[Federal Register Volume 71, Number 196 (Wednesday, October 11, 2006)]
[Rules and Regulations]
[Pages 59677-59693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8599]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

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


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

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

ACTION: Final rule.

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SUMMARY: FRA is amending the Federal Track Safety Standards to improve 
the inspection of rail joints in continuous welded rail (CWR). On 
November 2, 2005, FRA published an Interim Final Rule (IFR) addressing 
the inspection of rail joints in CWR. FRA requested comments on the 
provisions of the IFR and stated that a final rule would be issued 
after a review of those comments. This final rule adopts a portion of 
the IFR and makes changes to other portions. This final rule requires 
track owners to develop and implement a procedure for the detailed 
inspection of CWR rail joints and also requires track owners to keep 
records of those inspections.

DATES: This final rule is effective October 31, 2006.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Office 
of Safety, FRA, 1120 Vermont Avenue NW., Washington, DC 20590, 
Telephone: (202) 493-6236; or Sarah Grimmer, Trial Attorney, Office of 
Chief Counsel, FRA, 1120 Vermont Ave NW., Washington, DC 20950, 
Telephone (202) 493-6390.

SUPPLEMENTARY INFORMATION:

Background

I. Continuous Welded Rail (CWR)

A. General
    CWR refers to the way in which rail is joined together to form 
track. In CWR, rails are welded together to form one continuous rail 
that may be several miles long. Although CWR is normally one continuous 
rail, there can be joints \1\ in it for one or more reasons: the need 
for insulated joints that electrically separate track segments for 
signaling purposes, the need to terminate CWR installations at a 
segment of jointed rail, or the need to remove and replace a section of 
defective rail.
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    \1\ Rail joints commonly consist of two joint bars that are 
bolted to the sides of the rail and that contact the rail at the 
bottom surface of the rail head and the top surface of the rail 
base.
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B. Statutory and Regulatory History of CWR
    The Federal Railroad Administration (FRA) issued the first Federal 
Track Safety Standards in 1971. See 36 FR 20336 (October 20, 1971). 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 (February 18, 1982) and 47 FR 
39398 (September 7, 1982). FRA stated: ``While the importance of 
controlling thermal stresses within continuous welded rail has long 
been recognized, research has not advanced to the point where specific 
safety requirements can be established.'' 47 FR 7279. FRA explained 
that continuing research might produce reliable data in this area in 
the future.
    The Rail Safety Enforcement and Review Act of 1992 (Public Law 102-
365, September 3, 1992), required that FRA evaluate procedures for 
installing and maintaining CWR. In 1994, Congress required DOT to 
evaluate cold weather installation procedures for CWR (Federal Railroad 
Safety Reauthorization Act (Pub. L. 103-272, July 5, 1994)). 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 (June 22, 1998).
    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 its CWR plan. It 
allows each railroad to develop and implement its individual CWR plan 
based on procedures which have proven effective for it over the years. 
Accordingly, procedures can vary from railroad to railroad.
    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 may require 
railroads to increase the frequency of inspection, or improve the 
methods of inspection, of joint bars in continuous welded rail.

    Pursuant to this mandate, on November 2, 2005, FRA revised the 
Track Safety Standards of 49 CFR part 213 by publishing the IFR, 70 FR 
66288, which addresses CWR. FRA requested comments on the IFR and 
provided the Railroad Safety Advisory Committee (RSAC) with an 
opportunity to review the comments on the IFR. On February 22, 2006, 
RSAC established the Track Safety Standards Working Group (working 
group). The working group was given two tasks: (1) Resolution of 
comments on the IFR, and (2) recommendations regarding FRA's role in 
oversight of CWR programs, including analysis of data to determine 
effective management of CWR safety by the railroads. The first task, 
referred to as ``Phase I'' of the CWR review, includes analyzing the 
IFR on inspection of joint bars in CWR territory, reviewing the 
comments to the IFR, and preparing recommendations for the final rule. 
The publication of this final rule concludes ``Phase I'' of RSAC's 
referral to the working group. The working group is currently reviewing 
``Phase II'' of RSAC's referral, which involves an examination of all 
of Sec.  213.119. The working group plans to

[[Page 59678]]

report on its Phase II task to the RSAC at the next full RSAC meeting.

II. Railroad Safety Advisory Committee (RSAC) Overview

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

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

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

III. RSAC Track Safety Standards Working Group

    After its establishment on February 22, 2006, the working group 
reconvened on April 4-5, 2006, April 26-28, 2006, May 24-25, 2006, and 
July 19-20, 2006 to discuss revisions to the IFR for this final rule. 
The working group considered all the comments and reached consensus on 
recommendations for a final rule. These recommendations were presented 
to the RSAC and on August 11, 2006, the RSAC accepted these 
recommendations. The RSAC voted to forward these recommendations to FRA 
as the basis for a final rule on the inspection of CWR joints.
    FRA has worked closely with the RSAC in developing its 
recommendations and believes that the RSAC has effectively addressed 
inspection of CWR joints. FRA has greatly benefitted from the open, 
informed exchange of information during the meetings. There is a 
general consensus among the railroads, rail labor organizations, state 
safety managers, and FRA concerning the primary principles FRA sets 
forth in this final rule. The working group has also benefitted from 
participation of NTSB staff. FRA believes that the expertise possessed 
by the RSAC representatives enhances the value of the recommendations, 
and FRA has made every effort to incorporate them in this rule.

IV. 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 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 two train crew members, 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

[[Page 59679]]

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.
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    \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).
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    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.
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    \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.
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    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.'' The NTSB made two 
recommendations to FRA, one of which is relevant to the discussion 
here.
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    \4\ 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).

    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.''
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    \5\ NTSB Railroad Accident Brief: Accident No. DCA-05-FR-002 
(NTSB/RAB-05/02) (March 9, 2004).
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    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 
stated further 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 to detect the developing problems and 
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.

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

    Earlier versions of Sec.  213.119 did not require track owners to 
include any provisions in their CWR plans 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. The IFR required track owners to specifically address 
joints in CWR in their respective CWR plans. The IFR focused on the 
track owner maintaining and submitting to FRA a joint inventory which 
would enable the track owner to identify joints due for periodic 
inspections. FRA's gathering of this information would have satisfied 
its obligations under SAFETEA-LU. While this final rule also requires 
track owners to specifically address joints in CWR in their CWR plans, 
it eliminates the joint inventory requirement of the IFR. 
Alternatively, this final rule requires track owners to inspect CWR 
joints at minimum intervals specific to the class of track, annual 
tonnage, and whether the track is used for freight or passenger trains. 
See Sec.  213.119(g)(6)(i). This final

[[Page 59680]]

rule also requires the track owner to submit a Fracture Report when a 
cracked or broken CWR joint is discovered pursuant to a Sec.  213.119, 
Sec.  213.233, or Sec.  213.235 inspection. The Fracture Reports will 
give FRA the information that a joint inventory would have provided. 
See Sec.  213.119(g)(7)(ii).
    To meet the statutory requirement that FRA issue this regulation 
within 90 days of the enactment of SAFETEA-LU, FRA issued the IFR on 
November 2, 2005. This final rule 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.
    Paragraph (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 on-foot 
inspections of CWR joints. See Sec.  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 this final rule, FRA lists examples of conditions that 
may indicate potential failure. This list is not all-inclusive. There 
are other conditions that could indicate failure, and FRA urges track 
owners to consider all conditions, not just the listed examples.
    In doing this, railroads will address a preemptive solution--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 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 arrives at a 
location to inspect a joint and begins inspecting that joint, it takes 
little time and effort (beyond 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., potential 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 railroad 
traffic, 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. Proper preparation and maintenance of 
joints, however, together with appropriate joint inspection 
instructions, can reduce the frequency of crack formation and also 
prevent rapid propagation in most cases--making a sound program of 
inspection both feasible and more cost effective.
    Paragraph (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. In order for FRA to review railroad CWR joint bar 
inspection data, however, track owners must gather that data and make 
it available to FRA for review. Accordingly, this rule now requires 
track owners to compile a Fracture Report and submit it to FRA. See 
Sec.  213.119(g)(7)(ii). As discussed in more detail below, a Fracture 
Report is a record which the track owner must prepare whenever a 
cracked or broken CWR joint is discovered pursuant to a Sec.  213.119, 
Sec.  213.233, or Sec.  213.235 inspection.
    There is not yet an established, efficient method for detecting 
cracks in joint bars by traditional 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. The 
use of NDT will be discussed further in the section-by-section analysis 
of Sec.  213.119(g)(8).
    NDT technology, in addition to careful visual inspection, could be 
used where judged effective. FRA notes, however, 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 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.
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    \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 AAR, 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.
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VI. Response to Public Comments

    FRA received seventeen comments in response to the IFR. The 
comments addressed concerns over a variety of issues, including: 
inspection frequencies, the economic analysis of the regulation, the 
training of track inspectors, the availability of CWR plans, the joint 
inventory requirement of

[[Page 59681]]

the IFR, the recordkeeping requirements, and other various issues. The 
working group addressed each comment in its meetings. A more detailed 
discussion of the public comments will be found in the section-by-
section analysis.
A. Inspection Frequency
    The IFR required a track owner's CWR plan to specify the timing of 
joint inspections based on the configuration and condition of the 
particular joint. The IFR provided minimum inspection intervals of 
every 190 days for track classes 4 and higher and every 370 days for 
class 3 track and class 2 track on which passenger trains operate. 
Public comments on the required inspection frequency were numerous and 
varied. For example, BMWED desired much more frequent inspections 
(i.e., monthly), while other commenters suggested risk-based (variable) 
inspection intervals taking into account the presence of passenger 
trains, hazardous materials or the proximity of railroad operations to 
population centers. Suggestions to increase inspection frequency 
dominated comments addressing inspection frequency. Further, railroad 
commenters were almost unanimously opposed to the inventory 
requirements imposed by the IFR, and some implied that the inventory 
was far more burdensome than increased inspection frequency would be.
    Several Senators urged FRA to increase the required inspection 
frequencies. In a filing supported by three members of the California 
congressional delegation and several local officials, the California 
Public Utilities Commission recommended that FRA require more frequent 
inspections and take into consideration more factors in determining 
inspection intervals, such as population density and risk associated 
with hazardous materials. FRA and the RSAC carefully considered these 
comments. FRA also took into account the fact that railroad CWR 
procedures filed in response to the IFR failed to address circumstances 
that might warrant more frequent inspection.
    The FRA decided upon an inspection frequency in lieu of an 
inventory requirement after considering many different approaches. The 
inspection frequency was based upon model results developed by the 
Department of Transportation's Volpe Center (Volpe), the practical 
realities of railroad operations, as well as discussions, negotiations, 
and compromises combining practicality, enforceability, and 
effectiveness. The RSAC working group discussed all of these 
considerations at its meetings.
    Volpe developed several engineering models to estimate the loads 
imposed on a rail joint. As is true of all models, they were 
simplifications of reality designed to give insight into underlying 
facts. The models considered the effects of various joint 
characteristics such as rail section, rail end gap, batter, height 
mismatch and vertical support. Loads were used to infer stresses in the 
joint bar which permitted the conduct of a fatigue analysis to 
determine the tonnage, expressed as million gross tons (MGT), required 
to develop a fatigue crack in the bar. The models were based on an 
assumed rectangular cross section, which, although very different from 
the actual joint bar shape, seemed to give adequate direction when 
later compared to actual experience. Under the assumed baseline joint 
conditions, bar fatigue life was estimated to be greater than 5,000 
MGT.
    Fatigue life is only tangentially related to a reasonable 
inspection interval. Crack growth life after crack initiation is far 
more important. Volpe applied fracture mechanics principles to estimate 
the tonnage required to grow the crack from a barely detectable size to 
the size at which the bar would fracture under the next train. For the 
same baseline joint conditions, the analysis yielded a fatigue crack 
growth life estimate of 13 MGT, using a minimum detectable crack size 
of one-sixteenth of an inch. Smaller initial crack sizes yielded 
dramatically longer fatigue lives, and larger initial crack sizes 
yielded dramatically shorter fatigue lives. Further, the fatigue and 
crack growth lives are extremely sensitive to the conditions of the 
joint. Poor joint conditions result in shorter estimated lifetimes, 
while better conditions increase the expected joint bar life. For each 
case, Volpe fatigue life estimates are conservative, as the analysis 
predicts first percentile life. That is, the fatigue life estimate is 
the tonnage at which one percent of joint population can be expected to 
have formed a crack--a standard engineering approach to estimating 
fatigue life. The Volpe crack growth models also have some conservative 
features. The Volpe model seemed to forecast slightly more failures 
than are being realized in actual railroad service, but FRA will 
compare the model to actual data once fracture reports become 
available.
    These results were considered by the RSAC working group and 
compared to real life experiences. Many railroads already had 
inspection plans for their CWR joints. During the RSAC working group 
meetings, numerous inspection intervals were suggested. Certain parties 
suggested that 40 MGT be used, while others wanted 10 MGT. A consensus 
was reached that 20 MGT would be a reasonable inspection interval. 
Although Volpe's model had suggested 13 MGT, the Volpe representatives 
assured FRA that 20 MGT is an appropriate inspection interval. Given 
the practical realities of conducting the required on-foot visual 
inspections required under the new rule, and FRA's heightened concerns 
about tracks with 40-60 MGT per year, certain trade-offs were made by 
RSAC in recommending the inspection frequency schedule. FRA has adopted 
the RSAC recommendations regarding inspection frequency.
    For freight-only operations, the inspection interval depends on the 
annual tonnage and the FRA track class. The inspection interval is 
approximately once every 20 MGT up to 60 MGT (or three times per year) 
for Class 4 and Class 5 track, with less frequent intervals for Class 3 
track. These intervals are greater than the estimated crack growth 
life; however, they represent a practical baseline and account for the 
likely increased severity of accidents on higher track classes. They 
are also reflective of the vast majority of freight traffic in the U.S. 
as most lines accumulate an average of approximately 60 MGT per year. 
Higher annual tonnage lines generally represent unit train operations 
consisting of coal, for example. Track with higher speeds is subject to 
more frequent inspections, because higher speed accidents are likely on 
the average to be more severe. The inspection intervals provide some 
balance between risk and cost of inspection.
    For track upon which passenger trains operate, a different schedule 
was developed which considers the potentially greater severity, 
especially in terms of loss of life, from possible future passenger 
train accidents. The inspection intervals are again graduated based on 
track class and whether the line experiences more or less than 20 MGT 
per year with more frequent inspections required for higher classes of 
track. If a track owner operates both freight and passenger trains over 
a given segment of track and there are two different possible 
inspection interval requirements, the more frequent inspection interval 
applies.
    FRA also provided relief requested by ASLRRA on behalf of smaller 
railroads, which run occasional passenger service. Pursuant to the 
frequency chart in Sec.  213.119(g)(6)(i), those railroads can run 
passenger trains at the maximum speed authorized for the next lower

[[Page 59682]]

class of track. FRA believes this is safe, because track with freight 
service is inspected at frequencies higher or equal to the inspection 
frequency of the next lower class track with passenger service.
    FRA considered adding further complexity to the required inspection 
frequency, but decided that would not be either necessary or 
productive. It is not necessary because the inspection strategy 
embodied in this final rule should be sufficient to address joint 
integrity issues (conditions that foster development of cracks) and to 
detect cracks before failure in the vast majority of cases. Further 
complexity would not be productive because available information does 
not support development of a useful inspection strategy built on other 
factors. For instance, protecting nearby populations from hazardous 
material accidents is always a desirable objective; however, most 
hazardous materials releases (which are infrequent events) occur along 
the railroads in unpopulated areas or in small rural communities--
thousands of which lie along major rail lines. Hazardous materials 
shipments traverse most rail lines, yet there is no data suggesting 
that the volume of shipments predicts the likelihood of a release in a 
train accident. After discussion of these issues, the RSAC agreed that 
an inspection strategy based on class of track, tonnage, and presence 
or absence of passenger traffic was the best approach. The RSAC also 
developed the Fracture Report process, which may lead to further 
refinement of inspection intervals over time.
B. Economic Analysis
    AAR had extensive comments on the IFR's economic analysis. First, 
AAR stated that the recordkeeping costs were underestimated, and 
stressed that the IFR's proposed inventory requirement would be more 
costly than estimated by FRA. FRA agrees that the cost estimates 
developed in connection with the IFR were based on an excessively 
optimistic assumption regarding the extent of railroads' use of 
electronic technology which would have been necessary to keep inventory 
costs reasonable. As FRA is no longer requiring an inventory, these 
costs will not be analyzed further for the final rule.
    AAR also stated that FRA underestimated the burden imposed upon 
inspectors by underestimating the time per inspection and by 
underestimating the number of joints to be inspected. In response to 
this comment, FRA will use a longer time period for inspection as part 
of a sensitivity analysis; four minutes will be allocated for each 
joint inspection in this analysis and the originally proposed one 
minute per joint inspection in a separate analysis. Although FRA worked 
with the AAR to obtain more accurate data to better estimate the number 
of joints to be inspected and the frequency to which they will be 
inspected, the AAR was not able to provide significantly improved data 
in the time available. In its comments, AAR had estimated the number of 
joints by extrapolating a total number from a six-and-a-half mile 
segment of track. FRA believes its estimates are at least as good as 
AAR's extrapolation from a six-and-a-half mile segment.
C. Joint Inventory Requirement in the IFR
    Commenters such as AAR, Long Island Railroad (LIRR) and Metro-North 
found the joint inventory requirements in the CFR to be extremely 
burdensome. In response to these comments and discussions of the RSAC 
working group, FRA has eliminated the inventory requirement of the IFR. 
The RSAC working group agreed that in lieu of the data supplied by a 
CWR Joint Inventory, the track owner would be required to submit 
Fracture Reports to the FRA twice annually. FRA will analyze the data 
provided in the reports to enhance industry knowledge with regard to 
the factors causing broken joint bars.
D. Training
    FRA received a comment from BMWED suggesting that there should be 
annual re-training of track inspectors on joint bar inspections. FRA 
interprets this comment as pertaining to CWR training in general. As 
FRA did not change the CWR training provision in the IFR, FRA has 
resolved to address training concerns in Phase II of the working 
group's task of reviewing all of Sec.  213.119.
E. Availability of CWR Plans
    FRA received comments that CWR written procedures (designated ``CWR 
plans'' under this final rule) were not made readily available for 
inspectors. FRA has resolved this issue by making all CWR plans it 
receives pursuant to Part 213 available to all FRA and State 
inspectors. However, FRA agrees that greater clarity is desirable. FRA 
will ask the working group to include a more suitable process for 
submission and dissemination of CWR plans in Phase II of its 
activities.
F. Other Comments
    FRA accepted AAR's suggestion to remove the reference to impact 
loads in the final rule. FRA also added an exception to the inspection 
frequency requirements to allow for irregularly scheduled passenger 
trains. See Sec.  213.119(g)(6)(ii). To further address this concern, 
FRA added a definition of ``unscheduled detour operation'' to the list 
of definitions in Sec.  213.119(j). In response to a comment regarding 
irregularly scheduled passenger trains, FRA created an exception for 
tourist and excursion operations in Sec.  213.119(g)(6)(iii). 
Accordingly, FRA added a definition for Tourist, Scenic, Historic, or 
Excursion Operations in Sec.  213.119(j).

VII. Section-by-Section Analysis

Section 213.119
    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, which affect Sec.  213.119(g)-(j). Paragraphs (a)-(f) of this 
section are not changed with this final rule.
Paragraph (g)
    In the IFR, this paragraph required track owners to specifically 
address joints in CWR in their respective CWR plans. This final rule 
adopts a number of changes to the IFR's provisions. Principal among 
those changes are the Fracture Report requirement and the increased 
minimum inspection frequencies. Both of these new requirements will be 
discussed in further detail below.
    This paragraph 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.  Sec.  213.7 to perform inspections 
of CWR track should perform the inspections required by this paragraph 
on foot at the joint.
Paragraph (g)(1)
    This paragraph governs periodic inspections of CWR joints. Track 
owners are required to establish procedures for conducting these 
inspections. Upon identifying actual conditions of joint failures 
(i.e., broken or cracked joint bars) or potential conditions of joint 
failure, track owners must initiate the appropriate corrective action 
and keep the appropriate records. See Sec. Sec.  213.119(g)(5) and 
213.119(g)(7). In addition, when a track owner discovers CWR joints 
that are not in compliance with the requirements of Part 213, the track 
owner must take the appropriate

[[Page 59683]]

remedial action required by Part 213. FRA notes that nothing in this 
paragraph interferes with the track owners' continuing obligation to 
conduct track inspections under Sec.  213.233.
    Periodic inspections, as referenced herein, are on-foot inspections 
of CWR joints that track owners must conduct on a regular basis. Track 
owners are required to conduct periodic inspections at the minimum 
intervals specified in paragraph (g)(6). Track owners, of course, are 
free to conduct such inspections more frequently than required.
    The IFR had also included special inspections in this paragraph. As 
a result of working group discussions, FRA removed the discussion of 
special inspections from this paragraph. Although FRA has removed the 
discussion of special inspections from Sec.  213.119(g), FRA intends to 
place it elsewhere in Sec.  213.119. FRA will include the discussion of 
special inspections (e.g., sun kinks, pull aparts, etc.) in the broader 
review of Sec.  213.119, during Phase II of this project.
Paragraph (g)(2)
    This paragraph requires track owners to identify joint bars with 
visible or otherwise detectable cracks and conduct remedial action 
pursuant to Sec.  213.121. The IFR had included cracked joint bars 
under the list of actions items, which this final rule addresses in 
paragraph (g)(3). Although the working group placed the identification 
of cracked joint bars under the list of action items as well, FRA 
decided to address them separately in this final rule. As SAFETEA-LU 
mandates FRA to promulgate regulations to improve the identification of 
cracks in joint bars, FRA is distinguishing between joint bars that are 
already cracked and joint bars that have the potential of cracking in 
the future. When a track owner discovers a cracked joint bar, he must 
take the remedial action specified in Sec.  213.121; however, if he 
discovers a joint bar with actual or potential joint failure, he must 
take the corrective action specified by his CWR plan. Corrective action 
will be further addressed in paragraph (g)(5).
Paragraph (g)(3)
    This paragraph identifies those items relating to joint inspections 
that track owners must address in their CWR plans. FRA notes that these 
items are the minimum that track owners should address. Of course, 
track owners are free to include additional items in their respective 
CWR plans. Track inspectors should identify and record these listed 
items during their inspection of joints because these items are related 
to the integrity of the joint, and thus, to the safety of trains that 
operate over these joints.
    The IFR mentioned these items, but it did not specifically state 
that they were conditions of potential joint failure. FRA notes this 
list is not all-inclusive. There are other conditions that could 
indicate failure, and FRA urges track owners to consider all 
conditions, not just these listed examples.
    Loose, bent, or missing joint bolts. The bolts through the joint 
bars and rail ends are a vital component of the joint. Bolts are meant 
to keep joint bars firmly supported against the joint. If 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 which 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 instability of the 
joint. Rail end batter refers to the deformation of the running surface 
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, or (2) the rail ends are mismatched, or 
both. 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.
    The IFR included the term ``impact loads'' as another defect to 
which rail end batter or mismatch could contribute. The RSAC working 
group determined that it was redundant to keep the term ``impact 
loads'' in the rule text, as it is understood that these conditions can 
cause extreme impact loads. Since other conditions, such as rail end 
gap, can have the same effect, FRA decided to remove the phrase 
``impact loads'' from the final rule.
    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 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. When a joint is not properly 
supported, it will deflect vertically (or swing), creating 
substantially increased stress in the joint bars and rail. Irregular 
surface deviations develop from a vertically displaced joint, which 
leads to increased lateral loading and stress at the joint. These 
tension forces, combined with additional impact loads, have a tendency 
to cause cracks and to cause rupture of joint bars and rail.
Paragraph (g)(4)
    This paragraph requires track owners to include procedures in their 
CWR plans for the inspection of CWR joints that are imbedded in 
highway-rail grade crossings or in other structures that prevent a 
complete inspection of the joint (e.g., pans in fueling facilities, 
scales, passenger walkways at stations that cover the track, etc.). The 
plans must also include procedures for the removal of loose material or 
other temporary material from the joint. FRA is adding this paragraph 
in response to comments by AAR and to subsequent discussions at RSAC 
working group meetings, as the IFR did not mention ``imbedded'' joints.
    Some working group members were concerned that they would be unable 
to inspect these ``imbedded'' joints, which are sometimes not fully 
visible on the sides and bottoms of the joint bars. Railroads did not 
want to be penalized for their inability to see, and therefore inspect, 
these joints. FRA understands that a small percentage of the joints in 
CWR are ``imbedded'' joints. FRA acknowledges that railroad engineering 
personnel have made efforts to remove these imbedded joints where 
possible, and that, nonetheless, some of these joints remain.
    With respect to the procedures for ``imbedded'' joints, FRA does 
not expect that railroads will need to disassemble or remove the track 
structure (e.g., remove pavement or crossing pads) to

[[Page 59684]]

conduct an inspection of CWR joints. However, FRA does expect that 
railroads will make every effort, to the extent practicable, to inspect 
the joints in these structures.
    FRA is aware that CWR joints may sometimes be temporarily buried 
during maintenance (e.g where ballast is distributed in the middle of 
the track and along the track) and therefore unavailable for 
inspection. FRA expects that railroads will take necessary measures to 
conduct inspections of these CWR joints. FRA expects that railroads 
will schedule their maintenance so as to allow for a complete 
inspection of these joints. Where CWR joints are buried (e.g., by 
ballast), FRA expects that railroad maintenance personnel will wait for 
the completion of the track surfacing and dressing of the ballast 
before conducting their joint bar inspections. Alternatively, railroads 
may use hand tools or mechanical means to remove ballast from the sides 
of track joints, so that they can conduct an inspection of those track 
joints.
    Finally, FRA notes that components of the track (such as crossties, 
fasteners, tie plates, etc.) are also not fully visible in highway-rail 
crossings and similar structures. FRA has never specifically exempted 
these items from the inspections required under Part 213. Instead, FRA 
expects that the railroads will inspect these areas to the maximum 
extent possible.
Paragraph (g)(5)
    This paragraph requires track owners to specify in their CWR plans 
the appropriate corrective actions that must be taken when track 
inspectors find conditions of actual or potential joint failure. The 
IFR required track owners to specify in their plans the appropriate 
remedial actions. FRA notes the difference between the terms ``remedial 
actions'' and ``corrective actions.'' Remedial actions are those 
actions which track owners are required to take as a result of 
requirements of Part 213 to address a non-compliant condition. For 
example, if a track owner discovers a cracked joint bar, he must 
replace it. See 49 CFR 213.121. Corrective actions, on the other hand, 
are those actions which track owners specify in their CWR plans to 
address conditions of potential joint failure, including, as 
applicable, repair, restrictions on operations, and additional on-foot 
repair. To ensure clarity, FRA has defined these terms in Sec.  
213.119(j).
    Follow-up inspections, as referenced herein, are joint-specific and 
conducted in response to conditions that a track owner discovers during 
periodic inspections. Track owners will identify in their CWR plans the 
conditions that trigger follow-up inspections. For example, where a 
track owner identifies ``replace bolt or inspect weekly'' as a 
corrective action for a bent bolt, if a track inspector discovers a 
bent bolt during a periodic inspection and does not immediately replace 
it, then the track inspector will have to conduct follow-up inspections 
at that joint.
Paragraph (g)(6)
    This paragraph requires railroad owners to specify the timing of 
periodic inspections. As previously mentioned, commenters criticized 
the IFR's minimum joint inspection frequency. The IFR provided minimum 
inspection intervals of every 190 days for track classes 4 and higher 
and every 370 days for class 3 track and class 2 track on which 
passenger trains operate. To address both public comments and 
discussions during RSAC working group meetings, FRA increased the 
minimum number of required joint inspections. The minimum number of 
required joint inspections are addressed in the table in paragraph 
(g)(6)(i). As previously discussed, the timing periods in this 
paragraph represent the minimum of what is expected. Railroad owners 
are encouraged to implement additional inspection periods as they 
determine necessary.
    The IFR did not allow for any exceptions to the minimum joint 
inspection frequency. Pursuant to RSAC working group recommendations, 
in paragraphs (g)(6)(ii)-(iv), FRA is allowing exceptions to the 
minimum inspection frequencies for unscheduled detours, certain 
passenger trains, and items that are already inspected on a monthly 
basis pursuant to 49 CFR 213.235. Each of these exceptions will be 
discussed in more detail below.
Paragraph (g)(6)(i)
    The table contained in this paragraph provides guidance for the 
minimum required inspection frequency of CWR joints. The working group 
developed this table to specify inspection frequencies for each class 
of track. The table contains two footnotes clarifying the inspection 
frequencies in the table.
    The first footnote provides that where a track owner operates both 
freight and passenger trains over a given segment of track, and there 
are two different possible inspection interval requirements, the more 
frequent inspection interval applies. This footnote was developed by 
the working group to address concerns over track shared by freight and 
passenger trains. It was anticipated that there could be a potential 
conflict with the inspection frequency required for the track if the 
track owner were to follow the chart for both types of trains. By 
requiring the more frequent inspections in situations of conflict, this 
footnote ensures greater safety and protection to track used for mixed 
purposes.
    The second footnote is added in response to concerns over 
sensitivity of extreme regional weather conditions. This concern was 
raised in the working group by industry representatives with regard to 
the difficulty of inspecting CWR joints in northern regions when there 
is a large amount of snow. The working group acknowledged that there 
could be times when it would be extremely difficult for a track owner 
to clear snow and ice from the joint in order for it to be seen for 
inspection. This footnote allows some flexibility for track owners in 
such a situation.
Paragraph (g)(6)(ii)
    This paragraph allows track owners to operate passenger trains 
without lowering the track speed for a limited period of time without 
adhering to the required inspection frequencies for passenger trains 
pursuant to the table in Sec.  213.119(g)(6)(i). This provision 
accommodates for unplanned outages, derailments, accidents, and other 
emergency situations. Track owners are still required to adhere to the 
applicable freight inspection frequencies. This provision is intended 
to provide relief to railroads that operate passenger trains and that 
have a last minute emergency situation. However, if a track owner 
operates passenger trains at the normal track speed for more than 
fourteen days, the track must be inspected at the appropriate passenger 
train levels as detailed in the table at Sec.  213.119(g)(6)(i).
Paragraph (g)(6)(iii)
    As defined in Sec.  213.119(j), tourist, scenic, historic, or 
excursion operations mean railroad operations that carry passengers 
with the conveyance of the passengers to a particular destination not 
being the principal purpose. These types of operations typically run 
less frequently than intercity or commuter passenger trains and occur 
most often on short-line railroads. If a track owner has an operation 
of this type on the track and does not want to take that operation into 
account in determining inspection frequency, the owner must drop the 
track speed one class with regard to that operation. This way, the 
track owner will still be in compliance with the inspection frequency 
mandated by the table in paragraph (g)(6)(i) regardless of the class of 
freight the owner runs on the track. As the first

[[Page 59685]]

footnote to the table in paragraph (g)(6)(i) states, where there are 
two different possible inspection interval requirements, the more 
frequent inspection interval applies.
Paragraph (g)(6)(iv)
    In this paragraph, FRA exempts the following items from the 
periodic inspection frequency intervals: switches, turnouts, track 
crossings, lift rail assemblies or other transition devices on moveable 
bridges. Track owners already inspect these items on a monthly basis 
pursuant to 49 CFR 213.235. Rather than apply the additional periodic 
inspection requirements (i.e, apply the intervals in the table in Sec.  
213.119(g)(6)(i) to switches and turnouts, etc), FRA believes it is 
more appropriate to have track owners conduct their inspections of 
joints at these locations during their monthly 49 CFR 213.235 
inspections.
    With respect to turnouts, FRA has historically understood and 
operated under the assumption that a turnout extends from the point of 
the switch to the heel of the frog. FRA will continue to operate under 
that assumption, and accordingly, all joints in turnouts, switches, 
etc. must be inspected monthly pursuant to 49 CFR 213.235 and records 
of these inspections must be kept in accordance with 49 CFR 213.241. 
The final rule does not require that the data elements listed in Sec.  
213.119(g)(7)(i) appear on the 49 CFR 213.235 inspection record. The 
reason for this is that, with more frequent inspections, the track 
inspector should be better able to manage joint conditions without 
maintaining detailed records.
    All joints that extend beyond the point of a switch or beyond the 
point of the heel of the frog need not be inspected monthly and instead 
can be inspected at the frequency intervals identified in Sec.  
213.119(g)(6)(i). However, track owners are free to include, in their 
monthly 49 CFR 213.235 inspection, these joints that are located in 
track structure that is adjacent to turnouts and switches. If track 
owners choose to do this, they must clearly define the parameters of 
that arrangement in their CWR plan. In other words, the track owner 
should clearly identify the physical limits of the adjacent track 
structure (e.g., insulated joints up until the signal), and they must 
clearly identify the inspection interval for joints in that adjacent 
track (e.g., ``inspect all insulated joints to the signal during the 
monthly 49 CFR 213.235 inspection.'')
    In addition, as long as track owners clearly define the parameters 
in the CWR plans, the track owner need not keep two sets of records 
(i.e., a record from the 49 CFR 213.235 inspection and a record from 
the Sec.  213.119(g)(6)(i) inspection) for inspections of these 
``adjacent'' joints. For example, if the track owner's CWR plan 
indicates that joints in crossovers between turnouts must be inspected 
during the monthly 49 CFR 213.235 inspection, and a railroad track 
inspector inspects the joints in the crossover during the monthly 49 
CFR 213.235 inspection, then it is sufficient for the track owner to 
create and maintain only the 49 CFR 213.235 record.
    FRA believes this option is useful, because it avoids the confusion 
and duplication that might otherwise result. Without this option, 
railroad track inspectors would be unsure what to note in their records 
and which track inspections require which records. In addition, FRA 
notes that it would be burdensome for track inspectors to inspect those 
``adjacent'' joints monthly and make a note of the inspection in the 
monthly 49 CFR 213.235 record and also be required to make an 
additional Sec.  213.119(g)(6)(i) record every couple of months.
Paragraph (g)(7)
    This paragraph requires track owners to keep records specific to 
CWR joint bars. As previously mentioned, the IFR required track owners 
to maintain and submit to FRA a joint inventory. In response to 
comments that this requirement was too burdensome, FRA has eliminated 
the joint inventory requirement and replaced it with the new 
recordkeeping requirements in this paragraph. FRA has distinguished 
between two major categories of records: (i) records pertaining to 
periodic follow-up inspections, and (ii) fracture reports.
Paragraph (g)(7)(i)
    This paragraph addresses the inspection reports that have to be 
created after periodic inspections required by paragraph (g)(6)(i) and 
follow-up inspections as required by the track owner's CWR plan. The 
inspection reports of the periodic inspections shall be prepared on the 
day the inspection is made and are to contain the required information. 
The periodic inspection record can be combined with other records 
required pursuant to 49 CFR 213.241.
Paragraph (g)(7)(ii)
    This paragraph requires railroads to submit Fracture Reports to the 
FRA. Railroads should complete Fracture Reports when they find cracks 
during routine inspections pursuant to Sec. Sec.  213.119(g), 213.233, 
or 213.235 on track that is required under Sec.  213.119(g)(6)(i) to be 
inspected. FRA encourages track owners to complete Fracture Reports 
whenever cracks are discovered, in addition to the required 
inspections. Track owners, however, do not need to complete a Fracture 
Report for cracks found in excepted track, Class 1 track, and Class 2 
track without passenger service.
    The Fracture Reports will enable the FRA to conduct an analysis to 
further the understanding of the factors causing CWR joint failures. 
The Fracture Reports are for data collection to expand the agency's 
expertise concerning joint failures; the FRA does not intend to use the 
Fracture Reports for enforcement purposes. Likewise, inadvertent errors 
on the Fracture Report will not be subject to civil penalties. Of 
course, should FRA encounter repeated failure to prepare and complete 
such reports, or come upon a persistent and recurring pattern of non-
reporting, FRA will take appropriate enforcement action. Track owners 
are not required to keep the Fracture Reports pursuant to the 
requirements of 49 CFR 213.241. However, FRA intends for the Fracture 
Reports to be kept until the track owner has received confirmation that 
FRA has received the data.
    FRA proposes to give the track owner a variety of means of 
submitting the Fracture Reports. The first option proposed is through 
an electronic data submission using eXtensible Markup Language (XML) 
format. FRA plans to have a transaction summary generated that will 
report the number of records submitted, the number of records accepted 
to the database, and the number of records rejected due to validation 
errors, which will be streamed back to the railroad. The second option 
involves FRA developing a special web page from which railroads can 
register and receive credentials to access a web data entry form (with 
validation capabilities) to input individual Fracture Reports. FRA is 
also considering making available a formatted Excel spreadsheet, into 
which railroads can input their Fracture Reports. This spreadsheet 
could be submitted via e-mail, electronic media, or uploaded to the FRA 
Office of Safety Analysis' Web site. As a final option, FRA plans to 
make available a printable version of the OMB approved Fracture Report 
form for download. More specific instructions regarding submission of 
the Fracture Reports will be made available prior to January 2, 2007, 
on the Office of Safety Analysis' Web site, http://safetydata.fra.dot.gov.

[[Page 59686]]

Paragraph (g)(7)(ii)(A)
    This paragraph requires that the Fracture Report be prepared on the 
day the cracked or broken CWR joint bar is found. The CWR Joint Bar 
Fracture Report was developed by a Task Force comprised of members of 
the RSAC working group. The Fracture Report is to be completed whenever 
a cracked or broken joint bar is discovered during the period 
inspections required by Sec.  213.119(g)(6)(i), as well as those 
currently required by 49 CFR 213.233 and 213.235. The fracture 
reporting requirement was implemented in order to comply, in part, with 
49 U.S.C. 20142 as amended by SAFETEA-LU (Pub. L. 109-59, August 10, 
2005). The Fracture Reports will address 29 U.S.C. 20142(e)(1)(A)'s 
instruction to improve the identification of cracks in rail joint bars, 
Sec.  20142(e)(1)(C)'s mandate to ``establish a program to review 
continuous welded rail joint bar inspection data from railroads and 
Administration track inspectors periodically,'' and Sec.  20142(e)(2)'s 
direction to adjust the frequency of inspection or improve the method 
of inspection of CWR joint bars as necessary.
    The Fracture Reports specifically address the statutory language in 
three specific ways. First, the report provides information on joint 
conditions as it addresses most joint attributes known to contribute to 
premature joint failure such as rail end batter and wide rail end gap. 
It is believed that the joint inspections and the reports generated 
when cracked or broken bars are discovered will provide useful data to 
the railroads regarding joint conditions which lead to bar failure and 
perhaps lead to early preventive measures when these conditions are 
discovered before a crack develops. Second, in addition to the joint 
bar inspection records retained by the railroads, the Fracture Reports 
provide FRA with additional insight into the effectiveness of the new 
inspection requirements. Finally, as the inspection frequency was 
developed based in part on modeling results, the Fracture Report data 
can be used to evaluate the reasonableness of the model predictions. 
Certain data elements in the report can be used to estimate joint bar 
crack growth rates, which is crucial to enabling establishment of 
proper inspection intervals. Based on the number of Fracture Reports 
submitted to the FRA and the data they provide, an assessment of the 
appropriateness of the inspection intervals can be made.
    The annual gross million ton information requested in the Fracture 
Report should be entered on the report by an appropriate employee of 
the railroad, since the railroad track inspector may not have ready 
access to this information (even though the inspector should impliedly 
be aware of the range within which the value falls as a result of 
instructions provided concerning the frequency of inspection required).
Paragraph (g)(7)(ii)(B)
    This paragraph requires the track owner to submit the information 
contained in the Fracture Reports twice annually to the FRA. FRA is 
collecting the Fracture Report data and will analyze it because 
SAFETEA-LU mandates that FRA create and gather such data. This 
information will be periodically submitted so that FRA can analyze the 
conditions that exist where cracked or broken bars were discovered. FRA 
requested that railroads submit data more frequently than annually 
because the agency decided that this practice would foster better 
analysis. The RSAC working group proposed a semi-annual submission of 
data. The group determined that more frequent submissions would be 
burdensome on the railroads. After having collected and analyzed a few 
years of data, FRA will determine whether it is necessary to continue 
collecting the data and whether to propose that inspection methods and 
minimum inspection frequencies should be varied.
Paragraph (g)(7)(ii)(C)
    This paragraph allows any track owner to petition FRA after 
February 1, 2010, to conduct a technical conference to assess whether 
there is a continued need for the collection of Fracture Report data. 
During the technical conference, the FRA would review the data 
collected, the analysis done to date, and determine if sufficient data 
has been collected to enable FRA to make a technically competent 
determination of CWR joint bar failure causes and contributing 
conditions.
Paragraph (g)(8)
    This paragraph, which maintains a provision from the IFR, 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.  213.119(g)(6) 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 that the alternate procedures provide at least an 
equivalent level of safety across the railroad.
    If the Associate Administrator 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.  213.119(g)(6).
    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 final rule. 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.
    As mentioned earlier, FRA encourages the use of new technologies 
for inspecting joint bars and new means of determining information 
relevant to future joint integrity. FRA's Office of Research and 
Development has funded 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. Use of such a system in combination with 
less frequent walking inspections that employ appropriate attention to 
joint condition action items might reduce the cost of joint bar 
inspections while enhancing prevention of joint failure.

[[Page 59687]]

    The Rail Integrity Task Force \7\ has also considered 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 discussed options for vehicle-
mounted non-destructive testing that might, at a future date, provide 
the ability to detect both internal defects as well as cracks in joint 
bars. Both FRA and the AAR, through the Transportation Technology 
Center, Inc., are working on non-destructive testing techniques that 
may be useful in the future for this purpose. Such systems may have the 
potential to identify cracks before they become visible to the eye or 
through visual imaging.
---------------------------------------------------------------------------

    \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 final rule will allow track owners to take 
advantage of these new approaches as they become available.
Paragraphs (h)-(j)
    With the addition of a new paragraph 213.119(g), FRA has renumbered 
the old paragraphs (g), (h), and (i). The training requirements 
previously located in paragraph (g) are now located in paragraph (h). 
The recordkeeping requirements previously located in paragraph (h) are 
now located in paragraph (i). The definitions section formerly located 
in paragraph (i) is now located in paragraph (j).
Paragraph (i)
    Paragraph (i) contains the recordkeeping requirements for railroads 
that have track constructed of CWR. At a minimum, a track owner must 
keep records of the items listed in paragraph (i)(1) through (i)(3). 
Paragraph (i)(1) requires a track owner to keep a record of the rail 
temperature, location and date of CWR installations. Paragraph (i)(2) 
requires a track owner to keep a record of any CWR installation or 
maintenance work that does not conform with the written procedures. 
Paragraph (i)(3) requires a track owner to keep records of information 
on inspection of rail joints as specified in paragraph (g)(7).
    The IFR required the track owner to maintain a joint inventory in 
this paragraph. Pursuant to comments received and working group 
negotiations, FRA has eliminated the joint inventory requirement; 
alternatively, FRA now requires the track owner to keep records of each 
periodic and follow-up inspection, as specified in paragraph (g)(7).
Paragraph (j)
    This paragraph defines that terms used throughout Sec.  213.119. In 
this final rule, FRA is adding definitions for ``Action Item,'' 
``Corrective Actions,'' ``CWR Joint,'' and ``Remedial Actions'' to 
clarify their usage.
    Action Items mean the rail joint conditions that track owners 
identify in their CWR plans pursuant to paragraph (g)(3) which require 
a corrective action. Section 213.119(g)(3) identifies the broad 
categories that track owners need to address (e.g., rail end batter or 
mismatch). Track owners will need to identify specific criteria/
thresholds in their respective CWR plans (e.g., how many inches of rail 
end batter is permissible, at what amount of mismatch must railroads 
take corrective actions, and what corrective actions must they take). 
FRA would like to note that these broad categories are only the 
required minimums. Track owners are free to identify additional 
categories and set thresholds for these categories.
    Corrective Actions mean those actions which track owners specify in 
their CWR plans to address conditions of actual or potential joint 
failure, including, as applicable, repair, restrictions on operations, 
and additional on-foot inspections. This term is used in Sec.  
213.119(g)(5).
    CWR Joint means (a) any joint directly connected to CWR, and (b) 
any joint(s) in a segment of rail between CWR strings that are less 
than 195 feet apart, except joints located on jointed sections on 
bridges. CWR joint had not been defined in the past, and the RSAC 
working group defined ``CWR joint'' to clarify to which joints the new 
provisions would apply. The working group agreed that the force exerted 
by CWR extends beyond the joint at the end of the string. This 
definition is intended to include joints affected by CWR, and joints 
that are intended to be in CWR but by the addition of temporary joints 
may not be directly attached to a CWR string, such as an insulated 
joint plug rail. As many bridges have jointed rail by design, this 
definition would not include jointed rail joints on bridges.
    Remedial Actions are those items which track owners are required to 
take as a result of requirements in Part 213 to address a non-compliant 
condition.

VIII. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures
    This final rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under both 
Executive Order 128566 and DOT policies and procedures. See 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 final rule. The major costs 
anticipated from implementing this final rule include: the modification 
of existing CWR plans, conduct of some additional required on-foot 
inspections, and preparation and submission of Fracture Reports. The 
major benefit anticipated from implementing this final rule will be a 
decrease in rule-affected accidents.
    This final rule is not anticipated to have very much economic 
impact, as track owners are already inspecting many of the joints 
covered by the final rule. This final rule will create annual benefits 
of $790,000 for an initial cost of $58,000 and recurring annual costs 
of $85,000 to $120,000. This final rule is therefore expected to create 
net societal benefits in every year of its application, including the 
initial year.
B. Regulatory Flexibility Act
    The Regulatory Flexibility Act of 1980 (the Act) (5 U.S.C. 601 et 
seq.) requires a review of proposed and final rules to assess their 
impact on small entities. The U.S. Small Business Administration (SBA) 
stipulates in its ``Size Standards'' that the largest a railroad 
business firm that is ``for-profit'' may be, and still be classified as 
a ``small entity'' is 1,500 employees for ``Line-Haul Operating 
Railroads,'' and 500 employees for ``Switching and Terminal 
Establishments.'' ``Small entity'' is defined in the Act as a small 
business that is 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 that formally establishes ``small entities'' 
as railroads which meet the line haulage revenue requirements of a 
Class III railroad. The revenue requirements are currently $20 million 
or less in annual operating revenue. The $20 million limit (which is 
adjusted by applying the railroad revenue deflator adjustment) is based 
on the Surface Transportation Board's (STB) threshold for a Class III

[[Page 59688]]

railroad carrier. FRA uses the same revenue dollar limit to determine 
whether a railroad or shipper or contractor is a small entity.
    Approximately 200 small railroads have CWR and are affected by this 
final rule. Relatively few Class 3 railroads have CWR. For the minority 
of Class 3 railroads that have CWR, the portion of their railroad which 
is CWR is more likely to be small. To the extent they have CWR, Class 3 
railroads will be subject to most of the provisions of this rule. Small 
railroads were consulted frequently during the RSAC Working Group 
deliberations. Small railroads were most greatly concerned that the 
inventory requirements of the IFR was unduly burdensome. FRA has 
eliminated the requirement for an inventory in this final rule. Small 
railroads were also concerned about infrequent passenger service and 
its effect on inspection frequency. By allowing for such a scenario 
pursuant to Sec.  213.119(g)(6)(ii), FRA has resolved this issue in a 
manner which will minimize any impact on small railroads.
C. Paperwork Reduction Act
    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The section that contains the new information collection requirements 
is noted, and the estimated time and cost to fulfill each of the other 
requirements are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                   Total annual
         CFR section              Respondent      Total annual     Average time    Total annual     burden cost
                                   universe        responses       per response    burden hours         ($)
----------------------------------------------------------------------------------------------------------------
213.4 Excepted Track:
    Designation of track as    200 railroads..  20 orders......  15 minutes.....               5             200
     excepted.
    Notification to FRA about  200 railroads..  15               10 minutes.....               3             120
     removal of excepted                         notifications.
     track.
213.5 Responsibility of track  685 railroads..  10               8 hours........              80           3,200
 owners.                                         notifications.
213.7 Designation of
 qualified persons to
 supervise certain renewals
 and inspect track:
    Designations.............  687 railroads..  1,500 names....  10 minutes.....             250          10,000
    Designations (partially    687 railroads..  250 names......  10 minutes.....              42           1,680
     qualified) under
     paragraph (c) of this
     section.
213.17 Waivers...............  687 railroads..  6 petitions....  24 hours.......             144           5,760
213.4 Excepted Track:
    Designation of track as    200 railroads..  20 orders......  15 minutes.....               5             200
     excepted.
    Notification to FRA about  200 railroads..  15               10 minutes.....               3             120
     removal of excepted                         notifications.
     track.
213.5 Responsibility of track  685 railroads..  10               8 hours........              80           3,200
 owners.                                         notifications.
213.7 Designation of
 qualified persons to
 supervise certain renewals
 and inspect track:
    Designations.............  687 railroads..  1,500 names....  10 minutes.....             250          10,000
    Designations (partially    687 railroads..  250 names......  10 minutes.....              42           1,680
     qualified) under
     paragraph (c) of this
     section.
213.57 Curves, elevation and
 speed limitations:
    Request to FRA for         687 railroads..  2 requests.....  40 hours.......              80           3,200
     approval.
    Notification to FRA with   687 railroads..  2 notifications  45 minutes.....               2              80
     written consent of other
     affected track owners.
    Test Plans for Higher      1 railroad.....  2 test plans...  16 hours.......              32           1,280
     Curving Speeds.
213.110 Gage Restraint
 Measurement Systems (GRMS):
    Implementing--Notices &    687 railroads..  10               45 min./4 hours              16             640
     Reports.                                    notifications
                                                 + 2 tech rpts.
    GRMS Vehicle Output        687 railroads..  50 reports.....  5 minutes......               4             160
     Reports.
    GRMS Vehicle Exception     687 railroads..  50 reports.....  5 minutes......               4             160
     Reports.
    GRMS/PTLF--Procedures for  687 railroads..  4 proc. Docs...  2 hours........               8             320
     Data Integrity.
    GRMS Training Program/     687 railroads..  2 prog. + 5      16 hours.......             112           4,480
     Sessions.                                   sess.
    GRMS Inspection Records..  687 railroads..  50 records.....  2 hours........             100           4,000
213.119 Continuous welded
 rail (CWR), general:
    (g) Written procedures     239 railroads/   240 modif. proc  3 hrs./1 hr....             320           (\1\)
     for CWR (New).             ASLRRA.
    Fracture Report for Each   239 railroads/   12,000 reports.  10 minutes.....           2,000          74,000
     Broken CWR Joint Bar       ASLRRA.
     (New).
    Alternate Procedures For   239 railroads..  7 letters + 7    30 min. + 953             6,675         701,035
     Rail Joints (New).                          proc.            hrs.
    Training Programs for CWR  239 railroads/   240 training     2 hea/12 hrs...             490          19,600
     procedures (New).          ASLRRA.          Prog.
    Recordkeeping (Previous).  239 railroads..  2,000 records..  10 minutes.....             333          13,320
    Recordkeeping for CWR      239 railroads..  360,000 rcds...  2 minutes......          12,000         480,000
     Rail Joints (New).

[[Page 59689]]

 
    Periodic Records for CWR   239 railroads..  480,000 rcds...  1 minute.......           8,000         320,000
     Rail Joints (New).
213.233 Track inspection.....  687 railroads..  2,500            1 minute.......              42           1,554
                                                 inspections.
213.241 Inspection records...  687 railroads..  1,542,089 rcds.  Varies.........       1,672,941      61,898,817
213.303 Responsibility for     2 railroads....  1 petition.....  8 hours........               8             320
 Compliance.
213.305 Designation of         2 railroads....  150              10 minutes.....              25           1,000
 qualified individuals;                          designations.
 general qualifications.
    Designations (Partially    2 railroads....  20 designations  10 minutes.....               3             120
     qualified).
213.317 Waivers..............  2 railroads....  1 petition.....  24 hours.......              24             960
213.329 Curves, elevation and
 speed limitations:
    FRA approval of qualified  2 railroads....  3 notifications  40 hours.......             120           4,800
     equipment and higher
     curving speeds.
    Written notifications to   2 railroads....  3 notifications  45 minutes.....               2              80
     FRA with written consent
     of other affected track
     owners.
213.4 Excepted Track:
    Designation of track as    200 railroads..  20 orders......  15 minutes.....               5             200
     excepted.
    Notification to FRA about  200 railroads..  15               10 minutes.....               3             120
     removal of excepted                         notifications.
     track.
213.5 Responsibility of track  685 railroads..  10               8 hours........              80           3,200
 owners.                                         notifications.
213.7 Designation of
 qualified persons to
 supervise certain renewals
 and inspect track:
    Designations.............  687 railroads..  1,500 names....  10 minutes.....             250          10,000
    Designation (partially     687 railroads..  250 names......  10 minutes.....              42           1,680
     qualified) under
     pargraph (c) of this
     section.
213.333 Automated Vehicle
 Inspection System:
    Track Geometry             3 railroads....  18 reports.....  20 hours.......             360          14,400
     Measurement System.
    Track/Vehicle Performance
     Measurement System:
    Copies of most recent      2 railroads....  13 printouts...  20 hours.......             260          10,400
     exception printouts.
213.341 Initial inspection of
 new rail and welds:
    Mill inspection..........  2 railroads....  2 reports......  8 hours........              16             640
    Welding plan inspection..  2 railroads....  2 reports......  8 hours........              16             640
    Inspection of field wells  2 railroads....  125 records....  20 minutes.....              42           1,680
213.343 Continuous welded
 rail (CWR)
 Recordkeeping...............  2 railroads....  150 records....  10 minutes.....              25           1,000
213.345 Vehicle qualification  1 railroad.....  2 reports......  16 hours.......              32           1,280
 testing.
213.347 Automotive or
 Railroad Crossings at grade
    Protection Plans.........  1 railroad.....  2 plans........  8 hours........              16             640
213.369 Inspection Records:
    Record of inspection.....  2 railroads....  500 records....  1 minutes......               8             296
    Internal defect            2 railroads....  50 records.....  5 minutes......               4            148
     inspections and remedial
     action taken.
----------------------------------------------------------------------------------------------------------------
\1\ $0 (Included in RIA).

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Attention: Desk Officer for the Federal 
Railroad Administration, Office of Information and Regulatory Affairs, 
Washington, DC 20503.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot impose a penalty on persons for violating information 
collection requirements which do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new information collection requirements resulting from this 
rulemaking action prior to the effective date of the 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

[[Page 59690]]

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 final rule 
meets the criteria that establish this as a non-major action for 
environmental purposes.
E. 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, the agency consults with State and local governments, or 
the agency consults with State and local government officials early in 
the process of developing the regulation. Where a regulation has 
Federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This final rule has preemptive effect. Subject to a limited 
exception for essentially local safety hazards, its requirements will 
establish a uniform Federal safety standard that must be met, and state 
requirements covering the same subject are displaced, whether those 
standards are in the form of state statutes, regulations, local 
ordinances, or other forms of state law, including common law. Section 
20106 of Title 49 of the United States Code provides that all 
regulations prescribed by the Secretary related to railroad safety 
preempt any State law, regulation, or order covering the same subject 
matter, except a provision necessary to eliminate or reduce an 
essentially local safety hazard that is not incompatible with a Federal 
law, regulations, or order and that does not unreasonably burden 
interstate commerce. This is consistent with past practice at FRA, and 
within the Department of Transportation.
    FRA has analyzed this final rule in accordance with the principles 
and criteria contained in Executive Order 13132. This final rule 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 
final rule will not have federalism implications that impose any direct 
compliance costs on State and local governments.
    FRA notes that RSAC, which endorsed and recommended the majority of 
this rule, has as permanent members two organizations representing 
State and local interests: AASHTO and ASRSM. Both of these State 
organizations concurred with the RSAC recommendation endorsing this 
rule. The RSAC regularly provides recommendations to the FRA 
Administrator for solutions to regulatory issues that reflect 
significant input from its State members. To date, FRA has received no 
indication of concerns about the Federalism implications of this 
rulemaking from these representatives or of any other representatives 
of State government. Consequently, FRA concludes that this final rule 
has no federalism implications, other than the preemption of state laws 
covering the subject matter of this final rule, which occurs by 
operation of law under 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 final rule will not result in 
the expenditure, in the aggregate, of $128,100,000 or more in any one 
year, and thus preparation of such a statement is not required.
G. Energy Impact
    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' See 
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency that promulgates 
or is expected to lead to the promulgation of a final rule or 
regulation, including notices of inquiry, advance notices of proposed 
rulemaking, and notices of proposed rulemaking: (1)(i) that is a 
significant regulatory action under Executive Order 12866 or any 
successor order, and (ii) is likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or (2) that is 
designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. FRA has evaluated 
this final rule in accordance with Executive Order 13211. FRA has 
determined that this final rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this final rule is not a 
``significant energy action'' within the meaning of the Executive 
Order.
H. Privacy Act Statement
    Anyone is able to search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc). You may review DOT's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or see http://dms.dot.gov.

IX. Effective Date

    This final rule is effective on October 31, 2006 in order to 
supersede the IFR's impracticable October 31, 2006 joint inventory 
compliance date. Accordingly, the good cause exception of the 
Administrative Procedure Act applies. See 5 U.S.C. 553(d)(3).

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Rule

0
For the reasons discussed in the preamble, the Federal Railroad 
Administration amends part 213 of

[[Page 59691]]

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 
paragraphs (g) through (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 CWR joints; and a training program for the application of 
those procedures. The plan shall be submitted to the Federal Railroad 
Administration. FRA reviews each plan for compliance with the 
following--
* * * * *
    (g) Procedures which prescribe the scheduling and conduct of 
inspections to detect cracks and other indications of potential 
failures in CWR joints. On and after January 1, 2007, in formulating 
the procedures under this paragraph, the track owner shall--
    (1) Address the inspection of joints and the track structure at 
joints, including, at a minimum, periodic on-foot inspections;
    (2) Identify joint bars with visible or otherwise detectable cracks 
and conduct remedial action pursuant to Sec.  213.121;
    (3) Specify the conditions of actual or potential joint failure for 
which personnel must inspect, including, at a minimum, the following 
items:
    (i) Loose, bent, or missing joint bolts;
    (ii) Rail end batter or mismatch that contributes to instability of 
the joint; and
    (iii) Evidence of excessive longitudinal rail movement in or near 
the joint, including, but not limited to; wide rail gap, defective 
joint bolts, disturbed ballast, surface deviations, gap between tie 
plates and rail, or displaced rail anchors;
    (4) Specify the procedures for the inspection of CWR joints that 
are imbedded in highway-rail crossings or in other structures that 
prevent a complete inspection of the joint, including procedures for 
the removal from the joint of loose material or other temporary 
material;
    (5) Specify the appropriate corrective actions to be taken when 
personnel find conditions of actual or potential joint failure, 
including on-foot follow-up inspections to monitor conditions of 
potential joint failure in any period prior to completion of repairs.
    (6) Specify the timing of periodic inspections, which shall be 
based on the configuration and condition of the joint:
    (i) Except as provided in paragraphs (g)(6)(ii) through (iv), track 
owners must specify that all CWR joints are inspected, at a minimum, in 
accordance with the intervals identified in the following table--

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

    (ii) Consistent with any limitations applied by the track owner, a 
passenger train conducting an unscheduled detour operation may proceed 
over track not normally used for passenger operations at a speed not to 
exceed the maximum authorized speed otherwise allowed, even though CWR 
joints have not been inspected in accordance with the frequency 
identified in paragraph (g)(6)(i), provided that:
    (A) All CWR joints have been inspected consistent with requirements 
for freight service; and
    (B) The unscheduled detour operation lasts no more than 14 
consecutive calendar days. In order to continue operations beyond the 
14-day period, the track owner must inspect the CWR joints in 
accordance with the requirements of paragraph (g)(6)(i).
    (iii) Tourist, scenic, historic, or excursion operations, if 
limited to the maximum authorized speed for passenger trains over the 
next lower class of track, need not be considered in determining the 
frequency of inspections under paragraph (g)(6)(i).
    (iv) All CWR joints that are located in switches, turnouts, track 
crossings, lift rail assemblies or other transition devices on moveable 
bridges must be inspected on foot at least monthly, consistent with the 
requirements in Sec.  213.235; and all records of those

[[Page 59692]]

inspections must be kept in accordance with the requirements in Sec.  
213.241. A track owner may include in its Sec.  213.235 inspections, in 
lieu of the joint inspections required by paragraph (g)(6)(i), CWR 
joints that are located in track structure that is adjacent to switches 
and turnouts, provided that the track owner precisely defines the 
parameters of that arrangement in the CWR plans.
    (7) Specify the recordkeeping requirements related to joint bars in 
CWR, including the following:
    (i) The track owner shall keep a record of each periodic and 
follow-up inspection required to be performed by the track owner's CWR 
plan, except for those inspections conducted pursuant to Sec.  213.235 
for which track owners must maintain records pursuant to Sec.  213.241. 
The record shall be prepared on the day the inspection is made and 
signed by the person making the inspection. The record shall include, 
at a minimum, the following items: the boundaries of the territory 
inspected; the nature and location of any deviations at the joint from 
the requirements of this Part or of the track owner's CWR plan, with 
the location identified with sufficient precision that personnel could 
return to the joint and identify it without ambiguity; the date of the 
inspection; the remedial action, corrective action, or both, that has 
been taken or will be taken; and the name or identification number of 
the person who made the inspection.
    (ii) The track owner shall generate a Fracture Report for every 
cracked or broken CWR joint bar that the track owner discovers during 
the course of an inspection conducted pursuant to Sec. Sec.  
213.119(g), 213.233, or 213.235 on track that is required under Sec.  
213.119(g)(6)(i) to be inspected.
    (A) The Fracture Report shall be prepared on the day the cracked or 
broken joint bar is discovered. The record shall include, at a minimum: 
the railroad name; the location of the joint bar as identified by 
milepost and subdivision; the class of track; annual million gross tons 
for the previous calendar year; the date of discovery of the crack or 
break; the rail section; the type of bar (standard, insulated, or 
compromise); the number of holes in the joint bar; a general 
description of the location of the crack or break in bar; the visible 
length of the crack in inches; the gap measurement between rail ends; 
the amount and length of rail end batter or ramp on each rail end; the 
amount of tread mismatch; the vertical movement of joint; and in curves 
or spirals, the amount of gage mismatch and the lateral movement of the 
joint.
    (B) The track owner shall submit the information contained in the 
Fracture Reports to the FRA Associate Administrator for Safety 
(Associate Administrator) twice annually, by July 31 for the preceding 
six-month period from January 1 through June 30 and by January 31 for 
the preceding six-month period from July 1 through December 31.
    (C) After February 1, 2010, any track owner may petition FRA to 
conduct a technical conference to review the Fracture Report data 
submitted through December of 2009 and assess whether there is a 
continued need for the collection of Fracture Report data. The track 
owner shall submit a written request to the Associate Administrator, 
requesting the technical conference and explaining the reasons for 
proposing to discontinue the collection of the data.
    (8) In lieu of the requirements for the inspection of rail joints 
contained in paragraphs (g)(1) through (7) of this section, a track 
owner may seek approval from FRA to use alternate procedures.
    (i) The track owner shall submit the proposed alternate procedures 
and a supporting statement of justification to the Associate 
Administrator for Safety (Associate Administrator).
    (ii) If the Associate Administrator finds that the proposed 
alternate procedures provide an equivalent or higher level of safety 
than the requirements in paragraphs (g)(1) through (g)(7) of this 
section, the Associate Administrator will approve the alternate 
procedures by notifying the track owner in writing. The Associate 
Administrator will specify in the written notification the date on 
which the procedures will become effective, and after that date, the 
track owner shall comply with the procedures. If the Associate 
Administrator determines that the alternate procedures do not provide 
an equivalent level of safety, the Associate Administrator will 
disapprove the alternate procedures in writing, and the track owner 
shall continue to comply with the requirements in paragraphs (g)(1) 
through (7) of this section.
    (iii) While a determination is pending with the Associate 
Administrator on a request submitted pursuant to paragraph (g)(8) of 
this section, the track owner shall continue to comply with the 
requirements contained in paragraphs (g)(1) through (7) 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 and comply with recordkeeping 
requirements necessary to provide an adequate history of track 
constructed with CWR. At a minimum, these records must include:
    (1) Rail temperature, location and date of CWR installations. 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 as specified in 
paragraph (g)(7) of this part.
    (j) As used in this section--
    Action Items mean the rail joint conditions that track owners 
identify in their CWR plans pursuant to paragraph (g)(3) which require 
the application of a corrective action.
    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.
    Buckling Incident means the formation of a lateral misalignment 
sufficient in magnitude to constitute a deviation from the Class 1 
requirements specified in Sec.  213.55. These normally occur when rail 
temperatures are relatively high and are caused by high longitudinal 
compressive forces.
    Continuous Welded Rail (CWR) means rail that has been welded 
together into lengths exceeding 400 feet.
    Corrective Actions mean those actions which track owners specify in 
their CWR plans to address conditions of actual or potential joint 
failure, including, as applicable, repair, restrictions on operations, 
and additional on-foot inspections.
    CWR Joint means (a) any joint directly connected to CWR, and (b) 
any joint(s) in a segment of rail between CWR strings that are less 
than 195 feet apart, except joints located on jointed sections on 
bridges.
    Desired Rail Installation Temperature Range means the rail 
temperature range, within a specific geographical area, at which forces 
in CWR should not cause a buckling incident in extreme heat, or a pull-
apart during extreme cold weather.
    Disturbed Track means the disturbance of the roadbed or ballast

[[Page 59693]]

section, as a result of track maintenance or any other event, which 
reduces the lateral or longitudinal resistance of the track, or both.
    Mechanical Stabilization means a type of procedure used to restore 
track resistance to disturbed track following certain maintenance 
operations. This procedure may incorporate dynamic track stabilizers or 
ballast consolidators, which are units of work equipment that are used 
as a substitute for the stabilization action provided by the passage of 
tonnage trains.
    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.
    Rail Temperature means the temperature of the rail, measured with a 
rail thermometer.
    Remedial Actions mean those actions which track owners are required 
to take as a result of requirements of this part to address a non-
compliant condition.
    Tight/Kinky Rail means CWR which exhibits minute alignment 
irregularities which indicate that the rail is in a considerable amount 
of compression.
    Tourist, Scenic, Historic, or Excursion Operations mean railroad 
operations that carry passengers with the conveyance of the passengers 
to a particular destination not being the principal purpose.
    Train-induced Forces means the vertical, longitudinal, and lateral 
dynamic forces which are generated during train movement and which can 
contribute to the buckling potential of the rail.
    Track Lateral Resistance means the resistance provided by the rail/
crosstie structure against lateral displacement.
    Track Longitudinal Resistance means the resistance provided by the 
rail anchors/rail fasteners and the ballast section to the rail/
crosstie structure against longitudinal displacement.
    Unscheduled Detour Operation means a short-term, unscheduled 
operation where a track owner has no more than 14 calendar days' notice 
that the operation is going to occur.
* * * * *

    Issued in Washington, DC, on September 29, 2006.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. 06-8599 Filed 10-10-06; 8:45 am]
BILLING CODE 4910-06-P