
[Federal Register: August 25, 2009 (Volume 74, Number 163)]
[Rules and Regulations]               
[Page 42987-43006]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au09-13]                         


[[Page 42987]]

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Part III





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 213



Track Safety Standards; Continuous Welded Rail (CWR); Final Rule


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2008-0036]
RIN 2130-AB90

 
Track Safety Standards; Continuous Welded Rail (CWR)

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FRA is amending the Federal Track Safety Standards to promote 
the safety of railroad operations over continuous welded rail (CWR). In 
particular, FRA is promulgating specific requirements for the 
qualification of persons designated to inspect CWR track, or supervise 
the installation, adjustment, or maintenance of CWR track. FRA is also 
clarifying the procedures associated with the submission of CWR plans 
to FRA by track owners. The final rule specifies that these plans 
should add focus on inspecting CWR for pull-apart prone conditions, and 
on CWR joint installation and maintenance procedures. This final rule 
will also make other changes to the requirements governing CWR.

DATES: Effective date: This final rule is effective August 25, 2009.
    Compliance dates: October 9, 2009 for Class I railroads; November 
23, 2009 for Class II railroads; and February 22, 2010 for Class III 
railroads.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Office 
of Railroad Safety, FRA, 1200 New Jersey Avenue, SE., Washington, DC 
20590 (telephone: (202) 493-6236); or Sarah Grimmer Yurasko, Trial 
Attorney, Office of the Chief Counsel, FRA, 1200 New Jersey Avenue, 
SE., Washington, DC 20950 (telephone: (202) 493-6390).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Continuous Welded Rail (CWR)
    A. General
    B. Statutory and Regulatory History for CWR
II. Railroad Safety Advisory Committee (RSAC) Overview
III. RSAC Track Safety Standards Working Group
IV. FRA's Approach to CWR in This Final Rule
    A. Qualifications and Training of Individuals on CWR
    B. Submission of CWR Plans to FRA
    C. Availability of CWR Written Procedures at CWR Work Sites
    D. Special Inspections
    E. Definition of CWR
    F. Ballast
    G. Anchoring
V. Response to Public Comment
VI. Section-by-Section Analysis
VII. Regulatory Impact
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

Background

I. Continuous Welded Rail (CWR)

A. General

    CWR refers to the way in which rail is joined together to form 
track. In CWR, rails are welded together to form one continuous rail 
that may be several miles long. Although CWR is normally one continuous 
rail, there can be joints \1\ in it for one or more reasons: the need 
for insulated joints that electrically separate track segments for 
signaling purposes, the need to terminate CWR installations at a 
segment of jointed rail, or the need to remove and replace a section of 
defective rail.
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    \1\ Rail joints commonly consist of two joint bars that are 
bolted to the sides of two abutting ends of rail and contact the 
rail at the bottom surface of the rail head and the top surface of 
the rail base.
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B. Statutory and Regulatory History for CWR

    FRA issued the first Federal Track Safety Standards in 1971. See 36 
FR 20336 (October 20, 1971), codified at 49 CFR part 213. At that time, 
FRA addressed CWR in a rather general manner, stating, in 49 CFR 
213.119, that railroads must install CWR at a rail temperature that 
prevents lateral displacement of track or pull-aparts of rail ends and 
that CWR should not be disturbed at rail temperatures higher than the 
installation or adjusted installation temperature.
    In 1982, FRA removed Sec.  213.119 because FRA believed it was so 
general in nature that it provided little guidance to railroads and it 
was difficult to enforce. See 47 FR 7275 (February 18, 1982) and 47 FR 
39398 (September 7, 1982). FRA stated: ``While the importance of 
controlling thermal stresses within continuous welded rail has long 
been recognized, research has not advanced to the point where specific 
safety requirements can be established.'' 47 FR 7279. FRA explained 
that continuing research might produce reliable data in this area in 
the future.
    Congressional interest in CWR developed. With passage of the Rail 
Safety Enforcement and Review Act (Pub. L. 102-365, September 3, 1992), 
Congress required the Secretary of Transportation (Secretary) to 
evaluate procedures for installing and maintaining CWR and its 
attendant structure. In 1994, Congress further directed the Secretary 
to specifically evaluate cold weather installation procedures for CWR 
with passage of the Federal Railroad Safety Reauthorization Act of 1994 
(Pub. L. 103-440, November 2, 1994), codified at 49 U.S.C. 20142. As 
delegated by the Secretary, see 49 CFR 1.49(m), FRA evaluated those 
procedures in connection with information gathered from the industry 
and FRA's own research and development activities. FRA then addressed 
CWR procedures by adding Sec.  213.119 during its 1998 revision of the 
Track Safety Standards. See 63 FR 33992 (June 22, 1998).
    Section 213.119, as added in 1998, requires railroads to develop 
and submit to FRA, written CWR plans containing procedures that, at a 
minimum, provide for the installation, adjustment, maintenance, and 
inspection of CWR, as well as a training program and minimal 
recordkeeping requirements. Section 213.119 does not dictate which 
procedures a railroad must use in its CWR plan; however, it states that 
each track owner with track constructed of CWR shall have in effect and 
comply with a plan that contains written procedures which address the 
installation, adjustment, maintenance, and inspection of CWR, the 
inspection of CWR joints, and a training program for the application of 
those procedures. It allows each railroad to develop and implement its 
individual CWR plan based on procedures which have proven effective for 
it over the years. The operative assumption was that geophysical 
conditions vary so widely among U.S. railroads that, in light of what 
was then known about CWR, CWR plans should vary to take account of 
them. Accordingly, procedures can vary from railroad to railroad.
    On August 10, 2005, President Bush signed into law the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) (Pub. L. 109-59). Section 9005(a) of SAFETEA-LU 
amended 49 U.S.C. 20142 by adding a new subsection (e). This new 
subsection required that within 90 days after its enactment, FRA 
require (1) each track owner using CWR track to include procedures (in 
its procedures filed with FRA pursuant to Sec.  213.119) to improve the 
identification of cracks in rail joint bars; (2) instruct

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FRA track inspectors to obtain copies of the most recent CWR programs 
of each railroad within the inspectors' areas of responsibility and 
require that inspectors use those programs when conducting track 
inspections; and (3) establish a program to review CWR joint bar 
inspection data from railroads and FRA track inspectors periodically. 
This new subsection also provided that whenever FRA determines that it 
is necessary or appropriate, FRA may require railroads to increase the 
frequency of inspection, or improve the methods of inspection, of joint 
bars in CWR.
    Pursuant to this mandate, on November 2, 2005, FRA revised the 
Track Safety Standards by publishing an interim final rule (IFR), 70 FR 
66288, which addresses the inspection of rail joints in CWR. FRA 
requested comment on the IFR and provided the Railroad Safety Advisory 
Committee (RSAC) with an opportunity to review the comments on the IFR. 
To facilitate this review, on February 22, 2006, RSAC established the 
Track Safety Standards Working Group (Working Group). The Working Group 
was given two tasks: (1) To resolve the comments on the IFR, and (2) to 
make recommendations regarding FRA's role in oversight of CWR programs, 
including analyzing the data to determine effective management of CWR 
safety by the railroads. The first task, referred to as ``Phase I'' of 
the CWR review, included analyzing the IFR on the inspection of joint 
bars in CWR territory, reviewing the comments on the IFR, and 
developing recommendations for the final rule. With guidance from the 
Working Group, FRA published a final rule on October 11, 2006, 71 FR 
59677, which addressed the comments on the IFR, adopted a portion of 
the IFR, and made changes to other portions. The final rule became 
effective October 31, 2006, and is codified at 49 CFR part 213.
    The Working Group then turned to the second task, referred to as 
``Phase II'' of RSAC's referral, which involves an examination of all 
the requirements of Sec.  213.119 concerning CWRB--not focused only on 
those concerning joints in CWR. As discussed below, the Working Group 
reported its findings and recommendations to RSAC at its February 20, 
2008 meeting. RSAC approved the recommended consensus regulatory text 
proposed by the Working Group, which accounts for the majority of the 
notice of proposed rulemaking (NPRM) that FRA published on December 1, 
2008 at 73 FR 73078. FRA received five comments during the public 
comment period for the NPRM, which the agency will address in the 
discussion of this final rule.

II. Railroad Safety Advisory Committee (RSAC) Overview

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to FRA's Administrator on 
rulemakings and other safety program issues. The RSAC includes 
representation from all of the agency's major stakeholder groups, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. A list of RSAC members follows:

American Association of Private Railroad Car Owners (AARPCO);
American Association of State Highway & Transportation Officials 
(AASHTO);
American Chemistry Council;
American Petrochemical Institute;
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of American Railroads (AAR);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
Chlorine Institute;
Federal Transit Administration (FTA);*
Fertilizer Institute;
High Speed Ground Transportation Association (HSGTA);
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement (LCLAA);*
League of Railway Industry Women;*
National Association of Railroad Passengers (NARP);
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Construction and Maintenance Association;
National Railroad Passenger Corporation (Amtrak);
National Transportation Safety Board (NTSB);*
Railway Supply Institute (RSI);
Safe Travel America (STA);
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association (SMWIA);
Tourist Railway Association Inc.;
Transport Canada;*
Transport Workers Union of America (TWU);
Transportation Communications International Union/BRC (TCIU/BRC);
Transportation Security Administration (TSA);* and
United Transportation Union (UTU).

*Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The task force then provides that information to the 
working group for consideration. If a working group comes to unanimous 
consensus on recommendations for action, the package is presented to 
the full RSAC for a vote. If the proposal is accepted by a simple 
majority of RSAC, the proposal is formally recommended to FRA. FRA then 
determines what action to take on the recommendation. Because FRA staff 
play an active role at the working group level in discussing the issues 
and options and in drafting the language of the consensus proposal, FRA 
is often favorably inclined toward the RSAC recommendation.
    However, FRA is in no way bound to follow the recommendation, and 
the agency exercises its independent judgment on whether the 
recommended rule achieves the agency's regulatory goal, is soundly 
supported, and is in accordance with policy and legal requirements. 
Often, FRA varies in some respects from the RSAC recommendation in 
developing the actual regulatory proposal or final rule. Any such 
variations would be noted and explained in the rulemaking document 
issued by FRA. If the working group or RSAC is unable to reach 
consensus on recommendations for action, FRA moves ahead to resolve the 
issue through traditional rulemaking proceedings.

III. RSAC Track Safety Standards Working Group

    As noted above, RSAC established the Track Safety Standards Working 
Group on February 22, 2006. To address Phase I of RSAC's referral, the 
Working Group convened on April 3-4, 2006; April 26-28, 2006; May 24-
25, 2006; and July 19-20, 2006. The results of the Working Group's 
efforts were incorporated into the final rule that was published on 
October 11, 2006. To address Phase II of RSAC's referral, the Working 
Group convened on January 30-31, 2007; April 10-11, 2007; June 27-28, 
2007; August 15-16, 2007; October 23-24, 2007; and

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January 8-9, 2008. The Working Group's finding and recommendations were 
then presented to the full RSAC on February 20, 2008, as noted above.
    The members of the Working Group, in addition to FRA, include the 
following:
    AAR, including members from BNSF Railway Company (BNSF), Canadian 
National Railway (CN), Canadian Pacific Railway (CP), Consolidated Rail 
Corporation (Conrail), CSX Transportation, Inc. (CSX), The Kansas City 
Southern Railway Company (KCS), Norfolk Southern Railway Company (NS), 
and Union Pacific Railroad Company (UP);
    Amtrak;
    APTA, including members from Port Authority Trans-Hudson 
Corporation (PATH), LTK Engineering Services, Northeast Illinois 
Regional Commuter Railroad Corporation (Metra), and Peninsula Corridor 
Joint Powers Board (Caltrain);
    ASLRRA (representing Class III/smaller railroads);
    ASRSM (represented by staff from the California Public Utilities 
Commission (CPUC));
    BLET;
    BMWED;
    BRS;
    Kandrew, Inc.;
    Transportation Technology Center, Inc. (TTCI); and
    UTU.
    Staff from DOT's John A. Volpe National Transportation Systems 
Center (Volpe Center) attended all of the meetings and contributed to 
the technical discussions. In addition, NSTB staff attended all of the 
meetings and contributed to the discussions as well.
    FRA has worked closely with the RSAC in developing its 
recommendations and believes that the RSAC has effectively addressed 
concerns with regard to FRA's management of CWR and rail carriers' 
effective implementation of their CWR plans. FRA has greatly benefited 
from the open, informed exchange of information during the meetings. 
There is a general consensus among the railroads, rail labor 
organizations, State safety managers, and FRA concerning the primary 
principles FRA sets forth in this final rule. The Working Group has 
also benefited in particular from participation of NTSB staff. FRA 
believes that the expertise possessed by the RSAC representatives 
enhances the value of the recommendations, and FRA has made every 
effort to incorporate them in this final rule.
    The Working Group was unable to reach consensus on one item that 
FRA has elected to include in this final rule. The Working Group did 
not reach consensus with regard to the change to 49 CFR 213.119(c), 
which describes the joint installation and maintenance procedures that 
track owners must include in their CWR plans. The FRA representatives 
to the Working Group felt strongly that the text is necessary to 
include in the final rule, as the failure of CWR joints was the 
principal basis for the 2006 final rule. The FRA members believed that 
the integrity of CWR joints could not be definitively maintained 
without requiring that the specific installation and maintenance 
procedures delineated in Sec.  213.119(c) be included in the track 
owner's CWR plan. On the other hand, the rail carrier representatives 
argued that such specific requirements would interfere with their 
freedom to modify installation and maintenance procedures as they saw 
fit. Nevertheless, it is FRA's position that the text is necessary to 
prevent the failure of CWR joints and has included this singular, non-
consensus item into the rule text of this final rule.

IV. FRA's Approach to CWR in This Final Rule

    As opposed to the more narrow approach taken by FRA when publishing 
the final rule on inspections of joints in CWR (Oct. 11, 2006; 71 FR 
59677), FRA broadly reviewed all of Sec.  213.119 for purposes of this 
final rule. In collaboration with the Working Group, FRA examined 
compliance with Sec.  213.119 in general and concerns brought forward 
by the industry. At the end of the first Working Group meeting, FRA 
decided to focus the review on the following issues: the training/re-
training of individuals qualified to maintain and inspect CWR; the 
submission of CWR plans to FRA; the availability of a carrier's plan at 
CWR work sites; special inspections of CWR; the definition of CWR; 
ballast; and anchoring requirements.

A. Qualifications and Training of Individuals on CWR

    During the rulemaking on inspections of joints in CWR, the BMWED 
suggested that there should be annual re-training of track inspectors 
on joint bar inspections in CWR. FRA understood this comment as 
pertaining to CWR training in general and resolved to address this 
concern as part of the Phase II task of broadly reviewing Sec.  
213.119. In carrying out this task, and because of the concern raised 
by the BMWED, the Working Group decided that it would be beneficial to 
review accident data from Class I and shortline railroads to determine 
whether accidents on CWR could be attributed to training deficiencies 
of track inspectors. The Working Group established the Accident Review 
Task Force (AR Task Force) to facilitate this review and analysis, and 
it was comprised of FRA and the following Working Group members:
    AAR, including BNSF, CSX, CP, NS, and UP;
    Amtrak;
    APTA, including Metra;
    ASLRRA;
    BMWED; and
    BRS.
    Staff from the Volpe Center and NTSB also participated in this 
effort, which focused on researching and analyzing accident data from 
the years 2000 to 2007 for major causal factors of accidents on CWR. 
The AR Task Force initially reviewed over 1100 accident/incident report 
forms from January 2000 to August 2007. After taking into consideration 
the location of the most severe accidents/incidents, the AR Task Force 
narrowed its review to exclude accidents/incidents on Class 1 and 
excepted track, as defined in 49 CFR part 213. The final review 
included over 200 reports that met the objectives and criteria for 
study.
    The AR Task Force determined that a high volume of accidents was 
due to misalignment of track, caused by sunkinks or buckling of the 
track. The AR Task Force also discovered that each incident studied 
occurred after track work had been performed recently, and, 
surprisingly, that the carriers' CWR engineering standards were not 
being followed in conducting various types of track work. In 
particular, the research disclosed failure to adequately de-stress the 
track following a previous derailment; failure to maintain the neutral 
temperature of the rail and to record the amount of rail added or 
removed during installation; failure to adjust or replace deficient 
anchors; and failure to place the proper speed restrictions and/or 
maintain a sufficient length of time and/or tonnage on disturbed track. 
Moreover, upon review of the railroads' CWR program plans, FRA noted 
that the railroads were not providing comprehensive guidelines for the 
training/retraining of their employees in the application of CWR 
procedures.
    Given the concerns raised, the Working Group decided that it was 
necessary to ensure that individuals are properly qualified and trained 
to install, adjust, maintain, and inspect CWR track. Section 213.7 
previously delineated how a railroad must designate (1) qualified 
persons to supervise restorations and renewals of

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track, (2) qualified persons to inspect track, and (3) persons who may 
pass trains over broken rails and pull-aparts. However, the section 
contained no explicit provision for individuals to supervise 
restorations and renewals of track, or for individuals to inspect 
track, specific to CWR. In order to address qualification and training 
concerns specific to individuals qualified on CWR, the Working Group 
recommend adding a new paragraph (c) to Sec.  213.7. See the Section-
by-Section Analysis, below, for further discussion of the changes to 
this section.

B. Submission of CWR Plans to FRA

    The second issue that was raised at the Working Group discussions 
involved the submission of CWR plans to FRA. FRA representatives raised 
the concern that rail carriers were presenting plans to FRA's Office of 
Safety \2\ that were not the current plans, were unenforceable because 
of their vagueness, and did not contain all of the procedures in a 
single, comprehensive document. The Working Group therefore discussed: 
(1) The need to develop a mechanism for updating and submitting CWR 
program procedures in a timely manner to FRA's Office of Safety; (2) 
notification and re-submission criteria for any and all modifications 
to program plans; (3) the need for CWR procedures to be contained in a 
single document; and (4) the desirability of track owners submitting 
changes to CWR procedures to FRA prior to implementation, as immediate 
implementation can cause problems with enforcement activities and 
information being available to FRA personnel in the field.
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    \2\ In November 2008 the Office of Safety was renamed the Office 
of Railroad Safety.
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    The Working Group determined that there was a need to establish 
procedures for the submission and implementation of modified CWR plans 
to maintain consistency with the continued growth of the industry 
through developments in engineering and technology. Initially, rail 
carrier representatives did not agree with FRA's position on the need 
for changes to their CWR procedures to be sent to FRA prior to their 
implementation. They contended that changes in CWR procedures should be 
effective immediately, without having to submit the changes to FRA in 
advance. For example, the rail carrier representatives stated that the 
ability to change their plans as they wished would help them to more 
expeditiously incorporate recent developments based upon engineering 
and accident review findings. However, since FRA enforces the plan that 
the track owner has on file with FRA, if track owners change their 
plans without first notifying FRA, the agency cannot properly enforce 
their plans. The rail carrier representatives acknowledged this issue 
and agreed to FRA's proposal that any change to a CWR plan be submitted 
to FRA at least 30 days prior to its implementation. Nevertheless, FRA 
makes clear that a track owner is allowed to immediately implement more 
restrictive measures than provided for in the plan on file with FRA. 
The track owner can, of course, do more than the minimum measures 
provided for in its plan, such as to address an immediate safety 
concern. However, the track owner would not be able to do less than the 
minimum measures provided for in its plan without first following the 
proposed procedures for changing the plan.
    The rail carrier representatives stated that they would like to 
know when FRA has received a submitted CWR plan. FRA agreed that this 
request was reasonable, and agreed to include a provision in the 
regulation stating that FRA will issue a written statement 
acknowledging receipt of the plan to the track owner. The Working Group 
also discussed that the current regulatory text was vague as to what 
FRA did with a plan once it was received. FRA has determined that the 
best course of action is to allow for the agency to review a plan and, 
if it is disapproved, to state the reasons for the disapproval. This is 
intended to allow the track owner to better understand and remedy the 
deficiencies that FRA identifies with its plan. The final regulatory 
text also provides a process by which the track owner could appeal an 
initial rejection of its CWR plan by FRA. This process is further 
discussed in the Section-by-Section Analysis, below.

C. Availability of CWR Written Procedures at CWR Work Sites

    With the passage of SAFETEA-LU in 2005, Congress mandated that FRA 
instruct its track inspectors to obtain the most recent copies of rail 
carriers' CWR plans and to use these plans when conducting track 
inspections. In response, FRA posted the CWR plans received by the 
Office of Safety on FRA's Intranet site, where they are available to 
all Federal and State inspectors, and has instructed all of its 
inspectors to use these plans when conducting track inspections.
    The Working Group discussed the desirability of having copies of 
the carrier's written CWR procedures at every work site. FRA and labor 
representatives maintained that updated revisions and modifications to 
the CWR plans should be made available to the carrier personnel 
responsible for the installation, adjustment, maintenance, and 
inspection of CWR; railroads should maintain/retain these procedures 
and guidelines within their engineering manuals. FRA proposed to the 
Working Group that the railroads provide a copy of their CWR program 
plans to be maintained on-site during the performance of duties either 
with the employee in charge or the qualified employee conducting the 
work. This type of practice would ensure that personnel understand the 
track owner's CWR policies and procedures.
    The Working Group reached consensus that the track owner should 
make available, in one comprehensive manual, a copy of the track 
owner's CWR plan, including all revisions, appendices, updates, and 
referenced materials, at every job site where personnel are assigned to 
install, inspect, and maintain CWR.

D. Special Inspections

    During Phase I of the Working Group's assignment, it was determined 
that the issue of special inspections of CWR during cold weather be 
tabled until Phase II. During preliminary Phase II discussions, the 
Working Group recognized that this issue would be better resolved by 
enlisting additional resources for further technical engineering 
research and analysis. The Working Group therefore formed the Technical 
Issues Task Force (TI Task Force), which was principally comprised of 
members from the Volpe Center and Kandrew, Inc., an independent 
engineering contractor engaged to represent the interests of the AAR. 
Technical concerns discussed by the TI Task Force included: Speed 
restrictions for track work following mechanized stabilization (i.e., 
how slow orders are lifted); maintaining the desired rail installation 
temperature range; inspecting for curve movement; the relationship 
between ambient and rail temperature; special inspections (cold weather 
effects on rail); and rail anchoring requirements. The TI Task Force 
reported to the Working Group that all of these issues should be 
handled either individually or jointly in special CWR inspections.

E. Definition of CWR

    CWR refers to the way in which rail is joined together to form 
track. In CWR, rails are welded together to form one continuous rail 
that may be several miles long. Although CWR is nominally one 
continuous rail, rail joints may exist for many different reasons. CWR 
is

[[Page 42992]]

currently defined as rail that has been welded together into lengths 
exceeding 400 feet. Labor representatives questioned whether the 
railroads would consider CWR into which a joint has been installed (to 
repair a rail break or remove a detected defect, for example) to be 
jointed rail and no longer subject to the railroad's CWR maintenance 
policy. FRA's position is that rail designated as CWR when installed 
remains CWR irrespective of whether it contains a joint or joints.

F. Ballast

    In its ongoing review of CWR plans, FRA noted that some track 
owners included a definition of what constitutes ``sufficient ballast'' 
in their plans. Some plans cited specific measurements prescribing the 
amount of ballast appropriate for various track locations. During the 
Working Group meetings, labor representatives proposed that FRA adopt a 
definition of minimum sufficient ballast. The labor representatives 
also requested additional information from the Volpe Center to address 
concerns about how track ballast affects track strength. The ensuing 
discussion highlighted the fact that the track owners' CWR plans (which 
are submitted to FRA) are supplemented in practice by additional 
railroad-specific policies and procedures (``best practices'') which 
are often more restrictive. Rail carrier representatives were reluctant 
to have explicit ballast requirements in their CWR plans, due to the 
concern that ballast conditions may not always be maintained to the 
presumably more stringent internal standards.
    The Track Safety Standards define ballast in Sec.  213.103 as 
material which will transmit and distribute the load of the track and 
railroad rolling equipment to the subgrade; restrain the track 
laterally, longitudinally, and vertically under dynamic loads imposed 
by railroad rolling equipment and thermal stress exerted by the rails; 
provide adequate drainage for the track; and maintain proper track 
crosslevel, surface, and alinement. It is FRA's position that Sec.  
213.103 appropriately defines the term ``ballast'' for use by the 
regulated industry.

G. Anchoring

    The Working Group discussed rail anchoring specifically in terms of 
controlling longitudinal force near joints installed at the end of CWR 
strings and near joints within CWR strings. A CWR string is understood 
to be a length of CWR rail set aside by the railroad for installation 
in the track. Of concern is the relative effectiveness of anchoring 
patterns--every tie versus every other tie in conventional, wood tie 
construction. Railroads typically do not change anchoring patterns when 
installing joints within CWR strings, and generally have policies to 
remove the joint when practical. At the end of CWR strings some 
railroads under certain circumstances box-anchor every tie for a 
prescribed distance to help control the longitudinal forces at the 
transition. This is not a universally accepted practice. The primary 
effect of this practice is to reduce the longitudinal force carried by 
the joint when the rail is in tension. As the force carried by the 
joint increases, the predicted life of the joint shortens. Please see 
the discussion in the Section-by-Section Analysis for Sec.  213.119(c) 
to see the options that FRA gives track owners to strengthen a joint by 
relieving the tensile forces that it endures.
    The Working Group also focused on when the joint would be removed, 
and proposed time limits for certain actions based on the performance 
of the joint in practice. One of the concerns is that as the joint 
fails the existing stress-free temperature of the rail may 
significantly be reduced, and, hence, require subsequent adjustment. 
Although the technical aspects of this issue were agreed upon by the 
Working Group, consensus was not reached on including specific 
requirements in the regulatory text. Please see the Section-by-Section 
Analysis for further discussion on this issue.

V. Response to Public Comment

    FRA received comments from the American Association for Justice, 
AAR, BMWED, Metra, and NTSB during the public comment period for the 
NPRM. FRA has reviewed and analyzed each issue brought up by the 
comments, which the agency will address in this discussion and in the 
final rule text.

Preemption

    The American Association for Justice (AAJ) commented that FRA 
should revise its section entitled ``Executive Order 13132'' to delete 
any language regarding the preemption of State common law claims. AAJ 
stated that, contrary to the agency's assertions, the former Federal 
Railroad Safety Act of 1970 (FRSA) does not authorize the preemption of 
State common law claims. AAJ claimed that FRA regulations have never 
lawfully preempted State law claims. The petition also stated that 
Congress reiterated its intent to preserve State tort claims against 
negligent railroads. Finally, AAJ argued that agency rules must clearly 
follow the FRSA's limited preemption language, and that State common 
law should govern railroad safety issues.
    Contrary to AAJ's claim, FRA's Federalism Statement correctly 
recites that the rule preempts State common law standards of care. The 
Supreme Court has spoken clearly on the subject of preemption State 
common law by 49 U.S.C. 20106 (Section 20106). The question was 
squarely presented to the Court in CSX Transp., Inc. v. Easterwood, 507 
U.S. 658 (1993), in which one of the respondent's claims was that, 
despite FRA's track standards (49 CFR part 213) which permit a maximum 
speed of 60 m.p.h. over the class four track involved in the case and 
train speed at the collision below 60 m.p.h., ``petitioner [CSX] 
breached its common-law duty to operate its train at a moderate and 
safe rate of speed.'' Id. at 673. The Court's answer was ``[w]e hold 
that, under the FRSA, Federal regulations adopted by the Secretary of 
Transportation pre-empt respondent's negligence action only insofar as 
it asserts that petitioner's train was traveling at an excessive 
speed.'' Id. at 676. In reaching that judgment, the Court reasoned that 
``[a]ccording to Sec.  [20106], applicable Federal regulations may pre-
empt any State `law, rule, regulation, order, or standard relating to 
railroad safety.' Legal duties imposed on railroads by the common law 
fall within the scope of these broad phrases.'' Id. at 664. The Supreme 
Court very plainly held that the State common-law standard of care was 
preempted by FRA's Track Safety Standards, but that the underlying 
negligence action was not. That is completely in accord with the 
amendment Congress enacted to Section 20106 in section 1528 of the 
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 
Commission Act of 2007).
    The Supreme Court's interpretation of Section 20106 was confirmed 
and further explained in a subsequent case also involving a grade 
crossing wreck, but alleging that the railroad negligently failed to 
maintain adequate warning devices at the grade crossing in question. 
The Supreme Court held:

    Sections 646.214(b)(3) and (4) [the Federal Highway 
Administration regulations mandating the installation of particular 
warning devices when certain conditions exist] ``cover the subject 
matter'' of the adequacy of warning devices installed with the 
participation of Federal funds. As a result, the FRSA pre-empts 
respondent's State tort claim that the advance warning signs and 
reflectorized crossbucks installed at the Oakwood Church Road 
crossing were inadequate. Because the TDOT used Federal funds for 
the signs' installation, Sec. Sec.  646.214(b)(3) and (4) governed 
the

[[Page 42993]]

selection and installation of the devices. And because the TDOT 
determined that warning devices other than automatic gates and 
flashing lights were appropriate, its decision was subject to the 
approval of the FHWA. See Sec.  646.214(b)(4). Once the FHWA 
approved the project and the signs were installed using Federal 
funds, the Federal standard for adequacy displaced Tennessee 
statutory and common law addressing the same subject, thereby pre-
empting respondent's claim.

Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 358-359 (2000). It 
could not be clearer that, before Congress amended Section 20106 in 
2007, it provided for preemption of State common law by DOT 
regulations.
    Congress was moved to amend Section 20106 by two court cases, 
Lundeen v. Canadian Pacific Ry. Co., 507 F.Supp.2d 1006 (D.Minn. 2007), 
and Mehl v. Canadian Pacific Ry., Ltd., 417 F.Supp.2d 1104 (D.N.D. 
2006), which left without a legal remedy tort plaintiffs injured in a 
hazardous material release from a train wreck in Minot, North Dakota. 
The judge's opinion in Lundeen said:

    Preemption bars private claims for FRA violations. Congress has 
given the Secretary of Transportation ``exclusive authority'' to 
impose civil penalties and request injunctions for violations of the 
railroad safety regulations. \FN4\ 49 U.S.C. 20111(a); Abate v. S. 
Pac. Transp. Co., 928 F.2d 167, 170 (5th Cir. 1991) (``The structure 
of the FRSA indicates that Congress intended to give Federal 
agencies, not private persons, the sole power of enforcement.'').
    FN4. The single exception to the Secretary's exclusive authority 
exists when the Federal government fails to act promptly. In such 
cases, State government agencies can file suit, impose penalties, or 
seek injunctions. 49 U.S.C. 20113.
    Indeed, the FRSA has ``absolved railroads from any common law 
liability for failure to comply with the safety regulations.'' Mehl, 
417 F.Supp.2d at 1120. This is the regulatory scheme which Congress 
has imposed. And when Congress has clearly spoken, any relief from 
its regime must come from Congress rather than the Courts. Private 
actions against railroads based on Federal regulations are 
preempted.

Lundeen, supra at 1016.

    The amendment to Section 20106 made by section 1528 of the 9/11 
Commission Act of 2007 did not change the text the Supreme Court had 
interpreted. Instead, Congress enacted a very precise cure for the 
problem presented by Lundeen and Mehl by amending Section 20106 to 
renumber the then-existing language as subsection (a), and adding two 
new subsections as follows:
    (b) Clarification regarding State law causes of action.--(1) 
Nothing in this section shall be construed to preempt an action under 
State law seeking damages for personal injury, death, or property 
damage alleging that a party--
    (A) Has failed to comply with the Federal standard of care 
established by a regulation or order issued by the Secretary of 
Transportation (with respect to railroad safety matters), or the 
Secretary of Homeland Security (with respect to railroad security 
matters), covering the subject matter as provided in subsection (a) of 
this section;
    (B) Has failed to comply with its own plan, rule, or standard that 
it created pursuant to a regulation or order issued by either of the 
Secretaries; or
    (C) Has failed to comply with a State law, regulation, or order 
that is not incompatible with subsection (a)(2).
    (2) This subsection shall apply to all pending State law causes of 
action arising from events or activities occurring on or after January 
18, 2002.
    (c) Jurisdiction.--Nothing in this section creates a Federal cause 
of action on behalf of an injured party or confers Federal question 
jurisdiction for such State law causes of action.
    New subsection (b) clarifies that, as the Supreme Court held in 
Easterwood, regulations or orders issued by the Secretary of 
Transportation preempt the State standard of care, but not the 
underlying cause of action in tort, thereby preserving the ability of 
injured parties to seek redress in court.
    Since FRA's Track Safety Standards (49 CFR part 213) were involved 
in both Easterwood and Lundeen, they are especially apt for 
illuminating FRA's interpretation of the amended statute. The Track 
Safety Standards substantially subsume the subject matters of standards 
for railroad track and train speeds over it and, therefore, preempt 
State standards, both statutory and common law, pertaining to those 
subjects. Nevertheless, under Section 20106(b)(1)(A), a private 
plaintiff may bring a tort action for damages alleging injury as a 
result of violation of the Track Safety Standards, such as train speed 
exceeding the maximum speed permitted under 49 CFR 213.9 over the class 
of track being traversed. Similarly, under Section 20106(b)(1)(B), a 
private plaintiff may bring a tort action for damages alleging injury 
as a result of violation of a railroad's CWR plan required by the Track 
Safety Standards (the key issue in Lundeen). Provisions of a railroad's 
CWR plan which exceed the requirements of this part are not included in 
the Federal standard of care. Under Section 20106(b)(1)(C), a private 
plaintiff may bring a tort action for damages alleging injury as a 
result of violation of a State law, regulation, or order that is not 
incompatible with subsection (a)(2), such as Ohio's regulation of 
minimum track clearances in rail yards found not to be preempted in 
Tyrrell v. Norfolk Southern Ry. Co., 248 F.3d 517 (6th Cir. 2001).
    It is a settled principle of statutory construction that, if the 
statute is clear and unambiguous, it must be applied according to its 
terms. Carcieri v. Salazar, 555 U.S.--(2009). Read by itself, Section 
20106(a) preempts State standards of care, but does not expressly state 
whether anything replaces the preempted standards of care for purposes 
of tort suits. The focus of that provision is clearly on who regulates 
railroad safety: The Federal government or the States. It is about 
improving railroad safety, for which Congress deems nationally uniform 
standards to be necessary in the great majority of cases. That purpose 
has collateral consequences for tort law which new Section 20106 
subsections (b) and (c) address. New subsection (b)(1) creates three 
exceptions to the possible consequences flowing from subsection (a). 
One of those exceptions ((b)(1)(B)) precisely addresses an issue 
presented in Lundeen Congress wished to rectify: it allows plaintiffs 
to sue a railroad in tort for violation of its own plan, rule, or 
standard that it created pursuant to a regulation or order issued by 
either of the Secretaries. That provision satisfies the arguments made 
in the Petition concerning the State tort claims Congress intended to 
preserve. None of those exceptions covers a plan, rule, or standard 
that a regulated entity creates for itself in order to produce a higher 
level of safety than Federal law requires, and such plans, rules, or 
standards were not at issue in Lundeen. The key concept of Section 
20106(b) is permitting actions under State law seeking damages for 
personal injury, death, or property damage to proceed using a Federal 
standard of care. A plan, rule, or standard that a regulated entity 
creates pursuant to a Federal regulation logically fits the paradigm of 
a Federal standard of care--Federal law requires it and determines its 
adequacy. A plan, rule, or standard, or portions of one, that a 
regulated entity creates on its own in order to exceed the requirements 
of Federal law does not fit the paradigm of a Federal standard of 
care--Federal law does not require it and, past the point at which the 
requirements of Federal law are satisfied, says nothing about its 
adequacy. That is why FRA believes Section 20106(b)(1)(B) covers the 
former, but not the latter. The basic purpose of the statute--improving 
railroad safety--is best served by encouraging regulated entities to do 
more than the law requires and would

[[Page 42994]]

be disserved by increasing the potential tort liability of regulated 
entities that choose to exceed Federal standards, which would 
discourage them from ever exceeding Federal standards again.
    In this manner, Congress adroitly preserved its policy of national 
uniformity of railroad safety regulation expressed in Section 
20106(a)(1) and assured plaintiffs in tort cases involving railroads, 
such as Lundeen, of their ability to pursue their cases by clarifying 
that Federal railroad safety regulations preempt the standard of care, 
not the underlying causes of action in tort. Under this interpretation, 
all parts of the statute are given meanings that work together 
effectively and serve the safety purposes of the statute. Because the 
language of the statute is clear, there is no need to resort to the 
legislative history to properly interpret the statute. See Ratzlaf v. 
United States, 510 U.S. 135, 147-148 (1994) (``[W]e do not resort to 
legislative history to cloud a statutory text that is clear'').

Disapproval of CWR plans

    BMWED strongly argued that it believes that FRA should disapprove, 
for cause stated, CWR plans within a specific time period so as not to 
allow a non-conforming plan to remain in effect for an extended period 
of time. Should manpower at FRA be an impediment to incorporating such 
specific time frames for disapproval of all track owners' CWR plans, 
BMWED argues that FRA should, at a minimum, adopt its suggested time 
frame of review of 5 months for Class I railroads, 10 months for Class 
II railroads, and 15 months for Class III railroads.
    FRA appreciates BMWED's concerns, and has developed a good solution 
to this issue. FRA decided to have this final rule effective at 
different dates based on the Class of railroad. This final rule is 
effective 45 days after the publication date for Class I railroads, 90 
days after the publication date for Class II railroads, and 180 days 
after the publication date for Class III railroads. Also, FRA has 
developed a new section, 213.118, which more clearly outlines FRA's 
plan review and approval process. Please see the extensive discussion 
on this section below.

CWR Joint Bolt Requirements

    The AAR is not in favor of including Sec.  213.119(c), which 
describes CWR joint installation and maintenance procedures, contending 
that its inclusion robs the industry of necessary future flexibility. 
These representatives did not believe it was necessary to incorporate 
the text into the rule if FRA knew that they had already proposed to 
add the text to their individual CWR plans. The AAR members in the 
Working Group also argued this point during the meetings, stating that 
including this paragraph constituted ``regulatory creep.'' BMWED, on 
the other hand, agreed with the proposed text. FRA strongly feels that 
inclusion of the paragraph is necessary. With the history of high-
profile derailments on CWR due to joint bar failure, as discussed in 
the October 11, 2006 final rule (71 FR 59677), FRA stresses the 
importance for CWR track owners to follow the installation and 
maintenance procedures in this paragraph. FRA also notes that the 
maintenance procedures were analyzed and discussed at length by the 
Working Group and found to represent sound industry guidance to avoid a 
derailment on CWR track due to poor joint installation or maintenance.
    The BMWED mentioned that Sec.  213.119(c)(3) should specify 
``bar(s)'' instead of ``bar.'' FRA agrees with this assessment and has 
changed the final rule text accordingly. FRA has also elected to 
slightly revise the text to make the requirements more uniform.

Rail Neutral Temperature

    In its comment, Metra argues that hunting,\3\ a significant source 
for imposed dynamic lateral loading, typically occurs in lightly loaded 
commuter cars at about 60 mph in contrast to the typical onset of 
hunting in freight cars at about 40 mph. The commenter suggests that, 
for passenger and commuter trains, ``Rail that has pulled apart, 
broken, or been cut for defect removal must be readjusted such that its 
neutral temperature is within the safe range. If the rail has not been 
so readjusted before the rail temperature exceeds a prescribed value, 
the railroad would either: (1) Apply a speed restriction of 25 mph, or 
(2) apply a speed restriction reducing the speed by one class of track 
or operate at 40 mph, whichever was greater, in conjunction with a 
daily inspection of the rail made during the heat of the day.'' Thus, 
commuter railroads would reduce speed to 60 mph for passenger 
operations and inspect the location during the heat of the day or 
otherwise have to reduce the speed to 25 mph if the inspection could 
not be done during the heat of the day.
---------------------------------------------------------------------------

    \3\ Truck hunting is a rapid oscillation of a car truck usually 
occurring at speeds in excess of 45 miles per hour in cars that are 
empty or lightly loaded, where the flanges tend to ride up on the 
head of the rail.
---------------------------------------------------------------------------

    FRA responds that, while this is an important issue, it is not one 
that the agency has chosen to cover in the final regulatory text. The 
issue was mentioned in FRA's preamble discussion of the NPRM as an 
example of a technical issue that the Working Group discussed. FRA 
highlighted this issue as one that the agency would take into 
consideration when reviewing CWR plans. Pursuant to Sec.  213.119(f), 
the track owner must describe in its plan procedures which govern train 
speed on CWR track when maintenance work, track rehabilitation, track 
construction, or any other event occurs which disturbs the roadbed or 
ballast section and reduces the lateral or longitudinal resistance of 
the track, and the difference between the average rail temperature and 
the average rail neutral temperature is in a range that causes 
buckling-prone conditions to be present at a specific location. FRA 
instructs all track owners to specifically describe in their plans how 
they intend to do this. FRA will review all plans for compliance with 
Sec.  213.119(f).

Inspection Interval

    AAR proposes that FRA return to the ``intent of the current 
regulations and RSAC's intent by requiring railroads to specify when 
inspections should occur due to ambient temperature.'' AAR argues that 
FRA offers no explanation of why it proposes to require railroads to 
specify an inspection interval at Sec.  213.119(g)(2) or what it 
expects railroads to do to comply with such a requirement. FRA 
understands the confusion that the wording in the NPRM could have 
caused. Therefore, FRA has slightly modified the text in response to 
AAR's comment. The final rule states that the plan must ``specify when 
the inspections will be conducted.''

Fracture Reports

    NTSB noted that a track owner must generate a Fracture Report for 
every cracked or broken CWR joint bar and conduct special inspections 
to locate the defective joint bar. The track owner then sends this data 
to FRA for review and analysis so that FRA can assess the validity of 
joint bar inspections and determine their proper frequency or 
adjustment. NTSB is concerned that, after February 10, 2010, a track 
owner may petition FRA to conduct a technical conference to review the 
Fracture Report data and to assess whether there is a continued need 
for the collection of data. NTSB is concerned that FRA may authorize 
track owners to discontinue collecting fracture data that could help 
evaluate whether a railroad's CWR plan adequately addresses problematic 
joints. NTSB argues that the collection and assessment of fracture data 
are important and should continue.
    FRA appreciates NTSB's concern with regard to the importance of 
Fracture

[[Page 42995]]

Reports, and also notes that FRA did not change the requirement of 
Fracture Reports with this final rule. Indeed, a track owner must 
continue to submit a Fracture Report to FRA for every cracked or broken 
CWR joint bar that is discovered during the course of an inspection 
pursuant to Sec. Sec.  213.119(h), 213.233 or 213.235 on track that is 
required under Sec.  213.119(h)(6)(i) to be inspected. FRA believes 
that NTSB's concern is premature for purposes of this rulemaking. FRA 
advises that the appropriate time to bring forth this concern would be 
at a technical conference called by FRA to assess whether there is a 
continued need for the collection of Fracture Report data.

Additional Comments

    NTSB pointed out that, under Sec.  213.119, a track owner could 
submit one plan to FRA, but then operate using a more restrictive plan. 
NTSB strongly argued that allowing a track owner to operate with two 
sets of CWR plans was not in the best interest of safety. Although FRA 
agrees with NTSB's comment that it is confusing to have two standards, 
FRA points out that the Track Safety Standards are minimum standards, 
and that the track owner is free to voluntarily follow more restrictive 
standards as a best practice.
    AAR proposed that FRA eliminate the text at the end of Sec.  
213.121(f), which states that ``locations when over 400 feet in length 
(with no-slip, joint-to-rail contact), are considered to be continuous 
welded rail track and shall meet all the requirements for continuous 
welded rail track prescribed in this part.'' FRA has always considered 
no-slip joint-to-rail contact designed joints to not be a break in rail 
continuity, and thus be defined as CWR. To avoid any confusion on this 
issue, FRA has elected to leave this portion of Sec.  213.121(f) 
intact.
    AAR also proposed that FRA delete the last sentence in Sec.  
213.119(k), which requires that CWR procedures be ``maintained in one 
engineering standards and procedures manual.'' AAR claimed that it is 
not necessary to have all engineering standards and procedures in one 
document, but agrees that there is a benefit to having all CWR 
standards and procedures in one document. FRA agrees with this concern, 
and has changed the text to specify that CWR procedures be ``maintained 
in one CWR standards and procedures manual.''

Errata

    Multiple commenters pointed out that the table at Sec.  
213.119(h)(6) contains inadvertent errors, which FRA has corrected with 
this final rule.

VI. Section-by-Section Analysis

Section 213.7 Designation of Qualified Persons to Supervise Certain 
Renewals and Inspect Track

    FRA is revising Sec.  213.7 principally by adding a new paragraph 
(c), which creates a new requirement for the track owner to 
specifically designate individuals who are qualified to inspect CWR 
track or supervise the installation, adjustment, and maintenance of CWR 
track in accordance with the track owner's written procedures. This 
paragraph require that the designated individual have: (1) Current 
qualifications under either paragraphs (a) or (b) of this section; (2) 
successfully completed a comprehensive training course specifically 
developed for the application of written CWR procedures issued by the 
track owner; (3) demonstrated to the track owner that he/she knows and 
understands the requirements of the written CWR procedures, can detect 
deviations from those requirements, and can prescribe appropriate 
remedial action(s) to correct or safely compensate for those 
deviations; and (4) written authorization from the track owner to 
prescribe remedial action(s) to correct or safely compensate for 
deviations from the requirements in the CWR procedures and successfully 
completed a recorded examination on the procedures as part of the 
qualification process to be made available to FRA.
    FRA has determined that, as CWR track has characteristics 
inherently different than those of traditional jointed rail, track 
owners should be required to designate which individuals are 
specifically qualified to inspect, or supervise the installation, 
adjustment, and maintenance of CWR. In addition to the qualifications 
that an individual must have under paragraph (a) to perform track 
maintenance work, or the qualifications under paragraph (b) to inspect 
track, an individual designated under paragraph (c) will have to be 
well-versed in the maintenance of CWR track as detailed in the track 
owner's CWR plan.
    For guidance, FRA originally looked to Sec.  213.305(c), which 
regulates the requirements of an individual qualified to inspect CWR 
track or supervise the installation, adjustment, and maintenance of CWR 
in accordance with the track owner's written procedures for train 
operations at track classes 6 and higher. The Working Group discussed 
the merits of the requirement in Sec.  213.305(c)(2), which states that 
an individual must have ``successfully completed a training course of 
at least eight hours duration specifically developed for the 
application of written CWR procedures issued by the track owner.'' 
Carrier representatives maintained that the requirement to have an 
eight-hour course would interfere with current training methods. As the 
FRA representatives agreed that the comprehensive nature of the 
training course is more important than its duration, the Working Group 
reached consensus that the individual would have to successfully 
complete a comprehensive training course pursuant to paragraph (c)(2), 
which does not specify the duration of the training.
    The Working Group also discussed the merits of requiring the 
individual to successfully complete an examination on the track owner's 
CWR procedures. In Sec.  213.305(c)(4), individuals qualified on CWR 
for train operations at track classes 6 and higher must successfully 
complete a recorded examination on the track owner's CWR procedures. 
The paragraph states that this examination may be written, or it may be 
a computer file with the results of an interactive training course. 
Working Group members were concerned with the proposal that the 
examination be in a written context. It was argued that, quite often, a 
supervisor can better test someone's knowledge through practical 
application in the field as opposed to a written test. In order to 
accommodate this option for testing, FRA agreed to define the required 
examination in paragraph (c)(4) as ``recorded'' instead of written; 
therefore, track owners will have the flexibility to test an 
individual's knowledge how they best see fit. However, it should be 
noted that the results of the examination must be recorded so that FRA 
may inspect the basis for the qualification of an individual under 
paragraph (c).
    In adding paragraph (c) to this section, FRA is redesignating 
former paragraphs (c) and (d) as paragraphs (d) and (e), respectively. 
FRA is also making conforming changes to these paragraphs to cross-
reference the new paragraph (c), in the same way that the former 
paragraphs of this section are cross-referenced. Although FRA is 
setting out the entire text of these paragraphs for clarity, the 
changes to the redesignated paragraphs involve only adding the cross-
reference to the introductory text of the paragraphs, and removing the 
superfluous reference ``of this part'' in redesignated paragraph 
(d)(4).

[[Page 42996]]

Section 213.118 Continuous Welded Rail (CWR); Plan Review and Approval

    FRA is amending the Track Safety Standards by adding new Sec.  
213.118. FRA determined to cover the plan review and approval process 
in Sec.  213.118, and the required contents of the plan in Sec.  
213.119. This section delineates the process for submitting a CWR plan 
for approval to FRA.
    Paragraph (a). In this paragraph, FRA requires that each track 
owner with track constructed of CWR must have in effect and comply with 
a plan that contains written procedures which address: The 
installation, adjustment, maintenance, and inspection of CWR; 
inspection of CWR joints; and a training program for the applications 
of those procedures. This paragraph is based on the text that formerly 
appeared at Sec.  213.119. FRA has not changed the substance of this 
requirement.
    Paragraph (b). In this paragraph, FRA explains that the track owner 
must file its CWR plan with the FRA Associate Administrator for 
Railroad Safety/Chief Safety Officer (``Associate Administrator''). 
Within 30 days of receipt of the submission, FRA will review the plan 
for compliance with this subpart. FRA will approve, disapprove or 
conditionally approve the submitted plan, and will provide written 
notice of its determination. During Working Group discussions, FRA 
representatives expressed concern that this section's current 
introductory text does not explicitly address certain procedural issues 
associated with CWR plans. The previous text did not explain how a 
track owner would revise a CWR plan that has already been submitted to 
FRA, or what the process would be for FRA to require a revision to a 
plan, including the process to appeal a revision requirement. FRA is 
therefore clarifying that a track owner must file its CWR plan with the 
FRA Associate Administrator not less than 30 days before it implements 
its CWR plan, including submitting revisions to an existing CWR plan in 
order for the changes to take effect under the regulation.
    In this paragraph, FRA decided that a plan may also be 
conditionally approved. FRA recognizes that there might be instances 
where it would be beneficial for the agency to conditionally approve a 
plan. For example, the agency might decide that a plan should be 
approved, but might need to look into new technology proposed in the 
plan. It is FRA's intent to later approve or disapprove a plan that it 
conditionally approves. FRA also intends to notify the track owner of a 
conditionally approved plan of the time that the agency anticipates it 
will require in order to make a final determination. So that FRA does 
not stall the implementation of a plan that would otherwise be 
approved, FRA has decided to allow a plan to be conditionally approved.
    Paragraph (c). In this paragraph, FRA states that the track owner's 
existing plan shall remain in effect until the track owner's new plan 
is approved or conditionally approved and is effective pursuant to 
paragraph (d). In the Working Group discussions, it was brought up that 
FRA had previously been unclear in what plan would be in effect while 
FRA reviewed a new plan. In this new paragraph, FRA clarifies that the 
track owner's existing plan is to remain in effect until the new plan 
is approved or conditionally approved and is in effect.
    Paragraph (d). In this paragraph, FRA states that the track owner 
must, upon receipt of FRA's approval or conditional approval, establish 
the plan's effective date. The paragraph also requires that the track 
owner advise, in writing, FRA and all affected employees of the 
effective date. FRA decided to promulgate this provision because track 
owners have expressed to FRA that they needed time to implement a plan 
once FRA has approved it. Indeed, FRA recognizes the time and effort 
that it takes to issue a new CWR plan, and wants to ensure that track 
owners have the time to do this once a new CWR plan is approved by FRA. 
Therefore, FRA has decided to let the track owner establish an 
effective date of its approved or conditionally approved CWR plan 
provided that FRA and all affected employees are advised of the 
effective date in writing.
    Paragraph (e). In this paragraph, for cause stated, FRA may, 
subsequent to plan approval or conditional approval, require revisions 
to the plan to bring the plan into conformity with this subpart. Notice 
of a revision requirement shall be made in writing and specify the 
basis of FRA's requirement. The track owner may, within 30 days of the 
revision requirement, respond and provide written submissions in 
support of the original plan. FRA renders a final decision in writing. 
Not more than 30 days following any final decision requiring revisions 
to a CWR plan, the track owner shall amend the plan in accordance with 
FRA's decision and resubmit the conforming plan. The conforming plan 
becomes effective upon its submission to FRA.
    If the review indicates that revisions to the plan are needed to 
bring the plan into compliance with the requirements of the rule, FRA 
will give notice of the revision requirement in writing to the track 
owner, including the basis of the revision requirement. FRA believes 
that this paragraph clarifies the process it will use when requiring 
CWR plans to be revised. It should be noted that, unlike when a plan is 
approved or conditionally approved, when a conforming plan that has 
been revised is submitted to FRA, it becomes effective on that date.

Section 213.119 Continuous Welded Rail (CWR); Required Plan Contents

    FRA moved the text pertaining to CWR plan review and approval to 
new Sec.  213.118. The introductory text to this section now states 
that the track owner must comply with the contents of the CWR plan 
approved or conditionally approved under Sec.  213.118.
    Paragraphs (a) and (b). Paragraphs (a) and (b) are published in 
their entirety with no changes.
    Paragraph (c). FRA is designating previous paragraph (c) as 
paragraph (d), and adding a new paragraph (c) in its place. New 
paragraph (c) revises the requirements for CWR joint installation and 
maintenance procedures to be included in a track owner's CWR plan. The 
new paragraph requires that rail joints be installed per the 
requirement in Sec.  213.121(e), which states, ``In the case of 
continuous welded rail track, each rail shall be bolted with at least 
two bolts at each joint.'' The new paragraph further states that, in 
the case of a bolted joint installed during CWR installation after the 
publication date of the final rule, within 60 days the track owner must 
either: (1) Weld the joint; (2) install a joint with six bolts; \4\ or 
(3) anchor every tie 195 feet in both directions of the joint. Finally, 
the new paragraph states that, in the case of a bolted joint in CWR 
experiencing service failure or a failed bar with a rail gap present, 
the track owner must either: (1) Weld the joint; or (2) replace the 
broken bar(s), replace the broken bolts, adjust anchors and weld the 
joint within 30 days; or (3) replace the broken bar(s), replace the 
broken bolts, install one additional bolt per rail end, and adjust the 
anchors; or (4) replace the broken bar(s), replace the broken bolts, 
and anchor every tie 195 feet in both directions from the CWR joint; or 
(5) replace the broken bar(s), replace the broken bolt(s), add rail 
with provisions for later adjustment pursuant to (d)(2) of this 
section, and reapply anchors. Per

[[Page 42997]]

BMWED's comment, FRA is adding the option of ``bars'' to (c)(3) and 
(c)(4) and making other modifications to the wording of this 
requirement.
---------------------------------------------------------------------------

    \4\ See 49 CFR 213.121(e), stating that, in the case of CWR, 
each rail shall be bolted with at least two bolts at each joint. 
This is a total of four bolts required at each joint.
---------------------------------------------------------------------------

    FRA noted during Working Group discussions that this section lacked 
an explicit reference to how a rail joint in CWR shall be bolted. As 
this requirement appears in Sec.  213.121(e), FRA decided that it would 
be prudent to also state this requirement in Sec.  213.119 so as to 
include all requirements for CWR in one section. This requirement 
serves as a reminder to track owners that they cannot create their own 
joint bolt requirements in their CWR plans that are less restrictive 
than those specified in the regulation.
    As previously mentioned, the Working Group was not able to reach 
consensus on paragraph (c). However, virtually identical text was 
included and discussed in the generic CWR plan generated by the rail 
carrier representatives, as discussed above. The rail carrier 
representatives were not in favor of including this paragraph, 
contending that its inclusion would constitute ``regulatory creep.'' 
These representatives did not believe it was necessary to incorporate 
the text into the rule if FRA knew that they had already proposed to 
add the text to their individual CWR plans. AAR argued this same point 
in its comment on the NPRM. BMWED, on the other hand, agreed with the 
proposed text. FRA strongly feels that inclusion of the paragraph is 
necessary. With the history of high-profile derailments on CWR due to 
joint bar failure, as discussed in the October 11, 2006 final rule (71 
FR 59677), FRA stresses the importance for CWR track owners to follow 
the installation and maintenance procedures in this paragraph. FRA also 
notes that the maintenance procedures were analyzed and discussed at 
length by the Working Group and found to represent sound industry 
guidance to avoid a derailment on CWR track due to poor joint 
installation or maintenance.
    Paragraph (d). FRA is redesignating previous paragraph (c) as 
paragraph (d). No substantive change to this paragraph's requirements 
is intended.
    Paragraph (e). FRA is redesignating previous paragraph (d) as 
paragraph (e). No substantive change to this paragraph's requirements 
is intended.
    Paragraph (f). FRA is redesignating previous paragraph (e) as 
paragraph (f). FRA is also revising paragraph (f)'s format to more 
clearly identify its requirements and add a new paragraph (f)(2) which 
requires the track owner to have procedures in the CWR plan that govern 
train speed when the difference between the average rail temperature 
and the rail neutral temperature is in a range that causes buckling-
prone conditions to be present at a specific location. ``Rail 
temperature'' is defined as ``the temperature of the rail, measured 
with a rail thermometer,'' and, as discussed in redesignated paragraph 
(l), below, FRA is adding a definition for ``rail neutral temperature'' 
(RNT) as ``the temperature at which the rail is neither in compression 
nor in tension.'' When maintaining the integrity of CWR track, the 
track owner needs to be concerned not only with the actual rail 
temperature, but also with the rail neutral temperature. FRA notes that 
the track owner also has the responsibility to quantify the rail 
neutral temperature of all CWR track.
    There have been a significant number of derailments caused by 
buckled track. Because of this safety concern, FRA is requiring track 
owners to reduce train speed over areas where there is an increased 
possibility of track buckling. By reducing the train speed, FRA 
anticipates that track owners will be able to reduce the probability of 
a catastrophic derailment caused by track buckling.
    Paragraph (g). FRA is redesignating previous paragraph (f) as 
paragraph (g). FRA is also revising the requirements of this paragraph 
by specifying that track owners must have in their CWR plans procedures 
which prescribe when physical track inspections are to be performed to 
detect not only buckling-prone conditions, but also pull-apart prone 
conditions.
    This paragraph previously focused only on when physical track 
inspections were required to identify buckling-prone conditions in CWR 
track. The requirements for these inspections to detect buckling-prone 
conditions have not been changed. In paragraph (g)(1)(i), track owners 
are still be required to have procedures in their CWR plans that 
address inspecting track to identify buckling-prone conditions in CWR, 
which include: (A) Locations where tight or kinky rail conditions are 
likely to occur, and (B) locations where track work of the nature 
described in redesignated paragraph (f)(1) of this section have 
recently been performed. As discussed above, redesignated paragraph 
(f)(1) describes maintenance work, track rehabilitation, track 
construction, or any other event which disturbs the roadbed or ballast 
section and reduces the lateral or longitudinal resistance of the 
track. The track owner also continues to specify when the inspections 
will be conducted as well as the appropriate remedial actions to be 
taken when buckling-prone conditions are found, as provided in 
paragraph (g)(2), discussed further below.
    Pull-apart prone conditions are addressed with the addition of 
paragraph (g)(1)(ii), which requires the track owner to include 
procedures in its CWR plan that prescribe when physical track 
inspections are to be performed to identify pull-apart prone conditions 
in CWR track. The procedures must include locations where pull-apart or 
stripped-joint rail conditions are likely to occur. As provided in 
paragraph (g)(2), the track owner must also specify when the 
inspections will be conducted and the appropriate remedial actions to 
be taken when pull-apart prone conditions are found. Paragraph (g)(2) 
is based on the previous text of paragraph (f)(2), which addressed 
buckling-prone conditions, expanding it to address pull-apart prone 
conditions as well.
    The Working Group discussed that changes in temperature can greatly 
affect the integrity of CWR. Typically, significant increases in rail 
temperature can cause buckling-prone conditions, and significant 
decreases in rail temperature can cause pull-apart prone conditions. 
FRA has chosen not to quantify the specific temperatures that would 
cause a buckling-prone condition or a pull-apart prone condition. The 
Working Group discussed that, given the varied geographical composition 
of each railroad entity, specifying these temperatures would be best 
left to the track engineering program of each track owner. Therefore, 
FRA has declined to specify at what temperatures a physical track 
inspection under paragraph (g)(1) would be required, choosing instead 
to require that the track owner identify the conditions and situations 
when a physical track inspection would need to occur due to a buckling-
prone or pull-apart prone condition.
    Paragraph (h). FRA is redesignating previous paragraph (g) as 
paragraph (h). FRA is not substantively changing the requirements of 
this paragraph. FRA is only making conforming amendments to cross-
references in this paragraph to reflect the redesignation of the 
paragraphs in the section.
    Paragraph (i). FRA is redesignating previous paragraph (h) as 
paragraph (i). FRA is also revising this paragraph by requiring the 
track owner to have in effect a comprehensive training program for the 
application of its written CWR procedures with provisions for annual 
re-training for individuals designated under Sec.  213.7(c) to 
supervise the installation, adjustment, and maintenance of CWR track 
and to perform inspections of CWR track. Additionally, FRA is requiring 
that the track owner make the training program

[[Page 42998]]

available for review by FRA upon request.
    This paragraph previously required that the track owner's training 
program have provisions for ``periodic'' re-training of qualified 
individuals. The Working Group discussed this requirement and advised 
that the term ``periodic'' was undesirably vague. A brief, informal 
survey at one of the Working Group meetings revealed that some rail 
carriers re-trained individuals every year, while others re-trained 
individuals every two or three years. FRA identified that a leading 
cause of carrier non-compliance with Sec.  213.119 is a lack of 
training among individuals qualified to supervise the installation, 
adjustment, and maintenance of CWR track and to perform inspections of 
CWR track. The AR Task Force's study showed that a significant number 
of accidents/incidents could be attributed to the failure to comply 
with the track owner's CWR policy. In order to address this serious 
safety concern, FRA determined that it was necessary to state more 
specifically when qualified individuals must be re-trained.
    Within the Working Group, FRA representatives proposed to revise 
this paragraph by specifying the months or days that should pass 
between the re-training of qualified individuals. Rail carrier 
representatives stated that this would not give them the flexibility to 
train individuals at pre-determined training classes and would add to 
operational costs. In order to address the concerns of the rail carrier 
representatives, FRA agreed that it would be sufficient to require 
annual re-training of individuals. FRA notes that, for purposes of this 
paragraph, ``annual'' means ``calendar year,'' as opposed to a 365-day 
period.
    As FRA is amending Sec.  213.7 to include paragraph (c) that 
explicitly addresses how a track owner designates an individual as 
qualified to supervise the installation, adjustment, and maintenance of 
CWR track and to perform inspections of CWR track, FRA decided that it 
was necessary to include a reference to Sec.  213.7(c) in this revision 
to Sec.  213.119(i).
    In paragraph (i), FRA is also requiring that the track owner make 
the training program available for review by FRA upon request. Due to 
the unique and individual nature of training programs, FRA determined 
that it would not be cost-effective for the agency to examine the 
training program of each track owner in addition to its CWR plan any 
time a change is made to the plan. However, particularly in the event 
of non-compliance with the CWR regulations, FRA believes that it should 
have the option of examining how qualified individuals are trained to 
apply the track owner's written CWR procedures.
    During the Working Group's meetings, Class I railroad 
representatives agreed to voluntarily make an initial submission of 
their CWR training programs to FRA. FRA also agreed that, in its Track 
Safety Standards Compliance Manual, track inspectors will be instructed 
not to request the training program of a specific track owner unless 
under the specific direction of FRA management. Rather, FRA's 
headquarters staff will undertake the responsibility of obtaining and 
disseminating this information, as needed, to both FRA inspectors and 
inspectors from States participating in rail safety enforcement 
activities under 49 CFR part 212.
    Paragraph (j). FRA is redesignating previous paragraph (i) as 
paragraph (j). FRA is not substantively changing the requirements of 
this paragraph, however. FRA is only making a conforming change to the 
cross-reference to another paragraph in this section, due to the 
redesignation of the paragraphs in this section, and to correct the 
cross-reference so that it references ``this section''--not ``this 
part.''
    Paragraph (k). FRA is adding a new paragraph (k) that requires the 
track owner to make readily available, at every job site where 
personnel are assigned to install, inspect or maintain CWR, a copy of 
the track owner's CWR procedures and all revisions, appendices, 
updates, and referenced materials related thereto prior to their 
effective date. Additionally, such CWR procedures are required to be 
issued and maintained in one comprehensive CWR standards and procedures 
manual.
    Since the implementation of the CWR regulations, FRA has noted that 
a number of rail carriers maintain two different sets of CWR 
procedures; rail carriers have been discovered to maintain the set of 
CWR procedures submitted to FRA pursuant to this Sec.  213.119, as well 
as maintain a separate set of CWR procedures to be used by personnel in 
the field. While FRA takes no issue with a rail carrier instructing its 
personnel to maintain more restrictive CWR procedures in the field than 
what is on file with FRA, FRA stresses that rail carriers are required 
to train their personnel on the plan on file with FRA. While FRA 
continues to enforce the CWR plan on file with its Office of Railroad 
Safety, having the procedures required to be at every job site where 
personnel are assigned to install, inspect or maintain CWR will ensure 
that personnel in the field understand which set of procedures FRA will 
hold them responsible for compliance with pursuant to the Federal 
regulations. Although FRA agrees with NTSB's comment that it is 
confusing to have two standards, FRA points out that the Track Safety 
Standards are minimum standards, and that the track owner is free to 
voluntarily follow more restrictive standards as a best practice.
    Paragraph (l). FRA is redesignating former paragraph (j) as 
paragraph (l). This paragraph contains definitions to be used in 
connection with this section. FRA is revising two existing definitions, 
removing a definition, adding five new definitions, and making non-
substantive changes to correct the capitalization of the definitions. 
Specifically, FRA is changing the definition of ``continuous welded 
rail (CWR)'' to mean ``rail that has been welded together into lengths 
exceeding 400 feet. Rail installed as CWR remains CWR, regardless of 
whether a joint or plug is installed into the rail at a later time.'' 
As a consequence of this change, FRA is also changing the definition of 
``CWR joint'' to mean ``any joint directly connected to CWR.'' (``CWR 
joint'' had been defined as ``(a) any joint directly connected to CWR, 
and (b) any joint(s) in a segment of rail between CWR strings that are 
less than 195 feet apart, except joints located on jointed sections on 
bridges.'')
    The Working Group discussed that the current definition of CWR, 
which does not include a reference to a joint or plug, does not fully 
address the reality of CWR in the industry. When the previous 
definition of CWR was read with the previous definition of CWR joint, 
one could wrongly conclude that, by adding a joint or plug into a 
section of CWR track, the track would no longer be defined as CWR 
track. Indeed, it was agreed upon by the members of the Working Group 
that CWR track generally maintains its CWR properties whether or not a 
joint or plug is added to the track at a later date. Therefore, the 
Working Group recommended that the definition be revised to specify 
that rail installed as CWR remains as CWR, regardless of whether a 
joint or plug is installed into the rail at a later date.
    Due to the decision to revise the definition of CWR, the Working 
Group determined that the definition of CWR joint should also be 
revised. As the new definition of CWR would explain that CWR track 
remains as CWR, regardless of whether a joint or plug is installed into 
the rail at a later date, the definition of CWR joint would no longer 
need to specify that a CWR joint is a joint in a segment of rail 
between CWR strings that are less than 195 feet apart. Since

[[Page 42999]]

rail installed as CWR remains as CWR with the new definition, FRA is 
revising the definition of CWR joint to simply be ``any joint connected 
to CWR.''
    FRA is removing the definition ``action items,'' because the term 
is not expressly used in this section. Previously, ``actions items'' 
were defined as ``the rail joint conditions that track owners identify 
in their CWR plans pursuant to paragraph (g)(3) which require the 
application of a corrective correction.'' Paragraph (g)(3) itself 
provides that, in formulating procedures which prescribe the scheduling 
and conduct of inspections to detect cracks and other indications of 
potential failures in CWR joints, the track owner specify the 
conditions of actual or potential joint failure for which personnel 
must inspect. Current paragraph (g)(3) further provides that these 
conditions include, at a minimum, the following items: (i) Loose, bent, 
or missing joint bolts; (ii) rail end batter or mismatch that 
contributes to instability of the joint; and (iii) evidence of 
excessive longitudinal rail movement in or near the joint, including, 
but not limited to, wide rail gap, defective joint bolts, disturbed 
ballast, surface deviations, gap between tie plates and rail, or 
displaced rail anchors. The term ``action items'' is not used in this 
paragraph, however. FRA is redesignating paragraph (g)(3) as paragraph 
(h)(3), for formatting purposes only due to the addition of new 
paragraphs in this section. FRA does not intend to make any change to 
the substance of this paragraph, and removing the definition of 
``action items'' is not intended to have any effect on what items are 
considered defects under the provisions of the rule.
    At the same time, FRA is adding the new definition of ``rail 
neutral temperature'' to mean ``the temperature at which the rail is 
neither in compression nor tension.'' This definition is necessary 
because FRA is adding new paragraph (f)(2), which utilizes the term 
``rail neutral temperature.'' In paragraph (f)(2), FRA requires track 
owners to have procedures that govern train speed when the difference 
between the average rail temperature and the rail neutral temperature 
is in a range that causes buckling-prone conditions to be present at a 
specific location. When maintaining the integrity of CWR track, the 
track owner has to be concerned with not only the actual rail 
temperature of the rail, but the rail neutral temperature as well. FRA 
decided that it was necessary to include in the regulation a definition 
of rail neutral temperature to clarify what temperature the track owner 
should be concerned with when preventing rail buckling. While FRA has 
provided a definition of ``rail neutral temperature,'' it is the 
responsibility of the track owner to quantify the rail neutral 
temperature at specific locations.
    FRA has also chosen to add a definition for ``annual re-training.'' 
In paragraph (i) of Sec.  213.119, FRA requires that the track owner 
shall have in effect a comprehensive training program for the 
application of these written CWR procedures, with provisions for annual 
re-training, for those individuals designated under Sec.  213.7(c) as 
qualified to supervise the installation, adjustment, and maintenance of 
CWR track and to perform inspections of CWR track. FRA notes that, for 
purposes of this paragraph, ``annual'' means ``calendar year,'' as 
opposed to a 365-day period.
    Finally, FRA has also chosen to add a couple of definitions to 
clarify terms that are used throughout Sec.  213.119. Specifically, FRA 
has added a definition for a ``buckling- prone condition,'' a ``pull-
apart or stripped joint,'' and a ``pull-apart prone condition.'' A 
``buckling-prone condition,'' is when the actual rail temperature is 
above the actual rail neutral temperature, which will vary, given the 
geographical composition of the track. A ``pull-apart or stripped 
joint'' are interchangeable terms used to describe a condition where no 
bolts are mounted through the holes of a joint bar on the rail end, 
rendering the joint bar ineffective due to excessive expansive or 
contractive forces. A ``pull-apart prone condition'' is when the actual 
rail temperature is below the rail neutral temperature at or near a 
joint where longitudinal tensile forces may affect the fastenings at 
the joint.

Appendix B to Part 213--Schedule of Civil Penalties

    Appendix B to part 213 contains a schedule of civil penalties for 
use in connection with this part. FRA is revising the schedule of civil 
penalties in issuing the final rule to reflect the addition of Sec.  
213.118 and revisions made to Sec.  213.119.

VII. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures. See 44 FR 11034; 
February 26, 1979. As part of the regulatory impact analysis, FRA has 
assessed quantitatively the costs and benefits expected from the 
implementation of this final rule. FRA has determined that none of the 
provisions would have a major impact. If FRA's main assumptions are 
correct, the sum of the net benefit of all provisions would be $390,000 
per year. The cost per year is estimated at $300,000 for the first 
year, and $150,000 per year for subsequent years. The total net benefit 
would then be $90,000 for the first year and $240,000 per year for 
subsequent years. The analysis has a range of assumptions to check 
sensitivity. Under the least favorable assumptions the rule would 
develop net societal costs, but those are apparently extreme 
assumptions. Under the most favorable assumptions the net benefits 
would be up to $1,140,000 per year. In no event would the net benefits 
or costs constitute more than a very small portion of the total 
railroad expenditures on CWR rail maintenance.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (the Act) (5 U.S.C. 601 et 
seq.) requires a review of proposed and final rules to assess their 
impact on small entities. The U.S. Small Business Administration (SBA) 
stipulates in its ``Size Standards'' that the largest a railroad 
business firm that is ``for-profit'' may be, and still be classified as 
a ``small entity,'' is 1,500 employees for ``Line-Haul Operating 
Railroads,'' and 500 employees for ``Switching and Terminal 
Establishments.'' ``Small entity'' is defined in the Act as a small 
business that is independently owned and operated, and is not dominant 
in its field of operation. SBA's ``Size Standards'' may be altered by 
Federal agencies after consultation with SBA and in conjunction with 
public comment. Pursuant to that authority, FRA has published a final 
policy that formally establishes ``small entities'' as railroads which 
meet the line haulage revenue requirements of a Class III railroad. The 
revenue requirements are currently $20 million or less in annual 
operating revenue. The $20 million limit (which is adjusted by applying 
the railroad revenue deflator adjustment) is based on the Surface 
Transportation Board's (STB) threshold for a Class III railroad 
carrier. FRA uses the same revenue dollar limit to determine whether a 
railroad or shipper or contractor is a small entity.
    Approximately 200 small railroads have CWR and may be affected by 
this final rule. Relatively few Class III railroads have CWR. For the 
minority of Class III railroads that have CWR, the portion of each such 
railroad made up

[[Page 43000]]

of CWR is more likely to be small. To the extent these railroads have 
CWR, Class III railroads are subject to most of the provisions in this 
final rule. Small railroads were consulted during the RSAC Working 
Group deliberations and their interests have been taken into 
consideration in this final rule. FRA believes that there will be no 
significant impact on a substantial number of small entities.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 19995, 44 U.S.C. 3501 et 
seq. The sections that contain the new information collection 
requirements and the estimated time to fulfill each requirement are as 
follows:

----------------------------------------------------------------------------------------------------------------
                                       Respondent         Total annual      Average time per      Total annual
           CFR Section                  universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
213.4--Excepted track
    --Designation of track as      200 railroads.....  20 orders.........  15 minutes........  5 hours.
     excepted.
    --Notification to FRA about    200 railroads.....  15 notification...  10 minutes........  3 hours.
     removal of excepted track.
213.5--Responsibility of track     728 railroads.....  10 notification...  8 hours...........  80 hours.
 owners.
213.7--Designation of qualified
 persons to supervise certain
 renewals and inspect track
    --Designations...............  728 railroads.....  1,500 names.......  10 minutes........  250 hours.
    --Employees trained in CWR     31 railroads......  80,000 tr. empl...  90 minutes........  120,000 hours.
     procedures (New).
    --Written authorizations and   31 railroads......  80,000 auth. +      10 min. + 60 min..  93,333 hours.
     recorded exams (New).                              80,000 exams.
    --Designations (partially      31 railroads......  250 names.........  10 minutes........  42 hours.
     qualified) under paragraph
     (c) of this section.
213.17--Waivers..................  728 railroads.....  6 petitions.......  24 hours..........  144 hours.
213.57--Curves, elevation and
 speed limitations
    --Request to FRA for approval  728 railroads.....  2 requests........  40 hours..........  80 hours.
    --Notification to FRA with     728 railroads.....  2 notifications...  45 minutes........  2 hours.
     written consent of other
     affected track owners.
    --Test plans for higher        1 railroad........  2 test plans......  16 hours..........  32 hours.
     curving speeds.
     213.110--Gage restraint
    measurement systems (GRMS)
    --Implementing GRMS--notices   728 railroads.....  5 notifications +   45 min./4 hours...  8 hours.
     & reports.                                         1 tech rpt.
    --GRMS vehicle output reports  728 railroads.....  50 reports........  5 minutes.........  4 hours.
    --GRMS vehicle exception       728 railroads.....  50 reports........  5 minutes.........  4 hours.
     reports.
    --GRMS/PTLF--procedures for    728 railroads.....  4 proc. docs......  2 hours...........  8 hours.
     data integrity.
    --GRMS training programs/      728 railroads.....  2 prog. + 5         16 hours..........  112 hours.
     sessions.                                          sessions.
    --GRMS inspection records....  728 railroads.....  50 records........  2 hours...........  100 hours.
213.118 Continuous welded rail
 (CWR); plan review and approval
    --Plans w/written procedures   728 railroads.....  728 plans.........  4 hours...........  2,912 hours.
     for CWR (Amended).
    --Notification to FRA and RR   728 RRs/80,000      728 + 80,000        15 min.; 2 min....  2,849 hours.
     employees of CWR plan          employees.          notifications.
     effective date (New).
    --Written submissions after    728 railroads.....  20 submissions....  2 hours...........  40 hours.
     plan disapproval (New).
    --Final FRA disapproval and    728 railroads.....  20 am. plans......  1 hour............  20 hours.
     plan amendment (New).
213.119--Continuous welded rail
 (CWR); plan contents
    --Fracture Report for each     239 RRs/ASLRRA....  12,000 reports....  10 minutes........  2,000 hours.
     broken CWR joint bar.
    --Petition for technical       1 RR association..  1 petition........  15 minutes........  .25 hour.
     conference on Fracture
     Reports.
    --Training programs re CWR     239 RRs/ASLRRA....  240 am. tr.         1 hour............  240 hours.
     procedures. (Amended).                             programs.
    --Annual CWR training of       31 railroads......  80,000 tr. empl...  30 minutes........  40,000 hours.
     employees (New).
    --Record keeping.............  239 railroads.....  2,000 records.....  10 minutes........  333 hours.
    --Record keeping for CWR rail  239 railroads.....  360,000 rcds......  2 minutes.........  12,000 hours.
     joints.
    --Periodic records for CWR     239 railroads.....  480,000 rcds......  1 minute..........  8,000 hours.
     rail joints.
    --Copy of track owner's CWR    728 railroads.....  239 manuals.......  10 minutes........  40 hours.
     procedures (New).
213.233--Track inspections--       728 railroads.....  12,500 notations..  1 minute..........  208 hours.
 Notations.
213.241--Inspection records......  728 railroads.....  1,542,089 rcds....  Varies............  1,672,941 hours.
213.303--Responsibility for        2 railroads.......  1 notification....  8 hours...........  8 hours.
 compliance.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be 
sent via e-mail to the Office of Management and Budget at the following 
address: oira_submissions@omb.eop.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection

[[Page 43001]]

requirements resulting from this rulemaking action prior to the 
effective date of this final rule. The OMB control number, when 
assigned, will be announced by separate notice in the Federal Register.

D. Environmental Impact

    FRA has evaluated this 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 action 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)(20) of FRA's Procedures. 
64 FR 28547, May 26, 1999. In accordance with section 4(c) and (e) of 
FRA's Procedures, the agency has further concluded that no 
extraordinary circumstances exist with respect to this final rule that 
might trigger the need for a more detailed environmental review. As a 
result, FRA finds that this final rule is not a major Federal action 
significantly affecting the quality of the human environment.

E. Federalism Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132, ``Federalism'' (64 FR 
43255, Aug. 10, 1999).
    As discussed earlier in the preamble, this final rule creates 
requirements for the qualification of persons designated to inspect CWR 
track, or supervise the installation, adjustment, or maintenance of CWR 
track. This final rule also clarifies the procedures associated with 
the submission of CWR plans to FRA by track owners and specifies that 
these plans should add focus on inspecting CWR for pull-apart prone 
conditions, and on CWR joint installation and maintenance procedures. 
This final rule also makes other changes to the requirements governing 
CWR.
    Executive Order 13132 requires FRA to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications''. ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects 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.'' Under Executive Order 13132, the agency may not issue 
a regulation with federalism implications that imposes substantial 
direct compliance costs and that is not required by statute, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, the agency 
consults with State and local governments, or the agency consults with 
State and local government officials early in the process of developing 
the regulation. Where a regulation has federalism implications and 
preempts State law, the agency seeks to consult with State and local 
officials in the process of developing the regulation.
    FRA has determined that this final rule would not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, nor on the distribution of power and 
responsibilities among the various levels of government. In addition, 
FRA has determined that this final rule would not impose any direct 
compliance costs on State and local governments. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    However, this final rule has preemptive effect. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the local safety or security exception to Section 
20106. The intent of Section 20106 is to promote national uniformity in 
railroad safety and security standards. 49 U.S.C. 20106(a)(1). Thus, 
subject to a limited exception for essential local safety or security 
hazards, this final rule establishes a uniform Federal safety standard 
that must be met, and State requirements covering the same subject 
matter would be displaced, whether those State requirements are in the 
form of a State law, including common law, regulation, or order.
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this final rule has no 
federalism implications, other than the preemption of State laws 
covering the subject matter of this final rule, which occurs by 
operation of law under Section 20106 whenever FRA issues a rule or 
order. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this final rule is not required.

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 the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) [currently $141,300,000] 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. This final rule will not result in 
the expenditure, in the aggregate, of $141,300,000 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''. See 
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency 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 
this final rule in accordance with Executive Order 13211. FRA has 
determined that this final rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of

[[Page 43002]]

energy. Consequently, FRA has determined that this final rule is not a 
``significant energy action'' within the meaning of the Executive 
Order.

H. Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc). You may review DOT's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may visit 
http://DocketsInfo.dot.gov.

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Rule

0
For the reasons discussed in the preamble, FRA amends part 213 of 
chapter II, subtitle B of title 49 of the Code of Federal Regulations 
as follows:

PART 213--[AMENDED]

0
1. The authority citation for part 213 continues to read as follows:

    Authority: 49 U.S.C. 20102-20114 and 20142; 28 U.S.C. 2461, 
note; and 49 CFR 1.49(m).


0
2. Section 213.7 is amended by redesignating paragraphs (c) and (d) as 
paragraphs (d) and (e), respectively; adding new paragraph (c); and 
revising newly redesignated paragraphs (d) and (e) to read as follows:


Sec.  213.7   Designation of qualified persons to supervise certain 
renewals and inspect track.

* * * * *
    (c) Individuals designated under paragraphs (a) or (b) of this 
section that inspect continuous welded rail (CWR) track or supervise 
the installation, adjustment, and maintenance of CWR track in 
accordance with the written procedures of the track owner shall have:
    (1) Current qualifications under either paragraph (a) or (b) of 
this section;
    (2) Successfully completed a comprehensive training course 
specifically developed for the application of written CWR procedures 
issued by the track owner;
    (3) Demonstrated to the track owner that the individual:
    (i) Knows and understands the requirements of those written CWR 
procedures;
    (ii) Can detect deviations from those requirements; and
    (iii) Can prescribe appropriate remedial action to correct or 
safely compensate for those deviations; and
    (4) Written authorization from the track owner to prescribe 
remedial actions to correct or safely compensate for deviations from 
the requirements in those procedures and successfully completed a 
recorded examination on those procedures as part of the qualification 
process.
    (d) Persons not fully qualified to supervise certain renewals and 
inspect track as required in paragraphs (a) through (c) of this 
section, but with at least one year of maintenance-of-way or signal 
experience, may pass trains over broken rails and pull aparts provided 
that--
    (1) The track owner determines the person to be qualified and, as 
part of doing so, trains, examines, and re-examines the person 
periodically within two years after each prior examination on the 
following topics as they relate to the safe passage of trains over 
broken rails or pull aparts: rail defect identification, crosstie 
condition, track surface and alinement, gage restraint, rail end 
mismatch, joint bars, and maximum distance between rail ends over which 
trains may be allowed to pass. The sole purpose of the examination is 
to ascertain the person's ability to effectively apply these 
requirements and the examination may not be used to disqualify the 
person from other duties. A minimum of four hours training is required 
for initial training;
    (2) The person deems it safe and train speeds are limited to a 
maximum of 10 m.p.h. over the broken rail or pull apart;
    (3) The person shall watch all movements over the broken rail or 
pull apart and be prepared to stop the train if necessary; and
    (4) Person(s) fully qualified under Sec.  213.7 are notified and 
dispatched to the location promptly for the purpose of authorizing 
movements and effecting temporary or permanent repairs.
    (e) With respect to designations under paragraphs (a) through (d) 
of this section, each track owner shall maintain written records of--
    (1) Each designation in effect;
    (2) The basis for each designation; and
    (3) Track inspections made by each designated qualified person as 
required by Sec.  213.241. These records shall be kept available for 
inspection or copying by the Federal Railroad Administration during 
regular business hours.

0
3. Section 213.118 is added to read as follows:


Sec.  213.118   Continuous welded rail (CWR); plan review and approval.

    (a) Each track owner with track constructed of CWR shall have in 
effect and comply with a plan that contains written procedures which 
address: the installation, adjustment, maintenance, and inspection of 
CWR; inspection of CWR joints; and a training program for the 
application of those procedures.
    (b) The track owner shall file its CWR plan with the FRA Associate 
Administrator for Railroad Safety/Chief Safety Officer (Associate 
Administrator). Within 30 days of receipt of the submission, FRA will 
review the plan for compliance with this subpart. FRA will approve, 
disapprove or conditionally approve the submitted plan, and will 
provide written notice of its determination.
    (c) The track owner's existing plan shall remain in effect until 
the track owner's new plan is approved or conditionally approved and is 
effective pursuant to paragraph (d) of this section.
    (d) The track owner shall, upon receipt of FRA's approval or 
conditional approval, establish the plan's effective date. The track 
owner shall advise in writing FRA and all affected employees of the 
effective date.
    (e) FRA, for cause stated, may, subsequent to plan approval or 
conditional approval, require revisions to the plan to bring the plan 
into conformity with this subpart. Notice of a revision requirement 
shall be made in writing and specify the basis of FRA's requirement. 
The track owner may, within 30 days of the revision requirement, 
respond and provide written submissions in support of the original 
plan. FRA renders a final decision in writing. Not more than 30 days 
following any final decision requiring revisions to a CWR plan, the 
track owner shall amend the plan in accordance with FRA's decision and 
resubmit the conforming plan. The conforming plan becomes effective 
upon its submission to FRA.

0
4. Section 213.119 is revised to read as follows:


Sec.  213.119   Continuous welded rail (CWR); plan contents.

    The track owner shall comply with the contents of the CWR plan 
approved or conditionally approved under Sec.  213.118. The plan shall 
contain the following elements--
    (a) Procedures for the installation and adjustment of CWR which 
include--
    (1) Designation of a desired rail installation temperature range 
for the geographic area in which the CWR is located; and

[[Page 43003]]

    (2) De-stressing procedures/methods which address proper attainment 
of the desired rail installation temperature range when adjusting CWR.
    (b) Rail anchoring or fastening requirements that will provide 
sufficient restraint to limit longitudinal rail and crosstie movement 
to the extent practical, and specifically addressing CWR rail anchoring 
or fastening patterns on bridges, bridge approaches, and at other 
locations where possible longitudinal rail and crosstie movement 
associated with normally expected train-induced forces, is restricted.
    (c) CWR joint installation and maintenance procedures which require 
that--
    (1) Each rail shall be bolted with at least two bolts at each CWR 
joint;
    (2) In the case of a bolted joint installed during CWR installation 
after August 25, 2009, the track owner shall either, within 60 days--
    (i) Weld the joint;
    (ii) Install a joint with six bolts; or
    (iii) Anchor every tie 195 feet in both directions from the joint; 
and
    (3) In the case of a bolted joint in CWR experiencing service 
failure or a failed bar with a rail gap present, the track owner shall 
either--
    (i) Weld the joint;
    (ii) Replace the broken bar(s), replace the broken bolts, adjust 
the anchors and, within 30 days, weld the joint;
    (iii) Replace the broken bar(s), replace the broken bolts, install 
one additional bolt per rail end, and adjust anchors;
    (iv) Replace the broken bar(s), replace the broken bolts, and 
anchor every tie 195 feet in both directions from the CWR joint; or
    (v) Replace the broken bar(s), replace the broken bolts, add rail 
with provisions for later adjustment pursuant to paragraph (d)(2) of 
this section, and reapply the anchors.
    (d) Procedures which specifically address maintaining a desired 
rail installation temperature range when cutting CWR, including rail 
repairs, in-track welding, and in conjunction with adjustments made in 
the area of tight track, a track buckle, or a pull-apart. Rail repair 
practices shall take into consideration existing rail temperature so 
that--
    (1) When rail is removed, the length installed shall be determined 
by taking into consideration the existing rail temperature and the 
desired rail installation temperature range; and
    (2) Under no circumstances should rail be added when the rail 
temperature is below that designated by paragraph (a)(1) of this 
section, without provisions for later adjustment.
    (e) Procedures which address the monitoring of CWR in curved track 
for inward shifts of alinement toward the center of the curve as a 
result of disturbed track.
    (f) Procedures which govern train speed on CWR track when--
    (1) Maintenance work, track rehabilitation, track construction, or 
any other event occurs which disturbs the roadbed or ballast section 
and reduces the lateral or longitudinal resistance of the track; and
    (2) The difference between the average rail temperature and the 
average rail neutral temperature is in a range that causes buckling-
prone conditions to be present at a specific location; and
    (3) In formulating the procedures under paragraphs (f)(1) and 
(f)(2) of this section, the track owner shall--
    (i) Determine the speed required, and the duration and subsequent 
removal of any speed restriction based on the restoration of the 
ballast, along with sufficient ballast re-consolidation to stabilize 
the track to a level that can accommodate expected train-induced 
forces. Ballast re-consolidation can be achieved through either the 
passage of train tonnage or mechanical stabilization procedures, or 
both; and
    (ii) Take into consideration the type of crossties used.
    (g) Procedures which prescribe when physical track inspections are 
to be performed.
    (1) At a minimum, these procedures shall address inspecting track 
to identify--
    (i) Buckling-prone conditions in CWR track, including--
    (A) Locations where tight or kinky rail conditions are likely to 
occur; and
    (B) Locations where track work of the nature described in paragraph 
(f)(1)(i) of this section has recently been performed; and
    (ii) Pull-apart prone conditions in CWR track, including locations 
where pull-apart or stripped-joint rail conditions are likely to occur; 
and
    (2) In formulating the procedures under paragraph (g)(1) of this 
section, the track owner shall--
    (i) Specify when the inspections will be conducted; and
    (ii) Specify the appropriate remedial actions to be taken when 
either buckling-prone or pull-apart prone conditions are found.
    (h) Procedures which prescribe the scheduling and conduct of 
inspections to detect cracks and other indications of potential 
failures in CWR joints. In formulating the procedures under this 
paragraph, the track owner shall--
    (1) Address the inspection of joints and the track structure at 
joints, including, at a minimum, periodic on-foot inspections;
    (2) Identify joint bars with visible or otherwise detectable cracks 
and conduct remedial action pursuant to Sec.  213.121;
    (3) Specify the conditions of actual or potential joint failure for 
which personnel must inspect, including, at a minimum, the following 
items:
    (i) Loose, bent, or missing joint bolts;
    (ii) Rail end batter or mismatch that contributes to instability of 
the joint; and
    (iii) Evidence of excessive longitudinal rail movement in or near 
the joint, including, but not limited to; wide rail gap, defective 
joint bolts, disturbed ballast, surface deviations, gap between tie 
plates and rail, or displaced rail anchors;
    (4) Specify the procedures for the inspection of CWR joints that 
are imbedded in highway-rail crossings or in other structures that 
prevent a complete inspection of the joint, including procedures for 
the removal from the joint of loose material or other temporary 
material;
    (5) Specify the appropriate corrective actions to be taken when 
personnel find conditions of actual or potential joint failure, 
including on-foot follow-up inspections to monitor conditions of 
potential joint failure in any period prior to completion of repairs;
    (6) Specify the timing of periodic inspections, which shall be 
based on the configuration and condition of the joint:
    (i) Except as provided in paragraphs (h)(6)(ii) through (h)(6)(iv) 
of this section, track owners must specify that all CWR joints are 
inspected, at a minimum, in accordance with the intervals identified in 
the following table:

[[Page 43004]]



                               Minimum Number of Inspections per Calendar Year \1\
----------------------------------------------------------------------------------------------------------------
                                    Freight trains operating over track with an     Passenger trains operating
                                                annual tonnage of:                   over track with an annual
                                 ------------------------------------------------           tonnage of:
                                                                                 -------------------------------
                                   Less than 40                    Greater than                    Greater than
                                        mgt        40 to 60 mgt       60 mgt       Less than 20   or equal to 20
                                                                                        mgt             mgt
----------------------------------------------------------------------------------------------------------------
Class 5 & above.................               2           3 \2\           4 \2\           3 \2\            3\2\
Class 4.........................               2           3 \2\           4 \2\               2           3 \2\
Class 3.........................               1               2               2               2               2
Class 2.........................               0               0               0               1               1
Class 1.........................               0               0               0               0               0
Excepted Track..................               0               0               0             n/a             n/a
----------------------------------------------------------------------------------------------------------------
4 = Four times per calendar year, with one inspection in each of the following periods: January to March, April
 to June, July to September, and October to December; and with consecutive inspections separated by at least 60
 calendar days..................................................................................................
3 = Three times per calendar year, with one inspection in each of the following periods: January to April, May
 to August, and September to December; and with consecutive inspections separated by at least 90 calendar days..
2 = Twice per calendar year, with one inspection in each of the following periods: January to June and July to
 December; and with consecutive inspections separated by at least 120 calendar days.............................
1 = Once per calendar year, with consecutive inspections separated by at least 180 calendar days................
----------------------------------------------------------------------------------------------------------------
\1\ Where a track owner operates both freight and passenger trains over a given segment of track, and there are
  two different possible inspection interval requirements, the more frequent inspection interval applies.
\2\ When extreme weather conditions prevent a track owner from conducting an inspection of a particular
  territory within the required interval, the track owner may extend the interval by up to 30 calendar days from
  the last day that the extreme weather condition prevented the required inspection.

     (ii) Consistent with any limitations applied by the track owner, a 
passenger train conducting an unscheduled detour operation may proceed 
over track not normally used for passenger operations at a speed not to 
exceed the maximum authorized speed otherwise allowed, even though CWR 
joints have not been inspected in accordance with the frequency 
identified in paragraph (h)(6)(i) of this section, provided that:
    (A) All CWR joints have been inspected consistent with requirements 
for freight service; and
    (B) The unscheduled detour operation lasts no more than 14 
consecutive calendar days. In order to continue operations beyond the 
14-day period, the track owner must inspect the CWR joints in 
accordance with the requirements of paragraph (h)(6)(i) of this 
section.
    (iii) Tourist, scenic, historic, or excursion operations, if 
limited to the maximum authorized speed for passenger trains over the 
next lower class of track, need not be considered in determining the 
frequency of inspections under paragraph (h)(6)(i) of this section.
    (iv) All CWR joints that are located in switches, turnouts, track 
crossings, lift rail assemblies or other transition devices on moveable 
bridges must be inspected on foot at least monthly, consistent with the 
requirements in Sec.  213.235; and all records of those inspections 
must be kept in accordance with the requirements in Sec.  213.241. A 
track owner may include in its Sec.  213.235 inspections, in lieu of 
the joint inspections required by paragraph (h)(6)(i) of this section, 
CWR joints that are located in track structure that is adjacent to 
switches and turnouts, provided that the track owner precisely defines 
the parameters of that arrangement in the CWR plans.
    (7) Specify the recordkeeping requirements related to joint bars in 
CWR, including the following:
    (i) The track owner shall keep a record of each periodic and 
follow-up inspection required to be performed by the track owner's CWR 
plan, except for those inspections conducted pursuant to Sec.  213.235 
for which track owners must maintain records pursuant to Sec.  213.241. 
The record shall be prepared on the day the inspection is made and 
signed by the person making the inspection. The record shall include, 
at a minimum, the following items: the boundaries of the territory 
inspected; the nature and location of any deviations at the joint from 
the requirements of this part or of the track owner's CWR plan, with 
the location identified with sufficient precision that personnel could 
return to the joint and identify it without ambiguity; the date of the 
inspection; the remedial action, corrective action, or both, that has 
been taken or will be taken; and the name or identification number of 
the person who made the inspection.
    (ii) The track owner shall generate a Fracture Report for every 
cracked or broken CWR joint bar that the track owner discovers during 
the course of an inspection conducted pursuant to Sec. Sec.  
213.119(g), 213.233, or 213.235 on track that is required under Sec.  
213.119(h)(6)(i) to be inspected.
    (A) The Fracture Report shall be prepared on the day the cracked or 
broken joint bar is discovered. The Report shall include, at a minimum: 
the railroad name; the location of the joint bar as identified by 
milepost and subdivision; the class of track; annual million gross tons 
for the previous calendar year; the date of discovery of the crack or 
break; the rail section; the type of bar (standard, insulated, or 
compromise); the number of holes in the joint bar; a general 
description of the location of the crack or break in bar; the visible 
length of the crack in inches; the gap measurement between rail ends; 
the amount and length of rail end batter or ramp on each rail end; the 
amount of tread mismatch; the vertical movement of joint; and in curves 
or spirals, the amount of gage mismatch and the lateral movement of the 
joint.
    (B) The track owner shall submit the information contained in the 
Fracture Reports to the FRA Associate Administrator twice annually, by 
July 31 for the preceding six-month period from January 1 through June 
30 and by January 31 for the preceding six-month period from July 1 
through December 31.
    (C) After February 1, 2010, any track owner may petition FRA to 
conduct a technical conference to review the Fracture Report data 
submitted through December of 2009 and assess whether there is a 
continued need for the collection of Fracture Report data. The track 
owner shall submit a written

[[Page 43005]]

request to the Associate Administrator, requesting the technical 
conference and explaining the reasons for proposing to discontinue the 
collection of the data.
    (8) In lieu of the requirements for the inspection of rail joints 
contained in paragraphs (h)(1) through (h)(7) of this section, a track 
owner may seek approval from FRA to use alternate procedures.
    (i) The track owner shall submit the proposed alternate procedures 
and a supporting statement of justification to the Associate 
Administrator.
    (ii) If the Associate Administrator finds that the proposed 
alternate procedures provide an equivalent or higher level of safety 
than the requirements in paragraphs (h)(1) through (h)(7) of this 
section, the Associate Administrator will approve the alternate 
procedures by notifying the track owner in writing. The Associate 
Administrator will specify in the written notification the date on 
which the procedures will become effective, and after that date, the 
track owner shall comply with the procedures. If the Associate 
Administrator determines that the alternate procedures do not provide 
an equivalent level of safety, the Associate Administrator will 
disapprove the alternate procedures in writing, and the track owner 
shall continue to comply with the requirements in paragraphs (h)(1) 
through (h)(7) of this section.
    (iii) While a determination is pending with the Associate 
Administrator on a request submitted pursuant to paragraph (h)(8) of 
this section, the track owner shall continue to comply with the 
requirements contained in paragraphs (h)(1) through (h)(7) of this 
section.
    (i) The track owner shall have in effect a comprehensive training 
program for the application of these written CWR procedures, with 
provisions for annual re-training, for those individuals designated 
under Sec.  213.7(c) as qualified to supervise the installation, 
adjustment, and maintenance of CWR track and to perform inspections of 
CWR track. The track owner shall make the training program available 
for review by FRA upon request.
    (j) The track owner shall prescribe and comply with recordkeeping 
requirements necessary to provide an adequate history of track 
constructed with CWR. At a minimum, these records must include:
    (1) Rail temperature, location, and date of CWR installations. Each 
record shall be retained for at least one year;
    (2) A record of any CWR installation or maintenance work that does 
not conform to the written procedures. Such record shall include the 
location of the rail and be maintained until the CWR is brought into 
conformance with such procedures; and
    (3) Information on inspection of rail joints as specified in 
paragraph (h)(7) of this section.
    (k) The track owner shall make readily available, at every job site 
where personnel are assigned to install, inspect or maintain CWR, a 
copy of the track owner's CWR procedures and all revisions, appendices, 
updates, and referenced materials related thereto prior to their 
effective date. Such CWR procedures shall be issued and maintained in 
one CWR standards and procedures manual.
    (l) As used in this section--
    Adjusting/de-stressing means the procedure by which a rail's 
temperature is re-adjusted to the desired value. It typically consists 
of cutting the rail and removing rail anchoring devices, which provides 
for the necessary expansion and contraction, and then re-assembling the 
track.
    Annual re-training means training every calendar year.
    Buckling incident means the formation of a lateral misalignment 
sufficient in magnitude to constitute a deviation from the Class 1 
requirements specified in Sec.  213.55. These normally occur when rail 
temperatures are relatively high and are caused by high longitudinal 
compressive forces.
    Buckling-prone condition means a condition when the actual rail 
temperature is above the actual rail neutral temperature. This varies 
given the geographical composition of the track.
    Continuous welded rail (CWR) means rail that has been welded 
together into lengths exceeding 400 feet. Rail installed as CWR remains 
CWR, regardless of whether a joint or plug is installed into the rail 
at a later time.
    Corrective actions mean those actions which track owners specify in 
their CWR plans to address conditions of actual or potential joint 
failure, including, as applicable, repair, restrictions on operations, 
and additional on-foot inspections.
    CWR joint means any joint directly connected to CWR.
    Desired rail installation temperature range means the rail 
temperature range, within a specific geographical area, at which forces 
in CWR should not cause a buckling incident in extreme heat, or a pull 
apart during extreme cold weather.
    Disturbed track means the disturbance of the roadbed or ballast 
section, as a result of track maintenance or any other event, which 
reduces the lateral or longitudinal resistance of the track, or both.
    Mechanical stabilization means a type of procedure used to restore 
track resistance to disturbed track following certain maintenance 
operations. This procedure may incorporate dynamic track stabilizers or 
ballast consolidators, which are units of work equipment that are used 
as a substitute for the stabilization action provided by the passage of 
tonnage trains.
    Pull apart or stripped joint means a condition when no bolts are 
mounted through a joint on the rail end, rending the joint bar 
ineffective due to excessive expansive or contractive forces.
    Pull-apart prone condition means a condition when the actual rail 
temperature is below the rail neutral temperature at or near a joint 
where longitudinal tensile forces may affect the fastenings at the 
joint.
    Rail anchors mean those devices which are attached to the rail and 
bear against the side of the crosstie to control longitudinal rail 
movement. Certain types of rail fasteners also act as rail anchors and 
control longitudinal rail movement by exerting a downward clamping 
force on the upper surface of the rail base.
    Rail neutral temperature is the temperature at which the rail is 
neither in compression nor tension.
    Rail temperature means the temperature of the rail, measured with a 
rail thermometer.
    Remedial actions mean those actions which track owners are required 
to take as a result of requirements of this part to address a non-
compliant condition.
    Tight/kinky rail means CWR which exhibits minute alinement 
irregularities which indicate that the rail is in a considerable amount 
of compression.
    Tourist, scenic, historic, or excursion operations mean railroad 
operations that carry passengers with the conveyance of the passengers 
to a particular destination not being the principal purpose.
    Track lateral resistance means the resistance provided by the rail/
crosstie structure against lateral displacement.
    Track longitudinal resistance means the resistance provided by the 
rail anchors/rail fasteners and the ballast section to the rail/
crosstie structure against longitudinal displacement.
    Train-induced forces means the vertical, longitudinal, and lateral 
dynamic forces which are generated during train movement and which can 
contribute to the buckling potential of the rail.
    Unscheduled detour operation means a short-term, unscheduled 
operation where a track owner has no more than

[[Page 43006]]

14 calendar days' notice that the operation is going to occur.

0
5. Appendix B to part 213 is amended by adding an entry for Sec.  
213.118 and revising the entry for Sec.  213.119 to read as follows:

Appendix B to Part 213--Schedule of Civil Penalties

------------------------------------------------------------------------
                                                              Willful
       Section                               Violation     violation \1\
------------------------------------------------------------------------

                              * * * * * * *
213.118.............  Continuous welded            5,000           7,500
                       rail plan (a)
                       through (e).
213.119.............  Continuous welded            5,000           7,500
                       rail plan
                       contents (a)
                       through (k).

                              * * * * * * *
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.

* * * * *

    Issued in Washington, DC on August 17, 2009.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. E9-20253 Filed 8-24-09; 8:45 am]

BILLING CODE 4910-06-P
