RAILROADS (CLASS I RAILROADS PETITION TO MODIFY SINGLE CAR AIRBRAKE TEST) / By, “a document dated June 6, 2013, the Association of American Railroads (AAR) has petitioned the Federal Railroad Administration (FRA) per 49 CFR 232.307 to modify the single car air brake test procedures located in AAR Standard S-486, Code of Air Brake System Tests for Freight Equipment—Single Car Test”.

“Petition for Modification of Single Car Air Brake Test Procedures.”

July 23, 2013. Notice. Continue reading

RAILROADS (RESPONSE TO LAC-MÉGANTIC TRAGEDY) / Presumably part of the federal government’s response to Lac-Mégantic tragedy: U.S. DOT’s Federal Railroad Administration’s (FRA’s) Hazardous Materials Division announces along with Pipeline and Hazardous Materials Safety Administration a 2-day meeting August 27-28 about “a public meeting addressing the transportation of hazardous materials by rail”.

“Hazardous Materials: Improving the Safety of Railroad Transportation of Hazardous Materials”

July 18, 2013. Announcement of Public Meeting and Establishment of Public Docket.

The announcement does not mention any particular reason. But it’ a two-day public meeting that they are just announcing 4 weeks before the event.

My calls to specific people at the Hazardous Materials Division did not reach anyone who could give me more detail about background.

RAILROADS (TRANSPORT CANADA EMERGENCY SAFETY RULES DANGEROUS GOODS TANK CARS IN A TRAIN CONSIST) / Transport Canada announced emergency railway safety rules in wake of Lac-Mégantic tragedy following two advisory letters to it from Transportation Safety Board of Canada (counterpart to U.S. National Transportation Safety Board): (1) Require 2 operators on a locomotive attached to loaded tank cars carrying “dangerous goods” (counterpart to U.S. usage “hazardous materials”), and (2) ensure that no trains are left unattended while transporting loaded tank cars with dangerous goods.

Transportation Safety Board of Canada sent two advisory letters to Transport Canada (July 18, 2013 advisory letter available here, and July 19, 2013 advisory letter available here).

In response to these two advisory letters, Transport Canada issued an emergency directive pursuant to Section 33 of Canada’s Railway Safety Act.  

Emergency directive available here

RAILROADS (TANK CAR TRANSLOADING AFTER HEATING) / U.S. Federal Railroad Administration issues guidance in parts: (1) “Safety precautions and recommended guidance for persons responsible for unloading or transloading hazardous materials from rail tank cars, specifically those persons heating a rail tank car to prepare its hazardous material contents for unloading or transloading”; and (2) “Reminds such persons of current regulatory requirements addressing this type of operation”.

“Safety Advisory Guidance: Heating Rail Tank Cars To Prepare Hazardous Material for Unloading or Transloading.”

Safety Advisory Guidance. July 12, 2013.

Federal Register announcement refers to National Transportation Safety Board investigations of:

(1) An incident February 18, 1999 in which a 20,000-gallon rail tank car was propelled by an explosion 750 feet over multi-story storage tanks at the Essroc Logansport cement plant near Clymer, Indiana due to a sudden and catastrophic rupture of the tank car.

(2) An incident September 13, 2002 in which “a 24,000-gallon-capacity rail tank car containing about 6,500 gallons of hazardous waste catastrophically ruptured at a transfer station at the BASF Corporation chemical facility in Freeport, Texas” – and “the force of the explosion propelled a 300-pound rail tank car dome housing about1/3mile away from the rail tank car”, and “about 660 gallons of the hazardous material oleum” were released.  

The agency’s summary was as follows:

“This guidance provides safety precautions and recommended guidance for persons responsible for unloading or transloading1 hazardous materials from rail tank cars, specifically those persons heating a rail tank car to prepare its hazardous material contents for unloading or transloading. Further, this guidance reminds such persons of current regulatory requirements addressing this type of operation. PHMSA is issuing this guidance in coordination with the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA), and in consultation with the Federal Railroad Administration (FRA).

“As defined in § 171.8, Transloading means the transfer of a hazardous material by any person from one bulk packaging to another bulk packaging, from a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a bulk packaging for the purpose of continuing the movement of the hazardous material in commerce.”

The agency’s guidance was as follows:

“Several Federal agencies share responsibility for the safety regulations of rail tank car unloading or transloading operations involving hazardous material—DOT (PHMSA and FRA), OSHA, and EPA. PHMSA, in coordination with OSHA and EPA, and in consultation with FRA, is issuing this safety advisory guidance to offer guidance on heating of a rail tank car to prepare solidified or viscous hazardous material products contained in the rail tank car for unloading or transloading. Based on existing regulatory requirements, we have assembled and coordinated the following guidance to raise awareness of those requirements and the risks associated with heating rail tank cars. This guidance does not include all of the aspects applicable to the safe heating of rail tanks cars; rather, it focuses on the issues raised in the NTSB recommendations as a result of its investigations into the two incidents cited above.

“Procedures. The shipper or facility operator, if not the same, should develop written safe operating procedures to be used when hazardous materials are heated in a rail tank car for unloading or transloading. The procedures should, at a minimum, establish hazard controls necessary to protect workers, the public, and the environment from adverse consequences, and include:

  • Detailed information regarding the chemical characteristics of the material such as, melting temperature, flash point, the degree to which the hazardous material expands as a result of heating, and additional risk if the hazardous material reacts with air or water.;
  • The pressure created by heating the rail tank car at which the material may safely be unloaded or transloaded from the rail tank car;
  • Active monitoring and recordkeeping requirements of the internal tank pressure and material temperature during the heating process. The heating process should be monitored with time intervals (such as hourly) that are dependent upon the nature and history of materials being heated;
  • Potential consequences of deviations from standard operating procedures and how to identify, control and respond to those consequences; and
  • Training of all entities involved in the unloading or transloading process.

“These procedures should be maintained in a location where they are immediately available to employees responsible for the heating, unloading or transloading operation. These procedures should clearly define employees’ roles and responsibilities for the heating of a rail tank car, as well as the roles and responsibilities of contractor personnel that are employed at a facility to conduct the operations for heating of a rail tank car.

“Monitoring. The facility operator should be knowledgeable of the chemical properties of all of the materials involved in the heating process, including the reactivity of those materials, and ensure that the heating process (i.e., pressure, temperature, and heating rate) applied to the rail tank car, and the pressure and temperature inside the rail tank car should be monitored to ensure that it does not result in over-pressurization of the rail tank car.

Monitoring should be conducted at the necessary frequency as heating continues until the material reaches its recommended parameters (e.g., viscosity and temperature) for safe unloading or transloading. Certain chemicals, such as a material that can undergo rapid exothermic decomposition, may require more frequent or even continuous monitoring during heating. Monitoring of the tank pressure and the temperature of the hazardous material includes measures to ensure that the heating rate does not result in over pressurization of the rail tank car.

As an additional aspect of monitoring, the facility operator may, when practical and safe, and the physical state of the material allows, sample the material that is in the rail tank car to verify the material and its chemical and physical properties. The rail tank car contents should be monitored at multiple times as heating continues until the material is determined to be at its recommended parameters (e.g., viscosity and temperature) for safe unloading or transloading.

“Designated Employee. The facility operator should designate an employee responsible for monitoring the heating process. Prior to the onset of operation, the designated employee should be made thoroughly knowledgeable of the nature and properties of the material contained in the rail tank car and procedures to be followed in the event of an emergency. In the event of an emergency, the designated employee should have the ability and authority to take responsive action.

“Training. Hazardous materials employees involved in heating rail tank cars for unloading or transloading operations should be trained in all aspects of the heating process that each employee is responsible for performing. Further, the level of training for each employee should correlate with that employee’s level of exposure to hazardous materials at the facility where rail tank cars are heated for unloading or transloading. Please refer to the Section III for a discussion of specific training obligations under applicable Federal regulations.”

RAILROAD (EMPLOYEE DEPRESSION, POST-TRAUMATIC STRESS DISORDER, ETC.) / U.S. Federal Railroad Administration issues this proposed rule in accordance with a statutory mandate that the Secretary of Transportation require certain major railroads to develop, and submit to the Secretary for approval, critical incident stress plans that provide for appropriate support services to be offered to their employees who are affected by a “critical incident” as defined by the Secretary who are directly involved in, who witness, or who respond to, such a “critical incident”.

“Critical Incident Stress Plans.”

June 28, 2013. Notice of Proposed Rulemaking.

“FRA issues this proposed rule in accordance with a statutory mandate that the Secretary of Transportation require certain major railroads to develop, and submit to the Secretary for approval, critical incident stress plans that provide for appropriate support services to be offered to their employees who are affected by a ‘critical incident’ as defined by the Secretary. The NPRM proposes a definition of the term ‘critical incident,’ the elements appropriate for the rail environment to be included in a railroad’s critical incident stress plan, the type of employees to be covered by the plan, a requirement that a covered railroad submit its plan to FRA for approval, and a requirement that a railroad adopt and comply with its FRA-approved plan.”

“This NPRM proposes a regulation that would require each Class I railroad, intercity passenger railroad, and commuter railroad to establish and implement a critical incident stress plan for certain employees of the railroad who are directly involved in, witness, or respond to, a critical incident. FRA seeks comment on all aspects of this proposal.”

“Although FRA has never regulated critical incident stress plans, many railroads have had some form of critical incident stress plan in place for many years. This rulemaking responds to the Rail Safety Improvement Act of 2008 (Public Law 110-432, Div. A) (RSIA) mandate that the Secretary of Transportation establish regulations to define ‘critical incident’ and to require certain railroads to develop and implement critical incident stress plans.

“As discussed in detail below, FRA reviewed the applicable science and information received through the Railroad Safety Advisory Committee (RSAC), and as required by Congress, FRA proposes a definition for ‘critical incident’ and proposes a set of minimum standards for critical incident stress plans. This approach provides covered employees with options for relief following a critical incident, yet allows for substantial flexibility within the regulatory framework so that railroads may adapt their plans commensurate with their needs. The proposal defines a ‘critical incident’ as either — (1) An accident/incident reportable to FRA under 49 CFR part 225 that results in a fatality, loss of limb, or a similarly serious bodily injury; or (2) A catastrophic accident/incident reportable to FRA under part 225 that could be reasonably expected to impair a directly-involved employee’s ability to perform his or her job duties safely. The proposed set of minimum standards for critical incident stress plans include allowing a directly-involved employee to obtain relief from the remainder of the tour of duty, providing for the directly-involved employee’s transportation to the home terminal (if applicable), and offering a directly-involved employee appropriate support services following a critical incident. The proposed rule would require each applicable railroad to submit its plan to FRA for approval.”

RAILROADS (U.S. STB Chair’s Policy Agenda) / U.S. STB Chairman Speech – U.S. Surface Transportation Board Chairman Daniel R. Elliott III speech to the North American Rail Shippers Association about U.S. STB priorities, including changes to the Uniform Rail Costing System, National Industrial Transportation League proposal to increase rail-to-rail competition through required reciprocal switching, U.S. STB-proposed new rules to clarify liability for railcar demurrage, and the Rail Customer and Public Assistance Program and arbitration / mediation initiatives.

Speech text available here.

RAILROADS (FEDERAL RAILROAD ADMINISTRATION) / Federal Railroad Administration Administrator’s Congressional Testimony – Joseph C. Szabo testifies before U.S. Senate and U.S. House committees on transportation about his priorities, including implementation of the Rail Safety Improvement Act of 2008, roll out of the Confidential Close Call Reporting System, positive train control, “science-based regulations of hours of service”, harmonizing operating rules of various railroads, highway-rail grade crossing safety matters, and updating federal railroad-related statutes in light of emerging technology.

Here and here.

RAILROADS (SIGNAL SYSTEM STATUS REPORTS) / Federal Railroad Administration: “FRA is proposing to eliminate the regulatory requirement that each carrier must file with FRA a signal system status report every five years. FRA believes the report is no longer necessary because advances in technology have made it possible for more updated information regarding railroad signal systems to be available to FRA through alternative sources. Separately, FRA is proposing to amend the criminal penalty provision in the Signal System Reporting Requirements by updating an outdated statutory citation.”

Signal System Reporting Requirements

June 19, 2013. Notice of Proposed Rule Making.

“On May 14, 2012, President Obama issued Executive Order (E.O.) 13610—Identifying and Reducing Regulatory Burdens, which seeks ‘to modernize our regulatory system and to reduce unjustified regulatory burdens and costs.’See 77 FR 28469. The Executive Order directs each executive agency to conduct retrospective reviews of its regulatory requirements to identify potentially beneficial modifications to regulations. Executive agencies are to “give priority, consistent with the law, to those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety and our environment.’See id. at 28470.

“Section 233.9 currently requires each carrier to complete and submit an FRA Form F6180.47, Signal System Five-Year Report, in accordance with the instructions and definitions on the form. The information reported on FRA Form F6180.47 is intended to update FRA on the status of a railroad’s signal system. It historically has been used to monitor changes in the types of signal systems installed and the methods of operation used on the Nation’s railroads.

“Prior to 1997, carriers were required to submit a Signal System Annual Report by April 15 of each year. However, based on a regulatory review, FRA extended the reporting requirement to every five years rather than annually. See 61 FR 33871 (July 1, 1996). FRA determined that a five-year reporting period would significantly reduce the reporting burden on the railroads while still meeting the informational needs of the government. Therefore, in July 1996, FRA amended § 233.9 to require that ‘[n]ot later than April 1, 1997 and every 5 years thereafter, each carrier shall file with FRA a signal system status report ‘Signal System Five-[Y]ear Report’ on a form to be provided by FRA in accordance with instructions and definitions provided on the report.’

“For the 2012 reporting period, FRA transitioned the Signal System Five-Year Report form into an electronic format. The electronic form required all of the same information as the paper form but could be submitted via the Internet. The form was due to be submitted by no later than April 1, 2012, and pertained to signal systems in service on or after January 1, 2012. The next five-year report is not due until April 2017. The present rulemaking would eliminate the reporting requirement in its entirety for April 2017 and thereafter.

“FRA believes that the Signal System Five-Year Report is no longer necessary for several reasons. The data collected in the Signal System Five-Year Report can quickly become outdated. Railroads normally modify signal systems far more frequently than once every five years. Indeed, FRA has generally found that signal system modifications occur with such frequency under 49 CFR §§ 235.5 and 235.7, that the Signal System Five-Year Report often is out-of-date by the time it is received by FRA.”

RAILROADS (FEDERAL SAFETY APPLIANCE ACT) / Federal Safety Appliances Act claimed to apply to railroad switchman / brakeman who was injured while performing switching operations moving rail cars from one part of rail facility to another by means of 20 to 25 cars connected to a locomotive which he controlled by remote device, which activity injured switchman / brakeman caused by contact between some sort of ballast and his knees that became sore after he knelt on ground to test air brakes during this process – held: Despite his statement on injury report that, “Kneeling Bending Possibly while changing hose Monday Afternoon was kneeling in Ballast”, Federal Safety Appliances Act did not apply to this activity under that Act’s “air-brake provision”.

Nygaard v. BNSF Railroad Company, No. A12-1566 (Court of Appeals of Minnesota, June 10, 2013). Google Scholar version of court opinion available here.

Federal Safety Appliance Act air-brake provision applies to a railroad consist (assemblage of locomotives and rail cars) that is an operating “train”. The Code of Federal Regulations (C.F.R.) defines a train as “one or more locomotives coupled with one or more freight cars, except during switching service.” 49 C.F.R. § 232.5.

CARMACK AMENDMENT (LIABILITY LIMITATIONS) / Shipper claimed damage in transit to $1.3 million transformer by CSX Transportation (railroad) and sued under the Carmack Amendment; railroad raised defense of bill of lading language purporting to limit railroad’s liability to $25,000 – U.S. Court of Appeals for the 4th Circuit looked to (1) bill of lading and (2) railroad’s 12-page “CSX Price List 4605” setting forth numerous rules relating to railroad’s transport of machinery and held: Reversed district court’s ruling that $25,000 limit applied, holding that railroad did not offer limiting language consistent with Carmack Amendment, thereby subjecting the railroad to full liability under the Carmack Amendment.

ABB, Inc. v. CSX Transportation, Inc., No. 12-1674 (U.S. Court of Appeals for the 4th Circuit, June 7, 2013). Copy of court-issued opinion available here.

What amounts to a “master class” in Carmack Amendment analysis with respect to Carmack Amendment’s exacting requirements regarding liability limitation.