[Federal Register Volume 72, Number 17 (Friday, January 26, 2007)]
[Notices]
[Pages 3907-3911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1126]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


Safety Advisory 2007-02

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

ACTION: Notice of Safety Advisory; Specialized Maintenance Equipment.

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SUMMARY: FRA is issuing Safety Advisory 2007-02 in order to provide 
interested parties guidance on the proper application of existing 
statutory and regulatory requirements concerning self-propelled 
specialized maintenance equipment. This document also strongly 
recommends that owners and operators of such equipment properly inspect 
the equipment and ensure that properly qualified individuals are 
operating and piloting the equipment while in transit.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Track 
Division (RRS-15), FRA Office of Safety Assurance and Compliance, 1120 
Vermont Avenue NW., Washington, DC 20590, telephone: 202-493-6236; 
Ronald Newman, Staff Director, Motive Power and Equipment Division 
(RRS-14), FRA Office of Safety Assurance and Compliance, 1120 Vermont 
Avenue NW., Washington, DC 20590, telephone: 202-493-6241; or Michael 
Masci, Trial Attorney, 1120 Vermont Avenue NW., Washington, DC 20590, 
telephone: 202-493-6037.

SUPPLEMENTARY INFORMATION: On November 9, 2006, a rail grinder train 
owned and operated by Harsco Track Technologies (Harsco), a rail 
services contractor, derailed while in transit from Sparks, Nevada, to 
Bakersfield, California. The grinder train, classified as maintenance-
of-way (MOW) equipment, was operating in a westward direction on a 2.2 
percent descending grade on the Union Pacific Railroad (UP) Roseville 
Subdivision. Ten of the 13 cars in the train derailed, resulting in

[[Page 3908]]

the deaths of two Harsco employees. The consist was being operated by a 
Harsco operator and a UP pilot conductor. Neither the operator nor the 
pilot had been qualified on the territory over which the consist was 
traveling. FRA's post-incident investigation has revealed that numerous 
serious mechanical and brake defects also existed on the equipment in 
the involved rail grinder consist.
    Presently, FRA is in the process of performing safety inspections 
on all Harsco's rail-grinding trains and other similar specialized 
maintenance equipment owned by other service providers to ensure the 
safe operation of the equipment. Because many of these rail-grinding 
trains differ in design, it is necessary to inspect each train 
individually. Harsco has voluntarily halted all operation of their 
rail-grinding equipment until FRA has completed these safety 
inspections. FRA's Motive Power & Equipment and Track Divisions will 
work closely with the affected railroads, equipment owners and 
operators to expedite these inspections.
    Recommended Action: In recognition of the need to ensure safety, 
FRA recommends that owners, operators, and railroads using specialized 
maintenance equipment:
    (1) Utilize the interpretative guidance provided in this document 
to ensure that the equipment is properly inspected and operated;
    (2) Ensure that either the operator or pilot involved in any move 
of this equipment is qualified on the territory over which the 
equipment will be traveling; and
    (3) Thoroughly inspect the equipment at the earliest opportunity to 
ensure that it is safe to operate and is in compliance with all 
regulatory and statutory requirements.
    Failure of industry members to voluntarily take action consistent 
with the above recommendation may result in FRA pursuing other 
corrective measures to enforce public safety under its rail safety 
authority. FRA may modify Safety Advisory 2007-02, issue additional 
safety advisories, or take other appropriate action necessary to ensure 
the highest level of safety on the Nation's railroads.

Regulatory and Statutory Application

    Subsequent to the incident, and based on FRA's accident 
investigation, FRA's regional personnel have been aggressively 
inspecting other similarly equipped and operated train sets. FRA's 
findings indicate that there is uncertainty among some in the regulated 
community as to the proper application of the agency's regulations of 
specialized maintenance equipment. Historically, FRA's method for 
applying its regulations and relevant statutes to this type of 
equipment has been consistent. To determine which regulatory and 
statutory requirements apply to specific equipment, FRA has 
traditionally looked at the use of the equipment and the purpose of the 
regulation or statute in question.
    Due to the unique design and the hybrid nature of much of this 
specialized maintenance equipment, which will likely continue to evolve 
and change, a combination of regulations and statutes are applicable to 
ensure that the equipment is safe to operate. The regulatory provisions 
applicable in some measure to this equipment include Title 49 Code of 
Federal Regulations (CFR) Parts 214, 221, 223, 229, 231, 232, and 240. 
In addition, statutory requirements contained in Title 49 United States 
Code (U.S.C.) Sections 20701, 20302, and 20303, also apply. This 
document is intended to clarify the application of these regulatory 
provisions and statutory requirements for the benefit of the regulated 
community and to notify them of FRA's enforcement expectations. FRA 
believes that providing clarification will assist the industry in 
avoiding similar future incidents. See Table 1 for a summary of the 
application of regulatory and statutory provisions for specialized 
maintenance equipment. Please note that Table 1 is included as a 
helpful summary to the reader, but is not intended to change or in any 
way restrict application of the regulatory or statutory provisions 
cited within.

Regulatory Application

    Due to the unique design of some self-propelled specialized 
maintenance equipment, it is sometimes difficult to determine whether 
the particular vehicle is a locomotive under FRA's various regulatory 
provisions. Virtually all of FRA's regulations contain a definition of 
``locomotive,'' however, the definition changes based on the purpose 
and scope of the particular regulation. If specialized maintenance 
equipment qualifies as a locomotive, FRA will enforce its regulations 
including testing, inspection, maintenance, and repair requirements. 
The determination as to whether a piece of equipment or a vehicle 
qualifies as a locomotive under a specific regulation is based on how 
the equipment is being used and the specific purpose of that 
regulation. Thus, a self-propelled piece of specialized maintenance 
equipment may be considered a locomotive under one regulatory provision 
while not being considered a locomotive under another. Likewise, if the 
equipment qualifies as a ``dual purpose vehicle,'' (See 49 CFR Part 
240), FRA will enforce the restrictions placed on those vehicles by 
Part 240.
    Similarly, if self-propelled maintenance equipment is used in its 
limited on-track maintenance capacity, the provisions contained in 49 
CFR Part 214, Subpart D, apply. However, if self-propelled maintenance 
equipment is used in the same capacity as a locomotive and is not 
engaged in an MOW activity, those regulations governing locomotives in 
Part 229 will apply to the power car. In addition, FRA will apply any 
applicable regulations to the other vehicles in MOW train sets that are 
not used to power the train based on FRA's determination as to the type 
of vehicle they most closely resemble.
49 CFR Part 214
    When being used as on-track roadway maintenance machines, 
specialized maintenance equipment must comply with 49 CFR Part 214, 
Subpart D: ``On-Track Roadway Maintenance Machines and Hi-Rail 
Vehicles.'' This subpart contains various requirements regarding the 
safety equipment required to be on such machines as well as provisions 
related to their design and operation, which are intended to prevent 
accidents and casualties. Section 214.527(a), which requires an initial 
inspection of the equipment, provides in part: ``The operator of an on-
track roadway maintenance machine shall check the machine components 
for compliance with this subpart, prior to using the machine at the 
start of the operator's shift.'' In addition, in-service brake system 
failures are addressed in Sec.  214.529(a): ``In the event of a total 
in-service failure of its primary braking system, an on-track roadway 
maintenance machine may be operated for the remainder of its tour of 
duty with the use of a secondary braking system or by coupling to 
another machine, if such operations may be done safely.''
49 CFR Part 221
    Part 221, which addresses the use of rear end marking devices, 
contains a very broad definition of what constitutes a locomotive. 
Under Sec.  221.5(c), a ``self-propelled unit designed to carry freight 
or passenger traffic'' is considered a locomotive. Thus, a self-
propelled vehicle designed to carry freight that is conducting a 
railroad operation on main track, whether coupled to other cars or not, 
is required to be equipped with a rear end marking device prescribed in 
Part 221.

[[Page 3909]]

49 CFR Part 223
    Under Part 223, which addresses glazing requirements, a locomotive 
is defined as ``a self-propelled unit of equipment designed primarily 
for moving other equipment,'' and does not include self-propelled 
passenger cars (See Sec.  223.5). Thus, the power car in an integrated 
rail grinder train would be considered a locomotive for purposes of 
Part 223, because it is designed primarily to haul the other MOW 
equipment in the train set. Consequently, power cars in these types of 
integrated MOW trains would be required to meet the locomotive glazing 
requirements contained in Part 223. Similarly, a piece of specialized 
maintenance equipment designed primarily to move other equipment would 
also be required to meet the Part 223 glazing provisions.
49 CFR Parts 229 and 232
    Part 229 (locomotive standards) and Part 232 (freight power brakes) 
contain similar definitions of ``locomotive.'' They both exempt ``hi-
rail, specialized maintenance, or other similar equipment'' from their 
requirements. If equipment is within this category, Parts 229 and 232 
would not apply. FRA has historically construed the exception for hi-
rail and specialized maintenance equipment very narrowly.
    FRA considers the specific use of the equipment and the purpose of 
each of the regulatory provisions when determining if the exception 
applies. Technical Bulletin (TB) 98-71, issued by FRA in August 1998, 
illustrates FRA's application of Part 229 in this manner. This TB makes 
clear that when specialized maintenance equipment is used outside its 
typical MOW function, it will be considered a locomotive under Part 
229. Thus, if a hi-rail or a piece of specialized maintenance equipment 
is used to haul freight over the railroad outside of its limited MOW 
operation or outside of repair facilities, then it would be considered 
a locomotive for purposes of Part 229. TB 98-71 recognizes that most 
specialized maintenance equipment cannot meet some of the locomotive 
safety standards contained in Part 229. Through its exercise of 
enforcement discretion, FRA set out those provisions of Part 229 that 
are applicable to such vehicles when they are used as traditional 
locomotives. The following list identifies those portions of Part 229 
that are applicable to specialized maintenance equipment when used as 
traditional locomotives outside their typical MOW function:
     Each self-propelled vehicle shall be inspected each 
calendar day when used and an inspection report and record shall be 
completed as described in Sec.  229.21;
     Each self-propelled vehicle shall receive a periodic 
inspection as described in Sec.  229.23, and all pertinent data is to 
be entered on an F6180.49A Locomotive Inspection and Repair Report, 
which shall be displayed under a transparent cover in the cab of the 
vehicle;
     The vehicle's air brake equipment must be cleaned and 
tested as often as conditions require, but not less frequently than 
required in Sec. Sec.  229.25, 229.27, and 229.29;
     The main reservoir must comply with Sec.  229.31 regarding 
either hammer and hydrostatic testing or pre-drilling of the reservoir;
     The vehicle must meet the general safety requirements of 
Sec. Sec.  229.41, 229.43, and 229.45;
     A fuel line safety cut-off device is required under Sec.  
229.93;
     As required by Sec.  229.117, the vehicle must have a 
speed indicator if it is operated at a speed that exceeds 20 mph;
     Interior cab noise must comply with Sec.  229.121;
     Vehicle headlights must be fully functional and if 
operated at speeds in excess of 20 mph over one or more public highway-
rail crossings, must comply with auxiliary light requirements Sec.  
229.125;
     The vehicle must be equipped with an audible warning 
device as required by Sec.  229.129;
     If operated at speeds in excess of 30 mph while hauling 
cars, the vehicle must be equipped with a working event recorder in 
compliance with Sec.  229.135;
     Wheel requirements under Sec. Sec.  229.73 and 229.75 
shall apply; and
     Piston travel requirements, if vehicle is so equipped, 
under Sec.  229.55 shall apply.
    FRA has historically applied Part 232 to specialized maintenance 
equipment when it is being used in the same manner as a locomotive and 
is engaged in a train movement, regardless of whether the movement is 
in connection with MOW service. Thus, FRA's application of the 
exception under Part 232 for ``hi-rail, specialized maintenance, or 
other similar equipment'' is even more narrow than its application 
under Part 229. The triggering event for coverage of Part 232 is 
whether the involved equipment is engaged in a train movement. If so, 
the power car (or unit) is considered a locomotive under Part 232 and 
the consist being moved by the power unit will be considered a train. 
As with any train movement, the power unit must be equipped with a 
brake system that permits the operator to apply and release the brakes 
on the cars being hauled. In addition, FRA requires the performance of 
appropriate brake inspections and tests when such equipment is engaged 
in train movements (such as travel to and from a work site). The type 
of brake test to be performed will depend on the distance that the 
train consist will travel (See 49 CFR 232.205 and 232.215). FRA also 
requires equipment used in MOW service to receive appropriate periodic 
maintenance and single car tests under the provisions contained in 
Subpart D of Part 232.
49 CFR Part 231
    This part governs the placement, number, and dimensions of safety 
appliances on rail equipment. This part applies to all equipment 
regardless of whether it is used in MOW service. If the piece of 
equipment falls within one of the specifically identified car types, 
then it would be required to meet the safety appliance requirements 
contained in that section of the regulation. However, due to the unique 
design and purpose of many pieces of equipment used in MOW service, 
most equipment being used in MOW service will be considered ``cars of 
special construction'' under Sec.  232.18 of this Part. Under this 
section, such equipment would be required to have, as nearly as 
possible based on the design limitations of the vehicle, the same 
complement of handholds, sill steps, ladders, hand brakes, and running 
boards as required for a car of the nearest approximate type.
49 CFR Part 240
    This Part governs certification of locomotive engineers and 
addresses the circumstances in which certified locomotive engineers are 
required to operate certain equipment. This Part contains a definition 
of ``locomotive'' that is similar to that contained in Parts 229 and 
232. However, the exception in Part 240 is for ``specialized roadway 
maintenance equipment'' and ``dual purpose vehicles operating in 
accordance with Sec.  240.104(a)(2)'' (See Sec.  240.7). ``Specialized 
roadway maintenance equipment'' is defined in Sec.  240.104(a)(1) as 
roadway maintenance equipment that does not have the capability to move 
railroad rolling stock. This type of equipment does not require the use 
of a certified locomotive engineer (LE).
    ``Dual purpose vehicle'' is defined in Part 240 as a piece of on-
track equipment that is capable of moving railroad rolling stock and 
may also

[[Page 3910]]

function as roadway maintenance equipment. The use of a dual purpose 
vehicle will determine whether it meets the exception contained in the 
definition of ``locomotive.'' Therefore, a railroad may be required to 
use a certified LE to operate the equipment under certain 
circumstances. Dual purpose vehicles may be considered locomotives 
under either Part 229 or Part 232, depending on the use of the 
equipment. However, that determination is separate from the 
determination under Part 240 as to whether a certified LE is required 
to operate the equipment.
    Section 240.104(a)(2) sets out three conditions that must be met in 
order to operate a dual purpose vehicle with an individual who is not a 
certified locomotive engineer. These conditions require that the dual 
purpose vehicle: (1) Be operated in conjunction with roadway 
maintenance and related MOW functions, including traveling to and from 
the work site; (2) move under the authority of railroad operating rules 
designated for the movement of roadway maintenance equipment that 
ensure the protection of the equipment from train movements; and (3) be 
operated by an individual trained and qualified in accordance with 
Sec. Sec.  214.341, 214.343, 214.355. In the preamble to the 1999 final 
rule related to Part 240, FRA discussed the provision permitting the 
movement of dual purpose vehicles to and from a work site (See 64 FR 
60969 (November 8, 1999)). FRA noted that although Sec.  240.104(a)(2) 
does not place a limit on the distance or type of track that a person 
who is not a certified LE may operate dual purpose equipment, the 
provisions do provide limitations based on the type of service being 
performed. Therefore, when the service falls outside traditional MOW 
service, a certified LE would be required to operate the equipment.
    FRA recognizes that most specialized maintenance equipment is 
unique in both its design and operation, and that to require a 
certified LE to operate such equipment when it is moved from one work 
site to another would be operationally restrictive and potentially 
unsafe since in most instances, an LE certified under Part 240 will not 
be familiar with the specific operation of specialized maintenance 
equipment. Thus, safety is better served by permitting an individual 
familiar with the specific piece of equipment to operate it from one 
work site to another with the aid of a pilot, where appropriate. 
Although Federal regulations do not specifically address the 
territorial qualifications of either the operator or any pilot that may 
be utilized when operating a dual purpose vehicle under the provisions 
of Sec.  240.104(a)(2), FRA believes that safe railroading dictates 
that such individuals should be qualified and familiar with the 
territory over which the equipment will be operated. Thus, FRA strongly 
recommends and encourages the use of individuals that are qualified on 
the territory over which the equipment will be operated when such 
equipment is traveling to and from a work site.

Statutory Application

49 U.S.C. 20701
    Section 20701 states that:
[a] railroad carrier may use or allow to be used a locomotive or 
tender on its railroad line only when the locomotive or tender and 
its parts and appurtenances--(1) are in proper condition and safe to 
operate without unnecessary danger of personal injury; (2) have been 
inspected as required under this chapter and regulations prescribed 
by the Secretary of Transportation under this chapter; and (3) can 
withstand every test prescribed by the Secretary under this chapter.

Courts have consistently found that vehicles capable of moving other 
equipment are considered to be locomotives under 49 U.S.C. 20701 when 
they are used in the same capacity as a locomotive. This conclusion is 
irrespective of the vehicle's assembly or appearance, and whether or 
not it is engaging in MOW service. Thus, even when a unit used to power 
equipment does not look like a traditional locomotive (e.g. burro 
cranes, hi-rail vehicles, track mobiles), or has been modified to be an 
integral component of a MOW trainset (e.g., power unit of an integrated 
rail grinder train, specially modified locomotive, etc.), such 
equipment is considered to be a locomotive and must therefore comply 
with the statutory requirements contained in Sec.  20701 .
    In situations where this specialized maintenance equipment is 
determined to be excluded from the specific coverage of FRA's 
regulations but is being used as a locomotive, FRA directly applies the 
statutory requirements of Sec.  20701. In these situations, the safety 
rationale supporting the regulatory requirements contained in 49 CFR 
parts 229 and 214 that concern locomotives and roadway maintenance 
machines, may be relevant because the equipment is being used in a 
similar manner. Accordingly, when enforcing this statutory provision, 
FRA will utilize the requirements contained in 49 CFR parts 229 and 214 
as guidance in determining whether the involved equipment is safe to 
operate. This approach was specifically identified when FRA issued the 
Locomotive Safety Standards, and has been applied in this manner since 
that time. The March 1980 preamble to the final rule on Locomotive 
Safety Standards states that statutory provisions are applicable to 
specialized maintenance equipment (See 45 FR 21093 (March 31, 1980)). 
The preamble discusses enforcement of the statutory provision via 
issuance of a Special Notice for Repair. Historically, FRA has also 
enforced this provision by assessing civil penalties directly under the 
statutory provision when serious noncompliance is discovered. FRA 
intends to continue this practice.
49 U.S.C. 20302 and 20303
    Sections 20302 and 20303 of Title 49 of the U.S.C. contain specific 
requirements related to safety appliances on all vehicles used by a 
railroad. Section 20302(a)(4) requires that a locomotive (including a 
power car in a MOW train set) be equipped with a power-driving wheel 
brake and appliances for operating the train-brake system. Section 
20302(a)(5) requires that the vehicles in a train be equipped with 
power brakes and that all the vehicles on an associated train line be 
equipped with power brakes, as per 20302(a)(5). In addition, Section 
20302(a)(1) requires that vehicles be equipped with efficient hand 
brakes, sill steps, automatic couplers, and other safety appliances 
that ensure the safety of employees as they mount and dismount 
equipment.
    Section 20303 restricts the use and movement of vehicles with 
defective or inoperative safety appliances. This section only permits 
the movement of a vehicle with defective safety appliances to the 
nearest available place where the necessary repairs can be performed. 
Guidelines for determining locations where necessary repairs can be 
performed can be found in 49 CFR 232.15(f). The guidance provided in 
the Federal regulations related to freight power brakes is based on the 
voluminous case law related to the court's historical application of 
the statutory mandate. For a complete discussion of this guidance, 
interested parties are encouraged to read the preamble to the final 
rule related to Part 232 (See 66 FR 4125-29, 4152-53 (January 21, 
2001)). Sections 20302 and 20303 address all vehicles used on rail 
lines and are directly applicable to MOW equipment. Civil penalty 
violations have been and will continue to be issued directly under 
these sections when appropriate.


[[Page 3911]]


    Issued in Washington, DC on January 22, 2007.
Jo Strang,
Associate Administrator for Safety.
[FR Doc. E7-1126 Filed 1-25-07; 8:45 am]
BILLING CODE 4910-06-P