FRA Publishes Train Securement Final Rule

Today the DOT’s Federal Railroad Administration (FRA) published a final rule in the Federal Register (80 FR 47349-47386) to amend the brake system safety standards (49 CFR 232) for freight and other non-passenger trains and equipment to strengthen the requirements relating to the securement of unattended equipment. This is the same rule that FRA announced a week ago. The notice of proposed rulemaking (NPRM) for this rule was published in September of last year.

Definitions

This rule makes changes to §232.5 by adding a new term, moving a definition into this section, and changing a term without changing the definition. Those three terms are respectively

∙ Mechanical securement device;

∙ Unattended equipment {from §232.103(n)};

∙ Yard {from yard limits also defined in §218.35(a) with a conflicting definition}.

Rule Coverage

A minor change in wording from the NPRM was made in the new §232.103(n)(6); the term ‘loaded tank car’ is used instead of ‘loaded freight car’. With this new wording, the new changes in securement requirements now applies to {new §232.103(n)(6)(i)}:

∙ Any loaded tank car containing PIH material, including anhydrous ammonia and ammonia solutions; or

∙ 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 §173.31(f)(2) of this title.

For purposes of this rule rail cars containing a residue will not be considered in determining if a freight train is covered under the rule.

The Plan

The new rule includes basically the same plan requirements found in Emergency Order #28 which this rule supersedes. Railroads are still required to have the required plan in place before they can secure and leave unattended a covered train outside of a yard. There is only one change in the plan requirements:

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.

FRA still reserves the right to review such plans and direct changes in them when necessary. They still will not require the plans to be approved by FRA prior to their use.

Securement

There are some differences in the securement requirements in this rule and in the Emergency Order #28. The FRA has removed the specific requirement for railroads to “review, verify, and adjust, as necessary” the securement procedures to be employed in support of this rule. The FRA is also discontinuing the requirement from EO #28 of preparing a written verification of the securement procedure used on each unattended train.

A couple of changes were made from the proposed wording in the NPRM. One change is found in the revised §232.103(n)(1); The new language now makes it clear that at least one hand brake must be set on unattended trains. A change to §232.103(n)(2) removes the words ‘on a grade’ from the description of areas where air brakes cannot be relied upon to hold standing unattended equipment.

The discussion in the preamble seeks to clarify that the final rule requires all unattended covered trains to be secured in accordance with the new §232.103(n)(8). The exception for trains left unattended in yards or on mainlines adjacent to yards only applies to the plan requirements of the new §232.103(n)(7).

Effective Dates

The effective date for the requirements of this new rule is October 5^th, 2015. Emergency Order #28 is rescinded on October 5^th, 2015. Petitions for reconsideration must be received by September 25^th, 2015. 

S 2784 Introduced – Rail Safety

As I noted last week Sen. Blumenthal (D,CT) introduced S 2784, the Rail Safety Improvement Act of 2014. The bill would provide authorization for funding various DOT rail safety programs under 49 USC 20117 and adds some new safety requirements; including specific requirements for highly hazardous flammable trains (HHFT).

HHFT Rulemakings

In many ways Section 6 of this bill is a specific authorization for the current HHFT,  HHFT emergency response and train securement rulemakings that are being undertaken by the Pipeline and Hazardous Material Safety Administration (PHMSA) and the Federal Railroad Administration (FRA). There are some significant differences that could affect those rulemaking processes.

One significant affect could be on the timing of those rules. This bill would provide a very short time requirement (180 days for the emergency response {§6(e)(1)} and train securement {§13}) rulemakings and  for DOT to put these rules into place. There is no specific requirement for a deadline on the HHFT regulation process, but the HHFT requirements would become law upon this bill being signed by the President.

DOT could, of course, ignore these time limits as they have done for so many other congressional requirements or they could short-cut the publication and comment provisions of the rulemaking process and institute the provisions as a directed rulemaking. That response would almost certainly be challenged in court.

HHFT Requirements

This bill has some differences from the current PHMSA proposed rule. First it would codify the requirements in 49 USC 5111. It would expand the route notification requirements to include county officials {§5111(b)(1)}, require submission of copies of those notifications to DOT{§5111(b)(2)}, and specifically place those submissions to DOT under the public disclosure requirements of the Freedom of Information Act (5 USC 552). Interestingly, the DOT notification requirements do not apply to the requirement to provide route update information to State and County emergency response officials. It also provides for civil fines of up to $175,000 per day for failure to comply with these requirements {5111(b)(5)},

PTC for Crude Trains

Section 6(d) would amend 49 USC 20157(a)(1) by adding the requirement that any mainline over which “20 or more tank cars loaded with petroleum crude oil” are transported would have to be covered by a positive train control system (PTC). There is no provision changing the time by which that PTC system for these lines would have to be operational so presumably the December 21^st, 2015 deadline would still apply. The wording does not seem to require that the 20 cars be in a single train so that further complicates the interpretation of this provision.

Moving Forward

This bill was introduced way too late in this session to be actually considered and passed. While there is a certain amount of political pressure on this issue, I do not believe that it is enough to overcome the political inertia of an election season and a busy lame duck session. This bill or another version of it will almost certainly be re-introduced in the next session.

FRA Publishes Securement NPRM

Today DOT’s Federal Railroad Administration (FRA) published a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 53356-53383) concerning the securement of unattended trains. This rule would update current regulations in place since 2001 is part of their on-going efforts to upgrade the safety and security of trains in response to a series of crude oil train derailments.

In general this rule would:

• Ensure that each locomotive left unattended outside of a yard be equipped with an operative exterior locking mechanism and that such locks be applied on the controlling locomotive cab door when a train is transporting tank cars loaded with certain hazardous materials;

• Provide that certain 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; and

• Require additional verification of securement in the event that a non-railroad emergency responder may have been in a position to have affected the equipment.

The requirements in this NPRM would apply to:

• Any loaded freight car containing PIH material, including anhydrous ammonia and ammonia solutions; or

• Twenty (20) or more loaded cars or loaded intermodal portable tanks of any one or any combination of PIH materials (including anhydrous ammonia and ammonia solutions), or any flammable gas, flammable or combustible liquid, explosives, or a hazardous substance listed at § 173.31(f)(2) of this title

The location specific securement plans are not required to be submitted to, or approved by, FRA. They are, however, required to be made available to the FRA upon request; and the FRA may require changes to the plan {§232.103(n)(7)(i)}. The FRA must be notified when such plans are adopted or changed.

While not explicitly stated in the revised CFR language provided in the rule, the preamble makes it clear that the requirements for a second employee’s verification of proper securement may be done without physical attendance at the site of the securement;

“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.”

Interestingly the preamble specifically states that “proposed paragraph (n)(8)(i) does not contain a requirement that the railroad maintain a record of the verification of proper securement.” This will make enforcement of this provision very iffy.

FRA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # FRA-2014-0032). Comments should be submitted by November 10^th, 2014.

OMB Approves FRA Securement NPRM

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the DOT’s Federal Railroad Administration’s (FRA) notice of proposed rulemaking on hazmat train securement. This proposed rulemaking was not listed in the Administration’s Spring Unified Agenda.

As I noted in an earlier blog post this NPRM probably looks like the rule proposed by the FRA’s Railroad Safety Advisory Committee (RSAC) back in April. That proposed rule would apply to trains with single cars of toxic inhalation hazard (TIH) chemicals or trains with 20 cars (total) of almost any other hazardous material. It would cover most freight trains that I have watched at road crossings over the years.

This rulemaking apparently has a high level of interest within the Administration. It was submitted to OIRA on August 15^th and approved yesterday; that is fast action time for OMB. I expect that it will be published in the Federal Register later this week.

FRA Submits Securement NPRM to OMB

On Thursday (I’ve been on the road so I’m catching up on stuff) the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a notice of proposed rulemaking (NPRM) from the DOT’s Federal Railroad Administration (FRA) concerning the securement of unattended equipment. This rulemaking was not covered in the Spring 2014 Unified Agenda, but it does not take any great imagination or regulatory insight to guess that this will address the train securement problems identified in the Canadian crude oil train catastrophe last year.

At the very least we can expect that the proposed rule will codify the requirements set out in Emergency Order #28. It remains to be seen if the rulemaking will go beyond those requirements. Back in April the Railroad Safety Advisory Committee approved draft language (.PDF File) for a rulemaking on this subject, but there is no requirement for DOT to use that consensus language.

FRA to Issue Train Crew Size and Securement NPRMs

A press release yesterday from the DOT’s Federal Railroad Administration (FRA) indicated that they intend to issue proposed rules requiring two-person train crews on crude oil trains and establishing minimum crew size standards for most main line freight and passenger rail operations. A probable second rule making would address unattended freight trains or standing freight cars on main track or sidings and require railroads to adopt and implement procedures to verify securement of trains and unattended equipment for emergency responders.

Crew Size

After the Lac-Mégantic derailment last year one of the actions taken by the Railroad Safety Advisory Committee was the establishment of a working group to look at potential regulations for establishing minimum train crew size requirements. At the most recent meeting of the RSAC a presentation was made by that working group concerning the work that they had done to date.

While the RSAC is extremely slow in posting the minutes from their meetings, the FRA press release notes that the Working Group was unable to reach a consensus on the minimum crew size requirements. In the absence of a consensus recommendation the FRA is developing its own proposed requirements. According to the press release:

“The notice of proposed rulemaking (NPRM) will most likely require a minimum of two person crews for most mainline train operations including those trains carrying crude oil.  It is also expected to include appropriate exceptions.”

Train Securement

A working group on train securement was also formed last year and they too made a presentation at the recent RSAC meeting. Apparently there was a consensus reached on these issues and FRA intends to initiate a rule making based upon that consensus language. It would include provisions:

• Prohibiting certain unattended freight trains or standing freight cars on main track or sidings;

• Requiring railroads to adopt and implement procedures to verify securement of trains and unattended equipment for emergency responders;

• Requiring locomotive cabs to be locked and reversers to be removed and secured; and

• Requiring railroad to obtain advance approval from FRA for locations or circumstances where unattended cars or equipment may be left.

Moving Forward

No draft language for either potential NPRM has yet been made public. Nor has there been any indication how soon such language will be available to send to the OMB’s Office of Information and Regulatory Affairs (OIRA) for review.