[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5371]


[[Page Unknown]]

[Federal Register: March 10, 1994]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 215

[Docket No. RSFC-7, Notice 1]

 

Freight Car Safety Standards; Maintenance-of-Way Equipment

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FRA is proposing in this document to amend the Freight Car 
Safety Standards by making all maintenance-of-way vehicles subject to 
the Standards with the exception of stenciled cars not used in revenue 
service and restricted to a speed of less than 20 miles per hour. This 
proposal would add to the present regulation an additional condition 
which must be met before a freight car in maintenance-of-way service 
can be operated without complying with the Freight Car Safety 
Standards: the equipment must be operated at a speed of less than 20 
mph.

DATES: Written comments must be received no later than April 11, 1994. 
Comments received after that date will be considered to the extent 
possible without incurring additional delay or expense.

ADDRESSES: Written comments should be submitted to the Docket Clerk, 
Office of Chief Counsel, Federal Railroad Administration, 400 Seventh 
Street SW., Washington, DC 20590. Persons desiring to be notified that 
their written comments have been received should submit a stamped, 
self-addressed postcard with their comments. The Docket Clerk will 
indicate the date on which the comments were received and will return 
the postcard to the addressee. Written comments will be available for 
examination during regular business hours in room 8201 of the Nassif 
Building located at the above address.

FOR FURTHER INFORMATION CONTACT: Phil Olekszyk, Deputy Associate 
Administrator, Office of Safety, Federal Railroad Administration, 400 
Seventh Street SW., Washington, DC 20590 (telephone: 202-366-4094), or 
Kyle M. Mulhall, Office of Chief Counsel, Federal Railroad 
Administration, 400 Seventh Street SW., Washington, DC 20590 
(telephone: 202-366-0628).

SUPPLEMENTARY INFORMATION: FRA proposes to revise its Freight Car 
Safety Standards to make all maintenance-of-way vehicles subject to 
these Standards with the exception of any stenciled maintenance-of-way 
car operated at a speed less than 20 miles per hour and not used in 
revenue service.
    The Freight Car Safety Standards, at 49 CFR 215.3(c)(3), excluded 
maintenance-of-way equipment from the requirements of Part 215, ``if 
that equipment is not used in revenue service and is stenciled in 
accordance with section 215.305.''
    When it revised these rules in 1979, FRA proposed that equipment 
used exclusively in work train service be excluded from the requirement 
of the proposed rules (44 FR 1419). The theory of this proposal was 
that if a car were limited to work train service, with its slow speed 
and low mileage operations, safety considerations would not necessitate 
bringing the car up to the same maintenance levels needed for safe high 
speed mainline revenue service cars. All other equipment would be 
included.
    Commenters urged that FRA not adopt the proposal. They indicated 
that having to confine such equipment to work train service would 
impose such stringent operational restrictions as to effectively force 
railroads to replace between 200 and 3,000 cars at a cost of about 
$30,000 each. It was asserted that these costs were not required from a 
safety standpoint, since there were no accidents attributable to such 
equipment.
    FRA accepted the commenters' arguments on the theory that since 
cars in work train service are not freely interchanged and each 
railroad knows the condition of its own cars, an appropriate level of 
operational constraint, tailored to a particular car's condition, can 
be effectively imposed by individual railroads. FRA concluded that, if 
such cars were excluded from revenue service and were identified by 
reporting marks stenciled on the equipment, compliance with the 
regulation was not necessary from a safety standpoint. Accordingly, in 
adopting the revised regulation in 1979, FRA made the Freight Car 
Safety Standards inapplicable to any freight car that is ``maintenance-
of-way'' equipment provided that it is not used in revenue service and 
is marked to indicate its status. FRA did not specifically prohibit use 
of non-complying maintenance-of-way equipment in revenue trains, only 
that it be excluded from revenue service.
    By proceeding in this manner there was no need to define what 
constitutes maintenance-of-way equipment. In the absence of such a 
regulatory definition, the railroad industry has identified as 
``maintenance-of-way'' cars an extensive group of company service cars 
when that equipment does not directly produce revenue for the railroad. 
Typical examples of this broad variety of freight cars include flat 
cars assigned to move railroad wheels, hopper cars in ballast service, 
covered hoppers in locomotive sand service, tank cars in locomotive 
fuel service, and box cars designated as mobile warehouses and 
containing a wide variety of supplies needed by the railroad in its 
daily operations. The designation of such cars as ``maintenance-of-
way'' equipment is a departure from a historical industry practice that 
reserved this designation only for cars assigned to the railroad's 
engineering departments. These cars were used only in limited service 
to repair or maintain the track, bridge, and signal installations owned 
by the railroad and were largely of unique designs tailored to perform 
a specific function.
    Although the Freight Car Safety Standards have not generally 
applied to ``maintenance-of-way equipment,'' FRA's Safety Appliance and 
Power Brake rules do apply to this equipment. Thus, the condition of 
such cars has been monitored as part of FRA's overall compliance 
program. In addition, during a special inspection effort in February 
1983, FRA inspected 2,849 cars stenciled as ``maintenance-of-way'' 
cars. Two hundred twenty three (7.8%) had safety appliance violations 
and 518 (18.2%) had power brake violations. In addition, of 677 cars 
inspected for potential compliance with the freight car safety 
standards, 224 (33%) were found with defects that would have been 
violations of these standards. Effective remedial action was taken by 
the individual railroads in each instance, but the need for continued 
review was underscored by a significant accident that occurred on July 
18, 1983 at Crystal City, Missouri.
    Investigation of that accident indicated that the derailed train 
was operating at a normal speed for a revenue freight train despite the 
presence of 17 hopper cars in ``maintenance-of-way'' service, all of 
which were in a deteriorated condition. A cracked and displaced 
centerplate was present under one of these cars and is believed to have 
been a major contributing cause to the accident.
    During another extensive effort in 1984, FRA inspected 3,933 
maintenance-of-way cars, finding fewer non-complying conditions: 
Approximately 279 safety appliance violations (7%), 439 power brake 
violations (11.2%), and 823 defects that would have been freight car 
safety violations (20.9%) if these cars were required to comply with 
the freight car standards. In 1986, a third inspection survey of 25% of 
the nation's fleet of these cars revealed 700 safety appliance (7%) and 
878 power brake (8.8%) violations, and 1,730 defects that would have 
been freight car safety violations (17.2%).
    Several salient facts emerge from FRA's monitoring effort. Although 
each successive inspection has found that the percentage of cars with 
safety problems has decreased, the percentage of cars found with safety 
problems remains significantly higher for this group of cars than for 
the national fleet. In all instances, the railroads have taken remedial 
action once the non-complying conditions have been identified. However, 
after repairing a defective car on a repair track, railroads often 
elect to place the car back in service without correcting conditions 
that are substandard according to the freight car standards. For 
example, a car shopped for repair of a brake defect may be sent back 
into service without attention being given to broken and missing truck 
springs, despite the obvious and serious nature of that condition. 
Railroads differ as to whether to impose operational constraints on 
this type of equipment or limit speed or train makeup. For instance, 
FRA has observed ballast cars with both broken centerplates and broken 
or missing truck springs placed in a relatively high-speed revenue 
train and coupled to a car containing hazardous materials. Nothing in 
current FRA regulations prevents this from happening. Similarly, ample 
evidence emerged that these cars are being interchanged among railroads 
fairly extensively.
    To identify the role that these cars may play in causing accidents, 
FRA has reviewed its accident data to find accidents caused by freight 
cars that were in ``maintenance-of-way'' service and to isolate those 
that can be attributed to conditions that would constitute 
noncompliance with the Freight Car Safety Standards. FRA has isolated 
26 accidents involving maintenance-of-way cars between January 1, 1980 
and July 1, 1987 in which defective components, which would otherwise 
have been regulated by these standards, were the probable cause of the 
accident.
    These accidents resulted in property damage exceeding $1 million. 
Because of data limitations regarding identification of maintenance-of-
way cars, the study could not include any maintenance-of-way cars 
entering the fleet since 1984. That limitation, together with the fact 
that our field inspection forces report increasing observation of such 
cars used in revenue trains, leads to the conclusion that the risk is 
substantial today and likely to grow in the future.
    One further reason for concern relates to a recent change in 
industry requirements regarding cars with friction bearings. The 
Association of American Railroads (AAR) has changed its field manual of 
interchange rules, effective January 1, 1994, to require that ``all 
cars must be equipped with journal roller bearings and may not be 
equipped with friction (plain) bearings.'' AAR Interchange Rule 88, 
Item 17(b). Although this change does not specifically address MOW 
equipment, the majority of these cars are equipped with friction 
bearings. The AAR prohibition of interchanging cars equipped with 
friction bearings will greatly reduce the the number of locations on 
the railroads where personnel are capable of performing frequent 
inspections of the bearing components and application of lubrication. 
Reduced inspection could lead to increases in journal burn offs, hot 
boxes, and derailments.
    In summary, several factors call into question FRA's prior decision 
not to bring company-service-type equipment under the Freight Car 
Safety Standards: The increasing size of the ``maintenance-of-way'' car 
fleet; carrier decisions to minimize the level of repair work being 
performed on these cars rather than to voluntarily improve their 
general condition; fewer operational constraints for this fleet; and an 
accident history attributable to these cars. But the strongest argument 
for this proposal is simple common sense. FRA has required every car 
moving in a revenue service train to meet certain safety standards 
because it recognizes that equipment failure on a single car can derail 
an entire train. This is as true of maintenance-of-way vehicles as it 
is with any other type of car. Exempting maintenance-of-way vehicles 
from the freight car safety standards and allowing them to move at high 
speeds in trains which often carry hazardous materials does not appear 
logical in safety terms. This exemption appears to have contributed to 
at least 26 accidents, and mere chance appears to be responsible for 
the fact that none of these accidents produced catastrophic 
consequences. Because we do not believe that public safety can continue 
to be predicated on luck, FRA is proposing to remove this anomaly from 
the freight car safety standards.

The Proposed Rule

    FRA proposes to revise Sec. 215.3(c)(3) to exclude from the 
application of the Freight Car Safety Standards freight cars assigned 
to maintenance-of-way service only if that equipment is: (1) Not used 
in revenue service; (2) operated at a speed of less than 20 miles per 
hour; and (3) stenciled in accordance with Section 215.305. All three 
of these conditions would have to be met before the car is excluded 
from the application of the rules.
    This proposal would add to the present regulation an additional 
condition which must be met before a freight car in maintenance-of-way 
service can be operated without complying with the Freight Car Safety 
Standards: the equipment must be operated at a speed of less than 20 
mph. Under this approach, if a railroad wants to continue its current 
practice of operating a maintenance-of-way car at track speeds in 
revenue trains, the railroad will either have to bring the car into 
compliance with the Freight Car Safety Standards or substitute a car 
that is in compliance. However, a railroad could operate a non-
complying stenciled maintenance-of-way car in a revenue train as long 
as that train travelled less than 20 miles per hour.
    This proposal would not prohibit stenciled, non-complying 
maintenance-of-way cars from being used in revenue trains as long as 
those trains operate at speeds less than 20 miles per hour. We 
specifically request comments on this aspect of the proposal. Should 
the permissible conditions for operating non-complying maintenance-of-
way equipment be further limited by prohibiting use in all revenue 
trains as well as in revenue service? In view of the possibility that a 
car being used in restricted service might derail, fouling an adjacent 
track and leading to a raking collision, should all maintenance-of-way 
cars be required to comply with the provisions of the Freight Car 
Safety Standards?
    The proposed language does not change the regulation's effect on 
self-propelled maintenance-of-way equipment except insofar as that 
equipment would also have to comply with the Freight Car Safety 
Standards if operated at a speed of 20 miles per hour or more.
    FRA data indicates that freight cars specially modified for 
maintenance service constitute only a small segment of the group of 
cars that would be affected by this proposal. The vast majority of 
affected cars are unmodified cars that could just as easily be used in 
revenue service. Indeed, FRA investigations disclosed at least one 
railroad that was routinely employing in revenue service equipment 
stenciled for maintenance service. Given the potential for such 
alternative service, these cars should either be brought into 
compliance or replaced. Even if a railroad elects to replace all of its 
current equipment in this category, there does not appear to be any 
lack of equipment available for this purpose at minimal cost since the 
industry has a large number of freight cars in storage.
    FRA estimates that approximately 40,000 freight cars stenciled to 
indicate their potential use as maintenance-of-way cars would, to the 
degree railroads choose to use them in revenue trains at speeds of 20 
miles per hour or higher, be brought into compliance with the Freight 
Car Safety Standards if this proposed amendment is adopted. To place 
that number in context, the national freight car fleet now includes 
more than 1.5 million cars. FRA estimates that less than three percent 
of the entire fleet would be affected by this proposal.

Regulatory Impact

    This proposed rule has been evaluated in accordance with existing 
regulatory policies. The proposed rule does not constitute a major rule 
under Executive Order 12291, but is a significant rule under DOT 
regulatory policies and procedures due to industry and public interest.
    The proposed rule will have a direct economic impact only on 
railroads. If a railroad plans its maintenance activities in a manner 
that necessitates operating its MOW equipment at the same speed as 
normal revenue service trains, this proposal will have an adverse 
economic impact in that a railroad will either have to upgrade the 
condition of their equipment or replace that equipment with stored cars 
that comply with the standards. FRA estimates the cost of repairing the 
railroad industry's maintenance-of-way fleet to be $1,576,000 the first 
year and $1,733,600 the second year of compliance, with $315,200 in 
increased annual maintenance costs thereafter.
    Operating MOW cars at low speeds in dedicated MOW trains will 
considerably reduce the threat of derailments. When MOW equipment is 
operated at high speed in trains that may well contain large quantities 
of hazardous materials, any derailment could have grave consequences. 
Preventing just one accident from causing substantial loss of life or 
property would result in benefits well above those identifiable in a 
review of past accidents. A full regulatory evaluation has been placed 
in the public docket and is available for inspection.

The Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 was enacted by Congress to 
ensure that small entities are not unnecessarily and disproportionately 
burdened by Government regulations. FRA certifies that this proposal 
would not have a significant economic impact on a substantial number of 
small entities.
    The proposed rule will not have any significant impact on small 
entities because the limited speed provision will allow small railroads 
to continue to operate their equipment at current speeds since 
virtually all small railroads have very low operating speeds. The 
proposed rule does not contain any new or altered provisions that will 
affect the information collection requirements contained in the 
existing regulation.

Federalism Implications

    The proposed rulemaking action would not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, FRA has determined that this 
notice does not have sufficient federalism implications to warrant 
preparation of a Federalism assessment.

List of Subjects in 49 CFR Part 215

    Railroad safety.

The Proposed Rule

    In consideration of the foregoing, FRA proposes to amend part 215, 
title 49, Code of Federal Regulations, as set forth below:

PART 215--[AMENDED]

    1. The authority citation for part 215 continues to read as 
follows:

    Authority: 45 U.S.C. 431 and 438, as amended; Pub. L. 100-342; 
and 49 CFR 1.49(m).

    2. In section 215.3, paragraph (c)(3) is revised to read as 
follows:


Sec. 215.3  Application

* * * * *
    (c) * * *
    (3) Maintenance-of-way equipment (including self-propelled 
maintenance-of-way equipment) if it is not used in revenue service, is 
operated at a speed of less than 20 miles per hour, and is stenciled in 
accordance with Sec. 215.305 of this part.

    Issued in Washington, DC on March 3, 1994.
Donald M. Itzkoff,
Acting Administrator.
[FR Doc. 94-5371 Filed 3-9-94; 8:45 am]
BILLING CODE 4910-06-P