[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Notices]
[Pages 35108-35110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14239]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[FRA Emergency Order No. 27, Notice No. 1]


Gulf, Colorado & San Saba Railway; Emergency Order To Prevent 
Operation of Trains Over the Highway-Rail Grade Crossing at U.S. 
Highway 87 (DOT Crossing No. 024816B, Milepost 66.65) in Brady, TX

    The Federal Railroad Administration (FRA) of the United States 
Department of Transportation (DOT) has determined that public safety 
compels issuance of this Emergency Order requiring the Gulf, Colorado & 
San Saba Railway (GCSR) of Brady, Texas, to discontinue operation of 
any train or rail vehicle under any circumstances over the highway-rail 
grade crossing at U.S. Highway 87 (DOT Crossing No. 024816B, milepost 
66.65) on the GCSR rail line until GCSR implements and complies with 
procedures for safe operation over the crossing as approved by FRA, or 
restores the proper functioning of the grade crossing warning system at 
U.S. Highway 87 and brings the grade crossing warning system into full 
compliance with FRA regulations, as determined by FRA.

Authority

    Authority to enforce Federal railroad safety laws has been 
delegated by the Secretary of Transportation to the Federal Railroad 
Administrator. 49 CFR 1.49. Railroads are subject to FRA's safety 
jurisdiction under the Federal railroad safety laws, 49 U.S.C. 20102, 
20103. FRA is authorized to issue emergency orders where an unsafe 
condition or practice ``causes an emergency situation involving a 
hazard of death or personal injury.'' 49 U.S.C. 20104. These orders may 
impose such ``restrictions and prohibitions * * * that may be necessary 
to abate the situation.'' Ibid.

Background

    GCSR is subject to the jurisdiction of FRA. The railroad operates 
on 67.5 miles of main line track between Lometa, Texas, and Brady, 
Texas. In addition to its main line track, GCSR operates on the Sand 
House Spur in Brady, which is approximately two miles in length. The 
American Railroads Corporation, headquartered in Barrington, Illinois, 
owns and operates GCSR. The railroad solely transports freight, and its 
primary commodities include sand and agricultural products. GCSR has 
designated all track over which it operates as excepted track. See 49 
CFR 213.4. By regulation and posted notice, train speeds are restricted 
to 10 m.p.h. This includes the trackage over the highway-rail grade 
crossing at U.S. Highway 87. However, even trains traveling through a 
grade crossing at slow speeds are not able to stop suddenly to avoid 
vehicles in the crossing. FRA has promulgated regulations to protect 
and adequately warn highway users attempting to cross a grade crossing 
about a train's approach to, or occupancy of, the crossing so that a 
potentially deadly accident can be prevented. See 49 CFR part 234.
    U.S. Highway 87 is a busy four-lane highway in Brady, which GCSR 
has acknowledged in a June 4, 2012, letter to FRA's Regional 
Administrator for Region 5. The posted highway speed limit is 55 m.p.h. 
As of 2010, the annual average daily traffic was approximately 4,200 
vehicles. Moreover, the Texas Department of Transportation (TXDOT) 
estimates that approximately 16 school buses currently traverse the 
crossing daily, Monday through Friday. The track adjacent to U.S. 
Highway 87 is routinely used to service a nearby industry. During an 
inspection in April 2012, FRA inspectors found freight cars ``spotted'' 
on the industry track immediately on both sides of the crossing that 
either did not have handbrakes applied or had insufficient handbrakes 
applied to prevent them from rolling free.
    The active warning system for the highway-rail grade crossing at 
U.S. Highway 87 consists of mast-mounted flashing lights and audible 
warning bells. According to the information available to FRA, the 
active warning system at U.S. Highway 87 has been without power and 
out-of-service since at least April 1, 2010. In GCSR's June 4th letter, 
the railroad contends that the crossing has been out-of-service since 
the railroad was purchased by the current owners, and that the line was 
rarely used. Only in the last 24 months, according to GCSR, has 
business

[[Page 35109]]

expanded requiring the regular use of the U.S. Highway 87 grade 
crossing.
    Federal grade crossing signal system safety regulations require 
that ``[w]hen any essential component of a highway-rail grade crossing 
warning system fails to perform its intended function, the cause shall 
be determined and the faulty component adjusted, repaired, or replaced 
without undue delay.'' 49 CFR 234.207(a). Further, the railroad must 
take appropriate action, such as stopping and flagging the crossing, 
until the repair of an essential component has been made. 49 CFR 
234.207(b).
    FRA and TXDOT safety inspectors have taken exception several times 
to the condition of the active warning system at the U.S. Highway 87 
grade crossing. However, GCSR has repeatedly failed to institute 
necessary repairs to restore the proper functioning of the active 
warning system. On July 6, 2011, a TXDOT inspector cited GCSR for its 
failure to repair the warning system without undue delay. On January 
25, 2012, FRA and TXDOT conducted a re-inspection and again cited GCSR 
for its failure to repair the warning system without undue delay. At 
this time, GCSR representatives were provided a detailed explanation of 
the requirements of the Federal regulations. Yet, follow-up inspections 
by FRA on March 20 and April 17, 2012, revealed that nothing had been 
done to bring the active warning system back into proper functioning.
    On May 21, 2012, FRA sent a letter to GCSR notifying the railroad 
of the need to restore the active warning devices at the U.S. Highway 
87 highway-rail grade crossing as well as those at a separate crossing 
(FM 3533) to proper functioning within 10 days of the date of the 
letter. FRA clearly stated that failure to act within the time 
prescribed would result in the issuance of an emergency order ceasing 
operations over the identified crossings because of the serious safety 
concerns about the condition of the crossing warning systems. GCSR 
failed to respond within the time prescribed, but did respond by letter 
dated June 4, 2012. GCSR noted that the crossing at FM 3533 had been 
repaired prior to the receipt of FRA's May 21st letter, but the 
railroad recognized that it had failed to restore the active warning 
system to its proper functioning at the U.S. Highway 87 highway-rail 
grade crossing. GCSR contended that it has not restored the warning 
system to proper functioning at U.S. Highway 87 because it has been 
waiting for TXDOT to approve a crossing upgrade. The railroad also 
stated that it has used safe flagging procedures with crews on the 
ground facing traffic in both directions. Although GCSR states that it 
has stop and flag procedures in place, TXDOT has received multiple 
reports concerning GCSR trains passing through the crossing at U.S. 
Highway 87 without flagmen present. While FRA understands the desire to 
upgrade the crossing, this circumstance cannot prevent GCSR from taking 
the necessary steps to protect its employees and the general public 
from the serious hazards created by the out-of-service active warning 
systems at the U.S. Highway 87 grade crossing. As of June 5, 2012, FRA 
confirmed that still nothing has been done to bring the active warning 
system back into proper functioning.

Finding and Order

    The results of inspections performed by FRA and TXDOT inspectors of 
the active warning devices installed at the U.S. Highway 87 grade 
crossing at milepost 66.65 on GCSR line have led FRA to conclude that 
continued use of this highway-rail grade crossing by the railroad poses 
an imminent and unacceptable threat to public safety. Furthermore, a 
past pattern of failure by GCSR to comply with Federal grade crossing 
signal system safety regulations persuades FRA that reliance upon the 
cooperation of GCSR to provide alternate protection for highway users 
until completion of an anticipated upgrade to the active warning 
devices at the U.S. Highway 87 grade crossing is inadequate to protect 
public safety. I, therefore, find that the unsafe conditions discussed 
above create an emergency situation involving a hazard of death or 
injury to persons. Accordingly, pursuant to the authority of 49 U.S.C. 
20104, delegated to me by the Secretary of Transportation (49 CFR 
1.49), it is ordered that Gulf, Colorado & San Saba Railway shall 
discontinue, and shall not permit under any circumstances, the 
operation of trains over the U.S. Highway 87 grade crossing (DOT 
Crossing No. 024816B) at milepost 66.65 while this Emergency Order 
remains in effect. I direct that a copy of this order be posted in a 
public location at the railroad's office and a copy of the order be 
provided to each employee of the railroad.

Relief

    The GCSR may obtain full relief from this Emergency Order by taking 
the following actions:
    (1) Restore to their proper function the active warning devices 
currently installed, or complete installation of upgraded active 
warning devices, at the U.S. Highway 87 grade crossing at milepost 
66.65 to ensure proper functioning of such devices as they are relied 
upon by highway users.
    (2) Submit written certification to FRA's Regional Administrator 
for Region 5 that all necessary repairs and inspections of the active 
warning devices at the U.S. Highway 87 grade crossing have been 
performed and that all required tests are up-to-date.
    (3) Obtain approval from the Federal Railroad Administrator that 
all of the requirements of this Emergency Order have been met and 
properly performed. To obtain relief, GCSR should inform the Federal 
Railroad Administrator in writing, with a copy to FRA's Regional 
Administrator for Region 5, that it believes all of the requirements of 
this Emergency Order have been met. FRA will conduct inspections of the 
active warning devices at the U.S. Highway 87 grade crossing and will 
inform GCSR in writing whether this Emergency Order will be lifted. If 
FRA does not lift the order, the written response will specifically 
describe what additional measures need to be taken to meet all of the 
requirements of this Emergency Order.

Partial Relief

    In order for FRA to consider granting partial relief from this 
Emergency Order, the GCSR must submit a written plan for approval to 
FRA's Regional Administrator for Region 5 to provide alternate 
protection for highway users at the U.S. Highway 87 grade crossing. 
GCSR shall not resume any rail operations over U.S. Highway 87 until 
obtaining approval of its written plan to provide temporary alternate 
protection to highway users of the U.S. Highway 87 grade crossing by 
the Regional Administrator for FRA's Region 5. Any partial relief 
provided will, however, remain subject to GCSR compliance with its 
approved written plan to provide alternate protection to highway users 
of the U.S. Highway 87 grade crossing. Failure to comply with any 
approved plan will result in the partial relief being revoked.

Penalties

    Any violation of this order or the terms of any approved written 
plan pursuant to this order to provide alternate protection to highway 
users of the U.S. Highway 87 grade crossing shall subject the person 
committing the violation to a civil penalty of up to $100,000 before 
June 25, 2012, and $105,000 on or after June 25, 2012. 49 U.S.C. 21301. 
Any individual who willfully violates a prohibition stated in this 
order is subject to civil penalties under 49 U.S.C. 21301. In addition, 
such an individual whose violation of

[[Page 35110]]

this order demonstrates the individual's unfitness for safety-sensitive 
service may be removed from safety-sensitive service on the railroad 
under 49 U.S.C. 20111. If appropriate, FRA may pursue criminal 
penalties under 49 U.S.C. 522(a) and 49 U.S.C. 21311(a), as well as 18 
U.S.C. 1001, for the knowing and willful falsification of a report 
required by this order. FRA may, through the Attorney General, also 
seek injunctive relief to enforce this order. 49 U.S.C. 20112.

Effective Date and Notice to Affected Persons

    This Emergency Order shall take effect at 12:01 a.m. C.S.T. on June 
7, 2012, and apply to all operations of trains or vehicles on or after 
that time. Notice of this Emergency Order will be provided by 
publishing it in the Federal Register. Copies of this Emergency Order 
will be sent by mail or email prior to publication to the Gulf, 
Colorado & San Saba Railway and the American Railroads Corporation.

Review

    Opportunity for formal review of this Emergency Order will be 
provided in accordance with 49 U.S.C. 20104(b) and section 554 of title 
5 of the United States Code. Administrative procedures governing such 
review are found at 49 CFR part 211. See 49 CFR 211.47, 211.71, 211.73, 
211.75, and 211.77.

    Issued in Washington, DC, on June 6, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-14239 Filed 6-7-12; 4:15 pm]
BILLING CODE 4910-06-P