FRA, Responding to Industry Joint Petition, Issues Emergency WaiverWritten by William C. Vantuono, Editor-in-Chief
In response to a Petition from the Association of American Railroads (AAR), American Short Line and Regional Railroad Association (ASLRRA) and American Public Transportation Association (APTA), the Federal Railroad Administration (FRA) has issued a 60-day emergency waiver for certain requirements of FRA’s rail safety regulations, due to the COVID-19 pandemic. The petitioners, on behalf of their member railroads, requested relief from certain requirements of 49 CFR Parts 213, 214, 217, 218, 219, 220, 228, 229, 232, 234, 236, 239, 240, and 242.
The Petitioners—represented by AAR Senior Vice President Safety and Operations Michael J. Rush, ASLRRA Senior Vice President Safety & Regulatory Policy Jo Strang, and APTA Senior Director Engineering & Commuter Rail Operations Narayana Sundaram—requested relief on March 21, approximately one week after FRA Administrator Ronald L. Batory’s activation of ERD (Emergency Relief Docket) No. FRA-2020-0002: “Activation of the ERD enables FRA to utilize its emergency waiver procedures found at 49 CFR § 211.45,” FRA said “Under that section, once the Administrator activates the ERD, FRA may grant a petition for waiver without prior notice and comment if the Administrator determines it is in the public interest, the waiver is not inconsistent with railroad safety, and the waiver is necessary to address an actual or impending emergency situation or event.”
The Petitioners “represent the vast majority of railroads operating in the United States,” FRA noted, adding “If any party desires a public hearing on their Petition, that party must notify FRA by the end of the day on March 28, 2020.”
“FRA explained that the relief granted is generally conditioned on the existence of workforce shortages and other constraints as a direct result of the impacts of the COVID-19 pandemic, preventing individual railroads from timely completing all federally mandated railroad safety tests and inspections, or other requirements,” Strang noted to Railway Age. “However, relief is granted from certain regulations (§ 217.9 and the other related operational testing requirements §§ 228.5 and 228.203(a)(1)(ii), and Parts 240 and 242 (not including §§ 240.231 and 242.301)) regardless of the availability of an adequate workforce, because such relief supports the CDC’s recommendations for social distancing and limiting the touching of common surfaces. The remaining sections of the waiver may be used if the railroad can document a direct workforce shortage or constraint arising from the COVID-19 pandemic.”
“ASLRRA members desiring to operate under the terms of the waiver must document the basis on which they concluded that availing themselves of the relief was necessary and must report required information weekly to ASLRRA to provide to FRA,” Strang noted. “ASLRRA is in the process of developing a procedure for members to provide this information. Further, some aspects of the waiver require specific recordkeeping, reporting and plan development to FRA staff directors, as explained in detail in FRA’s response. ASLRRA recommends that railroads take a conservative approach when utilizing the regulatory relief.”
AAR and APTA member railroads that fall under FRA jurisdiction are subject to the same conditions.
In their communication to FRA, the Petitioners asserted that their member railroads “expect their staffing levels to be significantly reduced as fewer railroad employees and contractors will be available to perform necessary duties due to illness and the need to quarantine,” FRA said in the waiver letter. “[They asserted] that a reduction in employee availability due to the COVID-19 pandemic will affect railroads’ ability to keep freight trains carrying critical goods and materials necessary for the country’s welfare operating during this emergency, and that compliance with all Federal railroad safety regulations, with the expected workforce shortage, would significantly hinder railroads’ ability to operate. Additionally, Petitioners [noted] that limited resources or directives imposed on a geographic location by other government agencies could lead to operational limitations that could result in undue delay to the transportation of critical commodities. As such, Petitioners [requested] relief from certain FRA safety requirements in the event the COVID-19 pandemic causes workforce shortages or other constraints that prevent individual railroads from timely completing all Federally mandated railroad safety tests and inspections, and complying with other requirements related to employee training and qualification.”
FRA determined that, subject to certain conditions, granting the request for relief “is in the public interest, necessary to address the current nationwide emergency situation involving the COVID-19 pandemic, and is not inconsistent with railroad safety … The relief is generally conditioned on the existence of workforce shortages and other constraints … Railroads that find it necessary to utilize the waiver relief … must document the basis on which they concluded that availing themselves of the relief was necessary. Any railroad utilizing any aspect of this waiver is required to report weekly … [to FRA] through their respective industry association.”
FRA granted temporary relief from:
- Certain track inspection time-interval-dependent requirements in Part 213.
- Operational tests and inspections of employees, which “would allow railroad managers more time to ensure railroads remain operational while addressing anticipated challenges in terms of potential workforce shortages or other constraints. Temporarily suspending these programs is consistent with CDC guidance related to social distancing.”
- Current restrictions imposed on utility employees. FRA believes that in the limited circumstances where railroads experience workforce shortages at specific locations, relief “is justified, provided only one utility employee at a time is attached to a train or yard crew.”
- Requirements related to the 36-month certification period for locomotive engineers and conductors.
- The 60-day deadline for responding to petitions submitted to the Locomotive Engineer Review Board and the Operating Crew Review Board.
- Requirements for locomotive engineers unfamiliar with physical characteristics in other than joint operation and requirements for territorial qualifications, respectively. The railroad must first determine that no territorial-qualified engineer or conductor is available. Those who were qualified on the territory but whose qualifications have lapsed must be assigned over an engineer or conductor that was not initially qualified. An engineer certified with “the most demanding service” should be assigned ahead of those engineers with a less demanding service as documented in their individual records. If the locomotive engineer is qualified on the portion of track to be operated over and the conductor is not qualified or whose previous qualification on the portion of track has expired, the train may be operated without restriction. If neither is qualified but the train is PTC active/engaged, the train must operate at a speed not to exceed 40 mph. Without PTC active, the crew must operate at restricted speed with an up-to-date track chart.
The waiver allows railroad employees to conduct “verbal quick tie-ups” at the end of any duty tour to increase social distancing and reduce the use of “common high-touch surfaces” such as computer terminal keyboards. “Employees will not be required to re-enter terminal facilities at the end of their on-duty period, thus avoiding unnecessary contact with other employees from different shifts and/or jobs in the terminal facility and reducing an employee’s need to work at a computer in a terminal facility from two times per shift to one time per shift. Such reductions are consistent with current CDC guidelines,” FRA said.
The waiver also permits locomotive movements between facilities where locomotives have not had inspections and tests within the time periods specified in existing regulations. However, said FRA, “Because the limitation on the movement of defective equipment to the ‘nearest available location where necessary repairs can be performed’ is based on a statutory requirement, FRA does not have the authority to waive this requirement.” But FRA said it “will not take exception to any railroad moving defective equipment to the next forward location where necessary repairs can be performed, where there is adequate staffing and resources available to make the required repairs in a safe manner. Railroads must endeavor to repair defective equipment at locations where qualified mechanical inspectors are present.”
FRA is not waiving the 100%-operative-brakes requirement, but “will not take exception to a railroad operating a train from its initial terminal with 95% operative brakes. Railroads must, however, comply with the remainder of the requirements [for] trains to have at least 85% operable brakes en route … Relief is granted to allow trains … to travel up to 1,200 miles without an intermediate Class IA brake inspection; [and] to travel up to 2,000 miles without an intermediate Class IA brake test. This relief is only granted for those trains, locations or geographic areas where such extended mileage is necessary due to the impacts of the COVID-19 pandemic.”
FRA also granted relief from “the limits on single block pick-ups and single block set-offs … such that railroads may add or remove more than a single block of cars to a train and those cars may be added to any location within a train consist or set-out from any location within a train consist, consistent with the railroad’s train make up requirements. Relief is provided from the requirements governing pre-departure inspections when combining two existing trains (two separate consists including one or more cars and one or more locomotives) that have been properly inspected and tested in compliance with all applicable regulations … without additional inspections, other than a Class III brake test.”
Scope of Relief
FRA said that “limiting the relief … to only the Petitioners’ membership would be insufficient to address the current emergency situation. As a result, FRA is granting all railroads operating within the United States the ability to operate under the terms of this emergency waiver. If a railroad that is not a member of Petitioners’ organizations experiences a workforce shortage or other constraints as a result of the COVID-19 pandemic that prevents it from timely completing any of the Federally-mandated railroad safety tests or inspections, or complying with other requirements, that railroad may become party to this waiver and operate under [its] terms.”