[Federal Register Volume 69, Number 196 (Tuesday, October 12, 2004)]
[Notices]
[Pages 60698-60700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22941]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[FRA Emergency Order No. 18, Notice No. 2]


Burlington Northern Santa Fe Railway Company; Notice Rescinding 
FRA Emergency Order 18, Requiring the Capability To Initiate Emergency 
Application of Air Brakes From the Head End and Rear of Trains, After a 
60-day Interim Transition Period

    The Federal Railroad Administration (FRA) of the United States 
Department of Transportation (DOT) has determined that, absent further 
notice, FRA will consider the emergency situation requiring the 
issuance of Emergency Order 18 to have abated at the conclusion of a 
60-day interim transition period during which the Burlington Northern 
Santa Fe Railway Company (BNSF) will comply with a series of modified 
operational requirements before beginning full operation under the 
existing Federal regulations related to end-of-train (EOT) devices. 
Emergency Order 18 requires that all westward trains operated by the 
BNSF on the Cajon Subdivision, between Barstow milepost 745.9 and 
Baseline milepost 79.9, have the capability to initiate an emergency 
application of the air brakes from both the head and rear of the train 
and imposes certain inspection, testing, and operational requirements 
on the railroad.

Authority

    Authority to enforce Federal railroad safety laws has been 
delegated by the Secretary of Transportation to the Federal Railroad 
Administrator. 49 CFR 1.49. Railroads are subject to FRA's safety 
jurisdiction under the Federal railroad safety laws. 49 U.S.C. 20101, 
20103. FRA is authorized to issue emergency orders where an unsafe 
condition or practice ``causes an emergency situation involving a 
hazard of death or personal injury.'' 49 U.S.C. 20104. These orders may 
immediately impose such ``restrictions and prohibitions * * * that may 
be necessary to abate the situation.'' (Ibid.)

Background

    BNSF's line of railroad between Barstow and Los Angeles, 
California, consists of double main track which passes through the San 
Bernardino Mountains via ``Cajon Pass.'' The route for westward moving 
trains involves a steady climb from Barstow to Summit, California, a 
distance of approximately 55 miles. At Summit, the line begins a

[[Page 60699]]

descent westward with a more than 3 percent grade on one track and a 
more than 2 percent grade on the other track.
    Emergency Order 18 was issued on February 1, 1996, following two 
significant incidents in 1994 and 1996 on Cajon Pass resulting from an 
inability to control train speed following incomplete braking in the 
train. See 61 FR 5058 (February 9, 1996). Emergency Order 18 requires 
that all westward trains operated by the BNSF on the Cajon Subdivision, 
between Barstow milepost 745.9 and Baseline milepost 79.9, have the 
capability to initiate an emergency application of the air brakes from 
both the head and rear of the train. The Emergency Order set out a 
variety of ways in which the railroad could accomplish this task and 
imposes certain inspection and testing requirements for trains 
utilizing two-way EOT devices. See 61 FR 5059-60. BNSF has operated 
under the provisions of Emergency Order 18 for over eight years without 
any significant non-compliance.
    Subsequent to the issuance of Emergency Order 18, FRA issued 
regulations that directly addressed the inspection, testing, design, 
and operation of two-way EOT devices. See 62 FR 294 (January 2, 1997). 
These regulations are now found in subpart E of the Brake System Safety 
Standards for Freight and other Non-Passenger Trans and Equipment 
contained at 49 CFR part 232. Other than the area covered by Emergency 
Order 18, the rest of the United States has effectively and safely 
operated under the requirements contained in these Federal regulations. 
In June of 2003, after seven years of compliant operation under 
Emergency Order 18, BNSF requested relief from the requirements of the 
Emergency Order. The railroad conducted a meeting involving 
representatives of railroad employees and FRA in Redlands, California 
on January 15, 2004, to discuss rescission of the Order and to gather 
suggestions for potential post-relief operating procedures. (The 
California Public Utilities Commission was also invited to the 
meeting.)
    On July 30, 2004, FRA's Acting Associate Administrator for Safety 
provided some temporary relief from the provisions of Emergency Order 
18 to allow the required inspections and tests to be conducted at 
locations other than at Barstow, California, while FRA continued to 
assess the continued necessity of the Emergency Order.
    On September 23, 2004, BNSF filed a supplemental petition with FRA 
again seeking rescission of Emergency Order 18. BNSF asserts that an 
``emergency situation'' within the meaning of 49 U.S.C. 20104 no longer 
exists at Cajon Pass. BNSF also identifies three primary reasons for 
FRA to rescind the Emergency Order 18. First, BNSF contends that it has 
met the requisite grounds for relief by continuously operating in 
compliance with the Order for a period of 180 consecutive days. Second, 
BNSF states that the issuance of the Federal regulations regarding two-
way EOT devices ensures the safety of train operations over the Cajon 
Pass because BNSF operations on every other mountain grade territory 
over which it operates have safely and effectively utilized those 
regulations. Finally, BNSF asserts that the measures it voluntarily 
employs for operating trains through Cajon Pass further enhance the 
safety of such train movements.

Finding and Order

    Based on the years that BNSF has operated pursuant to the 
requirements of Emergency Order 18 without any significant non-
compliance, the occurrence of no significant train accident or injury 
related to the operation of trains over Cajon Pass during that time, 
and the existence of Federal regulations directly addressing the 
inspection, testing, and maintenance of two-way EOT devices that are 
effectively utilized throughout the rest of the country, FRA concludes 
that BNSF has made a prima facie case for rescission of Emergency Order 
18. However, due to the length of time BNSF has operated under 
Emergency Order 18, FRA believes it is prudent to have a short interim 
transition period of 60 days before complete rescission of the Order 
occurs and operation solely under the existing Federal regulation 
begins. During this interim 60-day period the original requirements of 
Emergency Order 18 will be rescinded and be replaced by interim 
requirements in order to allow the railroad to transition its 
operations through Cajon Pass to be consistent with existing Federal 
regulations. FRA considered the information and views provided by BNSF 
when developing the interim requirements. This short interim transition 
period will allow both FRA and the railroad to monitor the operations 
through Cajon pass during that period to ensure that any personnel and 
operating issues that may arise in the transition are adequately and 
safely addressed. Accordingly, pursuant to the authority of 49 U.S.C. 
20104, delegated to me by the Secretary of Transportation (49 CFR 
1.49), it is hereby ordered that:
    (1) As of October 9, 2004, the inspection, testing, and operating 
requirements mandated in Emergency Order 18, Notice 1, issued on 
February 1, 1996, are rescinded. Instead, starting on that same date, 
BNSF must ensure that all westward operating trains between Barstow 
milepost 745.9 and Baseline milepost 79.9 have the capability to 
effectuate an emergency brake application of the air brakes from both 
the head and rear of the train in accordance with 49 CFR part 232, 
subpart E--End-of-Train Devices, and abide by the additional 
requirements stated in paragraph (2), below.
    (2) Beginning on October 9, 2004, and continuing for a period of 60 
days, BNSF shall comply with the following inspection, testing, and 
operational requirements, except when the train is operated in 
accordance with paragraphs 1(B), 1(C), or 1(D) of the Order in effect 
prior to the issuance of this notice:
    (A) All westward train movements over the Needles Subdivision that 
are intended to continue between Summit milepost 55 and Baseline 
milepost 79.9 shall include an emergency brake test at some location 
between Needles and Summit, California. For purposes of this notice, an 
emergency brake test means a test to determine that an emergency brake 
application can be initiated from the rear of the train and that it 
propagates throughout the entire train. The test may be activated by 
using the head-end device and determining that the brake pipe pressure 
drops to zero, and it is not necessary to place an employee at the rear 
of the train to conduct this test.
    (B) All westward train movements over the Mojave Subdivision that 
are intended to continue between Summit milepost 55 and Baseline 
milepost 79.9 shall include an emergency brake test at some location 
between Hinkley and Summit, California.
    (C) BNSF shall maintain a written record in the cab of the lead-
locomotive for each emergency brake test performed under paragraphs 
(2)(A) and (B) of this Order if the emergency brake test was performed 
by a crew other than the crew responsible for the train during its 
descent over the Cajon Pass.
    (D) Any westward train operating with a non-turbine EOT device 
between Summit milepost 55 and Baseline milepost 79.9 shall be equipped 
with batteries that are sufficiently charged at the time of 
installation to ensure that the EOT device remains operative until the 
train reaches destination as required in 49 CFR 232.407(f)(2). In 
addition, the following requirements shall also apply:
    (i) BNSF shall comply with all applicable provisions of its Air 
Brake and Train Handling Rules that require EOT Device batteries to be 
tested every 60 days to ensure that they can be adequately charged;

[[Page 60700]]

    (ii) If a ``low battery'' indication is displayed during any 
westward train movement from Barstow through Summit, California, BNSF 
shall bring the train to a stop prior to departing Summit, California 
and change the battery.
    (iii) If a ``low battery'' indication is displayed during any 
westward train movement at or from Summit through Baseline, California, 
BNSF shall immediately bring the train safely to a stop in accordance 
with the railroad's operating rules and change the battery.
    (iv) BNSF shall maintain a written or electronic record of each 
battery change made pursuant to paragraph (2)(D)(ii) of this Order.
    (3) The inspection, testing, and operational requirements contained 
in paragraph (2) of this Order will terminate, and this Order will no 
longer be in effect, on December 8, 2004 unless FRA finds a pattern of 
non-compliance by BNSF with either the provisions of this Order or of 
49 CFR part 232, subpart E and issues a subsequent notice containing a 
finding that the emergency situation still exists and imposing any 
necessary requirements. Any such finding will be provided to the 
railroad in writing from FRA's Associate Administrator for Safety 
before any extension in the above-noted date is effectuated. After 
December 8, 2004, BNSF operations subject to this Order shall comply 
with all applicable portions of 49 CFR part 232, subpart E. If during 
the period covered by this notice, FRA determines that an emergency 
situation exists, as the term is used in 49 U.S.C. 20104, FRA reserves 
the right to issue an emergency order to address the situation if 
necessary.

Relief

    Emergency Order 18 will be rescinded in accordance with the dates 
and procedures identified in paragraphs (1) and (3) of the Finding and 
Order section of this notice. FRA will, at any time, consider requests 
by BNSF to exclude certain train operations from the scope of this 
order based on satisfactory demonstration that those operations can be 
safely performed using other procedures. However, all aspects of this 
order apply to all westward trains departing Barstow unless and until 
written special approval is granted permitting other procedures for 
specific train operations. The Associate Administrator for Safety is 
authorized to issue such special approvals without amending this order.

Penalties

    Any violation of this order shall subject the person committing the 
violation to a civil penalty of up to $20,000. 49 U.S.C. 21301. FRA 
may, through the Attorney General, also seek injunctive relief to 
enforce this order. 49 U.S.C. 20112.

Effective Date and Notice to Affected Persons

    This order shall take effect at 12:01 a.m (P.s.t.) on October 8, 
2004, and apply to all westward trains operating between Barstow 
milepost 745.9 and Baseline milepost 79.9. Notice of this Order will be 
provided by publishing it in the Federal Register. Copies of this 
Emergency Order will be sent by mail or facsimile prior to publication 
to the Vice President-Operations of BNSF, counsel for BNSF, officials 
of interested labor organizations, the California PUC, and the 
Association of American Railroads.

Review

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

    Issued in Washington, DC on October 6, 2004.
Betty Monro,
Acting Administrator.
[FR Doc. 04-22941 Filed 10-8-04; 8:45 am]
BILLING CODE 4910-06-P