[Federal Register Volume 78, Number 152 (Wednesday, August 7, 2013)]
[Notices]
[Pages 48218-48224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19215]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[FRA Emergency Order No. 28, Notice No. 1]


Emergency Order 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

    The Federal Railroad Administration (FRA) of the United States 
Department of Transportation (DOT) has determined that public safety 
compels issuance of this Emergency Order (EO), which requires railroads 
operating on the general system to implement additional processes and 
procedures to ensure that certain unattended trains and vehicles \1\ on 
mainline track or mainline siding outside of a yard or terminal are 
properly secured against unintended movement. FRA re-examined its 
regulations governing the securement of such equipment in light of the 
July 6, 2013, derailment in Lac-M[eacute]gantic, Quebec, Canada, which 
demonstrated the terrible consequences that can arise when a railroad 
accident results in a sudden release of flammable liquids. FRA's 
inspection data since January 2010 shows significant non-compliance 
with FRA's securement regulations, 49 CFR 232.103(n), with nearly 4,950 
recorded defects in that time. Moreover, FRA has seen a number of 
serious accidents during rail transportation of flammable liquids since 
2009, and there has been significant growth in these types of rail 
shipments since 2011. These factors lead FRA to the conclusion that 
additional action is 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. As a result, FRA is ordering that each railroad take the 
following actions on mainline track or mainline siding outside of a 
yard or terminal to ensure

[[Page 48219]]

the safe transportation by rail of hazardous material:
---------------------------------------------------------------------------

    \1\ A vehicle, as defined in 49 U.S.C. 20301, ``means a car, 
locomotive, tender, or similar vehicle.''
---------------------------------------------------------------------------

    1. No train or vehicle transporting hazardous materials as 
described in Appendix A shall be left unattended on a mainline track or 
mainline siding outside of a yard or terminal until the railroad 
develops, adopts, complies with and makes available to FRA upon 
request, a plan that identifies specific locations and circumstances 
when such trains or vehicles may be left unattended. The plan shall 
contain a sufficient safety justification for any determination 
allowing such trains or vehicles to be unattended. FRA will monitor 
such plans and if FRA determines that adequate justification is not 
provided, the railroad shall ensure that trains and equipment are 
attended until appropriate modifications to the plan are completed. FRA 
does not intend to grant approval to any plan. Each railroad shall 
notify FRA when it has developed a plan under this provision prior to 
the railroad operating pursuant to the plan.
    2. Develop processes for the securement of unattended trains or 
vehicles transporting hazardous materials as described in Appendix A on 
mainline track or mainline siding outside of a yard or terminal if 
permitted by the railroad's plan required by this order that contains 
the following requirements:
    a. The controlling locomotive cab must be locked or the reverser on 
the controlling locomotive must be removed and secured, and
    b. Employees who are responsible for securing trains and vehicles 
transporting hazardous materials as described in Appendix A must 
communicate to the train dispatcher 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; train dispatchers must record the information 
provided; and train dispatchers or other qualified railroad employees 
must verify and confirm with the train crew that the securement meets 
the railroad's requirements.
    3. 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 vehicles and ensure the means of verifying that 
number is appropriate.
    4. Implement operating rules and practices requiring the discussion 
of securement for any job that will impact or require the securement of 
any train or vehicle in the course of the work being performed.
    5. Develop procedures to 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.
    Additionally, each railroad must provide notice of this EO to all 
employees affected by this EO to ensure that they have knowledge of the 
EO's requirements.

Authority

    Authority to enforce Federal railroad safety laws has been 
delegated by the Secretary of Transportation to the Administrator of 
FRA. 49 CFR 1.89. Railroads are subject to FRA's safety jurisdiction 
under the Federal railroad safety laws. 49 U.S.C. 20101, 20103. FRA is 
authorized to issue emergency orders where an unsafe condition or 
practice ``causes an emergency situation involving a hazard of death, 
personal injury, or significant harm to the environment.'' 49 U.S.C. 
20104. These orders may immediately impose ``restrictions and 
prohibitions . . . that may be necessary to abate the situation.'' Id.

Lac-M[eacute]gantic Derailment

    FRA has re-examined its requirements for securing trains and 
vehicles on mainline track and mainline sidings outside of a yard or 
terminal in the aftermath of the catastrophic July 6, 2013, accident 
involving loaded tank cars containing petroleum crude oil that occurred 
in the town of Lac-M[eacute]gantic, Quebec, Canada, on track owned by 
Montreal, Maine & Atlantic Railway Corporation (MMA), a company 
incorporated in the United States. While Canadian authorities are still 
investigating the accident and no final conclusions have been made, the 
following is known based on preliminary information released by the 
Transportation Safety Board of Canada.
    According to Rail Safety Advisory Letters issued by the 
Transportation Safety Board of Canada on July 19, 2013, the incident is 
summarized as follows. At approximately 10:45 p.m. Eastern Daylight 
Time (EDT) on July 5, 2013, MMA train 2 was proceeding eastward from 
Montreal, Quebec, to St. John, New Brunswick. The train was 
approximately 4,700 feet long and weighed over 10,000 tons. It 
consisted of five locomotives, a loaded box car, and 72 loaded tank 
cars containing petroleum crude oil (U.S. DOT Hazard Class 3, UN 1267). 
At approximately 11:00 p.m. the train stopped near milepost 7.40 near 
Nantes, Quebec. At that location the operator of the train secured it 
and departed, leaving the train unattended on mainline track with a 
descending grade of approximately 1.2 percent.
    At around 11:50 p.m. a local resident reported a fire on the 
controlling locomotive (MMA 5017) of 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.
    At approximately 1:00 a.m. the next day (the early morning of July 
6th) it appears that the train began rolling and picking up speed down 
the descending grade toward the town of Lac-M[eacute]gantic, Quebec, 
which sits approximately 30 miles from the United States-Canada border. 
Near the center of town, the box car and 63 of the loaded tank cars 
derailed. The locomotives, which separated from the train, traveled an 
additional \1/2\ mile before coming to a stop. A number of derailed 
tank cars released product resulting in multiple explosions and 
subsequent fires. At this time, it is estimated that there were 42 
fatalities and that 5 persons are still missing. There was also 
extensive damage to the town, and approximately 2,000 people were 
evacuated from the surrounding area. While the investigation is ongoing 
and the Transportation Safety Board of Canada has not reached any final 
conclusions, it has made a determination that the braking force applied 
to the train was insufficient to hold it on the 1.2-percent descending 
slope between Nantes and Lac-M[eacute]gantic.
    In response to this accident, Transport Canada (the Canadian 
government department responsible for regulating transportation safety 
in Canada) issued an emergency railroad directive pursuant to Section 
33 of the Canadian Railway Safety Act.\2\ While Transport Canada 
explained in the emergency directive that the cause of the accident in 
Lac-M[eacute]gantic remains unknown, the emergency directive stated 
that:

    \2\ Available online at: http://www.tc.gc.ca/eng/mediaroom/backgrounders-safety-locomotives-7292.html. Additionally, in 
response to this accident, the Transportation Safety Board of Canada 
issued Rail Safety Advisory Letter--09/13 regarding the securement 
of equipment and trains left unattended; available online at: http://www.tsb.gc.ca/eng/medias-media/sur-safe/letter/rail/2013/r13d0054/r13d0054-617-09-13.asp.
---------------------------------------------------------------------------

    [I]n 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

[[Page 48220]]

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 operating 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 is 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.
    In addition, 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. 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 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.
    DOT is 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. Through this EO, FRA is addressing the immediate 
dangers that arise from unattended equipment that is left unsecured. 
Additionally, FRA and the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) are issuing a joint Safety Advisory to railroads 
and commodity shippers detailing eight recommended actions the industry 
should take to better ensure the safe transport of hazardous materials. 
These recommendations include the following: 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; a thorough review of all railroad operating procedures, 
testing and operating rules around 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 identifying 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' and carriers safety and security plans. Finally, FRA 
is convening an emergency meeting of FRA's Railroad Safety Advisory 
Committee to begin the deliberative process with FRA's stakeholders, 
including railroad management, railroad labor, shippers, car owners, 
and others, as the agency considers recommendations in the Safety 
Advisory that should be made a part of its regulations.

Safety Concerns Arising Out of the Lac-M[eacute]gantic Derailment

    Generally, the transportation of hazardous materials by rail is 
extremely safe. The vast majority of hazardous materials shipped by 
rail each year arrive at their destinations safely and without 
incident. Indeed, in calendar year 2011, there were only 20 accidents 
in which a hazardous material was released out of approximately 2.2 
million shipments of hazardous material transported by rail 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.\3\ Freight 
railroads in the United States also transport a substantial amount and 
variety of hazardous materials, including materials poisonous by 
inhalation (PIH), materials or toxic by inhalation (TIH), and explosive 
materials. Moreover, an increasing proportion of the hazardous 
materials being transported by rail is classified as flammable.\4\
---------------------------------------------------------------------------

    \3\ As an example, MMA operates both in 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.
    \4\ 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.
---------------------------------------------------------------------------

    The MMA train in the Lac-M[eacute]gantic incident was transporting 
72 carloads of petroleum crude oil with five locomotives 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 
units of cars or by a unit train consisting virtually entirely of tank 
cars containing crude oil. Crude oil is often classified by an offeror 
as a flammable liquid; per PHMSA's Hazmat Regulations (HMR), however, 
its packing group can be I, II, or III depending on the blend of 
constituent crude oils. According to the Association of American 
Railroads (AAR), crude oil traffic increased 443 percent in the United 
States between 2005 and 2012. 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 65,600 in 2011 to approximately 257,450 in 2012. 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 also to pipeline connections, most notably to connections 
located in Oklahoma. Crude oil is also shipped via rail to refineries 
on the East Coast and, to a lesser extent, refineries in other regions 
of the U.S.\5\
---------------------------------------------------------------------------

    \5\ See AAR's May 2013 paper ``Moving Crude Oil by Rail'' 
available online at: https://www.aar.org/keyissues/Documents/Background-Papers/Crude-oil-by-rail.pdf.
---------------------------------------------------------------------------

    All indications from the U.S. Energy Information Administration 
(EIA) within the U.S. Department of Energy are that rail export 
capacity for Bakken crude oil from the Williston Basin will continue to 
expand to meet production.\6\

[[Page 48221]]

Rail exports from the North Dakota region are forecast to increase over 
the next two years (as are pipeline exports). Much of the near-term 
growth in rail originations right now is a function of how quickly tank 
car manufacturers can produce new cars to meet the demand for 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, and overall production of crude oil 
in that region, and is also dependent on whether, or how quickly, 
additional pipeline export 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.
---------------------------------------------------------------------------

    \6\ 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.
---------------------------------------------------------------------------

    As demonstrated by the Lac-M[eacute]gantic derailment, in a 
catastrophic incident, crude oil is problematic when released because 
it is flammable. This risk is compounded because it is commonly shipped 
in large units. Similar dangers exist with other hazardous materials 
such as ethanol, which is another flammable liquid that is commonly 
transported by rail. More carloads of ethanol were transported via rail 
than any other hazardous material in 2012. Ethanol experienced an 
increase in traffic of 442 percent between 2005 and 2010. Although in 
2012 the number of carloads dropped by 11 percent from 2010 levels, 
there were still approximately 366,000 carloads transported by rail. 
Since 2009, there have been at least four serious mainline derailments 
resulting in the breach of tank cars containing ethanol. While FRA 
recognizes that none of these four derailments resulted from a roll-
away situation, they are instructive on the destructive potential of a 
derailment involving tank cars containing flammable products:
     On June 19, 2009, in Cherry Valley, IL, 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 February 6, 2011, in Arcadia, OH, a Norfolk Southern 
Railway Co. (Norfolk Southern) 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 July 11, 2012, in Columbus, OH, a Norfolk Southern 
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 August 5, 2012, in Plevna, MT, a BNSF Railway Co. train 
derailed 18 cars while en route from Baker, MT. 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.
    Although these accidents were serious, their results had potential 
for more catastrophic outcomes. The catastrophic releases created the 
potential for additional deaths, injuries, property damage, and 
environmental damage.
    There are other hazardous materials that have similar potential for 
catastrophic 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 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, MD. 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, resulting in the tunnel collapsing.
     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, ND due to a breaking of the rail at a joint. 
Five of these tank cars ruptured catastrophically, resulting 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 
National Transportation Safety Board (NTSB) were $8 million.
     On June 28, 2004, near Macdona, TX, a Union Pacific 
Railroad Company train passed a stop signal and collided with a BNSF 
train. A chlorine car was punctured and the chlorine gas that was 
released killed three and injured 32.
     On January 6, 2005, in Graniteville, SC, a Norfolk 
Southern train collided with another Norfolk Southern 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.
    While train accidents involving hazardous materials are caused by a 
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 2009 through 2012, 35.7 percent of train accidents were human 
factor-caused. With regard to the securement of unattended equipment, 
specifically, FRA accident data indicates that approximately 8.5 
percent of human factor-caused train accidents from calendar year 2011 
until April 2013 were the result of improper securement. This EO is 
intended 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.

Securement Requirements

    As previously noted, FRA has issued regulations designed to ensure 
that trains and vehicles are properly secured before being left 
unattended. See Sec.  232.103(n). ``Unattended equipment'' is defined 
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) 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 and 
further requires the application of a sufficient number of hand brakes 
to hold the equipment with the air brakes released and the ventilation 
of the brake pipe pressure to zero with the angle cock opened on one 
end of a cut of cars when not connected to a locomotive or other

[[Page 48222]]

compressed air source. The regulations also require railroads to 
develop a process or procedure for verifying that the hand brakes that 
are 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 requires each railroad to adopt and comply with 
instructions addressing the throttle position, status of the reverse 
lever (commonly referred to as a ``reverser''), position of the 
generator field switch, status of the independent brakes, position of 
the isolation switch, and position of the automatic brake valve of an 
unattended locomotive. See Sec.  232.103(n)(4).
    In FRA's view, these regulations--when followed--substantially 
reduce the risk of movement of unattended equipment. However, FRA has 
found there is significant non-compliance among the railroads with 
respect to FRA's securement regulations. With limited resources, FRA 
can inspect only a small percentage of trains and vehicles for 
regulatory compliance. However, even with its limited resources, FRA 
has recorded nearly 4,950 securement defects in the course of its 
inspections since January 2010, an average of approximately 1,483 
defects per year. With increased shipments of hazardous materials such 
as crude oil and ethanol, securement non-compliance, particularly on 
mainline track and mainline sidings outside of a yard or terminal, has 
become a serious, immediate safety concern. Therefore, additional 
measures are necessary to protect the health and safety of railroad 
employees, the general public, and the environment.
    First, in this EO, FRA is prohibiting railroads from leaving trains 
or vehicles that are transporting hazardous materials as described in 
Appendix A unattended 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. 
The plan must contain sufficient analysis of the safety risks and any 
mitigating circumstances the railroad has considered in making its 
determination. FRA does not intend to grant approval to any plan, per 
se. However, FRA will monitor such plans and if FRA determines that 
adequate justification is not provided, the railroad shall ensure that 
trains and equipment are attended until appropriate modifications are 
made to the railroad's plan.
    Second, FRA is requiring railroads to develop specific processes 
for employees responsible for securing any unattended train or vehicles 
transporting hazardous materials as described in Appendix A that must 
be left on mainline track or a mainline siding outside of a yard or 
terminal. The employees responsible for securing the train or vehicles 
must lock the controlling locomotive cab door before leaving it 
unattended or remove and secure the reverser. The reverser is the 
directional control for the locomotive. Removing it would put the 
locomotive in neutral, preventing it from moving forward or backward 
under the power of the engine. Additionally, employees must communicate 
to the train dispatcher the number of hand brakes applied, the tonnage 
of the train or vehicle, the grade and terrain features of the track, 
any other relevant weather conditions, and the type of equipment being 
secured. The dispatcher is then required to record the information 
provided by the employee. Finally, the dispatcher or other qualified 
railroad employee must verify and confirm with the train crew that the 
securement meets the railroad's requirements. This requirement provides 
a check on those individuals setting hand brakes to ensure appropriate 
securement procedures are followed. The requirement is similar to FRA's 
existing regulations that require employees to report to the train 
dispatcher when a main track switch in non-signaled territory has been 
restored to normal position and locked. FRA believes this type of 
notification and verification requirement will help ensure that 
employees responsible for securing equipment containing hazardous 
materials will follow appropriate procedures because the employee will 
need to fully consider the securement procedures in order to relay what 
was done to the dispatcher. Further, the dispatcher or other 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.
    Third, this E.O. requires that railroads 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 that railroads 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. FRA's concern is that 
existing railroad processes and procedures related to setting and 
verifying hand brakes on unattended trains and equipment may not be 
sufficient to hold all trains and vehicles in all circumstances. FRA 
expects that the procedures and number of hand brakes required to be 
set will vary significantly, depending on a variety of factors, 
including, but not limited to: The length and weight of the train or 
vehicle(s), the location, the grade and other terrain features of the 
track, the weather conditions, the type of equipment being secured, and 
whether the hand brakes apply on one or more trucks of a piece of 
equipment. The procedures should also ensure that an additional margin 
of safety is provided when determining the number of hand brakes to be 
set in order to compensate for the differing ability of individuals to 
set a hand brake at a specified level. FRA also expects railroads to 
develop appropriate procedures to be followed by their employees to 
test or verify that the number of hand brakes set will hold the 
equipment with the air brakes released.
    Fourth, this E.O. requires railroads to implement operating rules 
and practices requiring the job briefing of securement among 
crewmembers and other involved railroad employees before engaging in 
any job that will impact or require the securement of any train or 
vehicle in the course of the work being performed. This requirement is 
analogous to other Federal regulations that require crewmembers 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 crewmembers 
and other involved railroad employees are aware of what is necessary to 
properly secure the equipment in compliance with Sec.  232.103(n).
    Finally, FRA is requiring railroads to develop procedures to ensure 
that a qualified railroad employee inspects all equipment that any 
emergency responder has been on, under, or

[[Page 48223]]

between for proper securement before the rail equipment or train is 
left unattended. One of the facts that has come to light in the 
aftermath of the Lac-M[eacute]gantic derailment is that first 
responders were at milepost 7.4 near Nantes (along with an MMA 
employee) to check a report of a fire on the train. This was well after 
the operator had secured the train and left it unattended. Because it 
may be necessary for emergency responders to modify the state of the 
equipment if it is necessary for them to go on, under, or between 
equipment in order to perform their jobs, it is critical for the 
railroad to have a qualified employee inspect the equipment after the 
emergency responders have completed their jobs to ensure that the 
equipment is properly secured before it is again left unattended.

Finding and Order

    While FRA recognizes that the transportation of hazardous materials 
by rail is extremely safe and that the vast majority of hazardous 
materials shipped by rail each year arrive at their destinations safely 
and without incident, FRA finds that there are gaps in the regulatory 
scheme that create an emergency situation involving a hazard of death, 
personal injury, or significant harm to the environment, with respect 
to securement of unattended vehicles and trains transporting a 
hazardous material of the type described in Appendix A to this E.O. on 
mainline track and mainline sidings outside of a yard or terminal. 
Accordingly, pursuant to the authority of 49 U.S.C. 20104, delegated to 
the FRA Administrator by the Secretary of Transportation, 49 CFR 1.89, 
it is hereby ordered that each railroad must institute and carry out 
the following measures, effective within 30 days after the date of this 
order:
    1. No train or vehicles transporting the type and quantity of 
hazardous materials described in Appendix A (Appendix A Materials) 
shall be left unattended on a mainline track or mainline siding outside 
of a yard or terminal until the railroad develops, adopts, complies 
with and makes available to FRA upon request a plan that identifies 
specific locations and circumstances when such trains or vehicles may 
be left unattended. The plan shall contain a sufficient safety 
justification for any determination allowing such trains or vehicles to 
be unattended. FRA will monitor such plans and if FRA determines that 
adequate justification is not provided, the railroad shall ensure that 
trains and equipment are attended until appropriate modifications to 
the plan are completed. FRA does not intend to grant approval to any 
plan. Railroads shall notify FRA when the railroad has developed a plan 
under this provision prior to the railroad operating pursuant to the 
plan.
    2. Railroads shall develop processes for securing unattended trains 
or vehicles transporting Appendix A Materials on a mainline track or 
mainline siding outside of a yard or terminal if permitted by the 
railroad's plan required under paragraph (1) of this order that 
contains the following requirements:
    a. The controlling locomotive cab must be locked or the reverser on 
the controlling locomotive must be removed and secured.
    b. Employees who are responsible for securing trains and vehicles 
transporting Appendix A Materials must communicate to the train 
dispatcher 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; 
train dispatchers must record the information provided; and train 
dispatchers or other qualified railroad employees must verify and 
confirm with the train crew that the securement meets the railroad's 
requirements.
    3. Railroads shall 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 and shall ensure the 
means of verifying that number is appropriate.
    4. Railroads shall implement operating rules and practices 
requiring the job briefing of securement for any job that will impact 
or require the securement of any train or vehicle in the course of the 
work being performed.
    5. Railroads shall develop procedures to 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. Notice of this E.O. shall be provided to all employees affected 
by this E.O..

Relief

    Petitions for special approval to take actions not in accordance 
with this E.O. may be submitted to the Associate Administrator for 
Railroad Safety/Chief Safety Officer (Associate Administrator), who 
shall be authorized to dispose of those requests without the necessity 
of amending this E.O.. In reviewing any petition for special review, 
the
    Associate Administrator shall grant petitions only in which a 
petitioner has clearly articulated an alternative action that will 
provide, in the Associate Administrator's judgment, at least a level of 
safety equivalent to that provided by this E.O..

Penalties

    Any violation of this order or the terms of any written plan 
adopted pursuant to this order to provide alternate protection shall 
subject the person committing the violation to a civil penalty of up to 
$105,000. 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 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

    Upon issuance of this E.O., railroads shall immediately initiate 
steps to implement this E.O.. Railroads shall complete implementation 
no later than September 1, 2013. Notice of this E.O. will be provided 
by publishing it in the Federal Register.

Review

    Opportunity for formal review of this E.O. 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 August 2, 2013.
Joseph C. Szabo,
Administrator.

Appendix A to Emergency Order 28

    (1) Five or more tank car loads of any one or any combination of 
materials poisonous by inhalation as defined in 49 CFR 171.8, and 
including anhydrous ammonia (UN 1005) and ammonia solutions (UN 
3318); or
    (2) 20 rail car loads or intermodal portable tank loads of any 
one or any combination of materials listed in (1) above, or, any 
Division 2.1 flammable gas, Class 3 flammable liquid or combustible 
liquid, Class 1.1 or 1.2

[[Page 48224]]

explosive, or hazardous substance listed in 49 CFR 173.31(f)(2).\7\
---------------------------------------------------------------------------

    \7\ See 49 CFR 173.115 for the definition of Division 2.1 
flammable gas, 173.120 for definition of Class 3 flammable liquid; 
and 173.50 for the definition of the various classes of explosives.

[FR Doc. 2013-19215 Filed 8-6-13; 8:45 am]
BILLING CODE 4910-06-P