[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Rules and Regulations]
[Pages 63362-63392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18339]



[[Page 63361]]

Vol. 85

Wednesday,

No. 195

October 7, 2020

Part II





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 213





Rail Integrity and Track Safety Standards; Final Rule

  Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / 
Rules and Regulations  

[[Page 63362]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA-2018-0104, Notice No. 2]
RIN 2130-AC53


Rail Integrity and Track Safety Standards

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

ACTION: Final rule.

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SUMMARY: FRA is revising its regulations governing the minimum safety 
requirements for railroad track. The changes include allowing 
inspection of rail using continuous rail testing; allowing the use of 
flange-bearing frogs in crossing diamonds; relaxing the guard check 
gage limits on heavy-point frogs used in Class 5 track; removing an 
inspection-method exception for high-density commuter lines; and other 
miscellaneous revisions. Overall, the revisions will benefit track 
owners, railroads, and the public by reducing unnecessary costs and 
incentivizing innovation, while improving rail safety.

DATES: This final rule is effective October 7, 2020 in accordance with 
5 U.S.C. 553(d)(1).

ADDRESSES: Docket: For access to the docket to read background 
documents or comments received, go to http://www.regulations.gov at any 
time.

FOR FURTHER INFORMATION CONTACT: Yu-Jiang Zhang, Staff Director, Track 
and Structures Division, Office of Railroad Safety, Federal Railroad 
Administration, 1200 New Jersey Avenue SE, W33-302, Washington, DC 
20590, telephone: 202-493-6460; or Aaron Moore, Attorney, Office of 
Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue 
SE, W31-216, Washington, DC 20590, telephone: 202-493-7009.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Rulemaking Authority and Background
III. Summary of the Major Provisions of the Final Rule
    A. Continuous Rail Testing
    B. Removal of the High-Density Commuter Line Exception
    C. Incorporation of Flange-Bearing Frog and Heavy-Point Frog 
Waivers
    i. Heavy-Point Frogs
    ii. Flange-Bearing Frog Crossing Diamonds
IV. Discussion of Comments and Conclusions
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Executive Order 12898 (Environmental Justice)
    F. Federalism Implications
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact

I. Executive Summary

    Beginning in 2015, the Track Safety Standards Working Group (TSS 
Working Group) of the Railroad Safety Advisory Committee (RSAC) met 
numerous times to ``consider specific improvements to the Track Safety 
Standards . . . designed to enhance rail safety by improving track 
inspection methods, frequency, and documentation.'' On December 31, 
2019, FRA published a Notice of Proposed Rulemaking (NPRM) that was 
informed by the RSAC's recommendations and FRA's own review and 
analysis of the Track Safety Standards (TSS or Standards) (49 CFR part 
213). See 84 FR 72526. In the NPRM, FRA proposed to amend subparts A, 
D, F, and G of the TSS to: (1) Allow for continuous rail testing, (2) 
incorporate longstanding waivers related to track frogs,\1\ (3) remove 
the exception for high-density commuter lines from certain track 
inspection method requirements, and (4) incorporate several consensus-
based, RSAC recommendations. For a more in-depth discussion of the 
proposals and their development, please see the NPRM (84 FR 72526).
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    \1\ A frog is a track component used at the intersection of two 
running rails to provide support for wheels and passage for their 
flanges, thus permitting wheels on either rail to cross the other 
intersecting rail.
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    FRA analyzed the economic impact of this rule over a 10-year period 
and estimated its costs and cost savings. If railroad track owners 
choose to take advantage of the cost savings from this rule, they will 
incur additional labor costs associated with continuous rail testing. 
These costs are voluntary because railroad track owners will only incur 
them if they choose to operate continuous rail testing vehicles. The 
following table shows the net cost savings of this rule, over the 10-
year analysis.

                                          Net Cost Savings, in Millions
                                                 [2019 Dollars]
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                                                   Present value   Present value
                                                        7%              3%         Annualized 7%   Annualized 3%
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Costs...........................................          $27.44          $33.24           $3.91           $3.90
Cost Savings....................................          149.30          180.99           21.26           21.22
Net Cost Savings................................          121.86          147.75           17.35           17.32
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    This rule will result in cost savings for railroad track owners. 
The cost savings are in the table below.

                                            Cost Savings, in Millions
                                       [Over a 10-year period of analysis]
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                                                   Present value   Present value
                     Section                            7%              3%         Annualized 7%   Annualized 3%
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Government Cost Savings.........................          $0.194          $0.229          $0.028          $0.027
Flange Bearing Frog Inspections.................           0.184           0.215           0.026           0.025
Frog Waiver Savings.............................           0.013           0.016           0.002           0.002

[[Page 63363]]

 
Continuous Testing Labor Cost Savings...........           7.452           9.034           1.061           1.059
Slow Orders.....................................         141.329         171.340          20.122          20.086
Continuous Testing Waiver Savings...............           0.132           0.157           0.019           0.018
                                                 ---------------------------------------------------------------
    Total.......................................         149.305         180.991          21.258          21.218
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    The table below presents the estimated costs, over the 10-year 
analysis.

                                          Estimated Costs, in Millions
                                       [Over a 10-year period of analysis]
----------------------------------------------------------------------------------------------------------------
                                               Present value    Present value
                                                     7%               3%         Annualized 7%    Annualized 3%
----------------------------------------------------------------------------------------------------------------
Continuous Testing..........................           $27.4            $33.2             $3.9             $3.9
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II. Rulemaking Authority and Background

    On January 30, 2017, President Trump issued Executive Order (E.O.) 
13771. E.O. 13771 seeks to ``manage the costs associated with the 
governmental imposition of private expenditures required to comply with 
Federal regulations'' and directs each executive department or agency 
to identify for elimination two existing regulations for every new 
regulation issued. E.O. 13771 also requires any new incremental cost 
associated with a new regulation, to the extent permitted by law, be at 
least offset by the elimination of existing costs associated with at 
least two prior regulations.
    In response to E.O. 13771, FRA initiated a review of its existing 
regulations with the goal of identifying regulations that it could 
amend or eliminate to reduce the overall regulatory, paperwork, and 
cost burden on entities subject to FRA jurisdiction. FRA identified 
part 213 as a regulation FRA could amend and thereby reduce the 
railroad industry's overall regulatory and cost burden while improving 
rail safety. Also, in response to a DOT request for public comment on 
existing rules ripe for repeal or modification, the Association of 
American Railroads and other industry participants encouraged FRA to 
revise part 213 to allow for the use of innovations in rail inspection 
technology, specifically the use of non-stop rail inspection vehicles. 
See docket number DOT-OST-2017-0069 (available online at 
www.regulations.gov). This rule responds to those comments by providing 
railroads with the flexibility to use continuous rail testing in a way 
that will facilitate operational efficiency and enhance safety.
    Section 20103 of title 49 of the United States Code (U.S.C.) 
provides that, ``[t]he Secretary of Transportation, shall prescribe 
regulations and issue orders for every area of railroad safety.'' This 
statutory section codifies the authority granted to the Secretary of 
Transportation under the former Federal Railroad Safety Act of 1970. 
The Secretary's authority to act under section 20103 is delegated to 
the Federal Railroad Administrator. See 49 CFR 1.89.
    FRA published the first Standards on October 20, 1971. The most 
comprehensive revision of the Standards resulted from the Rail Safety 
Enforcement and Review Act of 1992, Public Law 102-365, 106 Stat. 972 
(Sept. 3, 1992), later amended by the Federal Railroad Safety 
Authorization Act of 1994, Public Law 103-440, 108 Stat. 4615 (Nov. 2, 
1994), which led to FRA issuing a final rule amending the Standards in 
1998. See 63 FR 34029, June 22, 1998; 63 FR 54078, Oct. 8, 1998.
    As noted in the NPRM, this final rule is based, in part, on the 
consensus recommendations of the TSS Working Group. Specifically, this 
final rule implements the TSS Working Group's recommendations to remove 
the high-density commuter line inspection-method exception and to 
revise certain recordkeeping requirements and the qualification 
requirements for certain railroad employees.

III. Summary of Major Provisions of the Final Rule

A. Continuous Rail Testing

    FRA sponsors railroad safety research, including research on rail 
integrity. The general objectives of FRA rail integrity research have 
been to improve railroad safety by reducing rail failures and the 
associated risks of train derailment, and to do so more efficiently 
through maintenance practices that increase rail service life. 
Generally, FRA's rail integrity research focuses on four distinct 
areas: Analysis of rail defects; residual stresses in rail; strategies 
for rail testing; and other related issues (e.g., advances in 
nondestructive inspection techniques; feasibility of advanced materials 
for rail, rail lubrication, rail grinding and wear; etc.). FRA's rail 
integrity research is an ongoing effort, and is particularly important 
as annual tonnages and average axle loads continue to increase on the 
nation's railroads. For more discussion of rail integrity generally, 
see FRA's 2014 final rule titled Track Safety Standards; Improving Rail 
Integrity. 79 FR 4234, Jan. 24, 2014.
    One of the most important assets to the railroad industry is its 
rail infrastructure. Historically, a primary concern of railroads has 
been the probability of rail flaw development. Rail defects may take 
many forms (e.g., rail head surface conditions and internal rail 
flaws). If defects go undetected, they may grow to critical size, 
potentially resulting in a broken rail and subsequent derailment. 
Accordingly, to prevent rail defect development, railroads seek ways to 
improve their rail

[[Page 63364]]

maintenance practices, install more wear-resistant rail, utilize 
improved flaw-detection technologies, and increase rail inspection 
frequencies.
    The development of internal rail defects is an inevitable 
consequence of the accumulation and effects of fatigue under repeated 
loading. The direct cost of an undetected rail defect that leads to a 
rail failure is the cost of replacing the rail plus the cost of any 
damage and other consequences that may result from the failure. Rail 
failures can have widespread and catastrophic consequences (e.g., 
environmental damage and potential injury and loss of life, along with 
significant service interruptions, and traffic rerouting). As such, the 
cost of a rail failure is typically considerably more than the cost of 
replacing the rail containing the defect before the rail actually 
fails. The challenge for the railroad industry is to avoid the 
occurrence of rail failures due to the presence of undetected defects.
    The effectiveness of a rail inspection program depends, in part, on 
the test equipment being properly designed and capable of detecting 
rail defects of a certain size and orientation reliably, and on 
ensuring that the test frequencies allow for detection of defects 
before they grow to critical size. High traffic and tonnage volumes can 
accelerate defect growth, while at the same time decreasing the time 
available for rail inspection. Additionally, these high volumes can 
lead to rail surface fatigue that may impede the ability of test 
equipment to detect an underlying rail flaw.
    Currently, track owners use four general rail flaw detection 
methods, each of which requires human involvement to interpret the test 
data. The four methods are:
     Portable test process, which consists of an operator 
pushing a test device over the rail at a walking pace while visually 
interpreting the test data;
     Stop-and-verify process, where a vehicle-based flaw 
detection system tests at a slow speed (normally not exceeding 20 miles 
per hour (m.p.h.)), gathering data that is presented to the operator on 
a test monitor for interpretation and field verification;
     Chase car process, which consists of a lead test vehicle 
performing the flaw detection process ahead of a verification chase 
car; and
     Continuous test process, which is one of the subjects 
addressed in this final rule, where a high-speed, vehicle-based, test 
system runs non-stop along a designated route, the test data is 
analysed at a centralized location, and suspect defect locations are 
subsequently verified.
    The main technologies utilized for the processes listed above are 
ultrasonic and induction methods. Ultrasonic technology is the primary 
technology used, with induction technology currently used as a 
complementary system. As with any non-destructive test method, these 
technologies are susceptible to physical limitations that allow poor 
rail head surface conditions (e.g., shelling or corrugation) to impair 
the detection of rail flaws. Conditions, other than poor rail head 
surface conditions (e.g., heavy lubrication or debris on the rail 
head), can also limit the effectiveness of certain inspection 
technologies.
    Induction testing introduces a high-level, direct current into the 
top of the rail, establishing a magnetic field around the rail head. An 
induction sensor unit is then passed through the magnetic field. The 
presence of a rail flaw distorts the current flow and the magnetic 
field, and it is this distortion that is detected by the search unit.
    Ultrasonic testing uses sound waves that propagate at a frequency 
that is normally between 2.25 MHz (million cycles per second) to 5.0 
MHz, above the range of human hearing. Ultrasonic waves are transmitted 
into the rail by transducers placed at various angles with respect to 
the rail surface. The ultrasonic waves produced by these transducers 
normally scan the entire rail head and web, as well as the portion of 
the base directly beneath the web. Internal rail defects are 
discontinuities in the material that constitutes the rail. These 
discontinuities act as a reflector to the ultrasonic waves, a portion 
of which are reflected back to the transducers. These conditions 
include rail head surface conditions, internal and visible rail flaws, 
weld upset/finish, and known reflectors within the rail geometry such 
as drillings or rail ends. The information is then processed by the 
test system and recorded in the test data record.
    FRA is amending its regulations on inspection of rail and 
verification of indications of defective rail to allow for continuous 
rail testing. See Sec.  213.240. The current regulations require 
immediate verification of certain indications and require all others be 
verified within 4 hours. 49 CFR 213.113(b). This verification timeframe 
has made it practically impossible for track owners to conduct 
continuous testing. Consistent with FRA's desire to improve rail safety 
and encourage innovation that does the same, this rulemaking 
establishes procedures that, except for indications of a broken rail, 
extend the required verification timeframes for those entities that 
adopt continuous testing. FRA expects this will facilitate operational 
efficiency and encourage both a broader scope and more frequent use of 
continuous rail testing in the industry.
    Although rail flaw detection is not an exact science, noncritical 
rail flaw limits can be difficult to estimate, and numerous variables 
affect rail flaw growth, FRA expects the procedures adopted in this 
final rule are sufficient to ensure the extended verification 
timeframes are unlikely to result in complete rail failure prior to 
verification. Continuous rail testing is a process that has been 
successfully trialed under the waiver process outlined in 49 CFR 213.17 
on select rail segments on multiple railroads in the U.S. since 
2009.\2\ This rulemaking codifies the continuous rail testing practices 
FRA has permitted by waiver and allows for additional flexibility in 
the rail inspection process. Track owners that do not desire to conduct 
continuous rail testing are not required to do so.
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    \2\ See docket numbers FRA-2008-0111 (CSX), FRA-2011-0107 (CSX), 
FRA-2014-0029 (CN), FRA-2015-0019 (NS), FRA-2015-0115 (KCS), FRA-
2015-0130 (BNSF), FRA-2018-0022 (UP), FRA-2018-0031 (LIRR), and FRA-
2019-0057 (MNCW) (available online at www.regulations.gov).
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    As explained in detail in the NPRM, the continuous rail test method 
consists of a vehicle using ultrasonic testing, in some cases augmented 
by other flaw detection systems, to detect defects in the rail. The raw 
test data is transmitted from the vehicle to a centralized location to 
be analyzed by a team of experts, using multiple advanced techniques, 
including comparison to past data from the same location (sometimes 
referred to as ``change detection''). Once analyzed, suspect locations 
or ``indications'' (locations where the data indicates the possible 
presence of a rail defect) are then transmitted back to the field for 
on-site verification to determine if an actual rail flaw exists.
    Under Sec.  213.113(b), when a track owner learns that a rail 
contains an indication of one of the defects listed in the Remedial 
Action Table, the track owner must field-verify the indication within 
four hours. As proposed, Sec.  213.240 would exempt track owners who 
elect to utilize continuous rail testing from the requirement to field-
verify indications within four hours. Depending on the type and 
severity of an indication, as proposed Sec.  213.240 would allow 
railroads up to either 36 or 84 hours to field-verify the suspect 
locations. (Once a suspect location is verified as a defect, however, 
the

[[Page 63365]]

remedial action timelines in the Remedial Action Table would apply).
    As noted in the NPRM, the increased verification period is 
justified by the logistical and safety benefits of continuous rail 
testing. Because the test vehicle does not have to stop and verify each 
suspected defect, more track can be inspected at greater speeds with 
significantly less interruption to revenue service. The more time-
consuming analysis of the test data can be conducted off-site and 
reviewed at an optimal speed not related to the speed of the test 
vehicle. Additionally, the test data can be more thoroughly compared to 
past test runs over the same section of track to better identify 
possible defect propagation and growth. The decreased interruption to 
revenue service allows track owners to test track more frequently. FRA 
expects that continuous rail testing would substantially decrease the 
overall cost to the railroad industry while improving rail safety.
    As noted in section IV.A of the NPRM (see 84 FR 72528-30), since 
2009, a number of railroads have implemented continuous rail testing 
programs through limited, conditional waivers of Sec.  213.113(b). As 
discussed above, Sec.  213.113(b) requires track owners who learn that 
a rail in their track contains an indication of a defect listed in the 
Remedial Action Table to verify the indication within four hours and 
take remedial action in accordance with the Remedial Action Table. The 
Remedial Action Table prescribes the required remedial actions (and 
timelines for taking those actions) based on the severity of the 
defects identified. In other words, there is a built-in safety 
threshold in the Remedial Action Table for each known defect depending 
on the defect type and size. Generally, the waivers FRA has granted to 
date allowing railroads to conduct continuous rail testing programs 
provide a longer period of time to verify indications of defects than 
permitted by Sec.  213.113(b), thereby allowing the railroads to 
prioritize the verification of those defects based on the severity of 
the indications identified.
    Under the existing waivers, suspect locations are not prioritized 
arbitrarily, but are categorized based on the ultrasonic reflective 
responses viewed by the analyst. In other words, analysts interpret the 
collected ultrasonic reflective responses, estimate each indication 
type and size, and, based on that estimate, categorize the suspect 
locations in terms of severity and remedial action required by the 
Remedial Action Table (typically suspect locations are categorized as 
``priority one,'' ``priority two,'' or ``priority three''). Priority 
one indications are suspected locations above the threshold that, if 
verified as a defect, would require remedial action note ``A,'' ``A2,'' 
or ``B'' under the Remedial Action Table. Thus, as proposed, these 
suspect locations must be field-verified within the timeframe listed in 
Sec.  213.240(e)(2).
    Those suspected locations that, if verified as a defect, would not 
require either remedial action ``A,'' ``A2,'' or ``B'' must be field-
verified within the timeframe listed in Sec.  213.240(e)(1), and are 
commonly referred to in the industry as either ``priority two'' or 
``priority three'' indications, depending on the clarity of the 
indication. Often, when the ultrasonic test data produces a response 
where the analyst believes a defect is present because of the strength 
of the ultrasonic reflective signal, but that signal does not indicate 
a suspect defect of the type and/or size requiring remedial action 
``A,'' ``A2,'' or ``B,'' the track owner lists the indication as a 
priority two. All other suspect locations identified by the analyst as 
potential defects or questionable ultrasonic responses are often marked 
as priority three suspect locations by the track owner. These so-called 
``priority threes'' are indications where the ultrasonic reflective 
data does not produce a clear indication of defect type or size, but 
produces an unfamiliar or questionable response. Because many variables 
affect ultrasonic responses, the priority three suspect type is the 
most commonly indicated, requiring hand-verification to check that 
location to ensure nothing is being missed or misinterpreted that might 
result in a rail failure and subsequent derailment.
    The Remedial Action Table reflects the fact that all verified 
defects pose a potential risk of sudden failure, depending on the 
conditions, even with defects deemed to be less severe than others. 
Data from the existing waivers demonstrates that, although less than 
two percent of the priority three suspect locations are found to be 
actual rail defects, priority three suspect locations account for 
approximately 85 percent of the field-verified defects found as a 
result of continuous testing. Priority one and priority two suspect 
locations are found to be actual rail defects in approximately 95-99 
percent and 65-70 percent of the cases, respectively. Thus, although 
priority three suspect locations have a much higher probability of a 
false positive, they are also by far the most common indication of an 
actual defect. Accordingly, FRA finds that safety necessitates 
continuing to require the field verification of all defects identified 
by tests carried out under Sec.  213.237 or Sec.  213.239.
    Further, FRA is providing additional flexibility in the rail flaw 
detection processes to promote innovative approaches to improving 
safety in railroad operations. Section 213.240 provides track owners 
the option to conduct continuous rail testing to satisfy the rail 
inspection requirements in Sec.  213.237 or, where applicable, Sec.  
213.339. This section allows additional time for verification of 
indications of potential rail flaws identified through continuous 
testing. This additional time allows for improvements in planning and 
execution of rail inspections and rail defect remediation, enabling 
track owners to conduct rail inspections with smaller impacts on 
railroad operations. By reducing these impacts, more track time may 
become available to conduct inspections and maintenance.
    However, as continuous testing is a more complicated process 
compared to the traditional stop-and-verify rail inspection process, 
additional criteria have been adopted to ensure that this elective 
process is conducted in a manner that is in the interest of safety, 
with sufficient recordkeeping and transparency to allow for adequate 
FRA oversight. The continuous rail test section would not modify the 
required frequency of rail inspections or the applicable procedural 
requirements as set forth in Sec. Sec.  213.237 and 213.339, nor does 
it make any change to the remedial actions required after field 
verification of a rail defect as described in Sec.  213.113(c).

B. Removal of the High-Density Commuter Line Exception

    FRA is removing what is commonly referred to as the ``high-density 
commuter line exception'' from the track inspection requirements in 
Sec.  213.233. This exception applies to ``high density commuter 
railroad lines where track time does not permit on-track vehicle 
inspection and where track centers are 15 feet or less apart'' and 
exempts those operations from 49 CFR 213.233(b)(3). Section 
213.233(b)(3) requires each main track to be traversed by vehicle or 
inspected on foot at least once every two weeks and each siding at 
least once each month. Although other provisions of Sec.  213.233 do 
require that such track be inspected, Sec.  213.233(b)(3) focuses on 
the direct manner of conducting those inspections over or on the 
subject track.
    On May 17, 2013, Metro-North Commuter Railroad (Metro-North) 
passenger train 1548 was traveling eastbound from Grand Central 
Station,

[[Page 63366]]

New York, toward New Haven, Connecticut, when it derailed in 
Bridgeport, Connecticut, and was struck by westbound Metro-North 
passenger train 1581. The accident resulted in approximately 65 
injuries and damages estimated at over $18 million. During the 
investigation, a pair of broken compromise joint bars were found at the 
point of derailment. One of those broken joint bars was located on the 
gage side of the track over which train 1548 was traveling (main track 
4). NTSB's investigation also found that Metro-North last inspected the 
track in the area two days before the accident, but the inspection was 
conducted by an inspector in a hi-rail vehicle traveling on main track 
2, which was next to main track 4, and the joint bars in question would 
not have been visible during that inspection. See NTSB's Railroad 
Accident Brief, October 24, 2014, available at https://www.ntsb.gov/investigations/AccidentReports/Reports/RAB1409.pdf.
    In response to the Bridgeport accident, NTSB issued Safety 
Recommendation R-14-11 to FRA, which recommended that FRA revise the 
Standards, specifically Sec.  213.233(b)(3), to remove the high-density 
commuter line exception.
    Subsequently, in 2015, Congress passed the FAST Act, and mandated 
in section 11409 that the Secretary of Transportation evaluate the 
Standards to determine if the high-density commuter line exception 
should be retained. After considering safety, system capacity, and 
other relevant factors such as the views of the railroad industry and 
relevant labor organizations, FRA has concluded, and the TSS Working 
Group unanimously agreed, that the high-density commuter line exception 
should be removed. All railroad operations, whether commuter or 
freight, or both, should be subject to the same inspection method 
requirements in Sec.  213.233(b)(3).

C. Incorporation of Flange-Bearing Frog and Heavy-Point Frog Waivers

    FRA is revising two sections of part 213 (Sec. Sec.  213.137 and 
213.143) to incorporate longstanding waivers that, with certain 
limiting conditions, permit the use of flange-bearing frogs and heavy-
point frogs that do not comply with current FRA standards. FRA finds 
that under certain conditions, use of these types of frogs provide 
safety benefits by more evenly distributing loads across the frogs with 
minimal impact to rail surfaces, as compared to other types of rail 
frogs. Incorporating these waivers into FRA's regulations will result 
in industry cost savings that are larger than the cost savings that 
result from the waivers alone.
i. Heavy-Point Frogs
    A heavy-point frog (HPF) is a unique design that has a thicker frog 
point than a traditional frog. A thicker frog point provides more inert 
mass, which results in reduced metal fatigue from impact loading, 
greater durability, reduced susceptibility to deformation of the frog 
point, and better ability to guide the wheel flange toward the proper 
flangeway. In an HPF, the gage line is \11/32\ (0.3438) of an inch 
thicker than a traditional, rail-bound manganese frog point. This 
reduces the standard guard check distance from 4 feet, 6\5/8\ (54.6250) 
inches to 4 feet, 6\29/64\ (54.4531) inches, which does not comply with 
minimum guard check distance for Class 5 track.
    As defined in 49 CFR 213.143, and as shown in Figure 1 below, guard 
check gage is the distance between the gage line of a frog to the guard 
line (a line along the side of the flangeway nearest to the center of 
the track and at the same elevation as the gage line) of its guard rail 
or guarding face, measured across the track at right angles to the gage 
line (a line \5/8\ of an inch below the top of the center line of the 
head of the running rail, or corresponding location of the tread 
portion of the track structure).
    The purpose of the minimum guard check gage is to ensure a 
vehicle's wheels are able to pass through the frog without one of the 
wheels (the right wheel in Figure 1) striking the frog point. In Figure 
1, there are two key dimensions: ``wheel check,'' which is the distance 
between the two wheels plus the wheel flange thickness at the gage line 
(\5/8\ of an inch below the running surface); and ``guard check gage,'' 
which is defined above. As illustrated in Figure 1, guard check gage 
must be greater than or equal to the wheel check so there will be a 
``flange-frog point gap'' between the right wheel and frog point 
interface, when the left wheel flange passes against the guard rail. As 
stated above and further illustrated in Figure 1, this ensures the 
right wheel does not strike the frog point.
    Figure 1 depicts a standard frog, which has a standard guard check 
gage of 54.625 inches, meeting the requirement for Class 5 track 
(greater than or equal to 54.5 inches). A heavy-point frog has a 
standard guard check gage of 54.4531 inches, which does not meet 
current FRA standards for Class 5 track but does meet the current 
standards for Class 4 track (greater than or equal to 54.375 inches).

[[Page 63367]]

[GRAPHIC] [TIFF OMITTED] TR07OC20.002

    In 2003, FRA approved a waiver permitting operation of trains at 
Class 5 track speeds over certain HPFs at which the guard check gage, 
under existing 49 CFR 213.143, conforms to the standards applicable to 
Class 4 track. See docket number FRA-2001-10654 (available online at 
www.regulations.gov). Among other conditions to ensure safety, the 
waiver requires that the frog, and the guard rails on both tracks 
through the turnout containing the frog, be equipped with at least 
three through-gage plates (metal plates underneath the frog that expand 
across the entire frog to provide both vertical support and lateral 
restraint for the frog components) with elastic rail fasteners, and 
guard rail braces that permit adjustment of the guard check gage 
without removing spikes or other fasteners from the crossties. The 
waiver also requires that track owners retain records of the location 
and description of each turnout containing an HPF, notify FRA prior to 
operating trains over a new HPF, and provide proper information and 
training to any employees designated to inspect or supervise 
restoration or renewal of areas containing an HPF. The waiver also 
requires that each HPF bear an identifying mark. Since FRA initially 
granted the waiver in 2003, FRA has renewed the waiver three times, 
most recently on February 15, 2018. The waiver is currently set to 
expire on February 15, 2023.
    To date, no accidents have been reported to FRA as having occurred 
at or near locations where HPFs are installed. Accordingly, FRA finds 
that the safety of HPFs have been proven. As discussed in more detail 
below in the section-by-section analysis for Sec.  213.143, FRA is 
incorporating some of the waiver provisions into the regulation.
ii. Flange-Bearing Frog Crossing Diamonds
    Flange-bearing frogs (FBF) are different from the traditional 
tread-bearing frogs used by freight railroads in most crossing diamonds 
and turnouts in the United States. In traditional tread-bearing 
crossing diamonds, a vehicle's wheels must run over the gaps in the 
running rails. This creates very high impact forces between the wheels 
and rails, which can damage both the diamond and components of the 
vehicle (e.g., the vehicle's wheels and axles). For FBFs, the flangeway 
is designed to support the wheels running on their flanges. Ramps 
provide a smooth transition from tread-bearing to flange-bearing and 
reduce the dynamic wheel forces significantly. This can greatly reduce 
noise and vibration, increase the service life of crossing diamonds and 
vehicle components, reduce the need for maintenance, and possibly 
decrease the need for speed restrictions due to worn, damaged, or 
defective crossing diamonds.
    In 2000, FRA approved a waiver granting relief from the flangeway 
depth requirements in 49 CFR 213.137(a) as well as the limitation in 49 
CFR 213.137(d) restricting FBFs to Class 1 track. See docket number 
FRA-1999-5104 (available online at www.regulations.gov). Among other 
conditions, this initial waiver allowed track owners to install up to 
five FBF crossing diamonds in Class 2 or 3 track. FRA limited its 
initial approval to five FBF crossings under specific operational 
conditions and conditions requiring vehicle and track inspections 
designed to closely monitor the performance of the FBFs. In 2010, based 
on the successful implementation of the initial waiver and data 
gathered as a result, at industry's request, FRA granted a revised 
waiver allowing installation of FBF crossing diamonds on Classes 2 
through 5 track with crossing angles above 20 degrees unless movable 
guard rails are used. Among other conditions, the waiver required that 
newly installed FBF crossing diamonds be inspected daily during the 
first week of operation, weekly for the month after, and monthly 
thereafter. The waiver also required the track owner to prepare 
maintenance manuals and properly train its personnel. The waiver was 
renewed in May 2020, and is set to expire in May 2025.
    To date, no accidents have been reported to FRA as having occurred 
at or near FBFs. Accordingly, FRA finds that the safety benefits of 
FBFs have been proven and incorporates some of the waiver provisions 
into the regulation. Because the performance of the FBF crossing 
diamonds installed under the waiver is the primary basis for FRA's 
conclusion that these frogs are safe, FRA finds that it is in the best 
interests of public safety to retain, as

[[Page 63368]]

much as reasonable, similar limitations imposed under the waiver.

IV. Discussion of Comments and Conclusions

    FRA received six sets of comments in response to the NPRM. Three 
sets of comments were from RSAC members and included comments from the 
National Transportation Safety Board (NTSB), joint comments submitted 
from the Association of American Railroads (AAR) and the American Short 
Line and Regional Railroad Association (ASLRRA) (jointly referred to as 
``AAR/ASLRRA''), and joint comments from the Brotherhood of Maintenance 
of Way Employes Division (BMWED) and the Brotherhood of Railroad 
Signalmen (BRS) (jointly referred to as ``BMWED/BRS''). FRA also 
received comments from Herzog Service, Inc., and the American 
Association for Laboratory Accreditation (A2LA). Finally, FRA received 
a joint comment from the following seven entities: The American 
Chemistry Council, the American Fuel & Petrochemical Manufacturers, the 
American Petroleum Institute, the Chlorine Institute, the Fertilizer 
Institute, the Renewable Fuels Association, and the Sulphur Institute 
(collectively referred to as the ``Chemical, Energy, and Agricultural 
Trade Associations'').
    FRA thanks the commenters for the time and effort put into each of 
the comments received. Directly below FRA discusses the comments 
generally applicable to this rulemaking. Comments directed at specific 
proposed regulatory changes are discussed below in the section-by-
section analysis. The order in which FRA discusses the comments below 
is not meant to imply that FRA is prioritizing one commenter over 
another. Rather, FRA has organized the discussion of comments in as 
logical manner as possible.

BMWED/BRS

    In their comment, BMWED/BRS raised a number of concerns with the 
NPRM, primarily regarding the proposal to allow for continuous rail 
testing. Although many of BMWED/BRS's concerns are discussed below in 
the section-by-section analysis, they recommend that certain additional 
conditions, not proposed in the NPRM, be required for continuous rail 
testing. BMWED/BRS assert that suspect locations containing a suspect 
defect that, if verified, would require remedial action A, A2, or B 
identified in the Remedial Action Table contained in Sec.  213.113(c) 
(Remedial Action Table), as well as indications of a ``possible 
transverse defect estimated to be greater than 25%,'' should require 
immediate protection. Additionally, BMWED/BRS contend that the Remedial 
Action Table should be revised for continuous rail testing. 
Specifically, BMWED/BRS state that ``the number of days/hours in the 
Remedial Action Table'' should be reduced to ``accommodate the 
additional 36 to 84 hours for `field verification' . . . in order to 
maintain an equivalent level of safety.'' A proposed revised Remedial 
Action Table was attached to BMWED/BRS's comment. Finally, BMWED/BRS 
recommend that FRA require railroads ``opting to use [continuous rail 
testing] under proposed Sec.  213.240 to at least double the frequency 
of inspections on each track segment.''
    FRA disagrees that these changes are needed or justified. As 
discussed in more detail in the NPRM (see 84 FR 72528-30), continuous 
rail testing has been successfully trialed under the waiver process on 
select rail segments on multiple railroads in the United States since 
2009. The data derived and the lessons learned from over 10 years of 
testing do not support the additional conditions proposed in BMWED/
BRS's comment. Continuous rail testing has the potential to improve 
rail safety significantly and FRA is confident that Sec.  213.240, as 
adopted in this final rule, successfully balances the flexibility 
needed to conduct continuous rail testing with conditions necessary to 
ensure at least an equivalent level of safety, and very likely improve 
it. FRA also finds that adopting the additional conditions proposed by 
BMWED/BRS would be a significant and unjustified disincentive to track 
owners' and railroads' use of continuous testing. Adopting such 
conditions could make continuous rail testing more onerous than 
traditional stop-and-verify testing (e.g., by doubling the required 
number of inspections, requiring immediate protections for certain 
defects before field verification, and decreasing existing timeframes 
for imposing remedial action)--all of which could result in track 
owners and railroads forgoing adoption of continuous testing, and 
therefore, the associated safety benefits discussed throughout this 
final rule.
    Additionally, BMWED/BRS advocate for an interpretation of existing 
Sec.  213.5(a) and how it relates to a suspect location found during a 
rail inspection. BMWED/BRS assert that ``delayed application of the 
Remedial Action Table for suspect rail defects'' violates Sec.  
213.5(a) since once ``suspected defects are identified, the carrier 
`knows or has notice' that the track does not comply with the 
requirements of Part 213.'' BMWED/BRS contend that ``[a]ll suspected 
rail defects must first be protected and then `verified.' '' FRA does 
not agree that this interpretation of Sec.  213.5(a) is consistent with 
regulatory language or longstanding FRA interpretation. An indication 
of a suspect defect is only that: An indication that a defect might 
exist. The track owner does not have knowledge or notice of an actual 
defect until the suspected defect is field-verified and confirmed to be 
a defect. This long-held interpretation is consistent with the 
structure of Sec.  213.113.
    Section 213.113(a) lists the actions a track owner must take when 
the owner ``learns that a rail in the track contains any of the defects 
listed in the table contained in paragraph (c),'' whereas Sec.  
213.113(b) lists the actions a track owner must take when the owner 
``learns that a rail in the track contains an indication of any of the 
defects listed in the table contained in paragraph (c).'' Thus, the 
plain language of the regulation makes clear that an indication of a 
defect is not the same as a verified defect and thus Sec.  213.5(a) 
would not require immediate remediation for an unverified indication of 
a defect.
    Finally, BMWED/BRS state that ``FRA must assure that all verified 
defects be marked with a highly visible marking in compliance with 
Sec.  213.237(e) or Sec.  213.339(c) as appropriate.'' FRA notes that 
this is already required by Sec. Sec.  213.237(e) and 213.339(c), and 
this final rule does not change that.

AAR/ASLRRA

    In addition to comments directed at specific, proposed regulatory 
provisions, which are discussed below in the section-by-section 
analysis, AAR/ASLRRA raise a concern about training and qualification 
provisions. Specifically, AAR/ASLRRA contend that 49 CFR part 243, 
which was originally issued in 2014 but had its effective date delayed 
multiple times, ``generally made obsolete the previous need to codify 
scattershot training provisions throughout the Federal railroad safety 
regulations,'' and that any ``references to training and qualification 
in the final rule [are] unnecessary and duplicative.'' FRA disagrees. 
As Sec.  243.1 expressly states, part 243 contains the general minimum 
training and qualification requirements for each category and 
subcategory of safety-related railroad employee (Sec.  243.1(b)), and 
the requirements of part 243 do not exempt any other requirements in 
this chapter (Sec.  243.1(c)). Further, unless otherwise noted, part 
243 augments other training and

[[Page 63369]]

qualification requirements contained in this chapter (Sec.  243.1(d)). 
The clear wording of part 243 shows that training and qualification 
requirements codified in other parts of the CFR are not obsolete or 
duplicative.

A2LA

    A2LA, in its comment, generally favors utilizing International 
Organization for Standardization/International Electrotechnical 
Commission (ISO/IEC) accreditation for multiple areas of part 213, 
including requiring continuous rail testing be done by ISO/IEC 
accredited inspection agencies, adopting ISO/IEC standards for 
qualification requirements, and adopting ISO/IEC accreditation for 
track inspections. FRA does not believe ISO/IEC standards are necessary 
for purposes of this final rule. The qualification requirements already 
included in part 213 and adopted in this final rule, along with 
continued FRA oversight, are sufficient to ensure railroad personnel 
conducting relevant tasks are properly trained and possess the 
requisite skills to complete their jobs safely and effectively.

Chemical, Energy, and Agricultural Trade Associations

    The Chemical, Energy, and Agricultural Trade Associations ``support 
allowing inspection of rail using continuous rail testing,'' but raise 
a general concern ``that the proposed revisions, particularly the 
extension of the verification timeframes could lead to a scenario where 
fatal flaws remained unaddressed and subject trains to potential 
derailments.'' The Associations go on to ``caution FRA from 
implementing an overly extended verification timeframe and encourage a 
conservative approach when considering what is a critical flaw 
requiring immediate attention.'' FRA appreciates the Associations' 
concerns. However, FRA is confident that the procedures governing 
continuous rail testing and the extension of field verification 
timeframes are sufficient to ensure railroad safety. Since 2009, 
various continuous rail testing procedures and timeframes have been 
trialed and fine-tuned through the waiver process on multiple 
railroads. Waiver data indicates that as track owners have increased 
their use of continuous rail testing under the waivers, they have 
realized a decrease in broken-rail-caused accidents and an increase in 
overall safety. For example, Norfolk Southern Railway, which began 
operating under a continuous test waiver on limited territories in 2015 
and since that time has expanded its continuous test territory numerous 
times, experienced 34 percent fewer main line service failures (broken 
rails that do not result in an accident) in 2018 as compared to 2014. 
Similarly, CSX Corporation, which has been piloting continuous test 
technologies and methodologies under an FRA waiver since 2009 and, 
similar to NS, has expanded its continuous test territories numerous 
times, had zero broken rail-caused main track accidents in 2019. FRA 
safety data demonstrates a nationwide 39 percent reduction in FRA 
reportable broken rail caused accidents from June 2019 to May 2020. In 
addition, since beginning continuous rail testing under waiver in 2018, 
the Long Island Railroad (LIRR) has tripled its testing frequency with 
no additional train delays. This final rule is based on the data and 
experience gained through those waivers.

V. Section-by-Section Analysis

Section 213.1 Scope of Part

    Proposed rule: Section 213.1 sets forth the scope of part 213. 
Paragraph (b) specifies that subparts A through F of part 213 apply to 
track Classes 1 through 5 and that subpart G and certain individual 
sections of subpart A apply to track Classes 6 through 9. FRA proposed 
to amend paragraph (b) of this section to reference proposed Sec.  
213.240 (continuous rail testing). Together with proposed Sec.  
213.240, this change would allow track owners to elect to use 
continuous rail testing conducted under Sec.  213.240 on Class 6 
through Class 9 track to satisfy the requirement for internal rail 
testing under Sec.  213.339.
    Comments: FRA received no comments on this proposed change.
    Final rule: The change is adopted as proposed in the NPRM.

Section 213.5 Responsibility for Compliance

    Proposed rule: Section 213.5 specifies the parties responsible for 
compliance with part 213. Paragraph (a)(3) of this section addresses 
persons responsible for overseeing operations over track that is known 
to be not in compliance with part 213. That paragraph requires 
operations over such track to be overseen by a person designated under 
Sec.  213.7(a) who has ``at least one year of supervisory experience in 
railroad track maintenance.'' FRA proposed to remove the requirement 
for the person overseeing operations on non-compliant track to have 
``one year of supervisory experience in railroad track maintenance.'' 
This proposed change would conform to the proposed changes to Sec.  
213.7, which are discussed below.
    Additionally, FRA proposed to add the following sentence to the end 
of paragraph (a)(3): ``If the operation is on Continuous Welded Rail 
(CWR) track, the person under whose authority operations are conducted 
must also be designated under Sec.  213.7(c).'' This change is meant to 
clarify that in order for a person to authorize operations over CWR 
track that does not meet all the requirements of part 213, the person 
must be designated and qualified by the track owner under Sec.  
213.7(c) to inspect CWR track or supervise the installation, 
adjustment, and maintenance of CWR track.
    Comments: FRA received no comments on these proposed changes.
    Final rule: The changes are adopted as proposed in the NPRM.

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

    Proposed rule: Section 213.7 requires track owners to designate 
qualified persons to inspect track and supervise certain track 
restorations and renewals, and specifies the records related to these 
designations a track owner must maintain. The section also requires 
these qualified persons to have ``written authorization'' from the 
track owner to prescribe remedial actions to address identified 
nonconformities in the track.
    Paragraph (a)(1) of this section specifically requires that a 
person designated to supervise the restoration and renewal of track 
under traffic conditions have, among other things, either one year of 
supervisory experience in railroad maintenance or a combination of 
supervisory experience in track maintenance and training. For the 
reasons discussed in the NPRM, and consistent with the recommendations 
of the TSS Working Group, FRA agreed that requiring supervisory 
experience to qualify under paragraph (a)(1) creates a possible 
conflict in the regulatory language (an employee cannot be qualified 
under that paragraph unless he or she has supervisory experience yet an 
employee would not be able to gain supervisory experience without first 
being qualified). Accordingly, FRA proposed to remove the supervisory 
requirement in the paragraph.
    Paragraphs (a)(3), (b)(3), (c)(4), and (e) each require ``written'' 
records. The records required in paragraphs (a)(3), (b)(3), and (c)(4) 
relate to individual's authorization from a track owner to prescribe 
remedial actions. The records required in paragraph (e) relate to the 
designation of individuals authorized to prescribe such actions. As 
noted in the NPRM, FRA finds that the term ``written'' can be 
interpreted to

[[Page 63370]]

encompass both physical hardcopies or electronic versions of the 
required authorizations or designations. To avoid any possible 
confusion and consistent with the TSS Working Group's recommendations, 
FRA proposed to remove the term ``written'' from each of these 
paragraphs to make clear that the required authorizations or 
designations could be recorded and conveyed either in hardcopy or 
electronic form.
    FRA also proposed to add new paragraph (e)(2) to require records of 
designations under Sec.  213.7 to include the date each designation is 
made. To incorporate this revision, FRA proposed to redesignate 
paragraph (e)(2) as paragraph (e)(3). FRA also proposed to revise the 
resulting new paragraph (e)(3) to require the records to contain not 
only the basis for each designation as paragraph (e)(2) currently 
requires, but also to require track owners to include the method used 
to determine that the designated person is qualified. FRA intended this 
change to better conform the section with the requirements of Sec.  
213.305(e) for high-speed operations, and better describe what FRA 
means by the ``basis for each designation.'' As noted in the NPRM, to 
meet this requirement, a track owner could include information about 
the nature of any training courses the designated person participated 
in and how the track owner determined that the designated person 
successfully completed the course (e.g., test scores, demonstrated 
proficiency, etc.).
    Paragraph (e)(3) also requires designation records under Sec.  
213.7 to include records of track inspections ``made by each designated 
qualified person.'' FRA proposed to remove the requirement, finding it 
redundant with Sec.  213.241's requirement that track owners maintain 
records of track inspections made by qualified inspectors that are 
``kept available for inspection and copying by [FRA] during regular 
business hours.'' Accordingly, FRA proposed to redesignate paragraph 
(e)(3) as new paragraph (f). FRA also proposed rephrasing the paragraph 
to require that FRA make its request for records during normal business 
hours and provide the track owner ``reasonable notice'' before 
requiring production. As explained in the NPRM, the meaning of the term 
``reasonable notice'' depends on the specific facts of each situation 
and FRA does not intend these revisions to substantively change 
recordkeeping requirements or FRA's existing inspection practices. 
These revisions are primarily intended to clarify how FRA currently 
enforces the regulation.
    Comments: With regard to the proposed introduction of the phrase 
``reasonable notice'' in new proposed paragraph (f), AAR/ASLRRA, in 
their comment, state that ``what constitutes `reasonable notice' is 
inherently subjective'' and assert that ``a railroad acting in good 
faith to provide requested records to FRA representatives upon 
`reasonable notice' should never be subject to civil penalties.'' 
Alternatively, AAR/ASLRRA suggest that FRA adopt ``a presumptive ten 
days' notice requirement.''
    Final rule: As explained above and in the preamble to the NPRM, the 
term ``reasonable notice'' depends on the specific facts of each 
situation (e.g., time of day request made, day of the week request 
made, number of records requested). FRA does not agree that it is 
appropriate to adopt a blanket statement that a railroad can never be 
subject to civil penalties so long as it acts in ``good faith.'' The 
subjective intent behind a railroad's actions is not a necessary 
consideration for whether it complies with the requirement to produce 
records. Likewise, FRA declines to adopt a blanket 10 days' notice 
requirement. Although current Sec. Sec.  213.241(b) and 213.369(b) 
include a reference to a 10 days' notice for track inspection records, 
that only applies to paper records that are not maintained at the 
designated location where they are requested. Electronic records or 
those paper records maintained at the designated location where they 
are requested are not subject to the automatic 10 days' notice 
requirement under current Sec. Sec.  213.241(b) and 213.369(b). FRA 
received no other comments on the proposed revisions to this section. 
Accordingly, the revisions to Sec.  213.7 are adopted as proposed in 
the NPRM.

Section 213.9 Classes of Track: Operating Speed Limits

    Proposed rule: Section 213.9 sets forth the maximum allowable 
operating speeds for both passenger and freight trains for excepted 
track, and track Classes 1 through 5 (track speeds up to 90 m.p.h. for 
passenger trains and up to 80 m.p.h. for freight trains). Paragraph (b) 
of this section addresses situations in which a track segment does not 
meet the requirements for its intended class and specifies that if a 
segment of track does not at least meet the requirements for Class 1 
track, operations may continue under the authority of a person designed 
under Sec.  213.7(a) ``who has at least one year of supervisory 
experience in railroad track maintenance'' for up to 30 days. 
Consistent with the revisions proposed to Sec.  213.7(a) discussed 
above, FRA proposed to revise this paragraph to remove the requirement 
that a person designated under Sec.  213.7(a) have a least one year of 
``supervisory'' experience in railroad track maintenance. Please see 
the above discussion of Sec.  213.7(a).
    Comments: FRA received no comments on this proposed change.
    Final rule: The change is adopted as proposed in the NPRM.

Section 213.11 Restoration or Renewal of Track Under Traffic Conditions

    Proposed rule: Section 213.11 requires operations over track 
undergoing restoration or renewal under traffic conditions and not 
meeting all the requirements of part 213 to be conducted under the 
continuous supervision of a person designated under Sec.  213.7(a) with 
``at least one year of supervisory experience in railroad track 
maintenance.'' Consistent with the proposed changes to Sec.  213.7(a), 
FRA proposed to remove the requirement that the person supervising 
restoration or renewal of track under traffic conditions have a minimum 
of one year of ``supervisory'' experience in track maintenance. 
Additionally, to clarify an existing regulatory requirement, FRA 
proposed to add text stating that if the restoration or renewal is on 
continuous welded rail (CWR) track, the person must also be qualified 
under Sec.  213.7(c).
    To clarify that a person designated under Sec.  213.7(a), and (c) 
if applicable, may not authorize movement over any track not meeting 
all the requirements of part 213 for its particular class, FRA also 
proposed adding a sentence stating that the ``operating speed cannot be 
more than the maximum allowable speed under Sec.  213.9 for the class 
of track concerned.''
    Comments: FRA received no comments on the proposed changes.
    Final rule: The changes are adopted as proposed in the NPRM.

Section 213.113 Defective Rails

    Proposed rule: Section 213.113 prescribes the required actions a 
track owner must take when it learns that a rail contains an indication 
of a defect and after the track owner verifies the existence of the 
defect. To clarify that the requirement that an indication of a defect 
be verified within four hours would not apply if a track owner elects 
to conduct continuous testing under proposed Sec.  213.240, FRA 
proposed to modify the second sentence in paragraph (b) so that it 
would begin with ``except as provided in Sec.  213.240, . . . .''
    Comments: FRA received no comments on this proposed change.

[[Page 63371]]

    Final rule: The change is adopted as proposed in the NPRM.

Section 213.137 Frogs

    Proposed rule: Section 213.137 contains the standards for use of 
frogs. As discussed in detail in the preamble to the NPRM, a frog is a 
track component used at the intersection of two running rails to 
provide support for wheels and passage for their flanges, thus 
permitting wheels on either rail to cross the other intersecting rail. 
See 84 FR 72530.
    Paragraph (a) of Sec.  213.137 prescribes limits on the flangeway 
depth of a frog. These limits effectively prohibit the use of flange 
bearing frogs (FBFs) on Classes 2 through 5 track. However, since 2000, 
railroads have operated under a waiver that allowed the installation of 
FBFs in crossing diamonds in track Classes 2 through 5, and exempted 
those diamonds from the flangeway depth requirements of paragraph (a), 
subject to certain conditions. As discussed in more detail in section 
IV.C of the NPRM (see 84 FR 72530-32), FRA has renewed the waiver 
multiple times, and currently the waiver is set to expire in May 2025.
    After careful review of safety performance under the waiver and 
analysis of track-caused derailments, as noted in the NPRM, FRA has 
identified no negative safety implications with the use of FBFs. As 
such, in the NPRM, FRA proposed to modify Sec.  213.137 by adding 
paragraph (e) that would allow the use of FBFs in crossing diamonds in 
Classes 2 through 5 track consistent with the conditions of the 
existing waiver. The existing waiver limited the installation of FBFs 
to locations with crossing angles above 20 degrees unless moveable 
guard rails are used and generally required track owners to initially 
inspect newly installed FBFs more often than traditional frogs. The 
waiver also required track owners to document certain information about 
the location of the installed FBFs (e.g., crossing angle, tonnage, 
speed, direction and type of traffic), develop maintenance manuals 
specific to the frogs, and properly train all personnel responsible for 
inspecting or repairing any FBF. See proposed paragraphs (e)(1)-(3).
    Comments: FRA received comments generally supporting the proposed 
changes. AAR/ASLRRA, while strongly supporting the incorporation of the 
longstanding waiver for FBFs, disagreed with FRA's proposal to include 
``many of the same administrative and recordkeeping provisions found in 
the'' waiver. AAR/ASLRRA contend that those additional administrative 
requirements ``are no longer necessary or relevant once FRA has 
determined the new technology is safe.''
    Final rule: FRA agrees with AAR/ASLRRA's statement that the 
administrative requirements imposed as conditions of the waiver are no 
longer necessary given that the use of FBF's as proposed has been 
proven safe, and the regulations already require track owners to 
provide employees responsible for inspecting or repairing FBFs to be 
appropriately trained and demonstrate appropriate knowledge, 
understanding, and ability to do so. Accordingly, FRA is not adopting 
proposed paragraphs (e)(2) and (e)(3). FRA, however, is maintaining the 
requirement from proposed paragraph (e)(1) that FBFs may only be used 
at locations with crossing angles greater than 20 degrees unless 
movable guard rails are used. As noted in the NPRM, when a crossing 
diamond has a smaller crossing angle, there is a heightened risk of 
damage to the rail head when the wheel flange crosses over it.
    Because FRA is not adopting proposed paragraphs (e)(2) and (e)(3), 
FRA is including the language proposed for paragraph (e)(1) at the end 
of new paragraph (e). The changes proposed in the NPRM are otherwise 
adopted, with the revisions discussed above.

Section 213.143 Frog Guard Rails and Guard Faces; Gage

    Proposed rule: This section prescribes a minimum and maximum value 
for guard check and guard face gages, respectively. Guard check gage is 
the distance between the gage line of a frog and the guard line of its 
guardrail or guarding face. Allowable minimum dimensions vary with 
track classification, i.e., train speed.
    As discussed in more detail in section IV.C of the NPRM (see 84 FR 
72530-32), in 2003, FRA granted a waiver (docket number FRA-2001-10654) 
to members of the railroad industry allowing operation of trains at 
Class 5 speeds over a heavy-point frog (HPF) with guard check gage 
conforming to the standards for Class 4 track frogs. FRA granted 
several extensions of this waiver, and it is currently set to expire in 
February 2023.
    After careful review of safety performance under the waiver and 
analysis of track-caused derailment data, FRA identified no negative 
safety implications with the use of HPFs under the conditions outlined 
in the waiver. As such, in the NPRM, FRA proposed to modify Sec.  
213.243 to add footnote 3 to the table in Sec.  213.143 which, 
consistent with the conditions of the waiver, would: (1) Allow the 
guard check gage for HPFs on Class 5 track to be less than the current 
4-foot, 6\1/2\-inch minimum, but not less than 4 feet, 6\3/8\ inches 
(the current minimum for frogs in Class 4 track); (2) require that each 
track owner maintain records of the location and description of each 
HPF and make that information available to FRA upon request during 
normal business hours following reasonable notice; (3) require that 
each HPF and the guard rails on both rails through the turnout be 
equipped with at least three serviceable through-gage plates with 
elastic rail fasteners and guard rail braces that permit adjustment of 
the guard check gage without removing spikes or other fasteners from 
the crossties; (4) require that each track owner provide proper 
maintenance manuals, instructions, and training to any Sec.  213.7 
designated employees who inspect track or supervise restoration and 
renewal of track, or both, in areas that include turnouts with HPFs; 
and (5) require that each HPF bear an identifying mark that identifies 
the frog as an HPF.
    Comments: FRA received comments generally supporting the proposed 
changes. AAR/ASLRRA, while strongly supporting the incorporation of the 
longstanding waiver for HPFs, disagreed with FRA's proposal to include 
``many of the same administrative and recordkeeping provisions found in 
the'' waiver. AAR/ASLRRA assert that those additional administrative 
requirements ``are no longer necessary or relevant once FRA has 
determined the new technology is safe.''
    Final rule: Preliminarily, for formatting reasons, FRA is moving 
the content of proposed footnote 3 to a new paragraph (b). The existing 
language in Sec.  213.143 will be designated as paragraph (a), with a 
slight grammatical revision to the introductory language, and the 
existing table will be titled ``Table 1 to Sec.  213.143(a).''
    FRA agrees with AAR/ASLRRA's statement that the administrative 
requirements imposed as conditions of the waiver are no longer 
necessary given that the use of HPFs as proposed has been proven safe 
and the regulations already require track owners to provide employees 
responsible for inspecting or repairing HPFs to be appropriately 
trained and demonstrate appropriate knowledge, understanding, and 
ability to do so.
    Accordingly, FRA is not adopting the specific recordkeeping or 
training requirements proposed in paragraphs (a) or (c) of proposed 
footnote 3, and is also not adopting the second sentence of proposed 
paragraph (d). FRA is retaining the remainder of the proposed 
requirements related to HPFs, but in this final rule, FRA is 
designating proposed

[[Page 63372]]

paragraphs (b) and (d) of footnote 3, as paragraphs (b)(1) and (2). The 
changes as proposed in the NPRM are otherwise adopted, with the 
revisions discussed above.

Section 213.233 Visual Track Inspections

    Proposed rule: Section 213.233 sets forth general requirements for 
the frequency and method of performing required visual track 
inspections on excepted track and track Classes 1 through 5. To better 
reflect the existing scope of this section, FRA proposed to add the 
word ``visual'' to the section heading so that it would read ``Visual 
track inspections.'' Because other sections in part 213 cover different 
types of inspections and inspection methods for the same types of track 
(automated inspections, inspections of rail, etc.), this proposed 
change would clarify that this section deals specifically with visual 
track inspections. This proposal would also make Sec.  213.233's 
heading consistent with the heading for the corresponding high-speed 
track section, Sec.  213.365, ``Visual inspections.'' As discussed 
below, FRA proposed to revise the heading for Sec.  213.365 so that the 
headings are the same for both Sec. Sec.  213.233 and 213.365.
    Comments: AAR/ASLRRA contend that, although Sec.  213.233 
``currently contemplates human visual inspection . . . as technology 
evolves in the future,'' these inspections ``may not always be 
conducted `visually' by humans.'' AAR/ASLRRA concludes that adding the 
word ``visual'' to the heading of Sec.  213.233 ``could make them more 
outdated in the future.''
    Final rule: FRA disagrees. As the commenters note, Sec.  213.233 
currently requires visual track inspections and the change to the 
heading is meant to make that clear, as well as make the heading of 
Sec.  213.233 consistent with the heading of Sec.  213.365, which 
applies to higher-speed tracks. If future regulatory changes are made 
to Sec.  213.233 to allow the use of non-visual inspections 
specifically under the section's requirements, the heading could be 
updated at that time. Moreover, the change does not affect the use of 
non-visual inspection methods as provided in other sections of this 
part. The change is therefore adopted as proposed in the NPRM.
    Proposed rule: Paragraph (b) requires visual track inspections to 
be made on foot or by ``riding over'' the track at a speed allowing the 
inspector to visually inspect the track structure for compliance; and, 
when inspecting from a vehicle, this section sets the vehicle's maximum 
speed at 5 m.p.h. when ``passing over'' track crossings and turnouts. 
Paragraph (b) also specifies that one inspector in a vehicle may 
inspect up to two tracks at one time under certain conditions, 
including that the second track is not centered more than 30 feet from 
the track upon which the inspector ``is riding.'' Similarly, two 
inspectors may inspect up to four tracks from one vehicle under certain 
conditions, including that the second track center is within 39 feet 
from the track on which the inspectors ``are riding.'' For grammatical 
consistency throughout this section, FRA proposed revising the terms 
``riding over'' and ``passing over'' to ``traversing'' in this 
paragraph and, for the same reason, FRA also proposed to revise the 
terms ``is riding'' and ``are riding'' to ``traverses'' and 
``traverse.''
    Additionally, FRA proposed removing the terms ``upon which'' from 
paragraphs (b)(1) and (2), and changing ``is actually'' to ``must be'' 
in paragraph (b)(3). These changes are not meant to affect the meaning 
of Sec.  213.233, but are instead made for grammatical consistency.
    Comments: FRA received no comments on these proposed changes.
    Final rule: The changes are adopted as proposed in the NPRM.
    Proposed rule: As discussed in more detail in section IV.B of the 
NPRM (see 84 FR 72530), FRA proposed to remove the last sentence of 
paragraph (b)(3), also known as the high-density commuter line 
exception. Paragraph (b)(3) requires, among other things, that each 
main track be traversed by a vehicle or inspector on foot at least once 
every two weeks, and every siding at least every month. The high-
density commuter line exception applies where track time does not 
permit on-track vehicle inspection and where track centers are 15 feet 
or less apart and exempts those operations from the inspection method 
requirements of paragraph (b)(3). FRA's proposal to remove this 
exception was directly responsive to Congress's direction in sec. 11409 
of the FAST Act and NTSB's Safety Recommendation R-14-11. In addition, 
when proposed, FRA believed no track owner currently utilized this 
exception and the RSAC unanimously voted to remove the exception, so 
FRA concluded its removal would have little to no impact on the 
regulated industry.
    Comments: Despite affirmatively stating during the RSAC proceedings 
that none of their members currently utilize the high-density commuter 
line exception, in response to the NPRM, AAR/ASLRRA provided comments 
stating that the National Railroad Passenger Corporation (Amtrak) 
utilizes the exception in three locations, Penn Station in New York 
City and in the Washington, DC and Boston terminals, and ``[c]ertain 
commuter railroads'' also utilize the exception. AAR/ASLRRA further 
argue that ``Amtrak is concerned that elimination of the exemption 
would result in roadway workers being required to conduct additional 
inspections at high traffic volume locations with narrow track 
centers.'' Consequently, AAR/ASLRRA assert that FRA should not adopt 
this proposal and, instead, study it further.
    Final rule: FRA has considered the new information provided by AAR/
ASLRRA and still concluded that the high-density commuter line 
exception should be removed. FRA finds that the exception is no longer 
justified and it is in the interest of safety that it be removed, based 
on the 2013 Metro-North Bridgeport, CT accident, discussed in greater 
detail in the NPRM (see 84 FR 72530), as well as internal evaluations 
by FRA. Track over which a large number of passengers traverse should 
be inspected at least in the same manner as other types of track. FRA 
notes that the high-density commuter line exception applies only to 
mainline track, so it is likely that any usage by Amtrak in Penn 
Station and the Washington, DC and Boston terminals is very limited. 
Additionally, FRA finds it is highly unlikely that the removal of the 
exception will result in any additional required track inspections 
since track inspectors will still be permitted to inspect tracks 
adjacent to the one they operate over. Inspectors will simply be 
required to alternate which track they traverse so that each track is 
actually traversed every two weeks, instead of always permitting the 
inspection from an adjacent track. This may require those railroads 
utilizing the exception to slightly revise their inspection practices. 
Combined with effective roadway worker protection, this should not 
increase the risk to roadway workers and should improve the quality of 
inspections. Thus, FRA has determined that continuing this exemption is 
not in the interest of safety and the change is adopted as proposed in 
the NPRM.
    Proposed rule: FRA proposed three changes to paragraph (c). First, 
FRA proposed to add the word ``visual'' before ``track inspection'' in 
the introductory text. This was simply to make paragraph (c) consistent 
with the new heading for Sec.  213.233 and would have no effect on the 
meaning of paragraph (c). Second, FRA proposed adding footnote 1 after 
the word ``weekly'' in the table in paragraph (c).

[[Page 63373]]

The proposed footnote defines the term ``weekly'' to be a seven-day 
period beginning on Sunday and ending on Saturday. This definition is 
consistent with FRA's past interpretation and enforcement practice.
    Third, FRA proposed to add footnote 2 after the term ``passenger 
trains'' in the table in paragraph (c). The proposed language was 
suggested to the TSS Working Group by the Rail Heritage Association and 
FRA agrees that it would reduce unnecessary burden on certain regulated 
entities without negatively impacting safety. This proposed footnote 
would exempt, in two situations, entities from the required twice-
weekly inspection requirement for track carrying passenger trains if 
the passenger train service consists solely of tourist, scenic, 
historic, or excursion operations as defined in 49 CFR 238.5. In the 
first situation, this exemption would apply where no passenger service 
is operated over the track during the inspection week. In the second 
situation, this exemption would apply where passenger service is 
operated during the inspection week but only on a weekend (Saturday and 
Sunday) or a 3-day extended weekend (Saturday and Sunday plus either a 
contiguous Monday or Friday) and an inspection is conducted before, but 
not more than one day before, the start of the weekend or 3-day 
extended weekend.
    FRA also proposed to revise paragraph (d). Specifically, FRA 
proposed to add the phrase ``the Sec.  213.7 qualified'' at the 
beginning of the paragraph to clarify that ``the person'' making the 
inspection that the rule text refers to is the qualified track 
inspector designated under Sec.  213.7. Additionally, FRA proposed 
adding a sentence at the end of paragraph (d) stating that any 
subsequent movements to facilitate repairs on track that is out of 
service must be authorized by a Sec.  213.7 qualified person. This 
section is silent as to whether or when movement over track that is out 
of service is permissible. FRA recognizes that certain movements are 
necessary to facilitate repairs and therefore does not interpret or 
enforce the regulatory language to bar such movements of equipment and 
materials on track that is out of service. The proposed revision was 
meant to embody that practice and interpretation and prevent possible 
confusion.
    Comments: FRA received comments supporting one of the proposed 
changes and no adverse comment on any proposed change to paragraph (c) 
or (d).
    Final rule: The changes are adopted as proposed in the NPRM.

Section 213.240 Continuous Rail Testing

    In the NPRM, FRA proposed to add this new section to allow track 
owners to utilize continuous rail testing to satisfy the requirements 
for internal rail inspections under Sec.  213.237 (for track Classes 1-
5), or Sec.  213.339 (for Class 6 track and higher). As explained in 
the NPRM and above, proposed Sec.  213.240 would allow greater 
flexibility in the rail flaw detection process by providing additional 
time to analyze the data collected during continuous rail testing and 
field-verify indications of potential rail flaws. This additional time 
would allow for improvements in planning and execution of rail 
inspections and rail defect remediation, thereby lessening the impact 
on rail operations. As a result, more track time should become 
available to conduct maintenance and increase inspections. However, as 
continuous testing is a more complex process compared to the 
traditional stop-and-verify rail inspection, FRA proposed certain 
requirements related to this elective process to ensure it is conducted 
properly, which include requirements to maintain records that help 
ensure adequate FRA oversight.
    Proposed rule: Proposed paragraph (a) would allow track owners to 
elect to use continuous rail testing instead of complying with Sec.  
213.113(b) (requiring field verification of indications either 
immediately or within 4 hours), provided the track owner complies with 
the minimum requirements of Sec.  213.240. Proposed paragraph (a) also 
makes clear that the track owner must still comply with all other 
requirements of Sec.  213.113 (including remedial action requirements), 
along with the requirements of proposed Sec.  213.240. In other words, 
Sec.  213.240 provides additional time to field-verify a suspect 
location, but once verified, the track owner must take appropriate 
remedial action as described in Sec.  213.113(c).
    Comments: Asserting that FRA has not provided enough data to 
evaluate the safety benefits of the proposed change to rail testing 
procedures, NTSB commented that ``[u]ntil data from continuous rail 
testing can be collected, analyzed, and verified as beneficial to 
safety, the FRA should require that traditional stop-and-verify rail 
inspections'' continue. FRA received additional comments regarding the 
proposal to allow continuous testing and those comments are discussed 
either above in Section IV if they were more general, or below in the 
paragraph that they specifically concern.
    Final rule: As discussed above, and in the NPRM, continuous testing 
has been conducted by multiple railroads under FRA's waiver process for 
over a decade. FRA has reviewed and analyzed the data received from 
those waivers as well as data related to service failures and 
derailments. As noted above, waiver data indicates that as track owners 
have increased their use of continuous rail testing under the waivers, 
they have realized a decrease in broken-rail-caused accidents and an 
increase in overall safety. FRA is confident that it has sufficient 
data and experience supporting continuous testing as beneficial to 
safety. Paragraph (a) is therefore adopted as proposed in the NPRM.
    Proposed rule: Proposed paragraph (b) outlines the minimum 
procedures that a track owner must adopt to conduct continuous rail 
testing under Sec.  213.240. Prior to starting a continuous testing 
program, a track owner must adopt procedures that comply with this 
section. Rail testing is vital to the prevention of track-caused 
accidents, and documented procedures are necessary to ensure continuous 
rail testing works consistently and effectively, and that those 
involved understand their responsibilities and have a resource they can 
consult if they have any questions. These minimum procedures are 
designed to allow each track owner flexibility in determining the best 
approach to conduct continuous testing. Proposed paragraphs (b)(1) 
through (5) would require track owners conducting continuous rail 
testing under Sec.  213.240 to adopt procedures addressing how (1) test 
data would be transmitted and analyzed; (2) suspect locations would be 
identified for field verification; (3) suspect locations would be 
categorized and prioritized according to their potential severity; (4) 
suspect locations would be field-verified; and (5) suspect locations 
would be designated following field verification.
    Comments: NTSB commented that FRA should provide more information 
regarding the specifics of the required minimum procedures. 
Specifically, NTSB states that the ``guidance should discuss the 
transmittal of testing data, and provide procedures for locating and 
validating suspected defects, and managing recordkeeping.''
    With respect to proposed paragraph (b)(4), which would require the 
procedures address how suspect locations would be field-verified, 
BMWED/BRS commented that FRA has failed to articulate what actions must 
be taken should the field verifier be unable to reproduce the defect 
signature and that FRA should require suspect

[[Page 63374]]

locations ``be validated for 60 feet on either side of the suspect 
defect.''
    Final rule: As discussed in more detail below, and in the NPRM, FRA 
has intentionally designed the rule to provide track owners flexibility 
on how to structure their continuous testing procedures, while ensuring 
certain standards are met. Railroad operations are not uniform and 
technology changes. Accordingly, FRA seeks to avoid limiting railroads' 
flexibility to innovate and utilize new technology and approaches as 
they are developed. However, the procedures track owners adopt must 
accomplish their purpose. To make this clear in this final rule, FRA is 
making changes throughout paragraph (b) requiring track owners' minimum 
procedures adopted under 213.240 to ensure accurate data transmittal, 
analysis, and conclusions throughout the entirety of the continuous 
test process. Specifically, FRA is revising proposed paragraph (b)'s 
introductory text and paragraphs (b)(1), (2), and (4).
    First, FRA is revising the last sentence of paragraph (b)'s 
introductory text to specify that a railroad's continuous testing 
procedures must conform with the requirements of Sec.  213.240 and 
ensure the requirements of paragraphs (b)(1) through (5) are met.
    FRA is revising proposed paragraph (b)(1) to specify that a track 
owner's procedures must ensure that test data will be ``timely and 
accurately'' transmitted and analyzed. Procedures that do not 
accomplish the timely and accurate transmittal and analysis of the test 
data will not comply with the requirements of paragraph (b)(1). For 
example, data integrity must be maintained throughout the collection, 
analysis, and verification process, and transmitted in a manner and 
speed sufficient to meet the field-verification timeframes discussed 
below.
    FRA is revising proposed paragraph (b)(2) to make clear that the 
procedures must ensure suspect locations are ``accurately'' identified 
for field verification. Procedures that do not result in the accurate 
identification of suspect locations for field verification will not 
comply with the requirements of this paragraph (b)(2). For example, the 
data must reflect the true position of the suspect location and contain 
sufficient data to allow the field verifier to successfully identify 
the suspect location. With this change, paragraph (b)(2) is adopted as 
proposed in the NPRM.
    FRA is revising proposed paragraph (b)(4) to make clear that the 
procedures must ensure suspect locations are ``accurately'' field-
verified. As explained in more detail in the NPRM, accurate field 
verification is vitally important to continuous testing, and rail 
testing in general, because it is the process by which the track owner 
determines whether a rail defect exists or not, and if so, how serious. 
FRA recognizes, however, that defect signatures will always differ to 
some degree even when the same equipment is used over the same defect. 
That is the nature of the technology. FRA does not intend to require a 
railroad to implement procedures that would ensure field verifiers can 
reproduce exact defect signatures. FRA recognizes this is simply not 
feasible. FRA also believes that requirements adopted in this final 
rule cover this issue by requiring track owners to document suspect 
locations with repeatable accuracy so that they may be located for 
field verification. However, to emphasize the general point discussed 
above (i.e., that the procedures adopted by track owners must 
accomplish their purpose), FRA is revising proposed paragraph (b)(4) to 
make clear that the procedures must address how suspect locations will 
be ``accurately'' field-verified. FRA intends the addition of 
``accurately'' to more clearly convey the requirement. For example, the 
procedures must enable the field verifier to locate the suspect 
location and take appropriate action to determine whether the suspect 
location contains an actual rail defect. Procedures that do not 
accomplish the accurate field verification of a suspect location, which 
would implicitly also require accurately locating that suspect 
location, will not comply with the requirements of Sec.  213.240(b)(4).
    FRA disagrees with BMWED/BRS's comment that it is necessary to 
require a track owner validate each suspect location for 60 feet on 
either side. Paragraph (b)(4) requires the track owner have procedures 
for the effective and accurate field verification of a suspect 
location. Additionally, paragraph (f) of this section, discussed below, 
requires that track owners record suspect locations with repeatable 
accuracy that allows for the location to be accurately located for 
subsequent verification. Requiring each suspect location to be 
validated for 60 feet on each side would be redundant and would create 
a substantial amount of extra, unnecessary work. Additionally, because 
such a condition would apply only to track owners conducting continuous 
testing, it would serve as a significant disincentive for railroads to 
adopt continuous rail testing, because it would apply only to 
continuous testing and not tradition stop-and-verify testing. Paragraph 
(b)(4) is therefore adopted as proposed in the NPRM, with the change 
noted above.
    Proposed rule: Proposed paragraph (c) would require the track owner 
to designate and record the type of rail test to be conducted, whether 
continuous or stop-and-verify, prior to commencing the testing. As 
proposed, track owners could elect to conduct continuous testing in 
conjunction with stop-and-verify rail testing, but a determination 
would need to be made prior to commencement of the test as to which 
type of test will be conducted on a given section of track. The 
decision as to what type of test is being conducted on a given section 
of track must be properly documented to ensure that the effectiveness 
of the inspection can be adequately evaluated for efficacy and 
reporting requirements. If the type of rail testing changes after the 
test has commenced, FRA proposed to require the track owner to document 
that change, including the time the test was initially started, the 
time it was changed, the milepost where the test started, the milepost 
where the test changed, and the reason for the change. As proposed, 
these records would need to be made available to FRA upon request 
during regular business hours following reasonable notice. To conduct 
oversight and ensure safety, FRA must know the type of test utilized on 
a section of track, because the type of test will dictate both the 
necessary procedures and, more importantly, the required time period 
for field verification of any suspected defects identified.
    Additionally, proposed paragraph (c) would require a track owner to 
designate and document, at least 10 days prior to commencing a 
continuous rail test, whether the test is being conducted to satisfy 
the requirement for an internal rail inspection under Sec.  213.237 or 
Sec.  213.339. As discussed in greater detail above, track owners are 
required to conduct a sufficient number of internal rail inspections to 
satisfy the requirements of Sec.  213.237 or Sec.  213.339. Under FRA's 
proposal, a continuous rail test conducted to meet the minimum number 
of required internal rail inspections would need to comply with Sec.  
213.240, including the field-verification requirements under paragraph 
(e). Track owners are, of course, permitted to conduct continuous rail 
tests above and beyond the minimum requirements of Sec.  213.237 or 
Sec.  213.339. As proposed, those additional rail tests (that are not 
intended to meet the minimum number required by Sec.  213.237 or Sec.  
213.339) would not be

[[Page 63375]]

required to meet the field-verification timeframe requirements of Sec.  
213.240, and the track owner therefore cannot rely on such tests to 
demonstrate compliance with either Sec.  213.237 or Sec.  213.339. As 
proposed, the track owner must designate and record whether the test is 
being conducted to satisfy the minimum frequency requirements of Sec.  
213.237 or Sec.  213.339, at least 10 days in advance of the test to 
allow FRA the opportunity to oversee the testing and ensure the proper 
procedures are being followed.
    Comments: AAR/ASLRRA request two changes to the proposed rule. 
First, AAR/ASLRRA state that the proposed 10-day advance designation of 
whether a continuous test is being conducted to satisfy the minimum 
frequency requirements of Sec.  213.237, or Sec.  213.339, ``may 
actually detract from safety by preventing a continuous test run from 
occurring when an opportunity to conduct such testing arises within the 
ten-day window.'' Accordingly, AAR/ASLRRA asks that FRA remove the 
proposed requirement. Second, AAR/ASLRRA oppose the requirement that, 
when the type of test (continuous or stop-and-verify) changes after a 
test commences, the track owner must document the reason for the 
change. AAR/ASLRRA contend that ``the reason a track owner may decide 
to change a test may be a result of a business decision not within 
FRA's regulatory purview,'' and that the ``proposal appears to serve no 
required safety purpose.'' Finally, AAR/ASLRRA comment on the use of 
the term ``reasonable notice,'' which is discussed in more detail in 
the section-by-section analysis for Sec.  213.7, above.
    Final rule: Whether a continuous test is done to satisfy the 
inspection frequency required under this part affects what procedures 
the track owner must follow. Thus, for FRA to conduct effective 
oversight, and for track owner inspection personnel to know what 
procedures apply, the track owner must articulate whether the test is 
being conducted to satisfy the inspection frequency required under part 
213. However, FRA agrees that the 10 days' advance notice is 
unnecessary and could prevent a track owner from conducting a 
continuous test if the equipment becomes available within the 10-day 
window. Thus, FRA is not adopting the 10-day notice requirement and 
instead will require that the track owner designate the type of test 
prior to the start of the test. This revision will ensure that FRA and 
track owner personnel know whether the procedures required under this 
part apply to the test, while addressing AAR/ASLRRA's concern regarding 
advanced notice.
    As for the proposed requirement that a track owner document the 
reason for a change in the type of test after commencing the rail test, 
although FRA does not believe it is burdensome, FRA agrees that the 
information is not vital to FRA's ability to conduct oversight and 
ensure safety. Accordingly, FRA is not adopting the proposed 
requirement that a track owner document the reason for such a change. 
However, the track owner must document the change and include the time 
the test was started and when it changed, and the milepost where the 
test started and where it was changed. Further, if a track owner 
switches from a continuous rail test to a stop-and-verify test, 
regardless of whether the continuous rail test was being conducted to 
satisfy the minimum frequency requirements of Sec.  213.237, or Sec.  
213.339 where applicable, all requirements of Sec.  213.113 will 
immediately apply and any suspect locations found during the stop-and-
verify test must be field-verified within 4 hours.
    See the section-by-section analysis for Sec.  213.7 for FRA's 
response to AAR/ASLRRA's comment regarding the use of the term 
``reasonable notice.'' Paragraph (c) is adopted as proposed in the 
NPRM, with the changes noted above.
    Proposed rule: Proposed paragraph (d) lists required qualifications 
for certain persons involved in key aspects of the continuous testing 
program. Proposed paragraph (d)(1) would require operators of 
continuous rail test vehicles be qualified under Sec.  213.238. Section 
213.238 lists the qualification requirements for operators of rail test 
vehicles conducting stop-and-verify rail testing. FRA proposed that the 
same qualification requirements apply to operators of continuous test 
vehicles, stating that, like operators of stop-and-verify test 
vehicles, operators of continuous test vehicles must ensure that the 
vehicles conduct a valid search and function as intended, and be 
capable of interpreting relevant equipment responses and determining 
that a continuous, valid search has been conducted.
    Comments: Herzog Services, Inc. asserts that ``the data collection 
phase of the Continuous Test Process only requires an operator whose 
sole function is to ensure the test equipment is functioning properly, 
and that a valid search for internal defects is being conducted.'' 
Herzog goes on to state that the ``operator is not performing 
interpretation of the test data for the purpose of identifying a 
suspect defect location,'' and that accordingly, the operator need not 
be qualified under all elements of Sec.  213.238(b), specifically, 
Herzog asserts that a continuous rail test inspection vehicle operator 
should not be required to be qualified under Sec.  213.238(b)(3), which 
requires the operator be trained to ``[i]nterpret equipment responses 
and institute appropriate action in accordance with the employer's 
procedures and instructions.''
    Final rule: FRA generally agrees with Herzog's comment and, in this 
final rule, is revising paragraph (d)(1) to require the continuous rail 
test inspection vehicle operator be qualified under Sec.  213.238, with 
the exception of Sec.  213.238(b)(3). However, FRA makes clear that if 
the operator of a continuous rail test inspection vehicle is not fully 
qualified under Sec.  213.238, including Sec.  213.238(b)(3), then it 
will not be possible for that inspection to change from a continuous 
test to a stop-and-verify test, because the operator will not be 
qualified under Sec.  213.238 to conduct a stop-and-verify test. 
Paragraph (d)(1) is adopted as proposed in the NPRM, with the changes 
noted above.
    Proposed rule: Proposed paragraph (d)(2) would require that the 
internal rail inspection data be reviewed and interpreted by a person 
qualified to interpret the equipment responses. FRA intentionally did 
not propose specific qualification requirements but instead proposed to 
leave it up to the track owner to ensure the necessary procedures are 
in place for its specific system so that the persons reviewing and 
interpreting the data have been properly trained and tested. As noted 
in the NPRM, an analyst may not necessarily need to have intimate 
knowledge of the inner workings of the test equipment, but must be 
trained on how to properly assess the equipment responses, to determine 
when a possible rail defect exists and field verification is necessary. 
Accordingly, the track owner or a designee must have a process in place 
to ensure all persons responsible for the interpretation of the data 
are competent and capable of that task. By using the word 
``qualified,'' FRA does not simply mean that the track owner has 
designated an individual as qualified. To be ``qualified,'' the person 
must be properly trained and tested, and thus possess the necessary 
knowledge and ability to accurately and competently review and 
interpret the rail test data and properly identify suspected rail 
defects.
    Comments: FRA received no comments on this proposal.
    Final rule: After further review of the proposed language, FRA 
realizes that by

[[Page 63376]]

not incorporating specific training requirements such as in Sec.  
213.238 and instead giving track owners flexibility in how to train and 
qualify, there is no express requirement that the track owner provide 
relevant training and qualification records to FRA upon request. 
Although FRA recognizes that track owners would likely maintain records 
of operators' qualifications to demonstrate compliance with the rule, 
without such a requirement, FRA would not be able to provide any 
meaningful oversight of proposed paragraph (d)'s requirement that 
operators be qualified to interpret the equipment responses. 
Accordingly, in adopting paragraph (d)(2), FRA is including the 
following language:

    Each employer of a person qualified to interpret equipment 
responses shall maintain written or electronic records of each 
qualification in effect, including the name of the employee, the 
equipment to which the qualification applies, the date of 
qualification, and the date of the most recent reevaluation of the 
qualification, if any. Records concerning these qualifications, 
including copies of training programs, training materials, and 
recorded examinations, shall be kept at a location designated by the 
employer and available for inspection and copying by FRA during 
regular business hours, following reasonable notice.

    This language is consistent with the current requirements of Sec.  
213.238. See the section-by-section analysis for Sec.  213.7 above, for 
FRA's response to AAR/ASLRRA's comment regarding the use of the term 
``reasonable notice.'' Paragraph (d)(2) is adopted as proposed in the 
NPRM, with the changes noted above.
    Proposed rule: Proposed paragraph (d)(3) would require that all 
suspected locations be field-verified by a person qualified under Sec.  
213.238. FRA is aware that this is the same qualification required for 
continuous test vehicle operators and believes that an understanding of 
the vehicle's systems is necessary to understand the test data 
accurately, find the suspected location, and field-verify the suspected 
defect successfully.
    Comments: BMWED/BRS assert that track owners should be required to 
``maintain and make available to FRA training records identifying 
persons qualified to perform field-verification tests, the basis for 
such qualifications, and the type(s) of field-verification instruments 
they are qualified to operate.''
    Final rule: As proposed, paragraph (d)(3) would already require 
that persons conducting field verification be qualified under Sec.  
213.238. Section 213.238(g) itself requires that track owners make 
qualification and training records available to FRA, and Sec.  
213.238(e) requires that track owners keep a list of each qualification 
in effect, including the name of the employee, the equipment to which 
the qualification applies, the date of qualification, and the date of 
the most recent reevaluation. FRA expects that the referenced 
qualification requirements are sufficient to allow proper oversight and 
ensure safety. Accordingly, paragraph (d)(3) is adopted as proposed in 
the NPRM.
    Proposed rule: Proposed paragraph (e) would require that the 
continuous test process, at a minimum, produce a report containing a 
systematic listing of all suspected locations that may contain any 
defect listed in the Remedial Action Table. The suspect location must 
be identified with sufficient information so that a qualified person 
under Sec.  213.238 can locate and field-verify each suspected defect 
accurately. FRA intentionally did not prescribe how a suspect location 
is identified and proposed to leave it up to the track owner because 
the identification process may be affected by specific circumstances 
facing each track owner.
    FRA notes that when proposed paragraph (e) is read in conjunction 
with proposed paragraphs (b)(2) and (f), the suspect location must be 
identified and recorded in a manner that allows the qualified person 
under Sec.  213.238 to locate the suspect location with repeatable 
accuracy. This could include using Global Positioning System (GPS) 
coordinates, but for locations where GPS does not work, such as 
tunnels, the track owner must have another procedure in place to 
accurately identify the exact location of the suspected defects. FRA 
also recognizes that the locations likely cannot be listed with perfect 
accuracy and that there must be some acceptable margin of error. 
Although FRA does not quantify the exact size of an allowable margin of 
error, it cannot be of a size that would affect the ability of the 
qualified person under Sec.  213.238 to locate the suspected defect 
noted on the report accurately. For example, if the margin of error is 
too large, there is a risk that the qualified person may confuse the 
suspected defect noted on the report with another condition present in 
or on the rail in the vicinity of the actual suspected defect.
    Comments: FRA received no comments on this proposed change.
    Final rule: Paragraph (e) is adopted as proposed in the NPRM.
    Proposed rule: Proposed paragraphs (e)(1) and (2) contain specific 
timeframes in which field verification of suspected locations must be 
conducted. For purposes of the verification timeframes, the indications 
are classified into two categories: Those suspected defects that, if 
verified, would require remedial action note ``A,'' ``A2,'' or ``B'' in 
the Remedial Action Table (addressed in proposed paragraph (e)(2)); and 
all other defects (addressed in proposed paragraph (e)(1)). 
Additionally, under proposed paragraph (e)(3), indications of a 
possible broken rail with rail separation must be protected 
immediately. Proposed paragraph (e)(1) would require, subject to the 
requirements of proposed paragraphs (e)(2) and (3), that the track 
owner field-verify any suspect location within 72 hours after 
completing the test run, or within 84 hours of the detection of the 
suspect location, whichever is earlier. This, along with proposed 
paragraphs (e)(2) and (3), would take the place of the current 
requirement that suspect locations be field-verified within 4 hours. 
Proposed paragraph (e)(1) would apply to any suspect location that does 
not indicate a broken rail with rail separation or indicate a suspected 
defect that, if verified, requires remedial action note ``A,'' ``A2,'' 
or ``B'' under the Remedial Action Table. In other words, this proposed 
paragraph would apply to suspected defects that pose less of an 
immediate safety risk than the ones covered in proposed paragraphs 
(e)(2) and (3).
    Comments: FRA received multiple comments on this proposal. AAR/
ASLRRA assert that having two different time periods ``presents 
tracking issues that would be difficult and burdensome for railroads to 
monitor and would introduce unnecessary confusion regarding whether the 
appropriate time permitted for field verification was met.'' BMWED/BRS 
further comment that ``completion of the test run'' is ambiguous and 
FRA should ``provide a clear and unambiguous definition as to when that 
is.'' For their part, AAR/ASLRRA advocate that track owners have 84 
hours from the completion of the test run for field verification.
    NTSB comments that the proposed field-verification timeframe could 
allow ``certain hazardous rail defects . . . to go `unverified' for 
longer than 12 hours,'' presenting a ``public safety concern'' and 
states that FRA should enact ``[p]rocedures for mitigating risks.'' 
Likewise, the Chemical, Energy, and Agricultural Trade Associations 
comment that they ``are concerned that the proposed revisions, 
particularly the extension of the verification timeframes could lead to 
a scenario where fatal flaws remained unaddressed and subject trains to 
potential derailments.''

[[Page 63377]]

    Finally, Herzog notes a typographical error in proposed paragraph 
(e)(1) wherein it references paragraphs (c)(2) and (3) when it should 
reference paragraphs (e)(2) and (3). Additionally, Herzog requests that 
FRA use the term ``indication'' as opposed to ``detection'' in 
paragraph (e)(1) because the ``collection vehicle is only collecting 
the test data and the location is an `indication' at that time.''
    Final rule: In adopting this paragraph (e)(1) in the final rule, 
FRA has corrected the inadvertent typographical error so that paragraph 
(e)(1) references paragraphs (e)(2) and (3). FRA also agrees that 
``indication'' is a more suitable term than ``detection'' and has 
changed paragraph (e)(1) accordingly. FRA makes clear that a track 
owner receives the indication of the suspect location, for purposes of 
the field-verification timeframe, when the collection vehicle passes 
over the suspect location.
    FRA agrees that use of a single time period may allow track owners 
to more efficiently and accurately track when a suspect location must 
be field-verified without negatively impacting safety. However, FRA 
does not agree that this time period should begin upon completion of 
the test run, because ``completion of the test run'' could be hard to 
define and raises the possibility that a test run could continue for a 
lengthy and unpredictable period, potentially resulting in the field-
verification clock not starting until after a significant period of 
time passes. In this final rule, FRA is instead adopting a single 
timeframe that requires suspect locations be field-verified within 84 
hours of their indication, i.e., when the collection vehicle passes 
over the suspect location. This change will address the concern raised 
about the different proposed timeframes while also ensuring that 
suspect locations are field-verified within a defined period of time 
that is not fluid or dependent on when a test run may end, thereby 
addressing possible ambiguity as to the meaning of ``completion of the 
test run.''
    As for the concerns raised by NTSB and the Chemical, Energy, and 
Agricultural Trade Associations, as explained in greater detail above 
and in the NPRM (see 84 FR 72528-30), FRA has trialed continuous rail 
testing under the waiver process for over a decade and the regulatory 
changes adopted here are based on the lessons learned and procedures 
used under the waiver process. FRA is confident, based on the data and 
experience gained from those waivers, that the field-verification 
timeframes adopted here are sufficient to ensure safety.
    Finally, in adopting paragraph (e)(1), FRA is adding ``Except as 
provided in paragraph (e)(6) of this section'' to the beginning of the 
paragraph. This change is meant to account for the addition of 
paragraph (e)(6), discussed below, codifying the interpretation 
articulated in the NPRM preamble that the applicable timeframes for 
field verification apply only to continuous rail tests conducted to 
meet the minimum inspection frequency required by Sec.  213.237, or 
Sec.  213.339 where applicable. Paragraph (e)(1) is adopted as proposed 
in the NPRM, with the changes noted above.
    Proposed rule: Proposed paragraph (e)(2) would require that any 
suspect location containing a suspected defect that, if verified, would 
require remedial action note ``A,'' ``A2,'' or ``B'' under the Remedial 
Action Table be field-verified no more than 24 hours after completion 
of the test run, or 36 hours after detection of the suspect location, 
whichever is earlier. The remedial action need not be the only required 
remedial action, just one of those cited. Thus, if remedial action note 
``A,'' ``A2,'' or ``B'' is cited in the remedial action column (the 
last column) of the Remedial Action Table, the defects associated with 
those remedial actions would be covered under proposed paragraph (e)(2) 
and any suspect location possibly containing one of those defects must 
be field-verified within the time required by proposed paragraph 
(e)(2). Based on the table in Sec.  213.113(c), the covered defects 
include:
     All compound fissures;
     Transverse fissures 60 percent or greater;
     Detail fractures 60 percent or greater;
     Engine burn fractures 60 percent or greater;
     Defective welds 60 percent or greater;
     Horizontal split head greater than 4 inches or where there 
is a break out in the rail head;
     Vertical split head greater than 4 inches or where there 
is a break out in the rail head;
     Split web greater than 4 inches or where there is a break 
out in the rail head;
     Piped rail greater than 4 inches or where there is a break 
out in the rail head;
     Head web separation greater than 4 inches or where there 
is a break out in the rail head;
     Defective weld greater than 4 inches or where there is a 
break out in the rail head;
     Bolt hole crack greater than 1.5 inches or where there is 
a break out in the rail head;
     Broken base greater than 6 inches; and
     Ordinary breaks.
    Comments: The same comments discussed above for paragraph (e)(1) 
are applicable here. See the above summary.
    Final rule: Please see the relevant FRA responses to the comments 
above on paragraph (e)(1). For the reasons discussed above, in adopting 
the final rule, paragraph (e)(2) uses the term ``indication'' instead 
of ``detection''; does not reference ``completion of the test run''; 
and requires field verification within 36 hours of the indication, 
i.e., within 36 hours of the collection car passing over the suspect 
location.
    Consistent with the change in paragraph (e)(1), FRA is also making 
an additional change by adding ``Except as provided in paragraph (e)(6) 
of this section'' to the beginning of paragraph (e)(2). This change is 
meant to account for the addition of paragraph (e)(6), discussed below, 
codifying the interpretation articulated in the NPRM preamble that the 
applicable timeframes for field verification apply only to continuous 
rail tests conducted to meet the minimum number required by Sec.  
213.237, or Sec.  213.339 where applicable. Finally, FRA is making a 
further change by adding ``and subject to the requirement of paragraph 
(e)(3)'' to make paragraph (e)(2) clearer and consistent with (e)(1). 
Paragraph (e)(2) is adopted as proposed in the NPRM, with the changes 
noted above.
    Proposed rule: Proposed paragraph (e)(3) would require that track 
owners have procedures in place to ensure adequate protection is 
immediately implemented when continuous rail test inspection vehicles 
indicate a possible broken rail with rail separation. As explained in 
the NPRM, FRA intentionally does not specify what needs to be included 
in the procedures but expects the track owners to determine what is 
appropriate for their individual operations. At a minimum, these 
procedures would need to include specific communication channels, open 
at all times continuous rail testing is conducted and data is being 
analyzed, among the personnel who can take the necessary steps to 
implement adequate protection immediately. A track owner may not wait 
until the suspected broken rail with rail separation is field-verified. 
The visual indication received by the analyst alone is sufficient.
    Comments: FRA received no comments on this proposed change.

[[Page 63378]]

    Final rule: Paragraph (e)(3) is adopted as proposed in the NPRM.
    Proposed rule: Proposed paragraph (e)(4) states that a suspect 
location is not considered an actual rail defect under Sec.  213.113(c) 
until it has been field-verified by a person qualified under Sec.  
213.238. Thus, as proposed, a track owner would not be required to 
implement the remedial actions listed in the Remedial Action Table 
until a suspect location is field-verified, or, as provided in proposed 
paragraph (e)(5), the required time period to conduct field 
verification has elapsed. Proposed paragraph (e)(4) goes on to state 
that once a suspect location is field-verified and determined to be a 
defect, the track owner must immediately perform all remedial actions 
required by Sec.  213.113(a).
    Comments: FRA received no comments on this proposed change.
    Final rule: FRA notes that the inclusion of paragraph (e)(4) is 
simply the codification of an existing FRA interpretation regarding 
rail inspections. Under Sec.  213.113, an indication of a suspect 
location is not considered a defect, and thus the track owner is not 
required to take remedial action, until the suspect location is field-
verified and an actual defect is found. Paragraph (e)(4) is adopted as 
proposed in the NPRM.
    Proposed rule: Under proposed paragraph (e)(5), if a suspect 
location is not field-verified within the time required by proposed 
paragraph (e)(1) or (2), it must be immediately protected by applying 
the most restrictive remedial action in the Remedial Action Table for 
the suspected type and size of the suspected defect. The protection 
must cover a sufficient segment of track to assure coverage of the 
suspected location until field verification. Thus, if the size of a 
defect is not immediately clear, the protection must provide a safety 
margin and cover a larger segment of track to ensure the limits of the 
suspected defect are included in the protection.
    Comments: FRA received no comments on this proposed change.
    Final rule: Paragraph (e)(5) is adopted as proposed in the NPRM.
    Proposed rule: In the NPRM preamble, FRA stated that a continuous 
rail test conducted to meet the minimum number of required internal 
rail inspections under Sec.  213.237, or Sec.  213.339 where 
applicable, also called regulatory tests, must comply with Sec.  
213.240. FRA further explained that continuous rail tests conducted 
above and beyond the minimum frequency requirements of Sec.  213.237, 
or Sec.  213.339 where applicable, or on track not required to be 
tested under Sec.  213.237, or Sec.  213.339 where applicable, i.e., 
non-regulatory tests, are not required to meet all requirements of 
Sec.  213.240.
    Comments: BMWED/BRS assert there should be no difference between 
the rules applicable to regulatory and non-regulatory tests. According 
to BMWED/BRS, time limits for remedial action, field verification, and 
inspection records should apply to every continuous test regardless 
whether it is conducted to meet the minimum number of required internal 
rail inspections under Sec.  213.237, or Sec.  213.339 where 
applicable. BMWED/BRS contend that not requiring non-regulatory tests 
to comply with Sec.  213.240 means that track owners ``will be given 
`carte blanche' by FRA to delay verification and protection of 
suspected rail defects indefinitely.''
    AAR/ASLRRA request clarification on FRA's discussion in the NPRM on 
regulatory and non-regulatory tests. AAR/ASLRRA ``understand this to 
mean that when track owners proactively choose to conduct additional 
continuous tests that are not intended to fulfill the Federally 
required [track safety standards (TSS)] inspection requirements, that 
associated TSS testing intervals and deadlines, and data collection and 
other administrative requirements do not apply to the conduct of those 
tests.''
    In addition, NTSB believes that the proposed regulatory text may 
not accomplish what FRA intended by its preamble discussion, stating 
that proposed Sec.  213.240 would only exempt track owners from the 4-
hour field-verification timeframe in Sec.  213.113(b) if the continuous 
test is conducted under the procedures listed in Sec.  213.240.
    Final rule: FRA agrees with NTSB that the proposed rule, as 
written, may not accomplish effectively what was intended. Thus, FRA is 
adding paragraph (e)(6), which states: ``A continuous rail test that is 
not conducted to satisfy the requirements for an internal rail 
inspection under Sec.  213.237, or Sec.  213.339 if applicable, and has 
been properly designated and recorded by the track owner under 
paragraph (c) of this section, is exempt from the requirements of 
paragraphs (e)(1), (2), and (5) of this section.''
    This new paragraph also responds to the comment submitted by AAR/
ASLRRA. A non-regulatory test is exempt only from the required 
timeframes for field verification. The track owner must still comply 
with all other regulatory requirements under this part, including 
recordkeeping, data collection, procedural, and reporting requirements.
    FRA agrees with BMWED/BRS that the time limits for implementing 
remedial actions under Sec.  213.113(a) apply to all tests, whether 
regulatory or non-regulatory, once a suspect location is field-verified 
and a defect is found. However, FRA does not agree that such suspect 
locations identified during non-regulatory tests should be subject to 
the same field-verification timeframes. Doing so would create a 
disincentive for track owners to conduct continuous tests above and 
beyond the minimum requirements, including on track where rail 
inspections are not required, such as yard track. Further, by not 
imposing the rule's field-verification timeframes on suspect locations 
found during non-regulatory tests, track owners have greater 
flexibility to prioritize field verification of suspect locations that 
pose a higher risk of derailment. Although the final rule allows track 
owners to leave some suspected defects in certain track, FRA expects it 
will result in track owners conducting tests where they otherwise would 
not, and ultimately result in more rail defects being found and 
remediated. Accordingly, paragraph (e)(6) is adopted as stated above.
    Proposed rule: Proposed paragraph (f) would require each suspect 
location be recorded with repeatable accuracy so that the location can 
be accurately located for subsequent field verification and remedial 
action. As the continuous testing process allows track owners to 
conduct field verifications well after the inspection equipment 
traverses a track segment, it is critical that each suspect location be 
dependably and accurately identified. Recording each suspect location 
with this repeatable accuracy is a cornerstone of the entire process, 
and can be accomplished through a variety or combination of methods, 
including use of GPS and measuring from known reference points. When 
GPS is used, procedures must be adopted that allow field-verifiers to 
accurately find those suspect locations in areas where the signals for 
GPS are compromised or otherwise rendered unreliable, such as in 
tunnels, cut sections, or near buildings. When determining the 
appropriate procedures to follow, track owners should be particularly 
mindful of scenarios in which GPS is unreliable and few track features 
exist for reference, such as can result from some rail that is rolled 
in weld-free segments that exceed one-tenth of a mile in length.
    Comments: FRA received no comments on this proposed change.
    Final rule: Paragraph (f) is adopted as proposed in the NPRM.

[[Page 63379]]

    Proposed rule: Proposed paragraph (g) would require track owners 
utilizing continuous rail testing to submit an annual report to the FRA 
Associate Administrator for Railroad Safety/Chief Safety Officer no 
later than 45 days following the end of each calendar year. This would 
apply only to track owners that have conducted continuous rail testing 
under Sec.  213.240 within the previous calendar year. Continuous 
testing programs have been trialed through temporary waivers granted to 
several railroads throughout the country; however, it is important to 
continue monitoring the overall impacts and efficacy of the process. 
This proposed reporting requirement is designed to provide sufficient 
data to enable a comparison of the results and effectiveness of 
continuous rail testing to the results and effectiveness of inspections 
by track owners not utilizing continuous rail testing. The annual 
report will also allow FRA to monitor the effectiveness of individual 
track owners' specific continuous testing processes and programs, and 
compare results on a micro level for specific track owners. Further, as 
innovation and technology evolve, it is critical to the success of the 
safety improvement process to collect and analyze this data for 
positive trend exploration.
    FRA will use the data provided in each track owner's annual report 
to match service failure rates with testing frequencies to estimate the 
correlation between increased testing frequencies to the accident rate. 
This will help confirm that the anticipated safety improvements are 
realized. In addition, FRA intends to utilize traditional and new 
methods of analysis to, among other things, study defect risk and track 
health and will share data with the track owners to inform continuous 
process improvement, as was done during the waiver process for 
continuous rail testing. The information should also serve as valuable 
input to FRA's ongoing research on potential commonalities in rail 
geometry and rail defect growth patterns, to aid the industry in its 
continuous effort to mitigate the risk of track-caused derailments.
    The annual report must be in a reasonably usable format, or its 
native electronic format, and contain at least all the information 
required by proposed paragraphs (g)(1) through (10) for each track 
segment requiring internal rail inspection under either Sec.  213.237 
or Sec.  213.339. Specifically, the submission must include the track 
owner's name ((g)(1)); the name of the railroad division and 
subdivision ((g)(2)); the segment identifier, milepost limits, and 
length of each segment ((g)(3)); the track number ((g)(4)); the class 
of track ((g)(5)); the annual million gross tons over that segment of 
track ((g)(6)); the total number of internal rail tests conducted over 
each track ((g)(7)); the type of internal rail test conducted on the 
segment, whether continuous rail test or stop-and-verify ((g)(8)); and 
the total number of defects identified over each track segment 
((g)(9)), which would include only the defects that have been field-
verified and determined to be actual defects. Proposed paragraph 
(g)(10) would also require the total number of service failures on each 
track segment.
    This information is necessary for FRA to ensure safe operations and 
monitor the effectiveness of continuous rail testing and the 
requirements of this regulation. For FRA to fulfill its 
responsibilities to oversee railroad safety and the implementation of 
continuous testing, the agency must receive sufficient data to 
effectively perform its functions, while not placing undue burden on 
the industry. Accordingly, the annual reporting requirement is intended 
to provide FRA with information needed to ensure that the continuous 
testing process is consistently carried out in a proper manner.
    Comments: AAR/ASLRRA ask for clarification on the intended meaning 
of ``service failure'' as used in proposed paragraph (g)(10) and 
whether it is meant to be defined the same as in Sec.  213.237(j)(3). 
In commenting, NTSB asserts that ``to more effectively monitor the 
programs, the proposed regulation should require separately listing the 
quantity of each type of internal rail test on each segment.'' NTSB 
also suggests the regulation include ``[p]rocedures for monitoring rail 
inspection program,'' indicating that allowance of ``multiple rail 
inspection processes on a given segment in a given year . . . could be 
more complex to monitor.''
    Final rule: FRA is confident the annual reporting requirement under 
paragraph (g), together with FRA's general oversight authority, is 
sufficient to monitor the safety and effectiveness of track owners' 
rail inspection programs. FRA agrees that requiring a listing of the 
quantity and type of each rail inspection on a segment is vitally 
important information and proposed paragraphs (g)(7) and (8) to 
accomplish that. To make this intent clearer, FRA is combining proposed 
paragraphs (g)(7) and (8) into paragraph (g)(7) to read: ``The total 
number of stop-and-verify rail tests and the total number of continuous 
rail tests over each track segment.'' In conformance with this change, 
FRA has renumbered proposed paragraphs (g)(9) and (10) as paragraphs 
(g)(8) and (9) in this final rule.
    Finally, FRA confirms the term ``service failure'' as used in 
proposed paragraph (g)(10), now paragraph (g)(9), is intended to have 
the same meaning as in Sec.  213.237(j)(3). Paragraph (g) is adopted as 
proposed in the NPRM, with the changes noted above.

Section 213.241 Inspection Records

    Proposed rule: Section 213.241 requires track owners to keep a 
record of each inspection required to be performed under part 213, 
subpart F. Paragraph (b) of this section requires that each record of 
inspection under certain sections include specific information, be 
prepared on the day the inspection is made, and be signed by the person 
making the inspection. FRA proposed revising paragraph (b) by adding 
Sec.  213.137 to those enumerated sections for which inspection records 
must comply with the requirements of paragraph (b), because of the 
incorporation of the waiver allowing the use of FBFs. One of the 
proposed requirements for the use of FBFs under Sec.  213.137(e)(3) is 
that they must be inspected at specific intervals, records of which 
must be kept and comply with Sec.  213.241(b).
    FRA also proposed adding the phrase ``or otherwise certified'' 
after ``signed'' in paragraph (b), and thus require that records be 
``signed or otherwise certified by the person making the inspection.'' 
This is meant to clarify that a record does not have to be physically 
signed by the person making the inspection. The track owner can choose 
to use other methods to allow an inspector to certify an inspection 
record, provided the method chosen accurately and securely identifies 
the person making the inspection. Further, FRA proposed adding three 
elements to the list of information that must be included in an 
inspection record: The author of the record, the type of track 
inspected, and the location of the inspection. FRA expects this 
information is already included in most, if not all, of the inspection 
records currently prepared by the railroad industry. The proposal is 
therefore intended to emphasize the importance of this information and 
should have little, if any, impact on recordkeeping practices. The 
remaining edits to paragraph (b) are simply technical edits that have 
no effect on the intent of the paragraph. Specifically, FRA would 
change ``owner'' to ``track owner'' at the beginning of the last two 
sentences, remove ``either'' before the word ``maintained'' in the last 
sentence,

[[Page 63380]]

and change ``10 days notice'' to ``10 days' notice.''
    Comments: FRA received no comments on the proposed changes to 
paragraph (b).
    Final rule: FRA is not adopting the proposed reference to Sec.  
213.137 in Sec.  213.241(b). FRA had originally considered adopting the 
increased inspection frequency for FBFs included in the long-standing 
waiver but decided against that approach. Because FBFs are inspected in 
the same manner as other frogs in this final rule, a reference to Sec.  
213.137 is not needed. Section 213.241(b) is adopted as proposed in the 
NPRM, with the change noted above.
    Proposed rule: FRA proposed revising paragraph (f) and 
redesignating it as paragraph (i) and adding new paragraph (f). 
Proposed paragraph (f) would list the recordkeeping requirements for 
continuous testing performed under Sec.  213.240. These are similar to 
the current recordkeeping requirements for internal rail inspections 
conducted under Sec.  213.237. Proposed paragraph (f)(1) would require 
the track owner's continuous rail testing records include all 
information required under Sec.  213.240(e). Broadly, this would 
require the track owner to produce a report containing a systematic 
listing of all suspected locations, and is explained in greater detail 
above. Proposed paragraph (f)(2) would require that the records state 
whether the test is being conducted to satisfy the requirements for an 
internal rail inspection under Sec.  213.237. As discussed in more 
detail above, this is necessary information because it is relevant to 
whether the track owner must comply with the field-verification time 
limits in Sec.  213.240(e). Proposed paragraph (f)(3) would require 
that the continuous rail testing records include the date and time of 
the beginning and end of each continuous test run, as well as the date 
and time each suspect location was identified and field-verified. 
Proposed paragraph (f)(4) would require that the continuous testing 
records include the determination made for each suspect location after 
field verification (including, at a minimum, the location and type of 
defect, the size of the defect, and the initial remedial action taken, 
if required, and the date of that remedial action). Finally, proposed 
paragraph (f)(5) would require that these records be kept for two years 
from the date of the inspection, or one year after initial remedial 
action, whichever is later.
    Comments: FRA received no comments on these proposed changes.
    Final rule: Paragraph (f) is adopted as proposed in the NPRM.
    Proposed rule: Proposed paragraph (g) is similar to paragraph (e). 
As proposed, the paragraph would require any track owner that elects to 
conduct continuous testing under Sec.  213.240 to maintain records 
sufficient for monitoring and determining compliance with all 
applicable regulations and make those records available to FRA during 
regular business hours following reasonable notice. For example, as 
proposed, a track owner must keep sufficient records of procedures 
developed to comply with Sec.  213.240(b), as well as qualification 
procedures under Sec.  213.238. The meaning of the term ``reasonable 
notice'' would depend on the specific facts of each situation (e.g., 
time of day, day of the week, number of records requested, etc.).
    Comments: AAR/ASLRRA's comment on the use of the term ``reasonable 
notice'' is discussed in more detail in the section-by-section analysis 
for Sec.  213.7, above.
    Final rule: See the section-by-section analysis for Sec.  213.7 for 
FRA's response to AAR/ASLRRA's comment regarding the use of the term 
``reasonable notice.'' Paragraph (g) is adopted as proposed in the 
NPRM.
    Proposed rule: Proposed paragraph (h) states that track inspection 
records, meaning each inspection record created under Sec.  213.241, 
shall be available to persons who performed the inspections and to 
persons performing subsequent inspections of the track segment. This is 
vitally important to help ensure the quality and effectiveness of track 
inspections, and FRA expects that in most cases this is already being 
done, as it is required, at least for electronic inspection records, 
under existing Sec.  213.241(g)(7). A person performing a subsequent 
inspection must have an understanding of the track condition during 
previous inspections to effectively recognize significant changes in 
the track condition as well as ensure that previously noted defects are 
adequately protected, have been adequately remediated, or have not 
degraded to a degree that requires further action.
    Comments: FRA received no comments on this proposed change.
    Final rule: Paragraph (h) is adopted as proposed in the NPRM.
    Proposed rule: FRA proposed paragraph (i) to be redesignated as 
paragraph (f) and revised to include the phrase ``during regular 
business hours following reasonable notice'' at the end of the 
paragraph. The meaning of the term ``reasonable notice'' would depend 
on the specific facts of each situation (e.g., time of day, day of the 
week, number of records requested, etc.).
    Comments: AAR/ASLRRA's comment on the use of the term ``reasonable 
notice'' is discussed in more detail in the section-by-section analysis 
for Sec.  213.7, above.
    Final rule: See the section-by-section analysis for Sec.  213.7 for 
FRA's response to AAR/ASLRRA's comment regarding the use of the term 
``reasonable notice.'' Paragraph (i) is adopted as proposed in the 
NPRM.
    Proposed rule: FRA proposed paragraph (j) to be a revised and 
redesignated version of existing paragraph (g). First, FRA proposed to 
reword the introductory language of the paragraph to make it clearer 
that a track owner may create, retain, transmit, store, and retrieve 
records by electronic means for purposes of complying with this 
section. The proposed change is not meant to affect the meaning or 
intent of this paragraph.
    Next, in redesignating paragraph (g) as paragraph (j), FRA would 
remove existing paragraphs (g)(5) through (7). Existing paragraph 
(g)(1) would be redesignated as paragraph (j)(3), existing paragraph 
(g)(2) would be redesignated as paragraph (j)(5), and existing 
paragraph (g)(3) would be redesignated as paragraph (j)(4). Proposed 
new paragraphs (j)(1) and (2) would be added. FRA finds the proposal 
would help ensure the integrity of electronic records, while increasing 
clarity and allowing track owners additional flexibility without 
negatively impacting safety.
    Under proposed paragraph (j)(1), the system used to generate the 
electronic records must meet all the requirements and include all the 
information required under subpart F. Proposed paragraph (j)(2) would 
require the track owner to monitor its electronic records database to 
ensure record accuracy, and FRA would intentionally leave it up to the 
track owner to determine the best way to monitor, protect, and maintain 
the integrity and accuracy of its records database effectively. FRA 
proposed that existing paragraph (g)(1) be redesignated as paragraph 
(j)(3) and revised to require that the electronic system be designed to 
identify the author of each record uniquely and prohibit two persons 
from having the same electronic identity. This is a simplified 
rephrasing of the requirements of existing paragraph (g)(1).
    FRA proposed that existing paragraph (g)(3) be redesignated as 
paragraph (j)(4) and slightly revised. Proposed paragraph (j)(4) would 
require that the electronic system ensure each record cannot be 
modified or replaced in the system once the record is completed. 
Proposed paragraph (j)(4) would

[[Page 63381]]

prohibit modification once the record is completed, while existing 
paragraph (g)(3) prohibits modification once the record is transmitted 
and stored. FRA recognizes that there are times when an inspection 
record may include information that cannot be entered until a later 
date, such as the date of final repair. Proposed paragraph (j)(4) 
would, therefore, allow for modification of a record, provided the 
modification is made by the original author of the record or the author 
of the modification is identified in the record, after the record has 
been transmitted but before the record has been fully completed. This 
would not permit someone other than the author of the record to modify 
existing information at a later date, such as track measurements or 
listings of reported defects.
    FRA proposed that existing paragraph (g)(2) be redesignated as 
paragraph (j)(5) and revised to require that electronic storage of 
records be initiated by the person making the inspection within 72 
hours following completion of the inspection. Existing paragraph (g)(2) 
requires that electronic storage be initiated within 24 hours of 
completion of the inspection. FRA finds that giving track owners an 
additional 48 hours to upload inspection records would provide needed 
flexibility without negatively impacting safety. For example, where an 
inspector does not have internet connection or experiences computer 
failure, it may take more than 24 hours to upload the inspection 
report. The new 72-hour requirement would also take into account the 
possibility of technical issues occurring late on a Friday that cannot 
be remedied until the following Monday, due to limited availability of 
technical support personnel.
    FRA proposed removing existing paragraph (g)(5), which requires 
that the electronic system provide for maintenance of the inspection 
records without corruption or loss of data. FRA finds that proposed 
paragraph (j)(2), which would require that the track owner monitor the 
database to ensure record accuracy, would make existing paragraph 
(g)(5) redundant. FRA also proposed removing as redundant existing 
paragraph (g)(6), which generally requires that track owners make paper 
copies of electronic records available to FRA. Existing paragraph (f) 
already requires track owners to make records available to FRA for 
inspection and copying upon request, and would continue to do so as 
redesignated paragraph (i). Finally, FRA proposed removing existing 
paragraph (g)(7), which requires electronic track inspection records to 
be kept available to persons who performed the inspections and to 
persons performing subsequent inspections. FRA finds removal is 
justified because the addition of proposed paragraph (h) would require 
the same for all records, and therefore make the paragraph redundant.
    Comments: FRA received no comments on the proposed changes to Sec.  
213.241.
    Final rule: Section 213.241 is revised as proposed in the NPRM.

Section 213.305 Designation of Qualified Individuals; General 
Qualifications

    Proposed rule: Proposed revisions to this section are intended to 
mirror the relevant proposed revisions to Sec.  213.7, discussed above. 
Section 213.305 addresses the qualification of individuals responsible 
for the maintenance and inspection of Class 6 and above track. 
Currently, paragraphs (a)(3), (b)(3), and (c)(4) each require that a 
qualified person ``[b]e authorized in writing'' or possess ``[w]ritten 
authorization from the track owner.'' Although FRA expects that the 
term ``written'' and ``in writing'' can be interpreted to encompass 
both physical hardcopies of an authorization as well as electronic 
versions, to avoid any possible confusion FRA proposed to remove the 
terms ``written'' and ``in writing.'' These changes would make clear 
that the required authorizations under these paragraphs may be recorded 
and conveyed either in hardcopy or electronic form.
    Further, FRA proposed to revise and reorganize paragraph (e) to 
clarify the type of information track owners must include in their 
records of designations made under paragraphs (a) through (d). First, 
for the reasons stated above, the term ``written'' would be removed. 
Records of designations made under Sec.  213.305 can be either in 
physical or electronic form. FRA proposed to add new paragraph (e)(2) 
to require records of designations include the date each designation 
was made. The date of an individual's designation is relevant and 
important information both to the track owner and to FRA, and FRA 
expects most, if not all, track owners already include this in their 
designation records. To incorporate this proposed revision, existing 
paragraph (e)(2) would be redesignated as paragraph (e)(3).
    FRA also proposed to remove the first sentence of existing 
paragraph (e)(3), because it is redundant when considering the 
requirements of Sec.  213.369. The second sentence of existing 
paragraph (e)(3) would be redesignated as paragraph (f) and revised. As 
under the existing regulation, a track owner would be required to make 
the records kept under paragraph (e) available for inspection and 
copying by FRA. FRA proposed rephrasing the sentence to require that 
FRA make its request for records during normal business hours and give 
the track owner ``reasonable notice'' before requiring production. The 
meaning of the term ``reasonable notice'' would depend on the specific 
facts of each situation (e.g., time of day, day of the week, number of 
records requested, etc.).
    Comments: AAR/ASLRRA's comment on the use of the term ``reasonable 
notice'' is discussed in more detail in the section-by-section analysis 
for Sec.  213.7, above.
    Final rule: See the section-by-section analysis for Sec.  213.7 for 
FRA's response to AAR/ASLRRA's comment regarding the use of the term 
``reasonable notice.'' Additionally, FRA has identified a technical 
error in paragraphs (a)(3), (b)(3), and (c)(4) and will change 
``successful completion of'' to ``successfully completed.'' This change 
is not meant to alter the intent or meaning of the section. 
Accordingly, Sec.  213.305 is revised as proposed in the NPRM, with the 
changes noted above.

Section 213.365 Visual Track Inspections

    Proposed rule: FRA proposed revisions to this section intended to 
mirror the relevant proposed revisions to Sec.  213.233, discussed 
above. FRA first proposed to revise the heading for Sec.  213.365 by 
adding the word ``track'' after ``visual'' so that the heading reads 
``Visual track inspections.'' Because other sections in part 213 cover 
different types of inspections (e.g., automated inspections, 
inspections of rail, etc.), the proposed heading change is simply 
intended to clarify that this section deals specifically with visual 
track inspections. This proposal would also make the heading for Sec.  
213.365 consistent with the proposed revision to the heading for the 
corresponding non-high-speed track section, Sec.  213.233. As discussed 
above, FRA proposes to revise the heading for Sec.  213.233 so that the 
headings are the same for both Sec. Sec.  213.233 and 213.365.
    FRA also proposed revising paragraph (b) to change the terms 
``riding over'' and ``passing over'' to ``traversing,'' and ``is 
riding'' and ``are riding'' to ``traverses'' and ``traverse.'' 
Additionally, FRA proposed changing ``is actually'' to ``must be'' in 
paragraph (b)(3). These changes are not meant to affect the meaning of 
Sec.  213.365, but instead are made for grammatical consistency.

[[Page 63382]]

    FRA proposed removing the last sentence of paragraph (b)(3), also 
known as the high-density commuter line exception. It was FRA's 
understanding that no railroads currently utilize this exception. 
Paragraph (b)(3) requires, among other things, that each main track be 
traversed by a vehicle or inspector on foot at least once every two 
weeks, and every siding at least every month. The high-density commuter 
line exception applies where track time does not permit on-track 
vehicle inspection and where track centers are 15 feet or less apart 
and exempts those operations from the inspection method requirements of 
paragraph (b)(3). FRA's proposal to remove this exception is consistent 
with NTSB recommendation R-14-11, section 11409 of the FAST Act, and 
the proposal to remove the counterpart to this section in Sec.  
213.233(b)(3), as discussed above in the section-by-section analysis 
for Sec.  213.233(b)(3) and in section IV.B.i of the NPRM (see 84 FR 
72530).
    Comments: FRA received a comment from AAR/ASLRRA objecting to the 
removal of the high-density commuter line exception. For a more 
complete summary of the comment, please see the discussion in the 
section-by-section analysis for Sec.  213.233(b)(3), above.
    Final rule: FRA has decided to adopt the proposal in the NPRM to 
remove the high-density commuter line exception from part 213, as 
explained in the section-by-section analysis for Sec.  213.233(b)(3). 
Paragraph (b) is revised as proposed in the NPRM.
    Proposed rule: FRA proposed two revisions to paragraph (c). First, 
FRA proposed to add the word ``visual'' before ``track inspection'' in 
the introductory text. This would simply make paragraph (c) consistent 
with the heading for Sec.  213.365 and would have no effect on the 
meaning of paragraph (c). Second, FRA proposed adding footnote 1 after 
the word ``weekly'' in the table in paragraph (c). The footnote defines 
the term ``weekly'' to be any seven-day period beginning on Sunday and 
ending on Saturday. This definition is consistent with FRA's past 
interpretation and enforcement practice.
    Comments: FRA received no comments on these proposed changes.
    Final rule: Paragraph (c) is revised as proposed in the NPRM.
    Proposed rule: FRA also proposed to revise paragraph (d). 
Specifically, FRA would add the phrase ``the Sec.  213.305 qualified'' 
at the beginning of the paragraph to clarify that ``the person'' making 
the inspection that the existing rule text refers to is the qualified 
track inspector designated under Sec.  213.305. Additionally, FRA 
proposed adding a sentence at the end of paragraph (d) stating that any 
subsequent movements to facilitate repairs on track that is out of 
service must be authorized by a Sec.  213.305 qualified person. This 
section is silent as to whether or when movement over track that is out 
of service is permissible. FRA recognizes that certain movements are 
necessary to facilitate repairs and therefore does not interpret or 
enforce the regulatory language to bar such movements of equipment and 
materials on track that is out of service. The proposed revision is 
meant to embody that practice and interpretation and prevent possible 
confusion.
    Comments: FRA received no comments on these proposed changes.
    Final rule: Paragraph (d) is revised as proposed in the NPRM.

Section 213.369 Inspection Records

    Proposed rule: Proposed revisions are intended to mirror the 
relevant proposed revisions to Sec.  213.241, discussed above. FRA 
proposed adding the phrase ``or otherwise certified'' after ``signed'' 
in paragraph (b), and thus require that records be ``signed or 
otherwise certified by the person making the inspection.'' This is 
meant to clarify that a record does not have to be physically signed by 
the person making the inspection. The track owner can choose to use 
other methods to allow an inspector to certify an inspection record, 
provided that the method chosen accurately and securely identifies the 
person making the inspection.
    Next, FRA proposed to add three elements to the list of information 
that must be included in an inspection record: The author of the 
record, the type of track inspected, and the location of the 
inspection. FRA expects this information is already included in most, 
if not all, of the inspection records currently prepared by the 
railroad industry. The proposal is therefore intended to emphasize the 
importance of this information and should have little, if any, impact 
on recordkeeping practice. The remaining edits to paragraph (b) are 
simply technical edits that have no effect on the intent or effect of 
the paragraph. Specifically, FRA would change ``owner'' to ``track 
owner'' at the beginning of the last two sentences. FRA would also 
remove ``either'' before the word ``maintained'' in the last sentence 
and change ``10 days notice'' to ``10 days' notice.''
    Comments: FRA received no comments on these proposed changes.
    Final rule: Paragraph (b) is therefore revised as proposed in the 
NPRM.
    Proposed rule: FRA proposed redesignating paragraphs (d), (e), and 
(f) as paragraphs (g), (h), and (i), respectively, and revising them, 
and adding new paragraphs (d), (e), and (f). Proposed paragraph (d) 
would list the recordkeeping requirements for continuous testing 
performed under Sec.  213.240. These are similar to the current 
recordkeeping requirements for internal rail inspections conducted 
under Sec.  213.339. Proposed paragraph (d)(1) would require the track 
owner's continuous rail testing records include all information 
required under proposed Sec.  213.240(e). Broadly, this would require 
the track owner to produce a report containing a systematic listing of 
all suspected locations, and is explained in greater detail above. 
Proposed paragraph (d)(2) would require that the records state whether 
the test is being conducted to satisfy the requirements for an internal 
rail inspection under Sec.  213.339. As discussed in more detail above, 
this is necessary information because it is relevant to whether the 
track owner must comply with the field-verification time limits in 
proposed Sec.  213.240(e). Proposed paragraph (d)(3) would require that 
the continuous rail testing records include the date and time for the 
beginning and end of each continuous test run, as well as the date and 
time each suspect location was identified and field-verified. Proposed 
paragraph (d)(4) would require that the continuous testing records 
include the determination made for each suspect location after field 
verification (including, at a minimum, the location and type of defect, 
the size of the defect, and the initial remedial action taken, if 
required, and the date thereof). Finally, proposed paragraph (d)(5) 
would require that these records be kept for two years from the date of 
the inspection, or one year after initial remedial action, whichever is 
later.
    Comments: FRA received no comments on these proposed changes.
    Final rule: Paragraph (d) is revised as proposed in the NPRM.
    Proposed rule: Proposed paragraph (e) would require any track owner 
that elects to conduct continuous testing under Sec.  213.240 to 
maintain records sufficient for monitoring and determining compliance 
with all applicable regulations and make those records available to FRA 
during regular business hours following reasonable notice. For example, 
the track owner must keep sufficient records of procedures developed to 
comply with Sec.  213.240(b), as well as qualification procedures under 
Sec.  213.238. The meaning of the term ``reasonable notice'' would 
depend on the specific facts of

[[Page 63383]]

each situation (e.g., time of day, day of the week, number of records 
requested, etc.).
    Comments: AAR/ASLRRA's comment on the use of the term ``reasonable 
notice'' is discussed in more detail in the section-by-section analysis 
for Sec.  213.7, above.
    Final rule: See the section-by-section analysis for Sec.  213.7 for 
FRA's response to AAR/ASLRRA's comment regarding the use of the term 
``reasonable notice.'' Paragraph (e) is revised as proposed in the 
NPRM.
    Proposed rule: Proposed paragraph (f) states that track inspection 
records, meaning each inspection record created under Sec.  213.369, 
shall be available to persons who performed the inspections and to 
persons performing subsequent inspections of the track segment. This is 
vitally important to ensure the quality and effectiveness of track 
inspections, and FRA expects that in most cases this is already being 
done, as it is required, at least for electronic inspection records, 
under existing Sec.  213.369(e)(7). A person performing a subsequent 
inspection must have an understanding of the track condition during 
previous inspections to recognize significant changes in the track 
condition effectively as well as ensure that previously noted defects 
are adequately protected, have been adequately remediated, or have not 
degraded to a degree that requires further action.
    Comments: FRA received no comments on this proposed change.
    Final rule: Paragraph (f) is revised as proposed in the NPRM.
    Proposed rule: As noted above, FRA proposed redesignating existing 
paragraph (d) as paragraph (g), and revising it, principally by adding 
to the end of the paragraph ``upon request during regular business 
hours following reasonable notice.'' The meaning of the term 
``reasonable notice'' would depend on the specific facts of each 
situation (e.g., time of day, day of the week, number of records 
requested, etc.).
    Comments: AAR/ASLRRA comment on the use of the term ``reasonable 
notice,'' which is discussed in more detail in the section-by-section 
analysis for Sec.  213.7, above.
    Final rule: See the section-by-section analysis for Sec.  213.7 for 
FRA's response to AAR/ASLRRA's comment regarding the use of the term 
``reasonable notice.'' Paragraph (g) is adopted as proposed in the 
NPRM.
    Proposed rule: FRA also proposed redesignating existing paragraph 
(e) as paragraph (h), and revising it. First, FRA first proposed to 
reword the introductory language of existing paragraph (e) to make it 
clearer that a track owner may create, retain, transmit, store, and 
retrieve records by electronic means for purposes of complying with 
this section. The proposed change is not meant to affect the meaning or 
intent of this paragraph. Further, in redesignating paragraph (e) as 
paragraph (h), FRA would remove existing paragraphs (e)(5) through (7). 
Existing paragraph (e)(1) would be redesignated as paragraph (h)(3), 
existing paragraph (e)(2) would be redesignated as paragraph (h)(5), 
and existing paragraph (e)(3) would be redesignated as paragraph 
(h)(4). Proposed new paragraphs (e)(1) and (2) would be added. FRA 
finds the proposal would help ensure the integrity of electronic 
records, while increasing clarity and allowing track owners additional 
flexibility without negatively impacting safety.
    Under proposed paragraph (h)(1), the system used to generate the 
electronic records must meet all the requirements and include all the 
information required under subpart G. Proposed paragraph (h)(2) would 
require the track owner to monitor its electronic records database to 
ensure record accuracy, and FRA would leave it up to the track owner 
intentionally to determine the best way to effectively monitor, 
protect, and maintain the integrity and accuracy of its records 
database. FRA proposed that existing paragraph (e)(1) be redesignated 
as paragraph (h)(3) and revised to require that the electronic system 
be designed to uniquely identify the author of each record and prohibit 
two persons from having the same electronic identity. This is a 
simplified rephrasing of the requirements of existing paragraph (e)(1).
    FRA proposed that existing paragraph (e)(3) be redesignated as 
paragraph (h)(4) and slightly revised. Proposed paragraph (h)(4) would 
require that the electronic system ensures each record cannot be 
modified or replaced in the system once the record is completed. The 
one meaningful change is that proposed paragraph (h)(4) would prohibit 
modification once the record is completed, while existing paragraph 
(e)(3) prohibits modification once the record is transmitted and 
stored. FRA recognizes that there are times when an inspection record 
may include information that cannot be entered until a later date, such 
as the date of final repair. Proposed paragraph (h)(4) would therefore 
allow for modification of a record, provided the modification is made 
by the original author of the record or the author of the modification 
is identified in the record, after the record has been transmitted but 
before the record has been fully completed. This would not permit 
someone other than the author of the record to modify existing 
information at a later date, such as track measurements or listings of 
reported defects.
    FRA proposed that existing paragraph (e)(2) be redesignated as 
paragraph (h)(5) and revised to require that electronic storage of 
records be initiated by the person making the inspection within 72 
hours following completion of the inspection. Existing paragraph (e)(2) 
requires that electronic storage be initiated within 24 hours of 
completion of the inspection. FRA finds that giving track owners an 
additional 48 hours to upload inspection records would provide needed 
flexibility without negatively impacting safety. For example, where an 
inspector does not have internet connection or experiences computer 
failure, it may take more than 24 hours to upload the inspection 
report. The new 72-hour requirement would also take into account the 
possibility of technical issues occurring late on a Friday that cannot 
be remedied until the following Monday, due to limited availability of 
technical support personnel.
    FRA proposed removing existing paragraph (e)(5), which requires 
that the electronic system provide for maintenance of the inspection 
records without corruption or loss of data. FRA finds that proposed 
paragraph (h)(2), which would require that the track owner monitor the 
database to ensure record accuracy, would make existing paragraph 
(e)(5) redundant. FRA also proposed removing as redundant existing 
paragraph (e)(6), which generally requires that track owners make paper 
copies of electronic records available to FRA. Existing paragraph (d) 
already requires track owners to make records available to FRA for 
inspection and copying upon request, and would continue to do so as 
redesignated paragraph (g). Finally, FRA proposed removing existing 
paragraph (e)(7), which requires electronic track inspection records to 
be kept available to persons who performed the inspections and to 
persons performing subsequent inspections. FRA finds removal is 
justified because the addition of proposed paragraph (f) would require 
the same for all records, and therefore make the paragraph redundant.
    FRA is redesignating paragraph (f) as paragraph (i) and slightly 
revising it for punctuation; no substantive change is intended.
    Comments: FRA received no comments on these proposed changes.
    Final rule: Paragraphs (h) and (i) are adopted as proposed in the 
NPRM.

[[Page 63384]]

VI. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not a significant regulatory action within the 
meaning of Executive Order 12866 (E.O. 12866) and DOT's Administrative 
Rulemaking, Guidance, and Enforcement Procedures in 49 CFR part 5. This 
rule is considered an E.O. 13771 deregulatory action. Details on the 
estimated cost savings of this rule can be found in the rule's 
Regulatory Impact Analysis, which FRA has prepared and placed in the 
docket (docket number FRA-2018-0104). The analysis details estimated 
costs and cost savings the railroad track owners regulated by the rule 
are likely to see over a 10-year period.
    FRA is revising its regulations governing the minimum safety 
requirements for railroad track. The changes include: Permitting the 
inspection of rail using continuous rail testing; allowing the use of 
flange-bearing frogs in crossing diamonds; relaxing the guard check 
gage limits on heavy-point frogs used in Class 5 track; removing the 
high-density commuter line exception; and other miscellaneous 
revisions.
    The revisions will benefit railroad track owners and the public by 
reducing unnecessary costs and incentivizing innovation, while 
improving rail safety.
    The following table shows the net cost savings of this rule, over 
the 10-year analysis.

                                          Net Cost Savings, in Millions
                                                 [2019 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value
                                                        7%              3%         Annualized 7%   Annualized 3%
----------------------------------------------------------------------------------------------------------------
Costs...........................................          $27.44          $33.24           $3.91           $3.90
Cost Savings....................................          149.30          180.99           21.26           21.22
                                                 ---------------------------------------------------------------
    Net Cost Savings............................          121.86          147.75           17.35           17.32
----------------------------------------------------------------------------------------------------------------

    The annualized net cost savings will be $17.4 million (7%) and 
$17.3 million (3%).
    The additional flexibility of this rule will result in cost savings 
for railroad track owners. Continuous rail testing will reduce overtime 
hours for maintenance-of-way employees. The flange-bearing frog changes 
will eliminate the required inspection time during the first week when 
compared to current conditions under the FRA waiver. The continuous 
testing, flange-bearing frog, and heavy-point frog changes will 
eliminate the need for and costs of applying for waivers to implement 
such a testing practice and track components. In fact, fewer slow 
orders, which are temporary speed restrictions, will be needed with 
continuous testing, which will result in cost savings.
    The table below presents the estimated cost savings associated with 
the rule, over the 10-year analysis.

                                   Summary of Total Cost Savings, in Millions
----------------------------------------------------------------------------------------------------------------
                                                   Present value   Present value
                     Section                            7%              3%         Annualized 7%   Annualized 3%
----------------------------------------------------------------------------------------------------------------
Government Cost Savings.........................          $0.194          $0.229          $0.028          $0.027
FBF Inspections.................................           0.184           0.215           0.026           0.025
Frog Waiver Savings.............................           0.013           0.016           0.002           0.002
Continuous Testing Labor Cost Savings...........           7.452           9.034           1.061           1.059
Slow Orders.....................................         141.329         171.340          20.122          20.086
Continuous Testing Waiver Savings...............           0.132           0.157           0.019           0.018
                                                 ---------------------------------------------------------------
    Total.......................................         149.305         180.991          21.258          21.218
----------------------------------------------------------------------------------------------------------------

    The annualized cost savings of this final rule will be $21.3 
million (7%) and $21.2 million (3%).
    If railroad track owners choose to take advantage of the cost 
savings from this rule, they will incur additional labor costs 
associated with continuous rail testing. These costs are voluntary 
because track owners will only incur them if they choose to operate 
continuous rail testing vehicles. The table below presents the 
estimated costs, over the 10-year analysis.

                                       Summary of Total Costs, in Millions
----------------------------------------------------------------------------------------------------------------
                                               Present value    Present value
                                                     7%               3%         Annualized 7%    Annualized 3%
----------------------------------------------------------------------------------------------------------------
Continuous Testing..........................           $27.4            $33.2             $3.9             $3.9
----------------------------------------------------------------------------------------------------------------

    The annualized costs of this final rule will be $3.9 million (at 
both 7 percent and 3 percent).
    The rule will also encourage the use of continuous rail testing, 
which may reduce certain types of derailments. FRA does not have 
sufficient data to estimate the reduction in derailments. However, FRA 
expects the final rule to result in safety benefits from fewer 
injuries, fatalities, and property and track damage.

[[Page 63385]]

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 ((RFA) 5 U.S.C. 601 et seq.) 
and Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency 
review of proposed and final rules to assess their impacts on small 
entities. When an agency issues a rulemaking proposal, the RFA requires 
the agency to ``prepare and make available for public comment an 
initial regulatory flexibility analysis'' which will ``describe the 
impact of the proposed rule on small entities.'' (5 U.S.C. 603(a)). 
Section 605 of the RFA allows an agency to certify a rule, in lieu of 
preparing an analysis, if the proposed rulemaking is not expected to 
have a significant economic impact on a substantial number of small 
entities. Out of an abundance of caution, FRA prepared an initial 
regulatory flexibility analysis to accompany the NPRM, which noted no 
expected significant economic impact on a substantial number of small 
entities; no comments were received on this analysis.
    In this final rule, FRA is revising its regulations governing the 
minimum safety requirements for railroad track. The changes include: 
Permitting railroad track owners to inspect rail using continuous rail 
testing; allowing the use of flange-bearing frogs in crossing diamonds; 
relaxing the guard check gage limits on heavy point frogs used in Class 
5 track; removing the high-density commuter line exception; and other 
miscellaneous revisions. The revisions will benefit railroad track 
owners and the public by reducing unnecessary costs and incentivizing 
innovation, while improving rail safety. FRA estimates this final rule 
will only minimally impact small railroads and any impact will likely 
be beneficial.
    Consistent with the findings in FRA's initial regulatory 
flexibility analysis, and the lack of any comments received on it, the 
Administrator of FRA hereby certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities.

C. Paperwork Reduction Act

    The information collection requirements in this rule are being 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The 
sections that contain the current and new information collection 
requirements and the estimated time to fulfill each requirement are as 
follows:

----------------------------------------------------------------------------------------------------------------
                                                                                           Total
                                    Respondent        Total annual    Average time per     annual     Total cost
          CFR section                universe          responses          responses        burden     equivalent
                                                                                           hours         \3\
----------------------------------------------------------------------------------------------------------------
213.4(f)--Excepted track--      746 railroads....  15 notices.......  10 minutes......          2.5         $190
 Notification to FRA about
 removal of excepted track.
213.5(c)--Responsibility for    746 railroads....  15 notices.......  1 hour..........           15        1,140
 compliance--Notification of
 assignment to FRA.
213.7(a)-(b)--Designations:     746 railroads....  2,500 documents..  10 minutes......        416.7       31,669
 Names on list with written
 authorizations.
213.17(a)--Waivers............  746 railroads....  10 petitions.....  2 hours.........           20        1,520
213.57(e)--Curves, elevation    746 railroads....  4 requests.......  8 hours.........           32        2,432
 and speed limitations--
 Request to FRA for vehicle
 type approval.
    --(f) Written notification  746 railroads....  4 notifications..  2 hours.........            8          608
     to FRA prior to
     implementation of higher
     curving speeds.
    --(g) Written consent of    746 railroads....  4 written          45 minutes......            3          228
     track owners obtained by                       consents.
     railroad providing
     service over that track.
213.110(a)--Gage restraint      746 railroads....  1 notification...  45 minutes......           .8           61
 measurement systems (GRMS)--
 Implementing GRMS--notices &
 reports.
    --(g) GRMS vehicle output   746 railroads....  1 report.........  5 minutes.......           .1            8
     reports.
    --(h) GRMS vehicle          746 railroads....  1 report.........  5 minutes.......           .1            8
     exception reports.
    --(j) GRMS/PTLF--           746 railroads....  1 documented       1 hour..........            1           76
     procedures for data                            procedure.
     integrity.
    --(n) GRMS inspection       746 railroads....  2 records........  30 minutes......            1           76
     records.
213.118(a)-(c)--Continuous      438 railroads....  10 plans.........  4 hours.........           40        3,040
 welded rail (CWR)--Revised
 plans w/procedures for CWR.
    --(d) Notification to FRA   438 railroads....  750 notifications  15 seconds......          3.1          236
     and RR employees of CWR                        to employees.
     plan effective date.
    --(e) Written submissions   438 railroads....  5 written          2 hours.........           10          760
     after plan disapproval.                        submissions.
    --(e) Final FRA             438 railroads....  5 amended plans..  1 hour..........            5          380
     disapproval and plan
     amendment.
213.234(f)--Automated           30 railroads.....  2,000 records....  30 minutes......        1,000       76,000
 inspection of track
 constructed with concrete
 crossties--Recordkeeping
 requirements.
213.237(b)(2)--Inspection of    65 railroads.....  4 requests.......  15 minutes......            1           76
 Rail--Detailed request to FRA
 to change designation of a
 rail inspection segment or
 establish a new segment.
213.237(b)(3)--Notification to  65 railroads.....  1 notice to FRA +  15 minutes......            4          304
 FRA and all affected                               15 bulletins.
 employees of designation's
 effective date after FRA's
 approval/conditional approval.
    --(d) Notice to FRA that    65 railroads.....  4 notices........  15 minutes......            1           76
     service failure rate
     target in paragraph (a)
     of this section is not
     achieved.
    --(d) Explanation to FRA    65 railroads.....  4 letters of       15 minutes......            1           76
     as to why performance                          explanation/
     target was not achieved                        Plans.
     and provision to FRA of
     remedial action plan.
213.238--Qualified operators--  3 railroads + 5    250 records......  5 minutes.......         20.8        1,581
 Written or electronic of        Testing Entities.
 qualification \4\.
213.240(b)--Continuous Rail     12 railroads.....  4 procedures.....  8 hours.........           32        2,432
 Testing--Procedures for
 conducting continuous testing
 (New requirement).
    --(c) Type of rail test     12 railroads.....  25,000 documents/  2 seconds.......           14        1,064
     (continuous or stop-and-                       records.
     verify)--Record (New
     requirement).

[[Page 63386]]

 
    --(c) Type of rail test     12 railroads.....  100 documents....  1 minute........          1.7          129
     (continuous or stop-and-
     verify)--Documented
     changes (New requirement).
    --(g) Annual reports to     12 railroads.....  12 reports.......  4 hours.........           48        3,648
     FRA (New requirement).
213.241--Inspection records     746 railroads....  1,375,000 records  10 minutes......    229,166.7   17,416,669
 \5\.
213.303(b)--Responsibility for  2 railroads......  5 notices........  30 minutes......          2.5          190
 compliance--Notification of
 assignment to FRA.
213.305(a)-(c)--Designation of  2 railroads......  20 written         30 minutes......           10          760
 qualified individuals;                             documents.
 general qualifications--
 Written authorization for
 remedial actions.
    --(e) Recordkeeping         2 railroads......  200 records......  10 minutes......         33.3        2,531
     requirements for
     designations.
213.317(a)-(b)--Waivers.......  2 railroads......  2 petitions......  8 hours.........           16        1,216
213.329(e)--Curves, elevation   2 railroads......  2 cover letters +  30 minutes + 16    33.5 hours        2,546
 and speed limitations--FRA                         2 technical        hours + 15
 approval of qualified vehicle                      reports + 2        minutes.
 types based on results of                          diagrams.
 testing.
    --(f) Written notification  2 railroads......  2 notices........  2 hours.........            4          304
     to FRA 30 days prior to
     implementation of higher
     curving speeds.
    --(g) Written consent of    2 railroads......  2 written          45 minutes......          1.5          114
     other affected track                           consents.
     owners by railroad.
213.333(d)--Automated vehicle-  7 railroads......  7 reports........  1 hour..........            7          532
 based inspection systems--
 Track Geometry Measurement
 System (TGMS) output/
 exception reports.
213.341(b)-(d)--Initial         2 railroads......  800 records......  2 minutes.......         26.7        2,029
 inspection of new rail &
 welds--Inspection records.
213.343(a)-(e)--Continuous      2 railroads......  2 plans..........  4 hours.........            8          608
 welded rail (CWR)--Procedures
 for installations and
 adjustments of CWR.
    --(h) Recordkeeping         2 railroads......  8,000 records....  2 minutes.......        266.7       20,269
     requirements.
213.345(a)-(c)--Vehicle         2 railroads......  2 program plans..  120 hours.......          240       18,240
 qualification testing--
 Vehicle qualification program
 for all vehicle types
 operating at track Class 6
 speeds or above.
    --(d) Previously qualified  2 railroads......  2 program plans..  8 hours.........           16        1,216
     vehicle types
     qualification programs.
    --(h) Written consent of    4 railroads......  4 written          30 minutes......            2          230
     other affected track                           consents.
     owners by railroad.
213.369(d)--Inspection          2 railroads......  15,000 records...  10 minutes......        2,500      190,000
 Records--Record of inspection
 of track.
                               ---------------------------------------------------------------------------------
    Total.....................  746 railroads....  1,429,776          N/A.............      234,016   17,785,272
                                                    responses.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Ms. Hodan Wells, 
Information Collection Clearance Officer, Office of Railroad Safety, 
Federal Railroad Administration, at 202-493-0440.
---------------------------------------------------------------------------

    \3\ The dollar equivalent cost is derived from the Surface 
Transportation Board's Full Year Wage A&B data series using the 
appropriate employee group hourly wage rate that includes a 75-
percent overhead charge.
    \4\ Includes burdens associated with proposed Sec.  
213.240(d)(2).
    \5\ Note: Each record of an inspection under Sec. Sec.  213.4, 
213.119, 213.233, 213.235, and 213.237 is covered under Sec.  
213.241.
---------------------------------------------------------------------------

    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Ms. Hodan 
Wells, Federal Railroad Administration, via email to Ms. Wells at 
Hodan.Wells@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this 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 did not receive any OMB 
or public comments on the information collection requirements contained 
in the NPRM.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements that do not display a current OMB 
control number, if required. The current OMB control number for part 
213 is 2130-0010.

D. Environmental Impact

    FRA has evaluated this final rule consistent with the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), the Council of 
Environmental Quality's NEPA implementing regulations at 40 CFR parts 
1500-1508, and FRA's NEPA implementing regulations at 23 CFR part 771 
and determined that it is categorically excluded from environmental 
review and therefore does not require the preparation of an 
environmental assessment (EA) or environmental impact statement (EIS). 
Categorical exclusions (CEs) are actions identified in an agency's NEPA 
implementing regulations that do not normally have a significant impact 
on the environment and therefore do not require either an EA or EIS. 
See 40 CFR 1508.4. Specifically, FRA has determined that this final 
rule is categorically excluded from detailed environmental review 
pursuant to 23 CFR 771.116(c)(15), ``[p]romulgation of rules, the 
issuance of policy statements, the waiver or modification of existing 
regulatory requirements, or discretionary approvals that do not result 
in significantly increased emissions of air or water pollutants or 
noise.''
    The purpose of this rulemaking is to revise FRA's Track Safety 
Standards to reduce unnecessary costs and incentivize innovation, while 
improving rail safety. This rule does not directly or indirectly impact 
any environmental resources and will not result in significantly 
increased emissions of air or water pollutants or noise. Instead, the 
final rule is likely to result in safety

[[Page 63387]]

benefits. In analyzing the applicability of a CE, FRA must also 
consider whether unusual circumstances are present that would warrant a 
more detailed environmental review. See 23 CFR 771.116(b). FRA has 
concluded that no such unusual circumstances exist with respect to this 
final regulation and it meets the requirements for categorical 
exclusion under 23 CFR 771.116(c)(15).
    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties. See 16 U.S.C. 470. FRA 
has also determined that this rulemaking does not approve a project 
resulting in a use of a resource protected by Section 4(f). See 
Department of Transportation Act of 1966, as amended (Pub. L. 89-670, 
80 Stat. 931); 49 U.S.C. 303.

E. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a) (91 FR 27534 May 10, 2012) require DOT agencies to 
achieve environmental justice as part of their mission by identifying 
and addressing, as appropriate, disproportionately high and adverse 
human health or environmental effects, including interrelated social 
and economic effects, of their programs, policies, and activities on 
minority populations and low-income populations. The DOT Order 
instructs DOT agencies to address compliance with Executive Order 12898 
and requirements within the DOT Order in rulemaking activities, as 
appropriate. FRA has evaluated this final rule under Executive Order 
12898 and the DOT Order and has determined it would not cause 
disproportionately high and adverse human health and environmental 
effects on minority populations or low-income populations.

F. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255 (Aug. 10, 
1999)), 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 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 analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. FRA has determined 
that this final rule has no federalism implications, other than the 
possible preemption of State laws under 49 U.S.C. 20106. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply, and preparation of a federalism summary impact statement for the 
proposed rule is not required.

G. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law). Section 202 of the Act (2 
U.S.C. 1532) further requires that before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any one 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 such an expenditure, and thus 
preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). FRA evaluated this final rule in accordance 
with Executive Order 13211 and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of the 
Executive Order.
    Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth,'' requires Federal agencies to review regulations to determine 
whether they potentially burden the development or use of domestically 
produced energy resources, with particular attention to oil, natural 
gas, coal, and nuclear energy resources. See 82 FR 16093 (March 31, 
2017). FRA determined this final rule will not burden the development 
or use of domestically produced energy resources.

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Final Rule

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

PART 213--[AMENDED]

0
1. The authority citation for 49 CFR part 213 continues to read as 
follows:

    Authority:  49 U.S.C. 20102-20114 and 20142; Sec. 403, Div. A, 
Pub. L. 110-432, 122 Stat. 4885; 28 U.S.C. 2461, note; and 49 CFR 
1.89.

Subpart A--General

0
2. Amend Sec.  213.1 by revising paragraph (b) to read as follows:


Sec.  213.1  Scope of part.

* * * * *
    (b) Subparts A through F apply to track Classes 1 through 5. 
Subpart G and 213.2, 213.3, 213.15, and 213.240 apply to track over 
which trains are operated at speeds in excess of those permitted over 
Class 5 track.

0
3. Amend Sec.  213.5 by revising paragraph (a)(3) to read as follows:


Sec.  213.5  Responsibility for compliance.

    (a) * * *
    (3) Operate under authority of a person designated under Sec.  
213.7(a), subject to conditions set forth in this part. If the 
operation is on continuous welded rail (CWR) track, the person under 
whose authority operations are conducted must also be designated under 
Sec.  213.7(c).
* * * * *

0
4. Amend Sec.  213.7 by revising paragraphs (a)(1)(i) and (ii), (a)(3), 
(b)(3),

[[Page 63388]]

(c)(4), and (e) and adding paragraph (f) to read as follows:


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

    (a) * * *
    (1) * * *
    (i) 1 year of experience in railroad track maintenance under 
traffic conditions; or
    (ii) A combination of experience in track maintenance and training 
from a course in track maintenance or from a college level educational 
program related to track maintenance.
* * * * *
    (3) Authorization from the track owner to prescribe remedial 
actions to correct or safely compensate for deviations from the 
requirements of this part.
    (b) * * *
    (3) Authorization from the track owner to prescribe remedial 
actions to correct or safely compensate for deviations from the 
requirements of this part, pending review by a qualified person 
designated under paragraph (a) of this section.
    (c) * * *
    (4) Authorization from the track owner to prescribe remedial 
actions to correct or safely compensate from deviation from the 
requirements in these procedures and successfully completed a recorded 
examination on those procedures as part of the qualification process.
* * * * *
    (e) With respect to designations under paragraph (a) through (d) of 
this section, each track owner shall maintain records of--
    (1) Each designation in effect;
    (2) The date each designation was made; and
    (3) The basis for each designation, including the method used to 
determine that the designated person is qualified.
    (f) Each track owner shall keep designation records required under 
paragraph (e) of this section readily available for inspection or 
copying by the Federal Railroad Administration during regular business 
hours, following reasonable notice.

0
5. Amend Sec.  213.9 by revising paragraph (b) to read as follows:


Sec.  213.9  Classes of track: operating speed limits.

* * * * *
    (b) If a segment of track does not meet all of the requirements of 
its intended class, it is reclassified to the next lowest class of 
track for which it does meet all of the requirements of this part. 
However, if the segment of track does not at least meet the 
requirements of Class 1 track, operations may continue at Class 1 
speeds for a period of not more than 30 days without bringing the track 
into compliance, under the authority of a person designated under Sec.  
213.7(a), after that person determines that operations may safely 
continue and subject to any limiting conditions specified by such 
person.

0
6. Revise Sec.  213.11 to read as follows:


Sec.  213.11  Restoration or renewal of track under traffic conditions.

    If during a period of restoration or renewal, track is under 
traffic conditions and does not meet all of the requirements prescribed 
in this part, the work on the track shall be under the continuous 
supervision of a person designated under Sec.  213.7(a) and, as 
applicable, Sec.  213.7(c). The work on the track shall also be subject 
to any limiting conditions specified by such person. The operating 
speed cannot be more than the maximum allowable speed under Sec.  213.9 
for the class of track concerned. The term ``continuous supervision'' 
as used in this section means the physical presence of that person at 
the job site. However, since the work may be performed over a large 
area, it is not necessary that each phase of the work be done under the 
visual supervision of that person.

Subpart D--Track Structure

0
7. Amend Sec.  213.113 by revising the second sentence of paragraph (b) 
introductory text to read as follows:


Sec.  213.113  Defective rails.

* * * * *
    (b) * * * Except as provided in Sec.  213.240, the track owner must 
verify the indication within four hours, unless the track owner has an 
indication of the existence of a defect that requires remedial action 
A, A2, or B identified in the table contained in paragraph (c) of this 
section, in which case the track owner must immediately verify the 
indication. * * *
* * * * *

0
8. Amend Sec.  213.137 by revising paragraph (a) and adding paragraph 
(e) to read as follows:


Sec.  213.137  Frogs.

    (a) Except as provided in paragraph (e) of this section, the 
flangeway depth measured from a plane across the wheel-bearing area of 
a frog on Class 1 track shall not be less than 1\3/8\ inches, or less 
than 1\1/2\ inches on Classes 2 through 5 track.
* * * * *
    (e) The flange depth requirements in paragraph (a) do not apply to 
a frog designed as a flange-bearing frog (FBF) used in a crossing 
diamond in Classes 2 through 5 track, provided that the crossing angle 
is greater than 20 degrees unless movable guard rails are used.

0
9. Revise Sec.  213.143 to read as follows:


Sec.  213.143  Frog guard rails and guard faces; gage.

    (a) The guard check and guard face gages in frogs shall be within 
the following limits--

                                          Table 1 to Sec.   213.143(a)
----------------------------------------------------------------------------------------------------------------
                                                                  Guard check gage           Guard face gage
                                                             ---------------------------------------------------
                                                              The distance between the
                                                               gage line of a frog to
                                                                the guard line \1\ of     The distance between
                       Class of track                             its guard rail or     guard lines,\1\ measured
                                                               guarding face, measured     across the track at
                                                                 across the track at    right angles to the gage
                                                              right angles to the gage  line,\2\ may not be more
                                                              line,\2\ may not be less           than--
                                                                       than--
----------------------------------------------------------------------------------------------------------------
Class 1 track...............................................               4'6\1/8\''                4'5\1/4\''
Class 2 track...............................................               4'6\1/4\''                4'5\1/8\''
Class 3 and 4 track.........................................               4'6\3/8\''                4'5\1/8\''
Class 5 track...............................................           \3\ 4'6\1/2\''                     4'5''
----------------------------------------------------------------------------------------------------------------
\1\ A line along that side of the flangeway which is nearer to the center of the track and at the same elevation
  as the gage line.

[[Page 63389]]

 
\2\ A line five-eighths of an inch below the top of the center line of the head of the running rail, or
  corresponding location of the tread portion of the track structure.
\3\ See paragraph (b) of this section.

    (b) For any heavy-point frog (HPF) on Class 5 track, the guard 
check gage may be less than 4'6\1/2\'' but not be less than 4'6\3/8\'', 
provided that:
    (1) Each HPF and guard rails on both rails through the turnout are 
equipped with at least three serviceable through-gage plates with 
elastic rail fasteners and guard rail braces that permit adjustment of 
the guard check gage without removing spikes or other fasteners from 
the crossties; and
    (2) Each HPF bears an identifying mark applied by either the track 
owner, railroad, or the frog manufacturer that identifies the frog as 
an HPF.

Subpart F--Inspection

0
10. Amend Sec.  213.233 by revising the section heading, paragraph (b), 
the first entry in the table in paragraph (c), and paragraph (d) to 
read as follows:


Sec.  213.233  Visual track inspections.

* * * * *
    (b) Each inspection shall be made on foot or by traversing the 
track in a vehicle at a speed that allows the person making the 
inspection to visually inspect the track structure for compliance with 
this part. However, mechanical, electrical, and other track inspection 
devices may be used to supplement visual inspection. If a vehicle is 
used for visual inspection, the speed of the vehicle may not be more 
than 5 m.p.h. when traversing track crossings and turnouts; otherwise, 
the inspection vehicle speed shall be at the sole discretion of the 
inspector, based on track conditions and inspection requirements. When 
traversing the track in a vehicle, the inspection will be subject to 
the following conditions--
    (1) One inspector in a vehicle may inspect up to two tracks at one 
time provided that the inspector's visibility remains unobstructed by 
any cause and that the second track is not centered more than 30 feet 
from the track the inspector traverses;
    (2) Two inspectors in one vehicle may inspect up to four tracks at 
a time provided that the inspectors' visibility remains unobstructed by 
any cause and that each track being inspected is centered within 39 
feet from the track the inspectors traverse;
    (3) Each main track must be traversed by the vehicle or inspected 
on foot at least once every two weeks, and each siding must be 
traversed by the vehicle or inspected on foot at least once every 
month; and
    (4) Track inspection records shall indicate which track(s) are 
traversed by the vehicle or inspected on foot as outlined in paragraph 
(b)(3) of this section.
    (c) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
              Class of track                       Type of track                                        Required frequency
--------------------------------------------------------------------------------------------------------------------------------------------------------
Excepted track, and Class 1, 2, and 3      Main track and sidings......  Weekly \1\ with at least 3 calendar days' interval between inspections, or
 track.                                                                   before use, if the track is used less than once a week, or twice weekly with
                                                                          at least 1 calendar day interval between inspections, if the track carries
                                                                          passenger trains \2\ or more than 10 million gross tons of traffic during the
                                                                          preceding calendar year.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ An inspection week is defined as a seven (7) day period beginning on Sunday and ending on Saturday.
\2\ ``Twice weekly'' inspection requirement for track carrying regularly scheduled passenger trains does not apply where passengers train service
  consists solely of tourist, scenic, historic, or excursion operations as defined in 49 CFR 238.5 and the following conditions are met for an
  inspection week: (1) No passenger service is operated during the inspection week, or (2) if passenger service is operated during the inspection week:
  (i) The passenger service is operated only on a weekend or a 3-day extended weekend (weekend plus a contiguous Monday or Friday), and (ii) an
  inspection is conducted no more than 1 calendar day before a weekend or 3-day extended weekend on which passenger service is to be operated.

    (d) If the Sec.  213.7 qualified person making the inspection finds 
a deviation from the requirements of this part, the inspector shall 
immediately initiate remedial action. Any subsequent movements to 
facilitate repairs on track that is out of service must be authorized 
by a Sec.  213.7 qualified person.

0
11. Add Sec.  213.240 to read as follows:


Sec.  213.240  Continuous rail testing.

    (a) Track owners may elect to use continuous rail testing to 
satisfy the requirements for conducting internal rail inspections under 
Sec.  213.237 or Sec.  213.339. When a track owner utilizes the 
continuous rail test inspection process under the requirements of this 
section, the track owner is exempt from the requirements of Sec.  
213.113(b); all other requirements of Sec.  213.113 apply.
    (b) Track owners shall adopt the necessary procedures for 
conducting continuous testing. At a minimum, the procedures must 
conform to the requirements of this section and ensure the following:
    (1) Test data is timely and accurately transmitted and analyzed;
    (2) Suspect locations are accurately identified for field 
verification;
    (3) Suspect locations are categorized and prioritized according to 
their potential severity;
    (4) Suspect locations are accurately field-verified; and
    (5) Suspect locations will be designated following field 
verification.
    (c) The track owner must designate and record the type of rail test 
(continuous or stop-and-verify) to be conducted prior to commencing the 
test over a track segment and make those records available to FRA upon 
request during regular business hours following reasonable notice. If 
the type of rail test changes following commencement of the test, the 
change must be documented and include the time the test was started and 
when it was changed, and the milepost where the test started and where 
it was changed. If the track owner intends to conduct a continuous 
test, the track owner must designate and record whether the test is 
being conducted to satisfy the requirements for an internal rail 
inspection under Sec.  213.237 or Sec.  213.339. This documentation 
must be provided to FRA upon request during regular business hours 
following reasonable notice.

[[Page 63390]]

    (d)(1) Continuous rail test inspection vehicle operators must be 
qualified under Sec.  213.238, with the exception of Sec.  
213.238(b)(3).
    (2) Internal rail inspection data collected during continuous rail 
tests must be reviewed and interpreted by a person qualified to 
interpret the equipment responses. Each employer of a person qualified 
to interpret equipment responses shall maintain written or electronic 
records of each qualification in effect, including the name of the 
employee, the equipment to which the qualification applies, the date of 
qualification, and the date of the most recent reevaluation of the 
qualification, if any. Records concerning these qualifications, 
including copies of training programs, training materials, and recorded 
examinations shall be kept at a location designated by the employer and 
available for inspection and copying by FRA during regular business 
hours, following reasonable notice.
    (3) All suspect locations must be field-verified by a person 
qualified under Sec.  213.238.
    (e) At a minimum, the continuous rail test process must produce a 
report containing a systematic listing of all suspected locations that 
may contain any of the defects listed in the table in Sec.  213.113(c), 
identified so that a person qualified under Sec.  213.238 can 
accurately locate and field-verify each suspected defect.
    (1) Except as provided in paragraph (e)(6) of this section, and 
subject to the requirements of paragraphs (e)(2) and (3) of this 
section, if the continuous rail test inspection vehicle indicates a 
suspect location, field verification must be conducted within 84 hours 
of the indication of the suspect location.
    (2) Except as provided in paragraph (e)(6) of this section, and 
subject to the requirements of paragraph (e)(3) of this section, if the 
continuous rail test inspection vehicle indicates a suspect location 
containing a suspected defect that, if verified, requires remedial 
action A, A2, or B identified in the table contained in Sec.  
213.113(c), the track owner must field-verify the suspect location no 
more than 36 hours from indication of the suspect location.
    (3) If the continuous rail test inspection vehicle indicates a 
broken rail with rail separation, the track owner must have procedures 
to ensure that adequate protection is immediately implemented.
    (4) A suspect location is not considered a defect under Sec.  
213.113(c) until it has been field-verified by a person qualified under 
Sec.  213.238. After the suspect location is field-verified and 
determined to be a defect, the track owner must immediately perform all 
required remedial actions prescribed in Sec.  213.113(a).
    (5) Any suspected location not field-verified within the time 
required under paragraphs (e)(1) and (2) of this section must be 
protected by applying the most restrictive remedial action under Sec.  
213.113(c) for the suspected type and size of the suspected defect. The 
remedial action must be applied over a sufficient segment of track to 
assure coverage of the suspected defect location until field-verified.
    (6) A continuous rail test that is not conducted to satisfy the 
requirements for an internal rail inspection under Sec.  213.237 or 
Sec.  213.339, and has been properly designated and recorded by the 
track owner under paragraph (c) of this section, is exempt from the 
requirements of paragraphs (e)(1), (2), and (5) of this section.
    (f) Each suspect location must be recorded with repeatable accuracy 
that allows for the location to be accurately located for subsequent 
verification and, as necessary, remedial action.
    (g) Within 45 days following the end of each calendar year, each 
track owner utilizing continuous rail testing must provide the FRA 
Associate Administrator for Railroad Safety/Chief Safety Officer with 
an annual report, in a reasonably usable format, or its native 
electronic format, containing at least the following information for 
each track segment requiring internal rail inspection under Sec.  
213.237 or Sec.  213.339:
    (1) The track owner's name;
    (2) The railroad division and subdivision;
    (3) The segment identifier, milepost limits, and length of each 
segment;
    (4) The track number;
    (5) The class of track;
    (6) The annual million gross tons over the track;
    (7) The total number of stop-and-verify rail tests and the total 
number of continuous rail tests over each track segment;
    (8) The total number of defects identified over each track segment; 
and
    (9) The total number of service failures on each track segment.

0
12. Amend Sec.  213.241 by revising paragraphs (b), (f), and (g) and 
adding paragraphs (h) through (j) to read as follows:


Sec.  213.241  Inspection records.

* * * * *
    (b) Each record of an inspection under Sec. Sec.  213.4, 213.119, 
213.233, and 213.235 shall be prepared on the day the inspection is 
made and signed or otherwise certified by the person making the 
inspection. Records shall specify the author of the record, the type of 
track inspected, date and location of inspection, location and nature 
of any deviation from the requirements of this part, and the remedial 
action taken by the person making the inspection. The track owner shall 
designate the location(s) where each original record shall be 
maintained for at least one year after the inspection covered by the 
record. The track owner shall also designate one location, within 100 
miles of each State in which it conducts operations, where copies of 
records that apply to those operations are maintained or can be viewed 
following 10 days' notice by the Federal Railroad Administration.
* * * * *
    (f) Records of continuous rail testing under Sec.  213.240 shall--
    (1) Include all information required under Sec.  213.240(e);
    (2) State whether the test is being conducted to satisfy the 
requirements for an internal rail inspection under Sec.  213.237;
    (3) List the date(s) and time(s) of the continuous rail test data 
collection, including the date and time of the start and end of the 
test run, and the date and time each suspect location was identified 
and field-verified;
    (4) Include the determination made after field verification of each 
suspect location, including the:
    (i) Location and type of defect found;
    (ii) Size of defect; and
    (iii) Initial remedial action taken, if required, and the date 
thereof; and
    (5) Be retained for at least two years after the inspection and for 
at least one year after initial remedial action is taken, whichever is 
later.
    (g) Track owners that elect to utilize continuous rail testing 
under Sec.  213.240 shall maintain records of all continuous rail 
testing operations sufficient for monitoring and determining compliance 
with all applicable regulations and shall make those records available 
to FRA during regular business hours following reasonable notice.
    (h) Track inspection records shall be kept available to persons who 
performed the inspections and to persons performing subsequent 
inspections of the track segment.
    (i) Each track owner required to keep inspection records under this 
section shall make those records available for inspection and copying 
by FRA upon request during regular business hours following reasonable 
notice.
    (j) For purposes of complying with the requirements of this 
section, a track owner may create, retain, transmit, store, and 
retrieve records by electronic means provided that--

[[Page 63391]]

    (1) The system used to generate the electronic record meets all 
requirements and contains the information required under this subpart;
    (2) The track owner monitors its electronic records database to 
ensure record accuracy;
    (3) The electronic system is designed to uniquely identify the 
author of the record. No two persons shall have the same electronic 
identity;
    (4) The electronic system ensures that each record cannot be 
modified in any way, or replaced, once the record is completed;
    (5) The electronic storage of each record shall be initiated by the 
person making the inspection within 72 hours following the completion 
of that inspection; and
    (6) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment.

Subpart G--Train Operations at Track Classes 6 and Higher

0
13. Amend Sec.  213.305 by revising paragraphs (a)(3), (b)(3), (c)(4), 
and (e) and adding paragraph (f) to read as follows:


Sec.  213.305  Designation of qualified individuals; general 
qualifications.

* * * * *
    (a) * * *
    (3) Be authorized by the track owner to prescribe remedial actions 
to correct or safely compensate for deviations from the requirements of 
this subpart and successfully completed a recorded examination on this 
subpart as part of the qualification process.
    (b) * * *
    (3) Be authorized by the track owner to prescribe remedial actions 
to correct or safely compensate for deviations from the requirements in 
this subpart and successfully completed a recorded examination on this 
subpart as part of the qualification process.
    (c) * * *
    (4) 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. 
The recorded examination may be written, or it may be a computer file 
with the results of an interactive training course.
* * * * *
    (e) With respect to designations under paragraphs (a), (b), (c) and 
(d) of this section, each track owner shall maintain records of:
    (1) Each designation in effect;
    (2) The date each designation was made; and
    (3) The basis for each designation, including but not limited to:
    (i) The exact nature of any training courses attended and the dates 
thereof; and
    (ii) The manner in which the track owner has determined a 
successful completion of that training course, including test scores or 
other qualifying results.
    (f) Each track owner shall keep these designation records readily 
available for inspection or copying by the Federal Railroad 
Administration during regular business hours, following reasonable 
notice.

0
14. Amend Sec.  213.365 by revising the section heading and paragraphs 
(b) through (d) to read as follow:


Sec.  213.365  Visual track inspections.

* * * * *
    (b) Each inspection shall be made on foot or by traversing the 
track in a vehicle at a speed that allows the person making the 
inspection to visually inspect the track structure for compliance with 
this part. However, mechanical, electrical, and other track inspection 
devices may be used to supplement visual inspection. If a vehicle is 
used for visual inspection, the speed of the vehicle may not be more 
than 5 m.p.h. when traversing track crossings and turnouts; otherwise, 
the inspection vehicle speed shall be at the sole discretion of the 
inspector, based on track conditions and inspection requirements. When 
traversing the track in a vehicle, the inspection will be subject to 
the following conditions--
    (1) One inspector in a vehicle may inspect up to two tracks at one 
time provided that the inspector's visibility remains unobstructed by 
any cause and that the second track is not centered more than 30 feet 
from the track upon which the inspector traverses;
    (2) Two inspectors in one vehicle may inspect up to four tracks at 
a time provided that the inspectors' visibility remains unobstructed by 
any cause and that each track being inspected is centered within 39 
feet from the track upon which the inspectors traverse;
    (3) Each main track must be traversed by a vehicle or inspected on 
foot at least once every two weeks, and each siding must be traversed 
by a vehicle or inspected on foot at least once every month; and
    (4) Track inspection records shall indicate which track(s) are 
traversed by the vehicle or inspected on foot as outlined in paragraph 
(b)(3) of this section.
    (c) Each visual track inspection shall be made in accordance with 
the following schedule--

                      Table 1 to Sec.   213.365(c)
------------------------------------------------------------------------
          Class of track                     Required frequency
------------------------------------------------------------------------
6, 7, and 8.......................  Twice weekly \1\ with at least a 2
                                     calendar day's interval between
                                     inspections.
9.................................  Three times per week.
------------------------------------------------------------------------
\1\ An inspection week is defined as a seven (7) day period beginning on
  Sunday and ending on Saturday.

    (d) If the Sec.  213.305 qualified person making the inspection 
finds a deviation from the requirements of this part, the person shall 
immediately initiate remedial action. Any subsequent movements to 
facilitate repairs on track that is out of service must be authorized 
by a Sec.  213.305 qualified person.
* * * * *

0
15. Amend Sec.  213.369 by revising paragraphs (b) and (d) through (f) 
and adding paragraphs (g) through (i) to read as follows:


Sec.  213.369  Inspection records.

* * * * *
    (b) Except as provided in paragraph (e) of this section, each 
record of an inspection under Sec.  213.365 shall be prepared on the 
day the inspection is made and signed or otherwise certified by the 
person making the inspection. Records shall specify the author of the 
record, the type of track inspected, date of inspection, location of 
inspection, nature of any deviation from the requirements of this part, 
and the remedial action taken by the person making the inspection. The 
track owner shall designate the location(s) where each original record 
shall be maintained for at least one year after the inspection covered 
by the record. The track owner shall also designate one location, 
within 100 miles of each State in which it conducts operations, where 
copies of records that apply to those operations are maintained or can 
be viewed following 10 days' notice by the Federal Railroad 
Administration.
* * * * *
    (d) Records of continuous rail testing under Sec.  213.240 shall--
    (1) Include all information required under Sec.  213.240(e);
    (2) State whether the test is being conducted to satisfy the 
requirements for an internal rail inspection under Sec.  213.339;
    (3) List the date(s) and time(s) of the continuous rail test data 
collection, including the date and time of the start and end of the 
test run, and the date and

[[Page 63392]]

time each suspect location was identified and field-verified;
    (4) Include the determination made after field verification of each 
suspect location, including the:
    (i) Location and type of defect found;
    (ii) Size of defect; and
    (iii) Initial remedial action taken, if required, and the date 
thereof; and
    (5) Be retained for at least two years after the inspection and for 
at least one year after initial remedial action is taken, whichever is 
later.
    (e) Track owners that elect to utilize continuous rail testing 
under Sec.  213.240 shall maintain records of all continuous rail 
testing operations sufficient for monitoring and determining compliance 
with all applicable regulations and shall make those records available 
to FRA during regular business hours following reasonable notice.
    (f) Track inspection records shall be kept available to persons who 
perform the inspections and to persons performing subsequent 
inspections.
    (g) Each track owner required to keep inspection records under this 
section shall make those records available for inspection and copying 
by the Federal Railroad Administration upon request during regular 
business hours following reasonable notice.
    (h) For purposes of compliance with the requirements of this 
section, a track owner may create, retain, transmit, store, and 
retrieve records by electronic means provided that--
    (1) The system used to generate the electronic record meets all 
requirements and contains the information required under this subpart;
    (2) The track owner monitors its electronic records database to 
ensure record accuracy;
    (3) The electronic system is designed to uniquely identify the 
author of the record. No two persons shall have the same electronic 
identity;
    (4) The electronic system ensures that each record cannot be 
modified in any way, or replaced, once the record is completed;
    (5) The electronic storage of each record shall be initiated by the 
person making the inspection within 72 hours following the completion 
of that inspection; and
    (6) Any amendment to a record shall be electronically stored apart 
from the record which it amends. Each amendment to a record shall be 
uniquely identified as to the person making the amendment.
    (i) Each vehicle/track interaction safety record required under 
Sec.  213.333(g) and (m) shall be made available for inspection and 
copying by the FRA at the locations specified in paragraph (b) of this 
section.

    Issued in Washington, DC.
Quintin Kendall,
Deputy Administrator.
[FR Doc. 2020-18339 Filed 10-6-20; 8:45 am]
BILLING CODE 4910-06-P


