[Federal Register Volume 89, Number 27 (Thursday, February 8, 2024)]
[Notices]
[Pages 8739-8741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02536]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Emergency Order No. 33, Notice No.1]


Emergency Order To Prevent Operation of Trains and Other On-Track 
Rail Equipment on Blackwell Northern Gateway Railroad

SUMMARY: The Federal Railroad Administration (FRA) of the United States 
Department of Transportation has determined that public safety compels 
the issuance of an Emergency Order (Order) requiring the Blackwell 
Northern Gateway Railroad (BNGR) of Blackwell, Oklahoma, to discontinue 
operation of all trains, locomotives, and any other on-track rail 
vehicles or equipment under any circumstances over any track BNGR 
leases or owns, including the rail line extending from milepost (MP) 
0.09 at Wellington, Kansas, to MP 35.35 at Blackwell, Oklahoma, and 
from MP 127.0 to MP 125.0 at Blackwell until BNGR complies with all 
requirements of this Order.

FOR FURTHER INFORMATION CONTACT: Christian Holt, Staff Director, 
Operating Practices Division, Office of Railroad Safety at (202) 366-
0978 or <a href="/cdn-cgi/l/email-protection#5e1d362c372d2a373f30701631322a1e3a312a70393128"><span class="__cf_email__" data-cfemail="06456e746f75726f6768284e696a724662697228616970">[email protected]</span></a>; Elliott Gillooly, Attorney Adviser, 
Office of the Chief Counsel, at (202) 897-8666 or 
<a href="/cdn-cgi/l/email-protection#c287aeaeabadb6b6ec85abaeaeadadaebb82a6adb6eca5adb4"><span class="__cf_email__" data-cfemail="95d0f9f9fcfae1e1bbd2fcf9f9fafaf9ecd5f1fae1bbf2fae3">[email protected]</span></a>; or Veronica Chittim, Attorney Adviser, Office 
of the Chief Counsel, at (202) 480-3410 or <a href="/cdn-cgi/l/email-protection#faac9f88959493999bd4b992938e8e9397ba9e958ed49d958c"><span class="__cf_email__" data-cfemail="8cdae9fee3e2e5efeda2cfe4e5f8f8e5e1cce8e3f8a2ebe3fa">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Introduction

    As provided below, FRA has determined that public safety compels 
the issuance of this Order requiring BNGR to discontinue operations of 
all trains, locomotives, or any other on-track rail vehicles or 
equipment under any circumstances over any track it leases or owns, 
including the rail line extending from MP 0.09 at Wellington, Kansas, 
to MP 35.35 at Blackwell, Oklahoma, and from MP 127.0 to MP 125.0 at 
Blackwell until BNGR complies with all requirements of this Order.

Authority

    Authority to enforce Federal railroad safety laws has been 
delegated by the U.S. Secretary of Transportation (Secretary) to the 
Administrator of FRA. 49 U.S.C. 103; 49 CFR 1.89(e). 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, or a combination of 
unsafe conditions and practices, causes an emergency situation 
involving a hazard of death, personal injury, or significant harm to 
the environment.'' 49 U.S.C. 20104. Emergency orders may immediately 
impose ``restrictions and prohibitions . . . that may be necessary to 
abate the situation.'' Id.

Background

    BNGR operates on approximately 37 miles of rail line owned by the 
Oklahoma Department of Transportation (ODOT) and the Blackwell 
Industrial Authority (BIA). The line extends from Blackwell, Oklahoma, 
to Wellington, Kansas, where BNGR interchanges with

[[Page 8740]]

BNSF Railway. All track on the BNGR line is designated as ``excepted'' 
track, meaning that trains are limited to speeds of 10 miles per hour. 
BNGR operations on all track is further designated as ``yard limits,'' 
meaning that crews must be prepared to stop within one half the range 
of vision at all times when moving trains and engines. BNGR ownership 
changed on or about October 1, 2023. FRA is aware of several serious 
incidents that have occurred following the change in BNGR ownership, 
including two derailments and a highly dangerous movement of on-track 
equipment through an unprotected highway-rail grade crossing, narrowly 
missing a collision with a passenger vehicle.
    FRA recently began investigating BNGR's operations following a 
derailment that occurred on December 27, 2023. FRA has found that BNGR 
is operating with a complete disregard for the safety of the public and 
has not taken corrective action to resolve safety issues identified by 
FRA as posing imminent risks of injury or death. BNGR has, in its short 
time under current ownership, operated locomotives not safe for use 
under Federal law (49 U.S.C. 20701, 49 CFR part 229), allowed 
locomotives to be operated by persons not properly qualified as 
engineers in accordance with FRA regulations (49 CFR part 240), and 
failed to qualify any engineers or conductors under any qualification 
program in accordance with FRA regulations (49 CFR parts 240 and 242, 
respectively). BNGR has maintained no records of track safety 
inspections, no records of employees designated and qualified to 
perform track inspections, and no records that roadway workers have 
been trained to use roadway maintenance machines or perform safety-
essential functions in accordance with FRA regulations (49 CFR parts 
213 and 214).
    Further, in violation of FRA regulations (49 CFR part 225), BNGR 
has failed to report, at a minimum, the two derailments that FRA has 
discovered through its investigation. In both derailments, the 
individual operating the derailed train was not properly qualified as 
an engineer in accordance with 49 CFR part 240, including at least one 
instance when the train's locomotive was also several years past its 
required periodic inspection (see 49 CFR 229.23(a)). Additionally, 
there is evidence that persons not employed by the railroad and with no 
qualification under FRA regulations were allowed to operate locomotives 
(see 49 CFR 240.201(d)). Moreover, there is evidence BNGR employees 
have been directed by BNGR ownership to provide FRA false information, 
including a false engineer certification card and false hours of 
service (HOS) records.
    BNGR has created a public safety emergency through a willful 
failure to undertake basic responsibilities such as track inspection 
and training for safety-related railroad employees in combination with 
the deliberate actions of one or more individuals in positions of 
authority at this railroad. FRA has obtained substantial evidence that 
the most senior person on location at the BNGR, a co-owner of the 
railroad, has personally operated locomotives and trains on the BNGR 
line without the required training or qualification, leading to 
derailments, and has provided false information to FRA. Evidence also 
shows this individual has directed employees to act in ways that are 
unsafe and wholly contrary to a safety culture railroad employees 
expect and require to do their jobs properly, including directions to 
put locomotives into service not fit for use and prepare false HOS 
records. Aggravating all of the foregoing concerns, BNGR has not 
provided FRA with documentation that the railroad has a written program 
of operational tests and inspections on its operating rules in 
accordance with FRA regulations (49 CFR 217.9) or the required training 
program for its safety-related employees under 49 CFR part 243.
    On January 17, 2024, FRA found no program for track inspection in 
compliance with FRA safety regulations (49 CFR part 213) and no 
inspection records for any month from the time the BNGR came under 
current ownership (October through December 2023). Following these 
findings, BNGR's manager represented to FRA that all track over which 
BNGR operates would be taken out of service. Under 49 CFR part 213, any 
movements on track that is out of service for repairs must be 
authorized by a Sec.  213.7 qualified person and be made only to 
facilitate repairs. See Sec.  213.233(d).
    On Sunday, January 28, 2024, witnesses reported that at 
approximately 5:15 p.m., C.S.T., an on-track hi-rail vehicle \1\ nearly 
collided with a highway passenger vehicle at a highway-rail grade 
crossing at Doolin Avenue over the BNGR line near Blackwell, Oklahoma. 
This incident demonstrates a cascade of failures to protect life and 
safety by BNGR, as the grade crossing signal system at the highway-rail 
grade crossing was not activated, no flag protection of the 
intersection was provided, and the hi-rail vehicle reportedly made no 
effort to stop and yield the right-of-way to vehicular traffic at the 
crossing, which is a customary railroad safety practice and often part 
of a railroad's operating rules under 49 CFR part 217.
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    \1\ A hi-rail vehicle is a roadway maintenance machine that is 
manufactured to meet Federal Motor Vehicle Safety Standards and is 
equipped with retractable flanged wheels so that the vehicle may 
travel over the highway or on railroad tracks. See 49 CFR 214.5.
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Finding and Order

    The evidence developed in FRA's investigation of the BNGR has led 
FRA to conclude that continued operation of any rail equipment by BNGR 
on any part of its line poses an imminent threat to safety, including 
the threat of serious harm to persons employed by BNGR and the public. 
Further, the pattern of gross negligence and willful failures to comply 
with Federal safety regulations in multiple functional areas, including 
track safety, locomotive engineer qualification and certification, 
operating practices, and roadway worker safety, persuades FRA that 
reliance alone upon the assurances and cooperation of BNGR is not 
possible, consistent with public safety. Therefore, as the 
Administrator of FRA, I find that the combination of unsafe conditions 
and practices discussed above creates an emergency situation involving 
a hazard of death or injury to persons.
    Accordingly, pursuant to the authority of 49 U.S.C. 20104, 
delegated to me by the Secretary, it is ordered that BNGR must 
discontinue, and may not permit under any circumstances, the operations 
of trains, locomotives, or any other on-track rail vehicles or 
equipment on any part of the track that it owns or leases from ODOT or 
the BIA, including all track between Wellington, Kansas, and Blackwell, 
Oklahoma, while this Order remains in effect. I direct that a copy of 
this Order be posted in a public location at the railroad's office and 
a copy of the Order be provided to each employee of the railroad within 
24 hours of the date of issuance.
    FRA investigation of this railroad is ongoing, and FRA may take 
further steps to assure public safety. These steps may include 
additional notice(s) under this Order and/or other enforcement action.

Relief

    BNGR may only resume operations and obtain full relief from this 
Order by taking the following actions:
    1. Submit to FRA for approval both a current, written program for 
certifying the qualification of engineers under 49 CFR part 240 and a 
current, written program for certifying the qualification

[[Page 8741]]

of conductors under 49 CFR part 242. See 49 CFR 240.101; 49 CFR 
242.101.
    2. Submit to FRA for approval a list of conductors and engineers 
who have been certified under the written programs approved by FRA, 
with complete, written certification determinations for each individual 
as required under 49 CFR 240.109 for engineers, and 49 CFR 242.109 for 
conductors.
    3. Submit to FRA for approval a written program of operational 
tests and inspections to be put in effect in accordance with 49 CFR 
217.9.
    4. Submit to FRA for approval a training program in compliance with 
49 CFR part 243 for training, qualification, and oversight of safety-
related railroad employees.
    5. Submit to FRA for approval an on-track safety program that 
complies with the requirements of 49 CFR part 214, subpart C, and 
complete training and qualification records in accordance with that 
program for all employees who will engage in any on-track work or use 
of roadway maintenance machines.
    6. Submit to FRA a list of designated, qualified persons 
responsible for maintenance and inspection of track in accordance with 
49 CFR 213.7.
    7. Accompany FRA track inspectors on a joint inspection of all BNGR 
track.
    8. Complete all remedial actions noted by FRA for track defects 
identified following the joint inspection and submit records of all 
required track inspections after the completion of all remedial action.
    9. Certify to FRA that a self-audit of HOS records has been 
completed and submit to FRA any records found to be incorrect or 
substantially incomplete with corrections to those records, to the 
extent possible.
    10. Certify to FRA that all employees have been trained on HOS 
requirements under 49 CFR part 228; 49 U.S.C. ch. 211.
    11. Certify to FRA that all employees have been trained on the 
requirements under 49 CFR part 225 to report accidents and incidents to 
FRA.
    12. Submit to FRA all records of inspections required to be 
maintained under Sec.  234.109 (system malfunction at highway-rail 
grade crossings).
    13. Certify that all locomotives are in proper condition and fit 
for service in accordance with 49 U.S.C. ch. 207 and 49 CFR part 229.
    14. Obtain approval from the FRA Administrator that all 
requirements of this Order have been met and properly performed.
    To obtain relief, BNGR must take the actions described above and 
submit all required information and certifications to 
<a href="/cdn-cgi/l/email-protection#094a617b607a7d606867274166657d496d667d276e667f"><span class="__cf_email__" data-cfemail="de9db6acb7adaab7bfb0f096b1b2aa9ebab1aaf0b9b1a8">[email protected]</span></a> and subsequently inform the FRA Administrator in 
writing that it believes all of the requirements of this Order have 
been met. FRA will conduct verification inspections and will inform 
BNGR in writing whether it is in compliance with this Order so that the 
Order may be lifted. If FRA does not lift the Order, FRA's written 
response will specifically describe what additional measures need to be 
taken to meet all of the requirements of this Order.

Partial Relief

    For FRA to consider granting partial relief from this Order, BNGR 
must submit a written plan for approval to <a href="/cdn-cgi/l/email-protection#1d5e756f746e69747c7333557271695d797269337a726b"><span class="__cf_email__" data-cfemail="c487acb6adb7b0ada5aaea8caba8b084a0abb0eaa3abb2">[email protected]</span></a> that 
provides a detailed explanation of the partial relief sought, the 
specific measures that BNGR proposes to ensure the safety of any 
operations to be permitted, and the period of time for which such 
partial relief is sought.
    Any partial relief provided will remain subject to BNGR's 
compliance with its approved written plan to provide safety measures, 
limitations on operations, and time periods for each component part of 
the partial relief. Failure to comply with any material provision of 
the approved plan will result in the partial relief being revoked.

Penalties

    Any violation of this Order or the terms of any approved written 
plan pursuant to this Order subjects the person (railroad carrier) 
committing the violation to a civil penalty of up to $35,516 for 
ordinary violations and $142,063 for aggravated violations for each day 
the violation continues. 49 U.S.C. 21301; 88 FR 89551 (Dec. 28, 2023). 
Any individual (railroad personnel) who willfully violates a provision 
stated in this Order is subject to civil penalties under 49 U.S.C. 
21301. In addition, such an individual (railroad personnel) whose 
violation of this Order demonstrates the individual's unfitness for 
safety-sensitive service may be removed from safety-sensitive service 
on the railroad under 49 U.S.C. 20111.
    If appropriate, FRA may pursue criminal penalties under 49 U.S.C. 
522(a) and 49 U.S.C. 21311(a), as well as 18 U.S.C. 1001, for the 
knowing and willful falsification of a report required by this Order. 
FRA may, through the Attorney General, also seek injunctive relief to 
enforce this Order. 49 U.S.C. 20112.

Effective Date and Notice to Affected Persons

    This Order takes effect at 12:01 a.m., C.S.T., on February 3, 2024, 
and applies to operations of all trains, locomotives, and any other on-
track rail vehicles or equipment. Notice of this Order will be provided 
by publishing it in the Federal Register. Copies of this Order will be 
sent by email prior to publication to BNGR, ODOT, and BIA.

Review

    Opportunity for formal review of this Order will be provided in 
accordance with 49 U.S.C. 20104(b) and 5 U.S.C. 554. 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 February 2, 2024.
Amitabha Bose,
Administrator.
[FR Doc. 2024-02536 Filed 2-7-24; 8:45 am]
BILLING CODE 4910-06-P


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