59108 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

§ 40.163 How does the MRO report drug 

test results? 

* * * * * 

(c) * * * 

(10) The DOT Agency, if noted on the 

CCF. 

* * * * * 

■ 10. In § 40.187, paragraph (f) is 

revised to read as follows: 

§ 40.187 What does the MRO do with split 

specimen laboratory results? 

* * * * * 

(f) For all split specimen results, as 

the MRO you must in Step 7 of Copy 2 

of the CCF: 

(1) Report split specimen test results 

by checking the ‘‘Reconfirmed’’ box and/ 

or the ‘‘Failed to Reconfirm’’ box, or the 

‘‘Test Cancelled’’ box, as appropriate. 

(2), Enter your name, sign, and date. 

(3) Send a legible copy of Copy 2 of 

the CCF (or a signed and dated letter, 

see § 40.163) to the employer and keep 

a copy for your records. Transmit the 

document as provided in § 40.167. 

■ 11. In § 40.191, paragraph (d)(2) is 

revised, to read as follows: 

§ 40.191 What is a refusal to take a DOT 

drug test, and what are the consequences? 

* * * * * 

(d) * * * 

(2) As the MRO, you must note the 

refusal by checking the ‘‘Refusal to Test’’ 

box in Step 6 on Copy 2 of the CCF, 

checking whether the specimen was 

adulterated or substituted and, if 

adulterated, noting the adulterant/ 

reason. If there was another reason for 

the refusal, check ‘‘Other’’ in Step 6 on 

Copy 2 of the CCF, and note the reason 

next to the ‘‘Other’’ box and on the 

‘‘Remarks’’ lines, as needed. You must 

then sign and date the CCF. 

* * * * * 

■ 12. In § 40.193, paragraph (d)(2)(i) is 

revised, to read as follows: 

§ 40.193 What happens when an employee 

does not provide a sufficient amount of 

urine for a drug test? 

* * * * * 

(d) * * * 

(2) * * * 

(i) Check the ‘‘Refusal to Test’’ box and 

‘‘Other’’ box in Step 6 on Copy 2 of the 

CCF and note the reason next to the 

‘‘Other’’ box and on the ‘‘Remarks’’ lines, 

as needed. 

* * * * * 

■ 13. In § 40.203, paragraphs (d)(2) and 

(d)(3) are revised, to read as follows: 

§ 40.203 What problems cause a drug test 

to be cancelled unless they are corrected? 

* * * * * 

(d) * * * 

(2) The certifying scientist’s signature 

is omitted on Copy 1 of the CCF for a 

positive, adulterated, substituted, or 

invalid test result. 

(3) The collector uses a non-Federal 

form or an expired CCF for the test. This 

flaw may be corrected through the 

procedure set forth in § 40.205(b)(2), 

provided that the collection testing 

process has been conducted in 

accordance with the procedures of this 

part in an HHS-certified laboratory. 

During the period of October 1, 2010– 

September 30, 2011, you are not 

required to cancel a test because of the 

use of an expired CCF. Beginning 

October 1, 2011, if the problem is not 

corrected, you must cancel the test. 

■ 14. In § 40.209, paragraphs (b)(1) and 

(b)(9) are revised, to read as follows: 

§ 40.209 What procedural problems do not 

result in the cancellation of a test and do 

not require corrective action? 

* * * * * 

(b) * * * 

(1) A minor administrative mistake 

(e.g., the omission of the employee’s 

middle initial, a transposition of 

numbers in the employee’s social 

security number, the omission of the 

DOT Agency in Step 1–D of the CCF.) 

* * * * * 

(9) Personal identifying information is 

inadvertently contained on the CCF 

(e.g., the employee signs his or her name 

on Copy 1); or 

* * * * * 

■ 15. In § 40.355, paragraph (l) is 

revised, to read as follows: 

§ 40.355 What limitations apply to the 

activities of service agents? 

* * * * * 

(l) In transmitting documents to 

laboratories, you must ensure that you 

send to the laboratory that conducts 

testing only Copy 1 of the CCF. You 

must not transmit other copies of the 

CCF or any ATFs to the laboratory. 

* * * * * 

[FR Doc. 2010–24038 Filed 9–24–10; 8:45 am] 

BILLING CODE 4910–9X–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 236 

[Docket No. FRA–2008–0132, Notice No. 4] 

RIN 2130–AC03 

Positive Train Control Systems 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule amendments. 

SUMMARY: FRA is issuing amendments 

to the final rule regarding the 

development, testing, implementation, 

and use of Positive Train Control (PTC) 

systems for railroads as mandated by the 

Rail Safety Improvement Act of 2008. 

With publication of the final rule on 

January 15, 2010, FRA sought further 

comment on certain specific issues. 

These amendments are being made 

partially in response to the applicable 

comments filed and to further clarify 

certain provisions of the final rule. 

DATES: The amendments to the final rule 

are effective November 26, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Thomas McFarlin, Office of Safety 

Assurance and Compliance, Staff 

Director, Signal & Train Control 

Division, Federal Railroad 

Administration, Mail Stop 25, West 

Building 3rd Floor, Room W35–332, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590 (telephone: 

202–493–6203) (e-mail: 

Thomas.McFarlin@dot.gov); or Jason 

Schlosberg, Trial Attorney, Office of 

Chief Counsel, RCC–10, Mail Stop 10, 

West Building 3rd Floor, Room W31– 

217, 1200 New Jersey Avenue, SE., 

Washington, DC 20590 (telephone: 

202–493–6032) (e-mail: 

Jason.Schlosberg@dot.gov). 

SUPPLEMENTARY INFORMATION: Table of 

Contents for Supplementary 

Information: 

I. Introduction and Background 

II. Scope of Further Comments Sought 

III. Further Comments Filed and FRA’s 

Response 

A. Removal From PTCIP of Track Segments 

Not Yet Implemented With PTC Systems 

B. De Minimis Exception 

IV. Section-by-Section Analysis 

V. Regulatory Impact and Notices 

I. Introduction and Background 

Partially as a consequence and 

severity of certain very public accidents, 

coupled with a series of other less 

publicized accidents, Congress passed 

the Rail Safety Improvement Act of 2008 

§ 104, Public Law 110–432, 122 Stat. 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59109 

4854 (Oct. 16, 2008) (codified at 9 

U.S.C. 20157) [hereinafter ‘‘RSIA08’’]. 

The RSIA08 was signed into law by 

President George W. Bush on October 

16, 2008, marking a public policy 

decision that, despite the 

implementation costs, railroad 

employee and general public safety 

warranted mandatory and accelerated 

installation and operation of Positive 

Train Control (PTC) systems. 

On January 15, 2010, FRA issued 

regulations (‘‘final rule’’) implementing 

the PTC requirements under RSIA08. 

The final rule, among other things, 

contained the process for submission of 

statutorily required PTC 

Implementation Plans for FRA review 

and approval. The final rule also 

established 2008 as a statistical baseline 

for determining which track segments 

must be outfitted and operated with 

PTC systems, a process to request 

modification of that baseline, and 

standards for approval of such requests. 

While that document is a final rule, 

FRA identified specific provisions for 

which it would consider making 

changes and sought comments on those 

provisions. FRA indicated that it would 

only consider comments falling within 

the scope of those provisions. 

Following the issuance of the final 

rule, FRA received several comments. In 

this document, FRA responds to those 

comments that fell within the scope of 

the comments requested and amends 

the final rule accordingly. 

II. Scope of Further Comments Sought 

While the final rule became effective 

on March 16, 2010, FRA believed that 

certain issues warranted further 

discussion. Accordingly, FRA sought 

comments limited to increasing the 

clarity, certainty, and transparency of 

the criteria governing the removal from 

a PTC Implementation Plan (PTCIP) 

(and therefore from the requirement to 

install PTC) of any track segments on 

which PTC systems have yet to be 

installed for which a railroad seeks 

relief from the requirement to install 

PTC. FRA continues to consider this 

issue separate and distinct from the 

discontinuance of any already installed 

or existing PTC systems, which is 

governed under § 236.1021, part 236 of 

title 49, and the ‘‘Signal Inspection Act’’ 

(codified at 49 U.S.C. 20501–20505). 

FRA indicated that any comments 

should be limited to the scope of those 

issues to which FRA requested further 

comment. 

As explained in the preamble to the 

final rule, 2008 traffic data will be used 

as an initial baseline in each PTCIP to 

determine the breadth and scope of PTC 

system implementation. In recognition 

of the fact that traffic patterns are likely 

to change to some degree before 

December 31, 2015, the final rule also 

provides a means of adjusting the track 

segments on which PTC must be 

installed where adjustments are 

appropriately justified. These issues 

relate to a railroad’s potential request to 

scale back the breadth and scope of that 

baseline contemporaneously or 

subsequently to PTCIP submission and 

prior to actual PTC system 

implementation. Since those issues 

should not affect the PTCIP required to 

be filed by the April 16, 2010, statutory 

deadline, FRA believed that time was 

available for some further consideration. 

In § 236.1005(b)(4)(i)(A)(2), the final 

rule provided three tests that must be 

satisfied to remove a line due to 

cessation of poison by inhalation (PIH, 

also commonly referred to as toxic by 

inhalation or TIH) materials traffic over 

the track segment; each of these tests 

will be discussed in greater detail but 

are summarized here. First, 

§ 236.1005(b)(4)(i)(A)(2)(i), provides that 

the requesting railroad must show that 

the line segment will be free from local 

PIH materials traffic. Second, under 

§ 236.1005(b)(4)(i)(A)(2)(ii), the 

requesting railroad must submit a 

routing analysis that assumes that the 

line segment and all of the carrier’s 

practicable alternative routes that the 

carrier considers using to transport the 

PIH materials traffic are equipped with 

PTC. The analysis must show that any 

rerouting of PIH materials traffic from 

the subject track segment is justified 

based upon the route analysis submitted 

or that an alternative route is 

substantially as safe and secure as the 

track segment in question. FRA sought 

comments on how the elements of a 

route analysis should be weighed by 

FRA when determining whether 

rerouting as provided under this 

paragraph is sufficiently justified. 

Third, under 

§ 236.1005(b)(4)(i)(A)(2)(iii) the 

requesting railroad must establish that 

the remaining risk arising from rail 

operations on the track segment is less 

than the average equivalent risk per 

route mile on line segments required to 

be equipped with PTC because of gross 

tonnage and the presence of PIH 

materials traffic. FRA sought comment 

on how to measure the appropriate level 

of risk established. No railroad had 

supplied data supporting further track 

exceptions from PTC system installation 

consistent with statutory and safety 

requirements. Thus, in the final rule, 

FRA requested additional data to 

support commenters’ positions. FRA 

also sought comment and information 

on ways that it might consider risk 

mitigations other than by a 

compensating extension of PTC or PTC 

technologies. Section 

236.1005(b)(4)(i)(A)(2)(iii) also provides 

that if the railroad would otherwise be 

required to install PTC on a line 

segment under paragraph (iii), that the 

railroad would be able to make a 

compensating extension of PTC on a 

different line segment rather than 

installing PTC on the line segment. 

In § 236.1005(b)(4)(ii), the final rule 

provides an exception to PTC system 

implementation where there is a de 

minimis risk of release of PIH materials 

on the line segment. While in the 

proposed rule FRA sought means to 

reduce the railroads’ burdens associated 

with this rule, no specific de minimis 

exception was proposed. AAR 

mentioned this possibility in its 

comment filed during the final rule’s 

comment period and offered to work 

with FRA on this issue in 

supplementary comments filed after that 

comment period. FRA believes that the 

de minimis exception provided in the 

final rule fell within the scope of the 

issues set forth in the proposed rule. 

However, since none of the parties has 

had an opportunity to comment on this 

specific exception as provided in this 

final rule, FRA sought comments on the 

extent of the de minimis exception. 

III. Further Comments Filed and FRA’s 

Response 

In the comment period following 

issuance of the final rule, documents 

were filed by Association for American 

Railroads (AAR), Fred Millar, Invensys 

Rail Corporation (Invensys), the 

Metropolitan Transportation Authority 

of New York (NYMTA), the National 

Transportation Safety Board (NTSB), 

and the Rail Interoperability Group 

(RIG). However, the four comments filed 

by Fred Millar, Invensys, NYMTA, and 

RIG were squarely outside of the scope 

of further comments requested. For 

instance, Mr. Millar’s comments 

regarding what should be done under 

the PHMSA rail routing rule are outside 

the scope of this rulemaking and do not 

require a change in the PTC final rule. 

Accordingly, FRA has elected to treat 

those four comments as Petitions for 

Reconsideration. FRA also received 

three formal Petitions for 

Reconsideration from AAR, Siemens 

Industry, Inc., and the Chlorine 

Institute. FRA will respond to all 

Petitions for Reconsideration, including 

those comments FRA is treating as 

Petitions for Reconsideration, in a 

separate document that will be mailed 

to the Petitioners and made part of the 

public docket in this proceeding. 

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59110 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

The purpose of this document is to 

respond to comments that are within the 

scope of FRA’s request for comments 

contained in the final rule. As 

previously noted, these issues include 

the pre-installation removal of track 

segments from PTCIPs and the de 

minimis exception. 

A. Removal From PTCIP of Track 

Segments Not Yet Implemented With 

PTC Systems 

Section 236.1005(b)(4) of the final 

rule provided for exclusions or removal 

of track segments from the PTC baseline. 

Paragraph (b)(4) provides that a railroad 

may request FRA review of the 

requirement to install PTC on a track 

segment where a PTC system is 

otherwise required by the rule, but has 

not yet been installed, based upon 

changes in rail traffic such as reductions 

in total traffic volume or cessation of 

passenger or PIH materials service. More 

specifically, paragraph (b)(4)(i)(A)(2) 

provides that in the case of cessation of 

PIH materials traffic over a track 

segment, and absent special 

circumstances, FRA will approve an 

exclusion of a line from the PTCIP 

(determined on the basis of 2008 traffic 

levels) upon a showing by the railroad 

that: 

(i) There is no remaining local PIH traffic 

expected on the track segment; 

(ii) Either any rerouting of PIH traffic from 

the subject track segment is justified based 

upon the route analysis submitted, which 

shall assume that each alternative route will 

be equipped with PTC, and shall take into 

consideration any significant interline 

routing impacts; or the next preferred 

alternative route in the analysis is shown to 

be substantially as safe and secure as the 

route employing the track segment in 

question and demonstrated considerations of 

practicability indicate consolidation of the 

traffic on that next preferred alternative 

route; and 

(iii) After cessation of PIH traffic on the 

subject line, the remaining risk associated 

with PTC-preventable accidents per route 

mile on the track segment will not exceed the 

average comparable risk per route mile on 

Class I lines in the United States required to 

be equipped with PTC because of gross 

tonnage and the presence of PIH traffic. If the 

subject risk is greater than the average risk on 

those PIH lines, and if the railroad making 

the application for removal of the track 

segment from the PTCIP offers no 

compensating extension of PTC or PTC 

technologies from the minimum required to 

be equipped, FRA may deny the request. 

NTSB filed comments expressing its 

belief that the final rule as written 

provides enough flexibility to railroads 

either at the time of initial filing or 

through a request for amendment to 

subsequently address changes in traffic 

patterns. NTSB noted that in the final 

rule FRA delineated the requirements it 

will consider before approving any 

exclusion. According to NTSB, it 

appears that both the railroads and FRA 

have an understanding of the term 

‘‘consistent with safety and in the public 

interest’’ for conventional signal systems 

covered by subparts A through F of part 

236. Railroads routinely submit block 

signal applications in accordance with 

part 235, ‘‘Instructions Governing 

Applications for Approval of a 

Discontinuance or Material 

Modification of a Signal System or 

Relief From the Requirements of Part 

236,’’ to modify or retire these 

conventional signal systems. FRA also 

has demonstrated use of its 

discretionary authority to review these 

Block Signal Applications and to either 

approve or deny them. The NTSB 

believes that any justified adjustments 

to the track segments on which PTC 

must be installed are an extension of 

FRA’s use of its discretionary authority 

to review and consider any amendments 

to ensure they meet the requirements of 

this rule and are consistent with safety 

and in the public interest. 

AAR also filed comments regarding 

the exclusions provided by paragraph 

(b)(4). These comments fall into three 

subcategories. 

First, AAR contested FRA’s multiple 

uses of the phrase ‘‘absent special 

circumstances.’’ After consideration of 

AAR’s concerns, FRA has decided to 

remove this language from the rule. 

Second, AAR challenged paragraph 

(b)(4)(i)(A)(2)(ii), which provides that 

where the request involves prior or 

planned rerouting of PIH materials 

traffic, the railroad must provide a 

supporting route analysis that takes into 

consideration the requirements of the 

Pipeline and Hazardous Materials Safety 

Administration (PHMSA) Rail Route 

Analysis Rule, 49 CFR § 172.820 

(PHMSA rail routing rule). The 

paragraph also assumes that the subject 

route and each practicable alternative 

route that the carrier considers using to 

transport the PIH materials traffic is PTC 

equipped. FRA has decided to clarify 

§ 236.1005 and the relationship between 

the PHMSA rail routing rule and the 

PTC final rule. FRA has also slightly 

modified the substance of paragraph 

(b)(4)(i)(A)(2)(ii) in response to AAR’s 

comments and has moved the text to a 

new § 236.1020. 

Finally, AAR disputes the residual 

risk analysis requirements under 

paragraph (b)(4)(i)(A)(2)(iii) of 

§ 236.1005. FRA has slightly modified 

the substance of this paragraph in 

response to AAR’s comments and has 

also moved this text to the new 

§ 236.1020, and has delayed the 

effective date of the residual risk 

analysis requirement under paragraph 

(b)(4)(i)(A)(2)(iii), as revised herein, 

until an appropriate notice and 

comment period can be conducted on 

the risk analysis tool currently being 

developed by FRA. 

1. ‘‘Absent Special Circumstances’’ 

Language 

Section 236.1005(b)(4)(i)(A)(1) of the 

final rule provides that, in the case of a 

requested exclusion based on cessation 

of passenger service or a decline in gross 

tonnage below 5 million gross tons as 

computed over a 2-year period, the 

removal will be approved absent 

‘‘special circumstances.’’ AAR 

recommended that FRA remove the 

special circumstances proviso to 

provide clarity, certainty, and 

transparency. While 

§ 236.1005(b)(4)(i)(A)(1) gives an 

example of a special circumstance 

(anticipated traffic growth), AAR states 

that the regulations address traffic 

growth in § 236.1005(b)(3) and it is 

unnecessary to address traffic growth 

here. According to AAR, the ‘‘special 

circumstances’’ language is too vague to 

provide sufficient guidance to the 

regulated community and if FRA were 

to insist it is necessary to address traffic 

growth in § 236.1005(b)(4)(i)(A)(1), it 

can do so specifically. 

In any event, AAR asserts that there 

should be no discretion in deciding 

whether to approve the withdrawal of a 

line segment from the PTCIP if the 

criteria in the PTC regulation are met. 

According to AAR, the ‘‘special 

circumstances’’ clauses are inconsistent 

with FRA’s stated aim of clarity, 

certainty, and transparency and should 

be deleted. 

FRA believes that there is merit in 

AAR’s request and, in order to ensure 

consistency and certainty in decision 

making, FRA is removing the ‘‘special 

circumstances’’ language in paragraph 

(b)(4)(i)(A)(1). FRA can address special 

circumstances (such as an extreme grade 

approaching major interlocking or a 

moveable bridge location), if necessary, 

using its general authority to install 

signal and train control systems. See 49 

U.S.C. 20502. 

2. Alternative Route Analysis and the 

PHMSA Rail Routing Rule 

AAR recommends that paragraph 

(b)(4)(i)(A)(2)(ii) be deleted. AAR objects 

to the requirement that the railroads 

have to perform an analysis that 

assumes that the subject route and each 

practicable alternative route that the 

carrier considers for the movement of 

PIH materials are PTC equipped. AAR 

asserts that the criteria addressing the 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59111 

1Thus, for example, in most non-signal territory 

we would say that the method of operation is by 

track warrants. In territory with automatic block 

signals, the method of operation is typically by 

track warrant supplemented by indications of the 

automatic block signal system. In territory equipped 

with a traffic control system, the method of 

operation is by indications of the signal system. In 

territory equipped with a traffic control system and 

cab signals (with or without train control or train 

stop), the method of operation is still by indications 

of the signal system while the cab signals could 

provide authority for movement between 

interlockings. On the Northeast Corridor today 

between New Haven and Boston, the method of 

operation is by indications of the traffic control 

system and cab signals, supplemented by automatic 

train control and the Advanced Civil Speed 

Enforcement System (which together make up a 

form of PTC). 

cessation of PIH materials service are 

confusing and inconsistent with 

PHMSA rail routing rule. AAR notes 

that the PHMSA rail routing rule does 

not require an analysis assuming that all 

routes are equipped with PTC or the 

railroads to ‘‘take into consideration any 

significant interline routing impacts,’’ 

but only to ‘‘consider the use of 

interchange agreements with other rail 

carriers.’’ Moreover, AAR does not 

understand what ‘‘next’’ means, since 

there is no rank ordering of alternatives 

to be considered under PHMSA’s 

routing regulations, and how to quantify 

‘‘as safe and secure,’’ which is not the 

same as the PHMSA criterion, which 

focuses on the ‘‘overall safety and 

security risk.’’ AAR is also confused by 

the last sentence, not understanding 

why a railroad would choose a route 

that is less practicable than an 

alternative and asks what evidence FRA 

would expect to see pursuant to this 

requirement. 

AAR notes that the PHMSA rail 

routing rule requires railroads to 

analyze a line currently used to move 

PIH materials traffic (as well as other 

security-sensitive materials) and all 

practicable alternative routes, and to 

utilize the line posing the least overall 

safety and security risk. See 49 CFR 

172.820. AAR indicates its belief that 

RSIA08 cannot be read to require PTC 

installation on routes used for PIH 

materials and routes that could be used 

for PIH materials if only a different 

routing analysis than that mandated by 

PHMSA rail routing rule were used. 

AAR argues that a decision to require 

the installation of PTC based on FRA’s 

determination as to where TIH should 

be routed as opposed to the route 

chosen pursuant to the PHMSA routing 

analysis would, as a practical matter, 

place the two agencies in conflict. 

According to AAR, ‘‘[i]f under the 

PHMSA analysis of two routes one route 

was found to pose the least overall 

safety and security risk and FRA 

mandated PTC on the other route 

because its analysis of safety concerns 

disagreed with the PHMSA outcome, 

the two agencies would be in 

disagreement as to which route should 

be used for TIH.’’ 

AAR also claims that this FRA 

requirement conflicts with RSIA08. 

AAR states that: 

[i]f FRA decides that TIH should be routed 

on a line segment different than the line 

segment chosen pursuant to the PHMSA 

routing analysis and requires PTC on its 

favored route, FRA would be mandating PTC 

on both the route of its choice and the route 

actually used for TIH pursuant to the PHMSA 

routing analysis. Certainly, RSIA08 cannot be 

read to require installation of PTC on routes 

used for TIH and routes that could be used 

for TIH if only a different routing analysis 

than that mandated by PHMSA were used. 

AAR believes that any perceived 

deficiency in the rail routing rule 

should be remedied by amending that 

regulation, not engaging in a separate, 

conflicting analysis in the PTC 

regulation. Accordingly, AAR believes 

that FRA should delete 

§ 236.1005(b)(4)(i)(A)(2)(ii). 

AAR is incorrect in assuming that 

FRA does not intend the railroads to 

follow the requirements of the PHMSA 

rail routing rule in determining whether 

to reroute PIH materials traffic and FRA 

will make this explicit. 

Routing analysis is useful for two 

entirely different purposes. Routing 

analysis under the PHMSA rule, which 

FRA participated in developing and has 

the responsibility to administer, governs 

current routing of PIH materials, certain 

explosives, and certain high level 

nuclear waste and is based upon an 

annual analysis that a carrier performs 

to select the routes that pose the least 

overall safety and security risks based 

on conditions as they exist at the time 

of the analysis and changes that may 

reasonably be anticipated to occur in the 

upcoming year. Nothing in the PTC final 

rule disturbs this regime in any way. 

Carriers will continue to do their 

analysis and route traffic as they are 

today, with the caveat described below. 

However, there are two unbreakable 

policy links between this rulemaking 

and the operation of the PHMSA rule: 

First, RSIA08 is clear that PTC must 

be installed on lines carrying PIH 

materials and at least 5 million gross 

tons of traffic. Thus, to the extent this 

rulemaking permits PTC to be installed 

on a distinct subset of the alternative 

routes available for overhead (non-local) 

transportation of PIH materials, those 

routes will de facto and de jure be the 

only routes available for PIH materials 

transportation on and after December 

31, 2015—regardless of overriding safety 

or security concerns that might argue for 

alternative routing. There is nothing in 

the PHMSA rule that specifically 

requires PTC to be installed as a 

mitigation measure, and although 

railroads would be free do so, that 

structure is not designed to deal with 

the full range of issues related to PTC 

(including other pertinent risks). It was 

the RSIA08, not the 9/11 Commission 

Implementation Act of 2004, Public Law 

108–548, 118 Stat. 3638 (Dec. 17, 2004) 

(9/11 Commission Act), that addressed 

the requirement for PTC on PIH 

materials lines, and the PHMSA 

structure is not the place to address the 

RSIA08 mandate. 

Second, even before this PTC rule is 

fully implemented it will begin to have 

an inevitable impact on some routing 

decisions. One of the 27 factors called 

out for analysis under the PHMSA rule 

is ‘‘method of operation.’’ As used in rail 

parlance, ‘‘method of operation’’ can be 

understood in either a very narrow 

sense to mean the source of movement 

authorities for train operations or in a 

broader sense to include all means by 

which train movements are authorized 

and controlled. It is the latter sense 

intended for purposes of the PHMSA 

rule.1 PTC is part of the method of 

operation wherever installed. It is 

already installed on portions of the 

Northeast Corridor and on Amtrak’s 

Michigan line. When installed in a new 

territory, and when most lead 

locomotives operating over the territory 

have PTC onboard apparatus installed 

and operative, PTC will reduce the 

safety risk associated with transporting 

PIH commodities by something on the 

order of one-third. Thus, over time, 

installation of PTC will affect some 

routing choices even before the end of 

2015. 

The PTC final rule could have ignored 

these inevitable interrelationships. 

However, the responsible path was to 

recognize the interrelationships and try 

to craft an approach to PTC planning 

that took them fully into account. That 

is what FRA has attempted to do. In this 

response to comments, and with final 

rule amendments, we endeavor to 

assure that all parties fully understand 

what is intended and to ensure that the 

language we employ in rule text is as 

clear as we can make it. 

FRA’s comments in the preamble to 

the final rule were not intended to 

criticize the PHMSA rail routing rule, 

but rather to illuminate the significance 

of the difference between the two rules 

and to point out that a decision under 

the PHMSA rail routing rule concerning 

where PIH materials traffic will be 

routed is not necessarily determinative 

concerning which routes will receive 

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59112 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

PTC. The two decisions, though related, 

differ significantly. At the same time, 

FRA does not intend to ‘‘redo’’ under the 

PTC rule any decisions made under the 

PHMSA rail routing rule. Although they 

are complementary, the two rules are 

not the same and do not have the same 

purposes. Again, under the PHMSA rail 

routing rule, routing of PIH materials 

shipments is reconsidered annually 

based on the overall safety and security 

risks posed at the time. Under the PTC 

rule, there is an orderly process for 

moving from signal systems and traffic 

patterns extant in 2008 to installation 

and operation of PTC systems by 

December 31, 2015. The presence of PIH 

materials shipments is a criterion for 

requiring installation of PTC if the 

traffic volume level on the line is 5 

million gross tons or more. However, as 

noted above, the railroad’s analysis 

under the PHMSA rail routing rule 

would not consider the positive safety 

effects of the installation of PTC unless 

the railroad intended to promptly install 

a PTC system on a particular line (risk 

mitigations planned for future years are 

not considered). By the same token, 

routing analysis conducted under the 

PTC rule will not affect current routings, 

since this could result in PIH materials 

traffic moving off of a line in 2010 

despite the fact that PTC will not be 

installed until 2014 or 2015. Paragraph 

(b)(4)(i)(A)(2)(ii) attempts to bridge the 

timing differences between the two 

rules in a manner that achieves the goals 

of both rules while respecting the way 

each rule works. It appears that FRA did 

not succeed in doing so with the clarity 

intended, so FRA will clarify this 

provision. 

FRA wishes to emphasize that the 

interrelationships between the PHMSA 

rule and this rulemaking are 

fundamental; not transient or topical. As 

PTC becomes fully effective on rail lines 

over the coming years, those routes will 

come to carry the overwhelming bulk of 

PIH materials traffic. If only a small 

network of PTC lines is built out on 

each railroad, impacts on PIH materials 

routing could be dramatic. Routing 

alternatives would diminish. Unlike 

today, when the great majority of the 

PIH materials traffic that takes the most 

direct route to destination with the least 

amount of switching and least exposure 

to derailment hazards, constricting PIH 

materials to a small PTC network has 

the potential to drive circuitous routings 

that could increase switching, introduce 

delays in transportation related to 

marshalling of trains, increase 

derailment and miscellaneous hazards, 

and even increase security risks due to 

routing through high threat urban areas. 

The final rule limits these potential 

adverse consequences by asking that— 

for planning purposes only—the 

railroads submit alternative routing 

analysis to support any requests to drop 

lines from the 2008 base (a period 

during which, it is undisputed, that 

most of the subject PIH materials traffic 

was moving by the most direct and 

expeditious route). 

AAR is also incorrect in its reading of 

RSIA08. Under RSIA08, FRA is given 

the authority—reconfirming its preexisting authority—to require PTC to be 

installed on lines whether or not they 

carry PIH materials traffic; FRA will 

discuss its statutory authority further in 

the response to AAR’s comments to 

paragraph (b)(4)(i)(A)(2)(iii). As 

described in this document’s section-bysection analysis, FRA is clarifying the 

substance of this paragraph in response 

to AAR’s comments and has moved the 

text to a new § 236.1020. 

3. Residual Risk Analysis 

AAR also objected to and urges the 

deletion of § 236.1005(b)(4)(i)(A)(2)(iii), 

arguing that the RSIA08 directive is to 

address lines on which PIH materials or 

passengers are transported, and that a 

line with no PIH materials or passenger 

traffic poses no risk of the type that 

RSIA08 addresses through its PTC 

mandate. AAR does not believe there is 

a need for the industry to make the 

calculation required by paragraph 

(b)(4)(i)(A)(2)(iii). Accordingly, AAR 

believes that FRA should delete 

§ 236.1005(b)(4)(i)(A)(2)(iii). 

AAR believes that this requirement 

contrasts with § 236.1005(b)(4)(ii)(C), 

which contains a de minimis exception 

applicable where a railroad can show 

the risk of a PIH materials release to be 

negligible. According to AAR, it would 

appear that if the risk of a PIH materials 

release is negligible, that would be more 

significant under the RSIA08 than an 

analysis of the risk of PTC-preventable 

accidents. AAR asserts that if PIH 

materials were removed from a line 

segment, then the risk of a PIH materials 

release clearly would be negligible, thus 

providing no reason to require PTC. 

AAR believes that removal of PIH 

materials from a segment is the ultimate 

risk mitigation strategy. 

If FRA were to retain 

§ 236.1005(b)(4)(i)(A)(2)(iii), AAR 

asserts that its second sentence should 

be revised to plainly state that a railroad 

indeed has the discretion to make a 

compensating extension of PTC. 

Otherwise, according to AAR, that 

sentence implies, but does not clearly 

state, that if the analysis shows that the 

risk associated with the track segment 

exceeds the average comparable risk on 

lines required to be equipped with PTC 

because of PIH, then the railroad can 

choose not to install PTC on the track 

segment if it makes a compensating 

extension of PTC elsewhere. 

AAR also notes that risk comparison 

requirements should be clearer. For 

instance, AAR states that FRA needs to 

determine the time period over which 

risk is to be measured. Comparing risk 

per route mile requires certain 

knowledge of the applicable host 

railroad track segments, which is not 

available to all tenant railroads that may 

be filing for an exception here. The 

analysis only becomes more difficult 

when determining whether an accident 

is PTC-preventable, which must be 

made on a case-by-case basis. 

We disagree. RSIA08 clearly gives 

FRA the authority to require PTC on 

lines other than those identified in 

§ 20157(a)(1)(C) of the statute and the 

need for this requirement is discussed 

in the final rule. The fact that the 

PHMSA rail routing rule may result in 

some rerouting of PIH materials traffic 

does not mean that FRA should ignore 

the residual safety risks to train crews, 

roadway workers, and the public at 

large of train operations and the 

transportation of non-PIH hazardous 

materials on the line formerly used to 

move the PIH materials traffic. Congress 

obviously wanted to make sure that 

passenger and PIH materials lines were 

addressed in FRA’s PTC rule, and we 

did so in the final rule. But there is no 

reason to believe that the Congress was 

indifferent to the safety of employees or 

other members of the public or to 

communities whose water supplies 

might be polluted by non-PIH hazardous 

materials or spilled diesel fuel. 

Moreover, deaths of crew members from 

train collisions have exceeded deaths 

from release of PIH commodities over 

the past two decades. The public 

interest requires FRA to take this and 

other factors into consideration in 

determining whether to require the 

installation of PTC on lines from which 

PIH materials traffic is being removed, 

consistent with RSIA08 statutory 

authority. At a future date, FRA may 

also examine the appropriateness of 

requiring PTC to be installed on other 

rail lines not covered by the final rule. 

AAR indicated that should FRA 

decide to retain paragraph 

(b)(4)(i)(A)(2)(iii), further clarification is 

needed as to how a railroad can 

compare the risk of PTC-preventable 

accidents on the line in question with 

the risk of PTC-preventable accidents on 

Class I lines in the U.S. required to be 

equipped with PTC because of the 

presence of PIH materials. AAR also 

requested that FRA plainly state that 

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where PTC would otherwise be required 

because the risk associated with the 

track segment exceeds the average 

comparable risk on lines required to be 

equipped with PTC, that the railroad 

has discretion to make a compensating 

extension of PTC elsewhere. The final 

rule amendments contained in this 

document provide that confirmation. 

AAR correctly points out that details 

regarding the risk assessment technique 

used to make the comparison required 

under paragraph (b)(4)(i)(A)(2)(iii) need 

to be worked out and provided to the 

industry. The preamble to the final rule 

notes that this will be done, and FRA is 

working on risk evaluation methodology 

that was discussed at a meeting of the 

RSAC PTC Working Group conducted 

by webinar on March 24, 2010. As these 

amendments to the final rule were being 

prepared, FRA was working to place 

development of this methodology under 

contract, and the PTC Working Group 

was forming a task force to provide peer 

review for this effort. FRA expects to 

subsequently submit the methodology 

for notice and comment. 

Given the limited time that has been 

available to arrive at this point in the 

regulatory process, a final risk 

assessment tool was not available by 

April 16, 2010, when each PTCIP was 

required to be filed. It is for this reason 

that FRA has decided to delay the 

effective date of paragraph 

(b)(4)(i)(A)(2)(iii), as revised, pending 

further notice. After the risk model is 

developed, AAR and other interested 

parties will be provided an opportunity 

for peer review of the methodology 

through the RSAC before the final 

agency decision-making process 

commences. FRA will solicit public 

comments on the model and will 

consider the public comments in 

deciding what final risk model should 

become effective, and will issue a notice 

announcing its decision. FRA 

contemplates that, when the provision 

goes into effect, FRA will determine the 

average risk value for lines with PIH 

materials required to be equipped with 

PTC and conduct the comparison 

utilizing the line segment data provided 

by the railroads for the subject lines. 

The risk evaluation methodology will 

also be made available to the railroads 

for their planning purposes (including 

proposal of any ‘‘risk swaps’’ that may be 

desirable, as further discussed below). A 

railroad may not remove a track segment 

from its PTCIP in accordance with 

§ 236.1005(b)(4)(i) until the replacement 

for paragraph (b)(4)(i)(A)(2)(iii) 

contained in the new § 236.1020 

becomes effective. However, under the 

new section, the line is not required to 

be equipped with PTC until the request 

for removal has been ruled upon. 

AAR is correct that if a railroad would 

otherwise be required to install PTC on 

a line segment under paragraph 

(b)(4)(i)(A)(2)(iii), that railroad would be 

able to make a compensating extension 

of PTC rather than installing PTC on the 

line segment. FRA is therefore 

amending paragraph (b)(4)(i)(A)(2)(iii) to 

make explicit that if the railroad is 

required to install PTC on the subject 

line under the paragraph, it can avoid 

having to install PTC on the line if it 

agrees to install PTC on a line segment 

that would not otherwise be required to 

be equipped under the rule and the 

railroad demonstrates that the 

increment of risk reduction is at least as 

great as would be achieved by 

equipping the segment sought to be 

removed from the PTCIP. FRA is 

moving the substance of the modified 

paragraph to a new § 236.1020. 

B. De Minimis Exception 

Paragraph (b)(4)(ii)(A) provides for 

exclusion or removal of track segments 

carrying less than 100 PIH materials cars 

per year (loaded or residue) from the 

PTC baseline where there is a de 

minimis PIH materials safety risk and 

the line segments are not used for 

intercity or commuter passenger service. 

Paragraphs (b)(4)(ii)(B) and (b)(4)(ii)(C) 

include further requirements for the de 

minimis exception. AAR has filed 

comments on both provisions. 

Paragraph (b)(4)(ii)(B) provides that 

absent special circumstances related to 

specific hazards presented by operations 

of the line segment, FRA will approve 

a request for relief under this paragraph 

for a rail line segment: 

(1) Consisting exclusively of Class 1 

or 2 track; 

(2) That carries less than 15 million 

gross tons annually; 

(3) Has a ruling grade of less than 1 

percent; 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. 

The NTSB believes that a broad-based 

type of de minimis exception like the 

one proposed by AAR and its member 

railroads in response to the notice of 

proposed rulemaking (NPRM) preceding 

the final rule and based solely on the 

number of PIH material cars transported 

annually cannot be supported on a 

safety basis and would represent a 

departure from the intent of the statute. 

According to the NTSB, without proper 

federal oversight—including a detailed 

safety assessment of each affected 

railroad territory—unforeseen 

circumstances might affect the safe 

operation of trains. 

The NTSB believes that if a de 

minimis exception is allowed based 

solely on the number of PIH materials 

cars transported annually, some 

railroads might consider establishing 

annual PIH materials car limits on 

segments of track in order to be exempt 

from the requirements of implementing 

a PTC system on that segment. 

Therefore, the NTSB supports the 

exclusion criteria that FRA uses in this 

section to evaluate each request on a 

case-by-case basis for each segment of 

track to allow the FRA to apply its 

inherent discretionary authority to grant 

de minimis exceptions that are 

consistent with safety and in the public 

interest. 

AAR states that FRA needs to modify 

the de minimis exception provided 

under § 236.1005(b)(4)(ii)(B). AAR notes 

that the preamble to the final rule at 75 

FR 2,622 explains that this exception is 

limited to Class 1 and 2 track because, 

‘‘[l]imiting maximum authorized train 

speed reduces the kinetic energy 

available in any accident, and the forces 

impinging on the tank should be 

sustainable.’’ Accordingly, AAR asserts 

that the exception should not be limited 

to Class 1 and 2 track, but should 

instead apply to operations subject to a 

maximum speed of 25 miles per hour. 

AAR suggests that FRA should use 

contemporaneous train speeds, rather 

than track class to define the limits of 

this portion of the de minimis 

exception. According to AAR, it would 

make the provision more ‘‘usable.’’ But 

in order to have confidence that 

appropriate speed restrictions were 

imposed and complied with, PTC would 

be required. Crews operating on 

particular rail lines are qualified on the 

physical characteristics of those lines, 

including the prevailing maximum 

authorized speed. They are acclimated 

to observing those speeds. What AAR 

proposes is that, in order to limit 

collision speeds on lines where trains 

may operate at 49 miles per hour or 

more, speeds be temporarily reduced for 

any train carrying PIH materials. But 

that would require special designation 

of trains carrying PIH materials, special 

attention by dispatchers to imposition 

and removal of appropriate speed 

restrictions on other trains using the 

line segment, and rigorous compliance 

by crews with these speed restrictions. 

Those steps would introduce multiple 

new opportunities for human error, and 

PTC is largely about prevention of 

human errors. FRA does not find this 

suggestion practical or consistent with 

safety. 

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59114 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

AAR also urges FRA to specify the 

showing required to remove a line from 

the PTCIP on the grounds that the risk 

of a TIH release is negligible. AAR 

points to § 236.1005(b)(4)(ii)(C), which 

provides that FRA will ‘‘consider’’ relief 

from the obligation to install PTC for 

line segments with annual traffic levels 

under 15 million gross tons (and under 

100 TIH shipments) where the risk of a 

release of PIH materials is ‘‘negligible.’’ 

It is unclear to AAR 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. 

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. 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. We 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). Given that PIH 

materials releases are already infrequent 

events, and the potential for catastrophe 

from a single release is significant, it is 

also unclear how this criterion would 

relate to the judgments that the 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. Further, FRA is not persuaded 

that what is required here is the 

expenditure of large amounts of money 

to avoid a statutory mandate. Available 

funds should be expended to satisfy the 

mandate. FRA will, of course, welcome 

well-presented hazard analyses of a 

simple and direct sort (see FRA’s 

Collision Analysis Guide, available at 

http://www.fra.dot.gov/us/content/ 

1900). At the end of the day, in this 

particular frame of reference, FRA will 

be looking to achieve confidence that 

the chance of an unintended release of 

PIH material is negligible (which, given 

emphatic congressional action in this 

arena is best described as ‘‘improbable’’ 

in conventional risk assessment 

terminology), given the chances for 

severe mishaps on the particular line 

segment in question. Quantitative proofs 

are neither feasible nor required. 

IV. Section-by-Section Analysis 

Section 236.100 Requirements for 

Positive Train Control Systems 

In the final rule, FRA attempted to 

describe in §§ 236.1005(b)(4)(i)(A)(2)(ii) 

and (iii) exactly what analysis was 

required and what standard would be 

applied if a railroad wished to remove 

from its PTCIP a line that carried PIH 

materials in 2008. FRA continues to 

believe that the language expresses what 

was intended unambiguously, as further 

amplified in the preamble. However, 

without question the provision 

compresses into a few words concepts 

that some have had difficulty in parsing; 

and that presents an important 

challenge. Clarity in expression is 

always a central objective in writing a 

rule. Accordingly, FRA has taken 

another run at this drafting problem; 

and, in doing so, has broken out both 

this and the next provision (dealing 

with residual risk) for separate 

treatment. 

For the reasons stated above, FRA first 

removes from § 236.1005(b)(4)(i)(A)(1) 

the words ‘‘absent special circumstances 

as set forth in writing (e.g., because of 

anticipated traffic growth in the near 

future).’’ 

FRA then removes the current text of 

(b)(4)(i)(A)(2) and inserts in its place a 

cross reference to a new section 

236.1020. This new section follows the 

section on passenger ‘‘main line’’ 

exceptions, and it is intended that 

utilizing a separate section will provide 

flexibility to express the necessary 

concepts with greater clarity. 

Section 236.1011 PTC Implementation 

Plan Content Requirements 

While not part of the scope of the 

further comments requested, FRA 

would like to take this opportunity to 

make some minor, non-substantive, 

clarifying amendments. 

First, FRA recognizes that there was a 

typographical error in 

§ 236.1011(a)(6)(iv)(B). In that 

paragraph, there is a cross-reference to 

paragraph (a)(6)(iii)(A). While that 

cross-referenced paragraph existed in 

the proposed rule, it was moved to 

(a)(6)(iv)(A) in the final rule. The crossreference should have been changed. 

We do so here. 

Section 236.1019 Main Line Track 

Exceptions 

Second, FRA would also like to 

clarify its intent regarding § 236.1019(c). 

With this language, FRA merely meant 

to remind regulated entities that 

observance of § 236.1019(c) does not 

diminish or obviate the applicability of 

§ 236.0. FRA intended to state that a 

‘‘limited operations exception’’ would 

not be considered for any segment of 

track that did not comport with the 

requirements of § 236.0. The qualifying 

language ‘‘(at speeds not exceeding those 

permitted under § 236.0 of this part)’’ 

was meant to highlight that the 

requirements § 236.0, based partially on 

speed limits, were still applicable. 

FRA recognizes that the parenthetical 

language in that paragraph reading ‘‘(at 

speeds not exceeding those permitted 

under § 236.0 of this part)’’ may be 

confusing. 

FRA intended to indicate that if a 

limited operations exception were 

provided under § 236.1019(c), thus 

allowing a railroad not to implement 

and operate a PTC system on a 

particular track segment, the railroad 

would still be required to implement 

and operate any other systems required 

by § 236.0. For instance, if a limited 

operations exception is approved and 

applied to a particular track segment 

where trains may operate at or in excess 

of 80 miles per hour, the railroad would 

be required to install, or more likely 

maintain, and operate an automatic cab 

signal, automatic train stop, or 

automatic train control system in 

accordance with § 236.0(d). 

While FRA’s intent remains as stated 

above, FRA hereby amends 

§ 236.1019(c) for the purposes of 

ensuring clarity. Thus, FRA will strike 

the aforementioned qualifying language 

so that the parenthetical text reads: 

‘‘(operating in accordance with § 236.0 

of this part)’’. 

Section 236.1020 Exclusion of Track 

Segments for Implementation Due to 

Cessation of PIH Materials Service or 

Rerouting 

As noted above, FRA is adding a new 

section that specifically addresses 

exclusion of track segments due to 

cessation or rerouting of PIH materials. 

Section 236.1020 begins with paragraph 

(a), which explains that it sets forth the 

conditions under which track segments 

identified in the 2008 baseline 

described in § 236.1005(b)(2) may be 

removed from the PTCIP. A track 

segment qualified for removal may be 

removed after FRA approves a request 

contained in the PTCIP or a request for 

amendment (RFA) filed prior to 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59115 

required installation of PTC on the 

subject track segment. This process 

would thus be available throughout the 

initial implementation period that 

extends to the end of 2015. 

Paragraph (b) contains the three tests 

that must be satisfied to remove a line 

due to cessation of PIH materials 

transportation over the track segment. 

Paragraph (b)(1) deals with local traffic. 

In railroad parlance, local traffic is 

freight traffic that originates or 

terminates on the particular rail line or 

terminal. A railroad that wishes to 

remove a line segment under paragraph 

(b)(1) must first establish that the line is 

free of local PIH materials traffic or will 

be before the line would otherwise be 

required to be equipped. Where there 

are still local customers whose business 

involves production or use of PIH 

materials that could request service but 

are not expected to do so, the section 

explains that obtaining statements from 

those customers that they have no plan 

to do so should be sufficient. Railroads 

are not required to anticipate future 

requests for service. (The Chlorine 

Institute suggests that substantially the 

entire rail system should be equipped, 

so that shippers are not chilled from 

requesting service at new locations; 

however, there is already provision for 

requesting service at new locations, after 

which PTC must be installed if traffic 

levels meet the required threshold.) 

Paragraph (b)(2) deals with 

‘‘overhead’’ traffic, which in rail 

parlance is traffic that does not originate 

or terminate on the line in question. 

Here it must be shown that the traffic 

has been rerouted or will be rerouted in 

accordance with the PHMSA rule. 

However, exclusively for the purpose of 

analysis, the analysis must introduce 

the hypothetical condition that all of the 

carrier’s practicable alternative routes 

for moving the PIH materials traffic are 

assumed to be equipped with PTC. This 

is a valid assumption for purposes of 

this rulemaking, since PTC must be 

installed on all Class I railroad routes 

carrying PIH materials and more than 5 

million gross tons of traffic according to 

RSIA08; FRA provided relief from this 

requirement for lines with de minimis 

PIH materials safety risk. The required 

analysis permits FRA to determine 

whether selective installation of PTC 

would create routing distortions under 

the PHMSA rule, which FRA 

administers and enforces. If installing 

PTC only on one or more alternative 

routes to the route under examination 

would result in or facilitate rerouting off 

the subject line to a more circuitous 

route—a route that might involve greater 

risk of derailment, greater exposure to 

collisions and secondary derailments at 

highway-rail crossings, more switching 

(which increases the likelihood of 

accidents), a longer time in 

transportation, and even more traversing 

of high threat urban areas—then the rule 

would generally require that PTC be 

installed on the subject line. This 

approach would uphold the values of 

both the 9/11 Commission Act and the 

RSIA08 while ensuring that PTC is 

provided on a reasonable scale across 

the core of the national rail system. 

However, the paragraph also allows for 

exceptions where the overall safety and 

security risks on the track segment in 

question is substantially the same as 

that on the alternate route, assuming 

both to be equipped with PTC—i.e., 

where the difference is small. FRA also 

referred in the final rule to whether 

‘‘demonstrated considerations of 

practicability indicate consolidation of 

the traffic on that next preferred 

alternative route.’’ FRA had intended 

this to be an open invitation for each 

railroad to state its case regarding issues 

of operational and engineering 

practicability (e.g., more effective use of 

key trains that are subject to the 50 

miles per hour restriction in the PHMSA 

rail routing rule, cost considerations 

related to equipping of the subject line, 

etc.). However, on the railroads’ behalf, 

AAR asserted only that the provision is 

‘‘confusing.’’ FRA is satisfied that AAR 

missed the point of the larger provision 

and thus lacked context within which to 

recognize and affirm language favorable 

to its members. FRA is hopeful that the 

global redrafting of the subject 

provisions, together with further 

explanation language with regard to this 

specific provision, is helpful in that 

regard. 

Paragraph (b)(3) deals with line 

segments that pass the first two tests. 

This provision is included because PTC 

is not just directed at the reduction of 

risk from transportation of PIH materials 

and rail passengers. As evidenced by 

NTSB reports and recommendations, 

testimony before Congress on legislation 

leading to RSIA08, and the PTC core 

functions themselves, PTC confers 

safety benefits that include the 

following: 

• Prevention of crew fatalities and 

injuries in train-to-train collisions; 

• Protection of roadway workers 

within the limits of their authorities; 

and 

• Protection of communities and 

natural resources from release of other 

hazardous materials in PTC-preventable 

accidents. 

FRA reviewed PTC-preventable 

accidents over the period 2002–2008 

and determined that 35 train crew 

fatalities occurred in the period, only 

two of which resulted from PIH 

materials and only 1 of which occurred 

in a passenger train accident. This can 

be compared with 29 passenger fatalities 

in the same period (24 of them a 

Chatsworth, CA) and 10 fatalities from 

release of PIH materials (9 of which 

were at Graniteville, SC—the single 

most serious accident of its kind since 

at least 1978). For further comparison, 

the most deadly rail accident which 

involved hazardous materials was at 

Waverly, Tennessee, in 1978. The 

Waverly accident involved release and 

ignition of flammable compressed gas 

(not a PIH material) during a re-railing 

operation and illustrates the risk posed 

by hazardous materials other than PIH 

materials. 

Accordingly, FRA is seeking to ensure 

that the core of the national rail 

network, which would be equipped 

with PTC under the absolute minimum 

mandate of the RSIA08 strictly 

construed, is at least seriously reviewed 

for installation of PTC. In that regard, 

FRA notes that the rule would satisfy 

the requirements of the statute and work 

perfectly well if the flexibility afforded 

the railroads by 

§§ 236.1005(b)(4)(i)(A)(2) and 236.1020 

were not included in the rule. Those 

provisions are severable. Paragraph 

(b)(3) thus describes the showing that 

will be necessary to evaluate the 

residual risks after removal of PIH 

materials traffic from a subject line. 

At the time of the final rule, FRA 

called attention to the need to develop 

a risk evaluation methodology to 

estimate residual risk on rail lines and 

compare that risk to the national average 

risk on non-passenger lines with 5 

million gross tons of annual freight 

traffic and some PIH materials traffic. 

That developmental process is 

underway and must be completed 

before railroads are required to commit 

resources for installation of PTC on any 

track segments pending for review 

under paragraph (b)(3). 

Paragraph (b)(3)(i) informs the 

regulated community that FRA will 

develop the risk evaluation 

methodology through a separate 

rulemaking proceeding. As detailed 

earlier in the preamble discussion of 

‘‘Residual Risk Analysis’’, FRA has 

retained an independent contractor to 

help it initially develop the risk 

evaluation methodology. FRA intends to 

utilize the RSAC and a PTC Working 

Group to provide peer review of the 

initially developed methodology. After 

completion of peer review and changes 

made based upon that review, FRA 

intends to issue an NPRM to solicit 

public comments on the sufficiency of 

the developed methodology and the 

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59116 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

advisability of using such a model. FRA 

will consider the public comments 

before deciding what, if any, final risk 

evaluation methodology should become 

effective. Once a determination is made, 

FRA will then issue a final rule to 

complete the proceeding, which will 

either implement the risk evaluation 

methodology or remove the residual risk 

provision from the regulation. 

If FRA determines that a particular 

risk model should be implemented in 

the final rule, then when the provision 

goes into effect, FRA will determine the 

average risk value for lines with PIH 

materials required to be equipped with 

PTC and conduct the comparison 

utilizing the line segment data provided 

by the railroads for the subject lines. In 

this scenario, FRA also anticipates that 

the methodology and related notices 

might identify automatic approval of 

specific types of line segments, when 

such line segments pose minimal risks. 

This approach could be similar to that 

utilized in regard to lines considered to 

have de minimis PIH risks identified in 

§ 236.1005(b)(4)(ii) of the final rule. 

Lines identified for removal by the 

railroad will be considered to be 

pending for decision during the period 

that the methodology is being 

developed, and should be noted as such 

in the PTCIP. Any such line may be 

placed at the back of the order for PTC 

installation (within the sequence 

required to be shown in the PTCIP) if 

the railroad believes that it is warranted, 

subject to subsequent FRA review and a 

final decision. A railroad will not be 

required to equip any line with PTC 

under paragraph (b)(3) until the risk 

evaluation methodology is finalized, the 

railroad is provided an opportunity to 

supplement its request, and a final 

decision is made regarding the railroads 

request for removal of that track line or 

track segment. 

Paragraph (c) recognizes that the 2008 

baseline for analysis should not become 

a restraint that bars recognition of 

changing or equally relevant risk 

elsewhere. Accordingly, the provision 

states that, if a track segment qualifies 

for removal from the PTCIP under 

paragraphs (b)(1) and (b)(2) of this 

section but does not meet the test of 

paragraph (b)(3), the railroad may 

nevertheless request that the PTCIP be 

amended to remove the track segment 

based upon compensating reductions in 

the risk related to PTC-preventable 

accidents based on installation of PTC 

technology on one or more track 

segments not otherwise required to be 

equipped. Upon a proper showing that 

the other installation(s) fully 

compensate using the risk evaluation 

methodology accepted for use under 

paragraph (b)(3), FRA approves the 

substitution. AAR seemed to be 

receptive to this flexibility, but asked 

that its understanding be confirmed. We 

attempt to do so in this revision. 

V. Regulatory Impact and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

These amendments to the final rule 

have been evaluated in accordance with 

existing policies and procedures, and 

determined to be significant under both 

Executive Order 12866 and DOT 

policies and procedures. 44 FR 11034 

(Feb. 26, 1979). Although the final rule 

met the criteria for being considered an 

economically significant rule under 

those policies and procedures, the 

amendments contained in this 

document are not considered 

economically significant because they 

either clarify requirements currently 

contained in the final rule or allow for 

greater flexibility in complying with the 

final rule. The economic impact of the 

amendments and clarifications 

contained in this document will 

generally reduce the cost of compliance 

with the rule. However, the cost 

reduction is not easily quantified and 

does not significantly alter FRA’s 

original analysis of the cost and benefits 

associated with the final rule. 

Consequently, FRA strongly supports 

the economic arguments and estimates 

advanced in its RIA for the final rule. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) requires a review 

of rules to assess their impact on small 

entities. FRA certifies that these 

amendments to the final rule do not 

have a significant impact on a 

substantial number of small entities. 

Because the amendments contained in 

this document either clarify 

requirements currently contained in the 

final rule or allow for greater flexibility 

in complying with the rule, FRA has 

concluded that there are no substantial 

economic impacts on small units of 

government, businesses, or other 

organizations. 

C. Paperwork Reduction Act 

These amendments of the final rule 

do not significantly change any of the 

information collection requirements 

contained in the original final rule. The 

OMB control number for that 

information collection is 2130–0553, 

and it has been approved through May 

31, 2013. 

D. Federalism Implications 

FRA believes it is in compliance with 

Executive Order 13132, ‘‘Federalism.’’ 

See 64 FR 43255 (Aug. 4, 1999). Because 

these amendments to the final rule 

either clarify requirements currently 

contained in the final rule or allow for 

greater flexibility in complying with the 

rule, this document will not have a 

substantial effect 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. This document 

will not have federalism implications 

that impose any direct compliance costs 

on state and local governments. 

E. Environmental Impact 

FRA has evaluated these amendments 

to the final 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 document 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) of FRA’s Procedures. 

F. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$140,800,000 or more (adjusted 

annually for inflation) in any 1 year, and 

before promulgating any final rule for 

which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

tribal governments and the private 

sector. Because the amendments 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59117 

contained in this response document 

either clarify requirements currently 

contained in the final rule or allow for 

greater flexibility in complying with the 

rule, this document will not result in 

the expenditure, in the aggregate, of 

$100,000,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

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 these amendments to the final 

rule in accordance with Executive Order 

13211. Because the amendments 

contained in this document either 

clarify requirements currently contained 

in the final rule or allow for greater 

flexibility in complying with the rule, 

FRA has determined that this document 

will not 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 energy 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. 

List of Subjects in 49 CFR Part 236 

Penalties, Positive train control, 

Railroad safety, Reporting and 

recordkeeping requirements. 

The Rule 

■ In consideration of the foregoing, FRA 

amends chapter II, subtitle B of title 49, 

Code of Federal Regulations as follows: 

PART 236—[AMENDED] 

■ 1. The authority citation for part 236 

is revised to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20107, 

20133, 20141, 20157, 20301–20303, 20306, 

20501–20505, 20701–20703, 21301–21302, 

21304; 28 U.S.C. 2461, note; and 49 CFR 

1.49. 

■ 2. In § 236.1005, revise paragraph 

(b)(4)(i)(A)(2) to read as follows: 

§ 236.1005 Requirements for Positive Train 

Control systems. 

* * * * * 

(b) * * * 

(4) * * * 

(i) * * * 

(A) * * * 

(2) In the case of current or planned 

cessation of PIH materials traffic over a 

track segment, FRA will approve an 

exclusion of a line from the PTCIP if the 

railroad satisfies the requirements of 

§ 236.1020. 

* * * * * 

■ 3. In § 236.1011, revise paragraph 

(a)(6)(iv)(B) to read as follows: 

§ 236.1011 PTC Implementation Plan 

content requirements. 

(a) * * * 

(6) * * * 

(iv) * * * 

(B) Include each tenant railroad’s 

response to the host railroad’s written 

request made in accordance with 

paragraph (a)(6)(iv)(A) of this section; 

* * * * * 

■ 4. In § 236.1019, revise the 

introductory text of paragraph (c) to 

read as follows: 

§ 236.1019 Main line track exceptions. 

* * * * * 

(c) Limited operations exception. FRA 

will consider an exception in the case 

of a track segment used for limited 

operations (operating in accordance 

with § 236.0 of this part) under one of 

the following sets of conditions: 

* * * * * 

■ 5. Add a new § 236.1020 to subpart I 

to part 236 to read as follows: 

§ 236.1020 Exclusion of track segments 

for implementation due to cessation of PIH 

materials service or rerouting. 

(a) Purpose and scope. This section 

sets forth the conditions under which 

track segments identified in the 2008 

baseline described in § 236.1005(b)(2) 

may be removed from the PTCIP. A 

track segment qualified for removal 

under this section may be removed after 

FRA approves a request contained in the 

PTCIP or an RFA filed prior to the 

required and scheduled PTC installation 

date for the subject track segment. 

(b) Cessation of PIH materials service. 

Except as provided in paragraph (c) of 

this section, the following three 

conditions must all be satisfied in order 

to justify removal of a track segment 

from the PTCIP: 

(1) Local service. The railroad must 

affirm that there is no remaining local 

PIH materials traffic expected on the 

track segment, or that service is 

expected to cease as of a date certain 

prior to December 31, 2015. In the case 

of future cessation of local service, the 

expectation may be documented by 

statements from all current PIH 

materials shippers and/or consignees. 

The railroad is not required to anticipate 

future requests for service not in 

keeping with prior service patterns. 

(See § 236.1005(b)(3)). 

(2) Overhead traffic. 

(i) To the extent that the track 

segment carried PIH materials traffic 

other than local traffic in 2008, the 

railroad must establish that current or 

prospective rerouting to one or more 

alternate track segments is justified. In 

making this showing, the railroad must 

assume, for purposes of analysis only, 

that both the subject track segment and 

the alternative route(s) will be equipped 

and operated with PTC. Rerouting will 

be justified if the analysis is conducted 

in accordance with the same procedures 

and using the same methodology as 

required for safety and security route 

analysis under 49 CFR 172.820, with 

appropriate quantitative weight given to 

risk reduction effected by installation of 

a PTC system. If the track segment in 

question is not clearly the route posing 

the least overall safety and security 

risks, then removal of the line from the 

PTCIP may be granted. 

(ii) However, unlike analysis under 

part 172, FRA will consider the case for 

rerouting and removal of the line from 

the PTCIP to be made if the 

alternative(s) to the track segment 

sought to be removed has substantially 

the same overall safety and security 

risks as the subject routes under the 

stipulated conditions for analysis. In 

determining whether risk is 

substantially the same, FRA will 

consider the volume of traffic diverted, 

and such other factors as safety may 

require. 

(3) Residual risk. In the case of a track 

segment for which cessation of local 

service is established under paragraph 

(b)(1) of this section and for which 

analysis shows any overhead PIH 

materials traffic could properly be 

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59118 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

rerouted under paragraph (b)(2) of this 

section, the railroad shall also establish 

that the remaining risk arising from rail 

operations on the track segment— 

pertaining to events that can be 

prevented or mitigated in severity by a 

PTC system—is less than the average 

equivalent risk per route mile on track 

segments required to be equipped with 

PTC because of annual gross tonnage 

and the presence of PIH materials traffic 

(excluding track segments also carrying 

passenger traffic). Such average 

equivalent risk shall be determined as of 

a time prior to installation of PTC on the 

line segments. This provision of the rule 

requires a future rulemaking to finalize 

and implement a risk evaluation 

methodology. Lines identified for 

removal subject to this provision will 

not be required to be equipped with 

PTC prior to the issuance of a final rule 

detailing the methodology. 

(i) FRA will develop a risk evaluation 

methodology for the purpose of 

conducting the analysis required 

pursuant to paragraph (b)(3) of this 

section. The risk evaluation 

methodology will be finalized through a 

separate rulemaking proceeding that 

will permit all interested parties to 

provide input on the specific 

methodology and, whether that 

methodology should be employed. If in 

the rulemaking proceeding FRA 

determines that a risk methodology 

should not be employed, then FRA will 

amend this final rule to eliminate the 

residual risk provisions. 

(ii) Any track segment qualifying for 

consideration under paragraph (b)(3) of 

this section and identified by the 

railroad for requested removal from the 

PTCIP shall be considered to be 

‘‘pending for decision’’ until such time 

as FRA has published the risk 

evaluation methodology identified in 

paragraph (b)(3)(i) of this section. If a 

final risk evaluation methodology is 

employed, the railroad may be 

requested to provide supplemental 

information related to its request for 

removal of specific lines. The railroad is 

not required to commence installation 

of PTC on any track segment ‘‘pending 

for decision’’ under this paragraph, until 

a final FRA determination is made. 

(c) If a track segment qualifies for 

removal from the PTCIP under 

paragraphs (b)(1) and (b)(2) of this 

section but does not meet the test of 

paragraph (b)(3) of this section, the 

railroad may nevertheless request that 

the PTCIP be amended to remove the 

track segment based upon compensating 

reductions in the risk related to PTCpreventable accidents based on 

installation of PTC technology on one or 

more track segments not otherwise 

required to be equipped. Upon a proper 

showing that the increment of risk 

reduction is at least as great on the 

substitute line as it would be on the line 

sought to be excluded from the PTCIP, 

FRA may approve the substitution. 

Issued in Washington, DC, on September 

15, 2010. 

Joseph C. Szabo, 

Administrator. 

[FR Doc. 2010–24102 Filed 9–24–10; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 383, 384, 390, 391, and 

392 

[Docket No. FMCSA–2009–0370] 

RIN 2126–AB22 

Limiting the Use of Wireless 

Communication Devices 

AGENCY: Federal Motor Carrier Safety 

Administration, DOT. 

ACTION: Final rule. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) 

prohibits texting by commercial motor 

vehicle (CMV) drivers while operating 

in interstate commerce and imposes 

sanctions, including civil penalties and 

disqualification from operating CMVs in 

interstate commerce, for drivers who fail 

to comply with this rule. Additionally, 

motor carriers are prohibited from 

requiring or allowing their drivers to 

engage in texting while driving. FMCSA 

amends its commercial driver’s license 

(CDL) regulations to add to the list of 

disqualifying offenses a conviction 

under State or local traffic laws or 

ordinances that prohibit texting by CDL 

drivers while operating a CMV, 

including school bus drivers. Recent 

research commissioned by FMCSA 

shows that the odds of being involved 

in a safety-critical event (e.g., crash, 

near-crash, unintentional lane 

deviation) is 23.2 times greater for CMV 

drivers who engage in texting while 

driving than for those who do not. This 

rulemaking increases safety on the 

Nation’s highways by reducing the 

prevalence of or preventing certain 

truck- and bus-related crashes, fatalities, 

and injuries associated with distracted 

driving. 

DATES: The final rule is effective 

October 27, 2010. 

ADDRESSES: For access to the docket to 

read background documents, including 

those referenced in this document, or to 

read comments received, go to http:// 

www.regulations.gov at any time and 

insert FMCSA–2009–0370 in the 

‘‘Keyword’’ box, and then click ‘‘Search.’’ 

You may also view the docket online by 

visiting the Docket Management Facility 

in Room W12–140, DOT Building, 1200 

New Jersey Avenue, SE., Washington, 

DC, between 9 a.m. and 5 p.m. e.t., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this rule, 

contact the Federal Motor Carrier Safety 

Administration, Vehicle and Roadside 

Operation Division, at 202–366–1225 or 

FMCSA_MCPSV@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble 

I. Abbreviations 

II. Background 

A. Legal Authority 

B. Overview of Driver Distraction and 

Texting 

C. Support for a Texting Prohibition 

D. Investigations and Studies on Driver 

Distraction 

E. Existing Texting Prohibitions and 

Restrictions by Federal, State, and Local 

Governments 

III. Discussion of Comments 

IV. Discussion of Rule 

V. Regulatory Analyses 

I. Abbreviations 

AAMVA ............................................................. American Association of Motor Vehicle Administrators. 

Advocates ......................................................... Advocates for Highway and Auto Safety. 

AIA .................................................................... American Insurance Association. 

APTA ................................................................ American Public Transportation Association. 

ATA ................................................................... American Trucking Associations, Inc. 

ATU ................................................................... Amalgamated Transit Union. 

CDL ................................................................... Commercial Driver’s License. 

CeRI .................................................................. Cornell eRulemaking Initiative. 

CMV .................................................................. Commercial Motor Vehicle. 

CTA ................................................................... Chicago Transit Authority. 

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