[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Proposed Rules]
[Pages 73078-73094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28438]



[[Page 73077]]

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Part VI





Department of Transportation





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Federal Railroad Administration



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49 CFR Part 213



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

  Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / 
Proposed Rules  

[[Page 73078]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 213

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


Track Safety Standards; Continuous Welded Rail (CWR)

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend the Federal Track Safety Standards 
to promote the safety of railroad operations over continuous welded 
rail (CWR). In particular, FRA is proposing specific requirements for 
the qualification of persons designated to inspect CWR track, or 
supervise the installation, adjustment, or maintenance of CWR track. 
FRA is also proposing to clarify the procedures associated with the 
submission of CWR plans to FRA by track owners. FRA proposes that these 
plans focus on inspecting CWR for pull-apart prone conditions, and 
focus more specifically on CWR joint installation and maintenance 
procedures. This proposed rule would also make other changes to the 
requirements governing CWR.

DATES: (1) Written comments must be received by January 15, 2009. 
Comments received after that date will be considered to the extent 
possible without incurring additional delay or expense.
    (2) FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However if FRA receives a specific request for a 
public, oral hearing prior to December 31, 2008 one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to this Docket No. FRA-2008-0036 
may be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to www.Regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, West Building, Ground floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Please note that all comments received will be posted 
without change to www.Regulations.gov, including any personal 
information provided. Please see the discussion under the Privacy Act 
heading in the Supplementary Information section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to www.Regulations.gov at any time or visit the 
Docket Management Facility, U.S. Department of Transportation, West 
Building, Ground floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC between 9 a.m. and 5 p.m. ET, Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kenneth Rusk, Staff Director, Office 
of Safety, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20590 
(telephone: (202) 493-6236); Daniel Alpert, Trial Attorney, Office of 
Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Washington, DC 20950 
(telephone: (202) 493-6026); or Sarah Grimmer Yurasko, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Washington, 
DC 20950 (telephone: (202) 493-6390).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Continuous Welded Rail (CWR)
    A. General
    B. Statutory and Regulatory History for CWR
II. Railroad Safety Advisory Committee (RSAC) Overview
III. RSAC Track Safety Standards Working Group
IV. FRA's Approach to CWR in This NPRM
    A. Qualifications and Training of Individuals on CWR
    B. Submission of CWR Plans to FRA
    C. Availability of CWR Written Procedures at CWR Work Sites
    D. Special Inspections
    E. Definition of CWR
    F. Ballast
    G. Anchoring
V. Specific Technical Issues Addressed by the Working Group
    A. Maintaining Desired Rail Installation Temperature
    B. Inspecting for Curve Movement Resulting From Disturbed Track
    C. Speed Restrictions for Maintenance/Rehabilitation Work on 
Disturbed Ballast
    D. Ambient Temperature Versus Rail Temperature
    E. Cold Weather Inspections
VI. Section-by-Section Analysis
VII. Regulatory Impact
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandate Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

Background

I. Continuous Welded Rail (CWR)

A. General

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

    FRA issued the first Federal Track Safety Standards in 1971. See 36 
FR 20336 (October 20, 1971). At that time, FRA addressed CWR in a 
rather general manner, stating, in 49 CFR 213.119, that railroads must 
install CWR at a rail temperature that prevents lateral displacement of 
track or pull-aparts of rail ends and that CWR should not be disturbed 
at rail temperatures higher than the installation or adjusted 
installation temperature.
    In 1982, FRA removed Sec.  213.119 because FRA believed it was so 
general in nature that it provided little guidance to railroads and it 
was difficult to enforce. See 47 FR 7275 (February 18, 1982) and 47 FR 
39398 (September 7, 1982). FRA stated: ``While the importance of 
controlling thermal stresses within continuous welded rail has long 
been recognized, research has not advanced to the point where specific 
safety requirements can be established.'' 47 FR 7279. FRA explained 
that continuing research might produce reliable data in this area in 
the future.
    Congressional interest in CWR developed. With passage of the Rail 
Safety Enforcement and Review Act of 1992 (Pub. L. 102-365, September 
3, 1992), Congress required the Secretary

[[Page 73079]]

of Transportation to evaluate procedures for installing and maintaining 
CWR and its attendant structure. In 1994, Congress further directed the 
Secretary to specifically evaluate cold weather installation procedures 
for CWR with passage of the Federal Railroad Safety Reauthorization Act 
of 1994 (Pub. L. 103-440, November 2, 1994), codified at 49 U.S.C. 
20142 As delegated by the Secretary, see 49 CFR 1.49(m), FRA evaluated 
those procedures in connection with information gathered from the 
industry and FRA's own research and development activities. FRA then 
addressed CWR procedures by adding Sec.  213.119 during its 1998 
revision of the Track Safety Standards (49 CFR part 213). See 63 FR 
33992 (June 22, 1998).
    Section 213.119, as added in 1998, requires railroads to develop 
and submit to the Federal Railroad Administration, written CWR plans 
containing procedures that, at a minimum, provide for the installation, 
adjustment, maintenance, and inspection of CWR, as well as a training 
program and minimal recordkeeping requirements. Section 213.119 does 
not dictate which procedures a railroad must use in its CWR plan; 
however, it states that each track owner with track constructed of CWR 
shall have in effect and comply with a plan that contains written 
procedures which address the installation, adjustment, maintenance, and 
inspection of CWR, the inspection of CWR joints, and a training program 
for the application of those procedures. It allows each railroad to 
develop and implement its individual CWR plan based on procedures which 
have proven effective for it over the years. The operative assumption 
was that geophysical conditions vary so widely among U.S. railroads 
that, in light what was then known about CWR, CWR plans should vary to 
take account of them. Accordingly, procedures can vary from railroad to 
railroad.
    On August 10, 2005, President Bush signed into law the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) (Pub. L. 109-59). Section 9005(a) of SAFETEA-LU 
amended 49 U.S.C. 20142 by adding a new subsection (e). This new 
subsection required that within 90 days after its enactment, FRA 
require (1) each track owner using CWR track to include procedures (in 
its procedures filed with FRA pursuant to Sec.  213.119) to improve the 
identification of cracks in rail joint bars; (2) instruct FRA track 
inspectors to obtain copies of the most recent CWR programs of each 
railroad within the inspectors' areas of responsibility and require 
that inspectors use those programs when conducting track inspections; 
and (3) establish a program to review CWR joint bar inspection data 
from railroads and FRA track inspectors periodically. This new 
subsection also provided that whenever FRA determines that it is 
necessary or appropriate, FRA may require railroads to increase the 
frequency of inspection, or improve the methods of inspection, of joint 
bars in CWR.
    Pursuant to this mandate, on November 2, 2005, FRA revised the 
Track Safety Standards by publishing an Interim Final Rule (IFR), 70 FR 
66288, which addresses the inspection of rail joints in CWR. FRA 
requested comment on the IFR and provided the Railroad Safety Advisory 
Committee (RSAC) with an opportunity to review the comments on the IFR. 
To facilitate this review, on February 22, 2006, RSAC established the 
Track Safety Standards Working Group (Working Group). The Working Group 
was given two tasks: (1) To resolve the comments on the IFR, and (2) to 
make recommendations regarding FRA's role in oversight of CWR programs, 
including analyzing the data to determine effective management of CWR 
safety by the railroads. The first task, referred to as ``Phase I'' of 
the CWR review, included analyzing the IFR on the inspection of joint 
bars in CWR territory, reviewing the comments on the IFR, and 
developing recommendations for the final rule. With guidance from the 
Working Group, FRA published a final rule on October 11, 2006, 71 FR 
59677, which addressed the comments on the IFR, adopted a portion of 
the IFR, and made changes to other portions. The final rule became 
effective October 31, 2006, and is codified at 49 CFR part 213. The 
Working Group then turned to the second task, referred to as ``Phase 
II'' of RSAC's referral, which involves an examination of all the 
requirements of Sec.  213.119 concerning CWR-not focused only on those 
concerning joints in CWR. As discussed below, the Working Group 
reported its findings and recommendations to RSAC at its February 20, 
2008 meeting. RSAC approved the recommended consensus regulatory text 
proposed by the Working Group, which accounts for the majority of this 
NPRM.

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 RSAC members follows:
    American Association of Private Railroad Car Owners (AARPCO);
    American Association of State Highway & Transportation Officials 
(AASHTO);
    American Chemistry Council;
    American Petrochemical Institute;
    American Public Transportation Association (APTA);
    American Short Line and Regional Railroad Association (ASLRRA);
    American Train Dispatchers Association (ATDA);
    Association of American Railroads (AAR);
    Association of Railway Museums (ARM);
    Association of State Rail Safety Managers (ASRSM);
    Brotherhood of Locomotive Engineers and Trainmen (BLET);
    Brotherhood of Maintenance of Way 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

[[Page 73080]]

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

III. RSAC Track Safety Standards Working Group

    As noted above, RSAC established the Track Safety Standards Working 
Group on February 22, 2006. To address Phase I of RSAC's referral, the 
Working Group convened on April 3-4, 2006; April 26-28, 2006; May 24-
25, 2006; and July 19-20, 2006. The results of the Working Group's 
efforts were incorporated into the final rule that was published on 
October 11, 2006. To address Phase II of RSAC's referral, the Working 
Group convened on January 30-31, 2007; April 10-11, 2007; June 27-28, 
2007; August 15-16, 2007; October 23-24, 2007; and January 8-9, 2008. 
The Working Group's finding and recommendations were then presented to 
the full RSAC on February 20, 2008, as noted above.
    The members of the Working Group, in addition to FRA, include the 
following:
    AAR, including members from BNSF Railway Company (BNSF), Canadian 
National Railway (CN), Canadian Pacific Railway (CP), Consolidated Rail 
Corporation (Conrail), CSX Transportation, Inc. (CSX), Kansas City 
Southern Railway Company (KCS), Norfolk Southern Railway Company (NS), 
and Union Pacific Railroad Company (UP);
    Amtrak;
    APTA, including members from Port Authority Trans-Hudson 
Corporation (PATH), LTK Engineering Services, Northeast Illinois 
Regional Commuter Railroad Corporation (Metra), and Peninsula Corridor 
Joint Powers Board (Caltrain);
    ASLRRA (representing Class III/smaller railroads);
    ASRSM (represented by staff from the California Public Utilities 
Commission (CPUC));
    BLET;
    BMWED;
    BRS;
    Kandrew, Inc.;
    Transportation Technology Center, Inc. (TTCI); and
    UTU.
    Staff from DOT's John A. Volpe National Transportation Systems 
Center (Volpe Center) attended all of the meetings and contributed to 
the technical discussions. In addition, NSTB staff attended all of the 
meetings and contributed to the discussions as well.
    FRA has worked closely with the RSAC in developing its 
recommendations and believes that the RSAC has effectively addressed 
concerns with regard to FRA's management of CWR and rail carriers' 
effective implementation of their CWR plans. FRA has greatly 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 NPRM. The Working Group has also 
benefitted in particular from participation of NTSB staff. FRA believes 
that the expertise possessed by the RSAC representatives enhances the 
value of the recommendations, and FRA has made every effort to 
incorporate them in this proposed rule.
    The Working Group was unable to reach consensus on one item that 
FRA has elected to include in this NPRM. The Working Group did not 
reach consensus with regard to the proposed change to 49 CFR 
213.119(c), which describes the joint installation and maintenance 
procedures that track owners must include in their CWR plans. The FRA 
representatives to the Working Group felt strongly that the text is 
necessary to include in the NPRM, as the failure of CWR joints was the 
principal basis for the 2006 final rule. The FRA members believed that 
the integrity of CWR joints could not be definitively maintained 
without requiring that the specific installation and maintenance 
procedures delineated in proposed Sec.  213.119(c) be included in the 
track owner's CWR plan. On the other hand, the rail carrier 
representatives maintained that such specific requirements would 
interfere with their freedom to modify installation and maintenance 
procedures as they saw fit. Nevertheless, it is FRA's position that the 
text is necessary to prevent the failure of CWR joints and has included 
this singular, non-consensus item into the rule text of this NPRM.

IV. FRA's Approach to CWR in This NPRM

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

A. Qualifications and Training of Individuals on CWR

    During the rulemaking on inspections of joints in CWR, the BMWED 
suggested that there should be annual re-training of track inspectors 
on joint bar inspections in CWR. FRA understood this comment as 
pertaining to CWR training in general and resolved to address this 
concern as part of the Phase II task of broadly reviewing Sec.  
213.119. In carrying out this task, and because of the concern raised 
by the BMWED, the Working Group decided that it would be beneficial to 
review accident data from

[[Page 73081]]

Class I and shortline railroads to determine whether accidents on CWR 
could be attributed to training deficiencies of track inspectors. The 
Working Group established the Accident Review Task Force (AR Task 
Force) to facilitate this review and analysis, and it was comprised of 
FRA and the following Working Group members:
    AAR, including BNSF, CSX, CP, NS, UP;
    Amtrak;
    APTA, including Metra;
    ASLRRA;
    BMWED; and
    BRS.
    Staff from the Volpe Center and NTSB also participated in this 
effort, which focused on researching and analyzing accident data from 
the years 2000 to 2007 for major causal factors of accidents on CWR. 
The AR Task Force initially reviewed over 1100 accident/incident report 
forms from January 2000 to August 2007. After taking into consideration 
the location of the most severe accidents/incidents, the AR Task Force 
narrowed its review to exclude accidents/incidents on Class 1 and 
excepted track, as defined in 49 CFR part 213. The final review 
included over 200 reports that met the objectives and criteria for 
study.
    The AR Task Force determined that a high volume of accidents was 
due to misalignment of track, caused by sunkinks or buckling of the 
track. The AR Task Force also discovered that each incident studied 
occurred after track work had been performed recently, and, 
surprisingly, that the carriers' CWR engineering standards were not 
being followed in conducting various types of track-work. In 
particular, the research disclosed failure to adequately de-stress the 
track following a previous derailment; failure to maintain the neutral 
temperature of the rail and to record the amount of rail added or 
removed during installation; failure to adjust or replace deficient 
anchors; and failure to place the proper speed restrictions and/or 
maintain a sufficient length of time and/or tonnage on disturbed track. 
Moreover, upon review of the railroads' CWR program plans, FRA noted 
that the railroads were not providing comprehensive guidelines for the 
training/retraining of their employees in the application of CWR 
procedures.
    Given the concerns raised, the Working Group decided that it was 
necessary to ensure that individuals are properly qualified and trained 
to install, adjust, maintain, and inspect CWR track. Section Sec.  
213.7 currently delineates how a railroad must designate (1) qualified 
persons to supervise restorations and renewals of track, (2) qualified 
persons to inspect track, and (3) persons who may pass trains over 
broken rails and pull aparts. However, the section contains no explicit 
provision for individuals to supervise restorations and renewals of 
track, or for individuals to inspect track, specific to CWR. In order 
to address qualification and training concerns specific to individuals 
qualified on CWR, the Working Group recommend adding a new paragraph 
(c) to Sec.  213.7. See the Section-by-Section Analysis, below, for 
further discussion of the proposed changes to this section.

B. Submission of CWR Plans to FRA

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

C. Availability of CWR Written Procedures at CWR Work Sites

    With the passage of SAFETEA-LU in 2005, Congress mandated that FRA 
instruct its track inspectors to obtain the most recent copies of rail 
carriers' CWR plans and to use these plans when conducting track 
inspections. In response, FRA posted the CWR plans received by the 
Office of Safety on FRA's Intranet site, where they are available to 
all Federal and State inspectors, and has instructed all of its 
inspectors to use these plans when conducting track inspections.
    The Working Group discussed the desirability of having copies of 
the carrier's written CWR procedures at every work site. FRA and labor 
representatives maintained that updated revisions and modifications to 
the CWR

[[Page 73082]]

plans should be made available to the carrier personnel responsible for 
the installation, adjustment, maintenance, and inspection of CWR; 
railroads should maintain/retain these procedures and guidelines within 
their engineering manuals. FRA proposed to the Working Group that the 
railroads provide a copy of their CWR program plans to be maintained 
on-site during the performance of duties either with the employee in 
charge or the qualified employee conducting the work. This type of 
practice would ensure that personnel understand the track owner's CWR 
policies and procedures.
    The Working Group reached consensus that the track owner should 
make available, in one comprehensive manual, a copy of the track 
owner's CWR plan, including all revisions, appendices, updates, and 
referenced materials, at every job site where personnel are assigned to 
install, inspect, and maintain CWR.

D. Special Inspections

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

E. Definition of CWR

    CWR refers to the way in which rail is joined together to form 
track. In CWR, rails are welded together to form one continuous rail 
that may be several miles long. Although CWR is nominally one 
continuous rail, rail joints may exist for many different reasons. CWR 
is currently defined as rail that has been welded together into lengths 
exceeding 400 feet. Labor representatives questioned whether the 
railroads would consider CWR into which a joint has been installed (to 
repair a rail break or remove a detected defect, for example) to be 
jointed rail and no longer subject to the railroad's CWR maintenance 
policy. FRA's position is that rail designated as CWR when installed 
should remain CWR irrespective of whether it contains a joint or 
joints.

F. Ballast

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

G. Anchoring

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

V. Specific Technical Issues Addressed by the Working Group

    In addition to technical issues already discussed above, the 
Working Group also addressed a number of other technical issues. Many 
of these issues arose out of the Working Group's review of a proposed, 
generic plan for the installation and maintenance of CWR, which was 
based on the AAR's submission of CWR plans for Class I railroads which 
were very similar in form and content. The Working Group analyzed each 
aspect of the generic plan to determine if it fulfilled all of the 
safety requirements of Sec.  213.119. After discussion and analysis of 
the technical issues raised, as further discussed below, the Working 
Group revised the generic plan. In collaboration with the Working 
Group, FRA further revised and redacted the plan, and posted it on the 
FRA public Web site found at http://safetydata.fra.dot.gov/officeofsafety/. The plan reflects the labors of the Working Group as 
well as FRA's analysis, and it is not intended to be the definitive 
guide for a CWR plan; FRA understands that each railroad has its own 
specific needs and circumstances that should be taken into account in 
formulating its CWR plans.

[[Page 73083]]

    The generic plan incorporates technical issues addressed by the 
Working Group which include: Maintaining the desired rail installation 
temperature range; inspecting for curve movement as a result of 
disturbed track; speed restrictions for maintenance/rehabilitation work 
on disturbed ballast; ambient temperature vs. rail temperature; 
anchoring; and cold weather inspections. The following describes the 
Working Group consensus on these topics.

A. Maintaining Desired Rail Installation Temperature

    The Working Group developed the concept of the rail neutral 
temperature (RNT) ``safe range.'' The lower limit of this safe range is 
defined as 20[deg] F below the designated rail laying temperature (RLT) 
for a particular territory. Rail that has pulled apart, broken, or been 
cut for defect removal must be readjusted such that its neutral 
temperature is within the safe range. If the rail has not been so 
readjusted before the rail temperature exceeds a prescribed value, the 
railroad would either: (1) Apply a speed restriction of 25 mph, or (2) 
apply a speed restriction of 40 mph in conjunction with a daily 
inspection of the rail made during the heat of the day. The track owner 
must not, however, raise the speed of track in this situation to 40 mph 
if the track was in operation at a lower speed. Locations at which the 
rail neutral temperature is known to have not been adjusted to within 
the safe range (20 [deg]F below designated RLT) would ultimately be 
adjusted in 365 days. Each railroad would document its inspection 
procedures for slow orders and special inspections due to heat. When 
rail separations occur in CWR, the rail gap and rail temperature should 
be recorded to facilitate the estimation of the rail neutral 
temperature at the location of the separation.

B. Inspecting for Curve Movement Resulting From Disturbed Track

    The Working Group analyzed best industry practices for inspecting 
for curve movement as a result of disturbed track. The Group came to 
the consensus that, when surfacing disturbed track with a 3[deg] (or 
higher degree) curve, the curve must be staked and the curve movement 
monitored when the rail temperature is substantially (50 degrees) below 
the designated RLT. If more than 3'' of curve movement occurs, then 
slow orders must be placed if the curve is not lined out before the 
rail temperature reaches the desired RLT.

C. Speed Restrictions for Maintenance/Rehabilitation Work on Disturbed 
Ballast

    Certain track maintenance procedures result in disturbance of the 
ballast which can reduce its capacity to restrain the track from 
unwanted lateral movement. The passage of train traffic over the track 
or the use of ballast stabilizers can restore this capacity by 
consolidating the ballast. Railroads typically apply speed restrictions 
following such track work until sufficient consolidation has occurred 
and the restraining capacity of the ballast is restored. The Working 
Group agreed that the equivalent of 0.1 million gross tons (``MGT'') of 
traffic would be sufficient to allow resumption of normal speeds over 
the track. This degree of consolidation may be achieved through the use 
of properly tuned ballast stabilizers. The Working Group also agreed 
that the passage of 16 passenger trains or 8 freight trains (or a 
proportional combination thereof) would be equivalent to 0.1 MGT of 
traffic to allow resumption of normal speeds.

D. Ambient Temperature Versus Rail Temperature

    The Working Group agreed that all references to temperature should 
refer to rail temperature. In hot weather, the rail temperature is 
generally greater than the ambient (air) temperature. For the purposes 
of planning or scheduling track work in the short term in hot weather, 
the Working Group believes it appropriate for a railroad to use the 
predicted ambient temperature plus 30 [deg]F to estimate the rail 
temperature. In cold weather, the rail temperature is essentially equal 
to the ambient temperature, and no such adjustment is necessary.

E. Cold Weather Inspections

    The Working Group agreed that cold weather inspections would be 
triggered at a minimum when the rail temperature is forecast to be 
100[deg] or more below the designated RLT. Cold weather inspections are 
necessary in order to safely detect pulled apart rail before a train 
passes over damaged rail.
    Again, FRA notes that these agreements on technical issues 
regarding the management of CWR track were intended to describe one set 
of CWR procedures that could be recognized as providing suitable 
assurance of safety. FRA intends to use the technical agreements, as 
reflected in the generic CWR plan, as a benchmark document for 
reference as actual railroad plans are received and reviewed. Railroads 
remain free to deviate from this benchmark approach, but FRA would 
expect to receive supporting analysis explaining how the relevant 
safety objectives are met by the alternative means. FRA is not 
specifically requesting comment on these technical issues, which are 
discussed here as useful background information.

VI. Section-by-Section Analysis

    Section 213.7 Designation of qualified persons to supervise certain 
renewals and inspect track.
    FRA is proposing to revise Sec.  213.7 principally by adding a new 
paragraph (c), which would create a new requirement for the track owner 
to specifically designate individuals who are qualified to inspect CWR 
track or supervise the installation, adjustment, and maintenance of CWR 
track in accordance with the track owner's written procedures. The new 
paragraph would require that the designated individual have: (1) 
Current qualifications under either paragraphs (a) or (b) of this 
section; (2) successfully completed a comprehensive training course 
specifically developed for the application of written CWR procedures 
issued by the track owner; (3) demonstrated to the track owner that he/
she knows and understands the requirements of the written CWR 
procedures, can detect deviations from those requirements, and can 
prescribe appropriate remedial action(s) to correct or safely 
compensate for those deviations; and (4) written authorization from the 
track owner to prescribe remedial action(s) to correct or safely 
compensate for deviations from the requirements in the CWR procedures 
and successfully completed a recorded examination on the procedures as 
part of the qualification process to be made available to FRA.
    FRA has determined that, as CWR track has characteristics 
inherently different than those of traditional jointed rail, track 
owners should be required to designate which individuals are 
specifically qualified to inspect, or supervise the installation, 
adjustment, and maintenance of CWR. In addition to the qualifications 
that an individual must have under paragraph (a) to perform track 
maintenance work, or the qualifications under paragraph (b) to inspect 
track, an individual designated under paragraph (c) would have to be 
well-versed in the maintenance of CWR track as detailed in the track 
owner's CWR plan.
    For guidance, FRA originally looked to Sec.  213.305(c), which 
regulates the requirements of an individual qualified

[[Page 73084]]

to inspect CWR track or supervise the installation, adjustment, and 
maintenance of CWR in accordance with the track owner's written 
procedures for train operations at track classes 6 and higher. The 
Working Group discussed the merits of the requirement in Sec.  
213.305(c)(2), which states that an individual must have ``successfully 
completed a training course of at least eight hours duration 
specifically developed for the application of written CWR procedures 
issued by the track owner.'' Carrier representatives maintained that 
the requirement to have an eight-hour course would interfere with 
current training methods. As the FRA representatives agreed that the 
comprehensive nature of the training course is more important than its 
duration, the Working Group reached consensus that the individual would 
have to successfully complete a comprehensive training course pursuant 
to proposed paragraph (c)(2), which does not specify the duration of 
the training.
    The Working Group also discussed the merits of requiring the 
individual to successfully complete an examination on the track owner's 
CWR procedures. In Sec.  213.305(c)(4), individuals qualified on CWR 
for train operations at track classes 6 and higher must successfully 
complete a recorded examination on the track owner's CWR procedures. 
The paragraph states that this examination may be written, or it may be 
a computer file with the results of an interactive training course. 
Working Group members were concerned with the proposal that the 
examination be in a written context. It was argued that, quite often, a 
supervisor can better test someone's knowledge through practical 
application in the field as opposed to a written test. In order to 
accommodate this option for testing, FRA agreed to define the required 
examination in proposed paragraph (c)(4) as ``recorded'' instead of 
written; therefore, track owners would have the flexibility to test an 
individual's knowledge how they best see fit. However, it should be 
noted that the results of this examination would have to be recorded so 
that FRA may inspect the basis for the qualification of an individual 
under paragraph (c).
    In proposing to add new paragraph (c) to this section, FRA is 
proposing to redesignate current paragraphs (c) and (d) as paragraphs 
(d) and (e), respectively. FRA is also proposing to make conforming 
changes to these paragraphs to cross-reference the new paragraph (c), 
in the same way that the current paragraphs of this section are cross-
referenced. Although FRA is setting out the entire text of these 
paragraphs for clarity, the changes to the proposed, redesignated 
paragraphs would involve only adding the cross-reference to the 
introductory text of the paragraphs, and removing the superfluous 
reference ``of this part'' in redesignated paragraph (d)(4).
    Section 213.119 Continuous welded rail (CWR); general.
    FRA is proposing to amend Sec.  213.119 by adding new provisions 
and revising existing provisions, as discussed below. In part because 
of the proposed addition of new paragraphs and the consequent need to 
redesignate existing paragraphs, FRA is setting out Sec.  213.119 in 
its entirety to enable the regulated industry to more readily 
understand and follow its requirements, given the length of this 
section and the number of changes proposed.
    Introductory text. During Working Group discussions, FRA 
representatives expressed concern that this section's current 
introductory text does not explicitly address certain procedural issues 
associated with CWR plans. The text does not explain how a track owner 
would revise a CWR plan that has already been submitted to FRA, or what 
the process would be for FRA to require a revision to a plan, including 
the process to appeal a revision requirement. FRA is therefore 
proposing to make clear that a track owner must file its CWR plan with 
the FRA Associate Administrator for Safety not less than 30 days before 
it implements its CWR plan, including submitting revisions to an 
existing CWR plan in order for the changes to take effect under the 
regulation. FRA would send a written statement to the track owner 
acknowledging receipt of the plan. Also, the proposed regulation 
provides more guidance to the track owner regarding FRA's process of 
reviewing submitted plans. FRA's resources do not permit it to review 
each plan prior to its implementation, however, FRA will review plans 
subsequent to implementation as circumstances require or resources 
permit. If the review indicates that revisions to the plan are needed 
to bring the plan into compliance with the requirements of the rule, 
FRA would give notice of the revision requirement in writing to the 
track owner, including the basis of the revision requirement. The track 
owner would have 30 days either to implement FRA's required plan 
revisions, or to respond and provide evidence in support of the 
original plan. FRA would then render a final decision with regard to 
the plan, and the track owner would have 30 days from receipt of FRA's 
final decision to amend the plan and resubmit it in accordance with 
FRA's decision. The amended plan would become effective upon its 
submission to FRA.
    Paragraphs (a) and (b). Paragraphs (a) and (b) would be republished 
in their entirety with no changes.
    Paragraph (c). FRA is proposing to redesignate current paragraph 
(c) as paragraph (d), and add a new paragraph (c) in its place. New 
paragraph (c) would revise the requirements for CWR joint installation 
and maintenance procedures to be included in a track owner's CWR plan. 
The new paragraph proposes to require that rail joints be installed per 
the requirement in Sec.  213.121(e), which states, ``In the case of 
continuous welded rail track, each rail shall be bolted with at least 
two bolts at each joint.'' The proposed paragraph further states that, 
in the case of a bolted joint installed during CWR installation after 
the publication date of the final rule, within 60 days the track owner 
must either: (1) Weld the joint; (2) install a joint with six bolts 
\2\; or (3) anchor every tie 195 feet in both directions of the joint. 
Finally, the proposed paragraph states that, in the case of a bolted 
joint in CWR experiencing service failure or a failed bar with a rail 
gap present, the track owner must either: (1) Weld the joint; (2) 
remediate joint conditions, replace the broken bolts, and weld the 
joint within 30 days; (3) replace the broken bar, replace the broken 
bolts, install two additional bolts, and adjust the anchors; (4) 
replace the broken bar, replace the broken bolts, and anchor every tie 
195 feet in both directions from the CWR joint; or (5) add rail with 
provisions for later adjustment pursuant to (d)(2) of this section.
---------------------------------------------------------------------------

    \2\ See 49 CFR Sec.  213.121(e), stating that, in the case of 
CWR, each rail shall be bolted with at least two bolts at each 
joint. This is a total of four bolts required at each joint.
---------------------------------------------------------------------------

    FRA noted during Working Group discussions that this section 
currently lacks an explicit reference to how a rail joint in CWR shall 
be bolted. As this requirement appears in Sec.  213.121(e), FRA decided 
that it would be prudent to also state this requirement in Sec.  
213.119 so as to include all requirements for CWR in one section. This 
requirement would be stated in Sec.  213.119(c) and would serve as a 
reminder to track owners that they cannot create their own joint bolt 
requirements in their CWR plans that are less restrictive than those 
specified in the regulation.
    As previously mentioned, the Working Group was not able to reach

[[Page 73085]]

consensus on this proposed paragraph (c). However, virtually identical 
text was included and discussed in the generic CWR plan generated by 
the rail carrier representatives, as discussed above. The rail carrier 
representatives were not in favor of including this paragraph, 
contending that its inclusion would constitute ``regulatory creep.'' 
These representatives did not believe it was necessary to incorporate 
the text into the rule if FRA knew that they had already proposed to 
add the text to their individual CWR plans. Nevertheless, FRA strongly 
feels that inclusion of the paragraph is necessary. With the history of 
high-profile derailments on CWR due to joint bar failure, as discussed 
in the October 11, 2006 final rule (71 FR 59677), FRA stresses the 
importance for CWR track owners to follow the installation and 
maintenance procedures proposed in this paragraph. FRA also notes that 
the maintenance procedures proposed were analyzed and discussed at 
length by the Working Group and found to represent sound industry 
guidance to avoid a derailment on CWR track due to poor joint 
installation or maintenance.
    Paragraph (d). FRA is proposing to redesignate current paragraph 
(c) as paragraph (d). No substantive change to this paragraph's 
requirements is intended.
    Paragraph (e). FRA is proposing to redesignate current paragraph 
(d) as paragraph (e). No substantive change to this paragraph's 
requirements is intended.
    Paragraph (f). FRA is proposing to redesignate current paragraph 
(e) as paragraph (f). FRA is also proposing to revise paragraph (f)'s 
format to more clearly identify its requirements and add a new 
paragraph (f)(1)(ii) which would require the track owner to have 
procedures in the CWR plan that govern train speed when the difference 
between the average rail temperature and the rail neutral temperature 
is in a range that causes buckling-prone conditions to be present at a 
specific location. ``Rail temperature'' is currently defined as ``the 
temperature of the rail, measured with a rail thermometer,'' and, as 
discussed in proposed, redesignated paragraph (l), below, FRA is 
proposing to add a definition for ``rail neutral temperature'' (RNT) as 
``the temperature at which the rail is neither in compression nor in 
tension.'' When maintaining the integrity of CWR track, the track owner 
needs to be concerned not only with the actual rail temperature, but 
also with the rail neutral temperature. FRA notes that the track owner 
would also have the responsibility to quantify the rail neutral 
temperature at a specific location.
    As previously stated, FRA notes that there has been a significant 
number of derailments caused by buckled track. Because of this safety 
concern, FRA is proposing to require track owners to reduce train speed 
over areas where there is an increased possibility of track buckling. 
By reducing the train speed, FRA anticipates that track owners will be 
able to reduce the probability of a catastrophic derailment caused by 
track buckling.
    Paragraph (g). FRA is proposing to redesignate current paragraph 
(f) as paragraph (g). FRA is also proposing to revise the requirements 
of this paragraph by specifying that track owners must have in their 
CWR plans procedures which prescribe when physical track inspections 
are to be performed to detect not only buckling-prone conditions, but 
also pull-apart prone conditions.
    This paragraph currently is focused only on when physical track 
inspections are required to identify buckling-prone conditions in CWR 
track. The requirements for these inspections to detect buckling-prone 
conditions would not be changed. In paragraph (g)(1)(i), track owners 
would still be required to have procedures in their CWR plans that 
address inspecting track to identify buckling-prone conditions in CWR, 
which include: (A) Locations where tight or kinky rail conditions are 
likely to occur, and (B) locations where track work of the nature 
described in redesignated paragraph (f)(1)(i) of this section have 
recently been performed. As discussed above, redesignated paragraph 
(f)(1)(i) would describe maintenance work, track rehabilitation, track 
construction, or any other event which disturbs the roadbed or ballast 
section and reduces the lateral or longitudinal resistance of the 
track. The track owner would also continue to specify the timing of the 
inspection as well as the appropriate remedial actions to be taken when 
buckling-prone conditions are found, as provided in paragraph (g)(2), 
discussed further below.
    Pull-apart prone conditions would be addressed with the addition of 
paragraph (g)(1)(ii), which would require the track owner to include 
procedures in its CWR plan that prescribe when physical track 
inspections are to be performed to identify pull-apart prone conditions 
in CWR track. The procedures must include locations where pull-apart or 
stripped-joint rail conditions are likely to occur. As provided in 
paragraph (g)(2), the track owner must also specify the timing of the 
inspection and the appropriate remedial actions to be taken when pull-
apart prone conditions are found. Paragraph (g)(2) is based on the 
current text of paragraph (f)(2), which addresses buckling-prone 
conditions, expanding it to address pull-apart prone conditions as 
well.
    The Working Group discussed that changes in temperature can greatly 
affect the integrity of CWR. Typically, significant increases in rail 
temperature can cause buckling-prone conditions, and significant 
decreases in rail temperature can cause pull-apart prone conditions. 
FRA has chosen not to quantify the specific temperatures that would 
cause a buckling-prone condition or a pull-apart prone condition. The 
Working Group discussed that, given the varied geographical composition 
of each railroad entity, specifying these temperatures would be best 
left to the track engineering program of each track owner. Therefore, 
FRA has declined to specify at what temperatures a physical track 
inspection under paragraph (g)(1) would be required, choosing instead 
to propose requiring that the track owner identify the conditions and 
situations when a physical track inspection would need to occur due to 
a buckling-prone or pull-apart prone condition.
    Paragraph (h). FRA is proposing to redesignate paragraph (g) as 
paragraph (h). FRA is not proposing any substantive change to the 
requirements of this paragraph. FRA is only proposing to make 
conforming amendments to cross-references in this paragraph to reflect 
the proposed redesignation of the paragraphs in the section.
    Paragraph (i). FRA is proposing to redesignate paragraph (h) as 
paragraph (i). FRA is also proposing to revise this paragraph by 
requiring the track owner to have in effect a comprehensive training 
program for the application of its written CWR procedures with 
provisions for annual re-training for individuals designated under 
Sec.  213.7(c) to supervise the installation, adjustment, and 
maintenance of CWR track and to perform inspections of CWR track. 
Additionally, FRA is proposing that the track owner make the training 
program available for review by FRA upon request.
    This paragraph currently requires that the track owner's training 
program have provisions for ``periodic'' re-training of qualified 
individuals. The Working Group discussed this requirement and advised 
that the term ``periodic'' was undesirably vague. A brief, informal 
survey at one of the Working Group meetings revealed that some rail 
carriers re-trained individuals every year, while others re-trained 
individuals every two

[[Page 73086]]

or three years. FRA identified that a leading cause of carrier non-
compliance with Sec.  213.119 is a lack of training among individuals 
qualified to supervise the installation, adjustment, and maintenance of 
CWR track and to perform inspections of CWR track. The AR Task Force's 
study showed that a significant number of accidents/incidents could be 
attributed to the failure to comply with the track owner's CWR policy. 
In order to address this serious safety concern, FRA determined that it 
was necessary to more specifically state when qualified individuals 
must be re-trained.
    Within the Working Group, FRA representatives proposed to revise 
this paragraph by specifying the months or days that should pass 
between the re-training of qualified individuals. Rail carrier 
representatives stated that this would not give them the flexibility to 
train individuals at pre-determined training classes and would add to 
operational costs. In order to address the concerns of the rail carrier 
representatives, FRA agreed that it would be sufficient to require 
annual re-training of individuals. FRA notes that, for purposes of this 
paragraph, ``annual'' means ``calendar year,'' as opposed to a 365-day 
period.
    As FRA is proposing to amend Sec.  213.7 to include a new paragraph 
(c) that explicitly addresses how a track owner designates an 
individual as qualified to supervise the installation, adjustment, and 
maintenance of CWR track and to perform inspections of CWR track, FRA 
decided that it was necessary to include a reference to proposed Sec.  
213.7(c) in the proposed revision to this Sec.  213.119(i).
    In paragraph (i), FRA is also proposing to require that the track 
owner make the training program available for review by FRA upon 
request. Due to the unique and individual nature of training programs, 
FRA determined that it would not be cost-effective for the agency to 
examine the training program of each track owner in addition to its CWR 
plan any time a change is made to the plan. However, particularly in 
the event of non-compliance with the CWR regulations, FRA believes that 
it should have the option of examining how qualified individuals are 
trained to apply the track owner's written CWR procedures.
    During the Working Group's meetings, Class I railroad 
representatives agreed to voluntarily make an initial submission of 
their CWR training programs to FRA. FRA also agreed that, in its Track 
Safety Standards Compliance Manual, track inspectors would be 
instructed not to request the training program of a specific track 
owner unless under the specific direction of FRA management. Rather, 
FRA's headquarters staff would undertake the responsibility of 
obtaining and disseminating this information, as needed, to both FRA 
inspectors and inspectors from States participating in rail safety 
enforcement activities under 49 CFR part 212.
    Paragraph (j). FRA is proposing to redesignate current paragraph 
(i) as paragraph (j). FRA is not proposing any substantive changes to 
the requirements of this paragraph, however. FRA is proposing only to 
make a conforming change to the cross-reference to another paragraph in 
this section, due to the proposed redesignation of the paragraphs in 
this section, and to correct the cross-reference so that it references 
``this section''-not ``this part.''
    Paragraph (k). FRA is proposing to add a new paragraph (k) that 
would require the track owner to make readily available, at every job 
site where personnel are assigned to install, inspect or maintain CWR, 
a copy of the track owner's CWR procedures and all revisions, 
appendices, updates, and referenced materials related thereto prior to 
their effective date. Additionally, such CWR procedures would be 
required to be issued and maintained in one comprehensive engineering 
standards and procedures manual.
    Since the implementation of the CWR regulations, FRA has noted that 
a number of rail carriers maintain two different sets of CWR 
procedures; rail carriers have been discovered to maintain the set of 
CWR procedures submitted to FRA pursuant to this Sec.  213.119, as well 
as maintain a separate set of CWR procedures to be used by personnel in 
the field. While FRA takes no issue with a rail carrier instructing its 
personnel to maintain more restrictive CWR procedures in the field than 
what is on-file with FRA, FRA stresses that rail carriers are required 
to train their personnel on the plan on-file with FRA. While FRA would 
continue to enforce the CWR plan on-file with its Office of Safety, 
having the procedures required to be at every job site where personnel 
are assigned to install, inspect or maintain CWR would ensure that 
personnel in the field understand which set of procedures FRA will hold 
them responsible for compliance with pursuant to the Federal 
regulations.
    Paragraph (l). FRA is proposing to redesignate current paragraph 
(j) as paragraph (l). This paragraph contains definitions to be used in 
connection with this section. FRA is proposing to revise two existing 
definitions, remove a definition, add a new definition, and make non-
substantive changes to correct the capitalization of the definitions. 
Specifically, FRA is proposing to change the definition of ``Continuous 
Welded Rail (CWR)'' to mean ``rail that has been welded together into 
lengths exceeding 400 feet. Rail installed as CWR remains CWR, 
regardless of whether a joint or plug is installed into the rail at a 
later time.'' As a consequence of this proposed change, FRA is also 
proposing to change the definition of ``CWR joint'' to mean ``any joint 
directly connected to CWR.'' (``CWR joint'' is currently defined as 
``(a) any joint directly connected to CWR, and (b) any joint(s) in a 
segment of rail between CWR strings that are less than 195 feet apart, 
except joints located on jointed sections on bridges.'')
    The Working Group discussed that the current definition of CWR, 
which does not include a reference to a joint or plug, does not fully 
address the reality of CWR in the industry. When the current definition 
of CWR is read with the current definition of CWR joint, one could 
wrongly conclude that, by adding a joint or plug into a section of CWR 
track, the track would no longer be defined as CWR track. Indeed, it 
was agreed upon by the members of the Working Group that CWR track 
generally maintains its CWR properties whether or a not a joint or plug 
is added to the track at a later date. Therefore, the Working Group 
recommended that the definition be revised to specify that rail 
installed as CWR remains as CWR, regardless of whether a joint or plug 
is installed into the rail at a later date.
    Due to the decision to revise the definition of CWR, the Working 
Group determined that the definition of CWR joint should also be 
revised. As the new definition of CWR would explain that CWR track 
remains as CWR, regardless of whether a joint or plug is installed into 
the rail at a later date, the definition of CWR joint would no longer 
need to specify that a CWR joint is a joint in a segment of rail 
between CWR strings that are less than 195 feet apart. Since rail 
installed as CWR remains as CWR with the new definition, FRA is 
revising the definition of CWR joint to simply be a ``any joint 
connected to CWR.''
    FRA is proposing to remove the definition ``Action items,'' because 
the term is not expressly used in this section. Currently, ``Actions 
items'' are defined as ``the rail joint conditions that track owners 
identify in their CWR plans pursuant to paragraph (g)(3) which require 
the application of a corrective correction.'' Paragraph (g)(3) itself 
provides that, in formulating procedures which prescribe the scheduling 
and conduct of inspections

[[Page 73087]]

to detect cracks and other indications of potential failures in CWR 
joints, the track owner specify the conditions of actual or potential 
joint failure for which personnel must inspect. Current paragraph 
(g)(3) further provides that these conditions include, at a minimum, 
the following items: (i) Loose, bent, or missing joint bolts; (ii) rail 
end batter or mismatch that contributes to instability of the joint; 
and (iii) evidence of excessive longitudinal rail movement in or near 
the joint, including, but not limited to, wide rail gap, defective 
joint bolts, disturbed ballast, surface deviations, gap between tie 
plates and rail, or displaced rail anchors. The term ``action items'' 
is not used in this paragraph, however. FRA is proposing to redesignate 
paragraph (g)(3) as paragraph (h)(3), for formatting purposes only due 
to the proposed addition of new paragraphs in this section. FRA makes 
clear that it does not intend to make any change to the substance of 
this paragraph, and that removing the definition of ``action items'' is 
not intended to have any effect on what items are considered defects 
under the provisions of the rule.
    At the same time, FRA is proposing to add the new definition of 
``Rail neutral temperature'' to mean ``the temperature at which the 
rail is neither in compression nor tension.'' This definition is 
necessary because FRA is proposing to add new paragraph (f)(1)(ii), 
which would introduce for the first time in this section the term 
``rail neutral temperature.'' In proposed paragraph (f)(1)(ii), FRA 
would require track owners to have procedures that govern train speed 
when the difference between the average rail temperature and the rail 
neutral temperature is in a range that causes buckling-prone conditions 
to be present at a specific location. When maintaining the integrity of 
CWR track, the track owner has to be concerned with not only the actual 
rail temperature of the rail, but the rail neutral temperature as well. 
FRA decided that it was necessary to include in the regulation a 
definition of rail neutral temperature to clarify what temperature the 
track owner should be concerned with when preventing rail buckling. 
While FRA has provided a definition of ``rail neutral temperature,'' it 
is the responsibility of the track owner to quantify the rail neutral 
temperature at specific locations.

Appendix B to Part 213--Schedule of Civil Penalties

    Appendix B to part 213 contains a schedule of civil penalties for 
use in connection with this part. FRA intends to revise the schedule of 
civil penalties in issuing the final rule to reflect revisions made to 
Sec.  213.119. Because such penalty schedules are statements of agency 
policy, notice and comment are not required prior to their issuance. 
See 5 U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to 
submit suggestions to FRA describing the types of actions or omissions 
for each proposed regulatory section that would subject a person to the 
assessment of a civil penalty. Commenters are also invited to recommend 
what penalties may be appropriate, based upon the relative seriousness 
of each type of violation.

VII. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed 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 NPRM. FRA has determined that 
none of the provisions would have a major impact. If FRA's main 
assumptions are correct, the sum of the net benefit of all provisions 
would be $390,000 per year. The cost per year is estimated at $300,000 
for the first year, and $150,000 per year for subsequent years. The 
total net benefit would then be $90,000 for the first year and $240,000 
per year for subsequent years. The analysis has a range of assumptions 
to check sensitivity. Under the least favorable assumptions the rule 
would develop net societal costs, but those are apparently extreme 
assumptions. Under the most favorable assumptions the net benefits 
would be up to $1,140,000 per year. In no event would the net benefits 
or costs be more than a very small portion of the total railroad 
expenditures on CWR rail maintenance.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (the Act) (5 U.S.C. 601 et 
seq.) requires a review of proposed and final rules to assess their 
impact on small entities. The U.S. Small Business Administration (SBA) 
stipulates in its ``Size Standards'' that the largest a railroad 
business firm that is ``for-profit'' may be, and still be classified as 
a ``small entity,'' is 1,500 employees for ``Line-Haul Operating 
Railroads,'' and 500 employees for ``Switching and Terminal 
Establishments.'' ``Small entity'' is defined in the Act as a small 
business that is 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 
railroad carrier. FRA uses the same revenue dollar limit to determine 
whether a railroad or shipper or contractor is a small entity.
    Approximately 200 small railroads have CWR and may be affected by 
the final rule resulting from this NPRM. Relatively few Class III 
railroads have CWR. For the minority of Class III railroads that have 
CWR, the portion of each such railroad made up of CWR is more likely to 
be small. To the extent these railroads have CWR, Class III railroads 
would be subject to most of the provisions proposed in this NPRM. Small 
railroads were consulted during the RSAC Working Group deliberations 
and their interests have been taken into consideration in this NPRM. 
FRA believes that there will be no significant impact on a substantial 
number of small entities.

C. Paperwork Reduction Act

    The information collection requirements in this proposed 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 sections that would contain the new information collection 
requirements are noted, and the estimated times to fulfill each of the 
requirements are as follows:

[[Page 73088]]



----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual
           CFR section                 universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
213.4 Excepted Track:
    --Designation of track as     200 railroads.....  20 orders.........  15 minutes........  5 hours.
     excepted.
    --Notification to FRA about   200 railroads.....  15 notifications..  10 minutes........  3 hours.
     removal of excepted track.
213.5--Responsibility of track    718 railroads.....  10 notifications..  8 hours...........  80 hours.
 owners.
213.7 Designation of qualified
 persons to supervise certain
 renewals and inspect track:
    --Designations..............  718 railroads.....  1,500 names.......  10 minutes........  250 hours.
    --Employees Trained in CWR    31 railroads......  80,000 tr. employ.  90 minutes........  120,000 hours.
     Procedures (New).                                80,000 auth. +....
    --Written Authorizations and  31 railroads......  80,000 exams......  10 min. + 60 min..  93,333 hours.
     Recorded Exams (New).
    --Designations (partially     31 railroads......  250 names.........  10 minutes........  42 hours.
     qualified) under paragraph
     (c) of this section.
213.17 Waivers..................  718 railroads.....  6 petitions.......  24 hours..........  144 hours.
213.57 Curves, elevation and
 speed limitations:
    --Request to FRA for          718 railroads.....  2 requests........  40 hours..........  80 hours.
     approval.
    --Notification to FRA with    718 railroads.....  2 notifications...  45 minutes........  2 hours.
     written consent of other
     affected track owners.
    --Test Plans for Higher       1 railroad........  2 test plans......  16 hours..........  32 hours.
     Curving Speeds.
213.110--Gage Restraint
 Measurement Systems (GRMS):
    --Implementing GRMS--Notices  718 railroads.....  5 notifications +   45 min./4 hours...  8 hours.
     & Reports.                                        1 tech rpt.
    --GRMS Vehicle Output         718 railroads.....  50 reports........  5 minutes.........  4 hours.
     Reports.
    --GRMS Vehicle Exception      718 railroads.....  50 reports........  5 minutes.........  4 hours.
     Reports.
    --GRMS/PTLF--Procedures for   718 railroads.....  4 proc. docs......  2 hours...........  8 hours.
     Data Integrity.
    --GRMS Training Programs/     718 railroads.....  2 prog. + 5         16 hours..........  112 hours.
     Sessions.                                         sessions.
    --GRMS Inspection Records...  718 railroads.....  50 records........  2 hours...........  100 hours.
213.119 Continuous welded rail
 (CWR), general:
    --Plans with written          718 railroads.....  718 plans.........  4 hours...........  2,872 hours.
     procedures for CWR
     (Amended).
    --Written submissions after   718 railroads.....  20 submissions....  2 hours...........  40 hours.
     plan disapproval (New).
    --Final FRA disapproval and   718 railroads.....  20 amended plans..  1 hour............  20 hours.
     Plan Amendment (New).
    --Fracture Report for Each    239 railroads/      12,000 reports....  10 minutes........  2,000 hours.
     Broken CWR Joint Bar.         ASLRRA.
    --Petition for technical      1 RR association..  1 petition........  15 minutes........  .25 hour.
     conference on Fracture Rpts.
    --Training Programs re CWR    239 railroads/      240 am. programs..  1 hour............  240 hours.
     Procedures (Amended).         ASLRRA.
    --Annual CWR Training of      31 railroads......  80,000 tr. employ.  30 minutes........  40,000 hours.
     Employees (New).
    --Recordkeeping.............  239 railroads.....  2,000 records.....  10 minutes........  333 hours.
    --Recordkeeping for CWR Rail  239 railroads.....  360,000 records...  2 minutes.........  12,000 hours.
     Joints.
    --Periodic Records For CWR    239 railroads.....  480,000 records...  1 minute..........  8,000 hours.
     Rail Joints.
    --Copy of Track Owner's CWR   718 railroads.....  239 manuals.......  10 minutes........  40 hours.
     Procedures (New).
213.233 Track inspections:
    --Notations.................  718 railroads.....  12,500 notations..  1 minute..........  208 hours.
213.241 Inspection records......  718 railroads.....  1,542,089 records.  Varies............  1,672,941 hours.
213.303 Responsibility for        2 railroads.......  1 petition........  8 hours...........  8 hours.
 Compliance.
213.305 Designation of qualified  2 railroads.......  150 designations..  10 minutes........  25 hours.
 individuals; general
 qualifications.
    --Designations (Partially     2 railroads.......  20 designations...  10 minutes........  3 hours.
     qualified).
213.317--Waivers................  2 railroads.......  1 petition........  80 hours..........  80 hours.
213.329 Curves, elevation and
 speed limitations:
    --FRA approval of qualified   2 railroads.......  3 notifications...  40 hours..........  120 hours.
     equipment and higher
     curving speeds.
    --Written notification to     2 railroads.......  3 notifications...  45 minutes........  2 hours.
     FRA with written consent of
     other affected track owners.
213.333 Automated Vehicle
 Inspection System:
    --Track Geometry Measurement  3 railroads.......  18 reports........  20 hours..........  360 hours.
     System--Reports.

[[Page 73089]]

 
    --Track/Vehicle Performance   2 railroads.......  13 printouts......  20 hours..........  260 hours.
     Measurement System: Copies
     of most recent exception
     printouts.
213.341 Initial inspection of
 new rail and welds:
    --Mill inspection--Copy of    2 railroads.......  2 reports.........  16 hours..........  32 hours.
     Manufacturer's Report.
    --Welding plan inspection     2 railroads.......  2 reports.........  16 hours..........  32 hours.
     report.
    --Inspection of field welds.  2 railroads.......  125 records.......  20 minutes........  42 hours.
213.343 Continuous welded rail
 (CWR):
    --Recordkeeping.............  2 railroads.......  150 records.......  10 minutes........  25 hours.
213.345 Vehicle qualification
 testing:
    --Report of Test Procedures   1 railroad........  2 reports.........  560 hours.........  1,120 hours.
     and Results.
213.347 Automotive or Railroad
 Crossings at Grade:
    --Protection Plans 213.369    1 railroad........  2 plans...........  8 hours...........  16 hours.
     Inspection Records.
    --Record of inspection of     2 railroads.......  500 records.......  1 minute..........  8 hours.
     track.
    --Internal defect             2 railroads.......  50 records........  5 minutes.........  4 hours.
     inspections and remedial
     action taken.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at (202) 493-6292, or Ms. Nakia Jackson 
at (202) 493-6073.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New 
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following 
address: [email protected]; [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed 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. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to 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 this NPRM in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545, 
May 26, 1999) as required by the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, 
and related regulatory requirements. FRA has determined that this 
action is not a major FRA action (requiring the preparation of an 
environmental impact statement or environmental assessment) because it 
is categorically excluded from detailed environmental review pursuant 
to section 4(c)(20) of FRA's Procedures. 64 FR 28547, May 26, 1999. In 
accordance with section 4(c) and (e) of FRA's Procedures, the agency 
has further concluded that no extraordinary circumstances exist with 
respect to this NPRM that might trigger the need for a more detailed 
environmental review. As a result, FRA finds that this NPRM is not a 
major Federal action significantly affecting the quality of the human 
environment.

 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 NPRM is intended to result in a final rule that has preemptive 
effect. Subject to a limited exception for essentially local safety or 
security

[[Page 73090]]

hazards, the requirements of the final rule would be intended to 
establish a uniform Federal safety standard that must be met, and State 
requirements covering the same subject would be 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 or security hazard that is not incompatible 
with a Federal law, regulation, 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 NPRM in accordance with the principles and 
criteria contained in Executive Order 13132. This NPRM will not have a 
substantial effect on the States, on the relationship between the 
Federal government and the States, or on the distribution of power and 
responsibilities among various levels of government. This NPRM 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 NPRM, 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 
proposed rule. 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 from any other representatives 
of State government. Consequently, FRA concludes that this NPRM has no 
federalism implications.

 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) [currently $141,100,000] in any 1 
year, and before promulgating any final rule for which a general notice 
of proposed rulemaking was published, the agency shall prepare a 
written statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This NPRM will not result in the 
expenditure, in the aggregate, of $141,100,000 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 NPRM in accordance with Executive Order 13211. FRA has determined 
that this NPRM is not likely to have a significant adverse effect on 
the supply, distribution, or use of energy. Consequently, FRA has 
determined that this NPRM is not a ``significant energy action'' within 
the meaning of the Executive Order.

 H. Privacy Act Statement

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

List of Subjects in 49 CFR Part 213

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
part 213 of chapter II, subtitle B of Title 49, Code of Federal 
Regulations, as follows:

PART 213--[AMENDED]

    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).

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


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

* * * * *
    (c) Individuals designated under paragraphs (a) or (b) of this 
section that inspect continuous welded rail (CWR) track or supervise 
the installation, adjustment, and maintenance of CWR track in 
accordance with the written procedures of the track owner shall have:
    (1) Current qualifications under either paragraph (a) or (b) of 
this section;
    (2) Successfully completed a comprehensive training course 
specifically developed for the application of written CWR procedures 
issued by the track owner;
    (3) Demonstrated to the track owner that the individual:
    (i) Knows and understands the requirements of those written CWR 
procedures;
    (ii) Can detect deviations from those requirements; and
    (iii) Can prescribe appropriate remedial action to correct or 
safely compensate for those deviations; and
    (4) Written authorization from the track owner to prescribe 
remedial actions to correct or safely compensate for deviations from 
the requirements in those procedures and successfully completed a 
recorded examination on those procedures as part of the qualification 
process.
    (d) Persons not fully qualified to supervise certain renewals and 
inspect track as required in paragraphs (a) through (c) of this 
section, but with at least one year of maintenance-of-way or signal 
experience, may pass trains over broken rails and pull aparts provided 
that--

[[Page 73091]]

    (1) The track owner determines the person to be qualified and, as 
part of doing so, trains, examines, and re-examines the person 
periodically within two years after each prior examination on the 
following topics as they relate to the safe passage of trains over 
broken rails or pull aparts: rail defect identification, crosstie 
condition, track surface and alignment, gage restraint, rail end 
mismatch, joint bars, and maximum distance between rail ends over which 
trains may be allowed to pass. The sole purpose of the examination is 
to ascertain the person's ability to effectively apply these 
requirements and the examination may not be used to disqualify the 
person from other duties. A minimum of four hours training is required 
for initial training;
    (2) The person deems it safe and train speeds are limited to a 
maximum of 10 m.p.h. over the broken rail or pull apart;
    (3) The person shall watch all movements over the broken rail or 
pull apart and be prepared to stop the train if necessary; and
    (4) Person(s) fully qualified under Sec.  213.7 are notified and 
dispatched to the location promptly for the purpose of authorizing 
movements and effecting temporary or permanent repairs.
    (e) With respect to designations under paragraphs (a) through (d) 
of this section, each track owner shall maintain written records of--
    (1) Each designation in effect;
    (2) The basis for each designation; and
    (3) Track inspections made by each designated qualified person as 
required by Sec.  213.241. These records shall be kept available for 
inspection or copying by the Federal Railroad Administration during 
regular business hours.
    3. Section 213.119 is revised 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 track owner shall file its CWR plan with the FRA 
Associate Administrator for Safety. The CWR plan must contain an 
implementation date, provided that such date shall not be less than 30 
days after its submission. FRA will send a written statement to the 
track owner acknowledging receipt of the plan. FRA shall, at any time 
subsequent to filing, review a railroad's plan for conformity with this 
subpart. FRA, for cause stated, may require revisions to the plan to 
bring the plan into conformity with this subpart. Notice of a revision 
requirement shall be made in writing and specify the basis of FRA's 
requirement. The track owner may, within 30 days of the revision 
requirement, respond and provide written submissions in support of the 
original plan. FRA renders a final decision in writing. Not more than 
30 days following any final decision requiring revisions to a CWR plan, 
the track owner shall amend the plan in accordance with FRA's decision 
and resubmit the conforming plan. The conforming plan becomes effective 
upon its submission to FRA. FRA reviews each plan for compliance with 
the following required contents--
    (a) Procedures for the installation and adjustment of CWR which 
include--
    (1) Designation of a desired rail installation temperature range 
for the geographic area in which the CWR is located; and
    (2) De-stressing procedures/methods which address proper attainment 
of the desired rail installation temperature range when adjusting CWR.
    (b) Rail anchoring or fastening requirements that will provide 
sufficient restraint to limit longitudinal rail and crosstie movement 
to the extent practical, and specifically addressing CWR rail anchoring 
or fastening patterns on bridges, bridge approaches, and at other 
locations where possible longitudinal rail and crosstie movement 
associated with normally expected train-induced forces, is restricted.
    (c) CWR joint installation and maintenance procedures which require 
that--
    (1) Each rail shall be bolted with at least two bolts at each CWR 
joint;
    (2) In the case of a bolted joint installed during CWR installation 
after (insert publication date of final rule), the track owner shall, 
within 60 days--
    (i) Weld the joint;
    (ii) Install a joint with six bolts; or
    (iii) Anchor every tie 195 feet in both directions of the joint; 
and
    (3) In the case of a bolted joint in CWR experiencing service 
failure or a failed bar with a rail gap present, the track owner 
shall--
    (i) Weld the joint;
    (ii) Remediate joint conditions, replace the broken bolts, and weld 
the joint within 30 days;
    (iii) Replace the broken bar, replace the broken bolts, install two 
additional bolts, and adjust anchors;
    (iv) Replace the broken bar, replace the broken bolts, and anchor 
every tie 195 feet in both directions from the CWR joint; or
    (v) Add rail with provisions for later adjustment pursuant to 
paragraph (d)(2) of this section.
    (d) Procedures which specifically address maintaining a desired 
rail installation temperature range when cutting CWR, including rail 
repairs, in-track welding, and in conjunction with adjustments made in 
the area of tight track, a track buckle, or a pull-apart. Rail repair 
practices shall take into consideration existing rail temperature so 
that--
    (1) When rail is removed, the length installed shall be determined 
by taking into consideration the existing rail temperature and the 
desired rail installation temperature range; and
    (2) Under no circumstances should rail be added when the rail 
temperature is below that designated by paragraph (a)(1) of this 
section, without provisions for later adjustment.
    (e) Procedures which address the monitoring of CWR in curved track 
for inward shifts of alinement toward the center of the curve as a 
result of disturbed track.
    (f)(1) Procedures which govern train speed on CWR track when--
    (i) Maintenance work, track rehabilitation, track construction, or 
any other event occurs which disturbs the roadbed or ballast section 
and reduces the lateral or longitudinal resistance of the track; and
    (ii) The difference between the average rail temperature and the 
average rail neutral temperature is in a range that causes buckling-
prone conditions to be present at a specific location; and
    (2) In formulating the procedures under paragraph (f)(1) of this 
section, the track owner shall--
    (i) Determine the speed required, and the duration and subsequent 
removal of any speed restriction based on the restoration of the 
ballast, along with sufficient ballast re-consolidation to stabilize 
the track to a level that can accommodate expected train-induced 
forces. Ballast re-consolidation can be achieved through either the 
passage of train tonnage or mechanical stabilization procedures, or 
both; and
    (ii) Take into consideration the type of crossties used.
    (g) Procedures which prescribe when physical track inspections are 
to be performed.
    (1) At a minimum, these procedures shall address inspecting track 
to identify--
    (i) Buckling-prone conditions in CWR track, including--
    (A) Locations where tight or kinky rail conditions are likely to 
occur; and
    (B) Locations where track work of the nature described in paragraph 
(f)(1)(i) of

[[Page 73092]]

this section has recently been performed; and
    (ii) Pull-apart prone conditions in CWR track, including locations 
where pull-apart or stripped-joint rail conditions are likely to occur; 
and
    (2) In formulating the procedures under paragraph (g)(1) of this 
section, the track owner shall--
    (i) Specify the inspection interval; and
    (ii) Specify the appropriate remedial actions to be taken when 
either buckling-prone or pull-apart prone conditions are found.
    (h) Procedures which prescribe the scheduling and conduct of 
inspections to detect cracks and other indications of potential 
failures in CWR joints. In formulating the procedures under this 
paragraph (h), the track owner shall--
    (1) Address the inspection of joints and the track structure at 
joints, including, at a minimum, periodic on-foot inspections;
    (2) Identify joint bars with visible or otherwise detectable cracks 
and conduct remedial action pursuant to Sec.  213.121;
    (3) Specify the conditions of actual or potential joint failure for 
which personnel must inspect, including, at a minimum, the following 
items:
    (i) Loose, bent, or missing joint bolts;
    (ii) Rail end batter or mismatch that contributes to instability of 
the joint; and
    (iii) Evidence of excessive longitudinal rail movement in or near 
the joint, including, but not limited to; wide rail gap, defective 
joint bolts, disturbed ballast, surface deviations, gap between tie 
plates and rail, or displaced rail anchors;
    (4) Specify the procedures for the inspection of CWR joints that 
are imbedded in highway-rail crossings or in other structures that 
prevent a complete inspection of the joint, including procedures for 
the removal from the joint of loose material or other temporary 
material;
    (5) Specify the appropriate corrective actions to be taken when 
personnel find conditions of actual or potential joint failure, 
including on-foot follow-up inspections to monitor conditions of 
potential joint failure in any period prior to completion of repairs.
    (6) Specify the timing of periodic inspections, which shall be 
based on the configuration and condition of the joint:
    (i) Except as provided in paragraphs (h)(6)(ii) through (iv) of 
this section, track owners must specify that all CWR joints are 
inspected, at a minimum, in accordance with the intervals identified in 
the following table--

                               Minimum Number of Inspections per Calendar Year \1\
----------------------------------------------------------------------------------------------------------------
                                  Freight trains     Passenger     Less than 40                    Greater than
                                  operating over      trains            mgt        40 to 60 mgt    60 mgt  Less
----------------------------------------------------------------------------------------------------------------
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             \3\             \3\
----------------------------------------------------------------------------------------------------------------
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.
\3\ n/a.

    (ii) Consistent with any limitations applied by the track owner, a 
passenger train conducting an unscheduled detour operation may proceed 
over track not normally used for passenger operations at a speed not to 
exceed the maximum authorized speed otherwise allowed, even though CWR 
joints have not been inspected in accordance with the frequency 
identified in paragraph (h)(6)(i) of this section, provided that:
    (A) All CWR joints have been inspected consistent with requirements 
for freight service; and
    (B) The unscheduled detour operation lasts no more than 14 
consecutive calendar days. In order to continue operations beyond the 
14-day period, the track owner must inspect the CWR joints in 
accordance with the requirements of paragraph (h)(6)(i) of this 
section.
    (iii) Tourist, scenic, historic, or excursion operations, if 
limited to the maximum authorized speed for passenger trains over the 
next lower class of track, need not be considered in determining the 
frequency of inspections under paragraph (h)(6)(i) of this section.
    (iv) All CWR joints that are located in switches, turnouts, track 
crossings, lift rail assemblies or other transition devices on moveable 
bridges must be inspected on foot at least monthly, consistent with the 
requirements in Sec.  213.235; and all records of those inspections 
must be kept in accordance with the requirements in Sec.  213.241. A 
track owner may include in its Sec.  213.235 inspections, in lieu of 
the joint inspections required by paragraph (h)(6)(i) of this section, 
CWR joints that are located in track structure that is adjacent to 
switches and turnouts, provided that the track owner precisely defines 
the parameters of that arrangement in the CWR plans.
    (7) Specify the recordkeeping requirements related to joint bars in 
CWR, including the following:
    (i) The track owner shall keep a record of each periodic and 
follow-up inspection required to be performed by the track owner's CWR 
plan, except for those inspections conducted pursuant to Sec.  213.235 
for which track owners must maintain records pursuant to Sec.  213.241. 
The record shall be prepared on the day the inspection is made and 
signed by

[[Page 73093]]

the person making the inspection. The record shall include, at a 
minimum, the following items: the boundaries of the territory 
inspected; the nature and location of any deviations at the joint from 
the requirements of this part or of the track owner's CWR plan, with 
the location identified with sufficient precision that personnel could 
return to the joint and identify it without ambiguity; the date of the 
inspection; the remedial action, corrective action, or both, that has 
been taken or will be taken; and the name or identification number of 
the person who made the inspection.
    (ii) The track owner shall generate a Fracture Report for every 
cracked or broken CWR joint bar that the track owner discovers during 
the course of an inspection conducted pursuant to Sec. Sec.  
213.119(g), 213.233, or 213.235 on track that is required under Sec.  
213.119(h)(6)(i) to be inspected.
    (A) The Fracture Report shall be prepared on the day the cracked or 
broken joint bar is discovered. The Report shall include, at a minimum: 
the railroad name; the location of the joint bar as identified by 
milepost and subdivision; the class of track; annual million gross tons 
for the previous calendar year; the date of discovery of the crack or 
break; the rail section; the type of bar (standard, insulated, or 
compromise); the number of holes in the joint bar; a general 
description of the location of the crack or break in bar; the visible 
length of the crack in inches; the gap measurement between rail ends; 
the amount and length of rail end batter or ramp on each rail end; the 
amount of tread mismatch; the vertical movement of joint; and in curves 
or spirals, the amount of gage mismatch and the lateral movement of the 
joint.
    (B) The track owner shall submit the information contained in the 
Fracture Reports to the FRA Associate Administrator 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 (h)(1) through (h)(7) of this section, a track 
owner may seek approval from FRA to use alternate procedures.
    (i) The track owner shall submit the proposed alternate procedures 
and a supporting statement of justification to the Associate 
Administrator.
    (ii) If the Associate Administrator finds that the proposed 
alternate procedures provide an equivalent or higher level of safety 
than the requirements in paragraphs (h)(1) through (h)(7) of this 
section, the Associate Administrator will approve the alternate 
procedures by notifying the track owner in writing. The Associate 
Administrator will specify in the written notification the date on 
which the procedures will become effective, and after that date, the 
track owner shall comply with the procedures. If the Associate 
Administrator determines that the alternate procedures do not provide 
an equivalent level of safety, the Associate Administrator will 
disapprove the alternate procedures in writing, and the track owner 
shall continue to comply with the requirements in paragraphs (h)(1) 
through (h)(7) of this section.
    (iii) While a determination is pending with the Associate 
Administrator on a request submitted pursuant to paragraph (h)(8) of 
this section, the track owner shall continue to comply with the 
requirements contained in paragraphs (h)(1) through (h)(7) of this 
section.
    (i) The track owner shall have in effect a comprehensive training 
program for the application of these written CWR procedures, with 
provisions for annual re-training, for those individuals designated 
under Sec.  213.7(c) as qualified to supervise the installation, 
adjustment, and maintenance of CWR track and to perform inspections of 
CWR track. The track owner shall make the training program available 
for review by FRA upon request.
    (j) The track owner shall prescribe and comply with recordkeeping 
requirements necessary to provide an adequate history of track 
constructed with CWR. At a minimum, these records must include:
    (1) Rail temperature, location, and date of CWR installations. Each 
record shall be retained for at least one year;
    (2) A record of any CWR installation or maintenance work that does 
not conform 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; and
    (3) Information on inspection of rail joints as specified in 
paragraph (h)(7) of this section.
    (k) The track owner shall make readily available, at every job site 
where personnel are assigned to install, inspect or maintain CWR, a 
copy of the track owner's CWR procedures and all revisions, appendices, 
updates, and referenced materials related thereto prior to their 
effective date. Such CWR procedures shall be issued and maintained in 
one engineering standards and procedures manual.
    (l) As used in this section--
    Adjusting/de-stressing means the procedure by which a rail's 
temperature is re-adjusted to the desired value. It typically consists 
of cutting the rail and removing rail anchoring devices, which provides 
for the necessary expansion and contraction, and then re-assembling the 
track.
    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. Rail installed as CWR remains 
CWR, regardless of whether a joint or plug is installed into the rail 
at a later time.
    Corrective actions mean those actions which track owners specify in 
their CWR plans to address conditions of actual or potential joint 
failure, including, as applicable, repair, restrictions on operations, 
and additional on-foot inspections.
    CWR joint means any joint directly connected to CWR.
    Desired rail installation temperature range means the rail 
temperature range, within a specific geographical area, at which forces 
in CWR should not cause a buckling incident in extreme heat, or a pull-
apart during extreme cold weather.
    Disturbed track means the disturbance of the roadbed or ballast 
section, as a result of track maintenance or any other event, which 
reduces the lateral or longitudinal resistance of the track, or both.
    Mechanical stabilization means a type of procedure used to restore 
track resistance to disturbed track following certain maintenance 
operations. This procedure may incorporate dynamic track stabilizers or 
ballast consolidators, which are units of work equipment that are used 
as a substitute for the stabilization action provided by the passage of 
tonnage trains.

[[Page 73094]]

    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 neutral temperature is the temperature at which the rail is 
neither in compression nor tension.
    Rail temperature means the temperature of the rail, measured with a 
rail thermometer.
    Remedial actions mean those actions which track owners are required 
to take as a result of requirements of this part to address a non-
compliant condition.
    Tight/kinky rail means CWR which exhibits minute 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.
    Track lateral resistance means the resistance provided by the rail/
crosstie structure against lateral displacement.
    Track longitudinal resistance means the resistance provided by the 
rail anchors/rail fasteners and the ballast section to the rail/
crosstie structure against longitudinal displacement.
    Train-induced forces means the vertical, longitudinal, and lateral 
dynamic forces which are generated during train movement and which can 
contribute to the buckling potential of the rail.
    Unscheduled detour operation means a short-term, unscheduled 
operation where a track owner has no more than 14 calendar days' notice 
that the operation is going to occur.

    Issued in Washington, DC, on November 24, 2008.
Joseph H. Boardman,
Federal Railroad Administrator.
[FR Doc. E8-28438 Filed 11-28-08; 8:45 am]
BILLING CODE 4910-06-P