
requirements that cover a single PIH tank car. Moreover, where the
proposed PHMSA rule would only cover trains with 20 or more carloads of
flammable liquids, paragraph (n)(6) covers situations where there are
20 or more loaded tank cars or loaded intermodal portable tanks of PIH
materials,

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

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

    Emergency Order 28 prohibits each railroad from leaving trains or
vehicles that are transporting certain hazardous materials on mainline
track or mainline siding outside of a yard or terminal unless the
railroad adopts and complies with a plan that identifies the specific
locations and circumstances for which it is safe and suitable for
leaving such trains or vehicles unattended. According to Emergency
Order 28, the plan must contain sufficient analysis of the safety risks
and any mitigating circumstances the railroad has considered in making
its determination. FRA expressed its intent not to formally grant
approval to any plan. However, it does monitor such plans, and, in the

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

whether those tracks go through or are adjacent to a rail yard.
    Similarly, Riverkeeper contends that FRA is assuming that trains
are inherently more secure in and around yards to the point that they
do not need to be included in these securement regulations, because
rail yards and sidings generally have more activity than lone, far-
flung mainline track. Riverkeeper asserts that this conclusion is not
supported by any presented facts and ignores the risks of unsecured
trains rolling out of yards, or sidings, or mainlines near yards,
potentially toward imminent and significant disaster. According to
Riverkeeper, FRA's decision to treat yard-adjacent tracks the same as
mainline tracks within the yard arbitrarily relies on nonspecific
``railroad'' activity and the assumption that rail yard workers would
be able to respond to a runaway train in time to avoid disaster.
Riverkeeper concludes that any final rule on securement must apply to
all unattended trains, regardless of where they are left.
    As discussed previously, the yard exception in paragraph (n)(7)(i)
is due to FRA's assessment that yards overwhelming tend to have
appropriate geographic characteristics for leaving equipment unattended
and that there is a higher likelihood of qualified people being present
and switching operations occurring. FRA believes that some commenters
misunderstand the purpose of the plan, which is merely to identify
locations where equipment may be left unattended. The plan requirement
does not exempt the railroads from any securement requirements under
Sec.  232.103(n). In other words, securement of unattended equipment is
required regardless of location--except as subject to certain
switching-related exceptions, including those relating to TB 10-01--and
paragraph (n)(7)(i) does not affect those requirements. To the extent
that those commenting on paragraph (n)(7)(i) are concerned that the
plan would exempt railroads from complying with the hand brake and
other mechanical securement requirements, FRA assures them that this is
not the case.
    Paragraph (n)(7)(ii) establishes new requirements for those trains
that are left unattended on mainline track that is running through a
yard or on mainline track that is adjacent to the yard. It applies
aspects of Emergency Order 28 to these tracks by requiring verification
that securement has been completed in accordance with the railroad's
process and procedures (see discussion below concerning paragraph
(n)(8)(i)), and that the locomotive cab is locked or the reverser is
removed from the control stand and placed in a secured location (see
discussion below concerning paragraph (n)(8)(ii)), unless the exception
contained in paragraph (n)(8)(iii) is applicable.
    Emergency Order 28 requires railroads to develop specific processes
for employees responsible for securing any unattended train or vehicles
transporting certain hazardous materials that must be left on mainline
track or a mainline siding outside of a yard. FRA believes that this
requirement should continue in regulation. This final rule allows a
railroad to leave a paragraph (n)(6) train unattended on mainline track
or a siding outside of a yard where the railroad has a plan in place
and on mainline tracks that are in or adjacent to yards. In doing so,
paragraph (n)(8)(i) requires the employee responsible for the
securement of the equipment to verify securement and paragraph
(n)(8)(ii) requires the train crew to lock the controlling locomotive
cab or remove and secure the reverser from the control stand.\17\
---------------------------------------------------------------------------

    \17\ The reverser is the directional control for the locomotive.
Removing the reverser would essentially put the locomotive in
neutral, preventing it from moving forward or backward under the
power of the engine.
---------------------------------------------------------------------------

    NYSDOT expresses confusion as to the consistency of cross-
referencing language in paragraphs (n)(7)(ii) and (n)(8)(i). Paragraph
(n)(7)(ii) refers to trains described in paragraph (n)(6) that are
``left unattended on a main track or siding that runs through, or is
directly adjacent to a yard,'' and states that the requirements of
paragraph 8(i) and 8(ii) ``shall apply.'' (Emphases NYSDOT's.) However,
paragraph (n)(8)(i) states, ``Where a freight train or standing freight
car or cars as described in paragraph (n)(6) of this section is left
unattended on a main track or siding outside of a yard, and not
directly adjacent to a yard, an employee responsible for securing the
equipment shall verify with another person qualified to make the
determination that the equipment is secured in accordance with the
railroad's processes and procedures.'' (Emphasis NYSDOT's.) According
to NYSDOT, the wording ``shall apply'' would seem to render the
provisions of paragraph (n)(7)(ii) moot, since it appears to default to
the provisions of paragraphs (n)(8)(i) and (n)(8)(ii) for all trains
left unattended, irrespective of their location relative to a yard.
    FRA understands that NYSDOT is expressing confusion in that
paragraph (n)(7)(ii) applies to trains in or adjacent to a yard must
follow paragraph (n)(8)(i), which actually applies to trains outside a
yard. FRA would like to clarify that the distinction here is that
(n)(7)(ii) limits the applicability of (n)(8) only to trains left
unattended in yards or adjacent to them, whereas the provisions of
(n)(8) apply to both trains and cars left outside of yards. In other
words, in context with one another, these paragraphs require securement
verification and lock application on all unattended freight trains
defined under paragraph (n)6), regardless of whether they are located
inside or outside of a yard, and on all standing freight cars defined
under paragraph (n)6) on a main line outside of a yard. The implication
is that these requirements do not apply to standing freight cars inside
and adjacent to yards. FRA intends the above chart to act as a visual
aid to communicate these similarities and differences.
    NYSDOT is in agreement with the requirement that an employee
responsible for securing the equipment shall verify with another
qualified person that the equipment is secured in accordance with
railroad procedures for all trains left unattended. Based upon its
interpretation as written, NYSDOT suggests that paragraph (n)(7)(ii) be
omitted and that the language of paragraph (n)(8)(i) be changed to:
``Where a freight train or standing freight car or cars as described in
paragraph [(n)(6)] of this section is left unattended on a main track
or siding, an employee responsible for securing the equipment shall
verify [. . .] etc.''
    Paragraph (n)(8)(i) requires that an employee responsible for
securing equipment defined by paragraph (n)(6) verify securement with
another qualified person. This is similar to Emergency Order 28, which
requires employees to verify proper securement with a qualified
railroad employee. This may be done by relaying pertinent securement
information (i.e., the number of hand brakes applied, the tonnage and
length of the train or vehicle, the grade and terrain features of the
track, any relevant weather conditions, and the type of equipment being
secured) to the qualified railroad employee. The qualified railroad
employee must then verify and confirm with the train crew that the
securement meets the railroad's requirements. However, paragraph
(n)(8)(i) does not contain a requirement that the railroad maintain a
record of the verification of proper securement.
    FRA believes that the type of verification requirement in paragraph
(n)(8)(i) will serve to ensure that any employee who is responsible for
securing equipment containing hazardous materials will follow
appropriate procedures because the

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

redundancy. FRA's inspectors have extensive experience in enforcing
communicative regulations without the benefit of documentation (see,
e.g., 49 CFR 218.99, 218.103, 218.105, and 218.109). While recordation
may be helpful in some instances, it is not necessary. For instance,
since verification must be accomplished by at least two people, an
inspector may interview them both to determine whether verification
occurred correctly.
    FRA has faced similar questions before regarding recordation of
certain activities. For instance, in a rulemaking codifying the
requirements of Emergency Order 24 concerning the handling of
equipment, switches, and fixed derails, FRA declined to continually
require the use of a Switch Position Awareness Form (SPAF) to remind
employees of the importance of properly lining and locking main track
switches. See 73 FR 8442, 8448, Feb. 13, 2008. While the resulting
paperwork burden and communication redundancy was acceptable for the
purposes of Emergency Order 24, FRA decided not to require a SPAF in
the associated final rule because other comprehensive communication
regulatory requirements created a direct enforcement mechanism that
made enforcement through a SPAF redundant. See id. In that rulemaking,
and in its own proceedings, NTSB supported removal of the similar
paperwork burden. See id; NTSB, Collision of Norfolk Southern Freight
Train 192 With Standing Norfolk Southern Local Train P22 With
Subsequent Hazardous Materials Release at Graniteville, South Carolina,
Railroad Accident Report, NTSB/RAR-05/04, at 45, available at http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0504.pdf. FRA's
position in this rulemaking is consistent with the position taken in
the final rule codifying Emergency Order 24. There have not been
adverse safety consequences associated with eliminating the reporting
requirement in Emergency Order 24, and FRA does not expect any adverse
safety consequences in this instance. However, FRA will continue to
monitor securement of equipment defined under paragraph (n)(6) to
assess the effectiveness of the verification process that is being
instituted in this final rule.
    Also under Emergency Order 28, the employees responsible for
securing the train or vehicles must lock the controlling locomotive cab
door or remove and secure the reverser before leaving it unattended.
Accordingly, paragraph (n)(8)(ii) requires further protection of the
locomotive to prevent movement of unattended equipment that could be
caused by unauthorized access to the locomotive cab.
    Representatives from the railroad labor strongly suggested at the
SWG meetings that a locking mechanism be applied to each locomotive
covered under this rule, seeking that lock installation be complete
within 18 months. BLET stated that locomotive cab security is a major
concern to the labor caucus.
    The language approved by the SWG provided that the controlling
locomotive cab shall be locked on locomotives capable of being locked
or the reverser on the controlling locomotive shall be removed from the
control stand and placed in a secured location. The use of the
conjunctive appears to indicate a choice; each railroad may opt to
either lock the locomotive or remove its reverser. However, based on
the discussions during the SWG meetings, FRA believes that the SWG
intended for paragraph (n)(8)(ii) to mean that all covered locomotives
should be locked when so equipped. FRA has made slight alterations to
the language in paragraph (n)(8)(ii) from the language that was
approved by the SWG in order to more accurately address the lock
requirement. FRA understands that the reverser provision is intended
for the interim period until locks are installed or for when a
locomotive has been equipped with a lock but the lock has become
inoperative. FRA also notes that under this final rule a railroad would
be free to require both the locking of the locomotive and the removal
of the reverser. FRA does not intend to limit a railroad to just one or
the other. FRA sought comment on this understanding, particularly as to
whether the alternative of removing the reverser should only be
available during the timeframe when the locking mechanism becomes
broken or otherwise ineffective or whether, in the interest of safety
redundancy, the regulations should require railroads to both lock cab
doors and to remove reverser handles.
    NTSB believes that, in the interest of safety, the regulation
should require the locking of the locomotive cab doors, as well as
removing and securing the reverser handles. According to NTSB, such
redundancy will ensure a higher level of safety.
    NYSDOT also supports the view that redundancy of safety or security
procedures is beneficial in terms of addressing risk. Therefore, NYSDOT
believes that, when the train is left unattended, the locomotive cab
door lock must be engaged (if operative) and the reverser must be
removed and secured where feasible.
    FRA is not persuaded by the comments, which provide no new
information or argument. FRA continues to believe that it is not
necessary to ensure safety by requiring by regulation the locking of
the cab door and removal of the reverser. FRA recognizes that the
railroads are already, or will be, installing locks on cab doors. This
final rule formally requires such installation and requires their
application for unsecured equipment in accordance with this rule. While
this final rule does not require removal of the reverser in cases where
an operative lock is applied, the railroads are free to include such a
requirement in their respective operating rules. For the purpose of
this final rule, the lock will be the primary means of locomotive cab
securement and reverser removal will be required only as a backup.
    When a railroad relies on removing the reverser as a means for
securement, FRA expects that the reverser will be taken by the
appropriate railroad employee from the controlling locomotive cab so
that it is not accessible to an unauthorized person such as a
trespasser. Alternatively, FRA anticipates allowing the reverser to be
secured in the cab of an unlocked controlling locomotive as long as the
reverser is kept in a box or other compartment that can be locked
within the locomotive cab. However, FRA would not consider a reverser
``secured'' within the meaning of this final rule if the railroad
allows the reverser to be stored merely out of plain sight.
    In most instances, FRA would consider a locomotive with an
ineffective locking mechanism to be noncompliant with paragraph
(n)(8)(ii) if the locomotive is left unattended with the reverser
remaining in the control stand. FRA recognizes that there may be
limited circumstances where a locomotive's lock becomes inoperative and
its reverser cannot be removed, thus making compliance with proposed
paragraph (n)(8)(ii) nearly impossible. Accordingly, for such
instances, this final rule includes an exception under paragraph
(n)(8)(iii). FRA believes that application of this exception would only
be utilized on the rare occasion where older locomotives with
integrated reversers may be utilized or where weather conditions make
the reverser necessary for operations (i.e., to prevent the locomotive
from freezing) and that such trains would only be left unattended in a
yard or on a track directly adjacent to a yard. FRA sought comments on
the intent, application, and language of this proposed exception.

    NYSDOT states that the data provided in the analysis section of the
NPRM indicates that the cost associated with repairing or replacing a
locking mechanism is relatively small. According to NYSDOT, it is
accepted that the goal of this particular exception is to provide
relief in the rare instances where operation of ``non-conforming''
equipment (e.g. locomotive cabs without operative locks or removable
reversers) would be required. However, given the acknowledged security
concerns inherent with leaving trains unattended, NYSDOT asserts that
consideration should be given to requiring attendance on the affected
equipment until such time that the inoperative locking mechanisms can
be repaired or replaced in conformance with paragraph (n)(8)(ii).
    The purpose of the existing securement rule and this final rule is
not to require attendance, but to require certain safety protocols when
certain equipment is left unattended. To require attendance, as
suggested by NYSDOT, would have this rule go further than FRA's intent
and could amount to substantial and unnecessary costs for the
railroads. Moreover, such a requirement likely would result in
unanticipated impacts affecting FRA's hours of service rules, which is
not FRA's intent in this rulemaking.
    FRA believes that the job briefing requirement in Emergency Order
28 should be codified in regulation. Accordingly, paragraph (n)(9)
requires each railroad to implement operating rules and practices
requiring the discussion of securement among crew members and other
involved railroad employees before engaging in any job that will impact
or require the securement of any equipment in the course of the work
being performed. This requirement is analogous to other Federal
regulations that require crew members to have a job briefing before
performing various tasks, such as confirming the position of a main
track switch before leaving an area. The purpose of this job briefing
requirement is to make certain that all crew members and other involved
railroad employees are aware of what is necessary to properly secure
the equipment in compliance with Sec.  232.103(n).
    Under this final rule, FRA expects that the crew will discuss the
equipment that is impacted, the responsibilities of each employee
involved in the securement of a train or vehicle, the number of hand
brakes that will be required to secure the affected equipment, the
process for ensuring that securement is sufficient, how the
verification will be determined, and any other relevant factors
affecting securement. FRA sought comments on whether these expectations
are reasonable, accurate, and either sufficiently comprehensive or
somehow lacking.
    NYSDOT agrees that the specific job briefing requirements should be
left up to the railroads and that effective policies and procedures are
important. However, NYSDOT remains concerned about the ability to
record or document the actions taken in accordance with those policies
and procedures.
    Riverkeeper believes that, although FRA claims that new
requirements of the rules proposed here would indeed ``enhance safety
culture and oversight,'' the new requirements do not go far enough and
lack the enforceability needed to actually change the status quo.
Riverkeeper says that, while the NPRM proposes ``requiring that
securement be part of all relevant job briefings,'' FRA has no ability
to ascertain whether briefed employees understand, or are implementing,
securement policies. Riverkeeper similarly states that although FRA
proposes requiring that there be more ``dialog between railroad
employees [which would] provide enhanced oversight within the
organization,'' it has no way to ensure that such dialogs occur, or
whether they actually improve compliance rates. Riverkeeper notes that
neither of these cultural changes will necessarily be reported to the
FRA or the public in a manner that promotes transparent oversight and
robust enforcement.
    FRA disagrees with Riverkeeper's assessment regarding the
effectiveness of the job briefing requirement and its regulatory
enforceability. Crew members are already trained and qualified to
understand briefing contents and the procedures and mechanics involved
with securing unattended equipment. FRA also has extensive experience
enforcing the job briefing criteria (see, e.g., 49 CFR 214.315, 218.99,
218.103, 218.105, and 218.109) and expects to apply similar
investigative methods when enforcing paragraph (n).
    FRA recognizes that, in some instances, there may be only one crew
member performing a switch or operation and that crew member would have
to secure equipment alone at the end of the activity. In the NPRM, FRA
expressed its belief that the issue of self-satisfying a job briefing