[Federal Register Volume 70, Number 211 (Wednesday, November 2, 2005)]
[Rules and Regulations]
[Pages 66288-66299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21845]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

[Docket No. FRA 2005-22522]
RIN 2130-AB71


Track Safety Standards; Inspection of Joints in Continuous Welded 
Rail (CWR)

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

[[Page 66289]]


ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: FRA is amending the Federal Track Safety Standards to improve 
the inspection of rail joints in continuous welded rail (CWR). This 
interim final rule (IFR) requires track owners to develop and implement 
a procedure for the detailed inspection of rail joints in CWR. This IFR 
also requires track owners to keep records of those inspections.

DATES: This final rule is effective December 2, 2005.
    (1) Written Comments: Written comments must be received on or 
before December 19, 2005. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay.
    (2) Public Hearing: Requests for a public hearing must be in 
writing and must be submitted to the Department of Transportation 
Docket Management System at the address below on or before December 19, 
2005. If a public hearing is requested and scheduled, FRA will announce 
the date, location, and additional details concerning the hearing by 
separate notice in the Federal Register.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FRA 2005-22522 by any of the following methods:
    Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov, including any personal information 
provided. Please see the Privacy Act heading in the Supplementary 
Information section of this document for Privacy Act information 
related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, P.E., Chief 
Engineer--Structures, Office of Safety, Federal Railroad 
Administration, 1120 Vermont Avenue, NW., Mail Stop 25, Washington, DC 
20590 ([email protected] or 202-493-6320); or Christina 
McDonald, Trial Attorney, Office of Chief Counsel, Federal Railroad 
Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 
20590 ([email protected] or 202-493-6032).

SUPPLEMENTARY INFORMATION: 

I. Continuous Welded Rail (CWR)

A. General

    CWR refers to the way in which rail is joined together to form 
track. In CWR, rails are welded together to form one continuous rail 
that may be several miles long. Although CWR is normally one continuous 
rail, there can be joints \1\ in it for one or more reasons: The need 
for insulated joints that electrically separate track segments for 
signaling purposes, the need to terminate CWR installations at a 
segment of jointed rail, or the need to remove and replace a section of 
defective rail.
---------------------------------------------------------------------------

    \1\ Rail joints commonly consist of two joint bars that are 
bolted to the sides of the rail and that contact the rail at the 
bottom surface of the rail head and the top surface of the rail 
base.
---------------------------------------------------------------------------

B. Statutory and Regulatory History of CWR

    The Federal Railroad Administration (FRA) issued the first Federal 
Track Safety Standards in 1971. See 36 FR 20336. FRA addressed CWR in a 
rather general manner, stating, in Sec.  213.119, that railroads must 
install CWR at a rail temperature that prevents lateral displacement of 
track or pull-aparts of rail ends and that CWR should not be disturbed 
at rail temperatures higher than the installation or adjusted 
installation temperature.
    In 1982, FRA deleted Sec.  213.119, because FRA believed it was so 
general in nature that it provided little guidance to railroads and it 
was difficult to enforce. See 47 FR 7275 and 47 FR 39398. FRA stated 
that ``While the importance of controlling thermal stresses within 
continuous welded rail has long been recognized, research has not 
advanced to the point where specific safety requirements can be 
established.'' 47 FR 7279. FRA explained that continuing research might 
produce reliable data in this area in the future.
    In the Rail Safety Enforcement and Review Act of 1992 (Public Law 
102-365, September 3, 1992), Congress mandated that FRA evaluate 
procedures for installing and maintaining CWR. In 1994, in the Federal 
Railroad Safety Reauthorization Act (Pub. L. 103-272, July 5, 1994), 
Congress required DOT to evaluate cold weather installation procedures 
for CWR. In light of the evaluation of those procedures, as well as 
information resulting from FRA's own research and development, FRA 
addressed CWR procedures by adding Sec.  213.119 during its 1998 
revision of the Track Safety Standards. See 63 FR 33992.
    Section 213.119, as added in 1998, requires railroads to develop 
procedures that, at a minimum, provide for the installation, 
adjustment, maintenance, and inspection of CWR, as well as a training 
program and minimal recordkeeping requirements. Section 213.119 does 
not dictate which procedures a railroad must use in their CWR plans. It 
allows railroads to develop and implement their individual CWR plans 
based on procedures which have proven effective for them over the 
years. Accordingly, procedures can vary from railroad to railroad.

II. SAFETEA-LU

    On August 10, 2005, President Bush signed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU), (Pub. L. 109-59, August 10, 2005) into law. Section 
9005(a) of SAFETEA-LU amended 49 U.S.C. 20142 by adding a new 
subsection (e) as follows:

    (e) Track Standards.--
    (1) In General.--Within 90 days after the date of enactment of 
this subsection, the Federal Railroad Administration shall--
    (A) Require each track owner using continuous welded rail track 
to include procedures (in its procedures filed with the 
Administration pursuant to section 213.119 of title 49, Code of 
Federal Regulations) to improve the identification of cracks in rail 
joint bars;
    (B) Instruct Administration track inspectors to obtain copies of 
the most recent continuous welded rail programs of each railroad 
within the inspectors' areas of responsibility and require that 
inspectors use those programs when conducting track inspections; and
    (C) Establish a program to review continuous welded rail joint 
bar inspection data from railroads and Administration track 
inspectors periodically.
    (2) Inspection.--Whenever the Administration determines that it 
is necessary or appropriate, the Administration

[[Page 66290]]

may require railroads to increase the frequency of inspection, or 
improve the methods of inspection, of joint bars in continuous 
welded rail.

    Pursuant to that mandate, FRA is revising the Track Safety 
Standards located in 49 CFR part 213.

III. Train Accidents Involving Joints in CWR

    Since FRA's 1998 revision of the Track Safety Standards, there have 
been a number of train accidents in which the failure of a rail joint 
in CWR was a factor. The National Transportation Safety Board (NTSB) 
investigated three recent accidents and made recommendations to FRA 
concerning joints in CWR. The NTSB recommendations closely parallel the 
statutory mandate requiring this IFR. The three accidents and 
subsequent NTSB recommendations are described below.

A. Derailment of Canadian Pacific Railroad Train 292-16 Near Minot, ND

    On January 18, 2002, Canadian Pacific Railway (CPR) freight train 
292-15 derailed 31 of its 112 cars about \1/2\ mile west of the city 
limits of Minot, North Dakota. Five tank cars carrying anhydrous 
ammonia, a liquefied compressed gas, catastrophically ruptured, and a 
vapor plume covered the derailment site and surrounding area. About 
11,600 people occupied the area affected by the vapor plume. One 
resident was fatally injured, and 60 to 65 residents of the 
neighborhood nearest the derailment site were rescued. As a result of 
the accident, 11 people sustained serious injuries, and 322 people, 
including the 2 train crewmembers, sustained major injuries. Damages 
exceeded $2 million, and more than $8 million has been spent in 
environmental remediation.
    In its Railroad Accident Report,\2\ the NTSB determined that the 
probable cause of the derailment was ``an ineffective Canadian Pacific 
Railway inspection and maintenance program that did not identify and 
replace cracked joint bars before they completely fractured and led to 
the breaking of the rail at the joint.'' The NTSB found that the 
catastrophic failure of five tank cars and the instantaneous release of 
146,700 gallons of anhydrous ammonia also contributed to the severity 
of the accident.
---------------------------------------------------------------------------

    \2\ NTSB Railroad Accident Report: Derailment of Canadian 
Pacific Railway Freight Train 292-16 and Subsequent Release of 
Anhydrous Ammonia Near Minot, North Dakota, January 18, 2002 (NTSB/
RAR-04-01) (March 9, 2004).
---------------------------------------------------------------------------

    The NTSB issued several findings in its report. The NTSB found that 
the train derailed because joint bars at the east end of the plug rail 
\3\ fractured (either under the previous train or as the accident train 
passed over the joint), and then, after the joint bars fractured, the 
rail itself also fractured and broke away. The NTSB found that CPR's 
inspection procedures regarding rail joint bars in CWR were inadequate 
to properly inspect and maintain joints within CWR, and those 
inadequate procedures allowed undetected cracking in the joint bars at 
the accident location to grow to a critical size. In a similar vein, 
the NTSB found that FRA's requirements regarding rail joint bars in CWR 
were ineffective, because they did not require on-the-ground visual 
inspections or nondestructive testing adequate to identify cracks 
before they grow to critical size and result in joint bar failure.
---------------------------------------------------------------------------

    \3\ A ``plug rail'' describes a short piece of rail inserted 
into a length of CWR to replace a similar piece that was removed 
because of defects or damage.
---------------------------------------------------------------------------

    The NTSB also found that FRA's oversight of CPR's CWR program was 
ineffective, because FRA neither reviewed the CWR program nor ensured 
that its track inspectors had copies of the CWR programs to determine 
if the railroad was in compliance with it.
    As a result of these findings, the NTSB made seven safety 
recommendations, of which the most relevant are quoted below.

    Require all railroads with continuous welded rail track to 
include procedures (in the programs that are filed with the Federal 
Railroad Administration) that prescribe on-the-ground visual 
inspections and nondestructive testing techniques for identifying 
cracks in rail joint bars before they grow to critical size. (R-04-
1).
    Establish a program to periodically review continuous welded 
rail joint bar inspection data from railroads and Federal Railroad 
Administration track inspectors and, when determined necessary, 
require railroads to increase the frequency or improve the methods 
of inspection of joint bars in continuous welded rail. (R-04-2).
    Instruct Federal Railroad Administration track inspectors to 
obtain copies of the most recent continuous welded rail programs of 
the railroads that fall within the inspectors' areas of 
responsibility and require that inspectors use those programs when 
conducting track inspections. (R-04-3).

B. Derailment of Amtrak Train No. 58 Near Flora, MS

    On April 6, 2004, National Railroad Passenger Corporation (Amtrak) 
train No. 58 (City of New Orleans) derailed on Canadian National 
Railway Company track near Flora, Mississippi. The entire train 
derailed, including one locomotive, one baggage car, and eight 
passenger cars. The derailment resulted in one fatality, three serious 
injuries, and 43 minor injuries. The equipment costs associated with 
the accident totaled about $7 million.
    In its Railroad Accident Report,\4\ the NTSB determined that the 
probable cause of the accident was ``the failure of the Canadian 
National Railway Company to properly maintain and inspect its track, 
resulting in rail shift and the subsequent derailment of the train, and 
the Federal Railroad Administration's ineffective oversight to ensure 
proper maintenance of the track by the railroad.''
---------------------------------------------------------------------------

    \4\ NTSB Railroad Accident Report: Derailment of Amtrak Train 
No. 58, City of New Orleans, Near Flora, Mississippi, April 6, 2004 
(NTSB/RAR-05/02) (July 26, 2005).
---------------------------------------------------------------------------

    The NTSB made two recommendations to FRA, one of which is relevant 
to the discussion here.

    Emphasize to your track inspectors the importance of enforcing a 
railroad's continuous welded rail program as a part of the Federal 
Track Safety Standards, and verify that inspectors are documenting 
noncompliance with the railroad's program. (R-05-05).

C. Derailment of Union Pacific Train ZLAMN-16 Near Pico Rivera, CA

    On October 16, 2004, Union Pacific (UP) freight train ZLAMN-16 
derailed 3 locomotives and 11 cars near Pico Rivera, California. Small 
amounts of hazardous materials were released from the transported 
cargo. There were no injuries to area residents, the train crew, or the 
emergency response personnel. UP estimated the monetary damage at $2.7 
million.
    In its Railroad Accident Brief,\5\ the NTSB determined ``that the 
probable cause of the derailment was the failure of a pair of insulated 
joint bars due to fatigue cracking. Contributing to the accident was 
the lack of an adequate on-the-ground inspection program for 
identifying cracks in rail joint bars before they grow to critical 
size.''
---------------------------------------------------------------------------

    \5\ NTSB Railroad Accident Brief: Accident No. DCA-05-FR-002 
(NTSB/RAB-05/02) (March 9, 2004).
---------------------------------------------------------------------------

    The NTSB reiterated two of the recommendations that it had made to 
FRA after the Minot, North Dakota accident: (1) R-04-01 about on-the-
ground visual inspections and nondestructive testing techniques and (2) 
R-04-02 about a program to review joint bar inspection data. The NTSB 
further stated in its brief:

    The CWR track involved in the Pico Rivera accident had all the 
inspections required by the UP and the FRA. In some instances, the 
inspections were done more frequently than required. Nevertheless, 
the inspections failed

[[Page 66291]]

to detect the developing problems and prevent the ultimate failure. 
Additionally, during the 2 days after the last inspection, more than 
100 trains passed over the insulated joint bars without either 
discovering or reporting a defect. Trains traversed the area after 
the insulated joint bars were completely broken, as evidenced by the 
rail batter in both directions.
    Several indications of an imminent or actual defect were present 
before this accident, which the inspection from a moving vehicle did 
not discover:
     The epoxy bead was missing from the center section of 
the insulated joint bar, indicating vertical movement.
     The joint bars cracked before they completely 
fractured. Part of each crack was visible on the lower outer portion 
of the bar for some time before its failure.
     Rail end batter developed when the joint bars 
completely fractured and trains continued to pass over them in both 
directions.
    These indications developed over time, and a close visual 
inspection from the ground would have likely uncovered the emerging 
problem and allowed corrective action to be taken to avoid the 
accident.

IV. FRA's Approach to CWR in This IFR

    Earlier versions of Sec.  213.119 did not require track owners to 
include any provisions in their CWR plan related to joints in CWR. 
Track owners were required simply to address joints in CWR in the same 
manner as they addressed joints in conventional jointed rail. See 49 
CFR 213.121. This IFR now requires track owners to specifically address 
joints in CWR in their respective CWR plans.
    To meet the statutory requirement that FRA issue this regulation 
within 90 days of the enactment of SAFETEA-LU, FRA is issuing this IFR. 
This IFR addresses 49 U.S.C. 20142(e)(1)(A) and (e)(1)(C) (hereinafter 
referred to as (e)(1)(A) and (e)(1)(C)). Because 49 U.S.C. 
20142(e)(1)(B) does not require regulatory action on the part of FRA, 
FRA is not addressing it in this rulemaking.
    Subparagraph (e)(1)(A) mandates that FRA require each track owner 
to ``include procedures * * * to improve the identification of cracks 
in rail joint bars.'' Congress did not specify how FRA should effect 
that improvement. One way of improving the identification of such 
cracks is through on-foot inspection of joints in CWR. Because most 
cracks in joint bars can be detected by eye before they grow to 
failure, on-foot inspections can be of great value in identifying joint 
failure. Accordingly, FRA is requiring railroads to conduct periodic 
and special on-foot inspections of CWR joints. See 213.119(g)(1).
    Rather than limit these on-foot inspections to the identification 
of joint bar cracks, FRA is requiring track owners to also inspect for 
joint conditions that can lead to the development of joint bar cracks. 
Track owners should inspect all safety-critical aspects of joints, 
including any indications of potential failure of the joint itself; any 
indications of potential failure of any components of the joint (e.g., 
rails, bolts, supporting crossties, and track fasteners); and the track 
itself in the vicinity of the joint (including the effectiveness of 
rail anchors or other devices for restraint of longitudinal movement of 
the rail). In the rule, FRA lists examples of conditions that may 
indicate potential failure. This list is not all-inclusive. There are 
several other conditions, and FRA urges track owners to consider all 
conditions, not just the listed examples.
    In doing this, railroads will address the root of the problem--
i.e., preventing cracks from developing--rather than merely reacting to 
cracks after they have developed. It is understood that certain 
conditions involving rail joints and the surrounding CWR contribute to 
the development and propagation of cracks in rail joints. If track 
inspectors can inspect for these conditions, detect these conditions, 
and provide information so that railroads can correct these conditions, 
it will reduce the probability of joint failures and subsequent train 
accidents.
    Furthermore, this preventive approach is more appropriate given 
that the development of a crack in a rail joint bar can progress at an 
unpredictable rate. Some cracks might exist for years without causing a 
rupture of the joint, while other cracks can progress rapidly from an 
undetectable size to complete failure. For example, a joint can 
completely fail under a single impact load if the joint is subjected to 
low temperatures and very high-tension forces.
    FRA believes that the time and effort it takes a track inspector to 
perform a complete inspection will be minimal while the benefit of a 
complete inspection will be high. Once a track inspector has arrived at 
a location to inspect a joint and begun inspecting that joint, it takes 
little time and effort (over and above the effort to search for and 
identify cracks in joint bars) for him or her to note the condition of 
the entire joint and its surroundings. There are both safety and 
management benefits to a complete inspection. The safety benefit is 
obvious in that it prevents derailments. As for management benefits, 
track owners will save money and time, because it is easier and more 
cost effective to repair incipient joint conditions than actual joint 
cracks. For example, it is more economical to replace joint bolts or to 
reset rail anchors (i.e., incipient failure conditions) than it is to 
replace a joint bar after it has developed a crack.
    FRA realizes that inspections at a frequency that could detect 
incipient cracks prior to the possibility of failure in every case are 
not feasible given the current levels of railroad staffing and in light 
of the impediments to train operations that would result from 
restrictions required to provide for the safety and mobility of 
inspection personnel. However, proper preparation and maintenance of 
joints, together with appropriate instructions, can reduce the 
frequency of crack formation and also prevent rapid propagation in most 
cases--making a program of inspection both more feasible and more cost 
effective.
    Subparagraph (e)(1)(C) requires that FRA ``establish a program to 
[periodically] review continuous welded rail joint bar inspection 
data'' from railroads and FRA track inspectors. Clearly, FRA can gather 
and review the joint bar inspection data from its own inspectors' 
inspections. However, in order for FRA to review railroad CWR joint bar 
inspection data, track owners must gather that data and make it 
available to FRA for review. Accordingly, this rule now requires track 
owners to keep this data and make it available to FRA. See Sec.  
213.119(i)(3).
    In order to effectively manage the joint inspection process, a 
track owner must be able to clearly locate and identify each joint to 
be inspected. Location means that the inspector knows the right place 
to go. Identification means that the inspector can find the proper 
joint. The location might be in miles to the nearest one-hundredth or 
in Global Positioning System (GPS) coordinates to the nearest ten 
meters. Because there could be several joints (e.g., three or four) in 
that same location, the identification of the joint will resolve that 
ambiguity. The identification might be a unique mark on the joint or a 
description in the record (e.g., first joint in the south rail of Track 
2, 37 feet west of the insulated joint at Signal 109.2).
    A track owner will need to pass on this information to maintenance 
groups responsible for remedying the deficiencies found during 
inspections. It is important that track owners provide accurate 
information on the location of the joint and a clear identification of 
the joint, to ensure that the maintenance groups are working in the 
right place. An adequate inspection process must also identify the 
joints that have received the required inspection and

[[Page 66292]]

those that are due for inspection. This ensures that the track owner 
performs inspections at the required frequency.
    FRA notes that, in many cases, this same information is already 
required to carry out existing CWR plans since most joints in CWR 
territory are now so-called ``temporary joints'' that correspond with 
locations where adjustment of the track structure is needed to prevent 
track buckling that results from a combination of thermal inputs and 
disturbance at other-than-neutral temperature. These joints, in most 
cases, were created when a section of the rail was cut out to remove an 
internal flaw.
    There is not yet an established, efficient method for detecting 
cracks in joint bars by means of automated non-destructive testing 
(NDT). FRA believes that such a system might be developed, and that a 
requirement for effective joint bar inspection by either visual or 
other effective means can provide an incentive for the railroad 
industry to develop such a system. FRA is aware that some railroads do 
employ portable, hand-held equipment to conduct NDT of joint bars.
    Use of this NDT technology, in addition to careful visual 
inspection, is encouraged where judged effective. However, FRA notes 
that there is insufficient engineering data to establish the 
effectiveness of NDT techniques as applied to joint bars in the service 
environment. Further, as illustrated by the ongoing examination of NDT 
technology and services by the joint FRA/industry Rail Integrity Task 
Force,\6\ operator qualification and quality control remain areas of 
concern. Accordingly, FRA focuses the ``benchmark'' inspection 
requirements of this IFR on visual inspection by a qualified track 
inspector.
---------------------------------------------------------------------------

    \6\ The Rail Integrity Task Force is a joint FRA/industry 
working group. It was convened in April 2002 to identify ``best 
practices'' within the railroad industry regarding the inspection, 
maintenance, and replacement of rail. The goal of the task force is 
to ``reduce rail-related accidents and casualties resulting from 
derailments caused by broken rail.''
    The task force is comprised of subject-matter experts from the 
major heavy-haul railroads, the Association of American Railroads, 
FRA's Office of Safety Assurance and Compliance, FRA's Office of 
Railroad Development, as well as technical support from the Volpe 
National Transportation Systems Center. The task force has also 
requested and received input from all of the service providers in 
the field of nondestructive testing of rail.
---------------------------------------------------------------------------

    FRA requests comments on this IFR. FRA will consider any comments 
it receives and where appropriate, revise the final rule accordingly. 
In addition, FRA had provided the Railroad Safety Advisory Committee 
(RSAC) with an opportunity to review the prospective comments to this 
IFR. There was a meeting of the full RSAC on October 11, 2005. At that 
time, FRA offered the RSAC the task of reviewing comments to the IFR 
and more generally examining the status of railroad CWR plans, 
including joint integrity. The RSAC would have been free to suggest 
improvements to this IFR, together with other proposals that will 
advance the safety of train operations over CWR track, however the RSAC 
was unable to agree upon a task statement (defining the scope of the 
activity) that would meet the needs of each of the major stakeholder 
organizations whose participation would have been required in a RSAC 
working group. Failing consensus among the major stakeholders, FRA 
indicated that a task may be offered at a subsequent meeting.

V. Section-by-Section Analysis

Section 213.119, in General

    FRA is revising Sec.  213.119 by requiring track owners to 
incorporate into their CWR plans written procedures on the inspection 
of joints in CWR. This will require most track owners to amend their 
existing CWR plans. Track owners must also create and maintain records 
of these inspections. FRA provides details of these new provisions 
below.

Section 213.119(g)

    Paragraph (g) requires each track owner to include in its CWR plan 
provisions for the scheduling and conducting of joint inspections. A 
person who is qualified under Sec.  213.7 should perform these 
inspections on foot at the joint.

Section 213.119(g)(1)

    New subparagraph (g)(1) identifies those items relating to joint 
inspections which track owners must address in their CWR plans. FRA 
notes that these items are the minimum, which track owners should 
address. Track owners are, of course, free to include additional items 
in their respective CWR plans.
    This subparagraph refers to both periodic and special on-foot 
inspections. ``Periodic inspections'' are those inspections of joints 
in CWR that railroads will conduct on a regular basis. ``Special 
inspections'' are those inspections that track owners should initiate 
in response to (1) indications of damage to a joint, (2) environmental 
conditions, including severe cold weather, that can adversely effect 
the integrity of the joint, or (3) other unusual circumstances 
concerning a joint.
    Track inspectors should identify and record these listed items 
during their inspections of joints, because these items are related to 
the integrity of the joint and thus, to the safety of trains that 
operate over the joint.
    Joint bars with visible or otherwise detectable cracks. These 
cracks should be identified, because they can progress at an 
unpredictable rate, leading to the eventual rupture of the joint bar 
and then the misalignment of the rails and a derailment.
    Loose, bent, or missing joint bolt. The bolts through the joint 
bars and rail ends are a vital component of the joint. Bolts are 
supposed to keep joint bars firmly supported to the joint. Where bolts 
are missing, loose, or bent, the bolts will fail to keep the joint bars 
firmly in contact with the rails. The rails are then liable to separate 
when there is cold weather and the cold weather causes high-tension 
forces through the joint.
    Bolts in joints with bars that are separated from the web of the 
rail at the bolt holes tend to fail when the bolts bend. When the bolts 
bend beyond their elastic limit, they lose their design tension, and 
they are no longer capable of holding the joint bars firmly against the 
rail. The joint then permits the rails to move in relation to each 
other under passing wheels, causing increased impact loads on the joint 
and battering of the adjoining rail ends. This can potentially lead to 
cracks and eventually fracture of the joint bars or rail ends.
    Rail end batter or mismatch that contributes to impact loads and 
instability of the joint. Rail end batter refers to the displacement of 
rail steel in the tread at the end of the rail. Rail end batter occurs 
when wheels pass over a joint and (1) the rails are pulled apart to the 
extent that the wheels can drop slightly into the gap, and/or (2) the 
rail ends are mismatched. Rail ends can be mismatched because joint 
bolts are loose or because the rails do not match when installed.
    Excessive rail end batter causes high impact forces on all 
components of the joint; this can cause the joint bar or the rail to 
rupture. Also, vibrations at a battered joint can cause loss of 
consolidation of ballast at the joint, leaving the joint vulnerable to 
thermal buckling when high compressive forces are generated in the 
rails.
    Evidence of excessive longitudinal rail movement in or near the 
joint, including, but not limited to, wide rail gap, defective joint 
bolts, disturbed ballast, surface deviations, gap between tie plates 
and rail, or displaced rail anchors. Longitudinal rail movement is 
evidence that the rails might not be securely anchored, that excessive 
tension forces are developing in the rail when it is cold, or that the 
joint bolts have lost their clamping properties after

[[Page 66293]]

being stretched in bending. As wheels pass over and drop into the gap, 
there are high impact forces on the joint. This can have the same 
consequences as described above for rail end batter. These tension 
forces, combined with additional impact loads, have a tendency to cause 
cracks and to cause rupture of joint bars and rail.

Section 213.119(g)(2)

    This subsection requires track owners to do the following when 
formulating the procedures under Sec.  213.119(g)(1): (1) Implement a 
system for identifying joints in CWR; (2) institute a procedure to 
inventory joints in CWR; (3) specify the conditions of potential joint 
failure for which personnel must inspect (including, at a minimum, the 
items listed in subparagraph (g)(1)); (4) specify the remedial action 
that personnel should take when they discover joints that are out of 
compliance with either part 213 or the track owner's CWR plan; and (5) 
specify the timing of inspections.
    Subparagraph (g)(2)(v) requires track owners to specify the timing 
of inspections. It also establishes minimum inspection frequencies for 
certain joints. The differences are based on the class of track and the 
operation of passenger trains. The rule requires all joints in CWR in 
track classes 4 and higher to be inspected before October 31, 2006 and 
within 190 days of the previous inspection thereafter. It requires all 
joints in class 3, and class 2 track on which passenger trains operate, 
to be inspected before April 30, 2007 and within 370 days of the 
previous inspection thereafter. FRA requires railroads to conduct 
inspections more frequently for the higher class tracks (classes 4, 5, 
and 6), because trains operate over these tracks at a faster speed and 
therefore the consequences of an accident are much more serious.
    The rule does not establish minimum inspection frequencies for 
joints in class 1 track, or class 2 track over which passenger trains 
do not operate. FRA believes that the costs would outweigh the benefits 
if FRA set minimums for all the lower classes of tracks. In addition, 
trains that operate over the lower classes of track do so at slower 
speeds and so there is less risk of accident and less serious 
consequences of an accident.
    FRA emphasizes that the inspection frequency in subparagraph 
(g)(2)(v) is a minimum requirement. FRA notes that certain joints, due 
to their configuration, condition, or environmental circumstances, will 
probably require more frequent inspections. Examples would be joints 
with only four bolts, joints that give an indication of high rail 
tension loads, or joints in segments of track subject to wide 
variations of temperature. FRA also notes that joints in CWR often 
provide the first indication of thermal rail distress (either high 
compressive or tension forces) or incipient buckling. Therefore it 
would be prudent for a track owner to include provisions that pay 
special attention to joints where there are likely to be temperature 
extremes at either end of the spectrum.
    For a rail joint management program to be effective, the results of 
an inspection must be clearly associated with the joint that has been 
inspected. This is necessary so that a work group dispatched to repair 
a joint will be able to locate the joint and confirm that they are at 
the correct location. It is up to the track owner to determine the 
method of identification and correlation. Possible methods include 
marking the joint or the adjacent track with a unique number or using 
Global Positioning System receivers.
    FRA notes that part 213 has existing requirements addressing rail 
joints, including requirements for remediating cracked or broken joint 
bars. For instance, pursuant to Sec.  213.121(b), ``if a joint bar on 
Classes 3 through 5 track is cracked, broken, or because of wear allows 
excessive vertical movement of either rail when all bolts are tight, it 
shall be replaced.'' Also, pursuant to Sec.  213.121(b), ``if a joint 
bar is cracked or broken between the middle two bolt holes it shall be 
replaced.'' Existing requirements for rail joints will continue to 
apply to all rail joints, regardless of whether the rail joints are in 
CWR or in conventional jointed rail. See Sec.  213.121.

Section 213.119(g)(3)

    This subsection permits a track owner to devise an alternate 
program for the inspection of joints in CWR. A track owner seeking to 
deviate from the minimum inspection frequencies specified in Sec. Sec.  
213.119(g)(1) and (2) should submit the alternate procedures and a 
supporting statement of justification to FRA's Associate Administrator 
for Safety (Associate Administrator). In the supporting statement, the 
track owner must include data and analysis that establishes to the 
satisfaction of the Associate Administrator for Safety that the 
alternate procedures provide at least an equivalent level of safety 
across the railroad.
    If the Associate Administrator for Safety approves the alternate 
procedures, the Associate Administrator will notify the track owner of 
such approval in writing. In that written notification, the Associate 
Administrator will specify the date on which the alternate procedures 
will become effective. After that date, the track owner shall comply 
with the approved procedures. If the Associate Administrator determines 
that the alternate procedures do not provide an equivalent level of 
safety, the Associate Administrator will disapprove the alternate 
procedures in writing. While a determination is pending with the 
Associate Administrator, the track owner shall continue to comply with 
the requirements contained in Sec. Sec.  213.119(g)(1) and (2).
    FRA expects that the track owner will include a risk analysis in 
its supporting statement of justification for alternate procedures. The 
risk analysis, whether qualitative or quantitative, should demonstrate 
that the track owner's program is at least as good (as applied across 
the entire railroad) as the benchmark level of inspection that FRA 
mandates in this IFR. The risk analysis would likely address such 
issues as tonnage, grades, curvature, prior joint failure rates (with 
respect to frequency), type of traffic, average train speed, and 
proximity to populations. The track owner might use risk analysis 
techniques to focus more frequent inspections in areas of greater risk 
(e.g., approaches to bridges, close proximity to populated areas, heavy 
tonnage, significant hazardous materials traffic), while utilizing a 
lesser frequency at other locations and optimizing safety and 
efficiency.
    FRA will be most anxious to learn when an efficient, effective, and 
economical automated procedure for joint bar inspection is developed. 
To this end, FRA is making efforts to explore new technologies for 
inspecting joint bars. FRA's Office of Research and Development is 
currently funding research to develop an automated, vehicle-mounted, 
visual imaging system that can survey joint bars across a territory by 
recording digital photographic images and generating the data to 
exception reports.
    The Rail Integrity Task Force,\7\ a joint FRA/industry working 
group, is also exploring the conditions under which railroads can more 
effectively detect joint bar cracks. One of the primary objectives of 
this Task Force is to review industry best practices for the 
inspection, maintenance, and replacement of rail. The Task Force is 
examining options for vehicle-mounted non-destructive testing that 
might, at a future date, provide the ability to detect

[[Page 66294]]

both internal defects as well as cracks in joint bars.
---------------------------------------------------------------------------

    \7\ See footnote 6 supra.
---------------------------------------------------------------------------

    Technology (including frequent automated track geometry surveys) 
and sound CWR management, including prompt removal of so-called 
``temporary'' joints, may provide the additional information required 
to verify the ongoing integrity of joints in CWR. The alternative 
procedures provision of this IFR will allow track owners to take 
advantage of these new approaches as they become available.

Sections 213.119(h)-(j)

    With the addition of a new section 213.119(g), FRA has renumbered 
the old paragraphs (g), (h), and (i). The training requirements 
previously located in Sec.  213.119(g) are now located in Sec.  
213.119(h). The recordkeeping requirements previously located in Sec.  
213.119(h) are now located in Sec.  213.119(i). The definitions section 
formerly located in Sec.  213.119(i) are now located in Sec.  
213.119(j).

Section 213.119(i)

    Paragraph (i) contains the recordkeeping requirements for railroads 
that have track constructed of CWR. At a minimum, railroads must keep 
records of the items listed in Sec.  213.119(i)(1) through (i)(3). With 
this interim final rule, FRA has added the recordkeeping requirement 
listed in (i)(3).
    Subparagraph (i)(3)(A) provides that railroads must keep records of 
joint inspections. The record must include, at the most basic level, 
the fact that personnel performed an inspection of the joint. The 
record must include the location of each joint, and each joint must be 
identified with sufficient precision that personnel could subsequently 
locate and identify the joint without ambiguity. In addition, the 
record must clearly convey the results of the inspection of each joint, 
so that the personnel correcting the deficiencies will know what 
actions they must take. Finally, the record must include the remedial 
action required (if any) by the track owner's CWR plan. Subparagraph 
(i)(3)(B) provides that track owners must maintain these joint 
inspection records in accordance with Sec.  213.241.

Section 213.241(b)

    FRA has added Sec.  213.119 to the list of sections in Sec.  
213.241(b), thereby requiring that inspections of joints made pursuant 
to Sec.  213.119 comply with the inspection record requirements found 
in Sec.  213.241(b).

Section 213.343(j)

    Subpart G of Part 213 contains the track safety standards for train 
operations at track classes 6 and higher. Section 213.343 (which is 
found in subpart G) contains the CWR requirements for train operations 
at track classes 6 and higher. FRA is adding paragraph (j) to 213.343. 
It applies the joint bar inspection requirements in the revised 213.119 
to train operations at track classes 6 and higher. Accordingly, Sec.  
213.343(j) states that track owners shall revise their CWR plans to 
include provisions for the inspection of joint bars in accordance with 
Sec. Sec.  213.119(g) and (i)(3).

Appendix B to Part 213--Schedule of Civil Penalties

    FRA made a minor change to the Schedule of Civil Penalties. Because 
FRA added a new paragraph to Sec.  213.119, FRA adjusted the civil 
penalty schedule accordingly.

VI. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures and determined to be non-significant under both 
Executive Order 128566 and DOT policies and procedures. 44 FR 11034; 
February 26, 1979.
    As part of the regulatory impact analysis, FRA has assessed a 
quantitative measurement of costs and benefits expected from the 
implementation of this interim final rule. The major costs anticipated 
from implementing this IFR include: the modification of existing CWR 
plans, the modification of existing software to take an inventory, and 
the deterioration of safety on track other than that with CWR joints. 
The major benefit anticipated from implementing this IFR will be a 
decrease in rule-affected accidents.
    The rule will result in an initial cost of $137,000. Depending upon 
the railroad's implementation, it may also result in an increase of 
some accidents of $20,000 per year and a decrease in rule-affected 
accidents of $790,000 per year, for a net decrease in accident costs of 
$770,000. This yields a net benefit of $653,000 in the first year and 
$770,000 per year in subsequent years.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (the Act) (5 U.S.C. 601 et 
seq.) requires a review of proposed and final rules to assess their 
impact on small entities. The U.S. Small Business Administration (SBA) 
stipulates in its ``Size Standards'' that the largest a railroad 
business firm that is ``for-profit'' may be, and still be classified as 
a ``small entity'' is 1,500 employees for ``Line-Haul Operating 
Railroads,'' and 500 employees for ``Switching and Terminal 
Establishments.'' ``Small entity'' is defined in the Act as a small 
business concern that is not independently owned and operated, and is 
not dominant in its field of operation. SBA's ``size standards'' may be 
altered by federal agencies after consultation with SBA and in 
conjunction with public comment. Pursuant to that authority, FRA has 
published a final policy, which formally establishes ``small entities'' 
as railroads that meet the line haulage revenue requirements of a Class 
III railroad. The revenue requirements are currently $20 million or 
less in annual operating revenue. The $20 million limit (which is 
adjusted by applying the railroad revenue deflator adjustment) is based 
on the Surface Transportation Board's (STB) threshold for a Class III 
railroad carrier. FRA uses the same revenue dollar limit to determine 
whether a railroad or shipper or contractor is a small entity.
    In this IFR, there are approximately 200 small railroads that have 
CWR and are affected. FRA has adopted a phase-in to minimize the 
significant economic impact on these small entities. As FRA is 
publishing this rule as an IFR in order to comply with statutory 
requirements, FRA has not received any comments yet. FRA requests 
comments on this economic analysis and encourages small entities to 
comment on the impact on small entities.

C. Paperwork Reduction Act

    The information collection requirements in this IFR have been 
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 
section that contains the new information collection requirements is 
noted and the estimated time to fulfill each of the other requirements 
is as follows:

[[Page 66295]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                           Total amount    Total annual
           CFR section                Respondent  universe        Total annual  responses     Average time per response    burden hours     burden cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
213.4--Excepted Track
    --Designation of track as     200 railroads...............  20 orders..................  15 minutes.................               5            $190
     excepted.
    --Notification to FRA about   200 railroads...............  15 notifications...........  10 minutes.................               3             114
     removal of excepted track.
213.5--Responsibility of track    685 railroads...............  10 notifications...........  8 hours....................              80           3,040
 owners.
213.7--Designation of qualified
 persons to supervise certain
 renewals and inspect track
    --Designations..............  685 railroads...............  1,500 names................  10 minutes.................             250           9,500
    --Designations (partially     685 railroads...............  250 names..................  10 minutes.................              42           1,596
     qualified) under paragraph
     (c) of this section.
213.17--Waivers.................  685 railroads...............  6 petitions................  24 hours...................             144           5,472
213.57--Curves, elevation and
 speed limitations
    --Request to FRA for          685 railroads...............  2 requests.................  40 hours...................              80           3,040
     approval.
    --Notification to FRA with    685 railroads...............  2 notifications............  45 minutes.................               2              76
     written consent of other
     affected track owners.
    --Test Plans For Higher       1 railroad..................  2 test plans...............  16 hours...................              32           1,216
     Curving Speeds.
213.110--Gage Restraint           685 railroads...............  10 notifications + 2 tech    45 min./4 hours............              16             608
 Measurement Systems (GRMS)--                                    rpts.
 Implementing GRMS--Notices &
 Reports.
    --GRMS Vehicle Output         685 railroads...............  50 reports.................  5 minutes..................               4             152
     Reports.
    --GRMS Vehicle Exception      685 railroads...............  50 reports.................  5 minutes..................               4             152
     Reports.
    --GRMS/PTLF--Procedures For   685 railroads...............  4 proc. Docs...............  2 hours....................               8             305
     Data Integrity.
    --GRMS Training Programs/     685 railroads...............  2 prog. + 5 sess...........  16 hours...................             112           4,256
     Sessions.
    --GRMS Inspection Records...  685 railroads...............  50 records.................  2 hours....................             100           3,800
213.119--Continuous welded rail
 (CWR), general
(g) Written procedures for CWR    239 railroads/ASLRRA........  240 modif. proc............  3 hrs./1 hr................             320  0 (Included in
 (New).                                                                                                                                         IFA RIA)
                                                                                                                                                 667,652
    --Alternate Procedures For    239 railroads...............  7 letters + 7 proc.........  30 min. + 953 hrs..........           6,675         667,652
     Rail Joints (New).
    --Training Programs For CWR   239 railroads/ASLRRA........  240 training Prog..........  2 hea./12 hours............             490          18,620
     Procedures (New).
    --Record Keeping............  239 railroads...............  2,000 records..............  10 minutes.................             233          12,654
    --Record Keeping For CWR      239 railroads...............  360,000 rcds...............  2 minutes..................          12,000         456,000
     Rail Joints (New).
    --Periodic Records For CWR    239 railroads...............  480,000 rcds...............  1 minute...................           8,000         304,000
     Rail Joints (New).
213.233--Track inspections......  685 railroads...............  2,500 inspections..........  1 minute...................              42           1,512
213.241--Inspection records.....  685 railroads...............  1,542,089 rcds.............  Varies.....................       1,672,941      60,225,876
213.303--Responsibility for       2 railroads.................  1 petition.................  8 hours....................               8             304
 Compliance.
213.305--Designation of           2 railroads.................  150 designations...........  10 minutes.................              25             950
 qualified individuals; general
 qualifications.
    --Designations (Partially     2 railroads.................  20 designations............  10 minutes.................               3             114
     qualified).
213.317--Waivers................  2 railroads.................  1 petition.................  24 hours...................              24             912
213.329--Curves, elevation and
 speed limitations
    --FRA approval of qualified   2 railroads.................  3 notifications............  40 hours...................             120           4,560
     equipment and higher
     curving speeds.
    --Written notification to     2 railroads.................  3 notifications............  45 minutes.................               2              76
     FRA with written consent of
     other affected track owners.
  2213.333--Automated Vehicle
   Inspection System.
    --Track Geometry Measurement  3 railroads.................  18 reports.................  20 hours...................             360          12,960
     System.
    --Track/Vehicle Performance
     Measurement System:
    --Copies of most recent       2 railroads.................  13 printouts...............  20 hours...................             260           9,360
     exception printouts.
213.341--Initial inspection of
 new rail and welds
    --Mill inspection...........  2 railroads.................  2 reports..................  8 hours....................              16             608
    --Welding plan inspection...  2 railroads.................  2 reports..................  8 hours....................              16             608
    --Inspection of field welds.  2 railroads.................  125 records................  20 minutes.................              42           1,596
213.343--Continuous welded rail
 (CWR)
    --Recordkeeping.............  2 railroads.................  150 records................  10 minutes.................              25             950
213.345--Vehicle qualification    1 railroad..................  2 reports..................  16 hours...................              32           1,216
 testing.

[[Page 66296]]

 
213.347--Automotive or Railroad   1 railroad..................  2 plans....................  8 hours....................              16             608
 Crossings at grade--Protection
 Plans.
213.369--Inspection Records
    --Record of inspection......  2 railroads.................  500 records................  1 minute...................               8             288
    --Internal defect             2 railroads.................  50 records.................  5 minutes..................               4             144
     inspections and remedial
     action taken.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the function of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Robert Brogan via e-
mail at [email protected].
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Attention: Desk Officer for the Federal 
Railroad Administration, Office of Information and Regulatory Affairs, 
Washington, DC 20503, and should also send a copy of their comments to 
Robert Brogan, Federal Railroad Administration, MS-25, 1120 Vermont 
Avenue, NW., Washington, 20590; or to Victor Angelo, Federal Railroad 
Administration, MS-35, 1120 Vermont Avenue, NW., Washington, 20590. 
Comments may also be sent electronically via e-mail to Mr. Brogan at 
[email protected] or to Mr. Angelo at 
[email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this IFR 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. The IFR will respond to any 
OMB or public comments on the information collection requirements 
contained in this IFR.
    FRA cannot impose a penalty on persons for violating information 
collection requirements, which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of a final rule. The OMB 
control number, when assigned, will be announced by separate notice in 
the Federal Register.

D. Environmental Impact

    FRA has evaluated these revised track safety regulations in 
accordance with its procedures for ensuring full consideration of the 
potential environmental impacts of FRA actions, as required by the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.), other 
environmental statutes, Executive Orders, and DOT Order 5610.1c. This 
IFR meets the criteria that establish this as a non-major action for 
environmental purposes.

E. Federalism Implications

    FRA has analyzed this IFR in accordance with the principles and 
criteria contained in Executive Order 13132, issued on August 4, 1999, 
which directs Federal agencies to exercise great care in establishing 
policies that have federalism implications. See 64 FR 42355. This IFR 
will not have a substantial effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among various levels of government. This 
IFR will not have federalism implications that impose any direct 
compliance costs on State and local governments. FRA believes that this 
IFR has no federalism implications, other than the preemption of state 
laws covering the subject matter of this IFR, which occurs by operation 
of law under 49 U.S.C. 20106 whenever FRA issues a rule or order.

F. Unfunded Mandate Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) in any 1 year, and before 
promulgating any final rule for which a general notice of proposed 
rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This IFR will not result in the 
expenditure, in the aggregate, of $100,000,000 or more in any one year, 
and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) That is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has evaluated 
this IFR in accordance with Executive Order 13211. FRA has determined 
that this IFR is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy. Consequently, FRA has 
determined that

[[Page 66297]]

this IFR is not a ``significant energy action'' within the meaning of 
the Executive Order.

H. Privacy Act Statement

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

List of Subjects

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Interim Final Rule

Issuance of Interim Final Rule; Request for Public Comment

    The Administrative Procedure Act (5 U.S.C. 551 et seq.) requires 
that, before issuing a rule, the agency provide notice and the 
opportunity for public comment (Sec.  553(b)(3)(B)), except ``when the 
agency for good cause finds (and incorporates the finding and a brief 
statement of reasons therefore in the rules issued) that notice and 
public procedures thereon are impracticable, unnecessary, or contrary 
to public interest.'' FRA finds that the delay inherent to normal 
notice and comment rulemaking would be impractical if FRA intends to 
fulfill the SAFETEA-LU statutory mandate that requirements be 
implemented within 90 days. FRA has acted both immediately to implement 
this mandate and has deferred other, conflicting work. FRA would be 
unable to meet the statutory requirement for prompt action if FRA were 
to issue a notice of proposed rulemaking, receive public comment, 
consider comments received, and prepare and issue a final rule. FRA 
also finds that further delay would be contrary to the public interest, 
given the strong safety concerns expressed by the underlying statute. 
FRA believes that Congress clearly intended that FRA issue this rule in 
so short a time period in order to help prevent additional train 
accidents caused by the failure of joints in CWR in the very near term. 
Allowing time for full notice and comment procedure would frustrate 
this intent and could potentially result in train accidents that would 
otherwise be avoided by adherence to the new requirements in this rule. 
The public interest clearly supports issuance of this IFR in order to 
avoid such consequences.
    FRA requests comment on this IFR, and as required by Sec.  20103(e) 
of the Federal Railroad Safety Act, as codified (49 U.S.C. 20101 et 
seq.), will provide an opportunity for oral comment if it is requested 
prior to the expiration of the comment period.
    FRA has made this rule effective 30 days after the date of 
publication. Although FRA has considered making this rule effective 
immediately, FRA believes that railroads need time to prepare 
amendments to their CWR plans, to put administrative systems in order 
supporting this IFR, and to disseminate necessary information to their 
personnel effected by this rule. Making the rule effective within 30 
days will expedite resolution of any petitions for reconsideration and 
hasten implementation of the rule. See 49 CFR 211.29. Note that the 
compliance date for placing the revised CWR plan in place is 60 days 
following the publication of this rule, allowing time for resolution of 
any petitions for reconsideration, including any necessary technical 
corrections pointed out by any such petition, while ensuring prompt 
implementation. The interval between the effective date and the 
compliance date also provides an opportunity for official review of any 
alternative implementations.

0
For the reasons discussed in the preamble, the Federal Railroad 
Administration 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 part 213 continues to read as follows:

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


0
2. Section 213.119 is amended by revising the introductory language and 
paragraph (g) through (i) and by adding a new paragraph (j) to read as 
follows:


Sec.  213.119  Continuous welded rail (CWR); general

    Each track owner with track constructed of CWR shall have in effect 
and comply with a plan that contains written procedures which address: 
the installation, adjustment, maintenance and inspection of CWR; 
inspection of joints in CWR; and a training program for the application 
of those procedures. The plan shall be submitted to the Federal 
Railroad Administration by March 22, 1999. FRA reviews each plan for 
compliance with the following--
* * * * *
    (g) Procedures which prescribe the scheduling and conduct of 
physical track inspections to detect cracks and other indications of 
incipient failures in joints in CWR. This paragraph is effective 
January 3, 2006.
    (1) At a minimum, these procedures shall address periodic and 
special on-foot inspection of joints and of the track adjacent to 
joints, in order to identify--
    (i) Joint bars with visible or otherwise detectable cracks;
    (ii) Loose, bent, or missing joint bolts;
    (iii) Rail end batter or mismatch that contributes to impact loads 
and instability of the joint; and
    (iv) Evidence of excessive longitudinal rail movement in or near 
the joint, including, but not limited to, wide rail gap, defective 
joint bolts, disturbed ballast, surface deviations, gap between tie 
plates and rail, or displaced rail anchors.
    (2) In formulating the procedures under paragraph (g)(1) of this 
section, the track owner shall--
    (i) Implement a system for identifying each joint by its location 
in track with sufficient precision that personnel can return to the 
joint and identify it without ambiguity;
    (ii) List each joint in an inventory that will enable personnel to 
identify joints due for periodic inspection;
    (iii) Specify the conditions of potential joint failure for which 
personnel must inspect, including, at a minimum, the items listed in 
paragraph (g)(1) of this section;
    (iv) Specify the appropriate remedial actions, consistent with this 
part, that should be taken when personnel find conditions of potential 
joint failure; and
    (v) Specify the timing of the inspections, which should be based on 
the configuration and condition of the joint. At a minimum, track 
owners must specify that all joints in CWR in track classes 4 and 
higher must be inspected before October 31, 2006 and within 190 days of 
the previous inspection hereafter; and all joints in CWR in track 
classes 3, and class 2 track on which passenger trains operate, must be 
inspected before April 30, 2007 and within 370 days of the previous 
inspection thereafter.
    (3) In lieu of the requirements for the inspection of rail joints 
contained in paragraphs (g)(1) and (2) of this section, a track owner 
may seek approval from FRA to use alternate procedures.
    (i) The track owner shall submit the alternate procedures and a 
supporting statement of justification to the Associate Administrator 
for Safety (Associate Administrator).
    (ii) If the Associate Administrator finds that the alternate 
procedures

[[Page 66298]]

provide an equivalent or higher level of safety than the requirements 
in paragraphs (g)(1) and (g)(2) of this section, the Associate 
Administrator will approve the alternate procedures by notifying the 
track owner in writing. The Associate Administrator will specify in the 
written notification the date on which the procedures will become 
effective, and after that date, the track owner shall comply with the 
procedures. If the Associate Administrator determines that the 
alternate procedures do not provide an equivalent level of safety, the 
Associate Administrator will disapprove the alternate procedures in 
writing, and the track owner shall continue to comply with the 
requirements in paragraphs (g)(1) and (2) of this section.
    (iii) While a determination is pending with the Associate 
Administrator on a request submitted pursuant to paragraph (g)(3) of 
this section, the track owner shall continue to comply with the 
requirements contained in paragraphs (g)(1) and (2) of this section.
    (h) The track owner shall have in effect a comprehensive training 
program for the application of these written CWR procedures, with 
provisions for periodic re-training, for those individuals designated 
under Sec.  213.7 as qualified to supervise the installation, 
adjustment, and maintenance of CWR track and to perform inspections of 
CWR track.
    (i) The track owner shall prescribe recordkeeping requirements 
necessary to provide an adequate history of track constructed with CWR. 
At a minimum, these records must include:
    (1) Rail temperature, location and date of CWR installations. This 
record shall be retained for at least one year;
    (2) A record of any CWR installation or maintenance work that does 
not conform with the written procedures. Such record shall include the 
location of the rail and be maintained until the CWR is brought into 
conformance with such procedures;
    (3) Information on inspection of rail joints.
    (i) After the initial inspection of each joint in accordance with 
paragraph (g) of this section, the track owner must include in the 
record:
    (A) The location of each joint in CWR with such precision that the 
joint can be located and identified in the field with no ambiguity;
    (B) The results of the inspection of each joint; and
    (C) Any remedial action required under the track owner's CWR plan.
    (ii) Track owners shall maintain records required by paragraph 
(i)(3)(i) in accordance with Sec.  213.241.
    (j) As used in this section--
    (1) Adjusting/De-stressing means the procedure by which a rail's 
temperature is re-adjusted to the desired value. It typically consists 
of cutting the rail and removing rail anchoring devices, which provides 
for the necessary expansion and contraction, and then re-assembling the 
track.
    (2) Buckling Incident means the formation of a lateral mis-
alinement sufficient in magnitude to constitute a deviation from the 
Class 1 requirements specified in Sec.  213.55. These normally occur 
when rail temperatures are relatively high and are caused by high 
longitudinal compressive forces.
    (3) Continuous Welded Rail (CWR) means rail that has been welded 
together into lengths exceeding 400 feet.
    (4) Desired Rail Installation Temperature Range means the rail 
temperature range, within a specific geographical area, at which forces 
in CWR should not cause a buckling incident in extreme heat, or a pull-
apart during extreme cold weather.
    (5) Disturbed Track means the disturbance of the roadbed or ballast 
section, as a result of track maintenance or any other event, which 
reduces the lateral or longitudinal resistance of the track, or both.
    (6) Mechanical Stabilization means a type of procedure used to 
restore track resistance to disturbed track following certain 
maintenance operations. This procedure may incorporate dynamic track 
stabilizers or ballast consolidators, which are units of work equipment 
that are used as a substitute for the stabilization action provided by 
the passage of tonnage trains.
    (7) Rail Anchors means those devices which are attached to the rail 
and bear against the side of the crosstie to control longitudinal rail 
movement. Certain types of rail fasteners also act as rail anchors and 
control longitudinal rail movement by exerting a downward clamping 
force on the upper surface of the rail base.
    (8) Rail Temperature means the temperature of the rail, measured 
with a rail thermometer.
    (9) Tight/Kinky Rail means CWR which exhibits minute alinement 
irregularities which indicate that the rail is in a considerable amount 
of compression.
    (10) Train-induced Forces means the vertical, longitudinal, and 
lateral dynamic forces which are generated during train movement and 
which can contribute to the buckling potential.
    (11) Track Lateral Resistance means the resistance provided by the 
rail/crosstie structure against lateral displacement.
    (12) Track Longitudinal Resistance means the resistance provided by 
the rail anchors/rail fasteners and the ballast section to the rail/
crosstie structure against longitudinal displacement.


0
3. Section 213.241(b) is revised 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 by the person making the inspection. Records shall 
specify the track inspected, date 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 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 owner shall also designate one location, within 100 miles 
of each state in which they conduct operations, where copies of records 
which apply to those operations are either maintained or can be viewed 
following 10 days notice by the Federal Railroad Administration.


0
4. Section 213.343 is amended by adding a new paragraph (j) to read as 
follows:


Sec.  213.343  Continuous welded rail (CWR).

* * * * *
    (j) Track owners shall revise their CWR plans to include provisions 
for the inspection of joint bars in accordance with Sec. Sec.  
213.119(g) and (i)(3).


[[Page 66299]]



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

Appendix B to Part 213--Schedule of Civil Penalties

------------------------------------------------------------------------
                                                              Willful
                 Section                     Violation       violation
------------------------------------------------------------------------
 
                              * * * * * * *
Sec.   213.119 Continuous welded rail
    (a) through (i).....................           5,000           7,500
 
                              * * * * * * *
------------------------------------------------------------------------


    Issued in Washington, DC, on October 26, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 05-21845 Filed 11-1-05; 8:45 am]
BILLING CODE 4910-06-P