[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Proposed Rules]
[Pages 73589-73608]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29334]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 234, 235, and 236

[Docket No. FRA-2011-0061, Notice No. 1]
RIN 2130-AC32


Positive Train Control Systems (RRR)

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FRA proposes amendments to regulations implementing a 
requirement of the Rail Safety Improvement Act of 2008 that certain 
passenger and freight railroads install positive train control (PTC) 
systems. The proposal would revise the regulatory provisions related to 
the de minimis exception to the installation of PTC systems generally, 
and more specifically, its application to yard-related movements. The 
proposal would also revise the existing regulations related to en route 
failures of a PTC system and discontinuances of signal systems once a 
PTC system is installed and make additional technical amendments to 
regulations governing grade crossing warning systems and signal 
systems, including PTC systems.

DATES: Comments: Written comments must be received by February 11, 
2013. Comments received after that date will be considered to the 
extent possible without incurring additional expenses or delays.
    Hearing: FRA anticipates being able to resolve this rulemaking 
without a public hearing. However, if prior to January 10, 2013, FRA 
receives a specific request for a public hearing, a hearing will be 
scheduled and FRA will publish a supplemental notice in the Federal 
Register to inform interested parties of the date, time, and location 
of such hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2011-0061, may 
be submitted by any of the following methods:
     Web Site: Comments should be filed at the Federal 
eRulemaking Portal, http://www.regulations.gov. Follow the online 
instructions for submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC 
20590.
     Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue SE., Washington, DC between 9 
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://www.regulations.gov including any personal 
information. Please see the Privacy Act heading in the SUPPLEMENTARY 
INFORMATION section of this document for Privacy Act information 
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
Room W12-140 on the Ground level of the West Building, 1200 New Jersey 
Avenue SE., Washington, DC between 9 a.m. and 5 p.m. Monday through 
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Thomas McFarlin, Office of Safety

[[Page 73590]]

Assurance and Compliance, Staff Director, Signal & Train Control 
Division, Federal Railroad Administration, Mail Stop 25, West Building 
3rd Floor West, Room W35-332, 1200 New Jersey Avenue SE., Washington, 
DC 20590 (telephone: 202-493-6203); Jason Schlosberg, Trial Attorney, 
Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, 
Room W31-207, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: 202-493-6032); or Matthew T. Prince, Trial Attorney, Office 
of Chief Counsel, RCC-10, Mail Stop 10, West Building 7th Floor, Room 
W75-208, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 
202-493-6146).

SUPPLEMENTARY INFORMATION: FRA is issuing this proposed rule to provide 
additional regulatory guidance and flexibility for the implementation 
of Positive Train Control (PTC) systems by railroads as mandated by the 
Railroad Safety Improvement Act of 2008 Sec.  104, Public Law 110-432, 
122 Stat. 4854, (Oct. 16, 2008) (codified at 49 U.S.C. 20157) 
(hereinafter ``RSIA'').

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. Regulatory History
    B. RSAC
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. Environmental Impact
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act

I. Executive Summary

    For years, FRA has supported the nationwide proliferation and 
implementation of positive train control (PTC) systems, forecasting 
substantial benefits of advanced train control technology in supporting 
a variety of business and safety purposes. As such, in 2005, FRA 
promulgated regulations providing for the voluntary implementation of 
processor-based train control systems. See 70 FR 11,052 (Mar. 7, 2005) 
(codified at 49 CFR part 236, subpart H). However, implementation was 
not mandated by FRA due to the fact that the costs for the systems far 
outweighed the possible benefits at that time.
    Partially as a consequence of certain very severe railroad 
accidents, coupled with a series of other less serious accidents, 
Congress passed the Rail Safety Improvement Act of 2008 Sec.  104, 
Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 9 
U.S.C. 20157) (hereinafter ``RSIA'') mandating the implementation of 
PTC systems by December 31, 2015, on lines meeting certain thresholds. 
RSIA requires PTC system implementation on all Class I railroad lines 
that carry poison- or toxic-by-inhalation hazardous (PIH or TIH) 
materials and 5 million gross tons or more of annual traffic, and on 
any railroad's main line tracks over which intercity or commuter rail 
passenger train service is regularly provided. In addition, RSIA 
provided FRA with the authority to require PTC system implementation on 
any other line.
    In accordance with the statutory mandate, FRA issued a final rule 
on January 15, 2010, and clarifying amendments on September 27, 2010. 
The final rule included various exceptions from mandatory PTC system 
implementation. For instance, the de minimis exception was developed to 
provide railroads an opportunity to avoid PTC system implementation 
where the burdens of the regulation would yield a gain of trivial or no 
value. In accordance with its statutory authority, the final rule also 
included a limited operations exception for passenger operations or 
segments over which limited or no freight railroad operations occur.
    In a petition for rulemaking dated April 22, 2011 (``Petition''), 
the Association of American Railroads (AAR) requested that FRA initiate 
a rulemaking to propose expanding the de minimis exception and 
otherwise amending the rules concerning the limited operations 
exception, en route failures of trains operating within PTC systems, 
and the discontinuance of signal systems once PTC systems were 
installed. AAR also requested that FRA develop a new exception that 
would allow unequipped trains associated with certain yard operations 
to operate within PTC systems.
    In response to the Petition, FRA proposes here to make several 
changes to part 236, subpart I. With respect to the specific de minimis 
exception at 49 CFR 236.1005(b)(4)(iii), FRA is proposing to modify the 
specific exception to raise the number of freight cars containing PIH 
materials from 100 cars to 200 cars and revise the grade limitation to 
be more consistent with the definition of ``heavy grade'' present in 
part 232. FRA is also proposing to remove the traffic limitation of 15 
million gross tons from the general de minimis exception in paragraph 
(b)(4)(iii)(C), but not the categorical exception in paragraph 
(b)(4)(iii)(B). In response to AAR's suggestions for a yard move 
exception, FRA proposes to add a yard movement de minimis exception 
that would authorize movements by unequipped locomotives over PTC-
equipped main line track segments for the purpose of switching service 
or transfer train movements. FRA does not propose to create an 
additional limited operations exemption, nor does FRA propose to remove 
oversight from signal system discontinuances or modify the default 
rules for resolving en route failures of a PTC system. However, FRA 
does propose to clarify that PTC equipment of non-controlling 
locomotives may be used to restore full PTC functionality to the 
consist. Finally, FRA proposes a number of technical amendments to the 
signal and grade crossing regulations of parts 234, 235, and 236.
    For the first 20 years of the proposed rule, the estimated 
quantified benefits to society, due to the proposed regulatory changes, 
total approximately $156 million discounted at 7 percent and $211 
million discounted at 3 percent. The largest components of the benefits 
come from reduced costs of PTC system wayside components because of 
proposed extensions of the de minimis risk exception under 49 CFR Sec.  
236.1005(b)(4)(iii)(B), and reduced costs of onboard PTC systems on 
locomotives operating in yard areas. A smaller benefit, independent of 
the other two benefits, comes from changes to the application process 
for a discontinuation or material modification of a signal system under 
49 CFR part 235 where the application would have been filed as part of 
a PTC system installation. The following table presents the quantified 
benefits:

------------------------------------------------------------------------
                                                Discount factor
                                     -----------------------------------
                                          7 percent         3 percent
------------------------------------------------------------------------
Applications Benefit................          $397,319          $446,926
Wayside Installation Benefit........       100,587,630       136,123,559

[[Page 73591]]

 
Onboard Installation Benefit........        55,323,197       $74,867,958
                                     -----------------------------------
    Total Benefit...................       156,308,146       211,438,443
------------------------------------------------------------------------

    For the same 20-year period, the estimated quantified cost totals 
$360 thousand discounted at 7 percent and $531 thousand discounted at 3 
percent. The costs associated with the proposed regulatory relief 
result from a slight increase in accident avoidance risk. FRA was able 
to estimate the monetized costs affected by changes in the general de 
minimis provisions, but was not able to estimate the costs of changes 
to the provision affecting locomotives in yard areas. The following 
table presents the total quantified costs of the proposed rule:

------------------------------------------------------------------------
                                                Discount factor
                                     -----------------------------------
                                          7 percent         3 percent
------------------------------------------------------------------------
Base Case...........................          $360,055          $531,272
High Case...........................           446,883           659,390
Low Case............................           273,227           403,155
------------------------------------------------------------------------

    FRA has also performed a sensitivity analysis for a high case 
(1,900 miles, 800 locomotives), base case (1,000 miles, 500 
locomotives), and low case (100 miles, 200 locomotives).
    The net benefit amounts for each case, subtracting the costs from 
the benefits, provide the following results:

------------------------------------------------------------------------
                                                Discount factor
                                     -----------------------------------
                                          7 percent         3 percent
------------------------------------------------------------------------
Base Case...........................      $155,948,091      $210,907,171
High Case...........................       279,584,048       378,211,032
Low Case............................        32,312,133        43,603,310
------------------------------------------------------------------------

    The analysis indicates that the savings of the proposed action far 
outweigh the cost.

II. Background

A. Regulatory History

    Congress passed RSIA into law on October 16, 2008, mandating PTC 
system implementation by December 31, 2015. To effectuate this goal, 
RSIA required the railroads to submit for FRA approval a PTC 
Implementation Plan (PTCIP) within 18 months (i.e., by April 16, 2010).
    On July 27, 2009, FRA published a notice of proposed rulemaking 
(NPRM) regarding the mandatory implementation and operation of PTC 
systems in accordance with RSIA. During the comment period for that 
proceeding, CSX Transportation, Inc. (CSX) suggested that FRA create a 
de minimis exception to the requirement that lines carrying PIH 
materials traffic (but not applicable passenger traffic) be equipped 
with PTC systems.
    The final rule, published on January 15, 2010, included a de 
minimis exception, since FRA believed that it contained significant 
merit and that it fell within the scope of the issues set forth in the 
proposed rule. However, since none of the parties had an opportunity to 
comment on this specific exception as provided in the final rule, FRA 
sought further comments on the extent of the de minimis exception. The 
further comments responsive to this issue were largely favorable, 
although AAR sought some further modification and clarification. In 
publishing its second PTC final rule on September 27, 2010, FRA decided 
to not further amend the de minimis exception based on the comments 
submitted.
    In its Petition dated April 22, 2011, AAR requested that FRA 
initiate a rulemaking to propose expanding the de minimis exception and 
otherwise amending the rules concerning the limited operations 
exception, en route failures of trains operating with PTC systems, and 
the discontinuance of signal systems once PTC systems were installed. 
AAR also requested that FRA develop a new exception for allowing 
unequipped trains to operate on PTC lines during certain yard 
operations.

B. RSAC

    On October 21, 2011, FRA held a meeting in Washington, DC with the 
PTC Working Group (PTC WG) to the Railroad Safety Advisory Committee 
(RSAC) to seek input and guidance concerning the issues raised in AAR's 
Petition and other technical amendments reflected herein. FRA 
facilitated and received valuable group discussion relating to each of 
the proposed amendments. The following analysis intends to present and 
address the principles raised through that process, and FRA's resultant 
proposed rule amendments. While not specifically addressed herein, FRA 
is also considering a reorganization of the rule so that exceptions to 
PTC system implementation are no longer interspersed throughout, but 
are rather commingled together in their own section or sections.

III. Section-by-Section Analysis

    Unless otherwise noted, all section references below refer to 
sections in title 49 of the Code of Federal Regulations (CFR). FRA 
seeks comments on all proposals made in this NPRM.
Proposed Amendments to 49 CFR Part 234
Section 234.207 Adjustment, Repair, or Replacement of Component
    Paragraph (b) of Sec.  234.207 currently states: ``Until repair of 
an essential component is completed, a railroad shall take appropriate 
action under Sec.  234.105, Activation failure, Sec.  234.106,

[[Page 73592]]

Partial activation, or Sec.  234.107, False activation, of this part.'' 
During training and enforcement actions, FRA has found the regulated 
entities to have misconceptions and misunderstandings regarding the 
response required under Sec.  234.207. FRA believes that various 
regulated entities have misread paragraph (b) to indicate that the 
necessary response to any essential component of a highway-rail grade 
crossing warning system failing to perform its intended function is 
only applicable where the result of such failure is one of the three 
types of warning system malfunctions listed.
    Accordingly, FRA is proposing language to clarify that defective 
conditions not resulting in a highway-rail grade crossing active 
warning system malfunction (i.e., an activation failure, partial 
activation, or false activation) need also be corrected without undue 
delay when the conditions and circumstances of the defective component 
negatively affects the system's proper functioning. The proposed 
language intends to make clear that the regulated entity must respond 
in accordance with this section to any ``essential component'' failing 
to perform its intended function. The PTC WG did not express any 
specific concerns with this proposal.
Section 234.213 Grounds
    Section 234.213 currently indicates that each circuit that affects 
the proper functioning of a highway-rail grade crossing warning system 
shall be kept free of any ground or combination of grounds that will 
permit a current flow of 75 percent or more of the release value of any 
relay or electromagnetic device in the circuit.
    With the migration of many warning systems, subsystems, and 
components from relay-based to microprocessor-based technologies, FRA 
believes that a more comprehensive indicator of prohibited current flow 
grounds is required. While the current threshold of 75 percent of the 
release value works well for relays and electromagnetic devices, it is 
apparent that the threshold needs to be refined to reflect the smaller 
current values associated with microprocessor-based technology. 
Therefore, FRA proposes to prohibit any ground or combination of 
grounds having a current flow of any amount which could adversely 
affect the proper safety-critical functioning of the warning system in 
order to better reflect the reality of microprocessor-based technology. 
There were no objections in the PTC WG to this proposal.
Proposed Amendments to 49 CFR Part 235
Section 235.7 Changes Not Requiring Filing of Application
    FRA proposes amending Sec.  235.7, which currently allows specified 
changes within existing signal or train control systems to be made 
without the necessity of filing an application with FRA's Associate 
Administrator for Safety. The amendment would provide each railroad a 
simplified process to obtain approval for modifications of existing 
signal systems in association with PTC system implementation.
    Under Sec.  235.7, a railroad may avoid filing an application for a 
broad variety of modifications to a signal system, so long as the 
resultant arrangement is in compliance with part 236. FRA recognizes 
that, during the process of installing the wayside PTC equipment, the 
railroads may have the resources and time available to implement needed 
or desired wayside signal system upgrades. Such modifications generally 
require FRA approval in accordance with Sec.  235.5 and compliance with 
part 236. Given that the outcome of such modifications must be in 
compliance with part 236, FRA proposes to create an expedited approval 
process for modifications of the signal system by the installation, 
relocation, or removal of signals, interlocked switches, derails, 
movable-point frogs, or electronic locks in an existing system where 
the modification is directly associated with the implementation of PTC 
systems. Instead of filing an application for approval to FRA's 
Associate Administrator for Safety, a railroad would be permitted to 
instead submit its request to the FRA regional office that has 
jurisdiction over the affected territory, with a copy provided to 
representatives of signal employees, similar to the information 
provided under the provisions for pole line circuit elimination, Sec.  
235.7(c)(24)(vi). If the Regional Administrator for the appropriate 
regional office denies approval of the requested modification, the 
request would then be forwarded to the FRA Railroad Safety Board as an 
application for signal system modification. However, express approval 
from the Regional Administrator is necessary before the modifications 
may begin. The PTC WG expressed no concerns to this proposal.
Proposed Amendments to 49 CFR Part 236
Section 236.0 Applicability, Minimum Requirements, and Penalties
    FRA proposes removing paragraph (i), Preemptive effect. FRA 
believes that this section is unnecessary because 49 U.S.C. 20106 
sufficiently addresses the preemptive effect of FRA's regulations. 
Providing a separate Federal regulatory provision concerning the 
regulation's preemptive effect is duplicative and unnecessary.
Section 236.2 Grounds
    Mirroring Sec.  234.213, Sec.  236.2 currently provides that each 
circuit that affects the safety of train operations shall be kept free 
of any ground, or combination of grounds, that will permit a current 
flow of 75 percent or more of the release value of any relay or 
electromagnetic device in the circuit. For the same reasons provided in 
the discussion of Sec.  234.213 above, FRA proposes to revise Sec.  
236.2 to prohibit any ground or combination of grounds having a current 
flow of any amount which could adversely affect the proper functioning 
of any safety-critical microprocessor-based equipment relied on for the 
proper functioning of a signal or train control system in order to 
better reflect the reality of microprocessor-based technology. There 
were no objections in the PTC WG to this amendment.
Section 236.15 Timetable Instructions
    Section 236.15 presently requires that automatic block, traffic 
control, train stop, train control, and cab signal territory be 
designated in the timetable instructions. FRA believes that, since PTC 
technology is a form of train control, its designation is already 
required under this section. However, in the interest of providing more 
clarity, FRA proposes modifying Sec.  236.15 to explicitly require the 
designation of PTC territory equally to other types of signal and train 
control systems in a railroad's timetable instructions. This addition 
would ensure that the identified specific types of signal and train 
control systems in operation on a railroad would be designated in its 
timetable. There were no objections to this proposal from the PTC WG.
Section 236.567 Restrictions Imposed When Device Fails and/or Is Cut 
Out En Route
    Section 236.567, which applies to territories where ``an automatic 
train stop, train control, or cab signal device fails and/or is cut out 
en route,'' presently requires trains to proceed in a specified 
restrictive manner until the next available point of communication 
where a report must be made to a designated officer, and an absolute 
block can be and is established in advance of the train on which the 
device is inoperative. Upon an absolute block being established, a 
train is

[[Page 73593]]

currently permitted to proceed at a speed not exceeding 79 miles per 
hour. The premise of this provision was the similarity between a manual 
block system and a train operating with an absolute block in advance of 
the train; Sec.  236.0 previously allowed for train speeds up to 79 
miles per hour within a manual block system. However, on January 17, 
2012, manual block systems were no longer approved as a method of 
operation for freight trains operating at greater than 49 miles per 
hour or passenger trains operating at greater than 59 miles per hour 
under Sec.  236.0(c)(2). See 75 FR 2598 at 2607. This change resulted 
in an inconsistency between Sec.  236.0 and Sec.  236.567, which was 
not contemporaneously revised. To rectify this inconsistency, FRA 
proposes to amend Sec.  236.567 to properly reflect the amendment 
previously made to Sec.  236.0 regarding allowable train speeds related 
to the use of an absolute block in advance of the train as a method of 
operation, by reducing the maximum allowable speed from 79 miles per 
hour to 59 miles per hour for passenger trains and 49 miles per hour 
for freight trains, as is the case for trains operating without a block 
signal system installed and operated in compliance with part 236. Where 
a block signal system is operational, the maximum allowable speed 
remains at 79 mph. The PTC WG had no objections to this change.
    Because the harmonizing changes made the existing paragraph 
structure too complicated, FRA has reorganized the section with 
discrete paragraphs for each of the three operating phases: prior to 
the report to a designated officer, after the report but prior to the 
establishment of an absolute block in advance of the train, and after 
the establishment of the absolute block. This reorganization does not 
change the meaning of Sec.  236.567, except as discussed above.
Section 236.1005 Requirements for Positive Train Control Systems
    Section 236.1005 specifies PTC system functionality and 
implementation requirements, and provides for certain exclusions and 
the temporary rerouting of unequipped trains on PTC equipped lines. The 
allowable exclusions of Sec.  236.1005(b)(4)(iii) address lines with de 
minimis PIH materials risk based upon specified criteria that can be 
expected to result in a risk of release of PIH materials being 
negligible on the subject track segment. The current categorical 
criteria under paragraph (b)(4)(iii)(B) are:
     A minimal amount of PIH materials cars transported (less 
than 100 cars per year, either loads or residue);
     A train speed limitation of either Class 1 or 2 track as 
described in part 213;
     An annual 15 million gross tonnage traffic limit;
     A ruling grade of less than 1 percent; and
     A spacing requirement where any train transporting a car 
containing PIH materials (including a residue car) shall be operated 
under conditions of temporal separation from other trains.
A general de minimis exception under paragraph (b)(4)(iii)(C) may also 
be available for additional line segments carrying less than 15 million 
gross tons annually and where it is established to the satisfaction of 
the Associate Administrator that risk mitigations will be applied that 
will ensure that risk of a release of PIH materials is negligible.
    In its Petition, AAR made certain proposals to modify these 
criteria, which are further discussed below. While FRA remains open to 
such modifications, any de minimis exception must apply in a way where 
Congress' intent is met. In other words, such exceptions must only 
cover situations where ``the burdens of regulation yield a gain of 
trivial or no value'' and should apply not ``to depart from the 
statute, but rather [as] a tool to be used in implementing the 
legislative design.'' Environmental Defense Fund, Inc. v. EPA, 82 F.3d 
451, 466 (D.C. Cir. 1996) (inner quotations omitted); Alabama Power Co. 
v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979).
    FRA continues to believe that de minimis exceptions may be 
available on low density main lines with minimal safety hazards that 
carry a truly minimal quantity of PIH materials. The preamble 
discussion to the final rule published January 15, 2010, focused 
primarily on the risks associated with PIH materials exposure. However, 
any de minimis exception must also consider the risks associated with 
the events that Congress intended PTC systems must be designed to 
prevent. In other words, when a de minimis exception applies, there 
must be de minimis risk that a train-to-train collision, overspeed 
derailment, incursion into a roadway worker zone, or movement over a 
switch in the wrong position may occur. See the definition of a PTC 
system in the RSIA, 49 U.S.C. 20157(i)(3).
    After reviewing AAR's request internally and with the PTC WG, FRA 
hereby proposes to amend Sec.  236.1005(b)(4)(iii) in accordance with 
the restrictions discussed below. FRA seeks comments on the following.
    First, AAR proposes that the 100-car limit be only applicable to 
loaded, not residue, cars. While FRA is not opposed to some relaxation 
of this limit, the result must not introduce a situation where the 
risks associated with PIH materials exposure or the events PTC systems 
must be designed to prevent exceed a de minimis threshold. ``Residue'' 
is defined by the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) to be ``the hazardous material remaining in a 
packaging, including a tank car, after its contents have been unloaded 
to the maximum extent practicable and before the packaging is either 
refilled or cleaned of hazardous material and purged to remove any 
hazardous vapors.'' As a result, the amount of hazardous material in a 
residue car can vary significantly, and is generally non-trivial. 
Accordingly, such cars are still considered to contain hazardous 
materials for the purposes of PHMSA regulations. See generally 49 CFR 
parts 172-174. Given the wide range of what may be considered 
``residue'' (including tank cars containing many thousands of gallons 
of material), and the potential for equally serious consequence should 
a PTC-preventable accident (PPA) result in the release of a PIH 
material that may be contained in such a car, FRA is instead proposing 
to amend this criteria so that the total number of cars transporting 
PIH materials annually on a track segment be limited to 200, to include 
both loaded and residue, with no more than two trains transporting PIH 
materials per day. The current rule text does not provide a daily train 
limitation. However, with the potential increase in PIH materials cars 
moving over a line under this proposal, FRA finds more pressing reasons 
to maintain an acceptable level of daily and annual PIH materials 
traffic density. Discussions in the PTC WG indicated that residue cars 
are generally transported along the same lines as the loaded cars, such 
that doubling the allowable number of cars will have a similar impact 
as excluding residue cars from the number, but will prevent the unusual 
occurrences that might result from ignoring residue cars altogether. 
FRA seeks comment on this assumption, the proposed daily limitation on 
trains transporting PIH materials, and the proposal that the car limit 
be increased to 200 cars containing PIH, both loaded and residue.
    The de minimis exception, under 49 CFR Sec.  
236.1005(b)(4)(iii)(B)(1), currently limits maximum authorized train 
speed to that afforded for Class 1 (10 mph) or Class 2 (25 mph) tracks 
in order to

[[Page 73594]]

reduce the kinetic energy available in any accident and to ensure that 
the forces impinging on any involved PIH materials tank car be 
sustainable. AAR proposes that the regulation provide a speed 
limitation only for those trains transporting any PIH materials. More 
specifically, AAR proposes a speed restriction of 40 miles per hour 
(i.e., the same maximum authorized speed provided for certain rail-to-
rail at-grade crossings under Sec.  236.1005(a)(1)(i)), to be enforced 
by an ``operational technique,'' and only for trains carrying any PIH 
materials.
    FRA is concerned that adherence to this 40 miles per hour 
restriction on such trains operating in higher-speed PTC territories 
will be dependent upon train handling by the train operator and that no 
onboard equipment would be utilized to provide the necessary warnings 
or enforcement. FRA has concerns regarding reliance on crew adherence 
to such a speed restriction, and other potential errors such as 
misunderstanding or miscommunication regarding the need for the 
restriction. Further, FRA is concerned that the risk of PIH materials 
release resulting from a collision or derailment at 40 miles per hour 
could be unacceptably higher than that at 25 miles per hour.
    It should be noted that the current limitation on train speeds is 
not intended to totally eliminate the potential for collision or 
derailment, but rather is intended to significantly reduce the 
potential consequences by reducing the kinetic energy involved should 
such an event occur. Kinetic energy is the energy an object possesses 
when it is moving. During a normal stop that does not include a 
collision or derailment, most of the energy is absorbed in the brake 
system. But in a crash or derailment, that energy is suddenly, 
cataclysmically dissipated not by heating the brakes, but by the 
effects of crushing, tearing, and twisting of the vehicles involved. 
AAR offers a research study from the University of Illinois at Urbana-
Campaign \1\ showing that the probability of a hazardous material 
release from a rail car decreases as a track's class increases. 
However, FRA would like to point out that, as the maximum authorized 
speed on a track segment increases, the potential severity of any 
accident increases quadratically, such that an increase in speed from 
25 miles per hour to 40 miles per hour would increase the kinetic 
energy in a crash by a factor of over 2.5. For example, a 2,000-pound 
object traveling 25 miles per hour has approximately 42,000 foot-pounds 
of energy; that same object traveling at 40 miles per hour has 
approximately 107,000 foot-pounds of energy. Ultimately, while the 
study suggests that an increase in track class may reduce the 
probability of an accident, any accident that occurs with increased 
speed would likely result in more severe consequences. Accordingly, FRA 
is not proposing to modify the speed limitation. However, FRA welcomes 
comments further analyzing the feasibility of considering the 
application of a maximum authorized speed, rather than a track class, 
for all trains as an element of applying this regulatory exception.
---------------------------------------------------------------------------

    \1\ Athaphon Kawprasert and Christopher P. L. Barkan, Effect of 
Train Speed on Risk Analysis of Transporting Hazardous Materials by 
Rail, 2159 Transportation Research Record 59 (Dec. 2010), available 
at http://trb.metapress.com/content/7682666175324228.
---------------------------------------------------------------------------

    The existing requirement in Sec.  236.1005(a)(1)(i) for rail-to-
rail at-grade crossings involving a PTC route intersecting with a non-
PTC route imposes a maximum authorized speed of 40 miles per hour 
through the crossing. However, a maximum authorized speed exceeding 40 
miles per hour is acceptable if the opposing non-PTC route maintains, 
among other things, a 20 miles per hour maximum authorized speed. For 
such instances, the categorical de minimis exception actually provides 
a higher maximum authorized speed.
    Nevertheless, FRA does not view the provisions as directly 
comparable. If a side collision was to occur in the case of a rail-to-
rail at-grade crossing, the force of the side-impacted train is not 
opposing the force of the impacted train, and as such the cars of the 
impacted train are not subject to the same degree of immediate 
deceleration as occurs in a head-to-head collision. As a result, the 
kinetic energy of both the impacting train and the side-impacted train 
has a longer time period to be absorbed, significantly reducing the 
potential severity of the collision. By contrast, in a head-on 
collision, the force of one train is met by an opposing force from the 
other train. As a result, both trains are subject to immediate 
deceleration with energy dissipating in large part through damage to 
both trains. Such collisions have a much greater potential severity 
than side collisions. Accordingly, FRA is not willing to accept AAR's 
comparison of the speed restrictions at rail-to-rail at-grade crossings 
to speed restrictions necessary to qualify for the categorical de 
minimis risk exception.
    AAR proposes that lines eligible for the de minimis risk exception 
be restricted to grades that are not ``heavy grades'' as defined by FRA 
in part 232. According to Sec.  232.407(a)(1), heavy grade means:
    (i) For a train operating with 4,000 trailing tons or less, a 
section of track with an average grade of two percent or greater over a 
distance of two continuous miles; and
    (ii) for a train operating with greater than 4,000 trailing tons, a 
section of track with an average grade of one percent or greater over a 
distance of three continuous miles.
    The steeper the grade, the more susceptible an operation becomes to 
concerns relating to train handling, overspeed, and other factors that 
may contribute to a PPA. FRA believes that placing a limit on ruling 
grade helps to avoid any situation in which an engineer may lose 
control of a train as a result of a failure to invoke a timely and 
sufficiently strong brake application.
    While FRA views the allowance for heavy grade as proposed by AAR as 
potentially acceptable, the criteria in Sec.  232.407 depends on the 
trailing tonnage of trains, which makes it difficult to apply to track 
segments independent of specific train movements. Accordingly, FRA 
proposes using a definition of heavy grade applicable to all trains: an 
average grade of one percent or greater over a distance of three miles. 
The alternative criteria of heavy grade in Sec.  232.407, a section of 
track with an average grade of two percent or greater over a distance 
of two continuous miles, applies only to trains operating with 4,000 
trailing tons or less. While the train-specific nature of this criteria 
precludes its use as part of the categorical de minimis exception, a 
railroad may instead seek a de minimis exception for a track segment 
meeting this less-restrictive criteria under the general de minimis 
exception in paragraph (b)(4)(iii)(C).
    As an additional risk mitigation, AAR recommends strengthening 
operating practices protecting against unauthorized incursions into 
roadway work zones on track segments that have received approval to 
avoid PTC system implementation under the de minimis risk provision. 
AAR proposes that--in the case of a train approaching working limits on 
a line subject to the de minimis exception--the train crew be required 
to call the roadway worker in charge at a minimum distance of two miles 
in advance of the working limits to advise of the train's approach. If 
the train crew does not have knowledge of the working limits prior to 
approaching within two miles of the working limits or if it is 
impracticable to provide notification two miles in advance, such as if 
the working limits are less than two

[[Page 73595]]

miles from the initial terminal, AAR proposes that the train crew would 
be required to call the roadway worker in charge as soon as 
practicable.
    FRA appreciates AAR's proposal to add this criteria. However, FRA 
believes that it is not significantly different from existing railroad 
operating rules, upon which FRA already expects compliance. Any 
differences between the existing operating rules and AAR's proposal are 
minimal and may only cause confusion. FRA believes that AAR's proposal 
does not warrant adoption within the federal requirements and is 
therefore not proposing it in this NPRM.
    AAR recommends that FRA modify the temporal separation provision 
contained in Sec.  236.1005(b)(4)(iii)(B)(4). The de minimis provision 
in the rule requires that trains transporting PIH materials be 
``operated under conditions of temporal separation from other trains.'' 
Temporal separation has long been defined as meaning that trains do not 
operate on any segment of shared track during the same period. FRA 
continues to believe that the use of exclusive authorities under 
mandatory directives is an insufficient alternative to positive train 
control operation. AAR recommends modification of the temporal 
separation provision to permit an alternative means of achieving the 
same or greater risk reduction. AAR suggests that such alternative 
means should include clarification that emptying the block ahead of and 
behind a PIH materials train constitutes temporal separation and that 
it does not mean that when such trains are operating, no other train 
can be operated on the line. This procedure does not constitute 
``temporal separation'' as FRA has previously defined the term, such as 
in 49 CFR part 211, appendix A, stating FRA's policy concerning waivers 
related to shared use of trackage by light rail and conventional 
operations. To avoid conflicting definitions, FRA is not in favor of 
establishing a different meaning of ``temporal separation'' in the 
context of this regulation. However, FRA does seek comment from all 
interested parties on the underlying method of operation, using 
absolute blocks ahead of and behind a PIH materials train as a means of 
providing the necessary protection against PPAs, especially with 
respect to the potential for human error. FRA points out that Sec.  
236.1005(b)(4)(iii)(C) already provides railroads with the opportunity 
to submit such alternative means (for line segments of less than 15 
million gross tons) for approval by the Associate Administrator. FRA 
believes that this provision sufficiently addresses AAR's concern and 
does not propose amendment of the rule in accordance with AAR's 
suggestion.
    FRA further believes that beyond the categorical exception provided 
in paragraph (b)(4)(iii)(B), a railroad may alternatively seek a de 
minimis exception under existing paragraph (b)(4)(iii)(C) for track 
segments that annually carry less than 15 million gross tons. With this 
regulatory option, railroads may offer, and FRA may consider, 
mitigations tailored to particular circumstances to ensure a negligible 
risk. FRA would evaluate the submittal and, if satisfied that the 
proffered mitigations would be successful, approve the exception of the 
line segment. FRA notes that various elements of PTC technology may in 
some cases provide the means for accomplishing this goal; for instance, 
a railroad may choose to submit a plan using intermittent data radios 
and PTC-equipped locomotives in order to enforce track warrants and 
temporary speed restrictions.
    AAR recommends that if the other criteria for de minimis exceptions 
are met, the amount of traffic on the line should not disqualify it 
from eligibility from the exemption. AAR points to existing Sec.  
236.1005(b)(4)(iii)(C), which provides that FRA will ``consider'' 
relief from the obligation to install PTC systems on line segments with 
annual traffic levels under 15 million gross tons where the risk of a 
release of PIH materials is ``negligible.'' AAR suggests eliminating 
the 15 million gross tons limit contained in this provision. Moreover, 
AAR contends that it is unclear what constitutes a ``negligible'' risk 
and what discretion FRA would exercise should there be a showing of 
negligible risk. AAR further requests that FRA set a quantitative 
threshold for negligible risk, and suggests ``one-in-a-million'' as the 
criterion. AAR references standard MIL-STD-882C as the basis for such 
criterion.
    With respect to paragraph (b)(4)(iii)(B), FRA has endeavored to 
address AAR's concerns with a provision that is broad enough to permit 
considerations of actual circumstances, limit this exception to 
railroads that would not otherwise need to install PTC systems, and 
make explicit reference to the requirement for potential safety 
mitigations. FRA has chosen 15 million gross tons as a threshold where 
mitigations are in place or could be put in place to establish a high 
sense of confidence that operations will continue to be conducted 
safely. In the context of the default provisions under paragraph 
(b)(4)(iii)(B), FRA has concern that eliminating the traffic density 
criteria would result in an exception being outside the scope of the de 
minimis risk. The derailment data cited by AAR is only a portion of the 
data that needs to be considered. FRA also recognizes the potential for 
a higher density line not being eligible for this exemption even though 
it may have fewer than 200 PIH materials cars on the line in a year. 
Consequently, FRA is not proposing to amend this limitation but is open 
to the possibility of considering some risk evaluation factors in lieu 
of a prescriptive train density limitation. FRA seeks comment from all 
interested parties on the existing 15 million gross tons density 
threshold and the suggested alternative of risk evaluation factors; FRA 
would expect full development and discussion of the risk evaluation 
factors and their application by any party suggesting such an 
alternative.
    FRA also recognizes that under paragraph (b)(4)(iii)(C), the train 
density limit could conceivably be replaced by equivalent safety 
mitigations. In the interest in providing flexibility, without reducing 
safety, FRA is proposing to eliminate the 15 million gross tons 
limitation currently contained in this paragraph. FRA distinguishes the 
application of this train density limit in this paragraph from that in 
paragraph (b)(4)(iii)(B) because in (b)(4)(iii)(C) FRA would be 
considering the totality of circumstances and the mitigations proffered 
by the railroad. If a railroad submits a request under proposed 
paragraph (b)(4)(iii)(C), where the train density limit is not a 
categorical requirement, FRA would likely require some other train 
density limit--presumably more liberal--coupled with additional safety 
mitigations to achieve an equivalent level of safety.
    FRA is not agreeable to setting a quantitative threshold for 
negligible risk in paragraph (b)(4)(iii)(C) as suggested by AAR. FRA 
notes that standard MIL-STD-882C is recognized in Appendix C to 49 CFR 
part 236 as an available standard for evaluating the safety of train 
control systems; however, the difficulties with using this type of 
criterion as a decisional criterion, as opposed to a convention in 
hazard analysis, are manifold. First, the actual metric is always 
unclear. FRA will assume that AAR may refer to release of a reportable 
quantity of a PIH material. The apparent suggestion is probability per 
route mile. However, it is unclear what should be the level of chance 
and the measurable time period (e.g., calendar hours, operating hours, 
PTC system life-cycle, etc.). Given that PIH materials releases are 
already infrequent events, and the potential for catastrophe from a 
single release is significant, it is

[[Page 73596]]

also unclear how this criterion would relate to the judgments that 
Congress has already made with respect to PIH materials transportation. 
AAR does not provide any reasoning or evidence sufficient to prove that 
the criterion is satisfied. AAR should be aware that the industry and 
FRA have experienced significant difficulty in developing tools for 
comparative risk assessment related to train control, which is the 
easier task in contrast with use of absolute risk criteria. FRA will, 
of course, welcome well-presented, simple, and direct hazard analyses. 
FRA will be looking to achieve confidence that the chance of an 
unintended release of PIH material is negligible, given the chances for 
severe mishaps on the particular line segment in question.
    In addition, AAR suggests that within paragraph (b)(4)(iii)(C), the 
obligation of the railroad to establish that the risk of a PIH 
materials release is negligible should be limited to releases caused by 
PPAs. Proposed paragraph (b)(4)(iii)(C) provides that FRA will consider 
a de minimis risk exemption from the PTC mandate for certain line 
segments where it is established that the risk of a PIH materials 
release is negligible. AAR argues that the request to install PTC 
systems on line segments being candidates for such an exception should 
not be driven by the possibility of accidents that PTC systems cannot 
prevent. AAR states that other criteria of the de minimis risk 
exception such as temporal separation and reduced speed, if satisfied, 
already reduce the probability of accidents that the four core PTC 
system functions aim to prevent: train-to-train collision, overspeed 
derailment, incursion into established work zone limits, and movement 
through a main line switch in an improper position (i.e., the four 
statutory PPAs). In the original final rule, FRA repeatedly referenced 
the exception as relating to de minimis PIH materials risk exception. 
We believe that this may have been confusing and would like to take 
this opportunity to provide further clarification. FRA originally used 
this term since the exception would only apply to freight traffic on 
lines where PIH materials traverse. FRA did not intend to exclude the 
four statutory PPAs as risk elements requiring consideration in order 
to qualify for the exception. Accordingly, FRA proposes to change the 
regulatory language to comport with this perspective by modifying the 
heading of paragraph (b)(4)(iii) to eliminate the potential for 
confusion.
    The proposed rule modifies paragraph (b)(4)(iii)(A) to increase the 
car limit to 200 cars annually, as discussed above. As noted above, FRA 
proposes revising the heading of paragraph (b)(4)(iii) to read 
``freight lines with de minimis risk.'' FRA also proposes to revise 
(b)(4)(iii)(B)(3) to specify the distance over which the ruling grade 
is measured, mirroring the definition of ``heavy grade'' in Sec.  
232.407 for trains operating with greater than 4,000 trailing tons. FRA 
proposes to amend paragraph (b)(4)(iii)(C) is amended by striking the 
limitation that only track segments with traffic less than 15 million 
gross tons is eligible for relief as posing only de minimis risk. A 
typographical error is also corrected in the table in paragraph (a). 
FRA seeks comment from all interested parties on these proposals.
Section 236.1006 Equipping Locomotives Operating in PTC Territory
    AAR recommends that yard switching service and transfer train 
movements without operational onboard PTC equipment should be allowed 
to operate over PTC-equipped track segments. AAR argues that this 
exception is necessary in light of the constantly-changing consists 
that characterize yard operations that would render a PTC system 
ineffective. AAR's suggested exceptions for switching service and 
transfer train movements are discussed in turn.
    In this context, FRA uses the term ``switching service'' to refer 
to switching service under 49 CFR Sec.  232.5:

the classification of freight cars according to commodity or 
destination; assembling of cars for train movements; changing the 
position of cars for purposes of loading, unloading, or weighing; 
placing of locomotives and cars for repair or storage; or moving of 
rail equipment in connection with work service that does not 
constitute a train movement.

This distinction is drawn from longstanding judicial interpretations of 
what constitutes a ``train movement.'' See, e.g., United States v. 
Seaboard Air Line R. R. Co., 361 U.S. 78 (1959); Louisville 
Jeffersonville Bridge Co. v. United States, 249 U.S. 543 (1919); see 
also 66 FR 4104, 4148 (Jan 17, 2001) (defining ``switching service''). 
FRA has previously recognized that the nature of switching service 
precludes the application of some safety technologies or operational 
practices that are applicable to train movements. See, e.g., 49 CFR 
part 232, subpart C (not requiring air brake tests as part of switching 
service, but requiring such tests for train movements of short 
distances). FRA has also previously recognized that Congress did not 
intend to sweep in yard tracks in the mandate for PTC system 
implementation. In the first PTC rulemaking, FRA defined main line to 
exclude ``where all trains are limited to restricted speed within a 
yard or terminal area or an auxiliary or industry tracks.'' 49 CFR 
236.1003. In the final rule, FRA stated that ``any track within a yard 
used exclusively by freight operations moving at restricted speed is 
excepted from the definition of main line.'' 75 FR 2598, 2657 (Jan 15, 
2010). Such tracks are generally considered to be other-than-main line 
track, and Congress's limitation of the PTC mandate to ``main line'' 
suggests that these tracks were not intended to be included. See also 
S. Rep. 110-270 (taking notice of the limited value PTC offers in 
preventing accidents in yards or terminals). The result of this 
exclusion is that many switching operations are excluded from the scope 
of the PTC mandate, where these operations do not extend on to the main 
line track that connects to the yard.
    However, as AAR explains in its Petition, switching operations 
frequently require some movement along main track adjacent to or within 
a yard, for purposes of reaching other yard tracks or obtaining 
necessary distance, or ``headroom'', from yard tracks to make switching 
movements. Despite the exclusion of these other-than-main line tracks, 
switching service could therefore require PTC-equipped locomotives in 
order to make these movements on main line track. Given the statutory 
language suggesting that switching service was not subject to the PTC 
mandate and the potential to apply operation restrictions to reduce 
risk to an acceptable level, FRA agrees that it would be appropriate to 
provide an exception for locomotives performing switching service from 
the requirements to be equipped with a PTC system if appropriate 
safeguards are implemented.
    AAR's Petition recommends that adequate safety can be provided by a 
concept AAR refers to as ``absolute protection.'' Such protection would 
be established by a dispatcher, who would withhold movement authority 
by signal or directive. PTC-equipped trains would be prevented from 
entering the zone by an enforced positive stop outside of the zone 
where operations with non-operational PTC-equipped trains were 
underway. FRA solicits comments on the practicality and safety 
potential of this approach. FRA also notes that such a system is very 
similar to the protection required for roadway workers by 49 CFR Sec.  
236.1005(a)(1)(iii), and also solicits comments on the application of 
similar measures to zones where switching operations are taking place 
on the main line track without operational PTC systems. These forms of 
protection of

[[Page 73597]]

PTC-equipped trains are proposed as defaults; as with other exceptions 
and exclusions, the rule proposes to allow each railroad to provide 
alternative measures in its PTCSP.
    AAR's Petition also suggests that such an exemption should also 
apply to transfer train movements. As such, the distance the unequipped 
locomotives could travel from a yard or terminal would be up to 20 
miles. As previously noted, FRA recognizes that Congress specifically 
used the term ``main line'' and seeks comments on whether that 
linguistic choice would indicate an intention not to include certain 
train movements--including short train movements in and around railroad 
yards--within the statutory mandate. Many transfer train movements 
share older locomotives with switching operations, making PTC system 
implementation more costly and any switching service exception that is 
provided would be inapplicable if associated transfer trains utilizing 
the same locomotive would require PTC system implementation. Moreover, 
transfer trains in yard areas generally operate for short distances at 
lower speeds, and many only operate within yard limits. FRA seeks 
comments from interested parties on its interpretation and application 
of the statutory mandate as it relates to short train movements in and 
around yard areas.
    In accordance with this potentially acceptable perspective, FRA is 
proposing a de minimis exception applicable specifically to certain 
transfer train movements, at least for a period of time until the older 
locomotives used in yard service may be replaced. Such locomotives will 
presumably be gradually replaced with newer locomotives, which would 
then allow for the implementation of PTC systems on locomotives used in 
transfer train service. However, such locomotives could also be 
replaced by existing long haul locomotives not equipped with PTC 
systems or with non-functioning PTC systems. Thus, while FRA is not 
proposing a specific provision regarding the potential duration of such 
an exception, FRA seeks comments relating to how long the duration of 
this exception should apply. FRA also seeks comment on any mitigations 
that could be employed to bring the PPA risk down to a negligible level 
in these situations.
    The existing PTC regulations already provide the parameters for a 
general de minimis exception. Thus, while any exception provided must 
still fall within the legal understanding of what is considered de 
minimis, FRA seeks suggestions on how to tailor such an exception 
specifically for certain transfer train movements in and around yard 
areas. FRA recognizes that not all transfer train movements will 
qualify for an exception.
    FRA also recognizes that, in its Petition, AAR already suggests one 
such mitigation in the form of what it calls ``absolute protection.'' 
AAR states that absolute protection requires that the dispatcher 
withhold movement authority between two points of control by signal 
indication or mandatory directive. According to AAR, the dispatcher 
would also hold other trains clear by providing blocking protection 
within the traffic control system. Under AAR's proposal, the movement 
of non-PTC equipped locomotives would be limited to 30 miles per hour 
and the distance the locomotives could travel from a yard or terminal 
would be limited to 20 miles.
    FRA seeks comments from interested parties on AAR's suggested 
mitigation, particularly as to whether it will reduce the PPA risk to a 
negligible level. FRA requests that such comments include an analysis 
of how this, or any other proposal, applies to each statutory PPA and 
to the general prevention of PIH materials release. FRA also seeks 
comments on what other safety mitigations, including temporal 
separation and those used in the event of an en route failure, would be 
adequate to ensure a proper level of safety for switching service and 
transfer train movements in and around yard areas that would operate 
without the benefit of a PTC system.
    FRA also seeks comments regarding any concerns relating the 
application of any transfer train de minimis exception to track 
segments that share freight and passenger traffic and how such an 
exception would interrelate to any main line track exception already 
provided for passenger service under Sec.  236.1019. FRA recognizes 
that, if a passenger train is required to have an operational PTC 
system, the operational restrictions and enforced positive stop outside 
of the yard zone may serve to protect against an incursion by an 
equipped passenger train into a yard area with potentially active train 
movements without operative onboard PTC systems. If the passenger train 
is unequipped as the result of a main line track exclusion, a necessary 
component of that exclusion is either temporal separation between the 
freight and passenger service, operations limited to restricted speed, 
an alternate risk mitigation plan which would provide an equivalent 
level of safety, or a requirement that the passenger trains not be 
carrying passengers within the limits of the exclusion. As a result, 
the only times where unequipped freight switching operations subject to 
the switching exclusion and a passenger train carrying passengers 
subject to a main line track exclusion may occupy the same zone will be 
when both are operating at restricted speed and therefore should be 
prepared to stop within half of their range of vision, or where the 
railroads have provided alternative risk mitigations that result in an 
equivalent level of safety.
    AAR's Petition recommended FRA limit the speed of unequipped 
locomotives and trains to 30 miles per hour, or restricted speed if 
multiple unequipped movements take place within the same area at the 
same time. This speed restriction matches that of the en route failure 
provision in Sec.  236.1029, which is referenced by the temporary 
rerouting provision at Sec.  236.1005(j) and the Class II and III 
locomotive exception at Sec.  236.1006(c). Because FRA views this yard 
move exception as a de minimis risk exception, FRA proposes to limit 
the speed of movements to 25 miles per hour, the relevant speed 
restriction for the general de minimis exception at Sec.  
236.1005(b)(4)(iii). FRA seeks comment on this proposal and AAR's 
alternative suggestion.
    FRA proposes to add a new paragraph (b)(5) to this section to allow 
railroads to request a yard move de minimis risk exception for 
switching service or transfer train service in and around yard areas. 
The proposed exception would allow locomotives engaged in these types 
of activities to operate on PTC-equipped main line track without the 
requirement to install an onboard PTC apparatus. The proposed exception 
provides ample flexibility, with paragraph (b)(5)(i) allowing railroads 
to tailor their risk mitigations to particular yard operations to 
ensure that the risk of a PPA or the release of PIH materials is 
negligible. Paragraph (b)(5)(ii) defines the distance a transfer train 
may operate under this exception as 10 miles from its entry onto PTC-
equipped main line track, allowing for 20-mile round-trip train 
movements. FRA seeks comments on this proposal. FRA specifically seeks 
comments on the feasibility of using the train's point of entry onto a 
main line as a means to begin measuring the mileage limit under this 
exception. FRA also seeks comments on whether the train's point of 
origin, where the train is assembled and receives its required 
inspections, should be the location where such measurements should 
begin. FRA recognizes that some transfer trains may travel 20 miles to 
an outlying point from a yard. However, allowing such

[[Page 73598]]

movements in both directions from a transfer train's point of entry 
onto a PTC-equipped track segment would effectively create a 40-mile 
zone outside of yards within which the PTC system would not be fully 
effective due to the presence of unequipped trains. Limiting the 
distance of transfer train movements to an area 10 miles from the 
initiation of service will limit the size of this zone to 20 miles, is 
consistent with the existing 20 mile movement restriction related to 
transfer trains, and would permit round trip movements of up to 20 
miles. FRA seeks comment on this limitation and potential alternative 
distance limitations. Paragraph (b)(5)(iii) limits the speed of 
locomotives and trains operating under this exception to a maximum of 
25 miles per hour.
    FRA also proposes to move the PTCIP reporting requirement from 
paragraph (b)(2) of this section to a new paragraph (a)(5) in Sec.  
236.1009.
Section 236.1009 Procedural Requirements
    FRA proposes to move the PTCIP reporting requirement from paragraph 
(b)(2) of Sec.  236.1006 to a new paragraph (a)(5) of this section. The 
purpose of this proposal is not merely for organizational purposes. FRA 
also intends to require the submission of additional information so 
that it may better fulfill its congressional reporting obligations and 
to otherwise fully and accurately monitor the progress of PTC system 
implementation. The current language of Sec.  236.1006(b)(2) requires 
railroads to report the status of achieving its goals with respect to 
equipping locomotives with fully-operative onboard PTC apparatuses on 
PTC-equipped track segments. However, for FRA to fulfill its statutory 
obligations and regulatory objectives, it would also require additional 
implementation information. Accordingly, under the proposed rule, FRA 
expects submission of implementation data relating to wayside interface 
units, communication technologies, back-end computer systems, 
transponders, and any other PTC system components.
    The PTC WG expressed no concerns with this proposal.
Section 236.1019 Main Line Track Exceptions
    In its Petition, AAR suggests that FRA should exempt certain 
limited freight operations in a similar manner as provided for limited 
passenger operations under Sec.  236.1019(c). AAR suggests exempting 
track segments over which not more than two trains containing PIH 
materials carloads are transported daily, where the annual freight 
traffic over the line is less than 15 million gross tons.
    RSIA provided FRA with the authority to redefine main line for 
intercity or commuter rail passenger transportation routes or segments 
where there is limited or no freight operations. See 49 U.S.C. 
20157(i)(2)(B). Under this authority, FRA, in Sec.  236.1019(c), 
provided an exception from PTC system implementation on line segments 
where there is limited or no freight operations and where either all 
trains are limited to restricted speed, temporal separation is provided 
between passenger trains and other trains, or passenger service is 
operated under a risk mitigation plan. The purpose of 49 CFR 
236.1019(c) is to eliminate the requirement for PTC system installation 
in the case of low-risk passenger operations. For these reasons, FRA 
does not believe it is prudent at this time to extend a ``limited or no 
freight'' exception to track segments where there is more than 
``limited or no freight.''
    Nevertheless, FRA recognizes that the exception sought by AAR 
already exists, albeit in a different form. The general de minimis risk 
exception of Sec.  236.1005(b)(4)(iii)(C) allows railroads to apply for 
an exception from the requirement to implement PTC systems on track 
segments where the railroad can demonstrate that there is negligible 
risk of PTC-preventable accidents or a release of PIH materials. 
Because the statutory authority for the existing limited operations 
exception applies only to intercity or commuter rail passenger 
transportation, creating a new limited operations exception for freight 
track segments would depend upon FRA's authority to create a de minimis 
exception to the regulation. Creating such an exception but referring 
to it as a ``limited operations exclusion'' would only serve to create 
confusion.
Section 236.1021 Discontinuances, Material Modifications, and 
Amendments
    Under ordinary circumstances, a railroad seeking to discontinue a 
signal system must file an application pursuant to 49 CFR part 235. 
However, to simplify the process of making changes to a signal system 
related to PTC systems implementation, Sec.  236.1021 currently allows 
railroads to request approval of a discontinuance or material 
modification of a signal system in an RFA to its PTCIP, PTC development 
plan (PTCDP) or PTC safety plan (PTCSP), as appropriate. In its 
Petition, AAR recommends that FRA allow automatic approval (i.e., 
without the need to file an RFA) for the removal of cab signal systems 
from PTC-equipped lines or the removal of any signal system where 
stand-alone PTC systems are used. However, the Petition did not provide 
adequate justification to support the categorical approval of such 
changes without any FRA oversight. Even in its Petition, AAR argued 
that new PTC systems are likely to suffer en route failures. Such 
failures would be mitigated by the presence of an underlying signal 
system. Accordingly, FRA is not willing at this time to change the text 
of Sec.  236.1021 in accordance with AAR's request. However, FRA does 
seek comment from interested parties on how to further simplify the 
procedures currently contained in this section.
Section 236.1029 PTC System Use and En Route Failures
    Section 236.1029 currently provides a means of safely reacting to 
the en route failure of a PTC system. When the onboard apparatus of a 
controlling locomotive within a PTC system fails en route, Sec.  
236.1029 requires that the train proceed at restricted speed, or where 
a block signal system is in operation according to signal indication at 
medium speed, until an absolute block is established ahead of the 
train; after the absolute block is established, the train may proceed 
at speeds between 30 miles per hour and 79 miles per hour, depending on 
the nature of the signal system in place, if any, and the nature of the 
train. AAR, in its petition, assents to this procedure for each 
location where a PTC systems is the exclusive means of delivering 
mandatory directives, but suggests substantial revisions to this 
procedure where a PTC system is not the exclusive means of delivering 
mandatory directives (e.g., where mandatory directives are also 
delivered by radio). The AAR proposal would allow trains to continue to 
a designated repair or exchange location indentified in a railroad's 
PTCSP. While travelling to one of these locations, the AAR proposal 
would allow freight trains to continue at track speed in signaled 
territory, up to 40 miles per hour for freight trains in non-signaled 
territory, and up to 30 miles per hour for trains carrying PIH 
materials. The proposal also recommends a 30-miles-per-hour limitation 
for passenger trains; Amtrak suggests that the appropriate limitation 
for passenger trains is 40 miles per hour.
    FRA is sensitive to the concerns expressed regarding PTC system 
reliability and the railroads' desire to avoid restrictions where a PTC 
system fails. However, the mandate to implement PTC systems reflects a 
congressional determination that present methods for train operation 
are

[[Page 73599]]

inadequate. Accordingly, FRA must ensure that procedures for train 
operation during the failure of a PTC system provide the additional 
degree of safety required by Congress. FRA is therefore rejecting AAR's 
petition to amend the rule language on this issue. In the original 
final rule, FRA provided flexibility for railroads in establishing 
alternative procedures for operations following an en route failure. 
While FRA does not view allowing trains to continue at track speed 
after a PTC system is rendered inoperable as a generally acceptable 
procedure, there may be circumstances under which such operations are 
appropriate. If such circumstances exist, the railroads may provide in 
its PTCSP, which would then be subject to FRA review and approval, an 
alternative en route failure procedure pursuant to paragraph (c) of 
this section. While FRA is not willing to grant AAR's request at this 
time, FRA seeks comment on this issue and suggestions for other 
reasonable default provisions.
    AAR also requests clarification concerning the failure of an 
onboard PTC apparatus of the train's controlling locomotive, where a 
second PTC-equipped locomotive exists capable of providing PTC system 
functionality. FRA proposes to amend Sec.  236.1029 to specifically 
indicate that, when a trailing locomotive is used to maintain full PTC 
system functionality, the system is considered operable and therefore 
is not considered to have failed en route. Paragraph (g) provides that 
if full functionality of the onboard PTC apparatus in the controlling 
locomotive is restored by use of a secondary apparatus, such as the 
onboard equipment of a trailing locomotive, the train can continue 
operations as provided for in the railroad's PTCSP. Paragraph (g) also 
requires railroads to provide procedures for how this change-over of 
the PTC system onboard functions will take place.

IV. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This NPRM has been evaluated in accordance with existing policies 
and procedures, and determined to be significant under Executive Order 
12866, Executive Order 13563 and DOT policies and procedures. 44 FR 
11,034 (Feb. 26, 1979). We have prepared and placed in the docket a 
regulatory impact analysis (RIA) addressing the economic impact of this 
NPRM.
    The Federal Railroad Administration (FRA) proposes amendments to 
regulations implementing a requirement of the Rail Safety Improvement 
Act of 2008 (RSIA) that certain passenger and freight railroads 
implement PTC systems. The proposal includes revising the regulatory 
language defining the de minimis exception, as it applies generally and 
more specifically to yard-related movements. The proposal also includes 
revising the rules regarding en route failures and discontinuances of 
signal systems.
    The proposed provisions regarding applications to modify signal and 
train control systems would streamline and simplify the application 
process for a discontinuation or material modification of a signal 
system under 49 CFR part 235 where the application would have been 
filed as part of a PTC system implementation.
    The proposed revisions to the existing de minimis risk exception 
under 49 CFR Sec.  236.1005(b)(4)(iii) will allow railroads to avoid 
installing PTC systems' wayside equipment on affected segments. FRA is 
unsure of the mileage of wayside that will be affected, in part because 
the railroads have indicated that they intend to reroute PIH materials 
traffic from many miles of their systems. FRA analyzed the impact of 
extending the de minimis risk exception to cover an additional 1,000 
miles of wayside, as well as two sensitivity cases--one where the 
mileage affected was higher (1,900 miles) and one where the mileage 
affected was lower (100 miles). The estimated savings per mile was 
$50,000 per mile. All values in the analysis are measured in 2009 
dollars.
    FRA also analyzed the benefits of extending the de minimis risk 
exception as it would apply to equipping locomotives involved in yard 
operations with onboard PTC apparatuses. Again, FRA faced uncertainty 
in estimating the number of locomotives that will be affected. For the 
base case, FRA estimated that 500 locomotives will be affected. FRA 
also analyzed two cases for sensitivity--a high case where 800 
locomotives will be affected and a low case where 200 locomotives will 
be affected. Applying the extended de minimis risk exception to yard 
operations will allow the railroads to avoid equipping locomotives with 
onboard PTC systems apparatuses, at a unit savings of $55,000 per 
locomotive.
    For both wayside and onboard portions of the benefit, FRA included 
the maintenance costs saved by avoiding installation. FRA estimated the 
maintenance costs as 15 percent of the value of the installed base.

                   Table 1--Total Discounted Benefits
------------------------------------------------------------------------
                                                Discount Factor
                                     -----------------------------------
                                          7 percent         3 percent
------------------------------------------------------------------------
Base case:
Applications Avoided Benefit........          $397,319          $446,926
Wayside Installation Benefit........       100,587,630       136,123,559
Onboard Installation Benefit........        55,323,197        74,867,958
                                     -----------------------------------
    Total Benefit...................       156,308,146       211,438,443
High case:
Applications Avoided Benefit........           397,319           446,926
Wayside Installation Benefit........       191,116,498       258,634,763
Onboard Installation Benefit........        88,517,115       119,788,732
                                     -----------------------------------
    Total Benefit...................       280,030,931       378,870,421
Low case:
Applications Avoided Benefit........           397,319           446,926
Wayside Installation Benefit........        10,058,763        13,612,356
Onboard Installation Benefit........        22,129,279        29,947,183
                                     -----------------------------------
    Total Benefit...................        32,585,361        44,006,465
------------------------------------------------------------------------


[[Page 73600]]

    In general, the costs of allowing railroads the ability to avoid 
PTC implementation costs will be foregone safety benefits coupled with 
some reporting costs. The proposal to extend the de minimis risk 
exception affects track segments that are likely to have a risk of PTC 
preventable accidents that is only slightly greater than similar 
segments equipped with PTC wayside units. FRA analyzed those 
incremental costs, the only costs analyzed below.

                 Table 2--Discounted 20-Year Total Costs
------------------------------------------------------------------------
                                                    Discount Factor
                                             ---------------------------
                                                7 percent     3 percent
------------------------------------------------------------------------
Base Case...................................      $360,055      $531,272
High Case...................................       446,883       659,390
Low Case....................................       273,227       403,155
------------------------------------------------------------------------

    A second proposed de minimis risk exception, currently proposed to 
be codified under 49 CFR 236.1006(b)(5), affects whether locomotives 
used in switching operations need to be equipped with onboard PTC 
apparatuses in order to cross or travel along main track in yards. This 
newly created proposal requires the railroads to maintain a negligible 
risk of PTC preventable accidents. FRA does not specify how railroads 
are to achieve that negligible risk, so FRA cannot estimate whether the 
residual risk generated by the unequipped locomotives is greater or 
less than the risk if the railroad were required to install on board 
PTC systems equipment. In any event, negligible risk means the residual 
risk is of a very low order of magnitude. In this analysis, FRA has no 
way to monetize those costs and does not estimate those costs, but 
requests comments on those costs.
    The costs of the changes to procedural requirements are very low, 
and only consist of forwarding to FRA data likely already compiled for 
railroad management purposes.
    FRA calculated the net societal benefits as 20-year discounted 
totals.

             Table 3--Discounted 20-Year Total Net Benefits
------------------------------------------------------------------------
                                                    Discount Factor
                                             ---------------------------
                                                7 percent     3 percent
------------------------------------------------------------------------
Base Case...................................  $155,948,091  $210,907,171
High Case...................................   279,584,048   378,211,032
Low Case....................................    32,312,133    43,603,310
------------------------------------------------------------------------

    In short, the rulemaking will create net benefits in all scenarios, 
with the only uncertainty being the magnitude of those benefits.
    FRA requests comments on all aspects of the RIA.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure that the potential impact of this rulemaking on small 
entities is properly considered, FRA developed this proposed rule in 
accordance with Executive Order 13272 (``Proper Consideration of Small 
Entities in Agency Rulemaking'') and DOT's policies and procedures to 
promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant economic 
impact on a substantial number of small entities.
    As discussed in the preamble above, FRA is proposing amendments to 
regulations implementing a requirement of the Rail Safety Improvement 
Act of 2008 that certain passenger and freight railroads install 
positive train control systems. The proposal includes revising the 
regulatory language defining the de minimis exception, as it applies 
generally and more specifically to yard-related movements. The proposal 
also includes revising the rules regarding en route failures and 
discontinuances of signal systems. FRA is certifying that this proposed 
rule will result in ``no significant economic impact on a substantial 
number of small entities.'' The following section explains the reasons 
for this certification.
1. Description of Regulated Entities and Impacts
    The ``universe'' of the entities under consideration includes only 
those small entities that can reasonably be expected to be directly 
affected by the provisions of this rule. In this case, the ``universe'' 
would be Class III freight railroads that operate on rail lines that 
are currently required to have PTC systems installed. Such lines are 
owned by railroads not considered to be small.
    The U.S. Small Business Administration (SBA) stipulates in its 
``Size Standards'' that the largest a railroad business firm that is 
``for-profit'' may be, and still be classified as a ``small entity,'' 
is 1,500 employees for ``Line Haul Operating Railroads'' and 500 
employees for ``Switching and Terminal Establishments.'' ``Small 
entity'' is defined in the Act as a small business that is 
independently owned and operated, and is not dominant in its field of 
operation. Additionally, section 601(5) defines ``small entities'' as 
governments of cities, counties, towns, townships, villages, school 
districts, or special districts with populations less than 50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final policy 
that formally establishes ``small entities'' as railroads which meet 
the line haulage revenue requirements of a Class III railroad.\2\ The 
revenue requirements are currently $20 million or less in annual 
operating revenue. The $20 million limit (which is adjusted by applying 
the railroad revenue deflator adjustment) \3\ is based on the Surface 
Transportation Board's (STB) threshold for a Class III railroad 
carrier. FRA is using the STB's threshold in its definition of ``small 
entities'' for this rule.
---------------------------------------------------------------------------

    \2\ See 68 FR 24891 (May 9, 2003); 49 CFR part 209, app. C.
    \3\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR part 1201.
---------------------------------------------------------------------------

    FRA believes that portions of the proposal revising the rules 
regarding en route failures and discontinuances of signal systems are 
technical in nature, and have small economic impacts on any regulated 
entities, large or small.
    The changes to the de minimis provisions in the proposed regulation 
would impact Class III railroads that operate on lines of other 
railroads currently required to have PTC systems installed. To the 
extent that such host railroads receive relief from such a requirement 
along certain lines as proposed in this NPRM, Class III railroads that 
operate over those lines would not have to equip their locomotives with 
PTC system components. FRA believes that small railroads operating over 
the affected lines are already allowed to avoid equipping locomotives 
under Sec.  236.1006(b)(4), or are otherwise equipping their 
locomotives to operate over other track segments equipped with PTC 
systems. Further, some Class III railroads host passenger operations, 
but FRA does not believe any of those Class III railroads have any 
switching operations that would be affected by the proposed rule. To 
the extent that any Class III railroads are affected in circumstances 
of which FRA is unaware, the effect would be a benefit, in that the 
Class III railroads would be able to avoid installing PTC systems on 
some locomotives. FRA requests comment on whether any other small 
entities would be affected, and if such small entities would be 
affected what

[[Page 73601]]

the impacts on them would be, whether those impacts would be 
significant and whether the number of small railroads affected is 
substantial. FRA believes that no small entities would be affected by 
changes to the de minimis provisions, and that therefore the number of 
small entities affected is not substantial, and that the impact on them 
is not significant.
    One small railroad is required to file a PTCIP and would be 
affected by the changes in the reporting requirements in Sec.  
236.1009. The reporting requirements will require the railroad to 
report its progress in installing PTC, in April 2013, 2014 and 2015, in 
order to comply with the statutory deadlines. FRA believes that all 
railroads implementing PTC will track this information and compile it 
as part of internal management activities at least as frequently for 
what is likely to be a relatively large capital project on every 
affected railroad. FRA believes the incremental reporting regulatory 
burden is negligible, on the order of forwarding to FRA an email 
already generated within a railroad. FRA believes this is not a 
significant burden upon the one railroad affected. Thus FRA believes 
the reporting requirements will not have a significant impact on a 
substantial number of small entities.
2. Certification
    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the 
FRA Administrator certifies that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
FRA requests comment on both this analysis and this certification, and 
its estimates of the impacts on small railroads.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule are 
being submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the current information collection 
requirements and the estimated time to fulfill each proposed 
requirement are summarized as follows:

----------------------------------------------------------------------------------------------------------------
                                        Respondent          Total annual       Average time per    Total annual
           CFR Section                   universe            responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
234.275: Processor-Based Systems--
 Deviations from Product Safety
 Plan (PSP)
    Letters......................  20 Railroads.......  25 letters.........  4 hours............             100
235.7: Requests to FRA Regional    38 Railroads.......  500 requests.......  5 hours............           2,500
 Administrators for Modification
 of a Signal System Related to
 PTC Implementation (New
 Requirement).
    PTC Related Modification       38 Railroads.......  500 request copies.  30 minutes.........             250
     Request Copies to Railroad
     Union(s) (New Requirement).
236.15: Timetable Instructions--   38 Railroads.......  13 timetable         1 hour.............              13
 Designation of Positive Train                           Instructions.
 Control (PTC) Territory in
 Instructions (Revised
 Requirement).
236.18: Software Mgmt Control      184 Railroads......  184 plans..........  2,150 hours........         395,600
 Plan.
    Updates to Software Mgmt.      90 Railroads.......  20 updates.........  1.50 hours.........              30
     Control Plan.
236.905: Updates to RSPP.........  78 Railroads.......  6 plans............  135 hours..........             810
    Response to Request for        78 Railroads.......  1 updated doc......  400 hours..........             400
     Additional Info.
    Request for FRA Approval of    78 Railroads.......  1 request/modified   400 hours..........             400
     RSPP Modification.                                  RSPP.
236.907: Product Safety Plan       5 Railroads........  5 plans............  6,400 hours........          32,000
 (PSP)--Dev.
236.909: Minimum Performance
 Standard.
    Petitions for Review and       5 Railroads........  2 petitions/PSP....  19,200 hours.......          38,400
     Approval.
    Supporting Sensitivity         5 Railroads........  5 analyses.........  160 hours..........             800
     Analysis.
236.913: Notification/Submission   6 Railroads........  1 joint plan.......  25,600.............          25,600
 to FRA of Joint Product Safety
 Plan (PSP).
    Petitions for Approval/        6 Railroads........  6 petitions........  1,928 hours........          11,568
     Informational Filings.
    Responses to FRA Request for   6 Railroads........  2 documents........  800 hours..........           1,600
     Further Info. After
     Informational Filing.
    Responses to FRA Request for   6 Railroads........  6 documents........  16 hours...........              96
     Further Info. After Agency
     Receipt of Notice of Product
     Development.
    Consultations................  6 Railroads........  6 consults.........  120 hours..........             720
    Petitions for Final Approval.  6 Railroads........  6 petitions........  16 hours...........              96

[[Page 73602]]

 
    Comments to FRA by Interested  Public/RRs.........  7 comments.........  240 hours..........           1,680
     Parties.
    Third Party Assessments of     6 Railroads........  1 assessment.......  104,000 hours......         104,000
     PSP.
    Amendments to PSP............  6 Railroads........  15 amendments......  160 hours..........           2,400
    Field Testing of Product--     6 Railroads........  6 documents........  3,200 hours........          19,200
     Info. Filings.
236.917: Retention of Records....  ...................  ...................  160,000 hrs........  ..............
    Results of tests/inspections   6 Railroads........  3 documents/records  160,000 hrs.;               360,000
     specified in PSP.                                                        40,000 hrs.
    Report to FRA of               6 Railroads........  1 report...........  104 hours..........             104
     Inconsistencies with
     frequency of safety-relevant
     hazards in PSP.
236.919: Operations & Maintenance
 Man.
    Updates to O & M Manual......  6 Railroads........  6 updated docs.....  40 hours...........             240
    Plans for Proper Maintenance,  6 Railroads........  6 plans............  53,335 hours.......         320,010
     Repair, Inspection of Safety-
     Critical Products.
    Hardware/Software/Firmware     6 Railroads........  6 revisions........  6,440 hours........          38,640
     Revisions.
236.921: Training Programs:        6 Railroads........  6 Tr. Programs.....  400 hours..........           2,400
 Development.
    Training of Signalmen &        6 Railroads........  300 signalmen; 20    40 hours;..........          12,400
     Dispatchers.                                        dispatchers.        20 hours...........
236.923: Task Analysis/Basic       6 Railroads........  6 documents........  720 hours..........           4,320
 Requirements: Necessary
 Documents.
    Records......................  6 Railroads........  350 records........  10 minutes.........              58
SUBPART I--NEW REQUIREMENTS......
    236.1001--RR Development of    38 Railroads.......  3 rules............  80 hours...........             240
     More Stringent Rules Re: PTC
     Performance Stds.
236.1005: Requirements for PTC
 Systems.
    Request for Non-Temporal       38 Railroads.......  27 requests........  64 hours...........           1,728
     Alternative Risk Mitigation)
     (New Requirement).
    Temporary Rerouting:           38 Railroads.......  47 requests........  8 hours............             376
     Emergency Requests.
    Written/Telephonic             38 Railroads.......  47 notifications...  2 hours............              94
     Notification to FRA Regional
     Administrator.
    Temporary Rerouting Requests   38 Railroads.......  720 requests.......  8 hours............           5,760
     Due to Track Maintenance.
    Temporary Rerouting Requests   38 Railroads.......  361 requests.......  8 hours............           2,888
     That Exceed 30 Days.
236.1006: Requirements for
 Equipping Locomotives Operating
 in PTC Territory.
    PTC Progress Reports.........  38 Railroads.......  35 reports.........  16 hours...........             560
236.1007: Additional Requirements
 for High Speed Service.
    Required HSR-125 Documents     38 Railroads.......  3 documents........  3,200 hours........           9,600
     with approved PTCSP.
    Requests to Use Foreign        38 Railroads.......  2 requests.........  8,000 hours........          16,000
     Service Data.
    PTC Railroads Conducting       38 Railroads.......  3 documents........  3,200 hours........           9,600
     Operations at More than 150
     MPH with HSR-125 Documents.
    Requests for PTC Waiver......  38 Railroads.......  1 request..........  1,000 hours........           1,000
236.1009: Procedural Requirements
    Host Railroads Filing PTCIP    38 Railroads.......  1 PTCIP;...........  535 hours;.........           6,935
     or Request for Amendment                           20 RFAs............  320 hours..........
     (RFAs).
    Jointly Submitted PTCIPs.....  38 Railroads.......  5 PCTIP............  267 hours..........           1,335

[[Page 73603]]

 
     Notification of Failure to    38 Railroads.......  1 notification.....  32 hours...........              32
     File Joint PTCIP.
    Comprehensive List of Issues   38 Railroads.......  1 list.............  80 hours...........              80
     Causing Non-Agreement.
    Conferences to Develop         38 Railroads.......  1 conf. call.......  60 minutes.........               1
     Mutually Acceptable PCTIP.
    Annual Implementation Status   38 Railroads.......  38 reports +.......  8 hours +..........           2,584
     Report.                                            38 reports.........  60 hours...........
    Type Approval................  38 Railroads.......  2 Type Appr........  8 hours............              16
    PTC Development Plans          38 Railroads.......  20 Ltr. + 20 App.;   8 hours/1600 hrs;            44,960
     Requesting Type Approval.                           2 Plans.             6,400 hours.
    Notice of Product Intent w/    38 Railroads.......  3 NPI; 1 IP........  1,070 + 535 hrs....           3,745
     PTCIPs (IPs).
    PTCDPs with PTCIPs (DPs +      38 Railroads.......  1 DP...............  2,135 hours........           2,135
     IPs).
    Updated PTCIPs w/PTCDPs (IPs   38 Railroads.......  1 IP; 1 DP.........  535 + 2,135 hrs....           2,670
     + DPs).
    Disapproved/Resubmitted        38 Railroads.......  1 IP + 1 NPI.......  135 + 270 hrs......             405
     PTCIPs/NPIs.
    Revoked Approvals--            38 Railroads.......  IP + 1 DP..........  135 + 535 hrs......             670
     Provisional IPs/DP.
    PTC IPs/PTCDPs Still Needing   38 Railroads.......  1 IP + 1 DP........  135 + 535 hrs......             670
     Rework.
    PTCIP/PTCDP/PTCSP Plan         38 Railroads.......  1 document.........  8,000 hours........           8,000
     Contents--Documents
     Translated into English.
    Requests for Confidentiality.  38 Railroads.......  38 ltrs; 38 docs...  8 hrs; 800 hrs.....          30,704
    Field Test Plans/Independent   38 Railroads.......  190 field tests;...  800 hours..........         153,600
     Assessments--Req. by FRA.                          2 assessments......
    FRA Access: Interviews with    38 Railroads.......  76 interviews......  30 minutes.........              38
     PTC Wrkrs..
    FRA Requests for Further       38 Railroads.......  8 documents........  400 hours..........           3,200
     Information.
236.1011: PTCIP Requirements--     7 Interested Groups  1 rev.; 40 com.....  143 + 8 hrs........             463
 Comment.
236.1015: PTCSP Content
 Requirements & PTC System
 Certification.
    Non-Vital Overlay............  38 Railroads.......  3 PTCSPs...........  16,000 hours.......          48,000
    Vital Overlay................  38 Railroads.......  28 PTCSPs..........  22,400 hours.......         627,200
    Stand Alone..................  38 Railroads.......  1 PTCSP............  32,000 hours.......          32,000
    Mixed Systems--Conference      38 Railroads.......  3 conferences......  32 hours...........              96
     with FRA regarding Case/
     Analysis.
    Mixed Sys. PTCSPs (incl.       38 Railroads.......  1 PTCSP............  28,800 hours.......          28,800
     safety case).
    FRA Request for Additional     38 Railroads.......  19 documents.......  3,200 hours........          60,800
     PTCSP Data.
    PTCSPs Applying to Replace     38 Railroads.......  19 PTCSPs..........  3,200 hours........          60,800
     Existing Certified PTC
     Systems.
    Non-Quantitative Risk          38 Railroads.......  19 assessments.....  3,200 hours........          60,800
     Assessments Supplied to FRA.
236.1017: PTCSP Supported by       38 Railroads.......  1 assessment.......  8,000 hours........           8,000
 Independent Third Party
 Assessment.
    Written Requests to FRA to     38 Railroads.......  1 request..........  8 hours............               8
     Confirm Entity Independence.
    Provision of Additional        38 Railroads.......  1 document.........  160 hours..........             160
     Information After FRA
     Request.
    Independent Third Party        38 Railroads.......  1 request..........  160 hours..........             160
     Assessment: Waiver Requests.
    RR Request for FRA to Accept   38 Railroads.......  1 request..........  32 hours...........              32
     Foreign Railroad Regulator
     Certified Info.
236.1019: Main Line Track
 Exceptions.
    Submission of Main Line Track  38 Railroads.......  36 MTEAs...........  160 hours..........           5,760
     Exclusion Addendums (MTEAs).

[[Page 73604]]

 
    Passenger Terminal Exception-- 38 Railroads.......  19 MTEAs...........  160 hours..........           3,040
     MTEAs.
    Limited Operation Exception--  38 Railroads.......  19 plans...........  160 hours..........           3,040
     Risk Mit.
    Ltd. Exception--Collision      38 Railroads.......  12 analyses........  1,600 hours........          19,200
     Hazard Anal.
    Temporal Separation            38 Railroads.......  11 procedures......  160 hours..........           1,760
     Procedures.
236.1021: Discontinuances,         38 Railroads.......  19 RFAs............  160 hours..........           3,040
 Material Modifications,
 Amendments--Requests to Amend
 (RFA) PTCIP, PTCDP or PTCSP.
    Review and Public Comment on   7 Interested Groups  7 reviews + 20       3 hours; 16 hours..             341
     RFA.                                                comments.
236.1023: PTC Product Vendor       38 Railroads.......  38 lists...........  8 hours............             304
 Lists.
    RR Procedures Upon             38 Railroads.......  38 procedures......  16 hours...........             608
     Notification of PTC System
     Safety-Critical Upgrades,
     Rev., Etc.
    RR Notifications of PTC        38 Railroads.......  142 notifications..  16 hours...........           2,272
     Safety Hazards.
    RR Notification Updates......  38 Railroads.......  142 updates........  16 hours...........           2,272
    Manufacturer's Report of       5 System Suppliers.  5 reports..........  400 hours..........           2,000
     Investigation of PTC Defect.
    PTC Supplier Reports of        5 System Suppliers.  142 reports + 142    16 hours + 8 hours.           3,408
     Safety Relevant Failures or                         rpt. copies.
     Defective Conditions.
236.1029: Report of On-Board Lead  38 Railroads.......  836 reports........  96 hours...........          80,256
 Locomotive PTC Device Failure.
236.1031: Previously Approved PTC
 Systems.
    Request for Expedited          38 Railroads.......  3 REC Letters......  160 hours..........             480
     Certification (REC) for PTC
     System.
    Requests for Grandfathering    38 Railroads.......  3 requests.........  1,600 hours........           4,800
     on PTCSPs.
236.1035: Field Testing            38 Railroads.......  190 field test       800 hours..........         152,000
 Requirements.                                           plans.
    Relief Requests from           38 Railroads.......  38 requests........  320 hours..........          12,160
     Regulations Necessary to
     Support Field Testing.
236.1037: Records Retention......
    Results of Tests in PTCSP and  38 Railroads.......  836 records........  4 hours............           3,344
     PTCDP.
    PTC Service Contractors        38 Railroads.......  18,240 records.....  30 minutes.........           9,120
     Training Records.
    Reports of Safety Relevant     38 Railroads.......  4 reports..........  8 hours............              32
     Hazards Exceeding Those in
     PTCSP and PTCDP.
    Final Report of Resolution of  38 Railroads.......  4 final reports....  160 hours..........             640
     Inconsistency.
236.1039: Operations &             38 Railroads.......  38 manuals.........  250 hours..........           9,500
 Maintenance Manual (OMM):
 Development.
    Positive Identification of     38 Railroads.......  114,000 i.d.         1 hour.............         114,000
     Safety-critical components.                         components.
    Designated RR Officers in      38 Railroads.......  76 designations....  2 hours............             152
     OMM. regarding PTC issues.
236.1041: PTC Training Programs..  38 Railroads.......  38 programs........  400 hours..........          15,200
236.1043: Task Analysis/Basic      38 Railroads.......  38 evaluations.....  720 hours..........          27,360
 Requirements: Training
 Evaluations.
    Training Records.............  38 Railroads.......  560 records........  10 minutes.........              93
236.1045: Training Specific to     38 Railroads.......  32 trained           20 hours...........             640
 Office Control Personnel.                               employees.
236.1047: Training Specific to
 Loc. Engineers & Other Operating
 Personnel.

[[Page 73605]]

 
    PTC Conductor Training.......  38 Railroads.......  7,600 trained        3 hours............          22,800
                                                         conductors.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at 
202-493-6073.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after its publication in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. The final rule will respond 
to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

D. Federalism Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, 
``Federalism.'' See 64 FR 43,255 (Aug. 4, 1999). As discussed earlier 
in the preamble, this proposed rule would provide regulatory relief 
from the mandated implementation of PTC systems.
    Executive Order 13132 requires FRA to develop a process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
Policies that have ``federalism implications'' are defined in the 
Executive Order to include regulations that 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.'' Under 
Executive Order 13132, the agency may not issue a regulation with 
federalism implications that imposes substantial direct compliance 
costs and that is not required by statute, unless the federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or the agency consults 
with State and local government officials early in the process of 
developing the regulation. Where a regulation has federalism 
implications and preempts state law, the agency seeks to consult with 
State and local officials in the process of developing the regulation.
    FRA has determined that this proposed rule would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, nor on the distribution of 
power and responsibilities among the various levels of government. In 
addition, FRA has determined that this proposed rule would not impose 
any direct compliance costs on State and local governments. Therefore, 
the consultation and funding requirements of Executive Order 13132 do 
not apply.
    However, this proposed rule will have preemptive effect. Section 
20106 of Title 49 of the United States Code provides that States may 
not adopt or continue in effect any law, regulation, or order related 
to railroad safety or security that covers the subject matter of a 
regulation prescribed or order issued by the Secretary of 
Transportation (with respect to railroad safety matters) or the 
Secretary of Homeland Security (with respect to railroad security 
matters), except when the State law, regulation, or order qualifies 
under the local safety or security exception to Sec.  20106. 
Furthermore, the Locomotive Boiler Inspection Act (49 U.S.C. 20701-
20703) has been held by the U.S. Supreme Court to preempt the entire 
field of locomotive safety.
    In sum, FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this proposed rule is not required.

E. Environmental Impact

    FRA has evaluated this proposed rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (``FRA's 
Procedures'') (64 FR 28545, May 26, 1999) as required by the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental 
statutes, Executive Orders, and related regulatory requirements. FRA 
has determined that this proposed rule is not a major FRA action 
(requiring the preparation of an environmental impact statement or 
environmental assessment) because it is categorically excluded from 
detailed environmental review pursuant to section 4(c)(20) of FRA's 
Procedures. In accordance with section 4(c) and (e) of FRA's 
Procedures, the agency has further concluded that no extraordinary 
circumstances exist with respect to this regulation that might trigger 
the need for a more detailed environmental review. As a result, FRA 
finds that this proposed rule is not a major Federal action 
significantly affecting the quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 
1531) (UMRA) requires agencies to prepare a written assessment of the 
costs, benefits, and other effects of proposed or final rules that 
include a federal mandate likely to result in the expenditures by

[[Page 73606]]

state, local or tribal governments, in the aggregate, or by the private 
sector, of $100 million (adjusted annually for inflation with base year 
of 1995) or more in any one year. The value equivalent of $100 million 
in CY 1995, adjusted annual for inflation to CY 2008 levels by the 
Consumer Price Index for All Urban Consumers (CPI-U) is $141.3 million. 
The assessment may be included in conjunction with other assessments, 
as it is in this rulemaking.
    FRA is publishing this NPRM to provide additional flexibility in 
standards for the development, testing, implementation, and use of PTC 
systems for railroads mandated by RSIA to implement PTC systems. The 
RIA provides a detailed analysis of the costs and benefits of the NPRM. 
This analysis is the basis for determining that this rule will not 
result in total expenditures by State, local or tribal governments, in 
the aggregate, or by the private sector of $141.3 million or more in 
any one year. The costs associated with this NPRM are reduced accident 
reduction from an existing rule. The aforementioned costs borne by all 
parties will not exceed $3.3 million in any one year.

G. Energy Impact

    Executive Order 13211 requires federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this proposed rule in accordance with 
Executive Order 13211. FRA has determined that this proposed rule is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Consequently, FRA has determined that 
this regulatory action is not a ``significant regulatory action'' 
within the meaning of Executive Order 13211.

H. Privacy Act

    FRA wishes to inform all interested parties that anyone is able to 
search the electronic form of any written communications and comments 
received into any of our dockets by the name of the individual 
submitting the document (or signing the document), if submitted on 
behalf of an association, business, labor union, etc.). Interested 
parties may also review DOT's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (65 FR 19477) or visit 
http://www.regulations.gov/#!privacyNotice.

List of Subjects

49 CFR Part 234

    Highway safety, Highway-rail grade crossings, Penalties, Railroad 
safety, Reporting and recordkeeping requirements.

49 CFR Part 235

    Administrative practice and procedure, Penalties, Railroad safety, 
Reporting and recordkeeping requirements.

49 CFR Part 236

    Penalties, Positive Train Control, Railroad safety, Reporting and 
recordkeeping requirements.

The Proposed Rule

    In consideration of the foregoing, FRA is proposing to amend 
chapter II, subtitle B of title 49, Code of Federal Regulations as 
follows:

PART 234--[AMENDED]

    1. The authority citation for part 234 continues to read as 
follows:

    Authority:  49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    2. Amend Sec.  234.207 by revising paragraph (b) to read as 
follows:


Sec.  234.207  Adjustment, repair, or replacement of component.

* * * * *
    (b) If the failure of an essential component results in an 
activation failure, partial activation, or false activation, as defined 
in Sec.  234.5, a railroad shall take appropriate action under Sec.  
234.105, Activation failure, Sec.  234.106, Partial activation, or 
Sec.  234.107, False activation, of this part, until repair of the 
essential component is completed.
    3. Revise Sec.  234.213 to read as follows:


Sec.  234.213  Grounds.

    Each circuit that affects the proper functioning of a highway-rail 
grade crossing warning system shall be kept free of any ground or 
combination of grounds having a current flow of any amount that could 
adversely affect the proper safety-critical functioning of the warning 
system, including any ground or combination of grounds that will permit 
a current flow of 75 percent or more of the release value of any relay 
or electromagnetic device in the circuit. This requirement does not 
apply to: circuits that include track rail; alternating current power 
distribution circuits that are grounded in the interest of safety; and 
common return wires of grounded common return single break circuits.

PART 235--[AMENDED]

    5. The authority citation for part 235 continues to read as 
follows:

    Authority:  49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 
CFR 1.49.

    6. Amend Sec.  235.7 by adding paragraph (d) to read as follows:


Sec.  235.7  Changes not requiring filing of application.

* * * * *
    (d) In lieu of filing an application for approval to the Associate 
Administrator for Safety, modifications of a signal system where the 
resultant arrangement will comply with part 236 of this title 
consisting of the installation, relocation, or removal of signals, 
interlocked switches, derails, movable-point frogs, or electric locks 
in an existing system, directly associated with the implementation of 
positive train control pursuant to subpart I of part 236, may instead 
be approved by the FRA Regional Administrator having jurisdiction over 
the affected territory. To seek such approval, the railroad shall 
provide notice and a profile plan of the change to the appropriate FRA 
regional office. The railroad shall also at the same time provide a 
copy of the notice and profile plan to representatives of employees 
responsible for maintenance, inspection, and testing of the signal 
system under part 236. The Regional Administrator shall in writing deny 
or approve, in full or in part, and with or without conditions, the 
request for signal system modification. For any portion of the request 
that is denied, the Regional Administrator will refer the issue to the 
Railroad Safety Board as an application to modify the signal system.

PART 236--[AMENDED]

    7. The authority citation for part 236 continues to read as 
follows:

    Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20157, 
20301-20303, 20306, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 
CFR 1.49.


Sec.  236.0  [Amended]

    8. Amend Sec.  236.0 by removing and reserving paragraph (i).
    9. Revise Sec.  236.2 to to read as follows:

[[Page 73607]]

Sec.  236.2  Grounds.

    Each circuit, the functioning of which affects the safety of train 
operations, shall be kept free of any ground or combination of grounds 
having a current flow of any amount that could adversely affect the 
proper safety-critical functioning of a signal or train control system, 
including any ground or combination of grounds that will permit a flow 
of current equal to or in excess of 75 percent of the release value of 
any relay or other electromagnetic device in the circuit, except 
circuits which include any track rail and except the common return 
wires of single-wire, single-break, signal control circuits using a 
grounded common, and alternating current power distribution circuits 
which are grounded in the interest of safety.
    10. Revise Sec.  236.15 to read as follows:


Sec.  236.15  Timetable instructions.

    Automatic block, traffic control, train stop, train control, cab 
signal, and positive train control territory shall be designated in 
timetable instructions.
    11. Revise Sec.  236.567 to read as follows:


Sec.  236.567  Restrictions imposed when device fails and/or is cut out 
en route.

    (a) Where an automatic train stop, train control, or cab signal 
device fails and/or is cut out en route, the train on which the device 
is inoperative may proceed to the next available point of communication 
where report must be made to a designated officer, at speeds not to 
exceed:
    (1) If no block signal system is in operation, restricted speed; or
    (2) If a block signal system is in operation, according to signal 
indication but not to exceed medium speed.
    (b) Upon completion and communication of the report required in 
paragraph (a) of this section, a train may continue to a point where an 
absolute block can be established in advance of the train at speeds not 
to exceed:
    (1) If no block signal system is in operation, restricted speed; or
    (2) If a block signal system is in operation, according to signal 
indication but not to exceed medium speed.
    (c) Upon reaching the location where an absolute block has been 
established in advance of the train, as referenced in paragraph (b) of 
this section, the train may proceed at speeds not to exceed:
    (1) If no block signal system is in operation:
    (i) If the train is a passenger train, 59 miles per hour; or
    (ii) If the train is a freight train, 49 miles per hour.
    (2) If a block signal system is in operation, 79 miles per hour.
    12. Amend Sec.  236.1005 by revising the heading of table in 
paragraph (a)(1)(i), and paragraphs (b)(4)(iii)(A), (b)(4)(iii)(B)(3), 
(b)(4)(iii)(B)(4), and (b)(4)(iii)(C) to read as follows:


Sec.  236.1005  Requirements for Positive Train Control systems.

    (a) * * *
    (1) * * *
    (i) * * *

------------------------------------------------------------------------
 
------------------------------------------------------------------------
          Crossing type           Max speed           Protection
                                                       required
------------------------------------------------------------------------

* * * * *
    (b) * * *
    (4) * * *
    (iii) Freight lines with de minimis risk. (A) In a PTCIP or RFA, a 
railroad may request review of the requirement to install PTC on a low 
density track segment where a PTC system is otherwise required by this 
section, but has not yet been installed, based upon the presence of a 
minimal quantity of PIH materials (less than 200 cars per year, loaded 
and residue, with no more than two trains carrying PIH materials over 
the track segment each calendar day). Any such request shall be 
accompanied by estimated traffic projections for the next 5 years 
(e.g., as a result of planned rerouting, coordinations, or location of 
new business on the line). Where the request involves prior or planned 
rerouting of PIH materials traffic, the railroad must provide the 
information and analysis identified in paragraph (b)(4)(i) of this 
section. The submission shall also include a full description of 
potential safety hazards on the segment of track and fully describe 
train operations over the line. This provision is not applicable to 
lines segments used by intercity or commuter passenger service.
    (B) * * *
    (3) That does not have any portion of the segment with an average 
grade of one percent or greater over a distance of three continuous 
miles; and
    (4) On which any train transporting a car containing PIH materials 
(including a residue car) is operated under conditions of temporal 
separation from other trains using the line segment as documented by a 
temporal separation plan accompanying the request. As used in this 
paragraph, ``temporal separation'' has the same meaning given by Sec.  
236.1019(e), except that the separation addressed is the separation of 
a train carrying any number of cars containing PIH materials from other 
freight trains. In lieu of temporal separation, a railroad may employ, 
subject to FRA approval, an alternative means of similarly reducing the 
risk of PTC-preventable accidents and a release of PIH materials.
    (C) FRA will also consider, and may approve, requests for relief 
under this paragraph for additional line segments where it is 
established to the satisfaction of the Associate Administrator that 
risk mitigations will be applied that will ensure that the risk of PTC-
preventable accidents and a release of PIH materials is negligible.
* * * * *
    13. Amend Sec.  236.1006 by revising paragraphs (a) and (b)(2) and 
adding paragraph (b)(5) to read as follows:


Sec.  236.1006  Equipping locomotives operating in PTC territory.

    (a) Except as provided in paragraph (b) of this section, each 
operation on any track segment equipped with a PTC system shall be 
controlled by a locomotive equipped with an onboard PTC apparatus that 
is fully operative and functioning in accordance with the applicable 
PTCSP approved under this subpart.
    (b) * * *
    (2) Each railroad shall adhere to its PTCIP.
* * * * *
    (5) Yard moves. In a PTCSP or an RFA, a railroad may request a yard 
move de minimis risk exception to operate a locomotive without an 
onboard PTC apparatus installed where an onboard PTC apparatus is 
otherwise required by this part. This exception only applies to a 
locomotive engaged in switching service or engaged in transfer train 
service that originates either in the yard or that originates within 10 
miles of the yard with a final destination point being the yard.
    (i) Each such operation must include sufficient risk mitigations to 
ensure that the risk of PTC-preventable accidents and a release of PIH 
materials is negligible;
    (ii) The locomotive shall not travel to a point in excess of 10 
miles from its point of entry onto the PTC-equipped main line track; 
and
    (iii) The speed of the locomotive or train shall not exceed 25 
miles per hour.
* * * * *
    14. Amend Sec.  236.1009 by adding paragraph (a)(5) to read as 
follows:


Sec.  236.1009  Procedural requirements.

    (a) * * *
    (5) Each railroad filing a PTCIP shall report annually, on the 
anniversary of its original PTCIP submission, and until its PTC system 
implementation is complete, its progress towards fulfilling the goals 
outlined in its PTCIP under this section, including progress towards 
PTC system installation pursuant to Sec.  236.1005 and onboard PTC 
apparatus

[[Page 73608]]

installation and use in PTC-equipped track segments pursuant to Sec.  
236.1006.
* * * * *
    15. Amend Sec.  236.1029 by revising paragraph (b) introductory 
text and adding paragraph (g) to read as follows:


Sec.  236.1029  PTC system use and en route failures.

* * * * *
    (b) Where an onboard PTC apparatus on a lead locomotive that is 
operating in or is to be operated within a PTC system fails or is 
otherwise cut-out after the train has departed its initial terminal, 
the train may only continue in accordance with the following:
* * * * *
    (g) Where full functionality of an onboard PTC apparatus on a 
controlling locomotive that is operating within a PTC system is 
restored through use of a secondary apparatus, such as an onboard PTC 
apparatus in a trailing locomotive, the train may continue operations 
as specified in the railroad's PTCSP. The process for such restoration 
of functionality shall be specified in a railroad's PTCSP.

    Issued in Washington, DC, on November 29, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-29334 Filed 12-10-12; 8:45 am]
BILLING CODE 4910-06-P