[Federal Register Volume 70, Number 204 (Monday, October 24, 2005)]
[Notices]
[Pages 61496-61504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21253]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[FRA Emergency Order No. 24; Docket No. FRA-2005-22796, Notice No. 1]


Emergency Order Requiring Special Handling, Instruction and 
Testing of Railroad Operating Rules Pertaining to Hand-Operated Main 
Track Switches

Summary: The Federal Railroad Administration (FRA) of the United States 
Department of Transportation (DOT) has determined that public safety 
compels issuance of this Emergency Order (EO) requiring railroads to 
modify their operating rules and take certain other actions necessary 
to ensure that railroad employees who dispatch non-signaled territory 
or who operate hand-operated main track switches (switches) in non-
signaled territory, ensure the switches are restored to their proper 
(normal) position after use. For purposes of this EO, ``employee'' 
means an individual who is engaged or compensated by a railroad or by a 
contractor to a railroad to perform any of the duties defined in this 
EO. This EO is intended to reduce the risk of serious injury or death 
both to railroad employees and the general public.

For Further Information Contact: Douglas H. Taylor, Staff Director, 
Operating Practices Division, Office of Safety Assurance and 
Compliance, FRA, 1120 Vermont Avenue, NW., RRS-11, Mail Stop 25, 
Washington, DC 20590 (telephone 202-493-6255); or Alan H. Nagler, 
Senior Trial Attorney, Office of Chief Counsel, FRA, 1120 Vermont 
Avenue, NW., RCC-11, Mail Stop 10, Washington, DC 20590 (telephone 202-
493-6038).

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 ``restrictions and prohibitions * * * that may be 
necessary to abate the situation.'' (Ibid.)

[[Page 61497]]


Background: FRA's regulations, at 49 CFR part 217, require each 
railroad to instruct its employees on the meaning and application of 
its code of operating rules, and to periodically test its employees to 
determine their level of compliance. Railroad operating rules 
pertaining to the operation of switches provide that the normal 
position for a main track switch is lined and locked for movement on 
the main track when not in use. Another related operating rule provides 
that, where trains or engines are required to report clear of the main 
track, such a report must not be made until the switch and derail, if 
provided, have been secured in their normal position. Where no signal 
or other system is in service that indicates through wayside or cab 
signals, or both, the possibility that a main track switch may not be 
in its normal position, compliance with these railroad operating rules 
is the critical element in ensuring route integrity for main track 
movements.
    There may be more than one cause that contributes to non-compliance 
with these important operating rules. One recurrent scenario of non-
compliance occurs when a train crew has exclusive authority to occupy a 
specific track segment until they release it for other movements and 
that train crew goes off duty without lining and locking a hand-
operated main track switch in its normal position. In that scenario, 
the train crew's mistake in leaving a main track switch lined for 
movement to a secondary track was the last act or omission that 
resulted in a catastrophic accident.
    During the years 2000 through 2003, railroads reported no more than 
three accidents per year that were caused by improperly lined hand-
operated main track switches in non-signaled territory and one of the 
most serious of those wrecks was caused by vandalism. During that four 
year period, there were ten total injuries and two fatalities (all to 
railroad employees).
    In comparison, in 2004 there was a sharp increase in the frequency 
and severity of collisions resulting from improperly lined main track 
switches as shown on the attached charts. In 2004, there were a total 
of eight accidents resulting in eight injuries to railroad employees. 
The increase in the number of accidents and injuries did not go 
unnoticed by the industry as some railroads amended their operating 
rules to address this issue.
    On January 6, 2005, the issue of improperly lined main track 
switches became national news as the media reported on a catastrophic 
accident that occurred in Graniteville, South Carolina. This accident 
occurred when a Norfolk Southern Railway Company (NS) freight train was 
unexpectedly diverted from the main track onto an industrial lead. The 
NS train struck a standing train on the industrial lead, derailing 
three locomotives and 16 cars. The collision resulted in the rupture of 
a tank car containing chlorine, fatal injuries to eight citizens and 
one railroad employee, the evacuation of 5,400 local residents, and 
injuries to 630 people. Damages to equipment and track totaled more 
than $2.3 million. FRA immediately began deliberating on a course of 
action to prevent this type of accident. [The National Transportation 
Safety Board (NTSB) is investigating this accident, and will officially 
determine the probable cause of the accident which FRA is expressly not 
doing.]
    On January 8, 2005, a BNSF Railway Company (BNSF) freight train was 
unexpectedly diverted onto an industrial track in Bieber, California. 
The BNSF train struck two loaded grain cars, derailing seven 
locomotives and 14 cars. Two railroad employees were injured. Damages 
to equipment and track totaled more than $1 million.
    FRA decided to start a rulemaking proceeding and took action on 
January 10, 2005, to abate the safety risks during the proceeding by 
issuing Safety Advisory 2005-01, Position of Switches in Non-Signaled 
Territory (Safety Advisory). The issuance of a safety advisory is an 
opportunity for the agency to inform the industry and the general 
public regarding a safety issue, to articulate agency policy, and to 
make recommendations. FRA explained in the Safety Advisory that ``[a] 
review of FRA's accident/incident data shows that, overall, the safety 
of rail transportation continues to improve. However, FRA has 
particular concern that recent accidents on Class I railroads in non-
signaled territory were caused, or apparently caused, by the failure of 
railroad employees to return manual (hand-operated) main track switches 
to their normal position, i.e., lined for the main track, after use. As 
a result, rather than continuing their intended movement on the main 
track, trains approaching these switches in a facing-point direction 
were unexpectedly diverted from the main track onto the diverging 
route, and consequently derailed.''
    FRA also explained what we could do if the emergency situation did 
not abate. That is, in the Safety Advisory, FRA stated that we would 
consider ``the need for any additional action to address this 
situation, such as regulatory action or additional advisories. We are 
considering the form that any additional action might take, its 
specific content, and any necessary variations based on differing types 
of operations * * *. We are committed to taking whatever action appears 
necessary to prevent any further death or serious injury that might 
arise from additional failures to comply with the basic operating rules 
concerning the proper positioning of main track switches.''
    FRA's decision to make recommendations was based in part on the 
fact that several railroads had already initiated voluntary actions to 
enhance the applicable railroad operating rules during the last few 
months of 2004. FRA wanted to give all railroads the same opportunity 
to self-correct in the expectation that it would suffice to ameliorate 
this problem until, as discussed below, a rule could be issued. 
Furthermore, the purpose of the Safety Advisory was to heighten 
employee awareness of the importance of restoring main track switches 
to their normal position in non-signaled territory. A key element of 
the Safety Advisory was to promote and enhance intra-crew communication 
about the operation and position of main track switches.
    With the exception of a similar accident that occurred on CSX 
Transportation (CSX) in Banks, Alabama, on January 11, 2005, one day 
after publication of the Safety Advisory, and an accident, with 
relatively minor results, that was caused by an employee of a 
contractor to the Nashville and Eastern Railroad (NERR), in Mt. Juliet, 
Tennessee on February 23, 2005, there was a respite of nearly six 
months in accidents resulting from improperly lined main track switches 
in non-signaled territory. During this respite, FRA began a rulemaking 
on this subject and other human factor causes of accidents. For about 
the last decade, FRA has sought recommendations from its standing 
Federal advisory committee on most of the subjects on which FRA 
proposed to issue substantive safety rules. In FRA's view, this process 
produces better rules because it generates more substantive 
participation in rulemakings from experts representing both management 
and labor, and yields better and faster compliance with the final rule 
from the regulated community which helped craft it. On May 18, 2005, at 
the first opportunity to address this subject, the Railroad Safety 
Advisory Committee (RSAC or Committee) agreed to take up the task of 
reviewing how to reduce human factor caused train accidents/incidents 
and related employee injuries. The full Committee formed a smaller

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Operating Rules Working Group (Working Group) comprised of people 
expert in this subject to do the bulk of the work in formulating 
recommendations to complete the task, and a target date of February 10, 
2006, was established for the Working Group to report its findings and 
recommendations back to the full RSAC.
    Since May, the Working Group has met twice and progress toward a 
consensus recommendation has been made. One of the key elements in 
those discussions is the proper operation of main track switches in 
non-signaled territory. Through the Working Group's activities, FRA has 
already heard comments on this issue from organizations representing 
every affected party within the industry. The Working Group has three 
additional meetings scheduled in order to meet the February deadline 
for recommendations. FRA's goal is to publish a proposed rule in 2006, 
and a final rule soon thereafter.
    Working with a Federal advisory committee to generate consensus 
recommendations takes many meetings over a number of months, and 
rulemaking can take many more months. During the time it takes to 
accomplish these tasks, new accidents can occur that require more 
immediate action. That has happened here. After six months, the Safety 
Advisory no longer worked well enough to prevent more accidents.
    First, in July 2005, two accidents, with relatively minor results 
occurred. As the results were minor, and, FRA believed awareness was 
heightened due to the publication of the Safety Advisory and the RSAC's 
activities, FRA did not identify an emergency situation in July. The 
following is a synopsis of those two accidents.
    <bullet> July 7, 2005--Willamette & Pacific Railroad (WPRR), 
Sheridan, Oregon--a maintenance of way work train was parked in a 
siding and the switch was left lined for the siding. A local freight 
train, operating at a speed of 12 miles per hour (mph), was 
unintentionally diverted into the siding due to an improperly lined 
switch. The freight train struck the lead locomotive of the standing 
work train. Both locomotives derailed.
    <bullet> July 9, 2005--Dakota, Minnesota and Eastern Railroad 
(DME), Florence, Minnesota--the crew of an eastward BNSF light 
locomotive consist departing DME property and returning to BNSF 
trackage, failed to restore the junction switch to its normal position. 
Subsequently, an eastward DME train, operating at a speed of 38 mph, 
encountered an improperly lined switch. As a result, the lead 
locomotive derailed and was destroyed.
    Beginning six weeks later, three more accidents occurred with more 
serious results. The three recent accidents described below occurred 
over a 28-day period and clearly demonstrate the need for additional 
action beyond the Safety Advisory, as these three collisions, overall, 
resulted in fatal injuries to one railroad employee, non-fatal injuries 
to eight additional railroad employees, an evacuation of civilians, and 
railroad property damage of approximately two million dollars. 
Furthermore, each of these accidents could have been worse, as each had 
the potential for additional deaths, injuries, property damage or 
environmental damage. Two of the accidents could have involved 
catastrophic releases of hazardous materials as these materials were 
present in at least one of the train consists that collided.
    <bullet> August 19, 2005--Kansas & Oklahoma Railroad (KO), 
Nickerson, Kansas--an eastward loaded grain train was operating at a 
speed of 26 mph when it encountered an improperly lined switch at the 
west end of the siding. The train struck a standing cut of cars, 
resulting in the derailment of two locomotives and two freight cars. 
The locomotive engineer was severely injured.
    <bullet> August 21, 2005--Union Pacific Railroad (UP), Heber, 
California--an eastward freight train operating at a speed of 30 mph 
encountered an improperly lined switch at the west end of a siding. The 
train struck a standing cut of cars, resulting in the derailment of two 
locomotives and two freight cars. The control compartment on the lead 
locomotive was completely destroyed. The three crewmembers survived 
only by quickly throwing themselves on the floor of the locomotive 
immediately before impact. Considering the destruction to the 
locomotive control compartment, the crewmembers likely would have been 
seriously injured or killed, but for their quick action. The locomotive 
engineer, conductor and trainman were taken to a local hospital where 
they were treated and released.
    <bullet> September 15, 2005--UP, Shepherd, Texas--a southward 
freight train operating at a speed of 36 mph, collided head-on with a 
northward UP freight train that was standing in a siding. The collision 
occurred when the southward train encountered an improperly lined 
switch at the north end of the siding. The southward train struck the 
standing train and derailed two locomotives and 13 cars. The two 
locomotives and the four leading cars of the standing train were also 
derailed. The engineer of the standing train was fatally injured and 
four other crewmembers were injured. Eleven of the 13 cars contained 
hazardous materials. Although, no hazardous materials release occurred, 
a precautionary evacuation of 500 people was ordered by local 
authorities for a period of 12 hours.
    Each of the accidents that precipitated the Safety Advisory and 
this EO either resulted in, or had the potential to result in, serious 
injuries, fatalities, and catastrophic releases of hazardous materials. 
As previously stated, the industry achieved only a temporary respite 
from accidents of this type after the Safety Advisory's publication, 
instead of the long-term solution that FRA expected. The sudden and 
recent occurrence of five of this type of accident is a clear 
indication that the Safety Advisory has lost its effectiveness. Only 
with additional action can FRA secure compliance with these important 
railroad operating rules. FRA considered issuing another Safety 
Advisory, but that might at best only provide another temporary pause. 
As described above, FRA is currently seeking a permanent solution 
through rulemaking. The issuance of this EO is intended to accomplish 
what the Safety Advisory could not: Implement safety practices that 
will abate the emergency until FRA can complete rulemaking after 
receiving the RSAC's expert advice.
    Finding and Order: Collisions, deaths and injuries resulting from 
improperly lined main track switches began in 2004 to rise very sharply 
as shown on the attached charts. FRA's issuance of a Safety Advisory in 
early January 2005, recommending practices designed to prevent such 
events, led to a nearly six month respite. The sharply rising and 
accelerating trend of collisions, deaths and injuries resulting from 
improperly lined main track switches, which the Safety Advisory abated 
only temporarily, constitutes an emergency situation involving a hazard 
of death or personal injury which FRA must act to stop.
    Even considering the nearly six-month respite from January 12 
through July 6, the Nation has experienced more accidents resulting 
from improperly lined hand-operated switches on main track in non-
signaled territory than it experienced in any of the previous five 
years. To date in 2005, there were nine accidents resulting in 640 
injuries and 10 fatalities. Given the cloud of chlorine that covered 
much of Graniteville, South Carolina, on January 6, 2005, as a result 
of one of these accidents, it is fortuitous that the death toll is not

[[Page 61499]]

significantly higher; in addition, the same could be said for the 
Nickerson, Kansas and Shepherd, Texas accidents that occurred on August 
19, 2005 and September 15, 2005 respectively as trains involved in 
those accidents were transporting tank cars containing hazardous 
materials. Any reasonable extrapolation of the current trends of 
wrecks, deaths, and injuries makes clear that more accidents of this 
type will occur in the absence of this EO, that many of those accidents 
will result in injuries or deaths, or both, that a significant 
percentage of those wrecks will involve trains carrying hazardous 
materials, and that each of those wrecks will pose a significant risk 
that a large amount of hazardous material will be released. Considering 
the severity of accidents related to improperly lined hand-operated 
main track switches in non-signaled territory, the prevalence of 
hazardous materials on trains in non-signaled territory, and the recent 
and dramatic increase in the rate of occurrence of these accidents, 
decisive action is necessary now.
    FRA concludes that non-compliance with certain operating rules and 
practices on the Nation's railroads concerning the proper positioning 
of hand-operated main track switches in non-signaled territory lacking 
the safeguards of facing point protection is a combination of unsafe 
conditions and practices which causes an emergency situation involving 
an imminent and unacceptable hazard of death or personal injury. FRA 
further concludes that reliance solely on employee compliance with 
railroad operating rules related to the operation of hand-operated main 
track switches in non-signaled territory, without a Federal enforcement 
mechanism, is inadequate to protect the public safety.
    FRA also considered whether to apply this EO nationwide or limit it 
to those railroads that have had recent accidents. A review of the 2005 
accidents reveals that four major railroads and four other, smaller 
railroads were involved in accidents. On June 12, 2004, an alert Amtrak 
engineer made a full service application of the train brake and stopped 
three car lengths into a siding, thereby avoiding a potentially serious 
accident on CSX track in Apex, North Carolina. Going back to 2000, five 
additional smaller railroads were involved in accidents. Over the last 
six years, 41% of this type of accident has had at least one train 
consist involved that was carrying hazardous material, i.e., 11 out of 
27 accidents. Given the wide distribution of the accidents across 
various railroads, the similarity of physical conditions and operating 
practices among railroads of all sizes nationwide, the high number of 
new and inexperienced operating employees on many railroads, and the 
very high potential for serious harm, limiting the EO's effectiveness 
to only a small number of railroads would be an unjustifiable risk to 
public safety and the safety of railroad employees.
    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 each railroad and its employees, including 
employees of a contractor to a railroad, who operate hand-operated main 
track switches in non-signaled territory and who dispatch non-signaled 
territory, do, at a minimum, the following:

(1) Instruction

    Each employee subject to this EO shall be instructed on this EO and 
the railroad's operating rules relating to the operation of hand-
operated main track switches in non-signaled territory. The subject 
matter of the instruction shall include, but not be limited to:
    <bullet> Operation of main track switches;
    <bullet> Position of main track switches;
    <bullet> Restoring main track switches to their normal position;
    <bullet> Securing (locking) main track switches;
    <bullet> Correspondence of switch targets to switch position;
    <bullet> Clearing limits of main track authority;
    <bullet> Job briefings; and
    <bullet> Switch Position Awareness Form (SPAF).
    After receiving initial instruction, all employees must receive 
periodic instruction, in accordance with 49 CFR 217.11. Railroads shall 
maintain records of both initial and periodic instruction available for 
inspection and copying by representatives of the FRA during normal 
business hours. These records shall be maintained for a period of at 
least two years following the end of the calendar year during which the 
instruction was conducted.

(2) Hand-Operated Main Track Switches

    Employees operating hand-operated main track switches in non-
signaled territory shall be qualified on the railroad's operating rules 
relating to their operation. No employee is permitted to operate or 
verify the position of a hand-operated main track switch in non-
signaled territory unless that person is qualified on the railroad's 
operating rules relating to their operation.
    Employees operating hand-operated main track switches in non-
signaled territory are individually responsible for the proper 
operation of these switches, including restoration to their normal 
position after use. Employees operating hand-operated main track 
switches in non-signaled territory must visually ensure that:
    <bullet> Hand-operated main track switches are properly lined for 
the intended route; and
    <bullet> The switch points fit properly and the switch target, if 
so equipped, corresponds with the switch's position.
    The normal position of a main track switch shall be designated by 
the railroad and the switch must be lined and locked in that position 
when not in use, except when the switch is left in the charge of a 
crewmember of another train or the train dispatcher directs otherwise. 
When switches are not being operated, they must be locked, hooked or 
latched if so equipped.
    Before releasing the limits of a main track authority, the employee 
releasing the limits must report to the train dispatcher that all hand-
operated main track switches operated have been restored to their 
normal position, unless the train dispatcher directs otherwise. The 
train dispatcher must confirm the switch positions with the employee 
releasing the limits before clearing the limits of the authority. 
Additionally, in the case of a train, the train dispatcher must confirm 
that both the conductor and engineer have initialed the SPAF as 
required.

(3) Switch Position Awareness Form (SPAF)

    Employees operating hand-operated main track switches in non-
signaled territory shall complete a SPAF. Employees are individually 
responsible for the proper completion of these forms. The form must 
contain:
    <bullet> Train symbol, job number or other unique identifier;
    <bullet> Date;
    <bullet> Subdivision;
    <bullet> Employee's name; in the case of a train, both the 
Engineer's and Conductor's names;
    <bullet> Name and location of each main track switch operated by 
any employee;
    <bullet> Time switch was initially reversed;
    <bullet> Time switch was finally returned to the normal position;
    <bullet> Initials of the employee handling the switch;
    <bullet> Engineer's initials for each entry; and
    <bullet> Conductor's signature when the form is completed.
    Entries made with respect to a specific hand-operated main track 
switch in non-signaled territory must be recorded as soon as 
practicable after the

[[Page 61500]]

switch is reversed, and as soon as practicable after the switch is 
returned to its normal position before leaving the location. All 
information required on the SPAF must be entered before an employee 
reports clear of the limits of the main track authority. SPAFs shall be 
retained for a period of five days and made available to 
representatives of the FRA for inspection and copying.

(4) Job Briefings

    Job briefings shall be conducted by employees in connection with 
the operation of hand-operated main track switches in non-signaled 
territory:
    <bullet> Before work is begun;
    <bullet> Each time a work plan is changed; and
    <bullet> At completion of the work.

(5) Radio Communication

    In the case of a train, each time a crewmember operates, i.e., 
changes the position of, a hand-operated main track switch in non-
signaled territory, the crewmember shall communicate with the engineer 
by radio while physically at the switch location, stating the switch 
name and location, and the position of the switch (normal/reverse). 
Before movement may occur, the engineer must acknowledge that 
information by radio.
    If radios become inoperable, all crewmembers must conduct a job 
briefing regarding the use of hand-operated main track switches in non-
signaled territory before use, noting the inoperable radio on the SPAF.

(6) Operational Tests and Inspections

    The railroad's program of operational tests and inspections under 
49 CFR part 217 shall be revised as necessary to include the 
requirements of this EO, and shall specifically provide for a minimum 
number of such tests per year.

(7) Distribution of Emergency Order

    A copy of this EO shall be provided to all employees affected by 
this EO. A written receipt or acknowledgment must be retained 
permanently for each affected employee.
    Relief: Petitions for special approval to take actions not in 
accordance with this EO may be submitted to the Associate Administrator 
for Safety, who shall be authorized to dispose of those requests 
without the necessity of amending this EO. In reviewing any petition 
for special review, the Associate Administrator for Safety shall only 
grant petitions in which a petitioner has clearly articulated an 
alternative action that will provide, in the Associate Administrator 
for Safety's judgment, at least an equivalent level of safety as this 
EO provides. A copy of this petition should be submitted to the Docket 
Clerk, Department of Transportation Central Docket Management System, 
Nassif Building, Room Pl-401, 400 Seventh St., SW., Washington, DC 
20590. The form of such request may be in written or electronic form 
consistent with the standards and requirements established by the 
Central Docket Management System and posted on its Web site at http://dms.dot.gov.
    FRA recognizes that certain railroad operating rules or equipment 
used by some railroads already provide a level of safety equivalent to 
this EO. If all of a railroad's hand-operated main track switches in 
non-signaled territory are covered by one or more of the protective 
measures identified below, a railroad need not apply for relief from 
this EO as relief shall be deemed automatically granted. Relief from 
this EO is automatically granted when:
    <bullet> Operating rules require trains to approach all facing 
point hand-operated switches in non-signaled territory prepared to 
stop;
    <bullet> Hand-operated main track switches in non-signaled 
territory (unless out of service) are protected by distant switch 
indicators; or
    <bullet> Hand-operated main track switches in non-signaled 
territory are protected by switch point indicators, e.g., BNSF's 
automatic switches and CSX's self restoring switches, unless these 
switches are operated by hand.
    Penalties: Any violation of this EO shall subject the person 
committing the violation to a civil penalty of up to $27,000. 49 U.S.C. 
21301, 28 U.S.C. 2461, and see 69 FR 30591 (May 28, 2004). ``Person'' 
is defined by statute to include corporations, companies, associations, 
firms, partnerships, societies, and joint stock companies, as well as 
individuals. 1 U.S.C. 1. FRA may, through the Attorney General, also 
seek injunctive relief to enforce this EO. 49 U.S.C. 20112.
    Effective Date and Notice to Affected Persons: Upon issuance of 
this EO, railroads shall immediately initiate steps to implement this 
EO. Railroads shall complete implementation no later than November 22, 
2005. Notice of this EO will be provided by publishing it in the 
Federal Register.
    Review: Opportunity for review of this EO 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 19, 2005.
Joseph H. Boardman,
Administrator.
BILLING CODE 4910-06-P

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[FR Doc. 05-21253 Filed 10-21-05; 8:45 am]
BILLING CODE 4910-06-C